by Diego Acosta
Over the last 15 years, South American governments and regional organisations have adopted an expansive discourse about migration that entails welcoming all migrants and promoting the free movement rights of foreigners. At a time when the European Union (EU) free movement regime has suffered a major setback with the United Kingdom voting to leave the bloc—an outcome heavily influenced by concerns over intra-EU mobility—South America’s move seems all the more noteworthy.
In contrast to their counterparts in Europe and the United States, South American politicians and civil servants stress the universality of migrants’ rights and the inefficacy of restrictive responses to migration. Three principles, which can largely be positioned under the umbrella of equal treatment, guide this approach: support for open borders; the understanding of migration as a fundamental right; and the noncriminalisation of irregular migration. In many cases, these values are enshrined in laws governing migration at national and regional levels. While similar principles can be recognised in other legal systems, such as the European Union, what distinguishes the South American legal framework is the aspirational application of these principles to all migrants.
This blog examines the emerging South American model of free movement at regional and national levels, and discusses its implications for such projects more generally. Even as the global North takes an increasingly restrictive approach to migration, regions in the global South are taking steps in the direction of free movement for at least some categories of regional migrants. South America, which has taken a significant action with the adoption of the Mercosur Residence Agreement, represents a crucial experiment that merits further attention.
Historical overview of mobility in the region
Open borders and equal treatment of foreigners are not new concepts in South America. On the contrary, they are part of a constitutional tradition that began when most of the countries in the region gained independence during the early nineteenth century. In 1811, the first Venezuelan Constitution introduced a clause later replicated by all countries in the region: “All foreigners of any nation will be admitted into the State.” Equal treatment, mainly with regard to civil rights, and a rapid path toward naturalisation were also incorporated, chiefly to lure European migrants. Such settlement was intended as a means of building civilisation by those considered to be civilised, i.e. Europeans— summarised by the famous slogan from Argentine political theorist Juan Bautista Alberdi: “To govern is to populate.” Immigration by others deemed less virtuous, such as Ottomans, Indians, Chinese, or Africans, was to be avoided. Even with that caveat in mind, the free movement enshrined in early South American constitutions represented a radical break with the prior colonial system, where mobility was completely restricted.
Various international agreements and national laws afforded migrants from other former Spanish possessions in the Americas even better treatment than foreigners in general, including preferential access to nationality, recognition of diplomas, and consular protection abroad. In other words, already in the nineteenth century the Hispano-American regional citizen had emerged as a legal figure between the national and the foreigner. However, regional migration flows were scant, with most migrants coming from Europe, primarily to Argentina and Brazil.
While South America as a whole was second only to the United States in receiving migrants during the nineteenth century, this openness steadily eroded. Various economic, social, and political developments over the course of the twentieth century led to increasingly restrictive migration policies in the region. These developments included reverberations in the region from discriminatory immigration policies introduced in the United States in the late nineteenth century, and fallout from the 1929 global economic crisis. This restrictive trend reached its peak in the 1970s and 1980s, when military dictatorships gripped most countries in the South American region. Migration laws adopted during those two decades fell in line with the prevalent securitised immigration rhetoric, depicting the foreigner as a threat not worthy of extensive rights.
From the 1960s onward, three crucial developments emerged that help explain recent South American debates. First, European immigration to the region almost completely disappeared. Second, the number of South Americans emigrating surged, due to political instability and domestic economic crises. These migrants primarily headed to the United States and Europe, but many also left for other countries in the region. Third, as a result of the previous two trends, regional migrants became a growing share of non-nationals in South America. While migrants accounted for just 5.1 million of the 406 million residents in South America in 2015—far less than half the global 3.3 percent share—immigrants from elsewhere in the region accounted for 63 percent of the foreign-born total, according to the Organisation for Economic Cooperation and Development (OECD) and the Organisation of American States (OAS). Paraguay and Argentina have the largest shares of regional migrants in their non-national populations, with 90 percent and 80 percent respectively, and Brazil has the lowest with 30 percent.
Policies on free movement of regional citizens since 2000
Since the beginning of the twenty-first century, South America has taken significant steps toward a legislative framework on migration that is heavily anchored on the respect of human rights, the principle of nondiscrimination, and the understanding that crossing a border should not necessarily constitute a loss of rights.
Migration has become an important agenda item at national and regional levels due to a combination of factors. First, a series of economic crises affecting most countries in the region led to an uptick in emigration within and beyond South America. Second, a return to democracy after decades of military dictatorships renewed the role of international law. Third, various governments became willing to introduce social items to the agendas of both Mercosur and the Andean Community (CAN), another regional bloc, which had grown stagnant in their original purely economic aims to increase trade and establish internal markets. Finally, where national governments in South America and elsewhere previously saw emigrants as potential traitors and took steps to disenfranchise and denaturalise them, policymakers now viewed migrants as valuable ambassadors and senders of remittances to whom dual citizenship and voting rights should be guaranteed. This shift in perception is clear in the numerous laws adopted since the 1990s allowing dual citizenship and external voting.
On many occasions, this concern with emigrants, coupled with the new emigration flows, has led South American countries to criticise fiercely the adoption of restrictive frameworks in the European Union and the United States. Human-rights organisations, migrant associations, international organisations, and academics have found in these critiques an opportunity to demand that South American governments amend their own restrictive migration laws. Such steps are visible in regional treaties as well as in the adoption of more liberal laws at the national level, including in Argentina (2004), Uruguay (2008), Bolivia (2013), Peru (2015), and the new constitution adopted in Ecuador (2008).
This backdrop helps to explain the adoption of the landmark 2002 Mercosur Residence Agreement, the result of a particular historical conjunction. Brazil held the rotating Mercosur presidency at the time and Brazilian President Fernando Enrique Cardoso wanted to end his final term leaving his personal stamp via a measure advancing regional integration in the social sphere. On August 30, 2002, Brazil proposed a migration amnesty for Mercosur nationals living elsewhere in the bloc without authorisation. (Accurate estimates of the size of this population are hard to come by.) As originally proposed, the agreement would have initiated an exceptional regularisation procedure over a six-month period for unauthorised regional migrants in all four Member States at the time (Argentina, Brazil, Paraguay, and Uruguay). Based on its own experience, having already conducted numerous regularisations, Argentina was unconvinced that this would lead to any long-term solution. Thus, it offered a counterproposal to establish a permanent, rather than a temporary, mechanism for Mercosur citizens to gain access to regular status.
As signed, the treaty transformed the migration regime for South Americans. It provides that nationals of Mercosur Member States—a group that expanded to include Bolivia and Venezuela—and Associate Member States Chile, Colombia, Ecuador, Guyana, Peru, and Suriname, may reside and work for a period of two years in another Member State if they can prove citizenship and a clean criminal record (Guyana, Suriname, and Venezuela must still incorporate the Residence Agreement into national legislation before it can take effect). The treaty also provides a number of rights to these migrants, including the right to equal working conditions, family reunification, and access to education for their children. After two years, the permit may be transformed into permanent residency.
Unlike in the European Union, the driving force behind the Mercosur agreement was to find a solution to irregular migration and not to pave the way for an internal trade market—despite the fact that the latter represented the initial institutional Mercosur goal. The agreement’s main objective, as declared in the preamble, is to solve the situation of intraregional irregular migration while deepening the regional integration process and implementing a policy of free circulation of people. This difference is crucial to understanding the structure of the agreement itself.
In a further contrast to the European free movement regime, where EU migrants must demonstrate employment or sufficient resources after three months, there is no such requirement in South America. Considering the large degree of informality in the South American labour market, affecting up to 47 percent of all nonagricultural workers according to the International Labor Organization, such a condition would render the agreement meaningless for large segments of the population. If a migrant chooses to become a permanent resident after two years, he or she must then prove they possess enough resources to sustain him- or herself in the host state.
Analyses of the effects of the agreement remain scarce and incomplete. Between 2004 and 2013, nearly 2 million South Americans obtained a temporary residence permit in one of the nine countries implementing the agreement, according to a 2014 report by the International Organisation for Migration (IOM). Argentina, Chile, and Brazil have seen the largest increase in permits granted each year. However, this does not necessarily indicate an increase in regional flows due to the agreement, considering a large number of those who have obtained such permits already resided in the host country when it came into force.
With regard to implementation of the agreement, the 2014 IOM report highlights several problems for certain countries. These include lack of administrative resources to deal with applications, introduction of additional requirements not included in the original agreement, or lack of information generally available to those who could benefit from it. Moreover, the agreement has not been implemented consistently in each country. Unlike free mobility in the European Union, where EU law supersedes national law, the Mercosur agreement is an international treaty implemented by individual countries for themselves. For example, although Chile has received a large number of regional migrants from Ecuador, Peru, and Colombia, it does not apply the agreement to nationals of these countries. Argentina, by contrast, extends the agreement to all other 11 countries in South America, including those that have yet to implement it: Guyana, Suriname, and Venezuela. In turn, Uruguay directly grants permanent residency to those applying for a permit, rather than first offering a two-year temporary one. Finally, the agreement mentions the right to equal treatment with regard to social, cultural, and economic rights but does not further define this. Consequently, discrimination with regard to aspects such as welfare benefits is common.
Toward a South American citizenship? Advances and inconsistencies in the regional model
Having already taken an important step toward free movement with the Mercosur Residence Agreement, the region is now moving toward a deepening of the regime with the aim of eventually establishing a South American citizenship. Since 2010, at least three regional organisations have debated this proposed supranational status: Mercosur itself, CAN, and the Union of South American Nations (UNASUR). The matter has also been discussed at the South American Conference on Migration (SACM), an annual meeting of all 12 countries in the region, which adopts nonbinding declarations. Finally, a recent international organisation, a Latin American trade bloc called the Pacific Alliance (la Alianza del Pacífico), formed in 2011 and has also begun to discuss free movement of workers. Both CAN and Mercosur have adopted other parallel measures facilitating mobility, including the recognition of national identification documents to cross regional borders or special lanes at airports for regional migrants. However, the full abolition of internal border controls, something similar to Europe’s Schengen Area, has not happened in the region.
An immediate question is obvious: which regional organisation should take responsibility for ushering in an expanded mobility regime? Three possibilities, each with plausible elements, emerge. The first is an improved version of the Mercosur Agreement. Indeed, the Mercosur Migration Forum has been working on the consolidation of all Mercosur migration agreements into a single instrument, which would also deepen some of the aspects already in place. Second, an agreement could be adopted at the UNASUR level, something along the lines of a UNASUR Residence Agreement. This would take the form of an international agreement and thus depend on the willingness of each individual state to ratify it. Under both scenarios, since there is no supranational court, the agreement would be subject to interpretation by national administrations and courts, thus inevitably leading to divergent approaches, rights, and legal statuses in each country.
Legislation at the CAN level is the only option with direct effect, applicability, and supremacy vis-à-vis national law. CAN also has a supranational tribunal, the Andean Court of Justice, which has already decided two cases on the matter. Given the strength of the framework of the CAN legislation, at least in theory, it might be unwise to renounce its continuing development in favour of a new Mercosur agreement. Both institutions would need to make sure, however, that any parallel instruments do not conflict with each other. Furthermore, CAN only includes four countries (Bolivia, Colombia, Ecuador and Peru) and its procedural wheels turn slowly; for example, its most important legislation on mobility, Decision 545, took years to achieve. Thus, CAN Member States need to continue being part of any future improved Mercosur or new UNASUR framework in the meantime.
Given the difficulty in establishing supranational bodies in South America, one alternative would be to set up an external committee similar to those found in the UN system. Such a committee, potentially under the umbrella of the IOM and composed of independent experts not necessarily from the region, could receive information from Member States and other institutions and individuals on a regular basis and offer opinions that could be taken into account by national legislatures and courts as needed. A second, arguably less intrusive option would be to institutionalize a report by IOM ahead of each yearly meeting of the SACM, which would analyse the implementation of mobility instruments in place in each country. This would facilitate bilateral and multilateral dialogue as well as provide peer pressure for countries lagging behind on mobility.
South America at a crossroads
South America is now at a crucial crossroads on regional mobility, with much remaining to be done. New laws are only slowly—and not without conflict and detours—catching up with the very open public discourse toward migrants. If adopted, legislation being debated in Brazil, Chile, and Ecuador that would further liberalise migration would be a good way to measure levels of ongoing commitment. Judges and civil servants would also need to be trained in these new instruments to ensure effective implementation and application of rights.
A number of challenges remain to the full realisation of the South American free mobility vision. It seems difficult to establish a future regional citizenship exclusively through intergovernmental means. Any supranational efforts at establishing a new status would need to convince national authorities and legislatures that such a citizenship would not make the national status obsolete, but rather would strengthen it and provide further rights and protection for thousands of their nationals abroad. The fact that South America has such a low share of migrants among the general population, well below the world average, could also make it possible to move toward a regional mobility scheme that includes not only nationals from the 12 states, but also extraregional migrants as well. Such proposals are already being discussed and would represent a step beyond EU or other regional mobility regimes. However, recent restrictive responses by Colombia and Ecuador with regard to a small number of Cuban and Haitian nationals in an irregular situation in their territories remind us that restrictiveness is not the sole domain of the global North.
On free mobility, South America’s model, at least on paper, is based on a vision of globalization where the individual plays a preponderant role. It is estimated that around 120 countries are part of agreements facilitating free movement for at least certain categories of migrants at regional levels. At a moment when the EU mobility regime is under significant stress, South America has the opportunity to position itself as a model for the rest of the world. Doing so would require the region to take further action to solidify a free mobility scheme in the near future, as well as restrain restrictive responses that occasionally surface. The adoption of new migration laws, currently under consideration in Brazil, Chile, and Ecuador, as well as the implementation of the Mercosur Residence Agreement in each country, are the next steps the region must take to continue moving its legislative framework forward to catch up with its discourse—one that is perhaps the most expansive surrounding migration in the world.
This article was first published by the Migration Policy Institute’s online journal, the Migration Information Source: http://www.migrationpolicy.org/article/free-movement-south-america-emergence-alternative-model