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International and regional cooperation, and responsibility-sharing as
necessary tools to comply with the international obligations towards
the Venezuelan refugees.
Student: Laura Rocío Parra Castiblanco lparra0601@gmail.com
12646563
Master's programme International and European Law Supervisor: Prof. dr. Marjoleine Zieck
2 Table of contents
I. Introduction ... 3
II. The determination of the refugee status of Venezuelans by the Latin American Countries under the Cartagena Declaration. ... 8
1. The dire social, economic, and political situation in Venezuela. ... 8
2. The applicability of the refugee status to Venezuelans. ... 13
III. Reception of Venezuelans by the Latin American states. ... 17
IV. International cooperation to address the Venezuelan refugee crisis. ... 21
1. Previous forms of cooperation in the Latin American Region. ... 22
2. Current regional cooperation forms to tackle the Venezuelan refugee crisis. ... 24
V. Legal approaches that could enhance and promote the existing or future forms of international and regional cooperation regarding the Venezuelan refugee crisis. ... 27
1. Prima facie determination of the refugee status on a group basis ... 27
2. Regional and collective group-based determination of the refugee status of the Venezuelan asylum seekers. ... 31
3. Principle of responsibility-sharing as the foundation for the regional as well as the international response to the Venezuelan exodus. ... 33
VI. Conclusion. ... 35
3 I. Introduction
With about 5.2 million1 people that have fled their country of origin, the Venezuelan exodus has become one of the largest mass forced migrations that has taken place in the western hemisphere,2 and one of the biggest forced migrations in the world currently, right after the Syrian emergency which has resulted in around 5.5 million refugees.3 Despite being mass influxes of almost equal proportions, these two movements have been treated very differently by the hosting states and by the international community in general.
First of all, because the international community has given much more funding to address the Syrian refugee crisis than to tackle the Venezuelan refugees and migrants' emergency4 although they have very similar proportions.5 Just taking into account the funding provided by the international community to grapple with these two crises during 2019 within the frame of regional fund-raising strategies, the Regional Refugee & Resilience Plan in response to the Syria Crisis6 raised USD 2.3 billion of the USD 5.53 billion required thereby7 whilst the Regional Refugee and Migrant Response Plan for Refugees
1 Coordination Platform for Refugees and Migrants from Venezuelan (R4V), ‘Response for Venezuelans’
(Updated 5 June 2020) <https://r4v.info/en/situations/platform> accessed 13 July 2020.
2 Ishaan Tharoor ‘Venezuela’s refugee exodus is the biggest crisis in the hemisphere’ The Washington Post
(23 august 2018) < https://www.washingtonpost.com/world/2018/08/23/venezuelas-refugee-exodus-is-biggest-crisis-hemisphere/> accessed 5 June 2020.
3 UNHCR’s Operational portal on refugees situations, ‘Syria regional refugee response’, (Updated 5 June
2020) <https://data2.unhcr.org/en/situations/syria> accessed 10 june 2020.
4 The term ‘refugees and migrants’ has been chosen for the first part of this paper (before the assessment as
to whether the Venezuelans are refugees), accordingly to the UNHCR’s preference to use this term as a mean to allow for acknowledgement that all people on the move have human rights which should be
respected, protected, and fulfilled; and that refugees and asylum-seekers have specific needs and rights which are protected by a particular legal framework. See UN High Commissioner for Refugees
‘‘Refugees’ and ‘Migrants’ – Frequently Asked Questions (FAQs)’ 9 < https://www.unhcr.org/news/latest/2016/3/56e95c676/refugees-migrants-frequently-asked-questions-faqs.html#_ftn3> accessed 15 July 2020.
5 Dany Bahar and Meagan Dooley ‘Venezuela refugee crisis to become the largest and most underfunded
in modern history’ (Brookings, 9 December 2019) < https://www.brookings.edu/blog/up- front/2019/12/09/venezuela-refugee-crisis-to-become-the-largest-and-most-underfunded-in-modern-history/> accessed 10 July 2020.
6 United Nations Development Programme and United Nations High Commissioner for Refugees ‘3RP
Regional Refugee & Resilience Plan, in Response to the Syria Crisis: Regional Strategic Overview 2019/2020 (3RP)’ (12 March 2019) < https://reliefweb.int/report/syrian-arab-republic/undpunhcr-3rp-regional-refugee-resilience-plan-response-syria-crisis> accessed 10 July 2020.
7 UN Office for the Coordination of Humanitarian Affairs (UNOCHA), ‘Financial tracking service - Syria
Refugee Response and Resilience Plan (3RP) 2019 (Regional response plan)’ <https://fts.unocha.org/appeals/724/summary> accessed 10 July 2020.
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and Migrants from Venezuela8 only raised USD 394.1 million of the USD 737.6 million budgeted.9
Furthermore, because to some extent, the Syrian refugee crisis has been recognized as an emergency of global scale, while the Venezuelan exodus is still deemed as a regional crisis.10 This might be due to the fact that of the 5.2 million Venezuelans that have left their motherland, approximately 4.3 million11 are within Latin American countries of which Colombia is heading the list with almost 1.8 million, followed by Peru with 829,677, Chile with 455,494, Ecuador with 363,023, Brazil with 264,617, Argentina with 179,069, Panama with 121,123, the Dominican Republic with 104,000, Mexico with 73,000, Costa Rica with 29,838, Trinidad and Tobago with 24,000, Guyana with 22,000, Aruba with 17,000, Curaçao with 16.500, Uruguay with 13,664, Bolivia with 5,225 and Paraguay with 3,818.12 From these data, it is also possible to conclude that there is a highly uneven distribution of Venezuelans throughout the region which creates a disproportionate burden upon those countries receiving the most of the influx, as in the case of Colombia and Peru.13
Lastly and most importantly, in my opinion, given its influence on the two reasons listed above, because the vast majority of Syrians that have left their country have been recognized and registered as refugees14, whereas, of the 5.2 million Venezuelans that are currently in a third country, only 896,069 have filed asylum claims, being determined the refugee status of solely 93,291 in Brazil, Spain, United States of America, Mexico,
8 Coordination Platform for Refugees and Migrants from Venezuelan (R4V), ‘Regional Refugee And
Migrant Response Plan 2019 for Refugees and Migrants from Venezuela (RMRP 2019) (January - December 2019) < https://www.unhcr.org/partners/donors/5c330bc74/2019-regional-refugee-migrant-response-plan-refugees-migrants-venezuela.html> accessed 4 June 2020.
9 UN Office for the Coordination of Humanitarian Affairs (UNOCHA), ‘Financial tracking service -
Regional Refugee and Migrant Response Plan (for Refugees and Migrants from Venezuela) (Other)’ <https://fts.unocha.org/appeals/726/summary> accessed 10 July 2020.
10 Bahar and Dooley (n 6) / See also Margesson, Rhoda & Seelke, Clare Ribando ‘The Venezuela Regional
Migration Crisis’ (University of North Texas Libraries, UNT Digital Library, 27 November 2018
<https://digital.library.unt.edu/ark:/67531/metadc1442996/m1/2/:> accessed 14 July 2020
11 R4V (n 1). I did the calculation myself taking into account the figures exposed in the interactive map. 12 Ibid. See the interactive map in the webpage with the figures by country.
13 Rocio Cara Labrador ‘The Venezuelan Exodus’ (Council on foreign affairs, 8 July 2019)
<https://www.cfr.org/in-brief/venezuelan-exodus> accessed 16 July 2020.
14 3RP (n 6). Acording to the Operational Portal, the number of Persons of concerns is equal to the number
of Syrians that have been recognized and registered as refugees in Turkey, Lebanon, Jordan, Iraq, Egypt and other countries in North Africa.
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Canada, Peru, Trinidad and Tobago, Costa Rica, Paraguay, Ecuador, Argentina, Colombia, and Uruguay.15
Despite most of the Latin American states have had a welcoming response towards the Venezuelans arriving in their territory by having minimum entry requirements16 and by creating various residence and stay permits or visas that have been granted to 2,663,92517 Venezuelans to provide them with legal status and guarantee their access to welfare, education and labor market;18 it is particularly surprising that the vast majority of Latin American countries are not applying the protection regime provided for in the framework of international refugee law to safeguard those Venezuelans that so desperately need it.
In light of the above, how could the international community, especially the Latin American Countries, tackle the Venezuelan refugees and migrants crisis within the legal framework of international and regional refugee law?
In order to get a proper answer to this question, the first thing to determine is whether the Venezuelans that have fled their country are refugees under the broader definition provided for in the Cartagena Declaration.19 To do so, this thesis will begin by presenting a brief oversight of the Venezuelan current economic, political and social situation which will enable the reader to understand much better the complex and multidimensional situation that is compelling Venezuelans to flee. Afterwards, this situation will be assessed under the extended definition of the Cartagena Declaration to decide whether all the Venezuelans that have left their country are refugees and, therefore, are entitled to international protection and the rights thereof.
15 R4V (n 1).
16 Andrew Selee and Jessica Bolter, ‘An Uneven Welcome: Latin American and Caribbean Responses to
Venezuelan and Nicaraguan Migration’ (Migration Policy Institute, February 2020) 8 <
https://www.migrationpolicy.org/research/latam-caribbean-responses-venezuelan-nicaraguan-migration> accessed 27 May 2020.
17 R4V (n 1). The countries that have granted legal status through residence or stay permits are Colombia,
Peru, Chile, Argentina, Ecuador, Brazil, Panama, Mexico, Uruguay, Guyana, Dominican Republic, Costa Rica, Curaçao and Paraguay.
18 United Nations High Commissioner for Refugees (UNHCR), ‘Protection monitoring Venezuela situation,
update # 1’ (January-June 2019) <https://www.refworld.org.es/pdfid/5d321e9d4.pdf> accessed 10 July 2020.
19 Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama,
‘Cartagena Declaration on Refugees’ (November 22, 1984) Conclusion 3 < https://www.unhcr.org/about-
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Next, this paper will continue by identifying the legal handlings that have been applied by the Latin American countries individually to provide legal status and protection to the Venezuelan refugees and migrants, to then determine whether those legal handlings are in accordance with the obligations undertaken by the Latin American states under international and regional refugee law. This part will conclude by trying to identify the reasons that have prevented the Latin American Countries from recognizing the refugee status of Venezuelans, such as political pressure by their nationals, lack of resources and infrastructure, uneven distribution of Venezuelans throughout the region, the overwhelmed and/or underdeveloped asylum systems, the fear of spurring the influx of Venezuelans and the lack of awareness by the Venezuelans themselves of their entitlements as refugees under regional refugee law.
Based on the above and in order to promote and facilitate the compliance by the Latin American States of their international obligations towards the Venezuelan refugees, international cooperation will be presented as a necessary tool to eliminate those obstacles that have been keeping Latin American countries from recognizing the refugee status of Venezuelans in their territory.
To do so, the paper will expose some examples of previous cooperation instruments or forums in the region that have helped to tackle former refugee crises and that could be used as models to follow or to draw upon, such as the Conferencia Internacional sobre
Refugiados Centroamericanos (CIREFCA)20 (International Conference on Central American Refugees) or the Regional Solidarity resettlement programme created through the Mexico Declaration.21 Then, the paper will present the several regional cooperation instruments that have been adopted by the region so far to come to grips with the Venezuelan exodus, and why those efforts, despite its well-intended nature, have not been enough to provide the protection required by the Venezuelans.
20 CIREFCA ‘Declaration and Concerted Plan of Action in Favour of Central American Refugees,
Returnees and Displaced Persons’ (30 May 1989, CIREFCA 89/13/Rev.1) <https://www.refworld.org/docid/3fbb5d094.html> accessed 16 July 2020.
21 Regional Refugee Instruments & Related, Mexico Declaration and Plan of Action to Strengthen
International Protection of Refugees in Latin America (16 November 2004) 3. Regional “Solidarity Resettlement” Programme <https://www.refworld.org/docid/424bf6914.html> accessed 13 January 2020
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To conclude and aiming to provide a proper answer to the question set out above, this paper will suggest three legal approaches that could be implemented within the processes of international cooperation that the region has already started, with the purpose of counter the reasons why the Latin American countries are not complying with their obligations towards the Venezuelan refugees and get across the precariousness of the Venezuelan refugees' situation before the international community.
In the first instance, this paper will raise the possibility of determining the refugee status of Venezuelans on a group basis (also known as prima facie recognition) in accordance with the guidelines of the United Nations High Commissioner for Refugees (UNHCR),22 as a strategy to alleviate the overwhelmed Latin American asylum systems and prepare them to process the asylum claims that would be still yet to come. This will also expedite the recognition of the refugee status of all Venezuelans and, in turn, will create awareness among the international community as to the magnitude of the crisis and the need for resources to provide the due international protection.
In the second instance, and to guarantee the immediate and adequate applicability of the regional recognition described above within the national asylum systems of each of the Latin American countries, this obligation must be clear and precise enough regarding procedures, deadlines and the proof of the recognition provided to the Venezuelan refugees23 to be directly applicable and to have direct effect within the national legal systems,24 thus avoiding the necessity of further legal proceedings that could delay the uniform provision of international protection to Venezuelans throughout the region.
Finally, this paper will highlight the relevance of resorting to the emerging principle of responsibility-sharing regarding large movements of refugees25 as a more adequate
22 United Nations High Commissioner for Refugees (UNHCR), Guidelines on International Protection No. 11: Prima Facie Recognition of Refugee Status (24 June 2015, HCR/GIP/15/11) <https://www.refworld.org/docid/555c335a4.html%3E> Accessed 5 June 2020
23 Marjoleine Zieck ‘Introductory note to Guidelines on International Protection No. 11: Prima Facie
Recognition of Refugee Status (UNHCR)’ (2015) 54(6) International Legal Materials 1115 <https://doi.org/10.5305/intelegamate.54.6.1115> accessed 19 July 2020.
24Eileen Denza ‘The relationship between international and national law’ in Malcolm D. Evans, International Law (Fifth edition, Oxford University Press, 2018) Ch 13, 398-400.
25 UN General Assembly, New York Declaration for Refugees and Migrants : resolution / adopted by the
General Assembly (3 October 2016, A/RES/71/1) Introduction 11 <https://www.refworld.org/docid/57ceb74a4.html> accessed 13 January 2020.
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ground for any form of international or regional cooperation aiming to handle the Venezuelan refugee crisis. This approach could enable the achievement of two specific goals: First, the resettlement or relocation of Venezuelan refugees and asylum seekers respectively across the region to guarantee a more equitable redistribution of the burden of hosting and supporting Venezuelan refugees based on the economical and logistical capacities of each country; and second, securing the funding required from the international community, especially from international organizations, UN agencies, and developed countries, appealing not to humanitarian assistance, but to the compliance of their own obligations towards Venezuelans as part of a large movement of refugees. In the same vein, those resources would be allocated to the determination and protection of Venezuelan refugees which will enable the compliance of Latin American countries with their international obligations as host states of the aforementioned, not only in theory but also in practice.
II. The determination of the refugee status of Venezuelans by the Latin American Countries under the Cartagena Declaration.
To start this analysis, attention will be brought to the complexity and multidimensionality of the Venezuelan context that is forcing so many Venezuelans to flee. Once this context is clear, it will be assessed according to the regional refugee law, to determine whether this legal framework applies to the case at hand.
1. The dire social, economic, and political situation in Venezuela.
Based on an analysis prepared by the World Bank in October 2018, Venezuela’s economic crisis can be considered one of the most severe in recent occidental economic history.26 The almost complete dependence of Venezuela on oil as the driving force of its economy, the international collapse of the oil sector that started in 2014 and the mismanagement given to that situation by the Presidents Hugo Chávez and Nicolás
26 World Bank Group ‘Migración desde Venezuela a Colombia : Impactos y Estrategia de Respuesta en el
Corto y Mediano Plazo’ (World Bank, 2018) 45
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Maduro have caused that the current Venezuelan economy suffers from stagflation, devaluation, real estate crisis, exacerbated external indebtedness, reduction of more than 70% in the gross domestic product (GDP), hyperinflation and a decrease of real wages, which has made of Venezuela the poorest country in Latin America to date, after being the wealthiest of the region.27
The level of poverty in Venezuela is now comparable to the level of poverty of the poorest countries in the world, such as Nigeria or Chad28. 96% of Venezuelan households live in conditions of poverty and 79,3% of them in conditions of extreme poverty meaning that they do not have the income required to cover the products of the family basket.29
All this, combined with the serious shortage of food and medicine that the country has been experiencing due to the economic crisis, have had important impacts on the health and the welfare of the general population,30 causing food insecurity, whether mild, moderate or severe, among 97% of the Venezuelan households,31 and the deterioration of the provision of health services which prompted a noteworthy rise in measles and diphtheria cases (diseases previously eradicated), as well as tuberculosis and malaria cases32.
The economic hardship described above has led to an increasing inter-citizen violence competition to acquire basic consumer goods along with the emergence of new forms of crime associated with the capture of economic income derived from the control and marketing of these goods and the rise of the rate of common crimes such as theft, extortion, kidnapping and domestic violence33. This has resulted in Venezuela being the
27 Ibid. See also Infobae ‘Venezuela se convirtió en el país más pobre de América Latina’ Infobae (7 July
2020) < https://www.infobae.com/america/venezuela/2020/07/07/venezuela-se-convirtio-en-el-pais-mas-pobre-de-america-latina/> accessed 17 July 2020; Max Fisher and Amanda Taub ‘How Venezuela
Stumbled to the Brink of Collapse’ The New York Times (14 May 2017) <https://www.nytimes.com/2017/05/14/world/americas/venezuela-collapse-analysis-interpreter.html> accessed 14 July 2020.
28 Proyecto Encuesta Nacional de Condiciones de Vida (ENCOVI) ‘Encuesta 2019-2020’ (2020)
<https://www.proyectoencovi.com/informe-interactivo-2019> accessed 18 July 2020
29 Ibid.
30 World Bank (n 31). 31 Encovi 2020 (n 33). 32 World Bank (n 31). 33 Ibid.
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most violent country in America and one of the most violent worldwide, with a homicide rate of 60,3 people per 100.000 inhabitants.34
In addition, a large part of the violence plaguing Venezuela comes directly from the Venezuelan government’s armed forces.35 This is the case of the Fuerza de Acción
Especial de la Policía Nacional Bolivariana (FAES) (Special Action Force of the
Bolivarian National Police) created by Nicolás Maduro in 2017 to tackle the organized crime that has been taking over Venezuela.36
Despite having a legitimate aim and purpose, the FAES has been deemed as a group of repression and as an institution used by the current government to maintain social and political control through the use of police violence and brutality37. This Special Action Force has allegedly been responsible for numerous extrajudicial executions38 from which, just in 2019, 5,286 deaths were confirmed as a result of FAES’ oppression and another 4,632 casualties are still under investigation39. Taking these figures into account, the Venezuelan government could be held liable for 9,918 deaths of the 16,50640 victims of murder during 2019.
Furthermore, the United Nations High Commissioner for Human Rights established that the Venezuelan authorities are making use of arbitrary detentions, torture, and ill-treatment against members of the opposition or persons that have been critical of the current administration41 to intimidate and discourage them from expressing their political opinion.
34 Observatorio Venezolano de Violencia ‘Informe OVV de Violencia 2019’
<https://observatoriodeviolencia.org.ve/news/informe-anual-de-violencia-2019/> accesed 10 June 2020.
35 Ibid.
36 Fabiana Culshaw ‘FAES: El cuerpo creado por Maduro para neutralizar a los ‘indeseables’’ El Observador (24 November 2019) < https://www.elobservador.com.uy/nota/faes-el-cuerpo-creado-por-maduro-para-neutralizar-a-los-indeseables--201911245023> accessed 17 July 2020.
37 United Nations Human Rights Council (UNHRC), UN Human Rights Council: Report of the United
Nations High Commissioner for Human Rights on the situation of Human rights in the Bolivarian Republic of Venezuela (5 July 2019, A/HRC/41/18) Par. 32, 47-52. <https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session41/Documents/A_HRC_41_18.doc
> accessed 26 May 2020.
38 Ibid.
39 Observatorio Venezolano de Violencia (n 41). 40 Ibid.
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Hand in hand with the police brutality, there must be also mentioned how the Venezuelan government is using people’s need for food and medicine to manipulate them with the aim to remain in power and to prevent people from expressing publicly their discontent with Nicolás Maduro’s administration. 42 As stated by the NGO Human Rights Watch, during the election that took place in 2018, the government asked the population to identify themselves in the polling stations using the “carnet of the fatherland”,43 promising that a prize would be given to those complying with their obligations to the fatherland44. This type of measure, along with the presence of military forces on the polling places, are clear intimidation tactics that are preventing people from expressing their true political opinions, due to the fear of starvation, lack of health care, or being subjected to torture or any other mistreatment.
In addition, Venezuela is going through a dreadful political uncertainty due to the recognition by the National Assembly and a vast majority of countries around the world of Juan Guaidó as the legitimate President of the Bolivarian Republic of Venezuela45. This recognition, albeit a proof of rejection of the Nicolás Maduro’s leadership by the international community and by the ultimate representative organ of the Venezuelan people, has not had the desired impact given that Nicolás Maduro keeps carrying the power over the military forces46 and the most important administrative institutions within the country, making the power of Juan Guaidó as President virtually non-existent.47 At the same time, this recognition has created even more friction between the ruling government and the Venezuelan opposition which has exacerbated the resort to violence and police brutality to silence the voices of dissidents.48
Furthermore, the existence of a permanent state of emergency in Venezuela since Nicolás Maduro came to power is noteworthy. As of 2015 and to date, the Venezuelan government has issued 27 decrees either declaring or extending the state of economic
42 Tamara Taraciuk Broner, ‘Hostages of hunger in Venezuela’ (Human Rights Watch, 18 May 2018)
<https://www.hrw.org/news/2018/05/18/hostages-hunger-venezuela> accessed 5 June 2020.
43The “Carnet of the fatherland” is an ID used by the governmental authorities to distribute the little food
and medication available and other social services among the population in need.
44Taraciuk Broner (n 50).
45 BBC News ‘Venezuela crisis: How the political situation escalated’ BBC News (13 January 2020)
<https://www.bbc.com/news/world-latin-america-36319877> accessed 4 june 2020.
46 Which are the main resource to oppress the people and prolong the dictatorship. 47 BBC News (n 54).
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emergency that has existed for 4 consecutive years with the purpose of maintaining the special powers bestowed upon the President in virtue of the emergency49. In 2020, in addition to the permanent state of economical emergency, it was declared a state of emergency due to the Coronavirus crisis that has been exacerbated in Venezuela given the already poor and precarious health care system50.
Lastly, it is important to highlight the effort that Nicolás Maduro’s government has been making to deny the appalling human rights crisis that is taking place in Venezuela nowadays. Examples of such effort are i) The dismissal of public officials who have been performing their legal duties exposing the consequences of the mismanagement of Maduro51, ii) the denial of the existence of the Venezuelan refugees' crisis occurring currently and branding it as a "right-wing campaign"52 or conspiracy against the government, iii) the allegations of xenophobia against the Venezuelans’ host states to try to downplay the role of the Venezuelan government in this contingency53, among others.
Such actions are evidence of the unwillingness by the Venezuelan State to provide protection to its nationals and to take measures to tackle effectively the calamitous situation of human rights that is taking place within its territory.
According to the aforementioned, it is possible to conclude that Venezuelans are not merely economic migrants leaving their country mainly to look for better economic opportunities abroad. Conversely, they are mostly leaving their country to flee from a complex and multidimensional crisis that is seriously affecting their survival and threatening their lives, safety, and freedom.
49 ‘El estado de excepción en venezuela’ (Acceso a la justicia, Observatorio venezolano de la justicia, 21
May 2020) <https://www.accesoalajusticia.org/el-estado-de-excepcion-en-venezuela/> accessed 27 June 2020.
50 Ibid.
51 Taraciuk Broner (n 50). In this article, the journalist mentions how the Venezuelan’s health Minister was
fired after informing that the maternal and infantil mortality had increased considerably in 2016.
52 DW News, ‘Venezuelan government: 'Thousands' of migrants want to come back’ (DW News, 30 August
2018) < https://www.dw.com/en/venezuelan-government-thousands-of-migrants-want-to-come-back/a-45285540> accessed 11 June 2020.
13 2. The applicability of the refugee status to Venezuelans.
Once the Venezuelan circumstances that have forced millions of nationals to leave their country are clear, our analysis must continue by determining whether said circumstances could be ground enough to recognize the refugee status of the Venezuelans under the definition of refugee provided for in the Cartagena Declaration54, which broadened the definition provided for in the 1951 Convention55, modified by the 1967 Protocol thereof56.
As the first step in this exercise and to clarify any doubt regarding the binding force of the Cartagena Declaration and the extended definition of refugee therein, it must be said that 15 countries of the region have included the extended definition of “refugee” within their national asylum legal systems57 which along with the national58 and international jurisprudence59, give an account of the opinio juris and the generalized practice that the Cartagena Declaration has had all over the region since the moment it was signed, which prompted the UNHCR,60 the OAS,61 among some scholars62 to affirm that the Cartagena Declaration has gained the status of customary regional law and, hence, it is binding upon
54 Cartagena Declaration on Refugees (n 20).
55 UN General Assembly ‘Convention Relating to the Status of Refugees’ (28 July 1951, United Nations,
Treaty Series, vol. 189, p. 137) Art. 1 <https://www.refworld.org/docid/3be01b964.html> accessed 20 January 2020.
56 UN General Assembly ‘Protocol Relating to the Status of Refugees’ (31 January 1967, United Nations,
Treaty Series, vol. 606, p. 267) <https://www.refworld.org/docid/3ae6b3ae4.html> accessed 20 January 2020.
57 United Nations High Commissioner for Refugees (UNHCR), ‘Guidance Note on the Outflow of
Venezuelans – Update I’ (May 2019) Paragraph 5 and footnote 4 <https://reliefweb.int/sites/reliefweb.int/files/resources/5a9ff3cc4.pdf> accessed 28 May 2020.
58 Juan Ignacio Mondelli, ‘La fuerza vinculante de la definición regional de la Declaración de Cartagena
sobre refugiados (1984) (Versión no editaba, publicación provisional, Diciembre 2018) 75-76 <https://www.refworld.org.es/pdfid/5d03d0b54.pdf> accessed 11 June 2020.
59 Inter-American Court of Human Rights (IACrtHR), ‘Advisory opinion OC-21/14: Rights and guarantees
of children in the context of migration and/or in need of international protection’ (August 19, 2014) <
https://www.corteidh.or.cr/docs/opiniones/seriea_21_eng.pdf> accessed 18 June 2020; Inter-American Court of Human Rights (IACrtHR), ‘Advisory Opinion OC-25/18: The institution of asylum and its recognition as a human right in the inter-american system of protection (interpretation and scope of articles 5, 22.7 and 22.8 in relation to article 1(1) of the American Convention on Human Rights’ (30 may 2018) Par. 129-132 <https://www.refworld.org/cases,IACRTHR,5c87ec454.html> accessed 18 June 2020.
60 UN High Commissioner for Refugees (UNHCR), ‘Summary Conclusions on the interpretation of the
extended refugee definition in the 1984 Cartagena Declaration; roundtable 15 and 16 October 2013’ (Montevideo, Uruguay, 7 July 2014) <https://www.refworld.org/docid/53c52e7d4.html> accessed 10 June 2020;
61 Organization of American States (OAS), ‘Legal situation of refugees repatriated, and displaced persons
in the American Hemisphere’ (General Assembly Resolution AG/RES. 774(XV-0/85), 9 December 1985), 33, third operative paragraph < http://www.oas.org/es/sla/docs/ag03799S01.pdf> accessed June 18 2020.
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the whole Latin American region, even upon those countries that have not yet incorporated said definition into their national legal systems63.
Having clarified the bindingness of the extended definition of refugee, this part must continue by determining whether the Venezuelan situation falls within the extended scope of the regional refugee definition. The Cartagena Declaration expanded the scope of refugee protection to cover people that have fled their country because their lives, safety, or freedom have been threatened based on five new ground or situational events: generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.
Despite it has been stated by the Organization of American States (OAS) that those 5 grounds are present in the Venezuelan situation64, at first glance, it is possible to assume that the Venezuelan internal crisis could easily fit within the ground of generalized violence, the ground of massive violation of human rights and/or the ground of seriously disturbed public order.
With regards to the first possible ground, the UNHCR has established in its guidelines that generalized violence is a term that encompasses ‘situations characterized by violence that is indiscriminate and sufficiently widespread to the point of affecting large groups of persons or entire populations compelling their flight’65. It also established that the term should not be just limited to situations within the International Humanitarian Law’s legal framework, meaning to armed conflicts, but also to situations where violence is creating massive as well as serious violations of human rights, whose generalized nature must not be assessed just in terms of intensity but also in term of geographic spread and density66. The generalized violence can also arise either from a state or from a non-State actor and must be sustained over time and/or space67.
63 Ibid. 108
64 Organization of American States (OAS), ‘Message from OAS Secretary General on World Refugee Day’
(Press realease Reference: E-041/19, June 20, 2019) <https://www.oas.org/en/media_center/press_release.asp?sCodigo=E-041/19> accessed 26 June 2020.
65 UNHCR (n 70) Para 15. 66 Ibid, Para 16
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In applying these criteria, it is possible to conclude that the Venezuelan situation fits within the scope of generalized violence since i) it has affected indiscriminately and widely most of the Venezuelan population, ii) It has created massive violations of human rights due to the use of arbitrary detention, torture, mistreatment, extrajudicial executions and the high rate of murders placing Venezuela as the most violent country in Latin America68, iii) the generalized violence comes from the State through the FAES as well as from the organized crime that has been taking over Venezuela, iv) it has been intense, geographically spread and dense all over the country69, and, v) it has been sustained over time (since 2015) and space. Hence, the protection under the Cartagena Declaration would be appropriate.
Regarding the second possible ground and according to the UNHCR, massive human rights violations should be identified taking into account that this term refers to the scale or magnitude of the violations that must represent a threat to life, safety, or freedom70. The generation of the human rights that are being violated is irrelevant, therefore, the massive violation could be related to civil, political, social, economic, or cultural human rights71.
From applying these criteria to the Venezuelan context and based on the facts detailed in the first part of this paper, it is possible to identify a massive violation of the right to life72, right to physical and mental health73, right to an adequate standard of living74, right to liberty and security75 and political rights76 which is affecting the whole Venezuelan population indiscriminately.
68 Observatorio Venezolano de Violencia (n 41). 69 Ibid.
70 UNHCR (n 70) Par 21. 71 Ibid.
72 UN General Assembly, ‘International Covenant on Civil and Political Rights (ICCPR)’ (16 December
1966, United Nations, Treaty Series, vol. 999, p. 171) Article 6 <https://www.refworld.org/docid/3ae6b3aa0.html> accessed 22 June 2020.
73 UN General Assembly, ‘International Covenant on Economic, Social and Cultural Rights’ (16 December
1966, United Nations, Treaty Series, vol. 993, p. 3) Article 12 <https://www.refworld.org/docid/3ae6b36c0.html> accessed 22 June 2020
74 Ibid. Art. 11.
75 UN General Assembly, ICCPR (n 82) Article 9. 76 Ibid, Art. 25.
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Lastly, and with regards to the third possible ground, it must be said that the seriously disturbed public order is the most complicated to define from all the grounds introduced by the Cartagena Declaration, causing that it has not been widely used by the Latin American countries to recognize the refugee status. To provide some guidance on this regard the UNHCR in its summary conclusions has stated that this ground is ‘referring to the peace and security/stability of the society and the normal functioning of the institutions of the state’77.
The summary also says that, albeit the declaration of a state of emergency is not a requirement for the existence of the ground at hand, the declaration should be deemed as a good proof of its existence78, which is completely applicable to the Venezuelan situation given that the country has been in a permanent state of emergency since 201579. Hence, Venezuela has been living under circumstances proving the existence of a seriously disturbed public order and, thereby, the recognition of the refugee status under this ground would be pertinent.
The foregoing has also been established by the UNHCR, considering that ‘the broad circumstances leading to the outflow of Venezuelan nationals would fall within the spirit of the Cartagena Declaration, with a resulting rebuttable presumption of international protection needs’80. In the same spirit, the Organization of American States has ‘asked member states to approve as soon as possible a resolution that resolves the refugee status and to commit all the countries of the hemisphere to afford that treatment to the Venezuelans’81.
To conclude, understanding that the Venezuelan current internal crisis goes far beyond an economical crisis and that it is causing massive violations of human rights, generalized violence and a serious disturbance of the public order, makes it enough factual ground for the determination of the refugee status of Venezuelans under the Cartagena Declaration
77 UNHCR (n 70) Par 24. 78 UNHCR (n 70) Par 25.
79 El estado de excepción en Venezuela (n 58)
80 UN High Commissioner for Refugees (UNHCR), ‘Guidance Note on the Outflow of Venezuelans’
(March 2018) <https://www.refworld.org/docid/5a9ff3cc4.html> accessed 22 June 2020.
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and, therefore, the recognition of their entitlement to international protection and all the rights that stem from it.
III. Reception of Venezuelans by the Latin American states.
Now, having established the refugee status to which the Venezuelans are entitled, this paper will continue by describing the legal handlings that the Latin American Countries have given to Venezuelans to determine whether the former have complied with their obligations towards the latter according to international and regional refugee law.
There must be said that, until recently, most of the Latin American countries have had a welcoming attitude towards the Venezuelan population arriving in their territories, by establishing low requirements to allow its entry. Countries like Argentina, Brazil, Colombia, Costa Rica, Guyana, Mexico, and Uruguay still only require a Venezuelan national identity document or an expired travel document as the sole condition to cross the border82. Nevertheless, this welcoming attitude has been shifting during the past couple of years as a way to “disincentive” the Venezuelan exodus83. That’s why countries like Chile, Ecuador, Panama, Peru, and Trinidad and Tobago have imposed visa requirements that have to be met to be able to cross the borders84.
Although it may seem a trifle and it is within the sovereign power of every state to regulate its entry requirements, two things must be highlighted in this point:
First, the vast majority of the Latin American countries, except for Cuba and Guyana, are States parties either to both the 1951 Convention and the 1967 Protocol or, at least, solely to the latter which is the case of Venezuela and United States of America85. As Contracting States, they are obliged, under the principle of non-refoulement developed in Art. 33 of the 1951 Convention, which has been also recognized as customary
82 Selee and Bolter (n 16) 8-9. 83 Ibid, 14.
84 Ibid, 13.
85 United Nations High Commissioner for Refugees ( UNHCR) ‘States Parties to the 1951 Convention
relating to the Status of Refugees and the 1967 Protocol’ (April 2015) <
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international law,86 to not expel or return refugees. Therefore, setting entry requirements, however small, which no compliance could be used as an excuse to expel a Venezuelan and return him/her to the country from which he/she is fleeing, is a breach of the international obligations undertaken by Latin American Countries according to International Refugee Law.
Second of all, the fulfillment of those requirements by a Venezuelan national can be a hassle taking into account that the costs of surrendering a passport or a visa can get to be extremely high, especially for people that are fleeing from generalized poverty. Also, due to the precarious and corrupted provision of services by the Venezuelan state, the issuing of a passport can get to be pretty expensive as well as long-delayed87. Contrary to what the States had in mind while imposing new entry requirements, the Venezuelan mass influx will not decrease but mainly moved to other Latin American Countries with lower requirements or towards illegal and irregular entry pathways.88
Now, regarding the provision of legal status to the Venezuelan migrants that are already within the Latin American countries’ territories, there are two important tendencies to point out:
The first one is that Latin American countries have been quite creative in order to provide legal status to the Venezuelan within their territories in order to give them access to the educational system, the health care system, and the labor market. Such is the case of the Special Stay Permit (Permiso Especial de Permanencia, PEP) used in Colombia and that has been granted to a 37% of the Venezuelan migrants in the country,89 the Temporary Stay Permit (Permiso Temporal de Permanencia, PTP) used in Peru and that has been granted to a 49% of the Venezuelan migrants in the country,90 the Exceptional Visa for
86 UN High Commissioner for Refugees (UNHCR) ‘Declaration of States Parties to the 1951 Convention
and or Its 1967 Protocol relating to the Status of Refugees’ (16 January 2002, HCR/MMSP/2001/09) <https://www.refworld.org/docid/3d60f5557.html> accessed 17 July 2020.
87 Oriana Van Praag,‘Understanding the Venezuelan Refugee Crisis’ (Wilson Center, 13 September 2019)
<https://www.wilsoncenter.org/article/understanding-the-venezuelan-refugee-crisis> accessed 10 June 2020.
88 Selee and Bolter (n 16) 16.
89 Migration Colombia, ‘Venezolanos en Colombia, corte a 31 de octubre de 2019’ (fact sheet, December
24, 2019) < https://www.migracioncolombia.gov.co/infografias/231-infografias-2019/total-de-venezolanos-en-colombia-corte-a-31-de-octubre-de-2019> accessed 16 July 2020.
90 Peruvian National Migration Superintendence, ‘Actualidad Migratoria’ (brief, National Migration
https://www.migraciones.gob.pe/wp-19
Humanitarian Reasons used in Ecuador and that has been granted just to a 4% of the Venezuelan migrants within the country,91 the Temporary Residence Permit used in Brazil and that has been granted to a 43% of the Venezuelan migrants in the country,92 or the Six-Month Work Permit Exemption used in Trinidad and Tobago and that has been granted to a 79% of the Venezuelan migrants in said country93. Despite the well-intended creation of these legal instruments, they have not been as effective as expected given that only a small portion of the Venezuelan migrants can comply with the requirements for its granting (documentation, costs, legal entry, etc.) leaving the vast majority of the Venezuelan migrants unprotected and in legal limbo. The temporary nature of most of the legal instruments mentioned must be noted, making the long stay in the host country and the integration of Venezuelan migrants to the local community cumbersome and problematic94.
The second important tendency of Latin American countries regarding the handling of the Venezuelan exodus is their general reluctance to apply regional and international refugee law to provide them with the legal status of refugees.95
The recognition of the refugee status of Venezuelans all over the world and especially in the Latin American countries has been quite limited, taking into account that only 93,29196 asylum claims have led to the said recognition, from the 896,069 that have been filed globally97, which means that the rate of success is only 10% approximately98. Those figures also show how little the asylum systems have been used by the Venezuelans
content/uploads/2019/12/REVISTA-MIGRACIONES-NOVIEMBRE-2019_opt.pdf> accessed 16 July 2020.
91 El Universo ‘Al menos 15 % de población venezolana en Ecuador estaría en condición irregular’, El Universo (January 21, 2020) < https://www.eluniverso.com/noticias/2020/01/21/nota/7701576/menos-15-poblacion-venezolana-ecuador-estaria-condicion-irregular> accessed 17 July 2020.
92 Coordination Platform for Refugees and Migrants from Venezuelan (R4V) ‘Brazil Situation Report –
September 2019’ (issue brief, R4V, n.p., September 2019) < https://reliefweb.int/report/brazil/brazil-situation-report-september-2019> accessed 17 July 2020.
93 IOM ‘Migrant and Refugee Venezuelan Crisis’ (issue brief, IOM, Geneva, July 2019)
< https://reliefweb.int/report/colombia/migrant-and-refugee-venezuelan-crisis-iom-regional-response-overview-reporting> accessed 17 July 2020.
94 UNHCR ‘Protection monitoring Venezuela situation, update # 1’ (n 18) 8; Selee and Bolter (n 16)
15-22.
95 Javier Ochoa ‘La paradoja de financiar una crisis de refugiados… sin refugiados’ Revista Foreign Affairs Latinoamérica (13 de Julio 2020) < http://revistafal.com/la-paradoja-de-financiar-una-crisis-de-refugiados-sin-refugiados/> accessed 17 July 2020.
96 R4V (n 1) 97 R4V (n 1)
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themselves in order to look for international protection, given that of the 5.2 million refugees around the world, only 896,069 have applied for asylum, which amounts to only 17,63% of Venezuelan refugees. According to the UNHCR, the Venezuelans are not filling asylum claims mainly because they do not have information about the procedure, they do not see the added value, the lengthiness of the procedure, they have been told not to apply or due to the high cost of the application.99
Despite the fact that none of the Latin American countries has been open about the specific reasons preventing them from providing legal status to Venezuelan refugees through their national asylum systems based on the regional definition of refugee, some NGOs and scholars have made a big effort to identify them, providing the following possible motivations.
The first one is the lack of experience that the main hosting states have regarding welcoming and providing protection to refugees,100 which easily overstretches the limited capacity of the national asylum systems101. A case in point is Colombia that, in the last decade, went from being one of the biggest refugee producing States, to be one of the main hosting states of refugees.102
The second possible reason is the general lack of resources that most of the Latin American countries suffer and the precarious capacity of their educational and social welfare systems, which would be even more overwhelmed than usual if all the Venezuelans recognized as refugees would have legal access to them103. This would imply a practical deprivation of those services for the Venezuelan refugees simply because the Latin American educational and welfare systems are not prepared enough to cover them all, which would hinder the fulfillment of their basic needs and rights according to International Refugee Law.
99 UNHCR ‘Protection monitoring Venezuela situation, update # 1’ (n 18) 10
100 Cécile Blouin, Isabel Berganza and Luisa Feline Freier, ‘The spirit of Cartagena? Applying the extended
refugee definition to Venezuelans in Latin America’ (2020) 63 Forced Migration Review: Cities and towns < https://www.fmreview.org/cities/blouin-berganza-freier> accessed 23 June 2020.
101 Selee and Bolter (n 16) 27 102 Ibid. 17.
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Thirdly and directly related to the above, there is an increasing political pressure by the Latin American national population demanding to their governments to control the entry of Venezuelans, due to their mass influx and how this is affecting the provision of services within the educational systems and the health care systems, the possibilities to find affordable housing, the labor market competition and the levels of criminality104. Unfortunately, due to all these collateral impacts, an increasing sort of dislike towards Venezuelans is taking place throughout Latin America which, albeit not being a valid excuse for the reluctance to comply with their international obligations, could be an obstacle for the adoption of adequate legal measures to provide international protection in Latin America105.
Lastly, and bearing in mind the uneven distribution of Venezuelans among the region, there is a general fear, especially by those countries that are already overwhelmed by the numbers of Venezuelans within their territory, of spurring the exodus towards their territory if they recognize the refugee status of Venezuelan contrary to what has been done by the rest of the region. No State wants to bear the burden alone.106
In this regard, Latin American countries need to understand that the recognition of the refugee status of Venezuelans would not become the main motivation for them to flee their country. Given that the Venezuelan situation does not seem to change in the near future, the mass influx of Venezuelans will keep increasing, regardless of the measures taken by the states within their domestic asylum systems, compounding the already dire situation of Venezuelan refugees within the Latin American countries, unless drastic measures to address this problem are taken at a regional level.
IV. International cooperation to address the Venezuelan refugee crisis.
Considering that the legal handlings given by the Latin American countries individually to the Venezuelan exodus are not being effective and have not focused on the compliance of the international obligations that said countries have towards the Venezuelan refugees,
104 Van Praag (n 98).
105 Selee and Bolter (n 16) 22. 106 Selee and Bolter (n 16) 27
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this paper will raise the possibility of providing a regional, coherent a coordinated response to this issue, based on international cooperation. In this vein, first, we will make a brief review of previous forms of cooperation used in the region, to grapple with former refugee crises, to identify whether they could be instruments to draw upon. Next, we will identify the forms of regional cooperation that have been already put in place to alleviate the Venezuelan refugee crisis, to identify their benefits and their flaws.
1. Previous forms of cooperation in the Latin American Region.
During the 1980s, the Central American Region was direly affected by a mass influx of people, caused by the armed conflicts that were taking place in El Salvador, Honduras, and Nicaragua. More than 2 million people were forced to leave their homes due to generalized violence, creating three types of groups in need of protection and durable solutions: Refugees, displaced people, and returnees107. In order to address this challenge from a regional level and aiming to provide timely protection to those that so desperately needed it, the Conferencia Internacional sobre Refugiados Centroamericanos
(CIREFCA) was created as a forum where all the Central American countries could sit to
talk about the situation at hand, identify the needs of the vulnerable groups and come up with ideas to provide durable solutions to them.
On 30 May 1989, within the context of this conference, the Central American countries adopted the Declaration and Concerted Plan of Action in Favour of Central American Refugees, Returnees and Displaced Persons, where strategies to provide durable solutions to the victims were agreed upon.
With regard to the refugees, the plan of action established the following: i) the relevance of an integration process,108 ii) the insertion into the labor market, 109 iii) the reciprocal benefit for the local community and the country of refugee, 110 and iv) the regularization of the migratory situation of refugees.111
107 CIREFCA (n 20) A 3-6 108 Ibid. 24.
109 Ibid. 25. 110 Ibid. 26. 111 Ibid. 27.
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Even though the plan of action was to be implemented and designed by each state at a national level, within a period of 3 years and base on the Principles and Criteria for the Protection of and Assistance to Central American Refugees, Returnees and Displaced Persons in Latin America112 adopted by CIREFCA, the follow-up of said implementation was to be done by a regional follow-up committee, which was in charge of reviewing the reports presented by each Central American state controlling the compliance with the Plan of action and its strategies. 113
The CIREFCA Process concluded in May 1994 with big achievements regardings the implementation of peace agreements within the region and the reduction of the influx of refugees in the region, with remarkable respect for the principles of non-refoulement and no sanction for illegal entry to the country but with an unfortunate low rate of recognition of the refugees in the region. 114
Another important form of cooperation that was quite innovative for its time was the Plan of action of the Mexico Declaration115 and the fact that it was developed within the framework of responsibility-sharing among the region, regarding refugees.
A remarkable element of said Plan of action was the Regional Solidarity resettlement programme which was created so as to resettle the Colombian refugees that were mainly located in Ecuador and Costa Rica, in other countries in the region. The aforementioned aiming to redistribute the financial and logistical burden that those refugees implied, and, at the same time, guarantee them a better integration within a country with better opportunities to achieve that goal116. Unfortunately, due to a lack of long-term financial support, this programme was not as successful as expected. 117
112 CIREFCA, ‘Principles and Criteria for the Protection of and Assistance to Central American Refugees,
Returnees and Displaced Persons in Latin America’ (January 1990) <https://www.refworld.org/docid/4370ca8b4.html> accessed 10 July 2020.
113 Ibid. 17, 33-34.
114 CIREFCA, ‘Evaluación de la puesta en práctica de las disposiciones del Documento - "Principios y
criterios para la protección y asistencia a los refugiados, repatriados y desplazados Centroamericanos en América Latina’ (28 June 1994, CIREFCA/REF/94/1) para. 10, 32-33 <https://www.refworld.org/docid/3ae6b31c88.html> accessed 18 July 2020.
115 Mexico Declaration (n 21).
116 UNHCR Global Appeal ‘Latin America (Mexico Plan of Action)’ (2007)
<https://www.unhcr.org/455443b30.pdf> accessed 19 July 2020.
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In this point, it is important to highlight that both refugee movements tackled by the forms of cooperation described previously were based on armed conflicts, which create no doubt regarding the applicability of the refugee status.
With the aforementioned forms of cooperation in mind, we will continue by describing the attempts of cooperation that have been made by the Latin American Region to address the Venezuelan refugee crisis, in order to determine whether those approaches where made within the regional and international refugee law framework.
2. Current regional cooperation forms to tackle the Venezuelan refugee crisis.
With regard to the legal handlings taken by the Latin American countries as a region, the most outstanding one is the Quito Process which was created by means of the Quito Declaration118 signed on September 4, 2018, by the governments of Argentina, Brazil, Chile, Colombia, Costa Rica, Ecuador, Mexico, Panama, Paraguay, Peru, and Uruguay. In this declaration, some basic points were agreed on ‘to promote consensus and dialogue between countries receiving Venezuelan refugees and migrants in Latin America and the Caribbean’119 so as to facilitate the free movement of Venezuelans within the region. In this declaration, there is just a brief mention of access to the procedures for the determination of refugee status, without any further development about the subject.
This declaration was followed by subsequent rounds of meetings in November 2018; April, July, and November 2019 where the Quito Plan of Action (Quito II)120 and the Road Map of the Buenos Aires Chapter (Quito IV)121 were adopted. These instruments were aimed to regularize the migrational situation of the Venezuelans among the region
118 Quito Declaration on Human Mobility and Venezuelan Citizens in the Region (4 September 2018)
<https://data2.unhcr.org/en/documents/download/68099> accessed 4 June 2020.
119 R4V (n 8)
120 II international technical meeting on human mobility of venezuelan nationals - Quito Process - Quito
Plan of Action (23 November 2018) <https://r4v.info/es/documents/download/68101 and
https://www.cancilleria.gob.ec/wp-content/uploads/2018/11/plan_de_accion_de_quito.pdf> accessed 4 June 2020.
121 IV international technical meeting on human mobility of venezuelan nationals - Quito Process - Buenos
Aires Chapter Road Map (5 July 2019) <https://data2.unhcr.org/en/documents/download/70458> accessed 4 June 2020.
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without making any special mention about the refugee status to which they are entitled or about the international protection thereof. From these documents and strategies, the big effort made by the Latin American Countries to harmonize and promote a regional, common, and effective response to the Venezuelan migration crisis must be noted.
In addition to the above-mentioned regional instruments, a Regional Refugee and Migrant Response Plan for Refugees and Migrants from Venezuela was adopted122 in both 2019123 and 2020124, aiming to support and complement national authorities across Latin America and the Caribbean125 in the titanic task of receiving, protecting and integrating the Venezuelans that are moving massively throughout Latin America. These Response Plans made a deep analysis of every country's situation with the purpose of determining their flaws while addressing the Venezuelan migration crisis, making recommendations to improve said flaws and establishing, based on each country’s social and economical background and the amount of Venezuelans they are hosting, what would be the amount of money required by each of them and by the region, in general, to be able to protect and meet the basic needs of the Venezuelan population within their territories126. In these fund-raising instrument, the international community, as well as UN Agencies such as the United Nations High Commissioner for Refugees (UNHCR) and international organizations such as the International Organization for Migration (IOM), among others, play a predominant role.
Although the Latin American countries’ intentions to address the Venezuelan situation within a frame of international cooperation are undeniable, some things should be noted about the regional forms of cooperation described so far:
All the regional declarations and plans above-mentioned, do not have binding force and some countries have signed these declarations and later have adopted national measures 122 Countries in Latin America and the Caribbean involved in this plan include Argentina, Aruba, Bolivia,
Brazil, Chile, Colombia, Costa Rica, Curaçao, Ecuador, the Dominican Republic, Guyana, Mexico, Panama, Paraguay, Peru, Trinidad and Tobago, and Uruguay.
123 R4V (n 8).
124 Coordination Platform for Refugees and Migrants from Venezuelan (R4V) ‘The Regional Refugee and
Migrant Response Plan 2020 for Refugees and Migrants from Venezuela’ (2020) 11 <https://data2.unhcr.org/en/documents/details/76210> accessed 26 May 2020.
125 Countries in Latin America and the Caribbean involved in the RMRPs are Argentina, Aruba, Bolivia,
Brazil, Chile, Colombia, Costa Rica, Curaçao, Ecuador, the Dominican Republic, Guyana, Mexico, Panama, Paraguay, Peru, Trinidad and Tobago, and Uruguay.
26
that go against what was agreed on at a regional level127. Such is the case of countries like Peru and Ecuador that recently introduced a valid passport as an entry requirement for Venezuelans, despite having signed the Quito Declaration (2018) which aimed to guarantee the free movement of Venezuelans in the region.
Furthermore, the regional declarations and plans at hand, do not mention any specific measures to improve the determination of refugee status of Venezuelan migrants based on the Cartagena Declaration’s definition, leaving it to the judgment of each country which, as stated previously, could be highly influenced and hindered by the national populations’ political pressure among other reasons.
In addition, said declarations are mainly underpinned by a sense of humanitarian aid and international cooperation for helping people in need but do not develop the concept that, in my view, should be the actual ground for any kind of regional approach to the Venezuelan migration crisis which is the concept of shared responsibility or the principle of responsibility-sharing regarding large movements of refugees and migrants that has been highly developed since the New York Declaration for Refugees and Migrants (2016)128. It is comprehensible why Latin American countries try to frame their actions within the scope of humanitarian aid instead of within the scope of responsibility-sharing in large movements of refugees and migrants. The level of burden and demand required in the former scenario is more convenient for the hosting states than the ones stated for the latter one. Nevertheless, this is no admissible excuse to overlook their international obligations or try to comply with them under lower standards than the ones set out in the International Refugee Law instruments. This argument will be discussed in greater detail below.
In conclusion, the individual as well as the collective measures taken so far by the Latin American Countries to provide legal status to the Venezuelan migrants and asylum seekers, albeit highly humanitarian and well-intentioned, have been insufficient to tackle the legal uncertainty that Venezuelan refugees are living in the hosting countries, which have resulted in double victimization due to the high state of vulnerability that they are facing in the hosting States with no legal status recognized, no fulfillment of their basic 127 Selee and Bolter (n 16) 8.
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needs and no protection of their fundamental rights that place them in a high-risk of becoming victims of criminal organizations for the purpose of human trafficking, smuggling, sexual exploitation, among other blatant crimes129.
V. Legal approaches that could enhance the existing and/or promote future forms of international and regional cooperation regarding the Venezuelan refugee crisis.
Aiming to promote a widespread determination of the refugee status of Venezuelan migrants all over Latin America and increase the recourse to the national asylum systems by those migrants, I shall now proceed to present three proposals that, within a context of international and regional cooperation, could help to guarantee the theoretical and practical international protection of Venezuelan refugees.
1. Prima facie determination of the refugee status on a group basis
One of the main problems regarding the determination of the refugee status of Venezuelan migrants is the fact that the asylum systems of the Latin American countries are overwhelmed by the asylum claims currently in process, which, as we could identify above, are not even a significant portion of the claims that could be pending if all the Venezuelan migrants were aware of their entitlement to international protection as discussed previously.
Although the regular examination of asylum claims is carried out on a case-by-case basis, in the case at hand that has been proven to be overwhelming, draining, delaying, and inefficient to provide timely international protection, and it is a problem that has to be addressed as soon as possible.
As a means of tackling this issue, the Latin American countries could consider the possibility of addressing the determination of the refugee status to Venezuelan migrants on a group basis, as a tool to alleviate the overburden of the system since the analysis
28
claim by claim individually would be no longer needed, insofar as the group determination is in force. The possibility to use this tool as a way to deal with the overburden of an asylum system due to a large refugee movement was firstly presented in the Handbook on Procedures and Criteria for Determining Refugee Status were it was set out that a group-based determination of the refugee status could be done when it is practically impossible, for logistical reasons, to carried out the individual recognition as refugee of every member of a group that has fled its country of origin under similar circumstances130.
The group-based recognition or prima facie recognition has been defined as ‘the recognition by a State of refugee status [to the members of a defined group] on the basis of the readily apparent, objective circumstances in the country of origin giving rise to the exodus’131, acknowledging that the group identified is at risk of harm in the country of origin, which will make its members fall collectively under the scope of the refugee definition132.
Even though this legal concept has been developed as a mean to unclog the national asylum systems that are facing a mass influx situation133, some scholars have held that this is not a mechanism reserved to this kind of situation, but that could also be applied by a State, out of the context of a large movement of migrants, when a group at risk could be easily and objectively identified due to the motivations that prompt the flight of its members134. This broadening in the use of this concept has also been stated in the UNHCR guidelines135.
130 United Nations High Commisioner for Refugees (UNHCR), ‘Handbook on Procedures and Criteria for
Determining Refugee Status’ (Geneva, 1979,re-edited 1992) Par. 44 <https://www.unhcr.org/4d93528a9.pdf> accessed 9 June 2020.
131 United Nations High Commisioner for Refugees (UNHCR), ‘Protection of Refugees in Mass Influx
Situations: Overall Protection Framework’ (EC/GC/01/4, 19 February 2001) Par. 6 <
https://www.unhcr.org/3ae68f3c24.html> accessed 9 June 2020.
132 United Nations High Commissioner for Refugees (UNHCR), ‘Guidelines on International Protection
No. 11: Prima Facie Recognition of Refugee Status’ (HCR/GIP/15/11, 24 June 2015) <https://www.refworld.org/docid/555c335a4.html> accessed 09 June 2020.
133 UNHCR (n 131) Par. 4
134 Jean-François Durieux, ‘The Many Faces of “Prima Facie”: Group-Based Evidence in Refugee Status
Determination’ (2008) 25 (2) Canada’s Journal on Refugees 151
