Abstract
Today, terms like ‘asylum’, ‘asylum seeker’, ‘refugee’, ‘refugee protection’, or ‘Refugee Convention’ are increasingly used in different spaces of public discourse, while often the precise substance of the concepts underlying these terms is not addressed and remains rather vague or even inaccurate. To contribute to a clearer understanding of the foundations of asylum and refugee law, this text provides introductory remarks from a historical and conceptual perspective.
As a first step, the text briefly sketches out the historic development of asylum, from the early sources in religious texts and legal practice, to the emergence of the 1951 Refugee Convention and its 1967 Protocol, and the regional developments that followed. On this basis, it discusses the notion of a right to asylum and underlying thoughts in political theory, as well as the definition of ‘refugee’ and the rights of refugees. Finally, the text will refer to current challenges in accessing the right to asylum and refugee protection in the European context.
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Notes
- 1.
Matthew 1, 13–15; 25, 35.
- 2.
Quran 8, 74; 9, 6.
- 3.
Bahá’u’lláh, The Summons of the Lord of Hosts.
- 4.
It is worth noting, however, that already early scholars of international law, such as Hugo Grotius, mentioned a right to asylum in the first half of the seventeenth century [24].
- 5.
- 6.
Convention Relating to the Status of Refugees, further referred to as the 1951 Convention
- 7.
Protocol relating to the Status of Refugees, further referred to as the 1967 Protocol.
- 8.
The term ‘refugee’, beyond its legal definition in international law, has its etymological roots in the word ‘refuge’ in Old French, meaning ‘hiding place’.
- 9.
Up to the early twentieth century, displaced or persecuted individuals and groups in Europe were able to move quite freely to other places and regions.
- 10.
Arrangement with Respect to the Issue of Certificates of Identity to Russian Refugees.
- 11.
Convention relating to the International Status of Refugees, further referred to as the 1933 Convention.
- 12.
Convention concerning the Status of Refugees Coming from Germany.
- 13.
See also GA Resolution 8 (I) of 12 February 1946.
- 14.
It has been even argued that the meaning of the word ‘asylum’ tends to be assumed by those who use it. According to UNHCR, the ‘institution of asylum is not however limited only to the prohibition on refoulement. It includes, inter alia, (1) access of asylum-seekers to fair and effective processes for determining status and protection needs, consistent with the 1951 Convention and its 1967 Protocol; (2) the need to admit refugees to the territories of States; (3) the need for rapid, unimpeded and safe UNHCR access to persons of concern; (4) the need to apply scrupulously the exclusion clauses stipulated in Article 1F of the 1951 Convention; (5) the obligation to treat asylum-seekers and refugees in accordance with applicable human rights and refugee law standards; (6) the responsibility of host States to safeguard the civilian and peaceful nature of asylum; and (7) the duty of refugees and asylum-seekers to respect and abide by the laws of host States’ [15].
- 15.
Such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of all Forms of Racial Discrimination, the Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment, as well as the Convention for the Elimination of all Forms of Discrimination Against Women.
- 16.
Article 1 A [1] deals with ‘Statutory Refugees’, i.e. persons considered to be refugees under the provisions of international instruments preceding the Convention.
- 17.
Some scholars argue, however, that the definition only requires an objective element [13].
- 18.
According to UNHCR, the internal flight alternative can only be applied if the area of relocation is practically, safely, and legally accessible to the individual, if the agent of persecution is not the state itself, if a non-state agent cannot persecute the claimant in that area, if there is no risk of being persecuted or being subject to other serious harm upon relocation, and the claimant can lead a relatively normal life without facing undue hardship in the proposed area [14].
- 19.
In some cases, where the refugee will be under the control and authority of a state party, specific rights can already inhere even though he or she is not even present in the territory of that state [16].
- 20.
According to Gil-Bazo, the constitutions of Angola, Benin, Bolivia, Bulgaria, Burundi, Brazil, Cape Verde, Chad, China, Colombia, Costa Rica, Cuba, Democratic Republic of Congo, the Dominican Republic, Ecuador, Egypt, El Salvador, France, Germany, Guatemala, Guinea-Conakry, Honduras, Hungary, Italy, Ivory Coast, Mali, Mozambique, Nicaragua, Paraguay, Peru, Portugal, Spain, and Venezuela all include a notion of asylum. Their definitions of asylum vary, however, as does their understanding of who qualifies for the protection of asylum [1].
- 21.
As UNHCR has stated ‘The principle of non-refoulement applies to any conduct resulting in the removal, expulsion, deportation, return, extradition, rejection at the frontier or non-admission, etc. that would place a refugee at risk’ [14].
- 22.
UNHCR has noted ‘that the right to asylum in Article 18 of the EU Charter contains the following elements: (1) protection from refoulement, including non-rejection at the frontier; (2) access to territories for the purpose of admission to fair and effective processes for determining status and international protection needs; (3) assessment of an asylum claim in fair and efficient asylum processes (with qualified interpreters and trained responsible authorities and access to legal representation and other organizations providing information and support)) and an effective remedy (with appropriate legal aid) in the receiving state; (4) access to UNHCR (or its partner organizations); and (5) treatment in accordance with adequate reception conditions; (6) the grant of refugee or subsidiary protection status when the criteria are met; (7) ensuring refugees and asylum-seekers the exercise of fundamental rights and freedoms; and (8) the attainment of a secure status’ [15].
- 23.
In this context, inter alia, questions of extraterritoriality or the legal encounter of a state with an individual asylum seeker attempts to extend migration control well beyond the borders of the state, as well as the involvement of private actors plays crucial roles [25].
- 24.
Obstacles to accessing asylum are not only a European phenomenon but a considerable international challenge; see, e.g. the OHCHR’s criticism of Australia’s refugee policy, http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20889&LangID=E.
- 25.
The current rapid and alarming developments in policies and political discourse as regards the EU’s cooperation with Libya cannot be adequately addressed here.
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Reyhani, AN. (2019). Asylum and Refugee Law: Ancient Roots and Modern Challenges. In: Wenzel, T., Drožđek, B. (eds) An Uncertain Safety. Springer, Cham. https://doi.org/10.1007/978-3-319-72914-5_3
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