South America and the Cartagena Regime:  A comprehensive approach to forced migration responses

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by Gilberto M. A. Rodrigues, Sergio Vieira de Mello Chair, Federal University of ABC, Brazil
10 November 2020

Latin America has developed a specific regional regime for refugees. The 1984 Cartagena Declaration on Refugees had set a landmark recommendation to all countries in the region: the need to amplify the Geneva Convention of 1951’s refugee definition to incorporate human rights mass violations as the “sixth reason” for the refugee determination process. Starting from this bedrock conceptual framework, the Cartagena Regime evolved and included other innovative ways regarding protection and solutions for refugees in the last 35 years. Particularly in South America, there has been a comprehensive approach to forced migration responses with lessons learned that could be useful for comparative studies and policy debates, including those regarding the new European Union 2020 New Pact on Migration and Asylum.

The Cartagena Regime

The 1984 Cartagena Declaration on Refugees is a non-governmental document approved by academics and UNHCR officials in a Colloquium held in Cartagena de las Indias, Colombia, in November 1984. The document addressed a refugee crisis within a critical situation in Latin America at that point. Civil wars, international interventions and massive human rights violations in Central America were producing hundreds of thousands of refugees. Neighbourhood host countries had no legal provisions to recognize those people under the 1951 Refugee Convention’ standards.

Gradually, with UNHCR regional support as well as NGO actions, Latin American countries began introducing the “massive violations of human rights” clause (which may encompass situations such as authoritarian regimes, humanitarian crises and civil wars) in their national legislations. The new conceptual framework enlarging the Geneva Convention of 1951 definition was adopted voluntarily by each country thus transforming the 1984 Cartagena Declaration into an affective regional soft law. The Cartagena Regime became much more complex and comprehensive than its starting point, including protection and durable solutions’ regional mechanisms that have been developed in its 35 years of existence.

A political commitment by the majority of the countries in the Americas, in partnership with UNHCR, has defined a political agreement to organize a summit every ten years in order to evaluate and update the Cartagena Regime (Cartagena +). Thus, it has now four declarations (1984, 1994, 2004 and 2014) and two plans of actions (2004 and 2014) comprising the content of the regional regime, which includes protection and durable solutions mechanisms, some of them unique.

The Cartagena Regime and the Global Compact on Refugees

The importance of regional and subregional approaches was valued by the Global Compact on Refugees in its item 2.3, where it states that “Comprehensive responses will also build on existing regional and subregional initiatives for refugee protection and durable solutions where available and appropriate, including regional and subregional resettlement initiatives…”. This is exactly what the Cartagena Regime, in its 35 years of existence, represents, encompassing a broad policy framework (not binding, as explained above) that includes protection and durable solutions for intra-regional and extra-regional situations.

Contemporary refugee and migration laws in South America

South American countries have embraced the international refugee regime through their recognition of the 1951 Geneva Convention and 1967 Protocol. As part of their national regulatory process, refugee laws were approved based on the general International Refugee Law but also based on the Cartagena Regime. Table 1 shows Mercosur countries regarding their status to both international and domestic norms.

Table 1 – Mercosur: Geneva Conv.+1967 Protocol ratification status / Refugee laws

Data collection by the author (2020)

Refugee laws are necessarily connected to general migration laws, which regulates the status of migrants vis-à-vis their rights, including residence, acquisition of nationality and other important issues regarding human rights of migrants. Table 2 shows how migration laws in Mercosur countries evolved from a national security focus to a human rights focus over the last twenty years.

Table 2 – Mercosur countries’ migrations laws – general focus

Adapted by Rodrigues & Silva, 2017

The intersection between refugee laws and migration laws in South America (particularly in Mercosur countries) allows asylum seekers to apply for other alternatives for provisional or permanent residence when they have their asylum applications refused by national authorities. However, those complementary protection instruments are relatively new and their implementation has been affected by a high level of discretionary power and also by restrictions imposed by regressive administrative regulations which in many cases have reduced the ground of human rights protection granted by the law as well as by the Cartagena Regime.

Yet, it should be made clear that since 2017 new right and far-right-wing governments in South America have managed migration issues with a security, nationalist approach, which has led to violations of Refugee Law (Jubilut, Espinoza, Mezzanotti, 2019). Through executive decrees and/or ordinances either Argentina (Macri’s government, 2017­–2020) and Brazil (Bolsonaro’s government, 2019–present), to mention two major Mercosur countries, have tried to control borders, criminalize migrants and downplay human rights standards of their laws regarding refugees and migrants. But in many cases courts have been provoked to intervene and suspend those illegal acts, such as the Brazil’s Ministry of Justice ordinance n. 666, which illegality was recognized even by an atypical Brazil’s UNHCR Office declaration, and was contested in the Supreme Federal Court.

The context of forced migration in the region

It is important to contextualize the forced migration challenges that Latin America and the Caribbean region have faced in the last twenty years. The Colombian war and violence committed by the Colombian Army, paramilitary forces and guerrillas are still ongoing, despite the 2016 Peace Agreement between Colombia Government and the Colombian Revolutionary Armed Forces (FARC), a process that led the Nobel Committee to award Colombian President Juan Manuel Santos with the 2016 Nobel Peace Prize.

In Central America, the North Triangle composed of El Salvador, Guatemala and Honduras has confronted long-term structural violence, aggravated by civil wars and the emergence of Maras, violent urban gangs. Those problems have produced long-term massive waves of forced displacement in the region.

In the Caribbean, Haiti became a top international security priority followed by the approval of the United Nations Stabilization Mission in Haiti (2004–2017), which was mainly coordinated by South American countries, particularly Brazil, Chile and Argentina. In 2010, a huge earthquake partially devastated the island and produced a massive flux of forced migrants mainly to South America.

Finally, the political, economic and humanitarian crisis in Venezuela has produced a massive migration flux since 2016 with a huge impact on South American countries, especially Colombia and Brazil. According to 2020 UNHCR figures, Venezuela is the second highest country source with 3.7 million (refugees + displaced abroad).

From outside the region, despite its distance, the Syrian war has also impacted the region, as the Syrian community is strong in many South American countries, which favoured reception and governmental policies to receive them in a timely manner.

Open borders as a regional policy in South America

South America had a traumatic experience with borders of confrontation during the Cold War, in which national security doctrines played a central role in shaping international mobility as a national security issue. Military regimes agreed to cooperate in controlling their borders against the so-called subversives (those persecuted for political reasons), and also secretly exchange detainees who were then victims of forced disappearances through the horrible Operation Condor.

The re-democratization process in the 1980s brought a new era of human rights protection and border management in South America. New cooperation between Argentina and Brazil led to bilateral commitments in the late 1980s and soon after that to Mercosur (1991), built under borders of cooperation frameworks. Even policies of combating organized crime (especially narcotraffic) and its re-securitization measures adopted by many countries beginning in the 1990s – also deepened by 9/11 antiterrorist security outcomes – were not determinant in changing the pattern of open borders for receiving forced migrants. The 2004 Mexico Declaration and Plan of Action established the concept of solidarity borders, calling governments to keep their borders open to receive forced migrants. This was particularly important in South America with the Colombian conflict (Ecuador and Venezuela’s borders with Colombia); and more recently with the Venezuelan conflict (Colombia and Brazil’s borders with Venezuela). However, the COVID-19 pandemic has changed border control due to emergency sanitation norms restricting entry to foreigners without permanent residence permission.

Non-refoulement principle and legal limits to deportation

Non-refoulement is a bedrock principle of International Refugee Law entrenched in all national refugee laws in South America. This principle goes beyond refugee laws themselves and links migration laws limiting the possibility of deportations of non- recognized refugees who could be in danger if deported. Table 3 shows how Mercosur migration laws deal with this issue.

Table 3 – Mercosur countries’ migrations laws – deportation & access to justice

Adapted from Rodrigues & Silva, 2017

Humanitarian visas and qualifications: their role and limits

Humanitarian visas are a complementary form of protection, which “grant legal status to people who are not recognized as refugees under the Geneva Refugee Convention, or the Cartagena Declaration, but whose return is contrary to States’ obligations to the principle of non-refoulement” (Freier, Gauci 2020).

In 2012, they were applied to Haitians as part of an accommodation process regarding Brazil’s CONARE decision which did not recognize them as refugees. Assuming their vulnerable condition and the impossibility to repatriate them to Haiti (due to the critical situation the country has confronted since its 2010 earthquake), Brazil’s National Immigration Council (CNIg) conferred Haitians humanitarian visas, recognizing their vulnerable situation, allowing them provisional residence permission, which was later converted to a permanent one for most of them under some conditions.

After the humanitarian visa solution for Haitians, Brazil’s government applied a similar measure for Syrians in 2013. The aim was to accelerate the Refugee Status Determination (RSD) for Syrians settled in a first host country. Through a fast track procedure visas and qualifications for Syrians were, in fact, part of Brazil’s commitment to contribute to share the burden of the Syrian crisis that had begun in 2011.

UNHCR celebrated the legal alternative of humanitarian visas as a complementary protection in line with UNHCR standards. The 2014 Brazil Declaration and Plan of Action stressed that possibility. Brazil, Argentina, Uruguay and Venezuela migration laws included provisions related to that, either for entry or residence permissions. Nevertheless, some experts, such as Laura Madrid Sartoretto and Diego Arcarazo, Giuliana Redin, and myself as well, see this kind of complementary protection as a possible lack of political will to support RSD based on the broad Cartagena definition, due to less responsibilities the state assumes with those humanitarian migrants.

South-South cooperation and extra-regional resettlement

Extra-regional and intra-regional resettlement was part of the South-South cooperation South America countries implemented since 2005 and based on the resettlement in solidarity of the 2004 Mexico Declaration and Plan of Action (also included in the 2014 Brazil Declaration and Plan of Action). In this regard, Palestinians were resettled, but in a limited way. The same happened with Syrians, who could have benefited from assistance from Syrian communities in many South American countries, yet were limited due to the distance from their origin.

Intra-regional resettlement was implemented in Latin America in 2005, based on the Solidarity Resettlement Program, which was “designed as a protection tool and a durable solution for Latin American refugees (primarily of Colombian origin) who faced risks in neighbouring countries”. The Program was also “a mechanism for international solidarity and responsibility sharing among the region’s states, seeking to bring relief to those countries hosting the greatest number of refugees” (Marcogliese, 2017). Between 2005 and 2014, around 1.151 refugees, mainly Colombians, who were settled in Ecuador and Costa Rica were resettled to Argentina, Brazil, Chile, Paraguay and Uruguay.

Venezuelans and prima facie RDS by Brazil’s CONARE

Another important protection measure that was provided for the first time in Latin America was Brazil’s decision to recognize prima facie thousands of Venezuelans, based on the “human rights massive violations” clause therefore eliminating interviews and other procedures for the RDS. This decision made by Brazil’s CONARE in December 2019 (followed by other similar decisions in 2020) is considered by UNHCR and many experts one of the most relevant ones regarding protection of refugees applied in the region.

Yet criticism on this decision came from many experts, NGOs and communities of refugees that saw a political bias in Brazil’s government towards President Maduro’s regime. The decision applied to Venezuelans could potentially be applied to refugees from other nationalities, but few think it will be.

The Inter-American Human Rights System and the Cartagena Regime

The Inter-American Human Rights System (IAHRS) is comprised of three bodies: the Inter-American Commission on Human Rights (IACHR), the Inter-American Court of Human Rights (I/A Court H.R.) and the Inter-American Institute of Human Rights (IAIHR). The first is legally binding for all 34 Organization of America States (OAS) members, while the second is binding only for those recognizing its jurisdiction – that means 20 states (including all Mercosur members, excepting Venezuela, and the other South American countries – Bolivia, Chile, Colombia, Ecuador and Peru). The IAHRS has also played an important role in migration and human rights in cases regarding arbitrary detention of migrants, violation of nationality of migrants, extradition, deportation and expulsion of migrants, among others. Due to the fact that almost all South American countries recognize the I/A Court H.R, its subsidiary role in connection to the Cartagena Regime also empowers the intersection between migration and human rights in those countries. The I/A Court H.R. Advisory Opinion OC-21/14 on “Rights and guarantees of children in the context of migration and/or in need of international protection” is an important example of that.

Final remarks

The Cartagena Regime has contributed to a comprehensive response to forced migration challenges in Latin America in line with the GCR. In South America, the 2004 Mexico Declaration concepts of solidarity borders, solidarity cities and solidarity resettlement have been applied. Complementary protection in the form of humanitarian visas and qualifications have been also applied in South America with relative success in cases in which the RSD did not recognize forced migrants, although there have been limits to their implementation. New right- and far-right wing governments have contributed to regressive policies regarding migration and a human rights-based approach. The COVID-19 pandemic has affected the regular status of open borders and the normalcy of migration law regulations.