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.
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.
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.
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 with 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).
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.
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?
Politico.eu 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)
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.
Conclusion
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.
Dit artikel is de schriftelijke weergave van de Artikel 1 lezing die de auteur op 22 maart 2013 hield aan de Universiteit Utrecht. In hoeverre is het uit het oogpunt van het gelijkheidsbeginsel gerechtvaardigd dat niet uitzetbare asielzoekers die zich in Nederland bevinden anders worden behandeld dan andere personen die zich in Nederland bevinden op het punt van sociaal-economische grondrechten, zoals arbeid, sociale zekerheid, huisvesting, onderwijs en gezondheidszorg? De claim op deze rechten wordt afgeweerd door er op te wijzen dat de vluchtelingen daarvoor in hun eigen land moeten zijn maar daarmee wordt er ten onrechte vanuit gegaan dat he nationaliteitsrecht op internationaal niveau een sluitende lappendeken is.
Een co-referaat van prof. mr. Ernst Hirsch Ballin werd gepubliceerd in Nederlands Juristenblad 2013, p. 1263 e.v.
In this chapter, I will argue that the debate about cosmopolitanism vs. sovereignty can only be considered as a relevant debate if the wrong questions are asked – at least in my field of expertise, migration law. The question which is at the heart of this debate in migration law (under which circumstances should aliens be admitted) is a false one. In my view, the issue is not the just distribution of membership. Instead, the debate is mostly about the position of aliens who are in the community already, and whom the community prefers to consider as nonmembers, or even as non-entities. If it would be acknowledged that the aliens whose position is being discussed are already in the community, it would become clear that their position can either be debated under the rubric of admission, or under the rubric of redistribution. The obsessive way in which the redistribution option is ignored suggests that the (ideological, material, and/or other) stakes for debating migration under the admission rubric are high.
