European Asylum Law and International Asylum Law

European Asylum Law and International Asylum Law

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The rules of international law and primary Community law discussed in Chapters 2 and 3 suggest that the legal position of third country nationals could only exceptionally be adversely affected by Community law on asylum for several reasons. To begin with, the transfer of powers on asylum to the Community has not brought change to the scope or content of the Member States’ obligations under international asylum law. The Refugee Convention, the Covenant on Civil and Political Rights, the Convention Against Torture and the European Convention on Human Rights were all concluded well before the Treaty of Amsterdam, and count among their signatories many non- Member States. Thus, claims by third country nationals to the Member States in their capacity as states party to the instruments of international asylum law cannot, in principle, be adversely affected by European asylum law. In principle, for this statement is subject to three exceptions (addressed below).

When a rule of European law on asylum conflicts with some rule of international asylum law, the latter has precedence. This precedence is not due to hierarchical superiority – hitherto, the international community of states has not accepted the peremptory nature of rules of international asylum law. Rather, conflicts should be solved by conciliatory interpretation of the rule of European law with the rule of international law. European law gives ample opportunity for such conciliatory interpretation. To begin with, pursuant to Article 63 TEC as well as to relevant general principles ofCommunity law, European rules on asylum should be applied and interpreted in accordance with the Refugee Convention and relevant treaty law. Further, most of the rules that address international asylum law can, according to the Treaty on European Community, only set ‘minimum standards’, which by nature allow Member States to diverge in favour of the person to whom they owe protection under international law. Rules that preclude domestic legislation that deviates from European law in order to comply with obligations under international asylum law would not be minimum standards, and therefore invalid.

However, not all rules of European asylum law are necessarily minimum standards. The Treaty on European Community allows for exhaustive rules on the allocation of applicants for asylum within the European Union, and the Constitution for Europe allows for such ‘maximum standards’ on many more issues. Thus, European asylum law may in the future contain rules that require treatment of applicants at odds with the Member States’ obligations under international law. Then, conciliatory interpretation may prove impossible. According to Article 307 TEC (and its successor Article 435 CfE), in such a case European law cedes precedence to the obligations flowing from the instruments predating the entry into force of the Treaty of Amsterdam.

The priority of international law pursuant to this provision is subject to two restrictions. First, according to the Court of Justice “it cannot be excluded” that Member States are obliged to adjust or even denounce an instrument of international law if conflicts with European law cannot be solved in another way. In practice, it is most unlikely that this ultimum remedium would apply to international law on asylum, if only because of the strong commitment of the Community to these instruments. Second, if the Court of Justice rules that a certain rule of European asylum law is in full accordance with international law, Article 307 TEC may not apply. In such a case, domestic courts face a conflict between two obligations for which international treaty does not offer a solution.11 But under present European asylum law such a conflict is hard to imagine for the reasons set out above.

Another reason why it would appear that European asylum law could not negatively affect the legal position of persons entitled to protection under international law, is the strong commitment to observing international law, expressed in primary Community (and Union) law. Regulations and directives based on Article 63(1) TEC must be “in accordance with the Refugee Convention and other relevant treaties”; those based on Article 63(3)(a) must be compatible with international agreements. A similar clause on Article 63(2) is absent, but the relevant rules of international law may further serve as a standard of review by inspiring “general principles of Community law”, which review would amount to the same thing. This review of “accordance” with international law applies not only to acts by Community organs, but also to implementation acts by the Member States.

These requirements should secure that European asylum law and executive acts based on it are in conformity with international asylum law. Moreover, this standard of review reinforces the juridical position of persons within the scope of international asylum law because of the judiciability advantages of Community law. To begin with, Community law requires an effective remedy for infringement on Community rights. Moreover, the Court of Justice reviews compliance by Community institutions as well as Member States (acting within the scope of Community law) with Community law – including compliance with the obligation to act in accordance with international asylum law. So, the Court of Justice may supervise interpretation and application of the instruments of international law, which is of particular interest as regards the Refugee Convention as there is no treaty monitoring body attached to this instrument that could address application in individual cases.

It follows from recent case law by the European court of Human Rights that under certain circumstances, human rights protection provided for by the Community legal order replaces to a certain extent such protection as established by the European Convention of Human Rights. Acts by Member States which are based on Community law that leaves them (some) discretion are subject to the usual judicial supervision by the Strasbourg Courts. But acts based on Community law that leaves no discretion are not, or rather, not necessarily. According to the European Court of Human Rights, the Community legal order provides for both substantive guarantees as well as mechanisms that provides for protection of fundamental rights that is “equivalent’ or “comparable” to that under the Convention. Member State acts based on Community law leaving no discretion are therefore presumed to be in accordance with the European Convention. This presumption is open to rebuttal, however, if the Community protection of human rights was manifestly deficient.

Arguably, this notion of equivalent protection is flawed, if only because the Community protection system does not provide for appeal by individuals to a supranational court. It is questionable whether this equivalent protection notion would apply to asylum law. If it does, and if the Community issues asylum law that leaves member States no discretion, the position of the individual would be adversely affected.

Finally, the legal position of applicants may be reinforced by the Charter of Human Rights. Although the current legal status of this instrument is unclear, by virtue of explicit references to it in European legislation on asylum its provisions may be applied as means of interpretation of those instruments. The Constitution for Europe, moreover, settles all uncertainty by incorporating the Charter, and hence granting it the status of primary Union law.

Charter provisions cannot adversely affect the legal position of persons within the scope of international asylum law, as its provisions may not be interpreted as restricting the rights laid down in (inter alia) the instruments of international law to which all Member States are party. On the other hand, several provisions extend the scope of protection as compared to international asylum law. It requires compliance with the requirements on fair trial ex Article 6 ECHR, which provision does not apply to migration law. And maybe most remarkable, it recognises a “right to asylum”, which is absent in international law. The scope of obligations implied by the duty to “guarantee  the right to asylum” is somewhat insecure. Arguably, it implies that refugees (or other persons who have a “right to asylum”) may not be expelled to a third country unless it is certain that he will be treated there in accordance with basic human rights standards, and that if they cannot be expelled, they are entitled to a settled status and secondary rights.

In summary, it appears that European asylum law could only exceptionally detract from protection under international asylum law, as it must be in conformity with it. Moreover, it extends the scope of protection as compared to international asylum law in several respects.

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