AU Watch

Framework for Refugee and IDP Protection in the Americas

1. The evolution of the right of asylum in the Americas: From Refugio (Refuge)/territorial asylum Political/Diplomatic Asylum to Refugee Status

Main Debates

What are the differences between diplomatic, political/ territorial asylum within the Latin American protection framework?

To what extent does each of the two forms of Latin American “asylum” remain a discretionary right of a sovereign state and its implications for refugee protection?

How to overcome the dualism “asilo and refugio” (asylum and refuge) in Latin America?

In Latin America, is it preferable to apply regional treaties on asylum when individuals seek asylum in states parties to these instruments or refugee status under the international refugee instruments?

Main Points

Evolution of the right of “asylum” in the Americas and its codification

Distinctions between refugio (refuge)/territorial asylum and political/diplomatic asylum

Diplomatic asylum as regional customary law in Latin America

Confusion caused by the distinction between refugio (refuge)/territorial asylum and asylum granted to refugees based on the 1951 Geneva Convention and/or its 1967 Protocol

2. Refugee protection in the framework of the Inter-American Human Rights System

  •  The right to seek and receive/be granted asylum and the Rights of Refugees
  •  The Non-refoulement Principle and its expansion in the Americas
  •  Protection against Extradition
  •  Other Norms

Editor’s Note

The advancement of international refugee protection in Latin America has taken place through the adoption of soft law instruments, underlining the importance of regional approaches, international cooperation and solidarity. This development started with the adoption of the 1984 Cartagena Declaration on Refugees as a pragmatic humanitarian response to forced displacement in Latin America. The Cartagena Declaration, besides reiterating important principles and norms of international refugee law, calls for the treatment of refugees using norms and standards of the different branches of international law; it covers all the phases of forced displacement from entry to the territory to durable solutions, and it is better known for the inclusion of a recommendation for States to use a broader regional refugee definition. As part of the commemoration of the anniversary of the Cartagena Declaration, every 10 years, Latin American States have had the opportunity to reflect on current challenges and opportunities for the international protection of refugees. In this vein, in 1994 the San Jose Declaration on Refugees and Displaced Persons was adopted.

In 2004, the Mexico Declaration and Plan of Action brought a new impetus in the region for the search of durable solutions with the inclusion of three main programmes: cities of solidarity, borders of solidarity and solidarity resettlement, based on cooperation south-south and regional solidarity. As part of the preparations for the commemoration of the 60th Anniversary of the 1951 Convention Relating to the Status of Refugees and the 50th Anniversary of the 1961 Convention on the Reduction of Statessness, the Brasilia Declaration on the Protection of Refugees and Statess Persons in the Americas was adopted at the end of 2010. The Brazil Declaration and Plan of Action was adopted by 33 States and territories from Latin American and the Caribbean at the end of 2014 as part of the commemoration of the 30th Anniversary of the Cartagena Declaration on Refugees. At present, with the exception of Cuba which is still not party to the international refugee instruments, all Latin American States have adopted national legislation on refugees and have refugee status determination procedures. The broader refugee definition recommended by the Cartagena Declaration on Refugees has been included in national legislation of 14 States in the region.

3. Application of the 1951 Geneva Convention through the regional mechanisms and national legislations

Main Debate

  • Does the regional human rights protection framework (to the extent it is interpreted as legally binding by the Inter-American Court of Human Rights) effectively protect refugees’ rights?

Main Points

  • Reluctance to directly apply the international obligations derived from the 1951 Geneva Convention
  • Slow transposition of the 1951 Geneva Convention provisions into national legislation in Latin America and the Caribbean
  • Paucity of judicial decisions for the protection refugees in Latin America and the Caribbean

Inter-American Court of Human Rights

  1. Advisory Opinion “Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection” OC-21/14, Inter-American Court of Human Rights (IACrtHR), 19 August 2014. Reference is made to the progressive adoption of national refugee legislation in Latin America and the incorporation of the broader refugee definition recommended by the Cartagena Declaration on Refugees.

4. Protection of internally displaced persons with special attention to the case of Colombia

Main Debates

  • In the case of Colombia, what have been the results achieved by the protection offered by national institutions, in contrast with the results of the protection offered by the international community?
  • What are the direct and indirect consequences of UNHCR’s activities beyond its traditional mandate in Colombia: does assistance to the internally displaced come at the expense of refugees?

Main Points

  • National status of ‘internally displaced person’ versus refugee status
  • Situation of the internally displaced in host communities
  • Problems related to voluntary return (as durable solution) in the framework of a conflict
  • Protection of human rights (including non-refoulement) versus concerns of regional security
  • Eventual reparation measures in the Inter-American framework of human rights protection versus situation of grave and massive human rights violations

5. The North American regional materials

Main Debates

  • Is the implementation of the 2002 Canada-USA “Safe Third Country” agreement leading to the violation of protection obligations by either country?

Treaties

  1. Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, signed on 5 December 2002, as part of the Smart Border Action Plan, and entered into force on 29 December 2004.