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The Collective Responsibility of States to Protect Refugees$

Agnès Hurwitz

Print publication date: 2009

Print ISBN-13: 9780199278381

Published to Oxford Scholarship Online: February 2010

DOI: 10.1093/acprof:oso/9780199278381.001.0001

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Origins and Developments of Arrangements to Allocate Responsibility for the Protection of Refugees

Origins and Developments of Arrangements to Allocate Responsibility for the Protection of Refugees

Chapter:
(p.9) 1 Origins and Developments of Arrangements to Allocate Responsibility for the Protection of Refugees
Source:
The Collective Responsibility of States to Protect Refugees
Author(s):

Agnès Hurwitz

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199278381.003.0002

Abstract and Keywords

This chapter recalls the historical background to the development of responsibility allocation and safe third country practices. It begins with an overview of the fundamental concepts and instruments of international refugee law, and proceeds with a description of the changes that affected refugee flows at the end of the 1970s and led to the progressive decline of protection standards and the development of restrictive refugee policies, including an analysis of the failed UN Conference on territorial asylum and of the discussions that took place within the Executive Committee of UNHCR. Developments at the regional level are also covered, namely, the negotiations of the two draft agreements on responsibility for examining an asylum request prepared by the ‘Ad Hoc Committee on the Legal Aspects of Asylum and Refugees’ of the Council of Europe (CAHAR), and the gradual rise to prominence of the European Community in the asylum and migration fields.

Keywords:   safe third country practices, international refugee law, refugee protection, UNHCR, European Community

The international community’s recognition of its collective responsibility to protect refugees originated at the end of World War I and reached its high point at the level of specific treaties with the adoption of the 1951 Convention Relating to the Status of Refugees and of its 1967 Protocol.1

In the 1970s, important changes in the nature and scale of refugee flows led to the emergence of an increasingly restrictive discourse in industrialized States, and to the progressive implementation of policies of containment. Thus, the ‘protection elsewhere’ concept, which provided that asylum should not be refused solely because it could be sought from another State except where there were close links or a connection with such other State, was gradually interpreted so as to allow States to dismiss an asylum application, on the ground that the refugee could have claimed asylum elsewhere. The development of policies seeking to limit the arrival of asylum seekers was particularly striking on the European continent, where the rights-based approach of the Council of Europe was progressively eclipsed by the European Union’s security driven discourse.

This chapter begins with an overview of the fundamental concepts and instruments of the international legal framework for refugee protection and proceeds with a historical analysis of the initiatives taken at the global and regional levels to address secondary movements of refugees, including an examination of the 1977 UN Conference on territorial asylum, of the discussions within the Executive Committee of UNHCR, and of the negotiations on a convention on responsibility to examine an asylum request within the Council of Europe. The origins and development of European Union policies on asylum will complete this review.

(p.10) 1.1 Fundamental Concepts

1.1.1 The international legal framework of refugee protection: historical background

The refugee question emerged as an international legal issue in the nineteenth century, with the development of extradition treaties and the principle of the non-extradition of political offenders.2 Yet it was only at the end of World War I that the rising number of displaced populations and the uncertainty of their legal status led to the development of new instruments of protection by the international community.3 Early legal instruments generally provided for the issuance of travel documents and applied to specific categories of refugees, on the basis of their ethnic origin, the failure of protection by the government of their country of origin, and the fact that they had not acquired the nationality of any other country.4 The 1930s saw the adoption of additional instruments dealing with refugees from the Saar,5 from Germany,6 from the Sudetenland,7 and from Austria,8 as well as the conclusion of the first international agreement of general application.9 The 1933 Convention Relating to the International Status of Refugees expressly restricted expulsion; it also included provisions on the enjoyment of civil rights, as well as (p.11) social and economic rights,10 but its significance was limited by the small number of State parties, and the formulation of broad reservations to its provisions.11

A flurry of international organizations were also established during this period to provide assistance to refugees. The Office of the International Commissioner for Refugees was created with a mandate on the legal status and the coordination of relief operations,12 and replaced in 1929 by the International Nansen Office for Refugees which carried out its work under the direction of the League of Nations.13 In 1933, a High Commission for Refugees Coming from Germany was established, which had originally an autonomous status from the League.14 The activities of the Nansen Office and the High Commission for Refugees Coming from Germany were then taken up by the High Commission for Refugees, established within the League of Nations in 1938.15 Following the Evian Conference of 1938, an Intergovernmental Committee on Refugees, comprising 27 State representatives, was created at the initiative of the United States, which had not joined the League of Nations,16 to provide aid to refugees from Germany.17

This multiplication of international bodies continued throughout the 1940s. During World War II, refugee relief and assistance was organized through the High Commission for Refugees and the Intergovernmental Committee for Refugees, which was headed by the High Commissioner.18 International cooperation in the refugee field was also pursued by allied States, through the establishment in 1943 of the United Nations Relief and Rehabilitation Administration (UNRRA), a temporary organization whose main task was relief assistance and the repatriation of millions of displaced persons in Europe.19 By 1947, there remained about 633,000 refugees for whom responsibility was transferred to a new organization,20 the International Refugee Organization (IRO).21 In addition to this refugee load, the IRO provided assistance to refugees formerly protected by the High Commissioner of the League of Nations, the Intergovernmental Committee for Refugees, and (p.12) to ‘new’ refugees of the period 1947–1950, amounting to 1.6 million people.22 IRO’s main achievement was the organization of the large-scale resettlement of about one million refugees.23 Only 18 out of the 54 members of the United Nations continued to fund it, however, as it faced accusations that it was serving the political and economic interests of the West in the emerging cold war.24

1.1.2 The establishment of the United Nations High Commissioner for Refugees

In 1950, the Office of the UNHCR was established by the General Assembly as a subsidiary organ pursuant to Article 22 of the Charter, originally for a period of three years.25 Its mandate was then extended every five years,26 until 2004 when the time limit on UNHCR’s mandate was eventually removed.27 Today, UNHCR is assisting and protecting some 21.5 million ‘persons of concern’ around the world and has a budget of about US$ 1 billion,28 for which the regular UN budget only covers UNHCR’s administrative expenditures, while all other expenditures are financed through voluntary contributions.29

The High Commissioner is elected by the General Assembly on the nomination of the Secretary General,30 and is under the obligation to ‘follow policy directives given by the General Assembly or the Economic and Social Council’,31 to which s/he reports annually. The nature of the work carried out by the High Commissioner is described in paragraph 2 of the Statute:

The work of the High Commissioner shall be of an entirely non-political character; it shall be humanitarian and social and shall relate, as a rule, to groups and categories of refugees.

The Statute also defines who is to be protected by the Office of the High Commissioner:

Any person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had a well-founded fear of persecution by reason of his race, religion, nationality or political opinion and is unable, or, because of such fear, is unwilling to avail himself of the protection of the government of the (p.13) country of his nationality, or if he has no nationality, to return to the country of his former habitual residence.32

This definition is similar to the definition enshrined in the Refugee Convention examined below, except for the fact that it does not contain temporal and geographical limitations.33

The primary functions of the new international refugee agency were intended to be the provision of international protection and the search for permanent solutions to the problems of refugees.34 The broad language of paragraph 9 of the Statute has nonetheless allowed UNHCR to extend its functions beyond its original mandate, including preventive and in country protection.35

One of the key organs of the international refugee regime is the Executive Committee, established in 1957 as a formally independent body36 to give policy directives to the High Commissioner and to States, which are presented in the form of non-binding conclusions. These ‘soft law’ instruments have substantially contributed to the development of the international normative framework of refugee protection,37 as they may constitute evidence of the existence of customary law or of its emergence.38

1.1.3 The 1951 Geneva Convention Relating to the Status of Refugees

The Refugee Convention is the key conventional instrument relating to the protection of refugees and marked the highest point in the development of international refugee law since the first Nansen arrangement of 1922. As in the inter-war arrangements, the essential condition of refugees is their presence outside the territory of their country of origin and their lack of protection by any State.39 However, the Convention added to these criteria the condition of a well-founded fear of persecution based on one or more of five grounds: race, religion, nationality, (p.14) political opinion, and membership of a social group. Refugee status determination is carried out by State parties which are free to institute procedures they see appropriate for this purpose.40 Article 1 sets out the conditions for granting the status of refugee under the Convention, for the exclusion of individuals from such protection, as well for the cessation of refugee status. Article 1(A) reads:

A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:

  1. (1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;

  2. (2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

As is made clear by this provision, the Convention was originally conceived to provide a legal framework for the protection of European refugees from World War II. Events of the early 1960s, in particular the struggles for independence of colonized nations, demonstrated the limits of the original instrument and the temporal and geographical limitations were removed in 1967 through the signing of an additional Protocol.41

The Convention lays down the rights that State parties shall accord to refugees, depending on their ‘simple’ presence, lawful presence, lawful residence, or habitual residence.42 The fundamental obligations set out in Articles 31 and 33 CSR obviously apply to recognized and prima facie refugees alike, that is, on the basis of their ‘simple presence’, otherwise their purpose would be disregarded.43 Article 33 expresses the core principle of the Refugee Convention: it proscribes the expulsion or return (refoulement) in any manner whatsoever of refugees to the frontiers of territories where their life or liberty would be at risk on the grounds laid down in Article 1. Article 31 CSR, while less fundamental, is of particular relevance for the present study as it prohibits the imposition of penalties for the illegal entry of refugees arriving directly from a territory where their life or liberty is threatened, in accordance with the terms of Article 1 CSR.

(p.15) Apart from the 1967 Protocol, the conventional instruments which followed the Refugee Convention were concluded at the regional level. The more notable example is the conclusion of the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, which adopted an extended definition of the refugee, taking account of the peculiarities of forced migration on this continent:44

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 of habitual residence in order to seek refuge in another place outside his country of origin or nationality.

A broader definition of the refugee has also been endorsed in the Cartagena Declaration adopted by the representatives of Central-American countries,45 in non-binding instruments of the Council of Europe,46 and finally by the United Nations, inter alia, through the expansion of UNHCR’s mandate.47 Western countries have also developed alternative forms of protection, known under the generic term of complementary protection, for individuals who are in need of protection but do not fulfil the conditions set out in Article 1 CSR.48

1.1.4 Refugees and asylum

While a normative definition of the refugee only appeared with the emergence of nation states in the nineteenth century, the practice of granting asylum is an (p.16) ancient tradition.49 The definition of the Institute of International Law conveys in the broadest manner the modern meaning of the concept:

The term asylum means the protection which a State grants on its territory or in some other place under the control of certain of its organs, to a person who comes to seek it.50

If a right to be granted asylum is recognized in some domestic legal systems,51 international law knows only of a right to seek and enjoy asylum from persecution,52 meaning therefore that the granting of asylum remains a discretionary act of the State.53 This was made apparent when the drafting committee of the Refugee Convention decided that it would not address the question of asylum,54 making only brief mention of it in the Preamble.55 The question of asylum was submitted to the International Law Commission in 1959, and eventually transferred to the UN Commission on Human Rights, whose work led to the adoption of the 1967 UN Declaration on Territorial Asylum by the General Assembly.56 The convening (p.17) of a conference to discuss the adoption of a convention on territorial asylum in 1977 was the last attempt at regulating asylum under international law.57

The concept of asylum remains nevertheless central to the refugee paradigm. As stated by Goodwin-Gill and McAdam:

What cannot be ignored however is the close relationship existing between the issue of refugee status and the principle of non-refoulement, on the one hand, and the concept of asylum, on the other hand. These three elements are, as it were, all links in the chain between the refugee’s flight and his attainment of a permanent solution.58

In fact the notion of asylum seeker is commonly used to identify refugees whose formal status has not yet been recognized. This semantic slip, which originates from domestic legal systems, reflects an approach where asylum remains the primary institution.59

1.2 The Refugee Situation at the End of the 1970s

The 1970s saw important changes both in the nature of refugee flows and in States’ policies. Socio-economic concerns following the 1973 oil crisis,60 combined with growing unease about the potential social tensions arising from the presence of large migrant populations and mounting security concerns related to the rise of terrorist activities, led to the adoption of more restrictive regulations throughout Europe.61 These developments coincided with an increase in the number of refugees and a geographical spread to most parts of the world, caused by the progress of international transport and communication.62

In 1975, a document of the Council of Europe on de facto refugees estimated that for a total number of 30,000 refugees arriving in Europe, 26,000 refugees came from developing countries,63 and would either arrive on their own, or use (p.18) illegal channels of migration.64 According to the same document, refugees who used illegal smuggling networks would either get forged identity documents or destroy their original travel documents,65 a phenomenon which, according to data in some European countries concerned between 50% and 80% of claimants.66 Faced with the doubling of the number of asylum seekers between 1980–84 and 1985–89,67 Western governments responded by further restricting the opportunity to seek asylum,68 devising a range of policies that may be outlined as follows:

  1. (1) Measures to restrict access to States’ territories through the imposition of fines on companies transporting undocumented aliens,69 visas on nationals from refugee producing countries,70 the posting of immigration officers abroad,71 and interdiction at sea;72

  2. (2) Measures to restrict access to asylum procedures and judicial remedies, through the application of strict time limits for the lodging of asylum claims;73 the (p.19) use of the ‘safe country of origin’ concept;74 accelerated procedures for manifestly unfounded and/or abusive claims;75 and the creation of international zones in airports;76

  3. (3) Adoption of a narrow interpretation of Article 1 of the Refugee Convention,77 and elaboration of weaker forms of protection, such as temporary or subsidiary protection;78

  4. (4) Support for protection in the region, if not in the country itself through the creation of safe havens;79

  5. (5) Restrictions on social welfare benefits, and detention of asylum seekers arriving irregularly, as deterrent measures.80

While the rationale behind those measures is for a large part based on the perception that many asylum seekers are in fact economic migrants with no well-founded fear of persecution, containment policies have in effect contributed to further blurring the distinction between refugee and economic migrant, a phenomenon for which the terms asylum-migration nexus or mixed migration have been coined.81 In other words, ‘by ignoring the fundamental causes of migration and treating all (p.20) entrants with suspicion and restrictiveness, governments themselves help erode the distinction between economic and forced migrants, which is a cornerstone of their policies’.82

1.2.1 ‘Refugees in orbit’

This expression appeared for the first time in a memorandum issued by NGOs on the UN Draft Convention on territorial asylum in October 1976.83 In an Aide-Mémoire transmitted to the Council of Europe, UNHCR explained that:

This phrase [refugees in orbit] has been used to describe the plight of refugees who, while not being rejected or returned to the country where they fear persecution, are not granted asylum in any country to which they apply and are obliged to move from one country to another.84

Three type of ‘orbit situations’ were identified: refugees who did not find asylum in any country, refugees who had been granted asylum but lost the right to reside in or return to that country without having found protection anywhere else, and finally, refugees who felt obliged to leave the country where they had been granted asylum, because their lives or liberty were under threat there.85

The phenomenon of ‘refugees in orbit’ became particularly serious in Europe, not only because of differences in States’ practices, for instance, as regards the geographical limitation applied by some States or the interpretation of the refugee definition in Article 1 CSR,86 but also because States implemented unilateral policies which enabled them to refuse to examine an asylum application on formal grounds. In other words, States began to adopt the position that asylum seekers should claim protection in the first State they reached, and that consequently, they had no choice of asylum country.87 This reactive approach became increasingly widespread,88 and led to the development of safe third country practices.

(p.21) Aware of the necessity of solving this problem through international cooperation, some proposed the establishment of consultative mechanisms with ultimate referral to UNHCR.89 Grahl-Madsen recalled the proposal to create a European Refugee Commission, whose competencies would include the interpretation of the Refugee Convention, as well as the determination of the State responsible.90 However, international initiatives to address this question, at the level of the United Nations or within the Council of Europe, were doomed to failure.91 Instead, a profusion of small intergovernmental groups dominated by police and home affairs experts appeared on the international scene.92 These fora played a major role in the early design of European asylum policies, including arrangements to allocate responsibility.

1.2.2 The 1977 United Nations’ conference on territorial asylum

The adoption of a Declaration by the General Assembly often constitutes the first step towards the elaboration of a binding convention. The 1967 UN Declaration on territorial asylum,93 which contained provisions on the right of States to grant asylum, solidarity between States, and non-refoulement, was thus logically followed by the convening of a multilateral conference to discuss the conclusion of an international convention on territorial asylum. However, the conference failed to adopt a text and only three articles of the ten originally proposed were endorsed by the Committee of the Whole.94

The second paragraph of draft Article 1 referred to ‘orbit situations’:

Asylum shall not be refused by a Contracting State solely on the ground that it could be sought from another State. However, where it appears that a person requesting asylum from a Contracting State already has a connection or close links with another State, the Contracting State may, if it appears fair and reasonable, require him first to request asylum from that State.95

(p.22) The first sentence of the Article had already been proposed by the experts who had elaborated the draft before the Conference,96 and was regarded by UNHCR as a significant step in the development of the international law on asylum.97 The so-called ‘protection elsewhere’ clause had also been included in a Recommendation of the Parliamentary Assembly of the Council of Europe adopted in 1976.98 Its wording was not entirely clear,99 however, and countries of first and second asylum interpreted it differently, each group considering that it was placing too heavy a burden on them.100

In the end, the fiasco of the conference was attributed to the low quality of the draft proposed by the experts,101 but above all, to the insufficient political engagement with developing countries, whose position had been overlooked by UNHCR and the Western NGOs working on the project.102 There were also serious divergences between, on the one hand, socialist and developing countries, which insisted on the prevalence of the sovereign right to grant asylum, and some Western countries, which defended the recognition of a right to asylum.103 Divisions even existed within the Western group, Commonwealth countries and the United States being more wary of a liberal approach to territorial asylum than Sweden, Germany, France, and Italy.104

Another flaw of the draft was that it was supposed to apply to individual arrivals of asylum seekers as well as to mass influx, which demand differentiated responses.105 Also, the articles adopted by the Committee of the Whole were in fact more restrictive than the domestic provisions on asylum existing in many States at that time.106 Yet for some, the regulation of the ‘protection elsewhere’ concept was viewed as an essential prerequisite before an international instrument on territorial asylum could be envisaged.107

(p.23) The failure of the 1977 Conference may be regarded as the first manifestation of the ‘protection crisis’ that is still ongoing to this day. From that time, interest in territorial asylum started to wane and most Western States did not support an early reconvening of the Conference.108 The era of generous asylum policies had reached an end, and international attention became progressively focused on restricting access to the asylum system.

1.2.3 Conclusions of the Executive Committee of the High Commissioner’s Programme

The Sub-Committee of the Whole on International Protection of the Executive Committee addressed the problem of refugees without an asylum country in 1979. Members of the Sub-Committee acknowledged that the most serious concern was that States tended simply to assume that another State was responsible for processing asylum claims.109 It was therefore suggested that it would be more desirable to have positive criteria to determine which State is responsible.110 The Sub-Committee also distinguished situations involving a large-scale influx of asylum-seekers and those involving individual arrivals.111 With respect to the latter, the note on asylum submitted to the Sub-Committee of the Whole identified five different criteria of application of the ‘first country of asylum’:

  1. (1) A geographical criterion exclusively based on the fact that the asylum seeker had passed through another country;

  2. (2) A temporal criterion, based on the length of time elapsed between the departure from the country of origin and the arrival in the country where the asylum claim was lodged;

  3. (3) A criterion based on the nature of the asylum seeker’s stay in the ‘first country of asylum’, thus on the existence of ‘relevant links’, and in particular on the fact that the asylum seeker had been granted protection in that country (the ‘protection elsewhere’ principle);

  4. (p.24)
  5. (4) A criterion based on the intention of the asylum seeker;

  6. (5) A combination of the former criteria.112

However, none of these criteria were specifically adopted and Conclusion No. 15 of the Executive Committee merely laid down principles which should be followed in the elaboration of these criteria. A relatively liberal approach nonetheless prevailed and both the Note on asylum presented by the High Commissioner and the Conclusion of the Executive Committee insisted that consideration should be given, as far as possible, to the wishes of the asylum seeker and that States should avoid sending an asylum seeker to a country with which she had no relevant links.113 The principle that asylum should not be refused solely on the ground that it could be sought from another State was also reiterated.114 Finally, the Conclusion emphasized the importance of improved cooperation between States by way of consultation mechanisms among States and with UNHCR.115

After a failed attempt in 1985,116 the Executive Committee adopted a second conclusion addressing the question of States’ responsibilities for protecting refugees in 1989. The difference of approach with the previous discussions was manifest, as tensions between States’ interests and refugee protection were growing.117 The High Commissioner’s note offered a bleak assessment of the situation:

In carrying out these protection functions, UNHCR is working in a climate where attitudes towards refugees which [sic] are becoming increasingly less accommodating. National perceptions of the refugee problem are more and more coloured by social and economic difficulties, concern over trans-continental movements and a degree of abuse of asylum procedures by individual claimants. The result has been a resiling from responsibilities by a number of States and, in some cases, a preparedness to disregard such responsibilities completely.118

The restrictive attitude of States towards refugees was also apparent during the discussions. The broad message of Conclusion No. 58 is particularly revealing of (p.25) the evolution in the perception of abuse, emphasizing the responsibility of asylum seekers for irregular movements:119

(a) The phenomenon of refugees, whether they have been formally identified as such or not (asylum seekers), who move in an irregular manner from countries in which they have already found protection, in order to seek asylum or permanent resettlement elsewhere, is a matter of growing concern. This concern results from the destabilizing effect which irregular movements of this kind have on structured international efforts to provide appropriate solutions for refugees. Such irregular movements involve entry into the territory of another country, without the prior consent of the national authorities or without an entry visa, or with no or insufficient documentation normally required for travel purposes, or with false or fraudulent documentation. Of similar concern is the growing phenomenon of refugees and asylum seekers who wilfully destroy or dispose of their documentation in order to mislead the authorities of the country of arrival…120

The Executive Committee failed to address, however, the question of the implementation of restrictive entry policies towards aliens, including asylum seekers and refugees that had been raised by the High Commissioner. The Conclusion focused instead on the need to determine the cause and scope of these movements, and to ensure proper protection standards in the country where they first arrived.121 Conclusion No. 58 went further than Conclusion No. 15 by defining effective protection, that is, the conditions for determining that a country is safe for protection purposes, based on the following criteria: protection against non-refoulement, the right to remain in the country, and to be treated in accordance with human rights standards.122 On the other hand, the document did not explicitly address the situation of asylum seekers in transit, which had been most problematic in practice.

Conclusion No. 58 was also part of a broader trend, starting at the end of the 1980s, towards the progressive decline of UNHCR protection activities and the growing importance of informal international fora.123 It is indeed at that time that a meeting was organized by Sweden, with the participation of Denmark, France, Germany, the Netherlands, Switzerland, and the United Kingdom, to discuss, among several issues, a proposal for a convention on the country of first asylum. This new forum, which Canada, Belgium, Austria, and Australia later joined, and now comprises 16 States, became known as the Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America, and Australia.124

(p.26) 1.2.4 The Council of Europe

After the failure of the 1977 UN Conference on territorial asylum, European States decided to pursue discussions on asylum within the Council of Europe. A Declaration on Territorial Asylum was adopted by the Committee of Ministers on 18 November 1977,125 while serious discussions on the question of the ‘country of first asylum’ or ‘protection elsewhere’ principle actually started in 1981.126 Negotiations on this topic were characterized by disagreements between first and second asylum countries on the scope of their respective obligations. It also became clearer than ever before that States’ primary consideration was to deter the arrival of asylum seekers on their territory.

The first draft prepared by the CAHAR, the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons,127 provided in its Preamble that the main objective of the Convention was to establish rules in order to avoid situations where asylum seekers are unable to find a State which will examine their request, in accordance with the liberal and humanitarian traditions of the Member States of the Council of Europe,128 and to ensure fair burden-sharing between the State parties.129

The basic principle adopted by the draft was that the asylum request should be examined in the State where it had been lodged. This obligation was not to be affected by the fact that,

  1. (1) Asylum could be or could have been sought in another State;

  2. (2) The asylum seeker had not arrived directly from the country where he alleged that he had a well-founded fear of being persecuted or had stayed in other countries during his journey to the State where the request was formulated;

  3. (3) The asylum seeker had not complied with a requirement that a request be submitted within a specified period.130

This rule was subject to a number of exceptions.131 A State party was not obliged to examine an asylum request where the asylum seeker was authorized to proceed (p.27) to or return to the territory of another State party and reside there on a permanent basis.132 Secondly, the State where the asylum request was lodged was not obliged to examine it where there existed ‘strong links’ with another State party.133 The existence of strong links was determined on the basis of different elements. The first related to the legal presence of close relatives in another State party. The second was based on the fact that the asylum seeker was authorized to exercise a gainful activity in another State party, other than on a purely temporary basis, and was not subject to an expulsion order in that State party. The draft further provided for a residual provision where other strong links than those referred to existed.134

The third exception to the basic rule was subject to substantial modifications throughout the discussions. The 1982 draft provided that the fact that the applicant had stayed legally for at least six months in the territory of another State party would be regarded as evidence of strong links, but the Committee could not agree on this clause.135 Following a suggestion by the Swedish expert, the later versions contained a separate Article which would apply also in case of illegal stay.136 The State which was responsible in these cases would then be obliged to admit or readmit the asylum seeker and to examine his/her claim, provided the request of (re)admission was sent within a certain time limit.137 Where the different criteria applied simultaneously to different States, there was a hierarchy in the criteria which would be first applied,138 and in any of these cases, the wishes of the asylum seeker would be taken into account.139

The draft also provided that the obligations arising out of the agreement were not to be affected by the application of readmission agreements, to which the State was also a party,140 on the ground that the latter were not expressly designed for refugees and asylum seekers.141 In addition, there was a consultation clause in cases of difficulties of implementation or interpretation of the agreement.142

(p.28) Serious divergences nevertheless appeared throughout the negotiations. Experts disagreed on the fundamental question of the jurisdictional link: some regarded the existence of close links as the key criterion, while the period of stay or residence would only constitute a presumption of close links which could be rebutted.143 As it was acknowledged that the concept of protection elsewhere had different levels of acceptance and could be understood either as asylum granted elsewhere or as permission to stay elsewhere, suggestions were made to limit the right not to examine an asylum request to the case where links existed with another contracting State.144

The Scandinavian and Benelux countries proposed an ‘en route clause’, ie that a stay of more than 30 days was sufficient to exclude the responsibility of the State where the claim had been lodged.145 Other participants pointed out that this did not constitute a sufficient indication of a connection with the country,146 or questioned the length of time chosen.147 Participants also discussed whether a period of illegal stay could found the responsibility of a State. It was argued that one could not impose an obligation on States for a situation that it did not allow and of which it was unaware,148 and that, in order to prevent orbit situations, it would be important to take into consideration the ‘genuine prospect applicants for asylum had of being readmitted to the territory of the State not Party to the Agreement’.149 In the end problems of evidence precluded the inclusion of illegal stays as one of the criteria for responsibility allocation.

Finally, some States attached importance to the fact that the agreement would provide for the possibility to return an asylum seeker to a State not party to the agreement.150 The rationale of such an approach was that otherwise, it would discourage States from signing the agreement.151 As noted by the Secretariat, this would, however, create uncertainties as to the existence of effective protection and it was advised that the convention should not cover such situations.152

Resistance to the first CAHAR draft was so strong that discussions were suspended in 1984.153 Within the Council of Europe, as in the United Nations, divisions appeared between countries which hoped to see the ‘first asylum practice’ (p.29) being recognized in an international instrument, and those which had not adopted such practice and feared that a convention would limit their discretionary power and that, as a result, they would have to accept a higher number of asylum seekers on their territory.154

On the basis of these discussions, CAHAR decided to prepare a study on the country of first asylum, in order to help clarify the contentious points which had been raised during the negotiations.155 While experts were encouraged to reduce the number of their objections in order to have the original draft adopted with minor amendments, several alternative solutions were also put forward: the conclusion of an agreement for a limited length of time to fully measure the consequences of its implementation, the setting up of a consultation procedure in case an important increase of asylum claims in one of the State parties occurred, or the participation of a greater number of States in the agreement, accompanied by a web of bilateral readmission agreements.156

Discussions resumed on a different basis two years later and in 1988, CAHAR adopted a new text which was submitted to the Committee of Ministers.157 The second draft bore much resemblance to the system of responsibility allocation set out in chapter VII of the Schengen Implementing Convention and in the Dublin Convention.158 This constituted a paradigmatic shift, since responsibility was going to be based on the first entry of the asylum seeker in one of the State parties, whether legal or illegal.159

At the beginning of the discussions, Turkey and Italy expressed their opposition to the inclusion of illegal entry as a ground for responsibility.160 There were also divergences regarding the obligation to re-admit an individual whose claim had been previously rejected between Austria, Italy, Portugal, and Spain, on the one hand, and other countries on the other, primarily Germany and the Netherlands, which considered that this obligation was in conformity with the principle of good-neighbourliness.161 A consultation mechanism was also specifically provided in cases where there was a disproportionate number of asylum seekers for which one State party would be responsible as a result of the agreement.162

(p.30) As with the two UNHCR conclusions, the difference between the first and second drafts reflects the dramatic evolution of asylum policies from the end of the 1970s to the early 1990s. Within a decade, concern about the protection of refugees and consideration for their wishes was progressively replaced by the objective of combating abusive claims and secondary movements. The late 1980s also signalled the end of the Council of Europe’s prevalence in regional cooperation on asylum and refugees, and the growing involvement of a new major regional actor in this area, the European Union, which is examined below.

1.3 The European Union

Cooperation on asylum and migration within the European Community began in the 1980s, eventually culminating with the creation of new Community competencies in these areas under the 1997 Amsterdam Treaty. These historical developments were characterized by States’ original reluctance to relinquish their prerogatives to the Community on such sensitive questions, and by the profusion of expert fora created to organize intergovernmental cooperation.163 In terms of the objectives pursued by the European Community in seeking further powers in the asylum and immigration realm, the establishment of a European political union was overshadowed by the overriding security discourse. The central narrative of European policy makers was indeed that together with criminals and terrorists, asylum seekers raised security concerns which required the adoption of compensatory measures to the abolition of checks at internal borders.164

1.3.1 The European Commission’s proposals

A normative milestone in the European Economic Community’s involvement in asylum policy was the Single European Act signed on 17 February 1986, which provided for the establishment of a single market without internal borders where the freedom of movement of capitals, goods, services, and persons would be ensured.165 The new Article 8a EC Treaty166 stated that the single market was an area without internal frontiers and set the deadline of 31 December 1992 for its completion.

(p.31) It is on the basis of these new provisions that the European Commission proposed the adoption of Community instruments on asylum and migration.167 The Commission had already prepared the ground by stating in its 1985 White Paper that the issue of free movement of persons was not exclusively economic.168 According to the Commission, the abolition of checks at internal borders was not an essential requirement of an economic single market, but had an important symbolic value in the perspective of a European political union.169 People would thus be free to move as citizens of this new Union, irrespective of whether they were acting as ‘economic agents’.170 Consequently, the Commission took the view that in the future, Member States would not be able to avail themselves of any reservation based on their domestic law in the field of asylum,171 and declared that,

… against the background of moves towards Political Union [sic], the need for a Community based on the rule of law means there must be a joint response to the general question of the right of asylum and not just to the specific aspect of the influx of asylum seekers and the abuse of procedures.172

The European Parliament shared this vision of an ‘integrated legal and social area’ in which asylum seekers would have identical rights.173 Yet, the integration process was not the only reason behind the Community’s interest in asylum policy. The Commission and the various intergovernmental bodies which worked on asylum and migration issues also regarded the strengthening of State cooperation as ineluctable in order to tackle the growing numbers of asylum seekers arriving in the region.174

(p.32) Among the various proposals put forward by the Commission during that time, the 1987 draft proposal for a directive regarding the approximation of laws in the field of asylum deserves closer analysis.175 The Commission’s justification for Community involvement in the matter was that inasmuch as free movement of persons should be effective for every person crossing an internal border, the Community should be competent with respect to all matters necessary for the realization of the objectives set out in Articles 3 and 8a EC Treaty, including some aspects of asylum and refugee law, despite the absence of any specific treaty provision granting competence to the Community on these issues.176

Title II of the draft proposal, which dealt with the determination of the State responsible for examining an asylum claim was, mutatis mutandis, similar to chapter VII of the Schengen Implementing Convention and the Dublin Convention. The main criteria were the granting of a visa or a residence permit by one of the Member States and the presence of a family member in a State party.177 The possibility of departing from these rules was also provided.178 Two principles that appeared neither in the Schengen nor the Dublin conventions were particularly interesting. First, once their status was recognized, refugees would be able to travel throughout the European Community.179 Secondly, the proposal included the establishment of a consultative committee that would issue non-binding recommendations,180 to ensure the harmonized application of the directive and of the procedures for recognizing refugee status in each of the Member States, which, the Commission insisted, was absolutely indispensable to the efficient and fair operation of the system.181

In the end, this initiative was rejected on the ground that the Community lacked competence to adopt instruments in this area and because of Member States’ reluctance to give up sovereignty in these matters.182 The United Kingdom, in particular, made it clear that it was completely opposed to the Commission’s suggestion that free movement would apply equally to third country nationals residing in the Member States, and that Article 8 EC Treaty could constitute a proper legal basis for the Commission’s proposals.183 At that point, the only way forward was to leave aside the legal controversy on the scope and effect of Article 8 (p.33) EC Treaty, and concentrate on the attainment of concrete results, through the adoption of non-community instruments by intergovernmental fora.184

This approach was advocated in the ‘Palma Document’ elaborated in 1989 by the ‘Co-ordinators Group’, which coordinated the work of several intergovernmental groups created by Member States outside the realm of the European Community, such as the Ad Hoc Immigration Group, the Schengen, and the Trevi groups.185 The Palma Document conveyed the view of Member States that the abolition of checks at internal borders necessitated the implementation of compensatory measures to avoid the ‘negative’ effects which the opening of frontiers would bring about.186 Under this approach, the movement of asylum seekers and legal and illegal immigrants, on the one hand, and of terrorists and criminals, on the other, were conceptually blurred as negative consequences of the abolition of borders.187 Cooperation in the field of asylum was thus seen as part of the broader policy goal of enforcing stricter controls at the external borders of the European Community.188 In this context, a system allocating responsibility for asylum claims was regarded as one of the essential compensatory measures that had to be adopted, whereas issues such as the approximation of laws on asylum and the recognition of refugee status were only ‘desirable’ measures with a lower degree of urgency.189

1.3.2 The 1985 Schengen Agreement and the 1990 Implementing Convention

Eight months before the conclusion of the Single European Act, several Member States expressed their willingness to go forward in the creation of a single area in which EC citizens and third nationals alike would move freely.190 France, Germany, and the Benelux countries signed on 14 June 1985 in Schengen an Agreement on the Gradual Abolition of Checks at their Common Borders.191 This initiative was (p.34) presented at the time as the first stage towards the creation of the common territory of a supranational entity.192 In fact, Italy, Portugal, Spain, Greece, and Austria later adhered to the instruments,193 along with Sweden, Finland, and Denmark,194 while in 1999 a cooperation agreement was signed with Iceland and Norway, around the same time as the entry into force of the Amsterdam Treaty, which provided for the integration of the Schengen acquis into the EU framework.195 Switzerland was the last non-EU Member State to join the Schengen system.196

The 1985 text distinguished between measures applicable in the short term and in the long term. These included the adoption of measures to approximate visa policy, to combat drug trafficking and illegal immigration, to reinforce police and customs cooperation, to introduce a right of pursuit for police officers and to improve cooperation in the fields of international judicial assistance and extradition. The 1985 agreement did not mention, however, measures to determine the responsibility of a State for examining an asylum request, which were contained in chapter VII of the Implementation Convention of 19 June 1990.197

The Schengen Convention was conceived as a ‘laboratory’ for the European Community, since it enabled some Member States to achieve a Community objective, without transferring competence to the Community institutions.198 Linkages with the EC appeared throughout the text. Only Member States of the Community could become parties to the Convention. Aliens were defined as ‘any person other than a national of a Member State of the European Communities’.199 Finally, Article 134 provided that the measures adopted should comply with EC law,200 and conventions concluded by the Member States of the European Communities (p.35) with a view to the completion of an area without internal frontiers were to replace the Convention’s provisions on the same subject.201

1.3.3 The elaboration of the Dublin Convention

The Dublin Convention of 1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities essentially replicated the substance of chapter VII of the Schengen Implementation Convention and was drafted by the Ad Hoc Immigration Group, an intergovernmental group created in 1986 and working under the authority of the Co-ordinators’ Group.202 This forum focused on the relationship between free movement of persons and internal security.203 It was divided into six sub-groups: admission/deportation, visas, forged documents, asylum, external borders, and refugees from the former Yugoslavia.204

Among the other instruments drafted by the Group, the Council of the European Union adopted in 1992 a Resolution on manifestly unfounded applications for asylum,205 a Resolution on a harmonized approach to questions concerning host third countries,206 as well as the Conclusions on countries where there is generally no serious risk of persecution.207 The asylum sub-group also worked on a Convention establishing a system of digital fingerprinting of asylum seekers, the Eurodac Convention, which was eventually adopted after the entry into force of the Treaty of Amsterdam, in the form of a Regulation.208 A convention on the crossing of external borders was also elaborated by the Ad Hoc Immigration Group, but was never signed due to a dispute between Spain and Britain on sovereignty over Gibraltar.209

(p.36) With the entry into force of the Treaty of Maastricht of 1992, the 1990 Dublin Convention together with the other acts prepared by the group became part of the European Union’s cooperation in justice and home affairs, the so-called ‘third pillar’, by reference to the ‘temple’ structure of the Treaty, the second pillar dealing with common foreign and security policy, while the first pillar consisted of core Community competencies in the economic, social, and environmental areas. Under the provisions of the third pillar, cooperation on asylum and immigration was still of an intergovernmental nature, yet handled by the Community institutions.210

1.3.4 The Amsterdam Treaty and the ‘Communitarisation’ of visas, asylum, immigration, and other policies related to the movement of persons

The Amsterdam Treaty, which entered into force on 1 May 1999,211 reflects in its intricate structure, the lack of common vision for the Union, particularly in the field of justice and home affairs. The document contains three different types of flexibility clauses, seven additional protocols and seventeen declarations of the Conference annexed to the Final Act, as well as four declarations of the Member States ‘acted’ by the Conference,212 which only exacerbated the common perception that European treaties are an indecipherable legal maze.

1.3.4.1 ‘An area of freedom, security and justice’

Contrary to a common Community technique which had proved successful in the past, the Maastricht Treaty did not define general objectives which the Union would seek to achieve in the field of justice and home affairs.213 Neither was there (p.37) any precise timetable regarding the measures to be adopted by the Union. Article 2 TEU as modified by the Treaty of Amsterdam establishes that free movement of persons and its compensatory measures with respect to external borders, asylum, immigration, and the fight against crime are implemented in order to ensure that the Union remains and develops as ‘an area of freedom, security and justice’.214 The emphasis on the relationship with the question of fundamental rights and the respect for the rule of law is also strong,215 Article 7 TEU constituting the ultimate guarantee of compliance with these fundamental principles.216 Far more contentious, however, was the adoption of the so-called ‘Asylum Protocol’, which provides that each Member State of the European Union shall be regarded as a ‘safe country of origin’ by other Member States. Not only is this document of dubious legal value, but it is also regarded by many commentators as contradicting the clear terms of Article 3 CSR, which prohibits discrimination on grounds of, inter alia, country of origin.217

With respect to justice and home affairs, the failings of the third pillar decision-making procedure ensured large support for the ‘communitarisation’ of most of the third pillar policies, except for police and judicial cooperation in criminal matters.218 Accordingly, a new title (Title IV), on ‘Visas, Immigration, Asylum and other Policies related to the Free Movement of Persons’ was introduced in the EC Treaty. The Treaty of Amsterdam also provided for the integration of the Schengen agreements and of their ‘acquis’ into the European Union framework, already foreseen in the final provisions of the 1990 Implementing Convention.219 The objective was to adopt a more transparent and democratic institutional framework in the field of compensatory measures to the free movement of persons, while preserving the achievements of Schengen cooperation.220

As regards decision-making procedures under Title IV ECT, Member States agreed on a transitory period of five years, during which the Council would adopt the measures set out in Article 63 ECT by unanimity on a proposal from the (p.38) Commission or a Member State and after consulting the European Parliament.221 The application of the co-decision procedure, which provides for the joint adoption of legislation by the Council and the European Parliament, was actually introduced earlier under Article 67(5) ECT by the Nice Treaty as a derogation to the rules applicable to the transitional period. With respect to asylum matters, Article 67(5) stated that co-decision shall be applicable during the transitional period, except with respect to burden-sharing, and ‘provided that the Council has previously adopted, in accordance with paragraph 1 of this article, Community legislation defining the common rules and basic principles governing these issues’.222 This provision became obsolete in 2004, when the Council decided unanimously to apply the co-decision procedure and qualified majority voting for the adoption of future measures in the fields of internal border controls, external border controls, freedom to travel, asylum, burden-sharing, and irregular migration.223

The competence accorded to the Court of Justice of the European Communities to rule on the validity and interpretation of measures adopted in accordance with Title IV224 probably constitutes the most significant advance chartered by the Amsterdam Treaty. Yet, this progress must be tempered by the fact that Community procedures were slightly modified and that the full scope of preliminary ruling procedures is not applicable to measures adopted under Title IV.225

1.3.4.2 Provisions on asylum, refugees, and displaced persons (Article 63.1 and 2 ECT): harmonizing asylum laws in the European Union

Article 63 ECT lays down the measures which the Council shall adopt within a period of five years after the entry into force of the Amsterdam Treaty. In the asylum field, these measures include:

  1. (1) The criteria and mechanisms for determining which Member States is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States;

  2. (p.39)
  3. (2) Minimum standards on the reception of asylum seekers in Member States;

  4. (3) Minimum standards with respect to the qualification of nationals of third countries as refugees;

  5. (4) Minimum standards on procedures in Member States for granting or withdrawing refugee status.226

Article 63.2 ECT also provides for the adoption of measures on minimum standards for temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection (paragraph a) and of measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons (paragraph b). Measures defined under Article 63.2 b) ECT may be adopted after the transitory period of five years from the date of the entry into force of the Treaty.227

The fact that the Union is to define only minimum standards indicates that under the Amsterdam Treaty, Member States have retained a shared competence in the asylum field.228 In policy terms, while the first sentence of Article 63 ECT reaffirms Member States’ commitment to the Refugee Convention and its 1967 Protocol, the focus remains unchanged: restricting access to procedures and discouraging ‘abusive’ asylum seekers.229 Moreover, the number of flexibility clauses and other exceptions has exponentially increased, and created a legal framework of unprecedented complexity and opacity.

So far, the outcomes of the harmonization process have been faithful to these goals, and particularly alarming from a protection perspective. While the Commission succeeded in meeting the objective, reiterated in the Tampere European Council Conclusions, of adopting the core legislative instruments of asylum policy in accordance with Article 63.1 ECT,230 Member States could only (p.40) agree on the lowest common denominator, above all where protection standards were at stake.231 The result is that, besides the fact that some of their provisions blatantly disregard international law, the application of EU asylum instruments has also proved terribly difficult and significant differences continue to exist between asylum processes in the Member States, leading, for instance, to serious discrepancies in the assessment of risk in specific countries of origin.232 Such concerns are particularly serious with respect to the two core instruments that will be examined in more detail in the present study, namely, the asylum procedures Directive and the Dublin Regulation.

The next phase of ‘communitarisation’ will probably be even more challenging. The Hague Programme, adopted by the European Council on 5 November 2004, provides for a final evaluation of the transposition and implementation of the asylum instruments adopted during the first harmonization phase.233 It also sets the objective of establishing a common asylum procedure and uniform status for (p.41) those who are granted refugee protection or subsidiary protection and requests the Commission to submit proposals for second phase instruments to the Council and the European Parliament with a view to their adoption before the end of 2010.234 The Commission subsequently issued a Green Paper on the future Common European Asylum System, which acknowledges some of the shortcomings of the ‘first phase’ asylum instruments while pledging to fill existing gaps in the current asylum acquis and pursue harmonization based on high standards.235

As has been the case since the start of the Community’s involvement in asylum policy, the tension between protection objectives and restrictive measures remains more than ever present. While proclaiming the importance of a uniform status and harmonized system of protection, The Hague Programme is more ‘security-driven’ than ever before, emphasizing border controls and the fight against illegal immigration, and redefining the concept of ‘strengthening freedom’ by including therein border checks or biometrics.236 The prevailing objective is to pursue and reinforce the approach consisting in removing or keeping asylum seekers and refugees as far as possible from the outer borders of the European Union.237

1.3.4.3 The British/Irish and Danish ‘opt-outs’

As was explained above, the United Kingdom never accepted that the implementation of Article 8a EC Treaty could lead to the abolition of checks at internal borders, and that it would enable third country nationals to move freely within the territory of the Member States of the European Community. It came then as no surprise that, during the negotiations leading to the conclusion of the Amsterdam Treaty, the UK Delegation stated that they would not endorse the ‘communitarisation’ of justice and home affairs.238

(p.42) Two protocols concern the United Kingdom and Ireland. The first text allows the United Kingdom to maintain checks at its frontiers notwithstanding Article 14 EC Treaty.239 Since Ireland takes part in a ‘Common Travel Area’ with the United Kingdom, the provisions of the Protocol apply to Ireland as well. The second Protocol provides that the United Kingdom and Ireland ‘shall not take part in the adoption of measures adopted under Title IV’.240 However, they may still be able to ‘opt in’ on a specific measure adopted under Title IV,241 and the Protocol even provides that Ireland may notify the President of the Council that it wishes to ‘opt in’ on the entire Title IV.242 Ireland has indicated indeed that it signed the Protocol on Article 14 ECT because of the existence of the Common Travel Area with the United Kingdom and ‘that it intends to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland to take part in the adoption of measures pursuant to Title IIIa243 of the Treaty establishing the European Community to the maximum extent compatible with the maintenance of its Common Travel Area with the United Kingdom’.244

The motives for the Danish ‘opt-out’ were different. Following the negative vote of the Danish electorate on the ratification of the Maastricht Treaty, the 1992 Edinburgh summit acknowledged the specific situation of Denmark. The Danish government was extremely wary of further European integration attempts, in particular in the realm of justice and home affairs. The Protocol annexed to the Treaty provides that Denmark will not take part in the adoption of the measures pursuant to Title IV.245 Denmark will be able to decide whether it will implement the Council decision on the ‘Schengen acquis’, but will be bound by it under public international law as opposed to EC law.246 In accordance with its constitutional provisions, Denmark may decide to apply fully the measures which have been adopted within Title IV EC Treaty,247 but no power of ‘opt-in’ on specific measures is provided.

It still remains to be seen whether the implementation of these protocols will raise the inextricable legal and political difficulties that were predicted, such as the development of distinct ‘acquis communautaires’. Ireland and the United Kingdom (p.43) have thus far been actively involved in the asylum legislative process. In fact, the United Kingdom has been even keener than Ireland to take part, having adopted the five core asylum instruments,248 as well as the Eurodac Regulations249 while Ireland actually opted out of the temporary protection Directive and of the reception Directive.250 The situation of Denmark remains particularly peculiar, since it can only ‘opt in’ on measures which build upon the Schengen ‘acquis’ and is bound by it as an obligation of public international law.251

1.3.4.4 The next stage: the Lisbon Treaty

While all of the asylum harmonization legislative instruments were eventually adopted within the deadline set by the Amsterdam Treaty, opening the way for the ‘second phase’ of harmonization, major challenges still lie ahead. The full ratification of the Lisbon Treaty would certainly ensure greater clarity and coherence in institutional terms, however, following the rejection of the Treaty by the Irish electorate, the process is likely to be stalled for some time.252

This has important implications for asylum policies, given that the Lisbon Treaty offered similar innovations in the asylum realm as the draft Constitutional Treaty, which had to be scrapped after its rejection by the French and Dutch electorate,253 by providing for the application of the full range of standard EC judicial remedies and decision-making procedures to measures adopted pursuant to Title IV.254 Most importantly, the Lisbon Treaty was also due to set the stage for the next phase of harmonization. Article 63 requires the adoption of a uniform status for individuals having been granted international protection, uniform standards on procedures and reception, as well as the adoption of a common system of temporary protection.255 The inclusion of a new article providing that policies on border checks, asylum, and immigration and their implementation ‘shall be governed by the principle of solidarity and fair sharing of responsibility … between the Member States’, is also an important development.256

(p.44) 1.4 Conclusion

This historical overview shows that while international cooperation on refugee issues originally focused on protection and humanitarian objectives, the 1970s saw the emergence of an increasingly security-driven discourse which led to the adoption by States of wide-ranging restrictions against asylum seekers and refugees. The protection of refugees’ rights was thus progressively undermined by ‘containment’ policies devised on both a unilateral and multilateral basis. In particular, it became commonplace for States to consider that they could deny a substantive examination of an application for asylum on the sole fact that protection could be found elsewhere.

The 1977 UN Conference was the last attempt to regulate territorial asylum at the international level, its failure signalling the beginning of a ‘protection crisis’. This evolution was reflected in the discussions taking place within the Executive Committee of the UNHCR and the Council of Europe. Important developments also occurred as various international and supranational institutions became prominent players in the refugee and immigration realms. In particular, the end of the 1980s witnessed the rise of the European Community as the major regional actor in the asylum field. Since the entry into force of the Treaty of Amsterdam in 1999, asylum and migration policies have been subject to the Community decision-making process and to judicial supervision by the European Court of Justice. While this has ensured greater openness and transparency, the coherence and clarity of the current legal framework still leaves much to be desired. The normative instruments adopted in the first phase of the asylum harmonization process have indeed raised multiple concerns from a refugee protection perspective. This is specifically the case of the provisions on the safe third country and of the Dublin Regulation, examined in Chapters 2 and 3.

Notes:

(1) Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 150 (hereafter, CSR or Refugee Convention). Protocol relating to the Status of Refugees of 31 January 1967 (1967) 606 UNTS 267 No. 8791.

(2) M Bettati, L’asile politique en question (Presses universitaires de France, Paris 1985) 33.

(3) Ibid, 33.

(4) See The Arrangement with Regard to the Issue of Certificates of Identity to Russian Refugees of 5 July 1922 (1922) 13 LNTS 237 No. 355; Plan for the Issue of a Certificate of Identity to Armenian Refugees of 31 May 1924 LoN Doc C.L.72 (a) 1924; Arrangement Relating to the Issue of Identity Certificates to Russian and Armenian Refugees of 12 May 1926 (1929) 89 LNTS 47 No. 2004; Arrangement Concerning the Extension to Other Categories of Refugees of Certain Measures taken in favour of Russian and Armenian Refugees of 30 June 1928, which extended international legal protection to Assyrians, Assyro-Chaldeans, and Turks ‘Friends of the Allies’, (1929) 89 LNTS 63 No. 2006. For an overview of these historical developments, see J C Hathaway, ‘The Evolution of Refugee Status in International Law: 1920–1950’ (1984) 33 ICLQ 348, 350–7; for a description of the specific rights granted, see A Grahl-Madsen, ‘The Emergent International Law Relating to Refugees’, in The Refugee Problem on Universal, Regional and National Level (Institute of Public International Law and International Relations, Thessaloniki 1987) 163, 178.

(5) Plan for the Issue of a Certificate of Identity to Refugees from the Saar of 24 May 1935 (1935) LoN Official Journal 633 No. 5393.

(6) Provisional Arrangement Concerning the Status of Refugees coming from Germany of 4 July 1936 (1936–1937) 171 LNTS 75 No. 3952; Convention Concerning the Status of Refugees coming from Germany of 10 February 1938 (1938) 192 LNTS 59 No. 4461.

(7) Council Resolution on Refugees from Sudetenland of 17 January 1939 (1939) 20 LoN Official Journal 73.

(8) Additional Protocol to the Provisional Arrangement and to the Convention Concerning the Status of Refugees Coming from Germany of 14 September 1939 (1939) 198 LNTS 141 No. 4634.

(9) Convention Relating to the International Status of Refugees of 28 October 1933 (1935–1936) 159 LNTS 199 No. 3663.

(10) L Holborn, Refugees: A Problem of Our Time, The Work of the United Nations High Commissioner for Refugees, 1951–1972 (Scarecrow Press, Metuchen 1975) Vol I, 15.

(11) Bettati, n 2 above, 38; Holborn, n 10 above, 16–17; Grahl-Madsen, n 4 above, 180.

(12) Hathaway, n 4 above, 351.

(13) Holborn, n 10 above, 12. See also G S Goodwin-Gill, ‘The Politics of Refugee Protection’ (2008) 27 RSQ 8, 11–12.

(14) Holborn, n 10 above, 14; G Melander, ‘Further Development of International Refugee Law’, in The Refugee Problem on Universal, Regional and National Level (Institute of Public International Law and International Relations, Thessaloniki 1987) 473, 474.

(15) G Jaeger, ‘Les Nations Unies et les réfugiés’ [1989] RBDI 18, 24.

(16) Jaeger, n 15 above, 25.

(17) Grahl-Madsen, n 4 above, 181.

(18) Jaeger, n 15 above, 36.

(19) G S Goodwin-Gill and J McAdam, The Refugee in International Law (3rd edn, Oxford University Press, Oxford 2007) 18, 423; Jaeger, n 15 above, 37.

(20) V Türk, Das Flüchtlingshochkommissariat der Vereinten Nationen (UNHCR) (Dunckler & Humblot, Berlin 1992) 15.

(21) GA Res 62 (I), 15 December 1946.

(22) Jaeger, n 15 above, 41.

(23) Goodwin-Gill and McAdam, n 19 above, 424–5; Jaeger, n 15 above, 46.

(24) Goodwin-Gill and McAdam, n 19 above, 425.

(25) Para 5 of the Statute, annexed to UNGA Res 428 (V), 14 December 1950.

(26) Jaeger, n 15 above, 50.

(27) See UNGA Res 58/153, 24 February 2004, para 9.

(28) The most updated information is available at: <http://www.unhcr.org/statistics.html>; UNHCR, Annual Programme Budget 2007, UN Doc A/AC.96/1026, 1 September 2006, para 43.

(29) Para 20 of the Statute; UNHCR, Annual Programme Budget 2007, n 28 above, para 14.

(30) Para 13 of the Statute.

(31) Para 4 of the Statute.

(32) Para 6(B) of the Statute.

(33) Note also that the definition does not provide for membership to a particular social group and that the mandate also covered specific categories of refugees whose international protection was provided under the various inter-war arrangements; see para 6(A) of the Statute.

(34) See para 1 of the Statute. A more detailed examination of UNHCR’s function of international protection will be carried out in Chapter 7.

(35) See UNHCR, Note on International Protection, UN Doc A/AC.96/799, 25 August 1992, para 14–16; Jaeger, n 15 above, 54–7; P Kourula, Broadening the Edges, Refugee Definition and International Protection Revisited (Nijhoff, Boston 1997) 177–83.

(36) See UNGA Res 1166 (XII) on international assistance to refugees within the mandate of the UN, 26 November 1957, para 5; J Sztucki, ‘The Conclusions on the International Protection of Refugees Adopted by the Executive Committee of the UNHCR Programme’ (1989) 1 IJRL 285. The Executive Committee now comprises 76 States and holds an annual plenary session; on UNHCR and the Executive Committee; see Chapter 7.

(37) Sztucki, n 36 above, 303; JC Hathaway, The Rights of Refugees under International Law (Cambridge University Press, Cambridge 2005) 113–14.

(38) Sztucki, n 36 above, 307; Jaeger, n 15 above, 60.

(39) P Weis, ‘Legal Aspects of the 1951 Geneva Convention’ (1953) 30 BYIL 478, 480.

(40) A Grahl-Madsen, The Status of Refugees in International Law (Sijthoff, Leiden 1966) Vol I, 333.

(41) Jaeger, n 15 above, 79. Art 1.B(1) of the Refugee Convention specifies that ‘events occurring before 1 January 1951’ shall be understood to mean either ‘events occurring in Europe before 1 January 1951’ or ‘events occurring in Europe or elsewhere before 1 January 1951’. As of 1 October 2008, the Refugee Convention and/or its 1967 Protocol had been signed by 147 States.

(42) Goodwin-Gill and McAdam, n 19 above, 524.

(43) A Grahl-Madsen, The Status of Refugees in International Law (Sijthoff, Leiden 1972) Vol II, 224.

(44) Article I(2) Convention Governing the Specific Aspects of Refugee Problems in Africa, 10 September 1969 (1976) 1001 UNTS 45 No. 14691; See Melander, ‘Further Development of International Refugee Law’, n 14 above, 483–6; E Arboleda, ‘Refugee Definition in Africa and Latin America: The Lessons of Pragmatism’ (1991) 3 IJRL 185; J C Hathaway, The Law of Refugee Status (Butterworths, Toronto 1991) 17.

(45) Para 3 of the Cartagena Declaration on Refugees (19–22 November 1984) OAS/Ser.L/V/II.66, Doc. 10, rev.1, p 190–3 reprinted in UNHCR, Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons Vol II (UNHCR, Geneva 1995) 206.

(46) Recommendation 817 (1977) adopted on 7 October 1977 on certain aspects of the right of asylum adopted by the Parliamentary Assembly of the Council of Europe reprinted in Ad Hoc Committee of Experts on the legal aspects of territorial asylum, refugees, and stateless persons (CAHAR), Selected Texts Concerning Territorial Asylum and Refugees Adopted within the Council of Europe, CAHAR (98) 6, March 1998, Vol II, 18, para 11.

(47) Goodwin-Gill and McAdam, n 19 above, 29.

(48) See M Kjaerum, ‘Temporary Protection in Europe in the 1990s’ (1994) 6 IJRL 444; K Kerber, ‘Temporary Protection: An Assessment of the Harmonisation of Policies of European Union Member States’ (1997) 9 IJRL 453; J McAdam, ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ (2005) 17 IJRL 461; J McAdam, Complementary Protection in International Refugee Law (Oxford University Press, Oxford 2007); Council Directive 2004/83 EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals as refugees or as persons who otherwise need international protection and the content of the protection granted (hereafter, qualification Directive) [2004] OJ L304/12.

(49) See A M Kamanda, Territorial Asylum and the Protection of Political Refugees in Public International Law (Carnegie Endowment for International Peace/UNHCR 1971) 3–34; S P Sinha, Asylum and International Law (Nijhoff, The Hague 1971) 3–20; L B Koziebrodski, Le Droit d’asile (Sijthoff, Leyden 1962) 13–24; Grahl-Madsen, The Status of Refugees in International Law Vol I, n 40 above, 9–12; F Morgenstern, ‘The Right of Asylum’ (1949) 26 BYIL 326; P Weis, ‘The United Nations Declaration on Territorial Asylum’ (1969) 7 Canadian Ybk of Intl L (University of British Columbia Press, Vancouver) 92, 118–20; Melander, ‘Further Development of International Refugee Law’, n 14 above, 476–83.

(50) Article 1, Institute of International Law, Bath Session, Annuaire 1 (1950) 167.

(51) In Germany, see J Krais and C Tausch, Asylrecht und AsylVerfahren, Rechtsstellung der Flüchtlinge, Anerkennungsverfahren, Rechtschutz Mit praktischen Materialen (Beck, München 1995) 1–14; in France, see C Norek and F Doumic-Doublet, Le droit d’asile en France (Presses universitaires de France, Paris 1989) 35–8.

(52) Article 14 Universal Declaration on Human Rights GA Res 217 (III), 10 December 1948; Arts 1–4 of the Caracas Convention on Territorial Asylum, 28 March 1954 OAS Official Records, OEA/Ser.X/1 reprinted in UNHCR, Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons (UNHCR, Geneva 1995) Vol II, 185; Art II of the 1969 OAU Convention, n 44 above; Resolution (67) 14 of the Committee of Ministers of the Council of Europe on Asylum to Persons in Danger of Persecution of 29 June 1967 reprinted in CAHAR, Selected texts concerning territorial asylum and refugees adopted within the Council of Europe, CAHAR (98) 6 March 1998, Vol I, 32. Note, however, that the Charter of Fundamental Rights of the European Union proclaimed on 7 December 1999 by the president of the European Commission, the president of the European Parliament, and the president of the Council of Ministers [2000] OJ C364/1, recognizes under Art 18 a right ‘to be granted asylum with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community’. On the right to seek and enjoy asylum, see Chapter 5, Section 5.2.1.

(53) Para 3 of the 1967 UN Declaration on Territorial Asylum UNGA Res 2312 (XXII), 14 December 1967; Weis, ‘The United Nations Declaration on Territorial Asylum’, n 49 above, 137–9.

(54) Goodwin-Gill and McAdam, n 19 above, 362.

(55) Recital 4.

(56) n 53 above; Goodwin-Gill and McAdam, n 19 above, 363; Weis, ‘The United Nations Declaration on Territorial Asylum’, n 49 above, 97–9.

(57) See below Section 1.2.2.

(58) Goodwin-Gill and McAdam, n 19 above, 357.

(59) Jaeger, n 15 above, 62.

(60) S Collinson, Europe and International Migration (Pinter, London 1993) 53; US Committee for Refugees, The Asylum Challenge to Western Nations, December 1984, 3.

(61) Collinson, n 60 above, 54; S Stanton Russell, C B Keely, and B P Christian, Multilateral Diplomacy to Harmonize Asylum Policy in Europe: 1984–1993 (Institute for the Study of International Migration, Washington DC, 2000) 8. For an analysis of these continuing trends, see E Feller, ‘Asylum, Migration and Refugee Protection: Realities, Myths and the Promise of Things to Come’ (2006) 18 IJRL 509, 518–20.

(62) See Report to the Parliamentary Assembly of the Council of Europe on the situation of de facto refugees by M Dankert and Forni Doc. 3642, 5 August 1975, 4; A R Zohlberg, A Suhrke, and S Aguayo, Escape from Violence, Conflict and the Refugee Crisis in the Developing World (Oxford University Press, Oxford 1989) 229; M Gibney, ‘Beyond the Bounds of Responsibility: Western States and Measures to Prevent the Arrival of Refugees’, Global Migration Perspectives Paper No. 22, January 2005, 4–5.

(63) Report on the situation of de facto refugees, n 62 above; G Loescher, Beyond Charity, International Cooperation and the Global Refugee Crisis (Oxford University Press, Oxford 1993) 93.

(64) Loescher, n 63 above, 93; Zohlberg, Suhrke, and Aguayo, n 62 above, 279.

(65) See Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons, Proposals concerning a draft convention on first asylum CAHAR (86) 8, 15 December 1986, 2.

(66) J-C Chesnais [et al.], People on the Move New Migration Flows in Europe (Council of Europe, Strabourg 1992) 59.

(67) Chesnais, n 66 above, 58. The estimated number of refugees in Europe was 676,200 in 1984 and 1,213,300 in 1989, see UNHCR, The State of the World’s Refugees 2000: Fifty Years of Humanitarian Action (Oxford University Press, Oxford 2000), annex 3, 310.

(68) On the development of containment policies, see A Shacknove, ‘From Asylum to Containment’ (1993) 5 IJRL 516; see also J C Hathaway, ‘Harmonizing for Whom? The Devaluation of Refugee Protection in the Era of European Economic Integration’ (1993) 26 Cornell Intl LJ 719, who talks of the ‘deterrent regime’ 722–6 or of ‘non-entrée policies’; see also J C Hathaway and J A Dent, Refugee Rights: Report on a Comparative Survey (York Lane Press, Toronto 1995) 13–17; M Gibney, n 62 above, 6–9.

(69) R Abeyratne ‘Air Carrier Liability and Responsibility for the Carriage of Inadmissible Persons and Refugees’ (1998) 10 IJRL 675; Council Directive 2001/51/EC Supplementing the Provisions of Article 26 of the Convention Implementing the Schengen Agreement of 14 June 1985 [2001] OJ L187/45; see also ECRE, ‘Defending Refugees’ Access to Protection in Europe’, December 2007, 28–9.

(70) K Hailbronner, ‘The Right to Asylum and the Future of Asylum Procedures in the European Community’ (1990) 2 IJRL 341, 353; ECRE, n 69 above, 26–8; Goodwin-Gill and McAdam, n 19 above, 374. For a recent analysis of the EU’s visa policies, see S Peers, EU Justice and Home Affairs Law (2nd edn, Oxford University Press, Oxford 2007) 151–65, spec 167.

(71) ECRE, n 69 above, 30.

(72) Interception has been defined as ‘the catching, turning back, diversion and escorting back of vessels before they reach coastal waters’, see R Weinzierl and U Lisson, Border Management and Human Rights: A Study of EU Law and the Law of the Sea, German Institute for Human Rights, December 2007, 22–3, available at: <http://www.statewatch.org/news/2008/feb/eu-study-border-management.pdf>. Hathaway and Dent, n 68 above, 16–17; S Legomsky, ‘An Asylum Seeker’s Bill of Rights in a Non-Utopian World’ (2000) 14 Georgetown Imm LJ 619, 626; ECRE, n 69 above, 38–43; Parliamentary Assembly of the Council of Europe, ‘Europe’s “boat-people”: mixed migration flows by sea into Southern Europe’ 11 July 2008, paras 32–42.

(73) Legomsky, n 72 above, 627; see also Jabari v Turkey, Appl. No. 40035/98, Judgment of 11 July 2000, ECHR 2000-VIII.

(74) See European Parliament, ‘Asylum in the European Union: The “Safe Country of Origin Principle”’, Working Paper, 1997; European Legal Network on Asylum, ‘The Application of the Safe Country of Origin Concept in Europe’, February 2005; C Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices: Deterrence, Deflection and the Dismantling of International Protection?’ (2005) 7 EJML 35, 39; Costello, ‘The European Asylum Procedures Directive in Legal Context’ UNHCR New Issues in Refugee Research Paper No. 134, November 2006.

(75) Hailbronner, n 70 above, 345; R Byrne, ‘Remedies of Limited Effect: Appeals under the forthcoming Directive on EU Minimum Standards on Procedures’ (2005) 7 EJML 71.

(76) O De Schutter, ‘Privation de liberté et maintien en zone internationale’ [1996] RDE 345; see also D Bigo (ed), Circuler, enfermer, éloigner: zones d’attente et centres de rétention aux frontières des démocraties occidentales (L’Harmattan, Paris 1997).

(77) See J Fitzpatrick, ‘Revitalizing the 1951 Refugee Convention’ (1996) 9 Harv Hum Rts J 229, 240–1.

(78) n 48 above.

(79) Shacknove, n 68 above, 522; K Landgren, ‘Safety Zones and International Protection: A Dark Grey Area’ (1995) 7 IJRL 443; see also Chapter 2, Section 2.3–2.4.

(80) See B Gorlick, ‘(Mis)perception of Refugees, State Sovereignty, and the Continuing Challenge of International Protection’, in A Bayefsky (ed), Human Rights and Refugees, Internally Displaced Persons and Migrant Workers: Essays in Memory of Joan Fitzpatrick and Arthur Helton (Nijhoff, Leiden 2006) 65, 71; A Triche Naumik, ‘International Law and Detention of US Asylum Seekers: Contrasting Matter of D-J- with the United Nations Refugee Convention’ (2007) 19 IJRL 661; European Parliament, ‘The conditions in centres for third country nationals (detention camps, open centres as well as transit centres and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 Member States’, December 2007, REF: IP/C/LIBE/IC/2006-181; see also the website of the Jesuit Refugee Service devoted to the detention of asylum seekers and irregular migrants in Europe, available at: <http://www.detention-in-europe.org>; J Hughes and F Liebaut, Detention of Asylum Seekers in Europe: Analysis and Perspectives (Kluwer, Dordrecht 1998). On restrictions on social benefits, see R v Secretary of State for the Home Department ex p Adam Limbuela and Tesema [2005] UKHL 66, paras 3–5.

(81) Feller, n 61 above, 515.

(82) S Castles, ‘The Migration-Asylum Nexus and Regional Approaches’, in S Kneebone and F Rawlings-Sanaei (eds), New Regionalism and Asylum Seekers (Berghahn Books, New York 2007) 25, 26, 30.

(83) G Melander, Refugees in Orbit (International University Exchange Fund, Geneva 1978) 4.

(84) CAHAR, Aide-Mémoire transmitted by the UNHCR GR/TA (76) 2, 23 November 1976, 2.

(85) Sub-Committee of the Whole on International Protection, ‘Note on Asylum: Refugees Without an Asylum Country’, UN Doc EC/SCP/12, 30 August 1979, para 2.

(86) See Appendix II ‘Refugees in Orbit: Some Constructive Proposals’ to A Grahl-Madsen, Territorial Asylum (Almquist & Wiksell Int and Oceana pub, Stokholm [etc] 1980) 95–7; P Weis, ‘Refugees in Orbit’ (1980) 10 Israel Ybk on Human Rights (Nijhoff, Dordrecht) 157, 159; Melander, Refugees in Orbit, n 83 above, 2, 107–12.

(87) G Melander, ‘Responsibility for Examining an Asylum Request’ (1986) 20 IMR 220; Melander, Refugees in Orbit, n 83 above, 2–5; Grahl-Madsen, Territorial Asylum, n 86 above, 97; E W Vierdag, ‘The Country of “First Asylum”: Some European Aspects’, in D A Martin (ed), The New Asylum Seekers: Refugee Law in the 1980s (Nijhoff, Dordrecht 1988) 73.

(88) A M J Swart, Le droit d’asile et les réfugiés—Tendances actuelles et perpectives: Les problèmes liés à l’admission des demandeurs d’asile sur le territoire des Etats membres Rapport du Colloque de droit européen, Lund 15–17 September 1986, 3.

(89) Melander, Refuges in Orbit, n 83 above, 94–106; G Melander, ‘Responsibility for the Examination of an Asylum Request, Asylum Seekers vs Quota Refugees’, in ECRE, Restrictive Asylum Policy in Europe, Report of the Seminar held in Zeist, The Netherlands, 16–18 January 1985, 1985, 19–20.

(90) Grahl-Madsen, Territorial Asylum, n 86 above, 99–100.

(91) It should be noted that Art II.5 of the 1969 OAU Convention was rather unique in its guaranteeing of temporary residence to refugees without a country of asylum, pending an arrangement for resettlement, see n 44 above. However, it was also criticized for placing too heavy a burden on first countries of asylum, Weis, Refugees in Orbit, n 86 above, 162.

(92) For an overview of those groups, see Russell, Keely, and Christian, n 61 above, 44–5.

(93) n 53 above.

(94) F Leduc, ‘L’asile territorial et la Conférence des Nations Unies de Genève Janvier 1977’ [1977] AFDI 221, 239.

(95) Report of the United Nations Conference on Territorial Asylum UN Doc A/CONF.78/12, 21 April 1977.

(96) A meeting of legal experts was first organized in 1971 at the initiative of the Carnegie Endowment; see the report by Kamanda, n 49 above; P Weis, ‘The Draft United Nations Convention on Territorial Asylum’ (1979) 50 BYIL 151, 161.

(97) UNHCR, Aide-Mémoire transmitted to the Council of Europe GR/TA (76) 2 p 5, 23 November 1976.

(98) Recommendation 773 (1976) on the situation of de facto refugees adopted on 26 January 1976 by the Parliamentary Assembly of the Council of Europe, reprinted in CAHAR, n 46 above, Vol II, 9.

(99) Vierdag, n 87 above, 76.

(100) Melander, Refugees in Orbit, n 83 above, 35.

(101) Grahl-Madsen, Territorial Asylum, n 86 above 62.

(102) Leduc, n 94 above, 240; Jaeger, n 15 above, 100.

(103) Leduc, n 94 above, 225. See, eg UN Doc A/CONF.78/C.1/SR.3, 19 January 1977 for the statements of the Soviet representative, para 4 and of the representative of Bulgaria, para 9.

(104) See for the position of Sweden, UN Doc A/CONF.78/C.1/SR.3, 19 January 1977, para 39; Leduc, n 94 above, 242.

(105) Leduc, n 94 above, 225.

(106) Ibid, 255.

(107) This view was expressed during an exchange of views on territorial asylum which took place within the Council of Europe, CAHAR (84) 6, 12 October 1984, 9, para 34.

(108) Weis, ‘The Draft United Nations Convention on Territorial Asylum’, n 96 above, 168.

(109) UNHCR, Report of the meeting of the Sub-Committee of the Whole on International Protection, UN Doc A/AC.96/571, 9 October 1979, para 11; UNHCR ExCom Conclusion No. 15 (1979) on Refugees without an Asylum Country paras (h)–(i). The growing problem of refugees in orbit was also addressed by non-governmental institutions. In 1979, the San Remo Institute for International Humanitarian Law called for the adoption of uniform criteria for defining the country responsible for examining an asylum request, see Melander, ‘Further Development of International Refugee Law’, n 14 above, 469, 497; Weis, Refugees in Orbit, n 86 above, 162–3 which reproduces the recommendations adopted by the Institute.

(110) Report of the meeting of the Sub-Committee of the Whole on International Protection, UN Doc A/AC.96/571, 9 October 1979, para 8, 11–12.

(111) Ibid, para 5.

(112) Sub-Committee of the Whole on International Protection, ‘Note on Asylum: Refugees without an asylum country’, UN Doc EC/SCP/12, 30 August 1979, para 8.

(113) Ibid, para 11; para (h) (ii) and (iii) of Conclusion No. 15.

(114) Para (iv) of Conclusion No. 15.

(115) Para (v) of Conclusion No. 15.

(116) A study was prepared by Gilbert Jaeger at the request of several members of the Executive Committee; see Sub-Committee of the Whole on International Protection, ‘Irregular Movements of Asylum-Seekers and Refugees’, UN Doc EC/SCP/40/Rev.1, 30 September 1985; see G Jaeger, Study of Irregular Movements of Asylum Seekers and Refugees (Working Group on Irregular Movements and Asylum Seekers, Geneva 1985). The question was briefly referred to in ExCom General Conclusion on International Protection No. 36 (1985) para (j); see also ExCom General Conclusion on International Protection No. 50 (1988) para (n).

(117) J Henkel, ‘Völkerrechtliche Aspekte des Konzepts des sicheren Drittstaates’, in K Barwig and W Brill (ed), Aktuelle asyltechtlichen Probleme der gerichtlichen Entscheidungspraxis in Deutschland, Österreich und der Schweiz (Nomos, Baden-Baden 1996) 141, 145.

(118) UNHCR, Note on International Protection, UN Doc A/AC.96/728, 2 August 1989, para 4.

(119) See paras (a) and (c), (h) and (i) of Conclusion No. 58 (1989).

(120) Para (a) of Conclusion No. 58 (1989).

(121) Paras (c), (d), and (e) of Conclusion No. 58.

(122) Para (f) of Conclusion No. 58.

(123) Russell, Keely, and Christian, n 61 above, 44–5.

(124) Russell, Keely, and Christian, n 61 above, 18–19. The work and activities of the Intergovernmental Consultations are not public; recent information on the IGC’s activities may be found on the website of the Australian Department of Immigration and Citizenship, available at: <http://www.immi.gov.au/about/reports/annual/2007-08/html/outcome1/administered1-2.htm>.

(125) Reprinted in CAHAR, n 52 above, Vol I, 37; see also Recommendation 817 (1977) of the Parliamentary Assembly of the Council of Europe on certain aspects of the right to asylum, n 46 above.

(126) See statement by M-O Wiederkehr in Report of the Seminar on the Responsibility for Examining an Asylum Request, 1986, 18.

(127) Four successive versions of the draft were submitted: see CAHAR (81) Misc, 24 March 1981; CAHAR (82) 10, 5 November 1982, Appendix III p 15; CAHAR (83) 36 final, 19 December 1983, Appendix VIII, 30; CAHAR (84) 4 final, 22 May 1984, Appendix V, 20.

(128) CAHAR (82) 10, 5 November 1982, Appendix III, 16.

(129) CAHAR (86) 1, 17 March 1986, para 17.

(130) Article 3 CAHAR (83) 36 final, 19 December 1983, 31 and CAHAR (84) 4, 22 May 1984, 21.

(131) Article 3 of the draft, CAHAR (84) 4, 22 May 1984, Appendix V, 21.

(132) Article 5 CAHAR (84) 4 final, 22 May 1984, Appendix V, 22. Note that the 1982 and 1983 versions separately provided that the State had no such obligation if the applicant already enjoyed asylum on the territory of another State; see Art 3 a CAHAR (82) 10, 5 November 1982, 16; Art 4 CAHAR (83) 36 final, 19 December 1983, 32.

(133) Article 4 CAHAR (82) 10, 5 November 1982, 17; Art 5 CAHAR (83) 36 final, 19 December 1983, 32; Art 6 CAHAR (84) 4, 22 May 1984, 22.

(134) Article 4 CAHAR (82) 10, 5 November 1983, 17, Art 5 CAHAR (83) 36 final, 19 December 1983, 32; Art 6.3 CAHAR (84) 4, 22 May 1984, 22.

(135) Article 4 c. CAHAR (82) 10, 5 November 1982, 17.

(136) Articles 6 and 7 CAHAR (83) 36 final, 19 December 1983, 32; Art 7 CAHAR (84) 4, 22 May 1984, 22.

(137) Article 6 CAHAR (82) 10, 5 November 1982, 18; Arts 8 and 9 CAHAR (83) 36 final, 19 December 1983, 33; Arts 8 and 9 CAHAR (84) 4, 22 May 1984, 23.

(138) Articles 6 b and 7 CAHAR (82) 10, 5 November 1982, 18; Art 10 CAHAR (84) 4, 22 May 1984, 24.

(139) Articles 6 b, 7.1, and 8 CAHAR (82) 10, 5 November 1982, 19; Art 10.2 CAHAR (84) 4, 22 May 1984, 24.

(140) Article 12 CAHAR (84) 4, 22 May 1984.

(141) CAHAR (82) 4, 15 April 1982, para 19.

(142) Article 15 CAHAR (84) 4, 22 May 1984.

(143) CAHAR (82) 4, 15 April 1982, para 22.

(144) CAHAR (84) 1, 22 February 1984, 2–3, paras 4–6.

(145) CAHAR (82) 10, 5 November 1982, 17.

(146) CAHAR (83) 20 final, 12 July 1983, 7, para 30.

(147) CAHAR (83) 20 final, 12 July 1983, para 28; CAHAR (84) 4, 22 May 1984 p 8; see also Vierdag, n 87 above, 81.

(148) CAHAR (83) 20 final, 12 July 1983, p 7, para 33.

(149) 11th meeting CAHAR (82) 4, 15 April 1982, p 5, para 23.

(150) See Art 1 CAHAR (83) 36 final, 19 December 1983, p 31; G Melander, Report of the Seminar on the Responsibility for Examining an Asylum Request, 1986, 11.

(151) Melander, Report of the Seminar on the Responsibility for Examining an Asylum Request, n 150 above, 11.

(152) CAHAR (84) 1, 22 February 1984, 4, para 7.

(153) CAHAR (84) 6, 12 October 1984, 4, para 9.

(154) Wiederkehr, n 126 above, 18.

(155) CAHAR (86) 1, 17 March 1986.

(156) CAHAR (86) 1, 17 March 1986, 7–8, paras 22–3.

(157) CAHAR (88) 9 Final Activity Report, 25 January 1989, 3, para 5.

(158) See CAHAR (88) 9 Final, 25 January 1989 Appendix I, see K Hailbronner, Möglichkeiten und Grenzen einer Europäischen Koordinierung des Einreise- und Asylrechts (Nomos, Baden Baden 1989) 29. On the system established under the 1990 Dublin Convention and its sequel, the Dublin Regulation, see Section 1.3.2. and 1.3.3 below and Chapter 3.

(159) Article 2 CAHAR (88) 9, 25 January 1989, Appendix I, 9.

(160) CAHAR (87) 4, 22 April 1987, 7–8, paras 33–5; Turkey expressed strong objections which were maintained throughout the discussions, see CAHAR (88) 9, 4, para 10 and the letter by the representative of Turkey to the Secretary of the CAHAR, CAHAR (88) 9 Final, Appendix IV, p 23.

(161) CAHAR (88) 9 Final, 25 January 1989, 5–6, paras 14–17; Hailbronner, n 158 above, 30.

(162) Article 8 CAHAR (88) 9 Final, 25 January 1989, Appendix I.

(163) For an overview of these various groups, A Cruz, ‘Schengen, Groupe ad hoc Immigration et autres instances intergouvernementales européennes’ Comité des Eglises auprès des Migrants en Europe, Document de travail No. 12, 1993, 2.

(164) On this question, see D Bigo, Polices en réseaux: l’expérience européenne (Fondation nationale des sciences politiques, Paris 1996) 101.

(165) J-P Jacqué, ‘L’Acte unique européen’ [1986] RTDE 575, 597.

(166) Article 14 of the consolidated version of the EC Treaty after the amendments introduced by the Amsterdam Treaty of 2 June 1997 [1997] OJ C340/145; on Art 8, see M Ayral, ‘La suppression des contrôles aux frontières intra-communautaires’ [1993] RMUE 13, 17.

(167) Commission Communication on the abolition of controls at internal borders COM (88) 640 final, 7 December 1988, 5–6, 17–20; R Plender, ‘Competence, European Community Law and Nationals of Non-Member States’ (1990) 39 ICLQ 599.

(168) Commission White Paper, ‘Completing the Internal Market’ COM (85) 310 final, 14 June 1985, para 25, 8.

(169) J De Ruyt, L’Acte unique européen, (2nd edn, Université Libre de Bruxelles, Bruxelles 1989) 151; Ayral, n 166 above, 16; Bigo, n 164 above, 151; J P Donner recalls that the idea was already present in the 1972 Tindemans Report, ‘Abolition of Border Controls’, in H Schermers et al. (eds), Free Movement of Persons in Europe, Legal Problems and Experiences (Nijhoff, Dordrecht [etc] 1993) 5.

(170) De Ruyt, n 169 above, 151; This new approach was first suggested by the ‘Adonnino Committee’ created by the European Council of Fontainebleau in 1984, J-C Masclet, ‘De la difficulté d’atteindre un objectif communautaire par des moyens qui ne le sont pas’, in D Bigo (ed), L’Europe des polices et de la sécurité intérieure (Complexe, Bruxelles 1992) 95, 102.

(171) European Commission, Communication to the Council and the European Parliament on the Right of Asylum, SEC (91) 1857 final, 11 October 1991, 4, para 5.

(172) Discussion Paper on the right of asylum, annexed to the Commission Communication, n 171 above, 11, para 16.

(173) EP Resolution of 12 March 1987 on the right of asylum [1987] OJ C99/167, para M.

(174) Co-ordinator’s Group, Free Movement of Persons: Report to the European Council by the Co-ordinator’s group (Palma Document) CIRC 3624/89, 9 June 1989, 2, reprinted in Appendix 5 to the 22nd report of the Select Committee of the House of Lords on the European Communities, Border Control of People: ECC Report, session 1988–89, HL Paper 90, 55; Discussion Paper on the right of asylum, n 172 above, para 16, 11.

(175) On file with the author; see also Plender, n 167 above, 601–4 for a description of this draft.

(176) W de Lobkowicz, ‘Quelle libre circulation des personnes en 1993’ [1990] Revue du marché commun 93, 98.

(177) Articles 3 to 13 of the Draft Proposal.

(178) Articles 12 and 13 of the Draft Proposal.

(179) Article 25 of the Draft Proposal.

(180) Draft Decision annexed to the Draft Proposal on the establishment of a Community Committee for Asylum Questions, 74; Plender, n 167 above, 602–3.

(181) Explanatory Memorandum of the Draft Proposal, 34–5.

(182) Hailbronner, n 158 above, 21; M-P Lanfranchi, Droit communautaire et travailleurs migrants des Etats tiers, entrée et circulation dans la Communauté européenne (Économica, Paris 1994) 57.

(183) Greece, Ireland, and Denmark supported this view; see Lanfranchi, n 182 above, 49, 54.

(184) Commission Communication on abolition of checks on persons at internal borders COM (88) 640 final 7 December 1988 4, para 14; de Lobkowicz, n 176 above, 99–100.

(185) The Co-ordinators Group was established by the Council in 1988 to speed up the work needed to meet the 1992 deadline and to ensure coherence among the different intergovernmental bodies, de Lobkowicz, n 176 above, 99–100; Russell, Keely, and Christian, n 61 above, 22–3; see also Cruz for an overview of the intergovernmental groups, n 163 above.

(186) K-P Nanz, ‘Free Movement of Persons according to the Schengen Convention and in the Framework of the European Union’, in A Pauly (ed), De Schengen à Maastricht: voie royale et course d’obstacles (European Institute of Public Administration, Maastricht 1996) 61, 69; for a critical analysis of this approach, see Donner, n 169 above, 8.

(187) Palma Document, n 174 above, 5.

(188) Palma Document, n 174 above, 6–7; M Anderson et al., Policing the European Union (Clarendon Press, Oxford 1995) 164–6.

(189) Palma Document, n 174 above, 12.

(190) Lanfranchi, n 182 above, 63–4.

(191) The 1985 Agreement is reprinted in [2000] OJ L239/13; for a historical overview of the negotiations, see L Choceyras, ‘La convention d’application de l’accord de Schengen’ [1991] AFDI 807, 808.

(192) F Julien-Laferrière, ‘L’Europe de Schengen: de la disparition des frontières aux transferts des contrôles’ [1992] Actualités législatives Dalloz 125, 126.

(193) Italy adhered on 27 November 1990, see [2000] OJ L239/63, Spain and Portugal on 25 June 1991 [2000] OJ L239/69 and 76, Greece on 6 November 1992 [2000] OJ L239/83, and Austria on 28 April 1995 [2000] OJ L239/97.

(194) Denmark, Finland, and Sweden signed the adhesion instrument on 19 December 1996 [2000] OJ L239/97, 106 and 115.

(195) Agreement of 18 May 1999 concluded by the Council of the European Union, the Republic of Iceland and the Kingdom of Norway concerning the latter’s association with the implementation, application, and development of the Schengen acquis [1999] OJ L176/36; L Bay Larsen, ‘Schengen, the Third Pillar and Nordic Cooperation’, in M den Boer (ed), The Implementation of Schengen: First the Widening, Now the Deepening (European Institute of Public Administration, Maastricht 1997) 17; K A M Bleeker, ‘Opheffing van de persoonscontroles aan de binnengrenzen tussen the Schengen-Staten en Noorwegen en Ijsland’ [1998] SEW 206. On the integration of the Schengen acquis, see Section 1.3.4.2 below.

(196) Agreement between the European Union, the European Community, and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application, and development of the Schengen Acquis, 26 October 2004 [2004] OJ L370/1.

(197) [2000] OJ L239/19.

(198) Articles 134 and 142 of the 1990 Convention; Lanfranchi, n 182 above, 65–7; J E Schutte, ‘Schengen: Its Meaning for the Free Movement of Persons in Europe’ (1991) 28 CML Rev 549, 566–7.

(199) Article 1 indent 5 of the 1990 Convention.

(200) Masclet, n 170 above, 116.

(201) Article 142 of the 1990 Convention.

(202) [1997] OJ C254/1. For an analysis of the specific criteria laid down in the Dublin Convention and the Dublin Regulation, see Chapter 3 section 3.3.

(203) Bigo, Polices en réseaux, n 164 above, 164.

(204) Russell, Keely, and Christian, n 61 above, 20.

(205) Adopted on 30 November—1 December 1992 SN 4822/92 WGI 1282 ASIM 146, reprinted in T Bunyan (ed), Key Texts on Justice and Home Affairs in the European Union (Statewatch, London 1997) Vol I, 64.

(206) Adopted on 30 November—1 December 1992 SN 4823/92 WGI 1283 ASIM 147, reprinted in Bunyan, n 205 above, 63.

(207) Ibid, 66.

(208) Council Regulation (EC) 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2000] OJ L316/1; see also Council Regulation 407/2002 of 28 February 2002 laying down certain rules to implement Regulation 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention [2002] OJ L62/1; on the Eurodac system, see Chapter 3, Section 3.4.3.

(209) D O’Keeffe, ‘The Emergence of a European immigration Policy’ (1995) 20 ELR 20, 22–3; D O’Keeffe, ‘The Convention on the Crossing of the External Frontiers of the Member States’, in A Pauly (ed), De Schengen à Maastricht: voie royale et course d’obstacles (European Institute of Public Administration, 1996) 33, 36; Plender, n 167 above, 608.

(210) See Art K of the Treaty on European Union, signed at Maastricht, 7 February 1992 [1992] OJ C191/4.

(211) Treaty of Amsterdam amending the Treaty on European Union, the Treaty establishing the European Community and certain related acts, 2 June 1997 [1997] C340/1 (hereafter, Amsterdam Treaty). A consolidated version of the EC treaties was produced in 1997 to incorporate the changes made in the Amsterdam Treaty [1997] OJ C340/173 and in 2002, following the Nice Treaty [2002] OJ C325/33 (hereafter, ECT); see S Langrish, ‘The Treaty of Amsterdam: Selected Highlights’ (1998) 23 ELR 3; J-M Favret, ‘Le Traité d’Amsterdam: une révision a minima de la “charte constitutionnelle” de l’Union européenne’ [1997] CDE 555; C W A Timmermans, ‘Het Verdrag van Amsterdam’ [1997] SEW 344; H Labayle, ‘La libre circulation des personnes dans l’Union européenne, de Schengen à Amsterdam’ [1997] L’actualité juridique—Droit administratif 923; K Lenaerts and E De Smijter, ‘Le Traité d’Amsterdam’ [1998] Journal des Tribunaux 25. On the institutional framework of justice and home affairs cooperation under the Amsterdam Treaty, see Peers, n 70 above, 20–64; S Peers, ‘From Black Market to Constitution: The Development of the Institutional Framework for EC Immigration and Asylum Law’, in S Peers and N Rogers (eds), EU Immigration and Asylum Law (Nijhoff, Leiden [etc] 2006) 19; S Peers, ‘The EU Institutions and Title IV’, in S Peers and N Rogers (eds), EU Immigration and Asylum Law (Nijhoff, Leiden [etc] 2006) 47.

(212) H Labayle, ‘Un espace de liberté, de sécurité et de justice’ (1997) 33 RTDE 814, 816.

(213) M Petite, ‘Le Traité d’Amsterdam’ [1997] RMCUE 17, 27.

(214) See Consolidated version of the Treaty on European Union incorporating the changes made by the Amterdam Treaty [1997] OJ C340/145 and by the Nice Treaty [2002] OJ C325/5 (hereafter, TEU). For a critique of this concept, see H Bribosia, ‘Liberté, sécurité et justice: l’imbroglio d’un nouvel espace’ [1998] RMUE 27, 30 et 42.

(215) Article 6.2 TEU.

(216) Article 7 TEU lays down a procedure which may lead to the suspension of voting rights in cases of serious and persistent human rights violations by a Member State. This clause was introduced in the prospect of the enlargement to Eastern and Central European countries.

(217) Protocol on Asylum for Nationals of Member States [1997] OJ C340/103; see Peers, n 70 above, 316–17;

(218) See J Monar, ‘Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation’ (1998) 23 ELR 320, 321.

(219) See Arts 134 and 142. See Section 1.3.2 above.

(220) Labayle, n 212 above, 833; see Decision 1999/435/CE concerning the definition of the Schengen acquis for the purpose of determining the legal basis for each of the provisions or decision which constitute the acquis [1999] OJ L176/1; Decision 1999/436/CE determining the legal basis for each of the provisions or decisions which constitute the Schengen acquis [1999] OJ L176/17.

(221) Article 67.1 ECT; K Hailbronner, ‘The New Title on Free Movement of Persons, Asylum and Immigration in the TEC’, in M den Boer (ed), Schengen, Judicial Cooperation and Policy Coordination, (European Institute of Public Administration, Maastricht 1997) 201, 210–11.

(222) Treaty of Nice Amending the Treaty on European Union, The Treaties Establishing the European Communities and Certain Related Acts (Nice, 26 February 2001) [2001] OJ C80/1 (hereafter, Nice Treaty). Note that a Protocol annexed to the Nice Treaty also provides a change of the voting procedure to qualified majority voting from 1 May 2004 for measures on administrative cooperation between Member States or between Member States and the Commission.

(223) See Council Decision 2004/927/EC of 22 December 2004 providing for certain areas covered by Title IV of Part Three of the Treaty establishing the European Community to be governed by the procedure laid down in Article 251 of that Treaty [2004] OJ L396/5.

(224) Article 68.1 ECT.

(225) See in this respect, Chapter 6.

(226) Article 63.1 ECT.

(227) Article 61.1 a) ECT.

(228) See J P H Donner, ‘De derde pijler en de Amsterdaamse doolhof’ [1997] SEW 370, 373.

(229) Labayle, n 212 above, 851.

(230) Tampere Conclusions adopted by the European Council on 15–16 October 1999, para 14:

‘This System should include, in the short term, a clear and workable determination of the State responsible for the examination of an asylum application, common standards for a fair and efficient asylum procedure, common minimum conditions of reception of asylum seekers, and the approximation of rules on the recognition and content of the refugee status. It should also be completed with measures on subsidiary forms of protection offering an appropriate status to any person in need of such protection. To that end, the Council is urged to adopt, on the basis of Commission proposals, the necessary decisions according to the timetable set in the Treaty of Amsterdam and the Vienna Action Plan. The European Council stresses the importance of consulting UNHCR and other international organisations.’

The five core instruments of asylum harmonization are Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (hereafter asylum procedures Directive) [2005] OJ L326/13; the qualification Directive, n 48 above; Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria for examining an asylum application lodged in one of the Member States by a third country national (hereafter, Dublin Regulation) [2003] OJ L50/1; Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (hereafter, reception Directive) [2003] OJ L31/18; Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (hereafter, temporary protection Directive) [2001] OJ L212/12.

(231) This outcome had been feared at the very early stages of the process, see J van der Klaauw, ‘Human Rights News: European Union’ (1997) 15 NQHR 365, 367.

(232) See eg Arts 14 and 17 qualification Directive dealing with exclusion from protection and Art 27.2(c) of the asylum procedures Directive. For an overview of the difficulties of ensuring a consistent interpretation of the qualification Directive throughout the Member States, see UNHCR, ‘Asylum in the European Union: A Study of the Implementation of the Qualification Directive’, November 2007; European Legal Network on Asylum, ‘The Impact of the EU Qualification Directive on International Protection’, October 2008. These shortcoming were also recognized by the Commission in its Green Paper, see European Commission, ‘Green Paper on the future Common European Asylum System’ COM (2007) 301 final, 6 June 2007 (hereafter, Commission Green Paper), 5–6; European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions: Policy Plan on Asylum, An Integrated Approach to Protection Across the EU’, COM (2008) 360 final, 17 June 2008, 5–6. To address these shortcomings, it is proposed to establish a European Asylum Support Office, which would ensure greater harmonization of country of origin analysis, see in this respect European Pact on Immigration and Asylum, Doc 13440/08, 24 September 2008 which was endorsed by EU interior ministers on 25 September 2008 and formally adopted on 16 October 2008 by the 27 EU Heads of State, available at <http://www.immigration.gouv.fr/IMG/pdf/Plaquette_EN.pdf>. For scholarly criticisms of first phase instruments, see McAdam, n 48 above, on the qualification Directive, Costello, n 74 above, and Peers, EU Justice and Home Affairs Law, n 70 above, on both the qualification Directive and the asylum procedure Directive, 334, 341–2.

(233) Hague Programme for strengthening freedom, security, and justice in the European Union as approved by the European Council at its Brussels meeting of 5 November 2004, Doc. 16054/04, 13 December 2004 (hereafter, Hague Programme); see also European Parliament, ‘Recommendation to the Council and the European Parliament on the future of the area of freedom, security and justice as well as on the measures required to enhance the legitimacy and effectiveness thereof’, P6_TA(2004)0022, 14 October 2004; Council and Commission Action Plan of 10 June 2005 Implementing The Hague Programme on strengthening freedom, security and justice in the European Union [2005] OJ C198/1, point 2.3.

(234) Hague Programme, 17–18. On the Commission’s earlier discussion on the establishment of a common asylum procedure and a uniform status see European Commission, ‘Communication from the Commission to the Council and the European Parliament: Towards a common asylum procedure and a uniform status, valid throughout the Union, for persons granted asylum’ COM (2000) 755 final, 22 November 2000; European Commission, ‘A More Efficient Common European Asylum System: The Single Procedure as the Next Step’ COM (2004) 503 final, 15 July 2004; European Commission, ‘Communication from the Commission to the Council and the European Parliament on Strengthened Practical Cooperation: New Structures, New Approaches: Improving the Quality of Decision Making in the Common European Asylum System’ COM (2006) 67 final, 17 February 2006, para 10–11.

(235) Commission Green Paper, 3; see also UNHCR, ‘Response to the European Commission’s Green Paper on the Future Common European Asylum System’, September 2007, 6–8.

(236) Hague Programme, 12; see also T Balzacq and S Carrera, ‘The Hague Programme: The Long Road to Freedom, Security and Justice’, in T Balzacq and S Carrera (eds), Security v Freedom? A Challenge for Europe’s Future (Ashgate, Aldershot 2006) 1, 5–6, 18.

(237) E Guild, ‘The Europeanisation of Europe’s Asylum Policy’ (2006) 18 IJRL 630, 645.

(238) C D Ehlermann, ‘Différenciation, flexibilité, coopération renforcée: les nouvelles dispositions du Traité d’Amsterdam’ [1997] RMUE 53, 75; H Kortenberg, ‘Closer Cooperation in the Treaty of Amsterdam’ (1998) 35 CML Rev 833, 836; A G Toth, ‘The Legal Effects of the Protocols relating to the United Kingdom, Ireland and Denmark’, in T Heukels N Blokker and M Brus (eds), The European Union after Amsterdam (Kluwer, Cambridge 1998) 227, 233.

(239) Article 1 of the Protocol (No. 3) on the application of certain aspects of Article 14 of the Treaty establishing the European Community to the United Kingdom and Ireland [1997] OJ C340/97.

(240) Article 1 of the Protocol (No. 4) on the position of the United Kingdom and Ireland [1997] OJ C340/99.

(241) Articles 3 and 4 Protocol No. 4.

(242) Article 8 Protocol No. 4.

(243) Title IV ECT.

(244) Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland.

(245) Article 1 of the Protocol on the position of Denmark (No. 5) [1997] OJ C340/101.

(246) Article 5 of the Protocol on the position of Denmark.

(247) Article 7 of the Protocol on the position of Denmark.

(248) n 230 above.

(249) n 208 above.

(250) See Recital 25 of the temporary protection Directive and Recital 20 of the reception Directive.

(251) See A Dashwood, ‘States in the European Union’ (1998) 23 ELR 201, 216.

(252) BBC, Q&A: The Lisbon Treaty, 21 November 2008, available at: <http://news.bbc.co.uk/2/hi/europe/6901353.stm.>

(253) Treaty establishing a Constitution for Europe [2004] OJ C310/1.

(254) See para 67 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (Lisbon, 13 December 2007) [2007] OJ C306/1 (hereafter, Lisbon Treaty) providing that Arts 67–9 of the Amsterdam Treaty shall be repealed.

(255) Article 63 Lisbon Treaty.

(256) Article 63b Lisbon Treaty.