Global rules

In the previous step of this course week, we studied the definition of the term ‘refugee’ in the Geneva Convention of 1951. The Geneva Convention deals specifically with refugees. It sets up minimum standards of treatment, from which it establishes certain rights of refugees.

Under the Convention, the status of refugee is made contingent on a decision of the receiving state to recognise this status. This implies that there is an administrative procedure on this matter in the state where asylum is requested, namely the so-called asylum procedure. This procedure, again, must live up to certain minimum standards.

There is also a minimum standard of rights of asylum seekers and/or refugees, which all states must guarantee. The Geneva Convention mentions notably the following:

• Freedom from penalty for illegal entry or presence in the state of reception, provided that the persons seeking asylum present themselves without delay to the authorities and show good cause for their illegal entry or presence (Art. 31);
• Freedom from expulsion for refugees lawfully in the territory of the state of reception, save on grounds of national security or public order (Art. 32);
• Freedom from so-called refoulement (Art. 33). The French term refoulement is used in this context to describe expulsion or the return of a refugee to the frontiers of territories where this person’s life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion.

Note that the right to emigrate, the right to seek asylum and the non-refoulement rule also find expression in numerous human rights instruments of international and European law. For example, the right to seek asylum is guaranteed under Art. 14 of the United Nations’ Universal Declaration of Human Rights (UDHR). The non-refoulement principle is enshrined in Art. 7 of the International Covenant on Civil and Political Rights (ICCPR), Art. 3 of the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and Art. 45 VI. of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Times of War (GC). It is also part of what is called customary international law. This term refers to international obligations arising from established state practices in combination with these states’ opinion that such practice is law, as opposed to international treaties. Moreover, the non-refoulement principle is part of Art. 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

Note further that while Art. 33(2) of the Geneva Convention foresees certain exceptions to the principle of non-refoulement, other international and regional instruments set forth an absolute prohibition, without exceptions of any sort. In practice, states sometimes define what they call ‘safe countries’, ie countries where they deem that there is no danger for the migrant, also in the context of the non-refoulement principle. Both Switzerland and the Member States of the European Union take this approach. We will return to this issue at a later point in the present course week.

Persons whose status is not (yet) recognised as being that of refugees under the Geneva Convention in the national asylum procedure may be entitled to temporary admission or to subsidiary protection under a different legal framework, namely that of national or regional law. Temporary admission is granted for humanitarian reasons in cases of need for urgent protection. Persons in this category are granted short-term residence in the receiving countries, with the idea of reviewing the on-going need for protection in the future. Subsidiary protection is meant for persons who do not fit the definition of ‘refugee’ but are still at risk in their country of origin, namely for reasons other than those mentioned in the definition of refugees under the Geneva Convention. Again, we will hear more about these alternative statuses in the subsequent steps of this course.

In summary, it results from the above that persons seeking international protection may have a right to stay in their immigration country based on various different legal statuses that are not limited to that of being a recognised refugee. More specifically, a right of residence may be based on:

• The status of refugee (Geneva Convention);
• Subsidiary protection (regional or national law);
• Temporary admission (regional or national law);
• The status of asylum seeker during the asylum procedure (Geneva Convention);
• The non-refoulement principle (Geneva Convention and various other international and European instruments). Note that if the conditions are met, the non-refoulement principle applies even where a person cannot claim any rights under any one of the other categories.

At the end of this step, you may wish to reflect on either of the two following issues:

1. Whether you have understood that certain rights of people in need of international protection flow from many different sources of law, combining the international, regional and national level;
2. Whether the Swiss vote of 9 February 2014 on curbing migration that we mentioned in Step 3.5 created tensions with the rules of international law about persons in need of protection.

Further reading

Consult the text of the Convention, as amended by the 1967 Protocol relating to the status of refugees.