Emerging from the shadows of authoritarianism: Immigration detention practices in Latin America

By Ricardo Strauch Aveline | OMC 2024

Two empty jail cells with a green and white wall and two toilets inside each of them (photo by Umanoide on Unsplash).

Latin America has a history of embracing relaxed regulatory policies regarding migration. Throughout the 19th century and the first half of the 20th century, the region is estimated to have welcomed and integrated over thirteen million Europeans. The prevailing Latin American open-door approach to migrants is influenced by several factors, such as culture and language similarity, common religious identity, and ethnic composition. The absence of an elaborate state social security system in most countries is another factor, as it tends to diminish the perception that newcomers would unjustly benefit from a system built before their arrival. However, this backdrop contrasts starkly with the security-focused migration control practices imposed by military dictatorships in the 1970s and 1980s.

Authoritarianism in Latin America was fueled by the fear of communist expansion during the Cold War era. Consequently, immigrants from socialist and leftist countries were often the primary targets of repression by these dictatorships. While many Latin American countries have transitioned their government structures, the legacy of structural authoritarianism and state violence left by this era is still felt in persisting migration policies and practices, particularly evident in areas like border control. It is not uncommon for border patrol positions to be filled by military officers, perpetuating a doctrine that views “foreigners” as “potential enemies”. 

During the post-dictatorial transitions of the 1980s and early 1990s, the Inter-American System of Human Rights (ISHR), consisting of the Inter-American Court and Inter-American Commission on Human Rights, expanded its focus to monitor political processes addressing authoritarian legacies and their impact on democratic institutions. This period witnessed the development of core principles regarding justice, truth, and reparations for widespread human rights violations. Subsequently, there has been a notable increase in the number of countries accepting the jurisdiction of the Inter-American Court, with legal professionals integrating ISHR mechanisms into their practices more routinely. As a result, ISHR jurisprudence has begun to influence decisions in constitutional and national supreme courts, as well as aspects of state policy formulation, leading to significant institutional changes. Building upon this historical context, this article aims to analyse the influence of the Inter-American Court of Human Rights in fostering changes in policies and practices of state authoritarianism across Latin America, specifically related to migration control. To achieve its objective, the research employs a case law methodology, examining the effects of the Inter-American Court of Human Rights' decision in the Vélez-Loor v. Panama case on legal frameworks and border practices in Panama and the broader region.

Vélez-Loor was an undocumented Ecuadorian migrant who traversed the border from Colombia to Panama through the jungle, with the intention of reaching the United States. Upon his irregular crossing, he was apprehended by national police in Panama and detained at the La Joyita penitentiary centre, where he endured instances of torture at the hands of state agents during his ten-month confinement. His imprisonment was decreed by the Director of the National Immigration Office, citing a 1960 law to do so. Throughout the legal proceedings, he was denied access to legal representation and was only granted consular assistance months after his conviction and arrest. After being released and deported to his native country in 2003, Vélez Loor pursued redress through multiple channels before ultimately petitioning the Inter-American Commission on Human Rights in early 2004. The decision of the Inter-American Court of Human Rights found the state guilty of arbitrary detention and arrest, along with violations of the right to freedom from torture, right to judicial protection, and due process. The Court mandated financial compensation and medical treatment be provided to Velez-Loor as well as obligatory human rights training to state migration control officials. Additionally, the state was directed to conduct a criminal investigation and impose sanctions on the authorities and officials responsible for the criminal acts. The Court's decision was impactful in prompting Panama to decriminalise migration in its domestic law and reform certain border control policies in order to prioritise the protection of human rights. To this day, however, the authority responsible for Vélez-Loor’s arbitrary detention has not faced punishment and has been appointed to a diplomatic position.

While the ruling set a precedent for future cases of arbitrary detention in both national and international courts, its limited effectiveness in holding authorities and officials accountable for human rights violations indicates that authoritarian culture still possesses a structural dimension. This dimension extends beyond abusive border control practices to encompass the impunity of authorities responsible for human rights violations. These facts suggest that despite progress in reforming certain policies, migration control structures in Latin America are still influenced by the region’s history of authoritarianism and violence. Nevertheless, the role of the Inter-American Court of Human Rights has been instrumental in addressing this legacy and encouraging governments to implement national laws and practices that uphold human rights standards.

Ricardo Strauch Aveline is a Professor of Law and serves as the Coordinator of the Law Clinic at Faculdade Estácio do Rio Grande do Sul, situated in Porto Alegre, Brazil. He holds a Doctorate in Social Sciences from UNISINOS and is currently pursuing his second doctoral degree in the Postgraduate Program in Law at the Federal University of Rio Grande do Sul (UFRGS). Additionally, he obtained a master’s degree in European and German Law from the Postgraduate Program in Law at UFRGS/CDEA.

Aveline is the author of the book "Direito Internacional dos Refugiados e a sua judicialização nos tribunais europeus: equilibrando soberania e direitos humanos" (Publisher: Editora Juruá), along with articles and book chapters. His research interests include topics such as immigration detention, externalisation, CEAS, and the regional human rights courts of Europe and Latin America. You can connect with him on LinkedIn or X (Twitter), Instagram and Facebook.