Human Right law ~ Other relevant human rights law
Article 1 RC and the prohibitions of refoulement hence define who qualifies for protection. These prohibitions of refoulement afford protection in the narrow sense defined above – protection of aliens from expulsion to the state where they are in danger. Asylum or protection in the broad sense would entail a number of additional secondary rights. The only instrument of international law addressing such secondary rights of in particular persons in need of protection is the Refugee Convention. Thus, a refugee must, according to Article 4 RC, be treated “at least” as favourable as nationals, as regards his freedom of religion and of religious education of his children. Protection seekers and asylum beneficiaries (refugees or not) may further invoke all kinds of international law provisions, including human rights law. But the freedom of religion or of education ex Article 10 ECHR or Article 2 of the First Protocol to the European Convention of Human Rights for asylum seekers and asylum beneficiaries is not different from the freedoms of other persons. Any protection under those provisions would not be on account of the danger threatening them abroad. Therefore, it falls outside the scope of asylum as defined above and hence outside the scope of “international asylum law”.
Three sets of rules of general human rights law are nevertheless addressed in this study. First, rules on procedures. Upon a request for asylum, the approached state sorts out whether the alien qualifies for asylum in “asylum procedures”. Neither the Refugee Convention nor any other treaty explicitly addresses asylum procedures in particular. But several treaties do address procedural issues in general. Thus, Articles 6 ECHR, 14 CCPR and 16 RC entail a right of access to courts, and Articles 13 ECHR and 2(3) CCPR require an “effective remedy” for persons “whose rights and freedoms” under those instruments (such as the prohibitions on refoulement) have been violated. Article 13 CCPR, finally, states specific procedural guarantees on expulsion of “lawfully present aliens”. These provisions do not address in particular the need of protection because of a danger threatening the alien abroad. But their application to refoulement cases is informed by that need. Moreover, asylum procedures are of decisive importance for the possibility to exercise in an effective way any right to protection. Therefore, international law that conditions asylum procedures is addressed in this study.
Second, international law on detention. During the processing of claims for protection, states may impose restrictions on the freedom of movement of applicants that may amount to detention. Articles 9 CCPR and 5 ECHR set conditions on such detention, and address in particular detention in case of unauthorised entry; application of these provisions is informed by the particular circumstances of aliens who request asylum.
Third, rules on family unity laid down in Articles 17 and 23 CCPR and 8 ECHR. As many other provisions of human rights law, they may apply to any alien. Neither the circumstance that these provisions may block expulsion (or even warrant entry) of aliens, nor the assumption that claims concerning family unity may be of particular interest for persons in need of protection brings them within the scope of international asylum law. A partial discussion of the right to respect for family life is nevertheless warranted, as the particular predicament of persons in need of protection does affect the application of the international law provisions on family life.
Book International Law that use in this reference :
- Hemme Battjes, 2006. EUROPEAN ASYLUM LAW AND INTERNATIONAL LAW. MARTINUS NIJHOFF PUBLISHERS: LEIDEN/ BOSTON.
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Labels: International Law