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The Practice of Mediterranean States
in the context of the European Union’s
Justice and Home Affairs External
Dimension. The Safe Third Country
Concept Revisited
MARÍA-TERESA GIL-BAZO*
Abstract
Identifying the exact scope of States’ obligations in relation to refugees who have not
reached the State’s territory has become an issue of fundamental relevance and one of
the most controversial areas in refugee studies nowadays. It is argued here that an attempt
to identify the obligations of States towards refugees requires first clarification as to which
rights a refugee can claim vis à vis a State. It is also argued that States’ obligations towards
refugees are engaged by the exercise of State jurisdiction, including when exercised outside
the territory of the State. In order to assess the lawfulness of the practices of non-arrival
into the EU’s borders, this paper shall first elaborate on the practices of Mediterranean
States, and in particular, of Spain, Morocco, Italy, and Libya. This choice serves different
purposes: firstly, given that southern EU Member States continue to play a fundamental
role as transit countries towards northern Europe, their practice highlights the political
context where the practices take place. Secondly, the role of these countries as external
borders of the EU places the debate within the broader framework of EU’s relations with
third countries, illustrating the way in which the policies of non-arrival go well beyond the
immediate neighbouring States. And thirdly, the study of Mediterranean practices allows
for an analysis of legal issues derived from the exercise of jurisdiction not only within the
territory, but also in the High Seas. The paper then questions the ‘Safe Third Country’
concept as the legal standard used by States to transfer their obligations towards refugees
to other countries. The paper concludes that the status of refugees under international law
is defined not solely by International Refugee Law, but rather by the interaction of the
different legal orders that may be applicable to any given refugee in any given circumstances, both of universal and regional scope. Accordingly, the lawfulness of the practices
of the EU and its Member States in their relations with third countries in the field of
asylum and migration is to be assessed against that broader framework of States’ obligations derived from the interaction of different legal orders.
1. Introduction
Identifying the exact scope of States’ obligations towards refugees
has become an issue of fundamental relevance and one of the most
* PhD in International Law; University Research Lecturer in International Refugee and Human
Rights Law, Refugee Studies Centre, University of Oxford. The author would like to thank Colin
Harvey and Matthew Gibney for their comments on an earlier draft. The law is as stated at 1 Mar. 2006.
572
Marı́a-Teresa Gil-Bazo
controversial areas in refugee studies nowadays. In particular, there is
disagreement among legal scholars, governments, policy-makers, and
international organizations as to how far States’ obligations go beyond
their borders in relation to refugees who have not reached the State’s
territory. One of the reasons for this divergence may be the fact that
much of the current analysis on the lawfulness of practices and proposals
is often based on unstated premises regarding the status of individuals
under International Law, the way international treaties are to be interpreted, the way States’ obligations vis à vis individuals are engaged, and
other elements of the conceptual framework where the analysis takes
place.
One such premise is that States’ obligations towards refugees who have
not managed to enter the territory of the asylum State are limited;
however, the exact scope of those obligations remains largely undefined.
It is often argued that the increasing activity of States outside their
borders (including the deployment of immigration liaison officers abroad
and interdiction practices at sea) as well as the resort to legal fictions
(such as the establishment of ‘international zones’ where full safeguards
do not apply), and the increasingly sophisticated variations of the ‘safe
third country’ (STC) concept aim at preventing the engagement of States’
obligations otherwise derived from the presence of individuals within
their territories.
In the European Union (EU), an analysis of the practices of non-arrival
must necessarily be brought within the context of the process of
European integration and the establishment of a Single Market without
borders. The EU’s concern with asylum is therefore primarily an utilitarian one. It does not derive from the wish to offer better protection for
refugees, by adjusting the refugee protection regime to the current realities of forced migration, but rather from the wish to control who enters
the European economic space.1 The establishment of a Single Market
requires the abolition of internal borders among its members in order
to facilitate the freedom of movement for persons (EU citizens), capitals,
and goods that make this Single Market viable. With the establishment
of a space without internal borders, the need to control the external
borders of that space becomes obvious if one is to prevent the undesired
freedom of movement of certain categories of persons (including those
in breach of immigration laws), capitals (including those obtained in
1
The European Parliament has repeatedly criticised an EU policy solely seeking to control its
borders and safeguard its economic interests. In a Resolution past on 9 June 2005, the Parliament
recalled that ‘border checks and action to combat illegal immigration can be only one aspect of the
EU’s policies towards non-EU countries [and] considers that the EU cannot analyse its immigration
policy solely from the point of view of its economic interest but must also take into account the
reasons which force migrants to emigrate’. European Parliament Resolution on the links between
legal and illegal migration and integration of migrants (2004/2131 (INI)), Doc. A6-0136/2005,
9 June 2005, para. 17.
The Practice of Mediterranean States
573
criminal activities, such as the smuggling and trafficking of persons), and
goods. It is the establishment of a Single Market — which constitutes the
EU’s raison d’être — with its attached dynamics of (external) border control that determines policies towards non-citizens, where the protection
needs of individuals give way to the inherent difficulties of maintaining
open borders for those in need of protection while attempting to seal the
same borders against others.2
Because of its own very nature as a process, the policies of border
control and their subsequent translation in legislation constitute an
uneven body of bilateral and multilateral relations between States that
develops over time, outside and within the EU’s legislative and institutional framework. I have argued elsewhere that what remains constant in
this changing picture is the overriding effort to control borders, by pushing them further away from the ultimate destination countries in northern Europe to their Eastern and Southern neighbours. The sophistication
of what constitutes a plethora of measures ranges from exercising political
pressure to the development in stages of a legally framed intra-EU
asylum and migration system and the further institutionalisation at EU
level of relations with third countries in this field. The ultimate goal
remains that of sealing the borders of European States, by ensuring
that individuals do not leave their countries of origin (visa regimes, carriers sanctions); or if they manage to do so, that they remain as close as
possible to their country/region of origin; or if they manage to reach
the EU, that they may be removed to ‘safe third countries’; 3 and, if all
2
The internal tension in the EU’s own dynamics of border control becomes apparent when one
compares the attempts to seal EU borders with the permeability of the same borders in relation to
arms exports (a strong economic interest for the EU’s Member States) that fuel conflict worldwide,
which constitutes one of the main reasons of forced displacement. A report published in 2004 by
Amnesty International and EDAI highlights the shortcomings and breaches of the EU’s Code of
Conduct on arms exports that have resulted in violations of international human rights and humanitarian law worldwide. Amnesty International, EDAI, ‘Undermining Global Security: the European
Union’s arms exports’, ACT 30/003/2004. A later report released in June 2005 by Amnesty International, Iansa, and Oxfam illustrates how the G8 countries (which include the UK, France,
Germany and Italy) are among the world’s leading arms suppliers, including to countries subject
to an EU’s arms embargo, such as Myanmar (Burma), China and Sudan. The report highlights
the failure to enforce controls on the transfer of equipment that can be used for torture,
ill-treatment and other human rights violations and the cost that arms exports have in human
lives, lost livelihoods, socio-economic development, democracy, and opportunities to escape poverty.
Amnesty International, Iansa, Oxfam, ‘The G8: global arms exporters. Failing to prevent
irresponsible arms transfers’, June 2005, 5.
3
The most sophisticated proposal in this regard is the one presented by the United Kingdom in
Mar. 2003 for ‘New International Approaches to Asylum Processing and Protection’. Letter from the
UK Government to the Greek Presidency of the EU, available at: ,http://www.statewatch.org/
news/2003/apr/blair-simitis-asile.pdf., which is a refined version of its own proposal of June 2000,
J. Straw, ‘Towards a Common Asylum Procedure’, in Towards a Common European Asylum System.
European Conference on Asylum (Lisbon: Serviço de Estrangeiros e Fronteiras, 2000) 133-139. While the nature
of these proposals is not new, what is new is the legal framework where they would be developed,
namely, that of Community competence on asylum matters.
574
Marı́a-Teresa Gil-Bazo
that fails, that only one Member State be responsible for any given
asylum seeker, namely, the one that fails to control the external borders
of the EU.4
Against this overriding goal of border control, two main issues may be
considered: the effectiveness of the system to keep refugees out of Europe’s
borders as a ‘durable solution’ and its lawfulness. The ability of the system
to meet its stated goals in the absence of a comprehensive approach to
address the root causes of migration is questionable.5 Given that the
impact of these measures on the countries/regions of origin, including
their ability to provide for a sustainable framework for refugee protection,
is addressed in another paper within this Issue,6 I will focus here on the
legal issues engaged by the practice of States.
It is argued here that an attempt to identify the obligations of States
towards refugees requires first clarification as to which rights a refugee
can claim vis à vis a State. It is also argued that the status of refugees
under international law is defined not solely by International Refugee
Law, but rather by the interaction of the different legal orders that may
be applicable to any given refugee in any given circumstances, both of
universal and regional scope.7
Having said this, it would be misleading to conclude that a comprehensive approach to refugee rights from a human rights theory perspective would provide a black and white list of rights that a refugee can claim
under international law in any given circumstances, and their corresponding
State’s duties, thus clarifying once and for all the complexities of legal
debates in refugee protection. What a human rights theory approach to
refugee law can do is to offer a more comprehensive picture, albeit more
complex, of the relationship between individuals and the State, by
grounding any legal analysis of refugee rights and corresponding States
duties under International Law within a conceptual and methodological
framework that best allows identifying what States are legally bound to do
4
M-T. Gil-Bazo, ‘La protección de los refugiados en la Unión Europea tras la entrada en vigor del Tratado de
Amsterdam a la luz del Derecho internacional de los derechos humanos’, in F. M. Mariño Menéndez and C.
Fernández Liesa (dirs.), La protección de las personas y grupos vulnerables en el Derecho Europeo (Madrid:
Ministerio de Trabajo y Asuntos Sociales, 2001) 147–186.
5
Coordination of external affairs, conflict prevention, development and trade policies within a
comprehensive framework are a priority if a serious attempt is to be made at addressing the root
causes of migration. S. Castles, ‘Why migration policies fail’, (2004) 27 Ethnic and Racial Studies,
205–227 at 222.
6
See A. Betts, ‘Towards A Mediterranean Solution? Implications for the Region of Origin’.
7
In the EU context, this includes Article 6(1) of the Treaty on European Union ([2002] OJ No
C325/5); Article 63 of the Treaty Establishing the European Community ([2002] OJ C325/33); and
Articles 18-19 of the Charter of Fundamental Rights of the European Union, that recognizes the
rights as they result, in particular, from the constitutional traditions and international obligations
common to the Member States, which had already held to be binding by the European Court of
Justice as general principles of Community law ([2000] OJ C364/1).
The Practice of Mediterranean States
575
(and therefore, what they may be free to do) vis à vis refugees under
International Law.
In order to assess the lawfulness of the practices of non-arrival into the
EU’s southern borders, this paper will focus on the practice of Mediterranean States, and in particular, of Spain, Morocco, Italy, and Libya.
This choice serves different purposes: firstly, given that southern EU
Member States continue to play a fundamental role as transit countries
towards northern Europe, their practice highlights the political context
where the practices take place and therefore the difficulties for the effective implementation of legally defined standards. Secondly, the role of
these countries as external borders of the EU places the debate within
the broader framework of EU’s relations with third countries, illustrating
the way in which the policies of non-arrival go well beyond the immediate bordering States, projecting themselves on the relations between the
EU’s neighbours and other third countries and among those third countries themselves, ultimately aiming at preventing secondary movements
and keeping refugees as close as possible to their countries/regions of
origin. And thirdly, the study of Mediterranean practices allows for an
analysis of legal issues arising from land as well as maritime border
controls.
2. Overview of the practice of Mediterranean States
Any analysis of the practices of Mediterranean States in relation to
refugees must place such developments within the broader context of
their relations with their northern European partners. Due to their
geographical location, southern EU Member States have become the
gateways into European territory and consequently, the implementing
agents of the EU’s control policies in its southern borders. Despite the
consolidated nature of Mediterranean EU Member States as countries of
immigration themselves, their role as transit countries towards their
northern EU neighbours remains an essential feature of their ‘migration
profile’.
Spain’s reform of its asylum and migration legislation in 1994 did not
respond to the country’s own concerns for migration control or pressure
on the asylum system, but rather to the demands imposed on it by
northern EU Member States to exercise an effective control of its borders
(this is, the external borders of the EU), in light of the mise en application of
the Schengen Convention in 1995 and the subsequent establishment of a
border control-free area among EU Schengen partners.8 A decade and
8
See M-T. Gil-Bazo, ‘The Role of Spain as a Gateway to the Schengen Area: Changes in the
Asylum Law and their Implications for Human Rights’, 10 IJRL 214–229 (1998).
576
Marı́a-Teresa Gil-Bazo
various legislative reforms later,9 the justification for its control policies
and the budget allocation that they require, still rest in the need to live up
to the commitments made to its European partners.10
In a report published in 2001, Amnesty International called attention
to the restrictive policies and practices that have resulted in the inability
of those in need of protection to access the asylum system and the even
smaller number of cases in which refugee status was recognized by the
Spanish Government. The organization highlighted the way in which
these practices deprive the Spanish asylum procedure of its effectiveness
in identifying individuals who have a valid protection claim.11 In its June
2005 report the organization notes that since then, both the number of
applications for asylum and the recognition rates have continued to fall.
Citing official sources, Amnesty International notes that Spain now has
one of the lowest rates of asylum applications per capita in the European
Union (one application for every 10,000 residents) and is the Member
State with the lowest percentage of successful applications for refugee
status.12
In particular, Spain’s efforts to control its land and maritime
borders with Morocco13 have seen a steady increase in resources over
the years. The events that occurred in September and October 2005
at the borders between Morocco and the Spanish Autonomous Cities
of Ceuta and Meilla14 that prompted the reaction of the UN
9
Among other developments, amendments to the Immigration Act were adopted in January 2000,
December 2000, and November 2003; see (in Spanish), Ley Orgánica 4/2000, de 11 de enero, sobre
derechos y libertades de los extranjeros en España y su integración social (BOE 12 de febrero de 2000
y corrección de error BOE de 24 de enero de 2000); Ley Orgánica 8/2000, de 22 de diciembre, de
reforma de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en
España y su integración social; Ley Orgánica 14/2003, de 20 de noviembre, de reforma de la Ley
Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su
integración social, modificada por la Ley Orgánica 8/2000, de 22 de diciembre (BOE de 21 de
noviembre de 2003); Real Decreto 1325/2003, de 24 de octubre, por el que se aprueba el Reglamento
sobre régimen de protección temporal en caso de afluencia masiva de personas desplazadas (BOE
núm. 256, de 25 de octubre de 2003); and Real Decreto 2393/2004, de 30 de diciembre, por el que se
aprueba el Reglamento de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los
extranjeros en España y su integración social (BOE núm. 6 de 7 de enero de 2005).
10
J. Carling, ‘Migration control and migrant fatalities at the Spanish-African borders’, July 2005,
at 11 (manuscript on file with the author).
11
Amnesty International, ‘El asilo en España: Una carrera de obstáculos’, Sept. 2001. A year later,
Human Rights Watch issued two reports denouncing human rights violations in the treatment of
asylum seekers and migrants by Morocco and Spain. Human Rights Watch, ‘The Other Face of the
Canary Islands: Rights Violations Against Migrants and Asylum Seekers’, Feb. 2002 and Human
Rights Watch, ‘Nowhere to Turn: State Abuses of Unaccompanied Migrant Children by Spain and
Morocco’, May 2002.
12
Amnesty International, ‘Spain: The Southern Border’, EUR 41/008/2005, 3.
13
The two countries signed a readmission agreement on 13 Feb. 1992 (BOE 25 Apr. 1992 and
30 May 1992).
14
Melilla (attached to the Crown of Castilla in 1497) and Ceuta (attached in 1581) constitute two
of the nineteen ‘Autonomous Communities’ in which the Spanish territory is divided, in accordance
with Article 144 and Transitional Declaration Five of the Spanish Constitution (ratified by
referendum on 6 Dec. 1978, BOE of 29 Dec. 1978). The ‘Autonomous Community’ is one of the
The Practice of Mediterranean States
15
577
16
Secretary-General and of the European Parliament, illustrate the
inherent difficulties in trying to control land borders. In relation to sea
borders, the ‘Integrated System for External Surveillance in the Strait
and in the High Seas’ (Sistema integrado de vigilancia exterior en el Estrecho y
en alta mar, SIVE) was approved in 1999. The satellite-controlled system
detects small vessels (and estimates the number of people in them) trying
to reach Spanish coasts and sends a signal to the Spanish police, who can
then set out to intercept them.17 The expansion of this system is believed
to have led to geographical shifts in routes, in particular the relocation
from the Strait of Gibraltar to the Canary Islands, which means that
immigrants are taking longer routes and therefore spending more time
at sea.18 The question therefore arises as to the effectiveness of the
system. According to Carling, the effectiveness of SIVE must be
evaluated in terms of its ability to reduce both the number of successful
unauthorised entries and the number of fatalities. In relation to the latter,
Carling concludes that available data on interception and fatalities
suggest that the migrant mortality rate has fallen significantly.19
In its report of June 2005, Amnesty International reiterated that
the organization had long expressed its concern that migration control
measures, including visas, carrier sanctions and immigration controls
undertaken in countries of origin, were preventing refugees from accessing the protection guaranteed under international and national legislation. Many of the people who arrive in Spain via Morocco, be it at the
Spanish city of Ceuta or in the Canary Islands, come from countries
including Algeria, Cameroon, Côte d’Ivoire, Congo, Democratic
Republic of Congo, Gambia, Ghana, Guinea-Bissau, Guinea Conakry,
Iraq, Mali, Niger, Nigeria, Liberia, Senegal, Sierra Leone, Sudan, and
Togo; many of whom have a record of serious human rights violations.
The organization believes that often individuals are prevented from
administrative and political entities for the territorial division of the State, according to Title VIII of
the Spanish Constitution, and its structure and functions resemble those of States within Federal
States. Ceuta and Melilla enjoy the same constitutional status than any other Spanish Autonomous
Community.
15
UN News Service, ‘Annan urges humane treatment of migrants trying to cross Morocco-Spain
border’, 7 Oct. 2005.
16
European Parliament, ‘Report from the LIBE Committee Delegation on the Visit to Ceuta and
Melilla’ (ES). Rapporteur: Ms Ewa Klamt, Doc. PE 367.858v02-00, of 24 Jan. 2006.
17
For a detailed presentation of the way SIVE operates, see El Mundo on-line at
,www.elmundo.es..
18
CIVIPOL, ‘Feasibility study on the control of the European Union’s maritime borders’. Final
Report. Transmitted to DG JAI on 14 July 2003. Doc. 11490/1/03 REV 1 FRONT 102 COMIX
458 Annex, 9. Amnesty International and other organizations, such as the Asociación Pro-Derechos
Humanos de Andalucı́a (APDHA), have reported the lack of effective mechanisms for rescue at sea.
Amnesty International, n. 12 above, 54, and APDHA: ‘El Estrecho: la muerte de perfil. Los derechos humanos
y la inmigración clandestina’, Dec. 2003.
19
Carling, n. 10 above, 21–22.
578
Marı́a-Teresa Gil-Bazo
requesting asylum in the Canary Islands and are made to wait until they
are sent to the mainland, which puts them at risk of a speedy removal
before they have had the chance to formalise their asylum claim. In the
case of Ceuta, the organization continues to report cases of ‘disappearances’ among asylum seekers who are expelled to Morocco in breach of
Spanish and international law, often during the long waiting period
between reporting themselves to the police and the appointment given
to formalise their claims. The total number of people who have been
secretly expelled is not known, nor is the presence among them of refugees fleeing human rights violations who have been deprived of the
chance to seek asylum.20
A similar analysis can be made of other Mediterranean States, such as
Italy, Greece and Malta.21 The negotiations of the Regulation establishing the criteria and mechanisms for determining the Member State
responsible for examining an asylum application lodged in one of the
Member States by a third-country national22 (henceforth, Dublin
Regulation), clearly showed the tensions between the demands of
northern European States and their Mediterranean partners. While
northern EU Member States wished the new Dublin Regulation to reflect
the criteria for the allocation of responsibility enshrined in its predecessor, the Dublin Convention,23 which was fundamentally based on
the Member State responsible for the presence of the applicant in EU
territory, Italy and Greece strongly opposed a system that placed on
them an undue burden on the basis of their geographical location. Italy
and Greece argued that their position as southern EU borders
made them entry and transit countries for individuals who never
intended to apply for asylum there, but rather intended to continue
their journey to other European countries. Consequently, they wished
these countries to take their share of the responsibility. Following months
where the negotiations were blocked, agreement was finally reached to
introduce a so-called ‘Sangatte clause’ that absolves Member States of
the responsibility that they would otherwise have over asylum seekers
for whose entry they were responsible, in cases where another
Member State was subsequently responsible for their unlawful stay,
20
Amnesty International, n. 12 above, 16–18, 30, and 51. Likewise, in his 2003 Annual Report,
the Ombudsman repeated his concerns at these delays and required that asylum applications be formalised with the greatest urgency, allowing only for the minimum necessary delay to ensure that
safeguards be met, including access to the assistance of a lawyer and an interpreter. ‘Defensor del
Pueblo, Informe annual ’, 2003, 622.
21
M. Baldwin-Edwards, ‘The Changing Mosaic of Mediterranean Migrations’, (2004) Migration
Policy Institute on-line.
22
Council Regulation (EC) No 343/2003 of 18 Feb. 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in
one of the Member States by a third-country national. [2003] OJ L50/1.
23
Convention determining the State responsible for examining applications for asylum lodged in
one of the Member States of the European Communities — Dublin Convention. [1997] OJ C254/1.
The Practice of Mediterranean States
579
provided that the individual had managed to be undetected during a
period of at least five months.24
Given their geographical location, Southern EU Member States not
only face arrivals by land and air, but also by sea. One of the best known
instances is that of the German-flag vessel Cap Anamur, which rescued a
group of 37 people in the Mediterranean in June 2004. Following several
days where the vessel was not allowed to disembark at any port, only
after further intervention by UNHCR and NGOs was the boat finally
allowed to disembark in Sicily (Italy) on humanitarian grounds.25 However, the arrival of asylum seekers by sea does not only affect southern
EU Member States. On 31 May 2005, a Danish-flag vessel, the
M.V. Clementine Maersk, rescued a group of 27 individuals who had been
floating adrift in a small boat for 8 days in the Mediterranean, mainly
Somalis, but also two Tunisians and one Palestinian. They reported that
during those 8 days, ships were passing by ignoring their pleas for help.
The ship reached its first scheduled port of call at Felixstowe (UK) on
4 June, where 26 of the 27 individuals applied for asylum. The UK
authorities completed the first asylum interviews on board and
subsequently allowed the asylum seekers to disembark.26
In order to face irregular migration by sea, Mediterranean States are
increasingly developing policies that often meet with criticism from international organizations. UNHCR has been reporting cases of removals
from the Italian island of Lampedusa to Libya, before individuals are
given the opportunity to make an asylum claim. UNHCR believes that
individuals with a valid protection claim are not given proper assessments
of their cases and that ‘it is far from clear that Italy has taken the necessary precautions to ensure that it is not sending back any bona fide refugees
to Lybia, which cannot be considered a safe country of asylum’. UNHCR
expressed its concern that the refugees who may have been among the
deported people could be further removed from Libya to their countries
of origin, in violation of the principle of non-refoulement.27
The arrival of individuals by sea at the borders of the Union is a matter of particular concern that raises issues as to the legal responsibilities of
Member States towards refugees, but also as to the extent of freedom of
24
Dublin Regulation, Article 10.
Italy had previously refused permission to disembark on the grounds that the vessel had crossed
Malta’s territorial waters. In July 2004, UNHCR raised its concerns at the way the cases had been
subsequently handled, and which resulted in the deportation of 25 persons to Ghana and 5 to Nigeria
in July, while 1 person received a temporary residence permit without going through the asylum
procedure. UNHCR News Stories, 23 July 2004.
26
UNHCR News Stories, 8 June 2005.
27
UNHCR Press Release, ‘UNHCR deeply concerned over Lampedusa deportations’, 18 Mar.
2005. Similar criticism has been expressed by Amnesty International. Amnesty International letter to
Franco Frattini, Commissioner for Justice, Freedom and Security, 21 Mar. 2005; Amnesty International, ‘Italy: Temporary stay – Permanent rights: The treatment of foreign nationals detained in
‘‘temporary stay and assistance centres’’’ (CPTAs) EUR 30/004/2005.
25
580
Marı́a-Teresa Gil-Bazo
navigation and of coastal States’ right to police and control. Obligations
with regard to the rescue of those in distress at sea, as well as other
obligations of international law, will circumscribe a State’s freedom of
action in certain cases.28
It is no surprise that the maritime aspects of border control are an
increasing priority in the EU agenda, especially in the Mediterranean.
On 27 November 2003, the Council adopted its Programme of measures to combat illegal immigration across the maritime borders of the
Member States of the European Union. In light with the overall purpose
of the EU’s JHA External Dimension, the purpose of this programme is
to improve action taken to combat illegal immigration across the
maritime borders of the Member States of the European Union by
enhancing international relations with the third countries from which
illegal migration flows originate or through which they pass.29 At its
meeting on 2 December 2004, the Council adopted conclusions evaluating the progress made with regard to the implementation of this
programme, and invited the Commission to make an in-depth analysis
of the existing international law instruments regarding illegal migration by sea
which could identify the need for possible amendments to these international
instruments to fill legal loopholes. Special attention should be paid to the rescue
at high seas, in particular and where appropriate, linked with the Convention of
Geneva and the asylum procedures in the Member States. It should also be
explored whether a specific arrangement on this issue could be developed for
the Mediterranean Sea.30
3. The institutionalisation of EU-Mediterranean
relations in the field of asylum and migration.
Following years of Member States’ cooperation on asylum and migration
matters, the entry into force of the Amsterdam Treaty31 in 1999, provided the necessary legal basis to bring such action within the legal
28
G. Goodwin-Gill, The Refugee in International Law (Oxford: Clarendon Press, 2nd edn., 1996),
161–7. See also UNHCR, ‘Background Note on the Protection of Asylum seekers and Refugees
Rescued at Sea’. Expert roundtable, ‘Rescue-at-Sea: Specific Aspects Relating to the Protection of
Asylum seekers and Refugees’ held in Lisbon, Portugal, on 25–26 Mar. 2002. See also, M. Pallis,
‘Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal
Regimes’ 14 IJRL 329 (2002).
29
Doc. 15445/03 FRONT 172 COMIX 731, 28 Nov. 2003, 2.
30
Doc. 15087/04 FRONT 201 COMIX 709, 22 Nov. 2004. The Commission is expected to
present its analysis by Mar. 2006 — see Commission Communication ‘Priority Actions for responding to the challenges of migration: First follow-up to Hampton Court’, COM(2005) 621 final, of 30
Nov. 2005, 5.
31
[1997] OJ C340. The Amsterdam Treaty was signed on 2 Oct. 1997 and entered into force on
1 May 1999.
The Practice of Mediterranean States
581
framework of European Community (EC) Law. Within this framework,
the EU set itself to developing a Common European Asylum System,32 as
well as a policy towards third countries that complemented these
efforts.33
Following earlier statements at EU level as to the need to address the
causes of migration, including preservation of peace and ending armed
conflicts, respect for human rights, the creation of democratic societies
and adequate social conditions, and liberal trade policies to improve economic conditions,34 the Justice and Home Affairs (JHA) External Dimension was launched in 1999 by the Tampere European Council. The JHA
External Dimension aims at projecting the EU’s asylum and migration
policies well beyond its borders by incorporating a JHA component in
the EU’s relations with third countries worldwide.35 This approach was
further reinforced by the European Council at its meetings in Santa
Maria da Feira (2000) and Sevilla (2002). These political guidelines
were subsequently consolidated within the 2004 Constitutional Treaty,
which includes the legal basis for the adoption in the future of asylum
and migration legislation in cooperation with third countries.36
It soon became clear that such endeavour required institutional coordination and therefore, in 2002, the Council modified the terms of reference of the High Level Working Group on Asylum and Migration
(HLWG) that had been originally set up in 1998 to elaborate Action
Plans for selected countries or regions of origin of asylum seekers and
migrants. Abandoning the ad hoc approach to address specific countries
on asylum and migration issues, the HLWG was then mandated to
undertake a cross-pillar co-ordinating role to integrate the external
dimension of asylum and migration policies within the EU’s existing
32
The first set of legally binding instruments under this framework has already been agreed
between 1999 and 2004, raising issues as to their lawfulness under International Refugee and
Human Rights Law. The European Parliament has already brought an action against the Council
before the European Court of Justice for violations of International Human Rights Law in the 2003
Directive on Family Reunification (Case C-540/03, [2004] OJ C47/21) and it is conceivable that it
may take the same steps in relation to the Directive on Asylum Procedures in the near future.
33
Within this context and in light of the ultimate goal of ensuring border control, the European
Border Agency was created in 2004 to improve the coordination of operational cooperation between
Member States in the field of external border management. Council Regulation (EC) No 2007/2004,
of 26 Oct. 2004, establishing a European Agency for the Management of Operational Cooperation
at the External Borders of the Member States of the European Union. [2004] OJ L349/1.
34
Declaration on Principles of Governing External Aspects of Migration Policy, annexed to the
Conclusions of the Edinburgh European Council, 11-12 Dec. 1992. Document SN 456/92, Annex 5
to Part A, para. ix.
35
Tampere European Council, 15-16 Oct. 1999, conclusion 11.
36
‘[. . .] European laws or framework laws shall lay down measures for a common European
asylum system comprising [. . .] partnership and cooperation with third countries for the purpose
of managing inflows of people applying for asylum or subsidiary or temporary protection’. III266(2)(g). [2004] OJ C310/1. The legal basis for external action in the field of asylum and migration,
however, already exists in the Treaties. See J. Monar, ‘The EU as an International Actor in the
Domain of Justice and Home Affairs’, 9 European Foreign Affairs Review 395–415 at 396–9.
582
Marı́a-Teresa Gil-Bazo
External Relations policies by developing ‘a strategic approach and a
coherent and integrated policy of the European Union for the most
important countries and regions of origin and transit of asylum seekers
and migrants, without geographical limitation’.37
In line with the objective to try and integrate asylum and migration
matters within the EU’s external relations, in December 2002, the
Commission presented its Communication on ‘Integrating Migration
Issues in the European Union’s Relations with Third Countries’,38
where it dealt with the relationship between migration and development,
and examined the effectiveness of the financial resources available at
community level for the repatriation of immigrants and rejected asylum
seekers, the management of external borders, and asylum and migration
projects in third countries (later dealt with by the Aeneas Regulation).39
Countries including Norway, Iceland, Switzerland, the US, Canada,
Bulgaria, Romania, Turkey, the Western Balkans, Russia, Ukraine,
Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan,
Armenia, Azerbaijan, Georgia, Morocco, Algeria, Tunisia, Jordan, Israel,
Egypt, China, Iran, South-Korea, Indonesia, Latin America, and the
African, Caribbean and Pacific countries party to the EU-ACP Agreement, are all under some form of agreement or negotiations with the EU
in relation to migration and asylum matters.40
In the case of Mediterranean States, the integration of migration
matters in external relations has taken place within the framework of
the so-called Barcelona process. The Euro-Mediterranean Partnership
inaugurated at the 1995 Barcelona conference established a policy of
long-term objectives, including the political and security partnership,
and the partnership in social, cultural and human affairs. In 2002, an
Action Plan was adopted in Valencia that gave further orientations for
reinforced co-operation in the Mediterranean region in three main
JHA matters: migration, reform of the judiciary and the fight against
criminality.
Within its external relations policies and in light of the expansion of its
borders that resulted from its enlargement to 10 new Member States,
the EU undertook to develop a closer co-operation with its neighbours
37
‘Modification of the terms of reference of the High Level Working Group on Asylum and
Migration’ (HLWG), Council Document 9433/02 of 30 May 2002, 2. Despite the apparent lack
of subsequent activity, the JHA Council confirmed this role at its informal meeting of 27–29
Jan. 2005.
38
COM(2002) 703 final, of 3 Dec. 2002.
39
Regulation (EC) No 491/2004 of the European Parliament and of the Council of 10 Mar. 2004
establishing a programme for financial and technical assistance to third countries in the areas of
migration and asylum (AENEAS). [2004] OJ L80/1.
40
See ‘JHA External Relations Multi-Presidency Programme’, Council Document 5001/05 JAI 1
RELEX 1, of 3 Jan. 2005 and ‘JHA External Relations Multi-Presidency Work Programme’,
Council Document 10728/05 JAI 244 RELEX 355, of 1 July 2005.
The Practice of Mediterranean States
583
and in 2003 launched the European Neighbourhood Policy (ENP), drawing from the existing co-operation and association agreements with third
countries, including Morocco.41 The ENP was presented as the logical
development of the EU’s duties ‘not only towards its citizens and those
of the new member states, but also towards its present and future
neighbours to ensure continuing social cohesion and economic
dynamism. The EU must act to promote the regional and subregional
cooperation and integration that are preconditions for political stability, economic development and the reduction of poverty and social
divisions in our shared environment’.42 The ENP ‘vision involves a ring
of countries, sharing the EU’s fundamental values and objectives, drawn
into an increasingly close relationship, going beyond co-operation to involve a
significant measure of economic and political integration’ (emphasis
added).43
The ever-expanding nature of the EU’s JHA External Dimension
has found further ground with the adoption in November 2004 of
the Multi-annual Programme for the Area of Freedom, Security and
Justice (‘The Hague Programme’), which constitutes the political
guidelines for the development of the EU’s asylum policies in the coming
years.44 Following the Commission’s Communication on the Hague
Programme,45 the Council and the Commission adopted the ‘Action
Plan implementing the Hague Programme on strengthening
freedom, security and justice in the European Union’.46 Measures in
relation to the External dimension of asylum and migration include
the priority to intensify ‘cooperation in preventing further loss of
life resulting from attempts to enter the EU illegally, mainly in the
Mediterranean’.47
41
The ENP was presented by the Commission in Mar. 2003 and further to the approval of the
Council, it was endorsed by the Thessaloniki European Council in June 2003. See ‘Wider Europe
Neighbourhood: A new Framework for relations with our Eastern and Southern Neighbours’,
COM(2003) 104 final, of 11 Mar. 2003. See also conclusions of the Thessaloniki European Council,
19–20 June 2003; doc. 11638/03 POLGEN 55, of 1 Oct. 2005. In Sept. 2004, the Commission
presented a proposal for a financial instrument aimed at funding the ENP, including on migration,
asylum and border controls — Proposal for a Regulation of the European Parliament and of The
Council laying down general provisions establishing a European Neighbourhood and Partnership
Instrument, COM(2004) 628 final 2004/0219 (COD), of 29 Sept. 2004.
42
‘Wider Europe Neighbourhood: A new Framework for relations with our Eastern and
Southern Neighbours’, COM(2003) 104 final, of 11 Mar. 2003, 3.
43
Commission Communication ‘European Neighbourhood Policy Strategy Paper’, COM(2004)
373 final, of 12 May 2004, 5.
44
‘The Hague Programme. Strengthening Freedom, Security and Justice in the European
Union’, Council Document 14292/1/04 REV 1 of 8 Dec. 2004, Annex I.
45
‘The Hague Programme: Ten priorities for the next five years. The Partnership for European
renewal in the field of Freedom, Security and Justice’, COM(2005) 184 final, of 10 May 2005.
46
[2005] OJ C198/1, 2 June 2005.
47
Ibid., para. 2.7.(d).
584
Marı́a-Teresa Gil-Bazo
3.1 The EU relations with North Africa on
migration matters
Within the context of the EU’s JHA External Dimension, as examined
above, the prioritisation given by the EU to relations with North Africa
responds to the fact that this region is a major transit route from Africa
into Europe. When the United Kingdom took over the Presidency of the
EU in July 2005, it stated that its priorities for the EU’s relations with
third countries included development of migration management capacity
under the EuroMed framework and neighbourhood transit countries such
as Libya, and enhancing protection capacity in North Africa to deal better with migration flows, including by facilitating co-operation between
North African States and Sub-Sahara African neighbours.48
This approach, that looks not only at relations between the EU and
North Africa, but further tries to strengthen the capacity of North Africa
to relate to its own southern neighbours, as well as the capacity of African
countries/regions of origin themselves to provide protection and prevent
secondary movements, is consistent with the ultimate goal of trying to
prevent the arrival of individuals into Europe and it constitutes another
attempt by the United Kingdom to promote its ‘new vision’ at EU
level.49 It is not surprising that one of the most prominent outcomes of
the UK Presidency of the EU in the field of migration was the adoption
by the European Council in December 2005 of a Global Approach to
Migration50 whose priority actions focus on Africa and the Mediterranean, and include the adoption of an EU-Libya Action Plan on Migration,
the establishment of a pilot Regional Protection Programme with
Tanzania,51 the enhancement of protection in the region, the increased
dialogue between the EU and the African Union on migration matters,
and the effective implementation with sub-Saharan countries of Article 13
of the Cotonou Agreement,52 that imposes on both parties the obligation
48
The priorities also include the launching of effective regional protection pilot projects to build
protection capacity for refugees in regions of origin and transit. ‘JHA External Relations MultiPresidency Work Programme’, document 10728/05 JAI 244 RELEX 355, of 1 July 2005, 2, 3, 7.
49
See n. 3 above. On the issue of enhancing protection in the region within the context of the
EU’s JHA external dimension, see Oxfam, Foreign Territory. The Internationalisation of EU Asylum Policy
(Oxford, 2005). See also UNHCR’s Strengthening Protection Capacity (SPC) Project, at
,www.unhcr.ch.. For an analysis of international cooperation to enhance protection in the region,
see A. Betts, ‘International Cooperation Between North and South to Enhance Refugee Protection in
the Regions of Origin’, Refugee Studies Centre Working Paper Series, July 2005.
50
Doc. 15914/05 CONCL 3, Annex I, of 17 Dec. 2005.
51
This follows the suggestion by the Commission in its Communication on ‘Regional
Protection Programmes’, COM(2005) 388 final, para. 16.
52
Partnership Agreement between the Members of the African, Caribbean and Pacific Group of
States of the one part, and the European Community and its Member States, of the other part,
signed at Cotonou in June 2000, available at ,http://europa.eu.int/comm/development/body/
cotonou/index_en.htm..
The Practice of Mediterranean States
585
to readmit any of their nationals who are illegally present on the territory
of the other parties.53
Despite the repeated statements that the idea of processing claims outside the EU has been abandoned, the suspicion that enhancing protection in the region may be intimately related to proposals to remove
asylum seekers to third countries for the purposes of processing their
claims has been echoed by the European Parliament in a resolution
adopted in June 2005 whereby the Parliament ‘expressly rejects once
again the idea whereby camps in which immigrants without papers or
asylum seekers would be accommodated or detained might be set up
outside the EU’s borders’ and expressed its concern ‘by the setting up
in the Mediterranean countries at the request of certain Member States,
of ‘‘preliminary reception centres’’ for immigrants heading for the
Union’s territory, which do not offer minimum guarantees to the people
concerned in terms of fundamental rights’.54
Earlier this year, UNHCR launched an initiative, funded by the EU, to
look into the complex issue of population movements from sub-Saharan
Africa to Europe and its impact on refugee protection. The project
‘Towards a Protection Space in North Africa’ focuses on the North
Africa region (Algeria, Mauritania, Tunisia, Morocco and Libya). The
project has three main objectives: to increase the knowledge and understanding of population movements via North Africa; to strengthen protection mechanisms for refugees and asylum seekers in the region; and to
develop a multilateral strategy to address the consequences of rescue and
interception at sea of boats carrying people trying to reach Europe.
UNHCR believes that ‘[b]ecause the refugee dimension of transit migration has so far been largely ignored, comparatively little is known about
the number of potential refugees mixed in with illegal migrants trying to
reach Europe’. The question of interception of boats on the high seas is a
complex one and often neglected, one that raises concerns about which
state is responsible for the asylum seekers who might be on board. Within
53
On the significance of introducing readmission clauses in association and/or other mixed
agreements, see D. Bouteillet-Paquet, ‘Passing the Buck: A Critical Analysis of the Readmission
Policy Implemented by the European Union and Its Member States’, (2003) 5 EJML 359–377 at
368–71.
54
European Parliament Resolution, n. 1 above, paras. 17, 27, and 36. When addressing
the measures aimed at curbing illegal immigration by sea, CIVIPOL boldly suggests that financial
cooperation between the EU and third countries should deal with ‘the introduction and maintenance
of administrative detention centres in the transit countries. In order to safeguard refugees’ rights,
where a sub-Saharan migrant is stopped at the Moroccan maritime border, he or she should be
allowed to remain there in decent conditions for the time it takes an application for asylum in
Europe to be processed. Where turned down, the applicant would then have to be repatriated to
their country of origin’. CIVIPOL, n. 18 above, 85. The Hague Programme itself calls for the
separate study of the appropriateness and implications of joint processing of asylum applications
within the Union and outside the EU territory. ‘The Hague Programme. Strengthening Freedom,
Security and Justice in the European Union’, Council Document 14292/1/04 REV 1 of 8 Dec. 2004,
Annex I, 18.
586
Marı́a-Teresa Gil-Bazo
this project, UNHCR intends to advocate a multilateral approach
involving the EU, countries of transit and the relevant international
organizations.55
3.2 The EU’s relations with Morocco
The relationship between the EU and Morocco (which is the leading
beneficiary of community assistance among Mediterranean partners) is
a long standing one. Following the initiation of diplomatic relations in
1960, a first co-operation agreement was signed in 1976. Following
the inauguration of the Euro-Mediterranean Partnership at the 1995
Barcelona conference, EU-Morocco relations were brought within that
framework.
The 1996 Euro-Mediterranean Agreement between the EU and
Morocco56 sets out in more detail the specific areas in which the
Barcelona process objectives can be developed bilaterally with Morocco.
Article 69 of the said Agreement establishes that dialogue shall cover, in
particular, all issues connected with migration, and illegal immigration
and the conditions governing the return of individuals who are in breach
of the legislation dealing with the right to stay and the right of establishment in their host countries. Article 2 grounds the relationship between
the EU and Morocco in the ‘[r]espect for the democratic principles and
fundamental human rights established by the Universal Declaration of
Human Rights shall inspire the domestic and external policies of the
Community and of Morocco and shall constitute an essential element
of this Agreement’.57
In light of this expressed commitment, in its Communication on ‘Reinvigorating EU Actions on Human Rights and Democratisation with
Mediterranean Partners’, the Commission proposed measures that
include developing national and regional action plans in support of
human rights and democracy with Mediterranean partners willing to
engage in this exercise. An additional substantial allocation was foreseen
for countries who developed national action plans on human rights.58
A year later, the Commission indicated in its National Indicative
Programme that ‘[i]t would be not only desirable but also necessary to
give a clear sign of political support to the Moroccan government in the
55
UNHCR News Stories, 1 Feb. 2005.
[2000] OJ L70/2. The Association Agreement entered into force on 1 Mar. 2000.
57
In its 2004 ENP Country Report on Morocco, the Commission states that ‘in the political
dialogue, Morocco has been one of the more open partners as regards human rights and democratisation’. SEC(2004) 569, of 12 May 2004, 3.
58
Commission Communication Reinvigorating EU actions on Human Rights and democratisation with Mediterranean partners Strategic guidelines, COM(2003) 294 final, of 21 May 2003.
56
The Practice of Mediterranean States
587
form of assistance for the drafting of the National Action Plan on human
rights’.59
In May 2005, the EU-Morocco Association Council Decision that creates a Subcommittee on Human Rights, Democratisation and Governance acknowledges that ‘[t]he European Union’s relations with the
southern Mediterranean countries are becoming increasingly complex
as a result of the implementation of the Euro-Mediterranean agreements
and the continuation of the Euro-Mediterranean partnership’.60 The
Subcommittee is thus created to discuss the implementation of the Agreement and the evaluation of progress as well as the problems that may
arise in relation to areas including the rule of law, good governance and
democracy, and the ratification and implementation of the principal
international conventions on human rights and fundamental freedoms,
and their protocols.61 The ability of the Subcommittee to undertake an
effective monitoring of human rights observance is yet to be seen, as it
has no decision-making power and, in line with the EU’s own lack of
transparency, its meetings and proceedings ‘shall not be made public’
(emphasis added).62
Despite the repeated statements as to the respect for human rights, the
incorporation of migration matters into the EU external relations aimed
primarily at controlling or managing movements from countries of origin, has resulted in the export of restrictive EU migration control policies
to third countries, who are increasingly adopting more restrictive legislation in response to the EU’s demands. The case of Morocco illustrates
this trend.63
Morocco’s situation as both a country of origin for migrants into
the European Union as well as a country of transit from other
African countries has long been recognized.64 In October 1999 the
European Council endorsed the Action Plan for Morocco drafted
by the High Level Working Group on Asylum and Migration
59
Euro-Med Partnership Morocco. National Indicative Programme 2005–2006, June 2004, 8–9. The components of the Programme to support the national plan for democracy and human rights are
described in pages 30–3.
60
Doc. UE-MA 2704/05, of 23 May 2005, recital 2.
61
Art. 3 of the Rules of Procedure.
62
Art. 8 of the Rules of Procedure.
63
In 2003, Morocco had already adopted legislation that codifies crimes and penalties relating to
irregular emigration attempts and people-smuggling, making them criminal offences and foreseeing
more severe sanctions for traffickers, including imprisonment. Despite the lack of progress in the
negotiations of a Community readmission agreement, agreements and minutes on readmission
have been signed with various EU Member States. In particular, Morocco cooperates with Spain
on border checks through a group that organises discussions, exchanges of information, liaison officers and joint patrols. On the contrary, Morocco has no formal agreements on migration matters
with Sub-Saharan countries, but according to the Commission, it has recently managed to repatriate
nationals of sub-Saharan countries in a series of ad hoc operations.
64
On the situation of Morocco as a transit country, see CIMADE, ‘La situation alarmante des migrants
subsahariens en transit au Maroc et les consequences des politiques de l’Union europeénne’, Oct. 2004.
Marı́a-Teresa Gil-Bazo
588
65
(HLWG) that included an analysis of the situation and proposed measures to address the root causes of migration from this country.66 The
implementation of this Action Plan, as well as the other ones drawn by
the HLWG was delayed due different factors, including the lack of coordination among the EU Member States, the lack of dialogue with the
third countries involved, and the lack of available funds.67
More recently and within the framework of the European Neighbourhood Policy, Morocco was selected as one of the first countries for the
development of Action Plans.68 The Action Plan agreed with Morocco is
a broad tool for economic and political co-operation, carrying to a further stage the commitments and objectives contained in the 1996 EuroMediterranean Agreement between the EU and Morocco. Within this
framework, the European Commission presented a proposal for a Council Decision in December 2004, where it proposed measures for the
implementation of the EU-Morocco Action Plan in the field of migration,
including the fight against illegal immigration and readmission agreements.69 The Council gave its agreement in February 2005 and following
editorial amendments, Morocco gave its approval on 12 July 2005, and
the Action Plan was thus amended.70
The amended Action Plan, includes among its objectives the development of legislation in accordance with international standards on asylum
and refugee protection, including the implementation of the relevant UN
Refugee Convention and its Protocol, in particular in relation to the
principle of non-refoulement, the recognition and cessation of refugee status
and the processing of manifestly unfounded asylum applications (despite
the fact that provisions on this particular matter are included in the
said treaties). It further states that the EU experience and expertise in
65
Action Plan for Morocco. Council Document 11426/99 JAI 75 AG 30, of 30 Sept. 1999.
The adoption of the Action Plan for Morocco was part of a broader initiative aimed at addressing the root causes of migration from 6 countries/regions of origin. Apart from Morocco, Action
Plans were drawn for Sri Lanka, Somalia, Afghanistan, Iraq and Albania/Kosovo.
67
See ‘High-Level Working Group on Asylum and Migration. Report to the European Council
in Nice’, Council Document 13993/00 JAI 152 AG 76, of 29 Nov. 2000, para. 51. See also, M-T.
Gil-Bazo, ‘HLWG Action Plans: Assessment of the Human Rights Dimension’, in ECRE, ‘The
ECRE Tampere Dossier. A Compilation of Non and Inter-Governmental Observations on the Special Meeting of the European Council on the Establishment of an Area of Freedom, Security and
Justice’, 15–16 Oct. 1999, ‘Tampere, Finland and a selection of Presentations made at the ‘‘ECRE
EU Tampere Summit Parallel Meeting’’’, June 2000, 59-60.
68
Commission Communication on the Commission proposals for Action Plans under the European Neighbourhood Policy (ENP). COM(2004) 795 final, of 9 Dec. 2004.
69
Commission Proposal for a Council Decision on the position to be adopted by the European
Community and its Member States within the Association Council established by the EuroMediterranean Agreement establishing an association between the European Communities and
their Member States, of the one part, and the Kingdom of Morocco, of the other part, with regard
to the adoption of a Recommendation on the implementation of the EU-Morocco Action Plan. Doc.
COM(2004) 788 final, of 9 Dec. 2004.
70
Doc. 11506/05 MA 16, of 27 July 2005.
66
The Practice of Mediterranean States
589
incorporating the Refugee Convention within national legislation will be
made available to Morocco.71
In addition to trying to establish an asylum system mirroring the one
being developed at EU level, another crucial objective of the Action Plan
is preventing and combating illegal migration to and via Morocco,
including by developing a regional cooperation formula for the prevention of illegal migration.72 This is to be coupled by measures to
strengthen organizational and institutional capacity for border control
and surveillance of entry and exit areas, again including by reinforcing
regional cooperation in the management of border controls.73
Two new institutions have been set up to fight against networks
that traffic in human beings: (i) the Migration and Border Surveillance
Directorate (mainly concerned with operational implementation of
the national strategy against trafficking networks and with border
surveillance); and (ii) the Migration Monitoring Centre (that brings
together representatives from all departments concerned with the issue
of migration).
In its Communication on the monitoring of third countries in the
fight against illegal immigration, the Commission acknowledges the
significant progress made in ‘building confidence between the EU and
Morocco’ and highlights the cooperation between Morocco ‘with its
neighbour Spain in efforts to stem the flow of illegal migration by sea
with the attendant humanitarian concerns’, as well as the efforts
made by Morocco ‘to cooperate with third countries, in particular
Nigeria’. The Commission however also notes that the EC has not yet
been able to agree a readmission agreement with Morocco, where outstanding issues remain regarding the readmission of non-nationals and
the forms of evidence to be provided. The Commission stresses ‘the
importance of further efforts to stem the flow of illegal migration across
the Mediterranean – with its high humanitarian cost’ and states that
‘Morocco should work closely with the EU to implement the European
Neighbourhood Policy Action Plan and to reach final agreement on and
(sic) adoption of a EC readmission agreement in the near future’. Apart
from direct relations EU-Morocco, the Commission stresses that
‘[f]urther dialogue should be encouraged not only between Morocco
and its regional neighbours but also with the neighbouring countries of
71
Doc. UE-MA 2702/1/05 REV 1, of 27 July 2005, para. 46. The Action Plan is aimed at
allowing for ‘une mise en ouvre plus ciblée des instruments mis à disposition par l’accord d’association conclu entre
l’UE et le Maroc et appuiera l’objectif marocain d’une intégration plus forte des structures économiques et sociales
marocaines à celles de l’Union. Ce processus prévoit également le rapprochement de la législation, des normes et des
standards marocains à ceux de l’Union dans de nombreux domaines’, 2-3.
72
Doc. UE-MA 2702/1/05 REV 1, of 27 July 2005, para. 48.
73
Ibid., para. 51.
590
Marı́a-Teresa Gil-Bazo
origin to the South in order to seek regional strategies for managing the
migratory flows more successfully’.74
3.3 The EU’s relations with Libya
Contrary to the case of Morocco, the EU currently has no contractual
relations with Libya. In April 1999, following the suspension of UN sanctions, Libya acquired observer status in the Barcelona Process and was
invited to become a full member as soon as the UN Security Council
sanctions have been definitively lifted and once Libya has accepted the
full Barcelona ‘acquis’. According to the Commission, Libya has recently
announced its readiness to move towards full membership of the Barcelona process, although this move needs to be confirmed formally by
Libya and followed up by steps towards acceptance of the Barcelona
acquis. The Commission claims that ‘progress towards full membership
of the Barcelona process will not be able to proceed beyond the
exploratory stage without resolution of outstanding bilateral issues with
EU member states’. Full integration into the Barcelona process would be
the first step towards relations with the EU, which would include the
negotiation of an Association Agreement with Libya.75
In its Communication on the monitoring of third countries in the fight
against illegal immigration,76 the Commission recalls that the EU still has
no formal relations with Libya, and that Libya is not a member of the
Barcelona process, and that ‘accordingly, there is at present no avenue
for a formal EU-Libya dialogue on migration management’. The Commission refers however to the note taken by the General Affairs Council
on 11 October 2004 of the fact that ‘Libya has made significant strides
towards reintegration into the international community’.77
The lack of formal relations EU-Libya has not prevented the EU to
engage itself in ‘informal’ relations with this country regarding migration.
Following an exploratory mission to Libya in May 2003, a Commissionled technical mission on illegal immigration with the participation of
Member States, was conducted in Libya between 27 November and
6 December 2004.78
74
Commission Communication on the monitoring and evaluation mechanism of the third countries in the field of the fight against illegal immigration. COM(2005) 352 final, of 28 July, paras.
5.1–5.2.
75
Commission Communication ‘European Neighbourhood Policy Strategy Paper’, COM(2004)
373 final, of 12 May 2004, 12.
76
Commission Communication on the monitoring and evaluation mechanism of the third countries in the field of the fight against illegal immigration. COM(2005) 352 final, of 28 July 2005.
77
COM(2005) 352 final, of 28 July 2005, para. 4.1.
78
Commission’s Report on the Technical Mission to Libya on Illegal Migration 27 Nov.
2004–6^Dec. 2005. Document 7753/05. Despite numerous calls for the report to be made public,
the document has not been officially disclosed. However, the report can be accessed at Statewatch’s
website at: ,http://www.statewatch.org/news/2005/may/eu-report-libya-ill-imm.pdf..
The Practice of Mediterranean States
591
On the basis of the findings of this technical mission, the Council
decided in June 2005 that pursuing relations between the EU and
Libya in the field of migration constituted a priority for the EU. While
it reiterates that a requirement for the establishment of formal relations is
the integration of Libya in the Barcelona process and its acceptance of
the Barcelona acquis, it nevertheless considers it feasible to proceed with
ad hoc cooperation arrangements aimed at preventing unauthorised
migration from and via Libya, including by developing cooperation in
relation to the sustainable removal of unlawfully present migrants back
to Libya in the full respect of human rights.79 However, Libya is not a
party to the UN Refugee Convention and its Protocol, although it is a
party to the African Union’s Convention on specific aspects of refugee
problems in Africa. Given the lack of EU diplomatic relations with Libya
and the fact that Libya is not bound by the UN Refugee Convention (to
which EU Member States are parties), any moves towards agreements for
the removal of individuals to Libya raise serious issues of compliance by
the EU with its international obligations towards refugees.
In this regard, relations between the EU and Libya in the field of
migration have been severely criticised by international organizations.
Amnesty International has called on the EU to refrain from developing
flexible mechanisms of co-operation with Libya on illegal migration that
would include neither appropriate legal safeguards, nor proper parliamentary scrutiny. The organization notes that Libya’s record in relation
to the treatment of refugees and migrants falls short of international
standards. Apart from the fact that Libya is not a party to the
Refugee Convention, there is no official acknowledgment of the presence
of refugees and asylum seekers in Libya and UNHCR is has no official
status in the country; in absence of the legal and operational framework, human rights and refugee protection concerns in Libya cannot
be construed as being effective. Furthermore, the organization also calls
attention to the fact that expulsions of large numbers of unlawfully present immigrants are carried out on a regular basis and their detention
conditions are reported to be deplorable. In this context, Amnesty
International concludes that deportations of ‘irregular migrants’ to
Libya as carried out repeatedly by EU Member States, in particular
by Italy and Malta, must be regarded as a matter of serious concern.80
Echoing these concerns, the European Parliament adopted a
Resolution on 8 June 2005 whereby it urged ‘the Commission to ensure
that those in need of protection may gain safe access to the Union and
79
Justice and Home Affairs Council conclusions, 2–3 June 2005. Document 8849/05 (Press 114).
Amnesty International, ‘Immigration Cooperation with Libya: The Human Rights Perspective.
Amnesty International briefing ahead of the Justice and Home Affairs Council’, 14 Apr. 2005.
80
592
Marı́a-Teresa Gil-Bazo
have their claims properly processed, and to ensure strict adherence to
standards of international human rights and refugee law and in particular
to the principle of non-refoulement’ and further ‘[r]eminds the Commission,
as the guardian of the Treaties, of its duty to ensure that the right
of asylum is respected in the European Union, in accordance with
Article 6 of the EU Treaty and Article 63 of the EC Treaty, given that
recent cases of collective expulsions from certain Member States have
cast a shadow over compliance by these countries with their obligations
under EU law’.81
In fact, the Technical Mission report itself acknowledges that:
Libya is now pursuing a return policy for foreigners residing illegally in the
country. The mission in June visited various reception camps of different nature,
and a main focus of the management of illegal immigration seems to be put on
organising repatriation operations. The decision to return illegal immigrants
seems to be taken without due consideration to detailed examination at an individual level. No information on specific procedures and criteria for detaining
individuals was provided by the Libyan authorities. Conditions of detention in
different sorts of camps visited vary greatly, from relatively acceptable to
extremely poor. In 2004, Libyan Authorities repatriated 54,000 illegal immigrants of various nationalities, and there is a significant increase in nationals
originating from sub-Saharan African countries and Egypt.82
The Report further acknowledges that while the Libyan Constitution
foresees
some sort of refugee protection [. . .] there is no administrative structure dealing
with refugees and asylum seekers, and no cooperation agreement between
UNHCR and Libya; the local UNHCR office has no official status. Consequently, in practice, international protection of refugees is not assured.83
The Commission acknowledges that migratory pressure on Libya is
likely to increase and that this country has been identified as a potential
priority for the intervention and support by the Commission under the
Aeneas programme for the period 2004–2006. The Commission’s
recommendation is that this country ‘be encouraged to respond positively
to the EU’s policy of engagement whilst reiterating that the ultimate
objective of any cooperation is Libya’s full integration into the Barcelona
Process’.84
81
European Parliament Resolution on progress made in 2004 in creating an area of freedom,
security and justice (AFSJ) (Articles 2 and 39 of the EU Treaty), B6-0327/2005, of 8 June 2005,
paras. 24–25.
82
Commission’s Report, n. 75 above, 6.
83
Ibid., 13.
84
COM(2005) 352 final, of 28 July 2005, para. 4.2.
The Practice of Mediterranean States
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4. Assessing the lawfulness of the Mediterranean
practices: the exercise of State jurisdiction outside its
territory and the ‘Safe Third Country’ concept
As the analysis in the previous sections shows, the EU’s external policies
both generally and in the context of the Mediterranean, seek to prevent
the arrival of individuals into the EU by cooperating with third countries
(whether within formal frameworks — Morocco- or through ad hoc
measures — Libya) in the control of borders to ensure that they will
accept responsibility for the asylum seekers that manage to overcome
the control measures and reach the EU’s territory. They further aim at
moving the borders further south by promoting co-operation between the
EU’s neighbours and other third countries themselves, ultimately seeking
to ensure that refugees will remain as close as possible to their country of
origin.
The whole set of practices raise issues of a different legal nature, but
what is crucial is that the whole system is underpinned by two main legal
premises. Firstly, that States’ obligations towards refugees are not fully
engaged as long as refugees have not managed to enter the territory of
the asylum State. And secondly, that States are not obliged to process
asylum applications or to grant asylum, as no such obligations appear in
the letter of the Refugee Convention, and that therefore they may choose
to remove individuals to third countries without considering their protection claims, provided that the principle of non-refoulement be respected. An
assessment of the lawfulness of the EU’s practice towards third countries
therefore requires an analysis of these two premises.
4.1 The exercise of State jurisdiction outside its borders
An understanding that States’ obligations are engaged by a territorial
nexus (this is, the presence of the individual in the territory of a State)
explains the creative resort by States to various practices aimed at preventing the physical arrival of refugees to their territories, including by
‘moving’ their borders to the country of origin of asylum seekers85 and
the enactment of sophisticated legal fictions aimed at avoiding the recognition of the legal presence of those physically present.86
This architecture of policies and practices, and their translation into
complex legal concepts, seeks the denial of the territorial link that would
engage States’ obligations. If one accepts the premise that States’
obligations are engaged by a territorial nexus between the State and
the individual, one would need to deny the existence of States’
85
See for instance, R v. Immigration Officer at Prague Airport et al., ex parte European Roma Rights Centre
et al. [2004] UKHL 55 9 Dec. 2004).
86
See for instance, D. v. UK ( Judgment), (1997), European Court of Human Rights, para. 48.
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Marı́a-Teresa Gil-Bazo
obligations vis à vis refugees that have not reached the State’s territory.
However, this interpretation would be at odds with the long established
case-law of international human rights monitoring bodies, notably the
European Court of Human Rights, that States’ obligations under the
international human rights law may be engaged not only when human
rights violations take place within the State’s territory, but also when they
occur outside the State’s territory. In order to reconcile this interpretation
with a territorial requirement, the notion of extraterritorial application of
human rights has been developed, trying to identify which rights have
extraterritorial effect, and therefore in which cases States’ obligations are
engaged outside their borders.
This approach, however, does not fully reflect the way States’ obligations towards refugees are engaged under international law. I have
argued elsewhere that it is the exercise of State jurisdiction vis à vis an
individual that determines the engagement of States’ obligations under
international law, regardless of whether that individual finds himself
within or outside the territory of the State.87 A careful reading of decisions interpreting international human rights law shows that international
monitoring bodies have consistently focused on the notion of jurisdiction,
defined as the relationship between the individual and the State, rather
than on that of extraterritoriality to determine the existence of States’ obligations under international human rights law.88 More recently, the UN
Human Rights Committee has reiterated its position over the years that
States parties ‘must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party,
even if not situated within the territory of the State Party’. The Committee expressly states that:
the enjoyment of Covenant rights is not limited to citizens of States Parties but
must also be available to all individuals, regardless of nationality or statelessness,
such as asylum seekers, refugees, migrant workers and other persons, who may
find themselves in the territory or subject to the jurisdiction of the State Party.
This principle also applies to those within the power or effective control of the
forces of a State Party acting outside its territory, regardless of the circumstances
in which such power or effective control was obtained.89
87
See M-T. Gil-Bazo, The Right to Asylum as an Individual Human Right in International Law. Special
Reference to European Law (Ann Arbor: UMI, 1999), 213–426.
88
See, for instance, Lopez Burgos v. Uruguay, Communication 52/1979, UN Human Rights Committee views of 29 July 1981; calan v Turkey (Judgment), (2003), European Court of Human Rights,
para. 93, and calan v Turkey (Judgment), (2005), European Court of Human Rights [GC], para. 91.
For an analysis of the applicability of International Human Rights Treaties to extraterritorial State
action see R. Wilde, ‘Legal ‘‘Black Hole’’? Extraterritorial State Action and International Treaty
Law on Civil and Political Rights’, (2005) 26 MJIL 739-806.
89
UN Human Rights Committee, ‘General Comment No. 31 on Article 2 of the Covenant: The
Nature of the General Legal Obligation Imposed on States Parties to the Covenant’. CCPR/C/74/
CRP.4/Rev.6 (General Comments), of 21 Apr. 2004, para. 10.
The Practice of Mediterranean States
595
Given that States’ obligations are engaged towards all refugees who
come under their jurisdiction, including by exercising jurisdiction in the
territory of another State or in the high seas, the question therefore arise
as to — once the exercise of jurisdiction that engages their international
obligations has been established — whether States may transfer that
responsibility to another State.
4.2 The ‘Safe Third Country’ concept revisited
In its different variations, the STC has managed to ground itself so firmly
in the discourse of governments, academics and even NGOs that
the debate does not address the lawfulness of the practice itself, but
rather — seemingly accepting it — focuses on the specific requirements
that are to be met for a State to be considered a safe third country.
As it has been argued above, the conceptual foundation of the policies
aimed at shifting responsibility for refugees to third countries often rests
in the understanding that States are not obliged to process asylum applications or to grant asylum, as no such obligations appear in the letter of
the Refugee Convention, and that, consequently, States may choose to
remove individuals to third countries without considering their protection
claims, provided that the principle of non-refoulement be respected.
Hathaway explains that ‘the right of States to remove refugees’ (emphasis
added) would be conditional ‘on a determination that ‘‘effective protection’’ worthy of the name is in fact available in the destination country’.
Hathaway claims that the Refugee Convention does not impose an
obligation on State Parties to restrict such STC determinations to States
parties to the Refugee Convention or Protocol, where the individual’s
status will be assessed and where all relevant Convention and other rights
will be honoured. In his opinion,
a country can be deemed a ‘safe third country’ only if it will respect in practice
whatever Convention rights the refugee has already acquired by virtue of having come
under the jurisdiction or entered the territory of a state party to the Refugee
Convention, as well as any other international legal rights thereby acquired; and further that there be a judicial or comparable mechanism in place to enable the
refugee to insist upon real accountability by the host state to implement those
rights (emphasis added).90
Despite the long standing practice of States in relation to the STC
concept,91 the increasing sophistication in its practice, the changing
legal and political landscapes in which it is applied, and more important
to our analysis, its becoming a minimum standard of EC Law by way of
its incorporation in the Directive on minimum standards on procedures
90
J. Hathaway, The Rights of Refugees Under International Law (Cambridge: Cambridge University
Press, 2005), 332–3.
91
C. Costello, ‘The Asylum Procedures Directive and the Proliferation of Safe Country Practices:
Deterrence, Deflection and the Dismantling of International Protection?’, (2005) 7 EJML 35-70.
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Marı́a-Teresa Gil-Bazo
in Member States for granting and withdrawing refugee status,92 make
the question as to its lawfulness timely and pertinent.
A conceptual distinction (that often goes blurred in the current state of
debate) must be made between the STC as a procedural tool for States to
refuse responsibility to determine the refugee status of a claimant on the
grounds that another State should or is (if agreements exist between the
two countries) responsible to examine the claim, and the STC as a standard to determine whether sufficient protection exists in a particular
country in order for States to remove/retain individuals there for the
purposes of examining their claims.93 In the first case, States refuse to
take responsibility to examine a protection claim, while in the second
case, States accept their responsibility to undertake refugee status determination, but argue that no obligation exists to do so within their own territories. For instance, at the governmental Conference on Asylum held in
Lisbon in June 2000, the UK’s Home Secretary at the time, Jack Straw,
stated that ‘the Convention gives us the obligation to consider any claims
made within our territory, however lacking in substance’;94 a statement
that is not in contradiction with the one made by Tony Blair three years
later that ‘[t]here is no obligation under the 1951 Refugee Convention to
process claims for asylum in the country of application’.95 Therefore,
while the UK admits an obligation under the Refugee Convention to
consider claims lodged within its territory, it believes that the examination of such claims may be done by States elsewhere.
While partly relevant to the second approach, the analysis that follows
is primarily concerned with the first approach to the concept, namely, the
one that transfers the responsibility for refugees to another State. This is
due to the fact that this remains the applicable approach to EU relations
with third countries, although, as it has been indicated throughout the
paper, despite denials that the second approach has been abandoned,
there are indications that it still remains in the agenda, even if with a
lower profile, and therefore, further attention to the specific legal issues
arising from it is still needed.96
It is argued here that, on the basis of the legal axiom that to every right
there is a corresponding duty, an attempt to identify the obligations of
States towards refugees requires first clarification as to which rights a
92
Articles 23(4)(c)(ii), 25(2)(c), 27, and 36, Council Directive 2005/85/EC of 1 Dec. 2005 on
minimum standards on procedures in Member States for granting and withdrawing refugee status
[2005] OJ L326/13.
93
As it has been illustrated above, the nature of the EU’s policies towards third countries in the
field of asylum draws from both approaches to the STC concept.
94
Straw, n. 3 above, 137.
95
Letter from the UK Government, n. 3 above.
96
For a critique of these proposals, see G. Noll, ‘Visions of the Exceptional: Legal and Theoretical Issues Raised by Transit Processing Centres and Protection Zones’, (2003) 5 EJML 303–341 and
Amnesty International, ‘UK/EU/UNHCR Unlawful and Unworkable – Amnesty International’s
views on proposals for extraterritorial processing of asylum claims’, IOR 61/004/2003.
The Practice of Mediterranean States
597
refugee can claim vis à vis a State. It is also argued that the status of
refugees under international law is defined not solely by International
Refugee Law, but rather by the interaction of the different legal orders
that may be applicable to any given refugee in any given circumstances,
both of universal and regional scope. While the international refugee law
regime established by the Convention relating to the Status of Refugees97
(hereinafter, the Refugee Convention) and its Protocol98 remains the
primary source of refugee rights worldwide, an attempt to identify the
rights of refugees under international law by reference to the rights found
solely under these two instruments is severely limited, as it overlooks
wider legal claims that refugees may hold (as refugees and in other
capacities) under other international instruments of universal and
regional scope. Despite the numerous statements that refugee rights are
human rights and that international refugee law is part of international
human rights law, as well as an increasing reference to developments
under international human rights law by refugee lawyers, systematic
legal analysis that soundly root refugee rights within a human rights theoretical framework are scarce. Yet, only a holistic approach to human
rights can offer a more comprehensive picture, albeit more complex, of
what States are obliged to do (and, therefore, what they may be free to
do) in relation to refugees.
In the polarised and often emotionally charged environment where
discussions on refugee issues take place, a rights-based approach is
often labelled as unconstructive or unhelpful, on the grounds that it
ignores the legitimate interests of the State in relation to, inter alia, migration control and security concerns. Such a position shows some conceptual confusion, however, as a rights-based approach is one that by
definition does take into account the interests of the State. Given that
only very few rights are of an absolute nature, allowing for no derogation
under any circumstances,99 identifying the scope of a particular right is
almost always the result of a balancing exercise between the individual’s
own interests and the legitimate interference of the State, as long as
such interference is necessary and proportionate to the pursuance of
legitimate aims.100 Yet, this does not solve States’ concerns in relation
to non-derogable human rights; the only option for States wishing to
exercise discretion in this regard is to denounce the international treaties
to which they are parties where the particular obligation may be
contained, without prejudice to their remaining bound by obligations of
customary international law and, where applicable, jus cogens.
97
189 UNTS 2545, done 28 July 1951, entered into force 22 Apr. 1954.
606 UNTS 8791, done 31 Jan. 1967, entered into force 4 Oct. 1967.
See for instance, Article 4 of the International Covenant on Civil and Political Rights (ICCPR),
999 UNTS 171, done 19 Dec. 1966.
100
UN Human Rights Committee, n. 89 above, para. 6.
98
99
598
Marı́a-Teresa Gil-Bazo
Writing in 1993, Antonio Fortı́n, at the time Deputy Representative of
UNHCR in the UK, wrote a legal opinion challenging the lawfulness of
the STC concept. Fortı́n explains that:
[t]he policy whereby an asylum seeker arriving from a so-called ‘safe third country’ is returned to that country without his substantive claim having been considered is based on the assumption that there is an international principle by
virtue of which a person who has left his country in order to escape persecution
must apply for recognition of refugee status and/or for asylum in the first safe
country he has been able to reach.
He further continues explaining that ‘[a]lthough the persistent repetition of this assumption has led many to accept it uncritically, the reality is
that no such an international principle exists’. Fortı́n explains that refugees
are internationally protected persons that are entitled to treatment in
accordance with internationally prescribed standards enshrined not only
in the Refugee Convention, but also in other international instruments.
Given the declaratory nature of refugee status and considering that recognition of such status ‘is an absolute pre-condition for the person to enjoy the
internationally prescribed treatment, it should be concluded that a person
who fulfils the requirements of Article 1 of the 1951 Convention is entitled
to recognition of his refugee status’. The suggestion that States parties to
the Refugee Convention generally are under no obligation to consider
requests for recognition of status made within their jurisdiction appears
to be incompatible with the purpose of the Convention, which would be
rendered meaningless if that were the case. Furthermore, and contrary to
the views that seem to understand that there is an absence of international
rules establishing which State is to be responsible for a refugee,101 Fortı́n
argues that the person can exercise this right to seek recognition of refugee
status in terms of the Refugee Convention in any State party to that instrument within whose jurisdiction he may find himself. Likewise, none of the
internationally accepted principles relating to asylum suggest that the right
to seek asylum has to be exercised in any particular country.102
101
C. Phuong, ‘Identifying states’ responsibilities towards refugees and asylum seekers’. Paper
presented at the ESIL Research Forum on International Law, May 2005. Copy on file with the
author.
102
A. Fortı́n, The ‘Safe Third Country’ Policy in the light of the international obligations of countries vis à vis
refugees and asylum seekers (London, 1993), paras. 1.1-1.2 and 2.2-2-3. (Copy on file with the author).
On this particular point, when confronted with the plight of the vessel ‘Cap Anamur’, described
above, Italy and Germany claimed the existence of an international norm imposing a duty on individuals to apply for asylum at the first port of entry. In the joint press release issued by the German
and Italian Ministers of Interior in July 2004 in relation to the vessel ‘Cap Anamur’, whereby they
consider an absolute duty to respect the international norm that imposes an obligation to lodge an
asylum application in the country of first arrival (which they considered to be Malta, as the ship had
crossed its territorial waters) and understood that a derogation of such norm, despite its humanitarian
nature, would constitute a dangerous risk that could open the door to numerous abuses. ‘La vicenda
della nave ‘‘Cap Anamur’’ all’esame dei Ministri dell’Interno Pisanu e Schily. Incontro a margine della riunione
informale a Sheffield’, Comunicato stampa del 6 Jul. 2004. Available at: www.interno.it. Subsequently,
Italy agreed to allow the vessel to enter Sicily.
The Practice of Mediterranean States
599
Furthermore, the obligations of States towards individuals under international human rights law are both negative and positive in nature.103
States are therefore not only obliged to respect, but also to fulfil and to
protect all human rights. They must not only refrain from interfering
(except if necessary and in a proportionate manner), but they must take
all necessary action, legislative, judicial, administrative and practical, to
ensure that rights are guaranteed to the greatest extent possible.
Summing up, if refugees have a right to seek recognition of their refugee status vis à vis any State party to the Refugee Convention in whose
jurisdiction they find themselves, and if under international human rights
law, individuals (including refugees) are holders of rights that go beyond
the lack of interference by requiring positive State action, it follows that
States are under obligations towards refugees outside their territories but
within their jurisdiction (defined as the power or effective control of that
State), that go well beyond the mere respect of the principle of nonrefoulement. From this perspective, the transfer of responsibility from a
State to another State, even admitting that such State be a ‘safe third
country’, raises issues of State responsibility to fulfil all the obligations
towards refugees under international refugee and human rights law that
have been engaged by its exercise of jurisdiction.
Trying to delimit the exact scope of States’ obligations is well beyond
the purpose of this paper. What is argued here is that the obligations of
States under International Law (as well as their international responsibility for violations of those obligations) when acting individually or collectively (within the context of the EU’s Justice and Home Affairs External
Dimension) are engaged when exercising jurisdiction in the context of
readmission agreements, interception at sea and subsequent removals to
‘safe countries’, and generally when controlling their land and sea borders. Member States of the EU remain internationally accountable for
their performance in the field of human rights, and therefore, the
approach of the EU to its Justice and Home Affairs External Dimension
must be informed by this understanding.104
5. Conclusion
This paper has showed the way in which, in the context of establishing a
Single Market without internal borders, the ultimate goal of the EU’s
103
UN Human Rights Committee, n. 89 above, para. 6.
The UN Committee against Torture has already pronounced itself against the UK’s understanding that the UN Convention against Torture is only limitedly applicable to the action of its
armed forces abroad and has questioned the use of diplomatic assurances in removal cases.
Committee against Torture, ‘Conclusions and recommendations of the Committee against Torture.
United Kingdom of Great Britain and Northern Ireland, Crown Dependencies and Overseas
Territories’, CAT/C/CR/33/3, of 10 Dec. 2004, at 4(b) and (d).
104
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Justice and Home Affairs External Dimension policies is to ensure that
refugees remain as close as possible to their countries/regions of origin. It
has also been shown that within this process, the policies of northern
European States in the field of migration shape those of their southern
neighbours, as well as their own relations with third countries, whether
within a formal framework (like in the case of Morocco) or by means of
ad hoc measures (as it is the case with Libya).
The practices of Mediterranean States within the context of the EU’s
Justice and Home Affairs External Dimension give rise to a variety of
issues, and most importantly, they raise questions as to the sustainability
of this ‘system’ and the legal premises on which it’s based. This paper has
argued that a human rights theory approach to refugee law serves the
purpose of grounding any legal analysis of refugee rights and corresponding States’ duties under International Law within a conceptual and methodological framework that best allows identifying what States are legally
bound to do under International Law in relation to refugees under their
jurisdiction. A comprehensive development of this approach would need
to address matters including issues of responsibility of Member States
under international law when implementing EC/EU Law, the international accountability of the EU and its institutions and agencies in
absence of accession to international human rights instruments, and the
specific legal issues arising from the STC as a standard to determine
whether sufficient protection exists in a particular country in order for
States to remove/retain individuals there for the purposes of examining
their claims.