Asylum

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Asylum

Asylum (Sp./Port. asilo) is a distinctive diplomatic and political practice employed primarily in Latin America and a major institution for human rights protection in the Western Hemisphere. Asylum may be defined as the right to offer protection to individuals suffering from political persecution. United Nations Resolution 2312 (XIII) of 1967 defines asylum to be a state's right, the concession of which does not constitute a hostile action toward the asylee's original territorial state.

Based on Roman law, the notion of asylum dates to pre-Christian times, although one of its greatest historical expressions has been through canon law. Asylum has evolved principally as a result of custom, rather than legal factors. In the nineteenth and twentieth centuries, the institution of asylum has become largely a Latin American practice. It grew there as a result of local political volatility which manifested itself in the recurrence of uprisings and revolutionary upheavals. Furthermore, for the young Latin American nation-states, concession of immunity in asylum cases implied diplomatic recognition by the major powers.

In modern usage, two types of asylum exist: internal and external. Internal asylum, more commonly referred to as territorial asylum, was the only type of asylum known until relatively recently. It is generally considered a consequence of territorial sovereignty. States grant this type of asylum to foreigners fleeing their own countries. Although a state possesses the right to not admit any person to its territory, no state, after providing a persecuted individual hospitality, may expel him or turn him over to a state which requests him.

External asylum is that granted on an extraterritorial basis and is permitted in legations, embassies, consulates, warships, and military camps. Diplomatic asylum, which applies to the former three locations, is the most common form of external asylum and may be conceded to nationals of the country in which the diplomatic entity is accredited and located. Diplomatic asylum arose when the European states began to maintain permanent representatives abroad and thus since the inception of diplomatic immunity.

EARLY EVOLUTION OF ASYLUM

Diplomatic asylum in Latin America dates to the late nineteenth century and stemmed from the political organization of independent states. Once the ascendency of anticlerical liberals eradicated religious asylum, and as states began to consolidate, the new governments perceived recognition as a significant priority. Thus, they did not breach the sovereignty of another nation's diplomatic premises. As a result, individuals persecuted for their political beliefs attempted to obtain asylum inside those premises.

Although the practice of asylum became relatively common in the first twenty-five years after Independence, its legal basis remained ambiguous, as reflected in early asylum treaties. In 1865 an agreement was signed in Lima regulating political asylum. In 1867 various European and American legations convened in Lima at a conference which recognized diplomatic asylum as a common practice in the region. The diplomats, however, did not claim that asylum represented a basic rule of international law, nor was it claimed to be a practice native to Latin America. The Lima conference also required that the practice of asylum not interfere with the sovereignty of the American people.

The Convention on the International Penal Law, adopted on 23 January 1889, by the First South American Congress on Private International Law at Montevideo, represented an affirmation of the conclusions of the former conference. The 1889 assembly reasserted the notion that asylum should be regulated through international law. It also recognized the diplomatic asylum of political offenders as a right permitted by the usage, conventions, or laws of the South American countries.

The Sixth International Conference of American States, held in Havana, resulted in the adoption of a Convention Fixing the Rules to Be Observed for the Granting of Asylum on 20 February 1928. The United States was the only American state expressing reservations about the doctrine of asylum. The Convention of Havana established several important principles of diplomatic asylum in Latin America. First, asylum may be conceded only in urgent cases and only for the time strictly necessary for the asylee to secure his safety. Second, asylees may not be disembarked in any part of their national territory nor anywhere near it. Third, as long as asylum lasts, asylees are not permitted to practice acts contrary to public security. Fourth, the right to asylum may be given to political delinquents only in diplomatic legations or military locations. Finally, the government of an asylee's national territory can demand that the asylee be removed from the territory as soon as possible, and the diplomatic agent that has agreed to grant asylum can demand the necessary safe-conducts for the asylee.

In 1933 the Seventh International Conference of American States, held in Montevideo, adopted a Convention on Political Asylum on December 26, 1933. This rather vague agreement permitted the state granting asylum to define the crime of the asylee as political. The significance of this treaty and the 1928 Havana Convention lies in their widespread acceptance. Treaties which declare asylum as a basic human right have not been embraced so inclusively. The Second South American Conference on Private International Law at Montevideo adopted the Treaty on Political Asylum and Refuge on 4 August 1939, revising the 1889 Montevideo treaty.

HAYA DE LA TORRE CASE

On 28 March 1954, the Tenth Inter-American Conference held in Caracas adopted conventions on diplomatic and territorial asylum, partially as a result of the Haya De La Torre case between Colombia and Peru. The Caracas Convention defines territorial asylees as individuals who come from states in which they suffer persecution as a result of political convictions, ideas, or associations or for political crimes. In 1954, Caracas also hosted the Convention on Diplomatic Asylum, which asserted that each state may decide whether to grant or refuse asylum to any individual. The asylum-granting state also was res-ponsible for stipulating the nature of an asylee's crime. It also established the principle of non-refoulement, or the proscription of forced return of an asylum seeker to a country of persecution. Finally, the Convention also expressed the boundaries of rights to freedom of expression, assembly and association. While guaranteeing them, it prohibited asylees from provoking or organizing against a sovereign state.

One of the most important cases in Latin American asylum history has been the Haya de la Torre case. In January 1949, Víctor Raúl Haya de la Torre, leader of the Peruvian APRa party, sought refuge in the Colombian embassy in Lima. Colombia argued that custom represented a sufficient legal foundation for asylum. Peru, by contrast, historically has tended to reject this claim. The two countries carried the case to the International Court of Justice for clarification, because they could not agree on the interpretations of the 1928 Havana Convention regarding the determination of the nature of the asylee's crime and the obligation of a territorial state to concede the necessary safe-conduct.

Following a series of disputes regarding these issues, the International Court of Justice in 1950 produced a jurisprudential doctrine, concluding that Peru was not required to grant Haya de la Torre safe-conduct, that Colombia was not required to turn him over to Peruvian authorities but was required to put an end to the irregularly conceded asylum. After an asylum of five years, Peru issued Haya de la Torre a decree of exile from the country. Colombia agreed to turn him over to the Peruvian minister of justice for one hour for judgment before issuance of the exile decree. Peru reserved extradition rights and demanded that Haya de la Torre never be granted territorial asylum in Colombia. The Haya de la Torre case is important as an example of asylum acting as an impetus for jurisprudence. The involvement of the International Court of Justice as a juridical actor in an asylum case is significant.

FAJARDO, CÁMPORA, AND HONECKER CASES

Two other relevant cases for the legal interpretation of asylum principles and asylum's institutional evolution are the Saúl Fajardo case in Colombia in 1952 and the Hector José Cámpora case in Argentina in 1976. From 17 March to 4 April 1952, the Colombian guerrilla Saúl Fajardo was sheltered in the Chilean embassy in Bogotá. The two governments involved disagreed on the nature of Fajardo's crime, with Colombia declaring the asylum illegal because they considered Fajardo not a political delinquent but rather a common criminal. This case reflects the importance of the distinction between political and common crimes and the weight of political expediency.

Ex-president Hector Cámpora remained in the Mexican embassy for over three years as a result of the Argentine government's refusal to grant him a safe-conduct. The Cámpora case represents the first time an asylum had been so prolonged when the asylee was not charged judicially. With Cámpora were his son Hector Pedro and ex-secretary of the Peronist Movement, Juan Manuel Abal Medina. These individuals requested and were granted asylum in April 1976. In November 1979, ex-president Cámpora was allowed to go to Mexico, where he was diagnosed with a terminal illness.

The Argentine government, though recognizing the right of asylum and allowing it to function in other cases, refused to grant the safe-conducts necessary for these particular asylees to leave the country. The refusal resulted not from the existence of charges of common crimes, as in the case of Haya de la Torre. Rather, the Argentine government admitted that Cámpora was a political criminal but still refused him the safe-conduct. By late 1979, Mexico threatened to carry the case to the International Court of Justice, using the Haya de la Torre case as a precedent. In effect, the Argentine government denied the obligation of a territorial state to issue the safe-conducts. The Cámpora matter illustrates, first, that the Haya de la Torre case proved to be a precedent in the institution of asylum. Second, it shows that political expediency often shapes, and sometimes undermines, the operation of the institution.

An important contemporary case is that of Erich Honecker, former prime minister of East Germany, who was charged with manslaughter and misappropriation of state funds. Honecker fled his country in March 1991 and lived in the Chilean embassy in Moscow from December 1991 to July 1992. Some members of the post-Pinochet Chilean government, including the Chilean ambassador in Moscow, Clodomiro Almeyda, felt the country owed a debt to Honecker, who had provided asylum to many of Salvador Allende's supporters. Although the Chilean government announced in March 1992 that it would not grant asylum to Honecker, it allowed him to remain in the embassy until Russian authorities determined his future. In July the Chilean government asked Honecker to leave its Moscow embassy. Honecker's trial in Germany began in November 1992, but in January 1993 the German court, recognizing that Honecker suffered from terminal cancer, canceled the trial and allowed Honecker to travel to Chile.

MASSIVE DIPLOMATIC ASYLUM

Although historically asylum has been determined on an individual basis, the establishment of military governments in Brazil, Argentina, Chile, Ecuador, Peru, Bolivia, and Uruguay in the 1960s and 1970s stimulated massive requests for asylum. Most asylees from these countries sought protection in Mexico, Venezuela, Costa Rica, and to a lesser extent, in Colombia.

The most relevant and visible case of massive diplomatic asylum in modern Latin American history is the case of Chile after the 11 September 1973, military coup in which President Salvador Allende was deposed. In the months following the coup, many embassies, including the missions of countries outside the region, admitted thousands of asylum seekers. Among the asylees were Hortensia B. de Allende, the wife of the assassinated president, who was asyled in the Mexican embassy; most of Allende's cabinet ministers; journalists, intellectuals, professionals, and bureaucrats associated with the deposed regime; and leaders of political parties and labor unions, along with other social activists.

In a different political and international context, another modern case of massive request for diplomatic asylum is that of the Cubans who stormed the Peruvian embassy in 1980 to request asylum. The Cuban government announced that any Cuban who wished to leave the country should go to the Peruvian embassy. More than 10,000 people appeared in three days. Although not all of those who requested asylum did so as a result of political persecution, Peru eventually granted asylum to 740 Cubans. The balance either decided to remain in Cuba or fled to the United States in the Mariel Boatlift which the Peruvian embassy incident precipitated.

Until recently the overwhelming majority of exiles protected by asylum came from relatively prosperous sectors of society and from all sides of the ideological spectrum depending on the country and circumstance. Asylees were typically prominent politicians, skilled workers, social leaders, religious figures, university graduates, intellectuals, artists, businessmen, and women. With variations from case to case and country to country, this was the general profile of asylum seekers from Guatemala after an armed coup deposed the reformist government of President Jacobo Arbenz in 1954; from Cuba after 1959 when Fidel Castro took power and instituted revolutionary trials against thousands of people believed to be associated with the old regime; from Brazil, Argentina, and Uruguay during several years after the military seized power in 1964, 1966, and 1973, respectively; from Chile in 1973 after General Augusto Pinochet deposed the Allende government; and from Nicaragua after Sandinista guerrillas defeated the dictatorship of Anastasio Somoza Debayle in 1979. The social, political, or economic prominence of many asylum seekers accorded this international legal institution particular prestige and relevance in Latin America. Some countries, including Mexico, Venezuela, Costa Rica, and even the United States and Canada, have greatly benefited from often highly qualified, talented, and creative exiles.

REFUGEES

Political conflicts and revolutionary upheavals in South and Central America have increasingly been accompanied by a general decline in economic conditions as an exacerbation of social inequalities in the countries affected. These interrelated political and economic problems have stimulated waves of migrants seeking either safety and protection or employment and better economic opportunities in Latin American nations which are relatively more stable and developed, as well as in the United States, Canada, and Europe.

Although some of these migrants have applied for political asylum in diplomatic missions, the majority of them have left their country without diplomatic aid or protection. Few have applied for territorial asylum. A sizable proportion of migrants escaping political and economic problems in Latin America in the 1980s established residence in other countries or moved from one to another outside the legal protection of the asylum status. Instead, they were refugees using tourist visas and other temporary alien permits or were without documentation. Over time, these circumstances have created considerable confusion and overlapping between the cases of individuals fitting the classical definition of asylees, economic migrants, and the new phenomena of refugees legitimately concerned with their security as a result of membership in communities suffering political repression, such as ethnic groups or residents of areas affected by war and generalized violence.

As a consequence of the economic and political events of the 1980s in the hemisphere, the typical Latin American refugees are no longer persons who enter an embassy in search of protection, assured by their prestige and status of a friendly welcome and good treatment in the recipient country. Nor are they individuals capable of assuring their maintenance and economic well-being with little or no external support. During the 1990s, and directly as a consequence of the political unrest, violence, and economic stagnation in Central America and the Caribbean, large numbers of peasants, unskilled workers, indigenous groups, and marginalized populations have sought protection and welfare assistance outside their country of origin. Since they were migrating under very precarious conditions, their disadvantages are significant and their needs urgent. In contrast with the experience of most traditional exiles protected by the institution of asylum, many refugees of this new type have endured harsh conditions. They have often been perceived and isolated as active supporters of revolutionary movements posing a threat to the security of the host country or as social and economic burdens.

Diplomatic asylum has remained a crucial instrument of human rights protection, particularly at specific times of political crisis or as a mechanism to evade severe travel and migration restrictions imposed upon citizens, as in the case of Cubans storming the Peruvian embassy in Havana in 1980. A more diverse and complex migration process has emerged since 1980, however, extending the narrowly defined notion of asylum to the broader experience of refugees. Given its complexity and magnitude, the Central American and Caribbean refugee phenomena became a source of serious international controversy and a difficult political and economic responsibility for recipient countries and humanitarian organizations. Furthermore, the practical impossibility of clearly defining the borderline between political refugees and economic migrants has resulted in a more restricted application of asylum principles and tighter immigration controls on the part of recipient countries such as Mexico, Costa Rica, and the United States.

Central America and the Caribbean

The most significant waves of refugees in the hemisphere include Nicaraguans, Salvadorans, Guatamalans, Cubans, and Haitians. In 1981 indigenous people from the Atlantic coast of Nicaragua began entering Honduras from the Mocorón region, and in 1986 over 14,000 were in camps run by the United Nations High Commissioner for Refugees (UNHCR). They represented approximately half of the estimated 30,000 indigenous people from Nicaragua who, after the Sandinistas' seizure of power in 1979 and during the U.S.-sponsored anti-Sandinista civil war of the 1980s, escaped into the Miskito region of Honduras, were forcibly relocated, or joined the contra forces fighting the Sandinistas.

Simultaneously, 14,000 Nicaraguans, mostly peasants, crossed the border, either disaffected from the Sandinista regime or forced by the contras to the department of El Paraíso in Honduras, where they settled in camps under the protection of the Red Cross and the UNHCR. The Nicaraguans in El Paraíso represented part of a larger group of Nicaraguan peasants, mainly from the departments of Nueva Segovia, Jinotega, Esteli, and Madriz, in exile in Honduras. As many as 230,000 Nicaraguans also fled to Costa Rica in various waves. Only 30,000 of them were officially recognized as refugees by Costa Rican authorities.

The formal repatriation process of the Indians began in 1986. During 1987, 14,000 Indians repatriated with international assistance. By 1989, only 9,000 indigenous people were registered as refugees by the UNHCR in Honduras. All but a handful returned to Nicaragua after the elections of 1990, when the Sandinistas lost power to a coalition of opposition forces led by Violeta Chamorro. Most of the peasant refugees settled in the El Paraíso region in Honduras were repatriated to Nicaragua after 1989, and the return of refugees from Costa Rica also intensified after that year.

Between 1981 and 1985, 46,000 Guatemalan refugees entering the southern Mexican state of Chiapas, bordering on Guatemala, received refugee status. Initially, local peasant communities helped the refugees settle in camps run by the Catholic Church. Later, the Mexican government and the UNHCR took charge of many of those camps. These officially recognized refugees constituted part of a much larger group of peasants, mostly Indians of several different ethnic and linguistic groups. These refugees were often victims of the counterinsurgency campaign launched by the Guatemalan army in the highlands of the country, an area heavily populated by the Maya-K'iche' Indians. By the end of 1992, only 8,000 Guatemalans exiled in Mexican camps had returned to their country. In 1993 massive repatriations of Guatemalan Indians started under the leadership of the 1992 Nobel Peace Prize winner, Rigoberta Menchú, who was also an Indian refugee.

Between 1980 and 1986, Salvadorans suffering government repression or directly affected by the country's civil war emigrated in massive numbers to neighboring countries. Approximately 21,000 settled in internationally supervised refugee camps in Honduras. In 1987 refugees settled in Honduras began to return to El Salvador in large contingents. By 1990, without the explicit consent of the Salvadoran government, more than 16,000 had forced their return to their country in a series of very large convoys.

Cubans and Haitians have also left their countries in massive numbers, with the primary destination being the United States. Between 1959, when Fidel Castro took power, and 1980, almost 800,000 Cubans migrated to the United States. In 1980 more than 125,000 Cubans left their country in the Mariel boatlift. The Haitian "boat people" began migrating to the United States in large numbers in 1972, and by 1980 more than 1,000 a month were attempting the journey in boats that were often homemade and flimsy.

The examples of Cuban and Haitian immigration into the United States reflect the ambiguities involved in asylum and refugee policy, since one set of refugees, those abandoning Castro's Socialist Cuba, has been welcomed with open arms, while the other, fleeing the repression and poverty of Haiti's elite-dominated society, have been turned back. Cubans have been perceived as immigrating for political reasons, while Haitians have been said to seek improved economic conditions. The administration of U.S. president Jimmy Carter attempted to clarify the immigrant situation by creating the category Cuban-Haitian entrant, which meant that these groups received federal aid and were allowed to remain in the country on a two-year trial basis but did not receive refugee status. This classification was applicable to entrants before 1 January 1981, but it did nothing to halt immigration or resolve the status of later immigrants, particularly Haitians, who continued to enter South Florida at a rate of 10,000 a year.

Devising Solutions

A refugee may be generally defined as "a person outside his or her country of origin, who is unable or unwilling to return there owing to a well-founded fear of being persecuted on grounds of race, religion, nationality, social group, or political opinion." This definition is based on the Convention Relating to the Status of Refugees of July 28, 1951, and the Protocol Relating to the Status of Refugees adopted on 31 January 1967. Although the concept of refuge stems from the tradition of territorial asylum, refugees do not necessarily ask for individual protection; rather, they may seek refuge as a result of persecution due to their membership in some type of group. Refuge is a central aspect of human rights issues.

The Office of the United Nations High Commissioner for Refugees, the foremost international agency responsible for refugees, was created by the United Nations General Assembly on 14 December 1950. It is nonpolitical and its statute brings within the mandate of the United Nations' authority those refugees covered by previous bilateral treaties as well as those resulting from both pre- and post-1951 events or conditions. Since the creation of the UNHCR, the 1951 Convention and the 1967 Protocol have been the principal instruments for international regulation of refugees.

The Cartagena Conference of Experts of 1984 conducted a comparative study of the refugee question in Central America and attempted to formulate a regional solution. Although it is not a legal mechanism, the Cartagena Declaration is significant as a proof of consensus within the region regarding refugees. The Declaration also expanded the definition of a refugee to include persons fleeing not because of specific persecution but rather as a result of more general violence.

The Contadora negotiations of 1984, followed in 1987 by the Esquipulas II peace accords, or the Procedure for the Establishment of a Firm and Lasting Peace in Central America, further attempted to define solutions to the refugee problem in Central America by requiring that the matter be addressed; the parties also agreed to seek international support in their efforts. In response, the International Conference on Central American Refugees, Returnees and Displaced Persons (CIREFCA) was created in 1989. The region's governments have been compelled to collaborate with the UNHCR and other international organizations. Rather than refuge remaining a bilateral question, therefore, it has become internationalized as third actors have begun to participate actively. The Central American conflict represents a turning point from the Haya de la Torre asylum case, since it implies that the refugee must not only be regulated but also administered by international institutions. Protection of the politically persecuted is now granted internationally rather than based on sovereign national rights.

In the 1990s, the level of violence in Latin America lessened and democratic governments began to take over. Consequently, the number of political refugees has not been as great as it was during the regional wars and military dictatorships of the 1970s and 1980s. Nevertheless, there have been important cases. The civil war in Colombia caused hundreds of thousands of people to leave their homes. Many people in rural areas moved to cities or neighboring countries. Others fled to the United States to escape the violence. Also, while political leaders in Latin America in the past have found asylum in neighboring countries, this tradition has begun to change. In 2007 the former Peruvian president Alberto Fujimori went to Chile. Rather than granting him asylum, the Chilean courts ruled that he had to be returned to Peru to face criminal charges there.