Blog post by Javier Ochoa. Javier holds an MA in Latin American Studies from Georgetown University and a Graduate Certificate in Refugees and Humanitarian Emergencies from its Institute for the Study of International Migration (cjo52@georgetown.edu). A version of this post in Spanish is also available here.

The international arena commonly refers to the Venezuelan exodus as an unprecedented crisis. Indeed, 5.5 million Venezuelans (about 19% of the population) have fled their country in the last five years, leading to one of the largest forced displacements in modern history. Moreover, while other recent crises in the region have generated migration flows towards the United States, most Venezuelans are displacing across South American borders, posing important challenges to host States with weaker integration capacities than in the so-called Global North.  

Nevertheless, beyond its magnitude and socioeconomic impact in the region, the Venezuelan exodus also constitutes a particular displacement crisis because of its ability to “activate” protection frameworks that are not available in South-North flows, but are rather specific to the South American context. Depending on which policies are put in place, the Venezuelan exodus carries different legal implications for South American governments, inviting us to re-think how, and if, the region can be encouraged to maximize the protection of displaced Venezuelans.  

In this blog, I argue that South America’s decision not to afford Venezuelans refugee status can trigger the applicability of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW). Such a perspective can strengthen civil society’s advocacy efforts by calling on host States to guarantee important migrant-specific rights for Venezuelans under international human rights law.  

A Neglected Centralized Response

As a starting point, the Venezuelan exodus has been able to summon the spirit of the 1984 Cartagena Declaration and bring into discussion the applicability of the regional extended refugee definition, enshrined in host States’ domestic legislation. While most displaced Venezuelans would not qualify as refugees in a South-North displacement scenario—governed by the more restrictive 1951 definition—academic experts and UNHCR consider Venezuelans could seek asylum in South America on the protected grounds of massive violations of human rights and other circumstances which have seriously disturbed public order.  

However, despite serving as a centralized response to the crisis, the region has remained reluctant to adopt a formal asylum approach and decided instead to pursue the pathway of temporary protection. In order to escape the long-term commitments that come with providing refugee status, as I argue in a forthcoming article with the International Journal of Refugee Law, South American governments have resorted to the issuance of temporary stay permits and humanitarian visas, granting Venezuelans access to their labour markets and social services, but to a certain extent and for the duration of the temporary arrangement only.  

For instance, Peru’s Temporary Stay Permit (Permiso Temporal de Permanencia, PEP) authorizes Venezuelans to seek employment but for one year only and with no access to the Foreigner Identity Card (Carné de Extranjería), a necessary document to benefit from Peru’s Comprehensive Health System (Sistema Integral de Salud, SIS). Another similar example is that of Colombia’s Special Stay Permit (Permiso Especial de Permanencia, PEP), which provides Venezuelans with work authorization but for two years only and with the obligation to exit the country upon the permit’s expiration, against the fundamental principle of non-refoulement. Other problematic approaches are those of Chile and Ecuador, which, upon increasing inflows in 2018, decided to implement the restrictive Democratic Responsibility Visa (Visa de Responsabilidad Democrática) and the Exceptional Visa on Humanitarian Grounds (Visa Excepcional por Razones Humanitarias), respectively.  

Because these ad-hoc protection schemes are conceived outside clear normative frameworks, host governments can subsequently introduce discretionary modifications without major international scrutiny. Then, in a context where the Venezuelan exodus is becoming protracted and South American States continue to ignore sound policy recommendations by UNHCR and specialized scholars, promoting effectively the protection of displaced Venezuelans’ rights in the region is proving a challenging task.  

Nevertheless, the unprecedented nature of the Venezuelan exodus is such that neglecting the spirit of Cartagena can trigger the activation of an additional protection framework: the ICRMW. As the most comprehensive international treaty dealing with the rights of migrant workers and members of their families, either documented or non-documented, the ICRMW imposes important obligations to South American host States under international law and offers an alternative channel through which to advocate for the protection of displaced Venezuelans’ rights in South America.  

An Alternative Tool to Protect Forcibly Displaced Venezuelans

A first key aspect of the ICRMW’s applicability to the Venezuelan exodus lies on its definitions. Pursuant to Article 2(1), a “migrant worker” is any person “who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.” At the same time, Article 3(d) establishes that the ICRMW “shall not apply to refugees and stateless persons . . .” In this sense, if displaced Venezuelans are not granted refugee status and, instead, receive work permits, it could be argued they fall under the ICRMW’s definition of migrant worker and its scope of protection.  

A second important element relating to the relevance of the ICRMW is its legal enforceability upon South American States. Ratified by 55 countries only (out of 198), the ICRMW can be easily overlooked as a potential tool to hold host States accountable in situations of mass displacement. As Susan Martin has stated, “the number of states ratifying the convention is still disappointingly small (and) no major destination country of migrants has yet ratified it, raising further questions about its effectiveness”. However, given their history as nations of both immigration and emigration, all South American States (except Brazil) have ratified the ICRMW and are, thus, bound to guarantee the protection of important migrant-specific rights for Venezuelans under international law.  

Status of Ratification of the ICRMW. Source: Database of the United Nations Office of Legal Affairs (OLA) https://treaties.un.org

In addition to reinforcing the protection of basic human rights, such as the right to life (Art. 9), the prohibition of torture or cruel, inhuman or degrading treatment or punishment (Art. 10), slavery or servitude and forced or compulsory labour (Art. 11), and the right to freedom of thought, religion and conscience (Art. 12), the ICRMW places special focus on social and economic rights. This is an important consideration because, beyond regularization mechanisms, access to employment, health, and education is what ultimately will facilitate the integration of displaced Venezuelans into South American host societies.  

First, the ICRMW establishes that all migrant workers (both documented and undocumented) are entitled to “enjoy treatment not less favourable than that which applies to nationals of the State of employment in respect of remuneration” and other conditions of work such as overtime, hours of work, weekly rest, holidays with pay, and safety (Art. 25(1)). More importantly, States Parties are compelled to “take all appropriate measures” to ensure that such equal treatment is not affected “by reason of any irregularity in their stay or employment” (Art. 25(3)). The latter is a particularly important obligation for South American governments because most prospective employers in the region are not familiar with the temporary permits currently in place, making it virtually impossible for displaced Venezuelans to access formal labour markets (e.g., as of March 2019, only four percent of PEP holders in Colombia had joined the formal economy).  

Second, the ICRMW sets forth that documented migrant workers shall “enjoy equality of treatment with nationals of the State of employment” in accessing educational institutions, housing, social and health services, among other rights (Art. 43). Considering temporary work permits and humanitarian visas in the region do not fully guarantee access to such services, South American governments should, then, do more to ensure displaced Venezuelans are better integrated into their societies. It is worth noting that, as language above suggests, the ICRMW does not extend protection to undocumented migrant workers beyond labour rights, which appears insufficient in light of the hundreds of thousands of Venezuelans who remain in the region without any documentation or permits. However, Article 28 clarifies that emergency medical careshould not be refused to those in irregular status, while Article 69 requires States Parties to take appropriate measures to ensure that “when migrant workers and members of their families are within their territory in an irregular situation, such a situation should not persist.” The latter is, perhaps, one of the most important obligations for South American governments towards displaced Venezuelans, particularly during times of COVID when official ports of entry are closed, but, inevitably, forced displacement continues.  

Finally, the ICRMW prohibits States Parties to expel migrant workers and members of their families from their territories, except for reasons defined in their national legislations, upon which “account should be taken of humanitarian considerations and of the length of time that the person concerned has already resided in the State of employment” (Art. 56). This is a crucial obligation for South American countries arising out of the ICRMW because temporary work permits and humanitarian visas are precisely designed to encourage Venezuelans’ return to their country. In this sense, considering the ongoing humanitarian crisis in Venezuela and the protracted stay of many Venezuelans in the region, interrupting temporary work permits and humanitarian visas could constitute a breach of international human rights law.  

In light of the above, it appears that the unprecedented nature of the Venezuelan exodus has the ability to put South American governments between a rock and a hard place depending on their policy choices. Faced with the possibility that displaced Venezuelans might remain abroad for years, South American governments’ policies have been directed towards a temporary protection framework which is, at its very core, a return-oriented solution. Ironically, though, neglecting the Cartagena Declaration in the Venezuelan context can trigger the applicability of the ICRMW, elevating displaced Venezuelans’ rights to the level of host States’ nationals on a vast array of circumstances and compelling governments to regularize undocumented Venezuelans. In this sense, the key question for policy-makers in the region should not be how to discourage Venezuelans from entering or staying in their cities, but, rather, how to efficiently manage a forced displacement that, inevitably, will continue to occur, either through regular or irregular channels.  

To conclude, inspired by the pragmatism of South America’s temporary protection framework, this blog adopted a pragmatic approach to suggest the ICRMW as a possible tool to strengthen civil society’s advocacy efforts in the region. Usually overlooked due to its low ratification rate, the ICRMW arises in South America as an important source of international law to encourage host States that displaced Venezuelans’ rights be protected. Notwithstanding, it is important to remember that refugee law remains the most appropriate field to protect displaced Venezuelans, a path which UNHCR and academia must continue insisting on.    

Bibliography

The International Convention on the Protection of the Rights of All Migrant Workers    

The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.