32
undocumented or in an irregular situation have been identified as a group in a
vulnerable situation86 given that “they are the most vulnerable to potential or actual
violations of their human rights”87 and they suffer from, as consequence of their
situation, a lack of protection of their rights at a high level and “differences in their
access […] to the public resources administered by the State [in relation to nationals
or residents].”88 Evidently, this situation of vulnerability has “an ideological dimension
and occurs in a historical context that is distinct for each State and is maintained by
de jure (inequalities between nationals and aliens in the laws) and de facto (structural
inequalities) situations.”89 Moreover, cultural prejudices about migrants lead to
reproduction of the situation of vulnerability, which make it difficult for migrants to
integrate into society.90 Finally, it is worth mentioning that the human rights
violations committed against migrants many times go unpunished due to, inter alia,
the set of cultural elements which justify it, the lack of access to power structures in a
given society and the legal and factual impediments which make the effective access
to justice illusory.91
99.
Pursuant to the principle of effectiveness and the need of protection in those
cases of people or groups in situation of vulnerability,92 this Tribunal shall interpret
and give essence to the rights enshrined in the Convention, according to the evolution
of the international corpus juris existing in relation to the human rights of migrants,
taking into account that the international community has recognized the need to
adopt special measures to ensure the protection of the human rights of this group.93
100. This does not mean that they cannot take any action against migrants who do
not comply with the State legal system. However, it is important that, when taking
the corresponding measures, States should respect human rights and ensure their
exercise and enjoyment to all persons who are in their territory, without any
discrimination owing to their regular or irregular residence, or their nationality, race,
86
Likewise, the United Nations General Assembly highlighted “the situation of vulnerability in which
migrants frequently find themselves, owing, inter alia, to their absence from their State of origin and to the
difficulties they encounter because of differences of language, custom and culture, as well as the economic
and social difficulties and obstacles for the return to their States of origin of migrants who are nondocumented or in an irregular situation.” United Nations, General Assembly, Resolution A/RES/54/166 on
“Protection of migrants” of February 24, 2000, Preamble, para. Fifth, cited in Juridical Condition and Rights
of the Undocumented Migrants, supra note 82, para. 114.
87
United Nations, Economic and Social Council, “Specific Groups and Individuals: Migrant Workers.
Human Rights of Migrants,” Report of the Special Rapporteur, Mrs. Gabriela Rodriguez Pizarro, submitted
pursuant Order 1999/44 of the Commission on Human Rights, E/CN.4/2000/82, of January 6, 2000, para.
28.
88
Juridical Condition and Rights of the Undocumented Migrants, supra note 82, para 112.
89
Juridical Condition and Rights of the Undocumented Migrants, supra note 82, para 112.
90
Cf. Juridical Condition and Rights of the Undocumented Migrants, supra note 82, para 113.
91
Cf. United Nations, Economic and Social Council, “Specific Groups and Individuals: Migrant
Workers. Human Rights of Migrants,” Report of the Special Rapporteur, Mrs. Gabriela Rodriguez Pizarro,
submitted pursuant Order 1999/44 of the Commission on Human Rights, E/CN.4/2000/82, of January 6,
2000, para. 73, and Juridical Condition and Rights of the Undocumented Migrants, supra note 82, para 112.
92
Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations, and Costs.
Judgment of March 29, 2006. Series C No. 146, para. 189; Case of Ibsen Cárdenas and Ibsen Peña, supra
note 28, para. 90, and Case of the Xákmok Kásek Indigenous Community, supra note 28, para. 250.
93
Cf. Juridical Condition and Rights of the Undocumented Migrants, supra note 82, para. 117,
quoting United Nations, World Summit for Social Development, held in Copenhagen, March 6 to 12, 1995,
A/CONF.166/9, of April 19, 1995, Programme of Action, paras. 63, 77, and 78, available at:
http://www.inclusion-ia.org/espa%F1ol/Norm/copspanish.pdf; United Nations, Report of the United Nations
International Conference on Population and Development held in Cairo from 5 to 13 September, 1994,
A/CONF.171/13, October 18, 1994, Programme of Action, Chapter X.A. 10.2 to 10.20, available at:
http://www.un.org/popin/icpd/conference/offspa/sconf13.html, and United Nations General Assembly,
World Conference on Human Rights held in Vienna, Austria, on 14 to 25 June, 1993, A/CONF.157/23, July
12,
1993,
Declaration
and
Programme
of
Action,
I.24
and
II.33-35,
available
at:
http://www.cinu.org.mx/temas/dh/decvienapaccion.pdf.
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