June 16, 2014

I. Introduction

The issue presented before the Ecuadorian Constitutional Court in this case[1] is whether Presidential Decree 1182 violates the Ecuadorian Constitution.[2]

Specifically, among other issues, the honorable Court is asked to consider whether articles 47 and 50 of Presidential Decree No. 1182 violate the principle of non-refoulement that is fundamental to articles 41 and 66 of the Constitution; whether article 8 of Decree No. 1182 violates article 11 of the Constitution by not adopting the refugee definition used in the Cartagena Declaration;[3] whether articles 27, 33, and 48 of Decree No. 1182 violate due process rights promulgated in article 76 of the Constitution; and whether articles 47 and 50 of Decree No. 1182 interfere with Ecuador’s duty to apply international instruments pursuant to article 11 of the Constitution. Furthermore, the Court is asked to consider whether articles 33, 47, 48, and 49 of Decree No. 1182 violate the nondiscrimination principles in article 11 of the Constitution; whether articles 24, 25, and 33 of Decree No. 1182 violate the principle of judicial security of article 82 of the Constitution; whether Decree No. 1182 creates a category of “those who wish to become ‘asylum-seekers’”[4] through article 34, which would violate human rights principles in international instruments and article 41 of the Constitution; and whether article 54 of Decree No. 1182 creates the possibility to eliminate the refugee status of a recognized refugee, which would violate article 76(7) of the Constitution.

Amici respectfully submit this brief to present international law arguments that support the view that Presidential Decree No. 1182 violates international legal obligations protecting refugees and asylum-seekers that Ecuador’s Constitution incorporates into the domestic law framework hierarchically above presidential decrees. In addition, amici maintain that Decree No. 1182 narrows Ecuador’s definition of a refugee under the Cartagena Declaration, representing retrogression in domestic refugee rights protections in violation of the Constitution. Amici respectfully request that the honorable Court take international and regional law obligations and standards into account in interpreting constitutional protections and evaluating the constitutionality of the provisions of Decree No. 1182.

 

II. Amici’s Interest in the Case

Amici work in the area of refugee rights and are dedicated to ensuring that refugees and asylum-seekers are guaranteed the rights to which they are entitled. 

The Benjamin N. Cardozo School of Law’s Human Rights and Genocide Clinic (https://www.cardozo.yu.edu/humanrightsclinic) provides students with an opportunity to engage in first-hand experiences in a range of activities that promote respect for human rights and explore the diverse ways the law is utilized to promote social change. The Clinic partners with nongovernmental organizations that are actively engaged in human rights work. The Clinic litigates before international and regional tribunals, investigates human rights violations, writes policy papers, engages in strategic advocacy before the United Nations (UN) and other relevant bodies, and conducts empirical studies on the impact of human rights abuses and human rights mechanisms.

The Clinic represents asylum seekers in the United States through the Refugee Representation Project. By representing clients in the U.S. immigration system, the Clinic ensures that clients have fair access to the asylum system. The Clinic is dedicated to upholding refugee and related human rights.

Human Rights Watch is a nongovernmental organization that has been dedicated to protecting human rights since 1978 (www.hrw.org). The organization is independent and impartial with respect to any political, religious, or economic organizations or movements. By mandate, the organization can receive no money, either directly or indirectly, from any government. It is headquartered in New York and has offices in several other cities in different continents. Human Rights Watch enjoys consultative status with the United Nations Economic and Social Council, the Council of Europe and the Organization of American States, and maintains a working relationship with the Organization of African Unity. 

As part of its mandate, Human Rights Watch is committed to using judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific Human Rights Watch petition.

 

III. Presidential Decree No. 1182 provisions violate international legal obligations protecting refugees and asylum-seekers that Ecuador’s Constitution incorporates into the domestic law framework hierarchically above presidential decrees.

A. Treaties and conventions to which Ecuador is state party are incorporated into the domestic law framework hierarchically above presidential decrees and provide broad protections for asylum-seekers and refugees.

Articles 11(3), 417 and 424 of Ecuador’s Constitution explicitly and directly incorporate international instruments into domestic law.[5] Additionally, according to this honorable Court, international instruments, including declarations, treaties and conventions, enumerate constitutional obligations of the state and are legal authority hierarchically superior to presidential decrees.[6]

i. Fair and Due Process Rights

Ecuador’s international law obligations provide strong fair and due process guarantees, including guarantees of equality and nondiscrimination, fair hearings, and the opportunity to present an adequate defense, to individuals within its borders.[7] For example, the International Covenant on Civil and Political Rights (ICCPR) affords equal protection and nondiscrimination under the law, providing that “[a]ll persons shall be equal before the courts and tribunals.”[8]

Article 25 of the American Convention on Human Rights (American Convention) obligates states parties to provide all the guarantees that make it possible to arrive at fair decisions.[9] In articulating this right, the Inter-American Court of Human Rights (IACtHR) found that due process mandates:

. . . all the requirements that must be observed in the procedural stages in order for all persons to be able to defend their rights adequately vis-à-vis any type of State action that could affect them. That is to say that the due process of law must be respected in any act or omission on the part of the State bodies in a proceeding, whether of a punitive administrative, or of a judicial nature.[10]

Article 8 of the American Convention provides that “every person has the right to a hearing, with due process guarantees and within a reasonable time, by a competent, independent and impartial tribunal . . . for the determination of his rights.”[11]

Although not creating additional legally binding obligations on states, the United Nations High Commissioner for Refugees’ (UNHCR’s) Conclusion 30 adopted by the Executive Committee on the International Protection of Refugees further elaborates on these rights and establishes guidelines for due process safeguards with regard to status determinations, mandating that asylum-seekers “be given a complete personal interview by a fully qualified official . . .” and that manifestly unfounded and abusive determinations “be established by the authority normally competent to determine refugee status.”[12] Additionally, UNHCR has stated that negative decisions must be reviewed before rejection at the border or forcible removal.[13]

The ICCPR and American Convention afford broader protection of due process rights by setting a reasonable time standard, which takes into consideration an asylum seeker’s circumstances and the realities of filing for asylum protection after fleeing persecution and settling in a new country, that enables asylum-seekers to access asylum proceedings.

ii. Right to Seek Asylum and the Principle of Non-Refoulement

Ecuador’s international and regional legal obligations also provide robust protections of refugees’ right to seek asylum.[14] The American Convention guarantees, under article 22(7), “the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions[,]” and ensures under article 22(8) that “in no case may an alien be deported or returned to a country . . . if in that country his right to life or personal freedom is in danger of being violated . . . .”[15]

Additionally, a fundamental cornerstone of refugee protection widely considered to be part of customary international law[16] is the principle of non-refoulement, which protects liberty and security of the person by prohibiting state parties from expelling or returning refugees, in any matter, where his or her life or freedom would be threatened on account of protected grounds.[17] Article 33 of the Refugee Convention sets forth the principle of non-refoulement, which is also protected under article 22(8) of the American Convention, providing that “in no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.”[18]

B. Presidential Decree 1182 provisions are narrower than international protections and thus violate Ecuador’s obligations under international law regarding rights of refugees and asylum-seekers.

Decree 1182 provisions violate an asylum seeker’s due process rights and jeopardize these and other fundamental rights—including the right to seek asylum and the principle of non-refoulement—in relation to Ecuador’s international and regional obligations by: (1) imposing short, inflexible procedural time limits that make it difficult, if not impossible, for asylum seekers to apply for refugee status and, if necessary, appeal adverse status determinations; (2) setting a high admissibility standard for applications to be considered for refugee status determination; (3) allowing officials broad power to exclude asylum seekers from the asylum procedure; and (4) giving overly broad powers to revoke refugee status.[19] 

i. Short, inflexible procedural time limits

First, Decree 1182’s fifteen-day time limit to apply for asylum (article 27), three-day time limit to appeal a “manifestly unfounded or abusive” claim determination (article 33), and the five-day time limit to appeal a refugee status rejection determination (article 48), provide extremely limited and inflexible time frames for asylum-seekers to prepare their cases or appeals.[20] These limited and inflexible time frames are impeding access to the system and curtailing asylum-seekers’ due process guarantees outlined in Section III(A)(i), supra

Although not imposing legally binding obligations on states, the United Nations High Commissioner for Refugees (UNHCR) has declared that an asylum-seeker’s failure to fulfill formal requirements within certain time limits should not in itself exclude an application for asylum from consideration.[21] Further, UNHCR finds that “[t]he automatic and mechanical application of time limits for submitting applications has been found to be at variance with international protection principles.”[22] As a result, time limits, if imposed, should be flexible to account for various circumstances of refugees and asylum-seekers.

Additionally, as further guidance to states, UNHCR’s Executive Committee requires Contracting Parties to ensure that “[i]f the applicant is not recognized [as a refugee], he should be given a reasonable time to appeal for a formal reconsideration of the decision” and that “[t]he applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority.[23] The three- or five-day time limits for an appeal are not allowing for reasonable time to appeal for a formal reconsideration of the decision[24] given the undue burden and practical barriers that asylum-seekers now face on the ground since these changes have been instituted.

UNHCR has explicitly stated that access to asylum has become more difficult since the adoption of Decree 1182.[25] Indeed, trends indicate that these new procedures adopted in May 2012 limiting application and appeal times have led to significant drops in the number of individuals granted asylum in Ecuador. In 2012, for instance, there were 12,142 applicants for asylum and 1,557 were granted refugee status, which is 12.8%.[26] In 2013, up until September, there have been 8,280 applicants for asylum and 513 have been granted asylum, 6.2%.[27] 

The percentage of granted applications and number of accepted applications was higher before Decree 1182 was adopted in 2012. In 2009, there were 34,303 applications, of which 24,635 were granted refugee status, 71.8%.[28] Furthermore, according to asylum legal practitioners, there have been cases in which applicants who want to appeal their determinations do not gain access to their records, or in which their files are delayed, which makes it difficult for appellants to adequately substantiate their claims.[29] 

ii. Over-inclusive “manifestly unfounded or abusive” admissibility determination

Articles 24 through 26 of Decree 1182 further violate due process protections afforded under Ecuador’s international law obligations by establishing a new admissibility procedure under which officials may reject “manifestly unfounded or abusive” asylum claims.[30]  Although the Ecuadorian government is entitled to reject unfounded asylum claims, the “manifestly unfounded or abusive” standard, given its vague wording, permits authorities to deny access to the refugee status determination procedure to many legitimate asylum claimants.

Decree 1182 states that an official may consider a claim to be “manifestly unfounded” if it “contains elements completely unrelated to the currently valid definitions of refugee in Ecuador” and may consider it to be “abusive” if it contains “fraudulent elements that involve the deception or manipulation of the process to obtain benefits for oneself, third parties or groups, as well as those cases in which the petitioner, without needing international protection, invokes refugee status to evade justice or compliance with the law.”[31]

This procedure fails to comply in a number of ways with due process guarantees, explained in Section III(A)(i) supra, when applying the manifestly unfounded or abusive standard. The UNHCR Executive Committee has recognized that an erroneous determination could have grave consequences.[32] These due process guarantees ensure that States do not violate an applicant’s right to seek asylum nor cause the State to violate the principle of non-refoulement by making an incorrect decision.

Specifically with respect to refugees and asylum-seekers, the IACtHR has recently found that the guarantee of due process requires, among other obligations, that “the application [] be examined objectively . . . by a clearly identified competent authority, which requires a personal interview.”[33]  UNHCR’s Executive Committee also urges states to ensure the following:

(i) as in the case of all requests for the determination of refugee status or the grant of asylum, the applicant should be given a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status;

(ii) the manifestly unfounded or abusive character of an application should be established by the authority normally competent to determine refugee status; [and]
(iii) an unsuccessful applicant should . . . have a negative decision reviewed before rejection at the frontier or forcible removal from the territory.[34]

The admissibility procedure established in Decree 1182 does not meet these basic standards in violation of due process guarantees. Articles 29 and 32, for example, establish that a representative: (1) is not required to interview the applicant before making a decision, and (2) has absolute discretion on whether or not to request additional information or clarification before reaching a decision.[35] Thus, this provision directly contravenes UNHCR conclusions that require an applicant be given a personal interview to ensure due process guarantees that their full story is evaluated and a proper determination is made.[36] 

The over inclusive nature of Decree 1182’s mandated procedures and lack of basic safeguards of due process guarantees discussed supra increases the likelihood that legitimate claims will be rejected.  This rejection of legitimate claims and exclusion of refugees from protection could lead to the violation of refugee rights, including the right to seek asylum as well as the right to personal liberty and security and the principle of non-refoulement. Without basic safeguards to properly determine an application or to establish whether an individual’s life is in danger, she or he could be returned to the country in which her or his life or freedom is threatened, in contravention of international law.

iii. Overly broad powers to exclude asylum seekers from asylum procedures

Under Presidential Decree 1182, officials may consider an asylum request “illegitimate” and immediately deport the asylum seeker without thoroughly reviewing the application if “there are well-founded reasons to consider that [the applicant] has committed crimes on Ecuadorian soil” equivalent to those included under the 1951 Convention relating to the Status of Refugees.[37]  Under the 1951 Convention, however, States Parties are required to first assess an asylum-seeker’s claim for inclusion as a refugee before determining whether the asylum-seeker may be excluded.[38] The UNHCR Guidelines provide further guidance that States should only exceptionally exclude a person from refugee status before his or her asylum claim has been considered:

Given the grave consequences of exclusion, it is essential that rigorous procedural safeguards are built into the exclusion determination procedure. Exclusion decisions should in principle be dealt with in the context of the regular refugee status determination procedure and not in either admissibility or accelerated procedures, so that a full factual and legal assessment of the case can be made . . . . Exclusion may exceptionally be considered without particular reference to inclusion issues (i) where there is an indictment by an international criminal tribunal; (ii) in cases where there is apparent and readily available evidence pointing strongly towards the applicant’s involvement in particularly serious crimes . . . and (iii) at the appeal stage in cases where exclusion is the question at issue.[39]

Although there is no objection to the proper use and application of the 1951 Refugee Convention, Decree 1182 does not provide for the “rigorous procedural safeguards” called for in the UNHCR Guidelines, and permits exclusion determination procedures before inclusion determination procedures in circumstances not foreseen by the Guidelines. The Guidelines discuss that “apparent and readily available evidence” of the applicant’s involvement in the serious crime is sufficient to exclude the application.  However, Ecuador’s standard allows for applications to be deemed illegitimate “if there are well-founded reasons to believe [applicants] have committed crimes on Ecuadorian territory…”[40] Thus, these broad exclusionary powers contravene accepted practice in violation of refugees’ and asylum-seekers’ due process rights in the country.

iv. Overly broad authority to revoke refugee status

Decree 1182 also grants Ecuadorian authorities the power to revoke the refugee status of recognized refugees on grounds not permitted under international law.  Under article 1(F) of the 1951 Refugee Convention, states may only exclude a person from refugee status if “there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; 
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.”[41]

However, the Decree additionally permits authorities to revoke a person’s refugee status if he or she “has been involved in crimes or situations that undermine the security of Ecuador.”[42] Decree 1182’s language does not require the person to have “committed” the relevant crime or to be “guilty” of such a crime.  It simply requires the person “to have been involved” in “crimes” or “situations” that involve a less demanding test than that required under the Convention.[43]  Furthermore, the language empowers authorities to revoke refugee status even when such decisions were made in error.[44]  Such broad authority to revoke refugee status contravenes international law obligations and violates international due process guarantees that Ecuador must uphold.

 

IV. Decree No. 1182’s provisions represent a retrogression in Ecuador’s refugee rights law protections in violation of the Constitution by narrowing the Cartagena Declaration’s more expansive definition of a refugee that Ecuador directly and immediately incorporates into its domestic legal framework.

The Cartagena Declaration of 1984 has provided influential normative guidance in developing the international refugee protection framework in Latin America.[45] The Cartagena Declaration broadens the definition of a refugee to include “ . . . 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.”[46]

In Ecuador, the Constitution gives additional credence to the Cartagena Declaration[47] and other international instruments by creating binding legal obligations on the state of direct and immediate application.[48]  Indeed, Ecuador has committed itself through its constitutional provisions to accept as binding all “international human rights instruments”[49]—including declarations[50]—as part of the country’s “constitutionality block,” or normative hierarchy, above presidential decrees.[51] Furthermore, Ecuador’s constitutional legal framework mandates that the state be progressive and non-retrogressive in its domestic laws and policy development and implementation.[52]

Until Decree No. 1182, Ecuador had consistently applied the Cartagena Declaration’s norms in its domestic law and in practice, including by explicitly adopting the Declaration’s broader refugee definition.[53] The country was even recognized by UNHCR for its generous policies and practices toward the treatment of refugees.[54] Decree No. 1182’s adoption in 2012 and subsequent refugee law practices, however, signaled a retrogressive legal and policy change in violation of Ecuador’s normative obligations.[55] 

Ultimately, Ecuador should adhere to the broader protections that the Cartagena Declaration affords given the state’s more progressive past practices. In addition, the State should consider the Constitution’s recognition that declarations are “international human rights instruments,” which gives the Cartagena Declaration—even though not a treaty—legally binding authority as part of the constitutional law framework of the country.  Thus, Ecuador should in good faith execute these broader international law obligations and not retrogress in its refugee rights protections.[56]

 

V. Conclusion

Decree No. 1182 violates Ecuador’s binding obligations under international law that the Ecuadorian Constitution incorporates into the domestic legal framework hierarchically above presidential decrees. Decree No. 1182 infringes upon due process rights, and undermines other fundamental rights of refugees and asylum-seekers. In addition, Ecuador has regressed from its previous expansive protections afforded to refugees outlined in the Cartagena Declaration and former domestic legislation. Indeed, Ecuador’s Decree No. 1182 poses significant challenges to refugee protection in Ecuador and the Americas.

For the foregoing reasons, Amici respectfully request that this honorable Court consider this international law analysis when evaluating the constitutionality of Decree No. 1182.

 

 

José Miguel Vivanco                                                   

Executive Director, Americas Division                     

Human Rights Watch                                                             

                                                                                    

Professor Sheri Rosenberg

Director, Human Rights and Genocide Clinic

Benjamin N. Cardozo School of Law

 

Bill Frelick                                                             

Refugee Program Director                                          

Human Rights Watch                                                

                                                                                    

Teresa M. Woods

Associate Director, Refugee Representation Project, Human Rights and Genocide Clinic

Benjamin N. Cardozo School of Law

 

Jocelyn Getgen Kestenbaum

Telford Taylor Fellow, Human Rights and Genocide Clinic

Benjamin N. Cardozo School of Law

 


[1] Unconstitutionality Actions of Asylum Access Ecuador and the Universidad de San Francisco de Quito (hereinafter Unconstitutionality Actions).

[2] Decree No. 1182, arts. 8, 24, 25, 27, 33, 34, 47-50 & 54 (2012); Constitution of the Republic of Ecuador, arts. 11, 41, 66, 76 & 82 (2008).

[3] Regional Refugee Instruments & Related, Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, III(3), 22 November 1984, available at http://www.refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=50ac93722 (last visited May 8, 2014) (hereinafter Regional Refugee Instruments).

[4] Unconstitutionality Actions, supra note 1.

[5] Constitution of the Republic of Ecuador, art. 11(3) (2008) (“The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by and before any civil, administrative or judicial servant, either by virtue of their office or at the request of the party.”); id. at art. 417 (“The international treaties ratified by Ecuador shall be subject to the provisions set forth in the Constitution. In the case of treaties and other international instruments for human rights, principles for the benefit of the human being, the non-restriction of rights, direct applicability, and the open clause as set forth in the Constitution shall be applied.”); id. at art. 424 (“The Constitution is the supreme law of the land and prevails over any other legal regulatory framework. The standards and acts of public power must be upheld in conformity with the provisions of the Constitution; otherwise, they shall not be legally binding. The Constitution and international human rights treaties ratified by the State that recognize rights that are more favorable than those enshrined in the Constitution shall prevail over any other legal regulatory system or action by public power.”).

[6] See id.  For treaties and conventions, see Unconstitutionality Action on the Suppression of Labor Outsourcing, Constitutional Court Resolution 13, Official Registry Supplement 605 of June 4, 2009; Accepted Breach by the Police Department, Constitutional Court Resolution 21, Official Registry Supplement 688 of April 23, 2012; Unconstitutionality Admission of the Government Ministry Contract and Others, Constitutional Court Resolution 71, Official Registry 85, September 23, 2010.  For Declarations: Decision of the Constitutional Court 1165, Official Supplement Registry 101 from February 13, 2009; Decision of the Constitutional Court 1140, Official Supplement Registry 2 from August 20, 2009; Decision of the Constitutional Court 1409, Official Supplement Registry 102 from February 16, 2009; Decision of the Constitutional Court 71, Official Supplement Registry 285 from September 23, 2010 (all referring to international declarations as international instruments).  For Covenants: Decision of Constitutional Court 13, Official Supplement Registry 605 from June 4, 2009.  For Conventions: Decision of the Constitutional Court 13, Official Supplement Registry 688 from April 23, 2012.  For a detailed explanation of the language and interpretation of the Ecuadorian Constitution in this regard, see Daniela Salazar Marín, The Legal Action for Failure to Comply as a Mechanism for Demanding Compliance of Judgments and Reports by International Human Rights Bodies Regarding Ecuador, 15 Iuris Dictio 81, 82-5 (2013).

[7] Ecuador’s Constitutional law obligations also guarantee fundamental due process rights.  See, e.g., Constitution of the Republic of Ecuador, art. 9 (2008).

[8] International Covenant on Civil and Political Rights, art. 14(1), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976 (hereinafter ICCPR).  See also Universal Declaration of Human Rights, art. 7, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948) (hereinafter UDHR), an international instrument widely regarded as customary international law and legally binding on Ecuador through its constitutional provisions, explained supra.

[9] American Convention on Human Rights, art. 25, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978 (hereinafter American Convention).

[10] Inter-Am. Ct. H.R., Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18 (September 17, 2003), citing Inter-Am. Ct. H.R., Case of Baena-Ricardo et al. v. Panamá, Judgment of February 2, 2001. Series C No. 72, ¶ 124.

[11] American Convention, supra note 9, at art. 8(1). Similarly, Article 10 of the UDHR affords the right of asylum-seekers to a fair hearing to present their claims, stating that: “everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations.” UDHR, supra note 8, at art. 10.

[12] U.N. High Commissioner for Refugees (UNHCR), The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum, ¶ e(i), 20 Oct. 1983, No. 30 (XXXIV), in U.N.G.A. Doc. No. 12A (A/38/12/Add.1) (prescribing basic requirements for the procedures for determining refugee status, including the right of an applicant to be given the necessary facilities for submitting his case to the authorities concerned, and that the applicant be permitted to remain in the country pending a decision on his initial request for refugee status) (hereinafter UNHCR Requirements).  For the applicable standards on these issues at the regional level, see Inter-Am. Ct. H.R., Case of Pacheco Tineo Family v. Bolivia, Preliminary Objections, Merits, Reparations and Costs, Judgment of Nov. 25, 2013, Series C No. 272 (hereinafter Pacheco Tineo Family Case).

[13] Convention relating to the Status of Refugees, art. 33, 189 U.N.T.S. 150, entered into force April 22, 1954 (hereinafter Refugee Convention).  See also UNHCR Requirements, supra note 12, at ¶ e(iii).

[14] Ecuador’s Constitution similarly protects these fundamental rights.  See, e.g., Constitution of the Republic of Ecuador, arts. 41 & 66 (2008).

[15] American Convention, supra note 9, at arts. 22(2), (7) & (8).

[16] Refugee Convention, supra note 13, at art. 33 (“No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.”).

[17] Id.

[18] American Convention, supra note 9, at art. 22 (8). Refoulement is also prohibited explicitly or through interpretation by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Article 3), the Fourth Geneva Convention of 1949 (Art. 45, para. 4), the International Covenant on Civil and Political Rights (Article 7), the Declaration on the Protection of All Persons from Enforced Disappearance (Article 8), and the Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (Principle 5).

[19] Decree 1182, supra note 2, at arts. 10, 24-27, 26, 33, 48 & 55.

[20] Id., at arts. 27, 33, 48.

[21] UNHCR, Imposition of Time Limits for Applications, EC/GC/01/12, available at http://www.unhcr-centraleurope.org/pdf/resources/legal-documents/unhcr-handbooks-recommendations-and-guidelines/unhcr-note-on-fair-and-efficient-asylum-procedures-2001.html (last visited May 8, 2014).

[22] Jabari v. Turkey, European Court of Human Rights, 10 July 2000, para. 40; see also Conclusion No. 15 (XXX), 1979, on refugees without an asylum country, para. (i) (A/AC.96/572, para. 72.2).

[23] UN High Commissioner for Refugees, “Determination of Refugee Status,” October 12, 1977, http://www.refworld.org/docid/3ae68c6e4.html (last visited May 20, 2014), recommendations (e)(vi) & (vii). 

[24] Id.

[25] UNHCR, Global Appeal 2013 Update, Ecuador, available at http://www.unhcr.org/50a9f8320.html (last visited May 20, 2014).

[26] Estadistica de Refugio, Ministerio de Relaciones Exteriores y Movilidad Humana, available at http://cancilleria.gob.ec/estadistica-de-refugios/ (last visited May 21, 2014).

[27] Id.

[28] Id.

[29] Adina Appelbaum, Challenges to Refugee Protection in Ecuador: Reflections from World Refugee Day, Georgetown Pub. Pol. Rev. (June 26, 2012), available at http://gppreview.com/2012/06/26/challenges-to-refugee-protection-in-ecuador-reflections-from-world-refugee-day/ (last visited May 20, 2014); see U.S. Committee for Refugees and Immigrants & Asylum Access Ecuador, Refugee Status Determination in Latin America: Regional Challenges and Opportunities, The national systems of Brazil, Colombia, Costa Rica, Ecuador and Mexico (2013) (hereinafter see U.S. Committee for Refugees and Immigrants & Asylum Access Ecuador Report); see, e.g., First Traffic Court, Constitutional Guarantees of Access to Public Information, Gil Echeverry Oscar Ernesto, Asylum Office, Min. of Foreign Relations and Human Mobility, Judgment No. 17451-2014-0028 (Jan. 23, 2014).

[30] Decree No. 1182, supra note 2, at arts. 24-26.

[31] Id. at arts. 24, 25

[32] UNHCR Executive Committee, “The Problem of Manifestly Unfounded or Abusive Application for Refugee Status or Asylum,” Conclusion No. 30, October 20, 1983, available at http://www.unhcr.org/refworld/docid/3ae68c6118.html (last visited May 20, 2014), ¶ (e) (hereinafter UNHCR Ex. Comm. Concl. No. 30). 

[33] Pacheco Tineo Family Case, supra note 12, at ¶ 159.

[34] UNHCR Ex. Comm. Concl. No. 30, supra note 32, at ¶ (e). 

[35] Decree No. 1182, supra note 2, at arts. 29 & 32.

[36] UNHCR Ex. Comm. Concl. No. 30, supra note 32, at ¶ (e).

[37] Decree No. 1182, supra note 2, at arts. 10, 26 & 33. Article 10 states that a person will not be granted refugee status, in accordance with the 1951 Convention, if there are reasons to believe that the person committed a crime against peace, a war crime, a crime against humanity, a serious crime before entering Ecuador, or if the person is responsible of “acts against the purposes and principles of the United Nations.” Under the 1951 Refugee Convention, a state may exclude a person from refugee status if the person has committed certain serious crimes. See Refugee Convention, supra note 13, at art. 1(F).

[38] UNHCR, “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees,” 4 September 2003, http://www.unhcr.org/3f7d48514.html (last visited May 20, 2014), ¶ 31.

[39] Id.

[40] Decree No. 1182, supra note 2, at art. 26.

[41] Refugee Convention, supra note 13, at art. 1(F).

[42] Decree No. 1182, supra note 2, at art. 55.

[43] Id.

[44] Id.

[45] UNHCR Discussion Document, The Refugee Situation in Latin America: Protection and Solution Based on the Pragmatic Approach of the Cartagena Declaration on Refugees of 1984, 18 Int’l J. Refugee L. 252, 252 (2006).

[46] Regional Refugee Instruments, supra note 3, at art. III, ¶ 3.

[47] Ecuador ascribed to the Cartagena Declaration by publishing it in the Official Registry Supplement 461 of November 15, 2004.  See Official Registry Supplement 461 of 15 Nov. 2004, available at http://www.derechoecuador.com/productos/producto/catalogo/registros-oficiales/2004/noviembre/code/18213/registro-oficial-15-de-noviembre-del-2004-suplemento (last visited May 20, 2014).

[48] Constitution of the Republic of Ecuador, art. 11(3) (2008) (“The rights and guarantees set forth in the Constitution and in international human rights instruments shall be directly and immediately enforced by and before any civil, administrative or judicial servant, either by virtue of their office or at the request of the party.”).

[49] Id., at arts. 417 (“[E]n el caso de los tratados y otros instrumentos internacionales de derechos humanos se aplicarán los principios pro ser humano, de no restricción de derechos, de aplicabilidad directa y de cláusula abierta establecidos en la Constitución.”) & 426 (Las autoridades y los jueces “aplicarán directamente las normas . . . previstas en los instrumentos internacionales de derechos humanos siempre que sean más favorables a las establecidas en la Constitución . . . .  Los derechos consagrados en la Constitución y los instrumentos internacionales de derechos humanos serán de inmediato cumplimiento y aplicación.”).

[50] See Decision of the Constitutional Court 1165, Official Supplement Registry 101 from February 13, 2009; Decision of the Constitutional Court 1140, Official Supplement Registry 2 from August 20, 2009; Decision of the Constitutional Court 1409, Official Supplement Registry 102 from February 16, 2009; Decision of the Constitutional Court 71, Official Supplement Registry 285 from September 23, 2010 (all referring to international declarations as international instruments).

[51] For a detailed analysis of the constitution and its provisions related to international human rights instruments, see Daniela Salazar Marín, supra note 6, at 81, 85-9. Ecuador’s Ministry of Foreign Relations has also previously categorized the Cartagena Declaration as an international human rights instrument containing norms that form part of jus cogens.  Comunicado del Ministerio de Relaciones Exteriores, Comercio e Integración, Declaración del Gobierno de la República del Ecuador sobre la solicitud de asilo de Julian Assange, 19 junio 2012.

[52] Constitution of the Republic of Ecuador, art. 11(8) (2008) (“The contents of rights shall be developed progressively by means of standards, case law, and public policies. The State shall generate and guarantee the conditions needed for their full recognition and exercise. Any deed or omission of a regressive nature that diminishes, undermines or annuls without justification the exercise of rights shall be deemed unconstitutional.”).

[53] Autoridades Nacionales, Ecuador: Decreto No. 3293 de 1987, Reglamento para la aplicación en el Ecuador de las normas contenidas en la Convención de Ginebra de 1951 sobre el Estatuto de los Refugiados y su Protocolo de 1967 (National Authorities, Ecuador: Decree No. 3293 of 1987, Regulation for the Application in Ecuador of the Norms Contained in the Geneva Convention of 1951 on the Status of Refugees and its 1967 Protocol), 30 September 1987, available at http://www.refworld.org/docid/46d6c84d2.html (last visited May 20, 2014) (“The term ‘refugee’ will be applied as well to all persons that 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.”) (translated by authors).

[54] Beginning in 1987, Ecuador recognized the Cartagena Declaration’s refugee definition in Decree 3293 (repealed). Then, in 1992, the Cartagena definition was restated in Article 2 of Decree 3301 (repealed) and was not changed when the decree was amended in 2009. Challenges to Refugee Protection in Ecuador: Reflections from World Refugee Day, available at http://gppreview.com/2012/06/26/challenges-to-refugee-protection-in-ecuador-reflections-from-world-refugee-day/ (last visited May 20, 2014); Decree No. 3301 of 6 May 1992 issuing Regulations for the application in Ecuador of the rules contained in the Geneva Convention of 1951 on the Status of Refugees and its Protocol of 1967. See U.S. Committee for Refugees and Immigrants & Asylum Access Ecuador Report, supra note 29, at 11.

[55] As explained, supra, Ecuador’s Constitution directly incorporates international instruments into its domestic legal framework, hierarchically above presidential decrees, and this honorable Court considers international and regional declarations as legal authority. See Decision of the Constitutional Court 1165, Official Supplement Registry 101 from February 13, 2009; Decision of the Constitutional Court 1140, Official Supplement Registry 2 from August 20, 2009; Decision of the Constitutional Court 1409, Official Supplement Registry 102 from February 16, 2009; Decision of the Constitutional Court 71, Official Supplement Registry 285 from September 23, 2010 (all referring to international declarations as “international instruments”).

[56] Vienna Convention on the Law of Treaties, art. 26, U.N. Doc. A/CONF.39/27 (1969), 1155 U.N.T.S. 331, entered into force January 27, 1980 (“Pacta Sunt Servanda”).

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