EMIGRACION AND PRACTICE OF FUNDAMENTAL RIGHTS IN LATIN AMERICA: EMIGRATION AND FREEDOM IN RELATION TO RESIDENCE* Allan R. Brewer-Carías Professor, Central University of Venezuela; Adjunct Professor of Law, Columbia Law School. Vice President, International Academy of Comparative Law, The Hague It is really a privileged to be able to participate in the 2008 Summer Course of High Qualification organized by Professor Andrea Romano, Dean of the Law School of the University of Messina, in Montalbano Elicona, Sicily. My thanks to him for the unique opportunity to participate in one of his distinguishable efforts to gather students and scholars from different countries to study, with a comparative approach, subjects of constitu- tional law, like this on the “Enunciation and practice of fundamental rights: Emigration and Freedom in relation to Residence.” It is also a privilege to have the opportunity to be, for such purpose, in a unique and notable place for constitutional lawyers, like the medieval village of Montalbano Elicona, in a setting dominated by the splendid Castle origi- nally built by Frederick II of Swabia (1209-1250). This King of Sicily has been considered as the founding father of the Modern Absolute State or the Administrative centralized State, after issuing in 1231, the Constitu- tions of Melfi, considered to be the first code of law designated to organize a centralized the State, regulating in 255 clauses and in three books, all aspects of public law, judicial procedure, and feudal, private, and criminal law. This Liber Augustalis, was intended to be applicable to all * COURSE MATERIALS, for use of the Students of the International Summer School 2008, Università degli Studi di Messina, Virginia Commonwealth University, Universidad de Córdoba, Montalbano Elicona, Sicily, July 2008. the peoples of the realm (Lombards, Greeks, Arabs, Germans, Jews), through which the power of the king where strengthened and the power of his feudatories diminished. The subject of our Lessons is related to freedom of residence and right to movement in Latin America, which are rights that have been es- sentially part of the constitutional tradition not only of our countries, but also of the North American countries, all characterized as being countries of immigrants, used to receive flow of foreigners and to promote their integration in society. Regarding in particular the Latin America, since the origins of the countries, their Constitutions have established provisions for such pur- pose. For instance, in the first of all the Latin American Declarations of Human Rights, the “Declaration of the Rights of the Peoples” issued by the General Congress of Venezuela for the Province of Caracas in July 1811, in the section “Rights of people in Society”, it was stated that: Art. 25: All foreigners from any Nation will be received in the Province of Ca- racas. Article 26: The persons and the properties of foreigners will enjoy the same guaranties than those of the other citizens, provided that they recognized the sovereignty and independence of the country and respect the Catholic Reli- gion, the only one in the country. The same sort of declarations can be found in the first of all Latin American Constitutions, the Federal Constitution for the States of Vene- zuela of December 1811, sanctioned after the declaration of independence from Spain almost two centuries ago, where it was also declared that: Article 169. All foreigners, from any Nation whatsoever, will be welcomed in the State. Their persons and properties will have the same guaranties than those of citizens, providing that they respect the Catholic Religion, the only in the country, and that they recognize the independence of these countries, their sovereignty and the authorities established by the popular will of their inhabitants. Of course, a few years latter, the regulations regarding citizenship or nationals of each country began to be incorporated in the Constitutions, with the provisions for foreigners to obtain citizenship in order to exer- 2 cise political rights, disappearing from the Constitutions all references regarding the Catholic Religion as the only one permitted. But the sense of the provisions remained in general in the same trend of countries opened to receive immigration. In these Lessons I want to refer to some aspects related to the consti- tutional framework of “emigration and freedom in relation to residence” in Latin America, and particularly in Venezuela. With this in mind, I will divide the Course in four Lessons: In the First Lesson, I will analyze some general aspects of the regula- tion of fundamental rights in Latin America; in the Second Lesson, I will specifically study the general trends of the constitutional regime on civil rights and their guaranties in Latin America, also enjoyed by foreigners and migrants, and in particular, the legal regime established in Venezuela regarding aliens and migrants; in the Third Lesson I will examine the gen- eral trends of the judicial protection of human rights in Latin America, including freedom in relation to residence, particularly by means of the specific proceeding established for the purpose of protecting constitu- tional rights, known as action or suit of amparo; and in the Fourth Lesson, I will study the general classification of the judicial system of judicial re- view in Latin American constitutional comparative law. ** But before, I want to highlight some general aspects of the Latin American system for the protection of constitutional rights, which can be identified through a few basic and important trends: The first is the longstanding tradition our countries have had of inserting in their Constitutions, a very extensive declaration of human rights. This trend, for instance, contrasts with the relatively reduced content of the United States Bill of Rights (First Ten Amendments). This Latin American declarative trend also began, as aforemen- tioned, two hundred years ago with the adoption in 1811, of the “Dec- laration of Rights of the People” by the Supreme Congress of Vene- 3 zuela, four days before the declaration of the Venezuelan Independ- ence from Spain.1 That is why, although having been Spanish Colonies for three centuries, no Spanish constitutional influence can be found at the beginning of the 19th century Latin American modern State, which was conceived following the American and the French 18th century constitutional revolutionary principles, which also were subsequently followed in Spain, but after the 1812 Cádiz Constitution was sanc- tioned.2 But in parallel to this declarative tradition, a second aspect of the Latin American constitutional situation regarding human rights can be identified, has been the unfortunate process of their violations, which even nowadays and in a more sophisticated way, continues to occur in some countries where authoritarian governments have been installed in defraudation of democracy and of the Constitution. Precisely because of that, the third trend of this Latin American system of constitutional protection of human rights, has been the con- tinuous effort the Latin American countries have made to assure their constitutional guaranty, by progressively enlarging the declarations, adding economic, social, cultural, environmental and indigenous peo- ples rights to the classical list of civil and political rights and liberties. In this sense, other important Latin American trend in these mat- ters has been the progressive and continuous incorporation in the Con- stitutions, of “open clauses” of rights, in the same sense of the IX Amendment (1791) to United States Constitution which refers to the 1 See the text in Allan R. Brewer-Carías, Las Constituciones de Venezuela, Acade- mia de Ciencias Políticas y Sociales, Biblioteca de la Academia de Ciencias Polí- ticas y Sociales, Caracas, 1997, pp 279 ff.; and in Allan R. Brewer-Carías, Los De- rechos Humanos en Venezuela: Casi 200 Años de Historia, Biblioteca de la Acade- mia de Ciencias Políticas y Sociales, Caracas 1990, 462 pp 2 See Allan R. Brewer-Carías, “El paralelismo entre el constitucionalismo venezo- lano y el constitucionalismo de Cádiz (o de cómo el de Cádiz no influyó en el venezolano” in Libro Homenaje a Tomás Polanco Alcántara, Estudios de Derecho Público, Universidad Central de Venezuela, Caracas 2005, pp. 101-189.. 4 existence of other rights “retained by the people” that are not enumer- ated in the constitutional text. The fourth trend of the human right constitutional regime in Latin America also related to the progressive expansion of the content of the constitutional declarations of rights, is the express incorporation in the Constitutions, in addition to the rights therein listed, of the rights listed in international treaties and conventions. For such purpose, interna- tional treaties and covenants not only have been given statutory rank, similar to the United States and to the general constitutional solution on the matter, but in many cases, supra-legal rank, constitutional rank and even supra-constitutional rank. But regarding the hierarchy of international treaties on human rights, even in the absence of express constitutional regulations on the matter, in some Latin American countries such treaties have also ac- quired constitutional value and rank, through constitutional interpreta- tion in particular when the Constitutions themselves establish, for ex- ample, that on matter of constitutional rights their interpretation must always be made according to what it is set forth in those