CYIL vol. 11 (2020)

HARALD CHRISTIAN SCHEU CYIL 11 (2020) Compact contains a rather ambiguous reference to the principle of non-refoulement 31 and does not include the principle of non-refoulement either among its guiding principles or its major objectives. 32 On the contrary, the absence of an explicit reference to the principle of non-refoulement suggests that international cooperation in migration matters shall also include those countries of origin of immigrants which do not ensure a sufficient level of human rights protection. 33 It has been rightly noted that the involvement of such countries in return proceedings may jeopardize the very principle of protection against refoulement. 34 6. Conclusions In European human rights law, the absolute nature of the non-refoulement principle is well recognized. In the judgment which has been subject to our analysis, the CJEU has confirmed that Article 19 of the EUCFR does not provide for any exceptions from this principle.Therefore, the ambiguous norms contained in the Qualification Directive shall not be interpreted as a legal ground for refoulement. Although the Qualification Directive explicitly refers to the Geneva Convention, in the case of non-refoulement, the higher standard of human rights protection takes priority over refugee law. However, a glance at the draft articles on crimes against humanity presented by the Commission on International Law in 2017 and the 2018 Global Compact for Safe, Orderly and Regular Migration suggests that, in a broader international context, the principle of non- refoulement is perceived less unequivocally than in European human rights case law. Of course, the solution of these contradictions, which derive from the different approaches of international refugee law and the international protection of human rights, is not in the hands of the CJEU. In the abstract, if EU Member States wished to introduce an exception clause in favor of the protection of national security similar to Article 33(2) of the Geneva Convention, they would need to change not only the current wording of Article 19(2) of the EUCFR but also established case law of the Strasbourg Court on the principle of non-refoulement. In these quite turbulent times, it is certainly somehow comforting to know that the fundaments of European human rights protection are firm and will not be changed with a view to quickly changing political trends. Current discussions on the non-refoulement principle may be a welcome occasion to re-emphasize the absolute nature of human dignity as a necessary fundament of our human rights understanding. However, it shall not be forgotten that absolute principles may have a high price that someone will have to pay. 31 For a more profound analysis of this problem, see BUFALINI, Alessandro. The Glob-al Compact for Safe, Orderly and Regular Migration: What is its contribution to In-ternational Migration Law? In: Questions of International Law, 30 April 2019 (http://www.qil-qdi.org/the-global-compact-for-safe-orderly-and-regular- migration-what-is-its-contribution-to-international-migration-law). 32 The principle of non-refoulement is, however, explicitly mentioned in the so-called Global Compact on Refugees. See GA Official Records, Seventy-third Session, Supplement No. 12 (A/73/12 (Part II)). 33 SPAGNOLO, A. “We are tidying up”: The Global Compact on Migration and its Interaction with International Human Rights Law, 1 March 2019 (https://www.ejiltalk.org/we-are-tidying-up-the-global-compact-on-migration- and-its-interaction-with-international-human-rights-law). 34 MAJCHER, I. Objective 21: Cooperate in facilitating safe and dignified return and readmission, as well as sustainable reintegration. In: GUILD, E. / BASARAN, T. (eds.) The UN’s Global Compact for Safe, Orderly and Regular Migration Analysis of the final draft. Objective by Objective. Refugee Law Initiative Blog (2018), (https://rli.blogs.sas.ac.uk/2018/11/12/gcm-commentary-objective-18).

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