The Cartagena Declaration and the Venezuelan Refugee Crisis

[Alonso Gurmendi Dunkelberg is Professor of International Law at Universidad del Pacífico, in Peru.]

After the social, political, economic, and humanitarian collapse of Venezuela at the hands of Nicolás Maduro’s dictatorial government, Latin America (and South America in particular) is facing an unprecedented migratory crisis it does not seem to be ready for. As of 2017, the International Organization for Migration estimated that a total 1.6 million Venezuelans had left their country, but information reported by immigration authorities in just four countries (Brazil, Colombia, Ecuador, and Peru) already adds up to 1.15 million, which means numbers are probably much higher than most estimates, potentially reaching a scale resembling the Syrian refugee crisis.

The hardships faced by Venezuelans originally sparked a wave of support throughout the region. However, after an increase in tabloid reports excessively focusing on Venezuelan crime, and fears of job loss by the host countries’ displaced unskilled workers, tensions and xenophobia began to rise as well. In the Northern Brazilian state of Roraima, a group of upset Brazilians set fire to a Venezuelan camp, forcing them to flee. In Peru, a candidate to the Lima City Hall in the upcoming October elections surged in the polls after uploading a xenophobic tirade to his social media platform.

Since this change in social mood, a few governments slowly started to implement measures aimed at reducing the flow of people coming into their countries. On August 16^th, Ecuador officially announced it would require Venezuelans seeking entry to present a passport – a document that is currently almost impossible to obtain – with Peru rapidly following suit the very next day. While the Ecuadorean measure has been put temporarily on hold by the courts, Peruvian immigration authorities reported Venezuelan entries had been halved within 24 hours of implementation.

These policies fly in the face of the region’s prior international commitments, particularly in the field of refugee law. While some have argued that the specific case of most Venezuelan nationals fleeing their country would not grant them protected status as refugees under the 1951 Refugee Convention and its Protocol, this is not the case in Latin America. The 1984 Cartagena Declaration, devised at the outset of the Central American civil wars of the 1980s, specifically expands the definition of refugee to include “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order”.

The current crisis in Venezuela certainly meets this “Cartagena definition”, which should allow a considerable proportion of fleeing Venezuelans greater opportunity for protection. On April 2017, the OAS Permanent Council adopted Resolution No. CP/RES. 1078 (2108/17), declaring the existence of an alteration of constitutional order in Venezuela, under the terms of the Inter-American Democratic Charter. A few months later, on September 2017, the OAS Secretary General presented its Fourth Report on Venezuela, stating that the Maduro government’s break with democracy was “established on a systematic strategy of human rights violations”. Specifically, the OAS Secretariat stressed that “[t]he government has denied the Venezuelan people the right to life, physical integrity, and freedom of assembly and association”, responding to protests with “repression and terror”. To the Secretariat, Venezuela experiences “the absence of rights” and “the annihilation of human dignity”. Because of this, on May 2018, the Secretariat recommended State Parties to the Rome Statute to refer the situation of Venezuela to the Office of the Prosecutor of the ICC, for an investigation into crimes against humanity. Recently, Argentina, Colombia, Chile, Paraguay and Peru decided to heed the recommendation and refer the situation. In addition, with galloping hyperinflation, Venezuela is facing a severe shortage of medical supplies and food. Human Rights Watch reports that in 2016 “maternal mortality increased 65 percent, infant mortality increased 30 percent, and cases of malaria increased 76 percent”. According to Caritas, there are parts of Venezuela where “68 percent of children show varying degrees of malnutrition and 48 percent of the selected expectant mothers are at risk of malnutrition”. Hence Venezuela is facing a situation of generalized violence and massive violation of human rights that has seriously disturbed public order, meeting the legal requirements for triggering refugee protection.

The “Cartagena definition” has been incorporated into the domestic law of almost all Latin American states (sometimes with even broader protective definitions), including, specifically, the key destination and transit countries of Brazil, Colombia, Ecuador and Peru. This ambitious Latin American framework for refugee protection has been a source of pride in the region for more than three decades. In fact, back in 2015, then UN High Commissioner for Refugees, and current UN Secretary General, António Guterres, referred to it as a “humanitarian brand name” reflecting Latin America’s “rich tradition of refugee protection”. Despite this supposedly boastful record, of the more than 120 thousand Venezuelan refuge requests received by the Peruvian Ministry of Foreign Affairs since 2016, barely over 200 have been granted. According to the Ministry officer in charge of overseeing these requests, refugee status “is not a solution” because economic reasons, lack of food, and lack of medicine do not qualify as a “proper refuge motivation”. Similarly, Colombian Minister of Foreign Affairs María Ángela Holguín stated that her administration would “avoid [granting] the status of refugee” arguing in favor of ad hoc solutions. Facing its biggest test since its inception, Cartagena seems to be failing Venezuelans.

Thus, the countries facing the largest numbers of refugees have so far been unwilling to manage the crisis through the lens of refugee and asylum law, choosing instead to handle it through unilateral, temporary, ad hoc mechanisms. In addition to policy considerations, another reason for this is administrative backlog. Immigration bureaucracies claim to be unable to handle the current massive inflow of Venezuelan nationals through anything other than temporary administrative permits. In Colombia, the “PEP-RAMV”, (the acronym for “Special Permanency Permit of the Administrative Registry of Venezuelan Migrants”), allows Venezuelans the right to stay up to two years in Colombia without the need to process a residence visa. Similarly, Peru established the “PTP” or “Temporary Permanency Permit”, which allows for a year of legal stay. These special regimes are usually defended on the idea that an expedited procedure will help Venezuelans integrate faster, considering the administrative limitations in both countries. While these mechanisms served as a useful palliative in the early stages of the crisis, it is now clear that they are simply not enough to secure adequate legal protection for Venezuelans, especially at a time when xenophobic tensions are on the rise.

One key limitation of temporary permits is that it forces Venezuelans to a definitive deadline, which leaves them vulnerable to political instability. In Peru, the most recent PTP regulation shortened the window of permissible entry for Venezuelans seeking PTP protection by two months, from December 31^st to as early as October 31^st, 2018, most likely in an attempt to gain popularity with an increasingly intolerant electorate. As such, the hundreds of thousands of Venezuelans currently making their way to Peru, walking across Ecuador, are at serious risk of missing the window to obtain legal immigration status once in the country. Likewise, the Peruvian Government also shortened the period in which the PTP request could be submitted to authorities once the applicant is inside the country, from June 30^th 2019, to December 31^st 2018, affecting the close to 200 thousand Venezuelans already living in Peru that are desperately trying to gather the necessary documentation. This would not be a problem if fleeing Venezuelans would be granted refugee status, as the protections of refugee law would remain in force for as long as the situation giving rise to the need for refuge continues to exist.

Treating people who are fleeing from mass human rights violations, with little to no support networks, as if they were mere economic migrants has considerable drawbacks. If Latin America is to live up to the values it set up for itself all those years ago, then it will need to work together, in a holistic fashion, seeking multilateral solutions to a complex transnational problem. In fact, there is a unique opportunity for this in the near future: upon invitation of Ecuador, thirteen Latin American vice-ministers of foreign affairs will meet in Quito on September 17^th. It is essential that this meeting addresses reasonable multilateral solutions, including specifically the process through which fleeing Venezuelans will be recognized as refugees within the framework of the Cartagena Declaration. Anything short of this will be a failure of monumental proportions and a stain in the legacy of Cartagena for many years to come.