Ref. :  000020235
Date :  2005-08-09
langue :  Anglais
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Asylum

Asylum

Source :  Hocine Zeghbib


Asylum originally referred to a sacred and inviolable place where a person could find shelter and protection whenever his or her life, liberty or security were endangered. In many ancient civilizations asylum was considered as a religious institution which benefited common law criminals : political offences were thus excluded (1). In Europe this situation prevailed until the XVIIIth century (2).
Along with the withdrawal of the catholic Church there was a double reversal of perspective : now it is the States – who reinforced themselves in the meantime – who offer asylum, not to common law criminals, but to persons worried for political reasons. This entails a transformation of the extent of the notion of asylum which, in the process, loses its humanitarian aspect for the benefit of a much more selective aspect that favors the discretionary judgement of the Prince (3).
From a legal point of view, asylum has been established as a regalian right of the State. The latter determines the conditions under which asylum rights are exercised but it is not admitted to interfere with them in any way (4).

During the XXth century and especially starting with the Universal Declaration of Human Rights of 1948, the different conceptions of the States are subject to several harmonization attempts, at least concerning the defining of the recipient of political asylum, the refugee. But the progress made after the Geneva Convention relative to the protection of refugees and of the stateless that was signed on July 28th, 1951 is now largely insufficient. It is true that the text was meant to solve problems of population displacement in Europe, which populations didn’t represent great numbers inside Europe, and it later carried on its work in the ideological context of the cold war. Today, figures are different, it is estimated that there are over 17 million refugees throughout the world. Asia and Africa are the top two continents in numbers of refugees, far before Europe, Latin America and North America. Since 2001, the number of asylum seekers has gone down 40% in the 50 industrialized countries, with a drop of 22% in Europe, 26% in North America and 28% in Australia and New Zealand. The gap between North and South is widening and the threat that the philosophy of asylum be challenged is likewise becoming more precise. This threat is all the more serious as economic and commercial exchanges are globalized, as it has consequences that extend to entire sections of the world population, as nature is being transformed and as armed conflicts abound. Migratory fluxes which – for a great part — are consequential, cause States to stand on the defensive and blur the line between asylum and immigration. In the main industrialized countries as in developing countries, although for opposite reasons, this state of confusion which is sometimes deliberately maintained induces an increasingly restrictive treatment of asylum applications which constitutes more obstacles on either sides of borders. The right to asylum which, from a judicial point of view, is nothing but the right to seek asylum in a foreign country without guarantee of success, is altered by this. The protection system that characterized the Geneva Convention of 1951 and which was more or less accurately included to the signatory States’ internal regulations is, indeed, slowly but surely giving way to dissuasion regimes. In Europe, many national laws are taking that direction, but so are European laws from which one was legitimately intitled to expect high standards of asylum rights protection. As a matter of fact, the making of European law does not answer national rationales in the sense that this set of law cannot be reduced to the adding up of different national laws : it is their synthesis, not their sum. Yet, in terms of asylum rights, European laws are far from being autonomous and appear as the mere reflection of the Member States’ different legislations.

The Schengen Agreement of 1985, the application Convention of 1990, the Dublin Convention of the same year that were implemented in 1997 and the Treaty of Amsterdam of 1997 that was implemented in 1999 were so many texts which foreshadowed a rather « soft » regime in terms of asylum rights. But the strengthening of States will come along with a series of texts aiming to bypass the Geneva Convention. Among those are the "Dublin II" system of 2003 that designates the State responsible for examining asylum applications, the Eurodac system which came into effect in 2003 and a 2001 directive that organizes specific and temporary protection in cases of sudden population stream as was the case with the Kosovars. Together with those is the 2004 directive that implements the idea of non-State protection and the notion of internal asylum, and to crown it all, the Thessaloniki European Council which has added more confusion by considering « Immigration, Borders, and Asylum » as similar matters. This tangling of measures prefigures the construction of an a minima « common European asylum system » in which notions that are specific to States are prevalent, as for example the notion of « subsidiary protection » - which is but the transposition of the specifically French notion of territorial asylum that comes from what is known as the « loi Chevènement » - or that of the « safe country of origin », introduced by former Spanish Prime Minister Aznar.

What is also being outlined is the prospect of a «European stronghold» circled by high defensive walls and wide, deep moats. These «defensive walls» go back to the Schengen Agreement and to the texts that have since come to implement and strengthen it. Generally speaking, the legal instruments and police measures that result from these texts aimed at drawing an exterior border line common to signatory States that would be impossible to cross for non-Europeans. Obstacles to the right to leave one’s country and to return to it, although it is stated in the Universal Declaration of Human Rights, were first considered as necessary by States and later confirmed by the European Union itself. In their point of view the struggle against clandestine immigration justified such obstacles. The exercise of asylum right was to take the consequences, making access to protection procedures most difficult. The consolidation of the «defensive walls» thus became the main concern of the Union and of its member States, which led to the perfecting of the «Schengen visas» system and of any consequential measure.

But since this was not enough to screen entry in Europe, «moats» were added to the «walls». In the past, moats were used to make the access to stronghold walls difficult, if not impossible. The European Union has set out to develop this «concept» through a mechanism that keeps asylum applicants away from its walls. It is thus accepting the idea that the protection of a refugee can be left to a non-State public body such as a regional or an international organization, and besides, this protection can be ensured «within the country» of origin of the applicant. Thus is the creation of an extra muros « Asylum application processing center »(5). The right to asylum, consecrated as it was by the declarations of opportunist governments of member States, is nothing today but the shadow of an expressly restrictive policy : Europe is building up its external borders and tends, through a series of judicial stratagems, to «outsource» dealing with asylum applications. Just as other large developed political bodies, the European Union is undertaking to dissuade «the richest among the poorest» from venturing the profoundly humane experience which is exile. Even if it takes blurring the line between asylum and immigration.





(1) Denis ALLAND, Dictionnaire de la culture juridique, dir. Denis ALLAND and Stéphane RIALS, Editions Lamy/PUF, Paris, 2003, p. 93 and 94.
(2) Until the XVIIIth century, extradition could be refused to common law offenders but granted to political offenders. The fate of those who were party to Charles 1st assassination who were handed to England by Denmark and the States-General of Holland is a good example of this.
(3) Danièle LOCHAK, "Les mutations du droit d’asile. D’hier à aujourd’hui" , « L’Etranger », Les rendez-vous de l’Histoire, Blois 2002, Editions Pleins Feux, Nantes, 2003.
(4) For instance the French Constitution of 1793 : « The French People gives asylum to foreigners who, in the name of liberty, are banished from their homelands, and refuse it to tyrants ».
(5) Initiatives of this sort are numerous as will testify the Italo-German proposition of August 22nd, 2004, for the creation of a « European institution » that would be in charge of selecting asylum applicants and migrants outside European borders, or also the Italian proposition for the creation of transit centers in Libya.


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