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The Eu Asylum Qualification Directive, Its Impact on the Jurisprudence of the United Kingdom And International Law1

Published online by Cambridge University Press:  17 January 2008

HéLène Lambert
HéLène Lambert
Affiliation:
Brunel University
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Extract

The new legal order in European asylum is being shaped by a key document: the Directive on minimum standards for the qualification and status of third-country nationals as refugees and persons otherwise in need of international protection and the content of the protection granted (hereinafter the Qualification Directive). The Qualification Directive was adopted by the Council of the European Union on 29 April 2004.2 It entered into force on 20 October 2004, that is 20 days after its publication in the Official Journal.3 The Member States have until 10 October 2006 to implement its provisions into national legislation.4 Meanwhile, they have a duty not to adopt measures contrary to it.5 For those countries that have already implemented the Qualification Directive, such as France,6 the judiciary will need to ensure compliance with it.7

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Articles
Information
International & Comparative Law Quarterly , Volume 55 , Issue 1 , January 2006 , pp. 161 - 192
Copyright
Copyright © British Institute of International and Comparative Law 2006

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References

2 Council Directive 2004/83/EC of 29 Apr 2004, OJ 30 Sept 2004, L 304/12–23.

3 Art 39 of the Directive.

4 Art 38 of the Directive.

5 Art 10, EC Treaty and Case C-106/89, Marleasing [1990] ECR I-4135.

6 Law of 10 Dec 2003.

7 For a full discussion of the principle of consistent interpretation, see G Betlem and A Nollkaemper ‘Giving Effect to Public International Law and European Community Law before Domestic Courts. A Comparative Analysis of the Practice of Consistent Interpretation’ (2003) 14(3) European Journal of International Law 569–89.

8 (189 UNTS 150). The Refugee Convention was updated by the 1967 Protocol Relating to the Status of Refugees (606 UNTS 267).

9 Art 3 of the European Convention on Human Rights includes a guarantee against refoulement akin to that provided in refugee law. The European Court of Human Rights held that ‘protection afforded by Article 3 is … wider than that provided by Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees’: Chahal v United Kingdom, Reports of Judgments and Decisions 1996-V, para 80. See, generally, Lambert, H ‘Protection against Refoulement from Europe: Human Rights Law Comes to the Rescue’ (1999) 48 ICLQ 515–44.CrossRefGoogle ScholarSee also Lambert, H ‘The European Convention on Human Rights and the Protection of Refugees: Limits and Opportunities’ (2005) 24(2) Refugee Survey Quarterly 39–55, andCrossRefGoogle ScholarDoerfel, J ‘The Convention Against Torture and the Protection of Refugees’ (2005) 24(2) Refugee Survey Quarterly 83–97.CrossRefGoogle Scholar

10 Subsidiary protection has therefore become an entitlement for third-country nationals under EU law and a status is to be provided, so long as the person in question is not excluded from protection on the basis of what she has done (Arts 15, 18, and 17 of the Qualification Directive). See Piotrowizc, R and van Eck, C ‘Subsidiary Protection and Primary Rights’ (2004) 53 ICLQ 107–38CrossRefGoogle ScholarMcAdam, J ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ (2005) 17 International Journal of Refugee Law 461–516, andCrossRefGoogle ScholarVedsted-Hansen, J ‘Assessment of the Proposal for an EC Directive on the Notion of Refugee and Subsidiary Protection from the Perspective of International Law’ in D Bouteillet-Paquet Subsidiary Protection of Refugees in the European Union: Complementing the Geneva Convention? (Bruylant Brussels 2002) 57–78.Google Scholar

11 The principle of good faith in international law nonetheless requires that States provide fair and efficient asylum procedures in their compliance with the Refugee Convention. See Goodwin-Gill, GThe Refugee in International Law (Clarendon Press Oxford 1996) 234–41. In the United Kingdom the House of Lords enunciated the fundamental principle that ‘The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny’, as per Lord Bridge of Harwich in R v Secretary of State for the Home Department, ex p Bugdaycay [1987] AC 514 at 531F.Google Scholar

12 COM(2000) 578.

13 M Ockelton Deputy President of the Immigration Appeal Tribunal, Comments to the International Association of Refugee Law Judges (European Chapter), Edinburgh, 13 Nov 2004.

14 ibid.

15 Much of the provisions in the Qualification are drafted in mandatory terms and it is likely that these will be found to have direct effect by the European Court of Justice (eg Arts 24, 25, and 26). The doctrine of direct effect was created by the European Court of Justice in its judgment in Van Gend en Loos (Case 26/62 [1963] ECR 1). According to this doctrine, for a provision to be directly effective, it must be clear and unambiguous, it must be unconditional, and its operation must not depend on further action taken by the Community's institutions or the Member States.

16 Guild, E ‘Seeking Asylum: storm clouds between international commitments and EU legislative measures’ (2004) 29 European Law Review 198–218 at 205.Google Scholar

17 Note that in the absence of a dispute having been decided by the International Court of Justice relating to the interpretation of the Refugee Convention, the interpretation provided by the highest domestic courts prevails as far as the Member States are concerned.

18 Despite its ‘opt-out’ of Title IV of the EC Treaty, the United Kingdom has been actively involved in the discussions on the measures proposed in this area, and indeed ‘quite successful in influencing their content’. It has so far opted in to all the adopted measures under Title IV. See the report for the United Kingdom by Ryan, Bernard in Migration and Asylum Law and Policy in the European Union, FIDE 2004 National Reports (Higgins, I and Hailbronner, K (eds)) (CUP Cambridge 2004) 431–54 at 447.Google Scholar

19 See also Recital (16) of the Directive, and Art 63(1)c, EC Treaty.

20 Note that provisions in the Preamble are non-standard setting.

21 The latter reading is supported by the dictionary definition allowing for compatible to mean both consistent and able to coexist (Concise Oxford Dictionary). Jane McAdam further argues that ‘through the use of the conditional ‘may’, the provision permits States currently providing a higher level of protection to beneficiaries of subsidiary protection to lower their standards’ in McAdam, J ‘The European Union Qualification Directive: The Creation of a Subsidiary Protection Regime’ (2005) 17 International Journal of Refugee Law 461–516 at 515.CrossRefGoogle Scholar

22 Francovich v Italian State (Cases 6/90 and 9/90) [1991] ECR I-5357.

23 On the procedural context in which such actions can be brought, for example directly before the European Court of Justice or indirectly via the national courts and to the European Court of Justice by way of a preliminary reference, see Arts 68 and 220–45, EC Treaty. See also Peers, SEU Justice and Home Affairs (Longman London 2000) 44–5, and House of Lords, European Union Committee ‘The Future Role of the European Court of Justice’, Report with Evidence, 6th Report of Session 2003–4, 15 Mar 2004.Google Scholar

24 See also Piotrowicz, R and van Eck, C ‘Subsidiary Protection and Protection Rights’ (2004) 53 ICLQ 107–38, in which the authors consider aspects of this relationship but solely in the context of Art 15 of the Qualification Directive and international human rights law.CrossRefGoogle Scholar

25 It is relevant to note at this stage that in a few instances the Directive will have no impact on the jurisprudence of the United Kingdom because it simply reflects the existing interpretation of international norms by the domestic courts. For instance, the Directive recognizes the principle that family members are particularly vulnerable to acts of persecution due to their family relation to the refugee (Recital 27). This principle closely reflects the judgment of the United Kingdom Court of Appeal in Katrinak v Secretary of State for the Home Department [2001] EWCA Civ 832, at para 23: ‘It is possible to persecute a husband or a member of a family by what you do to other members of his immediate family. The essential task for the decision taker in these sorts of circumstances is to consider what is reasonably likely to happen to the wife and whether that is reasonably likely to affect the husband in such a way as to amount to persecution of him.’

26 UNHCR Guidelines on ‘Internal Flight or Relocation Alternative within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’, HCR/GIP/03/04, 23 July 2003.

27 R v Secretary of State for the Home Department, ex p Thangarasa and R v Secretary of State for the Home Department, ex p Yogathas, 17 Oct 2002 [2002] UKHL 36.

28 See R Marx ‘The Criteria of Applying the ‘Internal Flight Alternative’ Test in National Refugee Status Determination’ (2002) 14 International Journal of Refugee Law at 185.

29 Art 8(1)(2).

30 Klug, A ‘Harmonization of Asylum in the European Union—Emergence of an EU Refugee System’ (2005) German Yearbook of International Law 594–628 at 607.Google Scholar

31 ‘Internal Flight or Relocation Alternative within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’, HCR/GIP/03/04, 23 July 2003.

32 The Strasbourg Court has used the ‘undue hardship’ test in the context of Art 8 of the European Convention on Human Rights (ie when balancing competing interests) in X, Y and Z v United Kingdom, Reports of Judgments and Decisions 1997-II.

33 Reports of Judgments and Decisions 2001-II.

34 In particular, it considered that the ill-treatment and beating of detainees by the police, the inhuman and degrading conditions in prisons, the police institutional links with the perpetrators of human rights violations, and the possibility of extradition between the original place of residence (Zanzibar) and the area of relocation (mainland Tanzania) were all determinant factors in rejecting the ‘internal flight’ option.

35 (2004).

36 Chahal v United Kingdom, Reports of Judgments and Decisions 1996-V.

37 R v Secretary of State for the Home Department, ex p Robinson, CA [1997] Imm AR 658. This test involves comparing the conditions (and circumstances) in the previous home of the asylum seeker and those in the suggested place of internal relocation. If that comparison suggested that it would be unreasonable, or unduly harsh, to expect him to relocate in order to escape the risk of persecution, his refugee status was established. See also Dyli v Secretary of State for the Home Department [2000] Imm AR 652, where the IAT recognized that the applicant must be able to reach the safe area in safety and that the safe area must be ‘one in which it would [not] be unreasonable or unduly harsh to expect him to live’ (para 33). For a discussion of the criticism of the reasonableness test in the Michigan Guidelines on the Internal Protection Alternative, see Marx, R ‘The Criteria of Applying the “Internal Flight Alternative” Test in National Refugee Status Determination Procedures’ (2002) 14 International Journal of Refugee Law at 202–6.CrossRefGoogle Scholar

38 CA [1997] Imm AR 568. Note that in R (Hoxha) v Special Adjudicator, [2002] EWCA Civ 1403, albeit not a case about internal protection but about Art 1C(5), Keene LJ embraced a clear human rights reading of the requirement of ‘reasonableness’ to include ‘conditions in which [the applicant] can live reasonably with dignity and with respect for his core human rights, even though he no longer has a well-founded fear of persecution for a Convention reason’ (at para 34).

39 [2003] EWCA Civ 1032 (16 July 2003), para 67 (currently on appeal to the House of Lords).

40 Art 9(2)(e).

41 ibid. Unfortunately the Directive offers no rational basis as to why it distinguishes this instance of conscientious refusal from other instances of conscientious refusal. In fact, looking at Art 12(2) and Art 9(2)(e), it may even be said that the Directive contradicts itself on this point.

42 Art 9(2)(c).

43 Art 9(2)(a).

44 [2003] 1 WLR 856.

45 See G Goodwin-Gill ‘Refugees and their Human Rights’ RSC Working Paper No 17 (at 11–16). Text available at <http://www.rsc.ox.ac.uk/PDFs/workingpaper17.pdf>.

46 See also Krotov v Secretary of State for the Home Department [2004] EWCA Civ 69 (referring to Sepet and Bulbul v Secretary of State for the Home Department [2001] EWCA Civ 681), and BE v Secretary of State for the Home Department, Iran [2004] UKIAT 00183 (8 July 2004).

47 Art 10(1)(d) and Recital 21.

48 See UNHCR Guidelines on International Protection: ‘Membership of a particular social group’ within the context of Art 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, HCR/GIP/02/02, 7 May 2002. UNHCR advocates a reconciliation of these two approaches, however it uses the words ‘or’ instead of ‘and’. So the use of the word ‘and’ in the Directive suggests that there might still be gaps remaining in the protection of social groups. See also Recommendation (2004) 9 of the Committee of Ministers (Council of Europe) on the concept of ‘membership of a particular social group’. For a critical discussion of this particular issue, see Klug, A ‘Harmonization of Asylum in the European Union—Emergence of an EU Refugee System?’ (2005) German Yearbook of International Law at 610.Google Scholar

49 [1999] 2 AC 629, [1999] 2 All ER 545.

50 ZH (Women as Particular Social Group) Iran CG [2003] UKIAT 00207.

51 Art 20(5) and Recital 12. This element is required by Art 3 of the 1989 Convention on the Rights of the Child.

52 (2001).

53 R v Secretary of State for the Home Department, ex p Gangadeen [1998] Imm AR 106, 21 Nov 1997.

54 Section 2.3.

55 [2002] EWCA Civ 1103, [2003] 1 WLR 95, [2003] Imm AR 179.

56 Paras 24–7.

57 Art 5(1)(2) and Art 4(3)(d). See also, UNHCR Handbook, paras 94–6.

58 Art 5(3) and Art 20(6), respectively. Thus, the compromise reached in the Directive is that it creates a presumption against manufactured asylum claims in the case of subsequent applications only. However, the Directive provides that subsidiary protection would not be refused on this ground (Art 5(3) and Art 20(7)). Such interpretation is in conformity with the absolute and unconditional protection against ill-treatment under Art 3 of the European Convention on Human Rights, even if the Convention allows States to restrict the political activities of aliens present in their territory.

59 UNHCR Handbook, para 96.

60 Gilgham [1995] Imm AR 129, and B [1989] Imm AR 166.

61 Danian v Secretary of State for the Home Department [2000] Imm AR 96 (CA).

62 Hathaway, JThe Law of Refugee Status (Butterworths London 1991) at 124, referring to the words of J Patrnogic.Google Scholar

63 Art 7(1).

64 H Storey Vice President, Immigration Appeal Tribunal (UK) ‘From Nowhere to Somewhere’: An Evaluation of the UNHCR 2nd Track Global Consultation on International Protection: San Remo 8–10 Sept 2001 Expert Roundtable on the Internal Protection/Relocation/Flight Alternative, 2002 at para 81.

65 [2000] Imm AR 652.

66 ibid para 13.

67 The Tribunal based its arguments on a literal interpretation of the phrase ‘protection of the country’ in Art 1A(2) Refugee Convention, which does not refer to ‘state’ or ‘authorities’. Whether or not the protection in question is adequate is a separate question, it is a matter of fact that must be decided on the evidence in each individual case (ibid, para 14).

68 Goodwin-Gill, G and Hurwitz, A, Submission to the House of Lords on the Draft Council Directive on minimum standards for the qualification and the status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, Apr 2002.Google Scholar

69 Hathaway, J and Foster, M ‘Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination’, Sept 2001 (San Remo Roundtable Paper), at 46.Google Scholar

70 Note that the concept of ‘crime against peace’ is defined in the Nuremberg Principles (‘planning, preparation, initiation of a war of aggression, or a war in violation of international treaties, agreements or assurances …’). In contrast, the Rome Statute of the International Criminal Court (ICC) states that the ICC will exercise jurisdiction over the crime of aggression—but only when the crime has been defined and the conditions for the exercise of such jurisdiction are set out (Art 5). In R v Jones [2004] EWCA Crim 1981 (21 July 2004), the Court of Appeal said that ‘international law has moved on from the position immediately following the Second World War …’ and that there was ‘no firmly established rule of international law which establishes a crime of aggression which can be translated into domestic law as a crime in domestic law’. This would suggest that the part relating to crimes against peace may not be applied in practice, whether under international law—Art 1F(a) of the Refugee Convention—or European law—Art 12(2)(a) of the Qualification Directive. In contrast with the Court of Appeal judgment, Attorney General Lord Goldsmith in his advice opinion on Iraq: Resolution 1441 (7 Mar 2003, text available at <http: / /www.lslo.gov.uk/foi/Iraq_Resolution_1441.pdf>) was of the view that ‘Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognized by the common law which can be prosecuted in the UK courts.’

71 The Directive also acknowledges that ‘particularly cruel actions, even if committed with an allegedly political objective, may bet classified as serious non-political crimes’ (Art 12(2)(b)). This interpretation is in line with UNHCR's guidelines.

72 With support to be found in the travaux préparatoires.

73 Council Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, OJ L212, 7 Aug 2001, Art 28(2) and Art 28(1)(a)(ii).

74 [1995] Imm AR 142. See also Gurung v Secretary of State for the Home Department, [2002] UKIAT 04870, and s 34 of the Anti-terrorism, Crime and Security Act 2001.

75 ELENA International Course on the Application of Article 1C and Article 1F of the 1951 Convention Relating to the Status of Refugees (2003) at 20.

76 Recital 22. See, in particular, UN Security Council Resolution 1373 (2001) of 28 Sept 2001. This endorsement raises a couple of wider questions. First, the extent to which the Security Council is able to lay down an interpretation of the terms of a treaty, and secondly, the extent to which, if at all, any such interpretation is binding on the Member States. A further problem relates to the fact that there is no internationally agreed definition of ‘terrorism’.

77 [2004] UKIAT 00101, 7 May 2004.

78 ibid, paras 35–7.

79 Note that the cessation clause which until now has been largely unused in the Member States, including the United Kingdom, may well be given a new lease of life through the enforcement role of the European Court of Justice.

80 Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, COM(2001) 510 final, Explanatory Memorandum, Art 13(1)(e).

81 Reference in R v Special Adjudicator, ex p Hoxha [2005] UKHL 19 at para 79. See also UNHCR Guidelines on International Protection ‘Cessation of Refugee Status under Article 1C(5) and (6) of the 1951 Convention relating to the Status of Refugees’, HCR/GIP/03/03, 10 Feb 2003.

82 See in particular, R v Special Adjudicator, ex p Hoxha [2005] UKHL 19. The House of Lords rejected the argument that the ‘compelling reasons’ provision should be interpreted generously to concern all refugees and not only statutory ones (at paras 70 and 82).

83 This situation is exacerbated by the fact that the Reception Directive (Council Directive 2003/9 on the minimum standards for the reception of asylum seekers, OJ 2003 L 31/ 18) only provides for adequate minimum standards of reception to persons applying for asylum under the Refugee Convention. In addition, the Family Reunification Directive (Council Directive on the Right of Family Reunification, OJ 2003 L 251/ 12) does not apply to persons with a subsidiary form of protection.

84 Art 25. Thus, beneficiaries of subsidiary protection are not recognized as enjoying freedom of movement within the EU.

85 Arts 26, 28, and 29.

86 Art 33.

87 eg Art 14 of the European Convention on Human Rights, Protocol 12 to the European Convention on Human Rights, Art 6 of the Treaty on European Union, and Art II-21 of the Charter on Fundamental Rights. The UNHCR has rejected the two arguments put forward by the European Commission in support of a difference between the two statuses, ie to preserve the primacy of the Refugee Convention and to meet the need for subsidiary protection which is only temporary in nature. See UNHCR ‘Towards a Common European Asylum System’ in The Emergence of a European Asylum Policy (de Sousa, CDU and de Bruycker, P (eds)) (Bruylant Brussels 2004) at 249–50.Google Scholar

88 Note that Recital (11) in the Preamble of the Directive limits the benefit of the principle of non-discrimination to persons covered by the Directive. See also, the discussion on Protocol 6 on asylum for nationals of EU Member States or ‘Aznar’ Protocol in Carlier, J-Y ‘Le développement d'une politique commune en matière d'asile’ in The Emergence of a European Asylum Policy (de Sousa, CDU and de Bruycker, P (eds) (Bruylant Brussels 2004) at 6–7, and I Boccardi Europe and Refugees. Towards an EU Asylum Policy (Kluwer Law International Deventer 2002) at 140–3.Google Scholar

89 As argued by Anja Klug in A Klug ‘Harmonization of Asylum in the European Union—Emergence of an EU Refugee System?’ (2005) German Yearbook of International Law at 600.

90 Art 4, Refugee Convention.

91 Art 12–16, Refugee Convention.

92 Art 33, Qualification Directive.

93 UNHCR ‘Towards a Common European Asylum System’ in The Emergence of a European Asylum Policy (de Sousa, CDU and de Bruycker, P (eds)) (Bruylant Brussels 2004) at 246.Google Scholar

94 ibid at 249. Note that Recital (10) and Recital (11) of the Directive explicitly refer to ‘fundamental rights’ and to norms of international law prohibiting discrimination.

95 ibid at 249–50.

96 eg Art 29(2): ‘By exception to the general rule laid down in paragraph 1, Member States may limit health care granted to beneficiaries of subsidiary protection to core benefits […]’ (my emphasis).

97 Art 9(2)(f): ‘Acts of persecution… can, inter alia, take the form of: acts of gender-specific or child-specific nature’ (my emphasis).

98 See also Art 6(c), Directive, on actors of persecution or serious harm, referring to Art 7.

99 Para 65.

100 HLR v France, Reports of Judgments and Decisions 1997-III, para 40.

101 D v United Kingdom, Reports of Judgments and Decisions 1997-III, para 49.

102 A v United Kingdom (1998), para 24, Pretty v United Kingdom, Report of Judgments and Decisions 2002-III, paras 50–1.

103 Osman v United Kingdom, Reports of Judgments and Decisions 1998-VIII, para 115.

104 ibid, para 116.

105 ibid. The European Court of Human Rights, drawing on its case law under Art 2, has since argued that the fundamental character of Art 3 read together with Art 1 created such obligations in the context of Art 3 as well, eg Assenov and Others v Bulgaria, Reports of Judgments and Decisions 1998-VIII, para 102. See, also, the notion of effective remedy under Art 13 of the European Convention on Human Rights and interpreted by the Strasbourg Court in Conka v Belgium, Reports of Judgments and Decisions 2002-I, to mean that ‘the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible’ (para 79).

106 Mowbray, ACases and Materials on the European Convention on Human Rights (Butterworths London 2001) at 62. See also ‘Duties of investigation under the European Convention on Human Rights’ (2002) 51 ICLQ 437–48.Google Scholar

107 Note that in the United Kingdom, the House of Lords held that sufficient protection meant that there existed in the country of origin a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the State. See Horvath v Secretary of State for the Home Department (the sufficiency of protection test), [2000] INLR 239. This test is similar to that provided in the Directive and it appears to fall short of the European Court of Human Rights requirements. This test was expanded by the courts to human rights law cases so that broadly the same test should be used. See, Dhima v Immigration Appeal Tribunal (QB), 6 Feb 2002 and R (on the application of Bagdanavicius) v Secretary of State for the Home Department, CA, 11 Nov 2003, [2004) 1 WLR 1207 (currently on appeal to the House of Lords).

108 Art 2(h).

109 Art 23(5).

110 Berrehab v The Netherlands, 1998, Series A no 138.

111 Marckx v Belgium, 1979, Series A no 31.

112 UNHCR, Division of International Protection, Resettlement Handbook (Geneva 1997) 4.6. See generally Lambert, H ‘The European Court of Human Rights and the Right of Refugees and Other Persons in Need of Protection to Family Reunion’ (1999) 11 International Journal of Refugee Law 427–50.CrossRefGoogle Scholar

113 In the context of refugee law, see also the conclusions reached by Anja Klug in ‘Harmonization of Asylum in the European Union—Emergence of an EU Refugee System?’ (2005) German Yearbook of International Law 594–628. In the context of human rights law, see also Piotrowicz, R and van Eck, C. ‘Subsidiary Protection and Primary Rights’(2004) 53 ICLQ 107–38.CrossRefGoogle Scholar

114 Within a context in which children or some children may be considered to be members of a particular social group, or identifiable by reference to their race, religion, etc.

115 Recital (3).

116 See, in particular, Canor, I ‘Primus inter pares. Who is the ultimate guardian of fundamental rights in Europe?’ (2000) 25 European Law Review 25 (2000) 3–21;Google ScholarLenaerts, K ‘Fundamental rights in the European Union’ (2000) 25 European Law Review 575–600;Google ScholarRiley, A ‘The ECHR Implications of the Investigation Provisions of the Draft Competition Regulation’ (2002) 51 ICLQ 55–89 (particularly 77–87); andCrossRefGoogle ScholarGuild, E ‘Seeking Asylum: storm clouds between international commitments and EU legislative measures’ (2004) 29 European Law Review 198–218.Google Scholar

117 Opinion 2/94 [1996] 2 CMLR 265. See also Art 6 of the Treaty on European Union and Arts II-18, 19, and 47 of the Treaty Establishing a Constitution for Europe.

118 eg when such legislation implements Community norms. Case 5/88 Wachauf [1989] ECR 2609.

119 The case of Matthews v United Kingdom, Reports of Judgments and Decisions 1999-I, nevertheless shows that primary Community law (ie the Treaties) is now subject to the jurisdiction of the European Court of Human Rights.

120 Opinion 2/94 [1996] 2 CMLR 265.

121 Art I-7(2) provides that ‘The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms.’

122 Joint Submissions to Working Group X (‘Freedom, Security and Justice’) of the Convention on the Future of Europe, D Curtin and S Peers (eds) at 7 and 11.

123 Art 17 of Protocol 14 provides: ‘The European Union may accede to this Convention.’

124 For an excellent review of both categories, see Lenaerts, K and de Smitjer, E ‘The European Union as an Actor of International Law’ (1999–2000) 19 Yearbook of European Law 95–138. The related issue of the status of customary international law in the European legal order is not discussed in the context of this article, but see ibid at 122–6, andCrossRefGoogle ScholarKlabbers, J ‘International Law in Community Law: The Law and Politics of Direct Effect’ (2002) 21 Yearbook of European Law at 288–92.Google Scholar

125 Or at least this is the case until such time as the European Community/Union may decide to accede to the Refugee Convention, a possibility that is not entirely excluded from the European Court of Justice's Opinion 2/94 [1996] 2 CMLR 265. See Joint Submission to the Working Group X (‘Freedom, Security and Justice’), D Curtin and S Peers (eds) at 7.

126 Art 307(1) EC Treaty: ‘The rights and obligations arising from agreements concluded before 1 January 1958 or, for acceding States, before the date of their accession, between one or more Member States on the one hand, and one or more third countries on the other, shall not be affected by the provisions of this Treaty.’

127 This would be consistent with Art 30(4)(a) of the Vienna Convention on the Law of Treaties.

128 Arts 30(5) and 41(1)(b) of the Vienna Convention on the Law of Treaties. And G Fitzmaurice has argued, in the context of Art 30(4), that a later treaty would be null and void in the case of conflict with a human rights treaty. In Canor, I ‘Primus inter pares. Who is the ultimate guardian of fundamental rights in Europe?’ (2000) 25 European Law Review at 10 (referring to G Fitzmaurice's report).Google Scholar

129 The International Court of Justice is theoretically competent to deal with an inter-state dispute relating to the interpretation or application of the Refugee Convention (Art 38, Refugee Convention), but in practice this has never happened. Note that in the context of the European Convention on Human Rights, the European Court of Human Rights is satisfied that the Member States remain responsible under the European Convention on Human Rights for all actions of their domestic organs irrespective of whether the violation in question is a consequence of a domestic law or of a necessity to comply with a subsequent international obligation (eg TI v United Kingdom (2001) referring to Waite and Kennedy v Germany (1999), para 67).

130 Lenaerts, K and de Smijter, E ‘The European Union as an Actor under International Law’ (1999–2000) 19 Yearbook of European Law at 117.CrossRefGoogle Scholar

131 Case 812/79 Burgoa [1980] ECR 2787.

132 UNHCR ‘Towards a Common European Asylum System’ in The Emergence of a European Asylum Policy (de Sousa, CDU and de Bruycker, P (eds)) (Bruylant Brussels 2004) at 236.Google Scholar

133 House of Lords, R v Secretary of State for the Home Department, ex p Thangarasa and R v Secretary of State for the Home Department, ex p Yogathas, judgment of 17 Oct 2002 [2002] UKHL 36, at para 22.

134 Note also that the European Court of Justice does not require that the rights of third States be invoked but merely that there exist treaty obligations between the Member State in question and third States (and possibly even individuals). Case 812/79 Burgoa [1980] ECR 2787 and Case C-158/91, Levy [1993] ECR I-4287. See also Klabbers, J ‘Moribund on the fourth of July? The Court of Justice on prior agreements of the Member States’ (2001) 26 European Law Review 187–97 at 193.Google Scholar

135 Higgins, R ‘The ICJ, the ECJ, and the Integrity of International Law’ (2003) 52 ICLQ 1–20.CrossRefGoogle Scholar

136 Case 812/79, Burgoa [1980] ECR 2787.

137 Substitution can take place in cases of exclusive Community powers as well as non-exclusive powers of the Community. See further Lenaerts, K and de Smijter, E. ‘The European Union as an Actor of International Law’ (1999–2000) 19 Yearbook of International Law at 120–1.Google Scholar

138 Art 300(7) EC Treaty: ‘Agreements concluded under the conditions set out in this Article [ie by the Community] shall be binding on the institutions of the Community and on Member States.’

139 Joined Cases 21–24/72, International Fruit Company [1972] ECR 1219 at 1233–4 (quoted in Klabbers, J ‘International Law in Community Law: The Law and Politics of Direct Effect’ (2002) 21 European Law Yearbook 263–98 at 292).CrossRefGoogle Scholar

140 For a full discussion, see ibid at 292–7.

141 Case C-280/93, Germany v Council [1994] ECR I-4973. This was the first time the European Court of Justice was considering a request by a Member State to review the legality of secondary Community law in light of an international agreement. All other cases had been initiated by companies or traders and had reached the Court via a national court following a request for a preliminary ruling. This judgment was confirmed in Case C-149/96, Portugal v Council [1999] ECR I-8395. See also Joined Cases 21–24/72, International Fruit Company [1972] ECR 1219.

142 Case C-280/93, Germany v Council [1994] ECR I-4973, para 137.

143 Case C-149/96, Portugal v Council [1999] ECR I-8395.

144 Klabbers, J ‘International Law in Community Law: The Law and Politics of Direct Effect’ (2002) 21 Yearbook of European Law 263–98 at 271.CrossRefGoogle ScholarSee also Zonnekeyn, GA ‘The status of WTO law in the Community legal order: some comments in the light of the Portuguese Textiles case’ (2000) 25 European Law Review 293–302, andGoogle ScholarEeckhout, P ‘Judicial Enforcement of WTO Law in the European Union—Some Further Reflections’ (2002) 1(5) Journal of International Economic Law 91–110.CrossRefGoogle Scholar

145 Case 70/87, Fediol v Commission (Fediol III) [1989] ECR 1825.

146 Case C-69/89, Nakajima All Precision Co Ltd v Council [1991] ECR I-2069.

147 As mentioned above at n 125, it is conceivable that the Community/Union may also simply decide to accede to the Refugee Convention.

148 Art 63 reads: ‘The Council, acting… shall… adopt: (1)… (2)… (3)… (4). Measures adopted by the Council pursuant to points 3 and 4 shall not prevent any Member State from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.’

149 Art 12(1) of the Directive refers to Art 1 D of the Refugee Convention and Art 14(6) of the Directive refers to Arts 3, 4, 16, 22, 31, 32, and 33 of the Refugee Convention.

150 Art 31(3)(b) of the Vienna Convention on the Law of Treaties makes it clear that for re-interpretation to occur there must be ‘subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation’. In the United Kingdom, the House of Lords recognized that the UNHCR Handbook constituted good evidence of such ‘subsequent practice’; Adan v Secretary of State for the Home Department [1999] 1 AC 293. In the words of Gregor Noll, ‘Community law cannot alter international obligations’, in Noll, G ‘International Protection Obligations and the Definition of Subsidiary Protection in the Qualification Directive’ in The Emergence of a European Asylum Policy (de Sousa, CDU and de Bruycker, P (eds)) (Bruylant Brussels 2004), at 194.Google Scholar

151 Art 41, Vienna Convention on the Law of Treaties.

152 Arts 54 and 56, Vienna Convention on the Law of Treaties.

153 In Marschik, A ‘Too Much Order? The Impact of Special Secondary Norms on the Unity and Efficacy of the International Legal System’ (1998) 9 European Journal of International Law at 231, referring toCrossRefGoogle ScholarBarnHoorn, LA and Wellens, KC (eds) Diversity in Secondary Rules and the Unity of International Law (Nijhoff The Hague 1995) at 297–8.Google ScholarSee also Weiler, J ‘The Transformation of Europe’ (1991) 100 Yale Law Journal at 2422.CrossRefGoogle Scholar

154 eg Hartley, T ‘International Law and the Law of the European Union—A Reassessment’ British Yearbook of International Law (OUP Oxford 2001) 14–17.Google Scholar

155 This is a forceful argument made by Eeckhout, Piet with regard to WTO law in ‘Judicial Enforcement of WTO Law in the European Union—Some Further Reflections’ (2002) 1(5) Journal of International Economic Law 91–110.CrossRefGoogle Scholar

156 Subject to the limitations in Art 68 EC Treaty.

157 As per Lord Steyn in Islam v Secretary of State for the Home Department, R v Immigration Appeal Tribunal and Another ex p Shah [1999] 2 AC 629.

158 [2001] 2 WLR 143.

159 Eeckhout, P ‘Judicial Enforcement of WTO Law in the European Union—Some Further Reflections’ (2002) 1(5) Journal of International Economic Law 91–110.CrossRefGoogle Scholar