Kay Hailbronner, Jana Gogolin
- Refugees — Prisoners of war — Asylum — Stateless persons — Sovereignty
Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.
1 The meaning of the term ‘asylum’ is rarely illustrated. It is derived from the Greek word asylon, which means literally something not subject to seizure or freedom from seizure. In 1950, the Institut de Droit international defined the term ‘asylum’ as the protection, which a State offers to an individual within its territory or in another relevant territory subject to certain of its organs who seek such protection (Institut de Droit international ‘L’asile en droit international public [à l’exclusion de l’asile neutre]’ (11 September 1950)).
2 Generally, one distinguishes between territorial asylum—asylum provided by a State to individuals in its territory—and diplomatic asylum—asylum in other places, mainly on the premises of an embassy or a legation (Asylum, Diplomatic).
owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it (Art. 1 (A) (2)).
4 Territorial asylum may be granted implicitly or explicitly, in different ways and/or different contexts or by way of refusing extradition. It does not necessarily entail or imply a right of residence or a right to remain in the territory for the individual. Nevertheless, the rule of non-refoulement may protect the individual from being returned to a country in which he would face the risk of persecution (Aliens, Expulsion and Deportation).
5 An individual to whom asylum was granted is referred to as an ‘asylee’. Whether he is a refugee too, however, is determined by international or domestic law (see also International Law and Domestic [Municipal] Law).
1. Before World War II
6 The tradition of granting asylum can be traced back to antiquity, when there existed a well-established—however not universal—custom of asylum (History of International Law, Ancient Times to 1648).
7 The modern European as well as the Latin-American tradition is based on the religious persecutions of the 17th century. In 1685, Prussia’s Great Elector, Friedrich Wilhelm I, issued his Edict of Potsdam, whereby the French Huguenots were given every facility to establish themselves in his territories (Edict of Potsdam [29 October 1685]). Around the same time, large numbers of Huguenots were also permitted to settle in other non-Catholic countries: in other German States, in Denmark, England, the Netherlands, Russia, Sweden, Switzerland, and also in North America (History of International Law, 1648 to 1815).
8 A new dimension was given to the practice of granting asylum by the French Revolution. After the French Revolution, a new division of the Old World came into being. Europe was, from that time on, not only divided into Catholic and Protestant realms but also into kingdoms and republics, which had contrary political conceptions at that time. Thus, aristocratic refugees from France were followed by numerous political asylum-seekers of many different political outlooks (History of International Law, 1815 to World War I).
9 For the first time, the Belgian Law on Extradition of 1833 stated as law that political offenders should not be extradited and, hereby, set an example for similar legislation in other countries (Loi sur les extraditions [Belgian Law on Extradition] (done 1 October 1833) Moniteur Belge 3me Année N° 277 of 4 October 1833).
10 At the international level, the Belgo–French Extradition Treaty of 1834 incorporated the rule, followed by other such treaties (Extradition Treaty between Belgium and France (signed on 22 November 1834, entered into force 12 December 1834) (1883–84) 84 CTS 457). Not until 1880 did the Institut de Droit international confirm the established practice when in Art. 13 of its Oxford Resolution on Extradition of 1880 it proclaimed that extradition shall not take place for political acts (Institut de Droit international ‘Résolutions d’Oxford [Extradition]’ (9 September 1880)).
2. After World War II
11 Already the Universal Declaration of Human Rights (1948) contains provisions dealing with the question of territorial asylum in Arts 13 (2) and 14. Art. 13 (2) states that ‘[e]veryone has the right to leave any country, including his own, and to return to his country’ (UNGA Res 217 A (III) (10 December 1948)), limited, however, by the general restrictions of Arts 29 and 30.
12 Art. 14 (1) Universal Declaration of Human Rights explicitly grants ‘the right to seek and to enjoy in other countries asylum from persecution’—being restricted by Art. 14 (2) to political crimes and acts not contrary to the purposes and principles of the United Nations (UN). However, according to the drafting history of Art. 14, it does not mean much more than what is already regulated in Art. 13 (2). Nevertheless, the very fact that Art. 14 gave express recognition to asylum as a human right (Human Rights) was instrumental for the origin of the Declaration on Territorial Asylum, which was adopted by the United Nations General Assembly (UNGA Res 2312 [XXII] [14 December 1967] ; United Nations, General Assembly).
13 The Geneva Refugee Convention (as amended by the 1967 Protocol), provides for the rule of non-refoulement in binding terms as well as a satisfactory legal status for recognized refugees. The International Covenant on Civil and Political Rights (1966) confirms in Art. 12 (2) the right of emigration which is modelled upon an identical provision—Art. 2 (2)—in Protocol No 4 of 1963 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (COE ‘Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing Certain Rights and Freedoms Other than Those Already Included in the Convention and in the First Protocol Thereto’).
14 After World War II (History of International Law, since World War II), serious efforts were made to enact a binding asylum convention on a global scale, which, on the one hand, would grant the fleeing individual a right to asylum while, on the other hand, safeguard the legitimate interests of States. The efforts, however, have largely failed, although the International Law Association (ILA) has developed texts for draft conventions on diplomatic and territorial asylum. The United Nations Conference on Territorial Asylum, which took place in Geneva in 1977, did not achieve substantial progress in defining territorial asylum or improving the rights of refugees (UNGA ‘Report of the United Nations Conference on Territorial Asylum’ [10 January–4 February 1977]). A few draft articles were considered but none were adopted by the Conference as such. A proposal to establish an individual right of territorial asylum has received very little support at the end of the day.
15 Recently, terrorism has preoccupied the world, leading to various conventions, which also contain provisions affecting asylum, especially in the form aut dedere, aut iudicare—either extradite or try. Examples of such conventions are the Convention for the Suppression of Unlawful Seizure of Aircraft ([signed 16 December 1970, entered into force 14 October 1971] 860 UNTS 105); the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation ([with Final Act of the International Conference on Air Law Held under the Auspices of the International Organization at Montreal in September 1971] [concluded 23 September 1971, entered into force 26 January 1973] 974 UNTS 177; see also Civil Aviation, Offences against Safety); and the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, Including Diplomatic Agents ([adopted 14 December 1973, entered into force 20 February 1977] 1035 UNTS 167; see also Protected Persons).
C. The Current Legal Situation
1. Persecution by Whom
16 The default rule for protection would usually be protection against persecution by another State, which acts through its lawful, duly accredited and authorized organs, or through agencies that openly or covertly operate on behalf of such governments, the ruling party or clique. Persecution by private organizations, groups or individuals has over time also been included in the definition of persecution giving rise to a claim of territorial asylum provided that a State does not afford sufficient protection (Responsibility to Protect). Thus, already the EC Directive of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees (‘EC Qualification Directive 2004’) as well as the new recast EU Directive 2011/95/EU of 13 December 2011 on Standards for the Qualification of Third-country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted (‘EU Qualification Directive 2011’) include private actors as actors of persecution (see Art. 6 EU Qualification Directive 2011). All provided that, in order to invoke protection, it must be demonstrated that States or organizations controlling the State—including international organizations—are unable or unwilling to provide such protection against persecution or serious harm.
2. Protection by Whom
17 Correspondingly, protection is generally provided by the State or organizations—including international organizations—controlling the State or a substantial part of its territory. According to Art. 7 EU Qualification Directive of 13 December 2011, protection is generally provided when reasonable steps have been taken to prevent the persecution or suffering of serious harm, inter alia, by operating an effective legal system for the detection, prosecution, and punishment of acts constituting persecution or serious harm and the applicant has access to such protection.
3. Requirements of Asylum
eligible for subsidiary protection, meaning a third country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm … and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country (Art. 2 (f)).
19 In order to qualify for refugee protection, a person must substantiate that he or she is being ‘persecuted’. However, there is no universally accepted definition of ‘persecution’. The EU Qualification Directive 2011 requires that an act must be ‘sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Art. 15 (2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (Art. 9 (1) (a)). It can also ‘be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner’ (Art 9 (1) (b)). Acts of persecution may take the form of acts of physical or mental violence—including acts of sexual violence—as well as discriminatory legal, administrative, police or judicial measures, prosecution or punishment, which is disproportionate or discriminatory (see also Racial and Religious Discrimination). An act of persecution may also be denial of judicial redress, resulting in a disproportionate or discriminatory punishment, prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts of a gender-specific or child-specific nature (Art. 9 (2) (a)–(f)).
20 The reasons for persecution as defined in the definition of a refugee in Art. 1 (A) Geneva Refugee Convention, have been a matter of diverse State practice. Frequently, reasons for persecution overlap. There might be more than one element combined in one person. Guidelines are provided by the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ [1 January 1992]; Refugees, United Nations High Commissioner for (UNHCR)). The Geneva Refugee Convention does not include gender among the reasons for persecution, although it might be included in the term ‘membership in a particular social group’. A particular social group may also include, according to the practice of many States, a group based on a common characteristic or sexual orientation. A group may be considered to form a particular social group where particular members of that group share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person shall not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society (Art. 10 (1) (d) EU Qualification Directive 2011). The EU Qualification Directive 2011 then states expressly that ‘depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation’, however excluding ‘acts considered to be criminal in accordance with national law of the Member States’. Furthermore, the Supreme Court of the United Kingdom in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department ( UKSC 31) decided—already under the EC Qualification Directive 2004—that the possibility for the applicant to conceal his/her homosexuality does not mean he ceases to have a well-founded fear of persecution; rather, ‘to pretend that it does not exist, or that the behavior by which it manifests itself can be suppressed, is to deny the members of this group their fundamental right to be what they are’ (at 3). There is no unanimous State practice as to the application of this definition to gender-related persecution. Increasingly, however, Member States have included gender-specific acts of persecution. For example, the EU Qualification Directive 2011 provides that gender-related aspects, including gender identity, shall be given due consideration although not creating a presumption for the applicability of the Directive in and by themselves. Canadian and Australian courts have gone further and included gender as equivalent to other reasons for persecution; see for example Narvaez v The Minister of Citizenship and Immigration (Trial Division) (Canada Federal Court [20 January and 9 February 1995]  2 Canada Federal Court Reports 55, interpreting the Canadian Immigration and Refugee Board, Woman Refugee Claimants Fearing Gender-Related Persecution, Guidelines Issued by the Chairperson Pursuant to Section 65(3) Immigration Act as authoritative); and Minister for Immigration and Multicultural Affairs v Khawar (High Court of Australia [13 November 2001 and 11 April 2002]  76 Australian Law Journal Reports 667).
21 In 1985, the United Nations High Commissioner for Refugees Executive Committee urged States to include ‘women asylum-seekers who faced harsh or inhuman treatment due to their having transgressed the social mores of the society in which they lived’, in the definition of a ‘particular social group’ within the meaning of Art. 1 (A) (2) Geneva Refugee Convention (UNHCR ‘Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees on the Work of Its Thirty-Sixth Session’ [7–18 October 1985] 33).
a) death penalty or execution; or
b) torture or inhuman or degrading treatment or punishment of an applicant in his country of origin; or
c) serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (Art. 15 EU Qualification Directive 2011) (see also Case C-465/07 Elgafiji v Staatssecretaris van Justitie).
23 Persons entitled to refugee status or subsidiary protection are also entitled to protection of their family (Family, Right to, International Protection). The Final Act of the 1951 Geneva Conference on the Status of Refugees and Stateless Persons does not provide for an individual right to be granted the same status as a refugee but recommends to governments to take the necessary measures for the protection of a refugee’s family, particularly by ensuring that the unity of the refugee’s family is maintained, and that refugees who are minors, in particular unaccompanied children, are protected by guardianship and adoption (Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons [done 28 July 1951]; Children, International Protection). The majority of States observe the principle that family members of a refugee are entitled to basically the same rights as the refugee.
4. Right of Asylum
24 The term ‘right of asylum’ can be understood in two different ways. First of all, in the traditional sense, it is understood as a State’s right to grant asylum. However, secondly, in the modern sense, it can also be understood as an individual’s right of asylum. For example, in Art. 16a (1) Basic Law for the Federal Republic of Germany of 1949, persons persecuted on political grounds shall have the right of asylum (Grundgesetz für die Bundesrepublik Deutschland [Basic Law for the Federal Republic of Germany] [approved 23 May 1949, came into effect 23 May 1949]  BGBl I, 1).
(a) The Right to Grant Asylum
25 In general, the right of a State to grant territorial asylum expresses ‘only the normal exercise of the territorial sovereignty’ (Asylum Case [Colombia/Peru]  274) which needs no further justification (Haya de la Torre Cases; see also Sovereignty; Territorial Integrity and Political Independence). Therefore, it may be stated as a general rule of customary international law that a State has the freedom to offer and grant asylum in its territory to any individual at its own discretion. Furthermore, even regarding friendship between States, as early as Grotius, it has been maintained that the admittance of individuals—including granting asylum—is not contrary to the friendship between States (see also Unfriendly Act). The UN General Assembly, in the Preamble to the Declaration on Territorial Asylum of 1967, already recognized ‘that the grant of asylum by a State…is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State’ (UNGA Res 2312 [XXII] [14 December 1967]). Furthermore, the same principle is expressed in Art. 1 (1) Declaration on Territorial Asylum, in different words: ‘Asylum granted by a State … shall be respected by all other States’.
26 In light of the above, a State is only restricted in its right to grant asylum by the provisions of those conventions and treaties to which it is a party. These instruments may be classified into three different categories: instruments relating to crimes against humanity, including war crimes, and crimes against peace (Aggression); alliance agreements, foremost concerning the status of military forces abroad; and conventions and treaties concerning ordinary offences including regular extradition treaties (see Art. 1 (2) Declaration on Territorial Asylum).
27 Regarding crimes against humanity, the Allied Forces concluded several agreements and took other steps to secure the surrender, prosecution, trial and punishment of German and Japanese war criminals during and immediately following World War II (see also Peace Treaty with Japan (1951); Germany, Occupation after World War II; Individual Criminal Responsibility; International Military Tribunals). Furthermore, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide was the first of a number of conventions, which dealt with crimes against humanity in a more general way (Convention on the Prevention and Punishment of the Crime of Genocide [adopted 9 December 1948, entered into force 12 January 1951] 78 UNTS 277). Subsequently, the ‘grave breaches’ provisions of the Geneva Conventions I–IV (1949) as well as the conventions condemning different aspects of terrorism, mentioned in section B (b) were enacted (Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field [adopted 12 August 1949, entered into force 21 October 1950] 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea [adopted 12 August 1949, entered into force 21 October 1950] 75 UNTS 85; Wounded, Sick and Shipwrecked; Geneva Convention relative to the Protection of Civilian Persons in Time of War [adopted 12 August 1949, entered into force 21 October 1950] 75 UNTS 287; Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135; Prisoners of War). In general, perpetrators of the respective acts shall be prosecuted, tried and punished, or extradited to a State seeking to bring them to justice.
28 Probably the most important of the alliance agreements is the 1951 Agreement between the Parties to the North Atlantic Treaty Organization (NATO) regarding the Status of Their Forces providing, inter alia, for the ‘handing over’ of offenders from one party to another including for certain offences that normally qualify as political offences, and are, therefore, excluded under ordinary extradition treaties (Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, with Appendix [signed on 19 June 1951, entered into force 23 August 1953] 199 UNTS 67). Whether the non-refoulement provisions of the Geneva Convention relating to the Status of Refugees take precedence over the provisions of the NATO Status of Forces Agreement, is arguable.
a) he has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; [or]
b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.
30 Although there is much dispute about the interpretation of the ‘exclusion clauses’ of the Geneva Refugee Convention, it is fairly well established that persons who have committed terrorist acts or who are affiliated with terrorist organizations must not be granted territorial asylum unless there is a substantial danger of torture, inhumane or degrading treatment, or punishment. Since the European Court of Human Rights (ECtHR) has decided that Art. 3 European Convention of Human Rights is not subject to any limitations, even terrorists presenting a danger for the internal security of a State may rely upon this provision in order to seek protection against refoulement (COE ‘Convention for the Protection of Human Rights and Fundamental Freedoms’).
(b) The Right to Asylum
31 At the international level, the right of asylum—or right to asylum—as an individual right, may be derived from international conventions. Furthermore, at the domestic level, it may be provided for in the constitutions and laws of States.
32 In this regard, one must distinguish between a right vis-à-vis the State in whose territory asylum is requested, classifiable as a right to be granted asylum; as opposed to a right vis-à-vis the pursuing State, constituting a right to seek and to enjoy asylum in a foreign country (see Art. 14 Universal Declaration of Human Rights).
33 Attempts to establish an individual right to be granted asylum on a universal level have largely failed. Neither the European Convention of Human Rights, nor the universally applicable human rights treaties, like the UN Covenant on Civil and Political Rights of 16 December 1996 or the UN Convention Against Torture of 10 December 1984 contain an individual right of asylum (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [adopted on 10 December 1984, entered into force 26 June 1987] 1465 UNTS 85). However, the principle of non-refoulement, prohibiting return, extradition, or expulsion to a country of persecution, has emerged as a widely recognized principle of treaty law and presumably of customary international law. Nevertheless, the latter is still a matter of some dispute. The principle of non-refoulement has first been laid down in Art. 33 Geneva Refugee Convention as a prohibition to ‘expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. Likewise, the UN Convention Against Torture prohibits to ‘expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’ (Art. 3 (1)). The European Convention of Human Rights’ prohibition of torture and other inhuman or degrading treatment or punishment has also been interpreted as a prohibition of refoulement by the European Court of Human Rights. Therefore, although there is no established right to asylum, under special circumstances, an individual might effectively be granted a right to asylum.
5. Regional Developments
34 In Latin America, issues concerning political asylum have been of importance for quite some time (International Law, Regional Developments: Latin America). The 1889 Montevideo Treaty on International Penal Law proposed foremost principles for asylum and has been followed by a number of regional asylum conventions, such as: the 1928 Havana Convention Fixing the Rules to be Observed for the Granting of Asylum; the 1933 Montevideo Treaty on Political Asylum; the 1939 Montevideo Treaty on Political Asylum and Refuge; as well as the 1954 Caracas Conventions on Diplomatic Asylum and on Territorial Asylum (Treaty on International Penal Law [signed on 23 January 1889, entered into force 3 September 1889]; Convention Fixing the Rules to be Observed for the Granting of Asylum, adopted by the VIth International Conference of American States [signed 20 February 1928]; Convention on Political Asylum, supplementary to the Convention of February 20, 1928 [done 26 December 1933, entered into force 28 March 1935] ; Treaty on Political Asylum and Refuge [4 August 1939]; Convention on Diplomatic Asylum [concluded 28 March 1954, entered into force 29 December 1954]). The 1969 American Convention on Human Rights goes as far as conferring an individual right to seek and be granted asylum to the individual concerned (American Convention on Human Rights [signed 22 November 1969, entered into force 18 July 1978]). However, the aforementioned asylum conventions are all tailored to the specific circumstances prevailing in Latin America. They may not be equally well-suited for application elsewhere (Regional International Law).
35 In Europe, efforts to establish rules on territorial asylum were first undertaken within the Council of Europe (COE). Various Council resolutions have been passed to define the content of the principle of non-refoulement under conditions of mass refugee movements. Other resolutions have dealt with issues such as family reunion of refugees and irregular movements of refugees. Of relevant binding provisions, which have come into being under the auspices of the Council of Europe, note should be taken of Art. 3 European Convention on Extradition of 1957, which prohibits a multilateral basis on extradition for political offences and of persons likely to become victims of persecution (COE ‘European Convention on Extradition’ [done 13 December 1957, entered into force 18 April 1960]). Also affecting the right of asylum is the European Convention on the Suppression of Terrorism of 1977 (COE ‘European Convention on the Suppression of Terrorism’ [concluded 27 January 1977, entered into force 4 August 1978]).
36 Within the European Union, a wide range of regulations and directives have been passed between 2000 and 2013 on the basis of legislative powers granted to the European Union to enact rules concerning the rights of refugees and the asylum procedure under Art. 78 Consolidated Version of the Treaty on the Functioning of the European Union (‘TFEU’). Moreover, Art. 18 Charter of Fundamental Rights of the European Union (in conjunction with Art. 6 Consolidated Version of the Treaty on European Union) provides for a right of asylum with reference to the Geneva Refugee Convention, thereby making clear, that it is not intended to grant an individual right of asylum beyond the rights derived from the non-refoulement provision of Art. 33 Geneva Refugee Convention. According to Art. 78 (1) TFEU the Union shall develop a common policy on asylum, subsidiary protection and temporary protection; a commitment implemented in the Stockholm Programme by the European Council (valid for the period 2010–14). For this purpose, measures for a common European asylum system comprising (1) a uniform status of asylum and of subsidiary protection for nationals of third countries as well as the common procedures for its granting and withdrawing (2) a common system of temporary protection for displaced persons in the event of a massive inflow, and (3) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection shall be adopted by the European Parliament and the Council (Art. 78 (2) TFEU). Thus, all of these legislative acts provide substantial elements for shaping a ‘common European asylum system’ and are steps for the implementation of a comprehensive European asylum system in which every asylum seeker will receive the same treatment throughout the whole European Union. Following the Dublin Convention of 1990, the European Parliament and the Council also adopted a regulation in 2013, establishing the criteria and mechanisms for determining which Member State has the responsibility to examine an application for international protection filed in one of the Member States by third country nationals or stateless person (EC ‘Convention Determining the State Responsibility for Examining Applications for Asylum Lodged in One of the Member States of the European Communities’ [done 15 June 1990, entered into force 1 September 1997]; EU Regulation 604/2013 [26 June 2013]; State Responsibility). The regulation excludes multiple or successive asylum applications—by determining only one Member State responsible for processing an asylum claim. By EU Regulation 603/2013 of 26 June 2013 an additional regulation concerning the establishment of ‘Eurodac’ for the comparison of finger prints, technical measures have been taken to effectively apply the Dublin Convention.
37 In 1969, the Organization of African Unity (see African Union [AU]) adopted a Convention Governing the Specific Aspects of Refugee Problems in Africa. It comprises important provisions in regard to asylum and entered into force in 1974 (Convention Governing the Specific Aspects of Refugee Problems in Africa [adopted 10 September 1969, entered into force 20 June 1974]).
D. Current Issues
38 Territorial asylum is an essential element of human rights law. Persons facing political persecution, torture, or inhumane treatment are entitled to protection by the principle of non-refoulement. The system established under the Geneva Refugee Convention has rightly been characterized as the ‘Magna Carta’ of international refugee law. However, when the numbers of persons seeking asylum multiplied in the 1990s, the Geneva Refugee Convention system has undergone a serious crisis. Various States traditionally receiving substantial numbers of refugees were overwhelmed in the early 1990s by persons seeking to escape poverty, political instability, civil and other wars, even though they might not have qualified for recognition as refugees in the sense of the Geneva Refugee Convention. States have reacted to the problem of uncontrolled mass refugee movements by imposing stricter border controls, visa requirements, and carrier sanctions in order to prevent potential asylum seekers from arriving on their territories and claiming provisional status as asylum seekers. Although in 2007, the number of asylum seekers substantially decreased in the European Union as well as in non-European refugee-receiving States, concerns regarding the use of an asylum claim as a backdoor for economic immigration still exist. Some Member States of the European Union are facing serious problems by illegal immigration from the Maghreb States, trying to cross the Mediterranean Sea in order to reach for example Spain or Italy. The European Union and other States are therefore trying to regulate the issue of asylum seekers using a comprehensive asylum concept involving the countries of origin by efforts to provide economic and technical support and to conclude readmission agreements. Major receiving countries have also increasingly resorted to special procedures in order to prevent economic migrants from using the asylum procedure as a means to illegal immigration. The EU Member States as well as other refugee-receiving States have increasingly used instruments such as accelerated procedures for asylum seekers coming from ‘safe countries of origin’, or entering from ‘safe third countries’ in order to restrict the concept of territorial asylum to its original purpose, which is to provide protection for persons who are in an inescapable situation of distress. However, more often those fast-track procedures are applied to process applications that are clearly unreasonable or manifestly ill-founded. Although, in the case of a re-examination of an asylum claim this procedure does not deprive the applicant of his/her right to an effective remedy, it may do so in the case of a first-time application (see the European Court of Human Rights' IM v France case ).
39 Legal problems, however, arise from the duties of States regarding the principle of non-refoulement. While rights of refugees once recognized are fairly well determined under the Geneva Refugee Convention, the duties of States towards an individual, whose claim is still examined, are giving rise to some controversy. The US Supreme Court has upheld the right of the United States to bar the entry of Haitian asylum seekers into the US internal waters (see also Haiti, Conflict). Other contracting States have suggested establishing external processing of asylum claims by arrangements with third States. To this point, there is very little customary law restricting the right of States to prevent potential asylum seekers from reaching their territory. There is wide consensus, however, that problems relating to territorial asylum cannot be solved by focusing upon the duties of States receiving asylum seekers, but by establishing a concept of international cooperation and development reducing the need to resort to asylum as a backdoor to illegal immigration.
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- American Convention on Human Rights (signed 22 November 1969, entered into force 18 July 1978) 1144 UNTS 123 (Pact of San José).
- Asylum Case (Colombia/Peru)  ICJ Rep 266 (Haya de la Torre Case).
- Case C-465/07 Elgafaji v Staatssecretaris van Justitie  ECR I-921.
- COE ‘Convention for the Protection of Human Rights and Fundamental Freedoms’ (signed 4 November 1950, entered into force 3 September 1953) 213 UNTS 221.
- COE ‘European Convention on Extradition’ (done 13 December 1957, entered into force 18 April 1960) 359 UNTS 273.
- COE ‘European Convention on the Suppression of Terrorism’ (concluded 27 January 1977, entered into force 4 August 1978) 1137 UNTS 93.
- COE ‘Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Securing Certain Rights and Freedoms Other than Those Already Included in the Convention and in the First Protocol Thereto’ (done 16 September 1963, entered into force 2 May 1968) 1496 UNTS 263.
- Convention Fixing the Rules to be Observed for the Granting of Asylum, adopted by the VIth International Conference of American States (signed 20 February 1928) 132 LNTS 323.
- Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45.
- Convention on Diplomatic Asylum (concluded 28 March 1954, entered into force 29 December 1954) 1438 UNTS 104.
- Convention on Political Asylum, Supplementary to the Convention of February 20, 1928 (done 26 December 1933, entered into force 28 March 1935) (1934) 28 AJIL Supp 70.
- Convention relating to the Status of Refugees (signed 28 July 1951, entered into force 22 April 1954) 189 UNTS 150.
- Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted (2004) OJ L304/12.
- Council Regulation 343/2003 of 18 February 2003 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Asylum Application Lodged in one of the Member States by a Third-Country National (2003) OJ L050/1.
- Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on Standards for the Qualification of Third-country Nationals or Stateless Persons as Beneficiaries of International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection, and for the Content of the Protection Granted  OJ L337/9.
- EC ‘Convention Determining the State Responsibility for Examining Applications for Asylum Lodged in One of the Member States of the European Communities’ (done 15 June 1990, entered into force 1 September 1997) 30 ILM 425.
- European Council ‘The Stockholm Programme—an Open and Secure Europe Serving and Protecting Citizens’  C 115/01.
- Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons (done 28 July 1951) 189 UNTS 137.
- IM v France (ECtHR) App 9152/09.
- Institut de Droit international ‘L’asile en droit international public (à l’exclusion de l’asile neutre)’ (11 September 1950).
- International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171.
- Loi sur les extraditions (Belgian Law on Extradition) (done 1 October 1833) Moniteur Belge 3me Année N° 277 of 4 October 1833, 1.
- Protocol relating to the Status of Refugees (done 31 January 1967, entered into force 4 October 1967) 606 UNTS 267.
- Regulation (EU) 603/2013 of the European Parliament and of the Council of 26 June 2013 on the Establishment of ‘Eurodac’ for the Comparison of Finger prints for the Effective Application of Regulation (EU) No 604/2013 establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-country National or a Stateless Person and on Requests for the Comparison with Eurodac Data by Member States' Law Enforcement Authorities and Europol for Law Enforcement Purposes, and Amending Regulation (EU) No 1077/2011 establishing a European Agency for the Operational Management of Large-scale IT Systems in the Area of Freedom, Security and Justice (recast)  OJ L180/1.
- Regulation (EU) 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-country National or a Stateless Person (recast)  OJ L180/31.
- Treaty on International Penal Law (signed on 23 January 1889, entered into force 3 September 1889) 34 Organization of American States Treaty Series 1.
- Treaty on Political Asylum and Refuge (4 August 1939) 34 Organization of American States Treaty Series 66.
- UNGA ‘Report of the United Nations Conference on Territorial Asylum’ [10 January–4 February 1977] UN Doc A/CONF.78/12.
- UNGA Res 2312 (XXII) (14 December 1967) GAOR 22nd Session Supp 16 vol 1, 81.
- UNHCR Collection of International Instruments concerning Refugees (2nd edn UNHCR Geneva 1979).
- UNHCR ‘Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees’ (1 January 1992) UN Doc HCR/IP/4/Eng/REV 1.
- UNHCR ‘Report of the Executive Committee of the Programme of the United Nations High Commissioner for Refugees on the Work of Its Thirty-Sixth Session’ (7–18 October 1985) GAOR 40th Session Supp 12A.
- Universal Declaration of Human Rights, UNGA Res 217 A (III) (10 December 1948) GAOR 3rd Session Part I Resolutions 71.
- UNSC Res 1373 (2001) (28 September 2001) SCOR [1 January 2001–31 July 2002] 291.