Amidst Austria’s decision to impose an cap on the number of applications for asylum, the Europe’s refugee crisis is increasingly turning towards the relevant legal aspects. Some already go as far as already claiming that Austria will certainly violate its obligation under international law. Things are, as always when it comes to legal debates in general and international law in particular, a bit less clear. What can already be said at this point is that no such thing as a general right to asylum exists under international law. See, eg, the article on this subject in the Max Planck Encyclopedia of International Law:
„Attempts to establish an individual right to be granted asylum on a universal level have largely failed. Neither the European Convention of Human Rights, nor the universally applicable human rights treaties, like the UN Covenant on Civil and Political Rights of 16 December 1996 or the UN Convention Against Torture of 10 December 1984 contain an individual right of asylum … there is no established right to asylum“
What does exist, however, is a prohibition to send someone back 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.“ (Article 33 1951 Refugee Convention“), commonly non as „non-refoulement“.
It can be argued (see, e.g. James C Hathaway, The Rights of Refugees under International Law, Cambridge University Press 2005, p. 301) that this provision obliges State parties to the Refugee Convention to determine whether a person qualifies as a refugee and, if he or she does, has a right to stay in the country.
[…] where there is a real risk that rejection will expose the refugee ‘‘in any manner whatsoever’’ to the risk of being persecuted for a Convention ground, Art. 33 amounts to a de facto duty to admit the refugee, since admission is normally the only means of avoiding the alternative, impermissible consequence of exposure to risk.
This duty primarily affects neighbouring states of the state where persecution is to be expected. Austria could thus still deny entry to people arriving from basically safe countries. An often ignored provision on non-refoulment is Article 33 paragraph 2 of the 1951 Refugee Convention which reads as follows:
„2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.“
Member States of the European Convention on Human Rights (ECHR), however, are prevented from deporting someone falling under paragraph 2 since the European Court of Human Rights has set a high standard on the principle of non-refoulement. This obligation goes back to the 1989 Soering case (where the court ruled that extraditing someone to the US where he would spend time on death row would violate Article 3 of the European Convention on Human Rights):
in the Court’s view, having regard to the very long period of time spent on death row in such extreme conditions, with the ever present and mounting anguish of awaiting execution of the death penalty, and to the personal circumstances of the applicant, especially his age and mental state at the time of the offence, the applicant’s extradition to the United States would expose him to a real risk of treatment going beyond the threshold set by Article 3 (art. 3). A further consideration of relevance is that in the particular instance the legitimate purpose of extradition could be achieved by another means which would not involve suffering of such exceptional intensity or duration. Accordingly, the Secretary of State’s decision to extradite the applicant to the United States would, if implemented, give rise to a breach of Article 3 (art. 3).
These determinations are also valid in connection with the deportation of asylum seekers/refugees. Austria itself was party to a case concerning the extradition of an individual to Somalia and the possibility that this could amount to a breach of article 3 ECHR already in 1994. In Ahmed versus Austria, the European Court of Human Rights ruled as follows:
- The applicant alleged that, if he were to be deported to Somalia, he would certainly be subjected there to treatment prohibited by Article 3 of the Convention (art. 3), which provides: „No one shall be subjected to torture or to inhuman or degrading treatment or punishment.“ By granting him refugee status on 15 May 1992 the Austrian authorities had, he submitted, recognised the existence of that risk. According to the latest news, the situation in Somalia had not fundamentally changed since then. The country was still the theatre of a fratricidal war between rival clans. He himself was still suspected of belonging to one of these, the USC, and on that account was still at risk of persecution in Somalia. Only his criminal conviction had made him lose his refugee status; however, the alleged seriousness of the offence a person had committed was not sufficient to justify placing his life in danger.
The Government too considered that Mr Ahmed was at risk of being subjected in Somalia to treatment incompatible with Article 3 (art. 3). However, they submitted that they had complied with the requirements of that provision (art. 3) to the extent that Austrian legislation permitted. As the deportation order had become final, it could no longer be deferred. That meant that, as Austrian law stood, the stay of execution of the measure against the applicant was the only means whereby he could lawfully remain in Austrian territory. Moreover, by submitting an application under section 36 (2) of the Aliens Act (see paragraph 27 above), Mr Ahmed would be entitled to have the stay extended for as long as the danger in Somalia persisted. If that application were rejected, he could still apply to the Constitutional Court and the Administrative Court.
The Court reiterates in the first place that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes that the right to political asylum is not contained in either the Convention or its Protocols (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, para. 102).
However, the expulsion of an alien by a Contracting State may give rise to an issue under Article 3 (art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 (art. 3) in the receiving country.In these circumstances, Article 3 (art. 3) implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, p. 35, paras. 90-91; the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, paras. 69-70; the above-mentioned Vilvarajah and Others judgment, p. 34, para. 103; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, paras. 73-74).
The Court further reiterates that Article 3 (art. 3), which enshrines one of the fundamental values of democratic societies (see the above-mentioned Soering judgment, p. 34, para. 88), prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4 (P1, P4), Article 3 (art. 3) makes no provision for exceptions and no derogation from it is permissible under Article 15 (art. 15) even in the event of a public emergency threatening the life of the nation (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, para. 163; the Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, p. 42, para. 115; and the above‑mentioned Chahal judgment, p. 1855, para. 79).
The above principle is equally valid when issues under Article 3 (art. 3) arise in expulsion cases. Accordingly, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration. The protection afforded by Article 3 (art. 3) is thus wider than that provided by Article 33 of the 1951 Convention relating to the Status of Refugees(see paragraph 24 above and the above-mentioned Chahal judgment, p. 1855, para. 80).
Like the Commission, the Court attaches particular weight to the fact that on 15 May 1992 the Austrian Minister of the Interior granted the applicant refugee status within the meaning of the Geneva Convention (see paragraphs 11 and 24 above), finding credible his allegations that his activities in an opposition group and the general situation in Somalia gave grounds to fear that, if he returned there, he would be subjected to persecution (see paragraph 11 above). Although the applicant lost his refugee status two years later, this was solely due to his criminal conviction; the consequences of expulsion for the applicant were not taken into account (see paragraph 12 above).
However, in order to assess the risks in the case of an expulsion that has not yet taken place, the material point in time must be that of the Court’s consideration of the case. Although the historical position is of interest in so far as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive (see the above-mentioned Chahal judgment, p. 1856, para. 86).
With regard to the present situation in Somalia, the Court bases its assessment on the findings of the Commission, to which, under the Convention, the tasks of establishing and verifying the facts are primarily assigned (see, inter alia, the above-mentioned Cruz Varas and Others judgment, p. 29, para. 74). In its report of 5 July 1995 the Commission noted that the situation in Somalia had changed hardly at all since 1992. The country was still in a state of civil war and fighting was going on between a number of clans vying with each other for control of the country. There was no indication that the dangers to which the applicant would have been exposed in 1992 had ceased to exist or that any public authority would be able to protect him.
Before the Court the Government did not contest the applicant’s submission that there was no observable improvement of the situation in his country. On the contrary, they explained that the Austrian authorities had decided to stay execution of the expulsion in issue because they too considered that, as matters stood, Mr Ahmed could not return to Somalia without being exposed to the risk of treatment contrary to Article 3 (art. 3).
That being the case, the Court reaches the same conclusion, which moreover is not contradicted by any material in the file or the information supplied by those who appeared at the hearing; nor, in view of the absolute nature of Article 3 (art. 3), is that conclusion invalidated by the applicant’s criminal conviction or the current lack of State authority in Somalia.
It follows that the applicant’s deportation to Somalia would breach Article 3 of the Convention (art. 3) for as long as he faces a serious risk of being subjected there to torture or inhuman or degrading treatment.
To conclude: Sending refugees or asylum seekers to countries like Syria, Afghanistan, or Somalia, even if they pose a serious security risk, while arguably in conformity with the 1951 Refugees Convention, generally violates the European Convention of Human Rights.
In other words: even if the state authorities conclude that someone from these and countries with a similarly high risk of being exposed to inhumane or degrading treatment or torture is not granted refugee status, he can nevertheless not be sent back. In other words: While there is no general right to asylum in international law, there is a far-reaching prohibition to be sent back to a country where the affected person „faces a serious risk of being subjected there to torture or inhuman or degrading treatment.“