Binational indigenous peoples on the Colombian–Venezuelan border: unrecognised fundamental rights

Around 20 indigenous peoples straddle the 2,219-kilometre border between Colombia and Venezuela. These groups occupy border territories that pre-date the current demarcation; their semi-nomadic culture is based on transit of the border according to cultural patterns of mobility and occupation. The Venezuelan crisis, mining exploitation and the presence of armed criminal groups in their territories have caused them to move from one side of the border to the other.

The response of the Colombian and Venezuelan governments to the problems faced by these peoples has been inadequate. Political and diplomatic tensions between the two states have served as an excuse for not jointly implementing policies in line with the needs and cultural, political and social characteristics of indigenous peoples, and for not recognising their binationality and its practical effects.

In this context, this article analyses the current situation of the indigenous peoples settled in the Colombian–Venezuelan border corridor, and how the humanitarian crisis in Venezuela is disproportionately affecting access to their fundamental rights.

Factors causing the forced migration of binational indigenous peoples: violence and barriers to accessing rights

The humanitarian emergency in Venezuela

According to the UN Refugee Agency (UNHCR), forced migration has been the only way out for Venezuelan indigenous peoples in search of access to health, food, housing, education and basic services that the Venezuelan state has failed to provide, in addition to the humanitarian crisis (hyperinflation, lack of quality public services, limited access to economic resources). For example, food programmes such as the Local Committee for Supply and Production (CLAP) do not meet the nutritional, cultural and traditional standards of indigenous peoples. They also jeopardise the cultural relationship of these communities with the land because they do not support farmers and small producers.

Mining

The indigenous peoples of the state of Amazonas (Venezuela), including the Piaroa people, have had to migrate to the departments of Vichada and Guainía (Colombia), not only because of the humanitarian crisis, but also because of legal and illegal mining in their territories. Since 2008, mining has been controlled by illegal armed groups from Brazil and Colombia.

The National Strategic Development Zone of the Orinoco Mining Arc (AMO) was created through Decree No. 2248 of 2016 as a way to regularise mining. However, the project did not include free, prior and informed consultation with the indigenous peoples affected. According to Human Rights Watch, the project is creating serious environmental problems such as deforestation and contamination of rivers, contributing to the spread of diseases such as malaria.

Militarisation and illegal armed structures

According to Pares, in the last decade violence on the Colombia–Venezuela border has intensified as a result of the reconfiguration and expansion of illegal armed groups (Estructuras Armadas Ilegales (EAI)). Although much of the border is patrolled by the Bolivarian National Armed Forces (FANB) and the Colombian army, according to Crisis Group this has not prevented ELN guerrillas and other EIAs from exercising local control, including through the forced recruitment of indigenous youths or acting as authorities in these territories. According to the UN Office of the High Commissioner for Human Rights (OHCHR), militarisation and the presence of illegal and legal armed structures have increased insecurity in these areas.

The situation of indigenous peoples in Colombia

Venezuelan indigenous peoples who have migrated to Colombia have not been granted legal and material guarantees in relation to forced migration. According to the Colombian Ombudsman’s Office, their situation is precarious. Most do not have access to basic services, and many face discrimination and xenophobia, as well as the social problems of the municipalities where they arrive, including violence and forced recruitment. For example, in La Guajira department, which has received Venezuelan Wayúu people, 30% of the population are living in poverty. In 2017, Colombia’s Constitutional Court declared in Ruling T-302 the unconstitutional state of affairs in La Guajira regarding access to health, drinking water, food and ethnic participation. According to the Colombian Constitutional Court, this concept refers to ‘a generalised, unjustified and disproportionate violation of the constitutional rights of a group of persons caused by structural failures’.

In such a precarious context the arrival of Wayúu migrants has triggered conflict with Colombian indigenous peoples who have driven the Venezuelan Wayúu out of their territories. For the Yukpa and Barí Motilón peoples likewise, life in Colombia is very precarious due to systematic violations of their rights, not only because of the armed conflict but also because of neglect at the hands of the Colombian state.

Binationality: a historical debt to the indigenous peoples of the Colombian–Venezuelan border

What does it mean for an indigenous people to be pendular and/or binational migrants? Pendular migrants cross borders as a manifestation of their ancestral and/or livelihood practices but are not necessarily rooted in the land. Binational peoples, on the other hand, occupy two countries because their ancestral areas were at some point divided by modern state borders. Binacionalidad refers to the dual legal and political link of a subject with more than one state. This should translate into the recognition of citizenship and access to fundamental rights in each state, and in this sense they should not be treated as foreigners. However, in practice neither Colombia nor Venezuela has recognised the binationality of indigenous border peoples.

Since recognition of binationality is subject to the principle of reciprocity, i.e. the correlation that should exist between one state and another in international relations, the absence of treaties or reciprocal norms cannot excuse Colombia and Venezuela’s denial of the rights of border peoples. It is therefore necessary that the states in which binational indigenous peoples live recognise their special and differentiated status, as suggested by international organisations such as the International Labour Organisation and the Inter-American Commission on Human Rights.

It is important that Colombia and Venezuela interpret in a broad sense international instruments and their respective political constitutions and legal frameworks that recognise binational indigenous peoples as subjects of special protection. Although there are currently no treaties in force that would facilitate the recognition of binationality, and this is in any case very unlikely given the state of relations between the two countries, it is possible to apply special and exceptional governmental measures that do not require diplomatic reciprocity.

States have a duty to refrain from acts that frustrate the object of an international treaty and to respect international law clauses such as the res inter alios acta, i.e. that an agreement between several parties cannot affect a third party, and the Pacta sunt servanda clause which implies that ‘every treaty in force is binding on the parties and must be complied with by them in good faith’. Otherwise, both states will have failed to meet their obligations to guarantee and protect the rights of indigenous peoples as mandated in their laws and in ratified international treaties.

What should states do to guarantee the rights of binational indigenous peoples?

Both states have failed to respond adequately to the crisis face by Venezuelan indigenous migrants. In Colombia, the state has focused on providing humanitarian assistance rather than developing policies and programmes to support indigenous migrants. Examples of measures that could assist indigenous populations include humanitarian corridors and censuses to provide data on indigenous populations arriving in Colombia. The Venezuelan state has likewise failed to develop public policies aimed at guaranteeing the rights of indigenous peoples, including the restoration of their territories. In order to address the human rights violations faced by binational indigenous peoples, the Colombian and Venezuelan authorities must reopen channels of communication to promote mechanisms aimed at facilitating contact and cooperation between indigenous and tribal peoples across borders. The aim should be for the authorities to guarantee binationality to these communities in consultation with the indigenous authorities. Article 32 of ILO Convention No 169 on Indigenous and Tribal Peoples. According to OHCHR, it is the duty of states to ‘engage and collaborate with each other to find diplomatic solutions that protect the rights of indigenous peoples at the national level and in the context of migration’.

Lina Arroyave Velásquez is a lawyer and researcher with a master’s degree in Law from EAFIT University. She has conducted research on transitional justice and currently works as a researcher on international migration issues at Dejusticia (larroyave@dejusticia.org).