Venezuela, once one of Latin America’s oldest and strongest democracies with a booming economy, is in crisis.1 It made international headlines in January when Juan Guaidó, the leader of Venezuela’s National Assembly, declared himself interim president following a presidential election widely regarded as fraudulent (under Venezuela’s constitution, the leader of the National Assembly becomes interim president in the event that the presidency is vacant).2 He was soon after recognized as such by many countries, including Canada.3
Despite its history of wealth and prosperity, an economic and humanitarian crisis has caused more than 3.4 million Venezuelans to flee their country since 2014.4 Many others have left without being registered by the authorities.5 Despite these numbers, international media is reticent to describe these individuals as refugees. Rather, these individuals have been more frequently described as migrants fleeing hyperinflation, starvation, and hardship.6
As serious as they may be, none of the above-mentioned situations would entitle Venezuelans to international protection under international law or the domestic law of most countries, including Canada. Consequently, the United Nations High Commissioner for Refugees reports that only 390,000 have applied for asylum and formal recognition and protection as refugees.7 However, most international reports are missing the link between hyperinflation, starvation, and hardship and the definition of a refugee as presented in the 1951 Convention Relating to the Status of Refugees.
Article 1 of the 1951 Refugee Convention defines a refugee as: “any person 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, unwilling to avail himself of the protection of that country; or who … is unable or, owing to such fear, is unwilling to return to it.”8 Many countries, including Canada, have included this definition in their national legislation for determining who can be considered a refugee.9
The UNHCR mandate recognizes refugees on a broader basis, expanding the criteria to include individuals who are “outside their country of origin or habitual residence and unable to return there owing to serious and indiscriminate threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order.”10
More significantly, UNHCR’s expanded definition of refugees is picked up in the 1984 Cartagena Declaration on Refugees, which 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.”11
Venezuelans are fleeing their homes for many reasons; in particular, severe shortages of medicine, medical supplies, and food make it extremely difficult for many families to have access to the most basic health care and to feed their children.12 These difficulties do not fit under the 1951 Convention’s definition, but would certainly fit under the expanded Cartagena definition of “seriously disturbed public order.”
Even so, claiming international protection under the Cartagena definition proves difficult: UNHCR has noted the problems in applying this expanded definition. The phrase, other circumstances which have seriously disturbed public order, is the “least frequently applied by national adjudication bodies when determining refugee claims under the Cartagena refugee definition.”13
Consequently, Human Rights Watch reports that relatively few Venezuelans outside of their country have had their status as refugees recognized. This means that many Venezuelans are either living without any legal status or are living with temporary or special status which are “not explicitly linked to a need for international protection.”14
It is important for the international community to consider and recognize the majority of Venezuelans fleeing their homes as refugees under the stricter 1951 Convention. Human Rights Watch reports that, in addition to the economic difficulties and shortages, the Venezuelan government’s ruthless crackdown has led to thousands of arbitrary arrests, hundreds of prosecutions of civilians by military courts, and torture and other abuses against detainees.15 These arbitrary arrests and abuses by security forces and intelligence services persist, in turn forcing many out of the country.16 Indeed, Foro Penal, a Venezuelan human-rights NGO, reports that there are currently 859 political prisoners nationwide. 17 Such acts of government are prime examples of political persecution, which clearly fall under the 1951 Convention definition of a refugee.
Furthermore, when Venezuelans cite shortages and economic difficulties as reasons for leaving their country, they could be hiding details that point to political persecution. Reports are starting to emerge that a government identity card called the “carnet de la patria” is linked to both the provision of food rations and social benefits, as well as the voting process.18 This connection opens the doors for President Nicolás Maduro’s authoritarian government to cut off food and benefits from individuals deemed not sufficiently supportive of the regime,19 a clear form of political persecution. A recent report from the United Nations Office of the High Commissioner for Human Rights confirms that “a number of allegations have surfaced pointing to a political use of the carnet de la patria” and that “despite the Government’s assurances that the vote remains confidential, many people believe that they could be excluded from social programs if they did not vote for the ruling party.”20
It will be important for the international community to seek more information on the political use of the carnet de la patria. The recognition of the Venezuelan migration crisis as a real refugee problem under the Convention would entitle Venezuelan migrants to the full suite of rights and protections afforded to refugees under international law.
Kelly O’Connor is a third-year law student at McGill University. She recently completed an internship at UNHCR in Ecuador working with refugees from Venezuela and Colombia and is currently an intern in at the Inter-American Court of Human Rights. Views are her own.
End notes
1. See, for example, Moisés NaÃm and Francisco Toro, “Venezuela’s Suicide: Lessons from a failed state,” Foreign Affairs, 15 October 2015. https://www.foreignaffairs.com/articles/south-america/2018-10-15/venezuelas-suicide
2. Venezuela’s presidential election of May 2018 was widely considered to be fraudulent. See, for example, William Neuman and Nicholas Casey, “Venezuela Election Won by Maduro Amid Widespread Disillusionment,” New York Times, 20 May 2018. https://www.nytimes.com/2018/05/20/world/americas/venezuela-election.html. According to Article 233 of Venezuela’s constitution, if the National Assembly considers the Presidency to be abandoned, the President of the National Assembly shall take charge of the Presidency until a new election is organized within 30 days: https://www.constituteproject.org/constitution/Venezuela_2009.pdf ; For more on the Presidential Crisis see, for example, Sam Kiley, “The Transformation of Juan Guaidó, Venezuela’s self-declared president,” CNN, 7 February 2019. https://www.cnn.com/2019/02/07/americas/juan-guaido-profile-venezuela-kiley-intl/index.html
3. Global Affairs Canada, “Statement: Canada recognizes the interim President of Venezuela,” 23 January 2019. https://www.canada.ca/en/global-affairs/news/2019/01/canada-recognizes-the-interim-president-of-venezuela.html
4. UNHCR, “Venezuelan outflow continues unabated, stands now at 3.4 million,” 22 February 2019, https://www.unhcr.org/news/press/2019/2/5c6fb2d04/venezuelan-outflow-continues-unabated-stands-34-million.html
5. Human Rights Watch. “The Venezuelan Exodus: The Need for a Regional Response to an Unprecedented Migration Crisis.” 3 September 2018. https://www.hrw.org/report/2018/09/03/venezuelan-exodus/need-regional-response-unprecedented-migration-crisis
6. Reuters. “Fleeing hardship at home, Venezuelan migrants struggle abroad, too.” 15 October 2018. https://www.reuters.com/article/us-venezuela-migration-insight/fleeing-hardship-at-home-venezuelan-migrants-struggle-abroad-too-idUSKCN1MP192
7. UNHCR, “Venezuelan outflow continues unabated, stands now at 3.4 million,” 22 February 2019, https://www.unhcr.org/news/press/2019/2/5c6fb2d04/venezuelan-outflow-continues-unabated-stands-34-million.html; UNHCR, “Venezuela Situation: Responding to the needs of people displaced from Venezuela, Supplementary Appeal January-December 2018,” March 2018, at p. 3.
8. Convention and Protocol Relating to the Status of Refugees (1951), Resolution 2198 (XXI), United Nations General Assembly.
9. Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 96.
10. UNHCR Resettlement Handbook, UNHCR (2011) at p 81.
11. Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984, http://www.unhcr.org/refworld/ docid/3ae6b36ec.html
12. UNHCR, “Venezuelan outflow continues unabated, stands now at 3.4 million,” 22 February 2019, https://www.unhcr.org/news/press/2019/2/5c6fb2d04/venezuelan-outflow-continues-unabated-stands-34-million.html
13. UNHCR, “Guidelines on International Protection No. 12,” December 6, 2016, http://www.unhcr.org/en- us/publications/legal/58359afe7/unhcr-guidelines-international-protection-12-claims-refugee-status- related.html (accessed August 17, 2018), para. 56.
14. Human Rights Watch, op. cit., at p 12.
15. Ibid, at p 1
16. Ibid, at p 1.
17. Foro Penal, “Political Prisoners,” 9 December 2018, https://foropenal.com/en/presos-politicos/#introduccion
18. International Crisis Group, “Containing the Shock Waves from Venezuela,” 21 March 2018, at p 5 and Canada: Immigration and Refugee Board of Canada, Venezuela: The homeland card (carnet de la patria), including issuance procedures, usage, and physical characteristics; extent to which homeland cards have been distributed (2016-May 2018), 18 May 2018.
19. Reported in some publications, including: Jim Wyss and Cody Weddle, “Venezuela’s Maduro aims to turn empty stomachs into full ballot boxes,” Miami Herald, 16 May 2018.
20. OHCHR. “Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight.” June 2018 at p. 51.