Fixed definitions or framework legislation? The delimitation of subsidiary protection ratione personae

Drafting the planned Directive on Subsidiary Protection (henceforth “Directive”), imposes a large number of choices on EC institutions, among which the question of the delimitation of its circle of beneficiaries is perhaps one of the more prominent. To be sure, the Dublin Convention and its successor instrument will only function smoothly if Dublin transfers do not undercut protection under international law. This presupposes that member states share a common understanding of protection obligations, and their scope ratione personae. In the end, an overtly vague Directive augments the risk of deviating interpretations and, as a consequence, of Courts objecting to Dublin transfers. Avoiding vagueness means making choices. It is the purpose of this text to outline some of the choices with which the drafters are faced.

How broad or how narrow should the group of persons be defined which are to benefit from the future Directive? One may seek orientation in domestic law, in international law, or in the arrangements provided for in other regions than Europe. Looking at domestic law is helpful only to a limited extent, as Member states display an impressive diversity in this regard.