In other words, the communitys instruments are used in the framework of intergovernmental decision-making with the main objective being the adoption of minimum standards on every aspect of asylum. The practice during the last years- after the entry into force of the Amsterdam Treaty in 1999- has shown that the decision making in that field consists of re-nationalisation of asylum with decisions taken at the lowest common denominator at the detriment of human rights. The few adopted directives are very vague and broad, while not ensuring high human rights standards. According to the Group X, responsible for the Justice and Home Affairs domain in the Convention for the Future of Europe, the lack of a substantial common asylum policy at the EU level is the source for all the shortcomings including human rights. But is the complete communitarisation of the asylum policy really the solution to this problem? In other words, will the introduction of qualified majority voting and co-decision procedure enhance human rights protection?
To begin with, the use of qualified majority voting is definitely not a guarantee for Fundamental Rights protection. Most of the member states aim at creating a safe European continent even at the detriment of human rights. This tendency is confirmed by several acts adopted and proposed at the EU level, especially concerning asylum. The directive on temporary protection and the reception conditions and the proposals on the qualification of status and examination procedures are examples of restrictive policies which the member states wish to follow. Moreover, the fight against terrorism which is rather oriented towards foreigners, including asylum seekers, puts further restraints on the respect of human rights. This restrictive tendency is also indicated by the recent UK proposals which appear to have the support of almost all member states. According to the suggested plan, the refugees applying for asylum in one of the EU states, pending the examination of their applications, will be kept in reception camps located in countries outside the Union. In addition, the rise of extreme right parties throughout Europe implies that the states are under increased political pressure from their electorates to eliminate the number of immigrants in their territories. No doubt, the respect of fundamental human rights of the asylum seekers is a secondary issue.
Since the general tendency is the creation of a fortress Europe, the qualified majority system, will only facilitate the adoption of acts satisfying the majority of the bigger states like Germany, France, Spain and UK. These states wish to decrease the cases of granting asylum. On the other hand, unanimity can be used by the more liberal states as prevention of a stricter collective action. A recent example is the negative reaction of Sweden to the aforementioned UK proposals, which the majority of the states seem to support.
Furthermore, it is not certain that the European Parliament will act as a counter-power to the Council, adopting a more liberal, human-rights-protection attitude. In fact, the new coalition between the EPP and the ELDR is in favour of conservative policies. An indicator is the outvoting, in the plenary, of the humanitarian report of R. Evans, which was in favour of maintaining high human rights standards. Thus, the introduction of co-decision procedure is not a reliable safeguard.
Finally, concerning the power of the Commission, no great changes should be expected. Already, according to an unofficial political agreement between the Council and the Commission, the latter has the exclusive right of initiative on asylum issues. However, the developments of the last two years have shown an increased tendency of the Council to water down the most liberal proposals. For instance, for the final adoption of the directive on reception conditions, two proposals from the Commission were needed because the first one was too liberal and the negotiations lasted approximately, two years.
In brief, the communitarisation of the asylum policy per se will not transform the Union to a safe heaven for those in need of protection. Even in a common asylum policy, the will of the member states to restrain the access to the EU will remain. However, a Common asylum policy combined with extra safeguards, which do not exist at the moment, could improve the humanitarian face of the Union.
Currently, the member states and the EU are formally limited by international human rights law, mainly the Geneva Convention for Refugees (1951) and the Convention on Human Rights (1950). Even though the member states are parties to the Convention on Human Rights (1950), the Community as a whole is not, and it is very unlikely to become in the near future. In any case, until now the Convention has not prevented the member states to violate several of its articles while implementing their asylum policies. In addition, the member states have adopted forms of protection which by-pass the Geneva Convention. Therefore, without any further guarantees, these two international instruments, which are the main sources of protection, will not ensure the human rights of the asylum seekers in a common asylum policy.
Efficient guarantees could perhaps result from the Commissions obligation to examine the compatibility of its proposals with the Convention on Human Rights before the Council meetings. Alternatively, the Charter of Fundamental Human Rights, which includes the right to asylum, could be legally binding. Otherwise, it will be extremely difficult for individuals to appeal against national measures deriving from the implementation of directives.
To sum up, enhanced human rights protection could only be assured by the combination of communitarisation- to limit the extensive powers of the member states and efficient judicial control. Arguably, the respect of Human Rights is only a secondary issue for the member states. As they are significant actors of the EU policies, the only way to prevent a similar collective approach at the EU level is the efficient judicial control.