The eye of the beholder: Asylum adjudication by diplomatic authorities in Latin America

Adjudication on territorial asylum claims is considered to be one of the most difficult forms of legal decision-making, a fact which is further complicated by the lack of substantive guidance in international instruments as to minimum standards regarding the nature of the adjudicator. In this context, some States in Latin America have adopted procedures that are either carried out by their Ministries of Foreign Affairs or by inter-institutional committees where they hold prominent positions, which leads to the situation where the body charged with maintaining relations with foreign nations also has to determine whether they persecute their citizens, violate their fundamental rights or are unwilling or unable to protect them from the actions of third parties. The purpose of this article is to analyse the origins and implications of this situation and respond to the lack of research in this field, through both legal analysis and preliminary original research conducted in collaboration with NGOs working with asylum-seekers in the region. The author argues that this practice, which has recently received attention due to the Snowden case, leads to unfairness in adjudication and to the use of asylum as a foreign policy tool, consequently breaching both universal and regional legal obligations.