The asylum, between humanitarian response and political instrument

AuthorCatrinel Brumar
PositionSenior Lecturer, Ph.D. candidate, Faculty of Law, 'Nicolae Titulescu' University, Bucharest, Romania
52 Lex ET Scientia. Juridical Series
LESIJ NO. XIX, VOL. 1/2012
Catrinel BRUMAR
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
Keywords: refugee status, serious non political crime, act contrary to the purposes and
objectives of the United Nations, proportionality considerations, preliminary ruling
1. Introduction
The refugee law is in quest of a redefinition. The last twenty years have shown that the
humanitarian perspective, reflected primary in the work of the United Nations High Commissioner
for Refugees, although very appreciated, is not succeeding in coping with, on one hand, the massive
influx of refugees which do not always fulfill the criteria set down in the Convention Relating to the
Status of Refugees, signed in Geneva on 28 July 1951 (here after “the Geneva Convention”) and on
the other hand with the restrictions imposed by the immigration regulations. The development of
human rights law had a major impact on the interpretation and application of the refugee definition,
extending it as far as the notion of discrimination and the standard of protection from the State of
origin are concerned, but also weakening its political dimension. Against this background, new
theories immerged, trying to rediscover the essence of asylum as refugee protection and to clarify its
relation with the humanitarian approach1.
Senior Lecturer, Ph.D. candidate, Faculty of Law, “Nicolae Titulescu” Universit y, Bucharest, Romania (e-
1 Mathew E. Price, Rethinking asylum: History, Purpose, and Limits (Cambridge, CUP, 2009), p. 13

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