How to Sink a Boat: A Legal Analysis of the Right to Seek Asylum

How to Sink a Boat: A Legal Analysis of the Right to Seek Asylum 

By Johnny Pinjuv

The news coming out of Europe in recent weeks has been disturbing for refugee advocates. In a surprisingly bold move, the European Union (E.U.) recently asked the United Nations to green light the use of force against boats containing “smuggled” immigrants on the Mediterranean Sea.[1] This disturbing news has been met with a wave of protest from advocates and scholars alike, who deplore the E.U.’s plan because it denies these immigrants their fundamental rights. Many have been left wondering, what is the legal basis for the E.U.’s actions? And could the United Nations conceivably approve such a plan? The answer to these questions may lie in the gray-area that exists in between the right to seek asylum in Article 14 of the Universal Declaration of Human Rights (“UDHR”) and the principle of non-refoulement as stated in Article 33 of the 1951 Refugee Convention (“Convention”).

Article 14 of the UDHR states, “[e]veryone has the right to seek and to enjoy in other countries asylum from persecution.” Accordingly, advocates argue that the E.U. cannot carry out its proposed plan because it will deprive individuals of this right to seek asylum. Amnesty International has gone so far as to say that the right to seek asylum is an “unassailable right, enshrined in international law;” this is not, however, entirely accurate. The UDHR, after all, is a non-binding declaration and not self-executing of any legal obligations.

Well aware of the non-binding nature of the UDHR, the E.U. will argue that, so long as it does not violate the principle of non-refoulement or the other terms of the Convention, its plan is not unlawful. The E.U. will make this argument despite the fact that the E.U.’s very own Charter of Fundamental Rights, which is binding law in the E.U’s jurisdiction, states “the right to asylum shall be guaranteed with due respect to the rules of the [Convention].” This obligation to guarantee the right to asylum, coupled with the duty of good faith in treaty implementation, should be enough to convince the E.U. that their plan is illegal. After all, stopping refugees from benefiting from the Convention is clearly not a good faith effort to implement said Convention.

Notwithstanding the duty of good faith, the E.U. explains that its plan will not violate the terms of the Convention or its own Charter of Fundamental Rights because they intend to, “rescue migrants already on the water and give those who face a credible fear of persecution back home a chance to apply for asylum in Europe.” Presumably the E.U. believes that so long as it abides by this limited interpretation of the Convention, it is also guaranteeing the “right to asylum” in accordance with its own Charter. No matter how absurd that interpretation may be, the same tactic has been used in various iterations by other countries in the past. The basic plotline remains the same—send immigrants back to the countries they came from, unless they have a credible fear. Technically, this allows countries to avoid running afoul of the principle of non-refoulement while simultaneously, at least on the surface, abiding by the terms of the Refugee Convention.

It appears as though some states simply do not believe in a right to seek asylum, and there is some evidence to support that belief. For instance, the Convention and its subsequent Protocol are notoriously silent in regard to the right to seek asylum. In fact, the sole mention of asylum in the Convention is located in the preamble, where it is recognized that, “the grant of asylum may place unduly heavy burdens on certain countries. ” Therefore, it is unclear which actors are responsible for granting asylum and whether the Convention actually grants individuals an enforceable right to seek asylum. The recent actions taken by the E.U. suggest states are not afraid to act upon this uncertainty.

Thus, the questions remains—can a binding right to seek asylum be found in international law? In other words, do individuals truly have the right to seek asylum and have that claim heard? Or is the E.U. correct in believing that it can legally thwart asylum seekers as long as it abides by the Convention? The answer does not seem to be as cut-and-dry as some human rights advocates make it seem.

This overarching question must first be distinguished from a similar, related question. The related question being; do states have a duty to hear the claims of refugees? Article 16 of the Convention grants all refugees access to courts. Additionally, UNHCR holds that refugee status attaches to an individual immediately once they fulfill the definition contained within the Refugee Convention. A state’s recognition of a refugee therefore does not bestow rights to the individual, because if the individual is in fact a refugee, they are already entitled to those rights before such recognition. It is thus logical that refugees, whether recognized as such or not, have a right to claim asylum in court, at least in those states that are parties to the Convention. This article is meant to analyze a different question. That is, whether everyone, as intoned in Article 14 of the UDHR, has an enforceable right to seek asylum. In speaking to this issue, it will be questioned whether the E.U. is truly abiding by international law with its recent request to the UN, or, alternatively, whether there is a binding obligation in international law under which the E.U. must allow everyone who wishes to seek asylum to do so, as suggested by Amnesty International.

Is There an Implied Right to Seek Asylum?

Among academics, there is some general support for the notion of an implied right to seek asylum. After all, the right to seek asylum does naturally seem to be implied by purpose of the Convention itself. Why would a country otherwise bind itself to the Convention if it intended to deny individuals the ability to seek asylum? Consequently, some commentators argue that states should not be allowed to thwart the ability to lodge an asylum claim.[2]

Professor Guy Goodwin-Gill distinguishes the “right of asylum” and “the right to seek asylum” when he argues that states have no obligation to grant individuals the “right of asylum,” yet he mentions that states cannot obstruct an individual’s “right to seek asylum.”[3] He does not cite to a codified right to seek asylum, but rather implies this right from the principle of non-refoulement. Additionally, Professor James Hathaway argues that the Refugee Convention was “predicated on the ability to invoke rights of protection,” and thus implies that there is a right to seek asylum and to be heard.[4] Neither, however, points to specific or explicit legal documents that obligate a state party to allow individuals to seek asylum.

Nonetheless, the travaux préparatoires of the UDHR does lend some credence to the theory of an implied right to be heard. Comments made by the delegate of Britain revealed that he might have recognized a right to seek asylum and have one’s claim heard. The delegate argued that the UDHR should not include the words “to be granted asylum,” and proffered the vaguer phrase, “to enjoy.” He argued that, “to be granted” implied an individual right enforceable against the state, which would violate the principle of sovereignty. Yet he did acknowledge a, “right of asylum to which persecuted persons could have recourse,” and “that the exercise of that right could not be penalized.”[5] By endorsing this “right of asylum” he seemed to endorse an individual’s right to seek asylum and not be punished for doing so.

Other delegates to the UDHR also acknowledged an implied right to be heard. The French delegate, for example, believed in a right to seek asylum and argued it was a mistake to “recognize the individual’s right to seek asylum” without imposing a correlative duty on states to grant asylum.[6] It is implied that the French delegate believed states were obligated to, in the very least, listen to asylum claims. Again, however, the legal source of this obligation was unacknowledged.

Aside from deriving the right to seek asylum from implication, one could also point to the UDHR itself for the source of the right, even though the Commission on Human Rights was clear about the UDHR’s lack of legal force. The representative of the United States and chairperson of the commission, Mrs. Eleanor Roosevelt, stated,

In giving our approval to the declaration today, it is of primary importance that we keep clearly in mind the basic character of the document. It is not a treaty; it is not an international agreement. It is not and does not purport to be statement of law or of legal obligation.

Despite its non-binding nature, some scholars argue that the UDHR, or at least portions of it, have come to embody customary law and are therefore legally-binding upon states. Dr. Paul Weiss stated in 1969 that the UDHR was an “authoritative expression of the customary international law of today in regard to human rights.” The same notion also enjoys support from other proclamations made by the United Nations. This argument is difficult to sustain, however, especially when the UDHR also includes provisions such as the right to be protected against unemployment, which can hardly be said to constitute a customary norm.

More plausibly, others argue that only certain provisions of the UDHR have become customary law. This argument indeed seems to be correct, especially with respect to some of the UDHR’s most fundamental provisions, such as the right to life. It is less clear, however, whether the right to seek asylum enjoys customary status.

In arguing that portions of the UDHR are customary law, Professor Hurst Hannum states that the UDHR has been the basis for extensive domestic and international legislation pertaining to human rights. He also mentions that the UDHR has served as an interpretive source for many domestic courts. He concludes that because of its widespread acceptance, portions of the UDHR are customary international law. Yet, does that mean that the right to seek asylum has claimed customary status?

In order for Article 14 of the UDHR to be considered customary law, there must be consistent state practice accompanied by opinio juris with respect to its provisions. As the International Court of Justice stated in its North Sea Continental Shelf Cases, “not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a subjective element.”

How does a Declaration Become Customary Law?

In North Sea Continental Shelf Cases, the ICJ determined that a conventional rule can become customary international law, and both the explicit rule and the customary rule can exist side by side. The ICJ identified three conditions that signify this transformation: the rule is of a fundamentally norm-creating character; there is widespread and representative state support including among those whose interests are specially affected; and, there is consistent practice and general recognition of the rule.

Article 14 of the UDHR has not been particularly “of a norm-creating character.” The ICJ has defined a rule as being “norm-creating” if the rule “while only conventional or contractual in origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to become binding even for [states not party to the convention].” Since its incorporation into the UDHR, the right to seek asylum has only been included within two legally binding conventions: the American Convention on Human Rights (“ACHR”) and the African Convention on Human and Peoples’ Rights (“ACHPR”). Yet, both of these references qualify the right to seek asylum so that individuals may only do so, “in accordance with laws of those countries and international conventions.” As mentioned above, the Charter of Fundamental Rights of the E.U. codifies the “right to asylum” as opposed to the “right to seek asylum.” The language used in the Charter, however, suggests that states should guarantee asylum for those qualifying as refugees under the Convention and Protocol, as opposed to granting the right to seek asylum to all persons.

Other evidence strongly suggests that Article 14 is decidedly not of a norm-creating character. Most notably, the provisions in Article 14 were not incorporated in the 1951 Convention or the 1967 Protocol. Furthermore, states explicitly rejected the notion that they had a duty to allow individuals to seek asylum during the failed attempt to draft a Convention on Territorial Asylum. Additionally, regional human rights treaties such as European Convention on Human Rights and the OAU Convention on Refugees have not incorporated a universal right to seek asylum. It must also be considered that actions by state parties consistently demonstrate that they do not consider themselves to be legally obligated by a universal right to seek asylum. The E.U.’s recent actions, for example, show that they do not believe that anyone and everyone has the right to claim asylum within the E.U.

Furthermore, there is not necessarily widespread and representative state support for a universal right to seek asylum, especially considering states, “whose interests were specially affected,” or in this instance, those countries that receive large amounts of asylum seekers. The ICJ stated that acceptance of the rule amongst states that had a particular interest in the matter “should [be] both extensive and virtually uniform” in order to evidence the existence of a customary norm. Yet, in several countries that have a particular interest in the matter, there is no recognized obligation to allow individuals to seek asylum. Even if one considered being a signatory to the Convention as evidence of support for the right to seek asylum, there are still states with huge populations of asylum seekers like India, Pakistan, Malaysia and Thailand who are not party to the Convention. Thus, it is very difficult to argue that the provisions of Article 14 enjoy “virtually uniform” acceptance.

Lastly, while there is some consistent state practice or general recognition of the right to seek asylum, there are also many inconsistent practices. There are approximately 47 states that are not party to either the Convention or the Protocol, and even within many of those states which are signatories, individuals are not treated as though they have a right to seek asylum in practice. Unfortunately, we only need to look to the E.U.’s recent actions to see an example of this behavior.

In sum, the argument that the right to seek asylum is a customary norm is far from ironclad. This, coupled with the fact that the right is not codified in most legally binding human rights treaties, allows for many states to shirk their duties under the Refugee Convention by stopping asylum seekers in their tracks and preventing them from ever formally lodging a complaint.

The E.U. Just Might Get Away With This

In Elihu Lauterpacht’s report on the travaux préparatoires of the UDHR, he stated that it was pointless to recognize an individual’s right to seek asylum without recognizing a state’s duty to receive asylum seekers.[7] As this article has evidenced, this argument is particularly prescient. Because there is no explicit, binding, or enforceable right to seek asylum, states have continued to devise creative ways to thwart would-be asylum seekers. As we have seen in the past, these states will attempt to justify their actions by claiming minimal adherence to the Convention and the principle of non-refoulement.

In the following weeks, we will undoubtedly hear the E.U. repeat this mantra, as it tries to justify sinking boats full of individuals who are likely refugees. States have become far too accustomed to hiding in this legal gray-area. The time for codifying a binding right to seek asylum is long past due. States need to be held accountable, so that when the E.U. attempts to justify its actions, the world can condemn their actions by pointing to blackletter international law. Until that day comes, it is likely that more schemes will be developed to stop asylum seekers, simply because history has shown that states can get away with it.

[1] Since publication, the E.U. has put its request for United Nations approval on hold.

[2] See, e.g., Guy Goodwin-Gill, The Refugee in International Law 358 (3d ed. 2007).

[3] Id. (citing states’ “continued reluctance… to accept such obligation and to accord a right of asylum enforceable at the insistence of the individual.”)

[4] James Hathaway, The Rights of Refugees Under International Law, 163-64 2005.

[5] Goodwin-Gill, at 358.

[6] Id., at 360

[7] Id., at 360-361

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