By Alexandra Castro (University Externado de Colombia), GLOBALCIT collaborator.
On 23 January 2020, the Colombian Constitutional Court adopted an important decision in a case dealing with access to nationality for children born in the Colombian territory to Venezuelan parents who are at risk of becoming stateless. The Court agreed with the applicants’ request and decided that Colombian authorities have to register the children born in Colombia to Venezuelan parents with irregular status as Colombian nationals. In particular, the Court ruled that existing norms may be disregarded if there is a particular situation that requires the protection of constitutional rights.
This decision represents a benchmark not only for the analysis of statelessness, but also for the study of the attitude that should be adopted by the local authorities in order to protect the migrants’ human rights, especially of those in need of special protection, such as children and refugees. Before analysing the Court Ruling more in detail it is important to briefly explain the context in which the decision was made.
The migratory crisis in Venezuela and the risk of statelessness for children born in Colombia
The current migratory movement triggered by the crisis in Venezuela has been described as the most important one in the recent history of the American Continent as more than four million Venezuelans have left the country since 2015 as a result of the crisis. Every day, at least 5000 Venezuelans leave their country to flee from starvation, lack of medicines, hyperinflation, violence and insecurity.
Around 1,6m Venezuelans are now living in Colombia (862k are living in Peru, and 385k in Ecuador); many others cross the border every day to stock up food and medicines, go to hospitals, and attend school. This phenomenon has overstretched the capacity of local authorities, who were unprepared to deal with such migratory flows. Colombia has adopted several measures with the aim to control migration without closing borders or criminalising irregular migration. Unlike 11 other countries of the region, Colombia did not establish a visa requirement for Venezuelans. Instead, several special permits of residence were created to grant regular status to some migrants and allow them to work, one of these being the Special Permit of Residence. These measures are far from being perfect and many Venezuelans living in Colombia are still in an irregular status.
From 2015, more than 23k children were born in Colombia to Venezuelan parents. Since the Constitution does not grant a ius soli right to citizenship, these children are not automatically Colombian citizens; their parents need to prove that at the moment of the birth they were legal residents in the country. For most Venezuelans this represents a major obstacle: many of them are in an irregular status and even for those who have the Special Permit of Residence, this document is not considered as a proof of legal residence for the purpose of nationality acquisition. Access to the Venezuelan nationality is impossible: the two countries have broken their diplomatic relations and, as a consequence, Venezuela does not have a consular office in Colombia. As a result, children born in Colombia to Venezuelan parents were at risk to become stateless while living in Colombia, as they could get neither the nationality of their parents nor the nationality of the country where they were born.
This situation changed in August 2019 with Resolution 8470 and later in September with Law 1997. Both norms create an exception to the general procedure in order to allow the children of Venezuelan parents born in Colombia between 2015 and 2021 to have access to Colombian nationality. The two cases examined by the Constitutional Court date from before these last two norms were adopted. In this sense it could be said that the decision is unnecessary; however, the arguments of the Court and the remarks on the government’s decisions make this judgment a benchmark for the fight against statelessness. Three elements in particular make this decision special.
The Court considers a broad interpretation of the migrants’ human rights
First, in order to determine the reach of the right to nationality and the protection against statelessness, the Court analyses not only existing constitutional norms and binding human rights treaties, but also many other instruments from what is called the “international corpus iuris”. These include General Commentaries from committees monitoring the implementation of international conventions, recommendations from the Inter-American Commission, Consultative Opinions from the Inter-American Court of Human Rights, and jurisprudence of this tribunal. While some of these instruments are not directly binding, the Court judges that they need to be taken into account as they “provide fundamental elements to understand the scope of the right to nationality of children who are at risk of statelessness in Colombia”. The joint interpretation of all the human rights standards contributes to the process of interpretation, reinforcement and protection of such rights. It is not very often that states apply this corpus iuris to migrants, as they are very reluctant to recognise a broad interpretation of the migrants’ rights.
The Court invites the authorities to disregard existing and binding norms in order to protect the rights of migrants.
Second, the Tribunal criticised the decisions of judges, the actions of the Registry Authority and the Ministry of Foreign Affairs which, taking into account the particular situation of the children, decided to apply existing norms without invoking the “exception of unconstitutionality”. This is a constitutional mechanism for a diffuse constitutional control that allows all authorities to disregard the application of a norm under certain concrete circumstances whenever they find that the application of such norm could represent a violation of the Constitution. This exception is not often used, especially when the particular case involves migrants.
Several human rights organisations and scholars participated in the procedure before the Court
Third, human rights organisations and scholars supported the petition and provided details of the vulnerable situation of the petitioners and of the stateless. As a result, the Court did not discuss the fact that the children risked becoming stateless, considering this as proven. Even if a deeper consideration about statelessness is missing and the Court could have seized the opportunity to analyse how the constitutional norms may make it difficult to access nationality and may create a risk of statelessness not only for Venezuelans but also for other nationalities, we must point out the remarkable role of civil society organisations whose interventions and joint work were decisive.
it comes to nationality, borders and foreigners, national courts traditionally
hide behind their sovereignty and consider their acting as a consequence of
their absolute power, regardless of the particular vulnerability of certain
migrants. In this specific case, the Colombian Court shows how human rights can
be put above sovereignty and control purposes in order to provide protection to
vulnerable migrants even when this entails disregarding the application of
existing norms. In a global context where migrants’ rights are usually
interpreted in a very restrictive way, where the superior interest of the minor
is disregarded, this decision of the Colombian Court appears as a rare example
of how judges should act in order to put the children’s rights before the states’
migration control interests.
 On 31 October 2019, 719k Venezuelans had a regular status, while 912k were irregular.
 About this control see: Magaldi Serna, 2013, Jalil Alejandro, “Le caractère concret du control de constitutionalité en Colombie”. In: Annuaire international de Justice Constitutionnelle. Aix en Provence: PUAM,. Pp 35-43.