With regards to refugee rights, only a few rights under the Refugee Convention remain without express territorial limitation. Two of those rights bear relevance in the resettlement context, namely Art 3 (non-discrimination) and Art 33 (*non-refoulement*) Refugee Convention. Since the wording of these Articles remains silent on their territorial scope, interpretative efforts are necessary. Accordingly, these Articles may apply extraterritorially (at least) when the threshold to establish extraterritorial jurisdiction under general human rights treaties is met.

### *Substantive rights 3.3*

Once a human rights treaty or the Refugee Convention applies, attention needs to be drawn to the substantive rights relevant to the course of the resettlement process.

### Non-refoulement 3.3.1

Referred to as a fundamental principle governing the admission of non-nationals, human rights law, humanitarian law, refugee law and criminal law endorse the prohibition of *refoulement*. This principle "*includes at a minimum the absolute and underogable prohibition of refoulement toward a state where there is a real risk of torture, inhuman, or degrading treatment or punish-* *ment*".488 In terms of refugee law, *non-refoulement* is explicitly stipulated in Art 33 Refugee Convention.489 Universal human rights treaties include explicit *non-refoulement* provisions, such as Art 3 para 1 CAT, and implicit *non-refoulement* provisions, namely Art 7 ICCPR, and Art 37 CRC;490 examples of *non-refoulement* provisions in regional human rights treaties are Art 22 para 8 American Convention on Human Rights (ACHR)491 (explicit), as well as Art 3 ECHR492 and Art 5 Banjul Charter493 (both implicit). In the EU law context, Art 19 para 2 Charter of Fundamental Rights of the European Union (the Charter)494 sets out an explicit prohibition of *refoulement* and Art 4 Charter provides for an implicit prohibition of *refoulement* (for the applicability of Charter rights see <IP_ADDRESS>).

The difference between explicit and implicit *refoulement* provisions is significant because the wording of explicit *refoulement* provisions may limit the application of the principle. For instance, a *refoulement* prohibition that is literally directed to those who have actually crossed the border of the receiving country is difficult to apply in the resettlement context – apart from its application in the (not less important) scenarios where beneficiaries already find themselves on the territory of the receiving country. For this reason, it is crucial to assess the content beyond the wording by applying the rules of interpretation under Art 31 para 3 lit c Vienna

488 Vincent Chetail, *International Migration Law*, 124; see Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 324; see also *Chahal v United Kingdom* App No 22414/93 (ECtHR 15 November 1996) paras 78ff, 96.

489 See Vincent Chetail, *International Migration Law* 119.

490 See Annick Pijnenburg, 'Containment Instead of *Refoulement*: Shifting State Responsibility in the Age of Cooperative Migration Control' in (2020) Human Rights Law Review, 315f.

491 American Convention on Human Rights, OAS Treaty Series No 36 (adopted 22 November 1969, entered into force 18 July 1978) <https://www.oas.org/dil/treati es\_b-32\_american\_convention\_on\_human\_rights.pdf> accessed 13 May 2021.

492 The principle of *non-refoulement* is not explicitly contained in the ECHR; significantly, the ECtHR considers Art 3 ECHR as providing an effective means against all forms of return to places where there is a risk that an individual would be subjected to torture, or to inhuman or degrading treatment or punishment; see e.g., *Soering v United Kingdom* App No 14038/88 (ECtHR 7 July 1989).

493 African Charter on Human and Peoples' Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217 (Banjul Charter).

494 Art 19 para 2 Charter of Fundamental Rights of the European Union [2000] OJ C364/1-22 states: "*No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment*".

Convention on the Law of Treaties (VCLT)495 (an analysis of specific *non-refoulement* provisions is provided in the following sections <IP_ADDRESS> and <IP_ADDRESS>). Beyond treaty law, commentators affirmed the customary law nature of the principle of *non-refoulement*. 496 Some commentators qualified the prohibition of *refoulement* as *jus cogens*. 497

In practice, a state may violate the *non-refoulement* principle when it does not (fully) assess an individual's risk of being exposed to conditions where his or her right to life, or the prohibition of ill-treatment or torture, are at stake. A *non-refoulement* violation can already be triggered if a state *ought*  to have known that it would expose an individual to such conditions,498 including subsequent *refoulement*. 499 The required standard of the *non-refoulement* principle under customary international law is, for example, reflected in Guideline 3 of the guidance on how to reduce the risk of *refoulement* in external border management when working in or together with third countries, published by the EU Agency for Fundamental Rights (FRA). It states that third countries "*should not be requested to intercept*

495 See Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331.

496 Evelien Wauters and Samuel Cogolati, 'Crossing the Mediterranean Sea: EU Migration Policies and Human Rights' in Valsamis Mitsilegas, Violeta Moreno-Lax and Niovi Vavoula (eds)*, Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights* (Brill 2020) 102 (105). The customary law nature of *non-refoulement* was acknowledged by non-treaty parties like Myanmar and Bangladesh. See Vincent Chetail, *International Migration Law*, 120ff; see also James C Hathaway, *The Rights of Refugees Under International Law*, 363-370; see also Guy S Goodwin-Gill and Jane McAdam, *The Refugee in International Law*, 345ff.

497 See Annick Pijnenburg, 'Containment Instead of *Refoulement*: Shifting State Responsibility in the Age of Cooperative Migration Control' in (2020) Human Rights Law Review, 316; see also Jean Allain, 'The Jus Cogens Nature of Non-Refoulement' in (2002) 13 International Journal of Refugee Law, 533-558.

498 See *MSS v Belgium and Greece* App No 30696/09 (ECtHR 21 January 2011) para 358: "*In the light of the foregoing, the Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him*"; see also Christoph Grabenwarter, *European Convention on Human Rights: Commentary*  (CH Beck/Hart/Nomos 2014) Art 3 ECHR, para 14; see also William A Schabas, *The European Convention on Human Rights: A Commentary* (Oxford University Press 2015) 96; see James C Hathaway, *The Rights of Refugees Under International Law*2 , 327: "*This risk may also follow from failure of even a carefully designed procedure to take notice of the most accurate human rights data*".

499 See James C Hathaway, *The Rights of Refugees Under International Law*2 , 367.

*people on the move before they reach the EU external border, when it is known or ought to be known that the intercepted people would as a result face persecution or a real risk of other serious harm*".500

Consequently, it arises from the principle of *non-refoulement* that – regardless of whether the refugee status determination procedure takes place at the border or within the territory of the State , certain basic procedural requirements (such as access to an appeal with automatic suspensive effect, where applicable) must be ensured.501

Must receiving countries conducting procedures concerning resettlement eligibility and status determination outside their territory uphold these procedural standards? The preliminary analysis about extraterritorial jurisdiction (see <IP_ADDRESS>) suggests that the application of *non-refoulement*  obligations under human rights treaties remains exceptional for receiving countries engaging in resettlement selection missions.

501 See UNHCR EXCOM Conclusion No 8 (XXVIII) 'Determination of Refugee Status' (1977) <https://www.unhcr.org/excom/exconc/3ae68c6e4/determinatio n-refugee-status.html> accessed 6 July 2022; UNHCR EXCOM Conclusion No 30 (XXXIV) 'The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum' (1983) <https://www.unhcr.org/excom/exconc/ 3ae68c6118/problem-manifestly-unfounded-abusive-applications-refugee-sta tus-asylum.html> accessed 6 July 2022. See also Sibel Uranues, '"Pushback" – Rechtliches über das "Unwort des Jahres" 2021 (Teil I)' (*Blogasyl*, June 30, 2022) <https://www.blogasyl.at/2022/06/pushback-teil-1/> accessed 6 July 2022. Procedural requirements also arise from the prohibition of expulsion. "*In essence, the prohibition translates to a due process right for each individual to have the act of removal administratively and judicially assessed*." David Cantor, Nikolas Feith Tan, Marianna Gkiliati, Elisabeth Mavropoulou et al, 'Externalisation, Access to Territorial Asylum, and International Law' in (2022) International Journal of Refugee Law, 17.

500 FRA, 'Guidance on how to reduce the risk of refoulement in external border management when working in or together with third countries' (5 December 2016) (emphasis added) 3 <https://fra.europa.eu/sites/default/files/fra\_uploads /fra-2016-guidance-reducing-refoulement-risk-0\_en.pdf> accessed 14 February 2021; see Nula Frei and Constantin Hruschka, 'Circumventing Non-Refoulement or Fighting "Illegal Migration"?' (*Eumigrationlawblog.eu*, 23 March 2018) <https://eumigrationlawblog.eu/circumventing-non-refoulement-or-fighting-ille gal-migration/> accessed 14 February 2021.

#### Human rights <IP_ADDRESS>

The following analysis sheds light on whether specific *non-refoulement*  obligations in human rights treaties, namely the CAT, ICCPR, the CRC or/and the ECHR, are applicable during resettlement operations.

#### Art 3 para 1 CAT <IP_ADDRESS>.1

Art 3 para 1 CAT states that "[n]*o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subject to torture*".502 This Article constitutes an example of an explicit *non-refoulement* provision.

The first element of the general rule on treaty interpretation (Art 31 para 1 VCLT) requires consideration of the ordinary meaning of the terms of a treaty. A literal reading of Art 3 para 1 CAT, namely not to "*expel, return ('refouler') or extradite a person to another State*", holds that this provision covers situations where a resettlement beneficiary has already been transferred to the territory of a receiving country and is then returned to another state, i.e. the country of (first) refuge or the home country. On the surface, returning a person to another state implies that this person has already reached the territory of the returning country. However, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pointed to situations where "*States operate and hold individuals abroad, as in the context of* […] *offshore detention or refugee processing facilities*". He took the position that "[w]*henever States are operating extraterritorially and are in the position to transfer persons, the prohibition against non-refoulement applies in full.* […] *A person under the authority of State agents anywhere cannot be returned when facing risk of torture*".503

The purpose of the CAT speaks in favor of extraterritorial applicability. The prohibitions of torture are universal and "[…] *the purpose of the CAT was to 'make more effective' those prohibitions, which were already universal, by creating express obligations on States to prevent, prosecute, and remedy viola-*

502 Art 3 para 1 CAT (emphasis added).

503 OHCHR, 'Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment', UN Doc A/70/303 (7 August 2015) para 38 <https://www.ohchr.org/en/documents/thematic-reports/a77502 -interim-report-special-rapporteur-torture-and-other-cruel-inhuman> accessed 5 May 2023.

*tions, as the Preamble makes clear*. […] *This universal prohibition is illustrated by the number of provisions of the CAT that include no express territorial limit. These include the obligation* […] *not to return individuals to torture (Art 3)*  […]".504 That being said, Art 3 CAT – in contrast to other CAT provisions – does not set an express limit on its territorial scope, which can be interpreted as a manifestation of the universal nature of the prohibitions underlying the CAT.

Besides, "*any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions*" shall be taken into account (Art 31 para 3 lit a VCLT), including decisions of a treaty organ.505 In this regard, the General Comments of the Committee against Torture provide interpretative guidance – even though they are not legally binding.506 With regard to Art 3 CAT, General Comment No 4 (2007)507 is pertinent. This General Comment supports to extend the wording of Art 3 para 1 CAT to cases of extraterritorial action when a Contracting State exercises jurisdiction. The Committee clarified in its General Comment No 4 para 10 that a Contracting State was bound to the principle of *non-refoulement* "*in any territory under its jurisdiction or any area under its control or authority, or on board a ship or aircraft registered in the State party, to any person, including persons requesting or in need of international protection*".

In line with the above analysis, *Koh*, the (then) Legal Advisor for the US Department of State concluded in his Memorandum of 21 January 2013 that "*exhaustive analysis of all available sources of treaty interpretation requires rejection of an interpretation that would impose a categorical bar against the Convention's extraterritorial scope* […]. *The object and purpose, text and context of the CAT, the negotiating history of the Convention* […] *all support these conclusions*".508

504 Sarah Cleveland, 'The United States and the Torture Convention, Part I: Extraterritoriality' (*Just Security*, 14 November 2014).

505 See Oliver Dörr in Oliver Dörr and Kirsten Schmalenbach (eds), *Vienna Convention on the Law of Treaties: A Commentary* (Springer 2nd ed 2018) para 76.

506 See Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 214.

507 See Committee against Torture, 'General Comment No 4 (2017) on the implementation of Article 3 of the Convention in the context of Article 22', CAT/C/GC/4 (4 September 2018) <https://tbinternet.ohchr.org/\_layouts/15/tre atybodyexternal/Download.aspx?symbolno=CAT%2fC%2fGC%2f4&Lang=en> accessed 14 February 2021.

508 Harold Hongju Koh, 'Memorandum Opinion on the Geographic Scope of the Convention Against Torture and Its Application in Situations of Armed

It can be deduced from interpretation according to the VCLT that Art 3 para 1 CAT applies extraterritorially whenever a jurisdictional link exists (see 3.2.1),509 provided that "*there are 'substantial grounds' for believing that the person concerned would be in danger of being subjected to torture in a State to which the person is facing deportation*".510

### Arts 6 and 7 ICCPR <IP_ADDRESS>.2

The ICCPR contains two provisions from which an implicit prohibition of *refoulement* has been derived. First, Art 6 para 1 ICCPR sets out that "[e]*very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life*". Next, Art 7 ICCPR (first sentence) stipulates that "[n]*o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment*".

The Human Rights Committee interpreted Art 6 ICCPR as a *non-refoulement* obligation in its General Comment No 36.511 In addition, the Committee dealt with Art 7 ICCPR in its General Comment No 20 as a *non-refoulement* prohibition requiring Contracting States not to expose individuals "*to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement*".512 With this statement, the Committee abided by the wording of Art 3 para 1 CAT. Eventually, in *Mohammad Munaf v Rumania*, the Committee acknowledged that the prohibition of *refoulement* under Arts 6 and 7 ICCPR did not depend on a physical border crossing. Instead, the Commission considered the exercise of jurisdiction as the main issue.513

Conflict' (21 January 2013) 6 <https://www.documentcloud.org/documents/209 86585-20130121-dos-torture-convention> accessed 5 May 2023.

509 Committee against Torture, 'General Comment No 4 (2017) on the implementation of article 3 of the Convention in the context of article 22', CAT/C/GC/4 (4 September 2018) para 11.

510 Ibid para 12.

511 OHCHR, 'General Comment No 36: Article 6 (Right to Life)', UN Doc CCPR/C/GC/36 (3 September 2019) para 31.

512 OHCHR, 'General Comment No 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment)', UN Doc HRI/GEN/1/ Rev9 (Vol I) (10 March 1992) para 9 <https://www.refworld.org/docid/453883fb 0.html> accessed 14 February 2021.

513 See OHCHR, 'Communication No 1539/2006: Mohammad Munaf v Romania', UN Doc CCPR/C/96/D/1539/2006 (21 August 2009) para 14.2 <https://www.re

As regards the answer whether a state exercises extraterritorial jurisdiction during resettlement selection missions, it has already been pointed out that the Human Rights Committee itself referred to the exercise of power or effective control over the right to life of a person as jurisdictional threshold (see 3.2.1). If targeted actions of the receiving country concerning its resettlement policy implementation have direct and foreseeable effects on the *non-refoulement* rights derived from Arts 6 and 7 ICCPR, the receiving country is arguably bound by these provisions, irrespective of whether the individual has already reached their territory.

For climate migrants (see <IP_ADDRESS>), the Human Rights Committee has generally accepted the application of the *non-refoulement* principle in relation to life-threatening conditions caused by climate change. While the Committee rejected the appeal of Ioane Teitiota,514 it "*accepted, in principle that it is unlawful for states to send people to places where the impacts of climate change expose them to life-threatening risks or a risk of cruel, inhuman, or degrading treatment*".515 Specifically, the Committee observed that "*it and regional human rights tribunals have established that environmental degradation can compromise effective enjoyment of the right to life, and that severe environmental degradation can adversely affect an individual's well-being and lead to a violation of the right to life*".516 In the specific case of Ioane Teitiota, the Committee found, however, that Kiribati could still take measures to remedy and prevent harm, though the Committee did not

fworld.org/cases,HRC,4acf500d2.html> accessed 14 February 2021: "*The main issue to be considered by the Committee is whether, by allowing the author to leave the premises of the Romanian Embassy in Baghdad, it exercised jurisdiction over him in a way that exposed him to a real risk of becoming a victim of violations of his rights under articles 6, 7, 9, 10, paragraph 1 and 14 of the Covenant, which it could reasonably have anticipated.*"

514 See OHCHR, 'Communication No 2728/2016: Ione Teitiota v New Zealand', UN Doc CCPR/C/127/D/2728/2016 (23 September 2020) para 9.11 <https://dem aribus.files.wordpress.com/2020/02/2728-2016.pdf> accessed 19 June 2021.

515 Jane McAdam, 'Protecting People Displaced by the Impacts of Climate Change: The UN Human Rights Committee and the Principle of Non-refoulement' (2020) 114 American Journal of International Law 4, 708 (708); see also Katharine M Donato, Amanda Carrico and Jonathan M Gilligan, 'As more climate migrants cross borders seeking refuge, laws will need to adapt' (*The Conversation*, 8 June 2021) <https://theconversation.com/as-more-climate-migran ts-cross-borders-seeking-refuge-laws-will-need-to-adapt-159673> accessed 16 June 2021.

516 OHCHR, 'Communication No 2728/2016: Ione Teitiota v New Zealand', UN Doc CCPR/C/127/D/2728/2016 (23 September 2020) para 9.5. See also ibid paras 8.6, 9.4.

clearly specify them. This means that future cases need to clarify when the threshold is met so that no measures can still be taken to prevent a lifethreatening situation and, thus *non-refoulement* would apply. In such situations, provided that the conditions for extraterritorial jurisdiction are met, *non-refoulement* obligations could also arise for receiving countries towards climate migrants.

### Art 37 lit a CRC <IP_ADDRESS>.3

Art 37 lit a CRC states that "[n]*o child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment.* […]". The Committee on the Rights of the Child clarified that Contracting Parties to the CRC face an implicit obligation not to return a child to a country when there are substantial grounds for assuming a real risk of irreparable harm. This obligation mainly concerns Arts 6 (right to life) and 37 CRC (stated above) but is not limited to those provisions.517

It shall be noted upfront that in the specific context of the rights of the child, the assessment of the risk of irreparable harm must be conducted more thoroughly than with regard to adults.518

The Committee on the Rights of the Child did not address extraterritorial *refoulement* obligations in its General Comment No 6.519 However, it affirmed the extraterritorial application of *non-refoulement* with regard to Art 38 CRC, a provision concerning recruitment and participation in hostilities.520 While the Committee made reference to "*the borders*" of a state which militates against the application in the resettlement selection process, it also used the expression "*in any manner whatsoever*", which is the wording of Art 33 para 1 Refugee Convention and indicates that the prohibition includes multiple types of state actions (see <IP_ADDRESS>).

Furthermore, interpretation in consideration of other applicable treaties pursuant to Art 31 para 3 lit c VCLT suggests that the extraterritorial application of Art 37 lit a CRC in the resettlement (selection) process is ex-

517 See Committee on the Rights of the Child, 'General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin' (1 September 2006) 10, para 13 <https://digitallibrary.un.org/record/566055?ln=en> accessed 14 February 2021.

518 See ibid 10, para 27.

519 See ibid 10, para 27.

520 See ibid 10, para 28.

ceptionally possible, subject to the condition that the prospective receiving country exercises jurisdiction.

### Arts 2 and 3 ECHR <IP_ADDRESS>.4

In the regional European context, Art 2 para 1 ECHR sets forth that "[e]*veryone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law*". Furthermore, Art 3 ECHR states that "[n]*o one shall be subjected to torture or to inhuman or degrading treatment or punishment*". Both Articles inhere an implicit *refoulement* prohibition.521 However, this does not answer the question whether a country is obligated to extraterritorially *admit* an individual if the individual would otherwise be subject to treatment contrary to Arts 2 and/or 3 ECHR.

Famously, in the *Hirsi Jamaa* judgement, the ECtHR found that Italy violated Art 3 ECHR and Art 4 Protocol No 4 to the ECHR.522 Italy should have known that the return of Somali and Eritrean migrants intercepted by Italian ships (on these ships Italy exercised jurisdiction based on the flag principle) in the Mediterranean Sea, i.e. outside Italy's territorial waters, exposed them to the risk of serious human rights violations in Libya and arbitrary repatriation to Eritrea and Somalia.523

Furthermore, the ECtHR affirmed that obligations under Art 3 ECHR existed irrespective of any physical border crossing. For instance, in *Al-Sadoon and Mufdhi v United Kingdom*, the Court held that the transfer of detainees from British to Iraqi custody, i.e. a situation of physical *de facto*  control, involved a breach of Art 3 ECHR because this transfer exposed

521 See Christoph Grabenwarter, *European Convention on Human Rights: Commentary* (CH Beck/Hart/Nomos 2014) Art 2 ECHR, para 5; see also ibid Art 3 ECHR, paras 13f; see also *Bader and Others v Sweden* App No 13284/04 (ECtHR 8 November 2005) paras 42, 48; see also *Saadi v Italy* App No 37201/06 (ECtHR 28 February 2008) para 125; see also *Tarakhel v Switzerland* App No 29217/12 (ECtHR 4 November 2014) para 122.

522 See Protocol No 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto (entered into force 2 May 1968) ETS No 46.

523 See *Hirsi Jamaa & Others v Italy* App No 27765/09 (ECtHR 23 February 2012), paras 137, 158, 186.

the affected individuals to a real risk of being sentenced to death and executed.524

Nonetheless, the ECtHR has yet to refrain from extending the scope of *non-refoulement* under the ECHR to a positive obligation (under the condition that the state exercises jurisdiction) to offer legal pathways such as resettlement. Specifically, it avoided to do so in *ND and NT v Spain*. 525 In this case, the ECtHR dealt with the Spanish policy of 'hot expulsions' of irregular migrants and thereby addressed the prohibition of collective expulsion pursuant to Art 4 Protocol No 4 to the ECHR.526 The Court denied a violation of this Article because the applicants brought themselves in the situation of collective expulsion and did not make use of the possibility of entering Spain by legal means. At the same time, the ECtHR expressly set out the requirement for Contracting States to "*make available genuine and effective access to means of legal entry*", which allowed "*all persons who face persecution to submit an application for protection*".527 However, it cannot be implied that this (vague) reference to legal pathways triggers an autonomous positive obligation for prospective receiving countries under Art 3 ECHR. When relying on the applicant's self-caused forfeit by not taking recourse to legal pathways, the ECtHR solely commented on Art 4 Protocol No 4 to the ECHR but refrained from considering Art 3 ECHR.528 Essentially, Art 4 Protocol No 4 to the ECHR differs from Art 3 ECHR because it does not deal with torture, inhuman or degrading treatment in the country of (first) refuge or in the home country.529

Also, in the subsequent case of *Shahzad v Hungary*, where the ECtHR specified the standards set out in *ND and NT*, the Court did not compre-

524 See *Al-Sadoon and Mufdhi v United Kingdom* App No 61498/08, Merits and Just Satisfaction (ECtHR 2 March 2010) para 143.

525 See *ND and NT v Spain* App No 8675/15 and 8697/15 (ECtHR 13 February 2020).

526 See Daniel Thym, 'A Restrictionist Revolution?: A Counter-Intuitive Reading of the ECtHR's ND & NT-Judgment on 'Hot Expulsions' at the Spanish-Moroccan Border' (*Verfassungsblog*, 17 February 2020) <https://verfassungsblog.de/a-restrict ionist-revolution/> accessed 15 February 2021.

527 *ND and NT v Spain*, paras 209, 229.

528 See Sarah Progin-Theuerkauf, 'Grenzen des Verbots von Kollektivausweisungen: Das Urteil des EGMR im Fall ND und NT gegen Spanien' in (2020) sui generis, 309 (314, para 26).

529 See ibid 311, para 10. See also Constantin Hruschka, 'Hot Returns Remain Contrary to the ECHR: ND & NT before the ECHR' (*Eumigrationlawblog.eu*, 28 February 2020) <https://eumigrationlawblog.eu/hot-returns-remain-contrary-to-t he-echr-nd-nt-before-the-echr/> accessed 6 July 2022.

hensively comment on Art 3 ECHR. It is notable though, that the ECtHR expressly highlighted the importance that entry points "*secure the right to request protection under the Convention, and in particular Article 3, in a genuine and effective manner*" 530. Sure, this does not answer the question of extraterritorial *non-refoulement* obligations to admit persons in need for protection. Instead, as regards (extra)territoriality, *Shahzad v Hungary* confronted the ECtHR with a new situation, namely the mirror question of whether expulsion can take place before having crossed the border.531

The ECtHR's strong insistence on the access to legal pathways in *Shahzad v Hungary* (and also *MH v Croatia532*) could have been interpreted as signaling to Contracting States an obligation to provide legal pathways.533 However, in *AA and others v North Macedonia534*, the ECtHR took a more restrictive stance than in *ND and NT* and found the applicants culpable of circumventing legal pathways, even though such pathways were arguably not available in practice.

Overall, the ECtHR has not provided clarity about the existence of an obligation to provide legal pathways. It avoided to deal with Art 3 ECHR in *ND and NT v Spain* and subsequent case law, and it denied jurisdiction in respect of this Article in *MN and others v Belgium* (see 3.2.1)*.* Given these considerations, a definitive answer from the ECtHR regarding the question whether a receiving country is obligated to extraterritorially *admit*  a potential resettlement beneficiary if he or she would otherwise be subject to treatment contrary to Arts 2 and/or 3 ECHR is still missing.

530 *Shahzad v Hungary* App No 12625/17 (ECtHR 8 July 2021) para 62.

531 Outside the border fence in Hungary remains a strip of land that is still Hungarian territory, and the Court held that this did not preclude expulsion. See ibid para 49; see also Dana Schmalz, 'Rights that are not Illusory' (*Verfassungsblog*, 9 July 2021) <https://verfassungsblog.de/rights-that-are-not-illusory/> accessed 9 July 2021.

532 *MH and others v Croatia* App Nos 15670/18 and 43115/18 (ECtHR 4 April 2022).

533 See Vera Wriedt, 'Expanding Exceptions? AA and Others v North Macedonia, Systematic Pushbacks and the Fiction of Legal Pathways' (*Eumigrationlawblog.eu*, 7 June 2022) <https://eumigrationlawblog.eu/expanding-exceptions-aa-a nd-others-v-north-macedonia-systematic-pushbacks-and-the-fiction-of-legal-path ways/> accessed 7 July 2022.

534 *AA and others v North Macedonia* App Nos 55798/16 and 4 others (ECtHR 2nd Section 5 April 2022).

### Refugee law <IP_ADDRESS>

Art 33 para 1 Refugee Convention states:535

*No Contracting State shall expel or return ("refouler") 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.*

The wording of Art 33 para 1 Refugee Convention addresses cases where a receiving country expels or returns refugees to the country of (first) refuge or to their home country.

According to the observations of the English Court of Appeal in the *Prague Airport* case, Art 33 Refugee Convention "*cannot comprehend action which causes someone to remain on the same side of the frontier as they began; nor indeed could such a person be said to have been returned to any frontier*".536

In the earlier *Sale* case537, the US Circuit Courts and the US Supreme Court dealt with Haitians who were interdicted on the high seas and returned home. The UNHCR submitted an *amicus curiae* brief, claiming that the *non-refoulement* obligation was binding regardless of whether the return decision concerned a person inside or outside the state's territory taking the return decision.538 The US Supreme Court rejected such broad scope of the principle of *non-refoulement* and concluded as follows:539

[…] *a treaty cannot impose uncontemplated extraterritorial obligations on those who ratify it through no more than its general humanitarian intent. Because the text of Article 33 cannot reasonably be read to say anything at all about a nation's actions toward aliens outside its own territory, it does not prohibit such actions.*

Subsequently, Judge *Albuquerque* criticized in his Concurring Opinion to the *Hirsi Jamaa* ruling of the ECtHR that the Supreme Court's interpreta-

535 Art 33 para 1 Refugee Convention (emphasis added).

536 *R (European Roma Rights Centre and Others) v Immigration Officer at Prague Airport* [2003] EWCA Civ 666 (Eng CA, 20 May 2003) para 31.

537 See *Acting Commissioner, Immigration and Naturalization Service, et al v Haitian Centers Council, Inc* 509 US 155, 113 S Ct 2549 (1993) <https://cdn.loc.gov/servic e/ll/usrep/usrep509/usrep509155/usrep509155.pdf> accessed 15 February 2021.

538 See UNHCR, *The Haitian Interdiction Case* 1993, Brief *Amicus Curiae* in (1994) 6 International Journal of Refugee Law 85, 94-97.

539 *Acting Commissioner, Immigration and Naturalization Service, et al v Haitian Centers Council, Inc* 509 US 155 (158) (1993).

tion of Art 33 Refugee Convention was contrary to the common rules on treaty interpretation.540

*With all due respect, the United States Supreme Court's interpretation contradicts the literal and ordinary meaning of the language of Article 33 of the United Nations Convention relating to the Status of Refugees and departs from the common rules of treaty interpretation.*

Judge *Albuquerque* raised, amongst others, two essential points demonstrating that already the ordinary meaning of the terms of Art 33 para 1 Refugee Convention speaks in favor of extraterritorial *refoulement* obligations. First, he pointed out that unlike most other provisions in the Refugee Convention, the application of Art 33 para 1 Refugee Convention did not depend on the presence of a refugee in the territory of a receiving Contracting State (see 3.2.2). Second, he asserted that the expression "*in any manner whatsoever*" included "*all types of State actions to expel, extradite or remove an alien in need of international protection*" 541 – subject to a state's exercise of jurisdiction.

Even if one is not convinced that the literal text of Art 33 Refugee Convention already includes extraterritorial *non-refoulement* obligations, the purpose of the Refugee Convention supports the argument that extraterritorial *refoulement* obligations can be derived from Art 33 Refugee Convention and directed at refugees who have not left the territory of the country of (first) refuge or their home country yet. According to its Preamble, the Refugee Convention endeavors to ensure refugees "*the widest possible exercise*" of fundamental rights and freedoms. *Kälin et al* contend that an interpretation "*that allowed measures whereby a State, acting outside its territory, returns or otherwise transfers refugees to a country where they risk persecution would be fundamentally inconsistent with the purpose of the 1951 Convention and 1967 Protocol*".542 In this vein, *Hathaway* highlighted that

540 See Walter Kälin, Martina Caroni and Lukas Heim in Andreas Zimmermann (ed), *The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol*, Art 33 para 1 Refugee Convention, para 91; see also James C Hathaway, *The Rights of Refugees Under International Law*, 339; see also *Hirsi Jamaa & Others v Italy*, Concurring Opinion of Judge Pinto Albuquerque, 67.

541 *Hirsi Jamaa & Others v Italy*, Concurring Opinion of Judge Pinto Albuquerque, 68.

542 Walter Kälin, Martina Caroni and Lukas Heim in Andreas Zimmermann (ed), *The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol*, Art 33 para 1 Refugee Convention, para 89.

## "*the essential purpose of the Refugee Convention is to provide rights to seriously at-risk persons able to escape from their own countries*".543

Consequently, the essential purpose of the Refugee Convention would be undermined if Art 33 Refugee Convention was not extraterritorially applicable. As outlined, the prevailing opinion supports that this Article applies extraterritorially where Contracting States exercise jurisdiction (see 3.2.2).

### Concluding remarks <IP_ADDRESS>

The overall disputed extraterritorial application of the *non-refoulement*  principle544 suggests that the respective provisions in general human rights treaties and the Refugee Convention show differences, which in turn made it necessary to analyze the provisions separately. The findings revealed interpretative arguments in favor of extraterritorial *refoulement* obligations, provided that states exercise jurisdiction.

Starting with Art 3 para 1 CAT, the mere interpretation of the wording of this explicit *refoulement* provision makes a claim for extraterritorial *non-refoulement* obligations in the resettlement context difficult because at first glance, return "*to another State*" presupposes a prior border crossing. However, the Special Rapporteur as well as the Committee against Torture acknowledged that returns are not contingent on the territory of the returning Contracting State and that this Article applies extraterritorially where that State exercises jurisdiction.

In a similar vein, the Human Rights Committee interpreted the implicit *refoulement* obligations derived from Arts 6 and 7 ICCPR to apply extraterritorially in cases where a Contracting State exercises jurisdiction.

With regard to Art 37 lit a CRC, an implicit *non-refoulement* provision, interpretative guidance from the Committee on the Rights of the Child, together with an interpretation pursuant to Art 31 para 3 lit c VCLT in light of the CAT, the ICCPR and the Refugee Convention indicate that

543 James C Hathaway, *The Rights of Refugees Under International Law*, 338 (emphasis added).

544 See e.g., Thomas Gammeltoft-Hansen, *Access to asylum: international refugee law and the globalisation of migration control* (Cambridge University Press 2011); see also Marko Milanovic in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), *Human rights and the dark side of globalisation: Transnational law enforcement and migration control*, 53-78.

this Article inheres extraterritorial *non-refoulement* obligations once a state exercises jurisdiction.

In terms of the implicit *non-refoulement* obligations under Arts 2 and 3 ECHR, ECtHR case law does not provide definite answers whether a Contracting State is obligated to extraterritorially *admit* (e.g. via resettlement) an individual if the individual would otherwise be subject to treatment contrary to Arts 2 and/or 3 ECHR.

Finally, it is claimed that extraterritorial *non-refoulement* obligations can be deduced from the wording of Art 33 para 1 Refugee Convention. Interpreting this Article in the light of the object and purpose of the Refugee Convention strengthens this argument.

All of the analyzed provisions allow for interpretation in favor of extraterritorial *non-refoulement* obligations. This, however, does not mean that any extraterritorial rejection of admission, namely any non-selection of potential resettlement beneficiaries, constitutes a violation of the *non-refoulement* principle. The core question is whether the receiving country exercises jurisdiction. In most cases, such jurisdictional link cannot be established and the *non-refoulement* obligations are left to the state on whose territory resettlement beneficiaries are located.545 Still, it cannot be ruled out that in particular situations, the receiving country exercises jurisdiction due to effective control over the resettlement candidate's *non-refoulement*  right through targeted actions of its officials that directly and foreseeably affect this right and/or physical control over an individual (e.g. when the individual is deprived of its liberty and held in a certain location, such as a military basis, where the receiving country has exclusive legal authority) during vetting procedures. In such situations, the receiving country might violate applicable *non-refoulement* provisions when deporting individuals who do not pass the vetting process.546

545 As mentioned above, there may be rare exceptions, for example, when the application of the law of the host country is excluded on the basis of a written agreement, such as a Status of Forces Agreement.

546 For example, the US conduct of vetting procedures in Kosovo at Camp Bondsteel. See Janine Prantl, 'Afghan Mass Displacement: The American Response in Light of International Human Rights and Refugee Law, and the Need for International Cooperation to achieve a Satisfactory Solution' in (2022) ALJ, 17-46.

### Right to leave and to seek asylum 3.3.2

Forced migrants not only face *refoulement* by (prospective) receiving countries. Even before taking on their journey, home countries as well as countries of (first) refuge might interfere with the right to leave by preventing them from leaving their territory. Moreover, "[t]*he non-refoulement principle* […] *falls short of granting asylum in the sense of permission to enter and remain on the state's territory*."547 Thus, the question arises whether prospective receiving countries, when implementing resettlement policies on foreign territory, breach the right to seek asylum and the right not to be punished for irregularly entering a country.548

### Human rights <IP_ADDRESS>

The right to leave the country of one's presence constitutes the prerequisite to seek international protection in a foreign country. In contemporary international law, such right is proclaimed in the non-binding Art 13 para 2 UDHR.549 In line with the UDHR, the ICCPR, as a binding treaty, reiterates that "*everyone shall be free to leave any country, including its own*".550 Furthermore, in the European regional setting, Art 2 para 2 Protocol 4 ECHR states that "*everyone shall be free to leave any country, including his own*". Eventually, the right to leave has been established as a rule of customary international law.551

In essence, the right to leave is an independent right552 that exists irrespective of whether there exists a right to enter a specific country of destination.553 The substantive scope of the right to leave primarily

547 Nikolas Feith Tan, 'International models of deterrence and the future of access to asylum' in Satvinder Singh Juss (ed), *Research Handbook on International Refugee Law* (Edward Elgar 2019) 170.

548 See Sabrina Ardalan, 'EU and US Border Policy: Externalisation of Migration Control and Violation of the Right to Asylum' in Valsamis Mitsilegas, Violeta Moreno-Lax and Niovi Vavoula (eds)*, Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights* (Brill 2020) 282 (308ff).

549 "*Everyone has the right to leave any country, including his own, and the right to return to his country*".

550 Art 12 para 2 ICCPR; see Vincent Chetail, *International Migration Law*, 80.

551 See Vincent Chetail, *International Migration Law*, 85ff.

552 See Elspeth Guild and Vladislava Stoyanova in Wolfgang Benedek et al (eds) *European Yearbook on Human Rights 2018*, 382.

553 See ibid 382, 385.

contains a negative duty not to restrict exit and a positive duty to issue travel documents.554

With regard to the implementation of resettlement policies, the right to leave has gained relevance. Receiving countries have developed control policies to prevent irregular migration flows, whereas countries of (first) refuge have acted as gate keepers. This entails that countries of (first) refuge engage in practices that can negatively affect the right to leave, e.g. Libyan coast guards (as a result of EU support to Libya555, agreements between Libya and Italy556, and between Malta and Libya); Morocco stopping people crossing into Spanish enclaves of Melilla and Ceuta;557 or Mali deploying personnel at the border to Niger and Burkina Faso558 . 559 This raises the question whether the right to leave can be addressed to the countries of first refuge and/or to receiving countries.

The right to leave is not absolute. Restrictions of Art 12 para 2 ICCPR must be (i) provided by law and (ii) necessary to protect national security, public order, public health or morals, or the right and freedoms of others.

554 See for passport refusal *Stamose v Bulgaria* App No 29713/05 (ECtHR 27 November 2012); see also Elspeth Guild and Vladislava Stoyanova in Wolfgang Benedek et al (eds) *European Yearbook on Human Rights 2018*, 384.

555 See Commission, 'EU Trust Fund for Africa: new actions adopted to support vulnerable migrants, foster socio-economic development and improve border management in North of Africa' (14 December 2018) <Commission, 'EU Trust Fund for Africa: new actions adopted to support vulnerable migrants, foster socio-economic development and improve border management in North of Africa' (14 December 2018) <https://ec.europa.eu/commission/presscorner/detai l/ro/IP\_18\_6793> accessed 8 July 2022.

556 Memorandum d'intesa sulla cooperazione nel campo dello sviluppo, del contrasto all'immigrazione illegale, al traffico di esseri umani, al contrabbando e sul rafforzamento della sicurezza delle frontiere tra lo Stato della Libia e la Repubblica Italiana (February 2017, renewed in 2020) <https://www.governo.i t/sites/governo.it/files/Libia.pdf> accessed 8 July 2022; Memorandum of Understanding Between the Government of National Accord of the State of Libya and The Government of The Republic of Malta in the Field of Combatting Illegal Immigration (28 May 2020) <https://www.statewatch.org/media/documents/ne ws/2020/jun/malta-libya-mou-immigration.pdf> accessed 8 July 2022.

557 See 'Morocco: 18 migrants die in attempt to enter Spain's Melilla' (*Al Jazeera*, updated 25 June 2022) <https://www.aljazeera.com/news/2022/6/24/hundreds-of -migrants-storm-border-fence-in-spains-melilla> accessed 8 July 2022.

558 See 'After Mali exit, Niger accepts foreign forces to secure border' (*Al Jazeera*, 18 February 2022) <https://www.aljazeera.com/news/2022/2/18/after-mali-exit-niger -accepts-foreign-forces-to-secure-border> accessed 8 July 2022.

559 See Elspeth Guild and Vladislava Stoyanova in Wolfgang Benedek et al (eds) *European Yearbook on Human Rights 2018*, 377.

Furthermore, restrictive measures must conform with the principle of proportionality.560 Scholars have agreed that general measures limiting the right to leave on a massive scale are incompatible with the right to leave if no proportionality assessment has been made in relation to the specific individuals affected.561

The most obvious addressee for responsibility in case of a respective human rights violation is the state where the individual concerned is physically present and which he or she seeks to leave, i.e. the country of (first) refuge. Besides, receiving countries could become responsible for violations of the right to leave by countries of (first) refuge due to aid or assistance (see 3.4.1).

As counterpart to the right to leave, the UDHR accounts for the right to seek asylum. It was first addressed in Art 14 UDHR, stating that "[e]*veryone has the right to seek and to enjoy in other countries asylum from persecution*". However, this provision is neither legally binding nor has it reached the (secured) status of international customary law.562 It does not guarantee that asylum is actually granted if the required conditions are fulfilled. Beyond the UDHR, there is no right to seek and be granted asylum in general human rights law.563 It follows that under international human rights law, individuals in need for resettlement cannot invoke a right to seek for and to be granted asylum in a receiving country.

Being particularly vulnerable, children enjoy protection under Art 22 CRC. According to the Committee on the Rights of the Child, this Article sets out a right for children to access asylum procedures and other

560 See OHCHR, 'General Comment No 27: Article 12 (Freedom of Movement)', UN Doc CCPR/C/21/Rev1/Add 9 (2 November 1999) para 14 <https://www.ref world.org/docid/45139c394.html> accessed 16 February 2021; see also Vincent Chetail, *International Migration Law*, 82.

561 See Annick Pijnenburg, 'Containment Instead of *Refoulement*: Shifting State Responsibility in the Age of Cooperative Migration Control' in (2020) Human Rights Law Review, 321; see also Elspeth Guild and Vladislava Stoyanova in Wolfgang Benedek et al (eds) *European Yearbook on Human Rights 2018*, 393.

562 See Andreas Th Müller, 'Solidarität in der gemeinsamen europäischen Asylpolitik' in (2015) Zeitschrift für öffentliches Recht, 463 (471).

563 See Vincent Chetail, *International Migration Law*, 191. See also Michael Lysander Fremuth, 'Access Denied? – Human Rights Approaches to Compensate forthe Absence of a Right to Be Granted Asylum' in (2020) 4 University of Vienna Law Review 1 Special Issue: Slovenian-Austrian Law Conference, 79 (85ff).

complementary mechanisms providing international protection.564 Resettlement constitutes such – possible but not mandatory – complementary mechanism. The Committee on the Rights of the Child encourages states to "*provide resettlement opportunities in order to meet all the resettlement needs related to unaccompanied and separated children*".565

### Refugee law <IP_ADDRESS>

As opposed to human rights law, the Refugee Convention does not expressly state a right to leave but a right to be issued identity papers as well as travel documents. Art 27 Refugee Convention obliges Contracting States to issue identity papers "*to any refugee in the territory who does not possess a valid travel document*". This means that any refugee in the territory of a Contracting State can invoke Art 27 Refugee Convention when he or she is not in the possession of travel documents. Art 27 Refugee Convention also applies to asylum seekers not yet lawfully registered in the territory of a Contracting State who are in need of such document to prove refugee status.566 Furthermore, a refugee can claim travel documents from a Contracting State under Art 28 para 1 Refugee Convention for the purpose of travel outside their territory. As opposed to Art 27 Refugee Convention, its Art 28 demands lawful stay. Moreover, the latter Article allows a Contracting State to refrain from issuing travel documents if there are compelling reasons of national security or public order.

For the resettlement process, this means that any country of (first) refuge that is party to the Refugee Convention has the obligation under Art 27 of this Convention to issue identity papers to those refugees who do not possess travel documents. Notably, however, Art 27 Refugee Convention does not state the specific nature of identity papers which must be issued.567 Still, some receiving countries may require travel documents,

564 See Committee on the Rights of the Child, 'General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin' (1 September 2006) 19, para 66.

565 Ibid 26, para 94.

566 See James C Hathaway, *The Rights of Refugees Under International Law*, 626.

567 Circumvention of documentation obligations is even more problematic considering that a large number of Contracting States reaffirmed their commitment to registration and documentation and individualized status determination in the non-binding Global compact on refugees (GCR) and Global Compact for Migration (GCM). [see GCR para 58 (committing to support States in expand-

which potential resettlement beneficiaries cannot claim from countries of (first) refuge if they are not lawfully present there.

What is more, the Refugee Convention lacks a comprehensive right to seek and to be granted asylum.568 As a minimum, Art 31 Refugee Convention prohibits Contracting States to "*impose penalties, on account of their illegal entry or presence, on refugees* […] *provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence*". Effective implementation of Art 31 Refugee Convention requires clear legislative or administrative action ensuring that penalties are not imposed. While the term 'penalty' is not defined under this Article, consideration of general human rights law suggests a notion going beyond criminal law, focusing on whether the respective measure is reasonable and necessary, as opposed to arbitrary and discriminatory.569

In this vein, the UNHCR Executive Committee emphasized that states are required to grant protection seekers access to their territory and to fair and efficient asylum procedures.570 Also, the Michigan Guidelines on Freedom of Movement point out that states must provide reasonable access and opportunity for a protection claim to be made. Thus, they may not lawfully construct or maintain a physical barrier that fails to provide protection seekers access to their territory.571

ing capacity for registration and documentation); GCM Objective 7, para 23 lit h (undertaking to enable individual status assessments of all migrants).]

568 Some scholars have argued in favor of an implicit right to seek asylum derived from the Refugee Convention; see French delegate cited in Alice Edwards, 'Human Rights, Refugees and the Right 'to Enjoy' Asylum' in (2005) 17 International Journal of Refugee Law, 293 (301); see Sabrina Ardalan in Valsamis Mitsilegas, Violeta Moreno-Lax and Niovi Vavoula (eds)*, Securitising Asylum Flows: Deflection, Criminalisation and Challenges for Human Rights*, 308; see also Guy S Goodwin-Gill and Jane McAdam, *The Refugee in International Law*, Chapters 5 to 7.

569 See Guy S Goodwin-Gill, 'Article 31 of the 1951 Convention Relating to the Status of Refugees: non-penalization, detention, and protection' (2001) 193ff <https://www.unhcr.org/en-us/publications/legal/419c778d4/refugee-protectio n-international-law-article-31-1951-convention-relating.html> accessed 8 July 2022.

570 See UNHCR, 'Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol' (26 January 2007) 3 <https://www.refworld.org/ docid/45f17a1a4.html> accessed 16 February 2021.

571 See University of Michigan Law School, 'The Michigan Guidelines on Refugee Freedom of Movement' (May 2017) para 10.

### Concluding remarks on the right to leave and to seek asylum <IP_ADDRESS>

International and European human rights law acknowledges an independent right to leave. This right can be at stake when receiving countries implement resettlement policies in cooperation with countries of (first) refuge. In contrast, refugee law does not include a right to leave. The Refugee Convention recognizes the difficulties faced by refugees in leaving the territory of a country and has for this reason imposed obligations on Contracting States to provide identity papers and travel documents.

A right to seek and be granted asylum in the receiving country is established neither under international human rights nor refugee law. In the context of resettlement, this means that a potential resettlement beneficiary cannot invoke an international right to seek and be granted asylum towards a potential receiving country during selection missions.

### Procedural rights 3.3.3

Receiving countries are obliged to grant due process guarantees under international and European human rights and international refugee law in the resettlement process, although this process itself is not regulated through binding international law. Such guarantees are particularly important in the resettlement selection, namely in case of a negative selection decision (see <IP_ADDRESS>).

### Human rights <IP_ADDRESS>

A potential resettlement beneficiary who obtains a negative selection decision may want to appeal against it. This raises the question of whether human rights law stipulates a right to an effective review.

As a starting point, it must be noted that the Human Rights Committee and the ECtHR considered that the right to a fair trial does not apply to decisions of entry, stay or expulsion of aliens because they do not include a determination of civil rights or criminal obligations as required under the respective provisions in the ICCPR and the ECHR.572

572 See Vincent Chetail, *International Migration Law*, 141.

In this light, Art 14 para 1 ICCPR expressly links due process rights to the determination of "*any criminal charge*" and of "*rights and obligations in a suit at law*":

*All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.*

The Human Rights Committee specified in its General Comment No 32 that the right to access a court or a tribunal pursuant to Art 14 ICCPR "*does not apply to extradition, expulsion and deportation procedures*".573

Similarly, Art 6 ECHR restricts the entitlement to a "*fair and public hearing within a reasonable time by an independent and impartial tribunal established by law*" to the determination of civil rights and obligations as well as to criminal charges. The non-application of Art 6 ECHR to asylum and other immigration proceedings is supported by case law.574 For instance, in *MN and Others*, the ECtHR reiterated its previous case law and found that the decision on the entry to Belgian territory in the context of the issuance of humanitarian visas fell outside the scope of Art 6 ECHR.575

This means for the resettlement process that Art 14 ICCPR and Art 6 ECHR as such do not provide a sufficient legal basis to challenge a negative selection decision before the court.

Nevertheless, a right to an effective review under the ICCPR and the ECHR exists in situations where there is an arguable claim of violation of rights under the respective treaty.576 This could be relevant, e.g. in the course of interviews during a resettlement selection mission. For example,

573 OHCHR, 'General Comment No 32: Article 14: Right to equality before courts and tribunals and to a fair trial', UN Doc CCPR/C/GC/32 (23 August 2007) para 17 <https://www.refworld.org/docid/478b2b2f2.html> accessed 18 February 2021.

574 See *Maaouia v France* App No 39652/98 (ECtHR 5 October 2000) para 40; see also *MN and Others v Belgium*.

575 See *MN and Others v Belgium*, para 137.

576 See Vincent Chetail, *International Migration Law*, 141f; see also, e.g. OHCHR, 'Communication No 1477/2006: Maksudov and Others v Kyrgyzstan', UN Doc CCPR/C/93/D/1461,1462,1476 and 1477/2006 (31 July 2008) para 12.7 <https:// www.refworld.org/cases,HRC,4a93a0cd2.html> accessed 18 February 2021; see also *GHH and Others v Turkey* App No 43258/98 (ECtHR 11 October 2000) paras 34, 36.

one could imagine assaults by field officers amounting to a violation of Art 3 ECHR.577

Under EU law, the Charter provides additional due process guarantees (see 5.2.1).

### Refugee law <IP_ADDRESS>

According to Art 16 para 1 Refugee Convention, "[a] *refugee shall have free access to the courts of law on the territory of all Contracting States*". *Elberling*  purported that the wording of this Article does not require physical presence of the refugee concerned in any Contracting State.578 Furthermore, *Hathaway* confirmed that this right is not limited "*to the courts of the country in which the refugee is located*".579 In fact, refugees can only benefit from whatever judicial remedies exist in a Contracting State. This entails for resettlement that despite the guarantee under Art 16 para 1 Refugee Convention, judicial review of a decision (not) to select a refugee for resettlement remains contingent on the remedies available under domestic law (arguably of the receiving country, i.e. the decision-making country).580

### Concluding remarks <IP_ADDRESS>

Resettlement refugees cannot invoke Art 14 ICCPR and Art 6 ECHR to challenge a negative selection decision. Still, the ICCPR and the ECHR

577 When it comes to misconduct by field officers (and also other actors involved), women as potential victims are particularly vulnerable. It therefore deserves mention that in its General Comment No 32, the Committee on the Elimination of Discrimination against Women affirmed the extraterritorial application of the CEDAW, including with regard to violations of private persons and other non-state actors, subject to the condition of jurisdiction. See Committee on the Elimination of Discrimination against Women, 'General recommendation No 32 on the gender-related dimensions of refugee status, asylum, nationality and statelessness of women', UN Doc CEDAW/C/GC/32 (14 November 2014) para 7 <https://www.refworld.org/docid/54620fb54.html> accessed 21 June 2021.

578 See Björn Elberling in Andreas Zimmermann (ed), *The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol* (Oxford University Press 2011) Art 16 Refugee Convention, para 27.

579 James C Hathaway, *The Rights of Refugees Under International Law* (2005) 645.

580 See James C Hathaway, *The Rights of Refugees Under International Law*2 , 915ff.

acknowledge the right to an effective review when there is an arguable claim of violation of rights under the respective treaty. If, for example, such a right is violated during an interview when the receiving country exercises jurisdiction over a potential resettlement beneficiary through its field officers, then this right to review must be granted. Thus, at least for misconduct during selection interviews, there is protection for potential resettlement beneficiaries in the form of a right to review. Furthermore, Art 16 para 1 Refugee Convention grants any refugee access to courts in all Contracting States, but refugees are limited to the judicial remedies available under the respective domestic law.

### Non-discrimination 3.3.4

Discrimination in the resettlement process may occur in multiple forms. In the resettlement selection process, discrimination can happen between (groups of) refugees, e.g. on the basis of their nationality or religion. Specifically, differences in legal status may result in discrimination between resettlement refugees and other refugees. Another source of discrimination derives from the fact that generally the rights of non-nationals, including resettlement beneficiaries, are less comprehensive than the rights of nationals. In this context, discrimination may be an issue during the process of naturalization for resettlement beneficiaries as opposed to other forced migrants (see <IP_ADDRESS>).

The principle of non-discrimination is recognized under Art 1 para 3 UN Charter.581 It is a well-established principle in international and European human rights law, enshrined in Art 2 UDHR, Arts 2 and 26 ICCPR, Art 2 ICESCR, Art 14 ECHR, Art 1 Protocol No 12 to the ECHR582 and Art 21 Charter, as well as in international refugee law, namely in Art 3 Refugee Convention.

581 See Art 1 para 3 UN Charter stipulates that one of the purposes of the United Nations is "[t]*o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion*".

582 See Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (entered into force 1 April 2005) ETS No 177.

### Human rights <IP_ADDRESS>

Prominently, Art 2 UDHR stipulates a general prohibition of non-discrimination:

*Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.*

While the UDHR remains a non-binding instrument, Art 2 UDHR was incorporated in legally binding universal human rights treaties, namely Arts 2 para 1 and 26 ICCPR, and Art 2 para 2 ICESCR.

Art 2 para 1 ICCPR sets forth that each Contracting State shall "*ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status*". More precisely, Art 26 ICCPR stipulates:

*All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.*

Similarly, Art 2 para 2 ICESCR states that the Contracting States "*undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status*".

Moreover, Art 2 CRC rules out "*any discrimination on the basis of the status of a child as being* […] *a refugee, asylum seeker or migrant*".583

583 Committee on the Rights of the Child, 'General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin' (1 September 2006) 8, para 18.

Based on these provisions, it is recognized that international human rights law prohibits discrimination among and between refugees.584

Under European human rights law, the ECHR does not establish a general principle of equality comparable to the UDHR. Art 14 ECHR prohibits discrimination, but its scope of application is limited to the rights and freedoms laid down in the ECHR.585 This, however, does not presuppose that a respective Convention right applies; it is rather sufficient that the situation at issue falls within the ambit of a Convention right.586 Furthermore, Art 1 Protocol No 12 to the ECHR contains a general principle of equality. Though to date, this Protocol has only been ratified by twenty Contracting States,587 and its prohibition of discrimination is restricted to any rights set forth by law. It would therefore only apply if resettlement gained the status of a right under EU or domestic law.588

For the assessment whether a respective practice constitutes a discriminatory act violating one of the stated rules, it must be noted that "[d]*ifferential treatment of migrants does not always equal discrimination*".589 According to the prevailing opinion, a difference in treatment is not discriminatory when three cumulative conditions are fulfilled, i.e. reasonableness, objectivity and proportionality to achieve a legitimate aim.590

This is reflected in the Human Rights Committee's General Comment No 15591 with regard to the ICCPR, and also in the ECtHR's ruling in *Belgian Linguistics* with respect to the ECHR. According to the latter,

584 See James C Hathaway, *The Rights of Refugees Under International Law*2 , 265ff.

585 See Christoph Grabenwarter and Katharina Pabel, *Europäische Menschenrechtskonvention: Ein Studienbuch* (CH Beck/Helbig Lichtenhahn Verlag/Manz 6th ed 2016) 627, para 1.

586 See *The Church of Jesus Christ of Latter-Day Saints v Great Britain* App No 7552/09 (ECtHR 28 March 2014) para 30.

587 See Council of Europe, 'Chart of signatures and ratifications of Treaty 177' (as of 10 July 2022) <https://www.coe.int/en/web/conventions/full-list/-/conventions /treaty/177/signatures?p\_auth=Zn0fdiIA> accessed 10 July 2022.

588 See Tom de Boer and Marjoleine Zieck, 'The Legal Abyss of Discretion in the Resettlement of Refugees: Cherry-Picking and the Lack of Due Process in the EU' in (2020) 32 International Journal of Refugee Law 1, 54 (79, 81).

589 Nikolaos Sitaopoulos, 'Why International Migration Law Does not Give a License to Discriminate' (*EJIL: Talk!*, 20 May 2015) <https://www.ejiltalk.org/wh y-international-migration-law-does-not-give-a-license-to-discriminate/> accessed 20 February 2021.

590 See Vincent Chetail, *International Migration Law*, 148.

591 See OHCHR, 'CCPR General Comment No 15: The position of aliens under the Covenant', UN Doc HRI/GEN/1/Rev1 (11 April 1986) <https://www.refworl d.org/docid/45139acfc.html> accessed 20 February 2021.

a violation of the principle of equality could be assumed if a "*distinction has no objective or reasonable justification*".592 Even earlier, the issue reached the ICJ. Judge *Tanaka* highlighted in his Dissenting Opinion in *South West Africa (Second Phase)* that equality does not exclude differentiation.593

When it comes to differential treatment on the basis of race, such distinction has special significance under international law authorities and has crystallized as discrimination *per se* under customary international law.594 In this vein, the ECtHR found no objective justification for differential treatment based exclusively (or to a decisive extent) on race or ethnicity in a contemporary democratic society.595 The Human Rights Committee applied a similar standard.596

Nationality constitutes another frequent source of discrimination among and between (groups of) refugees. This is particularly relevant where resettlement or humanitarian admission programs only apply to forced migrants with a certain nationality or are geographically restricted (such tendencies have been evident, for example, in the course of the Russian invasion of Ukraine).597 As opposed to national origin, nationality is not an enumerated ground in Art 2 ICCPR, but Contracting States must nonetheless base justification of differential treatment on grounds

592 "*Relating to certain aspects of the laws on the use of languages in education in Belgium" v Belgium* App No 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64 (ECtHR 23 July 1968) 30f, para 10.

593 See *South West Africa, Second Phase* (Dissenting Opinion of Judge Tanaka) [1966] ICJ Rep 250.

594 See William A Schabas, *The Customary International Law of Human Rights* (Oxford University Press 2021) Chapter 5, 161ff.

595 See *Timishev v Russia* App No 55762/00 and 55974/00 (ECtHR 13 December 2005) para 58; *DH and Others v Czech Republic* App No 57325/00 (ECtHR 13 November 2007) para 176.

596 The Committee found identity checks for the purposes of immigration control to be discriminatory because "*racial characteristics*" were the "*decisive factor*". See OHCHR, 'Communication No 1493/2006: Lecraft v Spain', UN Doc CCPR/C/96/D/1493/2006 (17 August 2009) para 7.4 <https://documents-dds-n y.un.org/doc/UNDOC/GEN/G09/442/84/PDF/G0944284.pdf?OpenElement> accessed 10 July 2022.

597 See Janine Prantl and Ian Kysel, 'Generous, but Equal Treatment? Anti-Discrimination Duties of States Hosting Refugees Fleeing Ukraine' (*EJIL: Talk!*, 2 May 2022) <https://www.ejiltalk.org/generous-but-equal-treatment-anti-discriminatio n-duties-of-states-hosting-refugees-fleeing-ukraine/> accessed 10 July 2022.

of nationality or citizenship on reasonable and objective criteria.598 The ECtHR has underscored repeatedly that only "*very weighty reasons*" could justify such differential treatment.599

In point of fact, states have invoked distinctions to justify unequal treatment between foreigners and their own nationals.600 Specifically, with regard to Art 26 ICCPR, the Human Rights Committee has accepted categorical distinctions such as citizenship as an inherently reasonable basis upon which individuals may be treated differently.601 In this context, *Hathaway* pointed out that "*non-discrimination law has not yet evolved to the point that refugees and other non-citizens can safely assume that it will provide a sufficient answer to the failure to grant them rights on par with citizens*".602 Prominent examples of rights restricted to citizens are access to public services and the right to take part in elections and referendums (Art 25 ICCPR).603 Inequalities, e.g., in the form of limited political participation, evidently impede integration.604

There are a few indications in EU law accounting for the link between the integration of foreigners and equal treatment with nationals. The Directive concerning the status of non-EU nationals who are long-term residents (Long-term Residents Directive)605 provides for equal treatment with nationals in certain areas, such as access to employment and self-employed activity; education and vocational training; core benefits of social assistance; and access to goods and services (see Art 11 Long-term Residents Directive).

598 OHCHR, 'Communication No 196/1985: Gueye v France' (1989) para 9.4 <http://hrlibrary.umn.edu/undocs/session35/196-1985.html> accessed 10 July 2022.

599 See *Gayusuz v Austria* App No 17371/90 (ECtHR 16 September 1996) para 42; *Koua Poirrez v France* App No 40892/98 (ECtHR 30 December 2003) para 46; *Andrejeva v Latvia* App No 55707/00 (ECtHR 18 February 2009) para 87.

600 See OHCHR, 'General Comment No 18: Non-discrimination', UN Doc HRI/GEN/1/Rev9 (Vol I) (10 November 1989) para 8 <https://www.refworld .org/docid/453883fa8.html> accessed 20 February 2021.

601 See ibid para 8.

602 James C Hathaway, *The Rights of Refugees Under International Law*2 , 265.

603 See Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 524.

604 See Kiran Banerjee, 'Rethinking the Global Governance of International Protection' in (2018) 56 Columbia Journal of Transnational Law, 313 (321).

605 See Directive 2003/109 (EC) concerning the status of third-country nationals who are long-term residents [2004] OJ L16/44 amended by Directive 2011/51/EU [2011] OJ L132/1.

### Refugee law <IP_ADDRESS>

Under international refugee law, Art 3 of the Refugee Convention constitutes the pivotal provision on non-discrimination. It states that "[t]*he Contracting States shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin*".

With respect to discrimination among refugees, Art 3 Refugee Convention does not contain a general prohibition of discrimination between refugees, meaning that refugee law offers limited protection in this regard. It is therefore described as overridden by international human rights, particularly by Art 26 ICCPR.606

Still, Art 3 of the Refugee Convention deserves consideration as it sets a specific threshold in terms of reasonableness. This threshold makes it more difficult for Contracting States to objectively justify differential treatment whenever the subject matter of a differentiation between or among (groups of) refugees is a right expressly guaranteed under the Refugee Convention, since "*these are rights that are explicitly intended to inhere in persons who are refugees simply because they are refugees*".607 It follows that Contracting States have scarce reasons to justify differential protection of some part of the refugee population.

In terms of equal treatment between refugees and nationals, the UN-HCR resettlement definition emphasizes that resettled refugees should have access to rights *similar* to those enjoyed by nationals. The term 'similar' must be distinguished from 'same'. In fact, there is only a limited number of Convention rights demanding the *same* treatment as nationals; for instance, Art 22 para 1 Refugee Convention states that "[t]*he Contracting States shall accord to refugees the same treatment as is accorded to nationals with respect to elementary education*". At a minimum, Convention States must treat refugees equally in areas where they are obliged to do so.608

#### Concluding remarks <IP_ADDRESS>

Human rights law offers refugees protection in cases where they are discriminated against by other refugees, which is relevant, among others, in

606 See James C Hathaway, *The Rights of Refugees Under International Law*2 , 276.

607 Ibid 289 (emphasis as in original).

608 See Elena Andreevska, 'The Legal Protection of Refugee: Western Balkanas' in (2016) 23 Lex ET Scientia International Journal 2, 85 (88).

the resettlement selection process and with regard to the legal status of resettlement beneficiaries in the receiving country. Concerning discrimination between refugees and nationals of the receiving country, there is, however, no comprehensive protection provided by human rights law. Also, the Refugee Convention does not account for equal treatment between refugees and nationals in a comprehensive manner since only a few rights in this Convention require such treatment. Overall, the lack of equal treatment between resettled refugees and nationals impacts the integration process since the resettled refugees may face substantial hurdles due to the prioritization of nationals – even if the refugees have already obtained long-term residence status.

### Reception conditions 3.3.5

The rights analyzed in the following concern the legal status of resettlement beneficiaries after the resettlement selection process. The listed human rights treaties as well as the Refugee Convention oblige receiving countries to grant resettlement beneficiaries specific rights and liberties upon arrival on their territory, which must be reflected in corresponding reception conditions. For the purpose of this analysis, the term 'reception conditions' refers to the full set of measures that a receiving country must grant to a resettlement beneficiary to establish a situation that complies with international human rights and refugee law.609

609 Under EU law 'reception conditions' are defined as follows: "*The full set of measures that EU Member States grant to applicants for international protection*" (emphasis as in original), see Art 2 lit f Directive 2013/33 (EU) laying down standards for the reception of applicants for international protection [2013] OJ L180/96-116 (Recast Reception Conditions Directive); see also European Migration Network, 'Asylum and Migration Glossary 7.0' (July 2020) <https:// ec.europa.eu/home-affairs/what-we-do/networks/european\_migration\_netwo rk/glossary\_search/reception-conditions\_en> accessed 3 July 2021; definition of 'material reception conditions': "*The reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, or a combination of the three, and a daily expenses allowance*", see Art 2 lit g of Recast Reception Conditions Directive; see also European Migration Network, 'Asylum and Migration Glossary 7.0' (July 2020) <https://ec.europa.eu/home-aff airs/what-we-do/networks/european\_migration\_network/glossary\_search/materi al-reception-conditions\_en> accessed 3 July 2021.

#### Human rights <IP_ADDRESS>

A Contracting State must grant rights under the aforementioned universal human rights treaties and the ECHR to all individuals as soon as it exercises jurisdiction (see 3.2.1). Resettlement beneficiaries are subject to the jurisdiction of the receiving country when present on the territory of this country. This means that upon arrival of a resettlement beneficiary on a receiving country's territory, the respective human rights treaties apply. This includes economic, social and cultural rights, covering areas such as health, work, education, housing – and more.

Some of these rights set out territorial requirements in addition to jurisdiction. For instance, Art 12 ICCPR affords freedom of movement and the choice of residence only to individuals lawfully on the territory of a Contracting State.610 "*The question whether an alien is 'lawfully' within the territory of a state is a matter governed by domestic law*".611 The admission of a resettlement beneficiary arriving on the territory of a receiving country is usually linked to a legal basis under the domestic law of this country. Not all receiving countries explicitly refer to resettlement in their national laws, but by admitting resettlement refugees, they regularly grant them a status grounded in national immigration law. Thus, in the general case, resettlement beneficiaries fulfill the requirement of being lawfully within the territory of the receiving country. Consequently, receiving countries must grant the rights under Art 12 ICCPR to resettlement beneficiaries once they arrive on their territory. In practical terms, this has significant implications; if receiving countries condition resettlement beneficiaries to a particular location in the initial phase, they must justify such interference with Art 12 ICCPR accordingly.

Furthermore, the CRC deserves discussion in this context. Receiving countries who are Contracting States to the CRC must uphold the rights of a child when dealing with unaccompanied and separated children outside their countries of origin (subject to the condition that they exercise jurisdiction; see Art 2 CRC). In terms of reception conditions, the follow-

610 See Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 523.

611 OHCHR, 'General Comment No 27: Article 12 (Freedom of Movement)', UN Doc CCPR/C/21/Rev1/Add9 (2 November 1999) para 4; see Sarah Joseph and Melissa Castan, *The International Covenant on Civil and Politcal Rights: Cases, Materials and Commentary* (Oxford University Press 3rd ed 2013) 397, para 12.13.

ing obligations under the CRC are particularly relevant: Arts 20612 and 22 CRC613 account for special protection and assistance as well as alternative care for unaccompanied or separated children permanently deprived of their family environment, including those outside their home country.614 Furthermore, under Arts 28, 29 para 1 lit c, 30 and 32 CRC, Contracting States are obligated to ensure access to education during all phases of the displacement cycle.615 Additionally, Art 27 CRC sets out a right to an adequate standard of living, "*particularly with regard to nutrition, clothing and housing*".616 Besides, Arts 23, 24 and 39 CRC grant health care protection.

Moreover, when receiving female resettlement beneficiaries, Contracting States to the CEDAW must ensure that the women find themselves in conditions compliant with that Convention. Among others, Contracting States must grant female resettlement beneficiaries equal access to rights like education (Art 10 CEDAW), employment (Art 11 CEDAW), health (Art 12 CEDAW), economic and social benefits (Art 13 CEDAW).

Besides children and women, disabled persons are entitled to special protections, as receiving countries who are Contracting Parties to the UNCRPD face additional obligations under this Treaty. Importantly, the UNCRPD obliges receiving countries to provide reasonable accommodation that accounts for disability-specific needs. Further disability-specific obligations exist, among others, with regard to personal mobility (Art 20 UNCRPD), education (Art 24 UNCRPD), health (Art 25 UNCRPD), habilitation (Art 26 UNCRPD), as well as work and employment (Art 27 UNCRPD). The UNCRPD is even more important against the backdrop

612 "*A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State*."

613 "*States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties*."

614 See Committee on the Rights of the Child, 'General Comment No 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin' (1 September 2006) 13f, paras 39f.

615 See ibid 14, para 41. Ibid 14, para 42: "*The unaccompanied or separated child should be registered with appropriate school authorities as soon as possible and get assistance in maximizing leaning opportunities*".

616 Ibid 15, para 44.

that, besides provisions for access to social security (Art 24 para 1 lit b), the Refugee Convention and its *travaux préparatoires* provide little guidance on disability-sensitive interpretation of refugee law.617

In addition, from an EU law perspective, EUMS face obligations under the Charter when implementing EU law. Particularly worthy consideration in terms of reception conditions and assistance for resettlement beneficiaries are, amongst others, the right to liberty (Art 6 Charter), the right to education (Art 14 Charter), the freedom to choose an occupation and the right to engage in work (Art 15 Charter), the freedom to conduct a business (Art 16 Charter) and the right to social security and social assistance (Art 34 Charter).

#### Refugee law <IP_ADDRESS>

Most of the rights under the Refugee Convention demand a further qualification, namely some kind of (legal) relationship to the Contracting State. For example, this is the case for Arts 21 (housing) and 26 (freedom of movement) Refugee Convention. Art 21 Refugee Convention requires lawful stay and Art 26 Refugee Convention demands lawful presence of a refugee on the territory of the receiving country.

According to the prevailing opinion, *lawful stay* can be established through temporary residence status, unless it is not merely a temporary visit.618 As such, it lies in the very nature of resettlement that resettlement refugees are more than just temporary visitors or refugees in transit. They enter the territory of a receiving country as a consequence of an arranged and controlled transfer, with a view of finding a durable solution to their forced displacement there. It can therefore be deduced that, by definition, resettlement ought to provide a durable solution for refugees.

617 See Clara Straimer, 'Vulnerable or invisible? asylum seekers with disabilities in Europe', Research Paper No 194 (November 2010) 1 <https://www.unhcr.org/4 cd9765b9.pdf> accessed 21 June 2021; see also Mary Crock, Laura Smith-Kahn, Ron McCallum and Ben Saul, *The Legal Protection of Refugees with Disabilities, Forgotten and Invisible?* (Elgar Publishing 2017).

618 See Scott Leckie and Ezekiel Simperingham in Andreas Zimmermann (ed), *The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol* (Oxford University Press 2011) Art 21 Refugee Convention, paras 45-47.

In terms of *lawful presence*, Art 26 Refugee Convention applies to "*refugees who were admitted to the country*".619 Lawful presence must be distinguished from lawful stay in the sense that the former implies admission under national immigration law. Such admission is given in the case of resettlement refugees, who are selected and admitted by receiving countries' authorities based on criteria established under national immigration law.

It results that the required levels of attachment, *lawful stay* as well as *lawful presence*, can be met directly upon arrival of resettlement refugees in a receiving country. Thus, even in the initial period upon arrival, receiving countries' interference in refugee rights whose application depends on such a level (or an even lower level) of attachment requires justification.

### Concluding remarks <IP_ADDRESS>

Universal and European human rights treaties set out rights and liberties that a receiving country must grant to resettlement beneficiaries as soon as they arrive on this country's territory. The application of most rights under the Refugee Convention hinges upon a certain level of attachment to the receiving country, whereas it has been shown that resettlement beneficiaries likely fulfill the requirements of *lawful stay* and *lawful presence*  immediately upon arrival on the territory of the receiving country.

### Naturalization 3.3.6

The UNHCR definition of resettlement highlights the "*opportunity to eventually become a naturalized citizen of the resettlement country*".620 The following question then arises: does the outlined human rights framework and/or the Refugee Convention oblige receiving countries to provide resettlement beneficiaries access to citizenship?

619 Reinhard Marx in Andreas Zimmermann (ed), *The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol* (Oxford University Press 2011) Art 26 Refugee Convention, para 45.

620 Delphine Perrin and Frank McNamara, 'Refugee Resettlement in the EU: Between Shared Standards and Diversity in Legal and Policy Frames', KNOW RESET Research Report 2013/03, 22.

### Human rights <IP_ADDRESS>

Art 15 UDHR sets out that "[e]*veryone has the right to a nationality*" and "[n]*o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality*". As such, the UDHR does not directly create legal obligations for receiving countries, but, for example, the African Court on Human and Peoples' Rights accepted the customary international law nature of Art 15 UDHR.621 Still, international (human rights) law does not expressly provide for the right to acquire a *particular* nationality, and does not set out specific criteria for the granting of citizenship.622 The Human Rights Committee clearly asserted "*that neither the Covenant nor international law in general spells out specific criteria for the granting of citizenship through naturalization*".623 At the same time, the Committee stressed that the principle of equal protection under Art 26 ICCPR implied the prohibition of a denial of citizenship on arbitrary grounds. States may nonetheless refuse citizenship if their decision is based on legitimate grounds, such as national security reasons, even if this entails that the person concerned remains stateless.624

In turn, cases of statelessness are particularly protected through the Convention on the Reduction of Statelessness of 30 August 1961. Under this Convention, Contracting States must grant nationality to persons born on their territory. The Convention also regulates the conditions on

621 See African Court on Human and Peoples' Rights, *Robert John Penessis v United Republic of Tanzania* (Judgement) App No 013/2015 (28 November 2019) para 85, which established that the UDHR is part of customary international law, in particular Article 15 on the right to a nationality; see also IACtHR, Advisory Opinion OC-4/84 *Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica* (January 1984) <https://www.refworld.org/cases,IAC RTHR,44e492b74.html> accessed 17 August 2022; ibid para 32: "*It is generally accepted today that nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual's legal capacity.*"

622 See Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 535.

623 OHCHR, 'Communication No 1136/2002: Bozov v Estonia', UN Doc CCPR/C/81/D/1136/2002 (25 August 2004) para 7.4 <http://hrlibrary.umn.ed u/undocs/html/1136-2002.html> accessed 21 February 2021.

624 See ibid para 7.4; see also Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 537.

which nationality should be granted in other cases.625 Moreover, the CRC contains a provision that aims at preventing children from statelessness. Its Art 7 states that "[t]*he child shall be registered immediately after birth and shall have* […] *the right to acquire a nationality*".

At the European level, Art 6 para 4 lit g European Convention on Nationality626 stipulates that each state party shall "*facilitate in its internal law the acquisition of its nationality for* […] *stateless persons and recognized refugees lawfully and habitually resident on its territory*". However, this is only an obligation to *facilitate* the acquisition of citizenship, rather than to *grant*  citizenship. Likewise, the ECtHR made clear that "*a 'right to nationality'*  […] *or a right to acquire or retain a particular nationality, is not guaranteed by the Convention or its Protocols*".627

Overall, international and European human rights law does not prevent receiving countries from refusing naturalization of a resettlement beneficiary, unless the decision relies on arbitrary grounds. It results from the interpretation of the Human Rights Committee that a decision is arbitrary if it is discriminatory. A duty to consider equal protection when granting citizenship is also reflected, e.g. in Art 9 para 1 CEDAW, stating that "*States Parties shall grant women equal rights with men to acquire, change or retain their nationality*". It follows that discriminatory citizenship rules are prohibited under international human rights law.

### Refugee law <IP_ADDRESS>

Art 34 Refugee Convention stipulates that "[t]*he Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings*". Similar to the aforementioned Art 6 para 4 lit g European Convention on Nationality, this Article sets out an obligation to *facilitate* assimilation and naturalization of refugees but not to *grant* naturalization. The duties under Art 34 Refugee Convention are described as being "*minimalist*".628 Still, a

625 See Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175; see Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 537.

626 See European Convention on Nationality (signed 6 November 1997, entered into force 1 March 2000) ETS No 166.

627 See *Petropavlovskis v Latvia* App No 44230/06 (ECtHR 13 January 2015) para 73.

628 See James C Hathaway, *The Rights of Refugees Under International Law*2 , 1219.

Contracting State would violate this Article if it refused to provide cogent reasons for denying a refugee access to citizenship. *Grahl-Madsen* pointed out that the wording of Art 34 Refugee Convention ("*shall*") made it clear that this Article imposed a duty on the Contracting States, as opposed to a mere recommendation.629 In line with this, *Hathaway* purported that it was incumbent upon Contracting States "*at the very least, to provide a good faith justification for the formal or de facto exclusion of refugees from naturalization*".630

### Concluding remarks <IP_ADDRESS>

In conclusion, there is no international obligation for receiving countries to grant citizenship to resettlement beneficiaries. Still, they must not arbitrarily refuse to naturalize resettlement beneficiaries by discriminating them against others. Furthermore, a child of a resettlement beneficiary born on the receiving country's territory has the "*right to acquire a nationality*" under Art 7 CRC. If no other citizenship comes into consideration, the child would most likely acquire the nationality of the receiving country.

### Preliminary conclusion 3.3.7

The analysis of the outlined rights in the respective human rights treaties and the Refugee Convention demonstrated that receiving countries must comply with a firm set of obligations when engaging in resettlement operations.

First, when receiving countries select resettlement beneficiaries on foreign territory, they should consider the principle of *non-refoulement*. There can be exceptional situations where potential resettlement beneficiaries are under their jurisdiction – even in the course of extraterritorial action, and the analyzed implicit and explicit *non-refoulement* provisions allow

629 See Atle Grahl-Madsen, *Commentary on the Refugee Convention 1951: Articles 2-11, 13-37* (Division of International Protection of the UNHCR 1997) Art 34 Refugee Convention, para 2 <https://www.unhcr.org/3d4ab5fb9.pdf> accessed 21 February 2021; see also UNHCR, 'Comments by the United Nations High Commissioner for Refugees (UNHCR) to the Legislative Proposal amending the Citizenship Law', Nr 52/ Lp11 (August 2012)' <https://www.refworld.org/pd fid/57ed07954.pdf> accessed 24 July 2021.

630 James C Hathaway, *The Rights of Refugees Under International Law*2 , 1219.

for interpretation in favor of extraterritorial obligations where receiving countries exercise jurisdiction.

Besides, when receiving countries implement their resettlement policies in cooperation with countries of (first) refuge, both countries must respect the right to leave of the potential resettlement beneficiaries under their jurisdiction, as this right is acknowledged as independent right in international and European human rights law. There is, however, no right to asylum under international human rights and refugee law that potential resettlement beneficiaries could effectively invoke against receiving countries.631

When potential resettlement beneficiaries receive a negative selection decision, they can only rely on their right to an effective review under the ICCPR and the ECHR when there is a claim of violation of rights under the respective Treaty, e.g., this concerns human rights abuses that might occur during the interview process as well as procedural guarantees. The Refugee Convention grants any refugee access to courts in all Contracting States, but refugees are limited to the judicial remedies available under the respective domestic law.

In addition, throughout the resettlement process, resettlement beneficiaries are protected from discrimination by other resettlement beneficiaries and groups of (forced) migrants under general human rights law. The Refugee Convention does not impose a general obligation to equal treatment among refugees, and also not between refugees and nationals of the receiving country.

As soon as resettlement beneficiaries arrive on the receiving country's territory, universal and European human rights treaties as well as the Refugee Convention grant certain rights and liberties that must be reflected in the reception conditions for resettlement beneficiaries on the territory of the receiving country.

Ultimately, receiving countries must not arbitrarily refuse to naturalize resettlement beneficiaries by discriminating them against others.

631 Iris G Lange and Boldizsár Nagy, 'External Border Control Techniques in the EU as a Challenge to the Prnciple of Non-Refoulement' in (2021) European Constitutional Law Review, 1 (6).

### *Responsibility for internationally wrongful conduct in relation to resettlement policies 3.4*

Receiving countries face several obligations under international and European human rights law and international refugee law towards (potential) resettlement beneficiaries. These obligations may arise outside the territory of a receiving country through the exercise of jurisdiction during selection missions or upon arrival of the selected beneficiaries on the receiving country's territory. Breaches of international obligations by receiving countries constitute internationally wrongful conduct, for which the respective country shall bear responsibility. In connection thereto, two legal questions concerning the responsibility for breaches of international law arise: First, what are the requirements to hold the prospective receiving country responsible for its internationally wrongful conduct? Second, are there circumstances where the prospective receiving country incurs responsibility for or in connection with internationally wrongful conduct of other (state) actors involved?632

The International Law Commission (ILC) codified rules dealing with state responsibility for internationally wrongful conduct. The so-called Articles on Responsibility of States for Internationally Wrongful Acts (AR-SIWA)633 lack binding effect as a treaty.634 Nevertheless, the generalized concept of state responsibility has reached the status of customary international law.635

632 See Annick Pijnenburg, 'Containment Instead of *Refoulement*: Shifting State Responsibility in the Age of Cooperative Migration Control' in (2020) Human Rights Law Review, 327f.

633 See ILC, 'Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries' (adopted November 2001, ARSIWA Commentary 2001) <http://legal.un.org/ilc/texts/instruments/english/commentaries/9\_6\_200 1.pdf> accessed 21 February 2021; see also James Crawford, *State Responsibility: The General Part* (Cambridge University Press 2013) 45; see also Milka Dimitrovska, 'The Concept of International Responsibility of State in the International Public Law System' in (2015) 1 Journal of Liberty and International Affairs 2, 1 (2).

634 The draft has been recognized by the United Nation's General Assembly in Resolution 56/83. However, the draft itself remains only a means for determining the law but not a source of international law in the sense of Art 38 Statute of the International Court of Justice.

635 See Ilias Bantekas and Lutz Oette, *International Human Rights Law and Practice*  (Cambridge University Press 3rd ed 2020) 93; see also James Crawford, 'The ILC's Articles on Responsibility of States for Internationally Wrongful Acts: A Retrospect' in (2002) 96 American Journal of International Law 4, 874 (889f);

Art 1 ARSIWA introduces the essential premise that "[e]*very internationally wrongful act of a State entails the international responsibility of that State*". Accordingly, a state can be held internationally responsible for conduct that (i) is attributable to the state and (ii) constitutes a breach of an international law obligation, (iii) provided that there is no reason precluding unlawfulness.636

Attribution comes with conduct, which forms an umbrella term for acts and omissions.637 A state or international organization is responsible for the conduct of its own organs or agents. Additionally, some occasions require the attribution of the conduct of organs or agents of other states, international organizations, NGOs or private actors. There are also situations of so-called dual attribution, where one single conduct is, amongst others, simultaneously attributed to a state and an international organization (see <IP_ADDRESS>). Eventually, derivative responsibility comprises circumstances where responsibility only arises by dint of a connection with the conduct of another state (see 3.4.1) or international organization (see <IP_ADDRESS>).638

The following section assesses whether and how international responsibility of a prospective receiving country can be triggered by the conduct of other states, most prominently the country of (first) refuge, international organizations such as the EU, or the UNHCR as a subsidiary organ of the UN, or other non-state actors involved in the resettlement (selection) process.

### Responsibility for complicity with the country of (first) refuge 3.4.1

Given recent policy trends of externalized migration control,639 it is not unusual that receiving countries promise resettlement but in fact prevent

see also *Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)* [2007] ICJ Rep 43 (160, para 379): The ICJ referred to "*the rules of customary international law of State responsibility*".

636 See James Crawford, *State Responsibility: The General Part*, 49.

637 See Stian Øby Johansen, 'Dual Attribution of Conduct to both an International Organization and a Member State' in (2019) 6 Oslo Law Review 3, 178 (181).

638 See ibid 182.

639 See Bill Frelick, Ian M Kysel and Jennifer Podkul, 'The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants' in (2016) 4 Journal on Migration and Security 4, 190-220 <https://ww w.hrw.org/sites/default/files/supporting\_resources/jmhs.pdf> accessed 21 June 2021.

potential resettlement beneficiaries from leaving countries of (first) refuge, inflicting […] on their rights, most prominently (but not only) the right to leave. As the implementation of such policies is generally based on close cooperation with selected countries of (first) refuge, they may be complicit in internationally wrongful conduct of those countries of (first) refuge. To that effect, the ARSIWA cover instances of derivative responsibility, i.e. situations where states can be held responsible for their contribution to a breach of international law. Such contribution may take the form of aid or assistance (Art 16 ARSIWA), direction and control (Art 17 ARSIWA) or coercion of another state (Art 18 ARSIWA).

When it comes to cooperation for the purpose of migration control, responsibility triggered by aid or assistance demands special attention.640 According to Art 16 ARSIWA, a state is internationally responsible if it641

*aids or assists another State in the commission of an internationally wrongful act under the condition that it has (a) knowledge of the circumstances of the internationally wrongful act and (b) the act would be internationally wrongful if committed by that same state*.

The application of Art 16 ARSIWA in the context of resettlement operations induces, for example, international responsibility of the country of (first) refuge for a human rights violation, while the prospective receiving country incurs responsibility for its aid or assistance provided.642

First, the applicability of this Article depends on whether the conduct of the country of (first) refuge amounts to internationally wrongful conduct. As mentioned above, such internationally wrongful conduct may consist of a violation of the right to leave (see 3.3.2); but also other rights may be violated, for instance, the right to privacy (Art 17 ICCPR)643, when au-

640 See Fabiane Baxewanos in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), *Human rights and the dark side of globalisation: Transnational law enforcement and migration control*, 202.

641 Ibid 202.

642 See Annick Pijnenburg, 'Containment Instead of *Refoulement*: Shifting State Responsibility in the Age of Cooperative Migration Control' in (2020) Human Rights Law Review, 328.

643 In its General Comment No 16, the Human Rights Committee set out the requirement under Art 17 ICCPR that the integrity and confidentiality of correspondence should be guaranteed *de jure* and *de facto*; see OHCHR, 'General Comment No 16: Article 17 (Right to Privacy), The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation', UN Doc HRI/GEN/1/Rev9 (Vol I) (8 April 1988) para 8 <www.ref world.org/docid/453883f922.html> accessed 21 June 2021.

thorities of countries of (first) refuge track and/or collect data of migrants, sharing them without consent. Notably, the right to privacy is also a particular issue in the course of collaboration between receiving countries and the UNHCR, which is dealt with in 3.4.2.

Second, the prospective receiving country must have provided aid or assistance to the country of (first) refuge. In this context, the ARSIWA Commentary mentions, amongst others, providing an essential facility, or financing the activity in question.644 *Baxewanos* qualified acts such as "*advice, sponsoring police training, funding detention centers or providing surveillance equipment to third states*" as aid or assistance under Art 16 ARSIWA.645

In addition, a causal link must exist between the internationally wrongful conduct committed by the country of (first) refuge and the aid or assistance from the prospective receiving country. Prospective receiving countries indeed support countries of (first) refuge, among others, with surveillance equipment to prevent migrants from leaving the latter. For example, Spain "*provides equipment and training to partner states for border surveillance and enforcement, including the donation of seven patrol boats to Senegal and Mauritania*" 646 for the purpose of impeding irregular migration. In such cases, it must be shown that first, the country of (first) refuge violates, e.g. the right to leave by deterring the migrants, and second, that this breach is causally linked to the equipment and training provided by the prospective receiving country.

Essentially, Art 16 ARSIWA requires "*knowledge of the circumstances of the internationally wrongful act*", meaning that the assisting state must "*be aware of the circumstances making the conduct of the assisted State internationally wrongful*".647 In order to prove the wrongful intent of a prospective receiving country, it must be shown that this country had actual or nearcertain648 knowledge that the assistance will be used for unlawful purpose

644 See ILC, 'Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries' (ARSIWA Commentary 2001) Art 16 ARSIWA, para 1.

645 See Fabiane Baxewanos in Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen (eds), *Human rights and the dark side of globalisation: Transnational law enforcement and migration control*, 202.

646 Nikolas Feith Tan in Satvinder Singh Juss (ed), *Research Handbook on International Refugee Law*, 173.

647 See ILC, 'Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries' (ARSIWA Commentary 2001) Art 16 ARSIWA, para 4.

648 See James Crawford, *State Responsibility: The General Part*, 408.

by the country of (first) refuge.649 While the sufficiency of constructive knowledge ('should have known') has remained contested,650 the knowledge threshold under Art 16 ARSIWA can be met in situations of 'willful blindness', i.e. the "*deliberate effort by the assisting state to avoid knowledge of illegality on the part of the state being assisted, in the face of credible evidence of present or future illegality*".651 The presumption that an assisting state is turning a blind eye may strengthen over time if the breach continues and information becomes widespread.652 If a receiving country takes deliberate action to initiate and enter into arrangements with a country of (first) refuge, and conducts eligibility determination and vetting procedures there, valid arguments exist in favor of 'actual' knowledge about the circumstances in that country of (first) refuge. At least when officials are on site, the receiving country cannot simply turn a blind eye and deny its actual knowledge of ongoing human rights violations.

Eventually, Art 16 lit b ARSIWA demands that the main conduct would be internationally wrongful if committed by the prospective receiving country. The vast majority of states are bound by the rights established under the ICCPR, including, for instance, the above-mentioned right to leave, whereby the concrete obligations of a respective state must still be assessed in the particular case. Generally speaking, regarding the rights

covered by major human rights treaties, such as the ICCPR, this requirement is likely fulfilled.

As a result, migration control practices, which are often linked to unfulfilled resettlement promises, may lead to situations falling under the scope of Art 16 ARSIWA. On the basis of Art 16 ARSIWA, a prospective receiving country can be held responsible in connection with internationally wrongful conduct of a country of (first) refuge. This is subject to a certain knowledge threshold about the occurrence of the wrongful conduct653 of the country of (first) refuge. In this regard, it is hard to prove that a receiving country *knowingly* assisted the progress of a human rights violation. A receiving country pursuing such policy to control migratory influx could claim that the aid or assistance was intended to stabilize the situation on-site or support the regular migration system rather than to facilitate e.g., violations of the migrants' right to leave.

One specific example is human rights violations committed by the Libyan coast guards. Notably, EU collaboration with Libya has been part of the EU's external migration policy, based on the idea of strengthening external border control through the help of third countries and offering resettlement to the EU as an incentive (see 4.2.7). Instead of increasing their resettlement commitment, EUMS, in this case primarily Italy, have rendered support to the Libyan coast guards preventing departures and intercepting people.654 In terms of knowledge, *Moreno-Lax* pointed to the fact that malpractices of the Libyan coast guards were widely publicized (e.g. in EUNAVOR MED reports) when Italy donated patrol boats to the Libyan coast guards.655

What is more, derivative responsibility in connection with the conduct of another state could be relevant where the refugee resettlement selection process, including security screening and health checks, cannot be conducted in the country of (first) refuge. In such cases, the receiving country may need to reach out to another third country to conduct the necessary interviews and checks there. For example, this is pertinent in the context of Afghan mass displacement, namely US vetting procedures in so-called

653 ILC, 'Draft Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries' (ARSIWA Commentary 2001) Art 16 ARSIWA, para 5.

654 Amnesty International, 'Refugee Rights in 2018' (2018) <https://www.amnesty.o rg/en/latest/research/2018/12/rights-today-2018-refugees/> accessed 20 June 2021.

655 Violeta Moreno-Lax, 'The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, *SS and Others v Italy*, and the "Operational Model"' in (2020) German Law Journal, 385 (393).

'lily-pad countries' and other third countries.656 Already earlier in the past, the US established an agreement with the Austrian government to host Iranian refugees destined for the US while they undergo the necessary procedures.657 Assuming that the US exercises jurisdiction and violates fundamental rights (e.g. right to privacy in the context of data protection or misconduct by US officials) during the vetting processes on foreign territory, third countries who knowingly provide assistance, e.g. technical support or facilities, could incur derivative responsibility in connection with the violation of fundamental rights by the US.

### Responsibility for and in connection with international organizations 3.4.2

Besides the cooperation between prospective receiving countries and countries of (first) refuge, international organizations, most prominently the EU, and the UNHCR as a subsidiary organ of the UN, act as intermediaries. The EU and the UNHCR are involved in the resettlement (selection) process whenever prospective receiving countries transfer specific powers to them.658 Such empowerment can lead to situations where international organizations exercise those powers "*in violation of human rights that Member States have agreed to uphold*".659 International organizations have a separate international legal personality for the purpose of exercising the transferred powers. As a result, the acts of international organizations are in principle not attributable to their member states*.* 660 While prospective receiving countries and countries of (first) refuge are bound by human rights treaties and by customary international law, international organizations may not face the same obligations. Most human rights treaties even do not contain a provision allowing international organizations to become

656 See Janine Prantl, 'Afghan Mass Displacement: The American Response in Light of International Human Rights and Refugee Law, and the Need for International Cooperation to achieve a Satisfactory Solution' in (2022) ALJ, 17-46.

657 See Molli Fee, 'Pre-resettlement experiences: Iranians in Vienna' in (2017) 54 Forced Migration Review, 23.

658 See Thomas Gammeltoft-Hansen, *Access to asylum: international refugee law and the globalisation of migration control*, 188.

659 Olivier de Schutter, *International Human Rights Law: Cases, Materials, Commentary*, 262.

660 See ibid 262.

contracting parties. Nonetheless, there are a few exceptions to this general rule. For example, the EU ratified the UNCRPD.661 Furthermore, the Council of Europe Convention on preventing and combating violence against women (Istanbul Convention)662 provides for EU accession.663 Besides, the so far failed attempts of an EU accession to the ECHR,664 which originally intended only states as parties, deserve mention in this context.665

Beyond treaty law, international organizations face international obligations, namely under customary international law and derived from peremptory human rights.

First, customary international law can be extended to international organizations.666 The obligation of an international organization to comply with customary international law rules relevant to the fulfilment of its tasks implicitly derives from the organization's founding treaty. It can be assumed that the member states did not want to create an entity that is outside the international legal order. In addition, the international organization itself creates customary international law through its actions.667

Second, *Kälin* and *Künzli* deduced from Art 53 VCLT668 that international organizations are prohibited from violating peremptory human

661 See Council Decision 2010/48 (EC) concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities [2010] OJ L23/35-61.

662 See Council of Europe Convention on preventing and combating violence against women and domestic violence (entered into force 1 August 2014) CETS No 210.

663 The EU has already made attempts with regards to EU's accession to the Istanbul Convention, see Sara de Vido, 'The ratification of the Council of Europe Istanbul Convention by the EU: A step forward in the protection of women from violence in the European legal system' in (2017) 9 European Journal of Legal Studies 2, 69 (69ff).

664 See Opinion 2/13 *Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms* [2014] EU:C:2014:2454.

665 See Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 78.

666 See Albert Bleckmann, 'Zur Verbindlichkeit des allgemeinen Völkerrechts für internationale Organisationen' in (1977) 37 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 107 (120).

667 Kirsten Schmalenbach and Christoph Schreuer, 'Die Internationalen Organisationen' in August Reinisch (ed) *Österreichisches Handbuch des Völkerrechts* I (Manz 5th ed 2013) 220f, para 947.

668 "*A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a*

rights. Accordingly, if the founding treaty of the international organization conflicts with peremptory norms of international law, it becomes void. This means that "*the charter of an international organization cannot under any circumstances explicitly or implicitly permit its organs or agents to disregard peremptory human rights obligations*".669

As a matter of fact, the EU Treaties (see Art 3 para 5, Arts 6 and 21 Treaty on European Union, TEU670) and the EU Charter, as well as the UN Charter,671 expressly proclaim commitment to human rights. Consequently, it would not only be in conflict with Art 53 VCLT, but also fundamentally contradictory in itself if these Treaties authorized the EU or the UNHCR to permit their organs or agents to disrespect human rights with *jus cogens* status. As outlined above (see 3.3.1), *jus cogens* status can be assumed for the principle of *non-refoulement*, at least with regard to torture and inhuman or degrading treatment. In addition, several human rights recognized as customary international law672 are relevant to the EU and/or the UNHCR in fulfilling their tasks under the respective establishing treaties, and are thus binding upon them. To that effect, the EU and/or the UNHCR must bear responsibility for violations of human rights.

The Articles on Responsibility of International Organizations (ARIO)673 , namely Arts 6 to 9 therein, provide a framework for holding an international organization responsible for the conduct of its organs or agents. Specifically, Art 6 para 1 ARIO states that "[t]*he conduct of an organ or agent of an international organization in the performance of functions of that organ*

*peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character*."

669 Walter Kälin and Jörg Künzli, *The Law of International Human Rights Protection*, 79.

670 See Consolidated version of the Treaty on European Union [2012] OJ C326/13-390.

671 According to Art 1 para 3 UN Charter, one of the purposes of the United Nations is "[t]*o achieve international co-operation in* […] *promoting and encouraging respect for human rights and for fundamental freedoms for all* […]".

672 See e.g., Michael Wood, 'Customary international law and human rights' (Working Paper EUI 2016) <https://cadmus.eui.eu/handle/1814/44445> accessed 10 July 2021.

673 See ILC, Draft Articles on Responsibility of International Organizations (adopted 2011) <http://legal.un.org/ilc/texts/instruments/english/draft\_articles/9\_11\_ 2011.pdf> accessed 21 February 2021; see also Olivier de Schutter, *International Human Rights Law: Cases, Materials, Commentary*, 270.

*or agent shall be considered an act of that organization under international law, whatever position the organ or agent holds in respect of the organization*".

In terms of EU involvement in EUMS' resettlement operations, the staff of EU agencies constitute relevant agents whose conduct is attributable to the EU (for a discussion on accountability mechanisms for EU agencies see 4.3.3).

Regarding UNHCR's role in the resettlement (selection) process, UN-HCR's staff and the staff of its implementing partners serve as potential agents. Especially, the attribution of the latter to the UNHCR has proven to be a controversial issue.674 For instance, *Janmyr* raised arguments in favor of attributing the staff of implementing partners to the UNHCR*.* 675 She argued that considering the staff of UNHCR's implementing partners as agents of the UNHCR was in line with the core understanding of 'agent' under the ARIO. The meaning of agent under the ARIO can in turn be deduced from the ICJ676 defining 'agent' as follows:677