DECISION 548
Andean Cooperation Mechanism on Consular
Assistance and Protection and Migratory
Matters
THE ANDEAN
COUNCIL OF FOREIGN MINISTERS,
HAVING SEEN:
Articles 3a) and 16 of the codified text of
the Cartagena Agreement set out in Decision
406; Decision 458 approving the Common
Foreign Policy Guidelines; and articles 6
and 12 of the Regulations of the Andean
Council of Foreign Ministers approved
through Decision 407; and
WHEREAS: Human
beings are the supreme purpose of society
and States must take measures to guarantee
their well-being;
The current
international scenario, which is
characterized by growing financial and trade
flows, is also known for its constant
migratory movement, involving nationals of
the Member Countries, among other persons;
It is
necessary to broaden the sphere of
application of the existing 1911 Caracas
Agreement on Consuls, signed by Bolivia,
Colombia, Ecuador, Venezuela and Peru, by
virtue of which Consuls of any of the
contracting republics who reside in another
of those republics may use their authority
for the benefit of individuals from other
contracting republics who do not have an
assigned Consul at that site, so that a
mechanism for Andean Consular cooperation in
third countries may be created;
The Member
Countries have signed and ratified the April
24, 1963 Vienna Convention on Consular
Relations;
Article 51,
paragraph 6, of the Andean Charter for the
Promotion and Protection of Human Rights
stipulates that the Member Countries shall
take care in their joint action to promote
and protect the rights of migrants and their
families before other countries and groups
of countries, as well as in international
and regional forums;
In point
fourteen of the Lima Act, signed at the
Twelfth Regular Meeting of the Andean
Presidential Council in June 2000, the
Andean Presidents expressed the need to
“join efforts to defend nationals of Andean
countries who are abroad, in situations
where their human rights, individual
guarantees or internationally recognized
labor rights are threatened, and to combat
any expressions of racism or xenophia;”
The Member
Countries have set themselves the target of
establishing the Common Market in the
subregion by December 25, 2005, at the
latest and the consolidation of people’s
freedom of movement is a basic element for
the accomplishment of that aim;
With the
adoption of Decisions 458, 503 and 504 of
the Andean Council of Foreign Ministers on
Common Foreign Policy Guidelines,
Recognition of National Identification
Documents and Creation of the Andean Common
Passport, respectively, it has become
necessary to issue complementary provisions
that will make it possible to consolidate
and deepen the subregional integration
process and reinforce the identity,
solidarity and cohesion of the Andean
Community, and on the movement of people;
The Sixth
Regular Meeting of the Andean Committee of
Immigration Authorities (CAAM) recognized
the importance to the Andean integration
process of cooperation on Consular matters
and, in that connection, issued a series of
conclusions on the subject;
It is
necessary to seek protection and assistance
for all nationals of Member Countries,
wherever they may be, and to establish an
institutionalized mechanism for cooperation
on migratory matters;
The General
Secretariat has presented Proposal 98/Rev. 1
on the approval of the Andean Cooperation
Mechanism on Consular Protection and
Assistance and Migratory Matters;
DECIDES:
CHAPTER I
DEFINITIONS
Article 1.-
For purposes of this Decision, the terms
cited below shall have the following
meanings:
a) Consular
Protection: Consular function of
protecting, guaranteeing and defending the
interests of the nationals of any of the
Andean Community Member Countries in cases
where they lack Diplomatic and Consular
agents at the particular site where are
located.
b)
Indigence: The lack of the economic
means to cover the basic needs.
c) Natural
disaster: Unfortunate occurrence brought
on by an extreme natural phenomenon that
causes intense alterations in the normal
order of things, persons, goods and the
environment.
d) Due
Process: That which is carried out in
accordance with the principles and
guarantees recognized in the Constitution
and Laws of the recipient State or of the
principles recognized by International Law
and set out in the Andean Charter for the
Promotion and Protection of Human Rights, to
ensure a fair and rational proceeding to
safeguard basic rights.
e) Right to
Defense: Authority granted to people who,
for any reason, take part in judicial or
administrative proceedings, to bring the
action or exercise the defense, within those
proceedings, to which they as plaintiffs or
defendants may be entitled, in either the
civil or criminal, administrative or labor
court.
f) Safe-conduct
pass: Travel permit or document issued
by a Consular authority to persons so that
they can return to their country of origin
or residence once they have shown
documentary proof of their identity and
nationality.
g)
Trafficking in Persons: The collecting,
transport, transfer and reception of people,
by resorting to force or the threatened use
of force or other forms of coercion,
kidnapping, fraud, deceit, abuse of power or
of a situation of vulnerability, or to the
granting or reception of payments or
benefits.
This
exploitation is associated with, among other
things, the prostitution of others or other
forms of sexual exploitation, forced labor
or services, slavery or similar practices,
serfdom or the removal of organs.
h)
International crimes: Crimes that are
punishable in several of the countries
affected or for which acts of enforcement
have been taken in two or more of them.
Crimes classified into any of the four
following categories shall be considered
international crimes: i) cosmopolitan
persecution crimes; ii) international crimes
in the strict sense without any political
content; iii) crimes with a political
content that are international per se; and
iv) crimes against humanity.
i) State of
war: Internationally recognized
situation of belligerence that creates a
series of rights and duties among the States
involved in the conflict, as well as in
their relations with the States that remain
neutral. .
j) Consular
District: The territory assigned to a
Consular office for the exercise of its
Consular functions.
CHAPTER II
OBJETIVE
Article 2.-
To establish a mechanism for cooperation on
Consular assistance and protection and
migratory matters, for the benefit of
nationals of the Andean Community Member
Countries who are outside their countries of
origin for different reasons.
Article 3.-
The general objectives of this Decision are
the following:
a) To
coordinate action to protect the basic
rights of nationals of any of the Andean
Community Member Countries with regard to
reciprocal Consular support, social
security and labor guarantees; and
b) The
exchange of information on migratory
matters concerning the nationals of any
Andean Community member Country who, for
any reason, are outside their countries of
origin.
Article 4.-
Pursuant to this Decision, nationals of
any Andean Community Member Country who are
in the territory of a third State or of a
part of their country of origin where they
have no Diplomatic or Consular
representation, may avail themselves of the
protection of the Diplomatic or Consular
authorities of any other Andean Community
Member Country, insofar as the actions
provided for in article 7 of this Decision
are concerned.
Article 5.-
For the best possible fulfillment of the
objectives of this Decision, in cities where
Andean Community Member Countries have
Diplomatic or Consular representation, the
head Consular officers should meet together
periodically.
These meetings
shall be held both in the Andean Community
Member Countries and in third countries. The
heads of Andean Community Member Country
Consular offices accredited to a third State
shall not only coordinate with each other,
but also act jointly before the competent
immigration and Consular authorities of the
recipient country in order to promote
immigration policies to regularize the
migratory status of Andean Country nationals.
When Consular chiefs are accredited to an
Andean Community Member Country, the
immigration authorities of that Member
Country shall attend the periodic meetings
with the Heads of Mission accredited to that
Consular district.
CHAPTER III
PRINCIPLES
Article 6.-
The
measures referred to in Chapter IV of this
Decision shall be taken, bearing in mind the
following principles:
a) Respect
for the principles and provisions of
international law and particularly for the
Vienna Convention on Consular Relations;
b)
Solidarity and cooperation among the
Member Countries;
c) Defense
and promotion of human rights;
d)
Consolidation of a common Andean identity;
and
e)
Flexibility and gradualness in
progressively undertaking action, in
keeping with the possibilities of the
Consular services of the Member Countries.
CHAPTER IV
ACTIONS
Article 7.-
The areas of action of this mechanism for
cooperation on Consular matters have been
initially defined as efforts to benefit
nationals of Andean Community Member
Countries whose country of origin has no
Consular representation where they are
located and who request it:
a) To
protect their interests in the recipient
country within the limits set by
international law and the country’s
domestic legislation;
b) To
provide them with basic juridical and
legal guidance on the local laws and, if
appropriate, to seek to arrange for them
to enjoy official defense by the recipient
country;
c) To
arrange for persons who are living in
indigence to receive material and health
assistance from the welfare authorities of
the recipient country and humanitarian
international organizations and non-governmental
organizations;
d) To
provide assistance to the victims of
natural disasters, states of war or
international crimes, such as trafficking
in people;
e) To seek
to situate or locate persons within the
territory in accordance with the requests
of their families or of the pertinent
authorities of their countries of origin.
Nationals from the Member Countries should
register with the respective Consular
Offices, in order to facilitate this task;
f) To ensure
the well-being and appropriate conditions
of detention of persons who are being
prosecuted or have been indicted, arrested
or sentenced within the jurisdiction of
the corresponding Consular office, as well
as the application of due process and the
right to defense;
g) To inform
the authorities of the country of origin
of Andean nationals who are living in a
situation of indigence, about that poverty,
so that, if appropriate, the necessary
action can be coordinated, including
arrangements for repatriation;
h) At their
request, to represent them or to take
appropriate measures for their
representation in the courts and before
other officials of the recipient State, in
accordance with the practice and
procedures in effect in that State, in
order to ensure that provisional measures
are taken, in keeping with the laws and
regulations of that State, to safeguard
the rights and interests of those
nationals if, because of their absence or
for any other reason, they cannot defend
them at the appropriate time;
i) To
intercede with the local authorities of
extra-Community countries, within the
framework of domestic legislation and
international commitments, for Andean
nationals who require it;
j) To keep
in contact with Member Country nationals
in order to safeguard and incentivize the
Andean identity, by carrying out
promotional activities for this purpose;
k) With the
authorization of the Foreign Ministry of
the applicant’s country of origin, to
legalize the signatures of officials of
the recipient country. The model signature
of the acting Consular officer should be
submitted to that Ministry for its
respective validation and recognition;
l) To grant
safe conduct passes to facilitate the
return of Member Country nationals to
their countries of origin or residence,
with the authorization of the Foreign
Ministry of the applicant’s country of
origin. Those passes shall have a similar
format for all of the Member Countries,
shall bear the name “Andean Community” and
shall be issued on behalf of the Member
Country where the Andean national was born;
m) To join
efforts to defend Andean citizens in
situations where their human rights,
individual guarantees or internationally
recognized labor standards are affected,
as well as to combat any expressions of
racism or xenophobia; and
n) To
exercise all other functions entrusted by
a Member Country to the Consular office of
another Member Country that are not
prohibited by the laws and regulations of
the recipient country or opposed by that
country, or those that are attributed to
it by the international agreements in
effect between the country of origin of
the Andean national and the recipient
country.
CHAPTER V
PROCEEDURES
Article 8.-
Member Countries should duly inform, by
diplomatic channels, the third countries
where the Consular cooperation to which this
Decision refers shall be exercised about the
scope of that cooperation and obtain the
express consent of the recipient country
beforehand, as stipulated in the Vienna
Convention on Consular Relations.
Article 9.-
The operational aspects required to carry
out the actions provided for in article 7 of
this Decision, as practice demands, shall be
regulated through an Andean Community
General Secretariat Resolution.
Article
10.- The provisions of this Decision
shall be applicable to career Consulates and
to the Consular Sections of the Embassies of
the Member Countries and only exceptionally
to their honorary Consulates.
Article
11.- The Andean Community General
Secretariat, based on the information sent
to it by the Member Country Foreign
Ministries, shall prepare and keep up to
date a list of the Diplomatic and Consular
missions of each Member Country in the world
and the Consular Districts they cover, to be
disseminated among the Member Countries.
This list shall be used for reference
purposes.
The Offices of
Consular Affairs of the Member Countries’
respective Foreign Ministries shall
immediately report all changes that are made
as to the jurisdiction and opening and
closing of their Diplomatic and Consular
offices.
The updated
lists of Consulates in third countries may
be published in the websites of the Member
Country Foreign Ministries and of the Andean
Community General Secretariat.
Article
12.- This Decision shall enter into
effect on January 1, 2004. The Member
Countries commit themselves to take the
necessary measures to ensure compliance with
its provisions.
FINAL
PROVISION
Sole.-
The Andean Committee of Immigration
Authorities (CAAM) shall monitor the
implementation of the stipulations of this
Decision and, if applicable, shall propose
the necessary measures to the Andean Council
of Foreign Ministers in order to
progressively perfect the Mechanism and
extend its sphere of application.
TEMPORARY
PROVISION
Sole.-
The
General Secretariat shall be given a period
of ninety days as of the date of publication
of this Decision in the Official Gazette of
the Cartagena Agreement in which to draw up
a list of the Andean Community Member
Country Consular Offices in the world, which
should include the respective Consular
district of each, based on the information
to be sent to it by the Member Country
Foreign Ministries.
Signed in the
Quirama Recinto, Department of
Antioquia, of the Republic of Colombia, on
the twenty-fifth of June of two thousand
three.