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保护移民工人权利委员会审议尼加拉瓜的首份报告(部分翻译)

移民工人权利委员会

2016年9月1日

保护所有移民工人及其家庭成员权利委员会今天结束审议尼加拉瓜关于落实《保护所有移民工人及其家庭成员权利国际公约》的首份报告。

尼加拉瓜大使兼常驻联合国日内瓦办事处代表埃尔南•埃斯特拉达•罗曼(Hernan Estrada Roman)呈递了报告,促请各国解决因移民流引发的全球问题,保护移民者和难民的权利,同时不使用双重标准,尊重人民的国家主权。尼加拉瓜已于2006年批准了《公约》;于2014年修改了《宪法》,保障外国人和移民工人不受歧视地享有全面平等,第716号《移民者和外国人法》全面建立了移民者的工作权。尼加拉瓜尚未与哥斯达黎加、巴拿马、墨西哥或美国就移民问题达成任何双边协定,但哥斯达黎加和尼加拉瓜国内两个最强大工会组织之间已达成双边协定,对确保两国移民工人劳动权而言十分重要,而移民工人是两国劳动力的重要组成部分。

委员会专家询问了为保护移民者权利而制定的法律框架及其实际运用,尤其是在2011年改革和通过《移民者和外国人法》之后的情况下。他们问及为解决尼加拉瓜人向哥斯达黎加和美国移民问题的原因所制定的政策,以及为搜寻尤其是在墨西哥的失踪移民者、鉴别骸骨、告知家属并提供司法救助和补偿方面的努力。尽管尼加拉瓜声称已避免对移民的“安全化”,但该国使用军队在边境提供安保,还采取了一些行动解决数以千计的古巴和其他移民者过境问题,这实际上令处于不同移民阶段的移民者更加脆弱。专家们对2015年的一些报告深感担忧,其内容有关封锁边界、拒绝大批古巴、海地移民者进入国家以及在确保边界安全背景下的人权侵犯和践踏行为。拘留并剥夺移民者、寻求庇护者和难民的自由是另一个关注问题,委员会专家也问及了总体的拘留环境、拘留原因、拘留的替代做法以及被拘留移民者的司法保护。

委员会尼加拉瓜报告员巴勃罗•塞里亚尼•塞纳达斯(Pablo Ceriani Cernadas)在结束发言中提到,对话的目的是开展坦诚、开放的讨论,借此交流专门信息,以此令委员会能够为尼加拉瓜落实《公约》做出贡献。

委员会尼加拉瓜报告员马尔科•纽内-梅尔加•马基纳(Marco Nuñez-Melgar Maguiña)同样在结束发言中强调,各国必须部署符合国际标准和《公约》条款的跨领域政策和办法以解决移民问题。

委员会主席何塞•布里兰特斯(Jose Brillantes)表示,对话在某种程度上提供了关于国内移民工人和国外尼加拉瓜移民工人状况的一些见解,并表示结论性意见将反映专家们关于委员会在审议尼加拉瓜报告中面对的新状况的意见和观点。

罗曼大使在结束发言中重申了尼加拉瓜参与对话的真诚政治意愿。尼加拉瓜将会在其认为合适时提供额外信息,而不会完全服从本委员会秘书处或其他论坛的做法。

国家报告员和其他专家提醒尼加拉瓜,对话应当是具有建设性并带有尊重的,且应以提升移民工人及其家庭成员的福祉为目标。委员会表示其并未提出任何尚未为其他人权条约机构使用的要求,并促请尼加拉瓜承担自身责任,秉承合作精神,在48小时内提供额外信息。委员会将基于现有信息起草结论性意见,不会无限期地等待额外回应。

尼加拉瓜代表团包括尼加拉瓜常驻联合国日内瓦办事处代表团的代表们。

关于尼加拉瓜报告的结论性意见将于2016年9月7日(周三)在此公布。

委员会公开会议将在此进行网络直播:http://webtv.un.org/

委员会将于今天下午3点举行下一次公开会议,开始审议斯里兰卡的第二次定期报告(CMW/C/LKA/2)。

Report

The initial report of Nicaragua (CMW/C/NIC/1) will be available here at a later time.

Presentation of the Report

HERNAN ESTRADA ROMAN, Ambassador and Permanent Representative of Nicaragua to the United Nations Office at Geneva, underscored that the rights of migrant workers, economic refugees, climate refugees, and those fleeing from war and planetary devastation should be addressed by all States, without any double standards and with respect to the national sovereignty of peoples. States should also address global causes of migratory flows. Nicaragua had ratified the Convention in 2006. The State was organized in a way to ensure common good and human development for each and every Nicaraguan; the family, community and human beings were the nucleus of the State’s policy and all actions by the State aimed to restore the rights of the people taken away by previous neoliberal governments. The Constitution, reformed in 2014, had set out specific provisions in connection with the Convention, including in the areas of rights and fundamental freedoms, family rights and labour rights, and it guaranteed the full equality of foreigners and migrant workers without discrimination or distinction on any grounds. Foreigners enjoyed the same duties and rights as nationals, with the exception of political rights. In addition to offering free health care, access to health care had been strengthened through the application of family and community health models; access to free public education had been guaranteed since 2007.

Refugees in Nicaragua enjoyed access to social services and had the right to work, while the right to work for migrants was established by the Law N°716 on Migration and Foreigners. At the moment, there were no bilateral agreements on migratory issues with Costa Rica, Panama, Mexico and the United States. The National Plan for Work and Dignified Jobs for Youth was a tool for the creation and promotion of employment for youth, as a key factor of their social integration. The Government had ratified 62 Conventions, of which 56 were in force, including eight Conventions of the International Labour Organization. The model for access to justice had borne the right fruit and there was no backlog in the legal system, and all residents including foreign citizens were able to have autonomous access to the justice system nation-wide. The creation of the National Tribunal for Labour Appeals and Social Security ensured judicial security, transparency, impartiality and labour relations and reduced delays in delivering and administering justice. The restitution of rights was a priority for the Government of Reconciliation and National Unity, including the right to migrate to look for work. The bilateral union agreement between the two strongest union organizations in Costa Rica and Nicaragua was crucial to ensuring the human and labour rights of the migrant workers of those two countries, who represented an important part of the labour force.

Questions from the Committee Experts

PABLO CERIANI CERNADAS, Committee Expert and Co-Rapporteur for Nicaragua, expressed concern that the initial report of Nicaragua had only been received this morning, which was making it difficult to properly examine the situation in Nicaragua. On a similar vein, the replies to the list of issues did not answer the questions asked by the Committee. Further, Nicaragua was not represented by a delegation which included technical experts on migration issues. The Co-Rapporteur asked the delegation about the legal framework concerning the protection of the rights of migrants, and about the application of the law in practice, especially following the 2011 reforms and the approval of the Law on Migrants and Foreigners which expressly referred to the Convention. What was the system in place to ensure judicial protection for migrants, particularly those in detention? What policies had been put in place to address the causes of migration from Nicaragua, mainly to Costa Rica and the United States? What system was in place to support returning migrants, and help with their integration into society and the world of work?

There had been reports of border closure, refusal of entry to groups of migrants from Cuba, as well as reports of human rights violations in this context; it seemed that this situation had repeated itself recently, with groups of Haitians and Africans attempting to enter Nicaragua. It had also been reported that some Haitian migrants had been killed either while crossing the border or immediately after crossing the border; what had been done to inform the families of the fate of their loved ones? There were no bilateral agreements with countries of destination for Nicaraguan migrants - why had such decisions been taken? With regard to the detention of migrants, the delegation was asked why migrants were detained, in which detention centres, for how long, and whether civil society organizations were allowed to visit those centres. Was it true that returning migrants were detained, if so, where, why and for how long? What efforts were being taken to search for disappeared migrants, identify bodies, inform families and provide access to justice and compensation?

MARCO NUÑEZ-MELGAR MAGUIÑA, Committee Expert and Co-Rapporteur for Nicaragua, took up the issue of employment agencies and, noting that the majority of Nicaraguan migrants worked in Costa Rica, asked whether Nicaragua would consider a greater role of private sector mediation in employment. Trafficking in persons was a crime under the laws of Nicaragua, said the Co-Rapporteur and asked about cross-cutting national policies against trafficking in persons which embodied the approach of combatting and prosecuting trafficking and aiding victims. Nicaragua was a transit corridor and very much affected by trafficking, which was the second most lucrative criminal activity in the world. The delegation was asked about steps taken to address the humanitarian crisis of migration, about the detention of migrants and applicable administrative and legal proceedings, about the militarization of the borders and how safe borders for migrants could be assured, and about return programmes and bilateral agreements for the return of Nicaraguan migrants.

Other Experts asked for further information concerning consular services and support to citizens abroad, about the policy on remittances in Nicaragua and how it addressed the issues of origin and destination, about the efforts within the framework of bilateral agreements to regularize irregular migrants from Nicaragua and from Costa Rica, and about the measures taken to address the humanitarian situation of Cubans in transit, which had started in 2015 and had not yet been resolved. What steps were in place to promote the regularization of migration nationally? Did the diaspora have the right to vote, and if not, why?

The delegation was also asked to inform the Committee about the policies and measures to address the issue of children victims of trafficking in persons, how the “child” was defined in the relevant legislation, and how the victims were identified, assisted and supported. The region had a problem of irregular transit of migrant children, which was a very disturbing phenomenon; some sought family reunion in the country of destination, and others were on the front of the migratory flow. What was being done to address this phenomena of children travelling as irregular migrants, were there any bilateral agreements to this effect, how were the children who were returned managed and supported, and what could Nicaragua have done to prevent the phenomena from occurring in the first place?

Another Expert asked about the functioning of the Procurator’s Office and how its independence – both financial and institutional – were ensured, and about the general effectiveness of this institution; about accessibility of the Office of the Public Defender to the people; the main reasons for which bilateral agreements with the principal country of destination for Nicaraguan migrants had not been signed; and the reasons which could explain the increase in sexual violence and exploitation.

PABLO CERIANI CERNADAS, Committee Expert and Co-Rapporteur for Nicaragua, asked about the institutional framework for the implementation of the migration policy and the rights enshrined in the laws, and whether an inter-institutional coordination mechanism was in place. The migration in the region was mostly south to north, however, as a result of violence in the Northern Triangle, north to south migration was on the increase – what was the response to this new phenomenon and how were those seeking protection in Nicaragua assisted? What mechanism was in place to ensure dialogue and the continuous participation of civil society in migration issues and the protection of migrants’ rights? Was the information available to civil society on how humanitarian assistance and support could be provided to people stranded on the southern border?

The delegation was also asked about the official policy on remittances and about temporary protection status granted by the United States to Nicaraguans.

JOSE BRILLANTES, Committee Chairperson, asked which specific institution was responsible for the implementation of the Convention in Nicaragua.

Response by the Delegation

Responding to questions related to irregular migrants, a delegate said that the Law on Migration and Foreigners went beyond the norms and standards used by many other countries which criminalized irregular migrants. Some of the ways in which Nicaragua was complying with the provisions of the Convention included the issuing of humanitarian visas, and supporting children and adult migrants who were victims of trafficking, while the law regulated the detention of irregular migrants. Irregular migrants were those who entered or attempted to leave the country through an unauthorised border point, those who obtained passports or visas through illegal means, or those whose visas had expired. Irregular migrants were given 30 days to obtain the necessary documentation, after which deadline they had to leave the country. Upon identification, irregular migrants were escorted by the police to a national migrant shelter or a holding facility; they were notified that they would be held in holding facilities, and the reasons were explained through an administrative ruling. The diplomatic representatives of those nationals were notified as well.

Policies had been designed to address the emigration of Nicaraguans and their return to the country. Nicaragua was a very safe country in every sense of the word thus it was not insecurity but rather poverty that drove people to migrate. Nicaragua was among the safest countries in Latin America, but was also the second poorest country on the continent. The system of social equity had been developed to fight poverty through rural development, agricultural development, health, education, access to clean water and sanitation, and other programmes. A national country-wide plan had been prepared and adopted by all institutions and stakeholders, including civil society organizations, to fight poverty and inequality. Nicaragua had been one of the first countries to attain the Millennium Development Goal N°1 on reducing malnutrition ahead of schedule. Policies for poverty reduction were focused on families and communities, and supporting their livelihoods and income generation: 90 per cent of the gross domestic product was generated by family-run activities, which represented 85 per cent of producers in the country.

Concerning the so-called border problems at the end of 2015 related to the alleged entry into the country of several thousand Cuban migrants, and the so-called reported abuses and even killing of those migrants, the head of the delegation said that the Government was in constant dialogue with Cuba, Costa Rica and other countries in the region to address this crisis. The crisis had political origins and Nicaragua was requesting the United States to respect the human rights of peoples and migrants, and to put a stop to its discriminatory and inhumane migration policies. Nicaragua joined Cuba in its legal demand for the establishment of legal routes of migration in order to protect rights, lives and the dignity of migrants. Clear steps had been taken in Nicaragua to address this situation, with the army being ordered to provide security for the country and for the migrants who were often victims of transnational organized crimes.

As a result of measures taken by the Government of Reconciliation and National Unity, in 2013/2014, the migration of Nicaraguans abroad had dropped by three per cent and the return had increased by eight per cent. In 2015, more than four million migratory crossings of the borders had been recorded, representing a three per cent increase compared by 2014. The migrant shelters were reserved for foreign migrants exclusively, and the centres never housed criminals; migrants in shelters had access to health care, personal hygiene items, and newspapers; women were held separately, and they could receive phone calls. Separate rooms had been equipped to provide adequate space for interviews of migrants.

Vulnerable migrants were transferred to facilities that addressed their needs, and those identified as vulnerable under Article 10 were adequately taken care of. Nicaragua was a host to many refugees fleeing conflicts in Central America and had adopted the law on refugees which embodied the principles of the 1951 Refugee Convention, including on non-refoulement, family reunification, and others.

It was true that missing Nicaraguan migrants had been found in Mexico, including remains found in mass graves, and the authorities were taking steps to identify the bodies, inform families and ensure access to justice.

Between 2010 and 2015, Nicaragua had strengthened its legal framework to fight trafficking in persons, and had adopted, among others, the Act to Combat Organized Crime, the Anti-Human Trafficking Act, and the Act to Fight Violence against Women. The National Coalition for Fighting Human Trafficking comprised 70 institutions from different sectors and was responsible for the implementation of the laws. Nicaragua was an active participant in the international fora addressing the issue, including those of the United Nations, and was involved in the Central American Initiative to fight human trafficking. Its work on fighting human trafficking on the northern-southern route had been acknowledged by the United Nations Office on Drugs and Crime.

Migrants could be deported for a number of reasons, but the decision of the Ministry of Interior could be appealed, by invoking the writ of Amparo, or Amparo procedure, which was a remedy for the protection of Constitutional rights.

The Nicaraguan Central Bank published quarterly reports on remittances which were an important source of foreign currency, while the statistics contained in the report provided a better understanding of the origin of remittances, destination, and their use. In 2015, remittances amounted to $289 million, and so far in 2016, to $302 million.

With regard to consular assistance and services, a delegate said that consulates throughout the world provided identification documents, civil registration, legal advice, and information on administrative affairs. Where possible, consulates provided advice and support for the return of the remains of Nicaraguan citizens. Nicaraguans abroad had the right to vote, however, the Electoral Law had not yet been activated because of challenges in registering all Nicaraguans, ensuring that they had the right to vote, and building and maintaining the registry of voters.


Questions by the Committee Experts

PABLO CERIANI CERNADAS, Committee Expert and Co-Rapporteur for Nicaragua, in his follow-up questions, asked about detention and deprivation of liberty in the migratory process, and especially about alternatives to the detention of migrants, asylum seekers and refugees. Which measures were being put in place to reduce vulnerabilities and protect migrants in various stages of migration, especially Cubans transiting through the country, and to avoid “securisation” of migration and the use of the army to provide security at the borders, which often caused many migrants to seek more dangerous routes? How were regional processes assisting or hindering the implementation of the provisions of the Convention?

Another Expert remarked that the information provided by the delegation was background information on the legislation and policy framework in the country, and noted that concrete questions that Experts raised in the discussion still remained unanswered, including those on national human rights institutions in Nicaragua, the system of legal aid and its accessibility to migrants, and bilateral agreements with countries of destination, particularly Costa Rica and the United States.

The dialogue today was a discussion of general nature, and not a discussion on the implementation of the Convention, said another Expert, who then refrained from asking questions concerning the legal system and framework in place in Nicaragua.

MARCO NUÑEZ-MELGAR MAGUIÑA, Committee Expert and Co-Rapporteur for Nicaragua, asked whether there was a budgetary allocation for consular services and protection accorded to Nicaraguan citizens abroad, noting that migration was an important issue for Nicaragua, and that there was a need to provide adequate consular responses and support to citizens, particularly in places of great concentration. Were remittances easy to receive throughout the country, and were they subject to tax?

Response by the Delegation

The head of the delegation said that Nicaragua would respond to all questions raised by the Experts during the intersessional period.

Concluding Remarks

PABLO CERIANI CERNADAS, Committee Expert and Co-Rapporteur for Nicaragua, said that the objective of the dialogue was to have a frank and open discussion, in which an exchange of specialized information would occur, and the Committee would understand the concrete realities regarding the rights of migrant workers and their families in the country and abroad. The dialogue was a process which would continue and it was hoped that moving forward, there would be a better exchange of information through the Committee that could contribute to the implementation of the Convention by Nicaragua.

MARCO NUÑEZ-MELGAR MAGUIÑA, Committee Expert and Co-Rapporteur for Nicaragua, said that migration was complex and multi-dimensional, and that pursuant to the cross-cutting nature of human rights, countries needed to deploy cross-cutting policies and approaches to addressing migration, which would be in line with international standards and the provisions of the Convention.

Another Committee Expert commended Nicaragua for its courage and for coming before the Committee and said that Nicaragua should have made more effort in submitting the report in time. Migration was a human right and everyone should fight for it.

JOSE BRILLANTES, Committee Chairperson, thanked the delegation for the dialogue which had provided, to a certain degree, insight in the situation of migrant workers in the country and Nicaraguan migrant workers abroad. The Committee’s concluding observations would reflect comments and sentiments expressed by the Experts in relation to this novel situation that the Committee faced in the examination of the report of Nicaragua.

HERNAN ESTRADA ROMAN, Ambassador and Permanent Representative of Nicaragua to the United Nations Office at Geneva, thanked the Experts for their questions and recognition of the efforts. Nicaragua was participating in the dialogue because of its international obligations, but also as an expression of a genuine political will, and it was hoped that the information provided in the report and the response to the list of issues would be duly considered during the drafting of the concluding observations. Nicaragua reiterated the commitment to submitting additional information in writing when Nicaragua saw fit, because Nicaragua would not submit itself to the practice of the Secretariat of this Committee or any other fora.

PABLO CERIANI CERNADAS, Committee Expert and Co-Rapporteur for Nicaragua, reminded all that this should be a constructive and respectful dialogue, aimed at improving the situation of many people in vulnerable situations, and the Committee should not get bogged down in formalities. This would only distract from the obligation to improve the welfare of migrant workers and their families. It was not an obligation of a State party to submit the additional information in writing, and it was clear that the Committee would draft its concluding observations on the basis of information in its possession and could not wait for the additional responses indefinitely.

JASMINKA DŽUMHUR, Committee Vice-Chairperson, stressed that the Committee did not impose any requirement on Nicaragua that was not already used by any other human rights treaty body. The Committee entered this dialogue with a very open spirit and having in mind that the composition of the delegation did not guarantee adequate responses to the questions raised by Experts. Nicaragua should accept its own responsibility, and provide information in writing as this was how partnerships worked.

MARCO NUÑEZ-MELGAR MAGUIÑA, Committee Expert and Co-Rapporteur for Nicaragua, said that dialogue was a basis for international understanding and that it should not be forgotten that countries entered into agreements and commitments on a voluntary basis; any international Convention was above any country which had made a commitment to abide by it. This was what the commitment of a State meant.

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