GAPS IN INTERNATIONAL PROTECTION
AND THE POTENTIAL FOR REDRESS THROUGH
INDIVIDUAL COMPLAINTS PROCEDURES
Published in International Journal of Refugee Law,
vol.9, no.3, pp. 392-414, OxfordUniversity Press, 1997(copyright)
ABSTRACT: With special reference to the First Optional Protocol of the International Covenant on Civil and Political Rights, the Convention Against Torture and the European Convention on Human Rights and Fundamental Freedoms, the author examines the underlying concepts and gaps in refugee protection. Taking account of relevant UN and Council of Europe human rights mechanisms and the existing case law which protects the individual from refoulement, the author attempts to show that international redress mechanisms can, when applied correctly, serve to counter-balance politically expedient decisions of national asylum authorities. He argues that existing procedures deserve the attention of practitioners and that those concerned with access to international protection should familiarize themselves with the admissibility criteria and acquire the skills necessary to petition international human rights bodies.
Oldrich Andrysek*
- Senior Refugee Officer with the International Federation of Red Cross and Red Crescent Societies, former Deputy Representative in UNHCR 's Regional Office in Vienna. The opinions presented are those of the author and not necessarily those of UNHCR or of the Federation. The article is based on statements made at UNHCR sponsored workshops dealing with the protection of aliens in Bratislava and Budapest in 1995 and 1996.
INTRODUCTION
Persons who flee their country of origin in order to seek international protection depend on the respect of the rule of non-refoulement.[1] In a situation when many bonafide asylum-seekers fail to qualify or manage to obtain assistance from the Office of the United Nations High Commissioner for Refugees (UNHCR) under the 1951 Convention, the mechanisms established to protect individuals from torture, inhuman and degrading treatment provide crucial safeguards.[2]It is therefore important to examine the less known procedures and case law emerging from United Nations (UN) expert bodies, to see how these compliment and compare with the human rights system established by the Council of Europe, and how the respective efforts can fill existing gaps in international protection.[3]
- Closing the Gaps in International Protection: What Is At Stake
There is little doubt that the European Convention on Human Rights and Fundamental Freedoms (ECHR)[4] and the mechanisms established to enforce it not only pre-date but also outperform those created under universally applicable international human rights agreements andthe International Bill of Human Rights.[5] As will be discussed below, in respect of international protection and standards applicable to asylum-seekers, the ECHR, which is binding on all but six European States, has a profound impact on standards beyond the strict geographical confines of Europe. It is nevertheless submitted that UN mechanisms offer more than just their universality.
Asylum systems stand accused of being flawed and the efforts of European public authorities to ‘harmonize’ migration and refugee processes under the Maastricht Third Pillar are criticized as running foul of human rights standards. Indeed, the list of issues on which Governments find it impossible to find a satisfactory approach includes elementary but highly divisive points, e.g. the interpretation of the definition of a refugee, the agents of persecution, the status of transit zones in international airports, family reunion and the safe third country and of country of origin concepts.[6] The solutions to the complex problems arising from irregular movements, once identified, require that they are not implemented at the expense of recognized human rights of the individual concerned, or that of the interests of neighbouring States (by shifting the burden).[7]
UNHCR has described the growing gaps in international protection created by political expediency and tensions between sovereignty and international responsibility in the following terms:
The discrepancies between refugees recognized under the 1951 Convention and the wider group of persons in need of international protection arise in part from the way in which the definition of refugee in the 1951 Convention has been interpreted by some States, in part from the way the 1951 Convention together with the 1967 Protocol has been applied, and in part from the limitations inherent in the refugee instruments themselves. A further limitation to the effective coverage of the refugee Convention and Protocol results from the fact that some States [...] have not so far acceded to them, or continue to maintain the geographical limitation to refugees from Europe.[8]
As a result of the convergence of political pressures on UNHCR and its own inability to shore-up pragmatic trends the very concept of asylum is under threat. Not surprisingly many observers share a concern that the imperative to provide international protection is being sacrificed to that of national self-interest. To quote Prof. G. Goodwin-Gill ‘UNHCR's commitment to its reason for being - the protection of refugees - needs reaffirmation, not in the facile rhetoric of public statement, but in actions and organizational structures’.[9]
When intergovernmental organizations or specialized bodies are mandated to supervise and enforce obligations undertaken by States in the field of human rights (for example, the Office of UNHCR provides international protection and seeks durable solutions for refugees) their conduct is closely monitored not only by States, but also by non-governmental organizations. The interest of civic society is rooted in the premise that ‘...expressions of concern at violations of (human) rights cannot be considered interference in the domestic affairs of a State".[10] The right to seek international protection (and asylum), however, primarily involves relationships between individuals and States and it is the national institutions that form the foundation of the multi-level system of protection. In simplified terms, while inter-governmental organizations such as UNHCR, often assisted by NGOs, play a key role, States bear the general duty and responsibility to prevent human rights violations and when this effort fails, to provide a safe haven to those who flee. Subject to compliance with international law, States also retain, and jealously guard, the right to admit or to exclude aliens from their territory. This is one of the grey areas where disputes arise and quite often, rather than contemplate the difficulties of expulsion. Governments prefer exclusion, erecting barriers at entry points. As Ian Martin, the former Secretary General of Amnesty International, once observed: ‘Governments... are more often motivated by self-interest than by considerations of humanity, and this provides a further reason for those seeking to combat human rights violations to insist upon the right of asylum" (emphasis added).[11]Hence the critical importance a commitment to human rights and of supranational supervision.
At the national level a functional asylum system depends on a number of factors, including: (a) the political will to enter into and fulfill obligations in good faith; (b) the establishment of national infrastructures (that is, adequate legislation, procedures, independent judiciary, strengthening of democratic institutions, legal aid programmes, perspectives to attain a degree of self-sufficiency, assistance to repatriate once feasible); (c) the persons who seek refugee status (asylum seekers and other aliens claiming international protection) are entitled to due process and enjoy all rights guaranteed by international instruments without discrimination, in particular, the right to have an application registered and processed; with the exception of the rights reserved to citizens (such as the right to vote), aliens retain a range of other human rights; (d) support of public opinion and of the political establishment.
It is also useful to recall that when domestic remedies fail and an international body is petitioned, the objective is not to embarrass a Government, but to rectify the alleged grievance or problem. International redress mechanisms frequently play an important preventive and corrective role because they are conducted in a confidential setting. Governments are more inclined to compromise behind closed doors which presents a window of opportunity to negotiate friendly settlements and to ‘strike a case of the list’ before the procedure ‘matures’ to the point when a violation is found. Important precedents are made and one should not underestimate the value of individual complaint procedures just because many cases remain hidden from the public eye. On the other hand, the very existence of so many decisions finding irregularities in State conduct is sufficient proof of the need for international supervision. The UN Human Rights Committee (HRC) has registered over 720 complaints and the Strasbourg based organs over 32,000. Among these, a number originate from persons seeking to prevent their expulsion or deportations on the grounds that they are in need of international protection.
Albeit seemingly elusive and remote, the supervisory powers invested with international human rights bodies present an individual who claims to be threatened with the danger of being exposed to torture, inhumane or degrading treatment with the prospect of an impartial review and protection. In terms of the precedents created, individual complaint procedures also constitute a potent mechanism available to those who have an interest, or a mandate, to extend effective international protection.[12]
- The European Convention on Human Rights (ECHR50)
In the field of refugee law the Council of Europe human rights machinery has assumed and pursues this role vigorously and the European Court of Human Rights (European Court) only recently reaffirmed that ‘... the protection afforded by Article 3[ECHR50] is ... wider than that provided by Article 33 of the 1951 Convention.[13] The jurisprudence of the European Court therefore not only dispenses redress or just satisfaction to aggrieved individuals, or interprets and sets standards, but also upholds the rule of law in matters susceptible to political pressures. The reasoning developed by the European Court in the Soering case which examined the legality of the potential extradition of a convicted criminal in the light of ECHR Article 3 illuminates the underlying moral imperative:
It would be hardly compatible with the underlying values of the Convention [...] were a Contracting State knowingly to surrender a fugitive to another State where there weresubstantial grounds/or believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed.[14]
If it is correct to assume that a person who has a well-founded fear of persecution (in the sense of the 1951 Convention) can also claim to be faced with a real threat of being exposed to torture or inhuman or degrading treatment or punishment, the opposite should also apply: that the expulsion of a person to a country where he/she is in danger of being subjected to torture or inhuman or degrading treatment amounts to refoulement. In this respect Articles 3 of the CAT84 and ECHR50 and Article 1 (A) of the 1951 CSR seek to regulate one and the same thing.[15] At the same time we should recall the fact that when UNHCR does not consider a person be a refugee, this does not automatically mean that the expulsion would not constitute a violation of Article 3 of the CAT84 or ECHR50. A State is not even absolved from its responsibility, moral or legal, if it simply frustrates or denies access to asylum procedures. The European Commission of Human Rights (European Commission)underscored this very point when it held that even scrupulous proceedings carried out by UNHCR ‘... do not discharge the Commission of its duty under the Convention evaluate itself on the basis of the facts before it the existence of an objective danger’.[16] With regard to extradition cases and their implications for the individual in the country of destination (especially when not a Council of Europe member State), the Strasbourg organs maintain the view that ‘... a person's deportation or extradition may give rise to an issue under Article 3 of the Convention where there are serious reasons to believe that the individual will be subjected, in the receiving State, to treatment contrary to that Article’.[17]
In a recent decision the European Commission ventured yet further when it examined the implications of Article 1 of Protocol No. 6(which provides for the abolishment of the death penalty) and indicated that it does not exclude the possibility that ‘... a Convention State's responsibility might be engaged under Article 1 of Protocol No. 6 where a fugitive extradited to a State where he is seriously at risk of being sentenced to death and executed’. In the instant case the European Commission accepted the assurances obtained by the French Government to exclude the risk of the applicant being sentenced to death and it reasoned that this part of the application was manifestly ill-founded within the meaning of Article 27, para. 2 of ECHR50.[18] On the other hand, similar assurances forwarded by the French Government in the Amuur orinvoked by the British Government in the Chahal case failed to convince. In both cases the European Commission and Court were not satisfied (‘... as for the assurances ... these were dependent on the vagaries of diplomatic relations…’ or ‘...the European Court is not persuaded that the above assurances would provide Mr. Chahal with an adequate guarantee of safety.’) and violations of the Convention were found.[19]
After years of eroding standards, CAT Decisions in Mutombo, Alan, Kisoki and Tala and the European Court's Judgments inAmuur, Chahal and Ahmed, all handed down since 1995, have reaffirmed the right to international protection and injected new impetus into the debate.[20]The Chahal and Ahmed Judgments, all handed down since 1995,have reaffirmed reconfirmed the absolute nature of the protection afforded by Article 3 and constitute decisive victories for the rule of law. The absolute character of Article 3 protection as well as its extra-territorial effect were most seriously challenged in the Chahal case when the defendant Government, invoking a threat to national security, devoted much resources and went to considerable lengths to prove its point of view (and even relied on H. Grotius ‘... asylum is to be enjoyed only by people who suffer from the undeserved enmity, not those who have done something that is injurious to human society or to other men’).[21] The European Court was left unimpressed and held that ‘...national interests of the State could not be invoked to override the interest of the individual where substantial grounds had been shown for believing that he would be subjected to ill-treatment if expelled’.[22]
In Ahmed the European Court rejected the Government's contention that Mr. Ahmed could be returned to Somalia because he was a criminal and reaffirmed that: ‘... the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration’. The issue of agents of persecution is another point on which an increasing number of States and domestic Courts take cue from political recommendations and choose to ignore UNHCR's interpretation of refugee law.[23] The European Court remained principled and stated that ‘...nor, in view of the absolute nature of Article 3, is that conclusion invalidated by ... the current lack of State authority in Somalia’.[24]
Determined efforts to introduce more restrictive asylum policies have, on occasion, been vindicated by domestic court rulings. As a result, practice in EuropeanStates continued to diverge and countries which maintained more liberal asylum systems naturally attracteddisproportionate numbers of asylum-seekers. Hence, the strain on their procedures and responses to ‘curb abuse’. The varying standards also generated demand for harmonization and it is not surprising that the lowest, not the highest common denominator prevails. Given the pressures of irregular movements, the degeneration of standards appears to be matched only by the readiness of authorities to sacrifice their commitment to human rights. Since the public may not be so concerned, the remaining obstacles are the international supervisory mechanisms. For example, in the Amuur case the European Court was not impressed by the Government's defense that the asylum-seekers were only prevented from entering France and that in fact they were perfectly free to leave to a country of their choosing. The European Court, aware of the difficulties faced by asylum-seekers to gain entry, very correctly reasoned that ‘...this possibility becomes theoretical if no other country offering protection comparable to the protection they expect to find in the country where they are seeking asylum is inclined or prepared to take them in’. The European Court also clarified a long disputed point about the application of refuge law in airport transit zones and shattered the warped legal fiction devised to keep asylum-seekers from entering procedures: ‘Despite its name, the international zone does not have extraterritorial status’.[25] Contrary to the European Commission's long held views, the European Court consequently found that confinement in an airport transit zone does involve a restriction of liberty and is acceptable only when it ‘... does not deprive asylum-seekers of the protection afforded by these Conventions’; it further held that the applicable legal rules ‘...especially in respect of a foreign asylum-seeker ... must be sufficiently accessible and precise, in order to avoid all risk of arbitrariness’. The European Court also observed that ‘... confinement must not deprive the asylum-seeker of the right to gain effective access to the procedure for determining refugees status’ and that there is a need to ‘... reconcile the protection of fundamental rights with the requirements of States' immigration policies’.[26]