Internationally binding norms in international law limit the freedom of action of the signatory states in dealing with persons in need of protection.
These principles have a considerable influence on asylum legislation and asylum practices – also in Switzerland. The most important agreements under international law pertaining to asylum are the ones discussed below.
Geneva Convention relating to the Status of Refugees (Geneva Refugee Convention (GRC))
The Convention relating to the Status of Refugees was signed on 28 July 1951 to legally regulate the response to refugees from the Second World War in Europe. The convention was supplemented in New York in 1967 by the Protocol Related to the Status of Refugees (1967 Protocol). After that, it also related temporally to events after 1951 and geographically to refugees outside Europe. Switzerland was a signatory of the convention and the protocol.
147 signatory countries
In everyday parlance, the agreement in the form of the 1967 Protocol is designated as the “Geneva Refugee Convention”. 147 more states are signatories to the Geneva Refugee Convention.
Most important instrument for the protection of refugees
This convention under international law is the most important international instrument. The term “refugee” is based on the Geneva Refugee Convention. It guarantees refugees a minimum of rights in the country where they seek protection.
Principle of non-refoulement
The ban on refoulement, usually known as the principle of non-refoulement, is anchored in the Geneva Refugee Convention. It says:
“No person may be forced in any way to return to a country where their life, physical integrity or freedom are threatened on any of the grounds stated in Article 3 paragraph 1 or where they would be at risk of being forced to return to such a country.”
European Convention on Human Rights (ECHR)
The Council of Europe adopted the European Convention on Human Rights in 1953 with the horrors of the Second World War still fresh in their minds. Today it is one of the most important documents for the protection of human rights.
Incorporation in the Swiss Federal Constitution
Switzerland signed the convention in 1974 and also transposed five additional protocols of the ECHR into national law. The convention is therefore anchored in the Swiss Federal Constitution of 1999 (Art. 7 bis 34).
THE ECHR contains several provisions of special significance for Swiss asylum law:
- Art. 3 ECHR – Prohibition of torture and of inhuman or degrading treatment (in its invariable practice, the European Court of Human Rights has derived the principle of non-refoulement from this prohibition since 1989);
- Art. 5 ECHR – Provisions on detention;
- Art. 8 ECHR – Provisions on the right to respect for private and family life; and
- Art. 13 ECHR – Right to an effective remedy.
United Nations Convention against Torture (CAT)
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture (CAT) is significant for asylum law due to the ban on refoulement where a person is in danger of being subjected to torture (Art. 3 Convention Against Torture).
United Nations Convention on the Rights of the Child (CRC)
To date, there are 194 state parties to the Convention on the Rights of the Child. Switzerland is one of them. Three provisions are relevant for asylum law:
- Art. 3 CRC – General consideration of the child’s best interests;
- Art. 22 CRC – Granting of protection and humanitarian aid for asylum seeking children; and
- Art. 37 CRC – Legal guarantees if a child is deprived of his or her liberty.
In practice, the child’s best interests are given high priority, for instance, as regards accommodation or when the authorities examine obstacles to removal. If a child has strong roots in Switzerland and is well-integrated, this fact can be crucial for rendering removal impermissible.
International Covenant on Civil and Political Rights (ICCPR)
This UN covenant on Civil and Political Rights dated 16 December 1966 went into force for Switzerland on 18 September 1992 and is a significant universal human rights instrument. It contains guarantees on classic human rights and fundamental freedoms and is relevant for asylum in that it includes a ban on torture and cruel, inhuman or degrading treatment or punishment (Art. 7).