The Response of Latin America to the Venezuelan Emigration and the Applicability of “The International Convention on the Protection of The Rights of all Migrant Workers and Members of their Families”

Asylum seekers are usually more suseptable than the country’s population at large to the repurcussions of the pandemic. Most of the refugees reside in cramped, lousy accommodation and are living hands to mouth with unstable jobs in the informal job market. They are as can be reasonably deduced inadequately equipped to both adopt the guidelines to contain the transmission of the virus or to adapt to the financial repercussions of lockdown. Thousands are struggling with the awful decision of either starving or defying quarantine instructions to resort to hawking or begging in the streets. With the limited cash channelizing in for purposes of paying rent, several immigrants have already been deported and have resorted to living on the streets.

Unlike other refugee problems, the Venezuelan crisis is not the product of everyday military conflict. However,  the hardships Venezuelans experience every day are not any different from those experienced in an ongoing war zone. Since 2013 the economy of Venezuela has shrunk by 65 per cent, the biggest recession from outside of the war in 45 years. The only near comparisons are countries experiencing armed warfare, such as Liberia, where 90 per cent of the country’s GDP was decimated during its brutal civil war. Nonetheless, the Venezuelan exodus is a unique displacement crisis because of its propensity to “activate” protection systems that are not present in South-North flows and are particular to the South American setting. The Venezuelan migration has diverse legal ramifications for South American states depending on which policies are implemented, prompting us to reconsider how and if the region might be urged to maximise the protection of displaced Venezuelans.

The U.N. Food and Agriculture Agency reports that the malnourishment incidence in the country has quintupled since 2012, and the U.N. forecasts that 300,000 people’s health is in danger owing to insufficient access to emergency care and emergency care drugs. In reality, Venezuela is fast turning into a rogue state. Prolonged water and electricity scarcity seem to be normal, and pervasive aggression carried out with the assistance of government security forces—makes the nation one of the most dangerous on the globe. 

Most Latin American countries have recognized the expanded definition of refugees under the Cartagena Decree of 1984 in their respective domestic legislation. In the light of the massive deportation of Venezuelans, and the background of the tightening of policies coupled with the ever pervasive stereotypes on immigration, generally and targeted against the Venezuelan population – specifically, it is important to address the promising implications of the renewed definition of Refugess, by the Latin American countries and governmental agencies. This article discusses the complexities of implementing the above-stated convention and the definition of refugees entailed threin, its situational aspects, in lthe purview of the severe breach of human rights of Venezuelan refugees. To this end, the article lays down a methodology for interpreting and applying this specific situational aspect to the Venezuelan exodus. The author in this article reasons that South America’s decision of not awarding Venezuelan’s the status of a refugee shall draw the potential application of “the International Convention on the Defense of the Rights of All Migrant Workers and Representatives of Their Communities (ICRMW)” and that implementing the respective legislation shall attract and facilitate advocacy measures from various social factions by pressing the host States to approbate important migrant-specific privileges to the Venezuelans. 

BATTLING A WINTER OF HOMELESSNESS AND POVERTY 

The Venezuelan exodus had initially been able to summon the spirit of “the 1984 Cartagena Declaration” and stir a debate on the applicability of the regional extended refugee definition, enshrined in host States’ domestic legislation. Even though, a majority of the migrated Venezuelans would not satify the criteria to be declared a refugee in a south-north displacement situation, considering the more restrive definition of the term from 1951. Scholars, academics and the UNHCR have suggested as a solution to the problem at hand that Venezuelans may find shelter in South America on other legitimate constitutional grounds of suffering a major humanitarian crisis and human rights violations by citing how the governing circumstances back at home had disrupted the civil order significantly.

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Instead of adopting a coordinated solution to the situation, the Latin American countries appeared hesitant to follow a standardised approach to provide asylum to the Venezuelans and opted for them to seek the transitional security route. The countries have been witnessed to avoid the responsibilities that arise with the granting of the status of refugee in the long-run. South American governmental agencies have started issuing conditional stay visas and emergency visas, allowing Venezuelans admission to their job sector and access to social facilities, albeit to a limited degree and for the temporary duration of their stay. 

For example, the Peru Temporary Stay Permit (PEP) enables Venezuelans to obtain jobs for just a year, without being provided with the “Foreigner Identification Card (Carné de Extranjería)” documentation required by any citizens for purposes of benefitting from Peru’s Robust Health Facility “(Sistema Integral de Salud, SIS)”.  A related case is the “Permiso Especial de Permanencia (PEP)” of Colombia, which gives Venezuelans a working visa but only for two years coupled with an additional requirement to depart the nation at the end of the visa permit, counter to the universal concept of non-refoulment. Chile and Ecuador have also adopted rather stringent approaches in agreeing to enact the  “Democratic Obligation Visa (Visa de Responsabilidad Democrática)” and the “Exceptional Visa on Humanitarian Grounds (Visa Excepcional for Razones Humanitarias)” respectively in light of the increasing inflows of refugees since 2018. 

Since these ad-hoc security mechanisms are built-in contravention to any specific normative structures, with major foreign oversight, host countries ultimately enact arbitrary amendments. Therefore, in light of the prolonging of the Venezuelan migration and the host states in South America appearing to disregard strategic advice by UNHCR and specialised academics, it is a challenge to successfully facilitate the protection of the interests of distressed Venezuelans in the country.

The extraordinary nature of the Venezuelan crisis, however, seems to be that disregarding the spirit of “the Cartagena protocol” may pave the path for the initialization of another security and protection mechanism: “the ICRMW”. One of the most detailed international agreement concerned with the welfare of migrants and representatives of their communities, “the ICRMW” imposes substantial duties under international humanitarian and human rights law on South American state parties and establishes an alternate avenue by which to lobby for the security of the rights of homeless Venezuelans in South America.

ICRMW AND IT’S IMPLEMENTATION 

The primary element of “the ICRMW’s” potential application to the refugee crisis in Venezuela lies in its interpretation. After the incorporation of “Article 2(1)” a “migrant worker” under the convention is defined as an individual “who is to be engaged, or has been engaged or is engaged in a remunerated activity in a State of which he or she is not a national.” “Article 3(d)” however, at the same time enumerates that “the ICRMW” shall not entail “immigrants and stateless individuals”. However, if the dispossessed Venezuelans in the above-stated context are not approbated the status of a refugee but are provided with work permits instead, they can be categorized under “the ICRMW” in sync with the convention’s description of a migrant worker. In such a situation the protection provided under the act can be attracted.

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The convention in addition to strengthening the security of universal human rights, including “the right to life and liberty (Art. 9)”, “the prohibition of brutality or cruelty, inhuman or degrading treatment or punishment (Art. 10)”, “slavery or servitude and forced or compulsory labour (Art. 11)” as well as “the right to freedom of thought, religion and conscience (Art. 12)”, “the ICRMW” also focuses on the socio-economic rights of migrant workers. Considering the same aspects is important because, unhindered access to job opportunities, health and education will inevitably further the inclusion of relocated Venezuelans into the host countries in South America. 

The ICRMW provides that all migrants irrespective of their legal status are obligated “to enjoy not less favourable treatment than that which applies to nationals of the State of employment concerning remuneration” in addition to other employment opportunities such as “extra hours, working hours, weekly rest, paid holidays and security (Article 25(1))”. Of more pertinence is the fact that state parties are obligated to “take all appropriate measures” in guaranteeing that the equal protection of the refugees is not influenced “by any irregularity in their residence or employment (Art. 25(3))”. An especially significant responsibility of South American government bodies is the latter protection under “article 25(3)”. Considering most potential employers in the provinces are unaware of the provisional permits currently existing allowing Venezuelans to enter the job market, it is almost impossible for dispossessed Venezuelans to gain entrance to the formal labour markets (e.g., only four per cent of PEP entered the formal job market as of March 2019, in Columbia).

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Additionally, “The ICRMW” stipulates legal immigrants shall “enjoy equal treatment with nationals of the state of employment” in accessing admission to schools, accommodation, welfare and medical service providers, along with other liberties (Art. 43). However, considering that short term working and humanistic visas in the province do not completely assure access to services of such kind, South American government agencies must do more to make sure that destitute migrants from Venezuela and surrounding states are effectively integrated into their society. It is also worth remembering that, “the ICRMW” does not provide security to illegal migrants labours outside the purview of labour rights, which seems to be inadequate in the context of the tens of thousands of Venezuelans who reside in the country with no documents or approvals. Conversely, article 28 affirms that essential healthcare treatments should not be denied to people irrespective of their status, although “Article 69” allows the respective host states to partake reasonable steps in ensuring “where migrant workers and representatives of their families are in an irregular condition within their jurisdiction, such a situation should not persist.”  

 “The ICRMW” forbids the host states from expelling migrant labourers or their family members from their respective jurisdictions, except for the guidelines laid out in their domestic law which “should take into account the humanitarian considerations and the length of time that the person concerned has already resided in the State of employment (Art. 56)” the article enumerates. It is a critical responsibility of the South America host countries to effectively ratify the above-mentioned provision of “the ICRMW” since conditional work and humane visas are explicitly intended for purposes of ultimately facilitating the relocation of Venezuelans to their home country. In this sense,  the interruption of conditional working visas and humanitarian visas, given the continuing Venezuelan refugee catastrophe and the prolonged stay of many Venezuelans in the area, could violate the spirit of international humanitarian and human rights law.

THE WAY AHEAD 

Confronted with the likelihood that exiled Venezuelans will stay abroad for the coming decades, the strategies of South American policymakers have been guided towards a transitional security mechanism that is, that at its heart, a reversion based approach. Ironically, however, ignoring the Cartagena Resolution in the background of Venezuela could trigger the applicability of the ICRMW, lift the privileges approbated to displaced Venezuelans to the extent of member State citizens in a multitude of environments, and push authorities to regularise illegal Venezuelans. In this context, the primary issue/concern for government officials in the nation ought not to be how to prevent Venezuelans from joining the labour market or remaining in their state, but rather how to handle mass deportation effectively, which would eventually continue to happen, either by normal or intermittent networks. 

In exploring the rationality of South America’s interim security system, this paper has adopted a realistic approach that proposes ICRMW as a potential tool to increase peaceful political activism in the field. Typically neglected due to its low acceptance and ratification pace, ICRMW is developing in South America as a significant conduit of international law to persuade host States to secure the rights of marginalized Venezuelans. However, it is necessary to note that refugee law constitutes the most suitable area of security for distressed Venezuelans, a course that the UNHCR and the Academy should continue to emphasise and enact on.

By Indrasish Majumdar

Student at National Law University, Odisha

Editor ISLR

https://www.linkedin.com/in/indrasish-majumder-ba47561a0

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