In this section The Refugee Law Reader turns to the legal norms developed in Europe regarding refugee protection. This is a complex area, as two quite separate actors both have significant impact on asylum and related protection issues. First, the Council of Europe, comprising 47 countries, addresses general human rights protection, and its activities have significant implications for the legal position of asylum applicants and refugees. Second, the European Union (EU) – an organization that is entirely separate from the Council of Europe, although the EU’s 28 Member States are simultaneously members of the Council of Europe – has embarked on an active programme to develop new legal norms affecting immigration, borders, and asylum.
The first part of Section VI focuses on the soft law that the Council of Europe has developed in its inter-governmental cooperation efforts. The backbone of these materials are the Recommendations and Resolutions of the Committee of Ministers and the Parliamentary Assembly relating to international protection. Although these documents are politically binding, they do not have immediate legal consequences. Nonetheless, they are useful as aids to interpretation of the undertakings of Council of Europe member states with regard to international protection. Next, Sub-Section VI.1.2 examines the European Convention on Human Rights, a core treaty of the Council of Europe. Although the Convention itself makes no reference to international protection of refugees, the judgments issued by the European Court of Human Rights impose important obligations regarding asylum on state parties. Furthermore, all members of the Council of Europe must adhere to the Convention, as interpreted by the Court, and must accept the jurisdiction of the European Court of Human Rights.
The second half of Section VI highlights the key EU legislation, both Regulations and Directives, concerning international protection of asylum seekers, refugees and persons in need of subsidiary protection. Although the central concern of the EU is the successful functioning of the internal market (a market for the free movement of goods, persons, services, and capital across the internal frontiers), the EU expanded its scope in 1999 to include immigration and asylum. Indeed, the EU has adopted three five-year programmes (the most recent Stockholm Programme lasting until 2014) in order to create a Common European Asylum System intended to be based on a harmonized interpretation and application of the 1951 Geneva Convention. Sub-Section VI.2 also includes important decisions of the Court of Justice of the European Union, which is competent to issue binding interpretations of EU law, though it normally cannot receive complaints directly from individual asylum seekers.
Within the Council of Europe one of the main challenges to refugee protection stems from the ever increasing case load of the European Court of Human Rights. Protocol No. 14 to the Convention, intended to enhance the Court’s capacity, has thus far not resolved the growing backlog. Within the EU one of the central challenges is that, despite the goal of developing a Common European Asylum System, genuinely common standards and practices are still far from a reality, despite improvements in the recast asylum instruments adopted in 2011-13. In addition, the EU is placing increased priority on external migration control measures; these actions inevitably limit access to asylum procedures, and thereby restrict access to protection, for unknown numbers of persons in need of international protection.