Four years ago, immigration became front and center in American politics, specifically with then-candidate Trump’s portrayal of Mexican immigrants coming into the United States. Of course, not every American view Latin Americans as rapists or criminals, but the term “illegal immigrant” and those seeking asylum once they live in the United States tell what it means to be a refugee as a Latin American in the 21st century. Unlike refugees from Syria or Afghanistan fleeing civil war or violence from non-state actors, refugees from Latin America are instead fleeing civil unrest. However, it is not from the government directly. These immigrants are what Sam Moyn calls “socioeconomic migrants” as they are fleeing their country due to a lack of economic opportunities and civil unrest caused by gangs instead of the government itself. The absence of addressing crises, such as gang violence or socioeconomic disparity, illustrates the flaws of the human rights regime. When discussing the refugee crisis in Latin America, many questions arise in terms of human rights. It is difficult for them to seek asylum, and the dangerous means they have to escape their home country.
What constitutes a refugee stems from The Refugee Convention and the Universal Declaratiom of Human Rights (UDHR), which were mainly reactionary to WWII events and addressed those affected by the Holocaust. Vital to the Rufugee Convention and the drafting the UDHR was the “Never Again” campaign, as the world had never seen atrocities committed as seen with the Holocaust. In the Refugee Convention, one was qualified as a refugee before 1951 if they were persecuted based on “race, religion, nationality, membership of a particular social group or political opinion.” The label of a refugee protects those displaced in Europe due to the Holocaust and can no longer return to their country of origin out of fear or other reasons. At the time, there was no global definition of what constituted a refugee after 1951. Instead, there were regional pacts to address this issue.
Another necessary provision of the Refugee Convention that is often overlooked is Article 31, which states that if an asylum seeker has entered a country illegally, they shall not be punished for doing so. This begs the question: if the Refugee Convention also allows protection to those entering a country illegally, why do agencies such as ICE exist? Like many conundrums in human rights and international law, the answer is due to the Convention being non-binding.
First and foremost, the Refugee Convention is limited because it deals with the millions displaced following WWII. Concepts currently facing migrants coming to the United States from Latin America were not in the authors’ periphery. The 1967 Protocols expand the protections put in place by the Refugee Convention by expanding the geographic and temporal applications from decolonization efforts around the globe. Meaning that those who signed the 1967 Protocols also must respect the 1951 Refugee Convention.
The last half of the twentieth century in Latin America caused a surge in the number of refugees due to the Cuban Revolution and the coups throughout Central America and the Southern Cone. Due to many people being displaced, there was a pressing concern about whether these individuals could be protected. Another significant human rights crisis facing the region was the rising instances of the “disappeared” in the military juntas – such as Brazil and Argentina. By the 1970s, the number of refugees was immense. It was scattered throughout the region since it was no longer a small set of individuals seeking political asylum but a large mass. To address this issue, 13 nations met to come up with a comprehensive view of refugees. In 1984, the Cartagena Declaration would define refugees as those affected by generalized violence, foreign aggression, internal migration, massive violation of human rights, or other actions that severely affected the public order. This new approach to defining refugees would become essential as it encompasses the current refugee crisis and the regional issues Latin America is still facing nearly 40 years later.
In 2014, the Brazil Declaration and Plan of Action incorporated more countries. The plan of action was significant as it was the first time the Cartagena Agreement was utilized in admitting refugees when Brazil admitted over 100 Venezuelan refugees due to the economic and political crisis facing the country. This marked a turning point in the protection and expansion of refugees. Since 2019, there have been 4 million refugees fleeing Venezuela, and if more countries take the same course of action as Brazil, then the crisis will not be as dire.
When discussing why so many Mexicans want to leave their country, the list is exhaustive; lack of economic opportunity forced requirement into the cartels, gang violence, and severe corruption instances. Many refugees that seek asylum in the United States do not qualify since they are not affected by the violence caused by the state or by the new limitation put in place by the Trump administration. In 2019, the United States denied entry to those seeking asylum, even though they were protected. One could argue that the Refugee Convention indeed protected these people as they fear persecution, but it must come from the state to be protected under these provisions. Even when crossing the border, migrants are severely vulnerable to being used to smuggle drugs across the border.
Since 2006, there has been a significant rise in forced disappearances by security forces and criminal organizations. In Mexico’s case, these two culprits coincide due to many law and security forces being paid off by these criminal organizations. Between 2006 and 2018, more than thirty-seven thousand people have gone missing, including students, journalists, and civilians. The current president in Mexico has attempted to take a different stance on the cartels with “abrazos no balazos” or “hugs not bullets” by taking a more social approach than a militaristic one. With this policy, AMLO has dismantled the federal police in favor of a National Guard and has put money towards education, stipends, and drug treatment. A major setback is due to the lack of enforcement, there has been a spike in human trafficking. Mexico’s lack of coherence in tackling the cartels and social disparities has caused many of its citizens to flee.
The Refugee Convention lacks in addressing these crises because they did not arise because of persecution on behalf of the state; it also goes beyond the cartel’s violence due to the large amounts of poverty in Mexico. The Refugee Convention is of note regarding what protections are in place for those who arrive illegally with Article 31. Nevertheless, as in many international law instances, the Declaration is not fully applied since it is non-binding. The Cartagena Agreement has also not been fully incorporated into the countries’ legal framework that signed it, as seen with Mexico’s treatment of Central American refugees. Going beyond Mexico and the cartels, there are also many climate refugees originating from Central America who need protection under the Cartagena Agreement. During the 2010s, the most considerable amount of immigrants coming in from the southern border was from Central America. However, the COVID-19 crisis caused even tighter border control between the United States and Mexico, generating even more influx of petitioning cases for asylum seekers.
With those seeking asylum in Mexico but are being detained at the border, due to COVID-19, it raises questions regarding refoulement and Article 33. The shutdowns have caused the immigration courts to shut down leaving many vulnerable to deportation within the United States. Across the border in Mexico, it’s not just Mexicans who are seeking asylum but also migrants from Ethiopia. These asylum seekers have tried to enter the country via illegal means as the ports of entry have been closed, and end up getting deported back to their country of origin. The United States has not been the only actor who has deterred immigration due to the pandemic, Guatemala, Honduras, El Salvador and Mexico have also placed severe travel restrictions and other harsh measures such as military force to disperse caravans or other large gatherings. By deporting these migrants back to their country of origin or limiting the ability to seek asylum, the COVID-19 crisis has amplified the controversial action of refoulement under the guise of preventing the spread of the virus.
Signing countries such as Brazil have incorporated the Cartagena Declaration into their immigration laws. However, regarding the current situation with the Mexican-American border, the United States should consider becoming a signatory member. Another valuable clause of the Declaration is that it facilitates naturalization for refugees. When Donald Trump came into power in 2017, immigration was a major component to his platform due to the undocumented immigrants that were residing in the country. Under his administration it severely limited the ability to seek naturalization and decreased the number of refugees entering the United States. Now with Joe Biden becoming president, he has sought to lower these restrictions and provide a path to citizenship with undocumented immigrants, and the Cartagena Declaration perfectly coincides with this agenda.
The Cartagena Declaration stands as a landmark in defining refugees because it encompasses more relevant issues than the 1951 convention. It more accurately represents Article 14 of the UDHR, which states that everyone has the right to seek asylum. With the rising dysfunctionality in Mexico and climate change in Central America, other countries’ need to incorporate the Declaration the same way Brazil did is essential.