Categorie archief: Crisis European Refugee Law Academic

Got the picture? (2017)

On 5 August 2016, the UN News Centre published a picture captioned UN team in Jordan uses cranes to hoist aid to Syrian refugees at sealed border. The picture is taken from Jordanian territory. The low mud wall behind the trucks marks the Syrian border. At the time, Amnesty International reported that more than 75,000 Syrian refugees were living in the desert on the Syrian side. The text accompanying the picture reports that “life-saving food and other supplies from the United Nations” are being “hoisted by crane and monitored by drones across the closed frontier” in what is called “a unique operation.” The World Food Programme delivered food packages, the International Organization for Migration contributed bread, and the UN’s children fund UNICEF hygiene kits. This picture, as well as the perky accompanying press release, captures the outcome of international, and in particular of European policies vis-à-vis the Syrian refugee issue. In 2011, Syria had 23 million inhabitants. At present, some 11 million of them have been uprooted; 6.5 million of them are internally displaced (IDP’s, including the 75,000 people at the Jordanian border), and 4.9 million have sought refuge outside Syria.

For the full blogpost see Forced Migration Forum, February 7, 2017

Advice in CJEU Case C-638/16 PPU on prejudicial questions concerning humanitarian visas (2017, with Yussef Al Tamimi and Evelien Brouwer)

On 8 December 2016, the Belgian court submitted prejudicial questions to the Court of Justice of the European Union (CJEU) concerning the issuing of humanitarian visas to a Christian Syrian family. The central question is whether international treaties and European Union law can oblige consuls and embassies of EU Member States to issue a humanitarian visa. This document (written as an advice- written on a pro bono basis –  for the benefit of the lawyer of the Syrians) will discuss developments in the European Union with regard to humanitarian visas, the interpretation of the Visa Code in light of the Schengen Borders Code, the entitlement of the Syrian family in this case to asylum protection, the conditions in Lebanon as a ‘safe third country’ and the argument that a positive judgment of the Court will open the ‘floodgates’. The Conclusion of Advocate General Mengozzi was published on 7 February. In the judgment of 7 March 2017, the Court ruled that the issue is not covered by European law, but merely by domestic law (which includes inetrnational human rights law) .

Thomas Spijkerboer, Evelien Brouwer and Yussef Al Tamimi: Advice in Case C-638/16 PPU, January 5, 2017.

Fact Check: Did ‘Wir Schaffen Das’ Lead to Uncontrolled Mass Migration? (2016)

From: Constant: 8 x la guerre (1951)

From: Constant: 8 x la guerre (1951)

It is widely assumed that the German ‘decision to suspend Dublin and open the borders,’ epitomized by Angela Merkel’s ‘Wir schaffen das’, led to ‘uncontrolled mass migration’ in the summer and fall of 2015. This belief is not only held by media and politicians, but also by prominent academics like Ruud Koopmans. The empirical claim contained in this belief has two elements: one relating to the ‘suspension of Dublin’, and one relating to the ‘opening of the borders.’ Are these claims correct?

Read my blogpost on Border Criminologies.

Fact Check: Did the EU-Turkey Deal Bring Down the Number of Migrants and of Border Deaths? (2016)

From: Constant: 8 x la guerre (1951)

From: Constant: 8 x la guerre (1951)

On March 18th, 2016, the EU and Turkey agreed that all irregular migrants arriving on the Greek islands were to be returned to Turkey. It is generally believed that this agreement has led to a dramatic decrease of the number of irregular migrants, and hence of the number of border deaths. Exemplifying this idea is this quote from the second progress report of the European Commission on the implementation of the EU-Turkey Agreement: ‘The sharp decrease in the number of irregular migrants and asylum seekers crossing from Turkey to Greece is proof of the Statement’s effectiveness – and in particular, that the business model of smugglers can be broken. The clear message to migrants is that getting on a boat in Turkey, and endangering lives in the process, is not worth the risk given that there is a legal and safe pathway through resettlement.’ Are these claims correct?

See my blogpost on Border Criminologies

Minimalist Reflections on Europe, Refugees and Law (2016)

It is hard to understand the current developments in European refugee law without the benefit of hindsight. This paper refrains from trying to make a comprehensive analysis, and investigates fragments small enough to allow for analysis. We will look at the political and legal processes which turned the influx of a small number of people into the European Union into a crisis; at tunnel vision of European policy makers; at the legal aspects of the EU’s and NATO’s intervention in the Aegean Sea; and at the processes resulting in the acceptance of mass deaths as a daily routine.

Minimalist Reflections on Europe, Refugees and Law, European Papers 2016, p. 533-558

Dwang, verbod en grootse verwachtingen: over het falende Europese asielbeleid (met Maarten den Heijer en Jorrit Rijpma, 2016)

April liet een spectaculaire daling zien van het aantal Syriërs dat in Nederland asiel vroeg: 101 tegen meer dan 5000 in oktober vorig jaar. Het lijkt erop dat de dichte grenzen in de Balkanlanden en het akkoord met Turkije over de terugname van asielzoekers de komst van Syrische vluchtelingen sterk hebben afgeremd. Is de vluchtelingen‘crisis’ opgelost? Allerminst: de deal met Turkije is kwetsbaar en bovendien juridisch kwestieus. Belangrijker is dat het Europese asielbeleid heeft aangetoond slecht te functioneren. Het is nu vooral zaak de gemeenschappelijke asielregels crisisbestendig te maken. Daarvoor lijkt echter de politieke steun te ontbreken.

Maarten den Heijer, Jorrit Rijpma en Thomas Spijkerboer: Dwang, verbod en grootse verwachtingen: over het falende Europese asielbeleid, Nederlands Juristenblad 2016, p. 1672-1682

The Crisis of European Refugee Law : Lessons from Lake Success (2016, with Hemme Battjes, Evelien Bouwer, Lieneke Slingenberg)

In this paper, we address three connected central issues in refugee law. Firstly, who is entitled to protection? Secondly, what should that protection entail – merely allowing the presence of refugees in the territory, or allowing access to the labour market and health and welfare systems? Thirdly, where should refugees receive protection – in the first country in which they arrive after fleeing their home country, or elsewhere? We analyze the current crisis of European refugee law by looking back at the drafting history of the 1951 Refugee Convention. European policy makers can learn from the way in which the drafters partially solved these issues in 1950/1951.

Hemme Battjes, Evelien Brouwer, Lieneke Slingenberg and Thomas Spijkerboer: The Crisis of European Refugee Law: Lessons from Lake Success

Is the EU-Turkey refugee and migration deal a treaty? (with Maarten den Heijer, 2016)

Maarten den Heijer & Thomas Spijkerboer

In the European Parliament, questions were asked about the legal nature of the EU-Turkey Statement of 18 March, pursuant to which Greece has started to return asylum seekers to Turkey this week. Apparently, the EU’s procedure for negotiating and concluding treaties withIMG_0321 third countries, laid down in in Art. 218 TFEU, has not been followed. The European Parliament wants to know whether the Council nonetheless considers the Statement to be a treaty, and, if not, whether Turkey has been informed about the non-binding nature. Importantly, for treaties “covering fields to which the ordinary legislative procedure applies” (asylum and immigration is such a field), the Council may only conclude a treaty with a third country after obtaining consent of the European Parliament (Art. 218(6)(a)(v) TFEU).

The full blog post was published on EU Law Analysis.

Coercion, Prohibition, and Great Expectations. The continuing failure of the Common European Asylum System (with Maarten den Heijer and Jorrit Rijpma, 2016)

This contribution explains the European asylum policy crisis from three structural weaknesses of the Common European Asylum System: its reliance on coercion within the EU; its unrealistic expectations of what borders can achieve; and the premise of prohibition of refugee movement in its external dimension. The article then critically reviews the proposals that the EU has submitted since the publication of the European migration agenda in May 2015.

Coercion, Prohibition and Great Expectations. The continuing failure of the Common European Asylum System, Common Market Law Review 53(2016), p. 607-642 (with Maarten den Heijer and Jorrit Rijpma)

The NATO pushbacks in the Aegean and international law (2016)

On Thursday 11 February 2016, NATO announced that its ships would immediately be deployed in the Aegean in order to combat irregular migration, in cooperation with the relevant authorities and with Frontex. On 23 February, NATO Secretary-General Stoltenberg stated in the European parliament: “When we rescue those people, what we agreed with Turkey at a ministerial level, we agreed that if those people came from Turkey then we can return them to Turkey.” Stoltenberg repeated this on 24 February. Is this compatible with international law? reported the following on the NATO plans. A group of five vessels (from Germany, Italy, Canada, Turkey and Greece) already are present in the Eastern Mediterranean. Denmark

From: Constant: 8 x la guerre (1951)

From: Constant: 8 x la guerre (1951)

and the Netherlands are said to have promised vessels too. Stoltenberg said that Turkey and Greece will not operate in each other’s territorial waters, thereby addressing a political sensitivity. The mandate of the mission will not be to intercept or to return boats, but to engage in search and rescue (which however, as Stoltenberg made clear on 23 and 24 February, may consist of interception and return). Activities were to take place in Turkish territorial waters. The Guardian reported that the action was to start on 12 February. Operational reports on NATO activity in the Aegean is lacking so far.

A number of questions is relevant in order to assess the legitimacy of this in light of international law: are NATO member states exercising jurisdiction; are there international law objections; and are there ways to evade jurisdiction and international law obligations?

Do NATO member states exercise jurisdiction?
States are bound to international law when they exercise jurisdiction. If – for example a German – vessel picks up people while it is in Turkish territorial waters and brings them to the Turkish shore? This is not an irrelevant question. If such a German vessel exercises jurisdiction, Germany has a number of international law obligations, relating inter alia to asylum. The issue of jurisdiction has been the subject of a number of cases.

One of the first cases on the issue is a decision of the UN Human Rights Committee from the early 1980s. The case of Burgos v Uruguay concerned a Uruguayan refugee who enjoyed asylum in Argentina. After the military coup in Argentina, he was kidnapped by the Uruguayan secret service, detained in Argentina for two weeks, and transferred to Uruguay where he was tortured. The question arose whether Burgos was under Uruguayan jurisdiction during his initial arrest. The UN Human Rights Committee held that it would be unconscionable to interpret the International Covenant on Civil and Political Rights in such a manner that a State would be allowed to perpetrate acts on the territory of another State which it would not be allowed to perpetrate on its own territory. The Human Rights Committee formulated a fundamental rule: what a state is prohibited from doing on its own territory, it is not allowed to do somewhere else.

A case of the Committee Against Torture displays more similarities with the NATO plan. The Marine I-case concerned a cargo vessel carrying 369 migrants, which in 2007 issued a rescue call in international waters. A Spanish rescue vessel approached the Marine I and towed it to the Mauritanian coast. After a week and a half of negotiations , the Mauritanian authorities gave permission to tow the vessel into a Mauritanian harbour. The migrants were detained under supervision of Spanish personnel. In groups most of them were returned to their country of origin; a few received a humanitarian residence permit. The complaints concerned detention conditions and removal to the country of origin. One of the arguments brought forward on behalf of the Spanish authorities was that all this occurred outside Spanish territory. The Committee Against Torture held that a state exercises jurisdiction when it has, directly or indirectly, in whole or in part, de jure or de facto effective control. The Committee ruled that Spain exercised jurisdiction from the moment is came to the rescue of the Marine I.

The most directly applicable case is the 2012 Hirsi Jamaa judgment, in which the Grand Chamber of the European Court of Human Rights passed judgment on the Italian pushbacks, which consisted of transferring migrants from vessels onto Italian navy vessels and returning to Libya without any procedure. The Court held that a state exercises de jure jurisdiction over vessels flying its flag, and therefore the migrants were under Italian jurisdiction. It added that Italy could not evade the exercise of jurisdiction by arguing that its activities constitute a search and rescue action – just like NATO is doing at present.

The Court referred to another case, in which it held that French agents who took over a vessel (suspected of engaging in drugs trafficking) flying a Cambodian flag exercised de facto jurisdiction. In conclusion, the Italian authorities had exercised jurisdiction during the pushbacks because the migrants were put on Italian vessels (de jure jurisdiction) and because the Italian navy had factual control over them (de facto jurisdiction).

Legal doctrine holds that the same applies to the 1951 Refugee Convention. It has to be noted that the US Supreme Court ruled that the Refugee Convention does not apply outside the territory of the United States. However, this interpretation of the Supreme Court is highly contested, and has more to do with US constitutional law (in particular with the plenary powers doctrine) than with international law. The Supreme Court projected a piece of domestic constitutional law onto the international convention on refugees. It is not to be expected that European courts will change their position in order to adopt this American interpretation, although that cannot be strictly excluded either.

In sum: it is evident that, when they return migrants to the Turkish shore, NATO vessels exercise jurisdiction in the sense of the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Convention Against Torture – even when the entire operation takes place within Turkish territorial waters. That this is evident is clear from the fact that the judgment of the Grand Chamber of the European Court of Human Rights was unanimous on all major points. This underlines that the Court’s interpretation is not far-fetched or activist, but reflects a broad consensus. The Court did nothing else than restate the obvious and basic rule formulated in Burgos v Uruguay: what a state is not permitted to do on its own territory, it cannot do somewhere else. This is a fundamental rule. If the US is not permitted to waterboard people, it is not permitted to do so on Guantanamo Bay either. If the Russian secret service is not allowed to poison an opponent with polonium, it is not allowed to do so in London.

Can states evade jurisdiction?
It would be conceivable to use a construction with Spain is said to apply in its cooperation with some West-African countries. Image that on board of all participating NATO vessels a Turkish representative is posted who – even when s/he is taking a nap – is supposed to command the vessel. This would clearly be a mere construction to hide the jurisdiction the NATO state concerned is exercising under a formalist veil. But even for those who wish to go along with that, it would merely mean that the de jure jurisdiction of that NATO state would disappear. It would not do away with its de facto exercise of jurisdiction. The presence of a Turkish functionary could possible mean that Turkey would exercise de jure jurisdiction in addition to the exercise of jurisdiction of the NATO state concerned. The fact is that it is hard to think of a clearer example of the exercise of jurisdiction that a state has over its own navy vessels.

What are the relevant international law obligations?
A has been explained elsewhere, migrants who may want to ask for asylum can be returned to a third country, on the condition that
• The third country is safe;
• It has been established in an individual decision that the country is safe for this person as well;
• And the migrant has had the possibility to appeal this decision in a court of law.
As has been explained elsewhere, it is highly questionable whether Turkey is to be considered as a safe third country. The last time the European Court of Human Rights concluded that Turkey violation the human rights of an asylum seeker dates from 15 December last year. In addition to this, the NATO action excludes the possibility of individual decisions and appeal to courts. Therefore, the NATO action would be contrary to the prohibition of refoulement. The prohibition of refoulement contained in the ECHR, ICCPR and CAT is non-derogable.

Can NATO member states get rid of their obligations?
What NATO plans to do is contrary to the European Court of Human Rights (Hirsi Jamaa), the Convention Against Torture (Marine I) and the International Covenant of Civil and Political Rights (Burgos). States may denounce (i.e. stop being a party to) most conventions (the ICCPR does not foresee denunciation), but that is not an easy thing. EU law requires that its member states are party to these conventions. Therefore, denouncing them would require amendment of EU treaties (as well as of all secondary legislation referring to the prohibition of refoulement).

An additional problem would be that the prohibition of refoulement which the NATO member states would violate is part of international customary law, according to most authors. International customary law binds states even if they have not ratified any international treaty. So maybe it would not help to denounce all these conventions. On the other hand, one might argue that that the idea that the prohibition of refoulement is customary law is based primarily in the fact that it has been incorporated into a number of treaties (in addition to the ones already referred to also in regional treaties in Africa and the Americas). So s all NATO-states withdraw from these treaties, one might argue that customary law has changed.

The conclusion has to be that the NATO actions are in violation of international law; and that the relevant parts of international law are binding on NATO states because they exercise jurisdiction over migrants. Returning migrants to Turkey as envisioned violates the prohibition of refoulement, also when it happens in the form of search and rescue.

This blog was amended on 26 February 2016 in response to a tweet by Martin Scheinin. A previous version of this blog in Dutch was posted on Verblijfblog on 12 February 2016.