The impact of the Cartagena Declaration in Latin America – The Case of Ecuador

Introduction

The well established traditional Asylum System in Latin America[2] created to protect high profile or well-known individuals from political persecution and the Protection System of the Inter-American Conventions on Asylum designed to solve refugee problems underwent numerous tests due to experiences of different crisis after the Second World War. The experiences of mass refugee flows from Cuba in the sixties, South America in the seventies and Central America in the eighties, involving countries such as El Salvador, Guatemala and Nicaragua did reveal that States and Communities in this region of the world were simply not prepared for these type of refugee and humanitarian emergencies involving a massive increase in individuals seeking Asylum[3], recognized refugees, repatriates, internally displaced population as well as externally displaced population who feared being sent back to their countries where they could face persecution, discrimination and punishment as well as military incursions in their refugee camps. These new challenges demanded new solutions and forced governments to abandon the Asylum tradition and apply the Universal System more extensively with the assistance of UNHCR[4], crucially, it also required an improvement of the existent Universal and the Interamerican System. In November 1984, in response to this refugee crisis a group of government representatives, academics and lawyers from Central America, Mexico and Panama met in Cartagena, Colombia, and adopted what became known as the Cartagena Declaration on Refugees.

This essay first will explore the history and definition of the Cartagena Declaration in the Latin American context while also examining in a general way the development of new Asylum legislation, strategies and practices that have incorporated the principles of this declaration, it will then analyze the impact of the Declaration and its new Plan of Action on the domestic legislation and practices in Ecuador. The argument of this essay is that the Declaration has made a substantial contribution to the Latin American System by setting a flexible framework for the construction of a Common Asylum System aiming to protect the victims, integrate communities and seeking the harmonization of standards and practices in the region, however, in practice many challenges remain, the situation in Ecuador is revealing that unless robust and strong action is taken by Governments and Civil Society the current Asylum System in Latin America will promote exclusionary and minimalist practices. A Latin American Action Plan is suggested in this essay clearly highlighting the need for new strategies to be discussed at the regional level using new mechanisms such as the Community of Latin American and Caribbean States (CELAC) and the Union of South American Nations (UNASUR).

The Cartagena declaration

According to Gibney (2005) the earlier definitions of the Latin American Asylum System only recognized persecutions for political reasons and not for reasons of religious or ethnic affiliation. However, the experiences of different crisis of massive flows of refugees in the region forced them to transform their Asylum System. Those new refugees were not primarily urban dwellers, nor do they consist mainly of members of the social or political elite such as politicians, labor leaders and intellectuals. Instead, these refugees originated from rural areas and were mostly ethnically mixed. A practical and regional solution was required to solve this refugee crisis. As a result of that, experts and government representatives met for a colloquium in Cartagena de Indias, Colombia in November 1984 where they adopted the Cartagena Declaration.  It is very important to point out that this declaration was adopted in a background in which many Latin American countries were either not party of the international instruments on refugees or they had only just adhered to them and they had neither national legislation nor procedures to fully implement the normative framework of the 1951 Convention relating to the Status of refugees (UNHCR, 2005: 21)

The Declaration is a non-binding agreement that expands the meaning of Refugee, applicable to individual systems for refugee status determination as well as to situations of large-scale influx. It incorporates objective elements without accounting for the subjective aspects related to the well-founded fear concept articulated in the 1951 Convention. It also leaves aside any reference to the element of “persecution” that might lead to rejection or objection by the State of the country of origin. The third conclusion of the Declaration states that “…the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order. The declaration addresses issues of the entire cycle of forced displacement, ranging from entry and reception of asylum seekers and refugees, to their humanitarian treatment and to the search for durable solutions while putting emphasis on voluntary repatriation, local integration and resettlement, and the establishment of a framework of principles that was later developed by the CIREFCA[5] (ibid: 23).  Indeed, a primary source of interpretation is CIREFCA that provides “principles and criteria for the protection and assistance of Central American refugees, returnees and internally displaced in Latin America. This definition refers to factual situations stemming from conflicts or serious disturbances of public order which can be objectively verified and which may be found to be the cause of the flight of the persons mentioned in the definition.

According to Kneebone (2007: 9) the primary purpose of the Declaration was to promote the adoption of national laws to implement the 1951 Refugees Convention and 1967 Protocol, “thus fostering the necessary process of systematic harmonization of national legislation on refugees”. Under this definition, refugees are primarily persons whose life, security or liberty is threatened. The inclusion of generalized violence, internal conflicts, and massive violations of human rights expands the refugee definition. In a similar way, the Declaration includes minimum standards of treatment and protection and assistance in the areas of health, education, employment and security and makes explicit some of the principles of Refugee law such as consideration of the pacific, non-political and exclusively humanitarian nature of conceding asylum or recognition of the condition of refugee, the voluntary and individual character of the repatriation of refugees, and the reunification of the family (UNHCR, 2005: 313).

Gydney (2005) argues that although the Declaration extends the Refugee Convention´s understanding of persecution to include those abused as a result of socio-political unrest, it also limits the obligation to provide protection to cases where a real risk of harm can be proven, which is similar to the burden of proof placed on an asylum claimant under the Refugee Convention.

The Cartagena Declaration should be interpreted as a flexible project to include people through the coordination and cooperation of different agents aiming to provide solidarity and humanitarian assistance. It is not just simply a document it is a process, it is not just a non binding legal instrument, it is the main Directive that set the principles for a common strategy at the regional level and a framework that provides a vision that focuses on providing Protection and Durable Solutions. The declaration also provides minimum standards of treatment. Hosting states must fulfill their pending obligations to provide assistance and satisfaction of vital needs, Family protection, Access to sources of subsistence and Humanitarian treatment in accordance with human dignity while prohibiting any kind of cruel, degrading or inhuman treatment.

There have been many normative and institutional developments in the region. The 1994 San Jose Declaration broadened the law in order to extend protection, in particular, to the internally displaced. In 2004, the Mexico Plan of Action was also adopted in order to deal with the new crisis of Refugees and Asylum Seekers from Colombia. According to UNHCR (2012a) the definition has been incorporated into the national legislations of fifteen countries in the region, however, some countries have recently adopted pre-admissibility procedures or procedures for manifestly unfounded or abusive claims, often without appropriate safeguards. In 2010 Chile passed a Refugee Law, and in 2011 Mexico included gender as a ground for persecution and it has established itself as the first country in Latin America to grant and regulate complementary forms of protection.  Eighteen Latin American countries reiterated their commitment to the 2004 Mexico Plan of Action by adopting the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas in 2010. Eight countries are in the process of acceding to the 1961 Convention on the Reduction of Statelessness, while four are developing statelessness determination procedures to ensure that stateless persons are identified and provided with administrative assistance. Panama acceded to both statelessness conventions in 2011. Finally, Refugees and asylum-seekers in Argentina, Bolivia, Brazil, Chile, Paraguay, Peru and Uruguay benefit from a legal framework that is generally in line with international protection standards and National Refugee Commissions have made advances in several areas, including safeguards for victims of trafficking and unaccompanied children.

The Mexico Plan of Action

The Cartagena Declaration provided the basis and the principles for the Mexican Plan Action which is a regional strategic and operational framework developed to address the complex humanitarian situation resulting from forced displacement in Latin America specially from the presence of larger number of Colombian and other Asylum seekers and refugees.

Beyond a purely legal perspective, the objective of the plan is to promote the development of Public Policies and Programmes that permit the full exercise of rights and facilitate the process of economic and social integration of the population in need of International Protection. The Protection component of the Mexican Action Plan focuses in four specific areas as well as on the recognition of the differentiated Protection needs based on gender, age and diversity, namely: Strengthening of the legal and operational framework for the Protection of Refugees and IDPs in the region, Strengthening of the National Commissions for Refugee status determination, Strengthening of the National and Regional protection networks and the training and promotion of International Refugee Law (research and doctrinal development).

The objectives of the plan are aligned to the principles of the Cartagena involving an innovative approach on Durable Solutions and Regional collaboration. Strategies have been developed to improve the quality of Asylum and to encourage the local integration of persons in need of Protection in urban areas (Cities of solidarity component) and in the main border areas (Borders of Solidarity component).  The new approach in durable solutions also includes the strategic use of the resettlement as a Protection and regional solidarity tool (Solidarity Resettlement component).

Following the principles of the Cartagena declaration of working with NGOs and development actors, the Mexican Action Plan has been a favorable framework used to promote the participation of development agents and actors from Civil Society in issues of refugees and IDPs. Civil society has made a substantial contribution of the Asylum System in Latin America by providing monitoring and evaluation of the Action Plan. In November 2010, a conference on the Protection of displaced and refugee population was carried out with the objective of presenting the results of different activities implemented by several countries in relation to the Mexican Action Plan.

The Situation in Ecuador

According to the latest figures from UNHCR (2012b) Ecuador has the highest number of refugees in Latin America. At the close of 2000 there were only 390 recognized refugees in Ecuador, however, as of December 2011 the Ecuadorian government had recognized 55,092 refugees. Since 2000, 150,544 people have requested asylum in Ecuador and more than 98% of the Refugees in Latin America are from Colombian Background. Approximately 60% of the refugee population lives in urban areas, whilst 40% are based in rural districts. Despite not having participated in the 1984 Cartagena colloquium Ecuador incorporated the broader definition of Cartagena into their National Refugee Legislation in 1992.  The 2008 Ecuadorian Constitution guarantees the full exercise of basic Human Rights irrespective of nationality and migratory status and recognizes the principles of human mobility and universal citizenship along with the right to seek asylum proclaiming equal rights for refugees, and non-discrimination as a fundamental principle. The presidential decree N° 3301, published in the Official registry N° 933 de 12 de mayo de 1992 has incorporated the provisions contained in the 1951 Geneva Convention relating to the Status of Refugees and its 1967 protocol as well as the extended definition of “Refugee” as per the 1984 Cartagena Declaration. Currently, this Decree is under revision.  Ecuador also ratified the 1954 Convention on the Status of Stateless Persons in 1970; and is considering accession to the 1961 Convention on the Reduction of Statelessness. As signatory of the Convention, the government also supports UNHCR´s work and fosters positive policies on refugees, fulfilling its international obligations of the Cartagena Declaration under individual procedures for refugee status determination.

In September 2008, Ecuador adopted a comprehensive refugee policy. Under this policy, the Government implemented the Enhanced Registration Project, which registered, documented and provided refugee status to some 27,740 refugees between March 2009 and March 2010. The Enhanced Registration Project is perceived as representing one of the most generous contributions to the protection of refugees in Latin America. The application of the refugee definition contained in the Cartagena Declaration is considered to be the most innovative protection tool in the region, positioning this exercise as an example of Regional Solidarity and a strong contribution to the Protection of Refugees.

Following the implementation of the Enhanced Registration Project, UNHCR (2011b: 2) noticed a change in the practice of the Government of Ecuador, which led to the introduction of a series of measures that resulted in the restricted access to the Asylum System and in the reduced number of Refugees in the country. This new practice adds to the existing difficulties in accessing Asylum procedures, especially for people residing in remote border areas, due to the distance and the high cost involved in reaching several times a representation of the Refugee Directorate, to present an Asylum claim and follow-up on the procedure.

In a similar vein, UNHCR (ibid: 2,3) advocates against introducing admissibility procedures, which they consider it hinders the effective right to seek asylum. In particular, they noted that the  pre-admissibility procedure introduced in Ecuador raises a number of concerns, including: retroactive application to asylum-seekers who applied for refugee status before the introduction  of the new procedure; application to unaccompanied adolescents and children; lack of adequate information on the admissibility process, uncertainty among asylum-seekers about the procedure that they must follow; lack of possibility to appeal a negative decision; persons in the pre-admissibility procedure (which can last up to 90 days in some provinces) are not provided with a recognized document, being exposed to detention and possible deportation.

In addition to that, delays in the processing of application creates frustration and uncertainty among people affecting the Asylum Seeker who is not able to access the Labour Market. There is a high level of xenophobia and authorities keep an eye on the Visa Expiration Date, (Exclusionary attitude) without taking into account first their rights. The category “Refugiado” is generating also obstacles in obtaining a job or accessing to different public and private services.

Since January 2011, in accordance with Ministerial Agreement 000003, which regulates the applicability of Article 3 of Executive Decree 1635[6], the Refugee Directorate has been given the prerogative to declare inadmissible asylum requests determined to be manifestly unfounded or abusive. According to the Refugee Directorate, around 30% of asylum requests are declared inadmissible.

What this analysis by UNHCR suggests is that challenges posed by the discrepancies between the legislation and the application of some key constitutional rights are limiting access to rights for the refugee population. This includes ensuring that all refugees and people in need of international protection have access to an effective asylum procedure and due process and to bring this in line with international protection. Ecuador´s constitutional and legal framework, as far as the refugee population is concerned cannot in itself guarantee the effective respect for their rights, particularly considering the widespread stigma suffered by refugee women and accompanied minors, Afro-descendants and indigenous citizens. Legal norms of protection are not currently applied effectively and this clearly affects the guarantee of rights of refugees and asylum seekers. In the borders applicants do not benefit from adequate mechanisms and security protocols from the authorities who in many occasions end up violating their rights.

The high and increasing number of refugees in Ecuador is clearly putting strains and tensions on the political, economic and social structure of Ecuador which do not have neither strong infrastructure, legislative and administrative means to cope with such number. Many refugees do not manage to integrate and have limited access to rights such as housing, health, education and employment. There is furthermore a lack of monitoring and application mechanisms in the local authorities.  Civil Society has demanded from the Ecuadorian government in repeated occasions the harmonization and inclusion of secondary legislation in asylum and refugee matters from a human rights perspective in the framework of the constitutionals frameworks and international standards, the incorporation of Social Programmes and actions in all their national plans for the benefit of those individuals in need of international protection.

A proposal of incrementing the number of offices of the General direction of refugees in the frontier as well as to extent the validity of the ID of the refugees and Asylum seekers has been made by the Delegate of the Ombudsman Office in Ecuador in order to promote human development of the population in the border.

During the 20th Anniversary of the Cartagena Declaration different commentators highlighted that Asylum seekers and Refugees in Latin America still continue confronting challenges already identified in the past. 8 years later in 2012 this situation has not really changed: The protection needs of the victims of persecution, intolerance, human rights violations, violence and conflicts co-exist with social exclusion, poverty, unemployment, organized crime, corruption and the struggle against drug trafficking and terrorism ( UNHCR, 2005:16).

Latin American Action Plan

In addition to designing more legislation at the country and regional level with the objective of raising the level of protection above the minimum standards, Latin American countries should aim to create more instruments in order to ensure that the number of refugees is equally distributed among Latin America by coordinating mechanisms which will enable countries to share responsibilities and support each other in building capacity and protection of refugees. This action will send a positive message and express their solidarity with countries such as Ecuador that currently has the highest number of refugees in Latin America and is facing larger strain on its protection system due to the disproportionally large influxes of Colombian refugees in to its territory. Coordinated cooperation in the processing of Asylum claims (i.e. by sending experts from different countries in Latin America to participate in the Enhanced Registration process in Ecuador and expanding Regional Resettlement Programmes), better harmonization of legislation and the creation of a Latin American Refugee fund able to provide cash transfers to refugees in need of international protection will ensure that the principles of protection and durable solutions established in the Cartagena Declaration are better implemented. These strategies must be discussed as a priority at the regional level using new mechanisms such as the Community of Latin American and Caribbean States (CELAC) and the Union of South American Nations (UNASUR).

Conclusion

The Cartagena Declaration represents a flexible and practical instrument that articulates and attempts to harmonize legitimate concerns related to security and regional stability with humanitarian needs for the protection to those in need and to promote durable solutions, it constitutes a compilation of best practices, based on the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which brings together the generous tradition of Asylum in Latin America, however, still many challenges remain. The example of Ecuador suggest that unless robust and strong action is taken the Asylum System in Latin America will increase exclusionary and minimalist practices, several proposals are suggested in this essay clearly highlighting the need for a new Action Plan and new mechanisms to ensure a clear commitment from Latin American states as well as new coordinated strategies at the regional level using new and pre-existing regional institutions.

Bibliography

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[2]According to Galindo-Velez in UNHCR (2011a). There are three Systems of Asylum in Latin America: 1. The Latin American System of Asylum and Extradition, established in Treaties and Conventions on Territorial and Diplomatic Asylum as well as Extradition, being codified since 1889 (covering political asylum for high profile or well-known individuals). The Interamerican System, a System of human rights developed from Regional Human Rights Instruments: the 1948 American Declaration on the Rights and Duties of Man and the 1969 American Declaration of Human Rights which contain principles regarding Asylum (only the Interamerican System recognizes the jurisdiction of the Interamerican Court of Human Rights) and 3. The Universal or UN System according to the 1591 Convention, the 1967 Protocol relating to the Status of Refugees and the Cartagena Declaration 1984.

[3] In the Inter-American sphere, the terms Asylum and Refugee are used synonymously to designate the admission of a person into territory under the jurisdiction of the hosting State and to specify the protection that such state must guarantee in compliance with the Interamerican Conventions. At the United Nations level instead, a distinction must be made between the concept of asylum and refugee status. The term Asylum is used to describe the simple physical admission of one or more persons into the territory of a State while the State examines and decides on the refugee status.

[4] United Nations High Commissioner for Refugees

[5] International Conference on Central American Refugees. The legal document of this conference is a primary source for the consistent and coherent interpretation of the broader refugee definition proposed by the Cartagena Declaration.

[6] As this admissibility procedure is regulated by a Ministerial Agreement, which does not have to be published in the Official Gazette, concerns could be raised about the legality and constitutionality of this procedure. The newly introduced measures negate the right to appeal administrative decisions, affecting directly the right of legal recourse of asylum-seekers who wish to challenge the lawfulness of a negative decision on their asylum application.

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