The Inter-American Court’s Advisory Opinion on Asylum and Its Impact for the Human Rights of Refugees Worldwide

[Massimo Frigo is a Senior International Legal Advisor at the International Commission of Jurists.]

2018 continues to be a year marked by fierce disputes with regard to asylum, including what it is and what the obligations States have towards refugees or others entitled to international protection. More recently, Venezuela has been another example of the fact that a refugee crisis may occur anywhere and anytime. Yet this is not the first nor the last to occur in the world.

For this reason, it is very useful to the international lawyer when a judgment brings clarity to the issue of asylum on which there have been several debates.

On 30 May, the Inter-American Court of Human Rights issued a landmark advisory opinion on the institution of asylum and its recognition as a human right under the Inter-American human rights system.

The opinion explains the intricate history of the concept of asylum as well as its development into territorial and diplomatic asylum with a particular focus, naturally, on the impact these legal concepts have on the Inter-American legal system.

Indeed, the Court’s focus is to identify the interpretation of the obligations inherent to article 22.7 of the American Convention on Human Rights :

Every person has the right to seek and be granted asylum in a foreign territory, in accordance with the legislation of the state and international conventions, in the event he is being pursued for political offenses or related common crimes.

As well as under article XXVII of the American Declaration on the Rights and Duties of Man:

Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements.

This discussion, which has a very specific importance for that region in light of several asylum treaties concluded under the auspices of the Organisation of American States, will not be the focus of this blog.

However, the dicta of the Inter-American Court have important repercussions on the interpretation of asylum and related legal principles, such as non-refoulement, at the global level as well as for other regional human rights system. This will be the focus of this piece.

The Inter-American Court, taking into consideration all asylum treaties, and, in particular, the Geneva Convention relating to the status of refugees of 1951, has held that the right to seek and receive asylum through recognition of refugee status

“sets certain specific obligations upon the State: i) the obligation of non-refoulement and its extraterritorial application; ii) the obligation to allow to file asylum applications and not to push back at the border; iii) the obligation not to criminalise or sanction the irregular entry or presence and not to detain; iv) the obligation to provide effective access to an efficient and fair refugee status determination procedure; v) the obligation to ensure the minimum guarantees of due process in an efficient and fair refugee status determination procedure; vi) the obligation to adapt the proceeidings to the specific needs of children and adolescents; vii) the obligation to provide international protection if the definition of refugee is met and to guarantee the maintainance and continuity of the status of refugee; viii) the obigation to interpret restrictively the exclusion clauses, and ix) the obigation to provide access to rights based on equal conditions under the status of refugee.” (para 99, unofficial translation)

With regard to the situation of persons asking for asylum in a diplomatic mission of a country, the Inter-American Court discusses at length the institute of diplomatic asylum. Nonetheless it says clearly that this situation does not only entail obligations under diplomatic asylum, but also under “the principle of non-refoulement, as has been developed progressively under the framework of international and regional human rights systems, [that] may impose extraterritorial obligations to host States, because they exercise jurisdiction, obligations that may be opposed to third countries, given the erga omnes character of this norm under international law” (para. 107, unofficial translation).

The Court continues its reasoning with the consideration that

“the right to seek [asylum] includes the right to ask and apply for asylum, either on the territory of the State or when a person is, in any other way, under its jurisdiction, without any form of discrimination. Furthermore, for the right to seek asylum to be effective, receiving States must allow people to ask for asylum or the recognition of refugee status. For this reason, these people cannot be pushed back at the border or expelled without an adequate and individualised assessment of their application in line with due process. This entails … the related right of the asylum seekers to be guaranteed a correct assessment by the national authorities of their applications and of the risk they may face in case of expulsion. This right implies, as positive obligation, that the State must allow the entry into the territory and give access to the asylum or refugee determination procedure. Equally, the Court considers that third countries cannot undertake acts whose aim is to prevent the persons in need of international protection from reaching other territories in seek of protection, or cannot use as an excuse legal fictions, in order not to give acccess to the related protection procedures… The same is applicable to the externationalisation of borders and to the migration control carried out outside of a State’s territory” (para. 122, unofficial translation).

After having excluded that the American Convention, the American Declaration or a rule of regional customary law enshrine a right to diplomatic asylum – which remains regulated by other Inter-American conventions – the Inter-American Court has nonetheless stressed that a State remains obliged to guarantee rights under human rights law “of all persons under its jurisdiction, whether national or non-national, without any form of discrimination. Therefore, certain specific obligations exist in the case in which it is established that a person who arrives at or bursts into a diplomatic representation seeking protection, is under the jurisdiction of such State” (para. 167, unofficial translation).

In this regard, the Court ruled that “receiving States are under the obligations arising from article 1.1 of the [American] Convention, as long as they are exercising control, authority or responsibility over any person, regardless of whether he or she is on the terrestrial, fluvial, maritime or aerial territory of such State. Therefore, the Court holds that the general obligations established by the American Convention are applicable to the acts by diplomatic agents deployed in the territory of a third country, if a personal link with the concerned person can be established ” (para. 177, unofficial translation). Further, it held that the principle of non-refoulement specifically applies also to all diplomatic representations, since these are places where States exercise authority or effective control (see. para. 188). The Court recalled similar jurisprudence by the UN Human Rights Committee and the European Commission on Human Rights (see, para. 189).

In this regard, the Court recalls that the principle of non-refoulement applies to these situations, and adds that, “the principle of non-refoulement is fundamental not only for the right to asylum, but also as a guarantee of several non-derogable human rights, since it is in fact a measure aimed at preserving life, freedom and the integrity of the protected person” (para. 180, unofficial translation).

Pursuant to this principle, the State has specific obligations towards persons that have asked for protection at a diplomatic representation with regard to the individualised assessment of the risk and the adequate means of protection, including those against arbitrary detention. In this regard, the Court recalls that “it is not sufficient that States abstain from causing a violation of the said principle, but it is imperative that they adopt some positive measures” (para. 194, unofficial translation), including a personal interview and an individual assessment of the risk upon expulsion (para.195) of serious violations of human rights and of indirect refoulement (para. 197).

More precisely, this does not entail “per se that the State must necessarily grant asylum at its diplomatic representations, but that there are other obligations that bind the State to adopt diplomatic measures, including the request to the territorial State of safe-passage or of other measures within its power, in line with international law, to secure to the applicants the guarantee of their rights under the Convention” (para. 198, unofficial translation).

This decision is very important because it sets out unequivocally the obligations that a State must respect, protect and fulfil under international human rights and refugee law even extraterritorially.

By not relying on the institution of diplomatic asylum, the Inter-American Court has ensured an authoritative legal position that will be able to influence jurisprudence and legal interpretation not only in Latin American countries but across all human rights legal systems across the world.