Asylum Law: Non-Refoulement & Rescue at Sea

• The presentation covers the sources of asylum law, the principle of non-refoulement, and rescue at sea.
• The presentation took place on February 24, 2025.

Concepts and Figures

• Important to distinguish between displaced persons and asylum seekers due to forced displacement
• Internally displaced persons are those forced to flee but remain within their country's borders.
• Refugees are outside their country due to fear of persecution based on race, religion, nationality, social group, or political opinion.
• International migrants are outside their country of nationality or habitual residence.
• Migration has always existed and continues
• Increased mobility occurs in a globalized world due to voluntary migration
• Highest levels of forced displacement have been recorded recently
• Wars, violence, persecution, discrimination, natural disasters, and climate change are all humanitarian crises
• 122.6 million people were forcibly displaced worldwide in mid-2024.
• 37.9 million were refugees
• 8 million were asylum-seekers
• 68.3 million are internally displaced.
• 5.8 million are people in need of international protection
• People migrate due to wars, conflicts, disasters, tensions, instability, growing disparities and global job crises
• Communications, transportation, migration networks, industry, business along with new entitlements influence migration
• Western Africa has increased irregular migrant traffic
• Migrants from sub-Saharan countries often use this route.
• The Central Mediterranean Route is used by thousands of migrants yearly between North Africa and Italy
• Tunisia is now the primary departure point.
• The Eastern Mediterranean Route is Europe's biggest migratory route
• Migrants cross from Turkey to Greece by sea or land, or enter Cyprus from Turkey.

Sources of the Right to Asylum

International Sources

• Article 14 of the Universal Declaration of Human Rights states everyone has the right to seek asylum from persecution in other countries
• Having the right to seek asylum does not mean asylum will be granted
• Article 12 of the International Covenant on Civil and Political Rights (1966) states everyone has the right to freedom of movement and the right to leave any country.
• It also states that no one shall be arbitrarily deprived of the right to enter his own country.
• International law gives everyone the right to leave their country and enter their own, but not to enter a third country.
• Sovereignty dictates authorization is required to cross borders, hence identity documents and visas are required in advance to cross
• An exception to sovereignty is the right to seek temporary asylum, meaning they won't be expelled
• Articles 12 and 7 of the International Covenant on Civil and Political Rights, mean no one shall be subjected to torture or cruel punishment
• The de facto right to asylum has a monitoring mechanism: Human Rights Committee
• The Human Rights Committee develops observations, monitors implementation, and receives complaints by protocol ratified
• Article 3 of the Convention Against Torture (1984): No State Party shall expel, return or extradite a person to another State where they would be in danger of being subjected to torture.
• The Committee Against Torture (CAT) is used as a the mechanism to follow.
• Other thematic sources include: Convention on the Elimination of All Forms of Discrimination against Women (1979)
• Also the Convention on the Rights of the Child (1989)
• The violation of women's rights, child's rights and human rights may constitute persecution under the Geneva Convention.
• The Geneva Convention on the Refugee Status occurred in July 1951
• The Geneva Convention Principle of non-refoulement protects from return.
• Article 33 is not an absolute right.

Regional Sources

• Regional source in the Americas id the American Convention on Human Rights (San José, Costa Rica, 1969)
• regional cartagena Declaration on Refugees occurred in November 1984
• For Africa, the African Charter on Human and Peoples' Rights, 1981
• The convention Governing the Specific Aspects of Refugee Problems in Africa occurred in Addis-Ababa, 1969
• In Europe, there are 2 legal orders: the Council of Europe and the European Union
• European Court of Human Rights = Strasbourg judge
• Court of justice of the European Union = Luxemburg judge
• Council of Europe protects the right to life, a fair trial, and private/family life
• The ECHR prohibits the death penalty, collective expulsion, slavery, forced labor, torture, inhuman or degrading treatment.
• The European convention on human rights has no provision for the rights of third foreigners to enter.
• The ECHR provides no provision for the right to asylum, which is different from the EU law
• Additional Protocols to the 1950 Convention (e.g. Protocol no. 4, 1963)
• Vast body of case-law developed by the Court over the years (especially from the late '80s/'90s)
• The ECHR is using Articles 2,3,5, 8 (right to life, prohibition of torture, respect of personal liberty, respect of private/family life)
• Article 3 prohibition of inhuman and degrading treatment is an absolute right.
• Art. 3 ECHR also interpreted according to the person's profile: ex. victim is a minor, see case Mubilanzila v. Belgium
• The Court considers that the refoulement of the second applicant, in such conditions, necessarily caused her a feeling of extreme anguish and demonstrated a flagrant lack of humanity towards her person, having regard to her age and her situation as an unaccompanied minor, so that it reached the threshold required to be classified as inhuman treatment as a breach of the positive obligations of the Belgian State

European Court on Human Rights

• The European Court was created in 1950 and established in 1959
• It monitors the implementation of the ECHR, handles complaints from individuals, etc
• Judgements are binding to the comitted state
• 40% of the overall judgments have concerned 3 Member States?
• Used by the Treaty of Lisbon in 2009, the Court of Justice of the European Union (CJEU) restructured the EU's judicial system
• The CJEU makes sure that EU law is the same through applying and interpreting prelimary questions
• The CJEU is Composed of judges, advocates general, and advisors

ECHR vs CJEU

• ECHR: 1 Judge/MS, 46 MSs in Europe, 9 year term, Staff around 650, 74 million budget
• CJEU: 1 Judge/MS + 11 A.G, 27 MSs in EU, 6 year term, Staff around 2256, 444 mln budget
• The Istanbul Convention 2011 focuses on women's rights, preventing and combating violence against women and domestic violence
• The EU Art 60. provides non-refoulement as a source of law
• Implementation is controlled by a panel of experts: GREVIO
• The Union shall develop a common policy on asylum, subsidiary protection and temporary protection. It must also comply with the principle of non-refoulement
• the EU's Charter of Fundamental Rights, 2000 legally made migration and asylum policies subject to respect for Rights (Treaty of Lisbon 2007)
• Art.19: Collective expulsions are prohibited.
• EU secondary law consists of Regulations like Dublin
• EU secondary law Directive Qualification, Procedure, Reception, Return

Protection Against Refoulement

• The Geneva Convention of 1951 defines refugees, Rights stipulate the rights of refugees and it enshrines the right of non-refoulement.
• There is principle based on the personal standard
• Non-refoulement is only a negative right, not to be sent back, by expulsion, refoulement or even extradition.
• International law has other instruments protect against refoulement such as Art. 7 PDCP and Art. 3 ECHR
• Article 3, ECHR gives absolute protection.

Law Cases

• Case Soering v. United Kingdom, 1989, shows violations not by the UK directly, but violation in question attributed to State who sends the person: the first extraterritorial application of the ECHR
• Article 3 ECHR does not permit exceptions, where the Convention of torture and inhuman punishment enshrines to one of the fundamental values of societies
• The right can be applied to those who have been denied asylum requests
• The state has to deal with torture and inhumane treatment
• It can not be taken into account that they are dangerous or undesireable

Cases on Expulsion

• Hilrsi Jamaa v. Italy is essential to applying non refoulement
• When is a person is protected from refoulement when applying for refugee status?
• A person applying for refugee has to enter the country either permanately or illegally
• They should be in collaboration with the HR
• The action should prevent collective expulsion
• The host state must be territorial whether they may be expelled.
• Human Law has refugees and Human Rights, refugees are limited and human are universal.

Rescue at Sea

• there are tensions regarding rescue when it comes to EU law, fortress of europe and irregular migrants
• EU must allow right to seek ayslum
• Migrants need a touch or contact with the border to allow ayslum
• EU must set safety plans
• EU borders must be controlled, this can occur through various nations

Maritime Law, Obligations and Conventions

• maritime law states safety is necessary
• To save others there are legal documents
• It divided different rescue zones during sea distress through its obligations

Maritime Rescue Facts

• The Italian Coast Guard and the Malta zone exist on the zone
• Frontex has a european guard that takes place to allow management and secure the EU borders
• A syrian was pushed and was rejected as it showed that they werent following joint regulations.
• 2012 stated it stated people could not be expelled

Final Points

• UN human rights also were on the case
• there should be people accounted for
• This is called"Extraterritially

Conclusion

• litigation should be pushed and cases should be followed.