In 1994, towards the end of CIREFCA, UNHCR and the EU funded a comprehensive review of the CIREFCA process that identified both significant achievements and shortcomings. According to the review, CIREFCA greatly strengthened the legal framework for refugee protec- tion in the region as it made funding conditional on compliance with the principles of the 1951 Convention and the 1984 Cartagena Declaration.27 Furthermore, the CIREFCA process was the impetus for Central Ameri- can countries to protect refugees and find durable solutions for refugees in the region.28On the other hand, CIREFCA was largely unsuccessful in its protection of IDPs and externally displaced persons and did not establish mechanisms to track funding and monitor projects from the very beginning of the process.29
One of the great successes of CIREFCA was the strengthening of a human rights discourse with respect to refugees in the region and the consolidation of the principles enshrined in the 1984 Cartagena Declar- ation on Refugees.30 Prior to the development of CIREFCA, many countries in the Latin American region had endorsed the non-binding 1984 Cartagena Declaration,31 which includes a broader regional defin- ition of refugeehood than that contained in the 1951 Refugee Convention.
However, these countries had almost never applied this broader refugee definition in practice, nor did they have a clear understanding or interpretation of this definition.
As part of the CIREFCA process, UNHCR arranged for two judges of the Inter-American Court of Human Rights and one member of the Inter-American Commission on Human Rights to provide a legal opinion regarding the principles and criteria for the protection of refugees and other displaced persons in the region. The CIREFCA Legal Document, as it became known, presented one of the first interpretations of the Cartagena Declaration refugee definition. It has subsequently become, as Michael Reed-Hurtado argues, ‘the most frequently, if not the only, source cited by most national authorities to interpret the regional refugee
27 Ibid [169].
28 Ibid [171]–[172].
29 Ibid [13].
30 Cartagena Declaration on Refugees (adopted by the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 22 November 1984) in ‘Annual Report of the Inter-American Commission on Human Rights’ (1984–85) OAS Doc OEA/Ser.L/V/II.66/doc.10, rev 1, 190–3.
31 See the discussion of the Americas in Chapter 1.
definition in current day practice’.32On the other hand, Reed-Hurtado is critical of this reification of the CIREFCA Legal Document and argues that the regional refugee definition still remains underdeveloped and
‘falls short of being part and parcel of day-to-day practice in domestic jurisdictions’.33
CIREFCA appears to have prompted countries in the region to ratify the 1951 Refugee Convention and implement national legislation with respect to refugees. Certainly, the timing of some ratifications tends to suggest this. Belize acceded to the 1951 Refugee Convention and its Protocol in June 1990; Honduras did likewise in March 1992.
In response to the growing recognition that refugee women were particularly vulnerable in the Central American region, UNHCR and states developed specific policies under CIREFCA to address gender issues in refugee protection for the first time in the region.34In 1992, a regional forum on ‘A Gender Approach to the Work with Refugee, Returnee and Displaced Women’ (known as FOREFEM) was held. A declaration and set of guidelines that highlighted refugee women and their needs were adopted, although their implementation quickly stalled.35 However, women did benefit from UNHCR’s work, and the forum had a longer-term impact. With the support of UNHCR during displacement many displaced women in the region – who had little education and were often Indigenous, illiterate and not Spanish-speaking – were able to become literate, organize politically, work in paid employment and challenge traditional gender biases with regards to land ownership.36As the assessment of FOREFEM noted, ‘the disruption to societies and experience of exile provided an opening to re-examine
32 Michael Reed-Hurtado, ‘The Cartagena Declaration on Refugees and the Protection of People Fleeing Armed Conflict and Other Situations of Violence in Latin America’ (Legal and Protection Policy Research Series No 32, UNHCR Division of International Protection, June 2013) <http://www.refworld.org/docid/
51c801934.html> 15.
33 Ibid 33.
34 The Declaration emphasized that it was ‘important to pay due attention as a matter of priority, to the special needs of refugee women and children’
(CIREFCA, above n 5, Section I, [14]).
35 Women’s Commission for Refugee Women and Children,UNHCR Policy on Refugee Women and Guidelines on Their Protection: An Assessment of Ten Years of Implementation (Women’s Commission, May 2002) <http://www.ref world.org/docid/48aa83220.html> 89, 90 (Annex IV: UNHCR’s Approach to Gender Programming in Central America: A Case Study).
36 Ibid 89.
gender roles and question longstanding inequalities’.37The evaluation of CIREFCA notes several impacts of FOREFEM, including the incorpor- ation of gender into quick impact projects (QiPs) in Nicaragua and an agreement with the United Nations Development Fund for Women (UNIFEM) to develop a broader gender strategy within the region.38
In terms of durable solutions, CIREFCA greatly benefited from having a flexible approach to long-term solutions that allowed displaced persons to have a say in choosing solutions that best suited their needs and wishes. While states generally considered the eventual return of refugees to their country of origin as the most desirable solution for bringing an end to the displacement, Central American states, as Megan Bradley highlights, were increasingly willing to locally integrate refugees in the host countries.39This meant that refugees had a choice as to whether they would prefer to stay in the country of asylum or return to their own country. A few thousand refugees were also resettled to states outside the region, such as USA and Canada, although these resettlements took place under programmes that were already in operation prior to the establish- ment of CIREFCA.40
Under the CIREFCA process, local integration was a viable durable solution for refugees due to the strong emphasis on establishing protec- tion services and development projects that benefited both refugees and local communities alike. The innovative use of QiPs during the CIREFCA process, which are small-scale, low cost, locally designed, and fast implementing,41 encouraged host communities to accept refugees because of the development incentives that refugees brought with them.
The architects of the CIREFCA process also made particular efforts to ensure that refugees would complement rather than displace the domestic workforce. For example, UNHCR and states implemented new projects in urban areas that created employment opportunities for refugees and national workers.42
37 Ibid 95.
38 Refugee Policy Group and UNHCR, above n 17, [236].
39 Bradley, above n 12, 85, 91, 99.
40 Ibid 97.
41 UNHCR, Quick Impact Projects (QiPs): A Provisional Guide (UNHCR, May 2004) <http://www.unhcr.org/41174ce94.html> 1.
42 See CIREFCA,Principles and Criteria for the Protection of and Assist- ance to Central American Refugees, Returnees and Displaced Persons in Latin America (‘CIREFCA Legal Document’), January 1990 <http://www.refworld.
org/docid/4370ca8b4.html> 23.
In rural areas that either hosted large numbers of refugees or had experienced significant levels of conflict, PRODERE established credit programmes for farmers and entrepreneurs, which enabled them to invest in small business opportunities. Lazarte, Hofmeijer and Zwanenburg report that between September 1991 and June 1995, just over US$15 million in credits were disbursed to 334 062 beneficiaries in the region.43 These loans allowed investment in areas such as livestock farming, coffee production, crop diversification and agro-industry.44 The benefits of this programme were that it: (a) promoted economic sustainability in under- developed areas in Central America; (b) targeted the basic needs of communities as defined by the communities; (c) benefited all members of community, both local residents and refugees; and (d) facilitated con- ditions for the local integration of refugees within a short timeframe.
In terms of the return of refugees to their country of origin, CIREFCA generally ensured that repatriations only took place when the refugee consented to the return. Where refugees were unwilling to return to their own country, states provided refugees with the opportunity to integrate within the host country, or, in a small number of cases, resettle to a third country. The ability of refugees to choose the solution that most suited their needs meant that CIREFCA did not experience the backlash from refugee communities that Southeast Asian states and UNHCR faced in the latter stages of the CPA. It also meant that refugees experienced a greater sense of empowerment and responsibility for the solutions to their own displacement.
Despite this achievement, there were some difficulties in relation to the implementation of the voluntary return programmes. In the aftermath of the conflict, many of the refugees’ former communities had few prospects for development and some of their lands had been occupied by new
‘owners’. Furthermore, while states such as Guatemala and El Salvador publicly supported the return of displaced communities to their countries, there was scepticism, as Bradley highlights, that this was simply a message disseminated by some governments in order to gain legitimacy and present the image of a successful peace process.45
UNHCR and UNDP stimulated the economic development of these returnee communities by implementing QiPs and microcredit pro- grammes. However, refugees faced significant difficulties in recovering their land and possessions. On many occasions, returnee populations had
43 Lazarte, Hofmeijer and Zwanenburg, above n 23, 14–15.
44 Ibid 15.
45 Bradley, above n 12, 103.
disputes with new occupants about land ownership that resulted in significant conflict between the groups and were seldom resolved.46 Bradley argues that the CIREFCA Plan of Action largely ignored the legitimate claims of new occupants, many of whom were also dis- placed.47 In addition, due to the lack of land distribution alternatives, many returning refugees simply became IDPs.48
These problems in the recovery of land were compounded by violence, including state-sponsored violence. In its January 1996 report on the situation of returnee populations in Guatemala, for example, Human Rights Watch documented repeated cases of state violence against returning refugees, which it claimed cast ‘serious doubts on the Guate- malan government’s commitment to ensure safe repatriation’.49 The deepening ‘climate of insecurity’ made the safe repatriation of refugees impractical on many occasions, according to Human Rights Watch, which gave the example of a patrol of Guatemalan soldiers opening fire on an unarmed group of former refugees.50
In addition to the exposure of refugees to violence and possible refoulement, there have also been questions about the extent to which some of the returns that took place under CIREFCA were voluntary. In a study on the repatriation of Guatemalan refugees from Chiapas in Mexico in 1997, Steffanie Riess has argued that these refugees had no alternative but to return to Guatemala, because local integration in Mexico was impossible at that time.51While Riess acknowledges that the pressures facing these refugees were ‘particularly pronounced’,52 given that they had postponed the decision to return until after the formal conclusion of the CIREFCA process and she is of the view that return was safe, the circumstances of these refugees nevertheless raise doubts about the levels of consent and consultation with refugee groups concern- ing repatriation under CIREFCA.
The protection of IDPs was also imperfect. While CIREFCA innova- tively included IDPs as a category of persons warranting international
46 Ibid 106; see also Human Rights Watch, ‘Return to Violence: Refugees, Civil Patrollers and Impunity’ (Report Vol 8 No 1B, 1996).
47 Bradley, above n 12, 116.
48 Ibid 106.
49 Human Rights Watch, above n 46, 1.
50 Ibid 2–3.
51 Steffanie Riess, ‘“Return is Struggle, Not Resignation:” Lessons from the Repatriation of Guatemalan Refugees from Mexico’ (Working Paper No 21, UNHCR, July 2000) 9.
52 Ibid 4.
protection, no international organization was assigned direct responsibil- ity for ensuring that this protection and assistance was actually provided.
At the time, UNHCR claimed that its mandate did not permit it to take a direct role in the protection of IDPs.53UNDP, on the other hand, focused on providing development assistance to persons based upon geographic location, rather than to specific populations. This meant that UNDP, under PRODERE, only provided protection to IDPs in areas where there were concentrations of displaced persons, while displaced persons in areas where UNDP was not working missed out.54
It is likely that some IDPs benefited from the QiPs and development programmes that PRODERE developed for returnee refugees,55but there are no statistics that accurately record or measure the extent to which they benefited. The UNHCR/EU review of CIREFCA concluded that CIREFCA provided little assistance to IDPs beyond that which was already available prior to the CIREFCA process.56The main benefit that CIREFCA provided was increased exposure of their plight during the process, which supported the idea that IDPs had genuine protection needs that states should address. Practical benefits to Central American IDPs at the time, however, were limited.
Externally displaced persons, as they were called, similarly received little protection and assistance during CIREFCA. Despite being included as one of the four groups that participating states agreed to support, states did very little to address their needs as a vulnerable group in the region.
As UNHCR reported after the end of CIREFCA, ‘[b]oth before and after CIREFCA, they [externally displaced persons] have most often been treated as undocumented or illegal aliens and have been subject to deportation, according to local policy’.57 While CIREFCA broke new ground by considering the protection needs of these persons, the process was not particularly successful in moving beyond the recognition of the needs of this group.
Another problem with CIREFCA was the lack of clarity in the distribution of responsibilities among the participating international organizations, particularly UNHCR and UNDP. In comparison with ICARA, which spelt out that UNHCR would be responsible for aid while UNDP would be responsible for development, the CIREFCA process had
53 See Refugee Policy Group and UNHCR, above n 17, [176].
54 Ibid.
55 See Sollis and Schultz, above n 19, 5 (discussing the situation in Guatemala).
56 Refugee Policy Group and UNHCR, above n 17 [181].
57 Ibid [182].
no such division of responsibility. As a consequence, both UNHCR and UNDP would take part in all the discussions and negotiations, but there was often ambiguity and disagreement as to how each organization should proceed.58
These organizations also had different views about how to approach the needs of refugees in the region. Under the CIREFCA mandate, UNHCR, according to its own review, saw the process of providing protection and assistance to displaced persons as essentially being a two-step process – relief then development.59UNDP, on the other hand, under the PRODERE guidelines, saw the process as essentially a continuum.60 This difference in opinion meant that some opportunities for collaboration were lost.61One example of this failure was the lack of coordination between the two organizations with regards to IDPs. As the UNHCR/EU review stated, ‘[e]xpectations on the part of UNHCR that UNDP should initiate more projects to attend to the internally displaced were not fulfilled. Both institutions claimed it was not their role – UNDP, because it could not focus on specific population groups; UNHCR, because its mandate extended only to refugees’.62 Another obstacle to cooperation was the difference in fundraising capacity, with UNHCR being better equipped to do this than UNDP.63
In comparison with this institutional difficulty, the inclusion and involvement of NGOs in the dialogues and negotiation processes was highly successful. Rather than relying on a top-down approach to refugee protection, CIREFCA promoted the active participation of civil society actors in the national and regional dialogues concerning the planning of each project as a means to identify specific protection needs and encourage local communities to take ownership of the process. The inclusion of civil society in the decision-making processes in CIREFCA led to more targeted development programmes under the PRODERE initiatives and greater cooperation among the inter-state, state and civil society actors.64
Involving local communities also prompted greater financial support from international donors. In comparison with ICARA, in which donor
58 Ibid [106].
59 Ibid [108].
60 Ibid.
61 Ibid [117].
62 Ibid [111].
63 Ibid [96].
64 Ibid [81]. However, the coordination was less than perfect: ibid [62]. For the views of some NGOs on the process, see Redmond, above n 15, 1, 2.
states questioned the legitimacy of the projects they were being asked to fund, states were far less sceptical about providing funding to the NGOs directly responsible for the implementation of the locally-established development projects under CIREFCA. According to UNHCR, most of the resources that CIREFCA mobilized ultimately were given to NGOs.65 Projects funded by Central American governments, UNHCR and UNDP were implemented by NGOs.66 Furthermore, donor states from outside the region sometimes provided funding exclusively to the NGOs, bypass- ing the governments of the states where the NGOs were based.67
In addition to promoting grassroots approaches to refugee protection, CIREFCA was clearly linked to the resolution of the root causes of the refugee flows and to Esquipulas II’s goal of promoting a ‘firm and lasting peace’ in the region. CIREFCA successfully integrated the elements of peace, refugee protection and development among states and other humanitarian actors in the region. As the review of CIREFCA concluded,
‘[i]f CIREFCA had not brought the problem of displacement to the forefront of the peace initiative in Central America, it is unlikely that uprooted populations in the region would have received the degree of protection, attention and funding that was directed towards them. … CIREFCA reinforced the regional peace process and, in turn, was strengthened by that process.’68Roberto Rodriguez, former deputy direc- tor of the Human Rights division of the UN in El Salvador, adds that
‘CIREFCA helped strengthen the peace process, which at that time was a little bit shaky…Everything had to be discussed and negotiated with all concerned. This process of talking and talking and negotiating eventually created a new culture of dialogue between the sides, instead of violence’.69
Betts agrees that CIREFCA contributed to the peace process, arguing that it did so in four ways. First, it provided ‘a context for inter-state dialogue and consensus building’ in a region ‘in which politics had polarised along left/right and East/West lines throughout the Cold War’.70 Second, CIREFCA dealt directly with groups of displaced persons whom Central American states perceived as obstacles to national and regional security.71 Third, the process contributed to national reconciliation on a
65 Refugee Policy Group and UNHCR, above n 17, [156]–[157].
66 Ibid.
67 Ibid [157]–[162].
68 Ibid [9]–[11].
69 Redmond, above n 15, 1, 2.
70 Betts, above n 14, 14.
71 Ibid.
local level by developing an ‘integrated community development frame- work’.72Finally, the mobilization of resources for the participating states prevented any state from undermining the peace process.73
CONCLUSION
Over the long term, it is clear that CIREFCA led to a significant improvement in the quality of refugee protection and the institutional capacity of governments and NGOs to deal with refugee issues in the Central American region. Practices that were put in place to provide protection to displaced persons during CIREFCA continue to be used as protection tools in the Latin American region. For example, as will become clearer in Chapter 8, the Latin American region still deploys microcredit programmes and QiPs, retains the focus on geographical rather than population-based approaches to protection, maintains the strong presence of civil society actors in the area, and promotes solidarity among states and towards refugees. Furthermore, the emphasis on particularly vulnerable groups of refugees, such as women, continues to be a strong feature in the protection of refugees in Latin America. These lasting protection dividends point towards the success of CIREFCA in entrenching a human rights discourse and programme of action for refugees in the region.
It is perhaps debatable whether a firm and lasting peace in the region was established. Many of the countries involved in CIREFCA remain violent places.74 Overall, however, CIREFCA should be viewed as a positive regional arrangement that provided substantial benefits to refu- gees and states in the region. It reflects a regional commitment to the provision of asylum and a strengthened sense of a regional imagined community at peace. It has also been an important step towards the Mexico Declaration and Plan of Action,75 adopted at the 20-year review of the Cartagena Declaration and explored in Chapter 8.
72 Ibid 15.
73 Ibid.
74 See for example, UNHCR Regional Office for the United States and the Caribbean, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection(UNHCR, 2014).
75 Mexico Declaration and Plan of Action to Strengthen International Protection of Refugees in Latin America (16 November 2004) <http://www.
oas.org/dil/mexico_declaration_plan_of_action_16nov2004.pdf>.