Is Austria's cap on number of asylum seekers breaking international law?

A 1951 UN convention operates under the principle of non-refoulement which stipulates that refugees seeking protection must not be prevented from entering a country.

Ronald Zak/AP
Migrants walk between registration tents at the border to Slovenia in Spielfeld, Austria. Austria’s interior minister Johanna Mikl-Leitner said the country plans to extend border controls to Italy as it plans for possible shifts in migrant inflows to the country.

Austria is standing by its decision to cap the number of asylum seekers it will take in, infuriating European Union leaders who warned that the decision would break European and international law.

The country has been an important gateway into Germany for hundreds of thousands of people, many of them Syrian refugees, who have reached its territory since last September.

But now things are changing in Vienna, as officials announced they would allow no more than 3,200 asylum seekers into its territory per day – either to travel on to neighboring countries or apply for asylum – and introduced a daily limit of 80 asylum claims.

Vienna officials say that the daily limit is needed because an EU plan that would see Turkey restrict the number of migrants leaving for Europe is not yet working, but European officials say that "Austria has a legal obligation to accept any asylum application that is made on its territory or at its border."

"As far as Austria is concerned I have to say I don't like this decision, we are questioning whether it is within European law, and we will have a friendly discussion," European Commission President Jean-Claude Juncker told a news conference, according to Deutsche Welle‎.

The cap on asylum applications “would be plainly incompatible with Austria’s obligations under European and international law, including and in particular, the European convention on human rights, the Geneva convention and Article 18 of the charter of fundamental rights of the European Union,” European migration commissioner Dimitris Avramopoulos said in a letter to Austrian Interior Minister Johanna Mikl-Leitner, according to the Guardian.

Under Article 18 of the charter of fundamental rights of the EU, "the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951."

The 1951 convention operates under the principle of "non-refoulement." The principle prohibits countries from sending refugees back to their countries of origin, particularly if the countries aren't considered safe. In other words, a refugee seeking protection must not be prevented from entering a country. This applies to all countries, including those that don't accede to the 1951 Convention or 1967 Protocol.  

The vast majority of asylum seekers have entered the EU through Italy and Greece, where they are required to be registered, but EU officials have blamed Greece for poor border controls, which allow asylum seekers to continue their journeys to northern Europe. More than 1 million people entered the EU in 2015 fleeing conflict or poverty, and some 84,000 have entered so far this year. Overwhelmed by the numbers and frustrated by their inability to agree on an effective European response, some EU countries have begun tightening border controls or putting up fences without warning their neighbors.

EU states, including Germany, Austria, and Hungary, have already introduced temporary border controls that are set to end in May but could be extended up to two years, and have urged Greece to take similar measures, threatening to isolate it from the Schengen area.

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