EUROPEAN ASYLUM LAW AND INTERNATIONAL LAW doc

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The series is a venue for books on European immigration and asylum law andpolicies where academics, policy makers, law practitioners and others look to finddetailed analysis of this dynamic field Works in the series will start from aEuropean perspective The increased co-operation within the European Union andthe Council of Europe on matters related to immigration and asylum requires thepublication of theoretical and empirical research The series will contribute to well-informed policy debates by analysing and interpreting the evolving Europeanlegislation and its effects on national law and policies The series brings together thevarious stakeholders in these policy debates: the legal profession, researchers,employers, trade unions, human rights and other civil society organisations

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References to provisions of the Procedures Directive address the ProposalProcedures Directive, council doc 14203/04 of 9 November 2004 (see

number [60]) On 1 December 2005, the Council Directive 2005/85/EC of

1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJEC [2005] L326, 13-34)

was adopted The numbering of the provisions of the proposal for the

Procedures Directive and Directive 2005/85/EC correspond as follows

The writing of this book took far more time than I could have imaginedbeforehand Perhaps boundless optimism is a prerequisite for embarkingupon such a project Research and exchange of thoughts were necessary inorder to finish the writing of this book I thank the constitutional andadministrative law section of the law faculty of the Vrije UniversiteitAmsterdam for allowing me to devote my time to this book so often ratherthan to more common interests Special thanks are due to Ben Vermeulenand Thomas Spijkerboer for the frequent discussions and comment on themanuscript, as well as for their encouragements to lecture and write articles

on the subject, which greatly helped me to shape my thoughts and broughtstructure to the work I further thank those who read and commented on themanuscript (in alphabetical order): Pieter Boeles, Kees Groenendijk, KayHailbronner, Martin Kuijer, Gregor Noll and Sarah van Walsum I thankNiels Jak for his help in compiling the indices I finally thank AlastairMcInness for correcting the English

I completed the manuscript in June 2005, and was only able to incorporatelater developments in exceptional cases

Amsterdam, 5 November 2005

TABLE OF CONTENTS

Acknowledgements viii

Table of Contents ix

List of Tables xvii

Table of Abbreviations xix

1 Introduction 1

1.1 The object of inquiry 1

1.2 Questions and order of discussion 4

1.3 “Asylum” 5

1.4 International asylum law 6

1.4.1 Sources 7

1.4.2 Rules and means of interpretation 14

1.4.2.1 The Vienna Convention on the Law of Treaties 14 1.4.2.2 Treaty monitoring bodies 19

1.4.2.3 Concluding remarks 25

1.5 European asylum law 25

1.5.1 The genesis of European asylum law 26

1.5.2 Features of Community law 33

1.5.3 Instruments of European asylum law 36

1.5.4 Institutions and decision-making procedures 39

1.5.5 Interpretation 41

2 The working of international asylum law in European law 59

2.1 The Member States as states party to international treaty law 59

2.1.1 The Vienna Treaty Convention rules on treaty conflicts 59 2.1.2 Conciliatory interpretation 61

2.1.3 Jus cogens 62

2.1.4 Article 307 TEC 63

2.1.5 Insoluble conflicts 68

2.1.6 The European Court of Human Rights 69

2.1.7 Conclusions 76

2.2 The working of international asylum law within the

Community legal order 77

2.2.1 Effect as international law 78

2.2.2 General principles of Community law 82

2.2.2.1 Introduction 82

2.2.2.2 Sources 84

2.2.2.3 Scope of application 85

2.2.2.4 Intensity of the test 91

2.2.2.5 Conclusions 96

2.2.3 Article 63 TEC 97

2.2.4 References in secondary law 105

2.2.5 Concluding remarks 105

2.3 The Charter 108

2.3.1 Introduction 108

2.3.2 General provisions on Charter provisions and international law 108

2.3.3 Scope of application 110

2.3.4 Human dignity 111

2.3.5 The right to asylum 111

2.3.6 The prohibition of refoulement . 114

2.3.7 The legal effect of the Charter 116

2.3.8 Concluding remarks 118

2.4 Assessment 119

3 The Treaty basis for asylum legislation 139

3.1 Title IV in outline 139

3.2 The “area of freedom, security and justice” 140

3.3 The scope of Community powers on asylum 143

3.3.1 Introduction 143

3.3.2 The relation between Article 63(1), 63(2) and 63(3) TEC 144

3.3.3 Asylum (Article 63(1) TEC) 146

3.3.4 Temporary protection, subsidiary protection and sudden inflows (Articles 63(2) and 64(2) TEC) 151

3.3.5 Immigration (Article 63(3) TEC) 155

3.3.6 External competencies 156

3.3.7 The exception of Article 64(1) 157

3.3.8 Legal basis outside Title IV 158

3.3.9 Concluding remarks 159

3.4 Harmonisation 160

3.5 Geographical scope of European asylum legislation 165

3.6 Community powers on asylum and international asylum law 166

3.7 Concluding remarks 168

3.8 The Constitution 170

3.8.1 Introduction 170

3.8.2 The policy objectives 172

3.8.3 Personal and geographical scope 172

3.8.4 Harmonisation 173

3.8.5 Substantive scope 175

3.8.6 The Protocols on the United Kingdom and Ireland and on Denmark 183

3.8.7 Concluding remarks 183

4 The Common European Asylum System 195

4.1 The concept 195

4.2 The lay-out 196

4.3 Legal basis 199

4.4 Objectives 199

4.5 Minimum standards 202

4.6 Harmonisation 204

4.7 Personal scope 205

4.8 Territorial scope 208

4.9 Concluding remarks 211

5 Qualification 219

5.1 CEASstatuses and international law 219

5.2 Definition elements 222

5.3 Risk and proof 224

5.3.1 Refugee and subsidiary protection 224

5.3.2 Temporary protection 229

5.4 Harm 230

5.4.1 Harmful acts 231

5.4.1.1 Persecution 231

5.4.1.2 Serious harm 234

5.4.1.3 Temporary protection 241

5.4.1.4 Comparison 242

5.4.2 Actors of harm 243

5.4.3 Protection and actors of protection 246

5.4.4 The Convention grounds 254

5.4.5 Concluding remarks 260

5.5 Alienage 261

5.6 Grounds for refusal 262

5.6.1 Article 1F RC 262

5.6.2 Article 33(2) RC 265

5.6.3 Article 1D and 1E RC 266

5.6.4 Conclusion 267

5.7 Cessation and withdrawal 267

5.8 The relation between the CEASprotection statuses 269

5.8.1 The complementary character of subsidiary and temporary protection 270

5.8.2 Hierarchy and concurrence 271

5.9 Concluding remarks 274

6 Asylum procedures 289

6.1 Introduction 289

6.2 Asylum procedures at first instance 291

6.2.1 International law 292

6.2.2 The set-up 296

6.2.3 The organisation 298

6.2.4 Basic principles and guarantees 304

6.2.4.1 Scope of application 305

6.2.4.2 Standards on the ‘normal procedure’ and the ‘normal border procedure’ 308

6.2.4.3 Standards on the special procedures 314

6.2.5 Conclusions 317

6.3 Appeal procedures 318

6.3.1 Standards of international and Community law 318

6.3.2 CEASprovisions on appeal in asylum procedures 327

6.3.3 Conclusions 331

6.4 Grounds for refusal 332

6.4.1 Inadmissibility 332

6.4.2 Withdrawn applications 333

6.4.3 Manifestly unfounded applications 334

6.4.4 Subsequent applications 336

6.4.4.1 Introduction 336

6.4.4.2 Subsequent applications lodged during the processing of the former application 337

6.4.4.3 Repeated applications 338

6.4.4.4 Applications by dependants 340

6.4.4.5 Applications after withdrawal 341

6.4.4.6 Concluding remarks 343

6.4.5 The safe country of origin 344

6.4.5.1 Introduction 344

6.4.5.2 The designation 346

6.4.5.3 The application 351

6.4.5.4 Concluding remarks 357

6.4.6 Concluding remarks 358

6.5 Termination procedures 360

6.5.1 International law 360

6.5.2 Termination of refugee status 361

6.5.3 Termination of temporary protection 363

6.5.4 Concluding remarks 363

6.6 Assessment 364

7 Allocation and safe third country arrangements 385

7.1 Introduction 385

7.2 Allocation criteria 386

7.2.1 Allocation of applicants within the European Economic Area 386

7.2.2 Allocation of temporary protection beneficiaries 391

7.2.3 Allocation to non-Member States 392

7.2.4 Concluding remarks 393

7.3 Allocation mechanisms 394

7.4 The exception of the safe third country in international law 397

7.4.1 Introduction 397

7.4.2 Conditions on the third state 398

7.4.3 Assessment of the safety 407

7.4.3.1 The individual and the generic approach 407

7.4.3.2 The principle of inter-state trust as a rebuttable presumption 409

7.4.4 Conclusions 418

7.5 The exception of the safe third country in European law 418

7.5.1 The Dublin Regulation and the Dublin Convention 419

7.5.2 The safe third country concept 421

7.5.3 The country of first asylum concept 426

7.5.4 Member States as countries of first asylum 427

7.5.5 The safe third neighbouring country 428

7.5.6 Concluding remarks 431

8 Secondary rights 447

8.1 Introduction 447

8.2 Refugee Convention rights 448

8.2.1 Introduction 448

8.2.2 Qualifications of refugees 448

8.2.3 The nature of refugee status determination 455

8.2.3.1 The declaratory and constitutivist views 455

8.2.3.2 The Refugee Convention text 457

8.2.3.3 Object and purpose laid down in the Preamble 459 8.2.3.4 Object and purpose of individual provisions 460

8.2.3.5 Concluding remarks 465

8.2.4 The obligation to determine refugee status 466

8.2.5 Conclusions 468

8.3 International law on family unity 469

8.4 Refugee status 474

8.4.1 General 474

8.4.2 Refugee Convention benefits 475

8.4.3 Family unity 477

8.4.4 Concluding remarks 485

8.5 Alternative refugee statuses 486

8.5.1 Article 14(6) QD refugee status 486

8.5.2 Article 24(1) QD refugee status 488

8.6 Subsidiary protection status 490

8.7 Applicant status 493

8.7.1 Entitlement to Refugee Convention benefits 493

8.7.2 Reception standards 496

8.7.2.1 (Un)lawful presence, illegal entry and the freedom of movement 496

8.7.2.2 Other reception standards 499

8.7.2.3 Reduction of benefits and procedures 502

8.7.3 Family unity 503

8.7.4 Concluding remarks 506

8.8 Temporary protection 507

8.8.1 Temporary protection and Convention refugee status 507

8.8.2 Temporary protection status benefits 509

8.8.3 Family unity 510

8.8.4 Concluding remarks 512

8.9 Assessment 512

9 Judicial supervision 531

9.1 Judicial protection of Community rights 531

9.1.1 The principle of effective protection 531

9.1.2 Direct appeal to the Court of Justice 532

9.1.3 Requirements on remedies in domestic courts 534

9.1.4 Concluding remarks 537

9.2 Direct and indirect effect of European law on asylum 537

9.2.1 Indirect effect 538

9.2.2 Direct effect 539

9.2.2.1 The conditions for direct effect 540

9.2.2.2 Article 63 TEC 542

9.2.2.3 Secondary law 543

9.2.2.4 Conclusions 550

9.2.3 Obligations during the transposition period 551

9.2.4 Concluding remarks 553

9.3 Adjudication of asylum law by the Court of Justice 554

9.3.1 Preliminary rulings 554

9.3.2 Review of validity of Community legislation on asylum 555 9.3.3 Review of Member State acts 561

9.3.4 The implications of Article 68 TEC 571

9.3.4.1 Introduction 571

9.3.4.2 Courts of first instance and interpretation 573

9.3.4.3 Courts of first instance and invalid

Community acts 573

9.3.4.4 Courts whose decisions are not subject to review 577 9.3.4.5 Conclusions 577

9.3.5 Exceptions to the obligation to refer 577

9.3.6 Conclusions 579

9.4 The Luxembourg Courts and domestic courts 580

9.5 Strasbourg review of European asylum law 584

9.5.1 Review of Member State acts based on Community law that leaves discretion 585

9.5.2 Member State acts based on Community law that leaves no discretion 585

9.5.3 Review of acts by Community institutions 590

9.5.4 Assessment 592

9.6 Conclusions 592

10 Conclusions 603

10.1 European asylum law and international asylum law 603

10.2 The Community legislation 606

10.3 Future developments 614

Bibliography 619

Cases 641

Treaties and Community legislation 655

Index 675

LIST OF TABLES

Table 1: The Common European Asylum System 198Table 2: The safe third country concept 431Table 3: The incremental system of Refugee Convention benefits 469

TABLE OF ABBREVIATIONS

ABRvS Afdeling Bestuursrechtspraak Raad van State (Administrative

Adjudication Section of the Council of State of The

CaT Committee against Torture

CCPR Covenant on Civil and Political Rights

CEAS Common European Asylum System

CfE Constitution for Europe

CFI Court of First Instance

CMLRev Common Market Law Review

DAR Dublin Application Regulation

DC Dublin Convention

doc document

DR Dublin Regulation

EC European Community

ECR European Court reports

ECJ (European) Court of Justice

ECHR European Convention of Human Rights

ECmHR European Commission of Human Rights

ECtHR European Court of Human Rights

EEA European Economic Area

e.g for example

EJIL European Journal of International Law

EJML European Journal of Migration and Law

ELRev European Law Review

EP European Parliament

EPL European Public Law

ETS European Treaty Series

HR Hoge Raad (Supreme Court of The Netherlands)HRC Human Rights Committee

HL House of Lords of England

ibid in the same place

i.e that is

ICJ International Court of Justice

ICLQ International and Comparative Law Quarterly

IJRL International Journal of Refugee Law

RSD Reception Standards Directive

SC Supreme Court of the United States of AmericaSer Series

TEC Treaty on European Community

TEU Treaty on European Union

ToA Treaty of Amsterdam

ToM Treaty of Maastricht

TPD Temporary Protection Directive

UDHR Universal Declaration of Human Rights

UK United Kingdom

UN United Nations

UNGA United Nations General Assembly

UNHCR United Nations High Commissioner for the RefugeesUNTS United Nations Treaty Series

VTC Vienna Convention on the Law of Treaties

In this Chapter, the object of inquiry is defined Further, the relevant sources

of international and European law are introduced, and the method and means

of interpretation applied in this study are discussed

[1] Asylum law has been enriched in the last few years by a number of sures of the European Community that address the legal relation between per-sons in need of protection and the Member States These measures make upthe Common European Asylum System – a body of law that covers all aspects

mea-of asylum law: qualification for protection, procedures for qualification, cation, and secondary rights Although its impact on asylum law and practice

allo-in the Member States remaallo-ins to be seen, this system merits description andanalysis, if only because of its comprehensiveness

The description and analysis of European asylum law in this study focus

on the relation with international law The Refugee Convention and some otherinstruments of international law entitle certain categories of aliens to protec-tion from expulsion and to secondary rights The major part of the Communitymeasures on asylum implicitly or explicitly addresses interpretation and appli-cation of this international law I describe and analyse the rights and obliga-tions laid down in the Community measures, and compare them to those setout in international law

The relation between Community and international law on asylum raisessome complex questions According to the Treaty on European Community,these measures must be “in accordance” with the Refugee Convention andother treaty law on asylum This requirement seems to establish a clear hier-archical relation between international law and Community legislation on asy-lum Yet the relevant instruments of international law bind the Member States,not the Community It is therefore unclear to what extent European law shouldsecure “accordance” – it may imply an obligation to ensure that the wholebody of international law on asylum is complied with, or merely prohibitCommunity legislation that is in outright violation of international law.Further, the requirement of “accordance” applies only to part of Europeanlegislation, which begs the question whether other legislation may deviatefrom international law The consequences of the transfer of powers on asylum

to the Community for the obligations of the Member States under nal law are another matter Could European legislation influence their obliga-tions under international law? If not, what should happen in case of a collisionbetween rules of European and international asylum law?

internatio-[2] The relation between European law on asylum and international law can beapproached from different points of view A perfectly suitable one would bethe position of the Member States of the Community As the grant of asylum

is “only the normal exercise of territorial sovereignty” of states,1 transfer ofpowers on asylum to the Community infringes on the sovereignty of theMember States Therefore, their position merits attention Another possibilitywould be the position of the Community itself The project of legislation onasylum was undertaken in order to facilitate the abolition of border controlsbetween Member States.2Focusing on the Community would do justice to thisobjective of European asylum law Moreover, the new area of European asy-lum law has impact on the Community’s very identity At some points,European asylum law appears to conceive of the Community as the recipient

of requests for protection Thus, European asylum legislation speaks of sons seeking protection in the Community”,3and indeed makes it very possi-ble that a person requesting protection from, say, Greece, is transferred toIreland as if the Community, not a state, were approached

“per-But I have chosen a third alternative: the consequences for the individual

in need of protection Safeguarding the rights of aliens is also an objective ofEuropean asylum legislation.4Other issues such as the division of competen-cies between the Community and the Member States will also be addressed.They will not, however, be addressed for their own sake, but only in so far asthey have bearings on the legal position of the individual

[3] The analysis is restricted to issues of law Which instruments count as

“law” and which means and methods of interpretation are applied, will be cussed in paragraphs 1.4 and 1.5 Here it should be stressed that the analysis

dis-is as far as possible abstracted from policy dis-issues Policy objectives may haveshaped Community asylum law, but they are addressed only where they enterthe realm of law, especially where they may serve as a means of interpretation.The same holds true for the decision-making process Documents reflectingnegotiations are only taken into account when they shed light on enigmaticprovisions Consequently, projects that have not (yet) resulted in legislation,such as reception in the region of origin, are not addressed

This one sided approach also means that the analysis sticks to legal

fic-tions Thus, the Member States as subjects of Community law, the Communitylegislator and the masters of the Treaty on European Community are treated

as if they were separate entities In fact, representatives of the Member Statesmake up the organ that adopts Community legislation on asylum, and they aremasters of the Treaty Undoubtedly, the provisions of the Treaty on EuropeanCommunity on asylum, Community measures and domestic legislation to afair extent all reflect the same policy objectives To a more politically orientedmind, upholding the fiction that it concerns completely different entities mayseem a distortion of reality But there are good reasons to stick to those legalfictions First of all, Community law itself imposes these distinctions; apply-ing them is therefore necessary for a sound legal analysis Secondly, the poli-

cy background of European asylum law has more than once been welldescribed.5Thirdly, I lack the skills to produce a sound political analysis Likewise, empirical issues are ignored as far as possible Particular rulesmay have been adopted with a specific situation in mind – for example, rules

on the issue of agents of protection may be based on the situation in certaincountries such as Somalia or Northern Iraq before the American invasion.Further, rules may have little meaning in the sense that they could apply to arelatively small number of people, or conversely have great practical impor-tance Such considerations are however absent from this study Numbers ofprotection seekers or recognised refugees, or the reception of protection seek-ers in proportion to reception elsewhere are not addressed The reasons areagain that I lack the necessary knowledge and skills, and that such considera-tions are alien to the questions stated

Furthermore, the present inquiry is, in a sense, a-historical I address thebody of European asylum law as it is with international asylum law as it isnow Their historical development is in itself not relevant for assessing theirrelation Thus, it has been convincingly argued that the last decades haveshown a growing tendency to exclude group persecution, and that subsidiaryforms of protection next to refugee protection owe their relevance to an evermore restrictive application of the refugee definition.6Current European asy-lum law may be seen as an exponent of these developments: no mention ismade of group persecution, and it grants a prominent place to subsidiary pro-tection But such considerations are in themselves not relevant for this inquiry.The historical development of European asylum may explain its present form;

it cannot explain its legal meaning

[4] Finally, domestic law is discussed when relevant for interpretation of national law, but legislation on asylum of the Member States does not, in itself,

inter-make part of the object of inquiry The picture offered in this book is thereforenecessarily incomplete, for Community law and international law presupposedomestic systems of law for their functioning But abstraction from thedomestic law systems of the Member States may also have advantages Itmakes it possible to execute a comparison of European with international lawunclouded by notions from domestic law For example, European asylum law

is very much centred on the issue of residence permits This entails a tion between asylum seekers and persons with a residence permit which isquite self evident from the point of view of domestic law But for internatio-nal law, it is not – it rather distinguishes persons who are in need of protectionfrom those who are not

distinc-Nor do I address the reception of international or European law intodomestic constitutional law Hence, I accept and apply the tenets on the wor-king of European law and of the European Convention of Human Rights with-

in the domestic legal orders that are developed by the Court of Justice and theEuropean Court of Human Rights without questioning them (cf numbers [70]and [36]), although these tenets may not be accepted in some or most MemberStates.7

[5] This study of European law on asylum therefore focuses on its relationwith international law, and in particular on the way it affects the legal position

of persons requesting asylum Neither the development of European asylumlaw or international law, nor domestic asylum law of the member states makespart of this study The terms “asylum”, “European asylum law” and “interna-tional asylum law” will be defined in the following paragraphs (paragraphs1.3, 1.4 and 1.5) Here, I will identify the questions that should be dealt with

in order to assess this relationship properly

To begin with, we should address the nature of this relationship: (1) how do

the systems of European or Community law and international law affect each other? This question can be approached from two sides First, the way interna-

tional law may affect Community law (1a): how can rules of international law

on asylum have effect within the Community legal order? Second, the way

Community law may affect the working of international asylum law (1b): does

European asylum law have consequences for the legal position of the dual vis-à-vis the Member States in their capacity as party to the instruments

indivi-of international asylum law? Both questions are addressed in Chapter 2

Connected to these questions is the scope of Community competencies, orrather of the division of competencies on asylum between the Community and

the Member States Hence, a second question is: (2) to what extent is the

Community competent or obliged to adopt legislation on asylum? This issue is

addressed in Chapter 3

After having defined the relation between both systems of law and thescope of Community powers and obligations under international law on asy-

lum, we can approach the central question: (3) is European asylum law in

con-formity with international asylum law? The assessment of concon-formity requires

description and analysis of rules of Community law that may have bearings onthe legal position of persons entitled to asylum, and comparison with relevantrules of international asylum law This analysis and comparison is the mainpart of this book, and is carried out in the Chapters 4 to 8

Finally, the focus on the individual’s legal position introduces yet another

issue (4): which possibilities does Community law offer the individual for

effectuating his claims under international law? This issue is addressed in

Chapter 9 In Chapter 10, I summarise the main conclusions and make somefinal observations

[6] Above, the term “asylum” was applied in the terms “European asylumlaw” and “international asylum law” Which instruments are meant when I usethese terms will be discussed in paragraphs 1.4 and 1.5 below Here, I definethe common element “asylum”

The term “asylum” has no determined meaning, and is applied in differentsenses in different contexts.8 Instruments of international law allude to asy-lum, but do not define it or specify its meaning.9Community law applies theterm in different senses In the Treaty on European Community, “asylum” isclosely linked to protection offered pursuant to the Refugee Convention,10

which would be too narrow a definition for present purposes In the term

“common European asylum system” the meaning of “asylum” appears to bebroader, but also quite indeterminate.11Hence, we should look elsewhere for adefinition

[7] In academic writing,12the definition of asylum adopted by the Institut du

Droit International at its Bath Conference in 1950 is often applied:

“[…] le terme “asile” désigne [1] la protection [2] qu’ un Etat accorde [3]

sur son territoire ou dans un autre endroit relevant de certains de sesorganes à [4] un individu qui est venu la chercher”13

- “the term “asylum” means [1] the protection [2] offered by a State [3] on itsterritory or elsewhere to [4] an individual who came to seek it” (numbersadded, HB)

For present purposes, this definition is suitable although it needs cation Firstly, the term “individual” (element [4]) As the drafters of this defi-nition undoubtedly tacitly intended,14the term asylum applies only to protec-tion offered to aliens States owe protection to their nationals on account ofthat nationality, which protection hence needs no juridical category Thus, “anindividual” should be understood as a person not possessing the nationality ofthe state he requests protection from Secondly, the term “protection” (element[1]) “Protection” suggests some threat or danger from which the individual

specifi-needs shelter As the specification “sur son territoire (…) à un individu qui est

venu la chercher” suggests, asylum concerns protection from some danger

abroad Hence, asylum concerns protection by a state from a danger thatthreatens the alien outside the state’s jurisdiction Thirdly, the territorial scope(element [3]) The Bath definition intentionally covers both protection offered

on the territory and protection offered at embassies and consulates.Diplomatic asylum is not addressed in this book, only requests for asylumwith a view to protection on the territory of the requested state, whereverlodged (on its territory or at its border, or abroad) Fourthly, the definitionrestricts “asylum” to protection offered by “a state” (element [2]), thus exclud-ing protection by a church or other non-state actors As the Member Statestransferred powers concerning protection to the Community, we should notexclude beforehand that the Community could be the legal entity to whichaliens should turn when requesting asylum within the European Union Thus,asylum might be offered by states or, at least hypothetically, by theCommunity In sum, the term “asylum” applied in this book means “protec-tion offered to an alien on account of a threat abroad, by a state within its ter-ritory or by the Community within the European Union”

[8] With “international asylum law”, I mean rules of international law thatentail obligations or rights concerning “asylum” as defined above In para-graph 1.4.1, I will delimit which types of instruments qualify as “law” for thepurposes of this definition, and which of those instruments contain rules on

“asylum” Rules and means of interpretation are addressed under 1.4.2 Theeffect of international law within the legal orders of the states concerned is pri-marily a matter of domestic, not international law For the present study, thereception of international law within the Community legal order is of greatimportance, and will be discussed in Chapter 2.2.

1.4.1 Sources

The ICJ Statute

[9] Identification of “obligations” and “rights” entails that only binding rules

of international law on asylum will be discussed The question which rules ofinternational law are binding is generally answered by reference to Article38(1) of the Statute of The International Court of Justice, which states:

“The Court, whose function is to decide in accordance with internationallaw such disputes as are submitted to it, shall apply:

a international conventions, whether general or particular, establishingrules expressly recognized by the contesting states;

b international custom, as evidence of a general practice accepted as law;

c the general principles of law recognized by civilized nations;

d judicial decisions and the teachings of the most highly qualified cists of the various nations, as subsidiary means for the determination

publi-of the rules publi-of law.15

The International Court of Justice further recognised unilateral declarations as

a source of international law.16

The basis for regarding conventions, custom and principles as binding isthe element of consensus of the states concerned.17The notion of consent to bebound as the basis for obligation in international law has been criticised inacademic writing.18However, no alternative concept appears to be available.19

Moreover, the list in the statute is still predominantly used as the index ofsources of international law

Hence, conventions, custom, principles recognized “by civilized nations”and unilateral declarations are primary sources of international law, and judi-cial decisions and scientific writings secondary ones.20 The primary sources arediscussed in the present paragraph, the secondary ones under paragraph 1.4.2 [10] Which treaties, rules of custom or principles address asylum? In paragraph 1.3,

“asylum” was defined as “protection” In order to identify the relevant instruments

of international law, we should further delimit the meaning of the term “protection”

In a narrow sense, “protection” is protection from subjection to human rightsviolations abroad In a broad sense, it entails, apart from protection from beingsubmitted to human rights violations abroad, permission to stay in the requestedstate Further, it would entail permission to stay there under dignified condi-tions Finally, if the alien is not yet present in the state he asks asylum from, itwould entail a request for admission.

The right to asylum

[11] Does international asylum law confer a “right to asylum” in this broadsense? The provision coming closest to it appears to be Article 14(1) of theUniversal Declaration of Human Rights, stating that

“Everyone has the right to seek and enjoy asylum”.21

It appears that “everyone” has a claim to enter (“to seek asylum”) as well as aright to stay there (to “enjoy asylum”) The provision does not, however, entail

a right that aliens can successfully invoke: the Universal Declaration is adeclaration and hence not a primary source of binding international law.Claims that either the Declaration taken as a whole or Article 14 in particularhave acquired the quality of customary law,22 must be considered to be

unfounded - both general state practice as well as opinio juris are lacking.23

But even if the provision were binding, one cannot base on it a subjective right

to enter or to reside The ambiguous term “to enjoy”, in the - equally

authen-tic - French language version “bénéficier”, must be read not as a right

con-ferred to an individual, but rather as a privilege eventually accorded by theconcerned state, and thus merely reaffirms the sovereign right to grant protec-tion.24The right to “seek” is the right to request, not to receive asylum; it is a

right vis-à-vis the country of origin, not the requested state.25

The only other instrument that speaks of a “right to asylum” is Article 18

of the Charter of Fundamental Rights (Article 78 of the Draft Constitution forEurope) As the provision functions within the context of European law, I willdeal with it in that context (see further paragraph 2.3.5)

The Refugee Convention

[12] A binding instrument of international law that confers a right to asylum

in the broad sense being absent, we should turn to agreements that partiallyaddress the needs of protection seekers The instrument of international lawdealing most extensively with the matter is the “1951 Convention Relating tothe Status of Refugees” (henceforth: Refugee Convention or RC).26 TheRefugee Convention is central to the asylum systems of all Member States,and to the Common European Asylum System as well Articles 2-34 RC grant

all kinds of benefits (referred to below also as “secondary rights”), concerningsuch matters as education, gainful employment and the right not to be expelled

to a state where the life or freedom of the alien would be threatened Together,these provisions make up to a considerable extent the right to asylum in thebroad sense defined above (number [10])

Entitled to these secondary rights are “refugees” Who is a refugee isdefined in Article 1 of the Refugee Convention According to the first clause

of Article 1A(2), a refugee is any person who

“owing to well-founded fear of being persecuted for reasons of race, gion, nationality, membership of a particular social group or political opi-nion, is outside the country of his nationality and is unable or, owing tosuch fear, is unwilling to avail himself of the protection of that country” Although fulfilling these requirements, an alien cannot invoke protection ifone of the other provisions of Article 1 RC applies The protection afforded bythe Convention ceases when the alien is no longer a refugee (Article 1C).Excluded from refugee status (from entitlement to the benefits set out inArticles 2-34 RC) are persons who can turn to certain alternative sources ofprotection: to another state whose nationality the alien possesses (Article1A(2) second clause),27 or whose de facto nationality he possesses (Article

reli-1E),28 or to assistance from United Nations agencies (other than UNHCR,Article 1D) Finally, persons who have committed certain very serious crimesare excluded as well (Article 1F)

[13] The Refugee Convention refers to two limitations of the refugee tion – a temporal and a geographical one The text of Article 1A(2) narrowsits scope to “events occurring before 1 January 1951” But according toArticle I(1) of the 1967 Protocol of New York,29Article 1A(2) should be read

defini-as if these words were omitted All Member States of the European Union areparty to the 1967 Protocol;30the temporal limitation is therefore of no interest

to us The geographical limitation follows from Article 1B RC According tothis provision, Contracting States must make a declaration that specifieswhether Article 1A(2) applies to persons who have well-founded fear of beingpersecuted due to “events occurring in Europe” only, or to persons having suchfear due to “events in Europe or elsewhere” All Member States chose the second option.31 References to the Refugee Convention below address theConvention as amended by the New York Protocol

[14] The first and foremost condition for enjoying Convention benefits, then,

is being a refugee as defined in Article 1 RC Most Convention provisions

state additional requirements; first and foremost, refugees cannot (effectively)invoke Convention rights if they are not present on the territory of aContracting State.32 But the Convention does not explicitly grant a right topresence or a right of entry into those states Nor is such a right implicit to theConvention The provision coming closest to it is Article 11:

“In the case of refugees regularly serving as crew members on board a shipflying the flag of a Contracting State, that State shall give sympathetic con-sideration to their establishment on its territory and the issue of traveldocuments to them or their temporary admission to its territory particular-

ly with a view to facilitating their establishment in another country”

So, even seamen on board of ships flying the flag of a Contracting State areentitled to no more than “sympathetic consideration” to their establishment onthe territory; that State is not even bound to allow them temporary admission

The prohibitions of refoulement

[15] In the absence of a treaty obligation to provide for entry or condone ence, the matter is subject to the domestic law of the Member States But thesovereign right to control the presence of aliens, among them refugees, is con-

pres-ditioned by the prohibitions of refoulement “Refoulement” means removal of

an alien to a state where he runs a certain risk of being submitted to certainhuman rights violations Several treaty provisions specify when removal

amounts to refoulement, and explicitly forbid removal in such cases – the called prohibitions of refoulement Explicit prohibitions of refoulement are

so-worded in Article 33(1) of the Refugee Convention:

“No Contracting State shall expel or return (“refouler”) a refugee in anymanner whatsoever to the frontiers of territories where his life or freedomwould be threatened on account of his race, religion, nationality, member-ship of a particular social group or political opinion”,

as well as in Article 3 of the Convention Against torture and Other Cruel,Inhuman or Degrading Treatment or Punishment (henceforth ConventionAgainst Torture, or CAT):33

“No State shall expel, return (“refouler”) or extradite a person to anotherstate where there are substantial grounds for believing that he would be indanger of being subjected to torture.”34

Further, certain international law norms prohibit refoulement implicitly For

the Member States of the European Union, the most important implicit

prohi-bition of refoulement is Article 3 of the European Convention for the

Protection of Human Rights and Fundamental Freedoms (henceforth:European Convention of Human Rights, or ECHR), reading

“[n]o one shall be subjected to torture or to inhuman or degrading ment or punishment.”35

treat-According to well established case law of the European Court of HumanRights,

“whenever substantial grounds have been shown for believing that an vidual would face a real risk of being subjected to treatment contrary toArticle 3 if removed to another State, the responsibility of the ContractingState to safeguard him or her against such treatment is engaged in the event

indi-of expulsion”.36

Another provision prohibiting indirect refoulement is to be found in the

Covenant on Civil and Political Rights (henceforth also: Covenant or CCPR):37

“[n]o one shall be subjected to torture or to cruel, inhuman or degradingtreatment or punishment.”

The Human Rights Committee stated that the provision prohibits refoulement

for the first time in its General comment 20,38and affirmed it in a number ofviews.39

[16] The implicit prohibitions of refoulement constitute by nature an open

category Other human rights than those mentioned above may also prohibit

refoulement The Strasbourg organs accepted that Article 2 ECHR, the right to

life, implies a prohibition of refoulement.40The European Court further citly stated that Articles 5 and 6 ECHR might “exceptionally” contain prohi-

expli-bitions of refoulement as well.41 In academic writing other ECHR provisionshave been mentioned,42and Article 16(1) CAT has been suggested as a possi-

ble prohibition of refoulement too.43But neither the European Court of HumanRights nor the Committee against Torture has (yet) honoured appeal to these

supposed prohibitions of refoulement.44In this book, I will restrict the

discus-sion to the well-established prohibitions of refoulement – the Articles 33 RC,

7 CCPR, 3 ECHR and 3 CAT

Other relevant human rights law

[17] Article 1 RC and the prohibitions of refoulement hence define who fies for protection These prohibitions of refoulement afford protection in the

quali-narrow sense defined above – protection of aliens from expulsion to the statewhere they are in danger Asylum or protection in the broad sense would entail

a number of additional secondary rights The only instrument of international

law addressing such secondary rights of in particular persons in need of

pro-tection is the Refugee Convention Thus, a refugee must, according to Article

4 RC, be treated “at least” as favourable as nationals, as regards his freedom

of religion and of religious education of his children Protection seekers andasylum beneficiaries (refugees or not) may further invoke all kinds of interna-tional law provisions, including human rights law But the freedom of religion

or of education ex Article 10 ECHR or Article 2 of the First Protocol to theEuropean Convention of Human Rights for asylum seekers and asylum bene-ficiaries is not different from the freedoms of other persons Any protectionunder those provisions would not be on account of the danger threateningthem abroad Therefore, it falls outside the scope of asylum as defined aboveand hence outside the scope of “international asylum law”

[18] Three sets of rules of general human rights law are nevertheless addressed

in this study First, rules on procedures Upon a request for asylum, theapproached state sorts out whether the alien qualifies for asylum in “asylumprocedures” Neither the Refugee Convention nor any other treaty explicitlyaddresses asylum procedures in particular But several treaties do address pro-cedural issues in general Thus, Articles 6 ECHR, 14 CCPR and 16 RC entail

a right of access to courts, and Articles 13 ECHR and 2(3) CCPR require an

“effective remedy” for persons “whose rights and freedoms” under those

instruments (such as the prohibitions on refoulement) have been violated.

Article 13 CCPR, finally, states specific procedural guarantees on expulsion

of “lawfully present aliens” These provisions do not address in particular theneed of protection because of a danger threatening the alien abroad But their

application to refoulement cases is informed by that need Moreover, asylum

procedures are of decisive importance for the possibility to exercise in aneffective way any right to protection Therefore, international law that condi-tions asylum procedures is addressed in this study.45

Second, international law on detention During the processing of claims forprotection, states may impose restrictions on the freedom of movement ofapplicants that may amount to detention Articles 9 CCPR and 5 ECHR setconditions on such detention, and address in particular detention in case ofunauthorised entry; application of these provisions is informed by the parti-cular circumstances of aliens who request asylum.46

Third, rules on family unity laid down in Articles 17 and 23 CCPR and 8ECHR As many other provisions of human rights law, they may apply to anyalien Neither the circumstance that these provisions may block expulsion (oreven warrant entry) of aliens, nor the assumption that claims concerning fami-

ly unity may be of particular interest for persons in need of protection bringsthem within the scope of international asylum law A partial discussion of theright to respect for family life is nevertheless warranted, as the particular

predicament of persons in need of protection does affect the application of theinternational law provisions on family life (see further Chapter 8.3)

Custom and principles

[19] Next to treaty law, “custom” and “principles recognised by civilisednations” are primary sources of international law (number [9]) For our pur-poses, these sources are of only limited relevance In academic writing, it has

been argued that the prohibition of refoulement is a rule of general or at least

of regional customary law Article 38(1)(b) of the ICJ Statute defines national custom” as “evidence of a general practice, accepted as law”.According to Lauterpacht and Bethlehem, the required “generality” of prac-tice can be inferred from the great number of states party to the Refugee

“inter-Convention or (one of) the other instruments prohibiting refoulement;

Convention Against Torture, the Covenant on Civil and Political Rights andthe European Convention of Human Rights.47The customary rule or “princi-

ple of non-refoulement”, then, is not identical to these treaty obligations, but

their greatest common denominator Thus, the personal scope of this rule ofcustom could not exceed the scope of the prohibitions in treaty law Next toobligations under those treaties, the rule of custom would therefore have nomeaning

Nevertheless, in one respect the customary prohibition of refoulement may

be relevant for this study The Community is not bound under international

treaty law to observe the prohibitions of refoulement International customary

law does, however, work within the Community legal order The relevance of

the (alleged) customary prohibition of refoulement for European asylum law

will be addressed under number [105]

As far as I know, neither in state practice nor in academic writing, haveprinciples of international law on asylum been identified But principles, espe-cially the principle of effectiveness, do play a role in the interpretation oftreaty law on asylum, and will be addressed accordingly (see par 6.2.2)

Concluding remarks

[20] The Refugee Convention and the prohibitions of refoulement, then, are

the main constituents of international asylum law Together, the rights ferred in the Refugee Convention bestow, to a considerable degree, asylum inthe broad sense (cf number [10]), and hence offer protection in the broadsense suggested above Article 3 ECHR, 3 CAT and 7 CCPR have meaningnext to the Refugee Convention, as they offer protection to persons not enti-tled to Refugee Convention protection For example, Article 33 RC restricts

con-the application to human right violations inflicted “on account of […] race,religion, nationality, membership of a particular social group or political opi-

nion”- a condition absent in the other prohibitions of refoulement Also,

per-sons who committed serious crimes (as meant in Article 1F RC, cf number[12]) are excluded from refugee protection, but they may still be entitled to

protection from refoulement offered by Articles 7 CCPR, 3 CAT and 3 ECHR.

In other respects, however, the protection offered by the last mentioned sions is more restricted It concerns only protection from expulsion, not enti-tlement to those other benefits laid down in the Refugee Convention In fact,most Member States do grant certain secondary rights to persons who do notqualify for refugee status but who cannot be removed because Article 3 CAT,

provi-3 ECHR or 7 CCPR applies – so called “subsidiary forms of protection”48- ,but there is no indication that they regard the grant of secondary rights to sub-sidiary protection beneficiaries as an obligation rather than a discretionarycompetence.49

Other human rights law is addressed only if its application to aliens in need

of asylum is strongly informed by their need of protection This holds true forinternational law on procedures, on detention and on family unity As theserules do not specifically address asylum, I will not label them as “internatio-nal asylum law”

1.4.2 Interpretation

1.4.2.1 The Vienna Convention on the Law of Treaties

[21] The meaning of treaty law must be established autonomously fromdomestic law, and interpretation rules can therefore be found only in interna-tional law.50 Two means of interpretation relevant for the present study areidentified by Article 38(d) of the Statute of the International Court of Justice:

“judicial decisions and the teachings of the most highly qualified publicists ofthe various nations” The Statute labels them as “subsidiary means for thedetermination of the rules of law”, which implies that they are not sources oflaw, but rather serve as means to clarify the obligations flowing from treatylaw, customs and principles

For the interpretation of treaty law, Articles 31, 32 and 33 of the ViennaConvention on the Law of Treaties (henceforth also: Vienna TreatyConvention or VTC) provide for interpretation rules.51In their quality as treatylaw, they apply only to States party to the Vienna Treaty Convention, i.e to

only 20 out of the 25 Member States,52and only to treaties concluded after theentry into force of the Convention in 1980,53which excludes application to theRefugee Convention, the European Convention of Human Rights and theCovenant on Civil and Political Rights But the interpretation rules in Articles

31, 32 and 33 VTC are generally seen as a codification of customary law.54

States not party to the Vienna Treaty Convention are therefore bound to applyidentical rules.55Hence, Articles 31, 32 and 33 VTC can be safely applied toall instruments of international asylum law

[22] Article 31 and 32 VTC list the means of interpretation Article 31 runs asfollows:

“General rule of interpretation

1 A treaty shall be interpreted in good faith in accordance with the nary meaning to be given to the terms of the treaty in their context and

ordi-in the light of its object and purpose

2 The context for the purpose of the interpretation of a treaty shall prise, in addition to the text, including its preamble and annexes:(a) any agreement relating to the treaty which was made between all theparties in connexion with the conclusion of the treaty;

com-(b) any instrument which was made by one or more parties in ion with the conclusion of the treaty and accepted by the other par-ties as an instrument related to the treaty

connex-3 There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the pretation of the treaty or the application of its provisions;

inter-(b) any subsequent practice in the application of the treaty which blishes the agreement of the parties regarding its interpretation;(c) any relevant rules of international law applicable in the relationsbetween the parties

esta-4 A special meaning shall be given to a term if it is established that theparties so intended.”

[23] First of all, a treaty should be interpreted “in good faith” As tion by Contracting States is part of the performance under the concernedtreaty, assessment of its meaning should be in accordance with the principle

interpreta-pacta sunt servanda Hence, if interpretation of a provision in accordance with

text, object and purpose and other means mentioned in Article 31 VTC leads

to manifestly absurd or unreasonable results when applying the provision,another interpretation should be sought.56The “general rule of interpretation”

further states that interpretation should be based on text, object and purpose,the context, including agreements and instruments concluded “in connection”with the treaty, as well as later agreements among and state practice of theContracting States, and relevant rules of international law

[24] Should we assume that a strict hierarchical order prevails among thesevarious means, in the sense that context, object and purpose should beaddressed only in case the ordinary meaning does not yield a clear result?57

The text of Article 31(1) does not imply a strict distinction; rather, it suggeststhat the ordinary meaning can be established only within the context and in thelight of its object and purpose Elias points out that the four main elementsmentioned in Article 31(1) – (3) VTC (i.e ordinary meaning, context, objectand purpose, subsequent agreements and practice between the states party tothe treaty and applicable general rules of international law),

“are not to be regarded as hierarchical, but are to be applied as an ted or interdependent whole It contains a statement of the elements in ageneral rule, not series of rules The use of the word “context” in all threeparagraphs of the Article is designed to emphasize this integratedscheme”.58

integra-The case law by the International Court of Justice confirms this approach:

“The rule of interpretation according to the natural and ordinary meaning

of the words employed “is not an absolute one Where such a method ofinterpretation results in a meaning incompatible with the spirit, purposeand context of the clause or instrument in which the words are contained,

no reliance can be validly placed on it.”59

Thus, the interpretation does not stop when a meaning compatible with thewording is reached: this meaning has to be put against the background of theobject and purpose of the treaty concerned The International Court of Justicefurther has clarified that

“[…] in accordance with customary international law, reflected in article

31 of the 1969 Vienna Convention on the Law of Treaties, a treaty must beinterpreted in good faith in accordance with the ordinary meaning to begiven to its terms in their context and in the light of its object and purpose.Interpretation must be based above all upon the text of the treaty As a sup-plementary measure recourse may be had to means of interpretation such

as the preparatory work of the treaty and the circumstances of its sion.”60

conclu-So, emphasis should be put on the text of the treaty This does not imply apreference for the ordinary meaning above interpretation to object and pur-

pose, as object and purpose are mostly explicitly laid down in treaties (forexample, in the preamble) Indeed it is hard to see how a term can be attributedany specific meaning at all out of its context, or what the ordinary meaning

is.61In fact, it may often work the other way: a provision whose terms have avery clear ordinary meaning, may turn out to have an unclear meaning if read

in its context.62The very determination of the clarity of the result attained byreading a provision to its ordinary meaning involves the context as well as theobject and purpose of the provision

[25] Article 32 introduces “supplementary means of interpretation, includingthe preparatory work of the treaty and the circumstances of its conclusion”.These means are “supplementary”, as, according to Article 32,

“Recourse may be had to supplementary means of interpretation […] inorder to confirm the meaning resulting from the application of article 31, or

to determine the meaning when the interpretation according to article 31:

a leaves the meaning ambiguous or obscure; or

b leads to a result which is manifestly absurd or unreasonable.”

It follows that in two instances recourse may be had to supplementary means.First, in order to confirm an interpretation arrived at by application of the

“general rule” of Article 31 VTC Second, if no satisfying result has beenreached in that way (application of the general rule led to “ambiguous”,

“obscure”, “manifestly absurd” or “unreasonable results”), to determine themeaning of the concerned treaty provision In both situations, the means are

“supplementary” in the sense that the general rule must be applied first But

it should be observed that in the second situation the means are not mentary in the sense that they may merely confirm a reading identified bymeans of Article 31 VTC.63

supple-[26] Article 32 VTC mentions one supplementary means of interpretation “in

particular”: the travaux préparatoires or preparatory works to the treaty

con-cerned Their value depends on various factors An important one is,

obvious-ly, the availability of the material The preparatory works for the RefugeeConvention, the Covenant on Civil and Political Rights, the Conventionagainst Torture and the European Convention on Human are all accessible.This condition met, the preparatory works can be invoked against states thatacceded to the treaty (but did not take part in its preparation).64Another impor-tant factor for their value for interpretation is the authenticity of the material.65

Obviously, a statement acclaimed by the preparatory conference has far morevalue than a view expressed by an individual representative

But even when the preparatory works express in a clear way the intentions ofthe Contracting States, they are still only a supplementary means In its

Advisory Opinion on the Namibia case, the International Court of Justice

observed:

“Mindful as it is of the primary necessity of interpreting an instrument inaccordance with the intentions of the parties at the time of its conclusion,the Court is bound to take into account the fact that the concepts embodied

in Article 22 of the Covenant […] were not static, but were by definitionevolutionary […] The parties to the Covenant must consequently bedeemed to have accepted them as such That is why, viewing the institu-tions of 1919, the Court must take into consideration the changes whichhave occurred in the supervening half-century, and its interpretation can-not remain unaffected by the subsequent development of the law […].Moreover, an international instrument has to be interpreted and appliedwithin the framework of the entire legal system prevailing at the time of theinterpretation.”66

Especially the preparatory works to the Refugee Convention are frequentlyinvoked in academic literature on international asylum law When addressingthis material that dates back more than half a century, we have to take due

account of the observation by the International Court of Justice in the Namibia

case quoted above Circumstances have changed; moreover, the 1967 NewYork Protocol to the Refugee Convention had profound influence on the appli-cation of the Refugee Convention’s provisions (cf Article 31(3)(a) VTC) This

is not to discard the value of the preparatory works as a supplementary means,but calls for caution when basing interpretation of the Convention upon them.[27] The Refugee Convention, the Covenant on Civil and Political Rights, theConvention Against Torture as well as the European Convention on HumanRights are laid down in more than one language version, which are equallyauthentic.67 Each of those texts has legal force, and their terms are presumed

to have the same meaning; in principle, the rules laid down in Articles 31 and

32 apply.68Thus, if the meaning of a provision is unclear in one authentic text,the terms of another text may be clearer If however comparison of authentictexts discloses a conflict that the application of Articles 31 and 32 VTC doesnot solve, “the meaning which best reconciles the texts, having regard to theobject and purpose of the treaty, shall be adopted”.69

[28] In sum, the Vienna Convention on the law of Treaties as well as the sions by the International Court of Justice support the distinction between the

deci-“general means of interpretation” on the one hand and the “supplementarymeans” on the other They do not indicate a hierarchical distinction among thegeneral means of interpretation, mentioned in Article 31 VTC

The material discussed above allows for three observations on tion First, “the primary necessity of interpreting an instrument in accordancewith the intentions of the parties”.70 This principle explains the distinctionbetween general means and supplementary means: the contracting parties didnot express consent to be bound as to the latter It follows, secondly, that

interpreta-“interpretation must be based above all upon the text of the treaty”,71includingcontext and object and purpose as laid down in the treaty: they express theconsensus of the contracting parties Third, interpretation must be consistentwith the entire legal system at the time of the interpretation

1.4.2.2 Treaty monitoring bodies

[29] Any interpreter of a treaty should apply the means of interpretation cussed above, be it a state, a scholar, or a monitoring body established by therelevant treaties Views issued by the latter bodies, however, may have parti-cular significance for the interpretation, by virtue of an arrangement to thatextent established by those treaties As much of the following chapters isdevoted to analysis of views of those bodies, the legal significance of theseviews for interpretation of the instruments of international asylum law will beassessed at some length

dis-UNHCR and ExCom

[30] The Refugee Convention does not establish its own monitoring body TheInternational Court of Justice is competent to rule on the settlement of dis-putes concerning the content of the Refugee Convention,72 but it has neverbeen called upon to do so as only states, not individuals or (international)organisations can bring cases before it.73Interpretation of the Convention restsprimarily with the states party to it

[31] Apart from state practice, there are two important sources for the pretation of the Refugee Convention Firstly, opinions issued by the UnitedNations High Commissioner for Refugees.74According to Article 35(1) of theRefugee Convention, states party to it

inter-“undertake to co-operate with the Office of the United Nations HighCommissioner for Refugees, […], in the exercise of its functions, and shall