Journal International Law_N2-10.indd

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saerTaSoriso samarTlis Jurnali, #2, 2010 JOURNAL OF INTERNATIONAL LAW, <strong>N2</strong>, 2010suggested in 1999 a change of approach:“A fundamentally different approach wouldimply a system which was not based on theprinciple that the Member State responsiblefor a person’s presence on the territory of theUnion should be responsible for consideringany subsequent asylum application”. 61 TheCommission went further to suggest that “responsibilitybe allocated according to wherethe fi rst asylum claim was lodged”. 62Beyond the inability of the system to meetits stated goals, the question also arises as tothe presumption that all EU Member Statesare ‘safe’ for any given refugee. In fact, thisintra-EU system for sharing responsibility toprocess asylum applications is based on thepremise that all EU Member States are safefor refugees and that consequently, they maylawfully remove individuals to other MemberStates without considering their protectionclaims.What constitutes “safety” for the purposesof transfer of responsibility of refugees amongMember States has yet to be defi ned. Often,safety seems to be understood as the mererespect for the principle of non-refoulementin the destination state. This is the approachtaken by the Dublin Regulation itself: “MemberStates, all respecting the principle of non-refoulement,are considered as safe countriesfor third-country nationals”. 63 In this regard,the Regulation seems not to have taken intoconsideration that the matter had alreadybeen considered in national courts 64 and in theEuropean Court of Human Rights, 65 resultingin an unequivocal pronouncement by the variousinstances on the need to consider eachcase on its merits as a prerequisite of lawfulnessof the transfer of responsibility for therefugee in question.The implementation of the Dublin systemamounts to a mutual recognition of rejectiondecisions among EU Member States (giventhat the asylum claim can only be consideredonce in the EU) which is not mirrored by themutual recognition of decisions recognizingrefugee status and other protection needs.Therefore, an intra-EU system has been designedwhereby the responsibility to determinerefugee status is allocated to one MemberState only, but if an individual is recognizedas a refugee, the validity of that status so recognizeddoes not extend to the other MemberStates. This is most relevant in so far recognizedrefugees may eventually travel to otherMember States (if a right to freedom of movementis eventually recognized to them) or mostimportantly, if they are forcibly transferred toanother Member State within the context ofthe European Arrest Warrant 66 to face trial orserve a sentence in criminal proceedings. Theconsequences of this lack of mutual recognitionof refugee status decisions are obvious ifrefugees are transferred from a State in whichthey have been recognized to another one inwhich they are not and where they may eventuallybe brought within the domain of the generallegislation on aliens.Given that in many states the penalty fora criminal conviction often includes expulsionupon serving a sentence, it goes without sayingthat the international obligations of theMember State who recognized the refugeewould be engaged if another Member Statewere to proceed to the expulsion of that individualwithout consideration of his refugee statusrecognized elsewhere in the Union.The complexities of the transfer of asylumseekersand refugees among Member Statesin absence of a fully harmonized asylum systemreveal a number of legal obligations applyin these cases. In the following pages, I wouldlike to challenge the understanding that theprinciple of non-refoulement is the only legalrequirement that states need to meet in internationalrefugee and human rights law for thepurposes of being designated as the MemberState responsible to examine an asylum application.While this may be the case in someinstances, it cannot be automatically assumedthat states’ only obligation towards asylumseekers are to ensure that the country of destinationrespects the principle of non-refoulement.The concrete set of obligations will bedetermined by the body of international refugeeand human rights law, of universal and regionalscope, applicable to any given asylumseeker in any given circumstances.84
I. ABASHIDZE, PROTECTION OF REFUGEES IN TERMS OF A COMMON EUROPEAN ASYLUM SYSTEM. COMPLIANCE...5.1 Determining the Scope of MemberStates Obligations towards Refugees:the ‘Safe Country’ Concept in an Intra-European Asylum SpaceAs was previously noted, the CEAS isfounded on the presumption of safety of allMember States. In fact, in its different variations,the “safe country” concept is groundedand focuses on the specifi c requirements thatare to be met for a State to be considered a“safe country”.The question as to its lawfulness timelyand pertinent, despite the long-standing practiceof states in relation to this concept, includingthe increasing sophistication in its practice,the changing legal and political landscapes inwhich it is applied, and more important to ouranalysis, its becoming a minimum standardof EU <strong>Law</strong> 67 by way of its incorporation in theDirective on minimum standards on proceduresin Member States for granting and withdrawingrefugee status.A conceptual distinction (that often getsblurred in the current state of debate) must bemade between the concept as a proceduraltool for States to refuse responsibility to determinethe refugee status of a claimant onthe grounds that another State should or is (ifagreements exist between the two countries)responsible to examine the claim, and the conceptas a standard to determine whether sufficient protection exists in a particular countryin order for States to remove/retain individualsfor the purposes of examining their claims. Inthe fi rst case, States refuse to take responsibilityto examine a protection claim, while inthe second case, States accept their responsibilityto undertake refugee status determination,but argue that no obligation exists to doso within their own territories. As Tony Blair,former Prime Minister of Great Britain declared:“There is no obligation under the 1951Refugee Convention to process claims forasylum in the country of application” 68 .It is a generally known legal axiom thatto every right there is a corresponding duty.An attempt to identify the obligations of Statestowards refugees requires fi rst clarifi cation asto which rights a refugee can claim vis-à-vis aState. It is also argued that the status of refugeesunder international law is defi ned notsolely by international refugee law, but ratherin various legal systems both of universal andregional scope.Despite the numerous statements thatrefugee rights are human rights and that internationalrefugee law is part of internationalhuman rights law, is scarcely supported by refugeescholars. Yet, only a holistic approach tohuman rights can offer a more comprehensivepicture, albeit more complex, of what Statesare obliged to do (and therefore, what theymay be free to do) in relation to refugees, as aresult of less development of the latter.Writing in 1993, Antonio Fortín DeputyRepresentative of UNHCR in the UK, at thattime, wrote a legal opinion on the “safe thirdcountry” concept, where he explained “a personwho has left his country in order to escapepersecution must apply for recognition of refugeestatus and/or for asylum in the fi rst safecountry he has been able to reach’. He furthercontinues explaining that refugees are internationallyprotected persons that are entitledto treatment in accordance to internationallyprescribed standards enshrined not only inthe Geneva Convention, but also in other internationalinstruments. Given the declaratorynature of refugee status and considering thatrecognition of such status “is a recognition ofhis refugee status’. The suggestion that Statesare under no obligation to consider requests forrecognition of status made within their jurisdictionappears to be incompatible with the purposeof the Convention. Furthermore, statesare responsible for refugees (notwithstandingthe fact of recognition as such). 69 Fortín arguesthat the person can exercise this right to seekrecognition of refugee status within whose jurisdictionhe may fi nd himself. 70Furthermore, the obligations of Statestowards individual circumstances under internationalhuman rights law are both negativeand positive in nature. States are therefore notonly obliged to respect, but also to fulfi l and toprotect all human rights.If refugees have a right to seek recognitionof their refugee status vis-à-vis any State partyto the Geneva Convention (and this includes85
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