The right to seek asylum and protection

The adoption of the Universal Declaration of Human Rights in 1948 was a watershed in the relations of States and individuals. It came quickly to influence treaties for the protection of groups, such as refugees, to underwrite the covenants which transformed the Declaration more clearly into obligations, and, by framing and guiding the practice of States, to contribute to customary international law.

The history is important, for no international lawyer can avoid being an historian. This gives us the long view essential to understanding law in the relations of States, and enables us to counter misunderstandings dressed up as advocacy – to point out, for example, that no one in the Commission on Human Rights in 1947-48 ever suggested that a right ‘to be granted asylum’, (even if it were adopted, which it was not), meant that you could just turn up anywhere by boat and demand and get it.

The French, not without reason, argued that a right to seek asylum would mean little if not linked to a right to be granted asylum, but other States objected that this was out of sync with the international law of the day on the narrow, immigration issue of entry and residence. States also refrained from defining ‘asylum’, and from attempting to organise, on a rights-protection basis, how they were expected to ‘manage’ those in flight from persecution, or to identify the point at which responsibility might be incurred when a State obstructed what had in fact been declared, namely, the right ‘to seek asylum...’ These practical matters were left to be resolved consistently with the general principles of the Declaration at large.

Besides being good historians, international lawyers must also be accomplished in the use of words, able to deploy them responsibly, with precision, conscious of their legal implications, and not fudging sense or meaning. Words like ‘entry’, ‘admission’, ‘asylum’, ‘protection’, ‘obligation’ and ‘responsibility’, each have an ordinary meaning and a legal meaning, and that meaning will vary according to context.

It does not follow, either logically or as a matter of fact, that because States declined to declare a right to be granted asylum in 1948, the individual in flight and at risk of persecution or other relevant harm necessarily has ‘no right’ to enter State territory at any time. The issue is often one of ‘framing’, for everything depends on context, and the question for international lawyers (and for governments, legislators, critics and commentators), is when and in the light of what obligations might circumstances requiring entry prevail.

Already in 1948, the Universal Declaration had begun to sketch out the legal limits, confining and structuring the power of the State to deal with the migrant, the asylum seeker, the refugee, and, indeed, the citizen. It makes clear that everyone has the right to non-discriminatory treatment (Article 2); to life, liberty and security of the person (Article 3); not to be subject to torture, or to cruel, inhuman or degrading treatment or punishment (Article 5); to equal protection of the law (Article 7), and to an effective remedy where rights are violated (Article 8).

That original list is longer now, rights have been given greater substance and clearer content in treaties and practice, and the obligation to protect human rights has moved much closer to the centre. The principle of non-refoulement, for example, has slipped the bounds of the 1951 Refugee Convention, requiring States at large not to return people to face the risk of persecution, torture, other serious violations of fundamental rights, or even possible onward removal.

The protection of refugees and asylum seekers is manifestly not (just) about their admission (in a technical, immigration sense) to a particular country, though that may be the only way to ensure that rights are not violated. There may still be no internationally recognised right to be ‘granted asylum’ in the narrow sense of formal permission to enter and to remain in State territory, to work, to have one’s children educated and not to be returned to the risk of persecution, but the individual in flight is protected, and how States respond is a matter of international law, not just a matter of international concern.

Put simply, at the point of contact between the agents of the State and individuals claiming protection, for example, during rescue or interception operations and in what follows next, the State must ensure that its international obligations are implemented effectively and consistently with the rule of law. In the 2011 case of M.S.S. v. Belgium and Greece, the European Court of Human Rights expressly acknowledged that States can take steps to prevent unlawful immigration, and that they have a ‘legitimate concern to foil the increasingly frequent attempts to circumvent immigration restrictions.’ But as the Court has also emphasised, in so doing, the State must comply with international obligations, for ‘the end does not justify the use of no matter what means...’

These simple principles are matters, not just of European Convention law, but more generally, of the international law of State responsibility. Factual scenarios are hugely diverse (which accounts for the difficulty of harmonising refugee decision-making across jurisdictions), but it can never be excluded that the State may well be required, as a matter of obligation, to allow an individual to enter its territory for the purpose of protection. To imagine that this is equivalent to granting asylum as that is understood in the practice of States, is to miss the whole picture – one which is rich in its complexity, demanding more than the simple intonation of words like ‘admission’, ‘entry’, ‘right’, ‘no right’, without reference to protection and to context and meaning in international law.