Challenges of the Knowledge Society (May 2012)
THE ASYLUM, BETWEEN HUMANITARIAN RESPONSE AND POLITICAL INSTRUMENT
Abstract
At 9 November 2010, the European Court of Justice, in a preliminary ruling, decided to depart from the interpretation promoted by the United Nations High Commissioner for Refugees, in the matter of the application of the exclusion clauses. The European Court considered that no proportionality test between human rights protection and gravity of a crime is to be applied in the case of a person suspected of having committed an act contrary to the principles and purposes of the United Nations. By eliminating this test, the Court is sending a signal on rethinking the asylum institution, from a humanitarian tool that it became, to a political instrument. This decision could not be read alone; corroborated to the concerns already raised on the suitable use of the asylum instrument to address massive humanitarian needs, it would indicate a reorientation in the interpretation of international norms governing the refugee law. Still, the human rights organs and the European Court of Human Rights continue to refer to the asylum as a situation where a humanitarian perspective, reflected in the proportionality test, or for those mechanisms the risk of human rights violation probability test, is still valid. The two apparently divergent directions will need to converge in the implementation of the European Union regulations on asylum. This paper is exploring the possible reinterpretation of the European norms, trying to identify the new trends in the political perspective of asylum and the limitations to these trends that the respect for human rights is establishing.
