Kjaerum, Morten_Refugee Protection Between State Interests and Human Rights_Where is Europe Heading

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Refugee Protection Between State Interests and Human Rights:

Where is Europe Heading?

Kjaerum, Morten.

Human Rights Quarterly, Volume 24, Number 2, May 2002, pp. 513-536

(Article)

Published by The Johns Hopkins University Press

DOI: 10.1353/hrq.2002.0024

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HUMAN RIGHTS QUARTERLY

Human Rights Quarterly24 (2002) 513536 2002 by The Johns Hopkins University Press

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

Morten Kjrum*

I. INTRODUCTION

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

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

The two quotations illustrate well the dichotomy between a humanrights and a state interest perspective on refugee protection. In the last twodecades European refugee policies have changed from being primarily

* Morten Kjrum is the Director of the Danish Center for Human Rights in Copenhagen,Denmark. He graduated from the University of Aarhus in 1984 with an LLM. From 1984 until1991, he was head of the asylum department in the Danish Refugee Council. He is an expertwithin the field of international human rights law and refugee law and has publishedextensively on these issues in Danish, Nordic and international journals. In 2002, Mr.

Kjrum became a member of the UN Committee on the Elimination of all Forms of RacialDiscrimination.1. Ms. Sadako Ogata, 7 Feb. 1995 (speech at Oxford University).2. Presidency Conclusions, Santa Maria Da Feira European Council, 1920 June 2000,

available at (visited 28 Feb. 2002).


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Vol. 24514 HUMAN RIGHTS QUARTERLY

rooted in humanitarian considerations to becoming more focused on stateinterests. One of the consequences of this change is that the human rightsmachinery today plays a stronger role than hitherto as an instrument to

counterbalance state powers. Consequently, we are now witnessing aconflict between new refugee policies and human rights law. The purposeof this article is to examine the impact of this conflict on refugee policies aswell as on human rights law in general.

The two key human rights standards linked to refugee protection are theright to seek and enjoy asylum as guaranteed in the Universal Declarationon Human Rights and the non-discrimination principle as embodied inArticle 26 of the International Covenant on Civil and Political Rights, theConvention on the Elimination of All Forms of Racial Discrimination and

the 1951 Refugee Convention. Whereas the right to seek asylum grants thepossibility to access another territory and thereby, in principle, offers a safehaven from persecutors, the prohibition against discrimination constitutesan important precondition of real protection in the country of refuge. In anyprotection 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 toseek and enjoy asylum from persecution became human right number 14 ofthe Universal Declaration of Human Rights (UDHR).3 In particular, the non-admission policy, which had been adopted by many states in relation toGerman Jews, Roma and others in the 1930s, had catastrophic conse-quences because Jews and others found nowhere to seek asylum.4 Anyindividual should be granted the right to enter the territory of another state

to apply for protection. Moreover, it followed logically from several of theother principles embodied in the UDHR that the international communityshould request countries to afford the right to seek asylum to individualswho 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

3. SeeMorten Kjrum, Article 14, in THE UNIVERSAL DECLARATIONOF HUMAN RIGHTS: A COMMONSTANDARDOF ACHIEVEMENT 217, 218 (Gudmundur Alfredsson & Asbjrn Eide eds., 1992).

4. At the fifth meeting in the working group on the Declaration of Human Rights, Mr.Easterman, World Jewish Congress, stated that [m]any refugees from Germany had beendenied this right which had resulted in the death of thousands. U.N. Doc. E/CN.4/AC.2/SR/5, 8 Dec. 1947, at 4. This assessment was later supported by Ms. Eleanor Roosevelt,Chair of the Human Rights Commission, U.N. Doc. E/CN.4/SR.56, 4 June 1948, at 9.


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2002 Refugee Protection 515

their rights and to further develop the international respect for human rightsnorms.5 The right to seek asylum was reaffirmed at the 1993 UN WorldConference 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 Policies8

1. Non-Arrival

New trends developed in the international refugee regime as a result of theincrease in the number of asylum seekers in the late 1980s and early 1990s.

In particular, the United States and countries in Western Europe introduceda non-arrival or non-entry9 policy in order to create barriers for the newinflux of asylum seekers. In the first period starting in the late 1980s, thesepolicies developed with a multi-faceted approach: visa requirements com-bined with carrier sanctions (today used by most OECD countries); thecreation of international zones in airports (France); isolation of applicantsand processing of applications for asylum at military bases abroad (theUnited States in the case of the Haitians at the Guantanamo base in Cuba);and safety zones within the home country where individuals received

international assistance and protection (Kurdish refugees in Iraq andBosnian refugees in Bosnia-Herzegovina).10 Often, these policies werecombined in various ways to suit the specific situation. In Western Europe,the implementation of non-arrival policies led to a dramatic decrease in theaggregate number of asylum seekers: from 692,685 in 1992 to 350,000 in1998.11

5. Official Records of the Third Session of the General Assembly, Part I, Social, Humanitar-ian and Cultural Questions, Third Committee, Summary Records of Meetings, 21 Sept.8 Dec. 1948, at 337.

6. Vienna Declaration and Programme of Action, U.N. GAOR, World Conf. on Hum. Rts.,48th Sess., 22d plen. mtg., part I, 23, U.N. Doc. A/CONF.157/24(1993), reprinted in32 I.L.M. 1661 (1993) [hereinafterVienna Declaration].

7. Draft Charter of Fundamental Rights of the European Union, art. 18, 2000 O.J. (C 364) 1.8. Gregor Noll & Jens Vedsted-Hansen, Non-Communitarians: Refugee and Asylum

Policies, in THE EU AND HUMAN RIGHTS 359, 38283 (Philip Alston ed., 1999) (elaboratingon this useful distinction).

9. Terje Einarsen, Mass Flight: The Case for International Asylum, 7 INTL J. REFUGEE L. 551,555; GUY GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 19194 (2d ed. 1996).

10. Jens Vedsted-Hansen, Non-admission Policies and the Right to Protection: RefugeesChoice Versus States Exclusion? in REFUGEE RIGHTS AND REALITIES: EVOLVING INTERNATIONALCONCEPTSAND REGIMES 269, 270 (Frances Nicholson & Patrick Twomey eds., 1999); Noll &Vedsted-Hansen, supra note 8, at 38284.

11. Note from Intergovernmental Consultations Secretariat, 5 Feb. 1998 (on file with author).


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These policies, which were mainly developed at the national level, areincreasingly being incorporated into EU law.12 Despite well-founded humanrights arguments13 referring to the right to seek asylum and the non-

refoulement principle,14

a general implementation of visa restrictionscombined with carrier sanctions was codified in the 1990 SchengenConvention.15 According to the Amsterdam Treaty, the Schengen Conven-tion is becoming part of EU law.16

The next step in implementing these policies has been the posting ofimmigration officers or Airline Liaison Officers (ALO) in either countries oforigin of asylum seekers or important transit countries such as Pakistan andTurkey. According to the 1996 joint position from the EU Council, theimmigration officers are supposed to assist the officers who carry out

checks on departures locally on behalf of the local authorities or on behalfof the airlines.17 The primary aims are to detect false travel documents andtrain local staff. These practical strategies for implementation were devel-oped at the national level and are now coordinated by the European Union.This was reaffirmed in the Tampere Conclusions, where it was stated that:A common active policy on visas and false documents should be furtherdeveloped including closer co-operation between EU consulates in thirdcountries and, where necessary, the establishment of common EU visaissuing offices.18

In the newly published report commissioned by UNHCR on thetrafficking and smuggling of refugees, it is stated that:

12. See, e.g.,KIM ULRIK KJR, DENRETLIGEREGULERINGAFMODTAGELSENAFASYLANSGERE IENEUROPISKKONTEKST 104 (2001); HLNE LAMBERT, SEEKING ASYLUM, COMPARATIVE LAWAND PRACTICEIN SELECTEDEUROPEAN COUNTRIES 198202 (1995) (for explanation of carrier sanctions and visarestrictions).

13. Herman Meijers, Possibilities for Guaranteeing Transport to Refugees, in THE ROLE OF

AIRLINE COMPANIESINTHE ASYLUM PROCEDURE (Morten Kjrum ed., 1988); Erika Feller, CarrierSanctions and International Law, 1 INTL J. REFUGEE L. 48 (1989).14. The non-refoulement principle follows from article 33 of the 1951 Refugee Convention:

No Contracting State shall expel or return (refouler) a refugee in any mannerwhosoever to the frontiers of territories where his life or freedom would be threatened onaccount of his race, religion, nationality, membership of a particular social group orpolitical opinion.

15. Schengen Convention, 1990 O.J. (L 239) 19.16. Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing

the European Communities and certain related acts, at Protocol No. 2, 1997 O.J. (C 340/1), reprinted in 37 I.L.M. 56 (1998).

17. Joint position of 25 Oct. 1996, EFT 1996 C 80/1.

18. Presidency Conclusions of the Tampere European Council, Finland, Oct. 1999, 22,available at (visited 28 Feb. 2002). The activities of theimmigration officers are specified in the Action Plans of the EU High Level Workinggroup on Asylum and Migration. These plans are established for a number of countries,including Sri Lanka, Pakistan, and Iraq.


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[A]n inspection of the operational manuals used by [Airline Liaison Officers], aswell as Government reports of their activities, shows no reference to possible

refugee protection issues or other human rights concerns. Rather, the focus is on

blanket border control against irregular migration and information-gathering tosupport strategic anti-trafficking measures.19

Neglecting the protection issue will and has undoubtedly already lead torefoulement. In the report just quoted this is referred to as presumptiverefoulement.20

Referring to the quotation in the opening of this article from the DeFeira Conclusions, it should be noted that the increased focus on traffickingin refugees has been a relatively new development resulting from Europeanpolicies. It is not merely a result of the horrible incident in Dover this spring,

though that event will most likely increase the efforts already taking place.Nor has the development come as a surprise to people who have closelyfollowed this area. Rather the sharp increase in human trafficking is a directresult of the above-mentioned policies and the lack of alternative measures.When comparing the countries where the activities of the immigrationofficers are most developed,21 with the main nationalities being smuggled toEurope, and with the list of people being granted asylum in Europe, there isa clear correlation. The same countries figure on all lists: Somalia,Afghanistan, Iraq and Sri Lanka, just to mention a few.22 This comparison

clearly indicates that people in need of protection are being prevented fromusing their right to seek asylum caused by the attempts to fight trafficking.From the Tampere meeting to the meeting in Da Feira there is a change inthe wording regarding trafficking. In the Tampere conclusions it is stated that[t]hese common policies must . . . offer guarantees to those who seekprotection in or access to the European Union.23 In the Da Feiraconclusions, this important modification was absent.

2. Non-Admission

Despite the increasing difficulties in getting access to EU countries to applyfor asylum, a number of asylum seekers still arrive in the territory of themember states. In 1999 approximately 325,000 people applied for asylum

19. John Morrison with the assistance of Beth Crosland, The Trafficking and Smuggling ofRefugees: The End Game in European Asylum Policy?[July 2000, pre-publication ed.], at42, available at (visited 1 Feb. 2002).

20. See id. at 6.

21. See Specified in Action Plans of the EU High Level Working Group on Asylum andMigration, Doc. C/98/431.22. SeeMorrison, supra note 19, at 2728.23. Presidency Conclusions of the Tampere European Council, Finland, Oct. 1999, available

at (visited 28 Feb. 2002).


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in one of the member states of the European Union.24 In order to limit thenumber of people eventually obtaining refugee status, two features havebeen common throughout the last decade: the introduction of a more

formalized safe third country concept and more restrictive asylum practice.The safe third country practice developed in the 1990s from the firstcountry of asylum concept which stems from the mid-1970s. In legal terms,the concept was developed at the national level in the interface between theright to seek, but not to obtain, asylum and the non-refoulement principle.25

Under Article 3(5) of the Dublin Convention, contracting states arepermitted to pursue their domestic policies in relation to third countries andthereby not to apply the convention mechanisms.26 So far, no harmonizedsafe third country concept has developed in Europe.27 However, an

elaborate system of readmission agreements has been put in place.Experiences from the 1980s may indicate that the readmission system is animportant precondition for any safe third country policy to be effective.These agreements do not differentiate between different groups of individu-als being returned to the specific country, thereby failing to obligate thereceiving country to give the persons in question access to an asylumprocedure. The absence of a protection or human rights perspective in thisregard is well illustrated when looking at the amount of resources andattention paid by the EU countries to assist East and Central European

countries in building up border controls and capacity to fight trafficking inhuman beings rather than securing fair and efficient asylum procedures.28

This is an integral part of the EU aquis29 for candidate countries. Conse-quently, the legal safeguards generally applying to the safe third countryconcept do not offer the level of protection which is presupposed in theright to seek asylum and the non-refoulement principle.

Those who are not returned to a safe third country will have their casetried in a regular asylum procedure. Throughout the years still morerestrictive criteria have been applied at the national level. This has

materialized in a fairly rigid assessment applied by immigration authoritieswhen contradictions and inconsistencies occur in the story told by theasylum seeker. Furthermore, states have interpreted the 1951 Refugee

24. UNHCR, THE STATE OF THE WORLDS REFUGEES, FIFTY YEARS OF HUMANITARIAN ACTION 32125(2000).

25. SeeMorten Kjrum, The Concept of Country of First Asylum, 4 INTL J. REFUGEE L. 514(1992).

26. Convention determining the state responsible for examining applications for asylum

lodged in one of the Member States of the European CommunitiesDublin Convention,article 3(5), 1997 O.J. (C 254) 1.27. SeeSANDRA LAVENEX, SAFE THIRD COUNTRIES 7678 (1999).28. Seeid. at 11617.29. The EU-Acquis contain the conditions to be met in order to become a member of the EU.


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Convention in a still more restrictive manner. The restrictive application ofthe 1951 Convention was one of the tools used for sending a signal toasylum seekers that they should apply for asylum in other neighboring

countries. This approach seems to have been carried over to the EU level.The most remarkable example is the 1996 joint position on theharmonized application of the definition of the term refugee in the 1951Convention.30 Despite the fact that many states recognized victims ofpersecution by non-state agents as refugees in the sense of Article 1(A) of theConvention, and despite the fact that this is a recognized principle in humanrights law, the joint position in vague terms suggests a more restrictiveinterpretation. Furthermore, the joint position is silent in relation to whetherparticular persecution of women can be recognized under the social group

definition.31

Incorporating carrier sanctions into EU law, strengthening the collabo-ration between immigration officers in third countries and focusing ontrafficking without making a distinction between migration and peopleseeking protection will all challenge the right to seek asylum and the non-refoulement principle. Barriers surrounding the EU countries will be sodifficult to bypass that those people who cannot find protection elsewherewill be in dire need as long as no alternative solutions are established. Forthose who nonetheless find their way to one of the EU countries the safe

third country concept and restrictive procedures and interpretations jointlycreate a non-admission policy. The non-admission policy adds anotherelement to a coherent European policy the main objective of which is toallow only an absolute minimum of third country citizens to remain in theparticular states territory. The state interest policy is dominant in compari-son with human rights protection.

III. THE PRINCIPLE OF NON-DISCRIMINATION

A. International Standards

The prohibition against discrimination, or the right to equal treatment, isexplicitly stated in all human rights conventions, and several conventionshave been established with the sole purpose of combating one form of

30. Joint Position Defined by the Council on the basis of Article K.3 of the Treaty on

European Union on the harmonized application of the definition of the term Refugeein Convention Relating to the Status of Refugees, art 1, adopted28 July 1951, U.N. Doc.A/CONF.2/108 (1951), 189 U.N.T.S. 150 (entered into force22 April 1954), reprinted in3 WESTON III.G.4 [hereinafterRefugee Convention].

31. SeeNoll & Vedsted-Hansen, supra note 8, at 381.


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discrimination, such as race or gender. It is an important feature of thecommon human experience that discrimination based on ethnicity ornational origin constitutes a destabilizing factor in any society.

In relation to refugees and the protection against discrimination in thecountry of refuge, the key legal instruments are the UN Convention on theElimination of All Forms of Racial Discrimination, the European HumanRights Convention and the 1951 Refugee Convention. In the years to come,the new Article 13 in the Amsterdam Treaty will most likely come to play animportant role as well. The protection against discrimination provided bythe 1951 Refugee Convention is not exhaustive. The preamble merelyaffirms the principle that human beings shall enjoy fundamental rights andfreedoms without discrimination.32 Furthermore, in Article 3 it is said that

the provisions in the Convention shall be applied without discrimination.Finally, in relation to each of the articles addressing entitlements, it isindicated that the level of benefits should be the most favourable treatmentaccorded to nationals of a foreign country or equal to nationals.33

Discrimination is a cause of flight, and non-discrimination is an integralpart of protection. Nonetheless, whereas the former has been well re-searched and described in the last couple of decades, less attention has beenpaid to the latter.34 This may be explained by the fact that it is only recentlythat European policies have changed in this regard in a manner which

highlights some of the issues at stake. As an indication of the introduction ofnew policies in Europe the policy paper circulated during the Austrian EUpresidency illustrates well the trend that will be described further below. Inthe said document the question is raised to what extent nationals of thirdcountries who have not settled permanently may also be entitled to thesubstantial social welfare benefits available in Western European States totheir own nationals.35 In the following sections, the focus will be on theprinciple of non-discrimination as an integral part of protection.

B. New Trends in Europe

It is worth noting that despite the attempt made in the Austrian policy paperreferred to above, these policies are not yet harmonized to the same degreeat the EU level as the non-arrival and non-admission policies. This meansthat they still have some of the same characteristics as the national laws

32. Refugee Convention, supra note 30, at preamble.33. Id. at art. 3.34. SeeDanile Joly, A New Asylum Regime in Europe, in REFUGEE RIGHTSAND REALITIES, supra

note 10, at 347.35. European Union, The Council, CK4 27, ASIM 170, 9809/98, 83.


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regarding admittance to the country had in the mid 1980s: each country isdowngrading the entitlements of refugees in order to avoid becoming moreattractive to asylum seekers. Furthermore, the area is more complicated to

harmonize because it is deeply intertwined with general welfare andhousing policies in relation to nationals of the state.

1. Non-Inclusion

Although states have a broad discretion in regard to the reception standardsfor asylum seekers, it is important that they at a minimum ensure the basicdignity and human rights of the asylum seeker.36 The standard of living forthe asylum seeker should relate to the general cost of living and to the

welfare system in the specific country. Furthermore the asylum seekerssituation should in all circumstances be adequate for the specific country.This is increasingly not the case. In April 2001, Great Britain introducednew legislation which will change the welfare system for asylum seekersdrastically. In the future, asylum seekers will be assigned to specific placesto live with no possibility of claiming housing benefits or local authorityhousing. Additionally, financial assistance will be limited to GBP 10 perperson per week in cash. Vouchers, which can be used in local supermar-kets and shops, will be handed out to cover expenses for food and clothing.

The number of vouchers given depends on whether the person is entitled tomeals in the housing facility to which he or she has been assigned. Similaror other restrictions are being introduced in other EU countries.37

During the crisis with the Bosnian refugees, temporary protectionschemes were introduced in many countries.38 This legislation was followedup with comparable legislation dealing with refugees from Kosovo in 1999.39

Initially the governmental interest in introducing a temporary protectionregime was fueled by a desire to effectuate rapid repatriation, as soon as thisoption became available. However, the subsequent debates at the national

level in different European states regarding the introduction of generaltemporary protection schemes focused, to a large extent, on entitlementsrather than on the temporary nature of the stay itself. Denmark offers aparticularly clear case of non-inclusion in its legislation regarding Bosnian

36. SeeReception Standards for Asylum Seekers in the European Union, UNHCR, July 2000at 220.

37. SeeFABRICE LIEBAUT, LEGALAND SOCIAL CONDITIONS FOR ASYLUM SEEKERS AND REFUGEES IN WESTERN

EUROPEAN COUNTRIES 31516 (2000).38. The temporary protection schemes in Denmark, Norway and Sweden are analyzed in thecomparative study: Jens Vedsted-Hansen et al., Midlertidigt asyl i Norden, Nord 1999:3.

39. The Danish Immigration law was amended by law no. 251, 28 April 1999, to offertemporary protection to people fleeing the war in Kosovo.


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refugees. They were assigned to housing facilities in camps in remoteplaces, the children were not taught Danish but Bosnian, and they receivedno working permits in the first period of their stay. In relation to the refugees

from Kosovo the legislation in Denmark seemed clearly to have beendesigned for getting around the non-discrimination clauses on social andeconomic rights in the 1951 Refugee Convention.40

Changing social welfare legislation in relation to asylum seekers asdone in Great Britain is less complicated than in relation to refugeesrecognized according to the 1951 Refugee Convention. As established inArticle 23 of the Convention, refugees have the right to receive the sametreatment with respect to public relief and assistance as accorded tonationals. However, as one of the first countries in Europe, Denmark

introduced an integration act in 1998.41

The Act establishes the legalframework for housing and social relief during the refugees first three yearsin Denmark. Thereby, the government gets the advantage of segregatingrefugees from the normal social welfare legislation. Apart from a fewpositive elements in relation to housing, the Act downscales the social rightsfor newly arrived refugees. Two elements should in particular be noticed:firstly, according to the Act, refugees would receive a 20 percent reductionin their social welfare benefits during the first three years of their stay in thecountry. In many cases the reduction was even greater. This part of the Act

was eventually repealed after one year. Secondly, the Act establishesstructures which make it almost impossible for refugees to move to anothermunicipality than the one he or she has been assigned to. Thus, therefugees freedom of movement is severely restricted.42

2. Exclusion

In relation to housing there is an ongoing tension in many Europeancountries in relation to the formal policy of referring refugees to all parts of

a given society. The aim is to avoid ghettos and to ensure that all parts ofsociety help shoulder what is perceived as a burden. However, a largeproportion of the housing market is, in reality, not accessible to refugees.

40. SeeBrief from the Danish Center for Human Rights to the Danish Ministry of Interior onthe draft legislation regarding temporary protection for persons from Kosovo (Apr. 1999)(on file with author). For further details of the legal analysis, see Morten Kjrum,Temporary Protection in the 1990s, 6 INTL J. REFUGEE L. 444 (1994); Joly, supra note 34,at 346.

41. Law no. 474, 1 July 1998 (Integration Act).42. Brief from the Danish Center for Human Rights to the Danish Ministry of Interior on thedraft Integration Act, Jan. 1998 (Brief no. 69, available at Danish Center for HumanRights Library Database (visited 28 Feb. 2002); LIEBAUT, supranote 37, at 58.


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Policies have not aimed at opening the restricted housing areas but rather atlimiting access to the open part of the market. In Denmark, despite the factthat the Eastern High Court in 1991 stated that it is illegal to establish quotas

in these housing areas due to their discriminatory effects,43

the legislationhas been made even more flexible and open to a quota system. The right tohousing is increasingly being obstructed by these official Danish policies.The discrimination within the housing area has even stronger implicationswhen the law demands a certain quality of housing in order to grant familyreunification.44

The most dramatic and direct form of exclusion is the expulsion from acountry. Extradition cases regarding refugees and immigrants who havecommitted a crime are today common in European court rooms due to more

restrictive legislation. Politically, this is an important area since it combinesthe law and order agenda prevailing in all European countries withxenophobic tendencies. Criminals in general, and criminals from ethnicminorities in particular, are creating fear and angst. This even applies tocountries where the crime rate is declining. There is a call for control, or, inthe words of Bauman:

Governments cannot seriously promise anything but more flexibility of labour-that is, in the ultimate account, more insecurity and even more painful andincapacitating insecurity . . . . Doing something, or being seen to be doing

something, about fighting crime threatening personal safety is, however, arealistic optionand one containing a lot of electoral potential. Sicherheitwillgain little as a result, but the ranks of voters swell.45

Finally, public discourse has to be mentioned as one of the mostimportant factors in todays Europe in excluding refugees and immigrantsfrom society. Terms and expressions are being used by the media and in theofficial discourse which are designed to create a general atmosphere ofsuspicion, confusion and bad will among the public. Governments andmainstream political parties are increasingly becoming part of this com-mon language. It is rapidly named political correctness if a person asksfor a more sober and precise debate. In several countries, the inherentconflict between upholding the freedom of speech and combating hatespeech is most often weighed to the benefit of the person relying on his orher right of expression rather than to protect the refugees or immigrants whoare subjected to racist comments. The negative language which dominatethe public discourse contributes to the current political climate which is the

43. 1991 Danish Weekly Law Review358, Easter High Court.44. Migrant Workers and their Families, Protection within the European Social Charter,

Council of Europe 40 (1996).45. ZYGMUNT BAUMAN, GLOBALIZATION: THE HUMAN CONSEQUENCES 118 (1998).


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precondition for the restrictive admission policies, thereby furthermarginalizing refugees when offered protection in European communities.

The new trends in Europe are, in general terms, characterized by non-

inclusion or exclusion. For decades racism and discrimination have beenpart of everyday life for foreigners and refugees in different countries orregions of Europe. However, in recent years these tendencies seem to havemanifested themselves in all parts of Europe. Moreover, they are increas-ingly being formalized in official policy and legislation. What would havebeen considered part of far right wing policy a few years ago is now, inmany cases, labeled as mainstream politics. Consequently, current non-inclusion and exclusion policies are further marginalizing refugees and inseveral cases threatening their protection.

IV. THE TREATMENT OF REFUGEES BECOMINGA HUMAN RIGHTS ISSUE

A. Human Rights as Part of Official Policy

At the European level, a new refugee regime has been taking shape. Whenlooking at the last three decades, the changes can be characterized as

follows: phase one, from 1973 to the mid-1980sthe asylum procedureswere being shaped as a consequence of the immigration stop in mostEuropean countries; phase two, from the mid-1980s to the end of the1990snew, more restrictive regimes were being implemented in mostcountries and the European harmonization was taking its first importantsteps; phase threewhich is the current phasewill most likely see aconsolidation of the restrictive policies, a shift from third to first pillar46 willconsolidate a European approach, and finally an increased human rightsimpact. It is this final aspect that will be discussed in the following section.

When studying documents concerning refugee protection from inter-governmental organizations, i.e., the UNHCR and the European Union,there is an astonishing absence of human rights language until the early1990s. Reference is most commonly made to humanitarian concerns,47

humanitarian law,48 or broader categories. In the early EU documents suchas the Dublin Convention and the London resolutions, there is little or noreference to the European Human Rights Convention or other human rightsinstruments. Protection of refugees was not perceived as being part of the

46. SeeLAVENEX, supra note 28, at 1415.47. Cf. Ex. Comm. Conclusion No. 44, 1986 (Detention of Refugees and Asylum Seekers).48. Cf. Ex. Comm. Conclusion No. 48, 1987 (Military and armed attacks on refugee camps

and settlements).


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human rights obligations of the state. It was rather seen as a humanitarianoffer based on the political will of the state.

More recent documents such as the draft directive on temporary

protection, the Tampere presidency conclusions, not to mention theAmsterdam Treaty, refer in a fairly comprehensive manner to internationaland regional human rights standards. Most profound is the new EU Charteron Fundamental Rights. The same evolution can be seen at the nationallevel where politicians and civil servants are much more aware of thenecessity to include human rights aspects in the law-making process. TheDa Feira Conclusion illustrates well that this is not an unambiguousdevelopment.49

B. Developments in the European Court onHuman Rights and UN Treaty Bodies

Parallel to the development of more restrictive state regimes, there has beenan increase in cases regarding refugees and asylum seekers being brought toeither the European Court on Human Rights or the UN treaty bodies. Apartfrom a general growing human rights awareness in the postcold warperiod, this evolution can be ascribed to the introduction of still more

restrictive refugee practices in Europe. The human rights conventionshavecontrary to the Refugee Conventionestablished courts or expertcommittees with the competence to interpret the particular convention.50

Asylum seekers and refugees have used these options for petition whenrestrictive policies have led to violations of particular rights. If a similartreaty body had been established by the 1951 Refugee Convention, thehuman rights instruments would most likely have played a more marginalrole.51 When looking at the cases brought to the human rights bodies theissues raised generally concern the above mentioned areas of the right to

seek asylum and discrimination.

1. Non-Arrival

For obvious reasons there are very few cases which could in fact challengethe policies constituting the non-arrival regime because the concernedindividuals rarely get the chance to get in close contact with a lawyer who

49. See Da Feira Conclusion, supra note 2.

50. Tom Clark & Francois Crpeau, Mainstreaming Refugee Rights: The 1951 RefugeeConvention and International Human Rights Law, 17 NETHERLANDS Q. HUM. RTS. 389(1999).

51. Convention Relating to the Status of Refugees, adopted28 July 1951, U.N. Doc. A/CONF.2/108 (1951), 189 U.N.T.S. 150 (entered into force22 Apr. 1954).


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could bring their cases to court. However, in the case Amuur v. France,52 theEuropean Court on Human Rights found that the French state could notdefine the airport as an international zone with extraterritorial status. Thus

asylum seekers held in the airport detention center should be granted thesame rights according to the European Human Rights Convention and the1951 Refugee Convention as asylum seekers in other detention facilities.Consequently, France should provide for legal, humanitarian and socialassistance as well as they should lay down procedures and time limits foraccess to such assistance. The court ruled that the French legislation did notsufficiently guarantee the right to liberty.53 Furthermore, both the UNHuman Rights Committee54 and the Committee on the Elimination of RacialDiscrimination (CERD)55 have expressed concern about the French practice

of carrier sanctions. The CERD found that the question of delegation ofresponsibilities . . . should be exercised by State officials.56 Finally, theHuman Rights Committee has in its General Comment on Freedom ofMovement (Article 12) included a paragraph on the legal and practicalrestrictions on the right to leave. The Committee urges in that regard statesto include information in their reports on measures that impose sanctionson international carriers which bring to their territory persons withoutrequired documents, where those measures affect the right to leave anothercountry.57

2. Non-Admission

In a number of cases the European Human Rights Commission and Courthave established a practice in relation to what could be called inhumanreturn of an individual.58 This practice derives from the prohibition againsttorture and inhuman treatment in Article 3 of the European Human RightsConvention.59 In the case of Chahal from 1996, the Court phrased itsinterpretation in the following way:

52. Amuur v. France, 1996-III Eur. Ct. H.R. 826.53. See id. at 852.54. Concluding Observations of the Human Rights Committee: France, 4 Aug. 1997, U.N.

Doc. CCPR/C/79/Add.80 (1997).55. CERD/C/56/misc.20/Rev.4, 23 Mar. 2000; CERD/C/SR.1373 42, 9 Mar. 2000.56. See id.57. Freedom of Movement Art. 12, General Comment No. 27, U.N. ICCPR, Hum. Rts.

Comm., U.N. Doc.CCPR/C/21/rev.1/Add.9 (2 Nov. 1999).58. Cf. Jens Vedsted-Hansen, Torturforbud som udsendelsesbegrnsning: Non-refoulement-

virkningen af EMRK artikel 3 (The prohibition against torture setting limits to expulsion:

The non-refoulement effect of Article 3 of the European Convention on Human Rights),EU OG MENNESKERET, no. 2, at 4957 (May 1998).59. European Convention for the Protection of Human Rights and Fundamental Freedoms,

art. 3, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, 224 Europ. T.S. No. 5(entered into force3 Sept. 1953).


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[I]t is well established in the case-law of the Court that expulsion by aContracting State may give rise to an issue under Article 3, and hence engage

the responsibility of that State under the Convention, where substantial grounds

have been shown for believing that the person in question, if expelled, wouldface a real risk of being subjected to treatment contrary to Article 3 in the

receiving country. In these circumstances, Article 3 implies the obligation not to

expel the person in question to that country.60

The UN Committee Against Torture (CAT) has established an interestingpractice which on several points supplements the practice of the EuropeanCourt on Human Rights.61 The Committee received its first case in 1994regarding Article 3, which prohibits the expulsion of a person to a statewhere there are substantial grounds for believing that he would be in

danger of being subjected to torture.62

The CAT has addressed some of the problems raised due to still morerestrictive asylum procedures, such as the rigid assessment applied byimmigration authorities when contradictions and inconsistencies occur inthe story told by the asylum seeker. In particular, this is a problem whendealing with victims of torture. By using modern psychological knowledge,CAT states that complete accuracy is seldom to be expected by victims oftorture and that such inconsistencies should not raise doubts about theveracity of the application for asylum.63 The Committee puts emphasis on

the so-called Post Traumatic Stress Disorder Syndrome. This has led toseveral decisions where the Committee would consider it a violation ofArticle 3 to return the asylum seeker. Furthermore, in relation to adminis-trative procedures, the Committee has stated that procedural regulationsexcluding the possibility to include political actions carried out by theapplicant in the asylum country would not be compatible with Article 3.64

In this manner, the Committee has upheld the old refugee sur placeconcept which several European countries have tried to rule out in theirpractice.65

The issue of whether persecution by non-state actors can qualify as areason for obtaining protection has been raised by the European Court of

60. Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831 74. (1996).61. SeeMorten Kjrum, FlygtningeretMenneskeret, Non-refoulement bestemmelsen i FNs

Konvention mod Tortur(The non-refoulements prohibition in the UN Convention againstTorture and Other Cruel, Inhuman or Degrading Treatment or Punishment), EU-RETOGMENNESKERET, JF, 817 (2 May 1999).

62. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment orPunishment, art. 3.

63. Aemei v. Switzerland, Communication 34/1995, Observations by the United NationsCommittee Against Torture, 9 May 1997.64. See id.65. Cf. TERJE EINARSEN, RETTENTILVERNSOM FLYKTNING (THE RIGHTTOBE PROTECTEDASA REFUGEE), BERGEN

60611 (2000).


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Human Rights (ECHR). Several cases on this issue have been brought to theECHR, such as the Ahmedcase66 from 1996 where the court stated that itfollows that the applicants deportation to Somalia would breach Article 3 of

the Convention for as long as he faces a serious risk of being subjected thereto torture or inhuman or degrading treatment.67 The fact that there was noindication that any public authority would be able to protect him in Somaliawas regarded as one of the decisive factors.

In two cases from 1997, this interpretation by the court was challengedby the German Federal Administrative Court which concluded that theECHR had overextended its application of the European Human RightsConvention and infringed upon the sovereignty of state parties to theConvention.68 The argument was that Article 3 is limited to acts carried out

by or with the acquiescence of agents of states. This raises an interestingquestion in relation to the Dublin and Schengen Conventions and the safethird country concept. Can Germany be considered a safe third country inthese particular cases? The issue was tried in the case T.I. v. The UnitedKingdom.69 The court found that

[T]he indirect removal in this case to an intermediary country, which is also a

Contracting State, does not affect the responsibility of the United Kingdom toensure that the applicant is not, as a result of its decision to expel, exposed to

treatment contrary to Article 3 of the Convention. Nor can the United Kingdom

rely automatically in that context on the arrangements made in the DublinConvention concerning the attribution of responsibility between European

countries for deciding asylum claims.70

The case was, nonetheless, declared inadmissible because Germany gaveassurance that it would permit a second hearing of the case.

C. Discrimination

Several of the aspects connected with non-inclusion and exclusion relate toeconomic, social and cultural rights which in legal terms are not asjusticiable as civil and political rights. At the regional level the ECHR doesnot comprise economic and social rights and violations of the EuropeanSocial Charter cannot be tried by the Court. In relation to the International

66. Ahmed v. Austria, 1996-VI Eur. Ct. H.R. 2195.67. Id. at 2208.

68. Judgement of 15 Apr. 1997 and Sept. 1997.69. T.I. v. United Kingdom, Appl. no. 43844/98, Admissibility Decision, 7 Mar. 2000available at (visited 1 Feb. 2002); see generallyNUALA MOLE, ASYLUMANDTHE EUROPEAN CONVENTIONON HUMAN RIGHTS (2000).

70. T.I. v. United Kingdom, supra note 69.


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Covenant on Economic, Social and Cultural Rights there is no individualcomplaint mechanism. One of the recommendations in the ViennaProgramme of Action from the UN World Conference on Human Rights in

1993 was to make an optional protocol to the Convention, that is,introducing the right to petition.71 This work has not yet been finalized.Consequently, the possibilities of challenging the restrictions individuallyare very limited. There are, however, options whereby the European SocialCharter instruments or the CERD Committee can be used. Furthermore,issues can be raised in general terms in alternative reports under thereporting mechanisms of the different conventions. Finally, domestic courtsare increasingly open to address economic and social rights issues.

1. Non-Inclusion

A key issue for refugees and asylum seekers is the access to proper primaryschool education for their children. In many states, including Denmark,children of asylum seekers only receive a rudimentary school education aswas the case with refugees on temporary protection. The right to education,as established in Article 14 of the International Covenant on Economic,Social and Cultural Rights, and Article 28 of the Convention on the Rights ofthe Child, must be adequate in quality, relevant to the child and must

promote the realization of the childs other rights.72

The issue was raised bythe Committee on the Rights of the Child in its concluding observations onDenmark in 1995.73 Shortly after having received the critical remarks theDanish government developed further the primary school education forchildren of asylum seekers.

In regard to the particular integration allowance mentioned above,Denmark was criticized by the UNHCR for not being in conformity withArticle 23 of the 1951 Convention which includes a non-discriminationprinciple in relation to public relief and assistance. Furthermore, in its

concluding observations the Committee on Economic, Social and CulturalRights expressed concern that the integration allowance could have adiscriminatory impact on refugees.74 Consequently, this part of the Integra-tion Act was repealed.

71. Vienna Declaration, supra note 6, at pt. II, 75.72. General Comment No. 11, On Plans of Action for Primary Education (article 14),

Committee on Economic, Social and Cultural Rights, U.N. Doc. HRI/GEN/1/Rev.5 (26

Apr. 2001).73. See Concluding Observations of the Committee on the Rights of the Child: Denmark,Report of the Eighth Session, 29, U.N. Doc. CRC/C/15 Add.33 (15 Feb. 1995).

74. See Concluding Observations of the Committee on Economic, Social, and CulturalRights: Denmark, U.N. Doc. E/C.12/1/Add.34 (14 May 1999).


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Finally, in relation to temporary protection it should be mentioned thatthe EU Commission in June of 1998 proposed a joint action dealingspecifically with temporary protection, which was transformed into a

proposal for a Council Directive in May of 2000.75

In general, the level ofentitlements in the draft directive is in accordance with the standardsestablished in the 1951 Refugee Convention and human rights conventions.Article 3 of the directive is inserted expressly . . . to make it clear from theoutset that the aim is not to derogate from or circumvent the Member Statesinternational obligations.76 However, it is still uncertain whether theseproposals will eventually turn into binding community law when shiftingfrom the third to the first pillar.77

2. Exclusion

Excluding refugees from ordinary housing constitutes a strong measure ofmarginalization. The general trend in Europe is that governments fail toaddress this kind of discrimination in a coherent manner. Their preoccupa-tion is rather directed towards avoiding ghettos, however, not opening newhousing markets. For this reason, the Committee on Economic, Social andCultural Rights in particular noted when the Italian government tookinitiatives which gave foreigners equal standing with Italian citizens

regarding access to residential and public housing and credit on favourableterms.78 Apart from this, France,79 Finland,80 and Denmark, among others,have been criticized for not addressing discrimination in the housingmarket. With regard to Denmark, the Committee on the Elimination ofRacial Discrimination expressed its concern that decisions regardingquotas for newly arrived refugees and/or asylum seekers can be arbitrary intheir effects.81

75. Proposal for a Council Directive on minimum standards for giving temporary protectionin the event of a mass influx of displaced persons and on measures promoting a balanceof efforts between Member States in receiving such persons and bearing the conse-quences thereof, COM(00)303 final, Brussels, Bel. (24 May 2000).

76. Id. at Explanatory memorandum 5.3.77. SeeHlne Lambert, Building a European Asylum Policy under theFirst Pillarof the

Consolidated Treaty Establishing the European Community, 11 INTL J. REFUGEE L. 32937(1999).

78. Concluding Observations of the Committee on Economic, Social and Cultural Rights:Italy, U.N. ESCOR, U.N. Doc. E/C.12/1/Add.43 (23 May 2000).

79. SeeConcluding Observations by the Committee for the Elimination of Racial Discrimina-tion, U.N. Doc. CERD/C/56/misc.20/Rev.4 (23 Mar. 2000).

80. See Concluding Observations of the Committee on Economic, Social and CulturalRights: Finland, U.N. ESCOR,U.N. Doc. E/C.12/1/Add.8 (5 Dec. 1996).81. SeeConcluding Observations of the Committee on the Elimination of Racial Discrimina-

tion: Denmark, 23 Mar. 2000, 9, U.N. Doc CERD/C/56/misc.30/Rev.3 (23 Mar. 2000);see alsoBOUCAUD, supra note 48, at 41.


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Regarding expulsion, European countries are introducing still morerestrictive legislation and practice in relation to extraditing non-citizenswho have committed a crime. In the case of refugees this area is regulated

by Articles 1F and 33(2) of the Refugee Convention, which allows countriesto exclude people from protection if they have committed serious crimes.However, in several cases both at the ECHR and the CAT, decisions havebeen made which stipulate that extradition in these cases would constitutea violation of the prohibition against torture if the individuals would run arisk of being tortured upon their return to the home country. The prohibitionagainst torture is absolute and does not allow any exceptions. Conse-quently, immigration authorities will have to interpret the exclusion clausesin Articles 1F and 33(2) in the light of the practice of the ECHR and the CAT.

Furthermore, Article 8 of the European Convention on Human Rights on theright to private life has, according to the court, offered some protectionagainst expulsion. Dissenting judges have ruled that the extradition casesare a question of discrimination rather than a violation of Article 8.82 Thisargument is particularly weighty when the person in question has been bornand raised in that particular country.

Finally, the human rights machinery has also addressed the conflictbetween the freedom of expression and hate speech. In particular, thisconflict has been raised in connection with Norway, Sweden, and Denmark

which for historical reasons have a high level of protection of freedom ofexpression.83 On several occasions, all three countries have been criticizedby the CERD for allowing neo-Nazi radios and production of neo-Nazimaterial. The committee recommended to declare illegal and prohibit anyorganizations which promotes and incites racial discrimination.84 Further-more, the committee has criticized Belgium85 and Denmark for notimplementing its legislation in this regard. In a specific Danish case thecommittee stated that due to the failure of the police to continue itsinvestigations, and the final decisions of the prosecutor against which there

was no right to appeal, the author was denied any opportunity to establish

82. See Beldjoudi v. France (1992), available at (visited 28 Feb. 2002).

83. SeeConcluding Observations of the Committee on the Elimination of Racial Discrimina-tion: Denmark, U.N. Doc. CERD/C/56/misc.30/rev.3 (23 Mar. 2000); ConcludingObservations of the Committee on the Elimination of Racial Discrimination: Norway,U.N. Doc. CERD/C/304/Add. 40 (21 Aug. 1997); Concluding Observations of theCommittee on the Elimination of Racial Discrimination:Sweden, U.N. Doc. CERD/C/

304/Add. 37 (18 Dec. 1997).84. Concluding Observations of the Committee on the Elimination of Racial Discrimination:Denmark, supra note 83.

85. SeeConcluding Observations of the Committee on the Elimination of Racial Discrimina-tion: Belgium, U.N. Doc. CERD/C/304/Add. 26, 18 (23 Apr. 1997).


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whether his rights under the Convention has been violated.86 The headmas-ter of a school had publicly called the author a monkey. This opinion isperceived to be somewhat in contradiction with the Jersildcase.87 In that

case, Denmark was found to have violated Article 10 of the EuropeanHuman Rights Convention, which covers the right to freedom of expression.A journalist was sentenced for having interviewed a group of Danish racists,the so-called green-jackets. However, this case was rather an issue of theright of the journalist to edit his material in a balanced manner. No onequestioned the fact that the green-jackets had been sentenced for their raciststatements. Consequently, the judgment can hardly be used, as has been thecase, for not prosecuting on the basis of racist statements.

D. Conclusion

In relation to the non-admission policies, the human rights machinery hasmodified the consequences through the development of substantial caselaw. Through the application of Article 3 of the European Convention onHuman Rights and Article 3 of the UN Convention Against Torture,substantial human rights protection against expulsion to a country wherethere is a real risk of persecution has been established as a supplement to

Article 1A of the 1951 Refugee Convention. In particular, the CAT hascontributed to modifying restrictive administrative procedures. Furthermore,the principle established by the case T.I. v. UK, that a country is responsiblefor a chain reaction when expelling a person,88 may raise serious doubts inrelation to many of the readmission agreements established by the EUcountries in recent years without providing any guarantees of access to a fairand efficient asylum procedure. This may complicate the implementation ofthe Schengen and Dublin Convention.

Human rights machinery is also playing an increasingly important role

with regard to discrimination of asylum seekers and refugees. In particular,the committees established under the UN conventions now more than everaddress issues relevant for the protection of refugees.

Likewise, the practice developing in the European Court of HumanRights and the treaty bodies has a strong impact on domestic courts. Thus,in the years to come there will be more interaction between domestic courtsand treaty bodies interpreting the conventions. The German Federal

86. SeeCERD Communication No. 16/1999.87. Jersild v. Denmark (1994), available at (visited 28 Feb. 2002); LENE JOHANNESEN, NEW LIMITS, A LEGAL COMMENTONA CASEABOUT FREEDOMOF EXPRESSIONAND HATE SPEECH (1996).

88. See T.I. v. United Kingdom, supra note 69.


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Constitutional Court has challenged the European Court of Human Rights ina restrictive manner as mentioned above. In a number of cases dealing withexpulsion of foreigners who have committed a crime, the Danish Supreme

Court has made a liberal interpretation of Article 8. In the years to come itwill be interesting to see how these developments will challenge restrictivepolicies.

V. CONSEQUENCES OF THE LINKAGE BETWEEN REFUGEEPROTECTION AND HUMAN RIGHTS

The restrictive European policies in relation to the right to seek asylum and

non-discrimination have established a profound human rights jurisprudencelinked to the different aspects of refugee protection. It could be said that ina strange way the restrictive policies have helped to anchor or root refugeelaw as an integral part of human rights law. Whereas in the beginning of thedecade, these two legal bodies were seen as two different branches ofinternational law, they are now increasingly merging.

The aim of the restrictions introduced in the last decade was to limit thenumber of asylum seekers and combat illegal immigration. It was realizedthat this goal could not be attained by individual states, thereby necessitat-

ing closer coordination. Instead of establishing an entire new legal regimewhich would abolish the 1951 Convention, the chosen strategy was to clipits wings and reduce its scope as much as possible through inter-governmentalagreements and a battery of EU Resolutions, Recommendations andConclusions.89

Will human rights be next? Human rights have moved from beinghighly political instruments during the cold war period to becoming anintegral part of the legal instruments applied by domestic and internationallegal bodies as well as different parts of the state administration. This is

particularly true in relation to issues related to refugees and immigrants.Thus, human rights law, as illustrated above, has challenged restrictivelegislation and practices. Will there be a similar reaction to this as has beendemonstrated in relation to the 1951 Refugee Convention? There are currenttrends which could be interpreted in a way which indicates a move towardsclipping the wings of human rights law. However, it should be underlinedthat these trends could also be perceived differently in a more positive light.

An obvious target would be the international and regional controlmechanisms. With regard to the UN treaty bodies in general terms it is

89. Joly, supra note 36, at 355.


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noteworthy that during a period such as the last decade with a lot of focuson human rights implementation, the most prominent international monitor-ing mechanisms are still dramatically underfunded. The underfunding is so

severe that meetings are canceled due to the inability to fund travel costs formembers of the committees. Furthermore, the support staff is very limited innumber. There seems to be a general reluctance among EU member statesto follow up on the World Conference recommendation with regard toestablishing an additional protocol to the Covenant on Economic, Socialand Cultural Rights, instituting the right of petition, which would constitutean important protection mechanism for refugees as well as for others.

The European Court on Human Rights has been instrumental in creatingthe human rights refugee protection jurisprudence. The court was restruc-

tured in 1998 and some observers have expressed a fear that judges with thenew structure will be less independent than under the previous structure.What is of concern is in particular the high salaries combined with thereappointment procedures which do not adequately secure independencefrom member states. This could in the time to come influence the judgmentsof the Court. Furthermore, linked to the issue of the court is the creation ofan EU Charter for Human Rights. If a new charter vests powers in theEuropean Court of Justice in Luxembourg, there will be competing authori-ties in Europe in the human rights area. Such a competition could lower the

profile of the ECHR to a secondary court after the Luxembourg court,thereby running the risk of causing so much legal uncertainty that the resultwould be a downgrading of the human rights protection because domesticcourts, civil servants and politicians would hesitate to take it seriously.

Finally, at the domestic level there is a growing resistence againstcompliance with international human rights law as interpreted by treatybodies. In Germany, as mentioned above, the Federal Administrative Courthas challenged the ECHR in relation to the issue of non-state actors. Theargument is not substantiated very well, and maybe for good reason,

because there is nothing in the wording, nothing in the preparatory works tothe convention, nor in the early case law that indicates a narrow interpreta-tion. It is actually quite the opposite.90 Furthermore, mainstream politiciansand commentators in many European countries are questioning whethernational parliaments can decide their own policies or whether they shouldbe subjugated to what they call the human rights tyranny.

90. SeeWalter Kealin, Human Rights and Refugees 11 (Nov. 1998) (unpublished paper).


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VI. WHERE TO GO?

A conflict is developing between attempting to create a higher human rights

profile within the European Union and other intergovernmental fora and atthe same time moving towards clipping the wings of human rights as hasbeen done with refugee law. A way forward from avoiding yet anotherclipping is to consider more clearly the different groups of people arriving inEurope and the different set of legal regulations.

The fiction of Europe being a non-immigration area leads to a situationwhereby any foreigner seeking to enter the territory violates the non-immigration policy and thereby, in principle, challenges the overall politicalstrategy in this area. This is illustrated in the policy of fighting trafficking in

refugees and immigrants. There is and will continue to be an immigration toEuropeand there is even a demand for a certain influx. A Europeanmigration policy, based on two pillars, is therefore needed: (1) a humanitar-ian pillar addressing the needs of refugees, displaced persons and peoplewith a human right to arrive or remain in the specific country (familyreunification with refugees and Article 3 persons); and (2) a regulareconomic immigration and other forms of non-rights based immigration(family reunification, visits, etc.). Such a policy ought to be developedwithin the EU context.

Furthermore, it is important that human rights law and refugee lawbecome more integrated so that refugee protection is perceived as beingpart of human rights protection. However, the two branches of law shouldnot merge completely, but continue to be separate bodies. The importantcontribution of the ECHR and the CAT in relation to establishing ajurisprudence in relation to the risk of torture may create an understandingthat running a risk of torture is a condition under Article 1A of the 1951Refugee Convention.91 This could lead to a situation whereby the likelihoodof being granted asylum would be smaller than before if the applicant has

not been tortured or if (s)he cannot substantiate that there are grounds tobelieve that (s)he will risk being tortured upon his or her arrival in the homecountry. Consequently, the human rights approach may end up narrowingthe interpretation of the 1951 Convention. The two branches of law shoulddevelop their own jurisprudence, however, using each areas interpretationsto apply to the other.

A European refugee regime could be constructed along these two pairs

91. See Kjrum, supra note 66, at 1516; see alsoGuy Goodwin-Gill,Judicial ReasoningandSocial Groupafter Islam and Shah, 11 INTL J. REFUGEE L. 537, 539 (1999) (makingthe same point regarding the application of the non-discrimination principle in relationto Article 1A of the 1951 Refugee Convention).


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of principles: a policy based on a more open attitude to immigration and ahumanitarian leg giving access to persons in need of protection. The otherpair would be human rights law and refugee law supplementing each other.

This could constitute an important platform for a comprehensive refugeepolicy offering in the words of Article 28 of UDHR a social andinternational order in which the rights and freedoms set forth in thisDeclaration can be fully realized, including the right to seek asylum andthe right to be protected against discrimination.92 This would be a differentapproach than the one indicated by the heads of state in the Da FeiraConclusions. It would be an approach focusing on human needs balancedwith state interests as already established decades ago within the frameworkof human rights and refugee law.

92. Noll & Vedsted-Hansen, supra note 8, at 363; Asbjrn Eide, Article 28, in THE UNIVERSALDECLARATIONOF HUMAN RIGHTS: A COMMON STANDARDOF ACHIEVEMENT, supra note 3, at 433.

Kjaerum, Morten_Refugee Protection Between State Interests and Human Rights_Where is Europe Heading

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