Prieglobsčio teisės raidos po Amsterdamo sutarties probleminiai aspektai

Abstract

Transfer of asylum matters under the Community competence by the Amsterdam Treaty meant the adoption of new, Community legislation of a binding nature, to replace the Maatricht era soft law instruments. Asylum law development following the Amsterdam Treaty, though by virtue of harmonisation, brought about some positive results, can generally be viewed as rather disappointing. Obviously, Member States and the European Union institutions have to go much further in order to preserve adequate level of protection in the region, where the main refugee protection document - the 1951 Convention Relating to the Status of Refugees was created. Among the positive results that could be mentioned is that legally binding instruments are being created for the first time in asylum field to be applied to the whole European Union, and this process involves not only the Member States, but also increases the role of Community institutions is. Two years after the enforcement of the Amsterdam Treaty, the Commission managed to draft and present all documents envisaged in asylum field and some of those were adopted. One of the biggest achievements of the process is that the documents adopted under the Amsterdam Treaty have filled a number of gaps that were previously creating a number of practical problems.
However, the transfer of competence under the Amsterdam Treaty over asylum maters to the Community area of responsibility did not help in solving substantially asylum development related problems. Retention of the unanimous decision-making process in the Council continued to be a hindrance in the process of improving and creating a new asylum legislation under the Amsterdam Treaty. Attempts to change unanimity to different voting procedure were not successful due to persistent objection of some member states. On the other hand, even if the decision-making procedure was to be changed, asylum law development in the EU would hardly turn the opposite direction. This is due to the fact that the Member States are disinclined to drop away their national specifics. They continue adopting national legal acts reflecting these specifics, in parallel to asylum legislation drafting process in the EU. They largely disapprove the efforts to introduce common standards, which would be different from their national ones and require raising the level of refugee protection in some member states. Though common standards will indeed be introduced for all Member States, such opposition leads to assent to those requirements that are lower ones and not in need of substantial changes in the Member States. Therefore many post-Amsterdam provisions are only slightly different from the previous norms. Many more problems arise in view of the new restrictions being introduced in this area, as some of these may even raise discrepancies and incompliances with the 1951 Convention and other human rights treaties. Particular concern can be expressed towards the measures that have been adopted in view of fighting or preventing terrorism, as their adoption and implementation in asylum field in such a manner, which violates the balance between the interests of the state and human rights, may virtually undermine the understanding of European Union countries as safe for refugees.