Vol. 43 Associate Editor
In recent months, Panama announced that, with the cooperation of Colombia, it plans to slow the number of migrants entering the country along its Colombian border. Although the influx of migrants in 2021 has put huge strains on Panama, limiting the flow of migrants begs the question of how this will be done humanely. Although the Vélez Loor IACHR case, decided in 2010, ordered Panama to comply with immigration protocols set out in the American Convention, Panama has continued to automatically detain migrants who come across the border, often much longer than necessary and sometimes indefinitely, even during the COVID-19 pandemic.
Part I of this post will provide an overview of the Vélez Loor case, part II will address how the Vélez Loor case influenced detention protocols in Panama during the COVID-19 pandemic, and part III will conclude with possible solutions to Panama’s migrant situation and what legal obligations Panama and other state actors have to address it.
I. Incarceration of Migrants in Panama – Overview of Vélez Loor Case
In 2004, Mr. Jesús Tranquilino Vélez Loor an Ecuadorian citizen, presented a petition to the Inter-American Court of Human Rights (IACHR), complaining of maltreatment by the Panamanian government. Because he illegally entered Panama three times, Mr. Vélez Loor had been sentenced to two years’ imprisonment in La Joyita Penitentiary in 2002. There, he suffered numerous rights violations related to due process, insufficient medical care, and lack of access to potable water.  The IACHR issued its judgment on November 23, 2010, finding that several articles of the American Convention had been violated, including article seven, section three, which prohibits arbitrary arrest or imprisonment. In its reparations decision, the Court ordered that Panama “adopt all necessary measures to ensure that its immigration laws and application of all provisions related to immigration conform to the American Convention.”
II. 2020 IACHR Resolution – Utilizing Vélez Loor to Protect Migrants Detained during the COVID-19 Pandemic
In light of the COVID-19 pandemic and the detention of migrants at migrant camps in Panama for upwards of six months at a time during 2020, Vélez Loor’s counsel submitted a request to the IACHR to implement provisional measures under article 63, section 2 of the American Convention. Although provisional measures issued on already-decided cases can sometimes be controversial within the IACHR, these appear to align with point fifteen of the Vélez Loor v. Panama judgement, which broadly called for “a structural measure that serves as a guarantee of non-repetition.”  Among many concerns, Vélez Loor’s counsel noted that efforts by the Panamanian government to stop the spread of COVID-19 had rendered already-arbitrary and automatic detentions of migrants (which lasted from weeks to months prior to the pandemic) into indefinite detentions which were unnecessary and disproportionate.
Vélez Loor relied on a report from April 2020 which showed living conditions at La Peñita, the principle camp where migrants were detained in the Darién region at the time, were untenable. The population in the camp had surpassed its 200-person capacity and reached over 1,700 migrants, creating a highly dangerous environment for the spread of COVID-19 and other diseases. In addition, there was insufficient access to healthcare and requests to visit hospitals or other healthcare facilities were often denied. A new camp, Lajas Blancas, was constructed and used to isolate persons who were, or were suspected of being, positive for COVID. However, no measures were put in place to allow La Peñita residents to distance themselves from one another and prevent further spread of the virus.
In response to Mr. Vélez Loor’s request to protect the health of migrants in La Peñita and Lajas Blancas camps in the Darién region, the IACHR issued an additional resolution regarding the Vélez Loor case on May 26, 2020.  In the resolution, the Court underlined the importance of maintaining human rights, even during the difficult situation Panama faced during COVID, particularly respecting the right to non-refoulement and to health. Among other recommendations, the Court urged the State to address overcrowding at La Peñita, improve its COVID protocols, ensure migrants had access to proper healthcare facilities, and adopt necessary measures to bridge legal, language, and cultural barriers that migrants faced.
In response to the resolution, Panama took several steps to improve conditions for migrants; however, more remains to be done. The most recent report from June 2021 reflects that the State built an additional camp, San Vicente, in the Darién region and closed La Peñita. In addition, Panama reported it had reinstated its “Controlled Flow Operation” (which transports 100 persons per day from the Darién region to the Costa Rican border), implemented a new “Protocol for Reception of Irregular Migrants” (which aims to limit migrant detention to ten days), and entered into an agreement with Colombia regarding migrants in April 2021 (in which Colombia agreed to notify Panama of migrants passing into its territory from Colombia no later than twenty-four hours in advance). The State did not indicate whether or not it had implemented any measures to improve migrants’ ability to “surmount legal, language, and cultural barriers which make access to health and information difficult.”
Since then, Panama has taken measures which are a cause for concern. The first, mentioned in Panama’s response, was the temporary closure of its border with Colombia due to COVID-19 concerns and an influx of 15,000 migrants who crossed the border in May 2021. Second, in August 2021, Colombia and Panama announced they had agreed to allow 650 migrants pass from Colombia into Panama each day. Although country officials claim that they are limiting the number of migrants out of concern for their safety passing through the Darién Gap—a notorious section of roadless wilderness between Colombia and Panama which has claimed the lives of many migrants due to dangerous terrain and attacks by criminal gangs—and also to ensure there are enough resources to house migrants once they arrive, it is possible that the limitation could lead migrants to try other terrain which is equally, if not more, dangerous.
III. Potential Solutions to Avoiding Unnecessary and Disproportionate Detention
Panama has been responsive and appears willing to address its obligations under the American Convention, but it could go further to address its obligations under the Refugee Convention. In addition, due to the recent influx of migrants at the border (50,000 migrants in 2021 as of August, when the annual number of migrants is generally 20,000), it is unlikely that Panama will fully be able to avoid unnecessary and disproportionate detention without international cooperation.
In order to avoid a repeat of La Peñita and allow for better conditions for migrants, Panama should consider permanent solutions for individuals who qualify for refugee status under the Refugee Convention in addition to its efforts to decrease detention time for migrants. Article 25 of the Refugee Convention requires that refugees are provided administrative assistance, including access to attorneys, while article 34 requires that contracting states “as far as possible facilitate the assimilation and naturalization of refugees.”
As previously noted, barriers to migrants knowing their legal rights have yet to be addressed by Panama. Panamanian officials have said migrants are simply “not interested” in staying in Panama. However, nonprofit director Raul Elias Arauz de Leon of Fe y Alegría claims that “most migrants don’t know seeking asylum in Panama is an option.” Often, immigration officers do not inform migrants of the right to request asylum and sometimes even suggest it would be illegal for migrants to leave the “controlled flow” system which requires migrants to stay in camps as the Panamanian government facilitates their travel north. If Panama trained its immigration officers to inform individuals of their legal rights, as required under the American and Refugee Conventions, they could decrease camp populations as certain individuals leave the camps to apply for asylum.
Of course, diverting individuals who wish to seek asylum in Panama will not be enough to address the issue in its entirety, since many migrants are not refugees. Panamanian Foreign Minister Erika Mouynes recently appealed to other officials from across the Americas to allocate resources to Panama to assist its reception of migrants. Such support could help Panama comply with American Convention article seven and Refugee Convention article 26 by limiting detention to the time it takes to confirm migrants’ identities and assist them with transportation north, if they so choose.
However, there is one American State which could have the largest impact of all. Although the U.S. has not ratified the American or Refugee Conventions, it has signed the non-binding American Declaration on the Rights and Duties of Man. The Inter-American Commission on Human Rights may also be able to issue reports on the effects of U.S. pressure and externalization of its borders, which are partially to blame for increased migration through the Darién Gap and into Panama. Although not a legal remedy, such reports could encourage the U.S. to provide aid to Panama and other Central and South American countries that are struggling to humanely handle massive numbers of migrants.
 Grace Kim, Vélez Loor v. Panama, Case Summary, 36 Loy. L.A. Int’l & Comp. L. Rev. 1143, 1151 (2014-2015).
 Id. at 1144–45.
 Id. at 1144–47.
 Id. at 1155–56.
 Id. at 1162.
 U.S. Department of State, 2020 Country Reports on Human Rights Practices: Panama, 9 https://www.state.gov/wp-content/uploads/2021/03/PANAMA-2020-HUMAN-RIGHTS-REPORT.pdf
 Article 63(2) of the American Convention states that “in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration.” Organization of American States, American Convention on Human Rights art. 63, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention].
 Melina Girardi Fachin & Bruna Nowak, Pandemic Rulings: Between Dialogues and Shortcuts at the Inter-American Court of Human Rights, Int’l J. Const. L. Blog (July 9, 2020), http://www.iconnectblog.com/2020/07/pandemic-rulings-between-dialogues-and-shortcuts-at-the-inter-american-court-of-human-rights.
 Vélez Loor v. Panama, Adoption of Urgent Measures, Order of the President of the Court, Inter-Am. Ct. H.R. (ser. C) No. 218, at 3, (May 26, 2020).
 Vélez Loor v. Panama, Order of the President of the Court (ser. C) No. 218, at 4.
 Id. at 9.
 Id. at 13–14.
 Vélez Loor v. Panama, Provisional Measures, Order of the Court, Inter-Am. Ct. H.R. (ser. C) No. 218, at 6, (June 24, 2021).
 Vélez Loor v. Panama, Order of the Court (ser. C) No. 218, at 6.
 Id. at 12.
 Juan Zamorano, Panama, Colombia Agree to Limit of 650 Migrants Per Day, Associated Press, Aug. 11, 2021, https://apnews.com/article/colombia-caribbean-immigration-panama-8161d7a12f38e007a59644b44efdf311.
 The Darién Gap: “A Nightmare with 1,001 Demons,” Doctors Without Borders (Aug. 5, 2021), https://www.doctorswithoutborders.org/what-we-do/news-stories/story/darien-gap-nightmare-1001-demons.
 Zamorano, supra note 21.
 Teresa Welsh, Panama Calls for Solidarity in Managing Migration Through Darién Gap, Devex, Aug. 19, 2021, https://www.devex.com/news/panama-calls-for-solidarity-in-managing-migration-through-darien-gap-100614.
 Piotr Plewa, What Have Been Migration Trends Through the Darién Gap and What Do They Mean for Regional Cooperation on Migration?, Duke Univ. Ctr. Int’l & Glob. Stud. Newsletter (March 4, 2021), https://igs.duke.edu/news/migration-trends-through-panamas-darien-gap-and-what-they-mean-regional-cooperation.
 Convention and Protocol Relating to the Status of Refugees arts. 25, 26, July 28, 1951, 189 U.N.T.S. 150 [hereinafter Refugee Convention].
 Vélez Loor v. Panama, Provisional Measures, Order of the Court, 12 (Inter-Am. Ct. H.R. June 24, 2021), https://www.corteidh.or.cr/docs/medidas/velez_se_03.pdf.
 Welsh, supra note 24.
 Calah Schlabach, Torn Between Humanitarian Ideals and U.S. Pressure, Panama Screens Migrants from Around the World, Cronkite News (July 2, 2020), https://cronkitenews.azpbs.org/2020/07/02/humanitarian-flow-panama-migrants/.
 Plewa, supra note 25.
 Welsh, supra note 24.
 Refugee Convention, supra note 26, art. 26 (“Each Contracting State shall accord to refugees lawfully in its territory the right to choose their place of residence to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.”).
 American Convention, supra note 7, art. 41.
 Plewa, supra note 25.