International protection in the European Union

Author:Alexandra Bucur
International protection in the European Union 161
Alexandra BUCUR*
Given that the European Union is facing a crisis in terms of migration, international protection
has gained a fundamental role at the level of the European Union. Although the number of asylum
seekers decreased at the beginning of 2017 compared to the previous year, the granting of protection
remains a situation that is not manageable for the European Union.
Keywords: international protection, asylum seekers, human rights, European Union, migration.
The European Union is trying through its actions and policies to promote
respect for human rights and equality between people and to combat any kind of
discrimination. At international level, the application of the principle of equality
implies, inter alia, the absence of a privileged status or the domination of one
Member State over the others1.
Europe is in the midst of acrisis resulting from the conflicts in Iraq,
Afghanistan and Syria, migration trials in North Africa due to economic insecurity, as
well as generalized violence and human rights violations; and, to a lesser extent, the
conflicts in Ukraine and Georgia.
A common asylum policy, including a Common European Asylum System, is
a constituent element of the European Union's objective of progressively establishing
an area of freedom, security and justice open to those who, under circum stances,
legitimately seek protection in the Union. This policy should be governed by the
principle of solidarity and fair sharing of responsibility, including its financial
implications, between Member States2.
Despite the lower number of asylum seekers entering the European states, the
pressure is obvious. Thus, in August 2017, 61 659 applications for international
protection were registered in the EU + countries. Compared to the previous month, it
was an increase of 9%, but a significant decrease (- 55%) compared to August 20163.
* Phd Candidate, National University of Political Science and Public Administration, member of
the European Law Institute.
1 See Raluca Miga Beşteliu, Catrinel Brumar, International Protection of Human Rights, 3rd Edition,
The Universul Juridic Publishing House, Bucharest, 2007.
2 See the Preamble to Directive 2013/32 / EU.
3 EUROPEAN ASYLUM SUPPORT OFFICE, Latest Asylum Trends, 2017, august, disponibil la
Law Review vol. III, Special issue 2017, pp. 161-166
It is also in the interest of both Member States and applicants to ensure a fair
recognition of the need for international protection at first instance. For this purpose,
applicants should be provided with legal and procedural information at first
instance free of charge, taking into account their personal circumstances. The provision
of such information should, inter alia, allow applicants to better understand the
procedure, thus helping them to comply with the relevant obligations.
Member States may consider that it is the duty of the applicant to submit, as
soon as possible, all the elements necessary to support his application for
international protection. Member States are required to assess, in cooperation with
the complainant, the relevant elements of the application.
Commitments regarding international cooperation and the principle of solidarity
in the context of protection have been attested despite the difficulties encountered.
We believe that it is inevitable to recognize these contributions to the protection of
aliens, and it is also useful to support the strengthening of national capacity where
necessary, especially since the protection measures of those who request it „always
need time and material support4”.
Human rights protection mechanisms, through universal or regional international
norms, establish the State's obligation to protect all categories of persons within its
territory. The rights of persons claiming protection are „legal in nature, conferring
protection5”. The International Court of Justice has determined that „human rights
protection does not cease in the event of armed conflict, given the effect of the
derogation provisions as set out in Article 4 of the International Covenant on Civil
and Political Rights6”.
The right of a person to leave the state of origin is the expression of international
law, governed by Article 12, paragraph 1 of the International Covenant on Civil
and Political Rights as follows: „Everyone is free to leave any country, including
his own country”.
Although the protection of individuals belongs to the state, there are situations
in which „another state can take over the protection of citizens of another state7”.
In these cases, the notion of legal protection has a special valency. Protection in this
respect means legal protection8, the use of legal instruments, including international
and national, which provide for the implementation of States' obligations and are
În anul 2016, rile UE au înregistrat un numr de 1.236.325 de cereri de azil. Cifra a fost în
scdere cu 9% fa de anul 2015, când numrul total al cererilor s-a ridicat la 1.4 milioane.
4 See Irina Moroianu Zltescu, Application of anti-discrimination legislation to women, Works of
the 10th International Conference on Non-Discrimination and Equal Opportunities, Nedes, 2016,
Ed. Pro Universitaria, p. 24.
5See Frederic Sudre, European and International Human Rights Law, Polirom Publishing House,
Iasi, 2006, p. 46.
6 See International Court of Justice, Legal Consequences of Building a Wall in the Occupied Palestinian
Territory, Consultative Opinion of 9 July 2004, para. 106.
7 See A. Nstase, C. Jura, F. Coman, 14 lectures on Public International Law, Ed. C.H. Beck,
Bucharest, 2012, p. 86.
8 See Irina Moroianu Zlatecscu, Human Rights-an Evolutionary System, IRDO, Bucharest, 2008, p. 45.
International protection in the European Union 163
intended to ensure that no person in need of protection is penalized or expelled,
such as and that these persons are beneficiaries of the rights guaranteed. Protection
is based on the law, serving the individual's need.
Qualifying for a situation of lack of state protection by the individual is the first
step in determining the need for international protection. International protection
includes the forms of granting refugee status or subsidiary protection status.
Although people leave the territories of their countries of origin following
armed conflicts, it should not be understood that all aliens who come from such an
area are potential refugees. It takes an act of persecution of that state directed
directly to the individual to become a potential refugee. Persecution refers to serious
human rights violations involving a threat to life or liberty, as well as other types of
serious harm as assessed in the light of the applicant's opinions, feelings and
psychology9. Because of this persecution, the return of the individual is impossible in
the state whose protection he renounces. The persecution occurs when human rights
or threats are systematic and governments or governments fail to protect their
citizens or, in some cases, participate actively in violations. Regardless of the form,
we are practically in the face of a failure of the authorities to protect their own
citizens, not having the capacity to respond to their legitimate needs.
Some of those who have entered Europe have a well-founded fear of persecution,
as defined by the 1951 Geneva Convention and its Protocol. Their life has been
jeopardized on grounds of ethnicity, religion, nationality, political opinion or
belonging to a particular social group, which distinguishes them from other migrants
by conferring a special status of protection in accordance with the rules of
international law and internally.
Subsidiary protection is granted to those who do not qualify as refugees, but face
a real risk of „serious harm” if they return to their country of origin. By legislation it
has been established that they fall into the category of serious injuries death penalty
or execution, torture or inhuman or degrading treatment or punishment, as well as
serious and individual threats to the life or person of a civilian as a result of
generalized violence in the event of internal or international armed conflict.
Protection is achieved through the cumulation of all the activities that arise
from the existence of the social relationship between the state and the citizen, as
well as the security that he feels on the territory of the state. In Kant's view, the
state is „a multitude of people who live under law and associate through a
contract10”. In the case of a violation of the social contract by the state, persecution
occurs. We consider that refugee status is a serious testimony to the violation of the
social contract between the authorities and the citizen.
9See Wessels, Janna. Sexual Orientation in Refugee Status Determination. Working Paper Series (74),
Refugee Studies Centre. 2011. pag 15.
10 Kant, I., quoted in Bdescu, M., Constitutional Law and Political Institutions, Sitech Publishing
House, Craiova, 2011, p. 73.
Through persecution or serious harm, the country of origin actually abandons
its status as a protector, the individual not being part of society, denying his
essential rights, being physically and mentally impaired.
The need for protection arises from strong abusive motives that occur in the
state of origin, on the background of which the individual requires entry into
another state in order to obtain protection and, implicitly, his safety. The lack of
protection of the state of origin is a „shredding” of the existing link between a state
and its own citizen, a situation that generates persecution or serious harm and
implicitly, unfair treatment.
Under the terms of unlawful treatment, in violation of fundamental rights and
freedoms, individuals are entitled to a form of protection granted by another
In practice, the request for international protection implies the abandonment of
the jurisdiction of a state and the passage under the jurisdiction of another state.
Thus we are in the presence of a bilateral obligation: the state receives foreigners in
order to ensure protection and appropriate treatment and, on the other hand,
aliens are required to comply with the law of that State.
The right of a state to grant protection stems from the principle that each state is
considered sovereign, „has exclusive control over the territory and hence the persons
present in its territory”.
International co-operation and collective efforts are essential to launch an effective
response to the current realities of trans-national movement.
International protection implies admittance to a safe country, the granting of a
form of protection, respect for fundamental human rights. To this is added respect
for the principle of non-refoulement.
The principle of non-refoulement11 is enshrined in Article 33 of the 1951 Geneva
Convention Relating to the Status of Refugees and proclaims that „No State shall in
any way expel or return (refouler) a refugee to the frontiers of territories where life or
his freedom would be threatened on grounds of race, religion, nationality,
membership of a particular social group, or political opinion12”.
The need for an individual's security has always existed, and the provision of
the vital framework for the existence of the person belongs to the state by creating
favorable conditions for its development and by neutralizing the factors that would
endanger this protection.
11 See Art. 33 of the 1951 Convention Relating to the Status of Refugees; art. II of the OUA
Convention; art. 3 of the United Nations Declaration on Territorial Asylum, adopted by the General
Assembly in 1967 (Resolution 2312); art. 3 of the United Nations Convention against Torture and
Other Inhuman and Degrading Treatment; art. 22 of the Convention on the Rights of the Child; art. 7
of the International Covenant on Civil and Political Rights.
12 Geneva Convention on the Status of Refugees of 1951, Article 33.
International protection in the European Union 165
The European Court of Human Rights stressed that „the assessment of
whether there is a real risk must be made on the basis of all relevant factors that
may increase the risk of ill-treatment ... it should be possible that a number of
individual factors can not a real risk, when analyzed separately; but when
considered cumulatively, in a situation of general violence and increased security,
the same factors can give rise to a real risk13.
Both the need to take into account all relevant factors, cumulative, and the
need to give weight to the general situation in the country of destination derive
from the obligation to take into account all the relevant circumstances of the case”.
The principle of non-refoulement prohibits not only removal, expulsion or
extradition to a country where a person may be at risk of persecution or other
serious harm (direct return), but also prohibited in countries where individuals are
at risk serious deportation to such a country (indirect non-refoulement)14.
State protection is the set of measures, actions, the capacity of institutions to
ensure the security of the individual by establishing an efficient system. Diffuse
protection is not sufficient.
In its depth, the right to protection is tied to human development and security.
This depends on the relationships established between those in need of protection
and the state that provides this protection. Issues related to these issues call into
question human rights at the highest level15. The challenge is to build peace alliances
that stretch horizontally and vertically between different levels of society.
In a natural state, states guarantee the fundamental rights and security of all
members of society. But there are cases where the protective factors are disturbed,
and the ability of the state to ensure that the individual's breeding appears to be
non-existent. In these situations, people can no longer exploit their rights, and the
fundamental principles of relations between the state and the people are violated.
Thus, „the fundamental social relations that arise in the process of establishing,
maintaining and exercising state power16” are affected.
International cooperation and collective efforts are essential to deliver an
effective response to the current realities of trans-national movement.
There is an international and European consensus that asylum seekers belong
to a particularly special category, a disadvantaged and vulnerable group, requiring
special protection.
14 European Union Agency for Fundamental Rights,Scope of the principle of non-refoulement in
contemporary border management: evolving areas of law,Luxembourg: Publications Office of the
European Union, 2016, p. 7.
16 See Ioan Muraru, Constitutional Law and Political Institutions, Ed. Actami, Bucharest, 1995,
pp. 44-47.
The special status of an applicant as a member of a vulnerable group may have
an impact on the obligations imposed on States as to the conditions under which
such a person is received17.
National authorities are the first involved in the application of national rules18,
the European Court of Human Rights examines whether the effects of interpretation
and application are compatible with the provisions of the Convention.
It would be unfair if, despite the deficiencies, we did not mention the international
action in the fight for the defense of human rights. Whatever state we are citizens of,
we must have a common vocabulary, that of promoting the human dimension.
This crisis should not only be seen as a security threat but also as an opportunity
to reaffirm the intensity and strength of the human dimension as well as to find
lasting resolutions to balance the security and rights of the individual.
Migration is a phenomenon that can take place in dignity and not a survival
project. The vulnerability resulting from the status of the immigrant who is sometimes
excluded from the exercise of fundamental rights is in contrast to the necessary
adaptation for the migration process itself.
17 Council of Europe/European Court of Human Rights, 2016, p. 4
18 See Irina Moroianu Zlatescu, Romanian Constitutional Law, Ed.Kluwer Law International,
Hague, London, Boston, 2017, p. 5.