Madam, - Proinsias De Rossa, writing on a possible EU Constitution (November 11th) refers to the Charter of Fundamental Rights established at Nice. It is, as he says, a contested issue whether this should be made legally binding or not. For as long as it contains the present Article 18 on asylum it should most certainly not be made legally binding.
That article states: "The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community".
That could very well be interpreted by the European Court of Justice as debarring a contracting state to the Geneva Convention, such as Ireland, from its current right to use the opt-out clause (Article 44) of the Convention and to make its own arrangements. Under no circumstances should we accept this.
Further, it appears to give stronger asylum rights than the Universal Declaration of Human Rights (itself a non-binding document). Under the Universal Declaration there is no "right to asylum" but "the right to seek and enjoy" asylum. This is a restatement of the classic position on asylum, which is that the right in question is the right of the state to grant asylum, not the right of the individual to receive it.
This is very poorly understood other than by legal experts, most of whom prefer not to mention it. It can be verified quite easily by reference to, for example, the various drafts of the Universal Declaration appended to the book A World Made New : Eleanor Roosevelt and the Universal Declaration of Human Rights by Mary Ann Glendon, and by reference to the main text of that book, in particular p.153.
Our own Government has, thankfully, been wary up to now of making the Charter of Fundamental Rights binding. It would be well advised to maintain that position.
Finally, this Charter of Fundamental Rights was meant to be a charter of freedoms for citizens of the member states of the EU, as Proinsias De Rossa himself indicates. Surely those referred to in Article 18 are envisaged as being from outside the EU. By strengthening the Geneva Convention it becomes, instead, a charter for invasion, just as that is, and therefore an instrument to undermine our freedoms.
The Irish Constitution has served us well (at least until Martin Mansergh got his hands on it). We don't need to reinvent the wheel, particularly a square one. - Yours, etc.,
ÁINE NÍ CHONAILL, Immigration Control Platform, Dublin 2.