Refugee Status Determination (RSD) in Brazil is nowadays a tripartite enterprise, involving UNHCR, the Brazilian government, and civil society. This tripartite character, and especially the participation of the civil society is an impressive feature of RSD in Brazil. It thus seems to be a practice that should be analyzed to see if indeed it can be regarded as a "best practice." In light of this, the paper aims to verify whether or not there are lessons to be learned from RSD in Brazil with a view to improve best practices of RSD in general.
Le regime de determination du statut de refugie (DSR) au Bresil est couramment un arrangement tripartite, engageant le HCR, le gouvernement bresilien et la societe civile. Ce caractere tripartite, tout particulierement la participation de la societe civile, semble etre le point saillant de la DSR au Bresil. Par consequent, c'est la une facon de faire les choses qui merite d'etre examine de plus pres afin de verifier si on peut vraiment la considerer comme une >. Au vu de ce qui precede, cet article vise a verifier s'il y a des lecons a tirer de la DSR au Bresil, et cela dans le but d'ameliorer les pratiques exemplaires de la DSR en general.
International refugee law, especially the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol, defines who is a refugee. To enable States Parties to these treaties to implement their provisions, refugees have to be identified. The determination of refugee status, although mentioned in article 9 of the Refugee Convention, is not specifically regulated and each State Party can establish the procedure that it deems most appropriate, considering its particular constitutional structure.
With regard to refugee law and protection, Brazil can be seen as both an "old" and a "new" country. (1) It is an "old" country insofar as Brazil was involved in the first international initiatives of refugee protection, (2) has been a member of the Executive Committee (ExCom) of the United Nations High Commissioner for Refugees (UNHCR) since 1958, and ratified the 1951 Refugee Convention and its 1967 Protocol in 1961 and 1972, respectively. (3) And it is a "new" country given that the National Refugee Act, Law 9.474, (4) was passed in 1997 and that in the beginning of the twenty-first century it became an emerging resettlement country. (5)
As the most important developments have occurred in the last decade or so, one can see that refugee law and protection in Brazil has evolved significantly in a short period of time. However, there is always room for improvement.
Refugee status determination (RSD) in Brazil is nowadays a tripartite enterprise, involving UNHCR, the Brazilian government, and civil society. The involvement of civil society is a heritage from the early beginnings of refugee protection in Brazil, when there was no government procedure in place and UNHCR had to rely heavily on civil society in order to guarantee any form of protection whatsoever.
This tripartite character, and especially the participation of civil society, seems to be an impressive feature of RSD in Brazil as it guarantees a more democratic procedure and involves all actors needed to ascertain integral protection to refugees. It thus seems to aid in the establishment of a better RSD protection and is a practice that should be analyzed to see if indeed it can be regarded as a "best practice."
In light of the above, this paper aims to describe the practice of RSD in Brazil, assess its main qualities and flaws, and verify whether or not there are lessons to be learned from RSD in Brazil with a view to improve best practices of RSD in general.
To achieve these aims, this article is divided into three parts. The first part will provide an overview of RSD in Brazil, both before and after the National Refugee Act of 1997. The second will analyze RSD procedures in Brazil, through three lenses: the internal context in which they occur; the general norms of international refugee law in relation to RSD; and the most protective standards that should apply to the protection of human beings in light of an holistic approach to international law and international human rights law. And finally, the paper will assess if and how the experience of RSD in Brazil can assist in the development of a better-structured RSD system in the world.
RSD in Brazil before the 1997 National Refugee Act
The 1997 National Refugee Act was a turning point in the history of refugee law and protection in Brazil. It established a national law that not only translates the main universal protection clauses to the Brazilian legal system but also enlarges the traditional protection by establishing the possibility of recognizing a person as a refugee due to gross violations of human rights, following the regional formula created in 1984 by the Cartagena Declaration, (6) which concluded:
To reiterate that, in view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article 1, paragraph 2) and the doctrine employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.
Furthermore, it established an administrative RSD procedure in Brazil and a body--the National Committee for Refugees (in Portuguese, Comite Nacional para Refugiados, or CONARE)--vested with the responsibility of analyzing each individual case. Both of these features were newly introduced by the National Refugee Act.
Prior to 1997 RSD in Brazil was regulated by an interministerial rule, Inter-Ministry Rule 394 (and not by a specific bill), and was conducted mainly by UNHCR. This mechanism was designed in the context of the changing regimen in Brazil. During this period, the state looked for ways to strengthen the application of treaties directed towards the protection of human beings, since this was a factor in acquiring legitimacy within international society. In particular, Brazil suspended some of the reservations it had made to the Refugee Convention and stopped adopting the geographical limitation allowed for in this document. (7)
Recalling the dictatorship regime that existed prior to the mid-1980s in Brazil is key to understanding how RSD in Brazil was built and designed. During this period, despite repression by the military authorities, some NGOs (specifically those linked to the Catholic Church in Rio de Janeiro and Sao Paulo), with the support of UNHCR, assisted nationals from Argentina, Chile, Uruguay, and Paraguay to get protection in a third country. This action was developed with no support from the state. In fact, the people involved in these assistance actions were risking their lives and liberty, given that some of the people being protected were under military investigation due to their political opinions. This resulted in a very strong bond between Brazilian civil society and UNHCR and in the development of an expertise in refugee protection encompassing both the international community and the internal civil society.
After promulgation in 1988 of the Federal Constitution, which established a regime based on the rule of law, human rights, and democracy, refugee protection started its transformation into a tripartite structure.
In the early 1990s, the development of RSD in Brazil faced the challenge of receiving a large number of asylum seekers from Angola, who left their country due to armed conflict. Most of them were recognized as refugees by the procedure created by the above-mentioned interministerial rule.
This interministerial rule established that UNHCR was to conduct the analysis of individual cases and recommend them (or not) to the Brazilian government for its final approval:
In general the procedure for determining refugee status was as follows: UNHCR interviewed the person seeking refugee status and elaborated a legal opinion recommending, or not, the granting of that status. This legal opinion was then sent to the Ministry of Foreign Affairs, which presented its view on the matter and sent it to the Ministry of Justice, which made the final decision. The decision was then published in the official gazette of the Brazilian government (Diario Oficial da Uniao). (8) Following this notification, the Federal Police issued an identification document to the refugee.
It is interesting to note that during this period the Brazilian government always followed the legal opinion that was proposed by UNHCR. Furthermore, NGOs linked to the Catholic Church, especially Caritas Arquidiocesana do Rio de Janeiro and Caritas Arquidiocesana de Sao Paulo, continued to be the historical partners of UNHCR, being responsible for the actual assistance to and orientation of asylum seekers and refugees.
RSD in Brazil after the 1997 National Refugee Act
With the approval of the National Refugee Act, there was a substantial change in RSD in Brazil: the transfer of RSD responsibility to the Brazilian government with UNHCR maintaining a supervisory role.
Caritas Arquidiocesana do Rio de Janeiro and Caritas Arquidiocesana de Sao Paulo continued to be part of the new structure, keeping the role of providing reception, assistance, and orientation to asylum seekers and refugees. With the beginning of the resettlement program in Brazil, there was an increase in the number of...