NO NEED FOR RIGHT OF ASYLUM FOR EU-CITIZENS? IGC DISCUSSES SPANISH PROPOSAL
Despite warnings from the Office of the UN High Commissioner for Refugees, the EU Intergovernmental Conference (IGC) is now seriously discussing a Spanish proposal that no citizen of a EU member state be allowed to apply for asylum in another member state. An IGC "discussion paper" examines whether or not such a ban on asylum, based on a special agreement among the EU member states, is compatible with the 1951 Geneva Convention on Refugees and international law.
Spain has proposed adding the following new provision to the TEC (Treaty on the European Communities):
"Every citizen of the Union shall be regarded, for all legal and judicial purposes connected with the granting of refugee status and matters relating to asylum, as a national of the Member State in which he is seeking asylum.
Consequently, no State of the Union shall agree to process an application for asylum or refugee status submitted by a national of another state of the Union."
Surprising support from the EU Council
To the surprise of many, the Presidency Conclusions to the Dublin EU Summit of last December contained the following statement, indicating that Spain can count on some support for its demand, at least among the heads of the other EU countries:
"The European Council asks the Conference to develop the important proposal to amend the Treaties to establish it as a clear principle that no citizen of a Member State of the Union may apply for asylum in another Member State, taking into account international treaties."
Geneva Convention does not "explicitly oblige states to deal with requests for asylum", IGC paper claims
An IGC "discussion paper" of 4 February examines how such an EU-internal ban on asylum could be included into the EU Treaties.
"No provision in the Geneva Convention explicitly obliges contracting States to deal with requests for asylum" the paper stresses. An "implicit obligation to deal with certain asylum requests" is, however, established by the Convention's Article 33 §1 which prohibits the return ("refoulement") of a refugee to a country where he or she is threatened with persecution on the grounds stated in the Convention.
EU to request revision of the Geneva Convention?
Considering this possible obstacle, the paper raises the question whether it would be possible for the 15 member states to "agree amongst themselves different rules than those provided under the Geneva Convention" without breaching international law, or whether EU member states would have to "request all other Contracting States of the Geneva Convention for a revision of this instrument"?
The IGC discussion paper concludes with the following assessment:
"The EC Treaty amendment proposal by the Spanish Government is not prohibited by the Geneva Convention. Nor does it affect the rights of third countries party to the Convention. The question as to whether it would be incompatible with the object and purpose of the Geneva Convention depends on an assessment of the greatest political significance. In other words, what is the risk, if any, of citizens of the Union being persecuted in a Member State on account of their race, religion, nationality, membership of a particular social group or political opinion?"
Impossible to exclude persecution in any particular country of the world, UNHCR says
The United Nations High Commissioner for Refugees (UNHCR) clearly does not share the assessments made in the IGC paper. Thus, a UNHCR position paper sent to the IGC stresses the fact that "it is impossible, realistically speaking, to exclude the possibility that an individual could have a well-founded fear of persecution in any particular country however great its attachment to human rights and the rule of law.(...) [The] need for international protection cannot be excluded absolutely and categorically in every case. Nor, regrettably, can fundamental changes in the political system or in the human rights situation".
The UNHCR goes on to remind the EU member states that in joining the Geneva Convention they "have... adopted a refugee definition without any limitations as to the country of origin". The modification of the TEU proposed by Spain would amount to introducing "a posteriori a geographical limitation to the application of the refugee definition". An "automatic ban" on refugees from EU countries would furthermore breach Article 3 of the Geneva Convention which prohibits discrimination against refugees based on their country of origin, UNHCR claims. The UNHCR makes it clear that the "above-mentioned concerns can... not be remedied by mere reference to the need to take international treaties into account". This is a hint at a well established practice among the EU states - to declare in the introductory provisions of conventions and policy decisions that interfere with human rights obligations that the relevant international treaties will be "taken into account".
Spanish proposal would affect "the very essence of international refugee law"
The modification of the EU Treaties considered by the member states would "affect the very essence of international refugee law" and would be "incompatible with the object and purposes of these instruments as a whole".
The UNHCR has accepted the use of fast-track asylum examination procedures by EU member states for asylum seekers from "safe countries of origin". The general assessment of a country of origin as safe may give rise to a "rebuttable presumption concerning the general absence of a serious risk of persecution". But, as it says in the EU Immigration Ministers' own 1992 Conclusion on "countries where there is generally no serious risk of persecution", this "should not automatically result in the refusal of all asylum applications from its nationals or their exclusion from individualised determination procedures". Finally, the UNHCR recalls the Resolution "on minimum guarantees for asylum procedures" adopted less than two years ago by the EU Justice and Home Affairs Council. This Resolution says asylum applications of nationals of another EU country should be handled in particularly rapid and simplified procedures, but it states at the same time that all EU member states continue to be obliged to examine individually every application for asylum.
Dangerous precedent value of EU-internal automatic ban on asylum
More generally, the UNHCR warns against the "precedent value" of an EU-internal automatic ban regulation. "The ripple effects may be considerable, and this concept may well be followed by other regions, with the inherent danger of undermining the scope of applicability of the international refugee instruments universally. It may also erode the humanitarian nature of asylum by complicating relations with non-EU States."
Aggressive Spanish memorandum
The concerns of the UNHCR and the hesitations expressed in the IGC discussion paper are summarily refuted in a "memorandum" signed by the Spanish representative at the IGC, Mr Javier Elorza. The polemical and lecturing tone of the documents speaks for itself: "In principle, it should most certainly not be logically possible to think that the nationals of a member state should be in need of seeking asylum in another member state", the memorandum begins. As opposed to third country nationals, citizens of the member states "already benefit from important rights in the other member states", deriving from their EU citizenship. EU member states have bound themselves to respect human rights. Therefore, "asylum for nationals of the member states should already be completely out of date, because not applicable".
Consequently, in the Spanish view, nationals of EU member states applying for asylum in another member state are simply abusing the system with a view to obstructing judicial cooperation in criminal matters, that is, "usually an extradition request, whose examination cannot begin pending an asylum application". Moreover their purpose is "to arouse suspicion between the states concerned", insofar as the applicants in question contend they are victims of political persecution for "both external and internal purposes".
The memorandum calls the 1995 Resolution of the EU JHA Council on minimum guarantees for asylum procedures "totally unsatisfactory", particularly in view of the fact - apparently completely incomprehensible from a Spanish viewpoint - that "in certain member states, the decision to grant or refuse political asylum does not depend on government bodies, but is instead left to independent bodies or to courts".
A solution to the problem by means of a joint political declaration or a provision in the Third Pillar framework would fail to meet Spanish demands, the memorandum stresses and it goes on to call for the introduction of a First Pillar provision into the Treaties of the Union which would be directly binding on all authorities of a member state and subjected to the jurisdiction of the European Court of Justice (ECJ).
As regards a possible incompatibility of such a provision with the member states' obligation under the Geneva Convention, this is a non-issue according to the Spanish memorandum. The ultimate purpose of the Convention, it argues, is to ensure the widest possible exercise of human rights and fundamental liberties. "Given the fact that, within the framework of the EU, one starts from the principle that all persons enjoy these rights and liberties, in whatever member state they are, it does not seem that the suppression of refugee status and of political asylum for citizens of the Union undermines the achievement of the object and purpose of the Geneva Convention". Consequently, "one must understand at last that, between the member states of the EU, the causes or circumstances which determine the institution of political asylum have ceased to exist". And since it is stated in the Convention that its regulations no longer apply if and when the circumstances entailing refugee status have ceased to exist, "the general suppression of asylum between states in which such circumstances can no longer arise can in no way be contrary to the object and the purpose of the Convention".
Finally, the memorandum brushes aside the legal concerns voiced by the UNHCR: "The interpretations of the UNHCR Executive Committee are mere recommendations and do not represent an authentic interpretation of the 1951 Convention". Neither the Geneva Convention nor the 1967 Protocol requires an individual examination of asylum applications, the memorandum contends. The Spanish proposal does not aim to state reservations with respect to the Geneva Convention, but seeks its "modification" based on the Vienna Convention on the Law of Treaties.
Sources: Conference of the representatives of the Governments of the member states (IGC), Discussion Paper, Brussels, 4.2.97, SN/507/97 (C8); UNHCR's position on the proposal of the European Council concerning the treatment of asylum applications from citizens of European Union Member States, UNHCR Office, Geneva, January 97; Memorandum espagnol sur la non reconnaissance du droit d'asile pour les citoyens de l'Union, IGC Document, Brussels, 24.2.97, CONF/3826/97 Limite, in French (Quotations above are our translations from French).Comment
The Spanish proposal is based on a pure fiction, that is, a federal European state with a common constitution and legal system, and a common federal government and administration. If such a federal Europe was already a reality, it would make no sense to uphold the right for a citizen of one member state to seek asylum in another, just as it makes no sense for a US citizen from California to seek protection from persecution in the State of New York. But in view of the fact that the EU is still a union of sovereign states with their own national legislations and systems of government, one finds it hard to believe that an EU-internal abolition of the right of asylum can not only be proposed by the government of a Western democratic country, but even seriously discussed by the EU Intergovernmental Conference. This fact alone shows the growing influence of "federalists" in the EU-Council. Moreover, the real motivations behind the Spanish proposal illustrate how a single member-state government can impose its internal political agenda on the whole of the EU by resorting to blackmail: if you don't accept our proposal, we will block cooperation.
Spain's dubious fight against terrorism
Successive Spanish governments have been unhappy with EU police and justice cooperation for quite some time. In their view, other EU member states are showing a lack of solidarity with Spain in its effort to fight against Basque separatist ETA terrorism. This concern is at the origin of the Spanish proposal for a ban on EU-internal asylum applications.
It is true that courts in Berlin, Brussels and Lisbon (see article in this issue: "Spain threatens Portugal with reintroduction of border controls") have repeatedly prevented or at least delayed the extradition to Spain of mostly Basque Spanish citizens accused by the Spanish authorities of some form of involvement with ETA. Asylum applications by Spanish Basques were not automatically rejected but admitted for substantial examination. As a matter of fact, the courts and asylum authorities in the EU countries concerned were performing no more than their duty as independent authorities in constitutional democracies. In a small number of cases, the authorities concerned, after thorough examination, concluded that Basque asylum seekers' claim of persecution was not manifestly unfounded and that Spanish extradition requests concerning alleged Basque terrorists were not sufficiently well supported as to allow extradition in accordance with prevailing national and international law.
Spanish human rights records not beyond suspicion
Given the strong evidence indicating involvement, no more than ten years ago, of members of the Spanish Government in the state terrorism of the GAL, (police-sponsored death squads responsible for the killings of more than two dozen genuine or alleged ETA activists in the 1980s) and in the light of continuing allegations of torture and mistreatment in Spanish police stations and prisons, a thorough examination of Spanish extradition requests concerning Basques was more than justified.
"Terrorism" label: guilt by contact
There are also good reasons to be sceptical of the Spanish use of the "terrorism" label. One should recall that the 1951 Geneva Convention actually excludes perpetrators of terrorist acts from the institution of asylum (Article 2F). Thus, genuine terrorists have no opportunity to obtain asylum in an EU member state. Yet, all recent disputes between Spain and other EU countries have concerned cases where Spain sought the extradition of Basques on terrorism charges, without providing any evidence indicating that the persons wanted had themselves committed or knowingly contributed to the carrying out of a particular terrorist crime.
The Spanish extradition requests seem to be based on the concept of "guilt by contact": anybody who sympathises with Basque separatism or - knowingly or otherwise - engages in any form of contact with suspected ETA terrorists, is considered an ETA terrorist himself and should be treated accordingly. Thus, a year ago, Spain sought the extradition from Belgium of a Basque couple whose only crime consisted in having housed in their Brussels apartment some Basque countrymen whom the Spanish police regarded as ETA terrorists.
The use of "guilt by contact" is a classic feature of anti-guerilla warfare, but has nothing to do with constitutional rule. It means reducing the role of the judiciary to enforcing the political aims of the government, rather than the law. Such a subordinate, executive role of the judiciary characterises authoritarian systems of government.
Terrorism a pretext for extending executive powers
To be fair, Spain is not the only Western European democracy which has succumbed to some extent to the temptation of authoritarian "executive action" in the name of "efficiency", when confronted with terrorism. Both Britain and Germany have at times acted in the same way in their attempts to cope with respectively the IRA and the "Red Army Faction" (Baader-Meinhoff). Situations of genuine or presumed emergency tend to result in a disturbance of the balance between the three powers of the democratic constitutional system - the executive power (Government), the legislative power (Parliament) and the judiciary. In such situations, the executive branch (Government and implementing authorities) tends to extend its powers at the expense of the judiciary and the parliament. Even if it is only of a temporary nature, such a disruption of the system of checks and balances increases the risk of summary and arbitrary action by state authorities. This can amount to persecution and result in people needing to seek asylum in another country.
Such a development cannot be excluded in any country of the world - not even in the best of constitutional democracies. To admit this possibility in one's own country is a sign of democratic maturity. It is a sign of strength for a state to accept foreign scrutiny of its human rights situation through the asylum and the judicial authorities of another democratic country. On the other hand, only absolutist and authoritarian regimes simply decree that their own national territory is free from, and will forever remain free from persecution.
A Brave New World of totally safe countries
The Spanish proposal is alarming because it reveals a total lack of understanding of democratic-constitutional rule. That the governments of the other EU member states are now seriously discussing the "important proposal" is even more disquieting, but in some ways a logical consequence of the Union's lack of constitutional decision-making and accountability structures. The EU-system further contributes to the existing trend towards the predominance of the executive powers at the expense of parliamentary and judicial control. In the absence of this control, which is vital for democracy, governments can fulfil their dreams of "lean" and "efficient" government undisturbed. In terms of refugee policy, lean and efficient government means defining away refugees. Some years ago, the EU ministers deprived hundreds of thousands of third country nationals from any fair chance of obtaining asylum in an EU country by introducing the "safe third country" principle. The EU in this way got rid of a large number of refugees from outside. Today the IGC is preparing to abolish the right of asylum "inside", for their own citizens, by declaring the Union a safe area by definition and forever - an area where there can be no persecution, because its rulers have decided so. Thus we might soon live in a Brave New World of "totally safe countries" surrounded by lots of "generally safe countries".
Can we continue to feel safe in such an environment?
N.B.