Refugee Protection Between State Interests and Human Rights: Where is Europe Heading?

I. Introduction

The different perspectives to be addressed in this article are well illustrated in two quotations from the High Commissioner for Refugees, Ms. Ogata, and the recent Presidency Conclusions from the Santa Maria da Feira European Council, respectively. Ms. Ogata has stated that "human rights concerns go to the essence of the cause of refugee movements, as well as to the precepts of refugee protection and the solution of refugee problems." ¹ In the Da Feira conclusions the European Union expressed

[I]ts shock at the tragic death of 58 foreign nationals arriving in the United Kingdom. It condemned the criminal acts of those who profit from such traffic in human beings and committed the European Union to intensified cooperation to defeat such cross-border crime which has caused so many other deaths across Europe. ²

The two quotations illustrate well the dichotomy between a human rights and a state interest perspective on refugee protection. In the last two decades European refugee policies have changed from being primarily rooted in humanitarian considerations to becoming more focused on state interests. One of the consequences of this change is that the human rights machinery today plays a stronger role than hitherto as an instrument to counterbalance state powers. Consequently, we are now witnessing a conflict between new refugee policies and human rights law. The purpose of this article is to examine the impact of this conflict on refugee policies as well as on human rights law in general.

The two key human rights standards linked to refugee protection are the right to seek and enjoy asylum as guaranteed in the Universal Declaration on Human Rights and the non-discrimination principle as embodied in Article 26 of the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the 1951 Refugee Convention. Whereas the right to seek asylum grants the possibility to access another territory and thereby, in principle, offers a safe haven from persecutors, the prohibition against discrimination constitutes an important precondition of real protection in the country of refuge. In any protection regime, these two elements will be the core of the analysis.

II. The Right to Seek and Enjoy Asylum

A. Universal Declaration of Human Rights

In 1948, profoundly influenced by the atrocities of World War II, the right to seek and enjoy asylum from persecution became human right number 14 of the Universal Declaration of Human Rights (UDHR). ³ In particular, the non-admission policy, which had been adopted by many states in relation to German Jews, Roma and others in the 1930s, had catastrophic consequences because Jews and others found nowhere to seek asylum. ⁴ Any individual should be granted the right to enter the territory of another state to apply for protection. Moreover, it followed logically from several of the other principles embodied in the UDHR that the international community should request countries to afford the right to seek asylum to individuals who were subject to violations of the human rights listed in the UDHR. Otherwise people would, in some cases, be less inclined to stand up for their rights and to further develop the international respect for human rights norms. ⁵ The right to seek asylum was reaffirmed at the 1993 UN World Conference on Human Rights in Vienna, ⁶ and it is part of the draft EU Charter on Fundamental Rights. ⁷

B. Non-Arrival and Non-Admission Policies ⁸

1. Non-Arrival

New trends developed in the international refugee regime as a result of the increase in the number of asylum seekers in the late 1980s and early 1990s. In particular, the United States and countries in Western Europe introduced a non-arrival or non-entry ⁹ policy in order to create barriers for the new influx of asylum seekers. In the first period starting in the late 1980s, these policies developed...