Regional Policy Approaches and

Harmonization:
A Latin American Perspective

JOSE H. FISCHEL DE ANDRADE*

Abstract
There is a growing trend towards the harmonization of norms and procedures in a
variety of legal fields, including refugee law. While the 1951 Convention can guide the
systematization of current practice, flexibility will often depend on regional realities,
values and experiences. Ideally, regional policy approaches to refugee protection should
complement this regime, but without neglecting the general principles endorsed by the
international community. In this paper, the author examines regional policy approaches
and the processes of harmonization. He refers to the different definitions in Latin America
with regard to refugees and people in need of international protection, and to existing
procedures for determining refugee status in the region. The author takes note of
UNHCR's position on die policy of regional harmonization, and refers to the pragmatic
approach adopted in the 1984 Cartagena Declaration. In his view, regional harmonization
of legislation in Latin America is necessary to avoid conflicts and contradictory solutions
to similar problems, and he suggests mat both UNHCR and the supervisory organs
established under the 1969 American Convention of Human Rights could play a useful
role in this area. So far, only a very limited number of countries in Latin America have
enacted refugee legislation and established procedures for the formal recognition of
refugees, and the author makes a number of recommendations for a regionally harmonized
approach, suggesting that it is in the interest of States to avoid unregulated policies.

1. Introduction
The question of regional approaches arises within the context of the
growing trend in this direction and towards the harmonization of norms

* LLM in International Law (USP, Sao Paulo), Diplomi (Institut International des Droits de
l'Homine, Strasbourg), Member of the International Law Association (ILA) Committee on Refugee
Procedures. This article is based on a revised version of a paper presented on 23 Oct. 1996, at the
proceedings of the Committee on Migration and Nationality Law on the occasion of the 26th
Biennial Conference of the International Bar Association (IBA), held in Berlin from 20—25 Oct.
1996. The author is a staff member of UNHCR, but the views expressed are his personal views and
are not necessarily shared by UNHCR or the United Nations.
International Journal of Refugee Law VoL 10 No. 3 © Oxford University Press 1998
390 Jose H. Fischel de Andrade

and procedures in a variety of legal fields, including refugee law in

particular.
As the nature of refugee flows has changed from what those who
drafted the 1951 Convention might have expected, States have been
interpreting this and other international instruments and applying
international refugee law in quite different ways. One major challenge
seems to be rationalization and systematization of existing practice. To
a certain extent, this can be undertaken by interpreting the 1951
Convention in good faith, with a generous and liberal application, bearing
in mind its principal objective. The 1951 Convention has proved to be
a solid, yet flexible, instrument for affording international protection to
the millions of refugees throughout the world, and it continues to have
direct relevance for many, if not most, contemporary refugee situations.'
It is thus a pivotal human rights instrument, which still attracts both
ratification and the continuing loyalty of States Parties.
The validity and relevance of the 1951 Convention should thus guide
the rationalization and systematization of the current practice, which is
also premised on the elasticity of the present structure. This elasticity will
often depend on regional realities, values and experiences. Hence, regional
policy approaches to refugee protection, without neglecting the general
principles endorsed by the international community, should complement
and guide actions to resolve, or at least alleviate, the refugee problem.
The analysis proposed in this article firstly examines what has been
and is being considered in terms of regional polity approaches of refugee
protection and its harmonization. Consideration is then given to the different
definitions existing in Latin America with regard to refugees and people in
need of international protection, and subsequently to existing procedures for
determining refugee status in this region.
The harmonization of interpretations of the definition of a refugee is not
dealt with because, in contrast to other regions, in Latin America there
are various definitions of a refugee and of people who are worthy of
international protection which are derived from the diverse legally binding
and non-binding regional and sub-regional instruments. Thus, in this
region it is important first to tackle the need to harmonize the applicable
definitions, and only thereafter to consider, as the need arises, the
harmonization of interpretations.

1
G. Walzer, 'Statement of the UN Deputy High Commissioner for Refugees on the Occasion
of the 1 Oth Anniversary of the Cartagena Declaration on Refugees', in Memoria del Colapao International:
10 AOos de la Declaration de Cartagena soirrt RtfugwAos (Colloquium of San Jose de Costa Rica, 5—7 D e c
1994), San Jose, ACNUR/LLDH, 1995, 30.
 Rfgional Polity Approaches and Harmonization 391

2. Current trends of regional policy approaches and of

harmonization
2.1 Regional policy approaches: a cautious but fundamental
step
Not too long ago it was asserted that refugee law should be developed at
a global level, and that it would be regrettable if solutions to the refugee
problem could not be found in the framework of the United Nations.2
Today, it is understood that the time is not ripe for a new legal framework
constructed by the adoption of new instruments based on universal criteria
and needs.3 Even if it were otherwise, there can be no universal set of
practical measures or responses; efforts to ameliorate causes, protect those
in need, and allocate responsibility for resolution of die problems must
differ, depending on the character of the movement.4
Regional initiatives need to be carried out in a cautious manner given
their potential impact and 'ripple effects' in other regions. The objective
of a regional policy approach is to mitigate the flaws and deficiencies of
the 1951 Convention relative to contemporary forced migration, and to
adapt international refugee law to existing regional refugee problems. In
this process regional instruments ought necessarily to incorporate and be
compatible with universal principles, and ought in turn to be interpreted
and implemented in accordance widi diese principles. Regional systems
are not aimed at superseding the universal one, but rather at
complementing and supplementing it whenever need be. As a
consequence, regional phenomena should always be analysed and tackled
parallel to the universal.
Regional developments give rise to many advantages. By adapting the
global system to the specific realities of a region or sub-region, various
positive factors are taken into account, such as specific particularities,
mutuality of interest, cultural compatibility and social traditions.
Furthermore, regional organizations are generally in a better position to
play an active role in peace-making and peace-keeping, because of their
equitable geographical representation which facilitates the achievement
of consensus. Solutions therefore may be 'custom-made' to the special
circumstances diat arise.5 Regional initiatives, by their pragmatic nature,
2
See A. Grahl Madsen, Territorial Asylum, London/Stockholm, Oceana Publ./Almqvist & Wikscll
International, 1980, 66.
3
See G. Coles, 'Approaching the Refugee Problem Today', in G. Locscher and L. Monahan
(eds.), Refugees and International Relations, Oxford, Clarendon Press, 1990, 383; P.H. Kooijmans, 'Trends
and Developments in Asylum and Admission of Refugees', Yearbook of the International Institute of
Humanitarian Law 159 (1986-87); D.L. Garrido, El Derecho de Asilo, Madrid, Ed. Trotta, 1991, 29.
4
P.M. MoussaUi, 'International Protection: The Road Ahead', 3 IJRL 610 (1991).
5
Sec L. DrQcke, Pmxntwc ActionforRefuge Producing Situations, 2nd ed., Frankfort am Main, Verlag
Peter Lang (European University Studies: Ser. 31, Political Science, vol. 150), 1993, 44; Coles, above
note 3, 393.
392 Jose H. Fischel de Andrade
facilitate removing the difficulties and limitations which often characterize
actions taken at the universal level. Of course, there are also difficulties
originating from regional approaches, such as the lack of experience,
structure, financial means and procedures of many regional organizations
to respond effectively to conflicts and to humanitarian emergencies.6
Notwithstanding such drawbacks, regional policy approaches of refugee
protection and mechanisms seem to be the best option to articulate and
to consolidate various regional principles relevant to solutions of refugee
problems.7 Caution is required, however, in that a regional policy approach
should not involve a lowering of the standard which has, with so much
effort, been established at the universal level.8
Many regions have already realized the benefits and convenience of
regional initiatives. Europe is in the forefront of this process, although its
posture may be well criticized for its restrictive-oriented policy (see further
below). It has been asserted that Europe needs a refugee system of its
own, both to address its regional refugee problems and to help ameliorate
the global refugee problem, what should be carried out by managing
refugee and migration pressures as part of Europe's central economy,
political and security objectives.9 However, when developing its own
system, European countries should pay due regard to the impact that its
policy may have in other regions, which is sometimes positive, but more
often negative.
For example, in 1988 the Corrosion Espanola de Ayuda al Refiigiado (CEAR)
approved a report on a numerus clausus policy, by which a selective,
regionalized policy suggested that Africans be given protection and
assistance in Africa, Latin Americans in Latin America, and so forth.10
Proposals like this, as well as interpretative decisions regarding principles
like 'first country of asylum' and the implementation of deterrence
measures, require critical and careful scrutiny.
Asia has not developed explicitly regional initiatives like those in other
regions. The Asian-African Legal Consultative Committee thirty years
ago seemed to be initiating an activity which would bring forth promising
results." However, the expected development has not occurred. Apart
6
See G. Loescher, Beyond Chanty: International Cooperation and the Global Refugee Crisis, New York/
Oxford, Oxford University Press, 1993, 190; Druckc, above note 5, 175.
7
See P.M. Moussalli, 'Fundamental Principles in die International Protection of Refugees and
Displaced Persons: T h e Role of the U N H C R ' , in Round Table ofAsian Experts on Oaml Problems in the
International Protection ofRefugees and Displaced Persons (Seminar ofManila, 14—18 Apr. 1980), San Remo,
IIHL/University of the Filipines, 1980, 12.
8
Ibid.
9
See Loescher, above note 6, 163. For some of the regional initiatives carried out by and within
the European Parliament, the Council of Europe and die European Commission, see D.L. Garrido,
above note 3, 191-202.
10
Garrido, above note 3, 187.
" In August 1966 in Bangkok, the Asian-African Legal Consultative Committee adopted, at its
Eighth Session, the 'Principles Concerning Treatment of Refugees'; for text, see Collection of International
Instruments Concerning Refugees, Geneva, U N H C R , 1990, 2 0 1 .
 Regional Policy Approaches and Harmonization 393
from a very constructive academic contribution given in April 1980 by
the 'Round Table of Asian Experts on the International Protection of
Refugees and Displaced Persons', which took place in Manila, the only
remarkable Asian initiative was the 1989 Comprehensive Plan of Action
(CPA) on the problems of Indo-Chinese asylum seekers in the South-East
Asia region and its predecessor, the 1975 Orderly Departure Programme
(ODP).12
From the influxes of forced movements in the 1960s to the current
ones, Africa has been facing enormous refugee problems. African countries
have always been preoccupied in providing regional responses to their
refugee problems. On 10 September 1969, the Convention Governing the
Specific Aspects of Refugee Problems in Africa was concluded under the auspices
of the Organization of African Unity; besides embodying the 1951
Convention refugee definition, Article I adds that,

the term 'refugee' shall also apply to every person who, owing to external
aggression, occupation, foreign domination or events seriously disturbing public
order in either part or the whole of his country of origin or nationality, is
compelled to leave his place of habitual residence in order to seek refuge in
another place outside his country of origin or nationality.'3

The 1969 OAU Convention (which besides its expanded refugee definition
also touches upon issues never dealt with before in an international legally
binding instrument, such as voluntary repatriation) is considered an
effective regional complement to the 1951 Convention. Apart from recent
events in Central Africa, it has so far and generally provided a satisfactory
basis for dealing with growing refugee problems in the continent. This
trend in Africa to regionalize initiatives on refugee affairs was re-affirmed
and corroborated in some recommendations of the Addis Ababa Document
on Refugees and Forced Populations Displacements in Africa}* Recommendation
Twelve, for example, affirmed that,

In order to reinforce the measures proposed in the above-mentioned

recommendations, the Africa region should elaborate, with dedication and
determination, modalities for an effective response to the refugee problem on a
regional basis, hi situations where a sub-region or group of countries are affected
by a common refugee problem, such an approach is particularly appropriate.

12
For articles focusing on various aspects of the CPA, see 5 IJRL (1993).
13
Hereinafter '1969 OAU Convention'; for text, see 45 UXTS 1001.
'•* The Addis Ababa Document was adopted by die OAU/UNHCR Symposium on Refugees
and Forced Population Displacements in Africa, which took place from 8-10 Sep. 1994 in Addis
Ababa, Ethiopia. For text, see (Special Issue) IJRL 303 (1995).
394 Jose H. Fischel de Andrade
In other cases where emergencies are beyond humanitarian action alone, the
necessary political initiatives may also require a regional approach .. .'5
Finally, Latin America has also collaborated in developing regional policy
approaches towards better refugee protection. Apart from the regional
instruments which, since the last century, have laid down the basis for
'asylee'16 status, some Latin American countries developed mechanisms
and concepts that have tackled the contemporary refugee problems in a
rather pragmatic manner.17 As there is no political will to sustain renewed
attempts for a regional refugee regime along the lines of the 1969 OAU
Convention, die pragmatic solution found in the region was the Cartagena
Declaration on Refugees, adopted in a colloquium in 1984 in Colombia.18
The fact that the Executive Committee of the UNHCR Programme
'welcomed the use of regional approaches in resolving refugee problems
of regional scope, as amply demonstrated by the [Cartagena] Colloquium'
is evidence of the potential importance of these initiatives.19
Initially tailored to the problems of the late 1970s and early 1980s in
Central America, the 1984 Cartagena Declaration has influenced Latin
American countries. In the commemoration of its tenth anniversary,
another colloquium, held in San Jose de Costa Rica, confirmed the
regional vocation of die 1984 Cartagena Declaration. The eighteenth
and twentieth conclusions of its 1994 San Josd Declaration on Refugee
and Displaced Persons, respectively,
[Noted] widi particular interest the efforts initiated by the Permanent Consultative
Group on Internally Displaced in the Americas, as a regional inter-agency forum
dedicated to the study and consideration of the acute problems faced by die
15
However, oddly and somehow contradictorily, Recommendation Ten states that 'the refugee
crisis cannot be addressed effectively through rigid and regionalised approaches. The Symposium
recommends that this problem be addressed in a global and comprehensive manner, as it will
ultimately affect every region of the world'. Perhaps, what was aimed at in this recommendation
was to reaffirm that regional initiatives are not to be perceived per se and need always to respect and
consider what has been achieved, at global level.
16
The term 'asylee' refers to the person who enjoys a legal status resulting from die application
of either any of the regional Latin-American instruments (listed below in note 37) or the pertinent
domestic legislation therefrom derived and related to 'asylum' [asilo). As discussed below in section
3.1, 'asylum' and 'refuge', and consequently 'asylee status' and 'refugee status' are different concepts
in Latin America.
17
The Central American solution model for die large-scale movement of refugees was created in
the International Conference on Central American Refugees (CIREFCA), held in Guatemala City
in May 1989. For the document that guided the discussions during CIREFCA, see H. Gros Espidl
et a]., 'Principles and Criteria for die Protection of and Assistance to Central American Refugees,
Returnees and Displaced Persons in Latin America', 2 IJRL 83 (1990).
" Hereinafter '1984 Cartagena Declaration'. The historical context in which the Cartagena
Declaration emerged is analysed below in section 3. For its text, see La PmttcaAn Intemacumal it las
Rejugiadas en Amaica Central, Mexicoy Panama: Probltmasjuridkosy HumanUarios (Colloquium of Cartagena
de Indias, 19-22 Nov. 1984), Bogota, ACNUR/Centro Regional de Estudios del Tercer Mundo/
Universidad Nacional de Colombia, 1986, 332-9.
19
UNHCR Executive Committee Conclusion No. 37 (XXXVT) on Central American Refugees
and die Cartagena Declaration.
 Regional Policy Approaches and Harmonization 395
displaced within their own countries for reasons similar to those that result in
refugee flows, [and]
[Called] upon States to urge existing regional fora dealing with matters such as
economic issues, security and protection of the environment to include in their
agenda consideration of themes connected with refugees, other forced displaced
populations and migrants.20
Varying regional standards of refugee definition, procedures for
determining refugee status and treatment of refugees may of course cause
many problems, e.g. regarding interpretation and push factors, but they
have the attractive advantage of regulating issues; unregulated matters
are not in the interest of states, since they do not solve problems but
radier create them. Thus, regional initiatives must be seen as a pragmatic
alternative framework widiin which the needs of refugees might be
addressed along humanitarian and human rights lines.21

2.2 Harmonization: an important factor of a regional policy

approach
When considering die necessity to regionalize die protection of refugees,
the necessity of harmonizing relevant policies and norms should also be
considered. Harmonization goes far beyond a mere regional policy
approach, for die latter may confine itself to common trends.22
Harmonization, in turn, ought to be understood as a comprehensive
concerted effort, which encompasses die diplomatic, political and legal
will of all states in a specific region. Regional harmonization must
encompass, principally, die legislation diat defines die term 'refugee', die
interpretation of diis concept, and die procedure for determining refugee
status.
On die policy of regional harmonization, UNHCR's position is clear:
Harmonized regional approaches ... are perhaps the most promising option for
strengthening protection. As progress is made towards removing intra-regional
barriers on the movement of persons and coordinating regional policies on die
admission — and non-admission — of foreigners, including asylum seekers it is

20
For the conclusions and recommendations of the 1994 San Jose Declaration on Refugees and
Internally Displaced Persons, sec Mamma dd Coloquw, above note 1, 415.
21
J.C. Hathaway, 'A Reconsideration of the Underlying Premise of Refugee Law", 31(1) Ham
I.LJ. 175(1990).
A good example are the several regional arrangements concluded in Latin America since last
century regarding 'asylee status'. They reflect a regional practice and custom which is by no means
harmonized. Not even the 1954 Convention of Territorial Asylum, for instance, is a manifestation
of a right unanimously accepted by all States that nowadays represent the Latin American community;
see H. Gros EspicU, 'El Dcrecho International Americano sobre Asilo Territorial y Extradici6n en
sus Relacioncs con la Conception de 1951 y el Protocol de 1967 sobre Estated de los Refugiados',
in Asilo y Protadin Inlemacwnal de Refitgiaaos m America Latino (Colloquium of Mexico, 11—15 May
1981), Mexico, Universidad National Autonoma de Mexico, 1982, 72.
396 Jose H. Fischel de Andrade
inevitable that national policies concerning the admission of persons in need of
international protection should also be harmonized .. P
The harmonization of policies is necessary for pragmatic reasons: refugee
influxes unfortunately will not disappear soon and they usually have a
regional impact. Regional practices of coordination and harmonization
will thus enable the formulation of concerted responses better suited to
the proper handling, within a humanitarian context, of the problems that
arise from refugee flows.
Europe is remarkable both for being the more advanced region with
regard to progress in harmonized approaches towards refugees, and for
its numerous and various types of restriction. Although European States
were already adopting regional policies and norms pertaining to refugees
since the late 1950s, it is only from the mid-80s onwards, with the
conclusion of the 1985 Schengen Agreement26 that one may speak of
European harmonization of asylum policies,27 which has had a very
restrictive nature throughout the territories of its States Parties. From the
European harmonization efforts one may gather the impression that the
objective of coordinating asylum laws is, in the end, merely the erection
of a fortress against potential refugees, and that the situation of refugees
is discussed only with a view to harmonizing laws at the lowest level.28
As to Latin America in general, and Central America in particular,
the first moves towards harmonization occurred in the mid- and late
1980s, on the occasion of the 1984 Cartagena Declaration and the 1989
CIREFCA. The recent 1994 San Jose Declaration on Refugees and
Displaced Persons in its fifth conclusion,

23
UNHCR, 'Note on International Protection', UN doc. A/AC.96/830, 7 Sept- 1994, para. 55.
See also Executive Committee Conclusion No. 80 (XVII), 'Comprehensive and Regional Approaches
within a Protection Framework'.
24
See, among others, K. Hailbronner, 'The Right to Asylum and the Future of Asylum Procedures
in the European Community', 2 IJRL 341 (1990), F. Lefebvre, 'L'Harmonisation de la Procedure
d'Eligibilite au Niveau du Conseil de l'Europe', 13 Thesaurus Acroasium, (Institute of Public International
Law and International Relations of Thcssaloniki) 909 (1987); D. Joly, 'The Porous Dam: European
Harmonization on Asylum in the Nineties', 6 IJRL 159 (1994); R. McDowall, 'Co-ordination of
Refugee Policy in Europe', in G. Loescher & L. Monahan (eds.), Refugees and International Relations,
Oxford, Clarendon Press, 1990, 179; H. Meijers, 'Refugees in Western Europe: "Schengen" affects
the entire refugee law", 2 IJRL 428 (1990).
25
See, among odiers, the 1959 European Agreement on the Abolition of Visas for Refugees, the
1961 Recommendation No. 293 on the Right of Asylum and the 1967 Resolution No. 14 on Asylum
to Persons in Danger of Persecution. For texts see, respectively, Collection of International Instruments,
above note 11, 301-3, 304, 305.
26
The 1985 Schengen Agreement was preceded by the 1981 Recommendation on die
Harmonization of National Procedures Relating to Asylum.
27
Considering that in order to achieve the harmonization of asylum policies it is indispensable
to harmonize the application of the criteria regarding the determination of refugee status, on 4 Mar.
1996 die European Union Council issued a Joint Position on die harmonized application of die
refugee definition set out in the 1951 Convention Art 1A; see EC Official Journal, 13 Mar. 1996.
^Hailbronner, above note 24, 351.
 Rtgional Policy Approaches and Harmonization 397
[Urges] governments to encourage, with the collaboration of UNHCR, a process
of progressive harmonization of rules, criteria and procedure concerning refugees,
based on the 1951 Convention and the 1967 Protocol relating to the status of
refugees, the American Convention on Human Rights, and the Cartagena
Declaration.29
Although desired, the harmonization of regional refugee approaches in
Latin America is not an easy task, because of the distinct experiences
and realities faced by Central and South American countries. These have
resulted in differing policies, regulations and practices. What is called for
now is the exchange of information on applicable norms in each Latin
American country and to establish whether progress in some countries
reflects the general will of the region and is likely to last, as well as to
debate whether Latin American countries are in fact able to apply the
expanded refugee definition of the 1984 Cartagena Declaration effectively,
in the face of mass displacements of people from other regions.30 If so,
the region could be proud of harmonizing its policy and norms at the
highest existing standard.
Regional harmonization of the legislation applicable in Latin America
concerning refugees is indeed necessary to avoid conflicts and
contradictory solutions to similar problems.31 In the task of harmonizing
domestic legislation within the context of existing international refugee
law and regional peculiarities, both UNHCR and the supervisory organs
established under the 1969 American Convention of Human Rights
(the Inter-American Commission and Court, the latter in its advisory
competence), could likely play a prominent role.32
The harmonization of domestic legislation should encompass both the
refugee definition and the procedures for determining refugee status. As
to the refugee definition, the first task is to secure that all States of the
region have a harmonized definition, which is not yet the case in Latin
America (see further below). Then comes the crucial problem of ensuring
that States apply the criteria equally and that national interpretations are
in line with established standards which have been regionally or globally

See Memoria dd Coloquw, above note 1, 420.

30
A. D'Alotto and R. Garreton, 'Developments in Latin America: Some further droughts', 3
IJRL 500 (1991). T h e inclusion of the 1984 Cartagena Declaration refugee definition in an effort
of harmonization has already been suggested by OAS General Assembly Resolution N . 1336 (XXV-
O/95), adopted, at the ninth plenary session on 9 J u n e 1995, which '2. [urged] member states to
consider the possibility of promoting a process of legal harmonization on refugee matters, taking
into account the principles embodied in such instruments as the 1951 Convention on the Status of
Refugees, the 1967 Protocol thereto, the American Convention on H u m a n Rights, the 1984
Cartagena Declaration, and the 1994 San Jose Declaration'.
31
See O A S General Assembly Resolution N. 1504 (XXVII-O/97), adopted, at the seventh
plenary session on 4 J u n e 1997, which ' 5 . [considered] the need for harmonizing the laws, criteria,
and procedures regarding refugees insofar as possible, in order to provide appropriate treatment to
persons in that position'.
See A A . Cancado Trindade, 'Discurso Inaugural', in Memtnia dd Coloquw, above note 1, 27.
398 Jose H. Fischel de Andradt
endorsed. This problem is intrinsically linked to the necessity of establishing
harmonized procedures for determining refugee status, for variations
between national determination systems render futile any attempt at
harmonizing the implementation of the refugee definition.33 The
harmonization of refugee determination procedures, which is desirable
and feasible in Latin America,34 needs to be considered under both the
guidelines endorsed by the international community35 and the experience
of me region; special attention must be paid to certain domestic
developments which may serve to indicate what can be done in the
region.

3. Refugee definitions applicable in Latin America

3.1 'Asylee' definition and 'refugee' definition: analogous but
different concepts
Besides die refugee definition set out in die 1951 Convention and the
1984 Cartagena Declaration, there are also odier definitions in Latin
America, aimed at according protection to persons who are persecuted
by their country of origin. These definitions give rise to the concept of
'asylee' {asiiado).36
Although 'asylee status' and 'refugee status', and tiius 'asylum' (asilo)
and 'refuge' (nfugio), may have the same meaning in most countries, this
does not hold true in Latin America. 'Asylee status' is a legal condition
premised in several regional instruments tiiat started evolving late last
century.37 In turn, 'refugee status' is accorded on the basis of global
instruments tiiat date back to the early 1920s.38 While these two definitions
of legal status may in most cases encompass the same rights and duties,

" Sec E. Arboleda, T h e Convention Refugee Definition in the West A Legal Fiction?', 5 IJRL
68(1993).
See, among others, K. Asomani, 'Analisb Hist6rico dc la Situaci6n de los Refugiados en
America Latina que propicio la Adopci6n de la Dedaraci6n de Cartagena de 1984 sobre los
Refugiados', in Mamma del Colapao, above note 1, 192; ACNUR, 'Dedaracion de Cartagena, diez
aflos despues', in Mamma del Coloqiao, above note 1, 52, 59, 75.
35
See, for example, Executive Committee Conclusions No. 8 (XXVHI), No. 28 (XXXIII), and
No. 30 (XXXTV).
36
See above note 16.
See 1889 Montevideo Treaty on International Penal Law, 1928 Havana Convention on Asylum,
1933 Montevideo Convention on Political Asylum, 1940 Montevideo Treaty on International Penal
Law, and die 1954 Caracas Conventions on Territorial and Diplomatic Asylum. For their texts, see
Collection of International Instruments, above note 11, 236—73.
The historical phase of the international protection of refugees initiated in 1921 with me
establishment of the League of Nations High Commissioner for Russian Refugees and phased out
in early 1952 together with the International Refugee Organization. See J.H. FischeJ de Andrade,
Dimto International dos Refiigiaaos: anhqlo kistdnca (1921-1952), Rio de Janeiro, Renovar, 1996, 3-183;
J.C. Hadiaway, T h e Evolution of Refugee Status in International Law: 1920-1950', 33(2) ICLQ
348 (1984); J. Vernant, The Refugee m the Post-War World, New Haven, Yale University Press, 1953,
24-101.
 Regional Policy Approaches and Harmonization 399
this is not always the case. An in-depth analysis of the intricate distinctions
between these two definitions is beyond the subject of this paper, but it
is important to emphasize their major differences. Some of these have
been very well identified by Jaime Ruiz de Santiago, namely,39
• 'asylum' is a regional institution that was brought about by the first
time, in a regional instrument, in the 1889 Montevideo Treaty
on International Penal Law and is governed by various regional
instruments. 'Refuge' is a global institution governed in large measure
by the 1951 Convention and 1967 Protocol, and the development of
which dates back to the League of Nations. It is only recently that
'refuge' has found expression in regional binding and non-binding
instruments, such as the 1969 OAU convention and the 1984
Cartagena Declaration;
• 'asylum' is an institution that may also be applied, and thus accord
protection, within the borders of 'asylee-producing' countries, such is
the case of diplomatic asylum. 'Refuge' is generally used only in the
case of a person who has crossed the borders of his or her country
of origin;
• to be considered an 'asylee' an individual needs to be presently
persecuted; a 'refugee' need only have a well-founded fear of
persecution, which may not necessarily have materialized yet;
• an 'asylee' is persecuted solely on account of political offences; the
definition of 'refugee' is broader, covering political opinions and other
motives, namely, race, religion, nationality and membership of a
particular social group;
• as regards 'asylees', no organization has been established to supervise
and collaborate in the implementation of asylum instruments; in the
case of the 'refugee' instruments, UNHCR plays a significant and
important role in those activities and also in further developing
principles applicable to refugee protection;
• 'asylee' instruments do not contain cessation or exclusion clauses,
which are foreseen in 'refugee' instruments; and
• 'asylee status' has a constitutive nature, being thus conceded by a
State to the individual; according 'refugee status' is a declaratory act,
whereby the State recognizes the person as a refugee.
Notwithstanding the differences between 'refugee' and 'asylee' definitions
and status, they are nonetheless complementary and share the same

39
See J. Ruiz dc Santiago, 'Consideracioncs Gcneralcs acerca del Derecho Intemacional de los
Refugiados', in Jomadas soim los Sistanas Irdtmadonala dt Pmitcatm Jvridka de la Persona Humana
(Colloquium of Buenos Aires, Sep. 1990), Buenos Aires, CICR/IIDH/ACNUR/Consejo Argentino
para las Relacionej Internacionales, 1991, 94, 95.
400 Jose H. Fischd de Andrade
premise, namely the protection of persecuted individuals.40 After
comparing and contrasting 'asylum' and 'refuge', and when it comes to
identifying the best system to protect persecuted persons, the global
refugee system is generally recognized as much more precise, modern,
progressive and actual, and as according the best and widest international
protection to those in need of it. The regional asylum system is considered
narrower and inferior in scope and inadequate to respond to the challenges
of contemporary refugee flows.41
Therefore, when speaking of harmonization of refugee definitions in
Latin America, one should ideally rely first on the global (1951 Convention
and 1967 Protocol) and secondly on the regional (1984 Cartagena
Declaration) concepts of refugee, leaving aside, but not forgetting, the
existence, historical, and often practical importance of the regional
definition of 'asylee'.

3.2 The pragmatic approach of the 1984 Cartagena

Declaration refugee definition
In the 1970s and 1980s, Central America witnessed forced migration
flows which were unprecedented in the region. The ten-years of armed
conflict which preceded the 1984 Cartagena Declaration resulted in
more than 2 million refugees and displaced persons, of whom only
some 150,000 were refugees under the 1951 Convention.
In the face of these major population displacements and of the refugee
crisis, and since the pertinent inter-American institutions proved to be
inadequate and left much to be desired, a colloquium was convened in
May 1981 in Mexico City with a view to examine and assess the most
immediate and delicate problems and needs of the Central American
refugee crisis, and also to present conclusions and recommendations for

40
See J. Ruiz de Santiago, 'O Direito International dos Refugiados: Caracteristicas e
Desenvolvimento na America Latina', in AA. Cancado Trindadc (ed.), A PmUtflo dos Diraios Humanos
nos Pianos National e Inlcmacanak Ptrspectwas Brasilaras (Colloquium of BrasOia, Jul. 1991), San J o s e /
Brasilia, HDH/Friedrich-Naumann Stiftung, 1992, 131; J. Ruiz de Santiago, 'Reflexiones sobre la
Regulaci6n Juridica International del Derecho de los Refugiados', in J. Irigoin B. (cd.), Muzus
Dimmsiona m la Pmladdn del lndmiuo, Santiago, Instituto de Estudka Intemacionales/Unrversidad
de Chile, 1991, 129; ACNUR, above note 34, 46; E. Arboleda, T h e Cartagena Declaration of 1984
and its Similarities to the 1969 OAU Convention — A Comparative Perspective', (Special Issue)
/J«Z.89(1995).
•" See Arboleda, above note 40, 89; R. Cuellar d aL, 'Refugee and Related Developments in
Latin America: the challenges ahead', 3 IJRL 483 (1991); E. Arboleda, 'Refugee Definition in Africa
and Latin America: The Lessons of Pragmatism', 3 IJRL 198 (1991); Gros Espiell, above note 22,
65, 73; J. Salvador Lara, 'El Concepto de Asilado Territorial segiin los Convenios Interamcricanos
y la Notion de Refugiado segun los Instrumentos Internationales de Naciones Unidas', in Asiloj
Pmtadin International, above note 22, 101.
 Regional Policy Approaches and Harmonization 401
future action.42 Amongst the several important determinations of the
Colloquium is Conclusion No. 4, which states that,
It is necessary to extend in Latin America the protection that the universal and
inter-American instruments grant to refugees and asylees to all those persons
who have fled their country because of aggression, foreign occupation or
domination, massive violation of human rights or other circumstances which
have seriously disturbed public order, be it in the whole territory of the country
of origin or in part of it.43
As the displacement situation became more chronic in the early 1980s,
another regional meeting was convened in November 1984 in Cartagena
de tndias, Colombia. 44 The participants in the Cartagena Colloquium
aimed at adapting the global system to the regional situation, as well as
at searching for greater coordination with the existing inter-American
asylum system, thereby recognizing the complementarity between these
two protection schemes.45 Though the 1984 Cartagena Declaration
extended considerably beyond its original scope as an academic reflection
and recommendation of principle, it should not be considered only within
the context of harmonization and complementarity of universal and
regional refugee protection systems. It also belongs, significantly, within
another challenging framework, namely, that of the construction of peace
in Central America.46
As to the definition of a refugee, Conclusion No. 3 of the 1984
Cartagena Declaration stated that,
the definition or concept of a refugee to be recommended for use in the region
is one which, in addition to containing die elements of the 1951 Convention
and the 1967 Protocol, includes among refugees persons who have fled their
country because dieir 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.
This definition implies that those to be protected fulfil two characteristics:
on the one hand, that a threat to life, security or freedom exists and, on
4
For the compilation of the documents and presentations made, at that Mexico City Colloquium,
which was held by the Mexican Secretariat of Foreign Aflairs, in cooperation with die Institute for
Legal Research of the National University of Mexico, under the auspices of the UNHCR, see Asiio
y PwUcciAn lnlanacumaL, above note 22, 17—211.
4
Gmclusims and Rxommauiatims of the 1981 Mexico City <^\ioqmwn,Asiloj Pmttccidn International,
above note 22, 206. Aldiough die colloquium was convened to tackle the problems of the Central
American refugees crises, die proposed expanded refugee definition, which seems to have been
drawn from die 1969 OAU Convention, was offered for all Latin America.
44
The Colloquium was sponsored by die University of Cartagena, die Regional Centre for Third
World Studies, and UNHCR, and held under die auspices of the Colombian government For die
compilation of die documents and presentations made, at this Colloquium, see La Pmtecddn initmadmaL,
above note 18, 21-356.
45
ACNUR, 'Declaration de Cartagena, dicz ...', above note 34, 46.
Cucllar et al., above note 42, 487, 485; Cancado Trindade, 'Discurso Inaugural', above note
32, 22.
402 Jose H. Fischel de Andrade
the other hand, mat this threat results from one of the five grounds Listed
in the text.47 It is thus a rather humanitarian and pragmatic approach,
which rules out the concept of individual persecution in order to emphasize
objective criteria.
Unlike the 1969 OAU Convention,48 the 1984 Cartagena Declaration
was not intended to be a legally binding instrument, but was rather
aspirational in character. As regards the refugee definition, it merely
concluded that it was necessary to consider enlarging the concept of a
refugee, and the States of the region could accept, or not, the
recommendation of die expanded refugee definition. Nevertheless,
throughout the years and because of its acceptance and application by
several States, the 1984 Cartagena Declaration has achieved significant
persuasive force.
It has been argued by renowned scholar and former President of the
Inter-American Court of Human Rights, Hector Gros Espiell,49 diat die
1984 Cartagena Declaration is in die origin of die creation of a Latin
American and Caribbean regional custom and diat its persuasive force
derives from die fact diat diere was generalized opinio juris when it was
formed. In addition, tiiere has been a constant practice premised upon
diis binding quality in its concrete application. Being considered an
atypical, spontaneous and crystallized source of law, die 1984 Cartagena
Declaration may have binding effect vis-a-vis States which have unilaterally
recognized it, or acted in such a way as to imply recognition of its
normative nature. Consequendy, States which have not embodied die
definition of a refugee oudined in the 1984 Cartagena Declaration in
dieir domestic legislation but apply it in practice would be bound by it
owing to its standing as a rule of customary international law. The
progressive rationale offered by Gros Espiell is sound, altiiough it may
also be subject to criticism.50
Furthermore, although originally intended to be applied within die
specific context of Central America, the 1984 Cartagena Declaration
received the active support of several Soudi American countries such as

47
Gros Espiell ct al., above note 17, 93, and, for definitional considerations on these five grounds,
94-6.
For some interesting considerations on the differences between the refugee definitions in die
1969 OAU Convention and in the 1984 Cartagena Declaration, see J.C. Hathaway, The Law of
Rtfvgtt Status, Toronto/Vancouver, Butterworths Canada Ltd., 1991, 20-1.
See H. Gros Espiell, 'La Declaracion de Cartagena comoFuentc del Derecho Intemacional
de los Refugiados en America Latina', in Manoria del Cdajuw, above note 1, 453-69.
In a much earlier period, Grahl-Madsen argued that 'in customary (unwritten) international
law there is no such thing as a generally accepted definition of "refugee". It follows that it has no
meaning to speak of "refugees in the juridical sense" or "der Begriff des Fluchtlings" except in the
context of a particular legal instrument', A. Grahl-Madscn, The Status of Refugees in International Law,
vol. I, Leydcn, Sijthoff, 1966, 73.
 Regional Policy Approaches and Harmonization 403
51
Colombia, Venezuela and Uruguay. Indeed, the principles embodied
in, and the practice resulting from the 1984 Cartagena Declaration
achieved a regional reach, influencing refugee protection in several
countries (see further below). This continent-wide acceptance found
expression and support in various resolutions of the General Assembly
of the Organization of American States (O AS) as well as in many annual
reports of the Inter-American Commission on Human Rights.52
Finally, the 1984 Cartagena Declaration should also be appreciated
within a global context as part of an enlightened trend toward expanding
the availability of international protection and humanitarian assistance
to victims of armed conflict and human rights abuse, who, while deserving
protection and assistance, had not always been included by States in
applying the literal terms of the 1951 Convention.53 This trend found
expression in Africa with the 1969 OAU Convention and in Europe with
the granting by many States of humanitarian status. Again, this regional
development prompted by the 1984 Cartagena Declaration should be
viewed as a process that builds upon, and not apart from, the universal
body of norms constituted by the 1951 Convention and other pertinent
international instruments,54 as is clear from the fact that several
Conclusions in the Declaration expressly mention the 1951 Convention.

3.3 The de jure and de facto application and interpretation of

the 1951 Convention and 1984 Cartagena Declaration refugee
definitions in Latin America
All Latin American States have ratified the 1951 Convention and/or
1967 Protocol, except Cuba and Mexico.55 The 1951 Convention refugee
definition is incorporated in the domestic legislation of Argentina, Belize,
Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Nicaragua, Panama and
Peru. In other countries, and in the absence of specific domestic provisions,
UNHCR frequently determines refugee status under its mandate. This
51
See P.M. Moussalli, T h e Evolving Functions of the Office of the High Commissioner for
Refugees', in V. Gowlland and K. Samson (eds.), Problems and Prospects of Refugee Law (Colloquium of
Geneva, 23-24 May 1991), Geneva, Graduate Institute oflnternational Studies, 1992, 101; Siemens,
'Asyl und FlUchtlingsschutz in Lateinamerika: die Erldarung von Cartagena aus dem Jahre 1984',
Fhkhtbngt (Dec. 1987), 33; R. Plender, 'The Right of Asylum' (research carried out by the English-
speaking session of the Centre for Studies and Research in International Law and International
Relations of the Hague Academy of International Law; session of 1989), in Drvit d'Asile/The Right of
Asylum, Dordrecht, M. Nijhoff, 1990, 70.
52
See, among others, OAS General Assembly Resolutions N. 891 (XVII-87) and N. 1336 (XXV-
O/95), and Annual Report of Inter-American Commission on Human Rights of 1984—85, OEA/
Ser.L/V/U.66, doc 10, rev. 1.
53
G. Walzcr, 'Statement of the UN Deputy High Commissioner for Refugees', above note 1,
31.
M
See Cuillar et al., above note 42, 484.
55
See 'States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967
Protocol — as of 15 June 1997', 16 RSQ159 (1997); for up-to-date information on ratifications, sec
www.unhcr.ch/refworld
404 Jose H. Fischel de Andrade
happens by means of an interview with the petitioner, which can be
carried out by an implementing agency in case UNHCR has no presence
in the country, and the preparation of a legal opinion on eligibility. If
the petitioner is considered by UNHCR a Mandate refugee, he or she is
then formally recommended to the government for recognition as a
Convention refugee. By then being recognized by the government, the
refugee may benefit from the refugee status embodied in the 1951
Convention.
The refugee definition of the 1984 Cartagena Declaration is embodied
in the Refugee Acts of Colombia, Ecuador and Mexico and,
notwithstanding some minor wording differences, Brazil. The Belize
legislation, on die other hand, outlines the definition of a refugee contained
in the 1969 OAU Convention. Draft refugee legislation in El Salvador
and Guatemala also contains die 1984 Cartagena Declaration refugee
definition, which is de facto applied by Costa Rica, Honduras,56 and
Argentina,57 amongst others.
The granting of protection from the early 1980s onwards to persons
who did not qualify as refugees according to die 1951 Convention
definition confirmed die generous secular tradition of Latin American
countries. Technically, this was made possible by die humanitarian
interpretation of die 1951 Convention based on die Final Act of the UN
Conference of Plenipotentiaries, and by reason also of an interpretation
inspired by die 1984 Cartagena Declaration. It is worth recalling die
Recommendation E of die Final Act, in which the Conference,
Expresses the hope that the Convention relating to the Status of Refugees will
have value as an example exceeding its contractual scope and that all nations
will be guided by it in granting so far as possible to persons in their territory as
refugees and who would not be covered by the terms of the Convention, the
treatment for which it provides.58
Therefore, aldiough what is outside die 'contractual scope' of an
undertaking can clearly not be a contractual duty, Recommendation E
makes it clear that if a State Party applies die provisions of die 1951
Convention generously it is on safe ground.59
Unlike die developed world, where die application of die 1951
Convention refugee definition is deemed by many inadequate, largely
due to divergent, uneven and inconsistent interpretation,60 in Latin
America we have witnessed a generalized and uniform application. This
56
Sec ' O A S G e n e r a l Assembly: a n Inter-American initiative o n refugees', 27 Refugees 5 (Mar.
1986); K . W . Y u n d t , Latin American Slates and Political'Refugees, N e w York, Praeger, 1988, 175.
57
See D'Alotto and Garret6n, above note 30, 500 and Arboleda, above note 40, 98.
'Final Act of die United Nations Conference of Plenipotentiaries on the Status of Refugees
and Stateless Persons', 189 UMTS 146.
w
Grahl-Madsen, above note 51, 145.
60
Arboleda, above note 33, 66, 85.
 Regional Policy Approaches and Harmonization 405
fact should not conceal the reality that issues of forced migration are no
longer a priority on the agenda of Latin American countries. This is
further reflected by the lack, in most of the countries, of specific domestic
provisions on refugee issues, and by the further fact that this harmonized
application and interpretation of the relevant refugee definitions is largely
due to the presence, supervision, and often implementing role of UNHCR
in the region.
In light of the above, it seems evident that Latin American countries
need to draft and enact domestic implementing legislation which, besides
containing the 1951 Convention refugee definition, also embodies the
concept recommended by the 1984 Cartagena Declaration. This would
consolidate a harmonized definition of a refugee which is already applied
in practice throughout the region and which has found support in several
instances.

4. Procedures for determining refugee status in Latin

America
4.1 Need for a regional policy approach and for
harmonization of procedures for determining refugee status
A procedure for determining refugee status is an act or mechanism
whereby a competent authority assesses the particular conditions of an
individual who claims to be a refugee with a view to establishing whether
or not he or she indeed qualifies as such. It is a legal act or mechanism
burdened with great humanitarian responsibility owing to its impact on
individual destiny.61 Moreover, the very existence of procedures for die
determination of status tends to guarantee, in general, bodi non-refoulement
and treatment in accordance with die relevant international instruments.
The 1951 Convention does not regulate die determination of refugee
status, owing to die difficulty in bringing about worldwide homogeneous
procedures. The particular constitudonal, legal and administrative
differences of structure amongst the various countries of the international
community suggest that each State establishes the procedure that it
considers most appropriate and adapts the minimum core elements to its
own circumstances. This minimum standard is oudined in conclusions
endorsed by the UNHCR Executive Committee, as Conclusions No. 8

61
J. Valles R., 'Procedimicnto para la Determinaci6n de la Condickfm dc Refugiado', i n j . Irigoin
B. (ed.), Dmcho IntanadonaldtbsRefuffados, Santiago, Institute de Estudios Intemacionales/Universidad
de Chile, 1993, 126.
406 Jose H. Fhchel de Andrade
(XXVIII), No. 28 (XXXm) and No. 30 (XXXTV).62 Although only a
limited number of States Parties to the 1951 Convention and 1967
Protocol have established procedures for the formal determination of
refugee status, it can be argued that States parties are obliged to grant
rights of procedural fairness to asylum seekers, at least in hearings leading
to expulsion or deportation and when the concerned State is also a Party
to the International Covenant on Civil and Political Rights (ICCPR66).
As refugee determination procedures differ widely, there is a
considerable lack of uniformity and consistency in the application of the
pertinent instruments. As a consequence, the acceptance rates of
petitioners vary considerably from one country to another, even within
the same region; this can be both an advantage and a disadvantage,
depending on the case. Moreover, some States have adopted a process
which, while meant to provide petitioners with maximum procedural
guarantees, opens the doors to such a high level of technicality and
complexity, that the legal profession is better served than are the refugees
in need of protection.64 In many cases the application of the 1951
Convention has become far too legalistic and the asylum seeker's personal
reality, crucial in refugee status determination, is under-emphasized.
Many refugee determination procedures lack a more 'humane' orientation
and an objective and competent evaluation of facts by both decision-
makers and refugee advocates. Obviously this is dangerous, because
determination systems become vulnerable to politicization.65
Given the virtual impossibility of having valid models for worldwide
application, it seems that the best option is to approach the problem
under a regional perspective, and thereafter attempt a harmonization of
procedures, so as to avoid discrepancies and to achieve a greater level of
uniformity or at least consistency. The different regional policy approaches
should be coordinated in the light, inter alia, of the conclusions and
guidelines endorsed by ExCom and the UNHCR itself, as well as by
regional organizations (such as die Council of Europe, die Organization
of American States and die Organization of African Unity). The
supervisory role of UNHCR in procedures for the determination of
refugee status is also very important, so diat die potential for harmonization
of decisions is increased.66
62
These conclusions refer, among others, to the necessary guidance of the asylum seekers by
competent officials who ought to act in pursuance to relevant international refugee instruments, to
the existence of a clearly identified authority who will examine the requests and take decisions in
the first instance, to the necessary facilities, such as interpreter and the opportunity of contacting a
UNHCR representative, to the documentation to be issued to the asylum seeker, to the necessity of
an appeal procedure, and to the problem of manifestly unfounded or abusive applications.
63
See arts. 13, 2, 7 ICCPR66.
64
Arboleda, above note 33, 84.
65
Ibid., 83.
66
G.S. Goodwin-Gill, The Refugee in International Law, 2 n d ed., Oxford, C l a r e n d o n Press, 1996,
33.
 Regional Policy Approaches and Harmonization 407
Another possible way of monitoring and possibly harmonizing
procedures and practices in various countries within the same region
could be die establishment of an international agent, such as a Court,
Commission or a Board,67 or the utilization of what already exists in the
domain of human rights institutions (such as regional human rights
Commissions and Courts). This could be promoted by different actors,
such as the Organization of American States and UNHCR. Only after
a harmonization of refugee status determination procedures may the issue
of harmonization of interpretations of refugee definitions be tackled.

4.2 Latin America: Initiatives, but a long -way to go

In Latin America only a very limited number of countries have enacted
refugee legislation and established procedures for die formal recognition of
refugees. Amongst diem are Argentina, Belize, Bolivia, Brazil, Colombia,
Costa Rica, Ecuador, Nicaragua, Panama and Peru, which have devised
plural bodies that assess the claims of the petitioners and decide upon
dieir eligibility as refugees. In the majority of die other countries the
recognition is undertaken under UNHCR mandate, which recommends
die cases to the governments in question, as described above. The national
audiorities may legalize die petitioner pursuant to international refugee
instruments, or simply under migration provisions, such is die case in
Mexico and Cuba, which have not ratified eidier the 1951 Convention
or die 1967 Protocol. On die one hand, diis procedure is convenient
because it results in a considerable level of uniformity; on die other hand,
it should arguably be avoided because UNHCR is not responsible for
die implementation of the 1951 Convention, but radier for its supervision.
Thus, it seems desirable that national legislation containing a regionally
harmonized refugee definition, preferably including die 1984 Cartagena
Declaration expanded concept, should be enacted in all Latin American
countries. This national legislation should also enshrine provisions
regulating die procedures to be followed when an individual claims to
be a refugee. Of course, die procedure should not be restricted to die
establishment of an eligibility-decision body, but should also encompass,
among odiers, die following: (1) die norms pertaining to die officials and
audiorities responsible for die initiation of die application for refugee
status; (2) provision of facilities and assistance; (3) provisional
documentation as well as diat to be issued once die person is recognized;
(4) appeal procedures; (5) time-frames; and (6) principles applicable in
cases of family reunion, cessation and exclusion clauses, exceptional
measures (such as cancellation and renunciation of refugee status).
UNHCR has accordingly already started devising, on a sub-regional

67
See European Consultation on Refugees and Exiles, 'Fair and Efficient Procedures for
Determining Refugee Status: A Proposal', 3 IJRL 118 (1991).
408 Jose H. Fischel de Andrade
basis, guidelines for the harmonization of national legislation and
procedures in light of the norms and principles of international refugee
law.68 In due course, this initiative should extend to die whole Latin
American region.
Regional policy approaches and the harmonization of measures
regarding refugee protection are likely to be further facilitated within the
framework of existing regional initiatives in Latin America, such as
Mercosul (which comprises Argentina, Brazil, Paraguay and Uruguay, and
is likely soon to include Chile and Bolivia).69 Again, it is in the interest
of States to avoid unregulated policies, and everything points to the
need for the region to begin to give appropriate attention to migration
phenomena in general and refugee movements in particular.
A good example is the Brazilian Refugee Act,70 which became effective
on 23 July 1997 and established a completely new procedure for refugee
status determination in that country. According to Law 9,474/97, the
Brazilian government takes on full responsibility for refugee matters,
that is, initiation of the procedure, eligibility interview, provisional and
definitive documentation and eligibility decision, most of which was
previously carried out by UNHCR. As regards the eligibility decision, a
plural body, the 'National Committee for Refugees' (Comite National para
os Refugiados — CONARE), is responsible for determining the claims of
the petitioners. Initiatives such as this should blossom throughout the
region, being always guided both by international standards and by
regional peculiarities.

5. Conclusions
Refugee law has evolved at a dynamic pace, but has not always been
well coordinated owing to disparities at die international, regional and
domestic levels. In order to curb national developments which may
go against or contradict established principles of international refugee
protection, harmonized regional policy approaches are required. These
approaches, however, must be in accordance with the highest existing
standard established at the global level.
The process to devise and implement harmonized regional policy
approaches is twofold: first it is necessary to 'regionalize', and secondly
to harmonize refugee protection. As to the former, regional instruments,

68
Sec Modulo de Capaalaa&n: Paulas para la AmwnUflddn dt Ltgislacikj Pwadimimtos Naamales am
Normaly Prindpios dd Datcho International de Refiigiados, Buenos Aires, A C N U R , 1996.
69
See J.H. Fischel de Andrade, 'O Refijgiado a Luz do EHrcito Internacional e do Direito
Brasileiro', in 0 Admgado: desafios e perspectwas no context!) das nlafdts intemadonms, Brasilia, Conselho
Federal da Ordem dos Advogados do Brasil, 1997, 151, 153, 154.
70
See L a w 9,474, of 22 J u l y 1997, published in the Diono Ofiaal da Umao (Official Gazette) N .
139, of 23 July 1997.
 Regional Policy Approaches and Harmonization 409
definitions and procedures need to be compatible with the universal ones,
and their implementation ought to conform to global principles. As a
consequence, regional policy approaches will not supersede but rather
complement and supplement what has already been achieved in the
universal domain.
The harmonization of refugee protection is a stage which will take
place simultaneously or, more likely, after the devising of regional policy
approaches. In other words, after regionalizing instruments, definitions,
and procedures, their implementation needs to be harmonized.
Harmonization therefore goes far beyond the application of regional
policies. It entails a comprehensive concerted effort, which encompasses
the diplomatic, political and legal will of all states in a determined region.
As regards Latin American countries, a regional policy approach and
the harmonization of refugee protection need first to take account of
legally binding instruments which establish a different legal status from
that of the refugee, and, secondly, of an originally non-binding instrument
that recommends a wider refugee definition than the one outlined in the
1951 Convention. The fact that only a limited number of countries have
enacted refugee legislation must also be considered. Consequently, what
is called for in Latin America is the enactment of domestic refugee
legislation conceived for the problems of the region. This does not mean
that global achievements will not be taken into consideration. On the
contrary, they should always serve as a guide, and as a basis, of principles
and minimum standards. National refugee legislation should set out, in
addition to the 1951 Convention refugee definition, the concept of a
refugee suggested in the 1984 Declaration, for besides reflecting a
pragmatic update on the classic definition of a refugee, this concept is
applied dejure or de facto in practically the whole region.
Finally, refugee domestic legislation should encompass similar refugee
determination procedures, for as stated above procedures for determining
refugee status play a significant role in the interpretation of the definition
of a refugee. Hence, if harmonized interpretations are desired, status
determination procedures should be harmonious and analogous. To assist
in this process, recourse could be made to the expertise of UNHCR as
well as to regional organizations and institutions, such as the OAS Inter-
American Commission and Court of Human Rights.