Rethinking Refugee Law (Refugees and Human Rights, V. 7)

RETHINKING REFUGEE LAW

Refugees and Human Rights Volume 7

Editor-in-Chief Professor Anne F. Bayefsky York University, North York, Canada Editorial Board Dr. Chaloka Beyani Law Department, London School of Economic & Political Science, London, U.K. Professor Joan Fitzpatrick School of Law, University of Washington, Washington, U.S.A. Arthur C. Helton Senior Fellow at the Council on Foreign Relations, New York, U.S.A. Juan E. Mendez Executive Director, Inter-American Institute for Human Rights, Costa Rica Dr. Boldizsar Nagy International Law Department, Eotvos Lorand University, Budapest, Hungary

The Refugees and Human Rights Series aims to meet the increasing need for literature which probes the nature and causes of forced migration, the modalities and procedures employed when refugees present themselves, and the manner in which the human rights of refugees are, or should be, promoted and protected.

RETHINKING REFUGEE LAW

By

Niraj Nathwani Legal Adviser, European Monitoring Centre on Racism and Xenophobia, Vienna, Austria

MARTINUS NIJHOFF PUBLISHERS THE HAGUE / LONDON / NEW YORK

A C.I.P. Catalogue record for this book is available from the Library of Congress

ISBN 90-411-2002-5

Published by Martinus Nijhoff Publishers, P.O. Box 85889, 2508 CN The Hague, The Netherlands. Sold and distributed in North, Central and South America by Aspen Publishers, Inc. 7201 McKinney Circle Frederick, MD 21704 USA In all other countries, sold and distributed by Kluwer Law International c/o Turpin Distribution Services Limited Blackhorse Road LETCHWORTH Hertfordshire SG61HN United Kingdom

Printed on acid-free paper All Rights Reserved © 2003 Kluwer Law International Kluwer Law International incorporates the publishing programmes of Martinus Nijhoff Publishers. No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed in the Netherlands.

For Sonal, Amit and my parents

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PREFACE

Refugee status was bestowed on me at a very early stage in my life. At the age of two I came to Austria as a stateless refugee because my family had to flee Uganda due to the policy of General Idi Amin. I personally owe much to international refugee law. I am, therefore, concerned about current developments which, in my view, undermine its purpose. This book has been written in this spirit; my intention is to advocate a better appreciation of its purpose in the current political climate. In my opinion, a better understanding of the purpose of refugee law is a prerequisite for its effective implementation. I am confident that a better understanding of its purpose will also prove decisive in the political arena to convince fellow citizens of its value and significance. Vienna, August 2002

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CONTENTS

Dedication

v

Preface

vii

Acknowledgements

xi

Chapter 1 The Purpose of Refugee Law

1.1 1.2 1.3 1.4 1.5

1

INTRODUCTION 1 THE PROBLEM 4 DIPLOMATIC PROTECTION 7 DE FACTO STATELESSNESS 12 HUM AN RIGHTS 17

1.6

MUTUAL AID 26

1.7 1.8

NECESSITY: THE LIMITS OF DETERRENCE 27 CONCLUSIONS 48

Chapter 2 Current Strategies to Restrict the Scope of the Refugee Concept

2.1 2.2 2.3 2.4

Chapter 3 The Necessity Approach to Interpreting the Refugee Concept

3.1 3.2

49

PERSECUTION AND STATE RESPONSIBILITY 49 WELL FOUNDED FEAR AS OBJECTIVE STANDARD 68 ATTEMPTS TO LIMIT THE SCOPE OF APPLICABLE HUMAN RIGHTS 73 THE REASONS OF PERSECUTION AND DISCRIMINATION 77 85

PERSECUTION 85 WELL FOUNDED FEAR 106 IX

Contents

3.3.

REASONS OF PERSECUTION 113

Chapter 4 Asylum

4.1 4.2 4.3 4.4

115

THE POWER (OR RIGHT) OF THE STATE TO GRANT ASYLUM THE DUTY OF THE STATE TO GRANT ASYLUM ASYLUM: TEMPORARY OR PERMANENT? ASYLUM ELSEWHERE

115 131 140 143

Chapter 5 Conclusions

147

Bibliography

151

Index

167

x

ACKNOWLEDGEMENTS

This book is based on my PhD study which I defended at the European University Institute (EUI) in 1999 before a panel consisting of Prof. Guy S. Goodwin-Gill of Oxford University as Chairman, Prof. Philip Alston of the EUI, Prof. Jens Vedsted-Hansen of Aarhus University and Prof. Massimo La Torre of the EUI. First of all, I would like to express my appreciation to my supervisor at the EUI, Prof. Philip Alston, for his guidance and comments. I am indebted to Prof. Massimo La Torre for his inspiration and assistance. I would like to thank Prof. Jens Vedsted-Hansen, Prof. Antonio Cassese and Prof. Marina Spinedi who commented on my study at various stages of its development. I also enjoyed the possibility of discussing with Prof. James Hathaway and Prof. Guy S. Goodwin-Gill during one of their visits to the EUI. I am grateful to my editors Mrs. Reena Manchanda, Mrs. Maria Fermi and my mother, Mrs. Amita Nathwani, for their assistance and efforts. Of course, I assume full responsibility for any inadvertent errors.

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CHAPTER 1

THE PURPOSE OF REFUGEE LAW

1.1 INTRODUCTION1 It is commonplace to state that refugee law faces a severe crisis.2 Increasingly, refugee status is seen merely as an alternative path to immigration.3 In this context, some tend to speak of the asylum-strategy of immigration.4 The asylum crisis is closely linked to the immigration debate that has, of late, forcefully entered the forefront of the political stage.5 The immigration debate is complex and ideologically charged. According to some, the immigration debate is "obsessive, punitive, neurotic and, in its own terms, largely inexplicable"6. Indeed, there seem to be good arguments why immigration could be economically beneficial for the host society and hence is bound to increase in a global economy. Actually, anti-immigration propaganda does not seem to be based on sound economic argument, but on a mysterious pursuit of national homogeneity. Yet, nobody has been able to define what this homogeneity should be and how it could be defined convincingly and justifiably.7 It is

Chapter 1 was previously published as an article in the International Journal of Refugee Law, Oxford University Press. See N. Nathwani, The Purpose of Asylum' (2000) 12 International Journal of Refugee Law 3, pp. 354 - 379, by permission of Oxford University Press. See G. Loescher (ed.), Refugees and the Asylum Dilemma in the West, Pennsylvania State University Press, Pennsylvania 1992, p.l et seq. The policies and practices during the 1980s and 1990s are indicative not just of a "restrictive trend", but of a fundamental change. They are largely dominated by visa requirements, restrictive admissibility criteria, safe third country removals, carrier sanctions and the emphasis on removal of failed asylum seekers. The underlying causes and responses on the basis of principles of international co-operation and solidarity do not feature prominently in the discourse. See G. S. Goodwin-Gill, The Refugee in International Law (2nd edn, Oxford University Press, Oxford 1996), p. 191. See C. Joppke, 'Asylum and State Sovereignty: A Comparison of the United States, Germany, and Britain', (1997) 30 Comparative Political Studies, p.263. Claudena Skran notes that the climate of immigration restrictions also conditions the asylum crisis of the 1990s in Western Europe. It is no accident that the asylum crisis developed after the immigration stop in western Europe in the mid-1970s. C. M. Skran, 'The International Refugee Regime: The Historical and Contemporary Context of International Responses to Asylum Problems', in: G. Loescher (ed.), Refugees and the Asylum Dilemma in the West (Pennsylvania State University Press, Pennsylvania 1992), p. 13. Nigel Harris, The New Untouchables - Immigration and the New World Order (I.B.Tauris, London 1995), p.85. Ibid., p. 203. 1

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doubtful if all citizens of the host country actually fulfil the criteria, which are expected from foreigners willing to immigrate.8 Without going into too much detail, it might be simple to acknowledge that, as a matter of fact, concern about immigration is growing rapidly, whatever the real reasons may be. This is especially true in Europe where the immigration policy has become the central issue of many election campaigns and is used by right wing political movements to gain votes and power. A restrictive immigration policy is already a political reality in the European Union (EU). Presently, no Member State of the EU is pursuing an active immigration policy.9 The EU has merely reacted to perceived migratory pressures.10 The inherent tension between immigration control and refugee law can be traced back to the origins of refugee law in the 20th century11 .People who flee their homes to seek safety elsewhere are not new to the twentieth century: this has existed earlier. According to the Oxford English Dictionary, the term "refugee" was first applied to the French Huguenots, victims of religious persecution who fled France after the revocation of the Edict of Nantes in 1695. However, refugee crises arose only in the 20th century. John Stoessinger sums up the problem in this way: "What distinguishes the refugee of the twentieth century is the immense difficulty, and often impossibility of finding a new home."12 This difficulty has a name: restrictive immigration policy. In legal terms, the areas of immigration law and refugee law differ in their legal structure: whereas immigration law is ruled by the principle of sovereignty, where every state is free to design and implement its own immigration policy, refugee law is characterised by various international obligations based on international law. While, under international law, a state is free to decide that it wishes no immigration, this level of discretion is not permitted under refugee law. Does a restrictive immigration policy13 entail an equally restrictive attitude towards the interpretation of refugee status? Or, is refugee law independent from immigration policy

12

13

Harris notes the element of boasting and self-indulgence involved in characterising the national spirit. Thus, defining what constitutes the principle of the nation's homogeneity is arbitrary, given the cultural differentiation of a given population. Ibid., p.88 Council Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of the Member States for employment, Official Journal of the European Communities C 274,19.9.1996, p.3f. See M. Baldwin-Edwards and M. A. Schain, The Politics of Immigration: Introduction1, in: M. BaldwinEdwards and M. A. Schain (eds.), The Politics of Immigration in Western Europe (Frank Cass & Co, Ilford, Essex 1994),p.9. See C. M. Skran, Refugees in Interwar Europe - The Emergence of a Regime (Clarendon Press, Oxford 1995), p. 21ff. John G. Stoessinger, The Refugee and the World Community (University of Minnesota Press, Minneapolis 1956), p. 6. Before the recession in the early 1970s, immigration was hardly considered as problematic in Europe; see Baldwin-Edwards and Schain, The Politics of Immigration, n. 10 above, p.8f. During the 1960s and the

The Purpose of Refugee Law

3

insofar as one is able to conceptualise a generous practice of refugee law even if one assumes the justification of a policy goal of strict immigration control14? In this context, it would be useful to reflect on the purpose of refugee law and how the answers provided to these questions could influence its interpretation. These are the central concerns that will be examined. In an attempt to focus attention on these questions alone, for argument's sake, one may wish to assume that it is, indeed, justifiable to minimise immigration as a policy goal. Thus, one can avoid being trapped in a complex debate, ensuring that one does not lose sight of the forest for the trees. Ultimately, it might not be necessary to plunge into the ideologically charged immigration debate in order to defend refugee law. If refugee law can be defended under the assumption of the validity of immigration control, a possible argument in favour of immigration can only serve to strengthen the argument.15 This might prove to be a valuable strategy, even though one might disagree with the assumption. The task is: can refugee law be immunised from the vagaries of the immigration debate? Based on these considerations, a search will be conducted for a persuasive argument that justifies refugee law in the face of a presumably valid policy goal of immigration control. For this purpose existing theories will be analysed, which attempt to explain refugee law as it stands. If one understands the reason why it is necessary, in a moral and practical sense, to adhere to refugee law even though one is committed to a policy of immigration control, then a strategically valuable position will be gained in the debate on refugee policy and practice. It will also be easier to address and understand the conflict between immigration control and refugee law. It would also provide a better understanding of what is really at stake in refugee law, no matter what we think about immigration policy. This, in turn, can prove to be a valuable background against which to interpret refugee law.16 Once a clearer understanding of the purpose of refugee law is beginning of the 1970s, different European countries actually made a conscious recruitment effort in a period of industrial expansion; see G. Brochmann, "Migration policies of destination countries', in: G. Brochmann, Political and demographic aspects of migration flows to Europe (Council of Europe, Strasbourg 1993),p. 111. By strict immigration control, I do not mean the policy of identity checks at borders. Rather I use the terms "policy of strict immigration control" and "restrictive immigration policy" as synonymous. In both cases, I refer to a policy which aims at restricting the immigration of aliens as much as possible. Such arguments can be found for example in M. J. Trebilcock, The case for a liberal immigration policy', in: Warren F. Schwartz, Justice in Immigration (Cambridge University Press, Cambridge 1995), p.219-246. This might figure as the purpose of refugee law. Art.31 of the Vienna Convention on the Law of Treaties says 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."femphasis added] UNDoc. A/CONF. 39/27, 63 AJIL 875 (1969). Given the fact that the 1951 Refugee Convention is a long term treaty, it is advisable to search for a sensible application in the present circumstances. On interpretation of human rights treaties, see H. J. Steiner and P. Alston, International Human Rights in Context - Law, Politics, Morals (Clarendon Press, Oxford 1996), p.35 et seq.

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obtained, a teleological interpretation along these lines is possible - a method which offers solutions, especially for hard cases.17 An attempt is made to analyse the relationship between immigration policy and refugee law from a European perspective. While European immigration policy will serve as an example of a restrictive immigration policy, the fact is that most rich States attempt to restrict and regulate immigration. The conclusions of such an analysis could, therefore, be of relevance not only to Europe, but also to all countries wishing to pursue a restrictive immigration policy.

1.2 THE PROBLEM

As already stated, the States of Western Europe are attempting to restrict immigration. The Council of the European Union confirmed that "at present,..., no Member State is pursuing an active immigration policy. All States have, on the contrary, curtailed the possibility of permanent legal immigration for economic, social and thus political reasons."18 If immigration were completely unregulated, there would be no need for refugee law in its present form. Every refugee could live freely like any other immigrant. It is precisely because States attempt to restrict immigration that refugee law is necessary. The policy of the EU is a good example of how States control immigration. Under the Schengen Agreement19, some European States agreed to gradually abolish person checks at internal borders in order to create "a free market without internal frontiers". As a compensatory measure, these States agreed to improve the checks at external frontiers in order to maintain control. The Schengen Agreement aims at ensuring a high level of control at its external borders. Here, it would be interesting to analyse the measures contained in the Schengen Agreement for improving control at external borders. The Schengen Agreement is also a good example of how a State can control its external borders. First of all, crossing external borders is only allowed at certain points where checks can be carried out. Otherwise, border crossing is considered illegal. Art.3/1 of the

17

18

19

Hard cases are cases about which informed people can reasonably disagree. J. W. Harris, Legal Philosophies (Butterworths, London 1980), p. 173. Council Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of the Member States for employment, Official Journal of the European Communities C 274,19.9.1996, p. 3f. Convention applying the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders, 19 June 1990, published in Official Journal of the European Communities C 340, 10 November 1997, p. 96 et seq.

The Purpose of Refugee Law

5

Schengen Agreement20 reads: "External borders may in principle be crossed only at border crossing points during the fixed opening hours." Art. 6/1 reads: "Cross-border movement at external borders shall be subject to checks by the competent authorities." Between crossing points, a system of surveillance should ensure that nobody manages to circumvent checks. Art. 6/3 of the Schengen Agreement reads: "The competent authorities shall use mobile units to exercise surveillance on external borders between crossing points; the same shall apply to border crossing points outside normal opening hours. This surveillance shall be carried out in such a way as not to encourage people to circumvent the checks at crossing points."

Art. 6/4 reads: "The Contracting Parties undertake to deploy enough appropriate officers to conduct checks and maintain surveillance along external borders." Art. 6/5 reads: "An equivalent level of control shall be exercised at external frontiers". There is also a considerable number of illegal residents in the EU who have entered with a valid visa or residence permit, but have "overstayed". Others simply enter with valid travel documents, if their nationality is exempt from visa requirements for a shortterm stay. This legal residence, however, becomes illegal, when the person concerned embarks on employment not authorised by the visa exemption or the visa obtained. In many cases, persons with a proper residence and work permit simply overstay their period of legal residence or violate residence regulations in other ways.21 The deterrence system attempts to discourage illegal immigration by enforcing two measures. First, every illegal immigrant is subject to punishment. Art. 3/2 reads: "The Contracting Parties undertake to introduce penalties for the unauthorised crossing of external borders at places other than crossing points or at times other than the fixed opening hours."

Secondly, every illegal immigrant is threatened with expulsion. Art. 23/1 reads: "An alien who does not fulfil or who no longer fulfils the short visit conditions applicable within the territory of a Contracting Party must in principle leave the territories of the Contracting Parties without delay."

Art. 23/3 reads: "Where such an alien has not left voluntarily or where it may be assumed that he will not so leave or if his immediate departure is required for reasons of national security or public policy, he must be expelled

20 21

Ibid. European Commission, COM (2001) 672 final dated 15.11.2001, p. 7.

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from the territory of the Contracting Party within which he has been arrested as laid down in the national law of that Contracting Party."

It is important to note, at this point of the analysis, that the restrictive immigration policy relies essentially on a system of deterrence. To this end, mobile units patrol the borders with the purpose of detecting illegal immigrants. Within the territory, the police are expected to check the immigration status of migrants. Detected illegal immigrants are punished and expelled; thus, the threat intended to discourage illegal immigrants is maintained and made credible.22 Refugee law stands in direct opposition to concerns of immigration and border control. Art.31 of the 1951 Refugee Convention reads: "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorisation, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence."

Art.33 of the 1951 Refugee Convention reads: "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."

As previously clarified, punishment and refoulement (expulsion) are the means used to discourage illegal immigration. However, the 1951 Refugee Convention prohibits exercising both measures against refugees. The problem is that refugee law is perceived to obstruct the efficient implementation of immigration control. The need to distinguish between refugees and non-refugees before implementing any measures intended to serve as deterrents leads to the perception that refugee law is an obstacle to efficient immigration control insofar as it weakens the deterrence effects of the immigration control system. If an illegal immigrant hopes to be recognised as a refugee, this hope can be said to render the deterrence policy ineffective. This perception leads critics to demand a restrictive practice and interpretation of refugee law.23 It is this perception that has caused the present crisis of refugee law. These critical thoughts have taken root in a fertile political environment. Politicians have proven to be eager to cash in on populist sentiments based on envy, chauvinism and resentment. In practice, the Member States of the EU have shown in a series of political 22

Furthermore, states try to obstruct immigrants from arriving in their countries. Carrier sanctions and visa requirements fall into this category. For an articulate example of this reasoning, see L. J. Dietrich, 'United States Asylum Policy', in: D. A. Martin (ed.), The New Asylum Seekers: Refugee Law in the 1980s (Martinus Nijhoff, Dordrecht 1988), p.67 -73.

The Purpose of Refugee Law

7

decisions that refugee law enjoys a much lower political priority than immigration control. In particular, procedural measures have been introduced to strengthen immigration control even where refugees might be the possible victims. Appeals to negative status determination decisions in the first instance do not enjoy a suspensive effect any longer. Claimants for asylum are kept in custody and treated as illegal immigrants until their refugee status is established. Strict visa requirements and carrier sanctions have been introduced which create legal obstacles both for refugees and illegal immigrants alike.24 This process threatens to undermine refugee law. The conclusions that can be drawn from the above argument are clear: it is advisable to avoid a conflict with policies of immigration control and search for an argument which can demonstrate that refugee law is compatible, even complementary, with a policy of strict immigration control. For this a convincing argument is needed to demonstrate why it is useful and desirable to receive refugees even though the policy goal of immigration control is firmly established and entrenched in political reality. It is time to reflect on a robust rationale for refugee law. Looking at explanations of existing international refugee law by legal scholars, these "theories" of refugee law will be analysed with the aim of finding an explanation that satisfies the purpose at hand and persuasively justifies a generous refugee practice in the context of a strict policy of immigration control. What is sought here is a principle which trumps a restrictive immigration policy. 1.3

DIPLOMATIC PROTECTION

Typically, refugees lack diplomatic protection. This insight could be used to explain the importance of refugee law. According to Paul Weis, refugees are internationally unprotected persons in the sense that they do not enjoy the benefits of diplomatic protection because they are persecuted by the State. According to Weis, refugee law is designed to remedy precisely this problem: the lack of diplomatic protection because of persecution. Thus, the lack of diplomatic protection is an essential condition for the status of refugee.25 Weis explains developments in international law that have benefited stateless persons and refugees. He describes stateless persons and refugees as unprotected persons: stateless persons are de iure unprotected persons and refugees are de facto unprotected

25

See A. Cruz, Carrier Sanctions in Five Community States: Incomptibilities Between International Civil Aviation and Human Rights Obligation (Kirchliches Komitee fur Migranten in Europa, 1991). P. Weis, 'Legal Aspects of the Convention of 2! 28 July 1951 relating to the Status of Refugees' (1953), 30 British Yearbook of International Law, p. 480.

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persons.26 Stateless persons lack diplomatic protection because they lack a nationality and nationality is a condition for exercising diplomatic protection. Refugees lack diplomatic protection because of persecution. This argument rests on two assumptions27: (1) The lack of diplomatic protection distinguishes refugees from others; (2) The lack of diplomatic protection is important enough to justify refugee law.

1.3.1 The Nature of Diplomatic Protection It must be borne in mind that diplomatic protection is more a right of the State than a right of the national. International diplomatic protection is a right of the State, accorded to it by customary international law, to intervene on behalf of its own nationals, if their rights are violated by another State, in order to obtain redress.28 In the words of the Permanent Court of International Justice in the Mavrommatis Palestine Concessions case: "It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights-its right to ensure, in the person of its subjects, respect for the rules of 29 international law."

In international law, individuals do not have the right, vis-a-vis their state of nationality, to claim diplomatic protection on their behalf. The State has full discretion in exercising it. Municipal law might grant a right to claim diplomatic protection. However, very few countries grant such a right.30 As diplomatic protection is a right of the State, individuals cannot renounce it legally. The right persists as long as a person remains a national. 31 The point is that refugees remain nationals of the country of origin. The country of origin can, therefore, continue

26

P. Weis, The International Status of Refugees and Stateless Persons' (1965), 83 Clunet, p.6. We have to concede that Weis bases his position firmly on the position taken by the Ad Hoc Committee which drafted the provision: "The Committee agreed that for the purposes of this sub-paragraph and subparagraph A 2 (c), and therefore for the draft Convention as a whole, "unable" refers primarily to stateless refugees but includes also refugees possessing a nationality who are refused passports or other protection by their own Government. "Unwilling" refers to refugees who refuse to accept the protection of the government of their nationality" (UNDoc E/1618, p.39). However, we should note that the Ad Hoc Committee did not specify which sort of protection it is referring to. The commentary of the Ad-hoc Committee does not necessarily support the theory of Weis. see P. Weis, The concept of the refugee in international law'(1960), 4 Journal du droit international, p. 974. 28 Paul Weis, Nationality and Statelessness in International Law (Sijthoff, Alphen aan den Rijn 1979), p. 33. 29 Mavrommatis Palestine Concessions case, [1924] P.C.I.J., Series A, No.2, at 12. Weis, Nationality and Statelessness, n.28 above, p. 34. 31 Ibid., p. 38.

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to exercise its diplomatic protection 32. In the final analysis, the lack of diplomatic protection is due to a discretionary decision of the government and not because of any legal impediment to exercising diplomatic protection on behalf of its refugees. If diplomatic protection were a crucial criterion for determining refugee status, the State of origin might grant diplomatic protection against the will of the refugee and, thus, frustrate the flight of the refugee.33 Seen from another point of view, it seems unclear how the lack of diplomatic protection is linked to persecution. It is true that a refugee might not enjoy diplomatic protection because the same State, that is meant to protect him, is actually persecuting him. But this is unlikely to be the only scenario. A refugee might not benefit from any protection because his fate in the State of refuge is of no interest to his State of origin. It is difficult to imagine any interest that the state of origin would have in the correct and fair application of the Convention. Another scenario could be that a refugee is unlikely to enjoy diplomatic protection because the state of origin is embarrassed that it could not preclude the conditions which made fleeing necessary. This reason weighs all the more heavily because refugees, arguably, can constitute a burden for the State of refuge. It would pose a strain on bilateral relations if the State of origin which, because of its own weakness, could not prevent the flight of the refugee, exercised diplomatic protection against the State of refuge. This would be tantamount to an affront. All these reasons operate to the detriment of the refugee and make relevant diplomatic protection by the State of origin unlikely. In the final analysis, the right of diplomatic protection is a privilege of states on the international plane, the lack of which does not adequately relate to the problem of refugees. Since diplomatic protection is not a right of the individual, it seems peculiar that the lack of such protection should provide grounds for refugee status.34 The point is that whereas one may admit that stateless persons lack diplomatic protection, refugees do not lack it in the same sense. Refugees who do not enjoy diplomatic protection de facto share this fate with a myriad of persons whose governments choose not to protect them for one reason or another.

32

33 34

The 1967 European Convention on Consular Functions has gone some way, to protecting refugees against the exercise of consular functions by consuls who are nationals of the refugees country of origin: ETS No. 61, Art.47. However, there is no rule of general international law which bars the state of origin from exercising diplomatic protection over the refugee; see Goodwin-Gill, Refugee in International Law, n. 3 above, p.230, FN 129. A. Grahl-Madsen, The Status of Refugees in International Law, Vol.1 (Sijthoff, Leyden 1966), p. 98. Grahl-Madsen points to the fact that the factual lack of diplomatic protection might have various reasons which bear no resemblance whatsoever with the reasons which give rise to refugee status. Ibid, p. 97.

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1.3.2

The Value of Diplomatic Protection

The institution of diplomatic protection for an individual is of dubious importance. The importance of the lack of diplomatic protection in explaining refugee law might have been plausible in the 1960s. During that time, the lack of binding and effective human rights standards, made diplomatic protection of the country of origin seem the only form of protection for a foreigner. Since then, however, the picture has changed drastically. Today, we assess the importance of the institution of diplomatic protection differently. Rosalyn Higgins writes: "Not only does this seem right as a matter of analysis, but the individual has in fact been badly served by the nationality-of-claims rule. All too often his national government is not at all interested in pursuing his claim (or in rectifying the harm allegedly done to itself, to rephrase it in the classic formula). It has broader interests to concern itself with, and the instigation of litigation may not fit with these broader considerations. The individual is thus left with no effective remedy: international law does not oblige his government to protect him, and his national law will almost certainly not allow any judicial review of a government's failure to act on his behalf."35

Refugees might typically lack diplomatic protection. However, it must be pointed out that this sort of protection is, in any case, very inefficient and reserved only for a privileged few. The lack of diplomatic protection, thus, does not distinguish a refugee from other migrants adequately enough to justify refugee law. Nowadays, an individual benefits from a better instrument of international protection: human rights. In 1966, the General Assembly approved the International Covenant on Civil and Political Rights (hereafter referred to as ICCPR) and the International Covenant on Economic, Social and Cultural Rights (hereafter referred to as ICESCR). In 1976, these covenants entered into force. As of May 1997, the ICCPR comprised 136 State parties; the ICESCR, 135 parties36. 90 of the 136 parties to the ICCPR were also parties to the First Optional Protocol, which provides for individual communications of human rights violations to the Human Rights Committee.37 Since 1980, the UN Commission on Human Rights has developed "thematic mechanisms" to respond to the plight of individuals or groups in countries that the Commission on Human Rights does not otherwise deal with. These include special rapporteurs on various issues. In their quest for effectiveness, the rapporteurs developed certain techniques that include: requests to governments for information on specific cases; an urgent action procedure involving a request that a government take immediate action to rectify or clarify a case; and on-site visits for a more intensive and enduring investigation of a series of cases.38 The legal

35

36 37 38

R. Higgins, Problems & Process - International Law and How we use it (Clarendon Press, Oxford 1994), p. 53. Steiner and Alston, Human Rights in Context, n. 16 above, p. 117. Ibid, p. 535. Ibid, p. 420-421.

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position of individuals has generally greatly improved. Protocol No. 11 to the European Convention on Human Rights signed on 11 May 1994 created a permanent European Court of Human Rights that individuals can access directly.39 This means that it has been recognised that individuals do not only have rights under international law40, but can also enforce these rights against states. In sum, the lack of diplomatic protection in the country of refuge does not offer a useful approach to the understanding of the refugee problem today. Refugees do not suffer from the lack of diplomatic protection because they can invoke the protection of human rights. The Convention should be interpreted dynamically and take account of these changed circumstances. It can, thus, be concluded that Weis's theory is outdated. Ultimately, the lack of diplomatic protection does not sufficiently explain what is at stake under present conditions of immigration pressure. The lack of diplomatic protection can only become a problem for an alien living in a foreign state (e.g. after the individual has been allowed to enter and stay). The problem of living without diplomatic protection is, therefore, logically dependent on the more fundamental problem of entry and stay. If States were to enforce a total immigration stop, the lack of diplomatic protection would not pose a great problem as most migrants would not be allowed entry and stay. Weis's theory implicitly presupposes the central issue of immigration. Weis simply takes the permission to stay for granted.41 According to his theory, the refugee cannot be expected to live in the country of refuge as a common alien due to the lack of diplomatic protection. He, thus, stands in need of a substitute for this lack of diplomatic protection refugee status. However, living in a foreign country without diplomatic protection is logically dependent on the permission to stay. A plausible explanation becomes necessary to explain why States should permit a person to enter and stay even though they stand committed to a policy of immigration control. Diplomatic protection cannot help in this endeavour.

4

41

See A. Drzemczewski and J. Meyer-Ladewig, 'Principal Characteristics of the New ECHR Control Mechanism as established by Protocoll No.l 1 signed on 11 May 1994' (1994), 15 Human Rights Law Journal 3, p. 81ff. R. Higgins, Problems & Process, n. 35 above, p.53; "The position of the individual as a subject of international law has often been obscured by the failure to observe the distinction between the recognition, in an international instrument of rights ensuring the benefit of the individual and the enforceability of these rights at his instance. The fact that the beneficiary of rights is not authorized to take independent steps in his own name to enforce them does not signify that he is not a subject of the law or that the rights in question are vested exclusively in the agency which possesses the capacity to enforce them. Thus in relation to the current view that the rights of the alien within foreign territory are the rights of his state and not his own, the correct way of stating the legal position is not that the state asserts its own exclusive right but that it enforces, in substance the right of the individual who, as the law now stands, is incapable of asserting it in the international sphere." Sir Hersch Lauterpacht, International Law (1950), p. 27. This is understandable because immigration was not a serious problem in Europe in the 1960s when Paul Weis wrote.

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Rethinking Refugee Law

1.4

DE FACTO STATELESSNESS

According to Atle Grahl-Madsen, a refugee is characterised by a rupture of the ties between an individual and the authorities of his home country: "it is characteristic of the situation of political refugees that the normal mutual bond of trust, loyalty, protection, and assistance between an individual and the government of his home country has been broken (or simply does not exist) in their case."42 Thus, refugees can be considered as a special group of stateless persons. Their relationship with their State is severed. As previously stated, stateless persons are de iure stateless, refugees are de facto stateless. According to Grahl-Madsen, statelessness is the key to understanding a refugee. Whereas a stateless person is stateless due to the lack of any nationality, the refugee is stateless because he cannot benefit effectively from his nationality.43 Nationality entails many benefits. Most benefits can be enjoyed only in the State of nationality. However, some benefits of nationality also serve a national abroad: these include consular services, diplomatic protection, assistance, etc. It is the latter benefits benefits of nationality abroad - that Grahl-Madsen focuses on, as the fact of being abroad is a requirement of the 1951 Refugee Convention. (Art.l A (2): "...is outside the country of his nationality..."). Thus, Grahl-Madsen does not explain the distinction between an average national at home and a refugee. He starts from the premise that the fact of being abroad is an essential precondition of the refugee, and goes on to explain the distinction between an average foreigner living abroad and a refugee. The basic assumption of Grahl-Madsen must be noted when assessing his theory. The ties between the refugee and the State of origin have been broken. A refugee is a national of a country, but he cannot benefit effectively from the benefits his nationality bestows on him. As the bond is broken, he is in need of international assistance. It follows from this position that if the refugee does, as a matter of fact, voluntarily benefit from his nationality, he does not qualify for refugee status because the mutual bond of trust etc. can be said to persist. Thus, Grahl-Madsen advocates the cessation of refugee status if the refugee voluntarily enjoys the benefits of the consular services of the country of origin.44 This premise leads to very sophisticated arguments about whether an application for the renewal of a passport is fully voluntary or not.45

42

44

45

Grahl-Madsen, The Status of Refugees, n. 33 above, p.79. A person may be considered to avail himself of the protection of his country in some way or other in order to reap some benefit due to the nationals of that country but not to other persons. Ibid., p. 255. See Art.l C (1) of the 1951 Refugee Convention: The Convention ceases to apply if "[h]e has voluntarily reavailed himself of the protection of the country of his nationality". Grahl-Madsen, The Status of Refugees, n. 33 above, p. 256.

The Purpose of Refugee Law

13

The emphasis on the presumed rupture of ties between an individual and the State of origin, thus, leads to questionable results in practice. Its logic entails that an individual, who applies for and receives a minor benefit because of nationality, does not qualify as a refugee46. It follows that the rule of non-refoulement is not applicable47. It can, thus, be concluded that the individual can be deported to a State where his life and freedom would be threatened. If the premise of Grahl-Madsen is acceptable, the acceptance of a minor benefit is a good reason for exposing a person to a threat of life or freedom. A strange conclusion indeed. The point is that the benefit has nothing whatsoever to do with the danger. The minor benefit the refugee receives is an irrelevant detail in relation to the real issue - danger of life and freedom.

1.4.1 The Difference between Stateless Persons and Refugees According to Grahl-Madsen, refugees strongly resemble stateless persons. Historical evidence backs this viewpoint. Historically, the problems of statelessness and of refugees were thought to be similar. A Russian refugee, for example, was defined in 1926 to include "any person of Russian origin who does not enjoy or who no longer enjoys the protection of the Government of the Union of Socialist Soviet Republics and who has not acquired another nationality"48. Article 1 of the 1938 Convention expresses a similar approach: "(a) Persons possessing or having possessed German nationality and not possessing any other nationality who are proved not to enjoy, in law or fact, the protection of the German Government. (b) Stateless persons not covered by previous conventions or agreements who have left German territory after being established therein and who are proved not to enjoy, in law or in fact, the protection of the German government."

The idea behind Grahl-Madsen's approach seems to be that the Convention should be interpreted in line with historical precedents: refugees are de facto stateless persons. A rupture between an individual and the State of origin underlies refugee law. However, this rationale does not fit well with the 1951 Convention. The Convention speaks of "well-founded fear of being persecuted" as the essential criterion of refugee

46 47

49

Ibid, p. 255. Art.33 of the 1951 Refugee Convention: "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..."[emphasis added]. Arrangement relating to the issue of identity certificates to Russian and Armenian refugees, 12 May 1926: 84 LNTS 2004. 1938 Convention concerning the status of refugees coming from Germany: 191 LNTS no.4461.

14

Rethinking Refugee Law

status. In fact, the Convention differs from historical precedents50 because it does not deal expressly with the problem of statelessness.51 This is can be deduced from the drafting history. During its first session in January and February 1950 the Ad-hoc Committee debated the question whether the Convention should deal with the problem of statelessness at all. The UK, in particular, wanted a convention which also covered stateless persons. The British draft provided that the Convention would apply to "unprotected persons"52, a term which was inspired by the doctrine of Paul Weis.53 This term encompasses stateless persons (2/a) and persons who do not enjoy the protection of the country of origin (2/b). However, the Ad-hoc Committee decided that the Convention should not cover stateless persons as such, but only refugees.54 Hence, the British draft was defeated. A different framework dealt with the problem of statelessness - the Convention relating to the Status of Stateless Persons of 28 September 195455. As remarked during the drafting history, "[t]he applicability of the draft convention should...be limited to refugees. It should not be based upon a confusion between the humanitarian problems of refugees and the primarily legal problems of stateless persons, which should be dealt with by a body of legal experts, but should not be included in the proposed convention."56 The Convention makes a sharp distinction between stateless persons and refugees. It expressly acknowledges the possibility of stateless refugees in Art. 1 A(2)57 and, thus, cautions that the problem underlying refugee law is different from

50

51

52

56

It should be noted that the Institut de Droit International at its session at Brussels on 24 April 1936 adopted the Resolutions on the "Statut juridique des apatrides et des refugies". The resolutions treated the problem of refugees and stateless persons together. Raestad said in 1934: "Tous les refugies sont des apatrides (statslese) au sens leplus large du terme, etant donne quepar "refugie", on entend uniquement les individus nejouissant de la protection d'aucun Etat, qu'ils possedent ou non la nationalite d'un Etat. Un individu ne peut donc, au sens technique du terme, devenir "refugie" du seul fait qu'il a quitte son pays par mecontentement ou par crainte, si les autorites de ce pays continuent de lui preter assistance a I'stranger, comme a d'autres ressortissants" A. Raestad, "Les apatrides ("statslose") et leur condition legale" (1935) 6 ASJG, p. 57. "In the first phase of international refugee law, formal statelessness was a condition precedent to recognition as a refugee. The expanded focus of refugee law in the years leading up to the Second World War recognized de facto lack of protection as an equally compelling basis for international protection, but continued to protect stateless persons adrift in the international system as refugees. The divorce of de iure statelessness and refugee status came only during the drafting of the 1951 Convention." J. C. Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991), p. 60. UNDoc E/AC.32/L.2, at 1, January 17, 1950. M. Marugg, Volkerrechtliche Definitionen des Ausdruckes "Fluichtling" (Helbing & Lichtenhahn, Basel, 1990), p. 130. Ibid 360 UNTS 117; Art.l (Definition of the term "Stateless Person"): "1. For the purpose of this Convention, the term "stateless person" means a person who is not considered as a national by any State under the operation of its law." Statement of Mr. Henkin of the USA, UNDoc E/AC.32/SR.2 at 6, January 26, 1950. "...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 Purpose of Refugee Law

15

the problem underlying statelessness. Otherwise, the concept of a stateless refugee would be tautologous. The problem of statelessness differs from the problem of refugees. The Convention Relating to the Status of Stateless Persons signed in 1960 implicitly acknowledges this. It differs in key issues from the 1951 Refugee Convention. Stateless persons do not benefit from the protection against penalties for illegal entry and stay guaranteed to refugees under article 31 of the Refugee Convention. Moreover, stateless persons do not regularly face persecution in their countries of habitual residence. If they did, they would be considered refugees, according to the 1951 Refugee Convention. Consequently, statelessness does not raise the issue of non-refoulement. The point is that in contrast to stateless persons refugees are forced migrants. The problems refugee law needs to tackle are those of migration. Statelessness does not raise similar issues related to migration. Once refugees have been allowed entry and stay (e.g. after receiving asylum), their situation can be strongly compared with stateless persons. Both are "condemned" to live on foreign soil. Both have no meaningful way of avoiding this. They both raise similar social and legal issues, such as social welfare and personal status. However, these similarities only disguise the fundamental differences. The main concern of a refugee is to find a safe haven. This concern is what distinguishes a refugee from stateless persons.58 It is obvious that a lot more divides refugees and stateless persons than the account of Grahl-Madsen suggests.

1.4.2 Other Objections Grahl-Madsen criticises Weis's doctrine as leading to an unnecessary pre-occupation with ambivalent symptoms59. Unfortunately, this criticism could be re-directed to the author himself. In what sense do the benefits of nationality relate to the real issue? I have argued that the real issue of refugee law is non-refoulement60 and non-punishment. The theory of refugees as stateless persons does not explain or relate to either. It is difficult to

58

59

According to James Hathaway, the distinction the drafters of the Convention drew between stateless persons and refugees is expression of their own ideological partisanship. No substantiation of the purportedly lesser claim of stateless persons was offered. However, he does not argue sufficiently, in what sense the problem of statelessness ressembles the problem of refugee admission. J. C. Hathaway, 'A reconsideration of the underlying premise of refugee law' (1990), 31 Harvard Int. Law Journal 1, p. 145 et seq. "...the preoccupation with the refugee's lack of protection leads to concerning oneself with ambivalent symptoms rather than with the real issue" Grahl-Madsen, The Status of Refugees, n. 33 above, pp. 98-99. See G. Stenberg, Non-Expulsion and Non-Refoulement (Iustus Forlag, Uppsala 1989), p. 173. "While some question was raised as to the possibility of objection to article 28, the Committee felt strongly that the principle here expressed was fundamental and that it should not be impaired." UNDoc E/AC.32/L.43, p.10 and E/1850, para.30. According to Art.42 of the 1951 Refugee Convention, no reservation is permitted concerning the principle of non-refoulement enshrined in Art.33 of the Convention.

16

Rethinking Refugee Law

maintain that refugees are not sent back because they do not benefit from their nationality. It is equally unconvincing to claim that refugees are not punished for their illegal entry or stay because they are de facto stateless. The benefits of nationality or lack thereof are completely unrelated to these decisions. The premise behind Grahl-Madsen's theory is doubtful. He asserts that the problem underlying refugee law is a rupture between the State of origin and the individual. According to Grahl-Madsen, this thought is mirrored in the 1951 Refugee Convention persecution. The underlying assumption is that persecution means persecution by the State. This assumption is doubtful in the light of recent historical experience (e.g. the genocide in Bosnia). Recent experience shows us that the State has lost the monopoly of persecution. Modern weaponry and equipment can turn any organised and trained group into a formidable force of persecution.61 This is no longer an exclusive privilege of States.62 Thus, refugee law no longer implies a rupture between the State of origin and the individual, since the State is no longer the sole possible persecutor. Ultimately, the lack of statelessness perceived by Grahl-Madsen (e.g. the benefits of nationality abroad) is of little significance. Granted, it might be a problem that an individual cannot benefit from consular activities of his State of origin. However, if this were the real problem underlying refugee law, it would be acceptable to dismiss refugee law in the light of increased immigration pressure. The point to be noted here is that the lack of consular protection can only become a problem after a refugee has been allowed entry and stay. Thus, the problem of de facto statelessness cannot be a valid argument for this entry and stay. In sum, refugee law, when understood as an instrument to solve the problem of de facto statelessness, cannot provide any satisfactory answer to the original question. An argument must be sought to justify refugee law in the face of increased immigration pressure. De facto statelessness in the sense of Grahl-Madsen cannot help in this endeavour. However, de facto statelessness can be a useful starting point from another perspective. From this other perspective, attention is drawn to the benefits of nationality

The international arms trade has become a buyer's market due to the excess manufacturing capacity in defence industry and significant stocks of excess weapons build up during the Cold War. The intense competition for sales has eroded the convention that arms are to be transferred only to governments. The arms trade is characterised by an increased trend toward commercial sales rather than government-togovemment transactions, see J. Spear, 'Arms Limitations, Confidence-Building Measures, and Internal Conflict', in: Michael E. Brown (ed.), The International Dimensions of Internal Conflict, MIT Press, Cambridge, Massachusetts 1996, pp. 377-410. This is most clear in Colombia and Peru, where insurgent groups have transformed themselves into major crime syndicates in the drugs business while maintaining radical political agendas. These groups, for example, are clearly capable of persecution, see M. W. Chernick, 'Peacemaking and Violence in Latin America", in: Michael E. Brown (ed.), The International Dimensions of Internal Conflict, MIT Press, Cambridge, Massachusetts 1996, p. 268.

The Purpose of Refugee Law

17

which an individual enjoys within the State of origin. In a certain sense, a refugee is indeed stateless. One of the most important rights of a national is the human right of residence in his country of nationality.63 A refugee is stateless in the sense that he cannot benefit from this right because he has been forced to leave. This perspective leads to the following issue: under which conditions can we say that an individual loses the right of residence? This question will be dealt with later. 1.5

HUMAN RIGHTS

Human rights law offers a promising starting point for understanding refugee law. Refugee law could be seen as a subsidiary system of human rights protection.64 The theory runs as follows: even though international law provides for the protection of an individual in the International Bill of Rights, the international human rights system is notoriously ineffective in many ways. The purpose of refugee law could be to serve as a backup system.65 Individuals, whose human rights cannot be guaranteed in their country of origin, benefit from protection abroad, granted through refugee law. Thus, it is arguable that refugee law should become operative only on the premise that a human rights violation has taken place. This account surely deserves merit. It has been said that refugees are the product of the negation of society. Thus, refugee law arguably is dependent on a theory of a minimally legitimate State.66 International human rights norms offer themselves as standards of the minimally legitimate state. According to James Hathaway, the minimal legitimation of states needs to be assessed in accordance with the International Bill of Rights. The Refugee Convention 1951 is

65

66

See R. Plender, International Migration Law (2nd edn, Martinus Nijhoff Publishers, Dordrecht, 1988), p. 133. See V. Lieber, Die neuere Entwicklung des Asylrechts im Volkerrecht und Staatsrecht unter besonderer Berticksichtigung der schweizerischen Asylpraxis (Zurich 1973), p.30. Following this reasoning, German doctrine concludes that asylum cannot constitute a human right in substance. Asylum is a subsidiary instrument to ensure human rights, but not a human right in substance. Ernst Reichel, Das staatliche Asylrecht "im Rahmen des Volkerrechts" (Duncker & Humblot, Berlin 1987), p.57 with further references. This reasoning is mysterious. It is not clear what the purpose of such an argumentation would be other than an intention to downplay the subjective right of the individual to obtain asylum. "In exchange for their allegiance, citizens can minimally expect that their government will guarantee physical security, vital subsistence, and liberty of political participation and physical movement. No reasonable person would be satisfied with less. Beneath this threshold the social compact has no meaning. Thus, refugees must be persons whose home state has failed to secure their basic needs. There is no justification for granting refugee status to individuals who so not suffer from the absence of one or more of these needs. Nor is there reason for denying refugee status to those who do. Moreover, because all of these needs are equally essential for survival, the violation of each constitutes an equally valid claim to refugeehood." A. E. Shacknove, 'Who Is a Refugee?1 (1985), 95 Ethics, p.281.

18

Rethinking Refugee Law

inspired by this thought when it defines a refugee as someone who is unable or unwilling to avail himself of the protection of the country of nationality. "...[T]he intention of the drafters was not to protect persons against any and all forms of even serious harm, but was rather to restrict refugee recognition to situations in which there was a risk of a type of injury that would be inconsistent with the basic duty of protection owed by a state to its own population. As a holistic reading of the refugee definition demonstrates, the drafters were not concerned to respond to certain forms of harm per se, but were rather motivated to intervene only where the maltreatment anticipated was demonstrative of a breakdown of national protection." 67

The nature of a State's duty of protection is set out in the International Bill of Rights.68 Thus, when the 1951 Refugee Convention speaks of persecution, it means human rights violation.

1.5.1

Preamble

The Preamble of the 1951 Refugee Convention seems to validate the above account. It reads: "Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination"

A closer look reveals that the preamble merely states the following idea: the purpose of the 1951 Refugee Convention is to ensure that refugees can exercise their fundamental rights and freedoms in the country of refuge. Based on this understanding, the Convention appears as an instrument to guarantee fundamental human rights to a specific group of people: refugees. This understanding is backed up by the second paragraph of the Preamble69. The Convention acknowledges that refugees are a vulnerable group. The Preamble merely restates the principle that human rights apply to all humans and therefore also to

67

Hathaway, Law of Refugee Status, n. 51 above, p. 104. "More than any other gauge, the International Bill of Rights is essential to an understanding of the minimum duty owed by a state to its nationals" Ibid, p. 106. "Reference to the International Bill of Rights in deciding whether or not a state has failed to provide basic protection in relation to core, universally recognized values is moreover consistent with the Convention's own Preamble and General Assembly Resolution 2399 (XXIII)."Ibid,p.l07. "Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to assure refugees the widest possible exercise of these fundamental rights and freedoms".

The Purpose of Refugee Law

19

vulnerable refugees. The Preamble does not state that a human rights violation is a condition for refugee status. Hence, the text of the Preamble does not provide a strong argument for the assumption that refugee law is premised on human rights law. The drafting history contains indications to the effect that the drafters of the Convention did not wish to focus too strongly on human rights in refugee law.70 The French delegation tried to link refugee status to violations of fundamental human rights and to the general human right to seek asylum71. In response, Israel's delegate, for example, argued that a broad definition of a refugee based on human rights principles would be "too abstract and too far removed from reality, and departed from the tradition of the United Nations...The French draft in particular wished to some extent to scrap what might be called the legal precedents in the matter and to take the Universal Declaration of Human Rights as the sole point of departure. Members of the United Nations could hardly be asked to discard the experience already acquired by that Organisation72 in exchange for abstract formulas."73 One could concede that this is a weak argument against the view that human rights law underlies refugee law, and also point to the evolution of international human rights law74 and its present prestigious status - something the drafters probably did not even dream about. Thus, it could be concluded that the value of human rights for the understanding of refugee law should be assessed on its merits and not on outdated, historical views of obscure diplomats. This thought leads to the following questions: Is a conceptual fusion between human rights law and refugee law useful and desirable? If yes, what are the drawbacks and how can it be improved?

1.5.2

Human Rights Violation of the State of Origin?

It was once argued that international human rights law delineates the conditions of the minimally legitimate state. If this debate is taken one step further, this premise that refugee law relates to the minimally legitimate state could be questioned. Joseph H.

71

72 73

74

Hathaway, Law of Refugee Status, n. 51 above, p. 146. Statement by Mr. Rain of France, U.N.ESCOR Ad Hoc Committee on Statelessness and Related Problems, Summary Record of Third Meeting, UNDoc E/AC.32/SR.3 (1950), at 7, 15. Reference to the IRO. Statement of Mr. Robinson of Israel, U.N.ESCOR Ad Hoc Committee on Statelessness and Related Problems, UNDoc E/AC.32/SR.5 (1950), at 9; accord Mr. Larsen of Denmark, U.N.ESCOR Ad Hoc Committee on Statelessness and Related Problems, U.N.Doc. E/AC.32/SR.6 (1950), at 4. For a good account, see B. Simma, 'International Human Rights and General International Law: A Comparative Analysis', in: Collected Courses of the Academy of European Law, Vol. 4, Book 2, (Martinus Nijhoff Publishers, The Hague 1993), p. 153-236.

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Rethinking Refugee Law

Carens offers an interesting argument.75 What is at stake in refugee law is the legitimacy of the state system - "the organisation of the world so that all the inhabited land is divided among sovereign states who possess exclusive authority over the territory they govern including control of entry and exit"76. Refugees pose a problem by challenging the legitimacy of this system. The higher the number of refugees, the stronger the challenge to the legitimacy of the State as a social institution, because the more plausible it becomes that some alternative arrangement would be better for refugees. It is this challenge to the legitimacy of the state system that underlies the duty of States of refuge to assist refugees. Ultimately, the legitimacy of the State of refuge depends on the legitimacy of the state system as a whole. The duty derives from the claims of the State of refuge to exercise power legitimately in a world divided into states. States are obliged to assist refugees in order to justify their own legitimacy in a world made up of States. Caren's argument could be presented as follows: 1.Premise: refugees pose a problem for the legitimacy of the state system 2.Premise: the legitimacy of every state depends on the legitimacy of the state system Conclusion: refugees pose a problem for the legitimacy of the state of refuge! How does the legitimacy of a successful State depend on the legitimacy of the State system as a whole? A State is legitimate if it fulfils its purpose to its citizens' satisfaction. Carens argues though that this is not sufficient. The legitimacy of a State depends on the legitimacy of the State system as a whole. His whole argument that states are obliged to assist refugees, in order to defend their own legitimacy, rests on this premise. However, this argument is not convincing as illustrated by the following example: it is perfectly conceivable that Sweden is legitimate, whereas Uganda under Idi Amin was not. As a matter of fact, the legitimacy crisis of Uganda under Idi Amin did not affect Sweden's legitimacy. It is not clear either whether Sweden's legitimacy depends on that of Uganda. Thus, one could agree with the proposition that refugees pose a problem for the State system. However, it cannot be concluded that states are obliged to assist refugees simply due to their own claim to legitimacy. Hence, it is not plausible that refugee law revolves around the question of the minimal legitimacy of the State of origin.

76

J. H. Carens, 'States and Refugees: A Normative Analysis', in: H. Adelman (ed.), Refugee Policy - Canada and the United States (York Lanes Press, Toronto 1991), p. 18 - 29. Ibid.

The Purpose of Refugee Law

21

1.5.3 Human Rights and Distorted Refugee Recognition In international politics, human rights law is often perceived as blaming the state accused of violating human rights.77 The concept of refugees as human rights victims seems to blame the State of origin. This result is negative for the purpose of refugee law. The Preamble of the 1951 Refugee Convention expresses "the wish that all States, recognising the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States". The theory of persecution as a human rights violation leads specifically to that effect. The recognition of refugee status will be understood to automatically contain an implicit criticism of the State of origin. The concept of a refugee as a human rights victim is likely to lead to a distortion of refugee recognition. Refugees from friendly countries will be effectively barred from recognition because the State of refuge is likely to desire avoiding embarrassment to its friends.78 Historically, the effect of blaming another State was probably a key factor influencing refugee practice during the Cold War. Refugee law could be used to stigmatise the Communist regimes.79 This rationale appears neither acceptable in the light of the professed neutrality of refugee law, nor practical in the present world order. The main purpose of the Convention is to offer a safe haven from persecution. This offer is not limited to nationals of a hostile state or to members of a certain race. Refugee law purports to be neutral. It is deplorable that political considerations influence actual refugee recognition procedures.80 The treatment of refugees from El Salvador by the US

78

79

80

According to Rosalynn Higgins, the major operational importance of designating a right a human right is the "opprobrium" that attaches to it. R. Higgins, Problems and Process, n. 35 above, p. 105. See P. Hyndman, 'Refugees under International Law with a Reference to the Concept of Asylum', (1986) 60 Australian Law Journal, p. 149. See G. Coles, 'Approaching the Refugee Problem Today', in: G. Loescher and L. Monahan (eds.), Refugees and International Relations (Oxford University Press, Oxford 1989), pp.274-75 . "Another constant is ideology. Refugees have a relatively easy time receiving protection in a country whose government is ideologically opposed to the government of the country they have fled. Refugees find it difficult or impossible to seek and receive protection in a country whose government is ideologically in harmony with the government of the country fled. Refugees vote with their feet. Enemies welcome the vote. Allies reject it. A refugee outflow discredits the government of the country fled. Those opposed to the government welcome the implied criticism, and the weakening of the enemy government through loss of manpower. Those supporting the government of the country fled try to shut their eyes and ears to this implied criticism of a refugee outflow. They try to pretend the outflow does not exist, by denying protection." D. Matas, 'A History of the Politics of Refugee Protection', in: K. E. Mahoney and P. Mahoney (eds.), Human Rights in the Twenty-first Century - A Global Challenge (Dordrecht, Kluwer Academic Publishers 1993),p.620.

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Rethinking Refugee Law

in 1981 is a case in point.81 If persecution has the same connotation as human rights violation by a State, such a finding is in itself likely to cause tension between States. This potential for tension is likely to distort actual refugee recognition because refugees from friendly states are less likely to be recognised than refugees from hostile states. Refugees are likely to become victims of international politics. It must be kept in mind that the main function of refugee law is to provide for a safe haven for desperate individuals. It can perform its function properly only if it is neutral. It is this neutrality that is questioned by the effect of blame associated with human rights law. Admittedly, it is difficult to avoid the element of blame altogether. The fact that a certain State is the source of refugees, will, to a certain degree, always be a cause for embarrassment. The strategic goal should be to minimize this effect. The human rights theory of refugee protection is not likely to achieve this goal by focusing on the illegality of the State of origin's actions. This effect might be somewhat tempered by focusing on the fate of the individual and his individual options82 rather than on the legitimacy of the State of origin and on the legality of its actions under international human rights law.

1.5.4

Human Rights versus Restrictive Immigration Policy

The human rights approach leads to practical problems, which arise due to the proliferation of human rights. If all human rights violations were to give rise to refugee status, it is clear that the rich Western States will not be able to pursue their restrictive immigration policy.83 Thus, the need arises to emphasize some human rights violations and disregard others. In effect, it might be necessary to rank human rights violations. However, a hierarchy of human rights will prove difficult in light of the professed unity and interdependence of international human rights law. Some criteria for ranking international human rights law can already be found: customary law and ius cogens.84

82 0-5

84

"Despite the depictions of human rights abuses in El Salvador in 1981, during that fiscal year the United States did not admit any refugees from El Salvador and granted asylum to only two Salvadorans." M. Gibney and M. Stohl, 'Human Rights and U.S. Refugee Policy', in: M. Gibney, Open Borders? Closed Societies? The Ethical and Political Issues (Greenwood Press, Westport, Connecticut 1988), p. 153. See section 1.7 below. Accord Stenberg, Non-Expulsion and Non-Refoulement, n. 60 above, p.66. See T. V. Boven, 'Distinguishing Criteria of Human Rights', in: K. Vasak and P. Alston (eds.), The International Dimensions of Human Rights, Vol.1, (Westport, CT: Greenwood Press; Paris: United Nations Educational, Scietific and Cultural Organization, 1982), p.43 et seq.

The Purpose of Refugee Law

23

However, these criteria are notoriously obscure and highly contested. There seems to be no accepted method by which higher rights can be identified and their content determined.85 Besides, it is not clear what theoretical links exist between the criteria that constitute customary or peremptory human rights law and refugee law. The following question remains open: why should human rights, based solely on treaty law, be outside the scope of refugee law? It could be pointed out that only customary or peremptory human rights are important enough to warrant refugee status. However, this argument is not convincing enough. The fact that a certain right is not accepted by all cultures or states does not imply that the right is of no importance. It could be stated that universal recognition of a right is an indication that it is indeed very important. But the opposite is not necessarily true. The observation that a right is not universally recognised does not lead directly to the conclusion that the right in question is less important for that reason alone. The crucial question remains unanswered: How can a hierarchy of human rights be established for the purpose of enabling a fair asylum practice which takes into account the dominant restrictive attitude towards immigration in the rich West?

1.5.5 Human Rights, Altruism and Self-Interest The idea behind the human rights approach to the understanding of refugee law can be characterised as follows: The international community has pledged to protect human rights. Portraying refugees as human rights victims could serve as an argument to urge States to protect refugees. It follows that the international community is committed to protect refugees by granting them a right of provisional stay abroad (non-refoulement) as a means of protecting their human rights. This account emphasises that refugee protection indeed follows from human rights protection. This account surely merits consideration. It urges States to protect refugees and mobilises the ideological power of the human rights movement for this purpose. It is this feature which has led to the involvement of human rights NGOs, like Amnesty International, on refugee issues. Interestingly, Hathaway's account focuses on the human rights violations of the State of origin. Thus, the relationship between the State of origin and an individual dominates the discussion about refugee law. The State of refuge appears as a back-up protector of human rights victims who manage to escape. It is portrayed as the benefactor.

Cf. T. Meron, 'On a Hierarchy of International Human Rights', (1986) 80 American Journal of International Law, p.21.

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This approach strongly differs, for example, from the approach that the European Court of Human Rights has adopted. In a fascinating series of cases, the European Court of Human Rights established the relevance of key human rights obligations of the State of refuge (like Art.3 of the European Human Rights Convention) for the issue of nonrefoulement. It is now firmly established, that human rights law obliges the State of refuge not to deport an individual where there is a real risk of torture or degrading treatment.86 Interestingly, these obligations of the State of refuge arise independently of the issue of whether the State of origin violated any human rights or not87 which is clearly in stark contrast to Hathaway's theory. In essence, Hathaway presents refugee law as an expression of institutionalised altruism for the benefit of human rights victims. This is clear when Hathaway, inspired by Shacknove, argues that refugees are special because they live outside the boundaries of their country.88 In his view, the difference between internally displaced persons and refugees is that international assistance does not have to respect the sovereignty of the State of origin in order to obtain access to a subset of human rights victims: refugees. The international community has access to refugees.89 Access becomes a relevant consideration only when the wish to be helped is presupposed. The implicit line of thought can be characterised as follows: refugees are human rights victims; hence, assistance should be extended to them because of the strong belief in human rights and the shared conviction to protect them. This line of thought can motivate States to be altruistic. In this sense, the approach is undeniably valuable. Nevertheless, the emotional dispute concerning the reception of refugees and asylum seekers makes it clear that altruism alone simply does not suffice as a basis of refugee law. Refugee law is in a crisis precisely because altruism seems to have reached its limits.90 In a series of political decisions, based on popular support, the States of Western Europe have demonstrated that the perceived increased immigration pressure has had an adverse effect on altruism towards refugees. The painful, yet undeniable, fact of donor

86

87 8 89

See Soering Case, European Court, 7 July 1989, Series A No. 161. In a recent case, the Court affirmed that this duty is independent of the question if "the expellee faces a real risk of being exposed to forms of treatment proscribed by Article 3 which are intentionally inflicted by public authorities in receiving State or by non-State bodies when the public authorities in that State are unable to afford him appropriate protection". Thus, the real risk of dying of Aids under most distressing circumstances without adequate medical treatment, shelter, family support was deemed to violate Article 3. see Case of D. v. The United Kingdom (146/1996/767/964), European Court of Human Rights, Strasbourg, 2 May 1997. see section 5.2.3 below. Hathaway, Law of Refugee Status, n. 51 above, p.31 . Shacknove, Who is a Refugee, n. 66 above, p.277. At this point of the discussion, I would like to stress that the practice of receiving refugees is surely based on altruism as well. The crucial question is: Is altruism the sole basis of refugee practice? It is important for the future of refugee law to stress that, besides altruism, there are other reasons, which explain our practice. We need to point to other reasons of refugee reception to avoid donor fatigue.

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25

fatigue cannot be ignored. The central problem of refugee protection today is the general lack of motivation by wealthy and powerful states. It would therefore be useful to present arguments which extend beyond altruism. This consideration leads us to the weakest point of the human rights theory - the lack of selfinterest as a motivating force. Recent experience in Europe shows that chauvinistic and racist politicians have managed to mobilise quite a significant part of the population with their negative propaganda about refugees. What answer can refugee law theorists provide? Can the human rights theory of refugee protection explain any self-interest in refugee protection? Human rights law, applied to a State's own citizens serves the interest of states by, for example, minimizing the risk of violent resistance and protest and by keeping the level of dissatisfaction with the government low and manageable. An equivalent risk, however, does not exist as far as refugees are concerned. Thus, States cannot be said to serve their self-interest (defined in a ethnocentric manner by political parties of the right wing) by protecting refugees from human rights violations. It is difficult to envisage how the consideration that human rights are at stake could involve the self-interest of States. By its exclusive focus on altruism as a basis of refugee law, the human rights theory risks being classified as being Utopian in the eyes of a significant part of the population of the rich West.91 In the long term, refugee law can only survive if States - and under democratic conditions, their populations - understand the element of self-interest that refugee law serves. Refugee law, understood as purely altruistic, runs the risk of being discharged as an overly expensive moral decoration. A strong theory of refugee law needs to explain the element of self-interest inherent in it if the donor fatigue phenomenon is to be countered. In practice, the human rights theory which emphasises on obligation and altruism leads to the consequence of States merely trying to evade their obligations towards refugees. While commitment to refugee law features strongly in speeches of respectable politicians, carrier sanctions and visa barriers operate as convenient and viable strategies to obstruct the acceptance of refugees. Any hope of changing this status quo is only possible if convincing emphasis is laid on the element of self-interest of States in an effective system of refugee law in order to bring about a change of practice. The human rights approach to refugee protection definitively deserves credit. It is valuable, noble and ideologically powerful. But it copes poorly with two major challenges: (i) the Western States' lack of motivation to receive refugees; and (ii) the need

Cf. Martti Koskenniemi, From Apology to Utopia - The Structure of International Legal Argument (Finish Lawyers' Publishing Company, Helsinki 1989).

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Rethinking Refugee Law

to create a hierarchy of human rights for the purposes of refugee law in order to take account of the restrictive immigration policy of the rich States of the West. 1.6

MUTUAL AID

According to Michael Walzer92, the distinctiveness of cultures and groups depends on closure. Otherwise, there could be no traditional communities, that could be considered historically stable, ongoing associations of men and women with a special commitment to one another and a special sense of their common life. In his view, this is the ultimate justification for immigration control. However, foreigners might be entitled to hospitality, assistance, and good will according to the principle of mutual aid. According to the principle of mutual aid, positive assistance is required: if (1) it is urgently needed; and (2) the risks and costs of giving it are relatively low. If these conditions are met, mutual aid extends across political, cultural, religious, and linguistic frontiers. According to Walzer, refugees, in particular, qualify for assistance under this heading. Is refugee law an expression of hospitality, assistance and good will? At first glance, it might seem so. However, there is more to refugee law. Unfortunately, refugees will continue to arrive independent of whether any hospitality, assistance or good will is extended to them or not. To keep refugees away, one would need to fight them off. As already stated, immigration control is performed by enforcing certain measures, especially deportation and punishment for illegal immigration. The crucial question, therefore, is not whether refugees should be helped, even though nobody would deny the importance of this question, but rather, whether the arrival of refugees should be combated by means of immigration control. The principle of mutual aid is not satisfactorily related to the fundamental problem of refugee law. The 1951 Refugee Convention contains rules which concern the operation of immigration control. Art.31 states that refugees should not be punished for illegal entry and stay. Art.33 says that refugees should not be deported to a country where their life or freedom would be threatened. Thus, actual refugee law could be said to be more than just assistance and good will according to the principle of mutual aid. It concerns the degree of fairness of immigration control measures. Unfortunately, the theory of Michael Walzer does not address this issue.

92

Michael Walzer, Spheres of Justice - A Defence of Pluralism and Equality, Martin Robertson, Oxford 1983, pp.31-51.

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27

1.7 NECESSITY: THE LIMITS OF DETERRENCE 1.7.1

Learning from Mistakes

Otto Kimminich makes some very instructive theoretical observations about refugee law.93 His starting point is the reflection that alienage is inherent to the concept of refugee. A refugee has left the territory of the State he lived in before. Hence refugee law concerns migration. However, not every travel abroad can be termed as fleeing. Kimminich contends that it is essential to state precisely the distinguishing criterion between refugees and other migrants (tourists, migrant workers, business travellers, etc.). Precisely this criterion distinguishes the refugee from "normal people" and characterises him. The task then is to find a clear and practical criterion. Kimminich turns his attention to the criterion of voluntary or involuntary migration.94 He is aware that this apparently easy distinction entails many problems. He notes that many "normal" migrants probably would have preferred to stay in their home country. Their departure is not completely voluntary. On the other hand, even completely forced expulsion can coincide with the wishes of targeted individuals.95 As an example, Kimminich mentions the expulsion of the German population from the Sudetenland after the Second World War. The expulsion was forced: guarded assembly camp with barbed wire, transport in closed wagons. However, Kimminich claims that most victims were happy to leave. For them, the expulsion was an escape from oppression. These examples, according to Kimminich, show that the distinction between voluntary and involuntary is vague.96 According to Kimminich, it is, therefore, justifiable to neglect this distinction for the understanding of the concept of refugee.97

93

94 95 96

Otto Kimminich, Der Internationale Rechtsstatus des Fluchtlings (Karl Heymanns Verlag, K6ln 1962), p. 17 et seq. Ibid., p.21 etseq. Ibid.,p.24. Kimminich does not correctly distinguish between voluntary and involuntary action. It is necessary to clarify the underlying assumptions. What does voluntary action mean? Anthony Kenny provides an illuminating account. There are two main classes of concepts of freedom. "Some analyses of freedom lay most emphasis on the notion of choice or desire, others lay most emphasis on the notion of ability or power. Some define freewill as the capacity to do what one wants, others define it as the power of alternative action. On the one account, a person does something freely if he does it because he wants to; on the other account he does something freely if he does it though it is in his power not to do it". A. Kenny, Freewill and responsibility (Routledge & Kegan Paul, London 1978), p.25. We could speak of the negative and positive concept of freedom. Kenny then expresses a thought that is essential for our current purposes. "Each of the concepts of freedom is inseparably linked with the other. The type of power to do otherwise which is necessary for freedom is the power to do otherwise if one wants to. As determinists have rightly insisted against libertarians, mere

28

Rethinking Refugee Law

Kimminich incorrectly presupposes that the voluntary/involuntary dichotomy is the crucial issue. But Kimminich is right when he affirms that the voluntary-involuntary dichotomy is problematic in order to understand refugee law. A refugee, in most cases, can opt to stay in the country of origin and suffer persecution. In this sense, the flight becomes voluntary because it is the outcome of a choice. However, the voluntary character of the flight is not the issue. The law contains a concept that concerns voluntary action under dire circumstances - action under conditions of necessity.98 The point is that even if the flight was voluntary, the refugee could not realistically have chosen otherwise. Thus, it would be unfair to expose the refugee to adverse threats posed by the immigration control system. The flight might be considered voluntary, but necessity nevertheless warrants a legal differentiation."

1.7.2

The Concept of Necessity

Ultimately, refugee law revolves around the question as to whether an individual could realistically have chosen to stay at home or somewhere else where the possibility posed itself. In other words, a refugee could100 not have chosen to stay away. The distinction

Q0

99

indeterminacy or randomness such as that of elementary particles in quantum jumps does not amount to anything like freewill. So liberty of indifference, rightly understood, involves liberty of spontaneity. On the other hand, it cannot be true that one has acted because one wanted to unless one had in some measure and at some point the ability to act otherwise than one did. So that liberty of spontaneity is impossible for someone who does not enjoy liberty of indifference. Liberty of spontaneity and liberty of indifference are two sides of the same guinea." Ibid, p.26 These insights remove much of the confusions Kimminich reflects on. Preference does not preclude freewill. The migrant workers who would have preferred to work in their country if the situation there would be better, cannot be said to lack freewill. They can opt to stay in their respective country if they would wish to do so in the present situation. The reasons of their actual choice are irrelevant for the assertion that they did chose. The expelled Germans from the Sudetenland cannot be said to have acted voluntarily. They had no option to stay if they would have wished so. That means that the expulsion is involuntary even though the result is desired. Freedom does not refer to the actual but to the potential desire. The lack of options and therefore the lack of possibilities for the realisation of various and potentially differing desires constitutes an involuntary action. Kimminch, Der Internationale Rechtsstatus des Fluchtlings, n. 93 above, p.25. Criminal jurisprudence affords some illumination to the meaning of this concept. "It is proper that any rational system of law should take fully into account the standards of honest and reasonable men. By those standards it is fair that actions and reactions may be tested. If then someone is really threatened with death or serious injury unless he does what he is told to do is the law to pay no heed to the miserable, agonising plight of such a person? For the law to understand not only how the timid but also the stalwart may in a moment of crisis behave is not to make the law weak but to make it just." D.P.P. v. Lynch [1975] A.C. 653 (British House of Lords), per Lord Morris. See H.L. A. Hart, Punishment and Responsibility (Clarendon Press, Oxford 1968), p. 13f. Anthony Kenny distinguishes four different senses of "can". Firstly, there are natural powers such as the power of water to freeze. Since this meaning refers to the powers of nature, necessary conditions are at the same time sufficient conditions. "Secondly, there are abilities, such as a human being's ability to swim, paint, or do long division. These differ from natural powers: no matter how propitious the external conditions, an agent may on occasion refrain from exercising an ability because he does not wish to exercise

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29

between a normal immigrant and a refugee is ultimately a degree of choice. Whereas an immigrant can choose to stay away even if this means enduring hardship, a refugee cannot realistically choose to do so. This difference in the level of choice is captured by the concept of necessity. At this point of the discussion, attention is directed to an area of law that has shaped the concept of necessity significantly - criminal law. Only after the concept of necessity in the ambit of criminal law is understood, can one hope to benefit from these insights within the context of the immigration regime. Criminal jurisprudence offers essential insights into the concept of necessity. The basic question for criminal law is the following: Should a person, confronted by a choice between committing a criminal offence or allowing what he considers to be far worse to occur, have any defence, if he chooses to commit the criminal offence. Criminal jurisprudence approaches this question very carefully: "The principles may be summarised thus: first, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is pressure on the accused's will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called "duress of circumstances". Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionally in order to avoid a threat of death or serious injury. Thirdly, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; secondly, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established."

At this point of the discussion, one might object that criminal law and immigration have nothing in common. Putting both together is actually dangerous because it could lead to a criminalisation of immigrants. I completely share this concern. This precisely is the importance of an analogy with criminal law. Crime control is morally justified in a sense in which immigration control is not. Nobody seriously doubts the moral legitimacy of crime control. On the other hand, many doubt the moral legitimacy of immigration control.102 It is this state of affairs which strengthens any argument derived from criminal law. If an argument is considered sufficiently convincing to exempt an action from

101

it. Third, there are opportunities for the exercise of abilities. I may have the ability to swim, but in another sense of "can" I cannot swim if there is no water around. Fourth, there is the overall sense of "can" in which it indicates the presence of both ability and opportunity. This is the kind of power which is under discussion when freewill is said to involve the power to do otherwise." A. Kenny, Freewill and Responsibility, n. 96 above, pp.29-30. R. v. Martin [1989] 1 All E.R. 652 (C.A.) per Simon Brown J. For an example of the contrasting viewpoint see M. Gibney (ed.), Open Borders, n. 81 above.

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punishment in criminal law, it has even more strength in the immigration debate. It would be odd if immigration rules should prevail where even criminal rules give way. Since necessity is recognised in criminal law as a general defence, it is even more convincing to argue that necessity should lead to an exemption from deterrence measures of the immigration control system, like deportation and punishment. The concept of necessity points to cases in which the actor's freedom of choice is severely restricted. The action is morally involuntary. Moral involuntariness must be distinguished from physical involuntariness. In the case of physical involuntariness, such as when a stronger person puts a knife in A's hand and forces it into B's chest, one tends to deny that there was an act on behalf of A at all. A could not have acted otherwise even if he had wanted to do so. This is not the kind of case necessity deals with. Necessity points to cases when it is understandable that, for example, A testifies falsely for fear of being killed. It is obvious that A could have chosen death instead of violating the law. However, this cannot be expected. Likewise, a refugee cannot be expected to stay and suffer persecution. The concept of necessity points to reasons of action which are so strong and overwhelming that no other course of action could be reasonably expected from the individual.

1.7.3 The Principle of Necessity in the Drafting History of the 1951 Refugee Convention An analysis of the drafting history of the Convention reveals that the concept of necessity was considered. Quod erat demonstrandum. The Drafting Committee proposed the following text: "Article 26 Refugees not lawfully admitted 1. The Contracting States shall not impose penalties, on account of his illegal entry or presence, on a refugee who enters or who is present in their territory without authorisation, and who presents himself without delay to the authorities and shows good cause for his illegal entry or presence."103

During the Conference of Plenipotentiaries, the French representative expressed the opinion that "while his delegation felt it right to exempt from any punishment refugees coming directly from their country of origin, it did not see any justification for granting them similar exemption in respect of their subsequent movements."104 The French delegation thus proposed an amendment. Contrasting views were presented.

103 104

UNDoc E/AC.32/SR.40, pp. 4-9. UNDoc A/Conf.2/SR.16, pp.11-16.

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31

"The President, speaking as representative of Denmark, and referring to the French amendment, said that the Conference should bear in mind the importance of the words 'shows good cause1 in the last line of the paragraph. A Hungarian refugee living in Germany, for example, might, without actually being persecuted, enter Denmark illegally; it was reasonable to expect that the Danish authorities would not inflict penalties on him for such illegal entry, provided he could show good cause for it."105

The UNHCR raised certain concerns. Two categories of refugees deserve special attention: first, refugees who arrive in a safe country of asylum, but later face the threat of persecution again; secondly, refugees who were not fortunate enough to find a country of asylum. "The High Commissioner for Refugees thought the text of the Article as modified by the French amendment might give rise to difficulties. There were two main categories of refugees. First, refugees who, after leaving a country of persecution, arrived in another country where they possibly might remain unmolested for a certain period, but would then again be in danger of persecution...Secondly, there were refugees who fled from a country of persecution direct to a country of asylum; they might not, however, be granted the right to settle there, even though the country in question was a Contracting State. Thus a refugee might suffer if he did not arrive in a country which displayed a generous attitude. Such refugees might possibly be covered if the words "and shows good cause" were amended to read "and shows other good cause". The fact that a refugee had fled from a country of persecution in itself constituted good cause for his entry or presence in the country of asylum."[emphasis added]

The UK representative stated that: "[a]ccording to paragraph 1 [of proposed Art.26], States must refrain from imposing penalties on refugees who presented themselves without delay to the authorities and showed good cause for their entry or presence. The fact that a refugee was fleeing from persecution was already a good cause. But, as the High Commissioner had pointed out, there might be cases where a refugee could show good cause even though he had not fled direct from a country where his life or freedom was threatened."[emphasis added]107

The French delegate objected: "To admit that a refugee who had settled temporarily in a reception country was free to enter another, would be tantamount to grant him a right of immigration which might be exercised for reasons of mere personal convenience."108 Later, the High Commissioner suggested that paragraph 1 be amended to read: " 1. The Contracting States shall not impose penalties on account of his illegal entry or presence, on a refugee who enters or is present in their territory without authorization, provided he presents himself without delay to the authorities and shows good cause for believing that his illegal entry or presence is due to the fact that his life or freedom would otherwise be threatened.[emphasis added]"

In other words, fear of a threat of life or freedom was to count as good cause. "Good cause" appears as a formulation of the principle of necessity.

105 106

ibid. ibid.

107

Ibid. Ibid.

108

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Rethinking Refugee Law

The revised version of the French amendment of paragraph 1 was finally agreed to and adopted as Art.31/1 of the 1951 Refugee Convention. It reads: "The High Contracting Parties shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence, [emphasis added]"

As has been demonstrated, the discussion was significantly centred on the concern of the French delegation over immigration control. Refugees should not be able to move on from a territory of first asylum of their own free decision. Equally, the view was expressed that "good cause" on behalf of the refugee might necessitate an exception to this concern over immigration control. It was expressly stated that fear of persecution in itself was a good cause. However, the view was expressed, both by the UNHCR and the UK representative, that other reasons might count as "good cause" as well. The UNHCR amendment clearly expresses the contention that "good cause" is just another expression for the concept of necessity ("...and shows good cause for believing that his illegal entry or presence is due to the fact that his life or freedom would otherwise be threatened"). Ultimately, this extension was rejected. The final version expresses the view that only a refugee coming directly from a territory, due to fear of persecution, could claim good cause for the illegal entry or presence. In other words, only fear of persecution was accepted as a manifestation of necessity.

1.7.3.1

Necessity as a General Principle of Law

Art. 38/1 of the Statute of the International Court of Justice (ICJ), the text which determines the law to be applied by the Court reads: "The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations."

The drafting history of Art. 38 of the Statute of the International Court of Justice (ICJ) gives us many valuable insights. It appears that the motivation behind the Committee of Jurists' decision to add general principles of law to the two groups of international

The Purpose of Refugee Law

33

conventions and international custom was its concern over the incompleteness of the latter two "sources" for the purposes of deciding all the cases that would be submitted for judicial decision. Lacunae which might be left open by the strict application of treaty obligations or customary law would have led the Court to state a non liquet. It was thought that the new judicial institution would be able to resort, after considering the conventional and customary norms, to norms of objective justice as found in the consciousness of civilised nations.109 What does the term "general principle of international law" mean? There is general agreement that recognition by civilized nations today means recognition by States. There is further agreement that a principle originating in national law must not be observed by all States in the world. There must be evidence that it is applied by a representative majority which includes "the main forms of civilisation and of the principal legal systems of the world" (see ICJ Statute, Art.9). Comparative law research plays an important role here in uncovering these principles and determining them as precisely as possible.110 The process of finding and applying such principles is not mechanical. These principles are derived from general recognition in internal legal orders but, in international law, are not applied in that capacity. Starting from a common denominator, the jurist has the creative task of maintaining the essential features of the general principle while at the same time finding the appropriate solution for the international legal problem. The norm which he applies is a norm of international law, taken from principles observed in domestic legal orders and adapted by him to the particular needs of the international legal problem.111 Witnin the context of immigration control, as observed earlier, illegal immigration is, in essence, controlled by an array of deterrent measures. In effect, the legal system threatens to punish and deport every illegal immigrant. This system faces a problem; the immigration regime must take into account human action under conditions of necessity. The principle of necessity simply focuses on human frailty. It says that respect for the law must not be demanded in cases where the individual may face severe harm in doing so. The law should avoid creating a vicious dilemma for the individual. Disregard for the principle renders the law blind and inhuman. The principle is an important safeguard to guard the rules of law from becoming a cruel and pitiless archaic order. Necessity has left its traces in international jurisprudence. The International Tribunal for the War Crimes in the Former Yugoslavia in The Hague passed judgement against

109

110 111

H. Mosler, 'General Principles of Law', in: R. Bemhardt (ed.), Encyclopedia of Public International Law, Instalment 7 (1984), 95. Ibid. Ibid.

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Drazen Erdemovic on 29 November 1996.112 The accused argued both an obligation to obey the orders of his military superior and physical and moral duress stemming from fear of losing his own life and that of his wife and child. The Trial Chamber examined these defences. In paragraphs 16 and 17 of the judgement, the Trial Chamber treated the defence of duress or necessity. "16. In respect of the physical and moral duress accompanied by the order from a military superior (sometimes referred to as "extreme necessity") which has been argued in this case, the Statute provides no guidance. At most, the Secretary-General refers to duress in paragraph 57 of his report and seems moreover to regard it as a mitigating circumstance, [emphasis added] 17. A review by the United Nations War Crimes Commission of the post-World War Two international military case-law, as reproduced in the 1996 report of the International Law Commission (Supplement No. 10 (A/51/10) p.93), shows that the post-World War Two military tribunals of nine nations considered the issue of duress as constituting a complete defence. After an analysis of some 2.000 decisions by these military tribunals, the United Nations Commission cited three features which were always present and which it laid down as essential conditions for duress to be accepted as a defence for a violation of international humanitarian law: (i) the act charged was done to avoid an immediate danger both serious and irreparable; (ii) there was no adequate means of escape; (iii) the remedy was not disproportionate to the evil (rapport de la Commission du droit international, 1996,p.96)"113

The Trial Chamber accepts that the statute does not provide for any defence of necessity or duress. The argument of the Trial Chamber clearly states that necessity is a general principle of law applied by international tribunals. Comparative law research reveals that justifications and excuses, like necessity or duress, show striking similarities even among very different systems of criminal law. "The same general principles can indeed be found in most systems, even if they are articulated differently in statutory law or in practice. For example, the rules on self-defence, necessity, duress and superior orders have found their way into almost every criminal law system."114 Comparative research confirmed by the practice of international war crimes tribunals indicates that necessity is a general principle of law.

112

113 114

International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, Case No. IT-96-22-T. Ibid., The Prosecutor versus Drazen Erdemovic - Sentencing Statement, p.7, paragraphs 16 and 17. C. Van den Wyngaert, 'The Political Offence Exception to Extradition: How to plug the "Terrorist1 Loophole" without departing from fundamental Human Rights' (1989) 19 Israel Yearbook on Human Rights, p.302; see generally A. Eser and G.P. Fletcher, Justification and Excuse: Comparative Perspectives, 2 Vols. (1987).

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Why is this insight that necessity is a general principle of law important? It is important for interpreting the 1951 Geneva Convention. According to Art.31 of the Vienna Convention on the Law of Treaties, the terms of a treaty shall be interpreted in their context. According to Art.32 (c) of the same convention the relevant context comprises any relevant rules of international law applicable in the relations between the parties. The general principle of necessity is such a rule applicable in the relations between the parties. According to the ICJ in the Namibia Advisory Opinion, "an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation".115 Thus, the interpretation of the 1951 Refugee Convention with reference to the principle of necessity accommodates the need to interpret the Convention dynamically if obsolescence is to be avoided. General principles in international law are usually vague. These principles can be considered only within the framework of a national legal culture, whereas international law needs to accommodate vastly different national traditions. Thus, general principles in international law will be "thin" in the sense that they only contain the minimal common denominator. General principles become "thick" only in the national context, within the context of a rich legal culture - generally understood and shared practices, customs or purposes. Within the context of refugee law, it is pertinent to point out that the 1951 Refugee Convention provides for decentralised decision making. States possess the power to make important decisions themselves.116 The Convention does not provide for an international body competent to make authoritative interpretations. Refugee law takes concrete shape before national authorities and courts and is thus essentially a domestic issue117. The battle for refugee law can be won or lost at the national level. Thus, international law can only play the role of directing attention to the applicable legal principles and leaving the concrete shape of the principle to national law. In the interest of clarity and precision, attention is focused on the question of what shape "thin" principles of international law acquire in the national context. Thus, a step is taken from the "thin" principles of international law to the "thick" principles of national law in order to arrive at precise solutions. International law can serve to guide this quest, but only national law can provide a rich and precise understanding of the refugee concept.

115

ICJ Reports (1971) p. 31. As Goodwin-Gill notes, the procedural steps States take to protect refugees are in the realms of sovereign discretion. The outer limits of that discretion are confined by the principle of effectiveness of obligations. G. S.Goodwin-Gill, Refugee in International Law, n. 3 above, p.324 et seq. 117 See section 5.1.2.2 below.

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1.7.3.2

Rethinking Refugee Law

The Origins of the Principle of Necessity

The principle of necessity dates back to ancient Roman law. The lex Aquilia of 286 BC contains rules of the law of liabilities. In classical Roman jurisprudence, the principle of necessity appears as a reason precluding wrongfulness.118 The problem, which occupied the minds of classical Roman jurists, is as follows: Should a man, who destroys the house of a neighbour in order to protect his own house from fire, be liable? Servius is of the opinion that the man should not be held liable if the fire would have destroyed the neighbour's house anyway.119 Celsus however disapproves of this reasoning. According to him, a man who destroys his neighbour's house due to a compelling situation ("magna vi cogente"), even if only due to reasonable fear ("iusto metu"), should not be liable.120 Servius analyses the situation ex post. But, according to Celsus, the appropriate perspective is ex ante. The conditions, in which a reasonable person needs to decide in order to protect himself, are decisive ("nec enim iniuria hoc fecit, qui se tueri voluit, cum alias non posset").121 The concept of necessity's ancient origins emphasises the fundamental and universally valid character of the principle. Necessity is a powerful legal principle which permeates the whole body of law. In modern law, necessity, as a concept, is firmly established in criminal law, contract law and tort law. It is adaptable to very different issues and its long

MB 119

See H. Hausmaninger, Das Schadenersatzrecht der lex Aquilia (Manz Verlag, Vienna 1987), p. 21. Digestes 43,24,7,4: "Est et alia exceptio, de qua Celsus dubitat, an sit obicienda: ut puta si incendii arcendi causa vicini aedes intercidi et quod vi aut clam mecum agatur aut damni iniuria. Gallus enim dubitat, an excipi oporteret: "quod incendii defendendi causa factum non sit". Servius autem ait, si id magistratus fecisset, dandam esse, privato non esse idem concedendum: si tamen quid vi aut clam factum sit neque ignis usque eo pervenisset, simpli litem aestimandam: si pervenisset, absolvi eum oportere, idem ait esse, si damni iniuria actumforet, quoniam nullam iniuriam aut damnum dare videtur aeque perituris aedibus. quod si nullo incendio id feceris, deinde postea incendium ortum fuerit, non idem erit decendum, quia non ex post facto, sed ex praesenti statu, damnum factum sit necne, aestimari oportere Labeo ait." Digestes D 9,2,49,1: "Quod dicitur damnum iniuria datum Aquilia persequi, sic erit accepiendum, ut videatur damnum iniuria datum, quod cum damno iniuriam attulerit: nisi magna vi cogente fuerit factum, ut Celsus scribit circa eum, qui incendii arcendi gratia vicinas aedes intercidit: nam hic scribit cessare legis Aquiliae actionem: iusto enim metu ductus, ne ad se ignis perveniret, vicinas aedes intercidit: et sive pervenit ignis sive ante extinctus est, existimat legis Aquiliae actionem cessare." Digestes 47, 9, 3, 7: "Quod ait praetor de damno dato, ita demum locum habet, si dolo damnum datum sit: nam si dolus malus absit, cessat edictum. quemadmodum ergo procedit, quod Labeo scribit, si defendendi mei causa vicini aedificium orto incendio dissipaverim, et meo nomine etfamiliae iudicium in me dandum? cum enim defendendarum mearum aedium causa fecerim, utique dolo careo. puto igitur non esse verum, quod Labeo scribit. an tamen lege Aquilia agi cum hoc possit? et non puto agendum: nec enim iniuria hoc fecit, qui se tueri voluit, cum alias non posset, et ita Celsus scribit."

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history confirms this assertion. In a certain sense, refugee law is just another application of the principle of necessity - this time within the sphere of immigration.

1.7.4 Refugees and Immigration Control An integral part of the concept of a refugee is the crossing of an international border. A refugee is defined in the Convention as someone who "owing to well-founded fear...is outside the country of his nationality". As a result, every refugee is a migrant by definition. The difference between an internally displaced person and a refugee touches upon precisely this issue; an internally displaced person has not crossed an international border. A refugee, on the other hand, is an international migrant. As already said earlier, immigration control is enforced by deterrence. An illegal immigrant is threatened with deportation and punishment. In the case of refugees, deportation to the country of origin is experienced as the worst possible punishment as it entails exposure to persecution.122 Every system of deterrence presupposes at least a minimal level of autonomy of individuals. Autonomy means that the individual makes choices and acts accordingly. A system of deterrence operates by providing a reason for the individual to choose his course of action in order to avoid the threat of the legal system. The immigration system operates likewise. The system does not make sense if the individual has no choice in a specific situation. The threat of punishment and deportation by the immigration system coincides with the fear of persecution at home and results in a dilemma123. The question of necessity is whether the actor has a fair opportunity to choose between abiding by the law or breaking it. Where the circumstances have overwhelmed his capacity of choice, or where his freedom of choice is too restricted, one cannot hold him

2

This was known to the drafters. At the first session of the Ad Hoc Committee the Observer of the Agudas Israel World Organization "emphasized the dire consequences of expulsion for any refugee. Return to the country of origin meant almost certain death, and as was pointed out in the Secretariat's comment to paragraph 1, there was little likelihood that any country would admit a refugee once he had been expelled from another country. Thus, he would have no alternative but to go into hiding." UNDoc E/AC.32/SR.29, pp.9-12. This account is supported by historical data. The 1934 Report of the Nansen Office for Refugees stresses that dealing with expulsions had "become one of the major daily preoccupations of the Office". It went on to say that "the desperate situation of some of these refugees, and the sacrifices they are prepared to make to remedy it, may be gauged from the fact that many of them have travelled hundreds of kilometres on foot to Geneva in the hope that the Office might be able to extricate them from their distressing dilemmas." [emphasis added] League of Nations, Nansen International Office for Refugees, "Report of the Governing Body" (16 August 1932), [A.12.1934], 4, cited in: C. Skran, Refugees in Interwar Europe, n. 11 above, p.140 et seq.

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blameworthy and responsible. So the basis of necessity is that the individual does not have an effective opportunity to make a choice as to whether to break the law or not. Of course, in a physical sense, the actor makes a choice; he is not an involuntary actor in the same sense as a sleep-walker. However, because external pressure is so great, it has, in a moral sense, "forced" the actor to break the law. Excuse for necessity is motivated by compassion for persons caught in a maelstrom of circumstance. The underlying sentiment is that anyone would act in a similar manner, if forced to flee in order to avoid loss of life or other serious harm. If one can identify oneself with the refugee and his situation, one would feel compassionate and understand his need to immigrate. Ultimately, the concept of necessity is rooted in an idea that concerns the efficacy of any system of legal rules - the instrumental conception of the Rule of Law.124 Lon Fuller presents the illuminating parable of King Rex, who failed to make law by ignoring the eight elements125 of the Rule of Law.126 Even though Fuller does not explicitly mention necessity, necessity refers in my view to one of the elements he mentions, namely conformability. Conformability means that the addressees of legal rules must be able to conform their behaviour to the rules if they are expected to follow them. This ability to conform to the rules excludes not only physical impossibility but also moral impossibility in the sense of necessity. "To command what cannot be done is not to make law; it is to unmake law, for a command that cannot be obeyed serves no end but confusion, fear and chaos".127 Necessity is also grounded in fairness. Constructing a thought experiment a la Rawls128, imagine a person (A) who is non-altruistic. A is behind a "veil of ignorance", not knowing whether he is to be born as a refugee or not. A's rational choice will lead him to choose an immigration law where necessity is recognised as a basis of exemption. Otherwise, A would risk being punished and deported for illegal immigration even though he fled due to fear of persecution. Could A rationally choose a law that strictly bars immigration under all circumstances? He could, but he runs the risk of being punished and sent back. Thus, even if A is against immigration and subscribes to the idea that everybody should stay where he is, he would act rationally to choose an exception for the case of necessity. A would thus minimize the risk of suffering immigration control

124 125

126 127 128

See M. J. Radin, 'Reconsidering the Rule of Law', (1989) 69 Boston University Law Review 4, p.784 et seq. Generality, Notice or Publicity, Prospectivity, Clarity, Non-contradictoriness, Conformability, Stability, Congruence. L. Fuller, The Morality of Law (Yale University Press, New Haven, 1964), p.33ff. Ibid., p.37. See J. Rawls, A Theory of Justice (Oxford University Press, Oxford, 1973).

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measures without any viable alternative.129 Thus, the principle of necessity protects the liberty of the actor. Ultimately, the principle of necessity is linked to the first principle of justice that Rawls elaborates130. Stanley Hoffmann argues that justice a la Rawls is only applicable to issues of domestic justice and not to those of international justice for two reasons: (1) Issues of domestic justice are premised on practices of democratic participation which subscribe to the principle of equality (both formal and substantive equality), whereas there is only formal, not substantive equality amongst States at the international level; and (2) Issues of domestic justice are premised on the power of the State to enforce a just solution whereas at the international level such a structure of enforcement does not exist and selfhelp is the rule.131 Refugee law is not wholly an issue of international justice. It involves two phases: (a) the refugee escapes from the State of origin; (b) the refugee arrives in the State of refuge. These two phases of flight can be distinguished from each other because the State of origin and the State of refuge are not necessarily neighbouring countries. There might be States along the path connecting the two States. Thus, the two phases do not merge and can be distinguished. Whereas phase (a) is an issue of international justice, phase (b) is an issue of domestic justice. States try to obstruct access to their territory by carrier sanctions and visa requirements.132 This problem relates to phase 1. It is difficult to envisage how a just solution could be enforced on States at the international level. However, it seems possible to influence such practices from within, by democratic means. Once the refugee has arrived in the territory of the State of refuge, it is possible to enforce justice by its courts. National courts play a crucial role in refugee law and have time and time again shown determination and commitment to the benefit of refugees. However, in the long run, it is once again the democratic process that plays the decisive role. Justice promises to exert an influential role in the democratic debate on refugee policy. The question whether human action is morally involuntary or not underlies refugee law. However, there is no need to "reinvent the wheel". Criminal law offers a wellestablished national legal tradition which can be used for greater clarity and precision of

129

130

131

Nigel Walker constructs a parallel argument for the excuse of necessity in criminal law. See N. Walker, Why Punish? - Theories of punishment reassessed (Oxford University Press, Oxford 1991), p.93f. "First Principle: Each person is to have an equal right to the most extensive total system of equal basic liberties compatible with a similar system of liberty for all." J. Rawls, A Theory of Justice, n. 128 above, p.302. S. Hoffmann, Duties beyond Borders (Syracuse University Press, Syracuse 1981), p.2 et seq. See G. Goodwin-Gill, Refugee in International Law, n. 3 above, p.252.

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refugee law. Thus, in Germany, for example, refugee law should be interpreted with reference to the principle of necessity embodies in §35 of the German Penal Code.133 So far, the argument has been moral. Is it not hopelessly Utopian to be moral with regard to the issue of refugees? This objection leads one to focus on the practical considerations that will back up this essentially moral argument. For this purpose, imagine an amoral State where refugees are exposed to the measures meted out under an immigration control system without any pity.

1.7.5

Refugees and Deterrence: The Cold Logic

From a practical point of view, it is difficult to keep refugees out of the country, for various reasons (1) refugees are particularly strongly motivated immigrants; (2) deterrence is likely to fail; (3) an effective policy of immigration control versus refugees would be very costly. This policy implies long-term political costs. (1) Refugees fear persecution (and once they have fled they fear refoulement which leads to persecution for the same reason). This prompts a powerful motivation to break a rule. As was argued above, it is so powerful that one could safely conclude that the observance of the immigration rules for the refugee is next to impossible. (2) People are deterred from actions when they refrain from them because they fear what they believe to be the possible consequences of such actions.134 Deterrence operates on the mind of the actor. In this case the deterrence of the immigration control system is intended to operate on the mind of the refugee. The success of deterrence is, therefore, dependent on the state of mind of the person concerned. The most important requirement for the success of deterrence is that the individual subjectively believes in it. In this respect, it is the subjective, even illusory belief, that is crucial to deterrence. Thus, an anxious person will be deterred by even a remote possibility of harm. If the harm feared is great, even a low degree of probability will serve to discourage many people.135

§ 35 Strafgesetzbuch. Entschuldigender Notstand. (1) Wer in einer gegenwartigen, nicht anders abwendbaren Gefahr fur Leben, Leib oder Freiheit eine rechtswidrige Tat begeht, um die Gefahr von sich, einem Angehorigen oder einer anderen ihm nahestehenden Person abzuwenden, handelt ohne Schuld. Dies gilt nicht, soweit dem Tater nach den Umstabnden, namentlich weil er die Gefahr selbst verursacht hat oder weil er in einem besonderen Rechtsverhaltnis stand, zugemutet werden konnte, die Gefahr hinzunehmen; jedoch kann die Strafe nach §49 Abs. 1 gemildert werden, wenn der Tater nicht mit Rucksicht aufein besonderes Rechtsverhaltnis die Gefahr hinzunehmen hatte. (2) Nimmtt der Tater bei Begehung der Tat irrig Umstande an, welche ihn nach Absatz 1 entschuldigen wurden, so wird er nur dann bestraft, wenn er den Irrtum vermeiden konnte. Die Strafe ist nach §49 Abs. 1 zu mildern. 134 N. Walker, Why punish, n. 129 above, p.14. 135 Ibid.

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Here it is important to point out that deterrence is intended to operate on the mind of the actor - in this case, the refugee. This leads to following conclusions: First, the measurement of probability that matters is subjective and not objective. What matters is the refugee's own assessment of the probability of detection and punishment and not an objective view of these. This subjective element is essentially linked to emotions. This line of thought explains the observation that the success of deterrence is strongly dependent on state of mind. Certain states of mind are known to render a person beyond deterrence; one of these is fear.136 It is necessary to emphasise that the fear of persecution (or the fear of refoulement which leads to persecution) is such a state of mind. The harm refugees fear is much greater than any sanction the immigration regime can offer.137 The worst outcome of an attempt to escape would be refoulement - being sent back to the peril the refugee intended to escape. The outcome of the risky escape would be the same as inactivity. For the refugee, it would definitely pay to take the risk and try to escape. After all, there is a chance of avoiding both - the original danger and the threat of punishment and refoulement by remaining in hiding as an illegal immigrant. A State which takes a tough stance on refugees will produce a "sideways" effect. The refugee will flee to another, more liberal, State. However, there is evidence that this is a short-term strategy.138 Other States are likely to react to such a measure with comparable steps. In the long term, when all States adopt strict measures, refugees will turn to illegal immigration.139 This leads us to the issue of control of illegal immigration. (3) Absolute border control seems to be almost impossible to maintain at reasonable costs. Arguably, the best protected border in the world is the border between the US and Mexico. Here, during the 1970s into the 1980s, levels of illegal immigration steadily increased with border apprehensions reaching an all-time high in 1986 of 1.6 million.140 It is plausible that the actual number of people apprehended is not captured by apprehension statistics which merely record an enforcement action. Illegal Mexicans that are promptly turned back to Mexico, may try again, sometimes even making multiple

136

Ibid.

137

The immigration regime has to observe limitations established by the international law of human rights. See G. Goodwin-Gill, Refugee in International Law, n.3 above, p.194. This perception is supported by empirical evidence. Khalid Koser shows in his case study of Iranian asylum seekers in the Netherlands that asylum seekers are being forced to adopt illegal migration strategies, see K. Koser, 'Negotiating entry into "Fortress Europe": the migration strategies of "spontaneous" asylum seekers', in Philip Muus (ed.), Exclusion and inclusion of refugees in contemporary Europe (ERCOMER, Utrecht University, Utrecht, 1997), p. 157 et seq. D. Meissner, R. Hormats, A. Walker, S. Ogata, International Migration Challenges In A New Era (The Trilateral Commission, New York, Paris, Tokyo, 1993), p.29.

138 139

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entries into the US. Thus, it is possible that considerably less than 1.6 million persons are likely to have been intercepted. Migrant trafficking by professional groups has further eroded the chances of the State successfully controlling immigration. The introduction of carrier sanctions and the emphasis on visa requirements has created a demand for the services of organised criminal groups. These groups specialise in circumventing controls. "Means of trafficking are as various as ingenuity can devise, on foot, crammed into the holds of ships, sealed into containers or hidden in secret compartments of buses and trucks. Less dramatically, migrants may obtain air tickets, just like any other travellers, but avail themselves of false passports and forged visas."141 It is estimated that in 1993, some 250,000 to 350,000 aliens managed to cross the borders of Western Europe illegally. As many as 100,000 to 220,000 of them are said to have arrived with the help of professional traffickers.142 The syndicates operate highly professionally; they employ sophisticated methods of operation, such as forged documents, quick transfers of information and modern means of transportation.143 Genuine refugees have no choice but to use these services, if they want to reach safety due to visa controls and carrier sanctions.144 Credible and successful enforcement of the deterrence system would be expensive. If at all possible, strict control of long and untidy external borders requires manpower and equipment at astronomical costs. Extensive internal control is also costly, and potentially affects the freedom of citizens. Intensified police control in society and effectively implemented sanction policies are both economically demanding strategies.145 If the control of immigration is costly under normal circumstances, it is especially costly and difficult vis-a-vis refugees, given their desperate motivation to evade control. This logic is verified by historical experience. In 1922, the first refugee accord emerged to address the influx of some one to two million Russians between 1917 and 1922. What is striking, with regard to the early refugee accords, is the fact that these accords recognised a group as refugees after the flight had taken place. The mass influx of Russian refugees occurred in 1920, at the end of the Russian Civil War. An 141

IOM, Press Release No 723,26.10.1994. IOM Press Release No 725,28.10.1994. 143 IOM Press Release No 726,28.10.1994. 144 Empirical evidence backs this perception. 29 of 32 respondents reported that their journeys from Iran to the Netherlands had been arranged by travel agents. Three factors seem to account for this growing reliance on agents. First, a number of respondents reported that they had been under surveillance in Iran by the Government's security service. The assistance of intermediaries was often necessary to leave Iran without interception. Second, the assistance of agents is increasingly required to overcome restrictions and controls in Western Europe. As the following sections highlight, agents usually advised respondents about potential destinations, in many cases transported respondents illegally through Europe, and often arranged forged travel documents, see Khalid Koser, Negotiating entry into "Fortress Europe", n. 139 above, p. 162. G. Brochmann, Political and demographic aspects of migration flows to Europe, n. 13 above, p. 117. 142

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arrangement was reached only in 1922, legalising an already existing situation. It was clear the moment the Arrangement with Regard to the Issue of Certificates of Identity to Russian Refugees146 was signed, that the flight of Russian refugees was a fait accompli.141 Moreover, there are indications that the Russian refugees were seen as unwelcome.148 At first, governments tried to close borders and made considerable efforts to expel as many refugees as they could.149 Many were plunged into an endless cycle of illegal entry, clandestine existence, expulsion, and yet further illegal entry.150 As Claudena Skran explains, one of the factors that contributed to the emergence of the international refugee regime in 1922 was the fact that a core group of League Member States with Russian refugees within their borders had an interest in internationalising their financial burdens because funds of major private relief organisations of the era were almost exhausted.151 This indicates that, historically, States were gradually led to accept the presence of forced migrants.152 A strict emphasis on deterrence also entails certain far-reaching risks. Grete Brochmann remarks that "[t]here is a fear that militarising external borders may eventually lead to the militarisation also of society."153 The point is that policy makers tend to get into a "crisis management mode", which in many ways is counterproductive. Public attention is aroused and serves to reinforce the crisis perception of the problem.154

Arrangement with Regard to the Issue of Certificates of Identity to Russian Refugees, 5 July 1922, 255 LNTS 238. "In this historical context, refugee law originated as an attempt to accommodate the reality of a largely unstoppable flow of involuntary migrants across European borders within the broader policy of restricting immigration." J. Hathaway, Law of Refugee Status, n. 51 above, p. 137. 4 As Claudena Skran writes, Russian refugees formed, in cities like Paris and Berlin, the emigrant organisation "Russia Abroad" which ran schools, published newspapers, and wrote literature. In eastern Europe, they created a social welfare burden. In addition, governments felt threatened by the presence of exsoldiers among the refugees. In Bulgaria, for instance, the activities of armed refugees from Wrangel's army threatened to destabilize the radical Stamboliiski government. Besides, the Russian refugees also threatened the homogeneity of the newly formed nation-states of eastern Europe. With the exception of Yugoslavia, Russian cultural centres never developed in these countries. A newly found sense of nationalism, combined with anti-Russian feeling among political leaders, meant that governments did little to encourage separate cultural activity within their borders, see C. Skran, Refugees in Interwar Europe, n.l 1 above, p.32 et seq. 149 For example, the Polish government threatened the expulsion of approximately 6.000 Jews from the Russian Empire. They were congregated between the Polish and Russian frontiers in a very desperate situation until Nansen gained a reprieve. Ibidem, p. 138 et seq. 150 G. Loescher, Beyond Charity - International Cooperation and the Global Refugee Crisis (Oxford University Press, Oxford 1993), p.36. 151 C. Skran, Refugees in Interwar Europe, n. 11 above, p.90. 152 Ulrike Davy points out that a motivating force of the development of refugee law in the era of the League of Nations was the prevention of irregular movements: U. Davy, Asyl und Internationales Fluchtlingsrecht, Volume 1 (Verlag Osterreich, Vienna, 1996), p.25. G. Brochmann, Political and demographic aspects of migration flows to Europe, n.13 above, p. 118. 154 Ibid., p. 117.

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This mechanism might lead to an outbreak of violence. Racist violence in Europe amply illustrates this point.155 According to the European Commission, "[our] countries are open societies, that cannot afford - either economically or politically and perhaps even demographically - to withdraw into themselves. Nor can Western Europe police its borders or check its workplace like a police state: any attempt to do so would sooner or later affect the freedom and liberties of its citizens.."156 Immigration control cannot and should not be pursued at any price. Refugee law demarcates the moral and practical limits of immigration control. Immigration control is not operable against refugees who fear persecution. It follows that there is a moral as well as a practical basis to exempt refugees from the immigration control system. Where deterrence, in order to stop the flow of immigrants, is unfair and likely to fail, the flow needs to be managed. Refugees should, therefore, be given a legal path of immigration. The flow of refugees could be managed best by establishing a recognition procedure. The Geneva Convention of 1951 does just that. The Convention assumes that the Parties institute a recognition procedure.157 The refugee determination procedure needs to perform two functions: First, the procedure should be fair so that genuine refugees are not forced into illegality. Secondly, the procedure should be efficient enough to avoid abuse by illegal immigrants so that the deterrence system is not undermined. Procedures, which are both fair and efficient, promise to fulfil this dual task best.158 Recognised refugees should then be granted asylum, e.g. the right to stay. Their status in the country of immigration should be legalised.

155

See Tore BjOrgo and Rob Witte (eds.), Racist Violence in Europe (St.Martin's Press, New York 1993), p.3. European Commission, Policies on immigration and the social integration of migrants in the European Community, SEC (90) 1813, Brussels 1990. 157 "It has been seen that the 1951 Convention and the 1967 Protocol define who is a refugee for the purposes of these instruments. It is obvious that, to enable States parties to the Convention and to the Protocol to implement their provisions, refugees have to be identified. Such identification, i.e. the determination of refugee status, although mentioned in the 1951 Convention (cf. Article 9), is not specifically regulated." Office of the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, p.45, under 189. 158 The European Commission is aware of this problem: "Effective action against illegal immigration plays an essential part in contributing to public acceptance of admission for humanitarian grounds by preventing misuse of the asylum system. Nevertheless, the fight against illegal immigration has to be conducted sensitively and in a balanced way. Member States should, therefore, explore possibilities of offering rapid access to protection so that refugees do not need to resort to illegal immigration or people smugglers. This could include greater use of Member States' discretion in allowing more asylum applications to be made from abroad or the processing of a request for protection in the region of origin and facilitating the arrival of refugees on the territory of the Member States by resettlement scheme. Such approaches could ensure sufficient refugee protection within and compatible with a system of efficient countermeasures against irregular migratory flows." European Commission, COM (2001) 672 final dated 15.11.2001, p.8. 156

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Present developments in refugee practice confirm this logic. The crisis in the former Yugoslavia created more than two million refugees. European states reacted reluctantly by offering temporary protection.159 However, at the same time many States in Western Europe introduced visa requirements for persons from the former Yugoslavia. For example, on 25 June 1993, Denmark introduced visa requirements for citizens from Bosnia-Herzegovina. In June, Denmark received 1.786 asylum seekers from BosniaHerzegovina; by September the number had declined to 37.160 The message is clear. States attempt to control immigration as far as possible, as long as refugees are outside their borders. States act with less restraint on the international arena. Once refugees reach the territory and come under the protection of national courts, the issue of refugees becomes an issue of domestic justice. States, then, can be forced to respect the principle of necessity. The rationale underlying refugee law is, thus, both moral and practical. Admittedly this recognition of the rationale of necessity underlying state practice is neither complete nor satisfactory, but it is better than nothing at all. States limit their formal recognition of necessity on behalf of the individual to cases of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. This limitation seems to be more a matter of policy than of principle. It seems implausible that persecution for other reasons is different, in principle. Furthermore, it seems implausible that persecution is the only valid form of necessity. Natural disasters, wars, famines, could be equally compelling reasons of necessity since they can induce a well-founded fear of harm. As a matter of fact, the Convention does not acknowledge these forms of necessity. This consideration does not change the basic conception that fear of persecution for the enumerated reasons can be understood as an application of the principle of necessity. Refugee law, as it stands, can be understood as a limited recognition of this principle. The recognition of the principle of necessity has expanded only relatively recently under the heading "temporary protection" or "subsidiary protection". As Professor Goodwin-Gill points out, the language of temporary protection emerged in the discourse in reaction to the crisis in former Yugoslavia.161 In general, the beneficiaries of temporary protection have included at least those who would come within the Cartagena162 and Organisation of African Unity (OAU)163 refugee definitions.

Cf. Morten Kjaerum, Temporary Protection in Europe in the 1990s, 6 International Journal of Refugee Law 3 (1994), p.446. 160 Ibid., p.448. 161 SeeG. Goodwin-Gill, Refugee in International Law, n.3 above, p.200. 162 Art. III/3 of the 1984 Cartagena Declaration on Refugees: "To reiterate that, in view of the experience gained from the massive flows of refugees in the Central American area, it is necessary to consider enlarging the concept of a refugee, bearing in mind, as far as appropriate and in the light of the situation prevailing in the region, the precedent of the OAU Convention (article I, paragraph 2) and the doctrine

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The European Commission delineated in its proposal for a council directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection164 a definition of the beneficiaries of subsidiary protection in Article 15 (The grounds of subsidiary protection): "In accordance with Article 5(2), Member States shall grant subsidiary protection status to an applicant for international protection who is outside his or her country of origin, and cannot return there owing to a well-founded fear of being subjected to the following serious and unjustified harm: — —

torture or inhuman or degrading treatment or punishment; or violation of a human right, sufficiently severe to engage the Member State's international obligations or;

—

a threat to his or her life, safety or freedom as a result of indiscriminate violence arising in situations of armed conflict, or as a result of systematic or generalised violations of their human rights."165

All these cases enumerated by the European Commission can be understood as applications of the principle of necessity.

1.7.6 Refugees from Ecological Disasters It is an interesting consequence of the necessity theory that human action does not theoretically feature as the sole reason for granting refugee status any longer. The focus on human rights had led to the perception that only human actions can theoretically feature as valid reasons of flight and refugee status. The human rights focus thus operated to the disadvantage of victims of ecological disasters and famines, which could not directly and easily be blamed on human action or omission as the general principle of

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employed in the reports of the Inter-American Commission on Human Rights. Hence the definition or concept of a refugee to be recommended for use in the region is one which, in addition to containing the elements of the 1951 Convention and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order." Art.l (Definition of the term "Refugee") of the 1969 OAU Convention on the Specific Aspects of Refugee Problems in Africa (1000 UNTS 46): "l.For the purposes of this Convention, the term "refugee" shall mean every person who, 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. 2. The term "refugee" shall also apply to every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place or habitual residence in order to seek refuge in another place outside his country of origin or nationality." COM (2001) 510 final dated 12.9.2001. Ibid., at Art. 15.

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causality most commonly only extends to foreseeable consequences. Of course, it will be possible in most cases to construct even ecological disasters and famines as indirect and distant products of human inability and failure. However, refugee law, seen through the glasses of human rights law, loses the ability to accommodate those victims for which no clear and direct human responsibility can be established. The concept of necessity does not presuppose direct and causal human action or omission to become operative; the necessity theory thus opens new intellectual space for the creation and future development of refugee law for a group of victims, which I fear is likely to increase in the longer term, if present trends continue.

1.7.7 Necessity and Human Rights Can the necessity approach be merged with the human rights approach? On the one hand, it is clear that not all human rights violations, also due to the proliferation of international human rights, create the immediate and intense danger associated with the concept of necessity. On the other hand, necessity goes beyond human rights because necessity does not presuppose that the relevant danger arises due to human action, whereas human rights become operative only if human action is involved; the crucial aspect of international human rights are the corresponding obligations and all obligations make sense only towards human beings. However, these differences notwithstanding, it is evident that there is an overlap between these concepts because necessity will often result from human rights violations. If the relationship between necessity and human rights geographically is visualised, the image of two overlapping circles is very instructive:

Necessity

Human Rights

Figure 1

In the overlapping area, necessity offers remedies to the two main theoretical problems of the human rights theory identified above. On the one hand, necessity can be used to

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explain why human rights violations in the countries of origin, under certain conditions, involve the self interest of the States of the West; on the other hand, necessity might operate as a guideline for the creation of a hierarchy of human rights for the purpose of refugee law, in order to back a fair asylum policy within the framework of a restrictive attitude towards immigration. 1.8 CONCLUSIONS At the beginning of this book, I stated that there is a conflict between refugee law and a policy of strict immigration control. The question raised was whether there is a principle that might trump a policy of strict immigration control. There is, indeed, such a principle - necessity. Morally, necessity explains the conditions under which it would be unfair to enforce immigration control by deportation and punishment. Practically, necessity explains the conditions under which immigration control is not feasible at a reasonable cost versus individuals. It follows that morally and practically necessity trumps a restrictive immigration policy. Thus necessity might figure as the principle which guides refugee law. Thus, the purpose of refugee law under present conditions becomes comprehensible. Refugee law serves to create an exception to the policy of strict immigration control on the basis of necessity. In short, necessity is a useful starting point for the interpretation of existing refugee law. On the one hand, it offers the promise of a dynamic interpretation suited to the needs of our times. On the other hand, it bars unfair, narrow-minded interpretations.

CHAPTER 2

CURRENT STRATEGIES TO RESTRICT THE SCOPE OF THE REFUGEE CONCEPT

This chapter focuses on exploring strategies of legal interpretation to restrict the scope of the refugee concept. These strategies are often linked to a specific pre-understanding of the purpose of refugee law, in other words, to a theory of refugee law, as explored in chapter 1. This linkage between certain restrictive interpretations of the refugee concept to a specific theory of refugee law will highlight the practical importance of theory; it is the pre-understanding of the refugee concept and its purpose which determines the practical conclusions that a certain interpretation of the refugee concept calls for. In the past, very little attention has been paid to the specific theory underlying a certain interpretation of the refugee concept. The inability to formulate a certain theory does not mean that no theory is applied and operative when certain interpretative choices are made. Rather, the ignorance in which a theory operates makes it strong and powerful in its effects on uncritical minds. Once certain silent assumptions are accepted, it is very difficult to avoid the logical conclusions that follow. A silent theory which operates through shared unreflected assumptions serves as the canvas on which specific arguments are tested: they either acquire plausibility or appear ridiculous. The purpose of this chapter is, therefore, also to critically examine assumptions on which these restrictive interpretative strategies rest. The alternative theory of "necessity" developed in chapter 1 will serve as a background to explore alternative interpretative positions of the refugee concept in chapter 3. Chapter 3 will be then dedicated to interpretative positions, favoured by the theory of necessity. The aim is to achieve a interpretation of the refugee concept which is stringent and convincing by clearly stating the underlying assumptions. 2.1 PERSECUTION AND STATE RESPONSIBILITY An important restrictive interpretation of the refugee concept is achieved by the requirement of state responsibility for actions when speaking of persecution. In short, no persecution can be established without State responsibility. Basically, the arguments on which this assumption rests are as follows: 49

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(a) Every state has a duty to protect his or her citizens from persecution. A search for protection abroad is only justified if the State violates this duty. Thus, State responsibility must be established for persecution. This argument is plausible because it does not distinguish between two similar issues: the prospect of a national remedy and State responsibility. It is justified to request refugee status only if there is no prospect of a national solution. However, the prospect for a national solution needs to be realistic, viable, safe and accessible. This issue should be distinguished from the concept of State responsibility under international law. (b) Under Paul Weis' theory of diplomatic protection, refugee status is a substitute for the lack of diplomatic protection by the State of origin. Diplomatic protection can only be granted by the government. It follows that the theory of diplomatic protection favours a very narrow concept of State responsibility for persecution. Only persecution by the government would qualify, since only such persecution could lead to a lack of diplomatic protection. (c) Under Atle Grahl-Madsen's theory of de facto statelessness, refugee status is understood as a substitute for the lack of consular and other benefits of nationality abroad. This theory also favours a very narrow concept of State responsibility for persecution. Again, only persecution by the government would qualify, as only such persecution could lead to the perceived lack of consular and other benefits of nationality abroad. (d) Under the human rights theory, refugee protection is theoretically linked to human rights protection insofar as refugee protection is a back-up system for the human rights system. Human rights, at the international level, create international obligations. The violation of an international obligation conceptually implies attribution of an act by the State. An act that is not attributable to the State cannot violate an international obligation. Such an act, thus, cannot constitute a human rights violation. Because refugee protection is linked to human rights protection, this consideration is also an argument for the following proposition: no persecution without state responsibility. This argument rests on the assumed conceptual importance of the violation of an international obligation for the purposes of the refugee concept. This assumption is not justified: conceptually, it is possible to think of refugees even if the situation which gave rise to their flight did not involve the violation of any international obligation. In international law, the doctrine of State responsibility is of central importance. The International Law Commission (ILC) has been working for several years on a Draft Convention on State Responsibility. Concerning this question, the International Law

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Commission's Draft Articles on State Responsibility166 command unequalled authority.167 It is useful, at this point, to explore this draft in depth.

2.1.1 Attribution to the State Art.5 (Attribution to the State of the conduct of its organs) of the ILC draft reads: "For the purposes of the present articles, conduct of any State organ having that status under the internal law of that State shall be considered as an act of the State concerned under international law, provided that organ was acting in that capacity in the case in question." I68

Art.6 (Irrelevance of the position of the organ in the organization of the State) reads: "The conduct of an organ of the State shall be considered as an act of that State under international law, whether that organ belongs to the constituent, legislative, executive, judicial or other power, whether its functions are of an international or an internal character, and whether it holds a superior or a subordinate position in the organization of the State."169

Accordingly, in principle, only actions of State organs are attributable. The underlying principle is that the State assumes responsibility for these actions by giving the organs the authority to act. This argument is valid even in the case where the organ may have acted contrary to instructions concerning its activity or outside its competence. These acts remain attributable to the State. Art. 10 (Attribution to the State of conduct of organs acting outside their competence or contrary to instructions concerning their activity) reads: "The conduct of an organ of a State, of a territorial government entity or of an entity empowered to exercise elements of the governmental authority, such an organ having acted in that capacity, shall be considered as an act of the State under international law even if, in the particular case, the organ exceeded its competence according to internal law or contravened instructions concerning its activity."170

According to the ILC draft, the essential criterion is not the fact of being an organ, but that of being empowered by the State to exercise elements of the governmental authority. Art.7 (Attribution to the State of the conduct of other entities empowered to exercise elements of the government authority) reads:

166 167

168

169 170

International Law Commission, YBILC 1980, vol. II (Part Two), p.30ff. Bruno Simma calls the draft the new dominant doctrine ("neue herrschende Lehre"). Cf. B. Simma, 'Grundfragen der Staatenverantwortlichkeit in der Arbeit der International Law Commission' (1985) 24 Archiv des Volkerrechts, pp.357-407. International Law Commission, n. 166 above. Ibid. Ibid.

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" 2. The conduct of an organ of an entity which is not part of the formal structure of the State or of a territorial governmental entity, but which is empowered by the internal law of that State to exercise elements of the governmental authority, shall also be considered as an act of the State under international law, provided that organ was acting in that capacity in the case in question."171

The action of a private individual is attributable to the State if the individual has acted in fact on behalf of the state.172 Art.8 (Attribution to the State of the conduct of persons acting in fact on behalf of the State) reads: "The conduct of a person or group of persons shall also be considered as an act of the State under international law if: •

it is established that such persons or group of persons was in fact acting on behalf of that State; or

•

such person or group of persons was in fact exercising elements of the governmental authority in the absence of the official authorities and in circumstances which justified the exercise of those elements of authority."

A person acts in fact on behalf of the State if he is hired, instructed or ordered by a State organ.173 The second case concerns situations of war or civil wars, when government officials flee parts of the country during the course of military operations and are replaced by persons chosen by the local population.174 Thus, the following acts can not constitute persecution: an act of a State organ acting in a private capacity in the case in question; an act of a private person not acting on behalf of the State.

2.1.2 State Responsibility for Actions of Private Individuals Generally, the actions of private individuals are not attributable to the State. This rule is laid down in Art. 11/1 of the ILC draft on State Responsibility (Conduct of persons not acting on behalf of the State):

171

Ibid.

172

Persons acting in fact on behalf of the state need to be distinguished from de facto governments. See n. 58 below. K. Zemanek, 'Responsibility of States: General Principles', in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 10 (1987), p.367. Ibid.

173

174

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"The conduct of a person or a group of persons not acting on behalf of the State shall not be considered as an act of the State under international law."

Exceptionally, the actions of private individuals can be attributed to the State if the State commits an omission. Art. 11/2 of the ILC draft on State Responsibility reads: "Paragraph 1 is without prejudice to the attribution to the State of any other conduct which is related to that of the persons or groups of persons referred to in that paragraph and which is to be considered as an act of the State by virtue of articles 5 to 10."

The consideration behind this rule is that a State can, in particular circumstances, be responsible for the actions of private individuals if it fails to protect, for example, aliens during mob violence or embassies and consulates.175 The duty to protect needs to be established by international law in the specific case in question. Human rights law contains such duties of protection. These duties have been acknowledged often in a number of international human rights fora: the Inter-American Court in Velasquez Rodriguez v. Honduras176 and the European Human Rights Court in Young, James and Webster177and X. and Y. v. the Netherlands178 and Plattform "Arzte fur das Leben" v. Austria179. It may be concluded that international human rights law obliges States to protect human rights. Is this obligation limited? Positive obligations can only be meaningful if the limits of what is actually possible are respected. Ultra posse nemo obligatur. The Inter-American Court of Human Rights has confirmed the relevance of this thought for human rights violations through omission in the Velasquez Rodriguez Case: "The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, impose the appropriate punishment and ensure the victim adequate 1 80 compensation." (emphasis added)

Thus, the State is only obliged within the limits of the means at its disposal.

175

176 177 178 179 180

Roberto Ago, YILC 1972 II, 97 et seq.; E. Reichel, Das staatliche Asylrecht "im Rahmen des Volkerrechts", Duncker & Humblot, Berlin 1987, p.90. Series C, No.4, July 29,1988, reported at (1988), 9 Human Rights Law Journal 212. Series A, No.44, August 13, 1981. Series A, No.91, March 26, 1985. Series A, No.139, June 21, 1988. Velasquez Rodriguez v. Honduras ,Series C, No.4, July 29, 1988, reported at (1988), 9 Human Rights Law Journal 212, p. 174.

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Some parallels can be seen between the duty to protect human rights and the duty to protect aliens. Rosalyn Higgins states that: "although private conduct is not the conduct of the state, the state has a general obligation to seek to protect the welfare of aliens by acting against lawlessness and promoting an orderly and safe society. We may call this a general duty to prevent attacks and harm on foreigners. That does not mean, of course, that, if an individual attacks a foreigner in a bar - even because he is motivated by xenophobia or racial hatred - that individual's government is responsible. The state's responsibility is to endeavour, through due diligence, to prevent harm to others. It thus follows that a state is not responsible for harm that is done to a foreigner as a consequence of civil disorder or of revolution."

Is the doctrine of State responsibility relevant to human rights law? According to some commentators, the same standard of protection that applies to the treatment of aliens is also valid in the context of human rights law182 because there is no reason to suppose a higher standard of protection for the State's own citizens than for aliens. After all, behind the alien stands another State.183 The State fulfils its duty to protect human rights if it protects with "due diligence"184. Also courts have confirmed the relevance of the doctrine of State responsibility for human rights law.185 The Inter-American Court of Human Rights has also confirmed the relevance of the due diligence standard for human rights violations through omission in the Velasquez Rodriguez Case: "An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because

181

182 183

185

R. Higgins, Problems and Process - International Law and how we use it (Clarendon Press, Oxford, 1994), p.153. M. Eissen, 'The European Convention on Human Rights and the Duties of the Individual', (1962) 32 Nordisk Tidsskrift voor Intemationaal Recht, p.244 with further references. E. Reichel, Das staatliche Asylrecht "im Rahmen des Volkerrechts", n.175 above, p.92. See P. Sieghart, The International Law of Human Rights (Oxford 1983), p.43; A. Drzemczewski, European Human Rights in Domestic Law. A Comparative Study (Oxford 1983), p.225; T. Buergenthal, The Covenant on Civil and Political Rights', in: Louis Henkin (ed.), The International Bill of Rights (New York 1981),p.77f. I am not saying that all human rights theorists give considerations of state responsibility great weight. There are some theorists who question the value of considerations of state responsibility for the area of human rights law. However, the doctrine of state responsibility is a structural characteristic of international legal obligations. If international human rights law is considered as the basis of international legal obligations, it follows logically that the doctrine of state responsibility is also relevant for international human rights law. Theorists, who reject the importance of considerations of state responsibility for international human rights law, need to prove that States apply international human rights law without consideration to the doctrine of state responsibility. They need to prove that the structure of international legal obligations actually applied in human rights cases is different from other parts of international law. I have not seen a convincing argument in this direction yet.

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of the lack of due diligence to prevent the violation or to respond to it as required by the Convention." (emphasis added)

Argumento e contrario, it may be concluded that beyond the due diligence standard the State does not legally incur any responsibility for the actions of private individuals. § 207, comment c (Requirement of "state action") of the US Restatement reads: "In general, a state is responsible under international law only for official acts, or for official inaction where there was a duty to act. Such responsibility extends also to action or inaction by local officials or officials of political subdivisions. Ordinarily, a state is not responsible for acts by individuals or other private entities. Thus, as regards injury to aliens, a state is responsible for injuries caused by official acts, or by some official failures, such as failure to provide aliens reasonable police protection; the state is not responsible for injuries caused by private persons that result despite such police protection."

The question could be phrased in another way: Is the due diligence standard objective or do we need to understand it in the light of all the resources available to the State? On that second view, a poor state with limited resources would have a low due diligence standard in seeking to control private behaviour that harms others.187 It is true that in some early cases an objective standard of due diligence was applied concerning the failure to prevent injury to aliens.188 However, the International Court of Justice in the Teheran Hostages Case seems to have embraced a "relativist" approach to the due diligence standard. The Court said that the Iranian authorities "were fully aware of their obligations...had the means at their disposal to perform their obligations; [and] completely failed to comply with these obligations"189. The concept of due diligence in this "relativist" view potentially points to the following considerations: were the authorities manifestly negligent in taking measures that are, in view of the circumstances, normally taken to prevent such violations; could the injurious acts be foreseen; was it physically possible for the State to prevent the acts with resources available to the State?190 It follows that the state is responsible for the actions of private individuals only within the limits of the due diligence standard. If the duty to protect human rights would follow the model of strict liability, every injurious act on the territory could be attributed to the

186

187 188 I on

190

Velasquez Rodriguez v. Honduras, n. 180 above, p. 172. R. Higgins, Problems and Process, n. 181 above, p. 156. Ibid. Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), ICJ Reports (1980) 3 at 30. H. Blomeyer-Bartenstein, 'Due Dilligence1, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Instalment 10 (1987), p.141 referring to the elaboration of the standard of due dilligence by Garcia Amador concerning Art.7 of his revised draft on the responsibility of the State for injuries caused in its territory to the person, YILC 1961 II, p.46.

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State. This is not the case, as the Inter-American Court of Human Rights has confirmed in the Velasquez Rodriguez Case.191 What is the nature of the duty to protect human rights? It is clear that it is a positive obligation. The State is required to act, e.g. to offer adequate protection. It is debatable whether the duty of human rights protection obliges the State to adopt a particular course of conduct or whether it obliges the State to prevent a given event. The State is obliged to protect in order to prevent human rights violations. It is the prevention of the event, which lies at the basis of the duty of protection. Thus an injurious event is a constitutive requirement of a violation of this duty. The State cannot be blamed for its inactivity if no injurious event occurs. Besides, human rights law does not prescribe any concrete measures which the State is obliged to adopt in order to fulfil its duty. Concrete protective measures can be derived by considering which reasonable steps serve to prevent human rights violations from taking place. The State is free to choose from these steps. Thus, it can be concluded that the duty of human rights protection is an obligation of result and not an obligation of conduct. Art.23 of the ILC draft is applicable. Art. 23 (Breach of an international obligation to prevent a given event) of the ILC draft reads: "When the result required of a State by an international obligation is the prevention, by means of its own choice, of the occurrence of a given event, there is a breach of that obligation only if, by the conduct adopted, the State does not achieve that result."

According to the commentary of the ILC, three requirements set out in Art.23 are to be distinguished: a given event (1), an adopted conduct (2) and causality between event and conduct (3)192. The first requirement is an injurious event. "The characteristic feature of the case taken into consideration by the Commission here is precisely the notion of an event, i.e. an act of man or of nature which, as such, involves no action by the State. Consequently, if the result which the obligation requires the State to ensure is that one or another event should not take place, the key indication of breach of the obligation is the occurrence of the event, just as the non-occurrence of the event is the key indication of fulfilment of the obligation. The State bound by an obligation of this kind cannot assert that it has achieved the required result by claiming that it has set

"Of course, while the State is obligated to prevent human rights abuses, the existence of a particular violation does not, in itself, prove the failure to take preventive measures." Velasquez Rodriguez v. Honduras , n. 180 above, p. 175. See J. Wolf, "Zurechnungsfragen bei Handlungen von Privatpersonen' (1985) 45 Zeitschrift fur auslandisches Offentliches Recht und Volkerrecht, at p.257 et seq.

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up a perfect system of prevention if in practice that system proves ineffective and permits the event to occur."

The second requirement is a specific conduct. "The State can obviously be required only to act in such a way that the possibility of the event is obstructed, i.e. to frustrate the occurrence of the event as far as lies within its power.[emphasis added]"194

The third requirement is causality. "Only when the event has occurred because the State has failed to prevent it by its conduct, and when the State is shown to have been capable of preventing it by different conduct, can the result required by the obligation be said not to have been achieved. Consequently, for there to be a breach of the obligation, a certain causal link - indirect, of course, not direct - must exist between the occurrence of the event and the conduct adopted in the matter by the organs of the State."

Andrew Clapham speaks of the "but for" test.196 But for the omission of the State authorities, the injurious action by private actors would not have taken place. Only within these limits can State responsibility for human rights violations of private individuals arise.

2.1.3 State Responsibility for Customary and Peremptory Human Rights Law Concerning customary and peremptory human rights, as referred to by the Restatement (third) of the Foreign Relations Law of the United States adopted in 1987 by the American Law Institute197, note should be made that the concept of State responsibility is even narrower than that concerning other human rights. The Restatement makes it clear that a violation of customary international law of human rights has to be a matter of State policy. Comment b (State policy as violation of customary law) explains the term:

193 194 195 19

197

YILC1978II,p.82para.4. Ibid, p.97 at para. 3. Ibid. A. Clapham, The Privatization of European Human Rights (PhD thesis, European University Institute 1991), p.277. Cited in: H. J. Steiner and P. Alston, International Human Rights in Context - Law, Politics, Morals, Clarendon Press, Oxford 1996, p. 145.

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"In general, a state is responsible for acts of officials or official bodies, national or local, even if the acts were not authorized by or known to the responsible national authorities, indeed even if expressly forbidden by law, decree or instruction. The violations of human rights cited in this section, however, are violations of customary international law only if practiced, encouraged, or condoned by the government or a state as official policy...A government may be presumed to have encouraged or condoned acts prohibited by this section if such acts, especially by its officials, have been repeated or notorious and no steps have been taken to prevent them or to punish the perpetrators...Even when a state is not responsible under this section because a violation is not state policy, the state may be responsible under some international agreement that requires the state to prevent the violation."

Thus, a focus on customary law leads to a considerable narrowing down of the scope of refugee law by its restriction, to the effect that customary law would be violated only if a state practices, encourages or condones a human rights violation as a state policy. Simple attribution to the State, for example, by proving a violating action by a State organ, does not suffice. Is there, under customary or peremptory law, a duty of States to protect individuals from human rights violations of third parties, including private parties? It is debatable whether such a duty of protection exists in customary law. Louis Henkin is certain of its existence. He asserts that "[t]he human rights obligations under customary law require all States to respect and to ensure the rights protected."199 "The obligation to "ensure" probably includes an obligation to prevent the infringement of rights even by private persons for whose actions the State is not internationally responsible in other circumstances."200 Even if it is true that customary or peremptory human rights law includes a duty of States to protect individuals against injuries by third parties, the required level of protection under customary human rights law is very low indeed. The Restatement makes it clear that a State is not required to offer adequate protection. Rather, a government might be presumed to condone a human rights violation if it takes no steps at all in reacting to notorious or repeated injurious acts. Thus, the following cases would not be covered: omission by local or inferior State organs, omissions contrary to instructions, and inadequate steps of protection. In such cases, it cannot be presumed that the State condones a human rights violation as a state policy.

iy8

Ibid.

199

L. Henkin, 'Human Rights', in: R. Bernhardt (eds.), Encyclopedia of Public International Law, Instalment 8 (1985),p.273. Ibid., p.272.

200

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59

2.1.4 Practical effects of the doctrine of state responsibility for persecution How could the doctrine of state responsibility affect refugee law? As already discussed, refugee law could be seen as a subsidiary system of human rights protection.201 It is, therefore, arguable that refugee law becomes operative only on the premise that a human rights violation has taken place. In short, the human rights theory of refugee protection contributes to the view that refugee law turns around the legality of actions of the State of origin. As demonstrated above, it is a view held by some commentators and courts that the doctrine of State responsibility is relevant and within the reach of international human rights law. The theory is that in international law, human rights create international obligations for States. A State that violates a human right under international law, commits an internationally wrongful act. "Every internationally wrongful act of a State entails the international responsibility of that State."202 Art.3 of the ILC Draft on State Responsibility deals with the Elements of an internationally wrongful act of a State: "There is an internationally wrongful act of a State when: (a) Conduct consisting of an action or omission is attributable to the State under international law; and (b) That conduct constitutes a breach of an international obligation of the State"

203

Thus, the concept of a human rights violation as an internationally wrongful act under this theory requires conduct that is attributable to a State bound by international human rights law. The theory of refugee law, as a subsidiary system of human rights protection, contributes to the view that State responsibility is conceptually relevant to refugee law. An act that is not attributable to a State cannot constitute a human rights violation and, thus, does not lead to refugee status. This result is justified by the subsidiary nature of refugee protection.

201

202 203

See V. Lieber, Die neuere Entwicklung des Asylrechts im Volkerrecht und Staatsrecht unter besonderer Berucksichtigung der schweizerischen Asylpraxis (Zurich, 1973), p.30. Art. 1 of the ILC Draft on State Responsibility, YBILC 1973, vol.11, p.173 with commentary. YBILC 1973, vol.11, p. 179 with commentary.

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The syllogism that is operative here is simple and clear. 1. Premise: Persecution requires human rights violation 2. Premise: Human rights violation requires State responsibility Conclusion: Persecution requires State responsibility State responsibility is state centred, as the ILC Draft on State Responsibility reveals.204 In principle, only actions by a State organ are attributable to the State under international law. However, human rights law has entered the private sphere forcefully.205 Theoretically, this development is premised on the insight that certain human rights also create positive obligations for States. Thus, an omission by the State can constitute a human rights violation, even if the actual harm was inflicted by private parties. The obvious problem here is that not every non-action constitutes an omission. Only an action that can be realistically expected from a State, taking into account its possibilities for action that would have prevented the harm in the normal course of events, can be accepted as an omission.206 Under these conditions only, can it be said that harm was caused by omission. Thus, the genuine weakness of a State or its complete disintegration (for example Liberia, Somalia and Afghanistan) effectively bar State responsibility in many cases.207 Put plainly, this result is not satisfactory for the purposes of refugee law. This approach fails to explain why only persecution that is attributable to a State should be accepted as persecution in the sense of the 1951 Refugee Convention. The requirement of State responsibility for persecution essentially leads to an arbitrary differentiation between those cases where a State can be held responsible and those where such responsibility cannot be established. This differentiation is arbitrary because it is far from evident why the requirement of State responsibility should be a decisive criterion to the question, who needs refugee status and who does not. Refugee protection under the influence of the doctrine of state responsibility loses the ability to accommodate the victims of persecution during an internal conflict. Given that most conflicts in the world at present are internal conflicts, the State responsibility theory

204 205 206 207

See section 2.1.2 State Responsibility for Actions of Private Individuals above. See A. Clapham, Human Rights in the Private Sphere (Clarendon Press, Oxford, 1993). See section 2.1.2 State Responsibility for Actions of Private Individuals above. International law provides for these cases. The doctrines of "de facto authority" and "state responsibility for persons acting in fact on behalf of the state" ensure that state responsibility does not evaporate in such scenarios. However, in fact, the cases where state responsibility can be established will decrease. The point is that state resposibility for the actions of private individuals does depend on the power of the de-jure or de-facto state organs. In emergency situations, the power of such organs will be limited. As a consequence, responsibility for actions of private individuals will be limited. In fact, state responsibility will be barred in many cases.

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of persecution actually operates to the detriment of these victims. This is tragic because internal conflicts usually cause tremendous suffering208 and lead, in the most extreme cases, to genocide (Bosnia in 1992, Rwanda in 1994). It is not clear if the proposal to interpret refugee law as depending on the doctrine of State responsibility is a very desirable one, for the reason that it creates arbitrary distinctions. The fact that persecution is no longer a privilege of States is not adequately addressed.209 Such an emphasis on State responsibility is clearly not warranted in the context of refugee law.210 Persecution and human rights violations differ with regard to their legal structure. Whereas a human rights violation presupposes a legal relationship211 between States, persecution does not presuppose such a legal relationship. The 1951 Refugee Convention is applicable even though the State of origin has not acceded to it. The 1951 Refugee Convention does not create or presuppose a legal relationship between the State of origin and the State of refuge. Hence, the concept of an internationally wrongful act and international responsibility for persecution does not even enter the picture where the Convention is concerned. This difference is based on the different functions of human rights law and the Convention. The purpose of human rights law is to influence the behaviour of the State of origin. It is this function that explains why human rights law has become the rhetoric of international politics. However, the 1951 Refugee Convention has a different function. Its main function is to provide a safe haven for desperate individuals. Therefore, under public international law, it is a tenable position to claim that human rights should be strongly connected to the concept of the international responsibility of States; a State should be held accountable, therefore, an action has to be attributable to the State in question. The relevance of this logic for the interpretation of the Convention, however, is not clear. To illustrate the consequences of this narrow scope of state responsibility for refugees from civil war areas, assume that a region of a State is in rebellion. The State military and the rebels of the region are engaged in guerrilla warfare that is accompanied by terrorist acts committed against the civilian population as acts of retribution. The rebels do not control the region. The acts of the military are attributable to the State because the

In most internal conflicts, the fighting is vicious. Internal conflict often involves direct, deliberate attacks on civilians. Conflicts over control of territory frequently escalate into military campaigns designed to drive out or kill civilians from rival groups. Intimidation, assassination, rape, forces expulsion, and systematic slaughter are commonly employed instruments. The numbers of people displaced or killed in such conflicts are often counted in tens and hudreds of thousands, and sometimes even in millions, see Michael E. Brown (ed.), The International Dimensions of Internal Conflict, MIT Press, Cambridge, Massachusetts 1996. 209 See fn 61 and fn 62 in section 1.4.2. above. See G. Goodwin-Gill, The Refugee in International Law, n. 3 above, p.73f. 211 This applies both to treaty law or customary law (including obligationes erga omnes).

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soldiers are State organs. The equally atrocious acts of the rebels are acts of private individuals. Clearly, they satisfy the first criterion, namely they constitute an injurious event. Things become difficult when one considers the second and the third criterion. Could the State have prevented the atrocities by a different course of conduct? Was the State capable of preventing the atrocities? In a typical civil war scenario, both questions can only be answered in the negative. In very rare cases can it be claimed that the state is responsible for the acts of the rebels. 212 Thus, it can be concluded that the acts of the soldiers constitute persecution, whereas the equally atrocious acts of the rebels generally do not constitute persecution. A strange result indeed! The element of State responsibility contained in international human rights law could be used to considerably restrict the scope of the 1951 Refugee Convention. An emphasis on State responsibility tends to exclude many refugees from civil war areas, or areas of general unrest, where violence originates from privately organized groups. Often these are the neediest refugees. This is illustrated by the EU Joint Position, which was adopted on 4 March 1996 by the Council of Ministers of the EU on the basis of Article K.3 of the Treaty on EU concerning a harmonised application of the definition of "refugee" in Article 1 of the 1951 Refugee Convention.213 Paragraph 5.1 (Persecution by the State) of the Joint Position reads: "Persecution is generally the act of a State organ (central State or federal States, regional and local authorities) whatever its status in international law, or of parties or organizations controlling the State."214

The Joint Position fully subscribes to the theory that an action needs to be attributable to the State in order to constitute persecution. This perception is backed by paragraph 5.2 (Persecution by third parties): "Persecution by third parties will be considered to fall within the scope of the Geneva Convention where it is based on one of the grounds in Article 1A of that Convention, is individual in nature and is encouraged or permitted by the authorities. Where the official authorities fail to act, such persecution should give rise to individual examination of each application for refugee status, in accordance with national judicial practice, in the light in particular of whether or not the failure to act was deliberate. The

212 213 214

M. Akehurst, 'State Responsibility for the Wrongful Acts of Rebels - An Aspect of the Southern Rhodesian Problem' (1968/69) 43 British Yearbook of International Law, p.50 et seq. Official Journal of the European Communities, Series L, No 63/1996, pp. 2-7. Ibid., p.3.

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persons concerned may be eligible in any event for appropriate forms of protection under national law."215

The Joint Position endorses the principle that persecution is either an injurious action by a State organ (or de facto authority216) or that the injury can be traced back to an omission of a State organ. This means that a private action can constitute persecution only if the injury remains attributable to the State. This is the case if the State encouraged or permitted the injurious acts of private individuals or deliberately failed to prevent them. A private action which the State was incapable of preventing, due to lack of resources, remains outside the scope of persecution. This issue was very controversial during the drafting period of the Joint Position. According to a Spanish proposal, the fear of persecution needs to follow from an absence of State protection. Such is the case • if the State acts directly, • if the State is involved indirectly (i.e. omission), • if the State is incapable of protection.217 The UNHCR had circulated an information note in March 1995. The relevant part reads: "[...,] persecution may also emanate from entities for which no link with the State can be established and which the State is unable to control. The essential issue in establishing the basis and justification for the extension of international protection is the fact of an absence of national protection against persecution, whether or not this deficiency can be attributed to an affirmative intention to harm on the part of the State. Persecution that does not involve State complicity is still, nonetheless, persecution. In such cases, it must be concluded that the State is not in a position to give effective protection to its national who has a well founded fear of persecution, and that international protection is the only available option for the 218 person involved."

ECRE fully supported this position of the UNHCR.219 Despite this, the Spanish proposal was rejected. Rather, the final text was more in line with the German position.220 The German position was best expressed in the case law of

215 216

217 218

219

Ibid.,p.5. "In such situations, persecution may stem either from the legal authorities or third parties encouraged or tolerated by them, or from de facto authorities in control of part of the territory within which the State cannot afford its nationals protection." Ibid., p.5 at para. 6. cf. Document 6675/94 ASIM 90 of the Secretariat of the Council of the European Union, Brussels, 27 May 1994, p.5. United Nations High Commissioner for Refugees, Information Note on Article 1 of the 1951 Convention, Geneva, March 1995, p.3. Note from the the European «Council on Refugees and Exiles on the Harmonisation of the Interpretation of Article 1 of the 1951 Geneva Convention, ECRE, June 1995, at para. 8.

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the Federal Constitutional Court of Germany. In its famous decision of 10.7.1989221 (the so-called "Tamilenbeschlufi"), the Federal Constitutional Court explains that persecution is, in principle, persecution by the State. Measures of private individuals may figure as persecution, if they are attributable to the State. Such attribution to the State is deemed possible • if the State is unwilling to extend protection, or • if the State does not utilise the available means to a required level in order to protect. If the means of protection are not available, the case is different. In such cases, no attribution to the State is possible. Injurious actions of private individuals in such circumstances cannot constitute persecution. The Spanish proposal, the position of UNHCR and ECRE echo the necessity approach. Necessity, as the underlying principle of refugee law, explains why the aspect of State responsibility does not deserve the weight the Joint Position affords it. The only aspect that deserves consideration is the possibility of an effective remedy within the country of origin. The Joint Position expresses this thought clearly: "In all cases referred to above, consideration must be given to whether there is an effective remedy or remedies which would put an end to the situation of abuse. As a general rule, persecution will be indicated by the fact that no redress exists or, if there are means of redress, that the individual or individuals concerned are deprived of the opportunity of having access to them or by the fact that the decisions of the competent authority are not impartial... or have no effect."

Even though the Joint Position acknowledges this consideration, it fails to appreciate its importance. This - and not attribution of persecution to the State - is the link between persecution and flight.222 A persecution where an effective remedy is available does not compel one to flee. Actually, the requirement of attribution to the State is artificial and without justification. The necessity approach explains why fear of persecution is independent of the question of attribution to the State because compelling fear can also emanate from resourceful private organizations. Paragraph 6 of the Joint Position reads: "Reference to a civil war or internal or generalized armed conflict and the dangers which it entails is not in itself sufficient to warrant the grant of refugee status...

220 221 222

cf. Secretariat of the Council of the European Union, n. 52 above, p.5. Collection of decisions of the German Constitutional Court (=BVerfGE) 80, p.315 et seq. See section 3.1.4 Absence of State Protection.

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In such situations, persecution may stem either from the legal authorities or third parties encouraged or tolerated by them, or from de facto au authorities in control of part of the territory within which the State cannot afford its nationals protection. In principle, use of the armed forces does not constitute persecution where it is in accordance with international rules of war and internationally recognized practice; however, it becomes persecution where, for instance, authority is established over a particular area and its attacks on opponents or on the population fulfil the criteria in section 4."

The legal treatment of persecution in the course of a civil war shows the danger of a requirement of State responsibility. Typically, government forces face armed insurgents. Persecutions by the armed insurgents cannot be easily attributable to the State. As argued above, the persecutions by insurgents are only attributable to the State, if the State fails to utilise available means of protection. It is very unlikely that the State has the necessary resources to do so efficiently under conditions of civil war. If the State could effectively intervene everywhere in order to protect, the State would be strong enough to win the civil war. Thus, it may be argued that the state is too weak to protect civilians from rebels during an ongoing civil war. Under these conditions, persecutions by rebels are not attributable to the State and, thus, are not covered by the Joint Position. Turning to another international law doctrine which the Joint Position refers to - de facto authority, attribution to an authority different from the official government which has undisputed and supreme authority over a part of the territory is possible. This doctrine makes it possible for persecutions, that take place in an area under the firm control of insurgents, to be included in the Joint Position. Unfortunately, this doctrine offers no solution for victims of persecutions in contested areas where the struggle unfolds. The conclusion arrived at is that in such contested areas no attribution is possible for persecutory actions by the insurgents. The victims fall outside the parameters set by the Joint Position. What about the victims of persecution committed by government troops in contested areas? Here, another international law doctrine becomes operative - an emergency like civil war gives rise to a so-called right of self-preservation. The law of warfare (ius in bello) offers standards to evaluate military operations. In this light, it is important to distinguish between permissible military operations and forbidden actions. Thus, it can be understood that the Joint Position refers to "international rules of war and internationally recognized practice".

This refers to the concept of "de facto government". As the ILC points out this concept needs to be distinguished from persons acting in fact on behalf of the government according to Art. 8 of the ILC draft on State Responsibility (see 2.1.1 Attribution to the State). De facto governments are governments which have taken control without being invested with power in accordance with the previously established constitutional forms. All this is without relevance to the problems of international responsibility. Thus, no distinction may be made between a State governed by a de facto government and one ruled by a de jure government in this respect. Cf. YILC 1974, vol.11, Part One, pp.285-286.

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But the Joint Position says more than just that. It sets the condition that "authority is established over a particular area". In other words, the actions with the purpose of gaining authority are always justified. They never constitute persecution. This implies that the right of self-preservation is not restrained. In the drafting period, a Spanish proposal had suggested the following more generous formulation: "In a civil war, persecution may stem either from the legal authorities or third parties encouraged or tolerated by them, or from de facto authorities in control of or in dispute over possession of part of the territory within which the State cannot afford its nationals protection, [emphasis added]"

This Spanish proposal was not adopted. The formulation chosen instead creates a problem for victims of persecution from areas where no clear territorial control exists, whether by the government or by the rebels. Victims from contested areas are simply not considered. Persecution that takes place in such areas is defined as non-existent. The following matrix illustrates the solution offered by the Joint Position:

Table 1. Persecution in Civil Wars

Persecution by government organs Persecution by insurgents

Territory under control refugees refugees

Contested territory no refugees no refugees

Interestingly, the solution of the Joint Position contrasts in this point from the doctrine the Federal Constitutional Court of Germany developed in the previously mentioned "Tamilenbeschlub"224 which it seems otherwise to repeat. The Federal Constitutional

224

"1st Voraussetzung fur eine vom Staat ausgehende oder ihm zurechenbare Verfolgung die effektive Gebietsgewalt des Staates im Sinne wirksamer hoheitlicher Uberlegenheit, so fehlt es an der Moglichkeit politischer Verfolgung, solange der Staat bei offenem Burgerkrieg im umkampften Gebiet faktisch nurmehr die Rolle einer militarisch kampfenden Burgerkriegspartei einnimmt, als ubergreifende effektive Ordnungsmacht aber nicht mehr besteht. Daher sind in diesem Gebiet etwa Mabnahmen des zur Biirgerkriegspartei gewordenen Staates dann keine politische Verfolgung im asylrechtlichen Sinn, wenn and soweit sie typisch militarisches Geprage aufweisen und der Ruckeroberung eines Gebietes dienen, das zwar de iure (noch) zum eigenen Staatsgebiet gehort, uber das der Staat jedoch de facto die Gebietsgewalt an die so bekdmpften anderen Krafte verloren hat. In einer derartigen Lage erscheint die Bekampfung des Burgerkriegsgegners durch staatliche Krafte im allgemeinen nicht als politische Verfolgung. Anderes gilt freilich dann, wenn die staatlichen Krafte den Kampf in einer Weise fuhren, die auf die physische Vernichtung von auf der Gegenseite stehenden oder ihr zugerechneten und nach asylerheblichen Merkmalen bestimmten Personen gerichtet ist, obwohl diese keinen Widerstand mehr leisten wollen oder konnen oder an dem militarischen Geschehen nicht oder nicht mehr beteiligt sind, vollends wenn die

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Court starts with the premise that persecution implies territorial control. Such control is typically lacking in civil war situations where the State has lost control and tries to regain it by military means. Such actions, thus, cannot constitute persecution as a rule. However, an exception has to be made for the case where state authorities fight in a manner which exceeds the aim of regaining control and constitutes genocide according to the Court. Thus, the Federal Constitutional Courts accepts such actions as persecution even though no territorial authority is established. The reasoning of the Court reflects the international law doctrine that a state of emergency, like civil war, does not justify the violation of ius cogens. In the words of UNHCR, "[i]n a situation of internal armed conflict, the aims of the warring parties, including a government's need to protect itself, do not justify the use of indiscriminate shelling or bombardment, torture or arbitrary punishment against certain sectors of the population."225 At this point, it must be noted that the whole debate turns around questions that are unimportant for the purpose of refugee law. The debate would only make sense if the following underlying assumption is accepted: refugee law depends on the legality of the State of origin's actions. The positions of the Federal Constitutional Court and of UNHCR remain within this framework. Arguments presented here up to now have been in favour of a change of framework. Necessity explains why the issues of State emergency and of State responsibility simply do not deserve the weight the Joint Position gives to them. Instead, both doctrines operate unfairly to the detriment of genuine refugees. It may be added that the approach adopted is not wise from a practical point of view either. Persons compelled to flee will do so notwithstanding sophisticated legal arguments concerning State responsibility and State emergency. The principle of necessity offers a more relevant framework of analysis which does not detract from the underlying purpose of refugee law. This argument is validated by the proposal of the European Commission for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection226. In Article 9/1 of the draft directive, the Commission proposes that "the fear of being persecuted or otherwise suffering unjustified harm is well-founded whether the threat of persecution or other serious unjustified harm emanates from: (a) the State; (b) parties or organisations controlling the State; (c) non-State actors where the State is

226

Handlungen der staatlichen Krafte in die gezielte physische Vernichtung oder Zerstorung der ethnischen, kulturellen oder religiosen Identitat des gesamten aufstandischen Bevolkerungsteils umschlagen." BVerfGE 80, p.315etseq. United Nations High Commissioner for Refugees, Information Note on Article 1 of the 1951 Convention, Geneva, March 1995, p.4. European Commission, COM (2001) 510 final dated 12 September 2001.

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unable or unwilling to provide effective protection." In the Explanatory Notes to the Commission proposal, the Commission explains its view: "This paragraph follows the practice of the vast majority of Member States and other global actors by affirming that the fear of being persecuted or suffering serious unjustified harm may also be well founded where the risk of it emanates not only from the State but also from parties or organisations controlling the State or from non-state actors where the State is unable or unwilling to provide effective protection. The source of the persecution or serious unjustified harm is deemed irrelevant."

As yet, it remains to be seen if the directive will be adopted by the Council of Ministers of the EU as proposed by the Commmission. 2.2 WELL FOUNDED FEAR AS OBJECTIVE STANDARD In practice, a significant reduction of the scope of the refugee concept can be achieved by applying the theory that well-founded fear, as referred to in the 1951 Refugee Convention, is an objective concept. It is pointed out that the term "fear" is ambiguous; it may imply a form of emotional response228; it may also signify simply anticipation229. The assertion is that "fear" refers to anticipation and, thus, to the objective risk of persecution. The most important consideration to back the understanding of fear as an objective risk is the following teological argument: the applicability of refugee law should be free from subjective considerations.230 It is anomalous to make distinctions between international legal obligations based on psychological factors.231 This argument rests on the premise that the central issue is whether or not an individual can safely return to his state. Thus, the claimant's anxiety level is simply not a

227

228

229

230 231

Ibid., p. 17. Fear may mean "the emotion of pain or uneasiness caused by the sense of impending danger" according to the Oxford English Dictionary. Fear may also mean "a particular apprehension of some future evil...(an) apprehensive feeling towards anything regarded as a source of danger, or towards a person regarded as able to inflict injury or punishment" according to the Oxford English Dictionary. J. Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991), p.69. Grahl-Madsen has voiced similar considerations: "In fact, with the exception which we shall discuss below, the frame of mind of the individual hardly matters at all. Every person claiming - or being claimed (as in the case of minors) - to be a refugee has "fear" ("well-founded" or otherwise) of being persecuted in the sense of the present provision, irrespective of whether he jitters at the very thought of his return to his home country, is prepared to brave all hazards, or is simply apathetic or even unconscious of the possible dangers." A. Grahl-Madsen, The Status of Refugees in International Law, Vol.1 (A.W.Sijthoff, Leyden, 1966), p. 174.

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relevant consideration.232 This line of argumentation is approved by the British House of Lords in the case Sivakumaran: "...the general purpose of the convention is surely to afford protection and fair treatment to those for whom neither is available in their own country and does not extend to the allaying of fears not objectively justified, however reasonable these fears may appear from the point of view of the individual in question....Fear of persecution, in the sense of the convention, is not to be assimilated to a fear of instant personal danger arising out of an immediately presented predicament...The question is what might happen if he were there. Whether that might happen can only be determined by examining the actual state of affairs in that country."233

In a concurrent judgement, Lord Goff states: "...the true object of the convention is not just to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven for those unfortunate people whose fear of persecution is in reality well founded."234 In sum, the argument is that fear be properly understood as an objective criterion. What matters are the facts of a case and not the state of mind of the claimant. The practical consequence is that the refugee recognition procedures require a prognosis. The crucial question for refugee recognition procedures is: Does the claimant face persecution in the case of his return? This question should be answered by the refugee adjudicator on the basis of all established facts on the situation in the country of origin. This line of thought leads to another question. What is the appropriate standard of probability applicable to refugee proceedings? US case law insists on proof of risk on a balance of probabilities235: harm must be "more likely than not"236. Goodwin-Gill notes that the degree of persecution and the degree of likelihood ought to be linked: the more serious the harm the individual fears, the less likely the risk of harm has to be in order to warrant refugee status.237

J. Hathaway, The Law of Refugee Status, n. 230 above, p.69. R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.) at 196f., per Lord Keith of Kinkel. 234 Ibid., at 202, per Lord Goff of Chieveley. J. Hathaway, The Law of Refugee Status, n. 230 above, p.76. 236 Supreme Court of Canada in Kwiatkowsky v. Minister of Manpower and Immigration (1982), 54 NR 116 (S.C.C.) at 123, per Wilson J. In the case of I.N.S. v. Cardoza-Fonseca the American Supreme Court rejected the traditional "balance of probabilities" standard in favour of a more generous "reasonable possibility" test: "There is simply no room in the United Nations definition for concluding that because an applicant has a 10% chance of being shot, tortured, or otherwise persecuted, that he or she has no 'wellfounded fear' of the event happening.... [A] moderate interpretation of the "well-founded fear' standard would indicate that so long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility."467 U.S. 407 (1987) at 453 per Stevens J. "The examiner must make a reasoned guess as to the future, while also taking account of the element of relativity between the degree of persecution feared (whether death, torture, imprisonment, discrimination, or 233

235

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The assertion that "well-founded fear of persecution" is an objective risk prognosis rests on a certain silent theoretical background assumption - the human rights theory of refugee protection. The basic understanding is that refugee law serves as a backup system for the human rights system. Thus, the central question is: will the return of an individual lead to human rights violations? Only if human rights violations can be anticipated, is refugee protection warranted and necessary. Hence, the core issue of the refugee determination procedure is the prognosis of a human rights violation in the case of return.

2.2.1 Prognosis as a Procedural Problem The elementary problem of a prognosis is the human inability to foresee the future.238 A prognosis cannot be true or untrue at the time of decision making because the fact to which it refers simply does not exist - it can only be well or badly founded. Practically, the problem can be handled by drawing a certain factual inference from the existence of a certain set of facts. The structure of a prognosis is similar to the structure of so-called presumptions of fact.239 The prognosis is a technique, whereby on the basis of proof of one fact (the basic fact) the decision maker may, by common sense, infer the likelihood of another fact in the future (the prospective fact).240 It is clear that a future fact cannot be inferred with certainty, but only with a certain probability.241 The insight, that the refugee determination procedure requires a prognosis, is complicated by the object of the prognosis. Since persecution is not just harm, but a certain harmful action, the prediction concerns human behaviour. It follows from human autonomy, that human behaviour can be predicted only by reference to choice of the concerned individual. 242 One must understand persecution as an act based on practical

238 239

241

prejudice, for example), and the degree of likelihood of its eventuating." G. Goodwin-Gill, The Refugee in International Law (2nd edn, Oxford University Press, Oxford 1996), p.24. "The examiner must make a reasoned guess as to the future,..." Ibid. "In this sense we may come across the "presumption of continuance" whereby the trier of fact may infer the existence of a state of affairs from its existence at an earlier point in time." A.A.S. Zuckerman, The Principles of Criminal Evidence (Clarendon Press, Oxford 1989), p.l 12. " 'Presumption', like so many other terms in this field, is used in several senses. For the time being we are interested in the central sense which denotes a rule of law whereby on proof of one fact (the "basic fact") by the proponent the court is duty bound to find the existence of another fact (the "presumed fact"), unless the contrary is proved by the opponent or, as is sometimes the case, unless the opponent adduces evidence to the contrary." Ibid., p. 110. cf. J. Dung, Beweismab und Beweislast im Asylrecht (C.H.BECK, Munchen 1990), p.70-71. "Looking, as it does, to the future, the refugee definition is concerned with possibilities and probabilities rather than with certainties." Canadian Minister of Employment and Immigration, "New Refugee Status Advisory Committee Guidlines on Refugee Definition and Assessment of Credibility" (1982), at Guideline 4. "The factual element in autonomy is that individuals in general have the capacity and sufficient free will to make meaningful choices. Over the centuries the "free will" argument has been contradicted by the "determinist" claim that all human behaviour is determined by causes that ultimately each individual cannot control." (A. Ashworth, Principles of Criminal Law (2nd ed., Clarendon Press, Oxford, 1995), p.26) This

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reasoning.243 Such reasoning may lead to a decision to persecute, but it does not necessarily have to lead to such a decision. The task of predicting persecution can be meaningfully tackled only, if the prediction is based on the decision to persecute. Therefore, the basic fact which enables one to predict persecution of an individual in the future, consists in the decision of the persecutor to persecute the specific individual.244 The decision of the persecutor is an internal fact. In most cases, it can only be discovered by circumstantial evidence. However circumstantial evidence is never conclusive: "An evidential fact is one which, on being ascertained, affords some logical basis - not conclusive - for inferring some other facts."245 This operation is governed by "logic and commonsense"246. "The relation of an evidential fact (...) to the fact it tends to prove (...) is referred to as relevance. One fact is relevant to another if the existence of the former increases the probability of the latter's existence or non-existence."247 At the heart of the refugee determination procedure is an inner fact - the decision to persecute - which can be approached only by circumstantial evidence. This account of the practical problems of refugee determination procedure draws our attention to the principal problem of every prognosis. Every prognosis has to rely heavily on various generalisations furnished by logic and commonsense. Sounding a sceptical note about such generalisations, Twining writes: "In respect of any...generalisation one should not assume too readily that there is in fact a "cognitive consensus" on the matter. The stock of knowledge in any society varies from group to group, from individual to individual and from time to time. Even when there is a widespread consensus, what passes as "conventional knowledge" may be untrue, speculative or otherwise defective. Moreover, "common-

determinist objection is only partly relevant. The work of Anthony Kenny is especially instructive on the issue. According to him, not all forms of determinism are incompatible with freedom. Psychological forms of determinism are not compatible with freedom, whereas physiological forms of determinism are compatible, see A. Kenny, Freewill and Responsibility (Routledge & Kegan Paul, London, 1978) ., p.22 et seq. 243 "Reasons explain actions that have been performed in the same way as practical reasoning leads to decisions about actions that are to be performed. Practical reasoning - reasoning about what to do - differs from theoretical deduction in an important way: to use a convenient technical term borrowed by philosophers from lawyers, practical reasoning is defeasible. That is to say, a conclusion which may be a reasonable one from a given set of premisses may cease to be a reasonable one when further premisses are added. (This is because the premisses of practical reasoning set out the goals to be achieved and the possibilities of achieving them: a decision which is reasonable in the light of a narrow set of goals may be inadequate in the light of a larger set.) Because rules of practical inference are defeasible, whereas causal laws are not, reasons cannot be regarded as causes." Ibid., p.29. This presupposes a known persecutor. 245 W. N. Hohfeld, Fundamental Legal Conceptions as applied in Judicial Reasoning (Greenwood Press, Westport, Connectitut 1978), p.34. 246 J. B Thayer, A Preliminary Treatise on Evidence at Common Law (Little, Brown & Co, Boston 1898), p.263. 247 A.A.S. Zuckerman, The Principles of Criminal Evidence (Clarendon Press, Oxford, 1989), p.24.

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sense generalisations" tend not to be "purely factual" - they often contain a strong mixture of evaluation and prejudice, as is illustrated by various kinds of social, national and racial stereotypes."248

Refugee law is highly vulnerable to unfounded and prejudiced assumptions that have a decisive impact on the prognosis of persecution so crucial for the purpose of recognition as a refugee. Grahl-Madsen saw this difficulty: "For the great masses there will be a presumption, hard for them to disprove, that they have fled more in order to escape economic misery, than because they fear political persecution...It may seem as if there is a tendency to draw the line differently, depending on the differences of economic levels between the countries in question. If the flow is from one of the poorest countries in the world into one of the richest, as is the case of the Haitians trying to get into the United States, the scales may be heavily weighted 249 against the newcomers...

Another problem of refugee recognition, based on a prognosis of persecution, is connected to the general problem of evidence in refugee recognition procedures. The fact that refugee proceedings typically lack evidence is well known and generally accepted.250 First, the facts of the case generally take place abroad. The decision-maker, in most cases, cannot request aid from the authorities of the state of origin in order to get hold of evidence.251 Often the State of origin is involved or linked to the persecution of the refugee, or it is afflicted by general chaos. Secondly, reliable evidence is rare. Written documents are just as rare: more notably, genuine refugees will not be in a position to prepare such documents.252 Official documents might be difficult to obtain. Private letters may be easily forged. Witnesses are regularly not available.253 The reports of embassies of the State of refuge often conceal occurrences or uncritically repeat official versions out of diplomatic considerations.254 Apart from the account of the refugee and general human rights records, there are hardly any means of establishing and verifying the basic facts that lend credence to the

249

250

252

254

W. Twining, Theories of Evidence: Bentham and Wigmore (Weidenfels & Nicholson, London, 1985), p. 146. A. Grahl-Madsen, 'International Refugee Law Today and Tomorrow' (1982) 20 Archiv des Volkerrechts, p.422. "The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself. Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account of his case." UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, p.47 at 197. J. Duirig, Beweismab und Beweislast im Asylrecht, n.76 above, p.6. Ibid. G. Muller, "Das Verfahren in Asylsachen1, in: W. Beitz/ M. Wollenschlager (Eds.), Handbuch des Asylrechts - unter Einschlub des Rechtes der Kontingentfluchtlinge, Vol.2, p.387. H. Herrmann, 'Probleme des Asylrechts in der richterlichen Praxis' [1981] ZAR, p.l 15 n. 34; Constitutional Court of Germany, decision of 25.2.1983, BVerfGE 63,197 (214).

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prognosis. Reports from reliable sources usually concern the general situation in a country. In very rare cases - for example, if the refugee is a prominent figure - do reports actually pronounce the fate of individual refugees. In the overwhelming majority of cases, the fate of individual refugees remains hidden in anonymity. In these cases, the only practically meaningful means of evidence concerning the fate of the individual is the refugee claimant's testimony. "In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."255 The Joint Position of the Justice and Home Affairs Council of the European Union of 4 March 1996 on the harmonised application of the definition of the term "refugee" recognises the problem: "It should be understood that once the credibility of the asylum-seeker's statements has been sufficiently established, it will not be necessary to seek detailed confirmation of the facts put forward and the asylum-seeker should, unless there are good reasons to the contrary, be given the benefit of the doubt."256 The claim that it is up to the adjudicator to foresee the risk of persecution combined with the practical problems of actually making such a prognosis accurately and correctly, ensures that refugee determination rests more on common sense generalisations, or on a mixture of evaluation and prejudice to put it differently. Unfortunately, in a climate which is opposed to immigration, this means that refugee law is easily deprived of its effectiveness. The preconceptions of decision makers are decisive. The assertion that refugee recognition procedures should rest on an objective assessment of risk leads to the practical conclusion that the common lack of evidence operates against the claimant. In the interest of the effectiveness of refugee law, such an understanding should be avoided because the practical possibilities of the authorities of the state of refuge making a correct prognosis are very limited indeed. 2.3 ATTEMPTS TO LIMIT THE SCOPE OF APPLICABLE HUMAN RIGHTS Another strategy to narrow the scope of the refugee concept is the limitation of human rights violations, which are covered by the concept of persecution and thus lead to refugee status. It has already been asserted that the proliferation of human rights entails that not all human rights violations can give rise to refugee status. Otherwise, states could not pursue their restrictive immigration policy. Thus, the need arises to emphasise some human rights violations and discard others. This objective is largely pursued by highlighting the

255 256

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, p.47 at 197. Joint Position of 4 March 1996 defined by the European Council on the basis of Article K.3 of the Treaty on European Union on the harmonized application of the definition of the term "refugee" in Article 1 of the Geneva Convention of 28 July 1951 relating to the status of refugees, Official Journal of the European Communities No. L 63, 13.3.96, p.3 at 3.

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theoretical difference between political and civil rights and economic and social rights; the assertion is that political and civil rights are more important and targeted at individuals and should, thus, lead to refugee status, whereas economic and social rights affect more people and would, thus, conflict with restrictive immigration policy. A good example of this method of argumentation can be found in Gunnel Stenberg's book NonExpulsion and Non-Refoulement257. A more refined distinction between civil and political rights and economic and social rights is proposed by Hathaway. His classification of human rights for the purposes of applying refugee law merits close analysis and is, therefore, briefly described here. He differentiates between four different types of obligations within the International Bill of Rights and analyses their interpretative value for the purposes of refugee law.258 First, those human rights in the International Convention on Civil and Political Rights (ICCPR) from which no derogation whatsoever is permitted, even in times of compelling national emergency according to Art 4 of the ICCPR.259 These include: freedom from arbitrary deprivation of life (Art.6); protection against torture or cruel, inhuman, or degrading punishment or treatment (Art.7); freedom from slavery (Art.8); the prohibition of criminal prosecution for ex post facto offences (Art. 15); the right to recognition as a person in law (Art. 16); and freedom of thought, conscience, and religion (Art.18).260 A violation of any of these rights will always constitute persecution. Secondly, those rights in the ICCPR, from which states may derogate during a "public emergency which threatens the life of the nation and the existence of which is officially proclaimed". These include: freedom from arbitrary arrest or detention (Art.9,10); the right to equal protection for all (Art.3, 26); the right in criminal proceedings to a fair and public hearing and to be presumed innocent unless guilt is proved (Art. 14); the protection of personal and family privacy and integrity (Art. 17, 23); the right to internal movement and choice of residence (Art. 12/1); the freedom to leave and return to one's country (Art. 12/2-4); the liberties of opinion, expression, assembly and association (Arts. 19-22); the right to form and join trade unions (Art.22); the ability to partake in government

257 258 259

260

Gunnel Stenberg, Non-Expulsion and Non-Refoulement (lustus Forlag, Uppsala, 1989). J. Hathaway, The Law of Refugee Status, n. 230 above, p. 108 et seq. Art. 4 of the ICCPR reads: "1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extend strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. 2. No derogation from articles 6,7,8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision." J. C. Hathaway, The Law of Refugee Status, n. 230 above, p. 109.

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(Art.25a); the right to vote in periodic and genuine elections (Art.25b); and the ability to access to public employment without discrimination (Art.25c). Hathaway concludes: "The failure to ensure any of these rights will generally constitute a violation, unless it is demonstrated that the government's derogation was strictly required by the exigencies of a real emergency situation, was not inconsistent with other aspects of international law, and was not applied in a discriminatory way"261.

Thirdly, those rights contained in the Universal Declaration on Human Rights and carried forward in the International Convenant on Economic, Social and Cultural Rights (ICESCR). Art.2 of the ICESCR reads: "1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. 2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

In contrast to the ICCPR, the ICESCR does not impose absolute and immediately binding standards of attainment, but rather requires states to take steps to the maximum of their available resources to progressively realise rights in a non-discriminatory way. This obligation has recently been interpreted to mean, inter alia, that states must, regardless of their level of development, ensure respect for minimum subsistence rights for all, and that in assessing the adequacy of measures undertaken, "attention shall be paid to equitable and effective use of and access to the available resources", including those available through international co-operation and assistance262. The basic values protected are: the right to work (Art.6); just and favourable conditions of employment, remuneration, and rest (Art.7); entitlement to food, clothing and housing (Art. 11/1); medical care (Art. 12); social security (Art.9); basic education (Arts. 13-14); protection of the family, particularly children and mothers (Art. 10); and the freedom to engage and benefit from cultural, scientific, literary, and artistic expression (Art.15).

261 262

Ibid.,p.llO The Limburg Principles, Principles 0.10-0.13, reported at (1986), 37 I.C.J.Review 43.

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Hathaway continues: "While the standard of protection is less absolute than which applies to the first two categories of rights, a state is in breach of its basic obligations where it either ignores these interests notwithstanding the fiscal ability to respond, or where it excludes a minority of its population from their enjoyment".

Fourthly, those rights of the Universal Declaration of Human Rights, which were not codified in binding form in the ICCPR and ICESCR, such as the right to own and be free from arbitrary deprivation of property,263 and the right to be protected against unemployment264. These rights remain outside the meaning of persecution according to Hathaway. Hathaway bases his arguments on a silent assumption. He assumes that the nature of the obligation of the State of origin is of decisive importance for the refugee concept. In other words: somebody fleeing a situation which does not amount to a human rights violation of the State of origin, cannot be accepted as refugee. This assumption is tenable, but is it justified? Even though a limitation of the capacity of receiving States merits consideration, the following question merits close attention: is the nature of the obligation of the State of origin the most relevant consideration and the most appropriate criterion to distinguish between migrants who receive refugee status and others who do not? If the actual human rights obligations of the State of origin are of decisive importance, then this argument can be further stressed to achieve yet another limitation. The point is that different countries have accepted different human rights instruments. Is it an acceptable proposition that somebody be accepted as a refugee from a country which has ratified the ICCPR, whereas somebody who comes from a country which has not ratified the ICCPR is barred from refugee status? Is it not necessary to refer to a truly universal criterion for refugee protection? The crux of the argument is that it would not be acceptable to state that somebody is accepted as a refugee or not, depending on the human rights conventions the state of origin ratified. This would lead to discrimination. Thus, only truly universal human rights standards can serve as a basis for refugee status. This argument leads to a limitation to customary or peremptory human rights265 under the assumption that only these human rights norms can aspire to true universality. The views

263 264 265

AH.17 UDHR. Art.23 UDHR. The concept of customary and peremptory human rights law is notoriously mysterious. However, there are some formulations which might aspire to a certain degree of authority. The Restatement (third) of the Foreign Relations Law of the United States adopted in 1987 by the American Law Institute (cited in H. J. Steiner and P. Alston, International Human Rights In Context - Law, Politics, Morals (Clarendon Press, Oxford 1996, p. 145) is a non-official document, adopted and promulgated by the American Law Institute, whose membership consists of judges, legal academicians, and lawyers involved in private practice and in government.

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of the German scholar Ernst Reichel266 are a good example for this course of argumentation. The limitation to customary or peremptory human rights achieved in this manner is especially problematic, as the limitations of customary human rights law ensure that many typical refugee situations, such as civil wars and public unrest, would be excluded as was demonstrated earlier. Even if the capacity of receiving States is considered limited, it is doubtful that the proposal to distinguish refugees from non-refugees on the basis of the nature of the obligation of the State of origin is the best option. Refugee law is based on the desperate need of individuals; thus, any limitation which is proposed must also be based on a consideration of the urgency of the need of the concerned individuals. The capacity of receiving States might be considered to be limited and this consideration merits attention, but any limitation must be constructed on the basis of an analysis of the urgency of the underlying need. The criterion of international obligations of the State of origin is not a suitable criterion for distinction and the setting of priorities in this regard. 2.4 THE REASONS OF PERSECUTION AND DISCRIMINATION The Convention mentions a limited enumeration of reasons of persecution, which give rise to refugee status. Theories constructed to explain these reasons and their purpose can be used to justify limitations of the refugee concept.

2.4.1 Marginalisation First, there is the proposition that underlying the Convention is an expectation that only those who are socio-politically marginalized and, thus, less likely to be in a position to seek effective redress from within the state of origin, should be accepted as refugees.267 The argument is that the drafters conceptualised the refugee status as a form of surrogate protection; therefore, refugee law excludes "those who enjoy the basic entitlements of membership in a national community, and who ought reasonably to vindicate their basic human rights against their own State. Refugees are unprotected persons, not just in the sense that their basic liberties or entitlements are in jeopardy, but more fundamentally because it is impossible for them to work within or even to restructure the national community of which they are nominally a part in order to exercise

266

267

E. Reichel, Das staatliche Asylrecht ,,im Rahmen des Volkerrechts" (Duncker & Humblot, Berlin, 1987), p. 76. J. C. Hathaway, The Law of Refugee Status, n. 230 above, p. 136.

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those human rights. Their position within the home community is not just precarious; there is also an element of fundamental marginalisation which distinguishes them from other persons at risk of serious harm"268. "Under the Convention, then, if the peril a claimant faces - however wrongful it may be - cannot somehow be linked to his sociopolitical situation and resultant marginalisation, the claim to refugee status must fail."269 The required link to the socio-political status is established if the person being persecuted is member of a minority; this minority is distinguished by one of the characteristics mentioned in the Convention; the minority is separated from the main body politic. According to Hathaway, this reasoning is the main obstacle to interpreting refugee status as a response to human misery as a whole. It is suggested that any person whose basic dignity is threatened should be entitled to seek protection abroad (e.g. victims of war, natural disasters, etc.). According to Hathaway, this generous perspective collides with the implicit assumption of the Convention that unless excluded from the national community, one should vindicate claims to liberties, entitlements and safety from within the state and create the relevant structures, if necessary. Hathaway's theory leads to the result that the reasons of persecution are a conceptually essential part of the refugee concept and justified. Hence, it is justified to interpret them strictly. He interprets the list of reasons in the Convention as expressing a principle of nondiscrimination; the rationale of the enumeration of reasons of persecution appears to be as follows: serious harm is especially tragic if it occurs to a marginalized individual due to one of the above mentioned reasons because this group of people is unlikely to find effective redress from within the state. Therefore, refugee law has been devised to accommodate these victims of discrimination. Several objections could be raised to this proposition. First, the text of the Convention definition does not back this view: "...owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the county of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." Hathaway argues that race, religion, etc. are reasons which make it unlikely that effective redress will be found within the state. However, the Convention mentions the reasons only in the context of fear of persecution and not in the context of the availability of national protection. A refugee is a person who fears persecution for the

268 269

Ibid.,p.l35. Ibid.,p.l36etseq.

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aforementioned reasons. According to Hathaway, a person is a refugee when he is unable to avail himself of national protection because of race, religion, etc. A closer analysis of the text reveals that this proposed interpretation is not plausible. The text of the Convention contains a 'comma' with interpretative significance: "...well-founded fear of being persecuted for reasons of...membership of a particular social group or political opinion,!!] is outside the country ...and is unable ....to avail himself of the protection of that country." The 'comma' indicates that the Convention speaks of the reasons for persecution and not of the reasons for inability to access national protection. Secondly, Hathaway presupposes that the drafters followed the rationale of nondiscrimination when they elaborated on the Convention definition. However, this assumption is not sufficiently backed up by the traveaux preparatoires. During the negotiations of the 1951 Convention a Swedish delegate remarked that "...experience had shown that certain refugees had been persecuted because they belonged to particular social groups...Such cases existed, and it would be as well to mention them explicitly."270 This statement is a clear indication that the main reason for the enumeration of reasons for persecution is historical experience. The drafters relied on historical experiences when drafting the definition. Contrary to Hathaway's assumptions, the enumeration of reasons for persecution does not express any principle. The limitation was introduced to make future obligations calculable. This can be confirmed by the drafting history of the 1951 Convention. The American proposal271 explains this reasoning: "The United Nations Government considered that the categories of refugees to which the draft convention under discussion should apply should be clearly enumerated...Too vague a definition, which would amount, so to speak, to a blank check, would not be sufficient...Finally, it was inconceivable that the United Nations should undertake responsibility in advance for all possible refugees who might become such as a result of unpredictable happenings in the future...The categories of refugees coming under the convention should therefore be clearly and specifically determined"272. "...[T]he obligations of signatory States must be accurately defined and that could not be done unless the categories to benefit were fixed at a given date. The States concerned could subsequently extend the scope of their obligations, but they could not undertake unlimited obligations in advance."273 The enumeration in the Convention was intended to serve as a limiting factor. The list of

270

271 272 273

Statements of Mr. Petren of Sweden, U.N. Doc. A/CONF.2/SR.3, at 14, November 19, 1951; and U.N.Doc. A/CONF.2/SR.19, at 14, November 26, 1951. The Swedish amendment (incorporated in U.N.Doc. A/CONF.2/9) was adopted without discussion, cited in: James C. Hathaway, The Law of Refugee Status, p.!57n. 153. UNDoc E/AC.32/L.4. UNDoc E/AC.32/SR 3, at 37, 39,40. Mr. Henkin of the USA, UNDoc E/AC.32/SR.3, at 13, January 26, 1950.

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reasons for persecution is not an expression of an underlying principle, but rather a policy decision. This view can be also backed by the text of the Final Act of the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons: "E. The Conference, expresses the hope that the Convention relating to the Status of Refugees will have value as an example exceeding its contractual scope and that all nations will be guided by it in granting so far as possible to persons in their territory as refugees and who would not be covered by the terms of the Convention, the treatment for which it provides."274 The enumeration is an expression of the limited contractual scope of the Convention. Ideally, every person who is persecuted should be considered a refugee, regardless of the reasons for persecution. Linking refugee status to the concept of discrimination is not helpful in this respect. It could have the opposite effect and justify the enumeration of the 1951 Convention. Persecution is terrible in itself; it does not increase in significance due to discrimination. Perversely, discriminatory persecution is actually positive in comparison to indiscriminative persecution; it means that some are actually spared. According to this view, persecution contains an essential element: discrimination. Without discrimination, there could be no persecution. This interpretative assertion is weak. However, it makes perfect sense to say that an insane dictator persecutes all subjects equally. This is not a contradiction in terms. It follows that persecution does not contain this presumed essential element of discrimination. Unfortunately, the Joint Position concerning a harmonised application of the definition of "refugee" in Article 1 of the 1951 Refugee Convention275 adopted by the Council of Ministers of the European Union on 4 March 1996 falls into the same trap. Section 5.1.1.(a) reads: "The official authorities of a country are sometimes moved to take general measures to maintain public order, safeguard State security, preserve public health, etc. As required, such measures may include restrictions on the exercise of certain freedoms. They may also be accompanied by the use of force, but such restrictions or use of force do not in themselves constitute sufficient grounds for granting refugee status to the individuals against whom the measures are directed. However, if it emerges that such measures are being implemented in a discriminatory manner on one or more of the grounds mentioned in Article 1A of the Geneva Convention and may have sufficiently serious consequences, they may give rise to a well-founded fear of persecution on the part of individuals who are victims of their improper application."

Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, United Nations Treaty Series, vol. 189, p.37. Official Journal of the European Communities, Series L, No 63/1996, pp.2-7.

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The element of discrimination is also mentioned in other provisions of the Joint Position, like sections 5.1.2 (a) and (b). It appears that the Joint Position maintains that persecution essentially contains an element of discrimination. In short, without discrimination there would be no persecution. If persecution implied discrimination, the reasons for persecution would serve merely as a clarification of the very concept of persecution. However, the drafting history shows that the reasons for persecution were inserted as a limitation of international obligations incurred by the contracting states, as seen above. The content of these limiting reasons was based on historical experience. Hence, persecution is not conceptually limited to reasons like race, religion, nationality, membership of a particular social group or political opinion. Actually, the theory of persecution as discrimination is based solely on the similar wording of the reasons for persecution and non-discrimination clauses in international treaties. This contention on its own is too weak. The wording is strongly similar due to the fact that the historical experiences which guided the phrasing of the nondiscrimination clauses and the refugee definition are identical. 276 However, nondiscrimination clauses and the refugee definition serve very different purposes. Nondiscrimination clauses declare legal distinctions, based on certain characteristics, that are prima facie prohibited. The refugee definition does not serve any such purpose. It is quite clear that persecution, in itself, is wrongful without reference to discrimination. Discrimination might constitute a reason for the fear of persecution. This does not mean that persecution necessarily consists of discrimination. The theory blurs the differences.

2.4.2 Motivation Another attempt to limit the scope of the refugee concept and to justify the enumeration contained in the 1951 Refugee Convention is as follows: The underlying principle of refugee law is the conviction that no state has the right to endanger the physical integrity, the life or the personal freedom of an individual for reasons which are solely based on the political or religious conviction or on unalterable characteristics of the individual.277 Refugee law is based on the principle of tolerance. Refugee law is not a response to certain harmful actions, but to certain harmful actions carried out with a 276

"The Convention identifies five relevant grounds of persecution, all of which, in varying degrees, have been correspondingly developed in the field of non-discrimination." G. Goodwin-Gill, The Refugee in International Law (first ed., Oxford University Press, Oxford, 1983), pp.26-27. The German Federal Administrative Court stated: "Dem Asylrecht liegt die Uberzeugung zugrunde, daB kein Staat das Recht hat, Leib, Leben oder die personliche Freiheit des einzelnen aus Grunden zu gefahrden, die allein in seiner personlichen Uberzeugung oder religidsen Grundentscheidung oder in unverfugbaren, jedem Menschen von Geburt an anhaflenden Merkmalen liegen". BVerwGE 67, 187.

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certain specific motivation. Therefore, persecution is characterised by a certain motivation which negates tolerance.278 The reasons for persecution are ultimately the reasons that motivate the state to persecute. The text of the Convention puts in question the view that reasons for persecution are motivations for persecution. As a matter of fact, the Convention speaks of the reasons of the fear of being persecuted. Hence, it is unlikely that the Convention meant the motivation of the persecutor. The motivation of the persecutor is the reason for persecuting, not the reason for fear of being persecuted. In other words, the Convention adopts the victim's perspective. From the victim's perspective, the actual motivation of the persecutor is not a relevant consideration. The theory of the relevancy of certain motivations for the purposes of refugee law is also largely unconvincing. The theory claims that refugee law is a response to a certain motivation. Ultimately, the idea that persecution implies a certain motivation can be traced back to the misleading picture of the refugee as a fugitive from injustice.279 The motivation of the persecutor constitutes the injustice from which the refugee is supposed to flee. However, this picture does not explain why one should treat refugees the way we do. A careful analysis of this question reveals that neither injustice nor the motivation of the persecutor is a relevant consideration which should guide our refugee practice. Both moral280 and practical281 considerations make it clear that no distinction between victims of other catastrophes and victims of injustice is warranted. Rather, it is the understanding that the flight is not outcome of a free choice, but of necessity and that refugees are likely to be forced into illegal immigration, especially if they are not allowed a legal channel for immigration, which underpins refugee law. Persecution is commonly understood as an intentionally harmful action. What is the difference between intention and motivation? In ordinary language, motive and intention often appear interchangeable. Both refer to reasons for an action. In short, intention is a wider term than motivation.282 A person intends to do what he does for his own sake, or what he does in order to achieve some further end. Motivation refers merely to the final end of action.

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279

280 281

The German Federal Administrative Court stated: "Politisch sei daher eine Verfolgung wegen ihrer Motivierung durch personelle Merkmale, an die mit Verfolgungsmafinahmen anzuknupfen, dem Toleranzgebot grundlegend widerstreitet". Ibid, p. 188. See section 3.1.6 Persecution and Punishment below. See section 1.7.4 Refugees and Immigration Control above. See section 1.7.5 Refugees and Deterrence: The Cold Logic above. A. Kenny, Freewill and Responsibility (Routledge & Kegan Paul, London, 1978), p.48.

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The distinction between the two results in important consequences. An intention can be distinguished from the course of action. An action can be interpreted as persecutory because of the determination evident in its execution, the use of resources, the efforts undertaken. However, motivation refers to the ultimate goal of the actor. This ultimate goal is present only to the mind of the person involved. It is not mirrored in the course of action. This means that the ultimate end is very difficult to discern from the present course of action chosen. It is impossible to look into the persecutor's mind. In the context of refugee law, this means that one has to rely on the information given by the persecutor himself for his motives. This proposal is undesirable, to say the least. Also, it becomes easy for anybody to deny refugee status with the argument that the persecution serves some justified intention or goal like national security or other interests of the state. In fact, it is dangerous and is bound to unfairly restrict the scope of refugee law. This effect is also the reason why ultimate intentions or motivations should play an insignificant role in law generally. "Though the law often interests itself in people's intentions, it is rarely concerned with whether a particular intention283 is an ultimate intention or not."284 The argumentative strategies presented in chapter 2 to limit the scope of the refugee concept were based on certain implicit theories of the purpose of refugee law encountered in chapter 1. The next chapter will demonstrate which interpretative choices are favoured by the necessity theory of refugee law.

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284

We find an analogous construction in Criminal law - crimes of specific intent. Such crimes are contrasted with crimes of basic intent, where only the intention to perform the actus reus of the crime is required. Crimes of specific intent, on the other hand, are not committed unless the prohibited action is done with a particular intention which is specified in the crime. However, this intention is not equivalent to motivation. "Thus, if a man breaks into a house to steal money to buy medicine for his wife, he has an intent to steal, but his motive is to buy medicine." (Ibid, p.49) Likewise, if the secret police persecutes all liberals of a given country because they are liberals, it is irrelevant if the officials act in the spirit of national glory. Ibid., p.47.

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CHAPTER 3

THE NECESSITY APPROACH TO INTERPRETING THE REFUGEE CONCEPT

This chapter will explore interpretative positions to the 1951 Refugee Convention, which are backed and supported by the theoretical approach based on the concept of necessity developed in chapter 1. The objective is not to propose a completely new interpretation in all cases, but to link certain interpretative positions with the necessity approach visibly and intelligibly. This linkage, between a certain interpretation of the refugee concept to a specific theory of refugee law (here the necessity approach), will highlight the practical importance of theory; it is the pre-understanding of the refugee concept and its purpose which determines the practical conclusions which a certain interpretation of the refugee concept calls for. In the past, too little attention has been paid to the specific theory underlying a certain interpretation of the refugee concept. Here, a special effort is made to explicitly state the pre-understanding which guides the proposed interpretative choices. The aim is to achieve an interpretation of the refugee concept that is stringent and convincing, and supports the advocates of a generous refugee policy in the rich West. 3.1 PERSECUTION A refugee is generally seen as somebody who has been compelled to leave his country of origin285(i.e. he did not have a meaningful choice but to flee) and deserves special attention for this reason. However, it is clear that in most cases the flight of refugees is a voluntary act. It is not a reflex or unconscious action. A person acts freely when he does X only if at the relevant time he can286 abstain from doing X if he wants287 to do so. Here

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"Es muB der humanitaren Intention entnommen werden, die das Asylrecht tragt, demjenigen Aufnahme und Schutz zu gewhren, der sich in einer fur ihn ausweglosen Lage befindet." German Constitutional Court BVerfGE 80, 315, B.v.10.7.1989 - 2 BvR 502/86; 1000/86; 961/86 (Sri Lanka). For detailed explanation see fn 100 in section 1.7.2 above. Kenny differentiates four different classes of want. First, there are sensual appetites such as hunger, thirst, sleepiness and sexual desire. Second, there are purposes: wants for long-term and short-term goals which are valued for their own sakes. Third, there are intentions to adopt means to one's ends, be it sensual appetites or purposes. "Finally, there is the kind of want which is the very minimum that is necessary if an action is to be voluntary: the kind of wanting which we may call "consent". Something is wanted in this minimal sense if it is something which the agent chooses neither as a means nor as an end, but which would

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a point could be made that refugees could stay in their countries and simply suffer persecution. Hence the flight of a refugee is based on choice. Seen from this perspective, their flight is voluntary. However, the refugee does not have a real choice. This aspect merits consideration. The point is that a refugee cannot realistically be expected to stay in the country of origin. The choice to stay would be equivalent to the choice of putting oneself at risk. Following established legal terminology, it can be said that a refugee acts under necessity.288 The refugee, therefore, does not have any meaningful choice even though he does make a choice. What constitutes the necessity of the refugee? Serious harm can constitute such a condition. Thus, the meaning of persecution here refers to harm.289

3.1.1 Harm So far, it has been argued that refugee law rests on the concept of necessity and ultimately on compassion. The underlying sentiment is that if any one fears the same harm faced by a refugee, he would likewise flee. The threshold of necessity lies at the point at which "a person of reasonable firmness" would be "unable to resist". Determining this threshold is patently a matter of moral judgement about what people are expected to be able to resist in trying situations. There is no easy answer to this question. Fortunately, criminal law offers an established legal tradition which deals with exactly this question. According to a well-established doctrine, duress excuses a criminal act290. However, this defence seems to be very limited. In British case law, only danger of death or serious injury291 justifies necessity. Threats to property or to reputation have been held to be insufficient292. However, there was a dictum in Steane (1947)293 that a threat of false imprisonment would suffice. One must also consider the seriousness of the actions which duress in criminal law is meant to excuse. "A dire threat should be necessary to excuse a person who caused a grave harm, but it does not follow that some lesser threat should not not take place were it not for the agent's pursuit of one of his purposes. I cross a neighbour's field in order to take a swim in the river; as I walk on my way I do a certain amount of damage to the grass or squash the organisms: doing so is neither a purpose of mine nor a means to my ends. But I do consent to these things: I prefer to do them than to give up my purposes and the means I have chosen." Anthony Kenny, Freewill and responsibility, Routledge & Kegan Paul, London 1978, pp.27-26. 288 See section 1.7.2. 289 "We must not be shy to validate the palliative, the protective, the stop-gap role of refugee law. There is nothing shameful about addressing the human consequences of harm." J. C. Hathaway, "New Directions to Avoid Hard Problems: The Distortion of the Palliative Role of Refugee Protection' (1995) 8 Journal of Refugee Studies 3, p.293. 290 See A. Ashworth, Principles of Criminal Law (2nd ed., Clarendon Press, Oxford, 1995), p.217ff. 291 DPP for Northern Ireland v Lynch (1975) AC 653. 292 DPP for Northern Ire (1975) AC 653 at 687, and Valderrama-Vega (1985) Crim LR 220. 293 (1947) KB 997.

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be sufficient to excuse a lesser offence."294 The relevant point concerning refugee law is the relative weight given to immigration control. Does immigration control enjoy the same weight as the prevention of murder, robbery and rape? This proposition seems extremely doubtful. It follows that reasons of duress, that excuse such crimes, are a very strong argument in the context of refugee law. Such reasons are strong arguments for the refugee to claim exemption from immigration control. But refugee law can also consider types of harm that do not excuse a criminal offence. What does "harm" generally mean? According to Feinberg, a person is harmed if a person's interest is not realised.295 What interests does a person typically have? A person typically has many interests and these interests vary according to the concept of a good life the concrete person follows. However, some interests are more important than others - so-called welfare interests296. As Feinberg puts it: "These are interests in conditions that are generalised means to a great variety of possible goals and whose joint realisation, in the absence of very special circumstances, is necessary for the achievement of more ultimate aims. In one way, then, they are the very most important interests a person has, and cry out for protection, for without their fulfilment, a person is lost. But in another way, they are relatively trivial goods, necessary but grossly insufficient for a good life. They are the basic requisites of a man's well-being, but by no means the whole of that well-being itself."297

Welfare interests are minimal goods298. When they are damaged, a person is very seriously harmed indeed, for, in this case, his more ultimate aspirations are defeated too;

295 9Qfi

297

A. Ashworth, Principles of Criminal Law, n. 290 above, p.218. J. Feinberg, Harm to others (Oxford University Press, Oxford, 1984), p.33. "So far, this analysis of the phrase "X is in Jones's interest" has been able to do without reference to wants. We have seen that people tend to want, at least to some degree, what they believe they have a stake in, at least insofar as they are minimally rational. But in respect at least to welfare interests, we are inclined to say that what promotes them is good for a person in any case, whatever his beliefs or wants may be. A person's interest in health, for example, would in fact be one of his interests, even if he mistakenly believed the contrary, and even if he desired ill health and decay instead of good health and vitality. In respect to this particular interest, at least, there may be a correspondence between interest and want, but the existence of the former is not dependent upon, nor derivative from, the existence of the latter." Ibid., p.42. Ibid., p.37. "In this category are the interests in the continuance for a foreseeable interval of one's life, and the interests in one's own physical health and vigour, the integrity and normal functioning of one's body, the absence of absorbing pain and suffering or grotesque disfigurement, minimal intellectual acuity, emotional stability, the absence of groundless anxieties and resentments, the capacity to engage normally in social intercourse and to enjoy and maintain friendships, at least minimal income and financial security, a tolerable social and physical environment, and a certain amount of freedom from interference and coercion. These are interests in conditions that are generalized means to a great variety of possible goals and whose joint realization, in the absence of very special circumstances, is necessary for the achievement of more ultimate aims. In one way, then, they are the very most important interests a person has, and cry out for protection, for without their fulfilment, a person is lost. But in another way, they are relatively trivial goods, necessary but grossly insufficient for a good life. They are the "basic requisites of a man's well-being", but by no means the whole of that well-being itself." Ibid., p.37.

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whereas setbacks to a higher goal do not inflict damage to the same degree on the entire network of his interests.299 Moreover, welfare interests, taken together, make a chain that is no stronger than its weakest link. Deficiencies in one place are generally not to be compensated for by superiority in another; there are few, if any trade-offs operative here.300 The concept of welfare interests is important for the purposes of refugee law because it elaborates the tolerable conditions of life. It is important to note that welfare interests do not point to simple survival and the maintenance of elementary human functions because simple survival does not enable us to aim at any of our ultimate aspirations. "Welfare interests ,..., normally achieve their status as interests in virtue of their being generalised means, often indispensable ones, to the advancement of more ulterior interests."301 It follows that simple survival is, nevertheless, a defeat of our ultimate aspirations and, therefore, an intolerable condition of life. The relevant level for the purposes of refugee law, therefore, is minimal well-being - maintenance of a minimal level of comfort and dignity302. On 4 March 1996, the Council of Ministers of the European Union adopted a joint position on the basis of Article K.3 of the Treaty on European Union concerning a harmonised application of the definition of "refugee" in Article 1 of the 1951 Refugee Convention.303 The Joint Position contains a "generally agreed" - at least between Member States of the European Union - meaning of persecution. To constitute persecution, "acts suffered or feared must: • be sufficiently serious, by their nature or their repetition: they must either constitute a basic attack on human rights, for example, life, freedom or physical integrity, or, in the light of all the facts of the case, manifestly preclude the person who has suffered them from continuing to live in his country of origin,..."304 During the drafting of the Joint Position, the Spanish delegation put forward a proposal that embodies the human rights approach in its purest form.305 According to the Spanish delegation, the difficulty of establishing a universal definition of the term "persecution" is linked to the fact that the interpretation of the term draws on value judgements which differ greatly from cultures and times. Thus, they argued that a

299

301

303 304 305

ibid. N. Rescher, Welfare: The Social Issue in Philosophical Perspective (University of Pittsburgh Press, Pittsburgh, 1972), p.6. J. Feinberg, Harm to others, n. 295 above, p.42. A. Ashworth, Principles of Criminal Law, n. 290 above, p.38; see A. von Hirsch and N. Jareborg, Gauging Criminal Harms: A Living Standard Analysis (1991) 11 Oxford JLS, p. 1. Official Journal of the European Communities, Series L, No 63/1996, pp.2-7. Ibid., p.3. Document 6563/94 ASM 85, Secretariat of the Council of the European Union, 26 April 1994.

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harmonised interpretation can gain from drawing on essential human rights that are jointly considered inviolable. According to the Spanish proposal, the Universal Declaration of Human Rights is a useful starting point. According to the proposal, four levels of rights can be differentiated: (1) the rights which cannot be derogated during times of emergency according to the ICCPR and the ECHR. The proposal lists: life; physical security; protection against torture, inhuman and degrading treatment; freedom of conscience; (2) the rights which can be derogated during times of emergency according to the ICCPR and the ECHR. The proposal lists: freedom of movement, freedom of expression and freedom of association; (3) social and cultural rights according to the ICESCR and the European Social Charter. The proposal lists: health, education, food; and (4) economic rights according to the ICESCR and the European Social Charter. The proposal lists: work, private property. The violation of social, cultural and economic rights constitutes persecution only insofar as the action of the State can be assimilated to degrading and inhuman treatment, according to Art. 3 of the ECHR. Thus, it is a requirement that the State of origin violates the rights intentionally for one of the reasons of the 1951 Refugee Convention and, in addition, causes such grave consequences that the victims cannot lead a "normal" life. Close scrutiny of the EU Joint Position reveals that the Spanish proposal was rejected. It is true that the Joint Position does speak of an attack on human rights. However, not all human rights, not even all customary or peremptory human rights, are seen to permit refugee status. The Joint Position enumerates only life, freedom or physical integrity as examples which potentially give rise to persecution. The Joint Position echoes the Ahmadiyya306 decision of the Federal Constitutional Court of Germany of 2 July 1980307 where the Court said that an attack on life, freedom or physical integrity always violates human dignity. In addition, the Joint Position claims that certain acts which manifestly prevent the person who has suffered them from continuing to live in his country of origin, are persecution even if they do not constitute a basic attack on human rights.308

307

one

The Ahmadiyya religion was founded at the end of the 19th century by Mirsa Ghulam Ahmad , who declared himself prophet after Mohammed. The Ahmadiyya do not believe in the finality of the prophet Mohammed. Most Sunnis and Shias consider the Ahmadiyya therefore non-islamic. In 1953 and 1974, pogroms by Moslems took place in Pakistan. 42 persons were killed. These facts were established by the Federal Constitutional Court of Germany in the Admaddiya decision in its decision BVerfGE 54,341. German Constitutional Court, BVerfGE 54, 341-1 BvR 147, 181, 182/80. This can be deduced from the formulation that acts constitute persecution if they "either constitute a basic attack on human rights", "or manifestly preclude the person who has suffered them from continuing to live in his country of origin" see Official Journal of the European Communities, Series L, No 63/1996, p.5.

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The Joint Position refers to acts, which manifestly prevent a person who has suffered them from continuing to live in his country of origin. The crucial question is left open: by what standard can one decide whether a particular act prevents a person from continuing to live at home? Taken as a whole, the general principle of necessity309 offers a useful interpretative guideline to decide the question whether the flight was the outcome of a situation which prevented a person from living in the country of origin or not. A state of necessity, which excuses a petty crime should, in any case, also be sufficient to warrant refugee status as the very minimum. In addition, any kind of harm which makes life intolerable, in general, should be accepted as giving rise to refugee status.

3.1.2 Intention Conceptually, persecution points to intentional behaviour. If a person is harmed through mere negligence, persecution seems to be an inappropriate description for this course of action. How does the concept of necessity relate to the intention to harm? A possible objection to the presumed importance of intention could be that necessity does not necessarily refer to intention. Unintentional harm can also compel a person to flee. It is true that mere negligence can create the risk of harm, too. Since it is the fear of harm that compels, it makes sense to argue that the issue of intention of harm is of no importance. The objection, however, is not fully convincing. The risk created by an intentional act is different from the risk created by mere recklessness or negligence. Fundamentally, risks created by negligence are of a different nature: they are easier to circumvent. As noted earlier, refugees are migrants out of necessity. They are compelled (in a normative sense) to leave their state of origin. The various risks of harm have to be ranked accordingly. Hence, fear of harm, due to intention is more compelling than fear of harm arising out of negligence. First, an analysis of the concept of intention would be helpful. Causing harm intentionally can mean that a person is sufficiently aware of what he is doing, and of the consequences it might have, that he can fairly be said to have chosen the course of action and its consequences.310 The core of intention is, therefore, surely aim, objective or purpose of a certain behaviour.

309

See section 1.7. A. Ashworth, Principles of Criminal Law, n. 290 above, p. 152.

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The concept of intention can be divided into various categories: direct intention, oblique intention, recklessness, and negligence. A closer look at all these meanings would help to delineate the meaning of intention for the purpose of understanding persecution. The concept of direct intention points to the reason of the action. "When a person does X in order to bring about Y, the prospect of bringing about Y is his reason for acting: but the reason may be pictured as something behind him pushing him on, or something in front of him presenting a target. The word "motive" seems more appropriate for the reason viewed in the first way, the word "purpose" for the reason viewed in the second way. "Intention" is the most general word in use in cases in which an agent is doing one thing for the sake of another or in order to bring about another. A person intends both those things that he does or pursues as ends in themselves, and those things that he does as means to his ends."

This clearly illustrates the meaning of direct intention. Oblique intention is different to direct intention. It is important to differentiate between the two: oblique intention can be defined as mere foresight of consequences, while direct intention as the case where the consequences are not just a foreseen outcome but something which the agent sets out to achieve as a means or an end and which constituted at least part of his reason for acting as he did. "Oblique intention is primarily a cognitive state: it concerns what a person knows or believes. Direct intention is primarily a volitional state: it concerns what a man wants, either for its own sake or as a means to something else."312 The concept of recklessness means that the actor "has foreseen that a particular kind of harm might be done and yet has gone on to take the risk of it".313 There are essentially three elements in this definition.314 First, recklessness requires actual awareness of the risk. Second, recklessness requires awareness of any risk, even the slightest. Third, the believed risk is unjustified or unreasonable. The first requirement of recklessness is the key element: A person, that is aware of a certain risk and actually takes it, can be said to have chosen the consequences, which might materialise. The concept of negligence means that a person does not take the care necessary to avoid the harm. A person acts negligently if he or she is unaware of any risk of harm, but could have taken necessary precautions to avoid the harm.

312

314

A. Kenny, Freewill and Responsibility, n. 295 above, p.48. Ibid.,p.51. Cunningham [1957] 2 QB 396, adopting the definition offered by C.S. Kenny, Outlines of Criminal Law (1st edn, 1902; 16 edn 1952) cited in: Ashworth, Principles of Criminal Law, p.176. Ashworth, Principles of Criminal Law, n. 290 above, p.!76f.

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The term persecution contains an element of pertinacity. This element of pertinacity can only be addressed properly with reference to direct intention to harm. The point is that harm caused by indirect intention, recklessness and negligence is too weak to be labelled under the term persecution.315 Actually, an action only becomes persecution by its direct intention to harm. It is true that oblique intention, recklessness and negligence constitute a risk of harm as well. It is the avoidance of these unnecessary risks, which justifies, for example, criminal and other liability to ensure prevention of these harms316. Nevertheless, the relevant point is that all these forms of harmful behaviour share one characteristic: they are easier to circumvent. A risk of harm arising out of negligence or recklessness or oblique intention can be more easily avoided because the purpose of the behaviour is not harm. Even if the harm can be said to be chosen, as in the case of oblique intention or recklessness, the harm is not the purpose of the behaviour. Harm in these cases is a sort of side product of the behaviour in question.317 It follows that the actual behaviour of the persecutor is not going to be affected by the evasive actions of the victim. This is not true in the case of direct intention to harm. Evasive actions of the victim are less likely to succeed. Since the intention of the behaviour is the harm, a lot depends on the persecutor - on his determination, his resources, his willingness to incur costs in the pursuit of the victim. Actually, the situation of the victim is different in both cases: the victim can avoid the risk relatively easily by an evasive action in the case of negligence, recklessness and oblique intention. In the case of direct intention, he can fry to escape from his persecutor and hope never to be traced. In the case of negligence, recklessness and oblique intention, it depends on the victim if he can avoid the risk; in the case of direct intention, it depends largely on the persecutor, if the victim can do so. In sum: it seems more appropriate to speak of the compulsion to leave the state of origin, in the case of direct intention to harm than in the case of negligence or recklessness or oblique intention.

317

"These definitions point to two essential attributes of the act of persecution. First, there should be an intent to prohibit or deny advantage to another. The deprivation must not be self-inflicted by the victim. This requires the presence of a quasi-criminal state of mind in those who persecute." Stephen B. Young, Who is a Refugee? A Theory of Persecution, 5 In Defense of the Alien (5) 1982, p.44. "However, it can be argued that crimes of negligence may exert a general deterrent effect, by alerting people to the need to take care in certain situations. The practical prospects of deterrence here seem no less propitious than in relation to offences requiring intention or recklessness." Ashworth, Principles of Criminal Law,n.290above,p.l93. The differentiation Kenny makes between different meanings of "want" - actions as means to an end and actions as consent - is relevant in this context. See for explanation n. 287 in section 3.1.

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3.1.3 Omission Literally taken persecution means either infliction of pain or harassment. Both meanings point to an action. Can a person be persecuted by inaction, by omission? One possible objection to counting omission as persecution could be raised in the "moral significance claim"318. The argument is presented as follows: there is a great moral significance in the difference between causing harm and merely allowing it to happen, and this difference is important enough to warrant a different treatment as far as the understanding of persecution is concerned. In other words: a person who persecutes, causes harm, while a person who merely allows harm to happen, does not persecute. A closer look reveals that this point is not convincing. The main counter-argument focuses on the direct intention to harm. If that direct intention exists, it is difficult to uphold a moral difference because action and omission then appear merely as a means to achieve the intended result.319 Is it sufficient to state that the harm is going to occur in the normal course of events if a person (or the state) who had the opportunity, ability, knowledge of the reasonable opportunity, and the duty to prevent the harm fails to prevent it? In short: is it sufficient if causality between the omission and the expected result is established. The answer is no. Refugee law requires an assessment of fear and does not concern itself with past events. The required test is not the harm which is going to occur in the normal course of events, but the harm which is believed to be unavoidable within the boundaries of the state. Also this is a consequence of the understanding of fear of persecution as a case of necessity. In the context of refugee law, the intention to harm by omission does not matter significantly if there are ready substitutes available.320 For example, the denial of basic schooling to gypsies by Polish authorities321 does not constitute persecution if, for example, the church or some other charitable organisation offers a substitution. An omission has to be systematic in order to produce unavoidable harm. Only if the future harm is fundamentally unavoidable within the boundaries of the state of origin because

318 319 320 321

Ibid., p. 166. Ibid., p.167. See the analogous problems of internal flight alternative and "protection elsewhere". The key of a realistic alternative to flight is its accessible, safe and viable nature. Case of Urszula GROCHOWSKA, Canadian Immigration Appeal Board Decision V84-6217, October 24, 1984.

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no alternative is realistic, safe, viable and accessible, can one speak of a compulsion to flee. Only if these conditions are met, can an omission constitute persecution.322

3.1.4 Absence of State Protection According to the Convention, a refugee is a person who "owing to well-founded fear of being persecuted...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". Its rationale is as follows: Not everybody who is persecuted should flee from his country of origin. Anybody who is persecuted should first turn to the state of origin for protection. Only if the individual is unable to obtain protection - either because the state is unable or unwilling to provide protection or because the refugee is justifiably unwilling to avail himself of protection of the state of origin - is flight to another country justified. This principle is closely related to the exhaustion-of-local-remedies rule in international human rights treaties. For example, Art.2 of the First Optional Protocol to the International Covenant on Civil and Political Rights reads: "Subject to the provisions of article 1, individuals who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit a written communication to the Committee for consideration." The rationale of these provisions is that remedies against violations may most effectively be implemented by the domestic legal system.323

323

These considerations concerning omission as persecution are often discussed in the framework of the nature of the rights involved. According to Marc Bossuyt, civil and political rights create negative obligations and economic, social and cultural rights create positive obligations (M. Bossuyt, La distinction entre les droits civils et politiques et les droits economiques, sociaux et culturels (1975) 8 Hum.Rts.J., p. 783). However, this view has met criticism. Van Hoof argues that in this rigid form, the distinction put forward by Bossuyt is difficult to uphold. As examples, which do not fit into this classification, Van Hoof names the freedom to form trade unions and the right to a fair trial. According to Van Hoof, all rights - civil and political rights and economic, social and cultural rights - give rise to four layers of state obligations: an obligation to respect, an obligation to protect, an obligation to ensure, and an obligation to promote. For example, the obligation to respect the right to food implies that a government may not expropriate land from people for whom access to control over that land constitutes the only or main asset by which they satisfy their food needs, unless appropriate alternative measures are taken (G.J.H. Van Hoof, 'The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of some traditional views', in P. Alston and K. Tomasevski (eds.), The Right to Food (Nijhoff, Dordrecht, 1984), p.97f). For the purpose of refugee law, the classification of the rights in question is not so important. R. Higgins, Problems and Process - International Law and How We Use It (Clarendon Press, Oxford, 1994), p.96; A. Drzemszewski, The Domestic Application of the European Human Rights Convention' (1980) 30 International and Comparative Law Quarterly, p. 118.

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Similarly, the Convention relating to the Status of Refugees 1951 declares the state as the most efficient and direct provider of protection from persecution. "Rather than supplanting domestic responsibility for human rights, the purpose of the Refugee Convention was to assist only persons who lacked the protection of a government."324 Anybody who is persecuted should, therefore, turn first and foremost to the state for protection. Only in the case where protection is not forthcoming, is it justified to flee. The rationale of this requirement lies in the idea that the refugee acts out of necessity. He does not have any meaningful option but to flee to the state of refuge. The request for protection from his/her own state is a meaningful option, if it is available, accessible and effective. If internal protection is available, necessity as a reason of flight, which lies at the heart of the refugee problem, is excluded.325 The Convention refers to some of these considerations. First, the Convention speaks of inability to avail himself of protection and hence refers to the availability of effective protection. Secondly, the Convention speaks of unwillingness because of fear of persecution and refers to the consideration that the option has to be reasonably open to the refugee. However, an important point should be noted here: The 1951 Refugee Convention does not presuppose nor establish a duty of the State of origin to protect its citizens from persecution. The Convention is silent on this issue. Persecution is, therefore, not linked to a violation by the state of the duty to protect from persecution. The Convention merely acknowledges that the most effective remedy from persecution might be found on the domestic plane. Ultimately this consideration is valuable because the State usually has supreme power within its territory; anybody in need of protection may turn to the appropriate authorities of the state for help if this option is viable. A victim of persecution who is able to benefit from the effective protection of his state is in fact not compelled to flee. "The events which are the root-cause of a man's becoming a refugee derive from the relations between the State and its nationals."326 There is truth in this statement by Vernant. Actually the root cause of becoming a refugee is not persecution as such, but the fact that there is no protection, no remedy provided by his state, "...the refugee is

324

326

Statement of Mrs. Roosevelt of the USA, 5 UNGAOR at 473,2 December 1949. We encounter this consideration in other legal areas dealing with the problem of necessity. The British Court of Appeal remarked. "In the opinion of this court it is always open to the Crown to prove that the accused failed to avail himself of some opportunity which was reasonably open to him to render the threat ineffective, and that upon this being established the threat in question can no longer be relied on by the defense. In deciding whether such an opportunity was reasonably open to the accused the jury should have regard to his age and circumstances, and to any risks to him which may be involved in the course of action relied upon." R. v Hudson and Taylor [1970] 2.Q.B.202 (Court of Appeal, Criminal Division) cited in: C. M. V. Clarkson and H. M. Keating, Criminal Law: Text and Materials (3rd ed., Sweet & Maxwell, London, 1994), p.327. J. Vemant, The Refugee in the Post-War World (Allen & Unwin, London, 1953), p.5.

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designated as a person who stands in need of international protection because he or she is deprived of that in his or her own country"327. This concern is clear throughout the entire drafting history; the British draft provided that the Convention would apply to all "unprotected persons"328; the French draft spoke of persons who were instead "unwilling or unable to claim the protection of their country"329. As finally agreed on, the Convention extends to a person who is "...unable or...unwilling to avail himself of the protection"330 of his or her country of origin. The situation of a refugee is also linked to the state in another way. Ultimately, the reason for the link between the refugee and the State lies in the compulsion to leave the state. If a State satisfies all its purposes as a State, a compulsion to leave would be difficult to imagine; a residual risk, which exists in all states and which is therefore not linked to the actual functioning of the state of origin, cannot be avoided; it is difficult to understand how flight to another state could remedy this kind of residual risk. The compulsion to leave, therefore, needs to be linked to the functioning of the state331. In this sense, there can be said to be a "rupture of the ties between an individual human being and the authorities of his home country"332. The bond of mutual trust and assistance is broken because the refugee has no viable option but to leave the State. However, not all persons who leave their countries because of fear of persecution are refugees. Reasonable expectation of national protection333 is the crucial criterion; if this expectation is justified, there is no need for the victim to flee or stay abroad. The refugee has a meaningful option within his country of origin to flight abroad and refugee status cannot be justified. If, on the other hand, the expectation of national protection is not reasonable, the person has no other option but to flee. The internal remedy has to be effective, timely, and accessible. There has to be a real and meaningful alternative to 327

328 329

330

331

332 333

R. Plender, 'Admission of Refugees: Draft Convention on Territorial Asylum1 (1977) 15 San Diego L.Rev.45, p.54. UNDoc E/AC.32/L.2, at 1, 17 January 1950. see Michael Marugg, Volkerrechtliche Definitionen des Ausdruckes "Fluchtling" (Helbing & Lichtenhahn, Basel, 1990), p. 130. Art. 1 A (2) of the 1951 Refugee Convention reads: "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." We need a standard of defining what constitutes good functioning of a state to apraise this aspect satisfactorily. The actual functioning of the state of refuge can in any case be considered apropriate because it then is a good example of a reasonable and realistic level of protection from persecution that a state can offer. It offers a good basis for argumentation as to what an apropriate standard of protection really is. G. Stenberg, Non-Expulsion and Non-Refoulement (Justus F6rlag, Uppsala, 1989), p. 19. See Canadian Immigration Appeal Board Decision T85-9358, 8 June 1987, p.5: The Board held that the claimant "...had every reason to fear that if he was set upon by supporters of the Congress Party on his way home he could not expect to invoke successfully the protection of the police", cited in J. C. Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991), p.!25f. FN 208.

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flight. Also, the refugee cannot be expected to expose himself to risk of persecution. The Convention states: "...is unable or, owing to such fear [of being persecuted], is unwilling to avail himself of the protection of that country." If the available internal remedy exposes the refugee to the risk of persecution, the refugee cannot realistically be expected to make use of it. It, then, does not constitute a meaningful option to flight. The most obvious form of persecution stems from the state. It is vital to establish which organ of the state acted and under what circumstances the persecution took place in order to estimate the likelihood of national protection. If the persecutory action was committed by the legislation, national protection is extremely unlikely. However, it could still be established that internal protection is available, for example, by the constitutional court of a country, provided it is efficient, genuinely independent, and in the position to provide a real and effective remedy in the concerned case. In any case, it is important to emphasise that the internal remedy should, in no way, compromise the safety of the individual. The individual cannot be expected to make use of the remedy if it endangers his existence. This caution is especially relevant, if the persecution stems from the legislation. If the government is the author of persecution, national protection is again very unlikely. However, it is necessary to analyse the institutional framework of the state and the availability of checks and balances. The central consideration has to be whether timely and effective rectification of the harm is likely. All possibilities have to be included - administrative courts, control mechanisms of the legislature etc. Again, the refugee cannot be expected to expose himself to risk of persecution by relying on internal remedies. If an inferior state organ has acted contrary to instructions of superior state organs, there is a better chance of national protection. However, the possibilities of an internal remedy have to be assessed realistically. The focus has to be on an accessible, effective and timely remedy. Sheer rhetoric does not help and is, therefore, irrelevant. All sources of internal protection have to be taken into account: disciplinary measures by the government, legal action before courts or tribunals, recourse to superior organs within the administrative hierarchy, etc. Again, the refugee cannot be expected to expose himself to the risk of persecution. As argued above, the Convention does not exclude the possibility of persecution by private citizens. Again, the expectation of national protection which is effective, timely and accessible is the valid criterion here. Usually, the state can be expected to provide effective and timely protection, unless the contrary has been established. It is possible that the actions of private individuals may be condoned or secretly supported by the state. Such support is likely to diminish the prospect of national protection. However, it is important to establish who condones or secretly supports the actions of these private individuals. It makes a difference if the parliament, the government as a whole, a minister

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or a inferior organ tolerates or secretly supports the actions of the private individuals in question. All these circumstances could potentially influence the likelihood of national protection. The more superior the organ of state committing or supporting the persecution, the less likely is the prospect of national protection. The most controversial scenario is the objective inability of the state to provide meaningful protection. In this scenario, the State is not in a position to protect its citizens from harm because of genuine weakness or decay, for example, in situations of civil war and mob violence: the State cannot be held responsible. The Convention clearly mentions inability: "..unable...to avail himself of the protection of that country". So far, the focus of the argument has been that refugee status should be granted only if sufficient national protection is not available. In the case of inability to protect, national protection clearly does not exist. Therefore, refugee status should be logically granted. The argument that the state cannot be held responsible, is irrelevant. It follows that the weakness or decay of the State does not preclude persecution; on the contrary, it makes the occurrence of relevant persecution more likely because it renders the concrete possibility of meaningful State protection more remote.

3.1.5 Regional Persecution What happens if the State cannot protect its citizens in a particular region, but provides to those at risk a secure alternative in another region? The drafting history of the Convention shows the emphasis on the exclusion of internally protected persons. A French delegate expressed the view that "there was no general definition covering [internal] refugees, since any such definition would involve an infringement of national sovereignty334" and that "it was certain that the United Nations did not intend to apply the provisions of the Convention to national refugees...335". A representative of the US said: "All credit was due to the governments which bore the heavy burdens of those moves of people unilaterally, but those problems should not be confused with the problem before the General Assembly, namely, the provision of protection for those outside their own countries, who lacked the protection of a Government and who required asylum and status in order that they might rebuild lives of self-dependence and dignity."336

334 335 336

Statement of Mr. Rochefort of France, UNDoc E/AC.7/SR.172 N.4,12 August 1950. Statement of Mr. Rochefort of France, UNDoc A/CONF.2/SR.24 N.I 7, 17 July 1951. Statement of Mrs. Roosevelt of the USA, 4 UNGAOR (264th plen. mtg.) at 473, 2 December 1949.

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Even the advocates of a more liberal refugee definition focused on the absence of de facto protection in the state of origin as a condition necessary for international protection.337 The underlying assumption in the debate was, therefore, that the existence of sufficient national protection was inconsistent with the status of an internationally recognised refugee.338 The discussion of an internal flight option depends on the theoretical approach to refugee protection. As previously mentioned, Weis theory claims that the essential reason for refugee protection is the lack of diplomatic protection because of persecution. The refugee, therefore, cannot be expected to live in the country of refuge as a common alien and is in need of a substitute for this lack of diplomatic protection. This substitute is refugee status. It follows from this theoretical approach that an internal flight alternative is not a relevant consideration. The point is that the internal flight alternative does not touch on the fundamental rationale of refugee protection, according to Weis - the lack of diplomatic protection because of persecution. A person will lack diplomatic protection because of persecution even though an internal flight alternative is available. It follows that such a person should qualify as a refugee, according to Weis. Similarly, Grahl-Madsen's theory does not lead to the consideration of an internal flight alternative either. According to Grahl-Madsen, refugee protection aims to remedy the ineffective nationality of the refugee (due to persecution). Thus, an internal flight alternative does not touch on this reasoning either. The nationality of a person will become ineffective due to persecution even though an internal flight alternative exists. It follows that such a person should qualify as a refugee even if an internal flight alternative exists. The human rights approach does lead to a consideration of the issue of an internal flight alternative. In particular, Hathaway has made the point that a state can fulfil its obligation to protect human rights even in a limited region of its territory. A person who can benefit from such human rights protection, does not stand in need of international protection. Refugee protection is designed as subsidiary protection where the State of origin is either unable or unwilling to protect. The state of origin may be able and willing to protect within a confined region. The validity of an internal flight alternative is determined by observance of human rights obligations.339 However, Hathaway's approach runs into theoretical trouble. He writes: "In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil,

337 -338

339

See Draft Proposal for Article 1 submitted by the UK, UNDoc E/AC.32/L.2 N.1, 17 January 1950. J. C. Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991), p. 134. See ibid., p.133f.

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political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized."340

Is state accountability (or state responsibility) really established if internal safety is illusory or unpredictable? The point Hathaway neglects is that state responsibility for actions of private persons is limited in international law.341 This means that even though safety cannot be guaranteed in any particular region, the state cannot be held responsible for this state of affairs, nor accountable. If refugee protection depends on State responsibility, as Hathaway implies, refugee status is likely to be denied in these situations. The risk is that refugee adjudicators decide that a certain region is acceptable as a safe internal flight alternative because any insecurity within that internal flight alternative is not the responsibility of the State of origin. In other words: adjudicators could construct a safe internal flight alternative on formal arguments of state responsibility without paying close attention to real safety. This theoretical problem can be avoided by the necessity approach. Necessity explains the rationale and the limits underlying the concept of an internal flight alternative better than the theory of human rights. As already witnessed, fear of persecution can be understood as a case of necessity. An in-country flight alternative might constitute a viable option to flight abroad. This line of thought emphasises the characteristics of a realistic alternative: it is not sufficient if the refugee cannot be expected to stay in a region for one reason or another. An internal flight alternative needs to be realistic, viable, safe and accessible. It follows that a person who is not compelled under conditions of necessity to flee because of the availability of a realistic, viable, safe and accessible internal flight alternative should not be granted refugee status. Such a person should be subject to immigration law. The necessity approach emphasises the point that the alternative has to be realistic and meaningful. Only a meaningful option can exclude the necessity to flee or to remain abroad. A meaningful internal flight alternative has to be accessible and realistic; it has also to be viable and permanent. There should not be any major obstacles, such as financial or logistical difficulties. This theoretical argument is backed by the UNHCR: "In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."342

340 341 342

Ibid., P. 134 See above section 2.1.2. UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva 1979, p.21f.

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The Joint Position of the Council of Ministers of the EU concerning a harmonised application of the definition of "refugee" in Article 1 of the 1951 Refugee Convention343 of 4 March 1996 echoes this reasoning. Section 8 (Relocation within the country of origin) of the Joint Position reads: "Where it appears that persecution is clearly confined to a specific part of a country's territory, it may be necessary, in order to check that the condition laid down in Article 1A of the Geneva Convention has been fulfilled, namely that the person concerned "is unable or, owing to such fear (of persecution), is unwilling to avail himself of the protection of that country", to ascertain whether the person concerned cannot find effective protection in another part of his own country, to which he may reasonably be expected to move."

The Joint Position clearly maintains that protection means protection within the country of origin. Thus, the Joint Position does not support Weis'344 or Grahl-Madsen's345 theories that protection means diplomatic or consular protection which takes place abroad. If the victim has the possibility of escaping persecution within the boundaries of the state, it is difficult to maintain the necessity of flight abroad. However, an internal flight alternative needs to be realistic, viable, safe and accessible. Only under these conditions can one speak of a realistic alternative to flight abroad. The Joint Position echoes this reasoning by its formulation that the internal flight alternative "may reasonably be expected". However, the Joint Position is, unfortunately, quite vague in this regard.

3.1.6 Persecution and Punishment Persecution is usually distinguished from prosecution or punishment for a common law offence. Such instances should not give rise to refugee status.346 The justification for this distinction is that common criminals do not deserve refugee status. As discussed above, the concept of necessity implies that the individual finds himself having to choose between two evils - serious harm or breach of the law. It follows from this concept that necessity presupposes that the harm is not deserved. If one asserts that

344 345

Official Journal of the European Communities, Series L, No 63/1996, pp.2-7. See section 1.3. See section 1.4. "Persecution must be distinguished from punishment for a common law offence. Persons fleeing from prosecution or punishment for such an offence are not normally refugees. It should be recalled that a refugee is a victim - or potential victim - of injustice, not a fugitive from justice." UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva 1979, at 15.

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the harm the individual is trying to escape from is essentially deserved and, thus, not an evil, it cannot be concluded that the individual is acting out of necessity. Refugee law rests on the concept of necessity with the following consequence: an individual who flees from deserved punishment should not be considered a refugee. As Professor GoodwinGill puts it: "Implicit in the ordinary meaning of the word "refugee" lies an assumption that the person concerned is worthy of being, and ought to be, assisted, and, if necessary, protected from the causes of flight"347. Hence it follows from this idea that criminals who flee from justice do not deserve to be regarded as refugees. The harm they fear is mostly perfectly intentional348 and often severe. Nevertheless, they do not deserve refugee status because they are, themselves, ultimately responsible for their fear of punishment. They simply deserve it. The 1951 Refugee Convention took up this idea in Art.l F, which contains the exclusion clauses. Art.l F reads: "The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations."

There is proof in the drafting history of the Convention that the drafters were aware that prosecution and punishment might be persecution in disguise. "The Belgian delegation did not consider that the status of refugee could be denied to a person simply because he had been convicted of a common law offence in his country of origin. In any case, the countries of origin concerned, and their methods of dispensing justice, were well enough known."349 It was acknowledged that not every criminal is a real "criminal" and thus undeserving. The definition of crime lies within the powers of the State of origin. Thus, the instruments of criminal law can be abused for persecutory purposes. It follows that it rests with the state of refuge to determine the scope of the exclusion clause. Is the exclusion clause optional or obligatory? Is a State barred from recognising a

348

349

Guy S. Goodwin-Gill, The Refugee in International Law (Clarendon Press, Oxford, 1983), p.l. According to Nigel Walker, the concept of punishment implies that the infliction of harm is intentional and done for a reason. See Nigel Walker, Why punish? (Oxford University Press, Oxford, 1991), p.l. Statement of Mr. Herment of Belgium on 19 July 1951, UNDoc A/CONF.2/SR.29, at 14.

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refugee who falls under a exclusion clause? The US argued for the optional nature of the exclusion clause.350 Israel and France successfully claimed the obligatory nature of the exclusion clause.351 "Section F is couched in categorical language...It follows that, once a determination is made that there are sufficient reasons to consider a certain person as coming under this section, the country making the determination is barred from according him the status of a refugee."352 However, the Parties to the Convention retain discretion as to the interpretation of the exclusion clauses.353 "...in the absence of a world government and of a sovereign international court of justice, that power of discretion, which was an essential safeguard both for the real refugee and for the country of refuge, must, perforce, be left to States. The only practical solution was to trust the countries which were willing to grant hospitality."354 How can a State exercise this discretion based on sound reasoning? One good starting point is the criminal law of the State of refuge. Consider the following example: a refugee is seriously suspected of having committed an act which constitutes a serious nonpolitical crime even according to the internal law of the State of refuge. In this case, the State of refuge would be fully justified in declaring such a refugee undeserving of its protection. Human rights under international law provide another guiding principle for exercising this discretion. An individual who merely exercised his human rights cannot be regarded as a criminal, no matter what the law of the State of origin says. In addition, every prosecution and punishment has to conform with human rights law, especially where the procedure is concerned. This is the proper place of human rights law in the framework of refugee law. Traditionally, refugees are described as fugitives of injustice. This picture however is misleading. As the analysis of the purpose of refugee law has revealed, there is no basis for making a distinction between fugitives from injustice and mere victims. Both groups are driven and likely to behave similarly. Hence it does not make sense to make what is essentially an arbitrary distinction between these two groups. Rather it is correct to treat all forced migrants for reasons of necessity as refugees with the exception of fugitives of justice. They should not be allowed to benefit from the safeguards of refugee law. 350 351

353 354

Statement of Mr. Henkin on 6 February 1950, UNDoc E/AC.32/SR. 17, at 9. Statement of Mr. Robinson of Israel, Ibid; Statement of Mr. Rain of France on 8 February 1950, UNDoc E/AC.32/SR.18,at3. N. Robinson, Convention relating to the Status of Refugees: Its History, Contents and Interpretation (Institute of Jewish Affairs, New York, 1953), p.67. J. Hathaway, The Law of Refugee Status, n. 338 above, p.215. Statement of Mr. Rochefort of France on 22 August 1950, UNDoc E/AC.7/SR.166, at 6.

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One must be aware that States of refuge are confronted with harm of a very serious nature in the context of criminal law. From what has been said, it follows that the justification supplied has to be very strong in order to convincingly justify the prima facie harm feared. The exercise of discretion by States of refuge should therefore rest on a consideration of the proportionality between crime and likely punishment in the State of origin. Excessive punishment cannot be viewed as justified punishment and is, thus, a valid basis for refugee status. What is the real relationship between persecution and discrimination? As already mentioned, rightful prosecution and punishment is excluded from serving as the foundation of refugee status. Common criminals are considered undeserving of consideration. Justified and deserved prosecution and punishment need to be distinguished from persecution. Human rights, also aforementioned, are useful limits to the concept of rightful prosecution and punishment. It is a human right not to be discriminated against. Thus, discriminatory action cannot be claimed to be justified prosecution and punishment. The discriminatory character, as such, excludes any justificatory claim. Discriminatory prosecution and punishment can, therefore, be said to be nothing less than hidden persecution. The Joint Position concerning a harmonised application of the definition of "refugee" in Article 1 of the 1951 Refugee Convention, adopted on 4 March 1996 by the Council of Ministers of the European Union illustrates the point.355 Paragraph 5.1.2. of the Joint Position deals with the issue: "Whilst appearing to be lawful, prosecution or court sentences may amount to persecution where they include a discriminatory element and where they are sufficiently severe in the light of the criteria referred to in section 4 of this Joint Position."

Three cases are distinguished. First, subparagraph (a) deals with discriminatory prosecution. "This concerns a situation in which the criminal law provision is applicable to all but where only certain persons are prosecuted on grounds of characteristics likely to lead to the award of refugee status. It is therefore the discriminatory element in the implementation of prosecution policy which is essential for recognizing a person as a refugee."

The emphasis in this scenario is on the decision of the prosecutor to prosecute for discriminatory reasons. The discriminatory element transforms prosecution into persecution. Secondly, subparagraph (b) deals with discriminatory punishment.

Official Journal of the European Communities, Series L, No 63/1996, pp.2-7.

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"Punishment of the threat thereof on the basis of a universally applicable criminal law provision will be discriminatory if persons who breach the law are punished but certain persons are subject to more severe punishment on account of characteristics likely to lead to the award of refugee status. The discriminatory element in the punishment imposed is essential. Persecution may be deemed to exist in the event of a disproportionate sentence, provided that there is a link with one of the grounds of persecution referred to in Article 1A."

The emphasis here lies on discriminatory punishment. Thirdly, subparagraph (c) deals with the breach of criminal law on account of the grounds of persecution. "Intentional breach of a criminal law provision - whether applicable universally or to certain categories of persons - on account of the grounds of persecution must be clearly the result of pronouncements or participation in certain activities in the country of origin or be the objective consequence of characteristics of the asylum-seeker liable to lead to the grant of refugee status. The deciding factors are the nature of the punishment, the severity of the punishment in relation to the offence committed, the legal system and the human rights situation in the country of origin. Consideration should be given to whether the intentional breach of the criminal law provision can be deemed unavoidable in the light of the individual circumstances of the person involved and the situation in the country of origin."

This section is characterised by unjustified restrictions. Rightly, the Joint Position accepts the premise that criminal law can be abused as a tool of persecution. The interpretative task is to draw a clear and acceptable line between genuine and just prosecution and punishment and hidden persecution. As explained earlier, human rights are a viable criterion of differentiation. The principle is: a person who exercises his human rights within the legal limits cannot be prosecuted rightly. The Joint Position supports this principle in section 5.1.1.(b): "Measures directed against one or more specific categories of the population may be legitimate in a society, even when they impose particular constraints or restrictions on certain freedoms. However, they may be considered as justifying fears of persecution, in particular where the aim which they pursue has been condemned by the international community, or where they are manifestly disproportionate to the end sought, or where their implementation leads to serious abuses aimed at treating a certain group differently and less favourably than the population as a whole."

The line drawn between legitimate measures and measures which give rise to fear of persecution seems clearly oriented towards human rights considerations, even if this is not clearly stated. In this light, it is not acceptable that the Joint Position restricts the application of this principle by requiring that the breach of the criminal law should be "unavoidable in the light of the individual circumstances of the person involved". In other words, the Joint Position seems to compromise some human rights, like freedom of expression or freedom of religion, of individuals who exercise their human rights actively. For example, it would be difficult for a person, who holds a political opinion and fears severe punishment upon detection, to obtain refugee status. Besides, it seems unrealistic to maintain that

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certain behaviour (exercise of human rights) is strictly speaking unavoidable. It will very often be argued that the individual is, in some sense, responsible for the feared persecution and that the prosecution was not unavoidable. Such a narrow-minded approach is not legally warranted and is unfair. The point is that human rights should not be compromised and that prosecution for the exercise of genuine human rights is unfair and actually constitutes persecution. The recent proposal of the European Commission for a Council directive on minimum standards for the qualification and status of third country nationals as refugees356 recognises the problem in Art. 11: persecution shall be considered to cover "prosecution or punishment for a criminal offence if, on the grounds of race, religion, nationality, political opinion or membership of a particular social group...the criminal offence for which the applicant is at risk of being prosecuted or punished, purports to criminalize the exercise of a fundamental right."357

3.2 WELL FOUNDED FEAR The Handbook on Procedures and Criteria for Determining Refugee Status of the UNHCR contains an instructive passage: "The phrase "well-founded of being persecuted" is the key phrase of the definition. It reflects the views of its authors as to the main elements of refugee character. It replaces the earlier method of defining refugees by categories (i.e. persons of a certain origin not enjoying the protection of their country) by the general concept of "fear" for a relevant motive. Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear - a state of mind and a subjective condition - is added the qualification "wellfounded". This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term "wellfounded fear" therefore contains a subjective and an objective element, and in determining whether well358 founded fear exists, both elements must be taken into consideration."

The UNHCR's position is an expression of traditional doctrine. Traditional doctrine understands fear as a subjective element. Fear relates to a state of mind. To this subjective element, the objective qualification "well-founded" is added. This implies that

356

358

COM (2001) 510 final dated 12.9.2001. Ibid., at Art. 11 para. 1 subpara c(ii). UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva 1988, p.l 1 and 12, at 37 and 38

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it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The subjective element directs our attention to the claimant. "An evaluation of the subjective element is inseparable from an assessment of the personality of the applicant, since psychological reactions of different individuals may not be the same in identical conditions. One person may have strong political or religious convictions, the disregard of which would make his life intolerable; another may have no such strong convictions. One person may make an impulsive decision to escape; another may carefully plan his departure."

UNHCR urges that "everything that may serve to indicate that the predominant motive for his application is fear"360 should be considered. "Fear must be reasonable. Exaggerated fear, however, may be well-founded if, in all the circumstances of the case, such a state of mind can be regarded as justified."361 In the opinion of the UNHCR, fear is well-founded if it is justified in light of all the circumstances of the case, including psychological characteristics of the applicant, such as temperament or emotional character. "All these factors, e.g. a person's character, his background, his influence, his wealth or his outspokenness, may lead to the conclusion that his fear of persecution is well-founded"362. It could, therefore, be reasonably concluded that the approach of UNHCR gives greater weight to the subjective element than to the objective element. As discussed earlier, authors like Hathaway and Lord Goff seem to presume that the only objective of refugee law is the duty of the state of refuge to protect the refugee from danger. From this perspective, the crucial question is what would happen if the refugee were sent back to the country of origin. However, as has been argued so far363, the Convention can be understood as an expression of the principle that the deterrence measures of the immigration control system should not be brought to bear on persons who immigrate due to fear of persecution because of the state of necessity. Fear as a state of mind does matter. First, it is precisely the state of mind of the individual that makes it impossible for the individual to comply with the immigration regime. Secondly, from the state's perspective, it is the state of mind of the individual, which renders the success of deterrence measures unlikely. Thus, the central practical issue is not just risk, but also fear as a state of mind.

359 360 361 362 363

Ibid., p. 12 at 40. Ibid., p. 12 at 41. Ibid. Ibid., p. 13 at 43. See section 1.7.

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The Joint Position concerning a harmonised application of the definition of "refugee" in Article 1 of the 1951 Refugee Convention adopted on 4 March 1996 by the Council of Ministers of the European Union364 does not show an adequate understanding of the problem. The Joint Position does not provide a clear solution concerning the question whether fear is to be understood as a state of mind or as objective risk. The original proposal declared that the determining element for the recognition of refugee status is the existence of persecution or the risk of persecution.365 This formulation tends towards fear as an objective standard and wrongly interprets fear as a synonym of risk. The Spanish delegation had proposed that "the determining factor for granting refugee status is therefore the existence of persecution, or the risk of persecution, or fear of persecution."366 This formulation indicates that fear goes beyond risk and concerns the state of mind of the applicant. Neither of these formulations was chosen. This is an indication that the issue was left unresolved. On the one hand, the objective focus is emphasised: "Each application for asylum is examined on the basis of the facts and circumstances put forward in each individual case and taking account of the objective situation prevailing in the country of origin."

On the other hand, certain passages of the Joint Position favour a subjective focus: "Several types of persecution may occur together and the combination of events each of which, taken separately, does not constitute persecution may, depending on the circumstances, amount to actual persecution or be regarded as a serious ground for fear of persecution, [emphasis added]"

Taken together, these observations confirm a fundamental lack of orientation concerning the purpose of refugee law. One might ask why fear is not purely subjective in the Convention? Why is the qualification "well-founded" added to fear? If refugee law is a concession to human weakness, it may be argued that fear of harm should be completely subjective. Moreover, it should be sufficient that the refugee believes that the threat is serious enough and that there is no way of avoiding or preventing the threatened harm other than by immigrating to a country of refuge. The answer lies in the connection between refugee law and the immigration regime. Refugee law functions as an exception to the immigration regime. If

366

Official Journal of the European Communities, Series L, No 63/1996, pp.2-7. "L'e'lement determinant pour la reconnaissance du statut de refugie est donc 1'existence de persecutions ou de risque de persecutions." Council of the European Union Document 6675/94 ASIM 90, p.4. Council of the European Union Document 8653/94 ASIM 151, Brussels, 20 July 1994, p.5.

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refugee law were too generous, the restrictive immigration regime would risk increasing ineffectiveness. It is this line of thought that justifies the introduction of an objective criterion. As argued above, refugee law can be understood as an expression of the principle that the law may not demand the impossible. The problem is that this may differ from person to person. Would this mean that the law needs to provide endless differentiation? In the words of Lon Fuller, "[t]he principle that the law should not demand the impossible of the subject may be pressed toward a quixotic extreme in which it ends by demanding the impossible of the legislator."367 Fuller expresses some very interesting thoughts concerning this issue which merit to be cited here: "If we apply to a particular defendant an objective standard-traditionally that of "the reasonable man"-we obviously run the risk of imposing on him requirements he is incapable of meeting, for his education and native capabilities may not bring this standard within his reach. If we take the opposite course and attempt to ask whether the man before us, with all his individual limitations and quirks, fell short of what he ought to have achieved, we enter upon a hazardous inquiry in which all capacity for objective judgement may be lost. This inquiry requires a sympathetic identification with the life of another. Obviously differences of class, race, religion, age, and culture may obstruct or distort that identification. The result is that though an aloof justice is bound at times to be harsh, an intimate justice, seeking to explore and grasp the boundaries of a private world, cannot in the nature of things be evenhanded. The law knows no magic what will enable it to transcend this antinomy. It is, therefore, condemned to tread an uncertain middle course, tempering the standard of the reasonable man in favour of certain obvious 368 deficiencies, but formalizing even its definitions of these."

Fear should be reasonable in order to be excused. This inevitably involves a comparison between the claimant's response and how "average people" would respond in a similar situation. If it is perceived that average people would have responded as the refugee did, then the refugee is considered excused from disregarding our immigration policy. But if it is felt that average people would have understood the pointless nature of the fear, then one would legitimately blame the migrant for his failure to do so. Thus, he is not excused and has to suffer punishment for illegal entry (and stay) and forcible deportation. Fear is a state of mind. As such, it shares a characteristic with other states of mind logicians speak of referential opacity369. This point is well illustrated by the following example: 1.premise: John fears the masked man. 2.premise: The masked man is his father

367 368

L. Fuller, The Morality of Law (New Haven, Yale University Press, 1964), p.71. Ibid, pp.71-72. See R. Scruton, Modern Philosophy (Sinclair-Stevenson, London, 1994), p.63.

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From these two premises, it cannot be concluded that John fears his father because John does not know that the masked man is his father. This argument proves that states of mind do not directly relate to reality. They always depend on what a person is aware about. The point is that the fear of the refugee might be caused by imperfect knowledge. However, the facts are very important according to the Convention, independently of any state of mind. The 1951 Refugee Convention contains a cessation clause in Art.l C which reads: "The Convention shall cease to apply to any person falling under the terms of Section a if: ...(5) He can no longer, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality;..."

If refugee status ends because no objective danger exists, it is implausible to argue that the status should be granted under conditions where the status would cease at the onset. If the State of refuge knows that the refugee acted in error and that there was no risk of persecution, there can be no basis to demand refugee status. It is, therefore, safe for the refugee to return home. It may thus be concluded that the total lack of any risk precludes refugee status. In sum, there are two clear cases: A certain risk of persecution, which certainly warrants refugee status; and a certain lack of persecution, which certainly precludes refugee status. The most important case, from a practical point of view, lies in between. How should one assess the common case of conflicting evidence? Certain facts point in the direction of persecution; certain facts speak against it. The relevant test would be the third person test. Would a reasonable person, in the place of the refugee, have fled like the refugee did, or would an average third person have resisted the fear? In other words: wellfounded fear is to be understood as reasonable fear. Actually, fear denotes a mental state which is both cognitive370 and affective371. It involves an expectation of a prospective state of affairs (cognitive element) and an emotional evaluation of the state of affairs (affective element). The problem is that the affective element can influence the cognitive element. A very cowardly person will tend

"Cognitive states of mind are those which involve a person's possession of a piece of information (true or, as the case may be, false): such things as belief, awareness, expectation, certainty, knowledge." A. Kenny, Freewill and Responsibility (Routledge & Kegan Paul, London, 1978), p.46. "Affective states of mind are neither true nor false but consist in an attitude of pursuit or avoidance." Ibid.

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to exaggerate the probability of harm he risks. This is the reason why fear alone is insufficient and needs an objective criterion. The objective safeguard that fear should be well-founded is sound with regard to both elements which constitute fear: cognitive and affective. Concerning the cognitive element, well-founded fear means that the fear is a correct inference from the facts. The fear is not the consequence of logical mistakes or wrong thinking. The fear is reasonable. Concerning the affective element of fear, the necessity approach suggests that wellfounded fear means a fear which a person of average firmness would have been unable to resist in a similar situation as the claimant. It is a logical consequence from what has been said so far that emotional characteristics of a claimant, like emotional instability, temperament, personal level of courage or fortitude, should not be taken into account when assessing "well-founded fear". The point is that everybody is expected to practice a reasonable level of firmness. The law constitutes a general system of evaluation of human behaviour. If it does not want to render every claim of guiding human behaviour meaningless, it has to presume an average level of will power. No reference to temperament or character can excuse in this respect. Otherwise the law would lose its ability to regulate behaviour. The same reasoning could be applied to immigration law. If every subjective characteristic were permitted as an excuse, the law would lose its ability to serve as a tool of immigration control. It follows that characteristics, like temperament and character which can be mastered by the exercise of due will-power, should not be permitted to justify refugee status. Immigration law should rightfully require the exercise of an average level of willpower. In this respect, criticism of the subjective position of the UNHCR is justified. Having said this, it must be added that certain characteristics of the individual are outside the ambit of willpower. Individual characteristics, like age, sex and physical frailty, should be taken into account. Thus, the test that should be applied when examining refugee claims should rightfully focus on whether a person of reasonable firmness in the same situation and sharing the general characteristics of the claimant, like age, sex, physical frailty etc. (all outside the ambit of will power), would have acted in the same way as the claimant. In this respect, the position of UNHCR is justified. Instead of verifying an objective situation of danger in the country of origin, which the refugee adjudicator is, anyway, incapable of correctly establishing, the determination procedure should ideally examine a claim to refugee status by trying to falsify the claim of persecution on the basis of available and reliable evidence. Refugee status is a valuable resource and should be distributed on the basis of the urgency of need. Abuse should be avoided. Energies in this direction are justified. However, such efforts should not deprive refugee law of its purpose in general. If reliable evidence is not available, the claimant should be given the benefit of the doubt, if his fear is credible.

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These considerations give content to the principle that "if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."372 If evidence is available which leads to the conclusion that really no threat of persecution exists (irrespective of what the claimant subjectively fears), the decision should rightfully be negative. This differentiation might prove useful in allocating the burden of proof, accordingly. Evidence with the purpose of falsifying a claim should focus on evidence of persecution of the social background of people to which the claimant belongs, and on which the claimant bases his case. "The best circumstantial indicator of risk is the experience of those persons perceived by authorities in the state of origin to be most closely connected to the claimant, generally including persons who share the racial, religious, national, social, or political affiliation upon which the claimant bases his case."373 These considerations lead to the following basic structure of refugee recognition: - First, the credibility of the claimant needs to be established. The claimant needs to credibly state certain facts which permit a reasonable inference of necessity due to persecution. At this stage of the procedure, the focus is on the mind of the applicant. What did the applicant perceive or experience and what conclusions did and could the applicant reasonably draw from them? - Secondly, reliable evidence which falsifies the claim of the claimant to act out of fear should be sought. The objective of evidence gathering is to show that the fear claimed is just the outcome of imperfect knowledge. If such evidence is not available, the claimant should ideally be given the benefit of doubt and receive refugee status. If such evidence is available, refugee status should not be granted. At this stage, the focus lies on the objective situation in the country of origin. This basic structure of refugee recognition procedures is confirmed by the Joint Position concerning a harmonised application of the definition of "refugee" in Article 1 of the 1951 Refugee Convention adopted on 4 March 1996 by the Council of Ministers of the EU.374 Section 3 of the Joint Position reads: "The question of whether fear of persecution is well-founded must be appreciated in the light of the circumstances of each case. It is for the asylum-seeker to submit the evidence needed to assess the veracity of the facts and circumstances put forward. It should be understood that once the credibility of the asylum-seeker's statements has been sufficiently established, it will not be necessary to seek detailed

372 373 374

UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva 1988, p.47 at 197. J. Hathaway, The Law of Refugee Status, n. 338 above, p.89. Official Journal of the European Communities, Series L, No 63/1996, pp.2-7.

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confirmation of the facts put forward and the asylum-seeker should, unless there are good reasons to the contrary, be given the benefit of the doubt. The fact that an individual has already been subject to persecution or to direct threats of persecution is a serious indication of the risk of persecution, unless a radical change of conditions has taken place since then in his country of origin or in his relations with his country of origin. The fact that an individual, prior to his departure from his country of origin, was not subject to persecution or directly threatened with persecution does not per se mean that he cannot in asylum proceedings claim a well-founded fear of persecution."

The European Commission confirmed the view presented here in its proposal for a council directive on minimum standards on procedures in Member States for granting and withdrawing refugee status376. Art. 25 para 4 of the proposal reads: "Member States shall ensure that if the applicant has made a genuine effort to substantiate his claim and examiner finds the applicant's statements to be coherent and plausible, while not running counter to generally known facts, the determining authority gives the applicant the benefit of the doubt, despite a possible lack of evidence for some of the applicant's statements.'"377

3.3. REASONS OF PERSECUTION The crucial question is: why does the Convention enumerate the reasons of persecution? Why does the Convention limit the possible reasons of persecution? The 1951 Refugee Convention defines a refugee as a person fearing persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion". It is noteworthy that the list of reasons contained in the Convention differs in one point from the IRO Constitution, the direct predecessor of the UNHCR - membership of a particular social group. This reason was introduced with little explanation378 by the Swedish delegate as a last minute amendment to the Refugee Convention: "...experience had shown that certain refugees had been persecuted because they belonged to a particular social groups...Such cases existed, and it would be as well to mention them

375

Ibid.

376

COM (2000) 578 final dated 20.9.2000. Ibid., Art 25 para 4. This observation prompts Alexander Aleinikoff to conclude that narrow and technical readings of the specified grounds for persecution are misplaced. T. Alexander Aleinikoff, 'The Meaning of "Persecution" in U.S. Asylum Law', in H. Adelman (ed.), Refugee Policy - Canada and the United States (York Lanes Press, Toronto 1991), at p.296f.

377

178

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explicitly."379 This statement clearifies that the main reason for the enumeration of reasons for persecution is historical experience. The reasons of persecution serve as a limitation of the refugee concept. The limitation was introduced to make future obligations calculable. This is confirmed by the drafting history of the 1951 Convention.380 The enumeration in the Convention was intended to serve as a limiting factor. The list of reasons for persecution is not an expression of an underlying principle, but rather a policy decision. The reasons enumerated in the Convention refer to the fear of persecution. The Convention is meant as a protective device for prospective victims. It speaks of "wellfounded fear of persecution". However, it acknowledges that well-founded fear rests on reasons for such fear. It strictly limits the reasons which give rise to a "well-founded fear of persecution". The Convention states that characteristics like race, religion, nationality, membership of a social group and political opinion can be the reason for a well-founded fear of persecution. By doing so it effectively limits the claim of well-founded fear to such reasons. Fear of persecution can be described as the fear that a person is going to be caused serious harm with direct intention. Reasons for the fear of persecution can therefore be understood as reasons why the refugee is of the belief that the persecutor has the intention of harming him. The fear of being persecuted for a certain reason implies that the refugee would not fear persecution without that reason. As stated earlier, persecution is an intentionally harmful action. Reasons for the fear of persecution touch upon the element of intentionality of persecution. It concerns the believed (by the refugee) reason for the intention of persecution (of the persecutor). This belief needs to be well-founded in the sense that a reasonable person in the place of the refugee - having made the same observations and having had the same experiences as the refugee - would share this belief. Thus, the presumed reason for persecution could be said to be very different from the actual motivation of the persecutor and also is not the consequence of a marginalisation of the applicant.

379

Statements of Mr. Petren of Sweden, U.N. Doc. A/CONF.2/SR.3, at 14, November 19, 1951; and U.N.Doc. A/CONF.2/SR.19, at 14, November 26, 1951. The Swedish amendment (incorporated in U.N.Doc. A/CONF.2/9) was adopted without discussion, cited in: J. Hathaway, The Law of Refugee Status, n. 338 above, p. 157 FN 153. 380 See section 2.4.1 above.

CHAPTER 5

ASYLUM

In this chapter the institution, which lies at the heart of refugee law, is dealt with. The question, as to whether the vague concept of asylum can acquire content in the light of the necessity approach, will be examined. Form a linguistic point of view, the term "asylum" is vague. First, it can mean a place where a person is safe. Secondly, it can mean protection, which is afforded to a person. The Institute de Droit International discussed these meanings at its session in Bath in 1950381. In 1938, a questionnaire was sent to the members of the Institute, which contained the question whether asylum should be understood as a place or as protection. An agreement was reached that asylum means protection. "Asylum is the protection which a State grants on its territory or in some other place under the control of its organs to a person who comes to seek it"382. For further reference, asylum will be understood as protection afforded by a State in its territory. Asylum has two aspects, which should be distinguished from each other analytically and discussed separately. Firstly, asylum refers to the power of a state to grant asylum to an alien. This meaning points to territorial sovereignty, which is the basis of asylum practice. The State of origin and all other states are obliged to tolerate granting of asylum. Secondly, asylum refers to the duty of States to grant asylum to an individual.

4.1 THE POWER (OR RIGHT) OF THE STATE TO GRANT ASYLUM

The power of the State to grant asylum arises from territorial sovereignty. States, as a matter of well-established international law and subject to treaty obligations, have the right to control the entry, residence and expulsion of aliens.383 States may prohibit the entry or residence of aliens. But they may equally permit entry and residence to aliens. If they do so for humanitarian reasons, it can be viewed as granting of asylum.

381 382 383

O. Kimminich, Der International Rechtsstatus des Fluchtlings (Carl Heymanns Verlag, K6ln, 1962), p.65. Definition adopted by the Institute of International Law at its 1950 Bath Session; Institute of International Law, 1 Annuaire (1950), p.167, Art.l. cf. European EuropeanCourt Court of of Human Rights, Case of Ahmed v. Austria (71/1995/577/663), 17 December 1996, at 38.

115

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Rethinking Refugee Status

Nathan-Chapotot distinguishes between asile de droit and asile defait. Asile de droit exists only if a conflict situation is at stake: the State of origin requests the State of asylum to return the individual. The State of asylum denies the request. According to Nathan-Chapotot, only such a situation can be treated as the true test of a right to grant asylum. In other, undisputed situations the practice of asylum is unproblematic; a right to grant asylum in the strict sense of the term is not necessary. Nathan-Chapotot speaks of asile de fait.384 Kimminich, on the other hand, is of the opinion that the right of the State to grant asylum is limited to cases of "asile de droit".385 He argues that the right of granting asylum is otherwise not needed. However, Kimminich acknowledges that all States, including the state of origin, have to tolerate the rightful practice of asylum.386 This raises a fundamental question: are there any limits to the power to grant asylum? Is it, in certain cases, prohibited to grant asylum? Kimminich's observation that a right to grant asylum is not needed in cases of "asile de fait" does not relate to this fundamental question. "Asile de fait" might not be controversial. It is not possible to conclude that a State is prohibited from granting asylum in such situations - on the contrary. In other words, the power of the State to grant asylum is not affected. There is a need to distinguish between the question of the State's right and the question of legal power of the State to do so. Even if the State does not require a right to grant asylum in undisputed situations, the State undeniably has the power to do so. Besides, such a result would be inconsistent. As already discussed, asylum follows from territorial sovereignty. If granting asylum is permitted in potentially controversial situations, it would be inconsistent if granting asylum is prohibited in uncontroversial situations. There would be clearly no reason to limit the exercise of territorial sovereignty in such situations. Does a State need the right to grant asylum to do so? It follows from territorial sovereignty that the State has the power to grant asylum on its territory. Only obligations of international law restrict the sovereignty of the State. It follows that other States are obliged to respect the practice of asylum as long as no international obligation is violated. If the State of origin uses strong pressure to influence the asylum practice of the State of asylum without alleging any violation of international law, the State of origin can be said

385

R. Nathan-Chapotot, La qualification Internationale des refugies et personnes deplacees dans le cadre des Nations Unies, Dissertation, Geneva 1949, p.26. O. Kimminich, Der International Rechtsstatus des Fluchtlings, n. 1 above, p.71 The Institut de Droit International adopted at the Bath session on 11 September 1950 its Resolution on asylum in public international law; Art.2(l) reads: "Tout Etat qui, dans 1'accomplissement de ses devoirs d'humanite, accorde asile sur son territoire n'encourt de ce fait aucune responsabilite internationale", 1 Annuaire( 1950) 167.

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to be potentially interfering in the internal affairs of the asylum State.387 Hence, the distinction between asile de droit and asile defait is of no significant importance. The idea that the power to grant asylum follows from territorial sovereignty has certain implications. First, it affects the question of the limits of asylum. Only limits of territorial sovereignty can constitute limits to the right to grant asylum. Secondly, it affects the question of competency to qualify a claim for asylum. If follows from territorial sovereignty that the State does not have to justify its practice of asylum as long as no obligation to the contrary is violated, especially concerning extradition. Thirdly, this concept ensures that other states, including the State of origin, are obliged to respect the practice of asylum as part of the territorial sovereignty of the state of refuge. Any attempt to influence the practice of asylum by coercion can constitute an interference in internal affairs.

4.1.1 Two Models of Asylum Asylum in international law refers to the exercise of territorial sovereignty in its entirety. The notion of territorial sovereignty covers numerous practices. Likewise, asylum practice can assume various forms. The meaning of asylum in international law is, therefore, vague388 and consists of different practices. In a UN Report, Special Rapporteur Mubanga-Chipoya reports that the following practices can constitute asylum: - to admit a person to the territory of the State; - to allow the person to remain there; - to refuse to expel; and

It is difficult to explain what exactly constitutes an illegal interference. Problems do not occur in cases of manifest illegality, e.g. the use of force or the breach of a treaty commitment. The following considerations might prove useful. The raison d'etre of the non-intervention rules is the protection of the sovereignty of every state. The difficulty lies in the contrasting manifestations of sovereignty. Sovereignty is the principle which circumscribes the area of free will of a State. Sovereignty equally serves as the basis of the capacity to engage in binding commitments through international law and thereby serves to limit the scope of the state's free will. Therefore, the non-intervention rule as a corollary to the sovereignty principle not only allows but makes restrictions of the sovereign sphere almost inevitable, including "domestic affairs"; the consequence of this is that other States acquire a right to interfere with regard to matters where sovereignty has been restricted by international law. As more problems fall within the sphere of international law, fewer matters can be regarded as remaining domestic, cf. Thomas Opperman,' Intervention' in R. Bernhardt (ed.), Encyclopedia of Public International Law (Volume 2, Amsterdam, 1995), p. 1437f. Goodwin-Gill explains the failure to implement a duty to grant asylum partly by pointing to "the vagueness of the institution". G. S. Goodwin-Gill, The Refugee in International Law (2nd ed., Clarendon Press, Oxford, 1966), p. 174.

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389 - to refuse to extradite and not to prosecute.389

Among these various practices, the logic of two of these practices needs to be distinguished from each other in order to avoid confusion and misconception: asylum that results from the refusal of an extradition request, and asylum that flows from an exception to immigration policy, such as the exceptional permission of admission and stay. Turning now to extradition, the term extradition designates the official surrender of a fugitive from justice, regardless of his consent, by the authorities of the State of residence to the authorities of another State for the purpose of criminal prosecution or the execution of a sentence.390 Extradition is furthermore an instance of legal assistance between States in criminal matters.391 A State may not send its agents to arrest any person in the territory of another State without the latter's consent. Such an action would violate the exclusive jurisdiction of States.392 Thus, the State seeking the prosecution of a suspect or punishment of a fugitive offender needs to request assistance.393 General international law does not impose the duty on States to extradite.394 Likewise, general international law contains very few limitations on a State's freedom to extradition.395 Beyond that limit, extradition rests on treaty law and domestic law and policy.396 In all cases, asylum that flows from a refusal to extradite presupposes a request by the State of origin. Such a request is central to this concept of asylum. Asylum in this sense is protection afforded against the State requesting extradition. One could term this type of asylum: extradition asylum. It is this type of asylum that Nathan-Chapotot had in mind when he coined the term "asile de droit". Potentially, the refusal to extradite might upset the requesting state and be interpreted as an unfriendly act. It might lead to a retorsion, i.e. an unfriendly act in reaction to an unfriendly act. Thus, Nathan-Chapotot explained the right to grant asylum

389

390

391

392

393

394

396

Mubanga-Chipoya, Final Report - The Right of Everyone to Leave any Country, Including His Own, and to Return to His Country, UN Doc. E/C.4/SUB.2/1988/35, June 1988, pp.103-106. T. Stein, 'Extradition 'Extradition'1 in R. Bernhardt (ed.), Encyclopedia of Public International Law (Instalment 8, Amsterdam, 1985),p.222. See R. Geiger, 'LegalAssistance Assistancebetween between States in Criminal Matters' in R. Bernhardt (ed.), Encyclopedia of Public International Law (Instalment 9, Amsterdam, 1986), pp.249 - 255. Cf. B. H. Oxman, 'Jurisdiction of States' :in R. Bernhardt (ed.), Encyclopedia of Public International Law (Instalment 10, Amsterdam, 1987), p.281. Cf. T. Stein, 'Extradition' 'Extradition' in R. Bernhardt (ed.), Encyclopedia of Public International Law (Instalment 8, Amsterdam, 1985), p.222. Ibid., p.223. Stein mentions those fundamental human rights that can be considered as part of jus cogens. Ibid., p.223. Ibid.

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in such cases in order to specifically justify the behaviour of the state of asylum.397 It is in this light that the General Assembly of the UN unilaterally adopted the Declaration on Territorial Asylum in 1967. In the preamble, the Declaration states: " Recognising that the grant of asylum by a State to persons entitled to invoke article 14 of the Universal Declaration of Human Rights is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State".

The Declaration contains the principle that asylum should not be interpreted as an unfriendly act and lead to retorsions. The qualification of an act as unfriendly is more of diplomatic than of legal significance.398 The UN Declaration should be read along these lines. Taking a brief look at the history of extradition in international law, the usefulness and value of the concept of asylum, in relation to extradition, appears questionable: the understanding of extradition proposed by Hugo Grotius needs to be remembered. He held that the state of refuge should either punish the criminal or surrender him back to the state seeking his return.399 This idea can be summarised in the maxim aut dedere out iudicare. Vattel regarded extradition as a clear legal duty imposed upon states by customary international law in the case of serious crimes.400 In this context of a general duty of extradition established by customary international law, it would make sense to speak of a special right to grant asylum as an exception to a general duty of extradition. However, this view of extradition as a general duty did not prevail. Instead, in 1840 the Supreme Court of the US laid down the principle that no obligation to extradite existed apart from that imposed by treaty.401 Outside the scope of a specific treaty, the common law countries adhered to the principle that surrender may not be granted402 in the absence of a treaty obligation. The civil law countries allowed for more room of discretion by espousing the view that extradition, outside a specific treaty obligation, was based on comity or reciprocity.403 Both these approaches affirm the prevailing opinion that customary international law does not provide for a duty of extradition. Such a duty may only arise out of treaty law.

397 398

'JQQ

400 401 402 403

R. Nathan-Chapotot, La qualification Internationale des refugies, n. 4 above, p.26. Hermann Weber qualifies unfriendly acts as a diplomatic category rather than a juridical one. See H. Weber, 'Unfriendly Act1 in R. Bernhardt (ed.), Encyclopedia of Public International Law (Instalment 4, Amsterdam, 1982), p.252f. Hugo Grotius, De Jure Belli ac Pads, book 2, ch.21, §§ 3,4. Emmerich de Vattel, Le Droit des Gens, book 2, ch. 6, §§ 76, 77. U.S. Supreme Court, decision Holmes v. Jennison, 14 Pet. 540 (1840). See English Extradition Act of 1870,33 and 34 Viet. c. 52 (1870). Cf. M. Cherif Bassiouni, International Extradition and World Public Order (A.W.Sijthoff, Leyden, 1974), p.7ff.

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This development of extradition doctrine leads to an apparent paradox in asylum doctrine. On the one hand, only extradition treaties create extradition obligations. On the other hand, extradition treaties limit the power to grant asylum insofar as a duty of extradition arises.404 Hence, it can be concluded that a specific right to grant asylum is not needed if no treaty establishes a duty of extradition. The decision not to extradite is a simple consequence of a lack of obligation and, thus, constitutes an act of simple sovereignty.405 In the case that a treaty does establish a duty of extradition, the conclusion is arrived at that the right to grant asylum does not help because such a duty limits the right. Thus, one may question the usefulness and value of the concept of asylum in relation to extradition. If the nature of aliens law is considered, a different concept of asylum emerges. The reception of aliens is a matter of discretion, and every State is, by reason of its territorial supremacy, competent to exclude aliens from its territory.406 Expulsion and deportation are the means of enforcing the territorial supremacy of States. In short, expulsion means the prohibition to remain inside the territory of the ordering State; deportation is the factual implementation of the expulsion order.407 Neither expulsion nor deportation presupposes a request of the State of origin. Thus, the decision not to expel or to deport is not a refusal of any particular request of the State of origin. Asylum that flows from the non-application of aliens law does not presuppose any wish of the State of origin to get hold of the individual. Asylum, in this sense, is the protection offered through the nonapplication of power provided by aliens law. Protection, in this sense, can be offered in various forms: admission, non-refoulement, residence permit, work permit. This protection is not necessarily directed against the State of origin. Protection, in this sense, is primarily protection by a non-application of the aliens law due to its consequences in the concrete case. Harsh consequences are particularly evident in the case of impending harm. In this sense, protection means giving an individual the possibility of an existence in dignity without fear of harm.408 This is not to say that this fear of harm is not often due to the State of origin's actions. The point is that conceptually there is no requirement that

404 405

406

Cf. A. Grahl-Madsen, Territorial Asylum (Almqvist & Wiksell International, Stockholm, 1980), p. 15 Grahl-Madsen, logically stringent, concludes that it is basically an expression of the power of the State to grant asylum if the State refuses to extradite a person on the ground that no extradition treaty has been concluded (Ibid, p. 18). However, it appears strange to speak of asylum in this scenario. Such an understanding of asylum misses the central issue that asylum is commonly understood to be based on humanitarian considerations. If asylum means simply the limits of the duty of extradition, we can do without the concept. Cf. L. Oppenheim, International Law (Vol.1, 8th ed. by H. Lauterpacht, London, 1967), pp. 675-676. Cf. K. Doering, 'Aliens, Expulsion and Deportation' in R. Bemhardt (ed.), Encyclopedia of Public International Law (Instalment 8, Amsterdam, 1985), p. 14. Cf. W. Kalin, Das Prinzip des Non-Refoulement: das Verbal der Zuriickweisung, Ausweisung und Auslieferung von Fluchtlingen in den Verfolgerstaat im Volkerrechts und im schweizerischen Landesrechts (Dissertation, Bern, 1982), p. 10.

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the harm originates from the State of origin. It may or it may not do so. This form of asylum could be termed - refugee asylum. These two forms of asylum evolved historically in different settings. Historically, extradition asylum appeared first on the stage. The French Revolution of 1789 and the Belgian Extradition Act of 1833 are the crucial dates that mark the origin of extradition asylum.409 It is justified by a triple rationale: - the political argument that States should remain neutral vis-a-vis political conflicts in other States and that therefore extradition of political opponents is to be a priori refused; - the moral argument, based on the premise that resistance to oppression is legitimate and that political crimes can therefore be justified; and - the humanitarian argument, whereby a political offender should not be extradited to a State in which he risks an unfair trial.410 Extradition asylum primarily concerns the political offender.411 Thus, extradition asylum could be said to be primarily concerned with the sociological type of the "active rebel"412 - the freedom fighter. The treatises on asylum in the 19th century dealt primarily with extradition asylum. Extradition asylum, thus, unduly influenced the doctrine of asylum in international law.413 At its onset, the 20th century witnessed massive refugee movements.414 The refugee was typically passive.415 The primary need was not protection from extradition, but the search for safety on foreign soil.416 The refugee was driven by fear. This fact led to legal recognition with regard to admission policy and residence regulation, both areas of traditional aliens legislation. Early examples of these considerations are the British Aliens

409 410

411

412 413

415

416

H. von Pollern, Das moderne Asylrecht (Duncker & Humblot, Berlin, 1980), p.37. C. Van den Wyngaert, 'The Political Offence Exception to Extradition: How to Plug the "Terrorists' Loophole" without Departing from Fundamental Human Rights' (1989) 19 Israel Yearbook on Human Rights, p.297-316, at p.298. M. Marugg, Volkerrechtliche Definitionen des Ausdruckes "Fliichtling" (Helbing & Lichtenhahn, Basel und Frankfurt am Main 1990), p.31. Cf. Aristide Zolberg et al., Escape from Violence (Clarendon Press, Oxford, 1989). Walter Kalin, Das Prinzip des Non-Refoulement, n. 28 above, p.34. For an example of this confusion: "The protection in question is protection against another State, acting through its lawful, duly accredited, and duly authorized organs, or, in some cases, through agencies operating openly or coverly on behalf of the government, the ruling party, or the ruling clique." A. Grahl-Madsen, Territorial Asylum (Almqvist & Wiksell International, Stockholm, 1980), p.l. For a comprehensive account see G. Stenberg, Non-expulsion and Non-refoulement, (lustus Forlag, Uppsala, 1989), pp.22-58. Accord U. Davy, Asyl und Internationales Fluchtlingsrecht (Volume 1, Verlag Osterreich, Vienna, 1996), p. 30. Ibid.

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Act of 1905417 and the American Immigration Act of 5 February 1917418, which introduced the literacy test into American immigration legislation. The crisis of Russian Refugees between 1917 and 1920 led to the first international agreement concerning refugees - the 1922 Arrangement with Regard to the Issue of a Certificate of Identity to Russian Refugees.419 Traditional asylum doctrine is no longer sufficient for the purposes of refugees.420 But the adaptation of asylum doctrine to the realities of refugee movements driven by fear remains incomplete. Many misunderstandings surrounding the concept of asylum are due to the confusion between the two distinct models underlying the institution of asylum. It is essentially the inability to distinguish between these distinct forms of asylum that has led to the stubborn belief that the concept of asylum implies protection against another State.421 This has led to the opinion that refugees - the main beneficiaries of modern asylum practice422 always flee from the State.423 This, in turn, has led to the belief that civil war is beyond 417

418

419 420 421

423

Art.l/3 lit. a of the British Aliens Act of 1905 proclaims that, unlike other "undesirable aliens", an immigrant "who proves that he is seeking admission to this country solely to avoid prosecution or punishment on religious or political grounds or for an offence of a political character, or persecution, involving danger of imprisonment or danger to life or limb, on account of religious belief, leave to land shall not be refused." 5 EDW.7, Ch.13, cited in M. Marugg, Volkerrechtliche Definitionen des Ausdruckes "Fluchtling" (Helbing & Lichtenhahn, Bsel und Frankfurt am Main, 1990), p.43. 39 Stat. 874 section 3 contains an exception clause to the literacy test: "All aliens, who shall prove,...that they are seeking admission to the United States to avoid religious persecution be evidenced by overt acts or by laws or governmental regulations that discriminate against the alien or race to which he belongs because of his religious faith." As Aristide Zolberg points out, the US Congress enacted the literacy test first in 1915, but President Woodrow Wilson vetoed it on the grounds that the measure failed to exempt those fleeing from religious persecution. See A. Zolberg, Immigration Crises: An Historical Comparison, unpublished paper presented at the Immigration Policies: National and Transnational workshop, which was held December 14-15, 1995, at the European University Institute, Florence. 13LoNTS237. See H. von Pollem, Das moderne Asylrecht (Duncker & Humblot, Berlin, 1980), p.41. "The protection in question is protection against another State, acting through its lawful, duly accredited, and duly authorized organs, or, in some cases, through agencies operating openly or covertly on behalf of the government, the ruling party, or the ruling clique." A. Grahl-Madsen, Territorial Asylum (Almqvist & Wiksell International, Stockholm, 1980), p.l "When protection is given against a mob, a local authority or a military officer acting without proper authorization, or a group of rebels, it is preferable to speak of "refuge" or "temporary refuge" Ibid, p.l, fn 3. Grahl-Madsen simply downplays the importance of this terminological question for actual practice. This is not simply a linguistical issue. The point is that various jurisdictions contain a right of the individual to asylum whereas a similar right to refuge does not exist. By this unjustified linguistical sleight of hand, Grahl-Madsen decides the fate of many refugees and excludes them from the benefits of asylum. "Durch die Gleichstellung der im aktiven politischen Kampf begangenen politischen Straftaten und der aus politischer Verfolgungsfurcht unternommenen Fluchtdelikte verlagerte sich die herausragende Bedeutung des Asylrechts von der Ebene der Rechtshilfe auf das Gebiet des internationalen Fluchtlingsrechts. Zentrale Figur des politischen Asyls ist nicht mehr der aktive politische Verbrecher, sondern der passive politische Fluchtling." H. von Pollern, Das moderne Asylrecht (Duncker & Humblot, Berlin, 1980), p.41. Cf. The Decision of the Constitutional Court of Germany of 10 July 1989,2 BvR 502,1000, 961/86, NVwZ 1990,p.l51.

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the scope of refugee protection. Persons fleeing civil wars are not really refugees. In other words, refugee asylum is pressed into the straight jacket of extradition asylum. As a result, persecution is interpreted as a State action. This misunderstanding can be traced back to Nathan-Chapotot's differentiation between "asile de fait" and "asile de droit".424 The point is that asylum for refugees does not presuppose an "asile de droit". A right to grant asylum is only necessary when it concerns extradition asylum because it - meaning the refusal of an extradition request - is clearly protection against the State of origin. Concerning refugees, "asile de fait" is sufficient. What is decisive with regard to refugees is the undisputed power of States to grant asylum. The State of origin might be completely indifferent to such a practice. Crucially, the State of origin might even object, but is, nevertheless, required to tolerate this practice as a rightful expression of territorial supremacy. In order to simplify the discussion, it is limited to refugee asylum, the dominant case in practice. Asylum for refugees means protection against the harshness of aliens law; in this narrower sense, asylum refers to protection by granting an exemption from an application of general alien legislation: non-punishment for illegal entry and stay as an exemption from punishment, non-refoulement as an exemption from forcible return, right to stay as an exemption from a general prohibition of residency for aliens unless specifically permitted to stay, right to work as an exemption from a general prohibition to work for foreigners unless specifically permitted to work, etc. As discussed earlier,425 refugees are stateless to the extent that they cannot benefit from the right of residence within their state of nationality, the only state where individuals have a right of residence according to customary international law. The lack of residence anywhere implied in a refugee in orbit situation constitutes inhuman and degrading treatment.426 Asylum could be understood as a remedy for this special disability. Thus, it is justifiable to understand asylum as a subsidiary permission to stay on foreign soil because realistically it is not possible to stay on national soil. For present purposes, assume that asylum is a practice of permitting aliens to stay for humanitarian purposes.427 This understanding corresponds to national practice in Canada and the US428, in Germany429 and in Austria430.

424

425 426

428

See section 4.1.1 above. See section 1.4.2 in chapter 1. See n. 473 below. As Ulrike Davy elaborates, this specific meaning of asylum was advanced during the drafting of the 1951 Refugee Convention. The drafters wanted to express certain residual measures of aliens legislation which remained within the sovereignty of the states even after entry into force of the Convention. The most important of these measures is the permission to stay. Cf. U. Davy, Asyl und Internationales Fluchtlingsrecht (Vol. 1, Verlag Osterreich, Vienna, 1996), p.52. T. Clark, 'Human Rights and Expulsion: Giving Content to the Concept of Asylum1 (1992) 4 International Journal of Refugee Law 2, Oxford University Press, p. 190.

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4.1.2 The Limits of the Power to Grant Asylum

4.1.2.1 Asylum and Non-intervention Ernst Reichel attempts to analyse the limits of asylum. Reichel asserts that granting asylum potentially conflicts with the prohibition of intervention.431 He admits that the right of any State to grant asylum is a consequence of territorial sovereignty. However, according to Reichel, it does not follow that the State of origin has to respect this exercise of sovereignty.432 The State of origin is merely prohibited from responding by sanctions, to a measure permitted by international law. Reichel claims that the State may resort to retorsions. According to Reichel, the interests of the State of origin and the State of refuge clash in several aspects. First, the offer of refuge acts as an offer to flee. This offer can alienate citizens from their State, corrupt their loyalty, damage the State of origin economically, and influence the political climate negatively.433 These consequences are intensified if the refugee is a prominent dissident. He states that the persecution standard necessitates the evaluation of the acts of other states versus their citizens. According to him, every grant of asylum in effect amounts to the condemnation of the State of origin.434 He states that such an official statement on the human rights situation in the State of origin potentially constitutes interference in the internal affairs of another country. Reichel also claims that a matter pertains to domestic jurisdiction if it is not regulated by international law. Conversely, only a matter regulated by international law is of § 68 of the German Asylum Procedure Act (Asylverfahrensgesetz): "Dem Auslander ist eine unbefristete Aufenthaltserlaubnis zu erteilen, wenn er unanfechtbar als Asylberechtigter anerkannt ist." §1 of the Asylum Act (Asylgesetz): "Im Sinne dieses Bundesgesetzes ist ... Asyl, der Schutz, der einem Fremden im Hinblick auf seine Fliichtlingseigenschaft in Osterreich gewahrt wird. Dieser Schutz umfaBt insbesondere das Recht zum Aufenthalt im Bundesgebiet..." E. Reichel, Das staatliche Asylrecht "im Rahmen des Volkerrechts" - Zur Bedeutung des Volkerrechts fir die Interpretation des deutschen Asylrechts (Duncker und Humblot, Berlin, 1987), p.45 et seq. 432 433 434

Ibid., p.45. Reichel completely ignores the fact that human beings have the right to leave any state according to international human rights law. See Art. 13/2 UDHR, Art. 12/2 CCPR. Reichel even sees parallels between refugee law and the international law of delicts. "Die Interessenlage bei der Asylgewahrung und im volkerrechtlichen Deliktsrecht ist namlich deshalb vergleichbar, weil auch im Asylverfahren dem Heimatstaat der Vorwurf gemacht wird, politisch verfolgt und sich damit menschenrechtswidrig verhalten zu haben. Der Asylgewahrung wohnt ein rechtliches Unwerturteil inne." Reichel, Das staatliche Asylrecht "im Rahmen des Volkerrechts", n. 431 above, p.87.

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international concern.435 It is a matter of domestic jurisdiction how the state of origin treats its citizens, if international law is not violated. According to Reichel, the granting of asylum for a reason unregulated by international law would constitute an interference in internal affairs and is, therefore, not permissible. Reichel concludes that only human rights accepted by international law are relevant criteria for the granting of asylum because human rights law creates binding international obligations and can therefore serve as the basis of international concern436. Reichel claims the requirement of a standard of international obligation in order to avoid intervention in the affairs of another state. However, he himself admits that intervention requires a certain degree of coercion437. Furthermore, he admits that the mere official finding of human rights violations and the granting of asylum based on this finding does not constitute intervention because of the absence of coercion of the state of origin438. These two statements render his whole argument contradictory. Besides, the issue of intervention is inadequately addressed. He also claims that the granting of asylum potentially interferes in the internal affairs of the state of origin of the asylum applicant. However, there is strong evidence to prove the contrary. The Declaration on Territorial Asylum439 expresses the idea that asylum is a peaceful and humanitarian act and cannot be regarded as unfriendly by any other State. Even if it is argued that the Declaration did not attain the status of customary law, the Declaration is important as a statement of international legal policy.440 The point is that an act which is not even considered unfriendly, cannot constitute intervention, as Reichel claims. This must logically also apply to the acceptance by the State of asylum of the asylum-seeker's statement to the effect that he has suffered or fears persecution in his country of origin. 441 If the granting of asylum is not based on humanitarian reasons, the Declaration is not clear. It can be argued that asylum not based on humanitarian reasons is a contradiction in itself. It may be said that such a practice does not constitute granting of "asylum" in the

435

437 438

439

441

Ibid., p.49f. According to Reichel, the Universal Declaration of Human Rights is not binding. The Declaration is a mere recommendation and formulates a common ideal. Ibid., p.35. Ibid., p.52. Ibid., p.53; Q. Wright, 'Is Discussion Intervention?' (1956) 50 American Journal of International Law , p. 106; F. Ermacora, 'Human Rights and Domestic Jurisdiction (Article 2, §7 of the Charter)', Recueil des Cours de 1'Academie de droit international 124 (1968 II), p.437. In 1967, the General Assembly of the UN unilaterally adopted the Declaration on Territorial Asylum (resolution 2312 (XXII). See section 4.1.1 above. A. Grahl-Madsen, The Status of Refugees in International Law (Vol.2, A.W.Sijthoff, Leyden, 1972), p.27.

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true sense of the term even if it is thus labelled. Such a decision can then be perfectly understood as a "normal" exercise of territorial sovereignty; as a decision to permit immigration, not to expel, not to extradite, etc. The granting of "asylum" might, in such cases, appear to be unfriendly. The state of origin might protest. However, it does not follow that the granting of asylum is prohibited in such cases. The prohibition of intervention in international law is not applicable to asylum practice. The practice of asylum can hardly ever be said to reach the required level of pressure even if domestic affairs are implicated. Even if domestic affairs are touched upon in a given situation, the measure of the acting State can only be qualified as illegal interference if a certain degree of coercion is employed. Mere discussion and even propaganda cannot be considered unlawful, if they do not result in very direct pressure on another State. By these criteria the dividing line between lawful interference and a violation of sovereignty lies more in the prohibition of force; thus cases where an action is merely unfriendly or cumbersome are excluded.442 The practice of asylum may be regarded as unfriendly or cumbersome, but it can hardly be said to constitute illegal interference in internal affairs.

4,1.2.2 Asylum and Extraterritorial Effects According to Reichel, asylum is characterised by extraterritoriality.443 The facts which give rise to a grant of asylum typically take place abroad. This characteristic is intensified if persecution functions as a requirement for granting asylum. Reichel claims that persecution implies illegality. Illegality presupposes reference to a legal system. If the domestic legal system of the State of asylum is used as a reference point, the question arises on the extent to which the State of asylum is justified in projecting its own legal rules of conduct abroad. According to Reichel, the sovereign equality of States implies a principle of respect for foreign legal systems.444 This argument leads one to consider the jurisdiction of States. The term "jurisdiction" is most often used to describe the lawful power of a State to define and enforce the rights and duties, and control the conduct, of natural and juridical persons.445 The multitude of

443

444

T. Oppermann, 'Intervention' in R. Bernhardt (ed.), Encyclopedia of Public International Law (Volume II, North-Holland, Amsterdam, 1995), p. 1438. E. Reichel, Das staatliche Asylrecht "im Rahmen des Volkerrechts", n. 431 above, p.58. Ibid.,p.71. B. H. Oxman, 'Jurisdiction of States' in R. Bernhardt (ed.), Encyclopedia of Public International Law, (Instalment 10, North-Holland, Amsterdam, 1987), p.277.

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States leads to the need to limit different competing jurisdictions.446 In the light of the principles of the independence and sovereign equality of States, each State's interest in exercising jurisdiction to advance its own policy needs to be balanced with each different State's interest in avoiding interference with its policies resulting from the exercise of jurisdiction by foreign States. This problem becomes acute in the case of transboundary effects.447 International law doctrine deals with this question under the heading of "extraterritorial effects of sovereign acts"448. This reasoning leads us to the question of how such a presumed conflict of jurisdictions might be solved. As demonstrated above, the Declaration on Territorial Asylum states in its Preamble: "Recognising that the grant of asylum by a State to persons entitled to invoke article 14 of the Universal Declaration of Human Rights is a peaceful and humanitarian act and that, as such, it cannot be regarded as unfriendly by any other State".

A State would regard an act as unfriendly particularly where its interests are adversely affected. It is noteworthy that the Declaration qualifies the practice of asylum as a peaceful and humanitarian act. It follows that as long as granting asylum is arguably based on a humanitarian reason, it cannot be interpreted as an unfriendly act. This provision should be read as an expression of international legal policy. The humanitarian act of asylum should not be considered an unfriendly act even though opposing political interests are affected. Concerning asylum practice, humanitarian concerns outweigh the interests States of origin might have. Reichel's argument is flawed from the outset. He asserts that asylum for persecuted individuals is extraterritorial in its effects. He is right insofar as persecution by definition occurs abroad. He also argues that the grant of asylum entails extraterritorial effects. The offer of refuge potentially acts as an offer to flee. This offer can alienate citizens from

446

448

"In this regard, four fundamental objectives should be borne in mind. The first is to establish limits of jurisdiction that protect the independence and sovereign equality of States by balancing each State's interest in exercising jurisdiction to advance its own policies with each State's interest in avoiding interference with its policies resulting from the exercise of jurisdiction by foreign States. The second is to recognize the interdependence of States by ensuring that effective jurisdiction exists to achieve certain common objectives of States. The third is to harmonize the rights of two or more States when they have concurrent jurisdiction, that is when each of them has jurisdiction over the same matter. The fourth is to protect individuals from unreasonable exercises of jurisdiction either by a single State or by two or more States seeking to impose conflicting or compounding obligations on the same person." Ibid, p.278. "Administrative, judicial and legislative acts of States are emanations of a State's sovereign jurisdiction. Since the relationship between States nowadays is still dominated by the principle of sovereign equality and by the exclusive sovereignty over national territory, every extension of the reach of the effects of such an act over the State's border has to be tested as to whether or not these fundamental principles are violated." W. Meng, 'Extraterritorial effects of administrative, judicial and legislative acts' in R. Bemhardt (ed.), Encyclopedia of Public International Law (Instalment 10, North-Holland, Amsterdam, 1987), p. 155. Ibid.

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their state, corrupt their loyalty, damage the State of origin economically, and influence the political climate negatively. These consequences are intensified if the refugee is a prominent dissident, according to Reichel.449 However, these effects are not central to asylum nor are they generally intended. Not every asylum grant has these effects. Reichel only mentions potential effects, not necessary ones. Besides, these extraterritorial effects, which Reichel deplores, are negligible compared to the territorial effects of asylum. The territorial effects of asylum are comparable to immigration. After all, it is this fact which motivates Reichel to divert so much of his attention to the limits of asylum.450 Asylum is the institutional device needed to manage the flow of migrants which cannot be deterred due to necessity. It is implausible that the extraterritorial effects, which cannot be considered central to the practice of asylum, should enjoy priority with regard to the central and heavy territorial effects. This consideration alone leads to the conclusion that the presumed extraterritoriality of asylum does not necessarily lead to a limitation of the right to grant asylum.451 As concerns extraterritorial effects, there is a difference between extradition asylum and refugee asylum. By making an extradition request, the State of origin has expressed its interest in getting hold of an individual. The interest is, therefore, clear. Concerning refugee asylum, a comparable interest is not evident. Hence, Reichel's argument is much more suitable to extradition asylum than to refugee asylum. Ultimately, the doctrine of extraterritorial effects has found legal expression only in certain specific areas of international law, such as antitrust law or foreign trade law. At best, the doctrine expresses a consideration of international legal policy with the consequence that the exercise of jurisdiction with injurious extraterritorial effects should

450

451

E. Reichel, Das staatliche Asylrecht "im Rahmen des Volkerrechts", n. 431 above, p.46. The concern for the perceived need to control immigration into Germany dominates the introduction of Reichel's book. "In dramatischen Umfang ist das BewuBtsein dafur gewachsen, daB die Bundesrepublik zwar nicht juristisch, wohl aber faktisch langst zum Einwanderungsland geworden ist. Angesichts eines Auslanderanteils der Bevolkerung, der bundesweit 7%, in manchen GroBstadten aber schon 20% betragt, und darauf beruhenden, mittlerweise offen zutage getretenen gesellschaftlichen Problemen kommt dieses Aufleben der auslanderrechtlichen Diskussion freilich nicht iiberraschend. Die angesprochene Einwanderung vollzieht sich, vor allem nach dem Anwerbestop fur Gastarbeiter im Jahre 1973, zunehmend nicht auf den unwegsamer werdenden Bahnen des allgemeinen Auslanderrechts; immer haufiger in Anspruch genommen wird der einstmals zahlenmaBig unbedeutende Weg zum Aufenthaltsrecht iiber den Asylantrag. Circa 100.000 anhSngige Asylverfahren bei einer Anerkennungsquote von nur 8,3% im Jahre 1981 legen davon beredtes Zeugnis ab." Ibid., p.21. Accord A. Grahl-Madsen, Territorial Asylum (Almqvist & Wiksell International, Stockholm, 1980), p.14: "From the texts of the cited instruments we may therefore not infer that there is any limitation on the right of States to grant asylum to any person to whom it pleases to grant it. The said instruments are thus in conformity with recognized doctrine, according to which a State may grant asylum in its territory to any person, subject only to the provisions of conventions or treaties, to which the State in question is a party."

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be limited.452 Asylum does not create the same injurious extraterritorial effects as certain economic measures do. The application of the doctrine of extraterritorial effects to asylum is therefore farfetched. Presently, the doctrine of extraterritorial effects cannot be said to limit the power of States to grant asylum.

4.1.3 The Personal Scope of the Power to Grant Asylum The question arises as to whether the granting of asylum in international law is limited to persons entitled to invoke Art. 14 of the Declaration of Human Rights as the Declaration on Territorial Asylum states. Art. 1(3) of the Declaration on Territorial Asylum reads: "It shall rest with the State granting asylum to evaluate the grounds for the granting of asylum." In its comments on this provision, the French Government made it quite clear that this paragraph "cannot be interpreted to mean that a State granting asylum must justify its decision either to an international body or to other States453". This statement was not contradicted by any other delegation. The Declaration on Territorial Asylum was "intended to elaborate upon article 14 of the Universal Declaration of Human Rights"454, and the Declaration is silent on asylum practice outside this scope. The recognised doctrine455 is that every sovereign state has the perfect right to grant asylum in its territory

452

453 454 455

Werner Meng points to the practice of US courts which have developed a "balancing of interests" method that parallels the one used by courts to resolve jurisdictional conflicts between states within the United States. He goes on to stress: "There is no uniform opinion among scholars as to the latter point. Some argue that the United States practice is not sufficient to create general international law. In fact there is as yet no balancing of interests practice outside of the United States. Furthermore these scholars stress the point that the existing practice considers the balancing method as a matter of international comity as opposed to an international legal obligation. Finally, they submit that the balancing of interests method is presently even diminishing in importance within the constitutional order of the United States since an honest and really impartial balancing of State interests is not possible. Other authors recognize a general predominance of the lex fori and thus reject the possibility of balancing of interests altogether. However, an increasing number of scholars presently deem such balancing as in principle required by public international law. It is submitted that a duty to balance in good faith arises from the fact that parallel and conflicting jurisdiction always impinges upon the principle of sovereign equality and affects the goal of protecting the principle of nonintervention." W. Meng, 'Extraterritorial effects of administrative, judicial and legislative acts', n. 67 above, p. 159 et seq. UNDoc A/6367 and Add.l and 2; 21 GAOR Annexes 85,2. UNDoc A/6570; 21 GAOR Annexes 85, p.7. A. Grahl-Madsen, The Status of Refugees in International Law, Vol.2, n. 61 above, p.30; see records of the Institute de Droit International: De la Barra said "un etat,...en vertu de 1'exercise de sa souverainete nationale, est libre d'accorder ou non 1'asile a un ressortissant ou a des ressortissants d'un autre etat, sans autre limitations que celles pouvant provenir de conventions ou d'autres accords qui le lieraient avec un ou

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to any person seeking it, provided there is no contractual obligation to the contrary456. The limitations on the right of States to grant asylum must, therefore, be sought in extradition treaties and other conventions on the subject457.

4.1.4 The Duty of other States to Respect the Granting of Asylum Article 1 (1) of the Declaration on Territorial Asylum reads: "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".

The basis for this is "the undisputed rule of international law"458 that every state has exclusive control of its territory (territorial sovereignty). Territorial sovereignty excludes the territorial sovereignty of another state; this implies, for example, that a state cannot exercise its jurisdiction over its own nationals present in another state's territory459. Consequently, a state may interpret the granting of asylum to its nationals as an unfriendly act, since it implies that they are out of its reach. It is possible that a state of origin regards the granting of asylum as an unfriendly act. However, it does not follow that the granting of asylum is legally prohibited in such cases. Territorial sovereignty commands respect even if relations are soured. The state of origin may protest. But the state of origin has to respect the territorial integrity of the state of asylum. The state of origin may not react through sanctions. Only if a obligation to the contrary (like a duty of extradition) is not respected, does the practice of asylum violate international law and would rightfully justify sanctions. Asylum is a consequence of sovereignty. As long as asylum practice respects the boundaries of sovereignty, it has to be respected by other states like every other

456 457

458

459

plusieurs etats", 1 Annuaire (1943), p. 141. Perassi is equally emphatic: "Un Etat peut accorder asile sur son territoire a toute personne sous la seule reserve des limites decoulant des conventions auxquelles il est partie, Ibid. p. 142. A. Grahl-Madsen, Territorial Asylum (Almqvist & Wiksell International, Stockholm, 1980), p. 14. Atle Grahl-Madsen lists the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis of August 1945 [82 UNTS 279], the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 [78 UNTS 277], the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 [75 UNTS 287], the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 [75 UNTS 135] and others; see Atle Grahl-Madsen, The Status of Refugees in International Law, Vol.2, A.W.Sijthoff, Leiden 1972, p.31ff. F. Morgenstern, The Right of Asylum, 26 BYIL 327, 1949; L.B. Kozibrodski, Le Droit d'Asile, Sijthoff, Leyden, 1962 p.79-81; Sir J.H.Simpson, The Refugee Problem, Royal Institut of International Affairs, Oxford University Press.London, 1939, p.230. G. Goodwin-Gill, The Refugee in International Law (2nd ed., Oxford University Press, Oxford, 1996), p. 102.

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expression of rightful sovereignty. It follows that the granting of asylum is permitted as long as a rule of international law does not prohibit it. These considerations weaken Reichel's argument. Reichel claims that the practice of asylum might constitute an intervention into internal affairs. Asylum as an application of territorial sovereignty is clearly permitted by international law. Actually the protests and threats of the state of origin potentially constitute an intervention in internal affairs. Whereas the practice of asylum is specifically permitted by international law, such protests and threats are not. They may constitute interference into the internal affairs of the state of asylum, if a certain level of pressure is exercised. How a state executes its asylum practice is essentially its own business.

4.2 THE DUTY OF THE STATE TO GRANT ASYLUM Article 14 of the Universal Declaration of Human Rights reads as follows: "(l)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."

The drafting history of this provision clearly indicates that no duty of States to grant asylum was intended. The original text of the draft provision reads: "Everyone has the right to seek, and may be granted, in other countries asylum from persecution."460 But the Human Rights Commission decided to present the following text to the General Assembly: "Everyone has the right to seek and be granted, in other countries, asylum from persecution."461 Finally, the discussion in the General Assembly led to a dilution of the text. As already cited, the final provision speaks only of the "right to seek and to enjoy" asylum in other countries. A closer look reveals that the wording leaves the right to be granted asylum open.

461

Drafting Committee to the Commission on Human Rights, Second Session, UN Doc. E/CN 4/95; 21 May 1948. UN Doc. E/800,28 June 1948.

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It is commonplace to assert that universal international law does not provide for an individual right to obtain asylum. The story of the individual right to obtain asylum in international law is a story of failure.462

4.2.1 The Importance of the Right to Obtain Asylum Why should a human right to obtain asylum exist? According to universal international law, nationals have a right to reside in their country of nationality. "The duty to admit nationals is considered such an important consequence of nationality that it is almost equated with it."463 The Court of Justice of the European Communities stated that "it is a principle of international law...that a State is precluded from refusing its own nationals the right of entry or residence"464. Weis writes: "One of the functions inherent in the concept of nationality is the right to settle and to reside in the territory of the State of nationality or, conversely, the duty of the State to grant and permit such residence to its nationals."465 "The principle that every State must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute."466 These statements demonstrate how crucial a role the right of residence plays in the context of nationality. According to Weis, the right to reside in one's own country is based on territorial supremacy. "If States were to expel their nationals to the territory of other States without the consent of those States or were to refuse readmission, thus forcing States to retain on their soil aliens whom they have the right to expel under international law, such action would constitute a violation of the territorial supremacy of these States. It would cast a burden on them which, according to international law, they are not bound to undertake, and which, if persistently exercised, would necessarily lead to a disruption of orderly,

463 464

"Between 1964 and 1972, the International Law Association developed texts for draft conventions on diplomatic and territorial asylum. Another initiative was taken by the Carnegie Endowment for International Peace which in 1972 resulted in a draft convention which was transmitted by the United Nations High Commissioner for Refugees to the United Nations Economic and Social Council (ECOSOC) and the UN General Assembly, which decided to convene a diplomatic conference. The United Nations Conference on Territorial Asylum took place at Geneva from January 10 to February 4, 1977. Unfortunately, it did not achieve much. A few draft acticles were considered by the Committee of the Whole, but none were adopted by the Conference as such. Since then the matter has been allowed to rest." A. Grahl-Madsen, Territorial Asylum1, in: R. Bernhardt (ed.), Encyclopedia of Public International Law (volume I, North Holland, Amsterdam, 1992),p.286. P. Van Panhuys, The Role of Nationality in International Law (1959), p.56. Case41/74, VanDuyn v Home Office, [1974] ECR 1337at 1351. P. Weis, Nationality and Statelessness in International Law (Sijthoff, Alphen aan den Rijn, 1979), p.45. R. Plender, International Migration Law (2nd edition, Martinus Nijhoff Publishers, Dordrecht, 1988), p.133.

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peaceful relations between States within the community of nations."467 According to Weis states have the obligation to admit their own nationals only against other states. Plender contradicts this view and points to its foundation in international conventions as a human right468 and to a significant number of modern national constitutions which characterise the right to enter one's own country as a fundamental or human right469. According to Plender, this right is not just the corollary of a second State's right to expel aliens, but an individual's human right.470 This understanding is backed by international incidents.471 The right to reside in the country of nationality is a fundamental right of the individual. The necessity472 to migrate poses a special problem in regard to this fundamental right of residence. The point is that refugees cannot live in the only country where they have a right to stay according to international law. The problem refugees face is the lack of a right of residence. They do not belong to a territory and are in search of a country where they can stay in safety and confidence. The practice of asylum offers such a solution. Asylum is important for refugees precisely because it means, at least, the permission ideally the right - to stay in the territory of a host state. Non-refoulement is only a partial solution to the problem. The principle of nonrefoulement recognises that the refugee cannot return to the country of nationality without offering them any solution to the problem of potentially being left without any right of residence anywhere. Even if all states observe the principle of non-refoulement, the refugee risks being sent from one country to another. In other words, the refugee risks being a "refugee in orbit"473. The proper institutional means to solve this problem is asylum.

P. Weis, Nationality and Statelessness in International Law, n. 465 above, p.47.

469 470

472

Art. 13 Universal Declaration of Human Rights: "2.Everyone has the right to leave any country, including his own, and to return to his country". Art. 12, para 4 ICCPR: "No one shall be arbitrarily deprived of the right to enter his own country." further Art.5(d)(ii) of the International Convention on the Elimination of All Forms of Racial Discimination, Art.22(5) American Convention on Human Rights, Art. 12(2) African Charter on Human Rights and Art.3(2) of the Fourth Protocol to the European Convention on Human Rights. See R. Plender, International Migration Law (2nd edition, Martinus Nijhoff Publishers, Dordrecht, 1988),p.l34etseq. See ibid., p. 135. Ibid., p.133. "The practice of India and of the United Kingdom in making provision for the resettlement of Asians from East Africa yields support for the view that the duty of admission is a reflection of the individual's right to reside in his country of nationality." Ibid., p. 135. See section 1.7 above. The problem of "refugee in orbit" potentially raises an issue of "inhuman and degrading treatment" prohibited by the European Convention on Human Rights. In the Dolani case (Application 5399/72; Stocktaking 1984, at p.233), the European Human Rights Commission found that a person's continuous expulsions from one country to another might raise a question under article 3. See also admissibility decisions on Giama v. Belgium, Application No. 7612/76, and Bulus v. Sweden, Application No. 9330/81.

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Asylum for refugees means entry and stay. This purpose of asylum for refugees explains its controversial nature. In the eyes of the general public, asylum closely resembles legal immigration. A refugee who is granted asylum, e.g. who is granted the right to enter and stay, is seen as a legal immigrant. Currently, immigration is a highly controversial and hotly disputed issue in Western Europe; as a consequence asylum is not spared from this controversy either. A promising approach to the right to obtain asylum has to be compatible with the overriding political concern for immigration control. Otherwise any approach will be doomed. The necessity approach to the understanding of refugees explains asylum practice from this perspective. Conditions of necessity render immigration control unfair and inefficient; therefore, it is necessary to manage the flow. If one cannot reasonably expect to deter migration, then it should at least be managed effectively. The established institutional means available to do so is asylum. Therefore, refugees as victims of necessity, prima facie, should rightfully qualify for asylum in a safe country. This claim is compatible with a general policy of immigration control because such control is likely to fail in conditions of necessity anyway. The EU has partly affirmed this reasoning by Council Resolution of 20 June 1995 on minimum guarantees for asylum474 procedures. Paragraph 29 of the said Council Resolution reads: "A Member State which, notwithstanding national provisions on application of the host third-country concept, has examined an asylum application must grant refugee status to an asylum-seeker fulfilling the criteria of Article 1 of the Geneva Convention. Member States may provide, in accordance with their national law, that they will not make full use of the exclusion clauses in the Geneva Convention. The refugee should in principle be granted the right of residence in the Member State concerned."

The Resolution clearly acknowledges that a refugee should be granted the right of residence.

4.2.2 Asylum and Non-Refoulement Art.33 of the 1951 Refugee Convention reads: "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

474

Cf. T. Einarsen, The European Convention on Human Rights and the Notion of an Implied Right to de facto Asylum1 (1990) 2 International Journal of Refugee Law 3, p.374. Official Journal of the European Communities No C 274, 19.9.1996, p.13ff.

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account of his race, religion, nationality, membership of a particular social group or political opinion." The Contracting State is prohibited from expelling or returning a refugee in any manner whatsoever under certain conditions.475 However, non-refoulement is only a half-hearted solution. As argued above, nonrefoulement does not solve the ensuing problem of the individual being potentially left without any country of residence. In this sense, the legal recognition of non-refoulement without the recognition of the individual right to obtain asylum is incoherent in principle. It is like an unfulfilled promise. This is where the institution of asylum can offer a solution.

4.2.3 Asylum and Human Rights Obligations The split between non-refoulement and asylum practice is particularly clear with regard to the implied right of non-refoulement in international human rights law. As has been recently recognised, human rights law can be interpreted as containing an implied principle of non-extradition and non-refoulement. Do human rights touch extradition and expulsion? A first possible objection could be that human rights do not impose responsibility for acts which occur outside its jurisdiction. A similar argument was advanced by the United Kingdom in the 1989 Soering case476. The case concerned a request by the US to the UK, for the extradition477 of a German citizen charged with murder. It was accepted that, if convicted in the State of Virginia, that individual might be sentenced to death and face some six to eight years on "death-row". Article 3 of the European Convention on Human Rights declares that "no one shall be subjected to torture

476 477

Much controversy concerning the interpretation of the principle of non-refoulement relates to its territoriality (i.e. does the principle only prohibit return of a refugee already on the territory of the state of refuge or is it applicable outside the territory of the state of refuge); cf. G. Stenberg. Non-Expulsion and Non-Refoulement (lustus FOrlag, Uppsala, 1989). The principle of non-refoulement is often explained as follows: a state which returns a refugee causes persecution akin to an accomplice of the persecutor. Thus, most commentators focus on questions of foreseeability and causality. However, the principle of nonrefoulement can also be seen in a different light: return of a migrant is a sanction of the immigration regime (see for an analogous argument U. Davy, Asyl und Internationales Fluchtlingsrecht (Vol.1, Verlag Osterreich, Vienna 1996), p.l19). The reason for non-refoulement is arguably necessity: a refugee should be exempted from the threath of return because the threat is unfair. The real reason of non-refoulement are the distressing effects of a threat of return on the refugee. This rationale of non-refoulement serves to highlight the problematic charater of carrier sanctions and visa requirements. Soering case (1/1989/161/217), Judgement of the European Court of Human Rights, Vol.161, Ser.A. The case concerns extradition. However, the reasoning is equally applicable to expulsion cases.

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or to inhuman or degrading treatment or punishment". The UK contended, amongst other arguments, that article 3 of the ECHR should not be interpreted so as to impose responsibility on a Contracting State for any treatment which the applicant might suffer outside the State's jurisdiction. The plenary Court unanimously rejected this argument and stressed that the Convention needs to be "interpreted and applied so as to make its safeguards practical and effective."478 This reasoning leading to a duty of non-extradition is exactly parallel to what expulsion is concerned with. The European Court of Human Rights developed this thought in Cruz Varas. Referring to the Soering case, the court says: "Although the present case concerns expulsion as opposed to a decision to extradite, the Court considers that the above principle also applies to expulsion decisions and a fortiori to cases of actual expulsion."

Extradition and expulsion in themselves do not violate human rights obligations. Extradition might causally lead to human rights violations. It might be argued that only the final injurious action which occurs after extradition, violates human rights. The Court, however, does not follow this line of thought. In its conclusion, the Court held that this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a "real risk of exposure"480 to a human rights violation. The Court states that usually it does not "pronounce on the existence or otherwise of potential violations of the Convention"481; a "departure from this principle is necessary, in view of the serious and irreparable nature of the alleged suffering risked, in order to ensure the effectiveness"482 of protection. "Although the establishment of such responsibility involves an assessment of conditions in the requesting country against the standards of Article 3, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is

478

479

480

481

482

Soering case (1/1989/161/217), Judgement of the European Court of Human Rights, Vol.161, Ser.A, para. 87. European Court of Human Rights, Cruz Varas and others v. Sweden, no. 46/1990/237/307, Judgment of 20 March 1991, Vol.215, Series A=HRLJ Vol.12, No.4 (1991), p. 142-156, at para. 70. Soering case (1/1989/161/217), Judgement of the European Court of Human Rights, Vol.161, Ser.A, paragraph 88. It is not clear what constitutes a real risk. Terje Einarsen suggests that the concept is related to the forseeable consequences in each particular case. The more serious the suffering, the lower the required level of likelihood. Therefore, if the foreseeable consequences are very serious, even a small risk can be significant and thus "real", see T. Einarsen, 'The European Convention on Human Rights and the Notion of an Implied Right to de facto Asylum' (1990) 2 InternationalJournal of Refugee Law 3, pp..371-372. Soering case (1/1989/161/217), Judgement of the European Court of Human Rights, Vol.161, Ser.A, para. 90. Ibid.

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liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment."

Thus, extradition and expulsion are prohibited if a real risk of sufficiently severe illtreatment exists. The issue, if the State, to where the individual should be extradited or deported, is in breach of international law, is considered irrelevant. As the Court says in the recent case of H.L.R. v. France, "...the Court does not rule out the possibility that Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials."484 In the recent landmark case of D. v. The United Kingdom, the court has entered new territory. It spells out the guiding principle so far: "It is true that this principle has so far been applied by the Court in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanates from intentionally inflicted acts of the public authorities in the receiving country or from those of non-State bodies in that country when the authorities there are unable to afford him appropriate protection."

However, the court then expresses the thought that it "must reserve to itself sufficient flexibility to address the application of that Article in other contexts which might arise."486 Hence the court decided that the deportation of an alien drug courier, dying of AIDS, to the country of origin (St.Kitts) where he has no accommodation, family, moral or financial support and no access to adequate medical treatment would violate Art.3. The court emphasises that not every ill-treatment falls within the scope of Art.3. "It is recalled that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim."487

Parallel to the Soering case, the issue in expulsion cases "lies in the act of exposing an individual to the risk of ill-treatment, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of the expulsion."488 Thus, the central focus lies in the

483 484

485

486 487 488

European Court of Human Rights, Cruz Varas and others v. Sweden, n. 99 above, at para.69. European Court of Human Rights, H.L.R. v. France, Case no. 11/1996/630/813, Judgment of 29 April 1997, at para.40. European Court of Human Rights, D. v. The United Kingdom, Case no. 146/1996/767/964, Judgment of 2 May 1997, at para. 49. Ibid. Ibid. Ibid., at para. 76.

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foreseeable consequences of the expulsion.489 A mere possibility is not considered sufficient.490 It depends on special distinguishing features of the case if a consequence is considered to be foreseeable by the authorities of the State at the time of the expulsion.491 The court seems to approach the question of foresight by focusing on the source of the illtreatment. In the case of Chahal v. The United Kingdom492, the court is of the opinion that Mr. Chahal would be exposed to ill-treatment by members of the Indian security forces even though the Indian Government assured him an adequate guarantee of safety.493 Because of the notoriety of Mr. Chahal, the court decided, on the basis of a wealth of evidence of human rights violations in general human rights reports, that the ill-treatment in his case was foreseeable. If the exposure to ill-treatment emanates from non-state actors, the court apparently gives crucial importance to the issue of state incapacity. In Ahmed v. Austria, the court states that Somalia was in a state of civil war and fighting was going on between a number of clans vying with each other for control of the country. There was no indication that the public authority would be able to protect the claimant.494 Mr. Ahmed was suspected of belonging to the United Somali Congress. On this basis, the Austrian authorities granted refugee status to Mr. Ahmed (and later revoked the refugee status). Based on these facts, the court decided that an expulsion would violate Art.3. The facts of H.L.R v. France495 were that Mr. H.L.R., a Colombian national, was arrested while in possession of drugs. He then supplied information concerning the trafficking of drugs which led to the identification and arrest of another dealer. The claimant argued that his expulsion to Colombia would expose him to vengeance by the drug traffickers who had recruited him as a smuggler. He claimed that the Colombian

490 491 492

494 495

"The Court's examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of the democratic societies making up the Council of Europe (...). It follows from the above principles that the examination of this issue in the present case must focus on the foreseeable consequences of the removal of the applicants to Sri Lanka in the light of the general situation there in February 1988 as well as on their personal circumstances."[emphasis added] European Court of Human Rights, Vilvarajah and Others v. UK, no.45/1990/236/302-306, Vol.215, Series A=HRLJ Vol.12, No. 11-12 (1991), p.432-446, para. 108. Ibid., at para. 111. Ibid., at para. 112. European Court of Human Rights, Case of Chahal v. The United Kingdom, case no. 70/1995/576/662, Judgement of 15 November 1996. See dissenting opinion of judges Golcuklu, Matscher, Freeland, Baka, Gotchev, Bonnici and Levits, at para.8. European Court of Human Rights, Ahmed v. Austria, Case no.71/1995/577/663, para.44. European Court of Human Rights, H.L.R. v. France, Case no. 11/1996/630/813, Judgment of 29 April 1997.

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authorities were linked in various ways to the cartels and were unable to offer adequate protection. The Commission agreed in substance with that view. Nevertheless, the court contended that although drug traffickers sometimes take revenge on informers, there is no relevant evidence to show that the threat is real. The court notes that the applicant did not prove that the state authorities of Colombia are incapable of affording him appropriate protection. Hence the court decided that Art.3 would not be violated by a deportation of the applicant to Colombia. Judge Pekkanen observed in his dissenting opinion that evidence exists to the effect that the administration of justice in Colombia suffers from serious deficiencies. The public authorities are no match for the drug cartels who had converted their private armed groups into highly operational forces equipped with sophisticated weapons. "Taking into account the huge commercial interests of drug cartels and also the powerful position they occupy in Colombia, there is every reason to believe that they have a vested interest in ensuring that "informers" do not go unpunished. In the climate of lawlessness which prevails in Colombia it must be an easy task for a drug cartel to track down an "informer" and to take revenge on him. The ability of the State authorities to protect an informer's life or even to bring his murderers to justice can only be assessed, at the present time, as being very limited."

The dissenting opinion of Judge Pekkanen emphasises the parallel to the Chahal case. The level of risk in the two cases is comparable and a differentiation, according to the source of the risk, is not convincing (the risk originated from state organs in the Chahal case). As the European Court of Human Rights has elaborated, human rights obligations can imply a prohibition of refoulement. Non-refoulement to the country of origin entails the problem we have described above. As previously stated, a person has a right of residence only in his country of nationality. It follows that the application of the non-refoulement principle entails that the individual is potentially left without a right of residence anywhere. In international law, asylum is the appropriate legal institution to deal with this problem. It follows that this group of persons which benefits from non-refoulement due to human rights obligations has an equally valid claim to asylum as refugees. They are in dire need of permission to stay. The clearest example of the similar treatment of refugees under the 1951 Refugee Convention and the group of persons which benefits from non-refoulement due to human rights obligations is advocated by the European Commission. In the proposal for council directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection497, the European Commission has proposed that the rights and benefits of

496 497

Ibid., dissenting opinion of judge Pekkanen, joined by judges Vilhjalmsson, Rocha and Lohmus, at para. 3. COM (2001) 510 final dated 12.9.2001.

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refugees under the 1951 Refugee Convention and others in need of protection be the same to reflect the fact that the needs of all persons requiring international protection are broadly similar. The only differentiation made is that persons who are not refugees under the 1951 Refugee Convention, but are in need of international protection, may have to meet the requirement of a brief qualification period (Art. 24 of the proposal stipulates 6 months for employment) in order to be entitled to some important rights and benefits.498

4.3 ASYLUM: TEMPORARY OR PERMANENT?

International law does not contain any rule to the effect that asylum needs to be permanent. The following durable solutions exist for the refugee: repatriation, local settlement, resettlement in a third State.499 The UNHCR Executive Committee has adopted various conclusions in which it urges granting at least temporary asylum, even in cases of mass-influx. 500 In 1981, the UNHCR Executive Committee adopted its Conclusion on the Protection of Asylum Seekers in Situations of Large-scale Influx.501 It expressly acknowledges that large-scale influxes include persons who are, strictly speaking, not refugees within the 1951 Refugee Convention and the 1967 Protocol.502 They should, however, be admitted

498 499

501 502

Ibid., at p. 4. See G. S. Goodwin-Gill, The Refugee in International Law (2nd ed., Clarendon Press, Oxford, 1966), p.270. "Concerned, however, that according to the report of the High Commissioner cases continue to occur in which asylum seekers have encountered serious difficulties in finding a country willing to grant them even temporary refuge and that refusal of permanent or temporary asylum has led in a number of cases to serious consequences for the persons concerned" UNHCR Executive Committee Conclusion No.5 (XXVIII) - 1977 Asylum, Report of the 28th Session: UN doc. A/AC.96/549, para.53.3. "In cases of large-scale influx, persons seeking asylum should always receive at least temporary refuge. States which because of their geographical situation, or otherwise, are faced with a large-scale influx should as necessary and at the request of the State concerned receive immediate assistance from other States in accordance with the principle of equitable burden-sharing. Such States should consult with the Office of the United Nations High Commissioner for Refugees as soon as possible to ensure that the persons involved are fully protected, are given emergency assistance, and that durable solutions are sought" UNHCR Executive Committee Conclusion No. 15 (XXX)-1979 Refugees without an Asylum Country, Report of the 30th Session: UN doc. A/AC.96/572, para.72(2); see also UNHCR Executive Committee Conclusion No.19 (XXXI) - 1980 Temporary Refuge, Report of the 31th Session: UN doc. A/AC.96/588, para.48(5). Conclusion No.22 (XXXII), Report of the 32nd Session: UN doc. A/AC.96/601, para. 57(2). "The refugee problem has become particularly acute due to the increasing number of large-scale influx situations in different areas of the world and especially in developing countries. The asylum seekers forming part of these large-scale influxes include persons who are refugees within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees or who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part

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at least on a temporary basis.503 The principle of non-refoulement needs to be observed.504 Persons benefiting from temporary asylum should be treated in accordance with basic human standards: no penalties for unlawful presence, fundamental civil rights, basic necessities of life, no discrimination, family unity, etc.505 As discussed, asylum can be seen as a suitable institutional means of managing the problem of necessity in international migration by permitting stay in such cases. It follows from this idea that asylum is conceptually neither temporary nor permanent. The duration of asylum arguably depends on the duration of the state of necessity506, i.e. on the fear of harm. If that fear ceases, there is no need to prolong asylum.507 Actually, this thought is partly verified by state practice.508 In fact, there is no guarantee that the state of necessity will ever cease or cease quickly. Seen from this perspective, asylum is conceptually always temporary. No permanence can be guaranteed. Asylum may lead to naturalisation. Art.34 (Naturalisation) of the 1951 Refugee Convention reads: "The Contracting States shall, as far as possible, facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings." In that case, the condition of living outside the country of origin due to necessity ceases because the State of asylum becomes the new State of origin. Naturalisation and asylum are conceptually mutually exclusive. It is conceptually

of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country." Ibid. "In situations of large-scale influx, asylum seekers should be admitted to the State in which they first seek refuge and if that State is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. They should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity." Ibid. "In all cases the fundamental principle of non-refoulement - including non-rejection at the frontier - must be scrupulously observed." Ibid. These standards are spelled out in detail: Ibid, at II.A. 2 (a)-(p). 506 See section 1.7. 507""The meaning of temporary protection as an intermediate step on the way to a durable solution derives from the fact that refugee status by nature is temporary. Protection is linked with the persistence of the causes of persecution. It is provided for a limited period of time, as required in the light of the circumstances in the country of origin. The 1951 Geneva Convention reflects the temporary nature of refugee status in the cessation clauses of article 1 C, especially paragraph 5. In this regard there is no apparent difference between various categories of refugees: refugees fleeing human rights violations, war-refugees or refugees under the "good offices" of UNHCR. In principle repatriation can take place when the causes for the flight have ceased to exist." M. Kjaerum, Temporary Protection in Europe in the 1990s' (1994) 6 URL, p.445. 508 In Germany, § 72 of the Asylum Procedure Act ("Asylverfahrensgesetz") obliges the asylum authority ("Bundesamt fur die Anerkennung auslandischer Fliichtlinge") to revoke asylum if the conditions for the grant of asylum cease to exist. As a consequence, §43 of the Aliens Act ("Aula'ndergesetz") declares that the residence permit may be revoked in the case that asylum was revoked. The alien then may be deported according to §49 of the Aliens Act.

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impossible to grant asylum to one's own nationals. Hence naturalisation may be considered a durable solution. The crisis in former Yugoslavia led to the emergence of the practice of temporary protection in Europe.509 The purpose of temporary protection is to grant some minimal protection and to await repatriation. Temporary protection thus serves three purposes: (1) Administrative and economic resources are saved through the absence of a full asylum procedure assessing individual claims by instead applying a prima facie group determination. (2) Politically it becomes easier to return the refugee if the situation in the country of origin changes, for it is then not a question of withdrawing a residence permit but rather of not renewing it. In this way, a signal is sent to the refugee that his or her stay in the specific country is only temporary. (3) Finally, but not least importantly, a signal is sent to the public at large that this refugee situation is purely a matter of protection without any element of voluntary migration.510 Thus, temporary protection is another form of asylum. However, it differs from the standard model of asylum in the national practice of countries, such as Germany, Austria, Denmark and other countries.511 First, it is a discretionary form of asylum distinguished from the legal right to obtain asylum granted in these countries. Yet it is a weaker form of asylum.512 These distinctions are thought to be justified with reference to its temporary character. This state of affairs leads to following question: Is it fair to withhold crucial rights from an individual with the justification that his stay is only temporary? Art. 17 of the 1951 Refugee Convention expresses an important principle: "2. In any case, restrictive measures imposed on aliens or the employment of aliens for the protection of the national labour market shall not be applied to a refugee...who fulfils one of the following conditions. (a) He has completed three years' residence in the country"

This provision contains the important principle that three years are the maximum duration for excluding a refugee from the labour market. The right to work is the most important step towards integration into the host society. The 1951 Refugee Convention recognises that it is unfair to prohibit such integration for longer than three years. The

509

510 511

See D. Luca, 'Questioning Temporary Protection' (1994) 6 URL, p. 535; M. Kjaerum, Temporary Protection in Europe in the 1990s', n. 127 above. M. Kjaerum, Temporary Protection in Europe in the 1990s', n. 127 above, p.449 et seq. Ibid.,p.450. Ibid., p.450 et seq., especially concerning the right to work.

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allusion to the temporary character of protection should not be taken too far. After all, the protection might turn out to be permanent. After three years, it is, however, unfair to obstruct integration. It is worth noting that the European Commission, in its proposal for a council directive on minimum standards for the qualification and status of third-country nationals and stateless persons as refugees or as persons who otherwise need international protection, proposes a qualifying period of just six months for persons enjoying subsidiary protection513.

4.4 ASYLUM ELSEWHERE Paragraph 1 (b) of the Resolution on manifestly unfounded applications for asylum514 reads: "Furthermore, without prejudice to the Dublin Convention, an application for asylum may not be subject to determination by a Member State of refugee status under the terms of the Geneva Convention on the Status of Refugees when it falls within the provisions of the Resolution on host third countries adopted by Immigration Ministers meeting in London on 30 November and 1 December 1992". The Resolution on a harmonised approach to questions concerning host third countries515 deals with the purpose and the content of the concept of host third country. Paragraph 2 (Substantive application: requirements and criteria for establishing whether a country is a host third country) reads: "Fulfilment of all the following fundamental requirements determines a host third country and should be assessed by the Member State in each individual case: (a) In those third countries, the life or freedom of the asylum applicant must not be threatened, within the meaning of Article 33 of the Geneva Convention; (b) The asylum applicant must not be exposed to torture or inhuman or degrading treatment in the third country;

513 514

COM (2001) 510 final dated 12.9.2001, at Art. 24. Doc No. SN 4822/92 WGI 1282 As 146, reprinted in: H. Meyers [et al.], A new Immigration Law for Europe - The 1992 London, and 1993 Copenhagen Rules on Immigration (Dutch Centre for Immigrants, Utrecht, 1993), Appendix 2, p.73 et seq.. The immigration ministers of the Member States of the European Communities decided the Resolution in their meeting in London on 30 November to 1 December 1992. This Resolution was also adopted by the immigration ministers of the Member States of the European Communities in London on 30 November to 1 December 1992.

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(c) It must either be the case that the asylum applicant has already been granted protection in the third country or has had an opportunity, at the border or within the territory of the third country, to make contact with that country's authorities in order to seek their protection, before approaching the Member State in which he is applying for asylum, or that there is clear evidence of his admissibility to a third country; (d) The asylum applicant must be afforded effective protection in the host third country against refoulement, within the meaning of the Geneva Convention. If two or more countries fulfil the above conditions, the Member States may expel the asylum applicant to one of those third countries. Member States will take into account, on the basis in particular of the information available from the UNHCR, known practice in the third countries, especially with regard to the principle of non-refoulement before considering sending asylum applicants to them."

The host third-country concept is intended to enable quick rejections of asylum applications. Where a host third country can be said to exist, it is not necessary to examine the asylum application carefully to establish the facts. An accelerated procedure516 is applied to reject applications. International law gives the individual the right to seek asylum according to choice. Art. 14/1 of the UDHR says that "everyone has the right to seek and to enjoy in other countries asylum from persecution." This principle was confirmed by Conclusion 15 of the Executive Committee of the UNHCR: "(iii)The intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account. (iv)Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another state. Where, however, it appears that a person, before requesting asylum, already has a connexion or close links with another State, he may if it appears fair and reasonable be called upon first to request asylum from that State."

International law seems to permit an exception from the free choice of country of asylum only in certain limited cases, namely that a connection or close links exist with another State and it appears fair and reasonable to limit the choice of country of asylum. Nevertheless, it could be argued that asylum seekers should apply in the first country in which it is safe to do so, even if international law does not contain such a rule.518 If an

516

517 518

The accelerated procedure is characterised by the following features: exclusion of the possibility of appeal, no temporary permission to stay until decision on application for leave to remain is taken, oral communication of decision unless otherwise requested. See Resolution on minimum guarantees for asylum procedures, Official Journal of the European Communities, No C 274, 19.9.1996, p.15, para. 18-22. Report of the 30th Session: UN doc. A/AC.96/572, para.72(2), at h (Hi) - (iv). Cf. J. C. Hathaway, The Law of Refugee Status (Butterworths, Toronto, 1991), pp.46-50.

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asylum seeker continues travelling, wealthy States might find this suspicious; the main motive of migration in this case can be construed as not being a necessity, but rather a search for welfare and prosperity. However, this line of thought is valid only if certain requirements are met: first, the third country should not give rise to fear of persecution. Secondly, the third country should not give rise to the fear of being sent back to a country where the individual fears persecution. Thirdly, the third country should be accessible in the sense that it can be relied on to grant at least a minimally acceptable form of temporary asylum. Otherwise, the option of staying in the third country is not realistic. The refugee would otherwise risk becoming a refugee in orbit. A refugee-in-orbit situation is degrading in itself and may constitute a violation of Article 3 of the ECHR, according to a statement of the European Commission of Human Rights.519 Necessity520 explains why a safe third country needs to be accessible. The same reasoning applies as discussed in the context of regional persecution.521 Like a safe internal flight alternative, a safe third country needs to be a realistic, viable, safe and accessible alternative. The logic underlying the safe third-country concept and the safe internal-flight concept is exactly parallel. No distinction can be justified. From what has been said, it appears that only two of the three cases of Paragraph.2 (c) of the Resolution are acceptable. A host safe third country is a country, which has either granted some sort of protection (i.e. at least temporary protection) or is clearly accessible (i.e. will clearly grant at least temporary protection). The third scenario is not satisfactory. A simple opportunity to make contact does not imply any expectation that at least temporary asylum will be forthcoming. This formulation does not convincingly satisfy the principle that an alternative must be realistic, viable, safe and accessible to offer relief from necessity. Unfortunately, the European Commission, in its proposal for a Council Directive on Minimum Standards on Procedures in Member States for Granting and Withdrawing Refugee Status522 in its Art. 22, continues this approach and declares it sufficient that the

519 520

522

See n. 473 above. See section 1.7. See section 3.1.5. COM (2000) 578 final dated 20.9.2000.

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applicant had the opportunity to avail himself of the protection of the authorities of a third safe country to declare his application as inadmissible. If States can be made to understand that it is moral as well as practical to accept refugees, the arguments presented here might be considered. The point is that the claim to deter refugees is only illusory if the refugee cannot realistically be expected to stay elsewhere. The more likely outcome is clandestine immigration, and under these circumstances such clandestine immigration is perfectly understandable and morally impeccable.523

See G. Jaeger, 'Irregular Movements: The Concept and Possible Solutions' in D. A. Martin(ed.), The New Asylum Seekers: Refugee Law in the 1980s (Martinus Nijhoff, Dordrecht, 1988), p.23 et seq.

CHAPTER 5

CONCLUSIONS

A convincing interpretation of refugee law needs ideally to avoid the pitfalls of both Utopia and apology.524 The task at hand was to find a rationale for refugee law and to present an interpretation of its key concepts that are morally acceptable and, at the same time take, account of the interests of Western States of asylum. The need for such an approach is particularly strong given that there is no mechanism sufficiently independent of States or sufficiently powerful to sustain an approach which ignores the political priorities of the more wealthy and powerful Western States. A satisfactory solution to our quest was indeed found. Necessity explains why refugee law is a moral requirement. At the same time, necessity explains how States would serve their own interests by adhering to refugee law without compromising their goal of a restrictive immigration policy. It follows that refugee law should be interpreted by taking into account the concept of necessity. Thus, refugee law could free itself from its present troubled and senseless image. Seen in a new light, refugee law could regain importance and value in a coherent and meaningful manner. The theory of refugee law cannot be separated from the practical conclusions which a certain interpretation of the refugee concept calls for. As already evidenced certain restrictive interpretative strategies draw their strength from certain theoretical positions on the purpose of refugee law. The theory of diplomatic protection, by Paul Weis, and the theory of de facto statelessness, by Atle Grahl-Madsen, are designed to explain the difference of treatment between a refugee and a normal alien abroad; these theories, therefore, presuppose the fact of immigration, and cannot explain why unwanted immigration should be permitted exceptionally. The human rights theory of refugee law is capable of explaining refugee law against the background of a restrictive immigration regime, but relies exclusively on altruism. Also, the proliferation of human rights results in the plea for refugee protection for all human rights victims fleeing their homes despite its conflict with a restrictive immigration policy. If the human rights theory were taken seriously to its logical limits, States would find it difficult to realise the policy goal of restricting immigration. The

524

See Martti Koskenniemi, From Apology to Utopia - The Structure of International Legal Argument, Finish Lawyers' Publishing Company, Helsinki 1989. 147

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human rights theory, therefore, could be said to cope poorly with two major challenges to refugee law in Europe: the lack of motivation of the rich States of the EU to maintain and expand a generous refugee tradition, and the need to rank human rights violations for the purposes of refugee practice. These theoretical doctrines can also be used to argue in favour of giving the international law doctrine of state responsibility, as especially developed by the International Law Commission, a central role in the interpretation of the concept of persecution. This implies that refugees coming from areas affected by a civil war or rebellion will find it very difficult to obtain refugee status, even though they fear persecution. This effect can be maximised by insisting that only a violation of customary human rights can lead to refugee status. Another strategy to restrict access to refugee status based on theoretical reflections is to insist that well-founded fear is an objective standard and does not contain any subjective elements. Also this view is based on theoretical assumptions on the purpose of refugee law: what matters are the consequences upon return to the country of origin and not the frame of mind when harm is feared. This view implies that a prognosis of risk is at the heart of every refugee status decision. This view, coupled with the fact that reliable evidence is typically lacking in asylum procedures, entails that the outcome of asylum procedures is heavily dependent on the frame of mind of decision makers. This effect is counter-productive in a climate, which is opposed to immigration. A very effective strategy to restrict access to refugee status is to argue that only customary human rights violations can give rise to refugee status. Even though the view that States would find it difficult to limit immigration at all if all human rights give rise to refugee status is widely held, it is doubtful' if the legal status of human rights violations as violations of customary law can or should play any decisive role in the formulation of priorities. It is a common strategy to restrict access to refugee status by placing emphasis on the reasons of the fear of persecution and explaining the central role of these reasons of persecution for the refugee concept. This is commonly achieved by understanding the reasons of persecution as despicable motivation of the persecutor which alone justifies refugee status. The assumption is that persecution without this special motivation is tolerable and should not give rise to refugee status. Another variant of this theory is the explanation that only refugees who are marginalised should enjoy refugee status whereas all other human rights victims should remain in their countries of origin and fight for a better future. These interpretations do not take into account the drafting history, which suggests that the reasons of persecution were included to limit the obligations of States and do not express any legal principle. Some misunderstanding arises because nondiscrimination clauses of international human rights law and the reasons of persecution appear similar and the differences in function and purpose are not taken into account.

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The necessity approach to interpreting the refugee concept explains that all forms of harm, that are accepted in legal theory to excuse a criminal offence, should also be sufficient to constitute refugee status. In addition, all forms of harm which make life intolerable should be accepted as giving rise to refugee status. The necessity theory of refugee law explains why only directly intentional harmful action can give rise to refugee status because negligent, reckless or indirectly intentional harm action is easier to circumvent and, therefore, cannot give rise to the lack of meaningful alternatives which lies at the heart of the concept of necessity. The necessity theory urges decision makers to carefully analyse any meaningful options which the refugee had at the moment of sensing fear of harm. Refuge should be the last resort and the availability of legal protection or regional safe havens in the country of origin needs to be checked. The necessity theory also explains that a meaningful option to flight has to be realistic, viable, safe and accessible. It requests decision makers to consider the reality experienced by the refugee and not to accept the existence of merely formal or theoretical alternatives for the individual refugee. The necessity approach explains why fugitives from justice are outside the scope of refugee law. Fugitives from justice cannot claim necessity as the harm they fear is justified and deserved. However, the means of the criminal law at the disposal of states may be abused for purposes of persecution. A useful method to distinguish rightful punishment from hidden persecution is to be found in the standards of international human rights law and international anti-discrimination provisions. The necessity theory explains why the frame of mind of the refugee is crucial in refugee recognition procedures and cannot be ignored, especially if the risk of persecution cannot be objectively and totally excluded upon return to the country of origin. If the extent of fear is reasonable and a person of average firmness in the situation of the claimant would have reacted similarly, this fear should be sufficient to grant refugee status. Finally, the necessity approach emphasises that the reasons of persecution, contained in the 1951 Refugee Convention, are not the expression of a legal principle and cannot be justified. They were introduced by the drafters as a limitation of their obligations. Any development to expand refugee law should first concentrate on a gradual widening or a total cancellation of reasons of persecution as a requirement of refugee status. The institution of asylum is the institutional mechanism to tackle the issue of migration due to necessity. This understanding highlights that the institution of asylum operates mainly by offering a path of legal immigration into the country of asylum. This understanding gives content to the concept of asylum as legal entry and legal residence in

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the country of asylum. Thus, the concept of asylum, in the context of refugee law, is fundamentally different from the concept of asylum, as developed in the 19th century in the context of extradition law. It is necessary to distinguish these two models of asylum (refugee asylum and extradition asylum) to avoid confusion. The theory of necessity also offers a guideline and justification for the doctrine of a third safe country and emphasises that the third safe country needs to be realistic, safe, viable and accessible in order to qualify. Again, as in the case of the internal flight alternative, the emphasis is not on legal formalism but on reality. An interpretation of the Convention, based on necessity, expressly takes into account the concern of States that wish to regulate and restrict immigration. It is based on the consideration that a restrictive immigration policy faces limits in its practical and moral enforceability and that refugee law is the institutional framework to manage a limited exception to the restrictive immigration regime. In short: the necessity theory is particularly useful to serve as a background theory to guide the interpretation of current and the development of future refugee law. Examples of actual immigration policy, analysed in this study, were mostly of European origin. However, the theory offers practical solutions for global refugee law as well: the theory of necessity offers a reasonable conceptual model to manage a fair exception to an otherwise restrictive immigration policy to all countries wishing to restrict and regulate immigration, but facing a wave of clandestine immigration motivated by necessity.

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INDEX

asylum, 1, 7,15, 17, 19, 22, 23, 24, 31, 32, 41,44,45, 48, 73, 98, 105, 108, 112, 113,115,116,117,118,119,120,121, 122, 123, 124,125, 126, 127,128, 129, 130, 131, 132,133, 134,135,139, 140, 141, 142, 143, 144, 145, 147, 148, 149 asile de droit, 116, 117, 118, 123 asile de fait, 116, 117, 123 extradition, 118, 121, 123, 128,150 limits, 117, 120,127, 128, 129, 130 refugees, 121, 123, 128, 150 safe third country, 1, 145 temporary protection, 45,141, 142, 145 diplomatic protection, 7, 8, 9, 10, 11, 12, 50, 99, 147 EU law concerning refugees, 46, 88, 113, 139, 143 general principle of law, 34, 35 human rights, 3,10, 17,18, 19,20,21, 22, 23, 24,25, 29,41,46,47, 50, 53, 54, 55, 56, 57, 58, 59, 60,61, 62, 70, 72, 73, 74, 76, 77, 88, 89, 94,95, 99,100,103, 104, 105, 118,124,125, 135, 136,138, 139, 141, 147,148, 149 customary human rights, 22, 58 peremptory human rights, 22, 58 immigration, 1, 2, 3, 4, 5, 6, 7, 11, 16, 22, 23, 24, 26, 28, 29, 31, 32, 33, 37, 38,40,

41, 42, 43, 44, 45,48, 73, 82, 87, 100, 107, 108, 109, 111, 118, 122,126, 128, 134, 135, 143, 146,147, 148, 149, 150 immigration control, 2, 3, 5,6, 7, 11, 26, 27, 28, 29, 32, 33, 37,38,40,41,42, 43,44,48,87,92,107,111,134 illegal immigration, 5, 6, 7,26, 33, 37, 38,41,43,44,82,146, 150 immigration policy, 2, 3,4, 6, 7, 22, 26, 48,73,109,118,147,150 mutual aid, 26 necessity, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40,45,46,47, 48,49, 64, 67, 82, 83, 85, 86, 90, 93, 95, 100, 101, 103, 107, 111, 112,115, 128,133, 134, 135, 141, 145, 147,149, 150 drafting history of 1951 Refugee Convention, 30 ecological disaster, 46 famine, 45,46 harm, 10, 18, 21, 33,38,40,41,45,46, 54, 60, 63, 67, 68, 69, 70, 78, 86, 87, 90, 91, 92, 93, 97, 98, 100, 101,102, 104,108,111,114,120,141,148, 149 origin in roman law, 36 non-refoulement, 13, 15, 23, 24, 120, 123, 133, 135, 139, 141, 144 167

168

Index

refugee in orbit situation, fn 473 persecution, 2, 7, 8, 9,15,16, 18, 21,28, 30, 31, 32, 37, 38,40,41,44,45,49, 50, 52, 59, 60, 61, 62, 63, 64, 65,66,67, 68, 69, 70, 71, 72, 73, 74, 76, 78, 79, 80, 81, 82, 83, 86, 88, 89, 90,91, 92, 93, 94,95, 96, 97, 98,99, 100,101, 102, 104,105,106, 107, 108, 110, 111, 112, 113, 114, 122, 123, 124, 125, 126,127, 131,135, 141, 144, 145, 148, 149 civil war, 52,61, 62,64, 65, 66, 67, 77, 98, 122,138, 148 discrimination, 18, 69, 74, 75, 76, 77, 78, 79, 80, 81, 104, 141, 148,149 distinction to punishment, 5, 6, 15, 26, 30, 37, 39,41, 46,48, 53, 67, 68, 74, 101, 102, 103,104, 105, 106, 109, 118,122,123,136,149 intention, 17,18,63, 82, 83, 90,91, 92, 93,114 regional, 98,99, 100, 101

persecution by omission, 93, 94 reasons of persecution, 77-83,113, 114, 148, 149 right of residence, 17,123, 132, 133, 134, 139 Russian refugees, 42, 43 state responsibility, 49, 50, 54, 57, 58, 59, 60,61,62,64,65,67,100,148 for action of private individuals, 52, 53, 55, 60, 64, 97 human rights law, 53, 54, 55, 56 customary human rights law, 57, 58 statelessness, 7, 8, 9, 12, 13, 14,15,16,46, 50, 67,123, 139, 143,147 temporary protection, 45,46, 99, 141, 142, 143, 145 well founded fear, 45, 63, 69, 70, 71, 72, 73, 148 benefit of doubt, 112