Mackuliaková, Michaela: International Obligations in the European Asylum System in the context of the M.S.S. v. Belgium and Greece Case Law


This article analyzes the landmark judgement of the European Court of Human Rights and its implications on the Common European Asylum System (CEAS). The Court ruled that both Belgium and Greece were in breach with the Articles 3 and Articles 13 of the European Convention of Human Rights. Belgium applied the law of the European Union to determine that it is another Member State which is competent to proceed an asylum application of an Afghan applicant and decided to transfer him back to Greece, the country, where he irregularly entered the territory of the European Union. The Court expressed the opinion that Belgium, as a Contracting State of the 1951 Geneva Convention relating to the Status of Refugees, had an obligation to act in compliance with the principle of non-refoulement expressed in the Article 33 of this Convention. The presumption that all the Member States implemented the European Union asylum law is rebuttable, which means that the transferring Member State should verify the reception conditions in order to not to violate Article 3 of the European Convention on Human Rights and the principle of non-refoulment. If the conditions are not satisfying to that measure, that the guaranteed human rights would be violated, the State is obliged to use the sovereignty clause in order to avoid the competence criteria and let the applicant to apply for asylum without transferring him or her. This way the Court corrected the application of the EU law and reminded, that acting in compliance with it does not automatically mean the compliance with the obligations contracted within the scope of international public law.