Amicus curiae on Venezuelan immigration to Ecuador

Washington, D.C., May 8, 2019

Honorable Justice Hernán Salgado Pesantes
President of the Ecuadorian Constitutional Court
Quito – ECUADOR

Case: 0014-19-IN

Subject: Human Rights Watch Amicus curiae on Venezuelan immigration to Ecuador

José Miguel Vivanco, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States, presents this amicus brief to the Honorable Constitutional Court of Ecuador in the case 0014-19-IN concerning government requirements for Venezuelan immigration to Ecuador. For that purpose, we respectfully state:

1. Purpose and Summary of this Submission

Human Rights Watch respectfully requests that the Ecuadorian Constitutional Court accept this submission for its consideration of the international legal arguments regarding government requirements for Venezuelan immigration to Ecuador.  

The issue presented before the court is whether a series of ministerial decisions adopted by members of President Lenin Moreno’s cabinet to regulate requirements for Venezuelans to enter Ecuador are consistent with Ecuador’s constitution. This brief is structured as follows: Section II of this brief provides background on Human Rights Watch and our interest in the case. Section III provides an overview of Venezuelan immigration to Ecuador and a brief description of the Ecuadorean government’s decisions under consideration of this Honorable Court. Section IV presents detailed information on Venezuela’s humanitarian emergency, which is the main reason that is causing Venezuelans to flee their country. And Section V outlines applicable international standards on refugee law.

2. Background on Human Rights Watch and Our Interest in the Case

Human Rights Watch is a nongovernmental organization that has been dedicated to protecting human rights since 1978 (www.hrw.org). The organization is independent and non-partisan. It receives no money, either directly or indirectly, from any government. It is headquartered in New York and has offices in several other cities in different continents. Human Rights Watch enjoys consultative status with the Organization of American States, the United Nations Economic and Social Council, and the Council of Europe, and maintains a working relationship with the Organization of African Unity.

Human Rights Watch regularly monitors the human rights situation in Venezuela and Ecuador, and has repeatedly exposed and expressed concern regarding violations to fundamental rights recognized in international treaties ratified by Ecuador.

As part of its mandate, Human Rights Watch uses judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.

3. Venezuelan Immigration to Ecuador

According to the Joint Special Representative of the Office of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) for Venezuelan refugees and migrants, more than 3.7 million Venezuelans have fled their country.[1] An estimated 250,000 Venezuelans have arrived in Ecuador.[2] The UN Office of the High Commissioner for Refugees has reported that, as of December 2018, more than 13,000 Venezuelans had sought asylum and more than 99,000 others had other types of regular status.[3]

In August 2018, Ecuadorean authorities announced that they would require Venezuelans to present a passport to enter the country.[4] The Ecuadorean government withdrew the measure after a judge ruled against it, but also announced it would require Venezuelans without passports to present valid certification of their Venezuelan identity cards issued by an international or regional authority recognized by Ecuador, or by competent Venezuelan authorities.[5] In January 2019, Ecuadorean authorities required Venezuelans to present their criminal records in the country where they had lived for the past five years.[6] And in February, Ecuador adopted a resolution including some exceptions to the requirement to present criminal records, exempting children, people with Ecuadorean family, people with resident status in Ecuador, and people in transit to another country.[7]

On March 11, 2019, the Ombudsman Office, together with representatives from various Ecuadorean organizations, filed a case asking this Honorable Constitutional Court to declare that these decisions adopted by Ecuadorean authorities were unconstitutional. They argued these rules discriminated against Venezuelans by imposing additional requirements on them beyond those provided for in Ecuadorean law for nationals of all South American countries, that they could exacerbate xenophobia and that they undermined Venezuelans’ right to seek asylum and the principle of non-refoulment by imposing a requirement that limited their ability to enter the country to seek asylum.[8]

On March 27, 2019, three justices from this Honorable Court adopted precautionary measures that suspended the Ecuadorean authorities’ decisions while the case is under consideration.[9]

4. Venezuela’s Humanitarian Emergency

Many Venezuelans fleeing their country today claim they are leaving due to the worsening situation in the country that does not allow them to have access to the most basic health care or to feed their families.[10] They are fleeing a very real crisis: The combination of medicine and food shortages, together with the spread of diseases across Venezuela’s borders, amounts to a complex humanitarian emergency.[11]

Health Crisis

Venezuela’s health system has been in decline since 2012, with conditions worsening drastically since 2017. A nation-wide blackout in March that lasted more than a day, and intermittent blackouts since then, have further undermined the ability of public hospitals to adequately respond to the medical needs of Venezuelans.

Venezuela is now routinely experiencing outbreaks of vaccine-preventable diseases that had once been eliminated in the country. These outbreaks suggest a serious decline in vaccination coverage. The Pan American Health Organization (PAHO) reports:

• Between 2008 and 2015, only a single case of measles was recorded (in 2012). Since June 2017, more than 9,300 cases of measles have been reported, of which more than 6,200 have been confirmed.
• Venezuela did not experience a single case of diphtheria between 2006 and 2015, but more than 2,500 suspected cases have been reported since July 2016, including more than 1,500 confirmed cases.

The World Health Organization (WHO) reports that confirmed malaria cases in Venezuela have consistently increased in recent years—from fewer than 36,000 in 2009 to more than 414,000 in 2017. An official document co-authored by the Venezuelan Health Ministry shows that malaria is now endemic in Venezuela. Health experts attribute this to reductions in mosquito-control activities, shortages in medication to treat the disease, and illegal mining activities that promote mosquito breeding by creating pools of water.

The number of reported tuberculosis cases in Venezuela increased from 6,000 in 2014 to 7,800 in 2016, and preliminary reports indicate more than 13,000 cases in 2017. The TB incidence rate has increased constantly since 2014, reaching 42 per 100,000 in 2017—the highest seen in Venezuela in 40 years.

It is difficult to estimate recent HIV trends in Venezuela: HIV testing has been greatly reduced because of a lack of test kits, and no surveillance data on new HIV diagnoses has been published since 2016. Similarly, statistics on HIV-related mortality are not available after 2015. However, according to the last data available, both new HIV infections and HIV-related deaths have been sharply increasing.

Venezuela is the only country in the world where large numbers of individuals living with HIV have been forced to discontinue their treatment as a result of the lack of availability of antiretroviral (ARV) medicines. A 2018 PAHO report estimated that nearly nine of ten Venezuelans living with HIV registered by the government (69,308 of 79,467 people, or 87 percent) were not receiving ARV treatment, though the actual number of people who need ARVs is unknown.

The latest official statistics available from the Venezuelan Ministry of Health indicate that in 2016, maternal mortality rose 65 percent and infant mortality rose 30 percent in just one year. While infant mortality has risen throughout the region, Venezuela is the only country in South America that has risen back to infant mortality rate levels of the 1990s. The health minister who made these statistics public in early 2017 was fired a few days later, and the Ministry of Health has not released any epidemiological data since then.

Nutrition Crisis

Hunger, malnutrition, and severe shortages of food are widespread in Venezuela. Many of the dozens of Venezuelans whom the Human Rights Watch and Johns Hopkins team interviewed at the border said they had lost weight and were eating one or two meals a day back home. For some, a meal consisted solely of yuca or tinned sardines.

The Venezuelan government has not published nationwide nutrition data since 2007, but available evidence suggests malnutrition is high:

• In 2018, the UN’s Food and Agriculture Organization (FAO) indicated that between 2015 and 2017, 11.7 percent of Venezuela’s population—3.7 million people—was undernourished, up from less than 5 percent between 2008 and 2013.
• In February 2019, a spokesperson for WHO confirmed that “Venezuela had indeed experienced an increase in the number of undernourished persons,” based on a joint report by FAO, PAHO, UN Children’s Emergency Fund (UNICEF), and the World Food Programme (WFP).
• A nationally representative survey by three prestigious universities in Venezuela concluded that 80 percent of Venezuelan households are food insecure, meaning they do not have a reliable source of food, and that nearly two-thirds of people surveyed had lost weight (on average 11 kilograms or nearly 25 pounds) in 2017.
• Cáritas Venezuela, a Catholic humanitarian organization that monitors nutrition and provides nutritional aid to children in low-income communities in Caracas and several states, reported that moderate acute malnutrition (MAM) and severe acute malnutrition (SAM) among children under age 5 increased from 10 percent in February 2017 to 17 percent in March 2018—a level indicative of a crisis, based on WHO standards. Subsequent reports found that the overall rate in those states had decreased to 13.5 percent in July and 9.6 percent in September, but rates increased in the same period from 11.6 to 13.4 percent in Miranda state, and from 6 to 11.8 percent in Sucre state.
• A September 2018 Cáritas Venezuela survey found that 21 percent of pregnant women in low-income communities had moderate or severe acute malnutrition.
• Several hospitals across the country are reporting increases in the number of children admitted with moderate or severe acute malnutrition, as well as deaths of children with acute malnutrition, according to information provided by Venezuelan health professionals to Human Rights Watch and Johns Hopkins University.

5. Applicable International Standards

1. Preliminary Considerations

The Constitution of Ecuador states that international human rights treaties ratified by Ecuador are directly applicable by courts and government authorities, and that treaties that provide greater protections must be given precedence over Ecuadorian laws and the Constitution itself.[12] Ecuador has ratified international treaties including the American Convention on Human Rights (ACHR), the International Covenant on Civil and Political Rights (ICCPR), and the 1951 Convention relating to the Status of Refugees (Refugee Convention).[13]

Decisions by bodies charged with interpreting these human rights treaties provide authoritative guidance on the extent of the rights included in the treaties. Furthermore, the Inter-American Court of Human Rights, the court charged with interpreting the ACHR, has repeatedly held that states parties have a duty to take its case-law into consideration when interpreting their obligations under the ACHR. In particular, the Court has held that:

“[T]e Judiciary must exercise a sort of “conventionality control” between the domestic legal provisions which are applied to specific cases and the American Convention on Human Rights. To perform this task, the Judiciary has to take into account not only the treaty, but also the interpretation thereof made by the Inter-American Court, which is the ultimate interpreter of the American Convention.”[14]

2. Applicable Refugee Standards

The political, economic, human rights, and humanitarian crisis in Venezuela creates a mix of factors that cause Venezuelans to leave the country and makes them unable or unwilling to return. Some of these factors alone may qualify a person for refugee status, while for some others the cumulative impact of various factors could give rise to a valid claim for refugee status. In other cases, individuals fleeing Venezuela may not be able to claim refugee status but would face severe hardship if returned to Venezuela and are in urgent need of humanitarian assistance in the countries to which they have migrated.

Some Venezuelans may qualify as refugees under the definition of the 1951 Refugee Convention. Some others may be considered refugees under the broader refugee definition included in the Cartagena Declaration.

Under the 1951 Refugee Convention and its 1967 Protocol, a refugee is defined as anyone who, “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”[15]

The right not to be forcibly returned under these circumstances is called the principle of nonrefoulement. The American Convention on Human Rights, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (CAT), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Rights of the Child (CRC), and the European Convention on Human Rights (ECHR), as well as customary international law, include nonrefoulement protections.[16]

The Cartagena Declaration of 1984, while not a binding legal instrument, has provided influential normative guidance in developing the international refugee protection framework in Latin America. The Cartagena Declaration embraces a broader definition of refugee that includes “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order” (emphasis added).[17]

This provision of the declaration is of obvious potential relevance to the situation in Venezuela, but there is also a dearth of legal precedent to guide states in interpreting and applying it. The UNHCR, when interpreting the meaning of the clause “other circumstances which have seriously disturbed public order” noted that this phrase “is the least frequently applied by national adjudication bodies when determining refugee claims under the Cartagena refugee definition.” UNHCR has however maintained that in applying an analogous clause included in the OAU Refugee Convention in Africa, a “lack of food, medical services and supplies” should be taken as “factual indicators” of the existence of “events seriously disturbing public order.”[18] 

Although the Cartagena Declaration is non-binding, its refugee definition has been incorporated into the national laws or practices of 15 countries in the region, including Ecuador.[19] 

In an August 2018 preliminary ruling, a Brazilian Supreme Court judge ruled that Brazil has bound itself to respect the Cartagena Declaration’s expanded refugee definition by incorporating it into domestic law, which now recognizes as refugees “those who are forced to leave due to grave and generalized human rights violations.” The ruling, which explicitly discussed Venezuelans seeking protection in Brazil, concluded that “the expansion of the concept of refugee generates, for the State, a duty of humanitarian protection.”[20]

UNHCR has stated that “it is becoming increasingly clear that a significant number are indeed in need of international protection.”[21] UNHCR considers 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.”[22]

In a resolution published in March 2018, the Inter-American Commission on Human Rights (IACHR), an authoritative body that interprets regional human rights standards, urged Organization of America States (OAS) members to adopt a series of measures in response to massive Venezuelan immigration to the Americas.[23] These include:

• Guaranteeing refugee status to Venezuelans with a well-founded fear of persecution in case of return to Venezuela, or who consider that their life, integrity, or personal freedom would be threatened due to the violence, massive violations of human rights, and serious disturbances of public order, under the terms of the Cartagena Declaration;
• Respecting the principle of nonrefoulement of Venezuelans in danger of persecution or other serious violations of human rights, which the Commission interprets to include serious risk to their health or life due to medical conditions, in accordance with a broad interpretation of the definition of refugee in the Cartagena Declaration;
• Expanding regular, safe, accessible, and affordable channels for migration through the progressive expansion of visa liberalization and easily accessible visa facilitation regimes or other measures to legally stay in the country, taking into account the need for these mechanisms to be economically accessible and ensure access to Venezuelans who may not have all required documentation for reasons beyond their control;
• Providing humanitarian assistance to Venezuelans within national jurisdictions;
• Guaranteeing access to the right to nationality for stateless people, as well as for children of Venezuelans born abroad who are at risk of being stateless; and
• Carrying out positive measures such as educational and awareness campaigns to fight discrimination and xenophobia.

Similarly, the UNHCR issued a Guidance Note on the outflow of Venezuelans that encourages countries to consider, in addition to granting asylum to Venezuelans, the creation of “protection-oriented arrangements to enable legal stay for Venezuelans.” These arrangements should be provided by law; accessible to all Venezuelans irrespective of when they arrived in the country, with minimal or no cost; and guarantee access to basic services and fundamental rights, including access to health care, education, and shelter, freedom of movement, and family unity.[24]

Whether one qualifies under the 1951 Refugee Convention definition or under the Cartagena standard in jurisdictions where that definition is applied, refugee status would be the same with all the rights that attach to it, including the right not to be forcibly returned to the country of origin.

Since relatively few Venezuelans outside their country have had their status as refugees under the 1951 Refugee Convention or the Cartagena Declaration definition recognized, many in Latin America are living without any legal status or with various temporary or special statuses that are not explicitly linked to a need for international protection. It should also be noted that refugee status does not depend on legal presence in the receiving country or even on formal recognition. A person is a refugee when they fulfill the refugee definition. Recognition of one’s refugee status does not make a person a refugee, but is simply the formal recognition of a status to which they are entitled.  

Governments that have adopted new measures requiring Venezuelans to present valid passports in order to seek certain kinds of lawful immigration status should immediately take care to ensure that this in no way prevents Venezuelans who lack those documents from seeking refugee status or penalizes them for unauthorized entry or stay. In general, and in light of the difficulties many Venezuelans face in obtaining passports, governments should consider whether there are more flexible means of verifying the identities and nationalities of Venezuelans seeking entry.

6. Petition

For the abovementioned reasons, we ask this Honorable Court to:

1. Accept Human Rights Watch as a Friend of the Court in this case, and
2. Uphold the rights of Venezuelans fleeing to Ecuador, in light of the international standards outlined in this brief.

José Miguel Vivanco
Human Rights Watch