Part I International laws and mechanisms (1969). Today, the Declaration is generally considered to have gained the status of regional customary law, while the Convention imposes specific and legally binding obligations on Member States.139 Article 106 of the Charter of the Organization of American States, the constitutive instrument of the OAS, provided for the creation of the Inter-American Commission on Human Rights, “whose principal function shall be to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.” The Inter-American Court of Human Rights was established by the OAS in 1979, following the Convention’s entry into force. The Court has adjudicatory and advisory functions. Only the Commission and States parties to the Convention can bring petitions or complaints before the Court.140 Individual complaints are not allowed to be filed in the Court. In a landmark Advisory Opinion requested by Mexico, the Court upheld the fundamental right of undocumented migrant workers to be protected from discrimination.141 The Court reaffirmed that the principle of equality and non-discrimination has attained the status of jus cogens142 norms and that States are bound to respect the principles regardless of their non-ratification of treaties. 2.2.1. Rapporteurship on Migrant Workers and Members of their Families In 1996, the OAS established the Rapporteurship on Migrant Workers and Members of their Families. The Special Rapporteur has the mandate to promote awareness of the vulnerabilities of migrant workers and their families, to make recommendations to Member States, to prepare reports and studies on migrant workers and migration and to act promptly on petitions or communications of human rights violations occurring in Member States. The Rapporteurship has identified the rights of migrant workers protected under the Inter-American human rights system, based on the case law of the Commission and the Court.143 These rights, organized thematically, include: • • • • • • • • • • • • • • right to life, liberty, personal security, to equality and to a fair trial right to life, personal integrity, circulation, residence, and to special protection of children in the family right to life, to a fair trial, and to information about consular protection right to a fair trial and to judicial protection right to a fair trial and asylum right to a fair trial and to the protection of the family right to personal integrity, to a fair trial, to privacy, to property, to judicial protection, freedom of conscience and religion and of association right to personal liberty and to information on consular protection right to personal liberty, to a fair trial, and to information on consular protection right to personal liberty, to a fair trial, to movement and residence and to judicial protection right to liberty and protection from arbitrary arrest right to equality and to non-discrimination right to residence and movement and to due process of law right to nationality and to education. 139 “The Inter-American Human Rights System: An Effective Institution for Regional Human Rights Protection?”; Lea Shaver; Washington University Global Studies Law Review; Vol. 9 (2010); p. 643. 140 American Convention on Human Rights; 1969; article 61(1). 141 Advisory Opinion OC-18/03 requested by the United Mexican States: Juridical Condition and Rights of the Undocumented Migrants; 17 September 2003. 142 Jus cogens norms are defined as a set of “peremptory norms accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character”; Vienna Convention on the Law of Treaties, 1969; article 53. As such, jus cogens norms override any inconsistent provision in another treaty or customary law. 143 “Rapporteurship on the Rights of Migrants”; Inter-American Commission on Human Rights; see www.cidh.org/Migrantes/ migrants.caselaw.htm. Chapter 5: Regional mechanisms for the promotion and protection of the rights of migrant workers | 57