Journal International Law_N2-10.indd

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saerTaSoriso samarTlis Jurnali, #2, 2010 JOURNAL OF INTERNATIONAL LAW, N2, 2010The question therefore arises as to whetherMember States could be under an obligationto denounce international human rightsand refugee law instruments incompatible withArticle 307.Article 63(1) TEC establishes that:“the Council … shall … adopt … measureson asylum, in accordance with the GenevaConvention of 28 July 1951 and the Protocolof 31 January 1967 relating to the status ofrefugees and other relevant treaties.’The TEC establishes an obligation forMember States’ secondary legislation on asylumto comply with the Geneva Conventionand its Protocol, 46 and arguably with other humanrights treaties, which would include theEuropean Convention on Human Rights, 47the International Covenant on Civil and PoliticalRights 48 and the Convention Against Torture.49It could therefore be argued that Article 63is lex specialis to Article 307. If EU asylum lawrequired Member States to violate their obligationsunder international refugee and humanrights laws, it would be invalid. This interpretationwould also guarantee a uniform interpretationof EU legislation among Member States.In cases specifi ed under Article 63(1) the prioritywill be given to the International HumanRights and Refugee Law.In this context, the issue of a double approachtowards those persons who are refugeesand the persons who are in need of internationalprotection is of special importance. Itshould be noted that beyond Article 63(1) theproblem of the legal status of such personsmay also be implied, as it limits the means ofextending the right. Therefore, the secondarylegislation of Member States on these issuesshould by all means correspond with internationaldocuments. It would be ironic to declarethat protection of such persons shouldbe sought only in the documents of an internationalnature. It is not diffi cult to determinecases when it becomes necessary for MemberStates to reconcile its legislation with theEU legislation and international human rightslaw. No other interpretation was found in ECJCase Law.4. MINIMUM STANDARDS AND COMPLIANCEWITH INTERNATIONAL HUMAN RIGHTS ANDREFUGEE LAWArticle 63, TEC grants power to the EUto establish minimum standards. The questionarises in the following situation – if a memberstate has established minimum standards tothose established by international refugeeand human rights law, but also corresponds toArticle 63 TEC, who is responsible party, theEU exclusively or the state itself? ECJ has notclarifi ed the concept of “minimum standards”yet.In 2004, the European Parliament introduceda “Family Reunifi cation Directive” 50 versusthe council and commission. Parliamentdoubted the action instruments correspondedwith international human rights standards.The Advocate General Juliane Kokott also expressedsuch doubt. She criticized the directivein regard to Article 8 and declared that itdid not provide suffi cient guarantees that wouldeffi ciently protect human rights and noted thatthis article contradicts the EU Law. 51The ECJ expressed a different attitudetowards this issue. The court stated that thedisputable norm did not violate respect for thefamily and recognition of the inviolability ofprivate life envisaged by Article 8, EuropeanConvention on Human Rights. 52 The Courtalso noted the necessity of discussing everyactual circumstance. Articles of 5(5) and 17 ofthis Directive provide for the best interests ofminor children, nature and solidity of the person’sfamily relationships and the duration ofhis/her residence in the Member State and ofthe existence of family, cultural and social tieswith his/her country of origin. 53Heated discussion ensued about the discretionlimits, which were granted to MemberStates while setting minimum standards in thecontext of CEAS. While adopting the Qualifi -cation Directive, the legal department of theCouncil of Ministers attempted to determineand grant legal signifi cance to “MinimumStandards” and it was specifi ed to assign thematter of development of the standards to theMember States. The legal department statedthat Member States are authorized to unify82
I. ABASHIDZE, PROTECTION OF REFUGEES IN TERMS OF A COMMON EUROPEAN ASYLUM SYSTEM. COMPLIANCE...issues not included in those determined bythe Directive; however, in consideration of thepreconditions under Article 10, TEC restrictsMember States from creating legislation that iscontradictory to the aspiration and purpose ofthe treaty. It is the legal department’s opinionthat Member States should refrain from adoptingsuch laws that do not correspond with theaims of the Directive. Although the term “MinimumStandards” was still widely interpreted,the legal department also noted that within theprocess of harmonization, more, not less standardsof protection might be taken into consideration.The opposite development of anyinternal legislative variation in relation to theQualifi cation Directive would be considered asan action against the process of harmonizationand unifi cation. 54 The main conception ofthis interpretation was that a non-compulsoryexception for the protection of those personswho were included in the risk group was legaland just.The Directive target group is not the peoplethat are vis-à-vis included in a sphere ofprotected persons (based on the internationalobligation of Member States). Whether or nota Member State’s decision to grant status orasylum to a person based on the obligationundertaken on an international basis is a violationof the EU legislation is also a problematicissue.The ECJ is also supposed to express itsopinion on this issue, but until then, we mustmake a logical conclusion according to otherevidence, which proceeds from a common interest,that a right is not always an absoluteprerogative and it may be limited and based onvery common interests. This limitation, however,should not be applied unproportionallyand unreasonably. 55 As we have noted, Article63(1) stipulates the subsidiary protection of anasylum seeker should be conducted accordingto EU legislation, secondary legislation ofMember States, and international obligations.In cases of confl ict between obligations,Member States are restricted by their internationaltreaty or agreement while implementationof the EU legislation. As the EuropeanCourt of Human Rights has specifi ed in thecase T.I. v the United Kingdom: “Where Statesestablish international organizations, or mutatismutandis international agreements, to pursueco-operation in certain fi elds of activities,there may be implications for the protection offundamental rights. It would be incompatiblewith the purpose and object of the Conventionif Contracting States were thereby absolvedfrom their responsibility under the Conventionin relation to the fi eld of activity covered bysuch attribution”. 56Therefore, failure to implement an actionby a Member State, or basing any agreementor treaty concerning any other issue upon EUlegislation may not be considered as a meansof limiting the application of EU legislation.5. CREATING A COMMON EUROPEANASYLUM SYSTEM: CAN MEMBER STATESCOMPLY WITH THEIR INTERNATIONALREFUGEE AND HUMAN RIGHTSOBLIGATIONS?As it has been indicated, the EU is developingan intra-EU asylum space where internalborders are transformed to give way to aquasi jurisdiction for the treatment of refugeesin certain circumstances, while at the sametime Member States remain individually responsibleunder international refugee and humanrights law.The case in question is best exemplifi edin the so-called Dublin II Regulation. This instrumentestablishes a mechanism for the allocationof responsibility for processing asylumclaims among EU Member States. The systemis far from being a novelty. The decisionthat only one Member State would be responsiblefor the examination of asylum claimslodged in any of the Member States was fi rstagreed within the framework of the “ShengenAgreement” 57 and was later incorporated inthe “Shengen Convention”. 58 However, theseprovisions were later replaced by the DublinConvention, 59 which in turn has been replacedby the Dublin Regulation. 60The defi ciencies in the system, notablythe divergent interpretations of the GenevaConvention by Member States, have longbeen identifi ed. The European Commission83
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