Seeking asylum at embassies: A right to entry under international law?

International Journal of Refugee Law

Volumn 17, Issue 3, 2005, Pages 542-573

  Noll, Gregor ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

ASYLUM SEEKER; IMMIGRATION POLICY; LEGISLATION;

EID: 24144487525     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/eei020     Document Type: Review

References (111)

1. Austria, Denmark, France, the Netherlands, Spain and the UK. See G. Noll, J. Fagerlund and F. Liebaut, Study on the Feasibility Of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure (Luxemburg: European Communities, 2003), available at: [hereinafter Externalized Processing Study].
2. Belgium, Germany, Ireland, Italy, Luxembourg and Portugal. Externalised Processing Study, above, at 169-172.
3. On a technical level, the increasing emphasis on 'protection elsewhere' since the late 1980s contributed to the resurfacing of this form of extraterritorial processing. After all, states relying on the safety of third countries needed to add a form of safety valve to their systems in order to meet the critique of refugee advocates. Beyond this context, the idea of using embassies as a platform for processing asylum claims owes much to the activities of diplomats rescuing putative victims of racist and political persecution in the 1940s. See Chapter 2.1 of the Externalized Processing Study, n. 1 above.
4. See, e.g., European Commission, 'Communication to the Council and the European Parliament. Towards more accessible, equitable and managed asylum systems', COM(2003) 315 final, 3 June 2003. In para. 26, the Communication suggests that Member States should consider the introduction of Protected Entry Procedures and resettlement schemes. On 19-20 June 2003, the Thessaloniki European Council took note of the aforementioned Commission Communication and invited the Commission to present a report on the orderly and managed entry of persons in need of international protection to the EU before June 2004.
5. ECRE/USCR, Responding to the Asylum and Access Challenge. An Agenda for Comprehensive Engagement in Protracted Refugee Situations (London/ Washington D.C. 2003).
6. European Commission, 'Communication to the Council and the European Parliament. Towards more accessible, equitable and managed asylum systems', COM(2003) 315 final, 3 June 2003. The Communication herein endorsed the earlier suggestion of a definition set out by Noll, Fagerlund and Liebaut in the Externalised Processing Study, n. 1 above, at 24. The proposal received a cautious form of support by the European Council of Refugees and Exiles (ECRE): 'ECRE remains committed to identifying alternative policies respectful of the rights of refugees and asylum seekers and we therefore are willing to further explore the feasibility of protected entry procedures in the coming months.', ECRE, Comments of the European Council on Refugees and Exiles on the Communication from the Commission to the Council and the European Parliament. Towards a more accessible, equitable and managed international protection regime, 18 June 2003. For a comparison of Protected Entry Procedures and resettlement in the light of European history, see 'From "Protective Passports" to Protected Entry Procedures? The Legacy of Raoul Wallenberg in the Contemporary Asylum Debate', UNHCR Working Paper No. 99 in the Series New Issues in Refugee Research, available at www.unhcr.ch.
7. The authors of the ECRE/USCR report, n. 5 above, recommend European states inter alia to 'develop a system for "asylum visa" or "humanitarian visa" to gradually extend the possibilities for people to obtain legal access to their territories', 48.
8. The Rapporteur suggested that the following conclusion be adopted: 'The European Parliament ... [c]alls on the Union, for the purposes of dealing with cases of people in need of immediate and urgent protection, to further explore the possibility of a legal instrument defining and establishing the elements of a system of Protected Entry Procedures (PEP), which would consist in allowing a thirdcountry national to submit an application for asylum, or other form of international protection, to a potential host Member State, but from outside its territory, and to obtain a provisional or definitive entry permit' European Parliament, Committee on Civil Liberties, Justice and Home Affairs, Provisional draft report on the communication from the Commission to the Council and the European Parliament on the managed entry in the EU of persons in need of international protection and the enhancement of the protection capacity of the regions of origin - 'Improving access to durable solutions'. (COM(2004)0410 - 2004/2121(INI)) and on the communication from the Commission to the Council and the European Parliament 'A more efficient common European asylum system: The single procedure as the next step' (COM(2004)0503 - 2004/2121(INI)), 14 Oct. 2004, para. 13.
9. 'The Commission does not ... plan to suggest the setting up at EU level of an EU Protected Entry Procedure mechanism as a self standing policy proposal. However, in certain circumstances, a protected entry in the EU of persons with immediate and urgent protection needs could nevertheless be procedurally facilitated.
10. Such a procedure could feature as an "emergency strand" of wider resettlement action, though at the full discretion of individual Member States and if local circumstances warranted such availability.' Commission of the European Communities, Communication from the Commission to the Council and the European Parliament on the managed entry in the EU of persons in need of International protection and the enhancement of the protection capacity of the regions of origin, Brussels, 4 June 2004, COM(2004) 410 final, para. 35. To this author, the 'emergency strand' suggestion is counterproductive, and has little in common with the conception of predictable and permanently operating Protected Entry Procedures as set forth in the Externalized Processing Study. For an argument why an 'emergency strand' model cannot work, see Externalized Processing Study, n. 1 above, 65-6.
11. For an NGO critique of the Commission's withdrawal of support for Protected Entry Procedures, see Statewatch, Killing me softly? 'Improving access to durable solutions': Doublespeak and the dismantling of refugee protection in the EU, July 2004, available at www.statewatch.org.
12. G. Goodwin-Gill, 'Asylum 2001 - A Convention and a Purpose' (2001), 13 IJRL 1, at 2.
13. International Covenant on Civil and Political Rights, GA res. 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force 23 Mar. 1976.
14. European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, entered into force 3 Sept. 1953.
15. Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force 2 Sept. 1990.
16. See, e.g., the conflict between Colombia and Peru on the obligation of Peru to deliver a person who had been granted diplomatic asylum at the Peruvian embassy in Colombia. Haya de la Torre, ICJ Rep. 1951, 71.
17. See G. N Noll, 'Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones' (2003), 5 European Journal of Migration and Law 303.
18. 'In regard to asylum, it will be seen that the argument for obligation fails, both on account of the vagueness of the institution and of the continuing reluctance of States formally to accept such obligation and to accord a right of asylum enforceable at the instance of the individual.' G. Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 1996), at 174,
19. see also ibid., 175-204.
20. However, as Kennedy noted 'scholars have continued to discuss the right to asylum, seeking either to rehabilitate it within a regime dominated by the right of asylum or to strengthen it by scholarly advocacy, convention drafting or practice'. D. Kennedy, 'International Refugee Protection' (1986), 8 HRQ 57-66, at 57
21. Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/ 810 at 71 (1948).
22. Charter of Fundamental Rights of the European Union, OJ C 364/1, 18 Dec. 2000.
23. On a regional level, a right similar to, but not identical with, art. 14 UDHR can be found in art. 22 (7) of the American Convention on Human Rights ('Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offences or related common crimes.'), in art. XXVII of the American Declaration on Human Rights ('Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.') and art. 12 (3) of the African Charter on Human and Peoples' Rights ('Every individual shall have the right, when persecuted, to seek and obtain asylum in other countries in accordance with the law of those countries and international conventions').
24. However, such universalist arguments could be met with powerful particularist ones, claiming that the UDHR laid down a state obligation to respect the grant of asylum by other states. See, e.g., A Holmbäck, Förenta nationerna och asylrätten [The United Nations and the Right to Asylum], in 1949 års utlänningskommitté, SOU 1951:42. Betänkande med förslag till Utlänningslag m.m., (Stockholm, 1951) 292, arguing on the basis of the travaux. There would be no point in exploring the value of these arguments within the framework of our inquiry, if the UDHR turned out to be non-binding. Hence, the question of bindingness must be dealt with first.
25. For a detailed overview of the positions taken by different doctrinal writers, see P.R. Ghandhi, 'The Universal Declaration of Human Rights at Fifty Years' (1999), 41 German Yearbook of International Law 206, at 234-50. Ghandhi himself holds that certain provisions of the UDHR have acquired binding force as customary law.
26. See G. Goodwin-Gill, n. 16 above, at 175, with further references; G. Noll, Negotiating Asylum. The EU acquis, Extraterritorial Protection and the Common Market of Deflection (The Hague: Martinus Nijhoff Publishers, 2000), 357-62, with further references.
27. Two arguments support that contention. First, the drafters of the Charter were given a mandate to consolidate the existing fundamental rights in EU law, not to amend them. See Annex IV of the Conclusions of the Presidency of the Cologne European Council, 3-4 June 1999, 'European Council Decision on the drawing up of a Charter of Fundamental Rights of the European Union'. Second, the fifth paragraph of the Charter preamble alludes explicitly to a 'reaffirmation' of rights as they result from enumerated international and domestic sources. The preceding paragraph states that 'it is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter' (emphasis added). Taken together, this suggests the preeminence of a replicative approach, and the wish not to exceed the acquis of obligations from the sources named in the fifth paragraph.
28. See inter alia art. 62 (2) (b) (ii) TEC. See also Externalised Processing Study 2002, n. 1 above, 55-7.
29. As will be seen below, the ECHR contains such amalgamated access rights in limited situations. The fifth paragraph of the Charter names the ECHR amongst the sources from which the normative content of the Charter is drawn. Nonetheless, the question remains whether such an access right forms part of the concept of 'asylum' as used in art. 18 of the EU Charter, or whether it should rather be discussed as an element of the prohibition of torture and other forms of ill-treatment in art. 4 of the Charter.
30. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force 26 June 1987.
31. Article 45 reads:'In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs. The provisions of this Article do not constitute an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law.'
32. Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287, entered into force 21 Oct. 1950.
33. For a discussion, see E. Lauterpacht and D. Bethlehem, 'The Scope and Content of the Principle of Non-Refoulement', in E. Feller, V. Türk, F. Nicholson (eds.), Refugee Protection in International Law (Cambridge: Cambridge University Press, 2003), 87, paras 76-86.
34. For a confrontation of inclusionary with exclusionary readings with further references, see Noll 2000, n. 22 above, 423-432. But see N. Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation, (New York: Institute for Jewish Affairs, 1953), holding on 163 that art. 33 CSR51 does not concern refugees who seek entrance into the territory of a Contracting State. EU Member States have included border situations into the ambit of non-refoulement obligations. See Council Regulation 342/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50/1, 25 Feb. 2003, art. 3 (1).
35. See also UK House of Lords, R. v. Immigration Officer at Prague Airport and another (Respondents) ex parte European Roma Rights Centre and others, 9 Dec. 2004, [2004] UKHL 55.
36. In the U.S. Supreme Court's decision in Sale v. Haitian Center Council, (1993) 113 S.Ct. 2549, a restrictive reading was endorsed by the majority of the Court (mainly drawing on a contextual reading supported by art. 33 (2) CSR51 and the Swiss and Dutch delegates' statements in the travaux of the 1951 Refugee Convention), while a dissident concluded that the interception of Haitian refugees by the U.S. Coast Guard indeed constituted 'return' in the meaning of art. 33 (1) CSR51, basing himself on the wording of art. 33 CSR51 and the rules of interpretation provided by the VTC. This author believes that the dissident's reading must be supported; international law compels states to base their interpretation of art. 33 CSR51 on the prescriptions of art. 31-33 of the VTC. In an obiter dictum, the Inter-American Commission for Human Rights supported the view of UNHCR, expressed in an amicus curiae brief, arguing that art. 33 CSR51 had no geographical limitation. (The Haitian Centre for Human Rights et al. v. United States, Case 10.675, Report No. 51/96, Inter-Am.C.H.R.,OEA/ Ser.L/V/II.95 Doc. 7 rev. at 550 (1997). 13 Mar. 1997, para 57). The Supreme Court's judgment nothwithstanding, Goodwin-Gill asserts that the US was obliged by the priniciple of non-refoulement in its exercise of jurisidiction on the high seas through a 'combination of declarations in the sense of an international obligation with practice confirming that obligation. Goodwin-Gill, n. 16 above, at 144.
37. For a comprehensive account of U.S. interdiction practices and their legal ramifications, see Lory Diana Rosenberg, 'The Courts and Interception: The United States' Interdiction Experience and its Impact on Refugees and Asylum Seekers' (2003) 17 Georgetown Immigration Law Journal 199-219.
38. See, e.g., J. Hathaway and J. A. Dent, Refugee Rights: Report on a Comparative Survey, (Toronto: York Lanes Press, 1995) 5-17, addressing inter alia the issue whether non-entrée policies may constitute refoulement. Perhaps most relevant for the present inquiry is that the authors assert that visa requirements and carries sanctions 'may not violate Article 33 directly', while they 'increase the risk of refoulement, and effectively undermine the most fundamental purposes of the Convention'. But see the qualified positions taken by Goodwin-Gill as well as Lauterpacht and Bethlehem, text accompanying n. 36 below.
39. Goodwin-Gill, n. 16 above, at 143 (emphasis in the original). Further statements of relevance to this issue can be found in his monograph 'It does not matter how the asylum seeker comes within the territory or jurisdiction of the State, what counts is what results from the actions of State agents.
40. Goodwin-Gill, n. 16 above, at 137. In a section on the extraterritorial application of the non-refoulement principle, he concludes that extraterritorial obligations are 'implicit in the words of the Convention'.
41. Ibid, at 145.
42. Goodwin-Gill, n. 16 above, at 252 (emphasis in the original).
43. Lauterpacht and Bethlehem, n. 28 above, at para. 67 (emphasis in the original).
44. Lauterpacht and Bethlehem, n. 23 above, para. 114.
45. See International Law Commission, Draft Articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001). Extract from the Report of the International Law Commission on the work of its Fifty-third session, GAOR, 56th session, Supplement No. 10 (A/56/10), chp.IV.E.1). [Hereafter ILC Articles on State Responsibility].
46. Lauterpacht and Bethlehem, n. 28 above, at para. 61.
47. Quaere, Lauterpacht and Bethlehem, n. 28 above, at paras. 62-66.
48. Convention on the Law of Treaties, Vienna, 23 May 1969, 1155 UNTS 331, entry into force on 27 Jan. 1980. For a comprehensive analysis of treaty interpretation under arts. 31-3 VTC, see U. Linderfalk. Om tolkning av traktater (Lund: Lund University 2001).
49. This is motivated by the fact that the group of states bound by the CSR51 is not coextensive with either the group bound by the ICCPR or the group bound by the ECHR. Had there been coextension, art. 31 (3) (c) VTC would have been applicable. As matters stand, the ECHR and ICCPR can be regarded as treaties in pari materia and thus form a supplementary means of interpretation under art. 32.
50. See art. 32 VTC.
51. However, prescriptions by the law of the sea must be observed, which typically require the consent of the flag state before a ship is boarded on the high seas. Goodwin-Gill, n. 16 above, at 161.
52. At best, art. I (3) of the 1967 Protocol provides inter alia that the Protocol 'shall be applied by States Parties hereto without any geographic limitation'. Lauterpacht and Bethlehem point out that this clause could be taken to support extraterritorial applicability of art. 33 CSR51, they also recognise that it was 'evidently directed towards the references to "events occurring in Europe" in Article 1B(1 of the 1951 Convention'.
53. Lauterpacht and Bethlehem, n. 28 above, para. 84.
54. This is disregarded in Lauterpacht and Bethlehem's second claim. See text accompanying n. 34 above.
55. The author is indebted to Ms Courtney O'Connor for drawing his attention to this aspect.
56. This would be in conformity with the method implicit in arts. 31-2 VTC. See M.K. Yasseen, 'L'interprétation des traités d'après la Convention de Vienne sur le droit des traité's', Receuil des Cours 151 [III] (1976) 28.
57. Sale v. Haitian Center Council, n. 29 above. But see Judge Blackmun's dissent: 'The tautological observation that only a refugee already in a country can pose a danger to the country "in which he is" proves nothing.'
58. For a comprehensive overview, see Rosenberg, n. 29 above.
59. This is not to say that Article 33 CSR51 is not applicable to interdiction at the high seas. While this contextual argument is applicable, the second one related below is not. Therefore, the outcome may be a different one, but a full exploration is beyond the scope of this article.
60. See ILC Articles on State Responsibility, arts. 8 and 17.
61. These would be aid and assistance rendered to a third state in committing an international wrongful act, its direction and control or its coercion. See Chapter IV of the ILC Articles on State Responsibility.
62. Art. 33 CSR51.
63. Art. 3 CAT.
64. Art. 45 FC.
65. The obligation to prevent acts of torture laid down in art. 2 (1) CAT does not lend itself to support the construction of a right to entry in the context of an embassy application, given that it is confined to 'acts of torture in any territory under its jurisdiction'. To be sure, the conduct of a state at its embassies is jurisdictional conduct. Yet, embassies are, as a rule, not situated in a territory under the jurisdiction of the sending state.
66. For a useful comparison of the Committee's approach with that of the ECtHR, see M. Scheinin, 'Extraterritorial Effect of the International Covenant on Civil and Political Rights', 73-81 in F. Coomands and M. Kamminga (eds.), Extraterritorial Application of Human Rights Treaties. (Antwerp/Oxford 2004).
67. Human Rights Committee, 'The right of minorities (Art. 27). General comment no. 23', 8 Apr. 1994, para. 4 (emphasis added).
68. Human Rights Committee, General Comment on Article 2. The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/ C/74/CRP.4/Rev.6, para 10.
69. Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America, 6 Apr. 1995 CCPR/C/79/Add.50 para. 284.
70. See also B. Gorlick, 'Human Rights and Refugees: Enhancing Protection through International Human Rights Law' (2000) 69 Nordic Journal of International Law 117 at 130-3, quoting further dicta of the Committee.
71. Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America, 6 Apr. 1995 CCPR/C/79/Add.50 para. 284 (emphasis added).
72. Human Rights Committee, Concluding observations of the Human Rights Committee. Israel, UN Doc. No.CCPR/C/79/Add.93, 18 Aug. 1998, para. 10. Israel has not accepted the position taken by the Human Rights Committee and continues to argue that humanitarian law rather than the Covenant governs Israeli conduct on the West Bank and in the Gaza strip.
73. 'The Committee ... reiterates that, in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by [Israel's] authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of state responsibility of Israel under the principles of public international law.' Human Rights Committee, Concluding observations of the Human Rights Committee. Israel, UN doc. CCPR/CO/78/ISR, §11. The state responsibility argument is, however, tautological. See text accompanying n. 70 below.
74. De López v. Uruguay (52/1979), Human Rights Committee, Selected Decisions under the Optional Protocol: UN doc. No. CCPR/C/OR/1 (1985), 88-92, para. 12. For further references on other relevant case law, see M. Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, forthcoming [Nowak 2004], Article 2, Section IV (4), paras 27-30.
75. De López v. Uruguay, above, para. 12.3. In the same paragraph, the Committee adduced an argument based on Article 5 (1) of the Covenant. However, this particular argument was convincingly refuted in the concurring individual opinion by Mr Tomuschat appended to the majority's views. Mr Tomuschat rightly contended that the scope of the Covenant is not susceptible to be extended by art. 5 (1) of the Covenant.
76. De López v. Uruguay, n. 62 above. Individual opinion appended to the Committee's views at the request of Mr Christian Tomuschat. His argument on the intention of the drafters is hardly convincing in light of the restrictive line taken by the majority of drafting states. See n. 72 below.
77. The distinction between positive and negative obligations is elaborated further in text accompanying n. 93 below and in the concluding section.
78. Nowak 2004, n. 62 above, Article 2, Section IV (4), para 27.
79. It could be argued, though, that the Committee implicitly accepted that the grant of visas to aliens abroad comes under the ambit of the Covenant. Had it thought otherwise, the case had been declared inadmissible ratione loci, and any reasoning on the exhaustion of domestic remedies would have been superfluous.
80. Dixit v Australia, Human Rights Committee, Communication No. 978/ 2001, CCPR/C/77/D/978/2001, 28 Apr. 2003, para 4.2, [footnotes omitted].
81. Ibid., para. 6.2.
82. M. Nowak, UNO-Pakt über bürgerliche und politische Rechte und Fakultativprotkoll. CCPR-Kommentar (Kehl am Rhein: N.P. Engel Verlag, 1989) 45 [herafter Nowak 1989]. At first sight, his argumentation could be taken to support a state responsibility to allow access to protection seekers outside its territory. In the opinion of this author, art. 31 (4) VTC must be taken into account, which would provide a powerful counter-argument to such an extensive reading (the existence of a 'special meaning' agreed by the Contracting Parties would need to be shown). The forthcoming revision of the quoted book essentially maintains the same position. Nowak 2004, n. 62 above, Article 2, Section IV (4), para. 27.
83. Nowak 2004, n. 62 above, Article 2, Section IV (4), para. 27.
84. Nowak 1989, n. 70 above, 729, para. 28.
85. The manifestly absurd results emerging from an interpretation of article 12 (4) ICCPR in conjunction with the territorial limitations prescribed by article 2 (1) ICCPR do not necessarily imply that article 2 (1) always produces manifestly absurd or unreasonable results when interpreted in conjunction with other Covenant rights. Those rejecting the above approach should note, that an extension of the argument on manifest absurdity regarding article 12 (4) ICCPR would not change the outcome of our interpretation. We would then move on to article 32 VTC and involve the drafting history of the ICCPR, which, in turn, strongly suggests that Contracting Parties were not prepared to omit the words 'within its territory'(see Nowak 2004, n. 62 above, Article 2, Section IV (4) paras. 6 and 26). This aspect is disregarded in Tomuschat's as well as in Nowak's arguments.
86. First, there are no indications that the parties intended to give the contested wording a special meaning. Second, the consensus necessary for the applicability of art. 31 (3) (b) VTC does not exist. See, e.g., the objection by the US Government to an extraterritorial reach of the Covenant. Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America, 6 Apr. 1995, CCPR/C/79/ Add.50, para. 284.
87. Noll 2000, n. 22 above, at 441-446.
88. Al-Adsani v. the United Kingdom, ECtHR, Judgment of 21 Nov. 2001, para. 38 with references to earlier case law. The Court's reasoning in Al-Adsani corroborates the reasoning developed below. Al-Adsani was allegedly tortured by the Kuwaiti government and claimed that the denial of a civil remedy by the UK on account of Kuwait's state immunity violated his rights under Article 3 ECHR. The Court identified two categories of cases of relevance in the context of Al-Adsani's claim. In one group of cases, it had earlier affirmed that a party to the ECHR were under positive obligations to prevent ill-treatment allegedly committed in its jurisdiction (para. 38). All of the cases it quoted related to ill-treatment on the territory and within the jurisdiction of the respondent state. A second group apparently consisted of cases structured as Soering (para. 39). In its explanations regarding the Soering case, the Court refrained from using the terminology of positive obligations. Rather, it stressed the requirement of ill-treatment being a direct consequence of expulsion from a Contracting State. This author would suggest that no conclusion e contrario should be drawn from para. 39. After all, there was no necessity for the Court to deliver further explanations which were obviously not relevant for the claim made by Al-Adsani. To wit, decisions in Protected Entry Procedures may raise issues analogous to those raised in the first group of cases set out in para. 38. Indeed, the Court is not very explicit on the significance of the ECHR in extraterritorial settings. The Concurring Opinion of Judge Pellonpää joined by Judge Bratza in the Al-Adsani case might offer some indication on why that is so.
89. Above, at 467-474, and below in this section.
90. ECommHR, Appl. No. 9360/81 (W v. Ireland, 28 Feb. 1983), D&R 32 (1981) 211 para 14. To support its reasoning in this passage, the Commission refers back to a number of earlier decisions.
91. Bankovic and Others v. Belgium and Others, ECtHR, Decision of 12 Dec. 2001, Appl. No. 52207/99.
92. Above, at paras. 59-66.
93. Above, at para. 59.
94. 'In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention.' Banković and Others n. 78 above, para. 67.
95. Banković and Others, n. 78 above, para. 73.
96. Loizidou v. Turkey, ECtHR, Judgment of 18 Dec. 1996 (Merits), Reports of Judgments and Decisions 1996-VI, no. 26. In Louizidou the Court found that the claimant's loss of control over property in Northern Cyprus was imputable under Article 1 ECHR to the occupant power (Turkey). On the issue of jurisdiction, see Louizidou, para. 52.
97. Banković and Others, n. 78 above, para. 75.
98. Above, para. 80.
99. In Soering v. the U.K., the ECtHR spelled out that Contracting Parties are obliged to take into account extraterritorial risks related to Article 3 ECHR when removing a person to a third state. In this particular case, the issue at stake was whether the UK could extradite Soering to the US, where he risked being incarcerated on death row pending execution. Given this risk, the Court held that removal by the UK would have amounted to treatment contrary to Article 3 ECHR. This doctrine was developed further in later cases, and made applicable to inter alia asylum seekers, refugees, and persons excluded from refugee status. Soering v. the U.K., Judgment of 7 July 1989, Series A, No. 161.
100. In parentheses, it is worth recalling that the ECHR is not the only instrument whose scope is limited only by a requirement of the exercise of jurisdiction. Indeed, the ACHR is constructed in the same fashion, and needs to be construed along the same lines. Its Article 1 (1) spells out that States Parties undertake 'to ensure to all persons subject to their jurisdiction the free and full exercise of ... rights and freedoms' recognized in the ACHR. Among these rights, we find inter alia a prohibition of torture, inhuman or degrading punishment or treatment in art. 5 (2) ACHR. Hence, the ACHR is constructed in an analogous manner, and the extent of extraterritorial obligations hinges, again, on the extent of positive obligations inherent in a relevant right and the facts of the case. While the American Declaration of Human Rights contains no explicit statement on jurisdictional or territorial application, an international supervisory organ has shed some light on the matter. In the Coard case (Inter-American Commission of Human Rights, Coard et al. v. the United States, Case No. 10.951, 29 Sept. 1999, Report No. 109/99), the Inter-American Commission of Human Rights examined complaints about the applicants' detention and treatment by United States' forces in the first days of the military operation in Grenada, and explained the limits of extraterritorial responsibility as follows: While the extraterritorial application of the American Declaration has not been placed at issue by the parties, the Commission finds it pertinent to note that, under certain circumstances, the exercise of its jurisdiction over acts with an extra-territorial locus will not only be consistent with, but required by, the norms which pertain. ...Given that individual rights inhere simply by virtue of a person's humanity, each American State is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a state's territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state - usually through the acts of the latter's agents abroad. In principle, the inquiry turns not on the presumed victim's nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the State observed the rights of a person subject to its authority and control.
101. Convention on Diplomatic Relations and Optional Protocols, 500 UNTS 95, entered into force 24 Apr. 1964.
102. Convention on Consular Relations, 596 UNTS 262, entered into force 19 Mar. 1967.
103. Where processing centres are operated multilaterally, it must be sorted out who is to assume responsibility under the ECHR. In the Banković and Others case, the French Government argued that the bombardment was not imputable to the respondent States but to NATO, an organisation with an international legal personality separate from that of the respondent States (para. 32). A similar issue could arise if a visa denial by an EU-operated processing centre would be challenged as a violation of a right contained in Section I ECHR.
104. For a full argumentation, with further references, see Noll 2000, n. 22 above, 458-461,
105. and S. Zühlke and J-C Pastille, 'Extradition and the European Convention - Soering Revisited' (1999) 59 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 3. Lamentably, art. 7 of the ILPA/MPG Proposed directive 2000/01f on complementary protection contains a reference to 'fundamental human rights' entailing subsidiary protection. This begs the question which rights are fundamental, and exactly how such a separation is supported by the text of relevant instruments.
106. For an excellent theoretical introduction to the difficulties in operating hierarchies in human rights law, see K. Teraya, 'Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights' (2001) 12 EJIL 917.
107. Soering v. United Kingdom, ECtHR, Judgment of 7 July 1989, Series A, No. 161, para. 86.
108. Positive obligations usually come together with considerable restriction options.
109. LCB v. the UK, ECtHR, Judgment of 9 June 1998, para. 36.
110. Arai-Takahashi believes that the ECtHR applies a higher 'minimum level of severity' of speculative ill-treatment in expulsion cases than in cases where ill-treatment takes place within the Member State, and thus a 'double standard'. He thinks that the reason for not applying the increasingly 'liberal standard' of protection against ill-treatment in an extraterritorial context is that it would 'open the flood gate of immigration applications to Member States'. Y. Arai-Takahashi, "Uneven, But in the Direction of Enhanced Effectiveness" - A Critical Analysis of "Anticipatory Ill-Treatment" under Article 3 ECHR' (2001) 20 Netherlands Quarterly of Human Rights 5, at 17. The present authors believe this criticism to be misguided. The named variations do not flow from double standards, but from the dynamic inherent in assessing risks, the strength of causal relationship between state conduct and violation and the interlinkage between intrusion and the triggering of positive obligations.
111. Noll G. Fagerlund J. Liebaut F. Study on the Feasibility Of Processing Asylum Claims Outside the EU Against the Background of the Common European Asylum System and the Goal of a Common Asylum Procedure 2003, 212 For a listing of countries, see the Externalized Processing Study, table 18, as well as the relevant chapters describing country practices. Austria, Denmark, France, the Netherlands, Spain and the UK. See (Luxemburg: European Communities) available