DESCRIPCIÓN DEL PERSONAL QUE LABORA EN EL SERVICIO DE NEUROCIRUGÍA

Although the 1951 GC and the 1967 Protocol were the only world-wide instruments for the protection of refugees, a number of other initiatives were undertaken at the regional level, especially in the African and Latin American contexts.^® Latin America, in particular, had a long asylum tradition. Art. 16 of the 1889 Montevideo Treaty on International Penal Law had already recognised that political refugees were to be granted ‘inviolable asylum’. The subsequent 1954 Caracas Convention on Territorial Asylum extended protection to all those persons ‘persecuted for their beliefs, opinions, or political affiliations, or for acts which may

See R. Plender and N. Mole, supra n° 88, at pp. 86-87. The first of those cases centered on the necessity o f establishing a ‘personal’ risk o f torture to the asylum seeker and the fact that the absence of a ‘consistent pattern o f gross, flagrant or mass violations o f Human Rights’ in the country of origin (Art. 3.2) did not necessarily entail the impossibility of the applicant being tortured if returned {Balabou Mutombo v. Switzerland). In another case {Kisoki v. Sweden) the Committee decided that an applicant’s credibility should not be damaged by the fact that he withheld information about his experience as it would be normal for someone subjected to torture to be severely traumatised. In the latest case {Ismail Alan v. Switzerland) the Committee reviewed the possibility of an ‘internal flight’ option for the applicant and found this not to be possible in Turkey. On the basis of this Jurisprudence, CAT appeared to considerably enhance the principle of non-refoulement of Art. 33 GC.

^ It is impossible at this stage to analyse these initiatives in depth. For some general insights on these instruments, see E. Arboleda, ‘Refugee definition in Africa and Latin America: the lessons of pragmatism’ (1991) 3 URL, p. 185; and by the same author ‘The Cartagena Declaration of 1984 and its similarities with the 1969 OAU Convention - A comparative perspective’ (1995) 7 URL, p. 87.

Ch a p t e r I 4 2 be considered as political offences’ (Art. 2). The tragic refugee crises of the 80s prompted further initiatives that led to the 1984 Cartagena Declaration where a significant broadening of the refugee definition was proposed.^* The Declaration was not a formally binding treaty, but it was repeatedly endorsed by the OAS and closely mirrored the expanding scope of protection supported by the UNHCR.

The African continent also developed regional instruments o f protection that included a very broad definition of ‘refugee’. Art. I.l of the 1969 OAU Convention on Specific Aspects o f Refugee Problems largely echoed the wording of the parallel article in the 1951 GC. Art. 1.2, however, considerably broadened the scope of protection by extending it to ‘every person who, owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual residence in order to seek refuge in another place outside his country o f origin or nationality’. Remarkably, this was the most comprehensive international definition of refugee protection ever conceived. The same Convention also contained an express clause on solidarity with other States in the event that they might be unable to cope with an excessive burden of refugees (Art. II.4).

In Europe no regional refugee arrangement comparable to those o f South America or Africa was undertaken. This was probably due in part to the fact that the 1951 GC was perceived as a European initiative anyway.^^ Nonetheless, much along the same lines as the 1966 ICCPR and the 1984 CAT, the 1950 European Convention on Human Rights and Fundamental Freedoms (ECHR) contained some rights that indirectly reinforced refugee protection. Unfortunately, no specific provision on asylum on the model of Art. 14 of the 1948 Universal Declaration was

Art. 3 reads ‘[h]ence the definition or concept o f a refugee to be recommended for use in the region is one which, in addition to containing elements o f the 1951 GC and the 1967 Protocol, includes among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of Human Rights or other circumstances which have seriously disturbed public order’. The same article also contains a reference to the formulation of a ‘refugee’ contained in the 1969 OAU Convention.

included in the ECHR.” The most relevant provision for asylum seekers proved to be the prohibition o f torture and cruel or inhuman treatment contained in Art. 3.” As in the case o f Art. 7 ICCPR, although there was no specific mention of the prohibition of refoulement, the principle was nonetheless inferred from the contents of the article.” Interestingly, there was at times a considerable discrepancy between the Decisions of the EHR Commission and the EHR Court (ECtHR). The Commission frequently found for a ‘favourable’ application of Art. 3 towards asylum seekers, often using its powers to suspend an imminent national measure of expulsion, whereas the Court was always more circumspect. The latter also set a high standard of proof by stressing that the ill-treatment had to attain a minimum level of severity However, in a landmark judgment in 1996,” the Court established that the prohibition of Art. 3 ECHR was absolute and therefore applied both to asylum seekers and extradition cases. It was also non-derogable and thus broader than the prohibition contained in Art. 33 GC. In fact, the Court had previously already stated that Art. 3 ECHR applied to everyone ‘however heinous the crime allegedly

The European Court o f Human Rights pointed out on several occasions that the right of asylum was not ‘as such’ protected by the ECHR (see for instance Vilvarajah and others v. UK (1992) 14 EHRR 248, at para. 102). For a general overview of the application of the ECHR to refugees see Council of Europe, Problems raised by certain aspects o f the present situation o f refugees from the standpoint o f the European Convention on Human Rights (Strasbourg, 1997, Human Rights files n°

9).

The 1984 CAT contained a stronger provision (Art. 3.1) because it explicitly mentioned the prohibition o f refoulement.

See the Decision o f the European Human Rights Commission in the Kerboub case (1972) Collection o f Decisions, p.62; also the judgment o f the ECtHR in Cruz Varas v. Sweden (1992) 14 EHRR 1.

^ In the Vilvarajah case, supra n° 93, para. I l l , the Court held that ‘mere possibility of ill-treatment [...] in such circumstances, is not in itself sufficient to give rise to a breach of Art. 3’. It also stressed that the applicants had to present ‘substantial grounds’ and there had to be ‘real risk’ of ill treatment (para. 103-107). This constant line of interpretation was strongly criticised, given that asylum seekers were unlikely to ever meet such stringent levels o f proof. Overall, the Court seemed to be motivated by a general fear of opening the floodgates of extradition; see, for instance, C. Van Den Wyngaert, ‘Applying the European Convention on Human Rights to extradition; opening Pandora’s box?’ (1990) 39 ICLQ, p. 757. In contrast, see the Decision of the Commission in Chahal v. United Kingdom, application n° 22414/93, 27/6/95 where it noted that the guarantees of Art. 3 are of such an absolute character, not permitting any exception, that they are in fact wider than Art. 33 o f the 1951 GC.

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committed’. I t then further expanded this concept in Chahal by affirming that ‘[i]n these circumstances the activities of the individual in question, however undesirable or dangerous, cannot be of material consideration. The protection afforded by Art. 3 is thus wider than that provided by Arts 32 and 33 on the United Nations 1951 Convention on the Status of Refugees

In so far as the right to family life (Art. 8) was concerned, the Commission adopted a fairly wide interpretation, thereby protecting relatives of asylum seekers threatened with deportation. However, on the whole, the Court often seemed to subscribe to the national governments’ concerns about ‘population manageability’ and did not yet exploit the full potential offered by the EHRC for refugee protection.

Soering v. UK (1989) 11 EHRR 439, at para. 88.

^ See Chahal, supra n° 97, para. 80. The protection afforded by Art. 3 ECHR was broader because none o f the exception clauses contained in Art. 33.2 GC applied. Art. 15.2 ECHR specifically excluded any derogation from Art. 3 ECHR. Subsequent jurisprudence further expanded the principle by claiming that protection did not depend on the source of harm, or on whether the persecution derived from non-State agents (see Ahmed v. Austria, (1996) 26 EHRR 278 and HLR v. France (1996) 24 EHRR 423).

See Fadele v. UK, Application n° 13078/87 reported in R. Plender and N. Mole, supra n°88, at p. 91. The case involved the case of a Nigerian asylum seeker with three British children. The Commission found that obliging the children to follow their father to Nigeria to live in conditions of extreme poverty would have amounted to a breach o f Art. 3 ECHR. The case was settled before the Court could examine it.

The Court found it necessary to mention the concerns expressed by the United Kingdom in Vilvarajah by the fact that ‘the consequences of finding a breach of Art. 3 in the present case would be that all other persons in similar situations facing random risks on account of civil turmoil in the state in which they lived, would be entitled not to be removed, thereby permitting the entry of a potentially very large class of people with the attendant serious social and economic consequences’. This constituted a strong indication of the intentional adoption of policy considerations limiting the scope of the Court’s decision-making ability.

1.5) Concludins remarks

This Chapter’s purpose was to give a brief outline of the fundamental tenets o f international refugee protection. To date, the only truly universal texts on international refugee protection remain the 1951 GC and the subsequent amendments included in the 1967 New York Protocol. Despite the universality o f such texts, it remains difficult to outline a real international refugee regime because the implementation of the above Conventions was remitted purely to the Signatory States. The ICJ was never asked to clarify interpretation problems and hence national implementations varied widely. The growing number of refugee crises of the last few decades differed greatly from the refugee scenarios the drafters of the GC had in mind. In the past few years it has therefore been questioned whether the refugee definition of the GC has not become obsolete.’®^ In the face of so many different national interpretations, the answer to this issue remains uncertain.

The UNHCR, as the leading global refugee protection agency, has thus become the only instrument capable of ensuring some uniformity in the international refugee regime. Its mandate lacks, however, any way to enforce its uniformity drive through binding interpretations. The demand for increasing flexibility in the UNHCR’s exercise of its mandate has also put the latter under increasing strain. On the one hand, it has allowed its working definition of ‘refugee’ to adapt to the intervening historical events, such as the proliferation of international and civil conflicts or natural and man-made disasters. On the other hand, though, the UNHCR has not always been successful in the new roles that it has been obliged to perform. This is mainly due to the emerging overlap between humanitarian and military interventions that has characterised all the latest refugee crises. In order to deal effectively with such events in the future the UNHCR will need a clear modification of its old mandate.

See J. Sztucky, ‘Who is a refugee? The Convention definition: universal or obsolete?’ in F. Nicholson and P. Twomey (eds), supra n° 20, p. 55.

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Both the 1951 GC and the 1967 Protocol were, in most respects, European creations. Other subsequent regional initiatives generously expanded the narrow 1951 refugee definition, notably in South America and in Africa. The GAU’s introduction of a most comprehensive concept of refugee protection quickly became a leading example of human solidarity. Other international conventions, most notably the ECHR, had a considerable effect on the reinforcement of the principle of non­ refoulement. Europe, however, was notable in its inability to follow the examples of other regional initiatives and expand its own concept of refugee protection. On the contrary, a restricting trend has slowly taken place since the 70s, otherwise termed ‘Convention fundamentalism’.^®^ Instead of allowing a certain degree of flexibility in the interpretation o f the GC, European States championed a very narrow implementation of the Convention with the explicit aim of reducing refugee flows. It is in this context of shrinking refugee protection that the European initiatives analysed in the next Chapters should be understood.

CHAPTER II

THE BEGINNINGS OF EUROPEAN POLITICAL CO-OPERATION ON