The Promise of the New Swiss Asylum Procedure Model: Current International Protection in (E.U.)rope

• Author: Digdem Ameseder
• Position: International Human Rights Lawyer
• Pages: 161-256

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2019 e Institute for Migrant Rights Press

I would like to thank Omar Khir Alaham, NGOs Helping Hands Linz, Flüchtlinge

Willkommen, and Arcobaleno Linz for their intellectual contributions, which served

as guiding lights to this paper in conceiving of what the true European common

interest is in the context of international protection. Also, the author would like to

thank Professor Siegfried Wiessner for his comments and helpful suggestions on this

pap er.

thE PromisE of thE nEw swiss

asylum ProCEdurE modEl

Current InternatIonal ProteCtIon In e.u.(roPe)

Digdem Ameseder

International Human Rights Lawyer

Email: DAmeseder@stu.edu

Since its establishment, the Common European Asylum System tries to regu-

late asylum and related issues commonly within the E.U. territory. is paper

focuses mainly on the current challenges as a result of misinterpretation of the

international principles and norms in the E.U. law concerning the situations

of the refugees from armed conict regions. e methodology used here is the

New Haven School which recognizes law as a continuing process of authoritative

decision. e New Haven approach goes beyond the black letter of the law, the

law in books. e New Haven School of Jurisprudence presents a constructive

interdisciplinary approach to solving society’s problems on the international and

domestic plane. e rst part will focus on the problem where the root causes for

Europe’s challenges in refugee law will be delimitated. e second part will give

the stage for each claimant as a part of the “community” and dene their values.

e third part will exclusively focus on the past decisions, their conditioning fac-

tors, current law and decision trends within Europe and how the international

as well as E.U. law is implicated domestically. e last two parts will focus on the

appraisals, prediction of future trends, and they will further demonstrate how

the Dublin Regulations transformed Europe’s migration challenge into a legal

crisis for the Common European Asylum System and what the new Swiss Model

promises instead.

Keywords: Asylum Law, International Law, Regionalism, Human Rights.

VI Indonesian Journal of International & Comparative Law 161-256 (April 2019)

162

Ameseder

INTRODUCTION

Migration has become a dening global issue since the aermath of

World War II. If we go even further back, we know the Russian Revolu-

tion of 1905 sent refugees into the rest of modern Europe, not to men-

tion the dislocations of World War I. However, it took States’ leaders

many years, aer the most severe human rights violations in history,

to regulate and dene the refugee status on the international level by

ratifying the international agreement called the Convention Relating to

the Status of Refugees in 1951 (the 1951 Convention). Setting an inter-

national standard in asylum law was not only a dignied reaction from

the international community to the refugees of World WarII, but also a

social duty of States, because refugees have been the greatest contribu-

tors to their new societies. What the European Union (E.U.) lacks now

is the performance of its Member States’ respective duties.

Even though the world has good examples for solving refugee crises

in the past,1 social and legal problems arose with armed conicts in

several countries, for instance, Iraq, Afghanistan, and Syria. One can

say that there is little le from the warm 2015—“Refugees Welcome”

movement within the Member States. On the one hand, we see refugees

aspiring to nd their safe haven in the world and frustrated volunteers

who cannot do anything but watch as their new family members and

friends are deported. On the other hand, biases and hatred against

refugees are rapidly spreading like viruses, infecting more and more

E.U. citizens. Sadly, many European politicians fuel xenophobia and

Islamophobia with their public statements.2

Current events in the E.U. show a tendency of leaders to narrow

domestic asylum law and limit asylum-seekers’ freedom of movement.

Human rights organizations claim that the chronically terrible

1. See, e.g., Indo-Chinese CPA and CIREFCA in 1989, International Conferences

on Assistance to Refugees in Africa ICARA I in 1981; A B,

W P N. : I C   T-

  D A  R S: L 

  UNHCR E  P A U 1 (2004).

2. See Vince Chadwick, e Top 10 Wackiest Anti-Refugee Remarks, P

(Oct. 19, 2015, 6:28 PM CET), https://www.politico.eu/article/toxic-news-ref-

ugees-migrants-eu/ (last updated Oct. 23, 2015, 12:51 PM CET).

163

e Promise of the New Swiss Asylum Procedure Model

Ameseder

conditions in the biggest refugee camps in the E.U. such as Greece are

deliberate—that this is how the E.U. deters more immigrants from

coming.3 e media reports a “refugee crisis in the E.U.,” a crisis that is

said to be unmanageable, but does the E.U. really endure a refugee crisis

when only one percent of the world’s population seeks international

protection worldwide,4 and when eighty-four percent of all refugees

live in developing countries?5

Migration is complex in its own subcategories. erefore, this paper

will solely cover refugees as well as asylum-seekers from waring regions

with a focus on their specic problems, their treatment, and nally,

an appraisal of this treatment and my recommendation of change. By

using the New Haven School methodology,6 the rst part will focus

3. Joanna Kakissis, Europe Does Not See Us As Human: Stranded Refugees Struggle

In Greece, N’ P R (Mar. 9, 2018, 5:01 AM ET), https://www.npr.

org/sections/parallels/2018/03/09/589973165/europe-does-not-see-us-as-hu-

man-stranded-refugees-struggle-in-greece.

4. “An application for international protection means an application from a

third-country national or a stateless person who seeks refugee or subsidiary

protection status in a Member State, irrespective of whether the application

was lodged on arrival at the border, or from inside the country, and irrespective

of whether the person entered the territory legally, for example as a tourist, or

illegally.” Directive 2011/95/EU, of the European Parliament and of the Coun-

cil of 13 December 2011 on Standards for the Qualication of ird-Country

Nationals or Stateless Persons as Beneciaries of International Protection, for a

Uniform Status for Refugees or for Persons Eligible for Subsidiary Protection,

and for the Content of the Protection Granted (recast), art. 2(h), 2011 O.J. (L

337) 9.

5. Institute for Economics & Peace, Global Peace Index 2018: Measuring Peace

in a Complex World (June 2018), http://visionoumanity.org/app/up-

loads/2018/12/Global-Terrorism-Index-2018-1.pdf. Charlotte Edmond, 84%

of Refugees Live in Developing Countries (June 20, 2017), W E

F , https://www.weforum.org/agenda/2017/06/eighty-four-percent-of-

refugees-live-in-developing-countries/.

6. e New Haven School of Jurisprudence presents a constructive interdisciplin-

ary approach to solving society’s problems on the international and domestic

plane. It is unmatched in its comprehensiveness and benet, integrating both

relevant facts and law in the pursuit of a public order of human dignity. us,

it is an ideal tool to analyze, and nd solutions to, a problem as complex and

multifaceted as the inux of asylum-seekers and refugees to into the European

Union. For details on New Haven, see W. Michael Reisman, Siegfried Wiessner

& Andrew R. Willard, e New Haven School: A Brief Introduction, 32 Y J.