The conflict in Syria has brought a large number of asylum claimants across Europe into sharp relief. This is precisely the time when the Common European Asylum System (CEAS) should be closely monitored and scrutinized to ensure access to international protection for those deserving it.
The CEAS expresses political willingness by the European Union to establish a harmonised, fair, and effective asylum procedure to process asylum claims across EU Member States while complying with international law obligations to protect asylum claimants fleeing persecution. The three key instruments of the CEAS include: the Dublin Convention (1990), the Dublin II Regulation (2003), and the Dublin III Regulation (2013). The latter Regulation identifies the Member State responsible for examining the asylum application, which the aim to enhance efficiency, prevent forum-shopping, and promote harmonisation within the EU asylum system.
This blog post argues that the CEAS as a whole has partially failed its goals of achieving harmonisation and uniformity in the area of asylum law. The lack of uniformity and harmonisation among the practices of the Member States in such an area is due, in particular, to the fragmentation of international law. While some argue that EU law, as interpreted by the Court of Justice, is an autonomous legal order, this blog takes the internationalist view to suggest that the EU legal order should comply with relevant international law obligations in the area of asylum law, as requested in Article 78 TFEU.
Harmonisation and uniformity in the area of asylum protection may be achieved when Member States comply with the CEAS in a coherent and standard manner, while at the same time adhering to their international law obligations such as non-refoulement, protected under the ECHR. It is important for the CEAS to be aligned with international law and in particular, the principle of non-refoulement as protected under the ECHR, for two reasons: First, to effectively protect asylum claimants and refugees; second, to prevent erosion of the international refugee law regime by the variation of interpretation by EU Member States.
Non-Refoulement under EU and ECHR Law: The fragmentation of international law and its effects on EU asylum law
The principle of non-refoulement is a central tenet in international refugee law. It is the right of the asylum claimants or refugees not to be sent back to their country of origin where they could face persecution. From a different standpoint, non-refoulement is formulated as the prohibition against torture – under Article 3 of the ECHR to which all EU Member States are contracting parties. The principle is widely regarded as an international law custom and it has been argued by some authors to constitute jus cogens. This blog suggests that non-refoulement is an international human rights norm, rather than strictly a norm of international refugee law, so that it is an absolute prohibition from which no derogation is permitted.
Despite not being a contracting party to the Refugee Convention, pursuant to Article 78 TFEU, the EU is obliged to establish a common asylum policy which complies with the Refugee Convention and, therefore, the non-refoulement principle. Such a principle is also incorporated in EU secondary law, namely in the Qualification Directive (2011/95/EU), the Asylum Procedures Directive (2013/32/EU), and the Reception Conditions Directive (2013/33/EU).
Despite calls for solidarity and integration within the EU, academics and others have highlighted the lack of uniformity in the application of the Dublin System and CEAS, as a whole. One failure of the Dublin System is the inability of EU Member States to harmonise the standards by which the Member States implement their domestic asylum policies, which affects their compliance with relevant international law. In addition, the EU Commission has highlighted that the lack of harmonisation and uniformity within the CEAS is attributable to a failure of EU Member States to establish common practices in the national implementation of EU asylum policies. In this respect, the Migration Policy Institute further evidences a substantial transfer of responsibility for processing asylum applications from northern Member States to the frontline Member States of the EU. At the same time, there are also differences among the EU Member States in terms of successful asylum applications. According to the 2013 European Asylum Support Office Report, a Syrian national would have a better chance to be offered protection in Germany, which granted protection to 89% of Syrian applicants in 2012, while in Cyprus protection was offered to none of the Syrian applicants.
Therefore, although introduced with the objective to address the lack of harmonisation and uniformity in the area of asylum seekers protection policies, the Dublin System has so far partially failed to do so. While the Dublin System has internal deficiencies, it is argued that the lack of harmonisation and uniformity of asylum protection within the EU reflects a much broader problem attributable to the ‘fragmentation’ of international law, being the non-uniform judicial interpretation of international law by international courts. Fragmentation of international law is the idea that the system of international law lacks coherence attributable to ‘the emergence of specialised and relatively autonomous spheres of social action and structure’. States use their sovereign discretion to interpret international law when they transpose it into their domestic legislation. This discretion, combined with the variation of implementation of international law in domestic legal systems, exacerbates the fragmentation that is inherent in international law. It may be argued that the fragmentation of international law may have a foreseeable direct effect on EU Member States’ practices in areas of law influenced by international law.
Some scholars, as well as the CJEU, view the EU legal order as sui generis, governed by doctrines such as that of supremacy and direct effect of EU law, enabling it to supersede national and international law (EU primacy view). However, it is suggested that in specific areas of law, such as asylum policies, EU Member States are first and foremost obligated to comply with international law, above and beyond EU law. Under this perspective, it may be said that international law influences EU law. Where there is contradiction between international law and EU law, international law should take precedence where the norm in question has entered international custom or is a jus cogens norm (internationalist view).
If one accepts the argument that EU law is inevitably influenced by what happens in the international arena, and by extension, by the obligations undertaken by States through international treaties, one can also see how the fragmentation of international law may in turn influence the harmonisation and uniformity of the CEAS. For instance, where certain international law norms are unclear, these international law norms or principles, when being incorporated into EU law, may also remain unclear. When EU Member States turn to these international law principles in an attempt to interpret and implement them into national legislation, the lack of clarity as evidenced through the fragmentation of international law makes it more difficult for Member States to comply with their international law obligations. The principle of non-refoulement does not escape the phenomenon of the fragmentation of international law. As a consequence, the ‘fragmented’ interpretation of such a principle is likely to result in increased complexities when implementing and complying with EU standards provided for in the CEAS.
The fragmentation of the principle of non-refoulement may also be evidenced in the judgments of the ECtHR and the CJEU. Despite the obligation of EU Member States to comply with the non-refoulement principle under Article 78 TFEU, two ECtHR cases illustrate EU Member States’ failure to comply with such a principle as protected under the ECHR, and, thus, under international law. In MSS v. Belgium and Greece, the ECtHR held that there were deficiencies in the Greek authorities’ examination of the asylum application at the national level as a result of the application of the Dublin II Regulation. In the case at hand, the asylum claimant faced a real risk of being removed directly or indirectly (i.e. being sent to another country where he will ultimately be removed) back to his country of origin without a full examination of the merits of this case. Therefore, Belgium violated Article 3 of the ECHR on the prohibition against torture in sending the asylum claimant from Belgium back to Greece to face persecution in application of the Dublin II Regulation. In TI v. the United Kingdom, the ECtHR found the United Kingdom’s decision to send the claimant back to Germany through the Dublin II Regulation exposed the asylum seeker to treatments contrary to Article 3 of the ECHR. The Court held that non-refoulement obligations may be violated indirectly when a State sends an asylum claimant to another State where the sending State knew or ought to have known of the applicant’s risk of onward refoulement if removed. These cases thus highlight some degree of incompatibility between the implementation of Dublin II Regulation and Article 3 of the ECHR, protecting the non-refoulement principle.
As a matter of fact, the ECtHR has a broad interpretation of non-refoulement as provided under Article 3 ECHR, which can also be applied extraterritorially. The CJEU, in contrast, adjudicates the norm of non-refoulement as laid down under Article 19(2) of the EU Charter and under EU secondary law such as the Qualification Directive. The discrepancy arises since non-refoulement is an absolute prohibition under Article 3 of the ECHR, but such absolute prohibition is not explicitly stated under EU secondary law. For example, under Article 21 of the Qualification Directive, as was confirmed by the CJEU in HT, non-refoulement is guaranteed, but only implicitly. The lack of uniform interpretation of the already fragmented international law norms, such as the non-refoulement principle, by international courts creates double standards which increase the difficulty with which EU Member States may apply non-refoulement in their legislation. Although Article 53 of the EU Charter provides for a clause concerning the harmonisation of the standards of protection for fundamental rights stemming from different legal instruments within the EU, divergencies between the interpretation of non-refoulement under EU law and the ECHR are evident, with negative consequences on the protection of individual rights of asylum seekers.
This blog post has tried to demonstrate the failure of Member States to harmonise the standards created under the CEAS or the Dublin System. This lack of harmonisation and uniformity in the interpretation and implementation of the CEAS, it is suggested, is due to the fragmentation of international law. This fragmentation of international law is shown through the divergencies in interpreting the principle of non-refoulement under EU law and the ECHR. A possible solution in addressing the non-coherent interpretation of the principle of non-refoulement could be provided by mutual references to international courts’ decisions when adjudicating in the area of asylum law. This practice would be particular beneficial in order to ensure the uniform interpretation and application of the principle of non-refoulement while enhancing the protection of individual rights.
Jenny Poon is a Ph.D. Candidate at the Faculty of Law of the University of Western Ontario, Canada.
 European Commission, ‘Common European Asylum System’ <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/index_en.htm> accessed 3 June 2016; cf: Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention) art 1A.
 Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities  OJ C254/1; Council Regulation (EC) No 343/2003 of 18 February 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 L50/1.
 European Commission, ‘Country Responsible for Asylum Application (Dublin)’ <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/asylum/examination-of-applicants/index_en.htm> accessed 3 June 2016; Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)  OJ L180/31.
 International Law Commission, ‘International Law Commission’ (2016) <http://legal.un.org/ilc> accessed 6 June 2016; United Nations General Assembly, ‘Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law’, 13 April 2006, UN Doc A/CN.4/L.682 (Report).
 See for instance Court of Justice of the European Union, Kadi II, C-584/10 P, C-593/10 P and C-595/10 P, 18 July 2013 <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62010CJ0584:EN:HTML>.
 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols No. 11 and 14, 4 November 1950, ETS 5, art 3 (ECHR).
 See, for example: Cathryn Costello and Michelle Foster, ‘Non-Refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test’ (2015) Netherlands Yearbook of International Law, 273-327.
 Refugee Convention (n 1); Treaty on the Functioning of the European Union, 13 December 2007, 2008/C-115/01 art 78 (TFEU).
 Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (2011) OJ L337/9 (Qualification Directive); Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast) (2013) OJ L180/60; Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 laying down standards for the reception of applicants for international protection (recast) (2013) OJ L180/96.
 Anna Knoll, Raphaelle Faure, Mikaela Gavas, ‘Challenges to a comprehensive and integrated EU migration and asylum policy’, 3 February 2016 <http://www.thebrokeronline.eu/Blogs/Inclusive-Economy-Europe/Challenges-to-a-comprehensive-and-integrated-EU-migration-and-asylum-policy> accessed 22 November 2016.
 See, for example: Susan Fratzke, ‘Not Adding Up: The Fading Promise of Europe’s Dublin System’, March 2015, 7-9 <https://www.google.ca/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&ved=0ahUKEwib8K_7q8vYAhVq7oMKHahfC6QQFgg7MAM&url=https%3A%2F%2Fwww.migrationpolicy.org%2Fsites%2Fdefault%2Ffiles%2Fpublications%2FMPIe-Asylum-DublinReg.pdf&usg=AOvVaw2xSH7S9vl59A8KiEK6lkdz> accessed 9 January 2018 (Fratzke).
 European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, Policy Plan on Asylum’ COM(2008), 17 June 2008, 3 <http://www.unhcr.org/refworld/docid/4860eee72.html> accessed 7 June 2016.
 Fratzke (n 11) 8.
 European Asylum Support Office, ‘Annual Report on the Situation of Asylum in the European Union 2012’ (2013) <http://easo.europa.eu/wp-content/uploads/EASO-Annual-Report-Final.pdf> accessed 12 May 2018, 28.
 European Commission, ‘Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast)’ COM(2016) 270 final, Brussels <http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/european-agenda-migration/proposal-implementation-package/docs/20160504/dublin_reform_proposal_en.pdf> accessed 29 May 2016, 9.
 Report (n 4) para 7.
 For more discussion on the relationship between international and EU law, see: Ramses A Wessel, ‘Reconsidering the Relationship between International and EU Law: Towards a Content-Based Approach?’ in Enzo Cannizzaro, Paolo Palchetti and Ramses A Wessel (eds) International Law as Law of the European Union (Leiden: Martinus Nijhoff, 2012).
 See, for example: Hemme Battjes, ‘European Asylum Law and its Relation to International Law’, VU Migration Law Working Paper Series No 3, 60; See, also: the international law principle of non–refoulement which binds all States regardless of whether they are state parties to the Refugee Convention (n 1).
 MSS v Belgium and Greece App No 30696/09 (ECHR, 21 January 2011).
 United Nations Committee Against Torture, AD v Netherlands, Communication No 96/1997, UN Doc CAT/C/23/D/96/1997, para 7.3; ECHR (n 6) art 3.
 TI v The United Kingdom App No 43844/98 (ECHR, 7 March 2000).
 Moira Sy, ‘UNHCR and Preventing Indirect Refoulement in Europe’ (2015) 27(3) International Journal of Refugee Law, 457-480, 458.
 See, for example: Hirsi Jamaa and Others v Italy App no 27765/09 (ECHR, 23 February 2012).
 It should be noted, however, that the CJEU has, in the past, adjudicated upon the norm of non-refoulement in the context of the Visa Code and seeing whether the Visa Code is in compliance with international law obligations in Court of Justice of the European Union, X and X v Belgium, C-638/16 PPU, 7 March 2017, para 28(1).
 Steve Peers, ‘Non-Refoulement: Is Part of the EU’s Qualification Directive Invalid?’, 14 January 2017; Court of Justice of the European Union, HT v Land Baden-Württemberg, C-373/13, 24 June 2015, paras 41-44; Qualification Directive (n 9) art 21.
 Court of Justice of the European Union, NS and ME, C-411/10 and C-493/10, 21 December 2011, paras 64-68. Also, Article 6 TEU provides that the EU shall accede the ECHR, which is not currently a binding instruments in the EU legal order. Nevertheless, some of the rights included in the ECHR have been transplanted in the EU legal system in the form of general principles of EU law.