The Pending Fate of the Refugee Protection Regime in Central America
By Brianna Gómez Castro
This article contributes to the growing literature on forced displacement in the Americas, specifically with respect to Central America’s 20th and 21st century migration crises. It investigates Central America’s formal entry into the international refugee protection regime, and its subsequent acceptance of regionalism as a preferred method for addressing issues of forced displacement. The article then scrutinises the effectiveness of regionalisation for securing human rights in light of a prevalent competing trend: securitisation of migration. To highlight these competing dynamics, it closely examines the case of Mexico—an important regional geopolitical actor to Central America— drawing from primary data collected through an expert interview to support the analysis. The juxtaposition of these two theoretical frameworks allows for a unique inquiry on the future of forced displacement in Central America; it aims to inspire future research and policy initiatives that are invested in bringing lasting peace and stability to the region.
Migrants from El Salvador cross the Rio Grande in Piedras Negras, Mexico with hopes of entering the United States. Meneghini (2019)
The following discussion engages with the particularities of forced displacement in the Americas, a regional bloc, which, in forced migration studies, is insufficiently researched, with the exception being in relation to migration to and from the United States. This is paradoxically so, considering its proud and extensive tradition with the institution of asylum from which many lessons can be drawn (Kron 2011; Harley 2014; Cantor et al. 2015). Even still, taking the American continent as a unit of study for forced displacement understates the vast complexity of migration patterns, policies, and laws in the countries that comprise it. The difference in social demographics, institutional governance, and geographical attributes and/or burdens — to name a few variables— are intersectional factors that deeply define the dynamics of forced displacement in each sub-region, namely North, South, and Central America.
Noting these sub-regions’ complex histories with forced displacement, this article specifically investigates Central America — comprised of Belize, Guatemala, El Salvador, Honduras, Nicaragua, Costa Rica, Panama — and its distinct journey in becoming an area of the world with one of the highest concentrations of forcibly displaced persons (Cantor 2016: 89). There is laudable research that documents the causality between the rise of crime and weak governance in the region with the increase of forced displacement (Cantor 2014; Jimenez 2016). However, there appears to be a considerable gap in the literature that analyses Central America’s unified response for addressing these migration trends. Accordingly, this article explores Central America’s implementation of a regional refugee protection regime as a cooperative approach and solution to forced displacement.
Scholars, such as Mathew and Harley (2016) and Barichello (2015), have studied the effects of regionalising refugee protection to highlight the various challenges and successes to be expected. The former broadly analyse the theoretical underpinnings of regionalisation and briefly touch on a particular Central American initiative as a case study; given the expansive nature of their research, they are unable to investigate Central America’s continued experience with regionalism. The latter dutifully examines and delineates regionalism’s development within the Latin American context, but neglects to pay significant attention to the increasingly pivotal role played by the isthmus countries. As such, this article draws on and contributes to the existing literature by analysing Central America’s experience with forced displacement and providing analysis to contemporary developments towards regionalisation of the refugee protection regime. Moreover, the research scrutinises the effectiveness of regionalisation for securing human rights in light of a prevalent competing trend: securitisation of migration. The juxtaposition of these two theoretical frameworks allows for a unique inquiry on the future of forced displacement in Central America; it aims to inspire future research and policy initiatives that are invested in bringing lasting peace and stability to the region.
The first section of this article provides background on Central America’s history with forced displacement to demonstrate the conditions that prompted these countries to formally join the international refugee protection regime. It explores their development of a regionalist approach and analyses multiple declarations and agreements adopted over the course of thirty years. The second section focuses on the most recent regional document and its operational counterpart –the 2017 San Pedro Sula Declaration and the Comprehensive Regional Protection and Solutions Framework (MIRPS in its Spanish acronym), respectively—to investigate Central America’s efforts to mitigate their current refugee crisis. The third section then delves into the securitisation of migration – drawing particularly from the case of Mexico – in order to elucidate the reasons for which it jeopardises an effective regional refugee protection regime in Central America, and consequently undermines the human rights of forcibly displaced persons.
The research for this article primarily draws from a desk review of relevant primary and secondary sources published in both English and Spanish. Importantly, due to the hyper-contemporary nature of the third section, many online newspaper publications and press releases from relevant agencies were used. The analysis in this section is also supported by data collected from an expert interview. Considering the au courant nature of this article, it should be noted that research is limited to events that have occurred by mid-August 2019. Forced displacement in Central America is an ever-changing landscape that is nearly impossible to keep up with, and so, noteworthy developments may not be covered. Bearing this in mind, this research is produced with a critical and open-ended approach so as to appropriately assess the future of the refugee protection regime in Central America.
A history of forced displacement in Central America and the development of a regional refugee protection regime
The overarching theme in this article, regionalism, refers to the pursuit of common goals among a group of states that are close geographically, share identifiable patterns of behaviour, and co-exist in an imagined sense of community (Fawcett 2004). Utilising this broader definition will allow us to analyse the partnership and collaboration that has developed beyond the geopolitically established region of Central America, in particular with Mexico.
Scholars have examined the consequences of regionalising refugee protection regimes to find that it is a positive, constructive approach for facilitating the application of universal International Refugee Law (IRL) and International Human Rights Law (IHRL) principles in a specific context, and prioritising responsibility-sharing among the states in question. Shuck (1997) argues that it can be a positive initiative because it encourages a tradition of regional responsibility for displacement concerns and leads to more appropriate solutions that reflect the interests and values that regions tend to share. Commenting on the critical responsibility-sharing component, Hathaway and Neves (1997: 169) argue that it ‘not only makes practical sense as a means to combat the withdrawal of states from the duty to protect refugees, but is consistent with general norms of international law’.
Recently, in their book Refugees, Regionalism and Responsibility, Mathew and Harley (2016) build on the existing literature and analyse five different regional mechanisms to assess the merits of regionalism. Whilst they acknowledge the potentially adverse effects cautioned by a few scholars (Gibney 2007) they find that ultimately such regional initiatives can enhance the refugee protection regime ‘if they address the specific needs of refugees in the region, foster greater attention to these needs from states, and are developed in accordance with international human rights standards’ (Mathew and Harley 2016:16). Conversant with Mathew and Harley’s findings, the succeeding paragraphs will take the view that regionalism is a useful approach for addressing forced displacement, and will investigate Central America’s experience in developing its refugee protection regime.
Migration has long been an encouraged part of the socioeconomic identity of Central America due to the existence of shared cultures and traditions that were not easily confined by borders (Garcia 2006). However, these common and accepted migration patterns saw a major shift in the late 20th century, primarily from the 1970’s onward. In her book Seeking Refuge, Garcia (2006) outlines how this is a direct result of interlinked civil conflicts occurring simultaneously in Nicaragua (1979-1990), Guatemala (1960-1996), and El Salvador (1980-1992). High levels of instability and insecurity in the region gave way to rampant human rights violations from governments, paramilitary groups, and rebel groups; lack of proper governance and a suppressed society led to increased levels of poverty across the entirety of the region. As a result, an overwhelming number of Central Americans found the living conditions impossible, leading to staggering numbers of forced displacement. By the early 1990’s, more than three million Central Americans were displaced within their own country — referred to as Internally Displaced Persons (IDPs) — or forced across an international border, becoming refugees (Garcia 2006). There may have once been a strong migratory tradition in Central America, but the region proved fundamentally ‘ill prepared to deal with the refugee crisis of 1974 to 1996’ (Garcia 2006: 31).
Noting the need for appropriate legislation and response mechanisms, Central American countries gradually acceded to the 1951 Convention Relating to the Status of Refugees (hereafter, Refugee Convention) from the 1980’s onwards, formally marking their entry into the international refugee protection regime. Unfortunately, however, the Refugee Convention definition did not extend protections to most Central Americans because they were fleeing generalised violence rather than explicit persecution. These individuals were often referred to as ‘non-convention refugees’ to note their ambiguous position within the international refugee protection regime. Starting in the early 1980’s, UNHCR recognised that the Refugee Convention definition was too restrictive and consequently took the position that countries receiving Central American refugees should be generous when assessing merits for protection. For example, in 1981 UNHCR recommended that all Salvadorans who had left their country since 1980 should be considered prima facie refugees because they fled due to political events and were likely to suffer if forced to return home (Garcia 2006).
Central American countries, alongside other Latin American countries, heeded UNHCR’s plea for more expansive protection of refugees; on 22 November 1984 they adopted the Cartagena Declaration on Refugees (Cartagena Declaration). The Cartagena Declaration retains the minimum standards of the Refugee Convention, but amends the definition to appropriately address forced displacement in Latin America. Accordingly, it defines refugees as ‘persons who have fled their country because their lives, safety, or liberty have been threatened by generalised violence, foreign aggression, internal conflicts, massive violations of human rights, or other circumstances which have seriously disturbed public order’ (para 27). The Cartagena Declaration is not a legally binding document, however many Central American countries have incorporated it into their national laws relating to refugee protection.
Importantly, the Cartagena Declaration not only allows for more expansive protection of ‘non-convention refugees’ in Central America, but it also fundamentally represents the beginnings of a regionalist approach for addressing the refugee crisis. By drawing on the shared experiences and tailoring the document to reflect the local realities of forced displacement, these countries endorsed that regional cooperation could be the best way forward. As Barichello (2015: 197) comments, the Cartagena Declaration represents ‘a part of a trend towards harmonisation and increasing protection and humanitarian assistance for victims of armed conflict and human rights abuses.
Acceding to the Refugee Convention and creating a supplemental regional document were important steps for creating a regional refugee protection regime. Moreover, a regional approach was finally viable in Central America because the conflicts in El Salvador, Guatemala, and Nicaragua were coming to a close. In August 1987, heads of state from Costa Rica, El Salvador, Guatemala, Nicaragua, and Honduras gathered to sign the Esquipulas II Peace Accords; the accords addressed ten major issue areas, including protection and assistance to forcibly displaced persons (Article 8). Evidently, stakeholders in the peace process understood enhancement of the refugee protection regime to be a critical component of peace, security, and development in the region. It is within this context that in 1989, UNHCR and the Organization of American States (OAS) held the International Conference on Central American Refugees (Conferencia Internacional Sobre los Refugiados Centroamericanos, CIREFCA) to provide a platform for addressing forced displacement in the isthmus (Pacheco and Sarti 1991).
At CIREFCA, the five aforementioned countries, Mexico, and Belize, convened to discuss refugee rights, repatriation and integration, assistance for IDPs, and other issues of concern. Importantly, CIREFCA was much more than a one-time conference with pledged commitments; it was a Comprehensive Plan of Action (CPA) that supported a wider regional political process that would run until 1995 as an integral part of the peace process and post conflict reconstruction (Betts 2009b). Furthermore, CIREFCA enhanced the international protection norms in the region by encouraging and assisting states to draft new and improved legal standards and promoting the adoption of measures to regularise the situation of refugees and returnees. Noting the positive impact of the regional initiative, Betts (2009a: 92) argues that CIREFCA ‘represents the single most successful example of UNHCR-facilitated international cooperation in the recent history of the global refugee regime’.
Before the CIREFCA process officially ended, Central American countries (alongside other Latin American countries) gathered on 7 December 1994 to sign the San Jose Declaration on Refugees and Displaced Persons (San Jose Declaration). This was part of an initiative to re-evaluate and revise the scope of protection for forcibly displaced persons in Latin America, and to reiterate the importance of the Cartagena Declaration (Barichello 2015). The next significant step in regional cooperation occurred on 16 November 2004, when Latin American countries adopted the Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America (Mexico Plan of Action, MPA). The MPA was more operational than the San Jose Declaration because it detailed concrete steps to address the main challenges of forced displacement. For example, it introduced three projects to be implemented across participating states: Cities of Solidarity, Borders of Solidarity, and Resettlement in Solidarity (Harley 2014). Furthermore, since its adoption, the MPA has facilitated the development of new legislation on refugee protection in Central America, specifically in Nicaragua (2008), Costa Rica (2010), and Mexico (2011) (Harley 2014).
Noting the success of aforementioned agreements, in the last decade the isthmus countries have come together to formulate three new instruments that enhance and strengthen the protections afforded to forcibly displaced persons. They adopted the Brazil Declaration (2014), the San Jose Action Statement (2016), and most recently, the San Pedro Sula Declaration (2017). These documents build on each other and seek to identify important gaps in the regional refugee protection regime; they demonstrate a strong regional commitment to assume state responsibility for protecting those forcibly displaced and afford them the full spectrum of fundamental human rights. Moreover, they overwhelmingly prioritise the contemporary refugee crisis that has already displaced thousands of Central Americans, specifically those living in the Northern Triangle (El Salvador, Honduras, Guatemala).
Addressing contemporary forced displacement
Throughout the last decade, increasingly high levels of chronic violence and insecurity have affected Central America. This is due to a confluence of factors that go beyond the scope of this article; however, it is sufficient to say that these factors include organised crime (drug cartels and urban gangs), high levels of poverty, and government corruption. As a result, high levels of violence and instability have unsurprisingly had a direct correlation with increased forced displacement in the region (Medrano 2017; Cantor and Plewa 2017).
Figure 1 demonstrates the general upward trend of cross-border forced displacement since 2014. In particular, the Northern Triangle countries have seen the most impact, with their figures climbing substantially each year; the number of asylum seekers grew by over 20% in 2018 alone. According to UNHCR, an overwhelming amount of these asylum claims are filed in the US. Applicants from Central America and Mexico made up 54% of all asylum applications in the US in 2018, with El Salvador as the most common nationality of origin at 33,400 claims (UNHCR, 2019e: 42).
UNHCR statistics also show that Central America has seen an increase of refugees and asylum seekers within the region. As of December 2018, there were approximately 73,500 refugees and asylum seekers (climbing from 57,000 in 2017) (UNHCR 2019d: 7). Moreover, IDPs increased to 350,000, with Honduras contributing nearly half of that number. There are also 116,000 ‘other people of concern’ to UNHCR, bringing the grand total of individuals with protection needs in Central America to 539,500 (UNHCR, 2019d: 9). This number is expected to increase significantly in 2019 due to recent political turmoil in Nicaragua and the spiralling economic and political crisis in Venezuela; UNHCR estimates that there will be 20,000 to 25,000 new asylum seekers from Nicaragua and 10,000 from Venezuela (UNHCR 2019d: 8).
Evidently, the forced displacement context in Central America over the last decade has been nothing short of complex. Every country in the region is affected one way or another as either a place of origin, transit, asylum, and or return; more often than not, a country can be all of these things at once, further complicating the protection and assistance space for forcibly displaced persons. Considering this reality, Central American countries proactively decided to enhance their regionalised response for addressing forced displacement. Building on the above-mentioned regional cooperation and responsibility-sharing mechanisms, six states –Belize, Costa Rica, Guatemala, Honduras, Mexico, and Panama—came together on 26 October 2017 to adopt the San Pedro Sula Declaration. In a historic moment for regionalised responses to forced displacement, the six countries agreed to work together to implement a regional Comprehensive Refugee Response Framework (CRRF) (UNHCR 2019b). The CRRF is an initiative that comes directly from the 2016 New York Declaration for Refugees and Migrants (New York Declaration) and that is an integral part of the Global Compact on Refugees (2018). The regional CRRF adopted through the San Pedro Sula Declaration is called the Comprehensive Regional Protection and Solutions Framework (MIRPS in its Spanish acronym). It provides a platform for addressing national displacement issues while also facilitating a comprehensive regional response for displacement concerns that is based on responsibility-sharing and solidarity.
It is important to briefly reflect on the countries participating and endorsing the MIRPS. Central America’s brand of regionalism is such that partnership and collaboration with neighbouring states is welcomed, and even necessary. Although Mexico is not a Central American country, its inclusion was imperative because of the high number of forcibly displaced persons that either transit through or claim asylum in the country. Moreover, noting Mexico’s extensive participations in previous regional efforts, it was a logical and pragmatic decision. Consequently, a regional response that did not include a strong commitment from Mexico would have been considerably less effective, seeing as involvement from all relevant geopolitical actors is crucial.
It is also noteworthy that the United States was present for the signing of the San Pedro Sula Declaration; according to a representative of a US based human rights NGO, the US outlined on-going efforts to address root causes of displacement in Central America (by means of foreign assistance), asserted a commitment to resettlement, and reaffirmed its support for developing strong asylum systems in the region (Acer 2017). From a regionalist perspective, the US’ participation is welcomed because as explained above, an effective regional response is best ensured when the full range of geopolitical actors are involved. In this instance, the US exerts significant geopolitical influence over Central America because it is financially invested in security and development projects. It also receives a high number of Central American refugees and is controversially interested in stemming the flow of their arrival (Long 2019).
It is also relevant to highlight that there are two Central American countries that are not implementing the MIRPS: El Salvador and Nicaragua. Lack of participation from these countries is concerning as it jeopardises a truly regional response to the refugee protection regime in Central America. El Salvador’s decision in particular raises red flags considering that it is the highest refugee producing country in the region and has over 70,000 IDPs (UNHCR 2019d: 9). Similarly, Nicaragua’s expected rise in asylum seekers foreshadows a pressing need for the country to prioritise cooperative measures for addressing displacement.
It has been nearly two years since five Central American states and Mexico agreed to implement the MIRPS, and in this short time span there have been significant developments to improve refugee protection at a national level, while also participating in strategic partnerships at the regional level. A report completed by UNHCR (2018b), Two Year Progress Assessment of the CRRF Approach: September 2016-September 2018 (hereafter Two Year Progress Assessment), provides valuable insight on progress made by the MIRPS countries, as part of broader CRRF initiatives. The report centres its analysis on the completion of the CRRF’s four key objectives: ease the pressure on host countries and communities; enhance refugee self-reliance; expand third-country solutions; and support conditions in countries of origin for return in safety and dignity (UNHCR 2019b).
Overall, the Two Year Assessment’s critique of MIRPS is optimistic, not just about the progress to date, but also about the potential of a regional approach to strengthen protection and assistance for refugees, asylum seekers, IDPs, and other displaced persons of concern. The MIRPS demonstrates the benefits of a multilateral approach to forced displacement and reaffirms the importance of supporting –through financial and technical resources, and responsibility-sharing mechanisms—refugee-hosting countries (UNHCR 2018b: 59). Moreover, the MIRPS (like CIREFCA) embodies the aims of a wider political agenda. It is nested within a regional peacebuilding initiative that sees solutions to forced displacement as an integral part of security and stability in Central America.
Along with the Two Year Progress Assessment, UNHCR (2018a) produced a case study, The MIRPS: A Regional Integrative Response to Forced Displacement. Ostensibly, the case study reflects a positive disposition for regional cooperation. However, it is also candid about considerable challenges to be expected—something that the Two Year Assessment fails to appropriately elaborate on. For example, the case study elucidates that there are two significant compounding issue areas: 1) ‘challenges to institutionalisation’, and 2) ‘a volatile regional displacement context’ (UNHCR 2018a: 15). The former includes funding difficulties and retaining commitments during changing political cycles. The latter includes pressure on the refugee protection space due to new crises (e.g. Nicaragua and Venezuela), and drastic policy changes in neighbouring countries that have direct impacts on forcibly displaced Central Americans.
The second issue area, ‘a volatile regional displacement context’, is arguably the most pressing concern when evaluating the MIRPS future successes. Perhaps stand alone, pressure from new crises and policy changes would not be damming enough to put to question the longevity of a regional refugee protection regime. However, these have unfortunately become compounding factors that led migration in the Americas to become securitised. The succeeding section will thus analyse how securitisation fundamentally jeopardises effective refugee protection and responsibility-sharing in Central America, both of which are at the core of a comprehensive regional approach.
Securitisation as a challenge for regionalisation
Securitisation of migration in the Americas
Almost all relevant state actors either adopted the San Pedro Sula Declaration and the MIRPS, or endorsed it and offered support. However, despite these commitments to regional solutions, the competing trend of securitisation threatens these efforts. Securitisation is when an issue becomes a designated security concern because it is presented as ‘posing an existential threat to a designated referent object’ (Buzan et al.1998: 21). Traditionally, the referent object in question is the state, and the special nature of the threat legitimises extraordinary measures to safeguard national security. Security is a vague term void of legal meaning and is thus ‘slippery and contested’, providing states with a wide margin of discretion when establishing their national security agenda (Zedner 2003: 153). As a result, a lack of agreed standards on national security, or security for that matter, creates a legal vacuum that states can use to their advantage.
Over the last few decades, migration has become a securitised issue, resulting in devastating consequences for the rights and protections of forcibly displaced persons. Unfortunately, securitisation of migration is at the forefront of current US foreign policy and is subsequently shrinking the protection space offered by the regional refugee protection regime in Central America. A contemporary example is the current US president’s tendency to criminalise, demonise, and effectively dehumanise migrants arriving to the US southern border. His comments about ridding the ‘bad hombres’ from the US may have seemed trivial at the time, but his continued securitised rhetoric has resulted in a series of direct assaults on US immigration law, IRL, and IHRL (Pierce and Selee 2017). This rhetoric has only continued to increase, most notably following the migrant caravan of November 2018 (Cuffe 2018).
Sandoval Garcia (2017) explains that securitisation of migration, in the context of the Americas, has meant that illicit substances, terrorism, and migration are now represented as a single threat when governments are conducting or speaking about border control activities. As a result, individuals migrating because they were forcibly displaced are also seen as threats to security, rather than as recipients of international protection. Segura Mena (2016), provides an argument that is in discussion with Sandoval Garcia, however, she goes a step further to link the securitisation of migration to a US geopolitical strategy of political, economic, and military control over the Central American region. Segura Mena specifically analyses the Regional Conference on Migration, an ongoing inter-state cooperation mechanism since 1996, and posits that it represents a decisive moment in the institutional arrangement of a new regional migration regime, dominated by the migration-security nexus, and characterised by its multilaterisation efforts and by the criminalisation of cross-border mobility under irregular conditions (2016: 108). She notes that one of the most significant consequences of this US geopolitical strategy is the active participation of Mexico in the fight against southern migratory flows.
A study done by Arriola Vega (2017) on Mexico’s southern border programmes corroborates Segura Mena’s thesis. He concludes that ‘Mexico has gradually played the role of a “migration manager” for the United States under a securitised lens. The southern border has become the main barrier to migration flows bound for the United States…’(Arriola Vega 2017: 6). In 2001 Mexico adopted the Plan Sur that heightened migratory controls at its southern border with the purpose of hindering Central American migration; since then, Mexico has continuously increased its border security, most recently through the 2014 Plan Frontera Sur. By pressing Mexico to enhance its southern border controls, the US is effectively implementing a policy of ‘externalisation of migration controls’ that serves to expand and fuel the securitisation of migration. These externalisation strategies prevent migrants, including forcibly displaced persons, from reaching the territories or legal jurisdictions of destination states (Frelick et al. 2016). This is highly problematic because states are implicating themselves in violations of the principle of non-refoulement (directly or indirectly). Regrettably, through such strategies, states are placing emphasis on national security to the detriment of the rights of migrants, although arguably, national security can be achieved by the advancement of human security (Jaskulowski 2017). Regardless of its morality or legality, the securitisation of migration has been fruitful for the US; between 2014 and 2017, Mexico has deported more migrants from the Northern Triangle than the US (Flores et al. 2019).
The discussion above conveys that the securitisation of migration in the Americas, driven and propelled by the US, is undoubtedly a significant challenge to the development of an effective protection framework for refugees, asylum seekers, and IDPs in Central America. A particularly problematic aspect of the regionalisation vs. securitisation dilemma is that Mexico is caught in the middle. The geopolitical position of Mexico, with serious economic and political dependence on the US, has led to its immigration policy revolving around the needs and whims of its neighbouring country (Sandoval Garcia 2017). This is evidenced by the increased deportations mentioned above, and by more recent developments that will be further explored below. Notwithstanding, Mexico has continuously affirmed its commitment to a regional refugee protection regime, most recently exhibited by its direct involvement in the MIRPS. Mexico’s unique position in relation to both the US and Central America makes for an interesting investigation on the viability of an effective regional response to forced displacement in light of securitisation.
A case study: looking in depth at Mexico’s relationship with securitisation
Mexico is a particularly important MIRPS country because it holds the Pro Tempore Presidency as of February 2019. In this role Mexico coordinates joint efforts between MIRPS countries and other stakeholders to promote the development of enhanced national and regional policy towards forced displacement (ACNUR 2019). In April 2019, Mexico published a report that details the Pro Tempore Presidency’s priorities until December 2019. The priorities include ‘strengthening the regional and national dynamic in the promotion of shared responsibility among countries of origin, transit and destination (...) based on the principle that all people, in spite of their situation, are rights holders’ (SEGOB and COMAR 2019: 1, emphasis added).
Quite contrastingly, around the same time that Mexico reinvigorated its commitment to the MIRPS, it also endorsed highly controversial asylum policies for newly arrived Central Americans. In a coordinated effort with the US, Mexico agreed to implement the Migrant Protection Protocols (MPP) also referred to as the ‘Remain in Mexico Policy’. The MPP stipulates that migrants, including asylum seekers, who enter or seek admission to the US from Mexico illegally or without proper identification, are returned to Mexico while their immigration proceedings are underway (Department of Homeland Security 2019).
The US is highly criticised for this policy because it is in violation of domestic immigration law, IRL, and IHRL. The MPP overrides the requirement to have Mexico officially designated as a ‘safe third country’ before returning refugees and asylum seekers from US territory, and also arguably violates the principle of non-refoulement by returning individuals with protection claims to a country that cannot guarantee their safety (Borger 2019; Gzeh 2019). Mexico’s acceptance of the MPP is disconcerting considering that the US has a history of attempting to make Mexico a ‘safe third country’, while Mexico has continuously resisted this designation (Solomon 2019). Civil society groups in the US challenged the legality of the MPP in the courts, but it appears that individuals are still returned to Mexico (ACLU 2019). As of 24 June 2019, 15,079 people, mostly from the Northern Triangle, were returned to the border cities of Juárez, Tijuana, and Mexicali under the MPP (Human Rights Watch 2019).
Consequently, the MPP is discouraging migrants from seeking asylum in the US and is shifting responsibility onto Mexico. Even before the MPP, Mexico reported an increase in asylum applications; the number of asylum claims rose from 14,596 in 2017 to 29,625 in 2018, marking a 103% increase (UNHCR 2019g). Seeing as the MPP is only making it more difficult for migrants to access the US immigration system, it is reasonable to expect that this upward trend will continue; as of March 2019 nearly 13,000 people have applied for asylum. If Mexico is thus pushed to attain responsibility for an increasing amount of asylum seekers, it should only be expected to do so after receiving the appropriate financial and technical support to enhance relevant legal infrastructure and social services. The Mexican Commission for Refugee Assistance (Comision Mexicana de Ayuda a Refugiados, COMAR) and the National Migration Institute (Instituto Nacional de Migracion, INM) already experience capacity issues because they are understaffed and underfunded. In fact, the head of COMAR affirmed that the agency needed six times its current resources to effectively respond to the asylum requests (Meyer 2019). As Mathew and Harley (2016:199) elucidate when outlining potential challenges of responsibility-sharing in regionalisation efforts, adequate resources are ‘necessary to guarantee that the international protection of refugees is enhanced and not diminished and to ensure that states share rather than shift the responsibility to protect refugees’ (emphasis added).
To better understand the devastating consequences of the MPP, I travelled to Tijuana, B.C., Mexico in early June 2019 to conduct an interview with Mr. Guerra, a staff member of Catholic Legal Immigration Network Inc. (CLINIC) and a consultant for Al Otro Lado (their partner organisation). Al Otro Lado is a bi-national, direct legal services NGO that has worked with migrants, asylum seekers, and refugees in the southern US border zone since 2012 (Al Otro Lado 2019). Mr. Guerra has coordinated Al Otro Lado’s local efforts in Tijuana since October 2018 and he offers a unique and critical perspective on the fast-paced developments.
When asked about changes in US asylum policy and their effects on Central Americans waiting in Mexico, Mr. Guerra highlights the stark divergence between statements and actions, affirming the argument that Mexico’s policies on forced displacement are contradictory. He argues that when the crisis at the border escalated in late 2018 ‘it became really clear that the intent [of the Mexican government] was never actually to provide support’ but instead ‘the limited support that was provided [was] in such horrible conditions that it almost became a message of deterrence.’ (Guerra, interview, 6 June 2019). He then explains how Mexico has been influenced –even compelled—by the US to follow through with repressive migration policies. He laments to have seen ‘Mexico stumble and not really know what to do’ in the face of the migration crisis, and in doing so, he intrinsically suggests that Mexico is vulnerable and looking to the US for guidance (ibid).
This allusion to geopolitical power dynamics becomes clearer when Mr. Guerra provides explicit examples on how the US and Mexico are cooperating in the border zones. For example, he points out that US Customs and Border Patrol (CBP) ‘have forced local Mexican authorities to prevent, for example, unaccompanied minors from seeking protection’ (Guerra, interview, 6 June 2019). He then describes a harrowing scene where CBP ‘flat out created a human wall’ to prevent eight unaccompanied minors from getting onto US territory, and subsequently turned them over to officials from the INM (ibid). The INM is meant to adequately screen apprehended migrants for protection concerns, but a 2017 report from the Citizens Council of the National Migration Institute (Consejo Ciudano del Instituto Nacional de Migracion, CCINM) found that there were no clear and effective mechanisms for identifying individuals with protection concerns, and thus evidenced that the INM violated the principle of non-refoulement in many of their returns or deportations (2017:13). As such, speculation that the INM continues to prioritise deportations over protection concerns—and increasingly so, in order to alleviate the already overwhelmed migration system—would appear well founded (Frederick 2019). There is no way of knowing if the eight unaccompanied minors went into the care of social services or were deported, but in any case, their experience elucidates how both the US and Mexico are implicating themselves in violations of the principle of non-refoulement. Firstly, by not allowing these children to enter the US to claim asylum, and secondly, by likely deporting them back to a country they fled due to fear of persecution.
This anecdote highlights the informal –and illegal—ways that the US and Mexico are cooperating to stem the flow of migration. Importantly, this cooperation is not done on an ad-hoc basis. Rather, it is nested within the programmed and coordinated efforts that are ‘legitimised’ because of the aforementioned Migrant Protection Protocols (MPP). When speaking about the MPP, Mr. Guerra almost comically points out the irony in the name, commenting that ‘it’s more like Migrant Persecution Protocols’ (Guerra, interview, 6 June 2019). The claim that the MPP is about persecution rather than protection is a bold and unapologetically critical comment on the US and Mexico’s treatment of migrants and forcibly displaced persons. Moreover, with these comments Mr. Guerra is implicitly acknowledging the tension between regionalisation and securitisation. Mexico wants to be seen as a migrant friendly and human rights forward country, but due to pressure from the US, it is unable to follow through with its rhetoric. Mexico may be a MIRPS country, but it is sending messages of deterrence through its lack of social services, cooperation with the US on extreme immigration policies, and blatant disregard for the human rights of migrants. Throughout the entirety of the interview Mr. Guerra provided a plethora of information and anecdotes about on-going challenges facing migrants and forcibly displaced persons waiting in Mexico. His final comments were moving and thought-provoking:
‘…we need to remember that most individuals don’t want to leave their home
country.They are leaving because they are so desperate and we need to create processes
in place so that they can actually be protected, and figure out ways to extend a loving
hand instead of trying to continue to figure out ways on how to deter people, to
criminalise people. No one deserves to be criminalised for trying to survive’ (Guerra,
interview, 6 June 2019).
This plea from Mr. Guerra rightfully indicates that the securitisation of migration has to stop. It is fully within the rights of forcibly displaced persons to have their protection claims heard, but instead the US continues to criminalise them and argue that they are taking advantage of immigration laws. Enforcing immigration policies in order to pursue national security objectives may be a legitimate concern for the US, but their tendency to do so with complete disregard for IRL and IHRL is unjustifiable. Unfortunately, the MPP is just one of the many policy changes enacted by the current US administration to deter Central Americans from seeking asylum at the southern border, and by derivative, to jeopardise the regionalisation of the refugee protection regime in the isthmus.
The consequences of these securitised policies are devastating for both migrants and displaced persons, and Mexico is undeniably complicit in sustaining systematic human rights violations. By allowing the US to return people with protection concerns to its territory, Mexico is jeopardising the legitimacy of the regionalisation efforts exemplified by the MIRPS. Undeniably, through its participation in the MPP, Mexico is neither strengthening the regional refugee protection framework, nor promoting responsibility-sharing and solidarity. Moreover, Mexico is setting precedent for Central American countries to accept and implement the US’ securitized migration policies. Not long after the MPP, on 26 July 2019, the US government announced a ‘safe third country’ agreement with Guatemala (Restuccia, 2019). Refugees and asylum-seekers who travel through Guatemala will need to seek legal protection in Guatemala before placing asylum claims in the US; this agreement is highly problematic because Guatemala does not meet the US legal requirements to be a ‘safe third country’ (Gzeh, 2019). While it is making significant strides as a MIRPS country to enhance and strengthen refugee protection and assistance, the increasingly high figures of forcibly displaced persons (86,864 Guatemalan asylum-seekers worldwide in 2018) indicate that Guatemala is not ready or capable of offering protection for all Central Americans crossing through its territory. Unfortunately, in light of this development, one can presume that similar agreements with other Central American countries are likely to follow.
This article assessed the extent to which regionalism of the refugee protection regime in Central America has been effective. It lays out the continuous and extensive efforts on the part of Central American countries—and points to a definite trend in regionalisation of the refugee protection regime—beginning with the Cartagena Declaration in 1984 and culminating with the San Pedro Sula Declaration in 2017. However positive these regional efforts have been in fostering responsibility-sharing and solidarity, and fruitful in developing a more comprehensive and harmonised system for addressing forced displacement, the unfortunate reality is that their effectiveness is jeopardised by the competing trend of securitisation.
This research does not presumptuously declare that the regionalisation of the refugee protection regime in Central America is condemned to fail because of securitisation. Rather, it has highlighted that securitisation carries many challenges that have a direct impact on the ultimate aim of fostering a refugee protection regime that can respect, protect, and fulfil the human rights of forcibly displaced persons. Moreover, the securitisation of migration has brought with it an ever-changing protection space that is nearly impossible to keep up with. Considering the almost weekly changes in US policy (during the Spring and Summer of 2019), it is unlikely that the securitisation of migration will decelerate anytime soon. The situation is fluid, and the unpredictability of short and long-term developments hampers effective and predictable structures from being established.
In light of the many unfortunate circumstances directly infringing on forcibly displaced persons’ ability to enjoy their rights under IRL and IHRL, UNHCR recently placed a call to action in Central America. On 12 June 2019, the agency appealed for further regional talks to address forced displacement, noting that the strained capacity of the refugee protection regime placed ‘growing numbers of individuals and families at grave risk and [created] situations that no country can address alone’ (2019f, para 1). A few days later, on 26 June 2019, a disturbing image went viral: a Salvadoran migrant and his two-year-old daughter lying face down, lifeless, in the waters of the Rio Grande (Linthicum 2019). This image renewed attention on the Central American refugee crisis and stressed the importance of heeding UNHCR’s call to action. Undoubtedly influenced by both the UNHCR and the viral photo, on 26 July 2019, El Salvador announced its decision to join the MIRPS (UNHCR 2019c).
Participation from El Salvador in the MIRPS is a crucial step forward for ensuring the effectiveness of a regional refugee protection regime in Central America. As mentioned in the second section, in 2018 El Salvador was the highest refugee producing country in the region (with 32,543 refugees and 119,257 asylum seekers worldwide) and has over 70,000 IDPs. At least in principle, El Salvador’s decision to join the MIRPS is a strong and symbolic ‘never again’ message that shows a commitment to addressing the push factors of forced displacement, and the detrimental effects of the securitisation for migration that push individuals towards increasingly dangerous travel routes. It is too soon to tell if and how El Salvador’s inclusion will directly improve the protection space in Central America, but nonetheless, it is a laudable development for regionalism of the refugee protection regime. Seeing as the forced displacement crisis in Central America is dynamic and ever-changing, it is more important than ever to follow developments closely and critically.
Brianna Gómez Castro is a graduate of the London School of Economics and Political Science, where she undertook a MSc in Human Rights. Previously, she worked in legal advocacy for the protection and fulfillment of human rights of those forcibly displaced—she has worked in the Americas and the MENA region. Her vested interest in migrant and refugee protection comes from her experience growing up in the border towns of San Diego, USA and Tijuana B.C., Mexico. In her spare time, Brianna enjoys traveling and learning about the world’s cultures through the language of food.
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