By Parviz Malakouti-Fitzgerald, Esq.
Much is said about the nature of freedom of movement (FOM) between countries that are party to the MERCOSUR trade bloc.
Article Outline:
One of those elements of freedom of movement is to what extent people can cross international borders with substitute travel documents or without travel documents at all. Experience on the ground is very useful data for how mobility law is applied (or misapplied) in practice. But obviously, that experience is not definitive proof of what the letter of the law is. That’s because law is applied by humans and there’s a difference between how law is applied and what the law says.
So, do citizens and residents of MERCOSUR countries get any advantaged treatment in travel to other MERCOSUR countries?
The short answer is yes, they’re supposed to under MERCOSUR.
This is what the relevant MERCOSUR agreement, MERCOSUR/CMC/DEC. N 46/15 says about passport-free travel in MERCOSUR. The agreement’s full title is Acuerdo sobre documentos de viaje y de retorno de los estados parte del MERCOSUR y estados asociados.
Article 1 - Travel Documents
First, we must look at Article 1 of the agreement.
Article 1's first paragraph reads reads:
To recognize the validity of the personal identification documents of each State Party and Associate of MERCOSUR established in Annex I hereof as Travel Documents suitable for the transit of nationals and/or regular residents of the States Parties and Associates of MERCOSUR through the territory, thereof.
So "personal identification documents" of "regular residents are recognized as acceptable travel documents.
But who exactly is considered a "regular resident?' Subparagraph b of article 1 further defines the term.
For the purposes of this article, it will be understood as:
“Regular resident” - those foreigners who have accessed a permanent, temporary or provisional residence or settlement in accordance with the corresponding immigration legislation of the State Party or Associate of MERCOSUR where the person resides, provided that as a consequence of this, the legislation enables them to be holder of any of the travel documents listed in the Annex hereto.
Article 2 - Consular Visa
Next, we must look to article 2, which modifies article 1's statement about foreigners with "regular residence" being able to use the ID documents in Annex 1 as travel documents.
Article 2 reads:
Foreigners with regular residence in any State Party or Associate of MERCOSUR may transit with the documents established in Annex I, through the territory of the States Parties and Associates of MERCOSUR, provided that, due to their nationality, the consular visa was not requirement in the State being entered In the latter case, one must use the passport of their nationality and the corresponding visa.
Annex I
Both article 1 and article 2 mentioned above make reference to documents in Annex I, we must look at Annex I.
Annex I lists the identity documents that one can travel with:
As one can see, Cédulas (national ID cards) of several countries including Paraguay, Uruguay, Bolivia are listed, including IDs issued to foreigners (“extranjeros”).
Residents of MERCOSUR Countries
So what's the bottom line for MERCOSUR residents?
Combining article 1, article 2 and annex 1, the agreement says that a non-MERCOSUR citizens who are resident in a MERCOSUR country can use their Cédula to travel to another MERCOSUR country IF the person's country of citizenship (let's say they're Canadian) would give them visa-free access to the MERCOSUR country they're traveling to.
In practice, the effect is to allow those MERCOSUR residents to use their qualified IDs (listed in Annex I) as a passport substitute for travel between MERCOSUR countries, but the agreement stops short of giving those residents visa-free access based on their residence in another MERCOSUR country.
I would definitely qualify that as a freedom of movement benefit. The more documents you can use to travel decreases your single-sovereign document dependence.
But is this benefit applied in practice?
Once countries become party to an agreement like this 2015 MERCOSUR Acuerdo, they generally have to pass domestic legislation implementing the agreement. Implementing legislation and regulation created as a result gives direction to their border guards, consular officials and other domestic functionaries.
If that right of entry isn't being applied on the ground at borders between MERCOSUR countries, the chokepoint is likely a lack of domestic implementing legislation or unlawful restriction on freedom of movement by the border officers.