A Critical Analysis of the Dublin System in the European Context of Forced Migration

Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), Lecturer, School of Legal Studies, CUSAT, Kochi)).

The basic right when we talk about the concept of rights of asylum seekers is the right of non-refoulement which is a part of right not to return. The right of non-refoulement is a right closely associated with right against torture and degrading treatment. The right can be found impliedly mentioned under article 3 of the ECHR which has been clarified to be having wide ambit when compared with the provisions of the Refugee Convention, 1951 as has been held in the case of Chahal v. UK. The European Convention seems to the best international document which protects the rights of refugees in the sense that it provides for an effective enforcement mechanism when compared to the other protections at the international level ((Helene Lambert, ‘Protection against Refoulement from Europe: Human Rights Law comes to the Rescue’ (1999) 48 Int’l & Comp. L.Q. 515, 516)).

Dublin Convention

The Dublin Convention is considered as the first attempt at the international level to maintain a cooperative system of interactive action which has tried to solve to a certain extent, the question of state responsibility in regard to asylum seekers ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L. 7, 9)). The member state responsible for considering the asylum application is dealt with under articles 4 to 8 of the convention and it should be noted that the basic reason for its enactment, as stipulated in the Preamble, “is to take measures to  avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of  their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of  the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of  these States acknowledging itself to be competent to examine the  application for asylum.” According to the convention, the Member State shall retain the right, pursuant to its national laws, to send an applicant for asylum to a third State, in compliance with the provisions of the Geneva Convention as per article 3(5). It is submitted that from a legal point of view there should be an evaluation of the exact contacts and connections which the applicant has with the third country or else the adequacy of his protection in that country cannot be guaranteed ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L. 7, 11)).

The Dublin Convention is often stated to be a burden sharing mechanism on the basis that only one member state can be made responsible for determining asylum claims but it seems to be lacking in clarity because of the fact that there exist uncertain as well as lengthy procedures in case of applicants illegally crossing borders ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L. 7, 18)). At the same time, it has also been stated that the Dublin Convention is not an efficient system and there should be a reassessment of responsibility sharing arrangements within the EU as there is no genuine cooperation between the states and also due to the complex procedure involved in the transfer of asylum seekers ((Agnes Hurwitz, ‘The 1990 Dublin Convention: A Comprehensive Assessment’ (1999) 1 Int’l J. Refugee L. 646)).

Objectives and Criticisms

The main objective of the Dublin Convention is to avoid any situations where applicants for asylum are left in doubt for too long as regards the likely outcome of their applications. The secondary objective of the convention is to provide all applicants with a guarantee that one of the Member States will assume responsibility for considering their asylum application. One important aspect of the convention is its ability to tackle multiple asylum applications. The convention also prevents the asylum applicants from travelling within the European Union before deciding where to lodge an application for asylum and it also takes care of Family Unity.

But the convention has also been criticized for many reasons. The convention has been criticized most often for taking too much time in processing applications. The problem of delay in processing the applications will result in the failure of accomplishing the main objectives of the convention and as the convention permits the member state to send the applicant to a third state, problems may occur when the requesting state and the member state to which the request state is made have contradicting views about the safety in the third state. It has also been criticized for not detailing on the rules on ‘taking back’ as problems may continue to exist if national legislations and policies apply different set of procedures that may eventually lead to prevention of transfers. The provisions relating to the family unity in the convention are very limited and that the convention is also devoid of any objective criteria to preserve family unity especially in cases where an asylum applicant has a family member who is legally resident but not recognized as a refugee in one of the Member States. The Convention does not take care of equitable distribution of asylum applicants between the Member States which had resulted in the situation where some states receive more asylum seekers which creates an excessive burden on such states.

Effectiveness of the Dublin Convention

Less than two percentage of transfer have taken place between member states and it should also be noted that the transfer arrangements are not that satisfactory as the number of transfer requests accepted by the Member State to which they are directed is considerably greater than the number of transfers actually implemented. Moreover there is a clear lack of evidence which makes it unable to figure out the implementation of the principle that the Member State responsible for a person’s presence on the territory of the Member States is responsible for any subsequent asylum claim. The lack of judicial oversight as the Court of Justice of the European Communities has no jurisdiction to interpret the Dublin Convention and at the same time the committee which has been empowered in this regard has not succeeded in uniform application. The need for reasons why a recognized refugee might want to apply for asylum in another Member State to be specified in the convention and the inapplicability of the convention to refugee claims under European Convention on Human Rights or under other international conventions are also regarded as drawbacks of the Dublin Convention.

Commission Of The European Communities, SEC (2000) 522, Commission staff working paper : Revisiting the Dublin Convention: Developing Community legislation for determining which Member State is responsible for considering an application for asylum submitted in one of the Member States

It was the treaty of Amsterdam that made significant amendments to the Treaties that effectively necessitated the fact that the Dublin Convention should be replaced with a Community legal instrument within a time period of five years from the entry into force of that Treaty. Article 63(1)(a) required that the Council should adopt “criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States” and that is what has been achieved precisely by the Council Regulation (EC) No 343/2003. The need for a Common European Asylum System was also called for by the European Council during the special meeting held in Tampere on October 1999.

The developments that are stated to have taken place after the conclusion of the Dublin convention were the realisation of free movement of persons without internal frontiers (Schengen Cooperation is an example), the enlargement of the EU as more and more states joined after the Dublin convention and the development of the Eurodac system (fingerprint system in place of travel and identity documents) which provided for the collection and comparison of fingerprint data on applicants for asylum in order to facilitate the identification of cases where an applicant for asylum had previously claimed asylum in another Member State.

Dublin II: Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national

The main objective behind this regulation that replaces the Dublin Convention ((Article 24))is stated in the Preamble and it states that “the processing together of the asylum applications of the members of one family by a single Member State makes it possible to ensure that the applications are examined thoroughly and the decisions taken in respect of them are consistent.”

Examination of Relevant provisions

According to article 4(4) when an application for asylum is lodged with the competent authorities of a Member State by an applicant who is in the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for asylum was lodged. As per Article 5(2) the Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.As per article 6 in the case of an unaccompanied minor, the member state responsible for examining the application will be the state where a member of his or her family is legally present and in the absence of a family member, the state where he has lodged his application. As per article 7 where the person has a family member who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining his application. According to article 9 the member state which has issued the valid residence permit shall be the responsible member state for examining his application. Similar is the case where a member state has issued a visa. In case there are more than one visa or residence permit, the member state shall be determined on the basis on longest period of residence, latest expiry date etc. As per article 10, if it is proved that an asylum seeker has entered a member state irregularly the member state thus entered shall be the responsible state and the responsibility shall cease to exist on the expiry of I year from the date of irregular crossing. According to article 13 when it is impossible to name a member state the first member state where application has been lodged will be considered as the responsible state.

One of the most important point behind the regulation can be seen in article 15 which states that “any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on huma­nitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned.” It is to be noted that the regulation by virtue of this provision brings in family unification but the condition stipulated in article 7 settles the problem of disruption in family unity only partially ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 185)). An important change is made in regard to the time limit in the Dublin Regulation when compared to the Dublin Convention. Article 17 allows three months time limit from the time of lodging the application, in case where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application and decided to call upon the other Member State to take charge of the applicant and article 18 prescribes two months time for the requested member state to come to a decision and the time runs from the date on which the request was received. There is an additional time of one month granted under clause 6 of article 18 (in case where the examination is complex) and as per clause 7 of the same provision if the state fails to respond to the request, it would be deemed as if it has accepted the request. If the applicant is in detention, the state can also ask for an urgent reply. The rules on procedures are left with the domestic law as per the convention but the Dublin Regulation contains provisions regarding the same as under article 18 (4) the applicant shall be informed if another state is requested to take charge of his application.

The procedure for transfer of the applicant is provided under article 19 and further cooperation between member states can be found in article 21 which deals with administrative cooperation. Refusal to respond to a request by a member state may includefactors like “if the communication of such informa­tion is likely to harm the essential interests of the Member State” or “the protection of the liberties and fundamental rights of the person concerned or of others” as stipulated by 20(4). Moreover as per article 20(2) and 21(1)(e) the appeals lie to the courts against the decision on inadmissibility and transfer. The asylum seeker has a right to be informed and also is also entitled to have the information blocked or erased or corrected if it is found to be in breach of the regulation ((Article 21(9).)). It is submitted that rather than mere general assessment, a detailed analysis of the safety of the applicant in the country is to be done before sending him to the particular country by the member state and that the member state should see to it that the applicant is given adequate protection in that state and not sent to a third host state ((Reinhard Max, ‘Adjusting the Dublin Convention: New Approached to Member State Responsibility for Asylum Applications’ (2001) 3 Eur.J.Migration&L .7, 11)).

Drawbacks of Dublin Regulation

It is stated that the practice of examining asylum application under the Dublin system by the EU border states has not been very successful when it comes to the practical level as some of the countries such as Greece and Malta have not been able to provide adequate protection due to the enormous increase of asylum seekers and as lives are at risk in these type of cases it is often stated that the Dublin Regulation has to be revised.  The main reason for a claim for revision is the fact that there is notion that all the EU member states provide high standards of protection to refugees which is not true in practice and that the regulation does not guarantee that the responsibility for asylum seekers is shared among the EU nations ((Thomas Hammarberg, ‘The ‘Dublin Regulation’ undermines refugee rights’ <http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=80> accessed 13th January 2011)).

It is to be noted that the EU member states should stop transferring the asylum seekers back to countries where they face extreme hardships in regard to asylum procedures and this fact can be corroborated by the huge number of applications that came up before the Strasbourg Court (around 700 cases) in the year 2009-10 claiming for suspension of their transfers ((Article 3(3) of Dublin II: Any Member State shall retain the right, pursuant to its national laws, to send an asylum seeker to a third country, in compliance with the provisions of the Geneva Convention)). The extension of the time period from nine to ten months for the application until transfer is often criticized as it is in direct conflict with the objective of rapid processing of asylum application mentioned in the Preamble ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 185)).  The rise in the use of detention mechanisms for asylum seekers who are subject to be transferred to another nation due to the fear of absconding before the transfer is also pointed out as a drawback of the Dublin regulation. The suggestion of the European Commission in this regard that “it should be possible to suspend transfers and give states under particular strain short-term relief from their responsibilities under the Dublin Regulation” is deemed as the right approach ((Thomas Hammarberg, ‘The ‘Dublin Regulation’ undermines refugee rights’ <http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=80> accessed 13th January 2011)). It is stated that it is still questionable as to whether the Regulation removes the shortcomings of the convention because both are based on the same principle that responsibility lies within the member state that plays the greatest part in the applicant’s entry or residence in the EU and does not depend upon where the application is lodged ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 184)).

Eurodac

Eurodac which was established by the EC Regulation no. 2725/2000 can be defined to be a database containing fingerprints of asylum seekers which helps in determining member states responsible for the examining of asylum application. The mentioning of the same can be found in Article 21(c) of the Dublin II regulation which states that the Member State shall communicate to any Member State that requests the personal data concerning the asylum seeker which includes any information necessary for establishing the identity of the applicant, including fingerprints processed in accordance with Regulation (EC) No 2725/2000.

The main reason for planning to take fingerprints of illegal immigrants is because of the large number of immigrants from Iraq to Europe. According to Article 2 of the Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, Eurodac shall consist of the Central Unit, a computerized central database in which the data are processed for the purpose of comparing the fingerprint data of asylum applicants and means of data transmission between the Member States and the central database. The Council Regulation (EC) No 2725/2000 deals with taking finger prints of aliens who is apprehended by the competent control authorities in connection with the irregular crossing by land, sea or air of the border of that Member State having come from a third country and who is not turned back (article 8) and aliens found illegally present in a member state (article 11). In regard to the former category the Central Unit may not compare the data collected with those previously recorded in the database and with those subsequently transferred to the Central Unit ((E.R. Brouwer, ‘Eurodac: Its Limitations and Temptations’ (2002) 4 Eur. J. Migration & L. 231,235)). The latter category data can only be transmitted to the Central Unit to compare it with the fingerprint data of asylum applicants transmitted by other member states which is already recorded in the database. As per article 10 the fingerprint data collected in pursuant to article 8 can be stored in the central database for 2 years after which it will be deleted automatically whereas the fingerprint data collected with regard to the second category should not be recorded in the database at all ((Id. at p. 236)). Collection of data of both these categories of persons has been stated to be unjustified for the following reasons ((Ibid)):

1)      As these persons have not applied for asylum it is doubtful as to whether the obligations can be based on the Dublin Convention.

2)      The difficulties posed by different interpretations of the definitions of illegal border crossing or illegal presence by different states.

According to article 17 of the Regulation the person or a Member State which has suffered damage as a result of an unlawful processing operation or any act incompatible with the provisions laid down in this Regulation shall be entitled to receive compensation from the Member State responsible for the damage suffered. The person whose data is collected will have the rights under article 18 to get information regarding the identity of the controller and of his representative, the purpose for which the data will be processed within Eurodac, the recipients of the data, in relation to a person covered by Article 4 or Article 8, the obligation to have his/her fingerprints taken and the existence of the right of access to, and the right to rectify, the data concerning him. According to clause 6 of article 18 the Member State shall also provide the data subject with information explaining the steps which he/she can take if the person does not accept the explanation provided and shall include information on how to bring an action or, if appropriate, a complaint before the competent authorities or courts of that Member State and any financial or other assistance that is available in accordance with the laws, regulations and procedures of that Member State. If any state refuses access, the person concerned can bring a complaint before the competent authorities and courts as provided under article 18(11). Article 19 provides that each Member State shall provide that the national supervisory authority shall monitor independently, in accordance with its respective national law, the lawfulness of the processing, in accordance with this Regulation, of personal data by the Member State in question, including their transmission to the Central Unit and according to article 20 an independent joint supervisory authority shall be set up which shall have the task of monitoring the activities of the Central Unit to ensure that the rights of data subjects are not violated by the processing or use of the data held by the Central Unit and shall monitor the lawfulness of the transmission of personal data to the Member States by the Central Unit.

There was also an issue raised as to whether the taking of fingerprints from asylum seekers is incompatible with the ECHR rights especially in relation to article 8 with deals with right to privacy. It should be kept in kind that in Netherlands there was a discussion on account of the fact that the fingerprint data of both the asylum seekers and criminal suspects were stored in the same database which had resulted in the use of data of asylum seekers for criminal investigations ((Supra n.15)). Moreover use of these databases in regard to fingerprints of asylum seekers for police purposes as suggested by the German government and for other uses should be properly regulated and if not regulated with sufficient legal backing, can cause severe damages to the applicant. Concerns are also raised in regard to the retention of these data in the database for a longer period (10 years) as there are chances of misuse ((Supra n.16)). Furthermore concerns have also been raised in regard to the fact that the individual may have to wait longer if the governments and the commission being the responsible institutions for the Central Unit choose not to undertake any responsibility for repairing the damage caused to the asylum seeker as most of the rules in regard to Eurodac have to be executed in accordance with national laws and procedures ((Ibid)).

Report From The Commission To The European Parliament And The Council on the evaluation of the Dublin system {SEC(2007) 742}

The report shows that there has been a significant mismatch between the numbers of requests and decisions that each Member State reports to have received from other Member States and numbers of requests and decisions that each Member State reports to have sent to other Member States. Another major challenge faced by the Regulation is that uniform application is not always possible as Member States do not always agree on the circumstances under which certain provisions should apply which has been very evident especially in cases coming under the  sovereignty clause and the humanitarian clause. Moreover there has been always a problem of the evidence required for accepting to take charge of an asylum seeker because it is often difficult to provide. As regards the implementation of Eurodac, the states take sometimes over 30 days to send the data which has resulted in the wrong determination of the responsible Member State. The low registration of illegal entrants is also seen as a major problem as it can have an adverse impact on the effective application of the obligation to fingerprint all illegal entrants at the borders of the Union.

Regina v. Secretary of State For The Home Department, Ex Parte Adan & Regina v. Secretary of State For The Home Department Ex Parte Aitseguer, 19 December 2000 (HL)

The case is relevant as it dealt with the different interpretations given to the term persecution by different states.

Adan was a citizen of Somalia and claimed asylum in Germany as she had been persecuted by majority clans dominant in her state. The German Federal Office rejected her asylum claim and was ordered to leave Germany. She claimed asylum in the United Kingdom where the Secretary of State asked the German authorities to accept responsibility under the 1990 Dublin Convention. The German authorities accepted responsibility for determining her asylum claim after which the Secretary of State refused her asylum claim without consideration of its merits and certified that Adan could be returned to Germany but was later accepted by the Secretary of State that it would not be right to seek to return Adan to Germany. Aitseguer who is a citizen of Algeria arrived in the United Kingdom and claimed asylum as he was under the risk from the Groupe Islamique Arme where the Secretary of State asked the French authorities to accept responsibility under the Dublin Convention which the French authorities agreed to do. Later the Secretary of State certified under section 2 of the Asylum and Immigration Act 1996 that Aitseguer could be returned to France but was later accepted by the Secretary of State that he would himself determine the asylum claim.

The main issue involved centered around section 2(2) (c) of the Asylum and Immigration Act 1996 which allows a person who has made a claim for asylum to be removed from the United Kingdom if, inter alia, the Secretary of State certifies that in his opinion “the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention”.  Now the basic problem involved was that Germany would probably send back Adan to Somalia as according to Germany there was no state or government in Somalia which could carry out the persecution and France would probably send back Aitseguer to Algeria as according to France, the persecution which he feared was not encouraged by the state. If the persons are sent back to the state where he fears persecution it would be in violation of article 33 of the 1951 Convention which states that “no Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. With regard to the question as to whether Secretary of the state for UK can send these individuals to countries if the other state adopts an interpretation of the 1951 Convention which the Secretary of State rejects but which the Secretary of State accepts is a reasonably possible or legitimate or permissible or perhaps even arguable interpretation, the judge observed that persecution may be by bodies other than the state and is accepted under the 1951 convention and the Secretary of State is neither bound nor entitled to follow an interpretation which he does not accept as being the proper interpretation of the Convention and what is required under the 1996 act is that the Secretary of State must certify that the third country would not send the asylum seeker to his country of origin where he fears to be persecuted.

TI v. UK

The applicant was a Sri Lankan national who was tortured by the LTTE and later by the army. He arrived in Germany and claimed asylum but was rejected on the basis that there was no ground for the applicant to fear persecution as a consequence of his having claimed asylum in Germany. Later, he travelled to the United Kingdom and the United Kingdom Government requested that Germany accept responsibility for the applicant’s asylum request pursuant to the Dublin Convention and, the Secretary of State issued a certificate under section 2 of the Asylum and Immigration Act 1996 and directed the applicant’s removal to Germany. Later the medical evidence given by him proved that the details given of his detention were completely consistent with the descriptions of Sri Lankan detention centres given by other asylum seekers. In the application before the European Court of Human Rights the applicant submitted that there are substantial grounds for believing that, if returned to Sri Lanka, there is a real risk of facing treatment contrary to Article 3 of the ECHR ((No one shall be subjected to torture or to inhuman or degrading treatment or punishment))at the hands of the security forces, the LTTE and the pro-Government Tamil militant organisations. It should be noted that the German authorities only treated as relevant the acts of the State and that they did not consider excesses by individual State officials as State acts. Though the application before the court was declared inadmissible it could be implied from the observations of the court that a member state responsible in considering an asylum application should not expel the person back from the country to a third country where he fears persecution in breach of article 3 of the ECHR.

This case is relevant when it comes to the concept of safe third country exception which allows the transfer of applicants without previous application of the merits. This is because the transferring state may refuse to go into the merits on the basis that the third country is safe. The presumption is made rebuttable but it is recommended that “When the present proposals for binding instruments on asylum law are adopted, the basis for the trust will be correspondingly extended. As far as these instruments bind the Member States to interpret and apply their international law obligations in conformity with its true meaning and those Member states do comply with these obliga­tions, the interstate trust is absolute and cannot be rebutted ((Hemme Battjes, ‘A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation’ (2002) 4 Eur. J. Migration & L. 159, 189)).”

Conclusion

It was also argued by many that the principles of ECHR as well as CAT should be incorporated into the Community Law so that the European Court of Justice may act as the supervisory body but it seems doubtful as to what extent the same has been incorporated. There have been serious flaws pointed out in the implementation of the Dublin Regulation in the Summary Report on the Application of the Dublin II Regulation in Europe (March 2006) by the European Legal Network On Asylum, according to which from 2004 the Greek authorities have been interrupting the examination of asylum applications for persons who have been returned to Greece under the Dublin II procedure on the basis Article 2(8) of the Presidential Decree 61/99, which allows the Ministry of Public Order to interrupt the examination of an asylum claim when the applicant arbitrarily leaves his/her stated place of residence ((Concerns have been raised also by the UNHCR with regard to the same and the UNHCR has advised other governments to refrain from returning asylum-seekers to Greece under the Dublin Regulation until further notice. This information can be obtained from ‘UNHCR Position On The Return Of Asylum-Seekers To Greece Under The “Dublin Regulation”, United Nations High Commissioner for Refugees (UNHCR), 15 April 2008)). It is also stated that the applicants who leaves the responsible state may find it difficult to have their cases re-opened if a decision was made in their absence and the same has happened in Belgium, France, Ireland, Italy, the Netherlands and Spain. The necessity of adequate reception facilities (in the light of Chechens who are forced to leave Poland due to non adequate reception facilities) and proper legal assistance is also mooted. Moreover the sovereignty clause is no longer applied in Austria and the case studies from the UK indicate the fact that several cases of separated children are detained in Greece for prolonged periods of time.

Inadequacies of Reservations to Human Rights Conventions

Sandeep Menon Nandakumar ((BA LLB (Hons), NUALS, LLM (Cusat), LLM (Exeter, UK), Assistant Professor, NLU Jodhpur)).

A review of the effect of reservations to international human rights instruments

Reservations allow a state to be a party to a treaty and at the same time to exclude some of the provisions or to modify the same ((On the other hand declarations purports to be an understanding, i.e. an interpretation of the agreement in a particular respect and is not a reservation if it reflects the accepted view of the agreement, Section 313 of the Restatement (Third), Foreign Relations Law of the U.S. (1987). An example of declaration would be the declaration made by India while ratifying CEDAW in 1993 in respect to Article 16(2) making the registration of marriages compulsory. India declared that though they support the principle of universal and compulsory marriage registration, such registration is not practical in a vast country like India with its variety of customs, religions and level of literacy, http://www.hrdc.net/sahrdc/hrfeatures/HRF172.htm)). The most important point to note here is that reservations make it possible for the state which has difficulties in guaranteeing all the rights in the covenant or treaties at least to accept the generality of obligations in that instrument ((Human Rights Committee, Comment 24 (1994), Para 4)).

According to Art.2 (1) (d) of the Vienna Convention of the Law of Treaties, 1969 a reservation means a unilateral statement, however phrased or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state. Article 19 of the Vienna Convention restricts the state to make reservations if the reservation is prohibited by the treaty, if the treaty provides for specific reservations and if it is incompatible with the object and purpose of the treaty (the latter one is often termed as the permissibility/admissibility doctrine). Clause 3 of article 21 specifies the legal effects of reservation wherein it provides that “when a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two states to the extent of the reservation (this is often termed as the opposability/admissibility doctrine).”

Human rights treaties and its non-reciprocal character

The Vienna Convention makes its definition and other incidental provisions applicable to all kinds of treaties. Most of the provisions in the convention are on the basis of reciprocity but here there is slight difference between human rights treaties and other treaties in regard to the fact that human rights treaties do not create reciprocal relationship and instead their prime objective is protection of human rights and obligations are towards individuals ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 437)). The general exception to this concept is reciprocity of inter-state complaints with regard to human rights that has been provided under article 41 of ICCPR ((Article 40, ICCPR: A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration)).

The non reciprocal character of human rights treaties find mentioned in the Vienna Convention as under Article 60 which deals with termination due to breach clause 5 stipulates that these do not apply to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties ((Article 60: Termination or suspension of the operation of a treaty as a consequence of its breach- 1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.  2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties)).

It is argued that “the Vienna Convention’s rules on reservations are based on a bilateral pattern of relationships between states, and are therefore not well suited to human rights treaties which are of a non-reciprocal nature on the ground that the absence of reciprocity discourages states to object to inadmissible reservations, which makes the general regime of reservations when applied to human rights treaties extremely ineffective ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 441,442)).”

ICJ – Advisory Opinion

Generally in multilateral treaties if a state makes a reservation it will be valid only if the other contracting parties accept it and in case of objection the state may have to withdraw the reservation or leave the convention ((Rhona K.M. Smitha, Texts and Materials on International Human Rights (2nd edn Routledge) p. 84)). The ICJ was referred for an advisory opinion on the issue of reservations to Genocide Convention and the court observed that though one or more states object to reservation, the state making a reservation may be regarded as a party to the convention as long as the reservation is compatible with the object and purpose of the convention ((G.A. resolution of 16 Nov 1950 (1951 ICJ 15).)). It is true that there may not be inter partes agreement, i.e. the state making the reservation and the ones objecting to the same. But the observation of ICJ cannot be taken as a general rule as this ruling may be due to the specific nature of the Genocide Convention [major humanitarian instrument]. ((Rhona K.M. Smitha, Texts and Materials on International Human Rights (2nd edn Routledge) p. 85))The ICJ observed that “the object and purpose of the convention thus limit both the freedom of making reservations and that of objecting to them. It follows that it is the compatibility of a reservation with the object and purpose of the convention that must furnish the criterion for the attitude of a state in making the reservation on accession as well as for the appraisal by a state in objecting to the reservation.”

General Comment No.24, Human Rights Committee

In the very early time itself the role of the supervisory bodies in judging the validity of reservations was discussed in the international scenario. In 1976 the Committee on the Elimination of Racial Discrimination referred to the Office of the Legal Affairs of the UN as to whether the committee had power to do so and the answer was in the negative. The same was the response when the Committee on the Elimination of Discrimination against Women referred the matter but the Office of Legal Affairs observed that the committee may, at the most, comment about the incompatibility of reservations in its report.

According to the General Comment No.24, though its not very easy to differentiate between a reservation and a declaration regard should be given to the intention of the state and not the form of the instrument ((Human Rights Committee, Comment 24 (1994), Para 3: if a statement, irrespective of its name or title, purports to exclude or modify the legal effect of a treaty in its application to the state, it constitutes a reservation.)).

Regarding ICCPR the General Comment stated that the covenant that represent customary international law may not be the subject of reservations and the state may not reserve the right to engage in slavery, torture, cruel and inhuman punishment, arbitrary arrest and detention, to deny freedom of thought, conscience and religion, presumption of innocence, to execute pregnant women or children and many other. The comment also states that reservations to specific clauses of article 24 may be acceptable but a general reservation to the right to a fair trial will not be acceptable ((Human Rights Committee, Comment 24 (1994), Para 8)).

The intention of General comment No.24 is made clear in para 12 and it is that the covenant strives the domestic laws to be changed in order to protect the rights under the covenant and reservations allows the state not to change a particular law which may render the rights under the covenant ineffective.

As regards the reservations to the optional protocols to the covenant and generally, the comment under para 20 stated that the states may indicate in precise terms the domestic legislation or practices which it believes to be incompatible with the covenant obligation reserved and to explain the time period it requires to render its own laws and practices compatible with the covenant or why it is unable to render its own laws and practices compatible with the covenant. It also stipulates that states should also ensure that the necessity for maintaining reservations is periodically reviewed, taking into account any observations and recommendations made by the committee during examination of their reports ((Human Rights Committee, Comment 24 (1994), Para 20)).

However, regarding the manner of determining admissibility the General Comment in para 17 states that, “an objection to a reservation made by States may provide some guidance to the Committee in its interpretation as to its compatibility with the object and purpose of the Covenant.” At the same time it also emphasize that non-objection does not mean that the reservation is in tune with the object and purpose of the covenant. In this regard it is pertinent to note the observation made in of Belilos v. Switzerland (1988) that “the silence of  the Contracting Parties does not deprive the Convention organs of the power to make their own assessment of the reservation.”

Giving power to the committee to judge the validity of reservations has got its advantages especially in considering the fact that human rights treaties or the covenant for that matter is dynamic and the interpretation hence should also be dynamic. It means that a reservation may be made by a state during the time of ratification which may have obtained other states’ consent. But at a later time it may be felt that the reservation is in conflict with the object and purposes of the convention and the states will not be in a position to object as they consented to it earlier and in such circumstances it is in all ways better to empower the committee or the treaty monitoring bodies to adjudge incompatible reservations ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 457)).

Severability or Non-severability

As regards the observations made by the committee in para 18 of the General Comment No.24 regarding severability ((Human Rights Committee, Comment 24 (1994), Para 18: “The normal consequence of an unacceptable reservation is not that the Covenant will not be in effect at all for a reserving party. Rather, such a reservation will generally be severable, in the sense that the Covenant will be operative for the reserving party without benefit of the reservation.”))several criticisms were raised by U.S., U.K. and France. According to the U.S., “if it were determined that any or one or more of the US reservations were ineffective the consequence would be that the ratification as a whole could be nullified and the US would not be a party to the covenant ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).” According to France, “the only course open is to declare that this consent is not valid and decide that the states cannot be considered parties to the instrument ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).” United Kingdom observed that “the general comment would risk discouraging states from ratifying human rights conventions since they would not be in a position to reassure their national Parliaments as to the status of treaty provisions on which it was felt necessary to reserve ((Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1147)).”

It is also mentioned that a presumption favouring severance is better in any case as the corrective action that the state may take in response to an erroneous decision not to sever would be reratification and in response to an erroneous decision to sever would be withdrawal and the latter one is comparatively much easier than the former ((Ryan Goodman, “Human rights Treaties, Invalid Reservations, and State Consent” 96 Am.J.Int.L. 531 in Henry J. Steiner, Philip Aston & Ryan Goodman, International Human Rights in Context: Law, Politics, Morals (3rd edn, OUP) p. 1151; according to the author “an adjudicator’s erroneous expulsion of a state from a treaty risks significant costs along two dimensions namely international, i.e. a sovereignty impact from the state’s expulsion against its will, reputational costs to the state’s international standing, loss of a leadership or participatory role in the regime and national, i.e. the unhinging of a wide array of judicially enforceable civil and political rights protections, facilitation of illiberal rollbacks.”)).

Preliminary Conclusions of the International Law Commission on Reservations to Normative Multilateral Treaties, Including Human Rights Treaties (1997 session)

Though the ILC tried to formulate the powers of treaty monitoring bodies it in fact resulted in wide variety of confusions as it was contrary to observations made in General Comment No.24. According to ILC the treaty monitoring bodies have only powers to comment and make recommendations and that too “the competence of the monitoring bodies does not exclude or otherwise affect the traditional modalities of control by the contracting parties ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 469)).” The ILC also observed that “unless monitoring bodies have been expressly provided with such competence, ‘the legal force of the findings made by monitoring bodies in the exercise of their power to deal with reservations cannot exceed that resulting from the powers given to them for the performance of their general monitoring role ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 470)).” The most contradicting part is that where the General Comment No.24 gave importance to severability the ILC’s observations goes like this, “if reservations are found to be inadmissible, ‘it is the reserving State that has the responsibility for taking action…such action may consist in the state either modifying or withdrawing its reservation or abstaining from becoming a party to the treaty ((Konstantin Korkelia, “New challenges to the regime of reservations under the International Covenant on Civil and Political Rights” 2002 European Journal of International Law 470)).”

Observations of Human Rights Committee

In Kennedy v. Trinidad and Tobago ((Communication No 845/1999, Human Rights Committee, 31 Dec 1999)), where the communication was received from person awaiting death sentence clamming violations of Articles 6 and 7 on grounds of compulsory nature death penalty for murder, non consideration of mitigating circumstances, lack of fair hearing, torture before trial and so on, the Committee had to consider the reservation made by the state with regard to article 1 of the Optional Protocol of the ICCPR whereby the Human Rights Committee was not empowered to entertain communications relating to any prisoner under death sentence or in relating to his prosecution or detention or trial or conviction ((The reservation was made after the publication of Human Rights Committee, Comment 24 (1994).)). The committee decided that the reservation excludes the competence of the committee not with regard to a specific provision of the covenant but with regard to the entire provisions for one group of complainants and the same is not in consonance with the object and purpose of the covenant. The committee called for a report from the state party in this regard on the ground that the reservation constitutes a discrimination, that is, discriminating one group of individuals (prisoners awaiting death sentence) from the rest of the individuals. The committee’s effort was not a complete success as Trinidad and Tobago withdrew from the Optional Protocol. But now the General Comment No.26 has expressly stated that the Committee is of the view that “international law does not permit a State which has ratified or acceded or succeeded to the Covenant to denounce it or withdraw from it ((General Comment No. 26: Continuity of obligations: 12/08/1997 available on http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/06b6d70077b4df2c8025655400387939?Opendocument)).”

Reservations under ECHR and other conventions

Article 57 of the European Convention on Human Rights refers to the provisions of reservation ((Article 57, ECHR: Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article. Any reservation made under this Article shall contain a brief statement of the law concerned)). It was for the first time in Temeltasch v. Switzerland (1982) that the European Commission, apart from the general rule of states judging validity of reservations, judged the validity of a reservation. In the instant case a declaration made by Switzerland in regard to Article 6(3) (e) of the Convention ((Removing the obligation to provide the free assistance of an interpreter if a person charged with a criminal offence cannot understand or speak the language used in court))was held to be a reservation and judged the same to be valid as it was not of a general character. Though there is an express requirement in Article 57 of ECHR that the reservation should contain a brief statement of the national law which is not in conformity with the provision of the Convention reserved, it was absent in the instant reservation but the same was held to be a formal requirement and held the reservation valid. In the instant case the commission referred to the objectives of the Convention to derive its power by stating that “the Convention did not intend to concede to each other reciprocal rights and obligations in pursuance of their individual interests, but … to establish a common public order of the free democracies of Europe with the object of safeguarding their common heritage of political traditions, ideals, freedoms and the rule of law.”

In the case of Belilos v. Switzerland (1988) the declaration made by Switzerland on Art.6(1) of ECHR was considered to be a reservation and held it invalid by the European Court of Human Rights as it was a general one ((The court observed that the reservation is general if it is ‘couched in terms that are too vague or broad for it to be possible to determine [its] exact meaning and scope’.)). Contrary to observations mad in Temeltasch v. Switzerland (1982), the court observed that the requirement in Article 57 of ECHR that the reservation should contain a brief statement of the national law which is not in conformity with the provision of the Convention reserved is not a purely formal requirement but a condition of substance. In this case the court derived its power to judge the validity of reservations from provisions enabling to ensure the observance of the engagements undertaken by the state parties to the Convention, jurisdiction of the court over the interpretation and application of the Convention and the jurisdiction of the court to determine its own jurisdiction. The court also noted the difference between the ‘will’ to be bound by the convention and the ‘will’ to enter a reservation and held that invalidating the reservation does not invalidate the consent to be bound by the convention.

Moreover in the case of Loizidou v. Turkey (1995) the court held the declarations of Turkey restricting the application of the Convention to Northern Cyprus to be an invalid reservation on the ground that the provisions governing reservations suggests that “States could not qualify their acceptance of the optional clauses thereby effectively excluding areas of their law and practice within their “jurisdiction” from supervision of the Convention institutions”. In this case the authority of the court to judge the validity of reservations has been stated as follows, “the Court must bear in mind the special character of the Convention as an instrument of European public order for the protection of individuals, and its mission to ensure the observance of the engagements undertaken by the High Contracting Parties.”

When it comes to the American Convention on Human Rights it has been specifically provided under article 75 coming under Part III, Chapter X that the reservations to the convention shall be in conformity with the Vienna Convention on the Law of Treaties.

Advisory opinion on the Restrictions to the Death Penalty in regard to Arts.4[2] ((In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply))and 4[4] ((In no case shall capital punishment be inflicted for political offenses or related common crimes))of the American Convention on Human Rights ((OC-3/83, September 8, 1983, Inter-Am. Ct. H.R)).

The court was confronted with two main issues. One as to whether a state can apply the death penalty for crimes for which the domestic legislation did not provide for such punishment at the time the American Convention on Human Rights entered into force for said state and the other one was whether a government, on the basis of a reservation to Article 4(4) of the Convention made at the time of ratification, adopt subsequent to the entry into force of the Convention a law imposing the death penalty for crimes not subject to this sanction at the moment of ratification ((Para 8)). Apart from the jurisdictional issues, the court answered both these questions in the negative and observed that “it follows that a State which has not made a reservation to paragraph 2 is bound by the prohibition not to apply the death penalty to new offenses, be they political offenses, related common crimes or mere common crimes. On the other hand, a reservation made to paragraph 2, but not to paragraph 4, would permit the reserving State to punish new offenses with the death penalty in the future provided, however, that the offenses in question are mere common crimes not related to political offenses. This is so because the prohibition contained in paragraph 4, with regard to which no reservation was made, would continue to apply to political offenses and related common crimes ((Para 70)).”

Conclusion

In regard to CEDAW though the articles were framed to protect the human rights of women, the general reservations made by the countries have made the effectiveness of the convention doubtful. For example the Arab Republic of Egypt had made a general reservation on Article 2 by stating that they are willing to comply with the same provided that it does not run contrary to Sharia principles. One possibility to bring finality to issues with regarding to inadmissible reservations would be to make the findings of the Human Rights Committee binding but it may not work out at the international level where most of the activities depend upon cooperation between various states and the solution of making the committee’s finding binding on the state parties may not be acknowledged by them. There are still too many questions that require further consideration and they are the following:

1)      What is the use of entering into a treaty if the current system of reservation benefits the state to get itself exempted from the specific obligations of the treaty? (especially in the light of CEDAW) / who should be the given the power to determine the validity of reservations: the states or treaty monitoring bodies?

2)      Can the advisory opinion of the ICJ be made applicable to the general international human rights instruments or is it only applicable to the Genocide Convention?

Should the matters like Kennedy v. Trinidad and Tobago be left to a stage where the state backs out from the convention obligations and render the objectives of the covenant meaningless?