Lecture 10 - African and Latin American Approaches to Refugee Protection

⭐ Section 1: Why Africa and Latin America created regional refugee law

Why is the 1951 Refugee Convention often described as “Eurocentric”?

It was drafted after WWII with the image of an individual political dissident fleeing persecution.

• So it focused on proving personal persecution rather than mass displacement.

Why did African and Latin American states think the 1951 refugee definition was too narrow?

Many people were fleeing:

• decolonisation wars,

• civil wars,

• foreign occupation,

• and generalised violence.

Where entire communities escaped together and could not prove they were individually targeted.

What is the difference between “individualised persecution” and “objective conditions”?

• Individualised persecution asks what happened to the specific person

• Objective conditions ask what is happening in the country, such as war or public disorder

What is meant by “regionalism” in refugee law?

Regionalism means neighbouring states create their own legal framework to deal with refugee movements affecting their region.

Why is it significant that the Global South hosts most of the world’s refugees?

The regions carrying the largest hosting burden were also the regions that developed the most expansive refugee definitions.

⭐ Section 2: The African approach – 1969 OAU Refugee Convention

What is the OAU Refugee Convention (1969)?

Organisation of African Unity Refugee Convention

What is the “two-limbed system” of the 1969 OAU Refugee Convention?

The Convention keeps the 1951 refugee definition and adds a second, broader definition in Article I(2)

What situations are covered by Article I(2) of the OAU Convention?

It protects people fleeing:

• external aggression,

• occupation

• foreign domination

• or events seriously disturbing public order.

Does Article I(2) require proof of individual persecution?

No

• Protection is based on objective conditions in the country of origin, not on personal targeting.

Does a refugee under Article I(2) need to identify a persecutor?

No

• The danged can come from war, invasion, or societal collapse, even without a specific persecuting authority.

What is “prima facie refugee recognition” under the OAU system?

It allows a state to recognise large groups of arrivals as refugees without individual interviews, which is useful during mass influxes.

Do refugees recognised under Article I(2) receive fewer rights than 1951 Convention refugees?

No

• They receive the same protection, including non-refoulement and access to travel documents.

⭐ Section 3: The Latin American approach – Cartagena Declaration (1984)

Why was the Cartagena Declaration adopted in 1984?

It was adopted in response to the Central American civil wars and was heavily influenced by the African OAU model.

What additional protection grounds does the Cartagena Declaration include?

It covers people fleeing:

• generalised violence,

• internal conflict,

• massive violations of human rights,

• and circumstances seriously disturbing public order.

What is the key phrase that distinguishes Cartagena from the OAU Convention?

“Massive violations of human rights.”

Is the Cartagena Declaration a binding treaty?

No

• It is soft law (a non-binding declaration) at the international level

If the Cartagena Declaration is soft law, why is it still important?

Most Latin American states incorporated the Cartagena definition into their domestic asylum laws, making it legally binding within those countries.

What is the difference between international soft law and domestic hard law in the Cartagena system?

The Declaration itself is non-binding, but once a country writes its definition into legislation, its courts must apply it as binding domestic law.

⭐ Section 4: Comparing the three refugee regimes

What is the core test under the 1951 Refugee Convention?

A person must show a well-founded fear of persecution based on one of five Convention grounds.

What is the core test under the 1969 OAU Refugee Convention?

The focus is on objective conditions such as aggression, occupation, or serious public disorder.

What is the core test under the Cartagena Declaration?

The focus is on

• generalised violence,

• internal conflict,

• massive human rights violations,

• and serious public disorder.

Which regional instrument is legally binding: the OAU Convention or the Cartagena Declaration?

The OAU Convention is binding

• The Cartagena Declaration is not, although it is widely implemented through domestic law.

⭐ Section 5: The Venezuelan refugee crisis

Why is the Venezuelan crisis an important refugee-law case study?

It shows the gap between progressive legal definitions and restrictive state practice.

• Law in writing vs law in practice

Why did many lawyers argue that Venezuelans qualified for protection under Cartagena?

Because Venezuela experienced massive human rights violations and a serious disturbance of public order.

Did most neighbouring states recognise Venezuelans as refugees?

No

• Many states preferred temporary protection or humanitarian visas instead of formal refugee status.

Why did governments prefer temporary protection over refugee recognition?

Temporary status gives governments more flexibility and avoids the stronger long-term obligations attached to refugee status.

What is the main lesson of the Venezuelan crisis?

A broad refugee definition does not guarantee generous treatment in practice.

⭐ Section 6: Border controls and externalisation

What is “externalisation” in migration law?

Externalisation means using

• visas,

• passport checks,

• carrier sanctions,

• and border controls to stop asylum seekers before they reach the territory where they could claim asylum.

Was the Venezuelan border-control approach similar to migration control used by the United States?

Yes

• Both approaches aim to prevent people from reaching the territory where stronger asylum obligations would apply.

Does the 1951 Refugee Convention give people a general right to enter another country?

No

• The Convention mainly protects against refoulement, not against all forms of entry control.

If neighbouring states did not return most Venezuelans to danger, where did they go?

Most remained in countries such as Colombia, Peru, Ecuador, and Chile, usually under temporary or humanitarian status.

Why is externalisation controversial?

Critics argue it can undermine access to asylum procedures, which states argue they are still entitled to control their borders.

⭐ Section 7: Burden sharing

What is “burden sharing” in refugee protection?

It is the idea that responsibility for protecting refugees should be shared among states rather than falling only on the first country of arrival.

What does the OAU Convention say about burden sharing?

States should cooperate to “lighten the burden” on countries receiving large numbers of refugees.

Is burden sharing legally enforceable?

Generally no

• It is largely a voluntary principle, and there is no international mechanism that can force states to accept refugees or share costs.

How did the Venezuelan crisis expose the weakness of burden sharing?

Countries such as Colombia hosted millions of people, but other states were not legally required to take an equal share of responsibility.

⭐ Section 8: Broad definitions but stricter controls

Does a broader refugee definition automatically mean refugees are treated more generously?

No

• The OAU Convention combines wide protection criteria with strict security and political control.

What political restriction does the OAU Convention place on refugees?

Refugees must not engage in subversive activities against any OAU member state,

• and host states must prevent such activities.

Is there an equivalent “no subversive activities” rule in the 1951 Refugee Convention?

No

• The global Convention does not contain the same level of political and security restrictions.

What does “no subversive activities” mean?

Subversive activities = political or military actions aimed at destabilising or overthrowing a government.

⭐ Section 9: Climate displacement and regional protection

Can the OAU Convention potentially protect people displaced by climate disasters?

Yes

• UNHCR argues that “events seriously disturbing public order” can be interpreted broadly enough to include some climate-related disasters.

What was the significance of the 2022 Kampala Ministerial Declaration?

East and Horn of Africa states formally recognised that climate change and environmental degradation are causing forced human mobility.

Does Latin America have a binding treaty protecting climate-displaced persons?

No

• Recent initiatives such as the Cartagena+40 Chile Plan of Action (2024) are soft-law commitments, not binding treaty rules.

Why is refugee law only a partial solution for climate displacement?

Most climate displacement is internal, and refugee law normally applies only when a person crosses an international border.

⭐ Section 10: Internally Displaced Persons (IDPs)

What is an Internally Displaced Person (IDP)?

An IDP is someone who has been forced to flee their home but remains within their own country’s borders.

What is the Kampala Convention (2009)?

It is the African Union’s binding treaty on internal displacement, the first continental treaty of its kind.

Is the Kampala Convention only for Africa?

Yes

• It is an African regional treaty, although the UN Guiding Principles on Internal Displacement apply globally as soft law.

Does IDP protection provide the same status as refugee protection?

No

• IDPs remain under the primary responsibility of their own state and do not receive the same international legal status as refugees.

Why is the Kampala Convention considered innovative?

It explicitly protects people displaced by conflict, disasters, and development projects, including many forms of climate-related internal displacement.