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23 March 1994
Doc. 7052
1403-11/3/94-4-E
REPORT
on the right of asylum
(Rapporteur: Mr FRANCK,
Sweden, Socialist Group)
Summary
Historically, the Council of Europe, though it never incorporated a right to asylum into a legally binding instrument, always asked its members to treat refugees and asylum-seekers in a "particularly liberal and humanitarian spirit", in full respect of the principle of non-refoulement. Recent developments in the field of asylum policy in many member states have put this practice into question.
Since two of the aims of the Council of Europe are bringing its member states closer together and protecting human rights, now should be the time to take common action in the Council of Europe, to ensure fairness to all persons in need of protection, and to reduce friction over sharing asylum responsibilities between its member states by initiating collective European co-operation. The right of asylum is a pan-European problem that requires a pan-European solution.
Thus the Assembly recommends that the Committee of Ministers urgently take action concerning the roots of current problems, the asylum-procedures themselves and the status of asylum-seekers and refugees in international law.
I. Draft recommendation
1. Important developments and considerable changes in respect of the right to territorial asylum, both in Council of Europe member states and on the international level, have taken place in the five years since the adoption of Recommendation 1088 (1988) on the right to territorial asylum.
2. The international political and economic situation is such, that the number of refugees seeking asylum in Council of Europe member states has rocketed and reached levels unknown to Europe since the Second World War. Reasons for this development can be found in the fall of communist regimes in eastern Europe, the civil war in the territories of the former Yugoslavia, the economic disparity between the industrialised countries and the poorer ones, and on-going human rights abuses, both in Europe and the world at large.
3. The large influx of asylum-seekers made it more difficult for many European states to process applications for asylum in an appropriate amount of time, sometimes leading to the impression that European countries were being overrun by asylum-seekers. A part of the population of some of these countries is influenced by racist and xenophobic propaganda and is showing increasing hostility towards asylum-seekers. Moreover, there is the problem of economic migrants who pose as refugees and apply for asylum to gain access to Council of Europe member states. They are sometimes difficult to separate from the true and sincere asylum-seekers.
4. On these and other political grounds, many states made their previously liberal asylum laws more restrictive. Multilateral treaties like the Schengen Agreements, the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Community (the Dublin Convention) and the Treaty on European Union (the Maastricht Treaty) reinforce these trends.
5. It is likely that the above mentioned treaties will result in stricter controls at the external borders of member states of the European Union, no longer admitting many refugees into European Union territory. Already some European Union states apply the rule of the "safe third country" or "host third country", meaning that only refugees not having passed through a country considered safe, where they could have applied for asylum first before entering the European Union state concerned, may apply for asylum in that state. This is bound to increase the burden of protection and assistance for refugees and asylum-seekers disproportionately for member states of the Council of Europe which are not members of the European Union and/or for states that have less restrictive asylum practices or are geographically close to asylum-seekers' countries of origin. It might even result in the refoulement of refugees (especially de facto refugees) who should have been given asylum.
6. Historically, the Council of Europe, though it never incorporated a right to asylum into a legally binding instrument, always asked its members to treat refugees and asylum-seekers in a "particularly liberal and humanitarian spirit", in full respect of the principle of non-refoulement. Since two of the aims of the Council of Europe are bringing its member states closer together and protecting human rights, now should be the time to take common action in the Council of Europe, to ensure fairness to all persons in need of protection, and to reduce friction over sharing asylum responsibilities between its member states by initiating collective European co-operation. The right of asylum is a pan-European problem that requires a pan-European solution.
7. The Assembly regrets that not all member states of the Council of Europe have ratified the Geneva Convention of 1951 (United Nations Convention relating to the Status of Refugees) and its additional Protocol.
8. Therefore the Assembly recommends that the Committee of Ministers:
i. concerning the roots of current problems:
a. urge member states, especially new member states, to incorporate in their domestic law and implement the rights of minorities, provisions aiming at preventing or reducing statelessness, and the prohibition of discrimination and racist or xenophobic activities, so that no more situations are created which could lead to people having to leave their country for fear of persecution, other dangers to their lives and integrity or because of statelessness;
b. ask member states to intensify their work on human rights outside Europe (where a substantial amount of asylum-seekers come from), for example, through the United Nations or development aid programmes;
c. request member states to implement expeditiously the plan of action on combating racism, xenophobia, antisemitism and intolerance decided upon at the Vienna Summit;
d. invite member states to improve their co-operation in trying to disband human smugglers' rings;
ii. concerning asylum-procedures:
a. urge member states to rely more on pan-European co-operation (agreements and co-operation extending to all Council of Europe member states, not just bilateral or multilateral agreements or practices, such as the "safe third country"-practice, involving only a few of the member countries) when harmonising asylum-procedures or trying to distribute the responsibilities more fairly;
b. ask member states to accept an increased role of the Council of Europe in the field of the right to asylum, and to strengthen the Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) in its role, instructions and resources;
c. establish an additional forum within the framework of the Council of Europe: a responsible, co-ordinating agency with more (executive) powers than other presently existing fora can command; in this context, the proposal of the Danish government for the establishment of a "European Refugee Commission", launched in April 1993, deserves careful attention;
d. authorise the above-mentioned "European Refugee Commssion" to formulate the guidelines to be observed - basing itself on the most generous solutions - and also to consider the solutions arrived at in every member state with a view to avoiding in member states any discrepancies in the procedures for the granting of asylum;
e. propose to member states to appoint a European High Commissioner for Refugees to work in close co-operation with the United Nations High Commissioner for Refugees without prejudice to his mandate, to help focus member states' governments and populations on the plight of asylum-seekers and refugees in Europe;
f. insist that asylum-procedures and visa policies, in particular ones recently changed through national laws or on the basis of European Union treaties, continue to be based on the 1951 Geneva Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms - remembering that the latter implies obligations also vis-a-vis persons who are not necessarily refugees in the sense of the 1951 Geneva Convention -, and allow no infringements to be made, especially not on the generally accepted principle of non-refoulement, and the prohibition of rejection of asylum-seekers at the border;
g. ask member states to abide by the guidelines set by the United Nations High Commissioner for Refugees (UNHCR) when interpreting the criteria for the granting of refugee status, and to act upon criticisms of new national asylum-laws or multilateral treaties made by the UNHCR;
h. suggest to member states to create a fund, in order to give financial and logistic aid to those member countries (especially new member countries) that are overburdened by the mass arrival of asylum-seekers or the novelty of being a receiving country;
i. considering the developments in the former Yugoslavia, urge member states to extend protection to displaced persons through applying accordingly the number of minimum standards as formulated in 1981 in Conclusion No. 22 (XXXII) on the "protection of asylum seekers in situations of large-scale influx" of the Executive Committee of the UNHCR;
j. ask for more openness in the matter of quota refugees in general and an increase in the number of quota refugees accepted by each Council of Europe member State in particular;
k. urge governments of member states in view of the current international situation to insure that asylum is granted to those in need of it, as they have promised to do so before;
l. follow the suggestions made in its Recommendation ... (1994) on the situation of asylum-seekers whose asylum applications have been rejected;
iii. concerning the status of asylum-seekers and refugees in international law:
a. amend the European Convention for the Protection of Human Rights and Fundamental Freedoms to include a right of asylum, basing the text to be adopted on the suggestions made in Assembly Recommendation 293 (1961) or in Appendix II of the 1988 report on the right of asylum (Doc. 5930);
b. failing the incorporation of a right of asylum in the convention, draw up a separate agreement on the right of asylum, containing not only a clarification of the legal status of asylum-seekers and displaced persons, but also laying out model (harmonised) procedures and criteria for determining refugee status in full compatibility with the 1951 Geneva Convention, the 1967 New York Protocol and other relevant principles of international refugee law;
c. draw up a legal instrument for the protection of de facto refugees who - in international law - are not even afforded the basic refugee protection secured through the 1951 Geneva Convention and 1967 New York Protocol;
d. take back the initiative on the matter of the responsibility for examining asylum requests by adopting the draft agreement on the matter submitted by the CAHAR to the Committee of Ministers in 1989;
e. invite those member states which have not yet done so, to ratify the Geneva Convention of 1951 and its additional Protocol.
II. Explanatory memorandum
by Mr FRANCK
Table of contents:
Page
I. Introduction 6
II. Definitions 8
a) Refugee 8
b) Asylum-seeker 9
c) Asylum 9
d) Non-refoulement 9
III. Brief History 9
IV. Evaluation of new developments since 1988 11
V. Possible solutions 14
Concerning the roots of current problems 14
Concerning asylum-procedures 15
Concerning the status of asylum-seekers and
refugees in international law 16
I. Introduction1,
1. In Order No. 442 (1988), the Parliamentary Assembly instructs its Committee on Legal Affairs and Human Rights and the Committee on Migration, Refugees and Demography, for opinion, to continue following closely all developments in respect of the right to territorial asylum in Council of Europe member states.
2. In observance of this order, the following report will deal only with issues relating to refugees and asylum-seekers proper. The Rapporteur is aware that there is a problem concerning economic migrants who pose as refugees and apply for asylum to gain access to Council of Europe member states. Their applications are usually rejected as `manifestly unfounded'. A report and recommendation on the situation of these rejected asylum-seekers is going to be submitted by Mr Flückiger, Chairman of the Committee on Migration, Refugees and Demography to the Assembly in April 1994. The Rapporteur shall thus not deal with this issue. He would further like to refer those interested in migration issues in general to Recommendations 1148 (1991) on Europe of 1992 and migration policies, 1187 (1992) on relations between migrants and trade unions and 1188 (1992) on migratory flows in Czechoslovakia, Hungary and Poland.
3. In the last five years, there have been important developments and considerable changes in respect of the right to territorial asylum, both in some Council of Europe member states and on the international level.
4. The international political and economic situation is such, that the number of refugees seeking asylum in Council of Europe member states has rocketed and reached levels unknown to Europe since the second world war. In comparison with the number of refugees and asylum-seekers received in other parts of the world, for example in Africa, Europe's share is still rather small; but it has gone up in the last years.
5. With the fall of communist regimes in eastern Europe, new migratory flows started. For example, from 1990 to 1992 Romanians constituted a large number of asylum-seekers in most Council of Europe member states — in Hungary in 1990 Romanians constituted 95% of the total, in Austria 54% and in Germany in 1992 24%.
6. The civil war in the territories of the former Yugoslavia has produced millions of people fleeing the conflict. An estimated 3,44 million people have been displaced, of which 2,7 million have found refuge inside the former Yugoslavia. Yet the figure for externally displaced persons might be a lot higher than the official estimate of 695 000, because many are not registered; for example, Germany alone reckons its has 500 000 on its soil.
7. The economic disparity between the industrialised countries and the poorer ones, plus human rights abuses, both in Europe and the world at large, gave rise to a large number of people who are not recognised as refugees under the Geneva Convention, but who nevertheless seek protection in Council of Europe member states. Thus many applicants for asylum in Council of Europe member states in the early nineties came from outside Europe, for example from Zaire, Somalia, Angola, Iran, Iraq, Sri Lanka, China and Peru.
8. The large influx of asylum-seekers made it more difficult for many European states to process applications for asylum in an appropriate amount of time. A rising percentage of applications for asylum were rejected as "manifestly unfounded", meaning that they did not fall under the Geneva Convention definition (for example they did not fear persecution, but were economic migrants). A part of the population of some European countries is being influenced more by racist and xenophobic propaganda, partly for these reasons.
9. On these and other political grounds, many states made their previously liberal asylum laws more restrictive. Multilateral and European Union (EU) treaties like the Schengen Agreements, the Convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Community (the Dublin Convention) and the Treaty on European Union (the Maastricht Treaty)2 reinforce these trends.
10. It is likely that the above mentioned treaties will result in stricter controls at the external borders of European Union member states, no longer admitting many refugees into European Union territory. (Already some European Union states apply the rule of the "safe third country" or "host third country", meaning that only refugees not having passed through a country considered safe, where they could have applied for asylum first before entering the European Union state concerned, may apply for asylum in that state.) This is bound to increase the burden of protection and assistance for refugees and asylum-seekers disproportionately for non-European Union Council of Europe members and/or for states that have less restrictive asylum practices or are geographically close to asylum-seekers' countries of origin. It might even result in the refoulement3 of refugees who should have been given asylum.
11. Historically, the Council of Europe, though it never incorporated a right to asylum into a legally binding instrument, always asked its members to treat refugees and asylum-seekers in a "particularly liberal and humanitarian spirit",4 in full respect of the principle of non-refoulement. Since two of the aims of the Council of Europe are bringing its member states closer together and protecting human rights, now could be the time to take common action in the Council of Europe, to ensure fairness to all persons in need of protection, and to reduce friction over sharing the asylum burden between its member states by initiating collective European co-operation.
II. Definitions
12. It seems necessary to define terms that are often used in this report and that may be unclear or misleading:
a. Refugee
13. De jure, a person is a refugee under the 1951 Geneva Convention and the 1967 New York protocol if he
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country..." (1951 Geneva Convention, Article 1.A.2).
A person who has been recognised by a state under these conditions is also called a convention refugee, and is usually granted asylum in the country concerned. A person whose request for refugee status has not been recognised can still be allowed to stay for humanitarian reasons in the state that rejected its application if he is granted a special status, which, depending on the country, is referred to as humanitarian, B, de facto status, etc. The term de facto refugees has also sometimes been used with regard to people who are unable to return to their country of origin but are reluctant to claim refugee status (for example, because they fear reprisals against their families), who are hidden in other categories of aliens such as foreign students, migrant workers and visitors, or asylum-seekers whose applications have been rejected but who have not been deported. Additionally, people who have fled from violence caused by wars or civil wars are sometimes, although they may, indeed, qualify as refugees under the 1951 Geneva Convention, referred to as displaced persons, or de facto refugees. There is also a difference between internally displaced persons, who are still in their own country, though in a different part of it, and externally displaced persons, who have crossed one or more international borders in their flight.
14. It should be noted here that other legal instruments define the term refugee in a broader sense. For example, the expanded definition of the 1969 Convention of the Organisation of African Unity (OAU) includes under the term of refugee
"every person who, owing to external aggression, occupation, foreign domination or even seriously disturbed public order in either part or the whole of his country of origin or nationality, is compelled to leave..." (1969 Convention of Organisation of African Unity).
b. Asylum-seeker
15. A person who has applied for asylum and is awaiting a decision is known as an asylum-seeker.
c. Asylum
16. There are two types of asylum: territorial asylum and diplomatic asylum. To grant territorial asylum initially means to admit a persecuted person to the territory of the state concerned; with diplomatic asylum it is admission into the embassy of the respective state. It is the sovereign right of a state to grant or refuse asylum. If asylum is granted to persons who fear persecution, asylum also implies a measure of protection, the minimum protection being that against refoulement.
d. Non-refoulement
17. Non-refoulement is the generally accepted principle that a refugee or asylum-seeker will not be expelled, deported, or otherwise forcibly returned in any way to the territory which he fled or to a territory where his life or freedom would be threatened or where he fears persecution. It is included in the 1951 Geneva Convention in the following manner:
"No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (1951 Geneva Convention, Article 33, paragraph 1.)
III. Brief History
18. The present situation in international law as regards the right of asylum started out under the United Nations auspices after the second world war. The millions of refugees and displaced persons in Europe at that time led the United Nations first to include a right "to seek and enjoy asylum" in its Declaration on Human Rights (1948) and to call into life the United Nations High Commissioner for Refugees (UNHCR) in 1950, a body to deal with refugee problems (which were perceived to be temporary); then to draw up the 1951 Geneva Convention relating to the Status of Refugees. Only persons who became refugees "as a result of events occurring before 1 January 1951" were covered under the convention, and there was also an optional geographical limitation to "events occurring in Europe".
19. In the fifties, refugees from communist countries (for example from Hungary after 1956) were granted asylum in Europe, but with persecuted people arriving from all over the world it slowly became clear that refugee problems were not limited only to Europe or to results of the second world war. So in 1967 a protocol to the Geneva Convention was signed in New York, which abolished the deadline of 1 January 1951 completely and relinquished the geographic limitation for all states that wished it.5 In 1973 a protocol to the 1957 United Nations Agreement relating to refugee seamen did the same for those who became refugees at sea.
20. Up until the seventies, the dynamic economies of the European countries were well able to integrate a high number of migrants and refugees. But as Europe slowly slid into recession, many European states closed their door to immigrants. Thus, asylum applications went up by a factor of six during the eighties, putting considerable strain on the asylum systems. As already mentioned in the introduction of this report, the resulting overburdening has increasingly led to the adoption of more restrictive asylum laws and the rise of xenophobia and racism in parts of the population of the countries concerned.
21. The Council of Europe did not include a legally binding right to asylum in its Convention for the Protection of Human Rights and Fundamental Freedoms in 1950. But the Articles 3 ("No one shall be subjected to torture or to inhuman or degrading treatment or punishment.") and 8 (which includes the right to private and family life), as well as Article 13 (the right to an "effective remedy before a national authority" in case of the violation of a person's fundamental rights and freedoms) — and very rarely Articles 4 and 5 — have been invoked in the past before the European Court and Commission of Human Rights to halt deportations in asylum cases. Thus there may be grounds for the assertion that there is an implied right to de facto asylum under the Convention.
22. The Assembly never was satisfied with this implied right, especially since proceedings before the European Commission and Court of Human Rights may take several years and they have no suspensive effect. Thus the Assembly repeatedly called for the inclusion of a right to asylum in a protocol to the Convention itself, for example in its Recommendations 293 (1961) and 1088 (1988). Alternatively, the Assembly suggested elaborating a separate European convention on territorial asylum (Recommendations 842 (1978), 1016 (1985), 1088 (1988)). As a minimum, the Assembly insisted on the prohibition of refoulement (for example in Recommendation 434 (1965)), and tried to extend its protection to de facto refugees (Recommendation 773 (1976)).
23. The Assembly also called for the harmonisation of eligibility practices for refugees (Recommendation 787 (1976)). Lately, it tried to have the "asylum burden" shared more equally between the Council of Europe member states.
24. The Committee of Ministers of the Council of Europe not always followed the recommendations of its Assembly, but it did request that governments should "act in a particularly liberal and humanitarian spirit in relation to persons who seek asylum on its territory" (Resolution (67) 14), and reinforced that request in its Declaration on Territorial Asylum of 18 November 1977.
25. The Committee of Ministers also instituted an Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) in the same year. In accordance with its terms of reference, it follows developments in the field of asylum, refugees and stateless persons in particular in member states of the Council of Europe. As a committee, CAHAR holds regular exchanges of views, and draws up legal instruments for discussion and adoption by the Committee of Ministers.
26. In 1981 the Committee of Ministers recommended that the governments of member states apply a number of important principles in dealing with asylum requests, including, for example, that a decision on an asylum request should be taken only by a central authority and that there should be recourse to a higher administrative authority or to a court should the request be refused (Recommendation (81) 16). In 1984 the Committee of Ministers expressly recommended to member states the extension of the protection the non-refoulement principle offered to de facto refugees (Recommendation (84) 1).
IV. Evaluation of new developments since 1988
27. Since 1988, the situation regarding asylum-seekers and refugees has become even more complex and difficult. As a result of the changing international situation, an increasing number of asylum-seekers has come to Council of Europe member countries. But at the same time, many states have tightened their asylum laws or controls and practices at the border, as did, for example, Denmark, France, Germany and Spain in 1992, and Austria, Finland, the Netherlands and Portugal in 1993.
28. Some countries even changed their constitution. The Federal Republic of Germany changed its Basic Law that used to include a right to asylum (in Article 16, II.2) on 1 July 1993. The newly formulated Article 16.a does not guarantee the right to asylum any more for asylum-seekers who entered Germany via a "safe third country" or from a so-called "safe" country of origin. This list of safe countries of origin is established by law and currently includes such countries as Bulgaria, the Czech Republic, Gambia, Ghana, Hungary, Poland, Romania, Senegal and the Slovak Republic. To many this list may look somewhat arbitrary.
29. Other Council of Europe member states might soon follow suit under the pressure of too large a number of asylum-seekers. Already France is considering amending its constitution in a similar manner as Germany did; the compilation of lists of "safe" countries is seen as a very popular instrument to control the number of asylum-seekers flowing into a country.
30. The compilation of such lists of "safe" countries, be they "safe third countries" or "safe countries of origin" (often just called "countries with no serious risk of persecution"), is judged as a very worrisome development by many human rights organisations that work in the asylum field. These lists can be highly questionable: It is often not clear, why some countries are included and others are not. Also these lists might not reflect the most current situation (if, for example, there should be a serious deterioration of the human rights situation in one of the countries listed, and the new leadership started persecuting people, these refugees might not be able to claim asylum); nor might the lists do justice to individual cases of persecution in generally persecution-free countries. Additionally, whether a country is considered "safe" by a European government could be influenced by foreign policy and trade objectives.
31. Many new national asylum laws include restrictions on initial access to the state's territory: some states require valid travel documents (for example an international passport), some additionally a valid visa for asylum-seekers even to be able to lodge an application for asylum. Naturally it is often difficult, if not impossible, for genuine asylum-seekers fleeing persecution or war to acquire these documents through legal means — or in any way at all. Thus, people in urgent need of protection run the risk of being refused entry at the border, or being refouled for the lack of documents, which is a clear violation of the principles embodied in the 1951 Geneva Convention and its 1967 Protocol.
32. Many European states impose sanctions on airlines that admit asylum-seekers lacking proper travel documents; this means, some asylum-seekers might already be barred from even boarding a plane out of their home country. Additionally, the waiting at ports of entry for a decision on the admissibility of an asylum request has led to "alarming situations at many European airports" (Assembly Recommendation 1163 (1991)).6
33. The Assembly of the Council of Europe recommended that its member states harmonise their policies and practices concerning the reception of asylum-seekers, in particular at airports, and ensure that respect for international obligations concerning asylum-seekers and their humanitarian treatment is guaranteed (Recommendation 1163 (1991)). On the basis of the ad hoc terms of reference of the Committee of Ministers, the CAHAR is currently developing certain guidelines for member states in this respect.
34. In a similar context, some asylum laws (for example in Austria, France, Italy, Norway, Portugal and Switzerland) provide for the possibility to expel the asylum-seeker while his or her appeal procedure is still pending, especially as far as "manifestly unfounded" cases are concerned. Many European governments also show the tendency to grant only a discretionary temporary permission to remain instead of full convention status, and are even increasing the use of administrative detention and the threat of expulsion. These are developments the Assembly should be very worried about, because they undermine the Geneva Convention of 1951 and its 1967 Protocol.
35. The radical political and social changes sweeping over central and eastern Europe in 1989-90 created a fundamentally new role for some European countries, such as Hungary, Poland, and the Czech and Slovak Republics, as immigration countries and "countries of first asylum". The restrictions adopted by some of the west European states, in form of the Schengen Agreements, the Dublin Convention and the Maastricht Treaty7 — or new national laws — have led to a large concentration of migrants and asylum-seekers in these states. For example, Hungary had to deal with 18 283 asylum-seekers in 1990 alone, Poland in 1991 with 2 433 and the Czech Republic with 1 948 — and these figures do not include unregistered refugees, estimated to be 8 000-80 000. This might not seem much in comparison with the influx into Germany (which totalled 118 050 in the first quarter of 1993!), but of course it is quite a burden for these not so well prepared countries.
36. Some other Council of Europe member states, especially the Nordic countries, are also afraid of an increased burden in the context of the restrictions on entry emanating from these treaties or new national laws, since they themselves apply less stringent controls. The figures available for the first quarter of 1993 seem to substantiate their claim: applications made for asylum in Finland, Norway and Sweden went up by an average of 20% or more compared with the numbers in 1992, while the number of applications made to Austria, France, Greece, and Switzerland actually fell, in Austria's case by as much as 75%; probably because of the tighter asylum laws and stricter border-controls of the latter. The results of Germany's new asylum law, which came into force on 1 July 1993, might be even more drastic for the Nordic countries or countries neighbouring countries of origin of asylum-seekers. This might conceivably lead to a "domino or spill-over effect" of tighter asylum laws and stricter border-controls also taking hold in these — previously more liberal — countries.
37. The Assembly is deeply concerned about these developments. It suggested in Recommendation 1188 (1992), that all its member states participate in burden-sharing arrangements especially with the new European immigration countries through the acceptance of asylum-seekers and other migrants from the countries of first asylum and to increase their co-operation with them.
38. Another worrisome development is the high incidence of asylum-seekers being smuggled over European borders by professional human smugglers' rings. They often demand impossibly high prices for their "services", so that not only are those who can and do pay left without a penny, but also those who cannot pay often cannot get across a European border to apply for asylum — and they may be the ones most in need of protection.
39. As regards the completion of the internal market in the European Union and the new restrictions on entry to their common territory, the Assembly has reason to be concerned about some aspects of the treaties concluded among the Twelve and their possible results. For example, the Dublin Convention8 provides for an exchange of information between national authorities on asylum-seekers that may not comply completely with the standards set up in the Council of Europe Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data. The European Parliament has also expressed its dissatisfaction with some aspects of the treaties in its last annual report.
40. The Assembly thus concluded that the co-ordination of European refugee policies cannot just be based on common restrictive measures and be limited to the twelve member states of the European Union (Recommendation 1149 (1991)), but needs to extend to all Council of Europe member states and be harmonised on the basis of the 1951 Geneva Convention relating to the Status of Refugees (and the 1967 New York Protocol) and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
41. The developments in the former Yugoslavia have produced a very large number of displaced persons and refugees fleeing the situation of war and generalised violence. These people are in urgent need of at least temporary shelter and protection, and have been putting a big strain on the reception capacities not only of neighbouring countries, such as Hungary and Austria, but the on the whole of Europe.
42. The Assembly thus asked its member states to show greater solidarity with the countries accommodating displaced persons by stepping up aid (Recommendation 1176 (1992)). It also suggested the establishment of "safe havens" in the former Yugoslavia itself, strengthened solidarity between all European states in view of the need to increase reception offers for the refugees, and the speeding up of the reception of refugees once the decision of principle to accept them has been taken. The Assembly took the refugee-situation resulting from the civil war in the former Yugoslavia as a pointer that the work on clarifying and harmonising the legal status of persons fleeing situations of war and generalised violence has to be speeded up (Recommendation 1205 (1993)).
43. The number of quota refugees Council of Europe member states accept in cooperation with the United Nations High Commissioner for Refugees (UNHCR) is unfortunately very low. Most member states take in only 500-1000 such refugees a year -please see Appendix III for exact numbers - and seem reluctant to take in higher numbers, the few well-publicised cases involving wounded children from Bosnia-Hercegovina being the exception to the rule.
V. Possible solutions
44. The Committee of Ministers of the Council of Europe and many of its member states have, regrettably, not taken up the recent recommendations of the Assembly. Yet the situation regarding asylum-seekers, displaced persons and refugees9 in Europe is worsening by the day. There is an urgent need for action on several points that have been mentioned in this report so far, to avoid a further deterioration of the situation that people fleeing persecution or war face in Europe.
45. There are solutions to ameliorate the refugee situation, which the Assembly could recommend to the Committee of Ministers. Some concern the roots of Europe's current problems of high influx of asylum-seekers and tired host-country populations, some the asylum procedures themselves, and others fundamental changes in international law.
46. Concerning the roots of current problems:
a. The Council of Europe could once more urge its member states, especially its new member states, to incorporate in their domestic law and implement the rights of minorities, provisions aiming at preventing or reducing statelessness and the prohibition of discrimination and racist or xenophobic activities, so that no more situations are created which could lead to people having to leave their country for fear of persecution, other dangers to their lives and integrity or because of statelessness. For the same reason, Council of Europe member states might intensify their work on human rights outside Europe (where a substantial amount of asylum-seekers come from), for example through the United Nations or development aid programmes.
b. The Council of Europe could request its member states not to give in to popular discontent and extremist propaganda that seeks to limit the access of asylum-seekers and refugees to Council of Europe member states for selfish reasons. Instead, it could urge the member states concerned to implement expeditiously the plan of action on combating racism, xenophobia, anti-Semitism and intolerance decided upon at the Vienna Summit, and to promote — in co-operation with the UNHCR — understanding for the plight of sincere asylum-seekers, refugees and displaced persons.
c. Council of Europe member states could co-operate more in trying to combat human smugglers' rings.
47. Concerning asylum procedures:
a. The Council of Europe could urge its member states to rely more on European co-operation when harmonising asylum procedures or trying to distribute responsibilities more evenly. Agreements and co-operation extending to all Council of Europe member states should take preference over bilateral or multilateral agreements involving only a few of the member countries. The right of asylum is a pan-European problem that requires a pan-European solution. The Council of Europe, which already has integrated most of the Greater Europe not represented in the European Union, would be an appropriate candidate for working out such a solution.
i. Although several fora of international, and, especially, European (on European Union level), co-operation dealing with asylum procedures already exist, the current extreme situation as regards the number of asylum-seekers and refugees that results in an over-burdening of existing systems might merit an increased role of the Council of Europe in this respect. This could be achieved through strengthening the role, instructions, and resources of the Council of Europe's only body dealing with these issues, the CAHAR.10
ii. Another possibility might be the establishment of an additional forum within the framework of the Council of Europe. To succeed, this forum would have to be a responsible, co-ordinating agency with more (executive) powers than other presently existing fora can command. In this context, the proposal of the Danish Government for the establishment of a "European refugee commission", launched in April 1993, deserves careful attention.
iii. Ultimately though, even such a commission as the Danish Government envisages would lack the powers to harmonise effectively the application of the criteria governing the granting of refugee status in particular. Previous fora, based on the same "soft approach" to harmonisation (the exchange of information) as the proposed new forum, have failed so far in this respect. If a real harmonisation of the application of the criteria governing the granting of refugee status is deemed desirable, a single supreme jurisdiction — which could be the European Court of Human Rights — with the power to assess the decisions taken in each of the member states should be considered in addition to the aforementioned "European refugee commission" that could formulate the guidelines to be observed. Since the granting of asylum is a sovereign state right, this proposal is bound to raise some objections. But ultimately it is the only way of preventing discrepancies in asylum procedures in Council of Europe states.
iv. The appointment of a European high commissioner for refugees might help to focus the attention of member states' governments and their populations on the plight of asylum-seekers and refugees in Europe. Such a high commissioner might support the United Nations High Commissioner for Refugees in her work, on a regional basis.
b. The Council of Europe should insist that asylum-procedures and visa policies, in particular ones recently changed through national laws or on the basis of European Union treaties, continue to be based on the 1951 Geneva Convention and its 1967 Protocol, relevant conclusions adopted by the Executive Committee of the UNHCR Programme, the European Convention for the Protection of Human Rights and Fundamental Freedoms and relevant recommendations and resolutions adopted by the Committee of Ministers and the Parliamentary Assembly, remembering that the latter imply obligations also vis-à-vis persons who are not necessarily refugees in the sense of the 1951 Geneva Convention. There should be no infringements made, especially not on the generally accepted principle of non-refoulement, and the prohibition of rejection of asylum-seekers at the border.
c. The Council of Europe should also ask its member states to abide by the guidelines set by the office of the UNHCR when interpreting the criteria for the granting of refugee status (and in particular the UNHCR Handbook on Procedures and Criteria for determining Refugee Status, because it is recognised as having the most expertise in this area. Criticisms of new national asylum laws or multilateral treaties made by the UNHCR should be acted upon by member states' governments.
d. In the interest of a most humanitarian treatment of asylum-seekers, the Council of Europe could further recommend to its member states to introduce expeditious and fair asylum procedures, if they have not already done so. In this context, the idea of giving financial and logistic aid to those member countries (especially new member countries) that are overburdened by the mass arrival of asylum-seekers or the novelty of being a receiving country, should be given serious consideration. The importance of burden-sharing between all Council of Europe member states cannot be stressed enough. The creation of a joint financial fund might provide the practical means of achieving this aim.
e. Lastly, the Council of Europe should ask the governments of its member states in view of the current international situation to insure that asylum is granted to those in need of it. Considering the developments in the former Yugoslavia, Council of Europe member states should especially extend protection to displaced persons through applying accordingly the number of minimum standards as formulated in 1981 in Conclusion No. 22 (XXXII) on the "Protection of Asylum Seekers in Situations of Large-Scale Influx" of the Executive Committee of the UNHCR. More openness in the matter of quota refugees in general, and an increase in the number of quota refugees accepted by each Council of Europe member state in particular, might also help to ameliorate the situation.
48. Concerning the status of asylum-seekers and refugees in international law:
a. The Council of Europe should once again consider amending the European Convention for the Protection of Human Rights and Fundamental Freedoms to include a right of asylum. The text adopted could be that suggested in Assembly Recommendation 293 (1961) or in Appendix II of the 1988 report on the right of asylum (Doc. 5930).
b. Failing the incorporation of a right of asylum in the Convention, the Council of Europe should consider drawing up a separate agreement on the right of asylum. This agreement could contain not only a clarification of the legal status of asylum-seekers and displaced persons, but could also lay out model (harmonised) procedures and criteria for determining refugee status — again, of course, in full compatibility with the 1951 Geneva Convention, the 1967 New York Protocol and other relevant principles of international refugee law.
c. Additionally, the drawing up of a legal instrument by the Council of Europe for the protection of de facto refugees who — in international law — are not even afforded the basic refugee protection secured through the 1951 Geneva Convention and 1967 New York Protocol could be very desirable.
d. Since the parallel agreement of the Dublin Convention is currently about to be extended to include other European countries, the Council of Europe should try to take back the initiative on this matter. The draft agreement on the responsibility for examining asylum requests submitted by the CAHAR to the Committee of Ministers in 1989, is superior to the Dublin Convention, especially since it is formulated against the background of all the other Council of Europe legal instruments. The Council of Europe should try to have this draft agreement adopted after all.
e. Special attention should be focused also in the legal field on pan-European co-operation, so that the burden that caring for asylum-seekers and refugees can present is shared by all European countries, and perhaps even some other non-European industrialised countries, too.
49. There is an urgent need for action in the field of right of asylum. The Rapporteur hopes that the Committee of Ministers and the governments of member states will consider his suggestions carefully, and approve as many of the solutions outlined above as possible. The last definite action of the Committee of Ministers on this subject dates back to 1984. Since then, the situation in the field of the right of asylum has worsened considerably - it is action that is needed now, if the situation is not to become unmanageable. The Rapporteur would like to repeat: The right of asylum is a pan-European problem that requires a pan-European solution.
APPENDIX I
Summaries of important texts
I. The Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Community (Dublin Convention):
1. This treaty was concluded on 15 June 1990 in Dublin, within the framework of the European Political Co-operation (and not within the formal framework of the European Communities).
2. The Dublin Convention, while it is the first formal instrument of international law that defines the concepts normally referred to as "asylum-request" and "asylum-seeker" (Article 1.b and c.), does not define the general concept of asylum and does not prescribe that a Contracting State shall — or shall not — grant asylum. Applications for asylum shall be examined by the member state responsible for it in accordance with its national laws and international obligations, especially those under the 1951 Geneva Convention and 1967 New York Protocol.
3. The convention sets rules for determining the state responsible for examining applications for asylum. It stipulates that each application for asylum shall be examined, but the application shall be examined only by one single member state. Nevertheless, each Member State shall have the right to examine an application for which it is not responsible under the criteria defined in the convention, if the asylum-seeker agrees thereto.
4. Any member state also retains the right to send an applicant for asylum to a third state (not a member of the European Communities) in compliance with the provisions of the 1951 Geneva Convention and the 1967 New York Protocol.
5. The convention stipulates that the state responsible for examining a specific asylum request is firstly, the member state where a close family member of the applicant resides with recognised convention refugee status, and secondly, the member state that issued a residence permit or the permit with the longest validity or expiry date.
6. Thirdly, the member state that issued a visa or the visa with the latest expiry date or longest period of validity is held responsible for the application. In cases of irregular entry, the first member state of entry has to examine the application or asylum; when no entry visa is required, the requested state has to. If the application for asylum is made in transit in an airport of a member state, the requested state is responsible for processing the asylum-request; and if none of the above rules are applicable, it is the first requested member state.
7. The Dublin Convention also provides for the mutual exchange between the member states of general information on asylum-procedures and information on individual cases.
8. A committee comprising one representative of the government of each member state is to be established. That committee shall examine, at the request of member states, any general question of application or interpretation pertaining to the convention.
II. The Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Checks at their Common Borders, the Convention applying the Schengen Agreement of 14 June 1985, and the Protocol of Accession to the Agreement and the Agreement of Accession to the Convention (Schengen Agreements):
1. The original Schengen Agreement signed on 14 June 1985 concerns the movement of persons, measures relating to narcotic drugs and fire-arms, co-operation between police services, mutual assistance in criminal matters, extradition, aliens law, mutual exchange of information, transport and movement of goods. It did not include measures of immediate concern to asylum-seekers and refugees.
2. In the convention applying the Schengen Agreement, signed on 19 June 1990, Title II, Chapter 7: "Responsibility for the processing of applications for asylum", Articles 28-38, relate specifically to asylum-seekers and refugees. The provisions concerning asylum-seekers are very similar to those of the Dublin Convention, so need not be elaborated here.
3. A few major differences need to be pointed out, though:
a. The provisions of the Schengen Convention shall apply only in so far as they are compatible with Community law, so that the Schengen Convention's application can be more closely controlled, for example by the European Parliament, than the Dublin Convention, whose status with respect to Community law is debatable.
b. Title II, Chapter 6, Article 26 obliges Contracting Parties to incorporate into their national laws rules:
i. obliging air, sea or land carriers to assume responsibility for aliens refused entry and — at the request of the authorities — to "return the alien to the third state from which he was transported, to the third state which issued the travel document on which he travelled or to any other third state to which he is guaranteed entry";
ii. obliging air and sea carriers and carriers of groups by coach to "take all necessary measures to ensure that an alien ... is in the possession of the travel documents required for entry into the territory of the Contracting Parties";
iii. imposing penalties on carriers who transport aliens who do not possess the necessary travel documents.
III. The Treaty on European Union (Maastricht Treaty):
In this case, a reproduction of the relevant articles of the Treaty on European Union seems more suitable than a summary:
TITLE VI
Provisions on co-operation
in the fields of justice and home affairs
Article K
Co-operation in the fields of justice and home affairs shall be governed by the following provisions.
Article K.1
For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, member states shall regard the following areas as matters of common interest:
1. asylum policy;
2. rules governing the crossing by persons of the external borders of the member states and the exercise of controls thereon;
3. immigration policy and policy regarding nationals of third countries:
a. conditions of entry and movement by nationals of third countries on the territory of member states;
b. conditions of residence by nationals of third countries on the territory of member states, including family reunion and access to employment;
c. combating unauthorised immigration, residence and work by nationals of third countries on the territory of member states;
4. combating drug addiction in so far as this is not covered by 7 to 9;
5. combating fraud on an international scale in so far as this is not covered by 7 to 9;
6. judicial co-operation in criminal matters;
8. customs co-operation;
9. police co-operation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs co-operation, in connection with the organisation of a Union-wide system for exchanging information within a European Police Office (Europol).
Article K.2
1. The matters referred to in Article K.1 shall be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Convention relating to the Status of Refugees of 28 July 1951 and having regard to the protection afforded by member states to persons persecuted on political grounds.
2. This title shall not affect the exercise of the responsibilities incumbent upon member states with regard to the maintenance of law and order and the safeguarding of internal security.
Article K.3
1. In the areas referred to in Article K.1, member states shall inform and consult one another within the Council with a view to co-ordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations.
2. The Council may:
—on the initiative of any member state or of the Commission, in the areas referred to in Article K.1 (1) to (6);—
—on the initiative of any member state, in the areas referred to in Article K.1 (7) to (9):a.
a. adopt joint positions and promote, using the appropriate form and procedures, any co-operation contributing to the pursuit of the objectives of the Union;
b. adopt joint action in so far as the objectives of the Union can be attained better by joint action than by the member states acting individually on account of the scale or effects of the action envisaged; it may be decide that measures implementing joint action are to be adopted by a qualified majority;
c. without prejudice to Article 220 of the Treaty establishing the European Community, draw up conventions which it shall recommend to the member states for adoption in accordance with their respective constitutional requirements.
Unless otherwise provided by such conventions, measures implementing them shall be adopted within the Council by a majority of two-thirds of the High Contracting Parties.
Such conventions may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down.
APPENDIX II
Selected texts
Draft Agreement on responsibility
for examining asylum requests
The member states of the Council of Europe, signatory to this Agreement,
1. Recalling their undertakings under the Convention relating to the Status of Refugees signed at Geneva on 28 July 1951 and the Protocol thereto signed at New York on 31 January 1967, as well as their continued observance of the liberal traditions of the European democracies regarding asylum;
2. Considering that the responsibilities inherent in these undertakings and traditions must be borne jointly by all Council of Europe member states and that to this end it is desirable to specify which state is responsible for examining an application for asylum in each case;
3. In order to offer a collective assurance of adequate protection to all persons requiring it on grounds of the persecutions that they risk for the reasons specified in Article 1 of the 1951 convention;
4. Considering that each Council of Europe member state is in a position to grant adequate protection to the persons requiring it on the aforesaid grounds, even where for some countries this may involve a considerable burden;
5. Considering nevertheless that the burden must be borne jointly and shared by all the states concerned;
6. Considering that the aim of the Council of Europe is to achieve greater unity among its members;
7. Bearing in mind the advantage to asylum seekers of having their applications examined promptly;
8. Having regard to the European Convention on Human Rights, and in particular Article 3 thereof;
Have agreed as follows:
Article 1
1. In accordance with the liberal and humanitarian traditions of the member states of the Council of Europe, the parties shall co-operate for the purpose of granting to persons who are persecuted or fear persecution on the grounds specified in Article 1 of the 1951 convention the full protection secured to them by the said convention, and shall in particular co-operate with a view to establishing which state is responsible for examining an asylum application.
2. The parties accordingly shall ensure effective co-operation among themselves and if possible shall seek such co-operation with the other member states of the Council of Europe with a view to securing effective implementation of this Agreement and to resolving any problems deriving therefrom.
Article 2
1. Save as provided elsewhere in this article, where a person makes an asylum application to a party and he has come to the territory of that party from the territory of another party or parties, the party responsible for examining that application shall be the party whose territory it is established that he first entered.
2. That responsibility, however, shall lie in the following order with:
a. the party which issued a visa or residence permit to the person concerned provided that the visa or permit is valid at the time of entry into the territory of a party;
b. the party on to whose territory the person concerned has entered in accordance with the law of that party and where that person requested asylum.
3. Where the aforementioned person holds visas or permits issued by two or more parties, the visa or permit whose validity has the longest duration shall be relevant for the purposes of sub-paragraph a. above.
4. a. Where a person is in transit in a port, including an airport, and remains on the vessel or aircraft or in the transit area of the port or airport which is outside or before passport control and as a result he is not required to undergo the formal procedure of admission to the territory, such transit shall not be regarded as an entry within the meaning of paragraph 1.
b. Where, however, the person makes an asylum application during such a transit, the party of transit shall be responsible for examining the application unless another party is already responsible under this article.
Article 3
When, on the basis of Article 2, it is not possible to establish which party is the party responsible for examining an asylum application, that responsibility shall lie, in the following order:
a. with the party on to whose territory it is established that the person went before proceeding to the territory of any other party,
b. with the party on whose territory the person is present.
Article 4
Nothing in this Agreement shall prevent any party from exercising its sovereign right to examine any asylum application. Should that be the case, the responsibility of any other party ceases to exist.
Article 5
1. where a person is on the territory of a party other than the party which is responsible under this Agreement to examine his or her asylum application, the latter party shall, at the request of the former, admit that person to its territory for the purpose of reaching a decision on that application.
The request shall contain adequate information enabling the authorities of the requested party to establish that that party is responsible for examining the asylum application on the basis of this Agreement.
2. The obligation of any party to admit a person within the meaning of paragraph 1 shall, however, lapse, whenever one of the following conditions is fulfilled:
a. if the request for admission is not made within six months at the latest from the date of the asylum application, or
b. if the person concerned has left the territory of that party more than six months at the time the request for admission is made.
Article 6
1. Any party having conclusively rejected the asylum application made by a person whom it does no longer authorise to remain on its territory and that person is subsequently found to be present on the territory of another party in breach of the latter's legislation, shall admit that person to its territory at the request of the latter party.
2. However, paragraph 1 shall not apply where the former party has ensured the removal of the person concerned to the territory of a third state.
Article 7
Article 8
1. Should any party assert that, because of the operation of this Agreement, the number of asylum applications for which it is responsible has grown disproportionately, it may notify that fact, accompanied by supporting figures, to the Secretary General of the Council of Europe who shall forward the notification to the other parties as well as to the Office of the United Nations High Commissioner for Refugees.
2. Should the party that initiated the procedure laid down in paragraph 1 assert that the situation which gave rise to the notification has not been redressed after a period of six months, that party may request the Secretary General of the Council of Europe to open consultations aimed at redressing the situation or to take any other action that he deems fit.
Article 9
1. For the purposes of this Agreement, any party to which an asylum application has been addressed, may request from any other party the following information:
a. data concerning the identity of the asylum-seeker and his civil status;
b. whether the asylum-seeker has addressed an asylum application to the latter party and the outcome;
c. whether the asylum-seeker has stayed or has been on the territory of the latter party and in what circumstances;
d. whether any person belonging to the asylum-seeker's family is staying on the territory of the latter party and, if so, since when and on what basis.
2. A party shall in no case seek to obtain that information from the state of origin of the asylum-seeker in pursuance of this Agreement.
3. Where necessary, the party requested may indicate the relevant safeguards laid down in its domestic law and to which the transmission of the information is subject. Moreover, it may refuse to communicate the information where such communication would be contrary to its domestic law.
4. Information obtained by virtue of the implementation of this article shall in no case be used for purposes other than the application of this Agreement.
Article 10
Admission of a person resulting from the implementation of one or other of the provisions of Articles 2, 3 or 5 shall take place as soon as possible upon request addressed by one party to the other party.
Article 11
1. Nothing in this Agreement shall be interpreted as precluding a party from examining an asylum application on wider grounds existing in its national law or practice than those provided for under this Agreement.
2. Nothing in this Agreement shall impair any rights and benefits which have been or which may be granted by the parties to asylum-seekers independently of this Agreement.
Article 12
The competent authorities of the parties may communicate directly with each other as regards the application of this Agreement. These authorities shall be specified by each state, when expressing its consent to be bound by the Agreement, by means of a notification addressed to the Secretary General of the Council of Europe.
Article 13
This Agreement does not apply to persons whose asylum application was addressed to a party before the date of entry into force of the Agreement with respect to that party.
Article 14
1. This Agreement shall be open for signature by the member states of the Council of Europe and by the European Communities, which may express their consent to be bound by:
a. signature without reservation as to ratification, acceptance or approval, or
b. signature subject to ratification, acceptance or approval, followed by ratification, acceptance or approval.
2. Instruments of ratification, acceptance or approval shall be deposited with the Secretary General of the Council of Europe.
Article 15
1. This Agreement shall enter into force on the first day of the month following the expiration of a period of one month after the date on which five member states of the Council of Europe have expressed their consent to be bound by the Agreement, in accordance with the provisions of Article 14.
2. In respect of any member state which subsequently expresses its consent to be bound by it, the Agreement shall enter into force on the first day of the month following the expiration of a period of one month after the date of signature or of the deposit of the instrument of ratification, acceptance or approval.
Article 16
1. After the entry into force of this Agreement, the Committee of Ministers of the Council of Europe may invite any state not a member of the Council of Europe which is a party to the Convention relating to the Status of Refugees of 28 July 1951 or, as the case may be, the Protocol relating to the Status of Refugees of 31 January 1967, to accede to the Agreement. The decision to invite shall be taken by the majority provided for by Article 20 d. of the Statute and by the unanimous vote of the representatives of the Contracting States entitled to sit on the Committee.
2. In respect of any acceding state, the Agreement shall enter into force on the first day of the month following the expiration of a period of one month after the date of deposit of the instrument of accession with the Secretary General of the Council of Europe.
Article 17
1. Any signatory may at the time of signature or when depositing its instrument of ratification, acceptance, approval or accession, specify the territory or territories to which this Agreement shall apply.
2. Any party may at any later date, by a declaration addressed to the Secretary General of the Council of Europe, extend the application of this Agreement to any other territory specified in the declaration. In respect of such territory the Agreement shall enter into force on the first day of the month following the expiration of a period of one month after the date or receipt by the Secretary General of such declaration.
3. Any declaration made under the two preceding paragraphs may, in respect of any territory specified in such declaration, be withdrawn by a notification addressed to the Secretary General. The withdrawal shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of such notification by the Secretary General.
Article 18
1. Any party may at any time denounce this Agreement by means of a notification addressed to the Secretary General of the Council of Europe.
2. Such denunciation shall become effective on the first day of the month following the expiration of a period of six months after the date of receipt of the notification by the Secretary General.
Article 19
The Secretary General of the Council of Europe shall notify the member states of the Council as well as the European Communities of:
a. any signature;
b. the deposit of any instrument of ratification, acceptance, approval or accession;
c. any date of entry into force of this Agreement in accordance with Articles 15 to 18;
d. any other act, notification or communication relating to this Agreement.
1981 (Executive Committee — 32nd Session)
No. 22 (XXXII) Protection of asylum-seekers
in situations of large-scale influx11
The Executive Committee,
Noting with appreciation the report of the group of experts on temporary refuge in situations of large-scale influx, which met in Geneva from 21 to 24 April 1981, adopted the following conclusions in regard to the protection of asylum-seekers in situations of large-scale influx.
I. General
1. The refugee problem has become particularly acute due to the increasing number of large-scale influx situations in different areas of the world and especially in developing countries. The asylum-seekers forming part of these large-scale influxes include persons who are refugees within the meaning of the 1951 United Nations Convention and the 1967 Protocol relating to the Status of Refugees or who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country.
2. Asylum-seekers forming part of such large-scale influx situations are often confronted with difficulties in finding durable solutions by way of voluntary repatriation, local settlement or resettlement in a third country. Large-scale influxes frequently create serious problems for states, with the result that certain states, although committed to obtaining durable solutions, have only found it possible to admit asylum-seekers without undertaking at the time of admission to provide permanent settlement of such persons within their borders.
3. It is therefore imperative to ensure that asylum-seekers are fully protected in large-scale influx situations, to reaffirm the basic minimum standards for their treatment pending arrangements for a durable solutions, and to establish effective arrangements in the context of international solidarity and burden-sharing for assisting countries which receive large numbers of asylum-seekers.
II. Measures of protection
A. Admission and non-refoulement
1. In situations of large-scale influx, asylum-seekers should be admitted to the state in which they first seek refuge and if that state is unable to admit them on a durable basis, it should always admit them at least on a temporary basis and provide them with protection according to the principles set out below. They should be admitted without any discrimination as to race, religion, political opinion, nationality, country of origin or physical incapacity.
2. In all cases the fundamental principle of non-refoulement — including non-rejection at the frontier — must be scrupulously observed.
B. Treatment of asylum-seekers who have been temporarily admitted to a country pending arrangements for a durable solution
1. Article 31 of the 1951 United Nations Convention relating to the Status of Refugees contains provisions regarding the treatment of refugees who have entered a country without authorisation and whose situation in that country has not yet been regularised. The standards defined in this article do not, however, cover all aspects of the treatment of asylum-seekers in large-scale influx situations.
2. It is therefore essential that asylum-seekers who have been temporarily admitted pending arrangements for a durable solution should be treated in accordance with the following minimum basic human standards:
a. they should not be penalised or exposed to any unfavourable treatment solely on the ground that their presence in the country is considered unlawful; they should not be subjected to restrictions on their movements other than those which are necessary in the interest of public health and public order;
b. they should enjoy the fundamental civil rights internationally recognised, in particular those set out in the Universal Declaration of Human Rights;
c. they should receive all necessary assistance and be provided with the basic necessities of life including food, shelter and basic sanitary and health facilities; in this respect the international community should conform with the principles of international solidarity and burden-sharing;
d. they should be treated as persons whose tragic plight requires special understanding and sympathy. They should not be subjected to cruel, inhuman or degrading treatment;
e. there should be o discrimination on the grounds of race, religion, political opinion, nationality, country of origin or physical incapacity;
f. they are to be considered as persons before the law, enjoying fee access to courts of law and other competent administrative authorities;
g. the location of asylum-seekers should be determined by their safety and well-being as well as by the security needs of the receiving state. Asylum-seekers should, as far as possible, be located at a reasonable distance from the frontier of their country of origin. They should not become involved in subversive activities against their country of origin or any other state;
h. family unity should be respected;
i. all possible assistance should be given for the tracing of relatives.
j. adequate provision should be made for the protection of minors and unaccompanied children;
k. the sending and receiving of mail should be allowed;
l. material assistance from friends or relatives should be permitted;
m. appropriate arrangements should be made, where possible, for the registration of births, deaths and marriages;
n. they should be granted all the necessary facilities to enable them to obtain a satisfactory durable solution;
o. they should be permitted to transfer assets which they have brought into a territory to the country where the durable solution is obtained; and
p. all steps should be taken to facilitate voluntary repatriation.
III. Co-operation with the Office of the United Nations High Commissioner for Refugees
Asylum-seekers shall be entitled to contact the Office of the UNHCR. The UNHCR shall be given access to asylum-seekers. The UNHCR shall also be given the possibility of exercising its function of international protection and shall be allowed to supervise the well-being of persons entering reception or other refugee centres.
IV. International solidarity, burden-sharing and duties of states
1. A mass influx may place unduly heavy burdens on certain countries; a satisfactory solution of a problem, international in scope and nature, cannot be achieved without international co-operation. States shall, within the framework of international solidarity and burden-sharing, take all necessary measures to assist, at their request, states which have admitted asylum-seekers in large-scale influx situations.
2. Such action should be taken bilaterally or multilaterally at the regional or at the universal levels and in co-operation with the UNHCR, as appropriate. Primary consideration should be given to the possibility of finding suitable solutions within the regional context.
3. Action with a view to burden-sharing should be directed towards facilitating voluntary repatriation, promoting local settlement in the receiving country, providing resettlement possibilities in third countries, as appropriate.
4. The measures to be taken within the context of such burden-sharing arrangements should be adapted to the particular situation. They should include, as necessary, emergency, financial and technical assistance, assistance in kind and advance pledging of further financial or other assistance beyond the emergency phase until durable solutions are found, and where voluntary repatriation or local settlement cannot be envisaged, the provision for asylum-seekers of resettlement possibilities in a cultural environment appropriate for their well-being.
5. consideration should be given to the strengthening of existing mechanisms and, if appropriate, the setting up of new arrangements, if possible on a permanent basis, to ensure that the necessary funds and other material and technical assistance are immediately made available.
6. In a spirit of international solidarity, governments should also seek to ensure that the causes leading to large-scale influxes of asylum-seekers are as far as possible removed and, where such influxes have occurred, that conditions favourable to voluntary repatriation are established.
Reporting committee: Committee on Legal Affairs and Human Rights.
Budgetary implications for the Assembly: none.
Reference to committee: Order No. 442 (1988) of 7 October 1988.
Draft recommendation adopted by the committee on 21 March 1994 with 21 votes in favour and 5 abstentions.
Members of the committee: Lord Kirkhill (Chairman), MM. Schwimmer, Jansson (Vice-Chairmen), Andriukaities (Alternate: Bobelis), Amaral, Arnalds, Bentkowski, Berti, Bindig, Borg, Bucar, Candal, Chevalier, Columberg, Croze, Deasy, Espersen, Fogas (Alternate: Fico), Franck, Frunda, Sir Peter Fry, MM. Fuhrmann, Galanos, Guenov, Hadjidemetriou, Hagard, MrsHaller, Mrs Holand, MM. Hunault, Inönü, Mrs Jaani, MM. Jaskiernia, Jurgens, Karas, Karcsay, Kempinaire, Mrs Lentz-Cornette, MM. Loutfi, Maginas, Polli, Rathbone, Robles Fraga, Rodotà, Rokofyllos, Severin,Mrs Soutendijk-van Appeldoorn (Alternate: Mr Jurgens), Soysal, Stoffelen, Tabadji, Trojan, Vinçon, Vogel, von Schmude, Mrs Wohlwend, Mr Zapatero.
N.B. The names of those members who took part in the vote are printed in italics.
Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge.
1 1A bibliography of documents and publications on which this report is based is available from the Secretariat of the Committee on Legal Affairs and Human Rights on request.
2 1For summaries of these treaties, please see Appendix I.
3 1For the exact definition of refoulement, please see paragraph 17.
4 2Committee of Ministers Resolution (67) 14, 29 June 1967, Recommendation 1.
5 1Of the member states of the Council of Europe, only Hungary and Turkey kept the geographic limitation to Europe.
6 1Asylum-seekers arriving at international airports are in an especially vulnerable situation, since they can be held in "international zones" and refused entry to the country more easily than at a land border.
7 2Please see Appendix I for further information.
8 1For further information on the Dublin Convention, please see Appendix I.
9 1For the exact definitions of refugee, asylum-seeker and displaced person, please see paragraphs 12-17.
10 1Ad Hoc Committee of Experts on the Legal Aspects of Territorial Asylum, Refugees and Stateless Persons, for further information please refer to paragraph 25.
11 1Conclusion endorsed by the Executive Committee of the High Commissioner's programme upon the recommendation of the sub-committee of the whole on international protection of refugees.