Seminar-Workshop on Human Rights of Migrant Populations

1. Seminar-Workshop on Human Rights of Migrant Populations Registering the Birth of Children of Migrants and Access to Consular Protection

2. Registration of Births • Denying the registration of birth/identity of children born in the country of destination due to the migration status of the child’s parents. • Art. 2 CDN. Non-discrimination due to the parents’ status. • Art. 7.1 & 8.1 CDN. The right to an identity, a name, and a nationality. • Art. 29 CTM. All the children of migrant workers shall have the right to have a name, to have their birth registered, and to have a nationality.

3. Identity • The right to identity consists of recognizing the right to have a name, the right to have a nationality, and the right to have legal status enabling an individual to exercise his/her citizenship. • In addition, it is the key for access to and exercise of political, civil, economic, social, and cultural rights, such as health and education.

4. IUS SOLI • In order to acquire nationality, regulations in the majority of Latin American countries (constitutional texts) recognize the principle of ius soli, whereby individuals born in the territory of a given State have the right to acquire the nationality of that country.

5. The Case of Yean and Bosico • The migratory status of a person cannot be a condition for the State to grant nationality since the migratory status can never be a justification for depriving him/her of the right to nationality or the enjoyment and exercise of his/her rights. • The migratory status of a person is not passed on to the children of this person. • The condition of being born in the State’s territory is the only condition that needs to be proven to acquire nationality.

6. The Case of Yean and Bosico • “States have the obligation to not only protect the right to a name but also, implement the necessary actions to facilitate registering the birth of the person immediately after birth” and “guarantee that the child is registered under the name chosen by the child or his/her parents, depending on the time of registration, without any type of restriction to this right”. • “States have the obligation of not adopting practices or legislation to grant nationality which promote an increase in the number of stateless persons”.

7. Registering Births • Irrespective of the regular or irregular character of the migratory status of the parents, children born in the country of destination have the right to be registered upon birth and to receive a birth certificate, a name, and a nationality. Committee on the Protection of All Migrant Workers and Members of their Families

8. Committee on the Rights of the Child General Comment 7 • “Comprehensive services for early childhood begin at birth [...] As a first step in ensuring the rights to survival, development, and access to quality services for all children, it is recommended that States parties take all necessary measures to ensure that all children are registered at birth. This can be achieved through a universal, well-managed registration system that is accessible to all and free of charge. […] All children should be registered at birth, without discrimination of any kind. […] Facilitating late registration of birth is fundamental.”

9. Practices that Violate Human Rights • Authorities in charge of the birth register interpreting regulations in a restrictive manner, demanding that the parents provide proof of residence in the country or other documents under the warning that registration of the birth can be denied. • Establishing the irregular migratory status of the parents as a reason for exception in applying the principle of ius soli.

10. Practices that Violate Human Rights • To consider a person to be a passer-by or in transit without a reasonable time limit (a foreign national establishing links in a State cannot be compared to a passer-by or a person in transit). • The obligation to denounce persons who may have violated migration regulation, applied to employees and officials from public institutions associated to the registration of births and granting identity and nationality to children of migrants.

11. Obligations of States • To refrain from establishing provisions and allowing practices that may illegally hinder or restrict their exercise, whether directly or indirectly. • To guarantee the right to each boy and girl, without any discrimination whatsoever, to registration of birth, a name, and a nationality through current public policy to implement these rights.

12. Obligations of States (of Origin) • Countries of origin should provide, through consular representatives, all necessary measures to facilitate identity documents for migrants in an expedited and accessible manner, since these documents are indispensable to ensure the rights of migrants and the rights of their children and to enable regularization of their migratory status in the country of residence. IAHRC, Rapporteur for Migrant Workers and Members of their Families, 7th Progress Report

13. Obligations of States • Designing a birth registration system that is efficient and free of charge and that covers the entire territory of the State (for example, through mobile registration units and information and awareness-raising campaigns). • Coordinated actions between different State institutions, such as those in charge of the civil registry and hospitals and health centres. • While these actions are being implemented – and therefore, while the children still do not have the required documents – full access to basic services such as health and education should be guaranteed for the children. Committee on the Rights of the Child (for example, Belize, 2006)

14. Obligations of States - Training • States should carry out campaigns oriented toward training public officers, with the objective of avoiding the existence of migration control practices in those areas. • In addition, campaigns oriented toward migrant populations should be carried out to inform migrants that the exercise of rights such as antenatal care and assisted delivery, registration of births, and obtaining identity documents for children should never lead to the initiation of migration control procedures.

15. Consular Assistance • The 1963 Vienna Convention on Consular Relations (Article 36) establishes that if requested by the interested (detained) person, relevant authorities from the receiving State should inform the relevant consular office in that State without delay when a national of that State has been deprived of his/her freedom. This includes: • Communicating freely with consular officers; • Receiving visits and assistance from consular officers.

16. Consular Assistance • Migrant workers and their families “shall have the right to resort to protection and assistance by consular or diplomatic authorities of their State of origin [...] in all cases where the rights recognized in this Convention are damaged.” Article 23 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. • The Committee on the Protection of the Rights of All Migrant Workers has recommended that countries in the region adopt measures to guarantee the right to consular assistance in deportation procedures.

17. The Right to Information on Consular Assistance within the Framework of the Guarantees of the Due Process of Law – OC 16/99 • Article 36 of the Vienna Convention on Consular Relations recognizes the individual rights of detained foreign nationals, including the right to information on consular assistance, with the corresponding duties by the receiving State and the State of origin to guarantee protection of the rights of the national of the sending State and as included in international human rights regulations. • Inasmuch as they constitute personal rights, the migrant can oppose to communication with the consular representative of the country of origin and to any other intervention of said authorities in the procedure.

18. Inter-American Court of Human Rights, OC-16/99 • The Inter-American Court considers that in case of inobservance of this obligation by receiving States, they are clearly violating the regulations of the due process of law and, of course, various human rights of the detained foreign national, in addition to incompliance with Article 36.1.b) of the Vienna Convention on Consular Relations. This can lead to the relevant international responsibility of the State and even to the State’s obligation to provide reparation.

19. The Vélez Loor Case • From a perspective of the rights of the detained person, there are three essential components of the rights that the State owes to the individual: 1) The right to be notified of his rights under the Vienna Convention; 2) The right to effective access to communication with consular officers; 3) The right to assistance itself. The Case of Vélez Loor vs. Panama, Sentence of November 23, 2010

20. Obligations of States • The legislation of States should explicitly establish the obligation to inform migrants involved in repatriation processes about their right to communicate with and receive assistance from consular authorities of their country of origin. • States should design mechanisms to ensure that relevant authorities immediately inform migrants (and their guardians, in the case of unaccompanied boys, girls, and adolescents) of their right to consular assistance.

21. At the end of century, we have the privilege to witness the process of humanization of international law, which today encompasses also this aspect of consular relations. In the confluence of these latter with human rights, the subjective individual right to information on consular assistance, of which are titulaires all human beings who are in the need to exercise it, has crystallized: such individual right, situated in the conceptual universe of human rights, is supported today by conventional international law and by consuetudinary international law.  Cançado Trindade