In June 2009, the government of El Salvador was assumed by the Frente Farabundo Martí para la Liberación Nacional (FMLN, for its initials in Spanish) party, led by the presidency of Mauricio Funes Cartagena. This happened after several governments of the Alianza Republicana Nacionalista (ARENA, for its initials in Spanish) party, and after the end of the civil war that affected the country between 1980 and 1992.
With the change of the political party in power the question was raised as to how El Salvador would develop its immigration policy during the current presidential mandate. What will be its strategic focus points or political orientation? Would the emphasis, for example, be to strengthen the protection of the rights of Salvadoran migrants abroad, create proactive comprehensive policies to prevent the population from continuous emigrating outside its borders, establish new forms of permanent bonds with the Salvadoran Diaspora, or implement the right to vote abroad, among others?
Before answering these questions, it is necessary to take an analytical view of the current migration policy in El Salvador and its recent past.
It is necessary to point out that El Salvador does have migration policies, regardless if they might be insufficient to confront all of the problems related to migration, or that their focuses are debatable. To assert that there is total absence of migration policies is an error.
Luis F. Aguilar’s descriptive definition of public policy indicates it is
governmental regulations and programs, considered individually or in their entirety, i.e. products of decisions of a political system authority. They may adopt the form of laws, local ordinances, court judgments, executive orders, administrative decisions, and even non-written agreements of what has to be done. Policy is usually understood as a group or sequence of decisions, more than just one singular decision regarding a particular government action. (1992)
The groups of legal frameworks that include the 1958 Migration Act; the 1886 Immigration Act modified in 1986; the ratification of the United Nations International Convention on the Protection of Rights of All Migrant Workers and Their Family Members in the year 2003; the creation in 2004 of the Deputy Minister of Foreign Affairs for Salvadorans Abroad in charge of preparing, developing, and coordinating public policy for this group, and a series of assistance programs for returned nationals, are part of the current migration policy of El Salvador.
The analysis of the United Nations International Convention on the Protection of Rights of All Migrant Workers and Their Family Members ratified in the year 2003 by El Salvador, directly impacts the national migration legislation of the country, and therefore, is one of the main reference frames for the public migration policy. Likewise, the observations made to El Salvador by the United Nations Committee for the Protection of Rights of All Migrant Workers and Their Family Members, whose mission is to monitor the implementation of the Convention, are also guidelines that are necessary to take into account for the reorientation of the country’s public migration policies.
According to Article 144 of the 1983 Constitution of the Republic of El Salvador, international treaties executed by El Salvador with other states or international organisations, constitute laws of the Republic when entering into force, and the law cannot modify or repeal what has been agreed upon in a treaty in force for El Salvador. In the case of conflict between the treaty and the law, the treaty will prevail.
Therefore, the Convention is a legal framework of reference that is above national secondary laws. The legal framework of the Convention is complemented by other ratified international instruments, such as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; the United Nations Convention Against Transnational Organised Crime; and the Protocol Against Illicit Trafficking of Migrants by Land, Sea and Air, among others.
The main objective of the Convention is to promote respect for the human rights of migrant workers and their family members, guaranteeing equal treatment to that received by national workers. At the labour level, this implies: the right to work, payment of his/her salary, payment of overtime according to the case, to social security and welfare, as well as portability of his/her savings for a pension upon completion of his/her stay in the country pursuant to applicable legislation, in this case according to the pension savings system act (ley del sistema de ahorro para pensiones). At the civil rights level, it entails the obligation of states to guarantee migrants the rights to freedom of thought, expression and religion, equality before the law, the right to due process, and access to health and educational social services.
The Convention also establishes that migrants must have the right to maintain contact with their country of origin, which implies: ensuring ability to return to their country of origin, allowing them to make occasional visits, promoting preservation of cultural bonds, guaranteeing political participation of migrants in the country of origin, and ensuring the right of migrants to transfer their earnings to their country of origin (UNESCO, 2005).
In summary, the Convention conceptualises the migrant worker as a carrier of rights that states must guarantee.
El Salvador is part of a small number of migrant origin countries that have ratified the Convention whose primary motivation is to protect their nationals abroad; regardless of the fact that the countries where almost the entirety of Salvadorans abroad are concentrated are not party to the Convention, which constitutes an obstacle to protect their rights.
Even though the main migration phenomenon is emigration, El Salvador is both a transit country, since many migrants head to Mexico and the United States, and also a country of destination, as a considerable number of migrant workers from Central America –Guatemala, Honduras and Nicaragua– and other countries are found in its territory (CMW, 2009). Regarding the latter, the country with the largest number of migrant workers is Colombia, followed by Mexico and the United States. The existence of migrant workers within its territory (whether in transit or as destination), requires El Salvador to protect migrant workers due to the fact that they ratified the Convention.
The United Nations Committee for the Protection of the Rights of All Migrant Workers and Their Family Members, in its report CMW/C/SLV/CO/1 of February 4, 2009, provided a set of observations to guide the preparation of an adequate legal framework, formulation of new public policies or reformulation of existing ones, and monitoring and evaluation based on the use of appropriate information systems.
Among the positive aspects, the Committee recognised that it is necessary to promote and protect the rights of Salvadoran migrant workers abroad through the creation of the Deputy Minister Office for Salvadorans Abroad, the arrangement of bilateral and multilateral agreements, and memorandums or letters of understanding with destination countries of Salvadorans. This provides direction for the promotion of safe, equitable, and humane conditions for the international migration of workers and their family members.
Different initiatives against trafficking in persons also stand out, including the establishment of a National Committee against Trafficking in Persons, categorisation of trafficking in persons as a crime in the penal legislation, and the ratification of international instruments, such as the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, and the Protocol Against Illicit Trafficking of Migrants by Land, Sea and Air, that complement the United Nations Convention Against Transnational Organised Crime, ratified on March 18, 2002.
In turn, among its concerns, suggestions and recommendations, the Committee established that it is necessary that El Salvador:
- Harmonise its current legislation related to migration and immigration, with the provisions of the Convention.
- Create a solid and coordinated database that encompasses all aspects of the Convention to understand the situation of migrant workers and evaluate the Convention’s application.
- Intensify efforts so that all migrant workers and their family members that are found in its territory or are subject to its jurisdiction, enjoy the rights recognised in the Convention without any discrimination whatsoever, pursuant to Article 7.
- Legislate so that migrant workers and their family members, including those found in irregular status, enjoy the same rights in practice as those of nationals when making complaints, and receive effective solutions in courts, among others, in labour tribunals.
- Monitor the right to equal treatment of migrant workers in practice, particularly of female migrant workers that work in agriculture and domestic service, and to take measures to effectively supervise their employment conditions.
- Take necessary measures, including legislative amendments, to guarantee migrant workers and their family members the right to establish associations and unions, as well as access to their leadership, pursuant to Article 40 of the ILO Convention Nº 87, Freedom of Association and Protection of the Rights to Organise.
- Review the legal framework and take other measures to facilitate the exercise of the right to vote to Salvadoran migrant workers that live abroad.
- Take the necessary measures for seasonal workers to be able to enjoy the right to equal treatment with national workers, especially with respect to compensation and work, and to monitor that competent authorities systematically supervise enforcement of international regulations in this area.
In summary, it should be highlighted that the ratification of the United Nations International Convention for the Protection of Rights of All Migrant Workers and Their Family Members in 2003, which is characterised by the comprehensive relationship between migration and human rights, was a significant event in El Salvador’s migration policy in the recent past.
Migration in the discourse of the New Government
Protection of the rights of Salvadoran migrants abroad
In his first speech before the United Nations General Assembly in September 2009, President Mauricio Funes expressed his opinion regarding the primary areas of Salvadoran foreign policy that will be undertaken by his government. The topic of migration occupied a place of central importance.
“My country has open wounds that move us in our daily life and emotional, family, social, and cultural aspects. They are citizen insecurity and migration, which have led 3 million compatriots abroad to search for work and opportunities that they have not found in our homeland.”
President Funes highlighted the government’s priority for the protection of the rights of Salvadorans abroad, “For us, the inclusion and defence policy of the rights of our migrant population and their families is a priority. We are going to carry out negotiations in and with transit and receptor countries of migrants to attempt to guarantee those rights of migrants in any part of the world, and in particular those of our Salvadoran brothers and sisters.”
This orientation already has its precedent in the FMLN bill or Assistance and Protection of Migrants Act (Ley de Asistencia y Protección de los Migrantes) (FMLN parliamentary group, July 2008). Article 2 mentions that one of the principles that will govern the law is extraterritorial protection, it states that “the State has the obligation to protect the human rights of Salvadorans abroad, regardless of their migration status.”
In that direction, in March 2010, President Funes visited the United States, the principal destination country, where approximately 2.5 million Salvadorans currently live, which represents 87% of the population abroad. On the occasion he made proposals for the promotion and approval of comprehensive immigration reform in the United States to extend the Temporary Protection Status (TPS), under which are found 217,000 Salvadorans. It was extended until March 2012.
Protection of Salvadorans abroad has also been extended to transit countries with the opening in 2010 of two new consular agencies in the Mexican cities of Acayucan (Veracruz) and Arriaga (Chiapas). The latter is also serving Guatemalan citizens after the execution of a bilateral agreement with Guatemala, which will primarily be dedicated to offer assistance to migrants in transit through Mexico that attempt to reach the United States.
Based on the discourse and actions carried out by the new government, it can be asserted that there exists continuity and deepening of the policy for the protection of the rights of Salvadorans abroad initiated previously, with the ratification in 2003 of the International Convention for the Protection of Rights of All Migrant Workers and Their Family Members, and the creation in 2004 of the Deputy Minister of Foreign Affairs for Salvadorans abroad.
The State’s responsibility to fight structural causes of migration
In the same speech before the United Nations General Assembly in September 2009, President Mauricio Funes, in addition to pointing out the importance of the protection of the rights of Salvadorans abroad, expressed his opinion regarding structural causes of migration:
“The situation of migrations of Salvadorans is permanent evidence that we have not been able to create the necessary conditions to retain our children at home, and that we will never achieve to fulfill ourselves, individually and collectively, as a society, if we do not cure this bad wound.”
At the inauguration of the II Ibero-American Forum on Migration and Development conducted in July 2010, the Minister of Foreign Affairs Hugo Martínez pointed out:
“As we have said in other forums, for us the most efficient, most adequate form to stimulate our people to remain in their places of origin and reduce migration flows, is investing precisely in those places of origin to generate opportunities of health, education, and employment. And that is the fundamental focus of our government in the topic of migration.”
He furthermore asserted the need to generate comprehensive social policies applied within a context of regional integration:
“I want to highlight that, in El Salvador, we work with the vision that the topic of migration should be approached jointly with the Central American nations, with Mexico, and with destination countries. The solution implies the assertion of a comprehensive social policy aimed at eradicating structural factors that generate poverty, the lack of education, health, and labour opportunities, reasons that lead people to make the decision to emigrate.”
This new approach to promote investment and comprehensive social protection policies as part of a new inclusive development model, attempts to carry out at least two objectives: a) reduce dependency of vulnerable populations with respect to remittances; and b) reduce Salvadoran migration flows abroad through the generation of better living conditions.
This new vision to generate better living conditions attempts to structurally modify what has been poor performance of social policies, and its consequences are described in the 2010-2014 Five-Year Development Pan:
“If it were not for the continued migration of the population abroad, particularly to the United States, the country’s economic and social situation would be more pressing. In fact, in great measure, progress in social matters reported since the early 1990s are explained by virtue of the migration phenomenon abroad (and its result, family remittances), that operates as a labour-market escape valve- reducing the imbalance between the labour supply and the economy’s capacity to generate employment, and decreases pressure on basic social services- and at the same time supplements household incomes. In that sense, the migration-family remittances binomial has become the primary non-institutional social protection network –a real family and community solidarity network, of greater scope than the formal mechanisms of social protection offered by public policies– that has allowed significant population segments to cushion the economy’s general deterioration since the mid-1990s”.
The right to vote abroad
The Supreme Electoral Tribunal (TSE, for its initials in Spanish) is the entity charged to authorise the vote of Salvadoran citizens that live abroad, but for that, it demands a legal framework that must be reviewed and approved by the Legislative Assembly, which, in addition, must have sufficient economic resources available for its implementation.
The concern for the right to vote abroad is one of the main complaints of the Salvadoran Diaspora that has demanded on multiple occasions its implementation. This impediment to the voting from abroad has also been pointed out by the United Nations Committee for the Protection of Rights of All Migrant Workers and Their Family Members, encouraging the generation of processes that lead to regulatory reform.
The current Salvadoran government has repeatedly expressed its support for the initiative:
“I have asked the political parties, intellectuals, academics, and magistrates, essentially, to prepare the bases of a National Political Agreement that propels the reforms needed to broaden and strengthen democracy, make transparent the life of political parties, and improve national electoral justice, as well as, and this is an essential point of my petition, guarantee the right to vote for our sisters and brothers abroad” (President Funes before the United Nations General Assembly, September 2009).
"It is a wish and a challenge for this president to achieve that the next election of the constitutional president of the Republic has the vote of our sisters and brothers abroad." (President Funes, speech in the city of Suchitoto, September 2009).
The May 2010 Five-Year Plan for 2010-2014 of the Government indicates within the strategic goal to promote assistance for the promotion of the defence of the human rights of the migrant population and their families, especially those most vulnerable, and includes the promotion of the full exercise of citizenship of Salvadorans abroad.
Finally, in October 2010, the FMLN submitted a special bill before the Legislative Assembly, authorising the vote abroad for the election of president and vice president of the Republic, as of the year 2014, that will be implemented gradually for Salvadorans residing in the United States that have the Unique Identification Document (DUI, for its initials in Spanish) –the authorising document for suffrage. In June 2010, this document was in the hands of 57,299 Salvadorans. Although the vote from abroad also has the support of the opposition parties (ARENA and PNC), they are opposed to a gradual implementation, arguing that putting the right into practice should reach all Salvadorans abroad and not only those residing in the United States.
The main approached that will directly or indirectly affect the policies linked to migration are: a) continuity and deepening of a policy of respect for the human rights of migrants initiated with the ratification of the United Nations International Convention for the Protection of Rights of All Migrant Workers and Their Family Members in the year 2003; b) protection of the rights of Salvadoran migrants; c) extension of citizenship to nationals abroad through the implementation of the right to vote; d) application of comprehensive social protection policies as part of a new inclusive development model with the objective to reduce permanent migration flows of Salvadorans abroad, and also dependency on remittances by vulnerable populations.
This new vision to confront the structural problems of migration will demand an important social and political covenant with a common vision for development, to generate real, stable, and long-term policies.