International Protection and Reception in the Region:
The specific European understanding of the
Principle of International Co-operation
Starting in the beginning of 2003, a number of models of international protection are being discussed within the European Union (EU) which largely aim at granting refugees protection within their region of origin. These are not the first attempts to >>extra-territorialize<< refugee status determination procedures. Already back in 1986, Denmark proposed a draft resolution in the United Nations’ General Assembly suggesting the establishment of regional United Nations processing centres administrating resettlement. In July 1994, the United States of America established a temporary holding centre on the US Naval Base on Guantánamo Bay, where Haitian asylum-seekers were processed for settlement in the US or return to Haiti. Furthermore, in August 2001 the Australian government refused to admit about 400 mostly Afghan asylum-seekers rescued off the Australian coast by the Norwegian freighter MV Tampa and removed them outside Australian jurisdiction to Nauru and Papua New Guinea. It is feared that this incident, called the >>Pacific solution<<,might have set the scene for a new phase in state responses to the demands of their voluntarily assumed international legal obligations. It appears that, in particular, the U.K. proposal >>A new vision for refugees<< of 5 February 2003 replicates the Australian model for wider use in the OECD world.
Although, the drafters of the British proposal concede that refugees seek protection predominantly within their region this does not hinder some European governments, the EU and also UNHCR to elaborate a variety of concepts of reception in the region. Considering the obvious fact that refugees usually remain in their region of origin one might question the necessity for Europe to push for a further regionalisation of international protection. The doubts are further increased by the risk of a weakening or total abolition of fundamental standards of protection for refugees and asylum-seekers spontaneously seeking asylum in the EU as a result of a realisation of the models under discussion. The underlying perception of the following reflections is that international protection is still of particular importance for the EU and that the Union has to meet the challenge to promote a generous reception policy for refugees in need of protection, who have found only temporary protection in transit countries. This article will not deal with the notion of “effective protection” which is a key element of reception in the region. Rather the focus is on the question of transfer of state responsibility in the context of international protection in its specific relationship to reception in the region.
2. The European understanding of State Responsibility in International Refugee Law
The legal basis for the granting of international protection is the Convention relating to the Status of Refugees of 28 July 1951 (CSR51). The Convention is a universal treaty. The treaty is open for ratification to all states and obliges the member states to apply the treaty’s provisions to all persons in need of protection irrespective of their geographical or ethnic origin or nationality. Although article 1 B of the Convention allows all states considering accession to limit the applicability of the treaty through a declaration accepting only reasons for flight which occurred in Europe. The member states do however overwhelmingly dispense with this geographical restriction. The initial limitation of grounds for flight to events occurring in Europe before 1 January 1951 has been repealed through the New York Protocol of 31 January 1967 (CSRP67). At last since the entry into force of the Protocol, there is certainty about the universal character of the CSR51. This interpretation and application is also reflected in state practice.
The Convention contains legal obligations for states and thus does not leave it open to them whether refugees and asylum-seekers will be granted protection. Hoewever, it remains a wide scope of how to respond to these obligations. The Magna Charta amongst the binding Convention obligations is the prohibition of refoulement (article 33). It obliges the requested state, not to return the applicant to a country where his or her life or freedom would be threatened on Convention grounds. The Convention does not however prevent contracting states from deporting the applicant to another country, if it is sufficiently guaranteed that he or she will not be persecuted on Convention grounds there and will not be deported onward to the country where he or she fears persecution. To the extent that the Convention lays down legal obligations for individual contracting states, it remains ambivalent in respect to the granting of international protection. It is lacking a treaty system to determine and legally regulate by means of a detailed multilateral procedure which contracting state is finally responsible for the granting of protection. Section D of the Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons does however call upon Governments to continue to receive refugees in their territories and act in concert in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement.
The agreements which have been developed within the framework of the EU since 1990 do contain rudimentary provisions for such a system. They do however manifest an inclusive character as they tend to exclude non-European refugees. The initially agreed multilateral agreements between the member states of the EU oblige the states to remove non-European asylum seekers not to a state which is primarily responsible but to a third country outside the EU. This specific system of burden sharing as stipulated in the Convention Implementing the Schengen Agreement (CISA) and which was subsequently replaced by the Dublin Convention (DC) is hence only to be applied where the applicant cannot be removed to a state which has not signed the agreement. The aim was thus to remove asylum-seekers as far as possible to a non-European third country (cf. article 29 (2) (ii) CISA, article 3 para. 5 DC). This practice was based on the London resolution “on a harmonized approach to questions concerning host third countries” of the ministers in charge of immigration of the EU of 30 November 1992, which developed a specific model of “safe third countries” for the application of article 3 para. 5 DC and which in par. 1 lit. c) expressly stipulated that “if there is a host third country, the application for refugee status may not be examined and the asylum applicant may be sent to that country.” This inclusive scheme has once again been reaffirmed by the recent EU Directive No. 434/2003 of 18 February 2003 which replaces the DC (cf. article 3 par. 3). The EU pursues herewith a systematic policy – at first by means of treaty and now by a community law instrument – to place the refugee burden on countries outside Europe, in contrast to their public proclamation of wanting to reduce the number of “refugees in orbit” as far as possible. Only those asylum-seekers and refugees, who as a result of evidential problems, technical difficulties or a lack of security in the target country cannot be pushed away, benefit from a systematic and co-ordinated procedure of burden-sharing exclusively related to member states of the EU.
Since the beginning of the 1970s, there has been an obvious trend in Western, i.e. European-Atlantic state practice to avoid the granting of asylum through the referral of asylum-seekers to third countries. Since then, the countries from which refugees seek protection in Europe have significantly changed. Until the beginning of the 1970s, asylum applications in Western countries were predominantly lodged by applicants stemming from countries of the former Eastern bloc. Since the mid-70s, however, most asylum seekers originated from non-European countries as well as Turkey. Conflicts in the Balkans in the 1990s led to a predominance of applicants from Europe seeking asylum in European countries during this period. In response to the change in the geographical structure of asylum-seekers in the 70s, Western countries started to apply a model of safe third country according to which it was attempted, foremost within the national framework and pursuant to highly contradictory and differently devised patterns, to remove asylum-applicants, where possible, to non-European transit countries and countries of first asylum. An assessment of the evolution of state practice demonstrates, irrespective of the universal character of the Refugee Convention that European states have always pursued the concept of the regionalisation of international protection. Until the beginning of the 1970s, the predominant geographical European structure of asylum-seekers meant that international protection in Europe was related to European refugees. Safe third country concepts were applied to asylum-seekers who were seeking protection in Europe since the 1970s as a result of decolonisation and the creation of new political systems in their countries of origin. The legally binding obligations of the CSR51 could not prevent this specific form of regionalisation of international protection. It always was and continues to be impossible to create a systematic and co-ordinated procedure of burden-sharing and international co-operation between European and non-European countries solely on the basis of individual state obligations.
It is against this legal and historical background, that the U.K. proposal and the following responses of UNHCR and the EU must be scrutinized. They pursue the concept of the regionalisation of international protection in a particularly rigid manner. The British Government expressly relies on the High Commissioner’s creation “Convention Plus”. This term is said to pursue the better protection in the region of origin of refugees and to prevent secondary movements of refugees. The British Government canvasses support for its proposal on the European and international level. The governments of Denmark, the Netherlands, Ireland and Austria support its endeavours. At its meeting in Thessaloniki on 19 and 20 June 2003 the European Council took note of the Commission’s Communication on more accessible, equitable and managed asylum systems which presented a revised model of the U.K. proposal as well as UNHCR’s response to it and a proposal of the Commission itself and invited it “to explore all parameters in order to ensure more orderly and managed entry in the EU of persons in need of international protection, and to examine ways and means to enhance the protection capacity of regions of orgin” with a view to presenting to the Council, before June 2004 a comprehensive report suggesting measures to be taken, including legal implications.