Peter D. Bell Rule of Law

The Inter-American Dialogue’s Peter D. Bell Rule of Law Program aims to elevate policy discussions around democracy and human rights, corruption and transparency, and citizens security in the Americas.

The program was established in 2015 to honor Peter D. Bell, a founding co-chair of the Dialogue’s Board of Directors, with support of the Ford Foundation. The broad scope and ambitions of the program are a fitting tribute to Peter’s expansive career as a tireless champion of human rights. 

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Latin America and the Caribbean: Promoting Rule of Law and Governance Through South-South Cooperation

Latin America and the Caribbean face stubbornly high levels of poverty, inequality, political polarization, violence, corruption and impunity.

Nov 10, 2022˙Santiago Canton

Chile’s Constitutional Convention: The Ascent of the Anti-Establishment Left and the Death of the Moderate Center

The failure of the right to obtain sufficient seats for a veto, the near total rejection of the moderate parties that historically have governed Chile, and the stunning power of anti-establishment, independent leftists all point towards a Convention that will draft a thoroughly leftist new constitution.

Jun 3, 2021˙

It’s time to restore asylum protections for domestic violence survivors at the US border

The intersection of domestic violence and migration in the Northern Triangle necessitates the protection of survivors seeking asylum. Biden’s stated commitments to gender-based issues and promises made on immigration reform prior to the election call on the administration to immediately restore asylum protections for domestic violence survivors.

Apr 9, 2021˙Catharine Christie

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Latin America and the Caribbean face stubbornly high levels of poverty, inequality, political polarization, violence, corruption, and impunity. This situation is made only worse by the pandemic of the last several years that has left this region of the "South" in a more precarious overall state than ever and even less of a priority for its partners in the "North." Moreover, the democratic wave that the region experienced in the 1990s and early 2000s, has been offset by a rise in authoritarianism and other anti-democratic measures. The scourge of corruption and impunity, for decades having seriously tarnished the reputations of most countries of the region, requires urgent and comprehensive policy responses. Several countries of the region, most notably Chile and Uruguay, since their return to democracy have adopted strong anti-corruption reforms with world-class results (both perform better in the Corruption Perception Index of Transparency International than developed countries including the United States, Portugal, or Spain).

The Latin America/Caribbean (LAC) region has a serious opportunity to undertake an innovative program of South-South cooperation on transparency and anti-corruption, building on exchange of best practices within the region, including the experiences of Chile and Uruguay, as well as of other countries which have made progress on various transparency fronts (such as Colombia and Costa Rica.)  This effort should move forward in parallel with the new US government commitment to promote and support comprehensive progress on anti-corruption both at home and abroad, and in coordination with its global partners. Mutual exchanges of best practices, including not only South-South but also new North-South and South-North cooperation, could help to distinguish the Western Hemisphere as a place where increasing transparency and more effective governance further goals of regional development, growth, trade and investment. We propose to build on South-South transparency work that the four authors initiated in recent years to advance a concrete South-South governance and transparency project bringing together like-minded representatives of governments, civil society organizations, and the private sector in the hemisphere. 

BACKGROUND

Much of the Latin America and the Caribbean region, even in the pre-Covid-19 period, already was dealing with some of the most complex political, economic, and social challenges the region has faced in many decades: high and rising levels of poverty, inequality, political polarization, violence, corruption, transnational crime and impunity, along with low levels of economic growth, generally ineffective governance, and record drops in public confidence in democratic institutions. The added impact of the Covid-19 pandemic since March 2020, which took a disproportionately high per-capita toll in LAC, only further exacerbated these crisis conditions.  Addressing this situation today is only further complicated by Russia’s invasion of Ukraine in February 2022 and the impact of this conflict on global growth and commodity prices, and on the complex bilateral relations and interrelations that LAC countries have with the US, China, and Russia. Rounding off these less than auspicious circumstances, the US, with its proximity and historical ties to the LAC region, finds itself at this moment seriously distracted by pressing international crises mostly beyond the western hemisphere, its own internal political polarization and instability, and a migration crisis on its southern border.

In the middle of these complex global circumstances, the countries of Latin America and the Caribbean, more than ever left to their own devices, face conditions that demand urgent and concerted responses. The LAC region faces the likelihood of less generous technical and humanitarian assistance from countries in the North, including the US, Canada, EU, UK, and Japan, given demands for assistance resources from Ukraine and elsewhere, greater domestic demands in the North to respond to global energy and food crises, and pressures to lower spending to bring down inflation. 

LAC: URGENT THREATS OF GOVERNANCE AND GOVERNABILITY

How can the countries of Latin America/Caribbean most effectively direct their own efforts and public policy arsenals to address the multifaceted crises they face today? We suggest that every LAC country can and must promote effective policies on the broad challenges of governance. Real progress can be made only with a genuine national consensus, including support from civil society and the private sector. This sounds like a tall order, but breaking sharply with the deeply entrenched tendencies of elite corruption is essential to confront those crises.  

We refer readers to and endorse the recommendations made by the UNDP and International IDEA in a May 2022 report, Governance, Democracy and Development in Latin America and the Caribbean, that focuses with impressive clarity on how LAC’s “chronic problems of governance and the low quality of governability” are to blame for many of the crises facing the region. The report argues that the LAC region increasingly faces “a crisis of governability and of democracy... Of particular concern are the intentional actions in some countries to restrict freedom of speech and press freedoms, to attack electoral authorities and judges, and to weaken constitutional control over the authority of the executive branch.  These behaviors, together with the persistence of crime, corruption and impunity, threaten the very foundations of the rule of law in the region [emphasis our own] with the consequent impact on civil and political liberties, the ability to guarantee free and fair elections, and the exercise of full citizen participation.”  (ref. UNDP/IDEA Report page 9)

The UNDP/International IDEA report provides a list of recommendations that respond to the six main problems faced by the LAC region: “(1) low and erratic economic growth rates, (2) high income inequality and concentration of wealth, (3) fiscally constrained states, (4) representative and democratic disaffection, (5) fragmentation and polarization of the political system, and (6) lag and deterioration of the rule of law.” (UNDP/IDEA Report page 6)

While the UNDP/International IDEA Report includes recommendations that address each of the six problem areas of governance, in this discussion, we single out the final issue -- the deterioration of the rule of law -- with a specific focus on the destructive impact that corruption has had throughout the region.  “If the rule of law is not strengthened thoroughly and effectively, corruption, organized crime and violence are perpetuated and form a vicious cycle of impunity. Corruption seriously affects governance and governability, as it underlines citizen confidence in democracy and its institutions, favors the misuse and improper use and misappropriation of already scarce public resources, engenders impunity and affects social cohesion. Of all the aspects of democracy in Latin America and the Caribbean, reducing corruption is the field with the least substantial and rapid progress has been made in recent decades.”  (UNDP/IDEA page 29) And finally, “without strong regional integration initiatives and institutions, the isolated efforts of each country to combat scourges such as organized crime, migration, drug trafficking, corruption and climate change shall always be insufficient.”  (UNDP/IDEA Report page 33)

Corruption and deterioration of rule of law are factors that have been documented by the growing number of measures of corruption and of the state of governance that have been developed as transparency and anti-corruption work has become a growth market in recent decades: from the earliest Corruption Perception Index (CPI) of Transparency International to the World Bank’s Ease of Doing Business Index and its new and improved Business Enabling Environment (BEE) Index, the World Justice Project’s Rule of Law Index to one of the most recent and innovative measures, the ERCAS/CIPE Corruption Risk Forecast, as well as numerous other measures and indices. All of these reports and measures, since their inception in the early 1990’s, have left the consistent story of LAC as one of the most deeply corrupt regions in the world. Despite the different efforts made by international organizations, bilateral donors, civil society and journalists, there are still very few examples of successes. Corruption continues to be one of the highest priorities of citizens for their governments and authorities to address, with no general improvements in the last decades.   

ANTI-CORRUPTION EFFORTS IN LAC REGION ACROSS THE DECADES

Perhaps in part reflecting the region’s tarnished record, the Western Hemisphere took the lead on the corruption front when the Organization of American States (OAS) in 1996 created the first regional anti-corruption convention, the Inter-American Convention against Corruption (IACC)  which later served as a model for the 2006 UN Convention against Corruption (UNCAC). Corruption has been a frequent focus for many concrete initiatives aimed at improving transparency and governance in LAC, including significant work by the Inter-American Development Bank (IDB), the CAF-Development Bank of Latin America, the Organization of American States (OAS), the World Bank, the International Monetary Fund and the Organization for Economic Cooperation and Development (OECD). The 2018 Lima Commitment on Democratic Governance Against Corruption at the Eighth Summit of the Americas and the focus on anti-corruption at the Ninth Summit of the Americas in Los Angeles in June 2022, all have served as evidence of rising (and sometimes waning) commitments to anti-corruption throughout the region. Other multilateral transparency initiatives that have taken root in an increasing number of countries of the region have included the Open Government Partnership (OGP), and the Extractive Industries Transparency Initiative (EITI). Because of all these efforts, it is not unusual to have strong political commitments on these issues from most candidates for national elections, but without the impact that would be expected from such electoral promises.

For more than two decades, bilateral assistance donors to Latin America and the Caribbean (principally the US, Canada, EU, Germany, UK, Spain, and Japan) also have provided significant though mostly uncoordinated North-South technical assistance on governance and transparency issues that has contributed to a better understanding of governance and corruption in the region and to some limited advances in concrete policy. Major multi-year and multi-million-dollar projects in LAC, in particular by USAID and the European Union, have played a role in helping to develop institutions of the rule of law and civil society organizations in many countries of the region. Numerous relevant civil society organizations based both in the North as well as in the LAC region itself (e.g., Transparency International, IDEA International, Pan American Development Foundation, Open Societies Foundation, and many others) have also promoted numerous worthwhile macro and micro initiatives in transparency and governance. At best, the results of these efforts have been mixed, with corruption and impunity still representing today grave threats to stability and development in the region.

CONCEPT OF SOUTH-SOUTH COOPERATION

Significant changes have taken place in the world in recent years in terms of international political and economic relations. One clear consequence of this has been that the traditional North-South “model” of knowledge exchange and sharing of policy experience no longer is seen as the only approach to public policy and technical assistance work. Cooperative efforts to develop and implement bilateral technical cooperation among developing countries have come to be referred to as South-South Cooperation, while such bilateral cooperation that is financed by developed countries is referred to as Triangular Cooperation. Arguably, the experience of other developing countries in addressing common challenges can be more relevant and effective for recipient countries, especially when these countries share common historical, cultural, political, institutional and social characteristics, and in many cases speak the same language. It is also often easier for partners to accept assistance coming from other developing countries who have experienced similar challenges and can share successful approaches.

Promoted increasingly actively by the United Nations, “the scale, scope, volume and number of stakeholders of South-South cooperation… continue to witness exponential growth at all levels.” (Ref: UN System-Wide Strategy on South-South and Triangular Cooperation for Sustainable Development). The UN Office of South-South Cooperation (UNOSSC) was created to promote these new forms of technical cooperation. While UNOSSC resources have been limited and its programs’ effectiveness at times undercut by political sensitivities, the Secretary General himself has said that “South-South cooperation is contributing to the transformation of the norms and principles of international cooperation.” 

Despite the rising importance of such cooperation, South-South exchanges on governance and corruption have been limited, in part because of the political sensitivity of these issues and limited financial support from donors. The 2019 Buenos Aires Conference on South-South Cooperation, the second such High-Level UN Conference, openly encouraged South-South exchanges to combat corruption, noting that “corruption and illicit financial flows impede economic development, deepen income inequality, and reduce the domestic resources mobilization for sustainable development in developing countries.” In 2020, the UN released a new System-Wide Strategy on South-South and Triangular Cooperation for Sustainable Development, including an increasingly prominent focus on transparency and governance work.

A SOUTH-SOUTH GOVERNANCE AND ANTI-CORRUPTION INITIATIVE

Genuinely committed public and private sector leaders in the hemisphere need to develop new approaches to strengthen rule of law and combat the corruption that has wreaked such political and economic destruction on their countries by undermining basic citizen trust in government. This effort should be organized, in part, as a South-South initiative based on the best practices and extensive experience of a number of countries of the region where concrete progress has been achieved in recent years, including on critical issues of electoral finance, lobbying laws, judicial training and reform, transparency in government procurement, and in public sector financial management, judicial training and reform, among others. This effort will need to distinguish itself from the anti-corruption mantel that has been used cynically by populist politicians to weaken their political opponents and commercial rivals. In many other cases, reform efforts are  reflected in new laws, but implementation of laws is more often than not incomplete or nonexistent, frustrating the reformers. Support for an innovative initiative like this should come at an early point from both bilateral and multilateral partners in the North, as well as from private sector leaders in the region who recognize the positive impact that such work will inevitably have on the commercial environment. Much of the needed background and research has already been done, and pilot projects should be taken advantage of quickly to build momentum. 

In 2017/2018, the authors launched a concrete technical assistance initiative that generated a significant body of research and some limited initial South-South exchange of best practices in the areas of transparency, anti-corruption and citizen security in Latin America. This effort focused on and documented the experience and best practices in Chile, Uruguay, and Colombia, with the countries of the Northern Triangle (El Salvador, Guatemala, and Honduras) as the planned recipients. The Chilean Agency for International Development Cooperation (AGCID), the Uruguayan Agency for International Cooperation (AUCI) and the Colombian Presidential Agency for International Cooperation (APC) were engaged in this work from 2017 until 2021 to varying degrees, as were civil society organizations, including national chapter affiliates of Transparency International in the countries involved, as well as other NGOs. The initial work from 2017-2020, which was funded by USAID and the Open Societies Foundations, was carried out while several of us were then based at the Center for Strategic and International Studies (CSIS) and then at the Pan American Development Foundation (PADF). Others of us worked at that time with civil society organizations in the region that cooperated with PADF and CSIS.

This South-South project was founded on the argument that the LAC region itself has significant relevant experience with efforts to address corruption and promote greater transparency in the public and private sectors. Chile and Uruguay, which like most of their neighbors in LAC faced high degrees of political and social polarization, have made impressive gains in anti-corruption policy advances through deliberate efforts to build national consensus behind these measures. In most measures of transparency and rule of law, including Transparency International’s Corruption Perception Index, Chile and Uruguay have outranked by far all other countries in the region and compete effectively with most developed countries. Uruguay consistently has outperformed the United States in many transparency measures, while Chile has on a number of occasions tied or surpassed the United States. Colombia, although not ranked as high in the transparency indices as Chile and Uruguay, offers specific lessons on how to address impunity while at the same time promoting significant improvements in citizen security. All three countries stand out in promoting innovative legal, regulatory, and independent non-governmental mechanisms to address these issues. Selected other countries in LAC have also distinguished themselves in measures of transparency related to specific policies and areas of focus, including Costa Rica, Brazil, Mexico, and others. 

This South-South project in its initial stage focused on Chile’s, Uruguay’s, and Colombia’s best practices in five priority areas of public policy including:

• political party and campaign financing;
• public financial sector management;
• government contracting and procurement, including for infrastructure projects;
• civil service reform and vetting mechanisms for public officials, including in the judiciary and law enforcement; and
• internal strengthening and oversight of security and justice institutions to combat impunity and improve citizen security.

Written analytical work completed during the first phase of this project can be accessed here, and includes detailed assessments of the policy advances in Chile, Uruguay, and Colombia in the five areas listed above. The work also includes diagnoses of where public policy gaps exist in the countries of the NTC. The USAID Final Report on this first phase of the project provides a detailed accounting of the work completed including recommendations for follow-up work in a planned second phase of the project. PADF completed in 2020 a follow-on report on anti-corruption efforts in Ecuador which paralleled the earlier NTC work.

When the governments of the NTC in 2021 showed reluctance to make a genuine commitment to engage seriously in this project, the initiative, which was being coordinated at the time by PADF, stalled despite enthusiasm for moving forward on the part of NTC civil society representatives as well as both public and private representatives in Chile and Uruguay.  

NEXT STEPS IN LAUNCHING A NEW SOUTH-SOUTH INITIATIVE?

The current moment is an ideal time to review the work already done in promoting South-South cooperation on transparency, update and expand the research findings and recommendations and build the interest of countries of the region to participate in an initiative of this sort. The Inter-American Dialogue (IAD) is already leading the effort to relaunch this South-South initiative. As a unique regional civil society organization devoted to fostering democratic governance, prosperity, and social equity in Latin America and the Caribbean, the Inter-American Dialogue is well-placed to help coordinate the policy debate around LAC’s challenges of governance and governability, to devise solutions, and to promote new regional cooperation within the entire Western Hemisphere. The IAD is already engaged in initial discussions with key public and private institutions in the region, including with the technical assistance agencies, AGCID in Santiago and AUCI in Montevideo, with local Transparency International Chapter Directors in Chile (Chile Transparente) and Colombia (Transparencia por Colombia) and with the civil society organization Uruguay Transparente in Uruguay, as well as with representatives in Ecuador and the Dominican Republic, possible initial participant countries for this new initiative.

A multi-country undertaking of this sort implies a complex platform for activities and exchanges. We fully recognize the challenges associated with this ambitious plan. However, a committed initial circle of public and private representatives in Chile, Uruguay, Colombia, and the US and a potential network of allies and colleagues in countries such as Ecuador, the Dominican Republic, Honduras, Paraguay, Mexico, Brazil, Peru, and elsewhere, leave us enthusiastic about moving forward with this initiative in the coming months. 

Among possible next steps for the South-South initiative, we wish to mention in very brief form the following ideas and concepts: 

• The authors are interested in building closer coordination among our own current institutions (Inter-American Dialogue (IAD), Transparency International (TI), and the Pan American Development Foundation) as well as with other like-minded organizations that could contribute to the form and content of this South-South initiative, including IDEA International, Center for International Private Enterprise (CIPE), IADB, CAF, OAS, UN and other international and civil society organizations as well as bilateral donors (US, Canada, EU, Japan) that share our assessment of the grave threat posed by corruption and impunity in the LAC region.
• The US Government, with its December 2021 “Strategy on Countering Corruption”, and with the US as a hemispheric neighbor, has an important role to play in promoting this form of South-South collaboration, supplementing what the USG has already committed in terms of more traditional North-South technical assistance. This new anti-corruption strategy from Washington also opens a potential opportunity for support from the US (as well as from Canada, EU, Japan) in turning this South-South initiative into a Triangular one.
• The areas of focus in anti-corruption efforts are very broad, and initial efforts might best be targeted towards those areas that have been most sensitive politically and therefore most difficult for partners to make genuine progress on: regulation of political/campaign financing and of legislative lobbying (two key recommendations in the May 2022 UNDP/IDEA Report). The US Strategy on Countering Corruption speaks candidly of pushing “for greater transparency in the US campaign finance system” (US Strategy page 18), an opening for an innovative South-North focus of cooperation. Chile and Uruguay have very relevant experience to share with the United States on  how to implement effective limitations on electoral finance and lobbying.    
• Any exchange of best practices work will be undertaken with new country participants in LAC only after explicit agreement by that government, accompanied by relevant civil society organizations and private sector leaders in that country. “Fake” populist anti-corruption commitments cannot be legitimized in this South-South initiative. Effective ways to engage participant countries will need to be developed.
• Exchange of best practices should always be seen as a two-way dialogue and flow of information. Public and private representatives of Chile, Uruguay, and Colombia all acknowledge openly that their own experiences in anti-corruption will never be complete and will always require review, renewal, and recommitment to the principles of transparency and national consensus.
• We propose to gather a small number of regional experts on transparency early in 2023 to promote an action-oriented discussion of a LAC South-South Initiative on Rule of Law and Governance. The eight members of the IDB’s 2018 “Expert Advisory Group on Anti-Corruption, Transparency, and Integrity in Latin America and the Caribbean” (Report in Spanish) could be included as key participants together with appropriate representatives from IAD, TI, IDEA, PADF, and other interested parties, including government representatives.
• Real progress on anti-corruption must include broad support of both the public and private sectors. Private sector leaders must play a fundamental role in promoting genuine progress on transparency and anti-corruption. One means of promoting this private sector role could be through participation of business leaders and civil society representatives from each country engaged in this South-South Initiative in a Working Group on Rule of Law and Governance led jointly by the Inter-American Dialogue’s Peter D. Bell Rule of Law Program, possibly with the local Transparency International Chapter in each participant country. At a later point, a broader region-wide entity might also be considered. 
• Further along, and consistent with the 2017-2021 plans for the South-South initiative, we propose the creation of a “clearinghouse of best practices” to promote transparency, anticorruption, and citizen security. These best practices must be presented and recorded, including in a web-accessible digitized format, to facilitate broad distribution and potential application in any interested and committed partner in LAC and beyond. Also, to contribute to accountability and trust in this kind of initiative is very important to provide periodic public reports of the objectives and aims, compromises, and accomplishments of the initiative.

This ambitious South-South collaboration project aims to share the proven strategy of civil society, private sector, and public partners working together to build the political will necessary to institutionalize the fight against corruption and hold accountable those who abuse their positions and their power. The lessons that Chile, Uruguay, and Colombia have set out with clarity in recent years are that change is possible and that polarized ideological politics can be overcome. This can happen when representatives of civil society and the private sector together with savvy political leaders from all sides recognize that the country can move forward only if it is a place where rules are fair, consistent, affect all equally, and are enforced.

This project, if it can be undertaken, will help to develop new avenues for two-way exchange of South-South technical expertise to build a new transparency ethos: anticorruption institutions are key to protecting democracy and promoting economic progress, and those who abuse their public trust anywhere in the Americas will go to jail.

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On May 15 and 16, 2021, Chile held mega-elections for mayors, council-members, regional governors, and representatives to the Constitutional Convention. These were the first elections for public office since the 2019 mass protests and the October 2020 referendum that approved the national process to write a new constitution. The campaigns for the Constitutional Convention received the most attention due to the Convention’s history-making task to draft Chile’s new constitution over the course of the next nine to twelve months. The results of the election have sent a jolt through Chilean politics.

First, the right-wing coalition obtained only 37 of the 155 seats in the Convention. Their coalition had hoped to achieve at least one third of the seats, providing them with an effective veto over the drafting of the new constitution because the rules require a two-thirds majority for the inclusion of any article. The resulting underperformance have handed yet another defeat to President Piñera and his ministers, who are already dealing with the lowest approval ratings in the history of Chile. The right-wing parties failed to earn one third of the seats despite outspending every other coalition. While the right-wing did worse than expected, they still obtained more seats than any other electoral list.

Second, the political establishment as a whole and not just those on the right had a poor showing in the Constitutional Convention elections. The right, center-left and left obtained 90 of the 155 seats, leaving the remaining 65 seats to representatives unaffiliated with the traditional parties. Left-wing parties received 28 seats while center-left parties received 25. The most stunning result saw the Christian Democrats (DC) win only two seats while the Party for Democracy (PPD) won only three. Throughout the 1990s, these two parties dominated Chilean politics and were responsible for managing the democratic transition following the Pinochet dictatorship and massive economic expansion under Presidents Patricio Alywin, Eduardo Frei, and Ricardo Lagos. The essential null power that these two parties have in the Constitutional Convention marks a dramatic death for the politics of the transition generation, which were already on life support given the 2019 mass protests. Even if the DC and PPD were to team up with the right-wing to form a moderate block, their combined representation would not be enough to veto proposals and force negotiations.

Third, the power brokers in the Constitutional Convention will be the independent, indigenous, and non-partisan representatives. This grouping covers 65 of the 155 seats, amounting to more than 40 percent of the total. Because most of these representatives are entering formal politics for the first time and are members of newly formed electoral lists, questions abound. Who are they? What are their ideological inclinations? With whom will they negotiate and form pacts? Media and political analysts are only just beginning to answer these questions. Out of this large, heterogenous group there are initial groupings that help to understand the direction that the Constitutional Convention will go.

The Lista del Pueblo, for example, won a hefty 27 seats, which gives them more power in the Convention than the list of center-left parties that governed Chile for 24 of the last 31 years. The Lista del Pueblo is ideologically left-wing but with a sharply anti-establishment attitude and non-partisan commitments. After the election, the leader of the list declared that they will not negotiate with the right, will not defend any aspect of Chile’s current economic model, and will only come to agreements with people, not political parties.

The list of Independents for a New Constitution won 11 seats and ran on the slogan of “independent but not neutral.” They support placing human dignity as the core value behind the new constitution and hope to establish a social democratic, decentralized, plurinational and modern state.

A final group outside the political establishment worth mentioning are the indigenous representatives, which have 17 seats after being chosen in ethnicity-based elections. The most important group is the Mapuches, with seven representatives, including Machi Linconao who is a prominent activist for the recovery of ancestral lands and has previously been imprisoned four times. The indigenous representatives will presumably push for more official recognition and greater control over their territories. Their 17 votes could be key in bringing proposed articles over the two-thirds threshold.

The failure of the right to obtain sufficient seats for a veto, the near total rejection of the moderate parties that historically have governed Chile, and the stunning power of anti-establishment, independent leftists all point towards a Convention that will draft a thoroughly leftist new constitution. While constitutional change along these lines would represent a major achievement for the enshrinement of social rights, the financial press is already running headlines about the possible economic consequences. The Santiago stock exchange fell ten percent in one day after the results of the election were announced and Goldman Sachs warned that the “extreme left” could have negative effects for the market. These fears will only grow worse as the presidential elections in November 2021 draw near and left-wing candidates such as Communist Mayor Daniel Jadue continue to lead in polls. There is a strong chance that by early next year Chile will find itself in the midst of a profound economic, social and political transformation under a radical left-wing president and Constitutional Convection. Nevertheless, whatever its form, the drafting and enactment of a new constitution is an opportunity for the creation of a new social contract between the government and the Chilean people. Given that Chile has long been held out as a model of democracy and economic success, changes in the country’s social contract could have important repercussion beyond its borders and particularly for a region in the midst of intense social turmoil.

William Skewes-Cox is a human rights lawyer and a former consultant with the Dialogue’s Peter D. Bell Rule of Law Program. He holds a J.D. from Georgetown Law and a Master’s in Global Politics from the London School of Economics. He previously studied and worked in Chile for five years as a teacher and journalist. He maintains permanent residency in the country and votes in the country’s elections.

 

RELATED LINKS: 

What Will Delegates Change in Chile’s New Constitution?

Chile’s Constitutional Referendum: A Symbolic Triumph but a Long Road Ahead

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In the last few months, the flow of migrants to the US-Mexican border has been labeled a “crisis” by the media, and Vice President Kamala Harris is now leading the Biden administration’s response. While preliminary data shows higher than average border crossings in the last few months, the majority of migrants are expelled in a matter of hours on account of Title 42 – the public health mandate enacted under former President Donald Trump that blocked most migrants from entering the United States to claim asylum. The focus on sheer numbers and the crisis-framing also obfuscate the human aspect of migration, the individual stories, and motivations of those who make the dangerous journey to the border, lumping them together under the generalized label “migrant.” One group that has been largely overlooked is domestic violence (DV) survivors and their claims to US asylum.

US Asylum Applications Today

To be eligible for asylum under US and international law, a person must show a well-founded fear of persecution on the grounds of race, religion, nationality, political opinion, or membership in a particular group. In 2020, there were 151,800 total asylum applications from individuals in removal proceedings or at a US border or entry point, and today there are almost 1.3 million backlogged due to the large volume of applications and limited resources.

The approval rate of asylum applications has followed a steady downward trend over time, especially in the later years of the Trump administration. The countries most affected by high asylum application denial rates in 2020 are all in Latin America, including Honduras (87.3 percent), Guatemala (85.8 percent), Mexico (85 percent), and El Salvador (81.9 percent). These countries are also some of the most dangerous places in the world for women. In 2018, there were 13.49 femicides for every 100,000 women in El Salvador, the highest rate worldwide, and in 2021 so far, a femicide was committed in Honduras every 36 hours. This gendered violence is often a contributing factor for migration from Central America. Between 2014 and 2018, approximately 10,000 people per year were granted asylum due to gang violence or DV in their home countries. Although there is no exact data to show how many women are claiming asylum because of DV, there has been an increase in female migrant apprehensions from 2012 to 2017.

Asylum applications are filed with the Department of Justice’s immigration court system, known as the Executive Office for Immigration Review (EOIR). As part of the executive branch, the EOIR reacts directly to decrees or guidelines from executive officials. In 2018, the Trump administration used this influence to narrow the purview of asylum law and the ability of DV survivors to claim asylum. Led by former Attorney General Jeff Sessions, the administration argued that the grounds for asylum should not include domestic abuse because it is “private violence” rather than government persecution, upholding the misguided idea that violence against women is not a public health issue that warrants government protection. Human rights organizations challenged the use of these guidelines during the credible fear screening phase for asylum seekers in a federal court case. Although a federal judge ruled in their favor, this decision does not apply to the second phase when applicants are granted a court hearing. Judges can still use Sessions’ mandate to deny claims and some continue to do so.

DV & Migration under Biden

In sharp contrast, President Joe Biden has publicly stated his commitment to prioritize gender equality and rights and explicitly acknowledged the link between domestic violence and migration. He campaigned on a pledge to reform the immigration system and reverse Trump’s policies. Three of Biden’s plans, all published ahead of the November 2020 election, reference asylum protections for domestic violence survivors. Biden’s Central America Plan outlines a massive effort to invest in the Northern Triangle to address the root causes of migration. Under the section related to the rule of law, it states that Biden will restore “full access” to asylum for DV cases. The “Biden Plan to End Violence Against Women” and “The Biden Plan for Securing our Values as a Nation of Immigrants” specify that the US Department of Justice will reinstate explicit asylum protections, rescinded by the Trump administration, for DV survivors whose home governments cannot offer protection. On International Women’s Day, his administration’s fact sheet included ensuring that women and girls who flee from domestic violence are afforded the opportunity to seek US asylum.

While several executive orders on immigration have been signed into law in the first months of Biden’s term, none fulfills the promise of reinstating asylum protections. Under Sec. 4 (b) (c) (i), EO 14010, the attorney general is ordered to conduct a comprehensive review of the rules, regulations, and internal guidelines governing asylum claims to ensure they comply with international standards. The attorney general was given a 180-day review period, which ends on August 1, 2021. While the steady undoing of the Migrant Protection Protocols (MPP) is a welcome step towards fixing some of the damage done by the Trump administration to the US asylum system, Biden officials have signaled that other reforms will remain on hold. Accordingly, Title 42 remains in place – against the recommendations of public health experts – and the majority of migrants are turned away at the border. Statements by White House Press Secretary Jen Psaki and Secretary of Homeland Security Alejandro Mayorkas tell asylum-seekers to wait.

Next Steps

In the days between now and the end of the mandated 180-day review, thousands of asylum seekers will remain in precarious positions and be potentially exposed to many of the same risks that originally led to their migration. Rather than waiting until August, the Biden administration should immediately restore eligibility for DV survivors and reverse the harmful mandate enacted by Attorney General Sessions. In the long-term, legislation is required to reform the immigration and asylum systems to make it difficult for an anti-immigration administration to dismantle protections. Comprehensive legislation should also include explicit protections for gender-based violence victims under the definition of a “particular group,” ensuring their asylum eligibility. Although the US Citizenship Act of 2021 aims to accomplish some of this, the bill is unlikely to move forward in Congress as is and may instead be broken down in a piecemeal approach.

The intersection of domestic violence and migration in the Northern Triangle necessitates the protection of survivors seeking asylum. Biden’s stated commitments to gender-based issues and promises made on immigration reform prior to the election call on the administration to immediately restore asylum protections for domestic violence survivors. If the universal human rights of women and girls are a priority for the United States, we need to take action at the border.

 

RELATED LINKS: 

Gender Rights Program

Peter D. Bell Rule of Law Program

The Toxic Intersection of Violence Against Women in the Northern Triangle and the Trump Administration's Anti-Immigration Policies

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