International Law ~ The Effectiveness Principle

International Law ~ The Effectiveness Principle

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Neither the Refugee Convention nor other instruments of international law establish systems for the processing of claims for protection. Still, international asylum law does set conditions on procedures for the granting of protection. For in order to comply with international asylum law, states must implement and apply it in an effective way.15 The relevance of the “effectiveness” requirement for procedures can be traced in the rulings of several courts.

The International Court of Justice asserted in its judgement LaGrand that the requirement that states give “full effect” to a treaty provision can have implications for application of domestic procedural rules. The case concerned two German brothers who had been sentenced to death in the United States of America. The United States authorities had not informed the German consul, as they should have done according to Article 36(1) of the Vienna Convention on Consular Relations (VCCR). The LaGrand brothers learnt of their rights under this Convention only after their conviction and launched proceedings against their death sentences, inter alia on the ground that the United States had failed to notify the German consul. The United States courts rejected their claim on the basis of the domestic “procedural default” rule: they should have raised the claim earlier, before a state court. Pursuant to Article 36(2) VCCR, domestic rules indeed do apply to claims under Article 36(1) VCCR. But the International Court of Justice ruled that the application of this domestic doctrine of “procedural default” in this case violated Article 36 VCCR, because domestic procedural rules “must enable full effect to be given to the purposes for which the rights accorded under this article are intended.”

Likewise, the Grand Chamber of the European Court of Human Rights held in its judgement Mamatkulov II that
“treaties must be interpreted in good faith in the light of the object and purpose […] and also in accordance with the principle of effectiveness.”

As to the Refugee Convention, Legomsky argues that
“the Convention does not expressly prohibit […] any specific procedure, but [if a] procedure is so unfair and unreliable, the act of establishing it assures that an unacceptably high number of refugees will be returned erroneously to their persecutors. Thus, it is submitted, the establishment of an unfair refugee status determination procedure is itself a violation of Article 33 [RC].”

The Appeals Court of The Hague (the Netherlands) reasons along the same lines, in its judgement on the compatibility of the Dutch fast track procedure with Article 33 RC:
“the Refugee Convention itself contains no provisions on the procedure that the Contracting states should follow in order to determine who is a refugee in the sense of the Convention. But the prohibition on refoulement of Article 33 Refugee Convention does entail, that a Contracting state must not establish this procedure in such a way, that an asylum seeker has insufficient opportunity to show that he or she is a Convention refugee, with the result that refugees in the sense of the Convention run a disproportionate risk on refoulement (my translation, HB)."

The UNHCR Handbook states that in view of the (usually) “particularly vulnerable situation” of asylum seekers, their claims should be dealt with in “specially established procedures” that should meet some basic requirements.

Thus, as international law does not establish procedures for the processing of claims for international protection, states may apply domestic procedural rules. But domestic rules may not prohibit ‘full effect’ being given to international asylum law. This requirement applies to both procedures at first instance as well as to appeal procedures. Below, I address the implications of the prohibitions of refoulement for procedures at first instance (rules of international law on appeal procedures are addressed in paragraph 6.3.1).

Book International Law that use in this reference :

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