Blog post written by Diego Acosta (University of Bristol) and Monica Oehler (Organization of American States), and forms part of a series of blog posts analysing the potential and shortcomings of the Global Compact on Refugees.
The adoption of the Global Compact for Refugees by the member states of the UN General Assembly on 17 December 2018 represents an important step in the protection of the rights of refugees. Its non-legally binding nature, the same as with the Global Compact on Migration, has been highlighted as a key aspect facilitating its near universal adoption – with only Hungary and the USA voting against, and Dominican Republic, Libya and Eritrea abstaining. As the representation of, almost, universal consensus, the Compact is an important political declaration and, if anything, a soft law instrument. This begs the question as to the possible legal implications the Compact will have.
In order to approach this query, it is useful to delve a bit further into the use of soft law in international law-making and its legal effects or not. This relates to discussion on compliance in international law. An increasing body of literature suggests the need to move beyond compliance in order to understand the normative effects of international law. Simmons, for example, has argued that international law influences the policy agenda, legal decisions and the propensity of groups to mobilize at national level (Simmons 2009: 114). Other authors have referred to the importance of acculturation. This is understood as a “general process by which actors adopt the beliefs and behavioral patterns of the surrounding culture” (Goodman and Jinks 2008: 726). Moreover, in this scenario, “the political costs of acting contrary” to international agreements, to which one could add international non-binding declarations, increase and thus “much of the political space” for introducing exceptions becomes narrower (Martin 1989: 555). These effects can certainly be produced by “hard” international law as well as by soft law.
For our purposes, it is important to highlight that the Global Compact, as a non-binding instrument, serves the dual function of evidencing existing law – as made clear by its reference to the 1951 Geneva Convention – as well as presenting some longer- or shorter-term policy objectives to improve cooperation and responsibility sharing. It is this second part which could be rightly identified as softer law without the intention of limiting its potential scope. As argued by Boyle, “treaties, soft law, general principles and custom interact and supplement each other” (Boyle 2018: 121).
Lessons from the Cartagena Declaration in Mexico
A useful parallel can be traced in this regard with a previous Declaration, namely the 1984 Cartagena Declaration on Refugees. When adopted, the Cartagena Declaration aimed at codifying existing law and sought to develop new law by expanding the concept of refugee to include victims of generalized violence, foreign aggression, internal conflicts, mass violations of human rights, and other situations that have seriously disturbed public order.
The Cartagena Declaration has been incorporated in the legislation of fifteen states in the Americas. Furthermore, the Inter-American Court on Human Rights has considered that “the obligations under the right to seek and receive asylum are operative with respect to those persons who meet the components of the expanded definition of the Cartagena Declaration, which responds not only to the dynamics of forced displacement that originated it, but also meets the challenges of protection derived from other displacement patterns that currently take place. This criterion reflects a tendency to strengthen in the region a more inclusive definition that must be considered by the States to grant refugee protection to persons whose need for international protection is evident”, thus applying even in those countries that have not incorporated the Cartagena Declaration into their domestic legal order.
Mexico was the first country to incorporate the extended definition of “refugee” of the Cartagena Declaration on Refugees in its General Population Law in 1990, which at that moment regulated migration. This definition was then included in the Law on Refugees, Complementary Protection and Diplomatic Asylum, published in 2011.
According to an investigation published by the Ibero-American University in Mexico, the Mexican Commission for Assistance to Refugees (COMAR), the governmental agency that process asylum petitions, has granted asylum to 372 persons under the Cartagena definition from 2013 to 2016, which represents 7.8% of refugees recognized by COMAR in this timeframe. The majority are Venezuelans (324); but also 25 Syrians; 9 Iraqis; 6 Ukrainians; 2 Colombians; 2 Guatemalans; 1 Nigerian; 1 from Ivory Coast; and 1 Haitian. The investigation found that the grounds used by COMAR for granting asylum under Cartagena were massive violations of human rights (90.3%), internal conflict (5.91%), generalized violence (2.69%), generalized violence/internal conflict (.806%), and internal conflict/massive violations of human rights (.269%).
In the past few years, civil society organizations have litigated appeals before the Federal Administrative Court, as well as amparos before Administrative Collegiate Tribunals. Although the judgments are still not jurisprudence (i.e. mandatory to all judges and courts in Mexico), judges have an important role in defining the content and scope of the right to asylum, analysing and implementing human rights instruments, such as the Cartagena Declaration, the case law of the Inter-American system, as well as UNHCR documents.
In that sense, the Plenary of the Federal Administrative Court has granted asylum under the Cartagena Declaration on two occasions: ii) in 2015 to a Ghanaian asylum seeker, a member of the Andani persecuted by the Adubu clan, which held power at the moment that the asylum seeker fled Ghana. The Court found a situation of generalized violence in terms of Cartagena caused by the conflict between the two clans that was extended in the whole country; and ii) in February 2016, to a homosexual and catholic man, who fled his country where homosexuality is criminalized and punished with imprisonment for up to 14 years. In that case, the Court applied Cartagena to determine the existence of generalized violence caused by extremist Islamist groups against non-Muslims in his country of origin.
In both trials, COMAR argued that the Cartagena Declaration was not binding, since it belonged to so-called soft law. In its resolutions, the Court ruled that: i) the definition of the Cartagena Declaration is binding since it was incorporated in the national legislation; ii) that individual persecution is not a requirement to be granted asylum; and iii) that the asylum seekers in the cases qualified as refugees under both the classic definition of refugee established on the 1951 Convention, and the extended definition of Cartagena on the ground of generalized violence.
For its part, the Eighteenth Administrative Collegiate Tribunal of the First Circuit ruled, in an amparo against a decision of the Federal Administrative Court, that COMAR is required to assess if an asylum seeker meets the classical definition of refugee. If the authority finds that the person does not meet the criteria, it should verify subsequently if the extended definition of refugee as stated in Cartagena is fulfilled in the case. This assessment requires the analysis of the context, as well as normative interpretations and resolutions of the Inter-American system of human rights and the United Nations High Commissioner for Refugees, which could rightly be considered as soft law instruments.
Finally, the Ninth Regional Metropolitan Chamber of the Federal Court of Administrative Justice has analysed the application of the extended refugee definition of Cartagena in two cases. In a case of a Honduran family threatened by gang members, the Chamber decided that the ground of generalized violence of Cartagena was fulfilled since according to public information violence in Honduras is extended in almost the whole territory and has reached levels comparable to conflict zones. The second case refers to a LGBT person fleeing Guatemala. The Chamber found that the LGBT community repeatedly suffers from inequality and exclusion in Guatemala, as well as attacks, assaults and sexual abuse, coupled with homophobic conduct of public officials, staff of detention centers, and even the public, and that such acts constitute violations of human rights. In both cases, the Chamber granted asylum in terms of both, the 1951 Convention on the Status of Refugees and the Cartagena Declaration.
It can be deduced from the rulings as well as the investigation of the Ibero-American University, which shows that the 89.5% of the cases based on Cartagena were from 2016, that before that time COMAR applied Cartagena in very rare cases and considered the Declaration only as a guiding instrument. Despite the advances in the rulings clarifying that Cartagena is a binding instrument, COMAR seems to apply it only to certain nationalities and situations, such as Venezuelans and Syrians. Cartagena has not been used by COMAR to respond to other forms of forced migration, such as the situation of Central Americans, especially Salvadorans and Hondurans, countries from which the COMAR received 24,138 asylum petitions, none of them recognized under Cartagena, even when they could meet the grounds of generalized violence or massive violations of human rights. In that sense, judges have a fundamental role in applying Cartagena objectively, guaranteeing international protection to people who require it, without regard to political considerations.
The analysis of the Cartagena Declaration is useful in seeing the interaction between domestic norms and soft law international instruments through the mediation of national courts. This could anticipate possible future trends on the effects certain aspects of the Global Compact might have, notably by serving as interpretative aid to domestic, or international, tribunals setting limits, providing guidance or determining “how conflicts between other rules or principles will be resolved” (Boyle 2018: 134). There are however some differences between the Cartagena Declaration and the Global Compact on Refugees. First, the scope of the two documents is different: The Declaration aims at a precisely described extension of a single clause, the refugee definition in the Geneva Convention, whilst the Compact contains a myriad of vaguely formulated policy recommendations on a wide range of different fields. Second, Cartagena sought to develop new law whereas the Compact does not seek to develop new law. Third, and finally, the Declaration has been incorporated in domestic law of fifteen states. It is highly unlikely that the text of the Compact will be incorporated as such in the domestic law of any signing state but rather countries will choose certain aspects and develop them in different ways in their own domestic laws. It is at that point that national courts will have a clear role to play.
Alan Boyle, “Soft Law in International Law-Making” in M. Evans (ed.), International Law (OUP, 2018, 5th ed), pp. 119-137, at 121.
Ryan Goodman and Derek Jinks, “Incomplete Internationalization and Compliance with Human Rights Law” The European Journal of International Law Vol. 19, 4, 2008, pp. 725-748.
David A. Martin, “Effects of International Law on Migration Policy and Practice: The Uses of Hypocrisy” IMR Vol. XXIII, No. 3, 1989, 547-578.
Beth A. Simmons, Mobilizing for Human Rights International
Law in Domestic Politics (CUP, Cambridge, 2009).
 Argentina, Belice, Bolivia, Brasil, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru and Uruguay.
 Inter-American Court on Human Rights. Advisory Opinion OC-21/14. Rights and Guarantees of Children in the Context of Migration and/or in need of international protection, August 19, 2004, paragraph 79.
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