FACULTY OF LAW
Lund University
Jessica Silver
Providing Safe Entries
Asylum and Humanitarian Visas at Embassies
JURM02 Graduate Thesis
Graduate Thesis, Master of Laws program
30 higher education credits
Supervisor: Eleni Karageorgiou
Semester of graduation: Spring semester 2016
Contents
SUMMARY
1
SAMMANFATTNING
2
ABBREVIATIONS
3
1 INTRODUCTION
5
1.1
Background
5
1.2
Aim of the Study and Research Questions
6
1.3
Delimitations
7
1.4
Method and Material
7
1.5
Disposition
8
2 INTERNATIONAL LAW AND THE RIGHT TO ASYLUM
2.1
The Principle of Non-refoulement
2.1.1
2.1.2
The CSR, CAT and FC
Safe Entries, Embassies and Non-refoulement
10
10
11
12
2.2
The Status of Refugees
16
2.3
The UN Declaration on Territorial Asylum
18
2.4
Responsibility to Protect
18
2.4.1
2.4.2
2.5
R2P-documents
R2P’s Applicability to Safe Entries and Seeking Asylum and Visa at Embassies
Conclusion
3 A RIGHT TO ASYLUM AND A RIGHT TO ENTRY
19
19
20
22
3.1
Applicable Law
22
3.2
The Status of Asylum in International Law
25
3.3
Asylum and Refugees
27
3.4
Conclusion
28
4 RIGHT TO SAFE ENTRY AS A HUMAN RIGHT
29
4.1
Sovereignity, Territoriality and Responsibility
29
4.2
Applicable IHRL Law
31
4.2.1 The ECHR
4.2.2 The ICCPR
4.2.2.1 The Case of Haitian Asylum-seekers and 1995’s US State Report
4.2.2.2 The Case of Israel’s Occupation of Southern Lebanon and West Bekaa
4.2.2.3 The Case of de López v. Uruguay
4.2.2.4 The Case of Dixit v. Australia
4.2.3 The CRC
4.3
Conclusion
5 HUMANITARIAN VISAS
5.1
The EU and Humanitarian Visas
5.1.1
5.1.2
5.1.3
5.1.4
The Schengen Convention
The EU Visa Code
The EU Institutions’ Approach on Humanitatian Visas
The Definition of Humanitarian Grounds and Humanitarian Reasons
32
33
34
35
35
36
37
38
39
39
40
40
41
42
5.2
Humanitarian Visas policy and Its Implementation
44
5.3
Conclusion
44
6 ANALYSIS AND CONCLUSION
6.1
A Legal Foundation for Safe Entries
6.1.1
6.1.2
Providing Safe Entries into the EU
Humanitarian Visas as An Alternative Solution
45
45
47
48
6.2
Seeking Asylum and Humanitarian Visas at Embassies
49
6.3
Conclusion
50
BIBLIOGRAPHY
51
TABLE OF CASES
58
Summary
The world is facing a protection crisis, where people are forced to flee their home
countries to seek protection elsewhere, which leads to people risking their lives in
dangerous attempts to get protection. These individuals are forced to use dangerous
transfers since there are very few existing legal options. It is obvious that the situation
of today is unsound and that the international community needs to take action to
secure protection rights. If the home state fails to protect its own people, the obligation
should fall on another actor. There are explicit protection obligations, which entail
states to protect refugees. However, these rules are primarily regulating the duties and
rights enacted between refugees and the state where the person in question finally
seeks asylum. In other words there are uncertainties of who and if a states bears the
responsibility to protect asylum-seekers en route. This thesis discusses the possibilities
of the existence of a positive responsibility for states to protect these people. If such
responsibility may be found in international law, it would most likely help to save the
lives of some those who cannot stay in their home countries. It is hard to find a legal
ground, although there are a few possibilities within international law as well as EU
legislation. Within international refugee law the CSR is a key instrument, which do
not unambiguously mention such positive responsibility but it may be argued to be
underlying. Furthermore international human rights law contains instruments such as
the ECHR, UDHR and CRC, which may be used to seek foundation. Moreover
international law comprehends rules such as the R2P and general principles that are of
a more diffuse character but might infer a duty upon states. Within EU legislation
there are a right to asylum in the binding EU Charter, which might be interpreted in a
way as to imply a duty for states to protect the individuals so they can enjoy such
right.
If a there is an existing positive obligation for states to provide safe entries for asylumseekers, granting asylum and humanitarian visas at embassies may be a way to fulfil
such obligation. However there is a problem of competing sovereignties, which needs
to be attended. There are issues related to extraterritoriality and authority, which may
cause problems when trying to implement such rules. Moreover, the requirement of
refugee status is an obstacle if the asylum-seeker wishes to seek asylum at an embassy
in his or her home state since such status cannot be granted there. Nevertheless, it does
not interfere with an application at an embassy in a third state. Additionally there are
still possibilities to seek humanitarian visas without having being granted refugee
status first.
1
Sammanfattning
Världen står inför en skyddskris där människor tvingas fly sina hemländer för att söka
skydd på annan plats vilket lett till att dessa personer riskerar sina liv för att få skydd.
Dessa personer tvingas använda farliga flyktvägar då det är ont om lagliga alternativ.
Det är uppenbart att situationen är ohållbar som den ser ut nu och att världssamfundet
måste agera för att säkra rättigheter till skydd. Om hemstaten inte uppfyller sin
skyldighet att skydda sitt eget folk måste skyldigheten falla på en annan aktör. Det
finns existerande skyddsskyldigheter som medför att stater måste skydda flyktingar.
Dessa skyldigheter reglerar dock framförallt skyldigheter och rättigheter mellan
flyktingar och den stat där hen slutligen söker asyl. Med andra ord finns det
osäkerheter angående vem och vilken stat som bär ansvaret att skydda resande asylsökande. Denna uppsats diskuterar möjligheterna av en existerande positiv skyldighet
för stater att skydda dessa människor. Om en sådan skyldighet kan finnas inom
internationell rätt kan det troligtvis hjälpa till att rädda livet på många av de personer
som inter kan stanna i sina hemländer. Det är svårt att hitta stöd i lag, men det finns ett
antal möjligheter inom internationell samt EU-rätt. Inom internationell flyktingrätt är
CSR ett nyckelinstrument, som dock inte nämner en sådan positiv skyldighet men det
kan tänkas vara en underliggande skyldighet. Instrument inom mänskliga rättigheter
såsom EKMR, UDHR samt CRC kan tänkas användas för att söka grund för en
skyldighet. Dessutom innehåller internationell rätt regler såsom R2P och generella
principer som är något diffusare till karaktären men som skulle kunna medföra en
skyldighet för stater. Inom EU-rätt finns en bindande rätt till asyl i EU-stadgan, vilket
skulle kunna tolkar på ett sådant sätt att det innebär en skyldighet för medlemsstater att
skydda de individer som faller inom rättigheten.
Om det finns en existerande positiv skyldighet för stater att tillhandahålla säkra
flyktvägar för asylsökande kan ett sätt att uppfylla den skyldigheten vara att utfärda
asyl samt humanitärt visum på ambassader. En sådan lösning innebär dock svårigheter
med konkurrerande suveräniteter. Eftersom ambassader är lokaliserade på en annan
stats territorium har två stater auktoritetsintressen, vilket kan skapa problem när
sändarstaten vill utöva sådan extraterritoriell verksamhet. Dessutom skapar kravet på
flyktingstatus vissa problem då en asylsökande vill söka asyl på en ambassad i hens
hemland då sådan status inte kan erhållas där. Men detta skapar inga hinder för en
asylansökan i ett tredjeland. Dessutom finns det fortfarande möjligheter att söka
humanitärt visum utan att ha erhållit flyktingstatus först.
2
“But you know, happiness can be found even in the darkest of
times, if one only remembers to turn on the light.”
― J.K. Rowling, Harry Potter and the Prisoner of Azkaban
3
Abbreviations
CAT
Convention Against Torture
CEAS
Common European Asylum System
CJEU
Court of Justice of the European Union
CSR
1951 Geneva Convention Relation to the Status of
Refugees
ECHR
European Convention on Human Rights
ECtHR
European Court of Human Rights
EU
European Union
FC
1949 Fourth Geneva Convention
HRC
UN Human Rights Committee
ICCPR
International Covenant on Civil and Political Rights
ICISS
International Commission on Intervention and State
Sovereignty
IHRL
International Human Rights Law
IRL
International Refugee Law
UDHR
1948 Declaration of Human rights
UNHCR
United Nations High Commissioner for Refugees
VTC
Vienna Treaty Convention
4
1 Introduction
1.1 Background
The immigration situation in the world today is in many ways unsustainable. One of
many aspects is the fact that asylum-seekers have to enter a state’s territory to be
able to seek asylum there. The lack of legal entries into these possible asylumproviding states leads to the use of unsafe transfers, channels and entries. So far
there have been many cases of injuries, deaths and assaults on boats and other
transfers. In 2015 an estimated 3,770 migrants died trying to use unsafe sea
transfers. Moreover 374 individuals are estimated to have died during the period
from 1 January to 4 February 2016.1 Asylum-seekers pay a lot of money to get a
spot on these boats or in other ways get help to illegally cross borders, sometimes
only to get a dismissal on their application and be sent back to the country they fled
from. The question concerning how to provide safe and legal entries is important
both from a legal and a humanitarian perspective. In other words there are two sides
to the problem, on one hand a way for asylum-seekers to stay safe is needed and on
the other hand states are in need of a sustainable way to supervise who enters their
territory. In other words states are in need of sustainable policies to manage entries
of asylum seekers in their territories in ways that can ensure that those persons’
rights will be observed. The situation today results in a chaos because of the
accommodated national asylum systems, which are not built to respond to increased
spontaneous arrivals and do not in many cases provide material reception
conditions and procedural guarantees during the determination processes. A
solution that meets both these interests needs to be found. Countries try to protect
their borders and handle the stream of asylum-seekers by implementing quotas and
border controls. Hence, the stricter these border controls get the harder it gets for
asylum-seekers to cross them and the use of illegal and unsafe transfers increase.
The way the situation is currently handled therefore becomes a vicious circle and
cannot be seen as a sustainable solution.
One solution to the problem could be the possibility for asylum-seekers to apply for
asylum or humanitarian visas at embassies. This proposal has not yet gotten much
attention despite the current unsustainable situation and pending questions about
how to legally and humanitarianly solve the crisis. In 2002 a few European
countries started to accept asylum applications and visa applications on asylumrelated grounds at their embassies and other European countries allowed access to
their territory if a person needed protection in exceptional cases. 2 Yet, the problem
1
Regarding statistics see https://www.iom.int/news/mediterranean-migrant-deaths-reach-374arrivals-greece-top-68000-2016 (accessed 21 May 2016).
2
Noll, Gregor and Fagerlund, Jessica and Liebaut, Fabrice, Study on the Feasibility Of Processing
5
of unsafe entries remains. It is hard to infer a concrete obligation for states to admit
individuals in need. The obligation is discussed in existing literature, which will be
brought up for discussion later on in this thesis in relation to the right to seek and
enjoy asylum. With a possibility to seek and retrieve a visa or asylum at an embassy
the people needing it do not have to use illegal entries. To seek for an asylum at an
embassy means a possibility to legally travel to the issuance country. A
humanitarian visa would also result in legal entries, which asylum-seekers could
use to enter the issuance country to apply for asylum within its borders. The
solution would also solve the problem states are having of controlling their borders,
since the arrivals would be orderly. In sum, it all comes down to the right of the
refugees and the responsibility of the states under international law.
1.2 Aim of the Study and Research Questions
As mentioned in the background the possibilities to seek asylum and humanitarian
visas at embassies are limited and not yet discussed to the extent that it could solve
the problem of unsafe entries. The aim of the study is to investigate the existence of
a positive obligation for states to provide safe entries for asylum-seekers.
Furthermore the thesis aims to investigate whether granting asylum and
humanitarian visas at embassies fulfils such duty. To fulfil the aim it will be
investigated whether a right to seek asylum may be linked to a variety of individual
rights such as the right to flee persecution, the right to safe and legal entry and the
right to seek and retrieve asylum. The questions concerning states’ corresponding
obligations, i.e. not to expose asylum-seekers to human rights violation en route to
the place of safety will also be discussed.
To fulfil the aim of the study the following questions will be researched:
 Does a positive obligation for countries to provide safe entries for asylumseekers exist?
 To what extent can granting asylums or visas at embassies serve as an
effective response to the current protection crisis?
In other words the thesis will have two parts, the first part aims to find an obligation
for states to provide safe entries for asylum-seekers and the second part aims to
investigate if granting asylums and humanitarian visas at embassies could fulfil
such obligation and thereby respond to the protection crisis.
Asylum Claims Outside the EU Against the Background of the Common European Asylum System
and the Goal of a Common Asylum Procedure, Luxemburg: European Communities, 2002, available
at: europa.eu.int/comm/justice_home/doc_centre/asylum/common/ asylumstudy_dchr_2002_en.pdf
(accessed 10 May 2016), p. 3.
6
1.3 Delimitations
This essay will focus on seeking asylum and visas at embassies and the question
whether it would solve the problem concerning providing safe and legal entries and
will therefore not focus on other solutions. Because of the nature of asylum-seeking
and protected entry procedures the essay will also contain a discussion on de
relationship between protection and sovereign rights and territoriality. To some
extent the history of the institution of asylum will be brought up, but only for the
purpose to enlighten the current asylum situation.
The scope of the thesis will focus on a few specific actors, individuals in the sense
of asylum-seekers that are not physically on the territory of the state in question.
Furthermore the thesis will focus on states as an important actor, states in the sense
of home states, destination states and transit states. In other words the important
actors are individuals not yet granted protection and states in which these persons
wish to seek protection or transit to later on get protection. Embassies are also an
important actor of the discussion but they are seen as state actors.
The thesis will consider international law, EU law and in some cases national
examples. A discussion concerning what law involves will therefore be brought up,
since it is crucial when trying to find support for protected entry procedures, i.e.
seeking asylum and humanitarian visas at embassies. National law is important in
the sense that asylum is a national matter and the final decision comes down to the
individual state. Accordingly, the importance of national law will be mentioned but
the content of it will not be profoundly discussed since it is outside the scope of the
thesis and would claim too much space. In the on-going debate concerning the socalled refugee and protection crisis, it is often portrayed as a EU problem, i.e.
something for the European countries to solve. The problem can indeed be
discussed in terms of the EU but I am of the opinion that it is of international
concern and have therefore chosen to treat it as an international issue. Moreover,
the thesis will not be limited to the situation in Europe even though it will be
profoundly and separately discussed and used as an important example.
1.4 Method and Material
To research the questions, a legal analytical approach will be used, i.e. a legal
dogmatic method. I will therefore analyse the existing sources of law according to
the hierarchy of norms to fulfil the purpose of the thesis. 3 I will mainly use sources
such as academic articles, legal literature, charters, conventions, treaties,
3
Kleineman, Jan in Korling, Fredric & Zamboni, Mauro (red.), Juridisk metodlära, 1. ed.,
Studentlitteratur, Lund, 2013, p. 21.
7
international law and EU law. This material will be analysed to figure out if certain
rules can be interpreted as to be applicable to this specific situation.4 As a part of
the legal dogmatic method I will use a critical approach to analyse the material. The
argumentation and analysis will both be de lega lata and de lege ferenda, i.e. the
law will be analysed as it is and as it should be. The legal analytical method is
useful in this case due to existing uncertainty concerning asylum and embassies
since the method allows a critical analysis of the matter.
The international law will be interpreted and analysed using legal literature. When
using material such as articles it is important to be critical since they might be
written with a subjective view. It is important to know if the aim of the article is to
solemnly inform the reader of common knowledge or if it aims to convince the
reader of a certain belief. When using articles and legal literature the status of the
author is of great importance to know if it may be considered a reliable source. I
will therefore be more critical using some sources than others. However, opinions
of authors may also be of interest when there is no certain or concrete answer to the
question.
1.5 Disposition
Every chapter of the thesis is initiated with a short introduction to explain what
each specific chapter will discuss and why. Moreover, each chapter ends with a
conclusion to give an overview of what has been discussed and concluded in that
specific chapter. Hence, these conclusions should not be seen as finalized findings
since an overall analysis and final answers will be provided for in the concluding
chapter.
Since the thesis to a large extent is built on a discussion regarding existing
international law, chapter 2 starts off by presenting international legal instruments
that may be applicable to the situation at hand. First the principle of nonrefoulement will be discussed; thereafter the rules regarding the status of refugees
will be explained. Furthermore the responsibility to protect concept will be
explained and it will be examined to what extent it may be applicable to providing
safe entries for asylum seekers. The third chapter aims to explain the law regarding
a right to asylum. Moreover the chapter contains example of state practice to further
enlighten asylum in international law. The right to asylum and the legal framework
providing a basis for it is a central part of the discussion, which is why the status of
asylum in international law will be discussed. Furthermore chapter 4 explains and
discusses if a right to safe entry may be a human right. Relevant international
human rights law instruments are brought up for discussion, as well as important
4
Ibid, p.26.
8
cases. Chapter 5 is devoted to further explaining the possibility of humanitarian
visas and the questions surrounding it. Since it has been discussed within the EU to
a great extent, there is an EU focus, although other examples are brought up as
well. The sixth chapter serves the purpose of analysing the main arguments that
have been brought up throughout the thesis and decisively to drawing conclusions
that answer the questions posed in this study, namely whether a positive obligation
for states to protect asylum seekers exists and if granting asylum and humanitarian
visas at embassies could be a way to fulfil such obligation.
9
2 International Law and The Right
to Asylum
This chapter will attend to some relevant terminology and fundamental concepts
when discussing providing safe entries for asylum-seekers. International law that
might be applicable to the situation at hand will be discussed to see if there may be
a legal foundation for a positive obligation to provide safe entries and the legality of
granting asylum and humanitarian visas at embassies.
If a right to seek asylum and humanitarian visas at embassies would be a solution to
the problem of illegal and unsafe entries an investigation on whether international
law supports the proposition appears necessary, despite the fact that asylum is a
national matter. With an international right and obligation, states may need to adapt
their national rules. International law include several rules concerning refugees,
asylum and visas, the ones who are relevant to the issue in question will be
discussed further. There are a few existing rules that bring up the question
concerning asylum directly but no rules that applies to seeking asylum and
humanitarian visas at embassies and providing safe entries. However, some of these
rules may apply analogically and extraterritorially, which may allow for an
extensive reading. First the principle of non-refoulement will be discussed, which is
an existing rule that forbids states to return asylum-seekers under certain
circumstances. One of the most central instruments is 1951 Geneva Convention
Relation to the Status of Refugees (CSR)5, which will be brought up when
discussing non-refoulement and then later on concerning the status of refugees.
Furthermore The UN Declaration on Territorial Asylum6 will be explained since it
is an important instrument when it comes to the asylum discussion.
2.1 The Principle of Non-refoulement
The principle of non-refoulement enacts an obligation for states, which was first
formulated in the CSR, to not send back asylum-seekers when certain
circumstances are at hand. The obligation of non-refoulement is today
acknowledged as an obligation under international refugee law (IRL) in the CSR
and other international human rights law (IHRL) instruments such as the
5
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United
Nations.
6
UN
General
Assembly, Declaration
on
Territorial
Asylum,
14
December
1967, A/RES/2312(XXII).
10
Convention Against Torture (CAT)7 and 1949 Fourth Geneva Convention (FC)8.
The principle is crucial in IRL and might be used as an argument for the possibility
to seek asylum and humanitarian visas at embassies. The interplay between the
concept of asylum and the status of refugees has been discussed above, however it
is important to note that the principle of non-refoulement may be applicable to
situations where the asylum-seeker has not been granted refugee status.9 In this
chapter the different instruments that bring up the principle will be explained and
discussed. The central part is the discussion and conclusion regarding nonrefoulement’s applicability on providing safe entries through asylum and visas at
embassies.
2.1.1 The CSR, CAT and FC
CSR contains rules regarding non-refoulement that might be extensively applicable
to the situation of providing safe and legal entries and granting asylum and
humanitarian visas at embassies. Article 33 of the CSR reads as follows:
(1) No Contracting State shall 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.
(2) The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of that country.
Article 33 states who do and who do not fall under the protection of the principle of
non-refoulement. The refugees to whom the article applies cannot be returned or
expelled. In other words these refugees shall have the right to stay in the state in
question, a prohibition for the state to remove the person or the group of people.
As mentioned above the principle of non-refoulement is also enacted in IHRL such
as article 3 of CAT. Article 3 CAT reads as follows:
7
UN General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 10 December 1984, United Nations.
8
International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection
of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287.
9
Phuong, Catherine, Identifying States’ Responsibilities towards Refugees and Asylum Seekers, Esil
Research Forum, International Law: Contemporary Problems, Geneva, 2005, p. 2, available at:
http://www.esil-sedi.eu/sites/default/files/Phuong.PDF (accessed 5 May 2016).
11
(1) No State Party shall 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.
(2) For the purpose of determining whether there are such grounds, the competent
authorities shall take into account all relevant considerations including, where
applicable, the existence in the State concerned of a consistent pattern of gross,
flagrant or mass violations of human rights.
Article 45 of the FC reads as follows:
In no circumstances shall a protected person be transferred to a country where he or
she may have reason to fear persecution for his or her political opinions or religious
beliefs. The provisions of this Article do not constitute an obstacle to the extradition,
in pursuance of extradition treaties concluded before.
The article states the principle of non-refoulement by forbidding a state to remove a
protected person who fears persecution because of political or religious reasons.
However, it is important to note the limited scope of FC since it only applies to
situations in times of war and occupation. Moreover, the articles applicability to the
case of providing safe entries and seeking asylum and humanitarian visas at
embassies will be examined.
2.1.2 Safe Entries, Embassies and Non-refoulement
The non-refoulement principle in CSR, CAT and FC could, as discussed above, be
used as an argument for the possibility to seek asylum and humanitarian visas at
embassies. The question is therefore if the obligation to not remove an individual
that derives from the principle of non-refoulement also implies that states have an
obligation to let refugees enter their territory or an obligation to grant them asylum
or humanitarian visas. Noll10 describes it as being admitted to the state community
but emphasises that it is only in the form of non-removal. Noll uses the expression
“to transgress an administrative border” but mentions that it is not the same thing as
transgressing a territorial border. If letting refugees transgress a state’s territorial
border were an additional obligation to the obligation of non-refoulement,
international law would hold a right for these refugees to actually transgress a
territorial border. Such obligation would question the legality of existing migration
control policies.11 Furthermore, it seems hard for at state to execute a fair and
effective asylum procedure outside state territory, which may lead to the conclusion
10
Gregor Noll, Professor of International Law at Lund University, Faculty of Law.
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, pp. 548-549., available
at: http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
11
12
that the principle of non-refoulement cannot be properly applied outside the state’s
borders.12
In addition to the issues mentioned above there are a few more questions that need
to be addressed. First and foremost an embassy is located on the territory of another
state, i.e. not within the sending states borders. The principle of non-refoulement
brought up in CSR, CAT and FC is applicable to situations where a state sends back
an asylum-seeker at the border of that state’s territory or controlling boats on the
high seas. There is a resemblance between embassies and the high seas; neither of
them is located on the relevant state’s territory. The difference is that on the high
seas no state has actual territorial authority, but at an embassy the sending state and
the receiving state have competing interests in territorial authority.13 The norm is
that most control lies in the hands of the receiving state, in other words the embassy
does not have extraterritorial authority in the sense of controlling the territory
where the embassy is situated. Regulating the relationship between the sending
state’s embassy and the receiving state are international treaties and customs.14
Regarding non-refoulement the case of Hirsi Jamaa is relevant since it brings up the
procedural consequences of the use of the principle. The case may be interpreted in
a way as to allow an extensive understanding of non-refoulement. A proactive
reading may imply that the principle includes the provision of fair and efficient
refugee determination process to people seeking protection. However, the case
deals with the problem of collective expulsion, which is not relevant when it comes
to the issue of safe entries. The nature of the case led to that the territorial or
effective control jurisdiction and thus, the responsibility of the state was triggered.
In the case of safe entries the provision of a fair and efficient refugee determination
process is of importance, while territorial or effective control jurisdiction is not
since it is not triggered when the asylum-seeker is not on the state’s territory.
Nevertheless it is possible to interpret the case as along the lines that an individual,
by appearing at a state’s embassy, is in an area where the state exercises power and
control and thus, state’s responsibility is triggered.15
The CSR is applicable to the protection of refugees, which means that the asylumseeker needs to have the status of a refugee for article 33 to be applicable. An
12
Stoyanova, Vladislava, The Principle of Non-refoulement and The Right of Asylum-seekers to
Enter
State
Territory,
2008,
p.
11,
available
at:
http://www.americanstudents.us/IJHRL3/Articles/Stoyanova.pdf (accessed 21 May 2016).
13
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, pp. 552, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
14
Ibid, p. 553.
15
European Court of Human Rights, Grand Chamber, Case of Hirsi Jamaa and others v. Italy,
Application no. 27765/09, 23 February 2012, see concurring opinion of judge Pinto de Albuquerque,
pp. 59-79.
13
asylum-seeker seeking asylum at an embassy in her own country cannot be given
the status as a refugee since article 1(A) of the CSR states that the status can only
be given if the person is located outside of the country from which she wants to
escape. On the other hand there is still a possibility for an asylum-seeker to fall
under the protection of the convention if the asylum is sought at an embassy in a
third state.16 Could there then be a protection for refugees seeking asylum at an
embassy in a third state? From the wording of the non-refoluement articles in the
CSR, CAT and FC there is no such explicit protection but it can be discussed if the
articles can be extended to cover such situations. To do an extensive reading of the
article the importance of the territory needs to be analysed. Concerning this,
Lauterpacht17 and Bethlehem18 discuss article 1(3) of the 1967 Protocol, which says
that the protocol “shall be applied by States Parties hereto without any geographic
limitation.” Furthermore article 33 of the CSR speaks of a prohibition for
contracting states to expel or return a refugee in any manner whatsoever to the
frontiers of territories where certain threats exist. Furthermore they state that the
issue is whether it is a place where the asylum-seeker will be at risk, which may be
interpreted as applying to situations where the individual still is within it’s the
borders of her home country but still under the protection of another state. An
obvious example of this is when the person in question takes refuge in an embassy
or other diplomatic mission of a potential destination state. Another example is
when the person seeks protection from armed forces of another state involved in
peacekeeping in his or her home state. In these situations Lauterpacht and
Bethlehem say that the state in question is subject to the prohibition on returning
the asylum-seeker to territory where he or she would be at risk.19 But as Noll points
out, this statement only applies to cases of diplomatic asylum. Furthermore, it
would be difficult to maintain a point of view that the principle of non-refoulement
in article 33 of the CSR applies to diplomatic asylums, whilst visa applications on
protection grounds do not since the circumstances are the same.20 Hence, GoodwinGill21 treats visa applications differently in his argumentation by stating that states
do not breach the prohibition of returning asylum-seekers by refusing to grant them
visa even though they might have a well-founded fear of persecution.22
16
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 553, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
17
Sir Elihu Lauterpacht, a British academic and lawyer, specializing in International Law
18
Sir Daniel Bethlehem, a barrister and former legal advisor to the Foreign and Commonwealth
Office of the United Kingdom government.
19
Lauterpacht, Elihu and Bethlehem, Daniel, The Scope and Content of the Principle of NonRefoulement, in E. Feller, V.Turk, F. Nicholson (eds.), Refugee Protection in International Law,
Cambridge
University
Press,
Cambridge,
2003,
p.
122,
available
at:
http://www.unhcr.org/419c75ce4.pdf (accessed 4 April 2016).
20
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 551, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
21
Guy Goodwin-Gill, a barrister and a professor of public international law at Oxford
University and a Fellow of All Souls College, Oxford.
22
Goodwin-Gill, Guy S, The Refugee in International Law, Oxford Clarendon Press, 2nd ed, 1996, p.
174.
14
Lautcherpacht and Bethlehem also state that the principle is applicable to acts made
by a state or state official “wherever it occurs”, i.e. no matter if it occurs on state
territory or not.23 Lauterpacht and Bethlehem discuss if article 33 of the CSR has
any territorial limits by using human rights law such as the International Covenant
on Civil and Political Rights (ICCPR)24 and the European Convention on Human
Rights (ECHR)25. In other words, they do not specifically try to draw a conclusion
from the wording of the article; instead they use other instruments to draw
analogies.26 The problem with their interpretation being, as Noll points out, that it
confronts the binding rules in article 31 of the Vienna Treaty Convention (VTC)27,
which states that:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and
purpose.
The VTC concerns the international law on treaties between states, which means it
is binding when it comes to rules that decide the relationship between treaties.
Furthermore article 32 of the VTC states that:
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine the
meaning when the interpretation according to article 31:
(a) Leaves the meaning ambiguous or obscure; or
(b) Leads to a result which is manifestly absurd or unreasonable
A limitation with the help of ICCPR and ECHR should be considered
“supplementary means of interpretation”. This means that these instruments should
not be used for interpretation unless an interpretation according to article 31 VTC is
not enough. According to Noll it is therefore not right to apply human rights treaty
law in this case.28 As shown above article 33 of the CSR also uses the expression
“in any manner whatsoever”, which could support an extensive reading since it
23
Lauterpacht, Elihu and Bethlehem, Daniel, The Scope and Content of the Principle of NonRefoulement, in E. Feller, V.Turk, F. Nicholson (eds.), Refugee Protection in International Law,
Cambridge Journals, Cambridge, 2003, p 111, available at: http://www.unhcr.org/419c75ce4.pdf
(accessed 4 April 2016).
24
UN General Assembly, International Covenant on Civil and Political Rights, 16 December
1966, United Nations.
25
Council of Europe, European Convention for the Protection of Human Rights and Fundamental
Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5.
26
Lauterpacht, Elihu and Bethlehem, Daniel, The Scope and Content of the Principle of NonRefoulement, in E. Feller, V.Turk, F. Nicholson (eds.), Refugee Protection in International Law,
Cambridge
University
Press,
Cambridge,
2003,
p.
114,
available
at:
http://www.unhcr.org/419c75ce4.pdf (accessed 4 April 2016).
27
United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations
28
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 552, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
15
implies that it could be used not only in one narrow situation.29 On the other hand
there are, as shown in the discussion above, not much supporting a standpoint that
article 33 of the CSR covers the situation of asylum-seekers at embassies.
2.2 The Status of Refugees
There is an existing agreement on protection of refugees; these rules are stated in
the CSR. The purpose of the convention is to internationally secure the protection
of refugees. To determine who will and will not be protected as a refugee article
1(A) of the CSR states:
A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any
person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30
June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the
Protocol of 14 September 1939 or the Constitution of the International Refugee
Organization; Decisions of non-eligibility taken by the International Refugee
Organization during the period of its activities shall not prevent the status of refugee
being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) As a result of events occurring before 1 January 1951 and owing to 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.
The explanation of the term refugee in article 1(A) is the foundation of the CSR. An
asylum-seeker who fits in under the description falls under the protection of the
convention as a refugee. That is why the status of refugees is crucial when it comes
to investigating the possibility to provide safe entries by granting asylum and
humanitarian visas at embassies. This status would then have to be decided at the
embassy instead of in the country where the asylum-seeker wishes to get asylum,
meaning the right of determination would still belong to the individual state. States
then have the obligation to protect the ones who are considered to be refugees. The
CSR replaces the responsibility of the international community and puts it on a host
state when a sovereign is unwilling or unable to live up to theirs. In other words the
CSR aims to stipulate a complementary protection for those people who cannot
enjoy the protection of their own state. As Martin puts it, “this reasoning is based
29
Ibid, p. 553.
16
on the understanding that States produce refugees because they are unwilling or
unable to protect their citizens from persecution.”30 Furthermore, Keely explains it
as, “A state is not behaving as a state when people flee or are forced out because of
racial, ethnic, religious or political reasons.” Keely also argues that the international
refugee regime is not primarily constructed on humanitarian feelings but designed
to protect the “international system of states that is threatened when states fail to
fulfil their proper roles.”31 In other words, the refugee rules is a legal system
constructed to make the international society sustainable when it comes to
protection rights and obligations.
It should be noted that there are other relevant articles related to the issue in the
CSR. As Gil-Bazo32 points out, article 34 of the Refugee Convention concerning
naturalisation is of importance. It states:
The Contracting States shall as far as possible facilitate the assimilation and
naturalization of refugees. They shall in particular make every effort to expedite
naturalization proceedings and to reduce as far as possible the charges and costs of
such proceedings.
The article serves the purpose of integrating the refugee with the state by creating a
legal connection between the two of them. Accordingly, the article recognises that
states have an obligations towards refugees to “make every effort” include to
integrate them into their political community of the state of asylum.33 In other
words, it brings up an additional responsibility for states related to protection
obligations and asylum. However, it should be noted that the effectiveness of the
CSR is debated. Authors claim that it is out-of-date and does not apply to the
situations of today. 34
30
Glanville, Luke & Davies, Sara E., Protecting the Displaced: Deepening the Responsibility to
Protect, Brill Academic Publishers, 2010, p. 22.
31
Keely, Charles, How Nation-States Create and Respond to Refugee Flows,’ International
Migration
Review,
Vol.
30,
No.
4,
p.
1057,
1996,
available
at:
http://www.jstor.org/stable/2547603?seq=1#page_scan_tab_contents (accessed 5 April 2016).
32
Dr María-Teresa Gil-Bazo, Senior Lecturer in Law at Newcastle Law School.
33
Gil-Bazo, María-Teresa, Asylum as a General Principle of International Law, Oxford University
Press,
2015,
Vol.
27,
No.
1,
3–28,
pp.
9-10,
available
at:
http://ijrl.oxfordjournals.org/content/27/1/3.full.pdf+html (accessed 10 May 2016).
34
De Jong, Cornelius D, The Legal Framework, The Convention relating the Status of Refugees and
the Development of Law Half a Century Later, International Journal of Refugee Law, Oxford
University
Press,
1998,
p.
698,
available
at
http://ijrl.oxfordjournals.org/content/10/4/688.full.pdf+html (accessed 5 May 2016).
17
2.3 The UN Declaration on Territorial Asylum
The UN Declaration on Territorial Asylum does not state an obligation for states to
grant asylum at embassies or even to grant asylum in general, it is, however, still an
important document when discussing the possibility and the nature of protection
rights. The Declaration states a right for individuals to seek and to enjoy in other
countries asylum from persecution. In contrast to other relevant instruments it does
not provide a right to asylum or a right to entry. As Goodwin-Gill points out, the
declaration does not contain a reference to a right to be granted asylum, which was
a compromise between states to protect sovereignty.35 Article 1 of the Declaration
reads as follows:
1. Asylum granted by a State, in the exercise of its sovereignty, to persons entitled to
invoke article 14 of the Universal Declaration of Human Rights, including persons
struggling against colonialism, shall be respected by all other States.
2. The right to seek and to enjoy asylum may not be invoked by any person with
respect to whom there are serious reasons for considering that 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.
3. It shall rest with the State granting asylum to evaluate the grounds for the grant of
asylum.
Accordingly, the article explains the sovereign nature of asylum, i.e. asylum is
given by a state if it finds it appropriate. Furthermore this means that using asylum,
as an expression of sovereignty is not under any limitations in international law
other than when it comes to extradition or other obligations acquired by treaty.36
Hence, this does not mean that states do not have protection obligation and refugees
do not have protection rights under international law.
2.4 Responsibility to Protect
The Responsibility to Protect (R2P) will now be discussed to as a possible source of
an obligation to provide safe entries. R2P is a rather new concept within
international law with many uncertainties, which might make it difficult to apply to
the situation of unsafe entries and seeking asylum and humanitarian visas at
35
Goodwin-Gill, Guy S, Introduction to the 1967 United Nations Declaration on Territorial
Asylum, All Souls College, United Nations Audiovisual Library of International Law, Oxford, 1967,
available at: http://legal.un.org/avl/ha/dta/dta.html (accessed 3 March 2016).
36
Gil-Bazo, María-Teresa, Asylum as a General Principle of International Law, Oxford University
Press,
2015,
Vol.
27,
No.
1,
3–28,
pp.
7-8,
available
at:
http://ijrl.oxfordjournals.org/content/27/1/3.full.pdf+html (accessed 10 May 2016).
18
embassies. On the other hand these uncertainties might enable an interpretation in
the direction that R2P could be applied to the situations in question. In other words
R2P might imply a responsibility to provide safe entries for asylum-seekers. As
mentioned, the meaning of R2P is not yet clear, which could lead to a long
discussion concerning its status. However, the meaning of this chapter is not to
solve the uncertainties concerning R2P but to discuss and apply what we already
know to the situation of providing safe entries by granting asylum and humanitarian
visas at embassies. To further discuss these possibilities the important documents
will be briefly explained.
2.4.1 R2P-documents
In 2001 ICISS released a report including the fundamental principles of the
Responsibility to Protect. First and foremost the responsibility to protect its people
lies with the state itself. In a case where the people are suffering serious harm, as a
result of internal war, insurgency, repression or state failure, and the state in
question is unwilling or unable to halt or avert it, the principle of non-intervention
yields to the international responsibility to protect.37 R2P was also brought up in the
World Summit Outcome in 2005. Article 138 of the resolution brings up the
responsibility of the individual state and article 139 discusses the responsibility of
the international community.38 A third important document concerning R2P is the
Report of the Secretary-General composed in 2009. The Secretary-General suggests
that R2P should consist of three pillars: one regarding the responsibility of the state,
a second regarding the responsibility of the international community and a third
regarding military intervention.39
2.4.2 R2P’s Applicability to Safe Entries and Seeking
Asylum and Visa at Embassies
Simply put the main responsibility lies with the state and at second hand with the
international community. The important part for this essay is the case where the
state fails to fulfil its responsibility to protect. It might be possible to argue that R2P
could be interpreted to include providing safe entries and asylum and visa
possibilities, which is what this section will discuss. R2P implies a responsibility
37
Report of the International Commission on Intervention and State Sovereignty, Responsibility to
Protect, 2001, p. XI.
38
Resolution adopted by the General Assembly, 2005 World Summit Outcome, UN Doc
A/RES/601, s. 30.
39
Report of the Secretary-General, Implementing the Responsibility to Protect, UN Doc A/63/677,
s. 9.
19
for the international community but it is not fully established what this
responsibility comprehends. By offering asylum-seekers to apply for asylum or
visas at embassies states could fulfil their responsibility to protect people suffering
serious harm. The main problem when intending to find ground for safe entries and
asylum seeking in the concept of R2P is the uncertainty of R2P’s legality.
However, R2P does have clear connections with refugee protection. The problem is
that these connections are not mentioned in the documents that created R2P. On the
other hand, ICISS report in 2001 does mention refugees, stating that one reason of
conflict prevention is to avoid refugee outflows or other spillovers.40 Furthermore
the report mentions how hard it can be to return refugees to their home countries by
the end of a conflict. Accordingly, the ICISS report does not discuss refugee
protection in the sense of providing safe entries.41 By characterising refugees like
that the ICISS does, the focus does not seem to not to be protection of the
individual refugee, instead they are seen as creating a problem for the state. 42 As
Harris Rimmer43 puts it, the refugees are seen as a burden.44 Furthermore, she
comes to the conclusion that R2P could be an important instrument in refugee
protection if it did not only focus on the passive protection and focused on the
rights of refugees and individual affected by conflicts and war.45
2.5 Conclusion
As mentioned before an extensive interpretation of the principle of non-refoulement
would mean a massive change in the authenticity in today’s migration controls.46
One of the main problems of trying to apply non-refoulement on seeking asylum at
embassies is that the principle refers to sending back someone who seeks asylum
within the territory or at the border of the state in question. As mentioned above an
embassy is not located on the relevant state’s territory, which makes the principle of
non-refoulement hard to apply even by analogy. Support for such an extensive
40
Report of the International Commission on Intervention and State Sovereignty, Responsibility to
Protect, 2001, p. 70.
41
Evans, Gareth, The responsibility to protect: ending mass atrocity crimes once and for all,
Brookings Institution Press, Washington, D.C., 2008, pp. 168-169.
42
Chimni, B.S, Globalization, Humanitarianism and the Erosion of Refugee Protection, Oxford
University
Press,
Vol.
13,
No.
3,
2000,
p.
243,
available
at:
http://jrs.oxfordjournals.org/content/13/3/243.full.pdf+html (accessed 17 March 2016).
43
Susan Harris Rimmer, Associate Professor, Australian Research Council Future Fellow in Griffith
Law School,and Adjunct Reader in the Asia-Pacific College of Diplomacy at the Australian
National University and Research Associate at the Development Policy Centre in the Crawford
School, ANU.
44
Harris Rimmer, Susan, Refugees, internally displaced persons and the ‘responsibility to protect’,
UNHCR Research Paper No. 185, 2010, p. 8, available at: http://www.unhcr.org/4b97b0909.html
(accessed 26 April 2016).
45
Ibid, p. 16.
46
Ibid, p. 549.
20
interpretation of the principle of non-refoulement in article 33 CSR, article 3 CAT
and article 45 FC does therefore not seem to exist.47
R2P puts a responsibility on states to protect extraterritorially. As mentioned above
people seeking asylum is an effect of crisis, which could imply that granting asylum
or humanitarian visas to provide safe entries is part of the responsibility that derives
from R2P. When looking at the documents the doctrine was founded on there is no
explicit support for an active protection such as asylum and humanitarian visas.
However, some work can be done to make R2P applicable to these situations.
Furthermore, clarity in what kind of responsibility R2P infers is needed before
trying to apply it to new situations.
47
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 556, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
21
3 A Right to Asylum and a Right to
Entry
In this chapter the right to safe entry will be examined because it is one of the main
reasons behind discussing a possibility to seek asylum and visas at other locations
than within the borders of the state itself. The applicable law will be examined with
a focus on the non-binding 1948 Declaration of Human rights (UDHR)48 and the
binding Charter of Fundamental Rights of the European Union (the EU Charter)49.50
Furthermore, the status of asylum in international law will be discussed because of
the uncertainties surrounding the legal framework. Finally, a discussion concerning
the concepts of asylum and refugees will be brought up, since the terms are often
confused and clarity is needed to further discuss asylum- and visa-seeking at
embassies.
3.1 Applicable Law
The question whether a right to asylum or a right to seek asylum exist is debated
and relevant when it comes to answering the question of right to enter territory and
furthermore a right to safe entry. The most relevant instruments are the UDHR and
the EU Charter.51
Article 14 UDHR reads as follows:
1. Everyone has the right to seek and to enjoy in other countries asylum from
persecution.
2. This right may not be invoked in the case of prosecutions genuinely arising from
non-political crimes or from acts contrary to the purposes and principles of the
United Nations.
Article 18 of the EU Charter reads as follows:
The right to asylum shall be guaranteed with due respect for the rules of the Geneva
Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the
48
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
European Union, Charter of Fundamental Rights of the European Union, 26 October
2012, 2012/C 326/02.
50
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 547, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
51
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 547, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
49
22
status of refugees and in accordance with the Treaty establishing the European
Community.
UDHR states a right to seek asylum and the EU charter states a right to asylum.
Depending on what kind of duty these rights indicate they might imply a right to
access territory and a right to safe entry. The first relevant question is therefore if
UDHR and the EU Charter are binding upon states.52 The answer when it comes
UDHR is that it is not of binding character.53 It is therefore hard to derive a right to
seek asylum at embassies or a duty for states to provide safe entries from article 14.
However, UDHR speaks of rights that applies to everyone and does not
differentiate between nationals and non-nationals. Important to note is therefore
that despite the non-binding character it may be said to constitute a foundation for
future amplification of human rights principles, which do not make a distinction
between nationals and non-nationals as they do today.54
Moreover, article 18 EU Charter, became binding in 2009 with article 6(1) of the
Treaty on European Union stating that “[t]he Union recognises the rights, freedoms
and principles set out in the Charter of Fundamental Rights of the European Union
[…], which shall have the same legal value as the Treaties”. Accordingly, there is a
right to asylum within EU law, which is binding upon Member States. Due to the
fact that the charter became binding rather recently, it is not clear what the binding
right to asylum implies or if it can be used to determine a right to enter territory or a
right to safe entry in international law.55 To seek clarity in the rights of refugees
under EU law, The Court of Appeal of England and Wales asked the CJEU seven
questions on the matter. When discussing article 18, the fifth question is of interest:
Is the scope of the protection conferred upon a person ... by the general principles of
EU law, and, in particular, the rights set out in Articles 1, 18, and 47 of the Charter
wider than the protection conferred by Article 3 of the European Convention on
Human Rights and Fundamental Freedoms (the Convention)?56
The secretary general of the CJEU has stated that article 18 prohibits refoulement.
However, the statement does not address the real issue asked in the question above
as it does not answer whether or not the article includes a protection beyond the
right to not be removed if there is a risk of ill-treatment. The court, on the other
hand, refers to its earlier analysis on the prohibition on torture with the argument
52
Ibid, p. 546.
Goodwin-Gill, Guy S. and McAdam, Jane, The refugee in international law, 3rd ed, Oxford
University Press, Oxford, 2007, pp. 357–62.
54
Edwards, Alice, Human Rights, Refugees, and The Right 'To Enjoy' Asylum, Oxford University
Press,
Oxford,
2005,
p.
304,
available
at:
http://ijrl.oxfordjournals.org/content/17/2/293.full.pdf+html (accessed 1 May 2016).
55
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 548, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
56
Case C-411/10 NS v. Secretary of State for the Home Department.
53
23
that the right to human dignity, the right to asylum and the right to an effective
remedy would not give a diverse answer. In other words, the court uses an earlier
answer in an attempt to answer the question regarding article 18.57 As Gil-Bazo
points out, the way the court tackled the issue led to a differentiation between the
right to asylum in article 18 and the right not to be removed to a risk of torture,
which furthermore indicates that the court does not agree with the Secretary
General on the statement that asylum and non-refoulement are considered equal.
The same opinion has been expressed by the court in the case of Halaf where to
court as asked to clarify the content of the right to asylum under article 18.58 Instead
of clarifying the meaning of the right in article 18, it seems to complicate it with
different opinions and vague answers.
Accordingly, there are explicit rights to entry and rights to asylum in international
law, although only the right to asylum in the EU Charter is binding upon states.
Hence, the rules mentioned, states only rights and no obligations for states to grant
asylum. Furthermore it is debated what the right to seek asylum actually implies
and what effects it results in. The preamble states that:
This Charter reaffirms, with due regard for the powers and tasks of the Union and for
the principle of subsidiarity, the rights as they result, in particular, from the
constitutional traditions and international obligations common to the Member States,
the European Convention for the Protection of Human Rights and Fundamental
Freedoms, the Social Charters adopted by the Union and by the Council of Europe
and the case-law of the Court of Justice of the European Union and of the European
Court of Human Rights. In this context the Charter will be interpreted by the courts
of the Union and the Member States with due regard to the explanations prepared
under the authority of the Praesidium of the Convention which drafted the Charter
and updated under the responsibility of the Praesidium of the European Convention.
In other words, it does not constitute any new rights, since the rights derive from
constitutional traditions and international obligations, the European Convention,
Social Charters and case-law. It may be easy to come to the precipitous conclusion
that a right to seek asylum did explicitly exist within international law before the
EU Charter. However, as explained above the right to seek and enjoy asylum does
exist in the non-binding UDHR, which indicates that the right did exist before the
EU Charter. There is no solid answer to what article 18 of the EU Charter implies
and it will therefore be further examined and discussed.
57
Joined Cases C-411/10 and C-493/10, NS v. Secretary of State for the Home Department, M. E.
and Others v. Refugee Applications Commissioner and Minister for Justice.
58
Case C-528/11 Zuheyr Freyeh Halaf v Darzhavna agentsia za bezhantsite pri Ministerski savet.
24
3.2 The Status of Asylum in International Law
The above discussion focuses on finding support for seeking asylum and
humanitarian visas in international law, although the main discussion concerns
treaty law. Hence, it is not established that international law only consists of treaty
law, which makes it relevant to bring up a discussion concerning the normative
character of asylum. If support for the right to be granted asylum and furthermore
be granted asylum at embassies cannot be found in the instruments of international
law, it might be found in other relevant sources. Even though the main focus of this
thesis is not to discuss these different sources, they will be briefly discussed in the
context of finding the status of asylum. Mainly, doctrine will be used to define its
character and to do so a few other concepts need to be discussed in the process.
The meaning and concept of law are complex questions but will only be discussed
briefly here in the context of trying to find an international legal source of asylum.
Gil-Bazo writes that legal rules serve the purpose of carrying “an idea of justice at
the service of the human person and, therefore, their lawfulness requires that they
comply with such ideals.”59 Accordingly, law is built on duality and as Higgins60
describes it, international law does not only consist of rules, “it is a normative
system.” Hence, international law therefore exists to stipulate an effective system
for obtaining values.61 Fitzmaurice62 has also commented on the matter, saying that
rules always have principles behind them, which they often depend upon. He also
stresses the importance of general principles as a part of international law since the
practice is anything but uniform and since it serves as guidelines when there is
uncertainty or dispute concerning what the suitable rule is or ought to be.63 In other
words general principles are binding sources of international law together with
treaties and custom. Trinidade, who is a judge at the international Court of Justice
and President of the Inter-American Court of Human Rights, has also
acknowledged the importance of principles. He has explained that even if the
principles are not given as much attention as other sources of international law, they
cannot be disregarded. Furthermore he explains that these principles are part of
59
Gil-Bazo, María-Teresa, Asylum as a General Principle of International Law, Oxford Journals,
2015, Vol. 27, No. 1, p. 14, available at: http://ijrl.oxfordjournals.org/content/27/1/3.full.pdf+html
(accessed 10 May 2016).
60
Dame Rosalyn C. Higgins, Baroness Higgins, the former President of the International Court of
Justice (ICJ).
61
Higgins, Rosalyn, Problems and process: international law and how we use it, Clarendon,
Oxford, 1994, p. 1.
62
Sir Gerald Gray Fitzmaurice, was a British barrister and judge.
63
Fitzmaurice, Gerald, The General Principles of international law, Collected Courses of the Hague
Academy of International Law, 1957, pp. 8-9, Brill Online, available at:
http://referenceworks.brillonline.com/entries/the-hague-academy-collected-courses/mainlyphilosophical-092-ej.9789028612921.001_227.2 (accessed 16 March 2016).
25
where the law comes from, the origin of the law. In other words, Trinidade believes
that without the principles no legal system exists.64
The historical presence of asylum will not be discussed in detail but is important to
examine to some extent when talking about its status in international law, although
a strong presence may impose that asylum is a general principle of international
law. Asylum is an ancient institution, which has been practised before an
international regime for protection was created. The concept of asylum can be
derived all the way back to the ancient Greece and has been practiced throughout
time. Asylum has been a religious institution where the churches were the ones who
granted it until the state took over and it became an expression of territorial
sovereignty. As Gill-Bazo states, the most important change in the history of
asylum was probably when it changed into becoming an institution to protect the
politically oppressed.65 Another important transformation is when asylum became
political in the 18th century, which led to it being not just a sovereignty expression
but also a responsibility. In sum, asylum has been present since the ancient Greece,
to the French Revolution to today, which very much shows a historical presence.
The concept of law has been discussed above with the conclusion that international
law does not consist of rules alone, but also treaties, custom and general principles.
Hence, asylum might therefore be derived from principles apart from written rules
and still be binding international law. Furthermore, this may create a possibility to
find support for a duty to provide safe entries and seeking and granting asylum at
embassies without support in treaties. In other words, if a right to be granted asylum
is not to be found in an international instrument of universal scope it does not
necessarily mean that it is not a part of international law. It should be noted that
seeing general principles as binding law does not have a lot of support in common
law system, on the other hand it has more ground in civil law systems. Furthermore
the historical presence of asylum indicates that it is a general principle of
international law and is binding upon states. 66
64
Trindade, Cancado, International Law For Humankind: Towards A New Jus Gentium (I): General
Course On Public International Law, The Hague Academy of International Law, 2005, pp. 85-86.
65
Gil-Bazo, María-Teresa, Asylum as a General Principle of International Law, Oxford Journals,
2015, Vol. 27, No. 1, p. 22, available at: http://ijrl.oxfordjournals.org/content/27/1/3.full.pdf+html
(accessed 10 May 2016).
66
Gil-Bazo, María-Teresa, Asylum as a General Principle of International Law, Oxford Journals,
2015, Vol. 27, No. 1, p. 17, available at: http://ijrl.oxfordjournals.org/content/27/1/3.full.pdf+html
(accessed 10 May 2016).
26
3.3 Asylum and Refugees
According to the Institute of International Law67 the definition of asylum is “the
protection which a State grants on its territory or in some other place under the
control of certain of its organs, to a person who comes to seek it”. International law
does not interfere when it comes to granting asylum, which is an act of the
individual state. Hence, asylum is a way for states to express sovereignty. 68 An
individual is a refugee when he or she has been excluded de facto from legal
protection of their home state.69 To solve the problem of unsafe entries for asylumseekers the terms asylum and refugee are fundamental. Even though asylum is a
national matter and is only briefly mentioned in the CSR the two concepts are
closely linked together.70 The reason for this connection between asylum and the
refugee status is the fact that someone who is not granted an official status as a
refugee in some cases cannot be granted asylum. Relevant in this concept is
therefore if a refugee status is a necessity to have the protection right to be granted
asylum. The question concerning the relationship between the two expressions has
been brought up and answered by the by the CJEU in a response to a request for a
preliminary ruling made by the German Federal Administrative Court.71 The CJEU
answered: “Member States may grant a right of asylum under their national law to a
person who is excluded from refugee status”.72 In other words, if an asylum-seeker
is not granted the status of a refugee, the state does not have an obligation to grant
asylum but the state still has the right to grant asylum under national law if they
wish. By answering the question of if someone is a refugee or not the state
determines if the individual has the right to extraterritorial protection.73
After World War I the international community agreed on a common responsibility
to protect refugees.74 At first sight agreeing on such thing seems to imply a
responsibility for states to provide safe entries. The problem is that a person does
not have the status as a refugee before such status has been made official by the
state where the person in question seeks asylum. The right term before then is
67
For more information on the Institute of International Law see http://justitiaetpace.org/ (accessed
17 May 2016).
68
Gil-Bazo, María-Teresa, Asylum as a General Principle of International Law, International
Journal of Refugee Law, 2015, Vol. 27, No. 1, 3–28, p. 7.
69
Noll, Gregor, Negotiating asylum: the EU acquis, extraterritorial protection and the common
market of deflection, Martinus Nijhoff, Diss. Lund University, The Hague, 2000, p. 11.
70
Goodwin-Gill, Guy S. and McAdam, Jane, The refugee in international law, 3rd ed, Oxford
University Press, Oxford, 2007, p. 423.
71
Gil-Bazo, María-Teresa, Asylum as a General Principle of International Law, International
Journal of Refugee Law, Vol. 27, No. 1, 2015, p. 5.
72
Joined Cases C 57/09 and C 101/09 Bundesrepublik Deutschland v B & D [2010] ECR I-10979.
73
Noll, Gregor, Negotiating asylum: the EU acquis, extraterritorial protection and the common
market of deflection, Martinus Nijhoff, Diss. Lund University, The Hague, 2000, p. 14.
74
Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April
1954) 189 UNTS 150 (hereafter, CSR or Refugee Convention). Protocol relating to the Status of
Refugees of 31 January 1967 (1967) 606 UNTS 67 No. 8791.
27
asylum-seeker and there is no common agreement to protect asylum-seekers and it
is debated whether such duty exists in international law. The national rules in most
countries state that asylum can be applied for and granted inside of the countries
borders. These national asylum systems then have the authority to decide which
asylum-seekers qualify for international protection.75 This is the key problem when
it comes to keeping asylum-seekers safe while travelling. Since they have to enter
the country too seek asylum there are rarely legal entries available. Furthermore
this leads to the use of illegal transfers and channels. These unsafe ways to cross
borders are in many ways unsustainable and leads to questions about how to
provide safe entries from both a legal and a humanitarian perspective.
3.4 Conclusion
In sum, article 18 of the EU Charter states a binding right to asylum but it is not yet
clarified what this right includes or what it actually means. However, the article
might be a useful instrument when it comes to the possible obligation to provide
safe entries and the possibility to seek asylum at embassies, which will be discussed
later on. Despite the non-binding character of UDHR it could be used as a
guideline, and also as a source of a previous right to asylum when applying the EU
Charter to the situation of safe entries. As mentioned above, asylum is most often
seen as a national matter and a state has the right and not the obligation to grant it.
Hence, states are still bound by the principle of non-refoulement, which forbids
states to send back asylum-seekers under certain circumstances. The main question
in this context is if the responsibility can be extended to imply a duty for states to
provide safe entries to make it applicable to the situation of seeking asylum and
humanitarian visas at embassies.
The above discussion concludes that general principles should be seen as part of
international law and even though there are some uncertainties whether or not
general principles are binding as international law there are doctrine pointing in that
direction. The reason for this discussion is to investigate the possibility to find
support for seeking asylum at embassies in other sources than treaties, charters and
covenants. To sum up, if a recognition of the right to be granted asylum is not to be
find in treaties it does not necessarily mean that it is not to be found in international
law as a general principle.
75
For more information see: http://www.unhcr.org/pages/49c3646c137.html (accessed 20 May
2016).
28
4 Right to Safe Entry as a Human
Right
This chapter is an important section of the discussion due to the fact that a potential
obligation to provide safe entries might collide with the sovereign rights of a state.
It is the sovereign independence and autonomy that makes a state a state, two key
concepts that are valued when creating and practising international law.76 A human
right for one party implies an obligation for another. As for this example the state
has both rights and obligations, which might collide with the rights of the
individual. It is therefore important to see to what extent they may interact with
each other and still enable protection rights for asylum-seekers. Relevant concepts
to this discussion are human rights and protected entry procedures in addition to
protection obligations and sovereign rights. Furthermore sovereignty in relation to
territoriality and responsibility is an important aspect to the discussion. For the right
to safe entry and a possibility to seek asylum and humanitarian visas at embassies
to be justified there should be a legal foundation, which will be examined in this
chapter when it comes to protection obligations and sovereign rights.
4.1 Sovereignity,
Responsibility
Territoriality
and
To understand the problem of the connection between protection rights and
sovereign rights the interplay between the three concepts of sovereignty,
territoriality and responsibility is essential. Before continuing to examine the
specific responsibilities and duties this relationship will first be explained and
studied to get a proper background. The core of migration defies territoriality due to
the fact that asylum-seekers challenge borders. Ruggie77 explains it as migration
questioning state territoriality, which is a fundamental principle of the international
system.78 In other words our existing international system, which is built on
territoriality seem incapable of managing people moving from one place to another.
States try to protect their borders and sovereignty while international protection
76
Mills, Kurt. & Karp, David Jason. (red.), Human Rights Protection in Global Politics;
Responsibilities of States and Non-State Actors, Palgrave Macmillan, Basingstoke, 2015
p. 86.
77
John Gerard Ruggie, the Berthold Beitz Professor in Human Rights and International Affairs at
Harvard's Kennedy School of Government and Affiliated Professor in International Legal Studies
at Harvard Law School.
78
Ruggie, John Gerard, Territoriality and Beyond: Problematizing Modernity in International
Relations’. International Organization, Vol. 47, No. 1, 1993, p. 171, available at:
http://ic.ucsc.edu/~rlipsch/Pol272/Ruggie.Territoriality.pdf (accessed 20 April 2016).
29
rules regarding asylum try to challenge the problems national systems create. To
protect sovereignty and territoriality, states use measures such as border controls,
national identification system, working limitations and deportation to relegate and
disregard asylum-seekers. When letting territoriality and sovereignty predominate
protection responsibilities asylum-seekers do not have a place to go and therefore
get put in states of vulnerability and uncertainty. As Darshan Vigneswaran79 puts it,
as the migration of today appears ”to have exposed significant limitations in the
basic structure and design of the modern territorial state.” Despite this, territoriality
and sovereignty is still the core of our international system, which makes it hard
imagining putting them aside. Without the existing system the international
community is dependent on new ways to divide space, regulate migration and
decide where people should reside.80 Some authors go as far as arguing that today’s
border control system is immoral, ineffective and irrational. 81 However these critics
fail to present any alternative solutions.82
The idea of open borders challenge current international system and brings up
attendant questions concerning the existence of the nation state. As brought up
before, the lack of solutions to substitute existing regime makes it hard to see how
to combine territoriality, sovereignty and the protection responsibility migration
may imply.83 As shown, there is a certain tension between sovereignty and
territoriality and protection responsibilities, which leads to further tension between
national and international policies and law. The remaining of this chapter will
therefore discuss the links between these concepts in relation to specific
responsibilities and duties.
The concept of protected entry procedures was brought up in the late 90’s as a
potential part of solving the asylum crisis. Granting asylums or humanitarian visas
at embassies can be considered to be a part of the so called protected entry
procedures since it has the objective to serve as an addition to the existing system
of extraterritorial migration control by categorising migrants before they enter the
territory of a potential destination state. Noll and Fagerlund describes protected
entry procedures as an arrangement, which gives a non-national the right “to
79
Darshan Vigneswaran, Assistant Professor at the Centre for Urban Studies at University of
Amsterdam.
80
Vigneswaran, Darshan, Territory, Migration and the Evolution of the International System,
September
2013,
p.
2,
available
at:
http://www.palgraveconnect.com.ludwig.lub.lu.se/pc/dofinder/10.1057/9780230391291.0001
(accessed 26 March 2016).
81
Carens, J. H. 1987. Aliens and Citizens – the Case for Open Borders. Review of Politics, 49, 251–
273; Hayter, T. 2000. Open Borders: The Case against Immigration Controls, London, Pluto Press;
Johnson, K. R. 2003. ‘Open Borders?’ UCLA Law Review, 51, 193–265.
82
Vigneswaran, Darshan, Territory, Migration and the Evolution of the International System,
September
2013,
p.
3,
availiable
at:
http://www.palgraveconnect.com.ludwig.lub.lu.se/pc/dofinder/10.1057/9780230391291.0001
(accessed 26 March 2016).
83
Ibid, p. 3.
30
approach the potential host state outside its territory with a claim for asylum or
other form of international protection and to be granted an entry permit in case of a
positive response to that claim, be it preliminary or final.” In other words protected
entry procedures aims to be a way for migrants to safely enter a state’s territory.
This could be one solution to the problem of combining territoriality, sovereignty
and protection responsibilities. By recognising asylum-seekers who can be granted
the status as refugees at an early stage states will be able to control their borders in
a new manner.84 The question of safe entries is the reason behind examining
whether or not there could be a possibility to seek asylum and humanitarian visas at
embassies since that possibility could infer such entries for asylum-seekers.
Protected entry procedures represent an alternative way to get into the asylumsystem and include seeking asylum at embassies, which makes it a relevant concept
in the discussion.85
Visas can both be seen as a limitation and a possibility to movement. On one hand
might a requirement of a valid visa make it harder for an individual to enter a state
in the case it is difficult to receive a visa. On the other hand visas also enable legal
movement for individuals if they are able to obtain a visa at a diplomatic
representation such as an embassy. In this context visas will be discussed as a
possible way to provide safe entries for asylum- and protection-seekers. An entry
visa or a so-called humanitarian visa would not necessarily mean a right for the
individual to stay in the destination state but would provide for safe and legal entry
to furthermore get their case tried within the state’s borders. Within the EU there
are some rules concerning humanitarian visas and some rules that might be
applicable to the issue. Article 19 and 25 of the Visa Code state a possibility for EU
Member States to grant humanitarian visas with limited territorial validity. These
visas can be valid in one or more, but not all, Schengen states. 86 The scope of
humanitarian- and entry visas within the EU will be further examined and
discussed. The possibility for asylum-seekers and refugees to seek similar visas to
enter countries outside the EU will also be examined and discussed.
4.2 Applicable IHRL Law
Within IHRL there are protection norms to assist the protection of people. These
norms will now be examined and interpreted to see if they might be used
extensively to infer a right to entry that may enable asylum-seekers to be granted
84
Noll, Gregor and Fagerlund, Jessica. Safe Avenues to Asylum? The Actual and Potential Role of
EU Diplomatic Representations in Processing Asylum Requests, The Danish Centre of Human
Rights. 2002, p. 3.
85
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 542, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
86
See http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Ajl0028 regarding the Visa
Code.
31
asylum or humanitarian visa at embassies. Some human rights instruments have
already been mentioned in the context of interpreting the explicit principle on nonrefoulement. There are, however, other relevant instrument such as article 3 ECHR,
article 7 ICCPR and article 37 Convention on the Rights of the Child (CRC). These
article do not expressly say that an asylum-seeker cannot seek humanitarian visa at
an embassy to avoid the risk of ill-treatment. The articles might therefore be
interpreted as a right to protection and additionally even a right to entry. 87 As
explained above, the status of refugees is indeed an important part of IRL, but as
noted by Edwards88 too much focus seem to lay on “who is a refugee” than how
these individuals actually are treated, both before and after deciding whether they
will be granted asylum or not. Moreover, a line seem to have been drawn between
IRL and IHRL, which makes it easier for states to only provide minimum standards
for asylum-seekers.89 However, as Feller90 points out, the refugee protection
regime actually originates from general principles of human rights. 91 IHRL is an
important instrument since it focuses more on the rights of the asylum-seekers. To
test the extraterritorial and extensive applicability the three norms will be discussed
further.
4.2.1 The ECHR
Article 3 of the ECHR reads as follow:
No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.
The wording of the article does not limit its use to a specific territory. In other
words there is a possibility for an extensive interpretation. To examine the
article’s applicability article 31 and 32 VTC are significant again. Hence, article
1 ECHR is important for the interpretation too, it states:
The High Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in Section I of this Convention.
Since the article says that Contracting Parties ought to secure rights and freedoms it
puts a positive obligation on the states when it is read together with the negative
right not to be tortured in article 3. The obligation therefore infers granting visas to
87
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 556, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
88
Alice Edwards, Head of the Secretariat for the Convention against Torture Initiative.
89
Edwards, Alice, Human Rights, Refugees, and The Right 'To Enjoy' Asylum, Oxford University
Press, 2005, p. 294.
90
Erika Feller, Assistant High Commissioner – Protection UNHCR
91
Feller, Erika, International refugee protection 50 years on: The protection challenges of the past,
present and future, IRRC, 2001, vol. 83 nr. 843, p. 582.
32
individuals who are under risk to be treated contrary to article 3 in their country of
origin, denying such visa might be an illegal act.92 Furthermore this obligation
means that the individual might have the right to a humanitarian visa to be able to
safely enter the country of destination where a proper asylum process can be
conducted. At first glance this interpretation of the ECHR might suggest an
immeasurable responsibility for Contracting States, however that is not the case
since the convention is limited to cases with a jurisdictional presence, i.e. it has a
criterion of jurisdiction. Henceforth, the problem of where a state has jurisdiction
still remains.
There are relevant cases bringing up the problem of jurisdiction. In the case
Bankovic and Others v. Belgium and Others the European Court of Human Rights
(ECtHR) said “the Court notes that other recognised instances of the extraterritorial
exercise of jurisdiction by a state include cases involving the activities of its
diplomatic or consular agents abroad and on board craft and vessels registered in, or
flying the flag of, that state. In these specific situations, customary international law
and treaty provisions have recognised the extraterritorial exercise of jurisdiction by
the relevant state.”93 As Noll explains, the message from the ECtHR concerning
jurisdiction is clear: “within the jurisdiction” is not limited to geographical borders
but refers to administrative borders. Regarding seeking asylum and humanitarian
visas at embassies the problem of competing jurisdiction is regulated by treaty law
and custom such as the Vienna Convention on Diplomatic relations and the Vienna
Convention on Consular Relations.94
To sum up the ECHR somewhat provides for an extensive interpretation because of
the interplay between the positive right and the negative obligation, together they
create a stronger rule than just a right or just an obligation. To be clear the rules are
only binding for contracting parties, which undisputedly limits the applicable
situations. To apply article 3 ECHR to the question of granting visas and asylum at
embassies the destination state needs to be a contracting state, i.e. the convention is
not applicable if the destination state is located outside of Europe. Despite the
limited scope of the convention it is, as shown above, an important instrument since
it may be applicable extraterritorially.
4.2.2 The ICCPR
Similar to article 3 ECHR article 7 ICCPR states a prohibition against torture:
92
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 564, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
93
Bankovic and Others v. Belgium and Others, ECtHR, Decision of 12 Dec. 2001, Appl. No.
52207/99 para. 73.
94
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 567, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
33
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
The main problem of trying to apply the article to extraterritorially to visa and
asylum cases at embassies is that article 2(1) ICCPR limits the covenant by using
the wording “all individuals within its territory and subject to its jurisdiction”.
Accordingly, the applicability is limited to state territory and jurisdiction, which
would make it hard, or even impossible, to apply to a situation where the asylumseeker is not within the territory of the host state or somehow within its
jurisdiction.95 The Human Rights Committee might however be creating a
possibility to extend the covenant’s applicability by modifying the criteria. The
Committee said in their General Comment of 1994 that article 2(1) applies to all
individuals “within the territory or under the jurisdiction of the state”.96 In 2004 the
Committee said in their General Comment that a state must indeed “respect and to
ensure the Covenant rights to all persons who may be within their territory and to
all persons subject to their jurisdiction.” Furthermore they stated “a State party
must respect and ensure the rights laid down in the Covenant to anyone within the
power or effective control of that State Party, even if not situated within the
territory of the State Party.”97 An interpretation of the statement might suggest a
possibility to apply article 7 ICCPR to situations where an individual seeks asylum
at an embassy. For that to be possible the individual in question needs to be seen as
being “within the power or effective control” of that state. It is also crucial to know
if the General Comments made by the Committee in this case are accurate and if an
interpretation of ICCPR can be based on them.98 The General Comments are in line
with the interpretation the Committee made in a few cases where two states both
have sovereignty claims, which will now be examined further.
4.2.2.1 The Case of Haitian Asylum-seekers and 1995’s US
State Report
The Committee commented on the US state report in 1995. The US government
interpreted the ICCPR as to not have extraterritorial reach, which the Committee
did not agree on. Furthermore the Committee were of the opinion that Haitian
asylum-seekers could be subject to state jurisdiction even on the high seas. 99
95
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 557, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
96
Human Rights Committee, ‘The right of minorities (Art. 27). General comment no. 23’, 8 Apr.
1994, para. 4.
97
Human Rights Committee, General Comment on Article 2. The Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, CCPR/C/74/CRP.4/Rev.6, para 10.
98
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 557, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
99
Human Rights Committee, Concluding Observations of the Human Rights Committee: United
34
Technically the high seas are outside state territory which brings up the question
whether the interpretation can be used analogically on situations where asylumseekers make claims at embassies. The difference is, as discussed above, that when
speaking of sovereignty in the case of embassies two states have claims, i.e. the
host state and the sending state.100
4.2.2.2 The Case of Israel’s Occupation of Southern
Lebanon and West Bekaa
The Committee has commented that Israel was obligated to follow the rules of
ICCPR in the occupied territories of Southern Lebanon and West Bekaa. In these
cases the problem of competing sovereignties is once again the main issue.101 The
fact that the Committee obligated Israel to follow the rules of ICCPR outside of
their actual territory might apply analogically to cases where sending states exercise
control at their embassy in a host state.
4.2.2.3 The Case of de López v. Uruguay
In this case the Committee came to the conclusion that the ICCPR was applicable
extraterritorially when an Uruguayan citizen was kidnapped by Uruguayan security
and intelligence forces when in Argentina and held there during two weeks.
Thereafter he was taken to Uruguay to be unlawfully held for about to three months
before put on trial. During held in captivity he suffered physical abuse. Once again
article 2(1) ICCPR was interpreted of the Committee resulting in the conclusion
that a State party can “be held accountable for violations of rights under the
Covenant which its agents commit on the territory of another State, whether with
the acquiescence of the Government of that State or in opposition to it.”
Furthermore the Committee states that it would be immoral if the Covenant would
be interpreted as to not apply to violations on the territory of another state if the
violations in question could not have been carried out on their own territory. 102
In this case there are similarities to the case of seeking asylum at embassies as to
the fact that the sovereignty of two different states is a central factor. Although
there are differences too such as in the de López case a human right’s violation has
been carried out and the victim was seeking protection in his home country. In a
case of seeking-asylum at embassies the potential host state has not carried out a
States of America, 6 Apr. 1995, CCPR/C/79/Add.50 para. 284.
100
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 558, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
101
Ibid, p. 559,
102
De López v. Uruguay (52/1979), Human Rights Committee, Selected Decisions under the
Optional Protocol: UN doc. No. CCPR/C/OR/1 (1985), 88–92, para. 12.3.
35
human rights violation and is not the home country of the individual in question.103
4.2.2.4 The Case of Dixit v. Australia
As shown so far none of the cases brought up are directly applicable to the issue of
seeking asylum or visas at embassies, even though the issue of competing
sovereignties is an important factor. A case concerning denying an entry visa
actually does exist and might be useful in this study. In the Case of Dixit v.
Australia a family sought to migrate to Australia without any prior connection to
the State. Australia denied the application and claimed that the ICCPR cannot be
applicable to the case since the family did not lie within Australia’s jurisdiction or
territory and their only connection to the state was their visa application. Australia
stressed that if it would be applicable in such case it would extend the scope of the
ICCPR far beyond the objective of the drafters and it would not be according to the
wording of article 2(1). Furthermore they argued that Australia has the right to
interfere with an individual when it comes to entry to their territory. 104 The actions
carried out by the State party were not found as to violate the ICCPR.
To sum up, there is a possibility to interpret the ICCPR as to be applicable to
seeking asylum at embassies. In such case the main foundation would be the
comments and statements made by the Human Rights Committee on the
interpretation of article 2 ICCPR regarding the covenant’s extraterritoriality. To be
clear none of the cases brought up above concern seeking asylum or humanitarian
visas at embassies but could be used analogically to do an interpretation of article 2
to enable the use of article 7 ICCPR in those cases. As Noll points out, the concept
of competing sovereignties is fundamental in the interpretation. Regarding the case
of the Haitian asylum-seekers it could be said to concern exclusive control instead
of competing sovereignties. Furthermore, the case of the Israeli occupations and
also the de López case deal with the problem of competing sovereignties. When
speaking about granting visa or asylum the relevant obligation is a positive
obligation to protect from third parties, whilst in the de López case the primarily
obligation is a negative obligation not to harm actively. Nowak states that the fact
that the ICCPR refers to territory still remains, which together with subjugation to
state sovereignty is part of the foundation of protection under the ICCPR. Despite
this, he also acknowledges that there is a contradiction that occurs with these two
requirements. To illustrate the contradiction the relationship between article 12(4)
and 2(1) is illuminative since article 12(4) refers to the individuals right to enter her
home country. There is therefore a right for the state to not allow entry if the
103
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, pp. 560-561,
available at: http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February
2016).
104
Dixit v Australia, Human Rights Committee, Communication No. 978/2001,
CCPR/C/77/D/978/2001, 28 Apr. 2003, para 4.2,
36
individual is situated outside state territory according to 2(1), although there is at
the same time a right to entry for citizens in 12(4). Nowak105 points out that this
relevant conflict between article 12(4) and 2(1) of the ICCPR gives the effect that
the interpretation of article 2(1) shall apply to all rights in the ICCPR. 106 As
mentioned above article 31 and 32 VTC therefore become relevant to see if such
argument is reasonable.
As shown in Nowak’s argument above there is indeed a conflict between 12(4) and
2(1) ICCPR, although there is no such conflict between the relevant article 7 and
article 2(1). An interpretation according with article 31 VTC is therefore neither
manifestly absurd nor unreasonable, which leads to the conclusion that article 32(b)
is not applicable to the interpretation. Furthermore, this means that the
interpretation should be in accordance to article 31 VTC, which states:
A treaty shall be interpreted in good faith in accordance with the ordinary meaning
to be given to the terms of the treaty in their context and in the light of its object and
purpose
Even though both the Committee in the Uruguay case and Nowak want to do an
extensive reading of article 7 ICCPR to cover an obligation to grant humanitarian
visas, but as shown above that does not seem to be in accordance with VTC. In
conclusion article 7 ICCPR forbids torture but does not seem to imply an obligation
for a state to grant asylums or issue humanitarian visas.107
4.2.3 The CRC
The relevant article in the CRC is 2(1) and it reads as follows:
States Parties shall respect and ensure the rights set forth in the present Convention
to each child within their jurisdiction without discrimination of any kind, irrespective
of the child's or his or her parent's or legal guardian's race, colour, sex, language,
religion, political or other opinion, national, ethnic or social origin, property,
disability, birth or other status.
Once again the jurisdiction is relevant, hence there is no obligation for the child to
be present on the state party’s territory for the convention to be applicable. The
CRC also provides for protection under article 37 with a prohibition of torture and
105
Manfred Nowak, Austrian human rights lawyer, served as the United Nations Special
Rapporteur on Torture from 2004 to 2010, Scientific Director of the Ludwig Boltzmann Institute for
Human Rights and former judge at the Human Rights Chamber for Bosnia and Herzegovina.
106
Nowak, Manfred, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 2nd ed, N.P.
Engel, 2005.
107
Noll, Gegor. Seeking Asylum at Embassies, Oxford University Press, 2005, p. 564, available at:
http://ijrl.oxfordjournals.org/content/17/3/542.full.pdf+html (accessed 20 February 2016).
37
other ill-treatment. Furthermore article 22(1) CRC states that a state shall take
appropriate measures to provide protection and humanitarian assistance for a child
who has been provided the status of a refugee or who is seeking refugee status. The
article is of interest when speaking of a child seeking humanitarian visa at an
embassy in a third state, i.e. not in the state of origin. As Noll points out, such
appropriate measures may be providing a humanitarian visas at an embassy.
Accordingly, the CRC is only applicable to the situations where a child is involved,
which makes the applicability rather narrow. In contrast to the ICCPR the CRC
does not contain the limitation of territory.
4.3 Conclusion
As shown in this section, protection obligation and sovereign rights can often be put
up against each other. As of today there seem to be little support in human rights
law for an obligation to provide safe entries by granting asylums and humanitarian
visas at embassies. The ICCPR do not apply to the given situation, mainly due to
the requirement of the presence on state territory. Furthermore, it was shown above
that it is not possible to do an extensive reading to have it covering situations of
seeking asylum and humanitarian visa at embassies. ECHR, on the other hand, may
be interpreted with help of VTC in such way as it implies an obligation for states to
grant humanitarian visas in certain situations, however the obligation only applies
to member states. The CRC may also be interpreted in such way as to imply an
obligation for states to grant humanitarian visas to protect a child in a third country.
38
5 Humanitarian Visas
Humanitarian visas have already been discussed in all previous chapters alongside
asylum. The reason for this chapter is to bring up the rules that apply only to
seeking humanitarian visas at embassies and furthermore examine the existence of
rules that apply to this matter and not to the cases of asylum. The discussion will
concern, but is not limited to, EU rules. Due to the existing rules in EU legislation
these rules need to be brought up separately. Nevertheless international rules also
apply to the European countries. The issue is described in the foreword of
Fundamental rights at Europe’s southern sea borders as: “Migrants who put their
lives at risk by crossing the sea in unseaworthy boats to reach the shores of
southern Europe highlight an alarming and unresolved chink in the European
Union’s protection of core rights of individuals.”108 As mentioned before,
humanitarian visas are part of the concept of protected entry procedures, which
gives a non-national the possibility to approach the potential host state outside its
territory with a claim for asylum or other form of international protection, and to be
grated an entry permit in case of a positive response to that claim.109 This means
that the individual directly approaches the embassy of the potential destination state
to seek a humanitarian visa. Hence, humanitarian visas are meant to provide safe
and legal entries and is not the same as asylum. Moreover the final decision
regarding asylum is made within the borders of the destination state.110
5.1 The EU and Humanitarian Visas
The Common European Asylum System (CEAS) is a system built to improve
current European legislation. Unfortunately the EU has not yet provided EU-wide
legal routes of entry for asylum-seekers, which makes it difficult to use the
protection mechanisms of the CEAS. Main reason for the CEAS not working
properly is probably the fact that the Member States see their protection obligation
as territorial, i.e. national. Hence, the Member States protect their sovereignty and
sees it as mainly a national matter even though refugee law as well as human rights
obligations may be part of extraterritorial engagements.111 Humanitarian visas
FRA (2013), Fundamental rights at Europe’s southern sea borders, European Union Agency for
Fundamental Rights, available at: https://fra.europa.eu/sites/default/files/fundamental-rightseuropes-southern-sea-borders-jul-13_en.pdf (accessed 23 March 2016).
109
See Error! Reference source not found. for further information on Protected Entry Proceures.
110
Noll, Gregor and Fagerlund, Jessica. Safe Avenues to Asylum? The Actual and Potential Role of
EU Diplomatic Representations in Processing Asylum Requests, The Danish Centre of Human
Rights. 2002, pp. 14-17, available at: http://www.unhcr.org/3cd000a52.pdf (accessed 6 April 2016).
111
Guild, Elspeth and Moreno-Lax, Violeta, Current challenges for international refugee law, with
a focus on EU policies and EU co-operation with the UNHCR, Briefing paper, EP, 2013, p. 23,
108
39
could be an option for the EU to provide safe entries for third-country nationals,
which is why the possibility will be further examined.
5.1.1 The Schengen Convention
The Schengen Convention is an additional instrument to the Schengen Agreement
and is a crucial instrument when it comes to movement in the EU and is relevant for
the discussion concerning humanitarian visas since it states some rules that may be
applicable. First and foremost article 18 of the Schengen Convention is important.
The article states a possibility to issue visas to individuals in need of protection by
giving Member States the freedom to issue long-stay visas (type D) for stays
exceeding 90 days. As pointed out by den Heijer112, this possibility, means that
Member States may issue humanitarian or other protection visas to individuals
seeking international protection based on their national laws or EU law.113
Henceforth, the Convention states a possibility for Member States to grant shortstay visas to individuals seeking protection by to some means disregard the
Schengen visa requirements.114
5.1.2 The EU Visa Code
As brought up earlier the Visa Code consist of a few rules concerning humanitarian
visas that may be of interest when discussing a possible obligation for states to
provide safe entries. Article 25(1) of the Code states an actual obligation for
Member States to provide so-called Schengen visas with limited territorial validity.
The article was used in the Koushkaki case where the Court of Justice of the
European Union (CJEU) came to the conclusion that Article 25(1) obligates
Member States to issue visas with limited territorial validity when this follows from
the Member States’ refugee and human rights obligations.115 Hence, also article
19(4) is relevant in the discussion concerning humanitarian visas within the EU,
available
at:
http://www.europarl.europa.eu/RegData/etudes/note/join/2013/433711/EXPODROI_NT(2013)433711_EN.pdf (accessed 11 May 2016).
112
Maarten den Heijer, assistant professor of international law at the Amsterdam Center for
International Law, vice-chairman of the Standing Committee of Experts on International
Immigration, Refugee and Criminal law (Meijers Committee), member of the editorial board of the
caselaw journal European Human Rights Cases (EHRC) and member of the editorial board of the
Netherlands Yearbook of International Law.
113
Heijer, Maarten den, Europe and extraterritorial asylum, Hart, Diss. Leiden : univ.,Oxford, 2012,
pp. 182-184.
114
Iben Jensen, Ulla, Humanitarian Visas: Option or Obligation?, Study for the LIBE Committee,
2014,
p.
18,
available
at:
http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.
pdf (accessed 20 March 2016).
115
Case C-84/12, Rahmanian Koushkaki v. Bundesrepublik Deutschland.
40
according to the article a visa can be issued either on humanitarian grounds, for
reasons of national interest or because of international obligations. Article 19(4) of
the Visa Code reads as follows:
By way of derogation, an application that does not meet the requirements set out in
paragraph 1 may be considered admissible on humanitarian grounds or for reasons of
national interest.
In other words there is a contradiction between article 25(1) and 19(4).
Nevertheless, both articles provide a possibility for individuals to be granted visas
at embassies. On the other hand it is important to note that the Visa Code does not
contain a rule that applies to appealing a visa-case. Hence, it does not provide for a
possibility to get a case of non-admissibility tested for the visa-seeker.
5.1.3 The EU Institutions’ Approach on Humanitatian
Visas
The EU institutions have become more open to humanitarian visas and protected
entry procedures in general as the need for safe entries have grown with the
increased influx of refugees. In 2014 the institutions recommended and suggested
new approaches to the issues. In the Commission’s March 2014 Communication
they brought up the issue by recommending that the EU should work towards
ensuring a more organised arrival of persons with tenable protection needs and
furthermore that the EU should pursue a coordinated approach to humanitarian
visas and common guidelines on the matter.116 The European Council has also
progressively obtained an approach as to which they support a more secure-centred
strategy and they are of the opinion that the EU should cooperate with countries of
origin and transit to a greater extent. In their June 2014 Post Stockholm guidelines
the European Council recommended reinforcing legal entries to Europe. 117 Further
more the European Parliament has recognised the demand for more organised
entries and arrivals for individuals in need of protection. Protected entry procedures
are a central part of its human-rights-based attitude to migration. In its Resolution
of April 2014 the European Parliament encouraged the Member States to issue
humanitarian visas and once again stated that Europe is in need of a coordinated
approach to the issue of unsafe entries.118 The 2014 Commission proposal for a
116
European Commission 2014 March Communication, Brussels, March 11th 2014, pp. 6-7,
available
at:
http://ec.europa.eu/dgs/home-affairs/e-library/documents/basicdocuments/docs/an_open_and_secure_europe_-_making_it_happen_en.pdf (accessed 2 April 2016).
117
European
Council’s
June
2014
Post
Stockholm
Guidelines.
http://www.consilium.europa.eu/en/policies/strategic-guidelines-jha/ (accessed 2 April 2016).
118
European Parliament Resolution of April 2014 on the mid-term review of the Stockholm
Programme,
section
II,
82-95.
41
Visa Code is important in the discussion of humanitarian visas and safe entries
since it brings up the possibility for Member States to cooperate with external
service providers.
5.1.4 The Definition of Humanitarian Grounds and
Humanitarian Reasons
It has been acknowledged by various authors that the concept of “humanitarian
grounds” used in the Visa Code and the Schengen Convention remains undefined,
which may cause problems when applying the rules.119 Noll furthermore points out
that despite the uncertainties ”it is contextually clear that the granting of visas to
alleviate threats to the applicant’s human rights is covered by the term.” On the
other hand the concept has been somewhat explained in the Visa Handbook, which
therefore gives some guidance.120 The handbook states a few examples of
humanitarian grounds that can indicate a process of an application that, without the
humanitarian ground, would have been inadmissible. Henceforth, both the Visa
Handbook and the Schengen Handbook give examples of when a state is obligated
to extend visas. A few examples of humanitarian grounds are:
“Sudden serious illness of a close relative or of other close persons; death of a close
relative or of other close persons; entry required so that initial medical and/or
psychological care and, by way of exception, follow-up treatment can be provided in
the Schengen State concerned, in particular following an accident such as shipwreck
in waters close to a Schengen State, or other rescue and disaster situations”.121
“a Philippine national urgently needs to travel to Spain where a relative has been
victim of a serious accident. His travel document is only valid for one month beyond
the intended date of return.”122
And examples of humanitarian reasons are:
http://www.europarl.europa.eu/sides/getDoc.do?type=REPORT&reference=A7-20140153&language=EN (accessed 2 April 2016).
119
Noll, Gregor and Fagerlund, Jessica and Liebaut, Fabrice, Study on the Feasibility Of Processing
Asylum Claims Outside the EU Against the Background of the Common European Asylum System
and the Goal of a Common Asylum Procedure, Luxemburg: European Communities, 2002, p. 235,
available
at:
europa.eu.int/comm/justice_home/doc_centre/asylum/common/asylumstudy_dchr_2002_en.pdf
(accessed 10 May 2016) and Iben Jensen, Ulla, Humanitarian Visas: Option or Obligation?, Study
for
the
LIBE
Committee,
2014,
p.
18,
available
at:
http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.
pdf (accessed 20 March 2016).
120
The EU Visa Handbook, Part II, para. 4.1.2.
121
The Schengen Handbook, Section I, para. 7.5, p. 48.
122
The EU Visa Handbook, Part II, para. 4.7, p. 38.
42
“sudden serious illness of the person concerned (meaning that the person is unable to
travel) or sudden serious illness or death of a close relative living in a Member
State”.123
As mentioned before humanitarian visas as a protected entry procedure focuses on
providing safe entries and is therefore based on protection grounds. The reasons put
out in the Handbooks seem to be health-related, the question is therefore if it still
can apply to protection-related situations. The Visa Handbook does not bring up
any international protection obligations, however the Schengen Handbook
mentions: “for example, if a person asks for asylum or is otherwise in need of
international protection”.124 In other words the Schengen Handbook refers to
protection when describing international obligations.125
To sum up, despite the non-binding character of the handbooks, they may serve as
guidelines when applying the Visa Code and the Schengen Convention. With the
definition of humanitarian grounds provided in the handbooks there is a possibility
to apply the Visa Code, and especially the Schengen Convention, to protection
situations. Henceforth, there are possibilities to issue humanitarian and there is
foundation for it in EU agreements, although it has been acknowledged that the
Member States are of the opinion that they need a common visa schemes since
there are not many existing national visa schemes.126 As pointed out by Jensen127 in
her study on the matter, the Member States “should be making better use of the
existing provisions on humanitarian visas.” Furthermore Jensen acknowledges that
the EU and all its Member States are bound to follow refugee and human rights law
and “given that there is a humanitarian visa scheme laid down in the Visa Code, the
study concludes that Member States have an obligation to make use of the existing
provisions on humanitarian visas.”128 To be clear this discussion only applies to the
EU since the rules are EU legislature, however other possibilities of humanitarian
visa grounds and state practise will therefore be discussed further in this chapter.
123
Ibid, Part III, para. 1.1, p. 99.
The Schengen Handbook, section I, Para. 6.2, p. 39.
125
Iben Jensen, Ulla, Humanitarian Visas: Option or Obligation?, Study for the LIBE Committee,
2014,
p.
19,
available
at:
http://www.europarl.europa.eu/RegData/etudes/STUD/2014/509986/IPOL_STU(2014)509986_EN.
pdf (accessed 20 March 2016).
126
Ibid, p. 50.
127
Ulla Iben Jensen, Danish lawyer.
128
Ibid, p. 51.
124
43
5.2 Humanitarian Visas
Implementation
policy
and
Its
In 2013 the Brazilian Government decided to grant humanitarian visas to Syrians
who wish to seek protection in Brazil. According to the decision, Brazilian
embassies will have the authority to grant the visas to enable safe entries for
Syrians into their territory. It should be noted that Brazil is the first country in
America to implement such approach regarding Syrian protection seekers.129
Moreover, the Australian government has implemented rules regarding
humanitarian visas as a part of a legal framework. By making the framework
comprehend five different humanitarian visas the government has more control and
there are different categories depending on the individual’s situation. The different
categories are Refugee Visa (Subclass 200), In-country Special Humanitarian
Program Visa (Subclass 201), Global Special Humanitarian Program Visa
(Subclass 202), Emergency Rescue Visa (Subclass 203) and Woman at Risk Visa
(Subclass 204).130 The visas enable visa application outside Australian territory, i.e.
at embassies. This legal framework is a way for Australia to fulfil protection
obligations.
5.3 Conclusion
Granting humanitarian visas is different from granting asylum at embassies since it
only gives the protection seeker admission to territory to later on seek asylum. As
shown above the EU and Schengen have instruments that explicitly deal with the
concept of humanitarian visas. However, they are rather unclear and according to
Member States they need stronger schemes as guidelines. Nevertheless, there are,
as shown above, existing EU rules concerning humanitarian and the organs have a
positive approach towards the concept. To make it a part of solving the protection
crisis the Member States should however make better use of the these rules.
Furthermore there is state practice on the matter showing progress and that states
are willing to implement such rules.
129
UNHCR, UN refugee agency welcomes Brazil announcement of humanitarian visas for Syrians,
2013, available at: http://www.unhcr.org/524555689.html (accessed 5 May).
130
Regading the different visa types see https://www.border.gov.au/Trav/Refu/Offs/Refugee-andHumanitarian-visas (accessed 20 May 2016).
44
6 Analysis and Conclusion
As shown above, the entries for asylum-seekers are in many ways both irregular
and unsafe, which puts the individual in a situation of being without protection
when on route. The situation today is unsustainable for both states and asylumseekers, which makes it important to find a solution according to which
humanitarian and state interests are considered. This thesis has aimed to contribute
in the discussion of finding a solution to the problem by examining the possibility
of seeking asylum and humanitarian visas at embassies by doing a synthesis. This
chapter serves the purpose of analysing what have been brought up in previous
chapters and finally drawing a conclusion and answer the questions asked in the
initial chapter regarding the existence of a positive obligation for countries to
provide safe entries for asylum-seekers and to what extent granting asylums or
visas at embassies may serve as an effective response to the current protection
crisis.
6.1 A Legal Foundation for Safe Entries
The main part of this thesis has investigated if support and foundation for an
obligation for states to provide safe entries for asylum-seekers may be sought in
international law. I have investigated the possibility to use existing rights and
responsibilities to find an obligation. One of the most important instruments in IRL
is the CSR, however the problem is that this convention does not clearly state the
responsibility of states towards refugees. Moreover, it does not state a right to seek
or to be granted asylum. I agree with de Jong that the CSR may be out-dated, since
it is the most important IRL instrument but does not provide enough protection for
asylum-seekers. However, it may be an underlying right as Goldman 131 and Martin
argues. 132 For states to be obliged to provide protection in the form of safe entries
there ought to be a binding responsibility. As discussed, such responsibility may
come from a correlating right to protection or similar for the asylum-seeker. It has
been concluded that UDHR does state a right to seek asylum, however the
declaration is not binding upon states. The non-binding character leads to the
131
Robert K. Goldman, Louis C. James Scholar; co-director, Center for Human Rights and
Humanitarian Law; faculty director, the War Crimes Research Office; and professor of law. And
holds expertise in international and human rights law; U.S. foreign policy; terrorism; and law of
armed conflict.
132
Kogod Goldman, Robert and Martin, Scott M, International Legal Standards Relating to the
Rights of Aliens and Refugees and United States Immigration Law, Human Rights Quarterly, Vol. 5,
No. 3, Aug., The Johns Hopkins University Press, 1983, pp. 309-310.
45
conclusion that a binding duty cannot be derived therefrom. The EU Charter states
a right to asylum and is binding upon states, which makes it a possible instrument
to derive and develop a responsibility from.
Furthermore, the discussion concerning the principle of non-refoulement is a
central part of the investigation. In my opinion there are relevant factors that point
in the direction towards the principle being applicable to extraterritorial situations
such as providing safe entries. However, such an extensive reading of the principle
would change too much in today’s migration policies. If the principle of nonrefoulement would constitute a right to access territory, the current border control
system would not be in accordance with international law. Furthermore, embassies
are located outside of state territory, whilst the principle of non-refoulement refers
to a prohibition to remove an individual from state territory under certain
circumstances. Even though the embassy actually belongs to the sending state it is
hard to argue that the state in question has sovereignty since it is located in the host
state. The principle of non-refoulement is indeed an important concept in trying to
solve the protection crisis, however a right to invoke asylum or humanitarian visas
to get safe entries does not seem to be implied.
Hence, the possibility to find legal foundation could also be sought in IHRL and
relating cases. There is no explicit obligation to provide safe entries in any IHRL
instrument. However, it has been shown above that both ECHR and CRC may be
interpreted in such way as to apply to these situations. An issue might be that these
instruments are of limited nature. The ECHR is limited to the Member States of the
Council of Europe and the CRC only applies to children. Even though the
instruments may apply to situations of providing safe entries through embassies it
will, because of the limited scope, not solve the problem entirely. Furthermore part
of the problem is in my opinion the interplay between national and international
law since the decision regarding asylum and visas is a national matter and
according to the UN Declaration on Territorial Asylum it is a national matter.
However, when a person fulfils the requirements of the refugee definition the
decision no longer is a national matter that can be decided in discretion. The state is
under the obligation to provide protection according to international commitments
deriving from legal instruments the state is bound by. In other words, asylum
should be seen as an exception to the sovereign rules otherwise applicable.
As of today there is a big differentiation between nationals and non-nationals,
which is obvious in IHRL, IRL, EU legislation, national law and state practice. This
differentiation speaks against the arguments that support universality of human
rights. It has the effect of affirming and expressing borders by determining who
gets to enter the territory and who does not. The interplay between sovereignty and
protection is therefore central in this discussion. I am of the opinion that the state
practice of today seems to focus more on protecting territory than on the protection
46
rights of non-nationals. I agree with Keeley that the international refugee regime is
not primarily constructed on humanitarian feelings but designed to protect the
“international system of states that is threatened when states fail to fulfil their
proper roles.” In other words the state is in focus instead of individuals. However,
UDHR seem to be moving in the direction towards not separating the rights of
nationals and non-nationals, which might be the change that IHRL as well as IRL
need.
Furthermore, R2P could be used as a foundation for a duty to provide safe entries.
The problem is the lack of clarity in what it comprehends, who bears the
responsibility, makes the decisions and how it is supposed to be exercised.
However, the possibility to derive a responsibility to protect asylum-seekers by
providing safe entries from R2P should not be disregarded before the questions
surrounding the concept have been answered. The questions concerning the R2P go
outside of the scope of this thesis but in my opinion it could be a possible source of
an obligation to provide humanitarian assistance and thus to respond to a
humanitarian crisis by promoting the collective responsibility to protect refugees.
Protected entry procedures are in my opinion a possible part of a solution to today’s
protection crisis. As explained in the first chapter this thesis does not aim to look at
the protection crisis as a European problem, which is the reason, that international
law is the main focus. If it would be shown that international law constitutes a
positive responsibility for states to provide safe entries for asylum-seekers, EU
legislation would not be of as much interest since the Member States would be
internationally obliged. However, in my opinion there is no unquestionable
responsibility in international law, which has made the EU discussion more
important.
6.1.1 Providing Safe Entries into the EU
It should be noted, as explained in the first chapter, that the problem of unsafe and
illegal entries is not just a EU problem. However, there are legal instruments that
only apply to the EU and its Member States, which is why it is necessary to treat
these situations separately as well as in a global context. As mentioned before it is
hard to find a legal foundation to a possible obligation to provide safe entries.
However, as shown throughout the thesis, there are a few possible options. EU-law
provides for the right for the right to seek asylum as well as an obligation for
Member States to secure rights and freedoms such as the right not to be tortured or
ill-treated.
Since the right to asylum is stated in the EU Charter, which is binding upon
Member States, it may be possible to derive a responsibility therefrom. I therefore
47
believe that it is one of the instruments that most likely could be a foundation for a
duty to provide safe entries. The problem is that such an extensive reading of article
18 has not yet been officially done. As mentioned before, the current protection
crisis is not only a problem within the EU and the aim should therefore, in my
opinion, be to find a global solution. If a responsibility to provide safe entries only
would apply to EU Member States it may be hard to allocate the responsibility
equally among possible destination states. However, the fact that there might be
relevant EU-law should not be disregarded since it may be part of a solution.
Henceforth, the preamble of the EU Charter states that it only confirms already
existing rights. In other words, it does not constitute any new rights. It may be easy
to come to the precipitous conclusion that a right to seek asylum did not explicitly
exist within international law before the EU Charter. However, as explained above
the right to asylum does and did exist in the non-binding UDHR in article 14. The
fact that UDHR is not a binding instrument may weaken the authority.
Nevertheless, the CSR elaborates on article 14 UDHR and as High Commissioner
Robinson explains it the CSR “turned the ideals of the Declaration into legally
binding obligations”.133 Therefore it may be argued that a binding right to asylum
did exist before the EU Charter, which implies a duty for states to grant asylum.
Moreover, as mentioned above international law is not limited to written rules, but
includes general principles. The concept of asylum have been practised for many
years and the right to asylum may therefore also be derived as an existing right
within international law as a general principle and custom. Hence, the right to
asylum therefore seem to have been an existing right as explained in the preamble
of the EU Charter.
In sum, a positive responsibility to provide safe entries could most likely be derived
from the EU Charter when interpreted in combination with UDHR and CSR,
although it will only apply to Member States.
6.1.2 Humanitarian Visas as An Alternative Solution
The concept of humanitarian visas has been treated as a part of the solution when
discussing using embassies to solve the protection crisis. It has been discussed
together with seeking asylum but should preferably be analysed separately too since
there are separate rules, which do not apply to cases of asylum. Furthermore, it is
not the same as asylum and may therefore be treated a bit differently. In my opinion
humanitarian visa may be an alternative solution that would be easier to invoke
133
Robinsson, Mary, The United Nations must create a sense of renewed purpose to protect the
human rights of everyone, Refugees Magazine, Issue 111, 1998.
48
than asylum, although it would still provide safe entries. One advantage within
Europe is that there is an existing Visa Code as well as the Schengen Convention,
which both state rules concerning humanitarian visa. However, as explained above
the Member States need to make better use of the rules to be able to use them to
solve the protection crisis. In my opinion humanitarian visas may be an alternative
solution since it does provide legal and therefore safe entries but it is not as definite
as asylum. By definite I mean that it does not give the individual a permanent right
to stay in the destination state, it merely gives a right to access territory to later on
precede an asylum process. I therefore believe that states may be more willing to
implement rules regarding granting humanitarian visas at embassies to provide safe
entries, in contrast to granting asylum. As shown above the Brazilian government
has recently started granting such visas and this practice shows that it is working
well.
6.2 Seeking Asylum and Humanitarian Visas
at Embassies
The second question brought up in the thesis concerns whether or not a possibility
to seek and retrieve asylum and humanitarian visas at embassies may fulfil an
obligation to provide safe entries for asylum-seekers. In that sense this question has
somewhat been secondary throughout the thesis, since it is depending on the answer
regarding a positive obligation to provide safe entries. A as shown above a sure
legal foundation for safe entries has not yet been established, however there are a
few possibilities which makes the discussion concerning seeking asylum and
humanitarian visas at embassies relevant. Granting asylum and/or humanitarian
visas at embassies would in my opinion by an option for states to fulfil such
obligation. As discussed throughout the thesis it would indeed enable legal and
therefore safe entries for asylum-seekers, however there are some legal issues to
this solution. The main problem is in my opinion the fact that embassies are located
on the territory of another state. This problem may be divided in two, where the
first issue is when an asylum-seeker wishes to seek asylum at an embassy in its
home state. According to CSR, an individual may not be granted the status of
asylum when still on the territory of her own state. I find it hard to circumvent that
rule, however there are still possibilities to seek asylum at embassies in a third state.
Moreover, the option of seeking humanitarian visa at an embassy in the home state
still remains since there is no prerequisite of refugee status. Furthermore the fact
that an embassy is located on the territory of the host state brings up the problem of
authority, i.e. if the sending state has the legal authority to exercise such
extraterritorial activity. This issue has been discussed in relation to the principle of
non-refoulement and I have come to the conclusion that competing sovereignties is
indeed an obstacle.
49
6.3 Conclusion
As shown throughout the thesis the problem with finding support for an obligation
to provide safe entries seem to be that there is no such explicit obligation that is
derived from any binding instrument. Which leads to the conclusion that there is no
existing answer to the question if states have a positive responsibility to provide
safe entries for asylum-seekers. However, this thesis has discussed the possibility to
derive it from existing law, including IHRL, IRL and EU law. The answer can
therefore not be a certain one, however it still contributes to the discussion with a
systematic analysis of the relevant existing legal material and through a synthesis
provides for possible ways to advocate for the existence of an obligation while at
the same time highlighting issues of such advocacy.
The second question aimed to be answered in this thesis regards to what extent can
granting asylums or visas at embassies serve as an effective response to the current
protection crisis. I am of the opinion that it may be part of a solution and the main
obstacle is the status of embassies, i.e. the issue of competing sovereignties
discussed above and the fact that individuals cannot be granted refugee status in
their home state. I believe that too much focus, money and energy is put on
separating nationals form non-nationals and preserving old systems, when it instead
could be put into helping and protecting people. This thesis has aimed to find a
legal ground for obligating states to provide safe and legal entries, where granting
asylum and humanitarian visas at embassies have been investigated as a solution.
However, it has also been shown in state practice that an obligation in international
law is not needed if the state is willing to implement rules to provide access to their
territory.
In sum, the above analysis has shown that there are a few possibilities to derive a
positive obligation for states to provide safe entries for asylum-seekers and that
granting asylum and humanitarian visas at embassies may fulfil such obligation.
However, it seems that the world is in need of a new system with new updated rules
where the protection of the individual is in focus.
50
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58