Sharing responsibility? The co-respondent mechanism and EU accession to the ECHR

 Posted by: Lock Tobias

The negotiations on accession by the EU to the ECHR have recently entered their final stage. Representatives of the EU and of the forty-seven parties to the ECHR (the so-called Group 47+1, which has published the reports of its first and second meeting) are scheduled to meet twice this autumn to agree on a final accession agreement. It is likely that it will largely be based on the draft agreement on EU accession, which was made publicly available last year. Once final agreement has been reached, it is very likely that the Court of Justice of the EU (CJEU) will be asked for an Opinion on whether the agreement is compatible with the EU Treaties. Should the CJEU give the agreement a green light, the ratification process can begin.

This blog entry asks whether the co-respondent mechanism provided for in the draft agreement leads to a sensible allocation of responsibility between the EU and its Member States for violations of the Convention post-accession.[1] By introducing the co-respondent mechanism, the drafters aimed to resolve the problem that after accession both the EU and its Member States will be parties to the ECHR. Since it is mainly the EU’s Member States which implement obligations laid down in EU primary and secondary law, an applicant will usually hold the implementing Member State responsible in the European Court of Human Rights after having exhausted the domestic remedies in that Member State’s legal order. The problem is that the violation of human rights may not necessarily be the Member State’s fault as it may well have been contained in a provision of EU law. Thus even if the Member State is convicted in Strasbourg, it will be unable to remedy the violation since it lacks the competence under EU law to do so. In such cases it would therefore make sense to involve the EU in proceedings and thus to extend the binding reach of the judgment to it. The same is true in the reverse situation where the EU is held responsible for alleged violations contained in its primary law (mainly the EU’s Treaties). In such a case it would make sense to make the Member States join the proceedings as it is only they which can agree on a Treaty change.

As a solution to this problem, Article 3 of the draft accession agreement introduces the co-respondent mechanism. It provides that where a Member State is taken to the ECtHR and it appears that the alleged violation of the ECHR calls into question the compatibility with Convention rights of a provision of EU law, the EU may become co-respondent. The same is true in the reverse situation. Where the EU is respondent in proceedings before the ECHR and it appears that the allegation calls into question the compatibility with Convention rights of a provision of EU primary law, the Member States may become co-respondents.

The status of co-respondent will be unique in the ECHR legal order. Its main features are that the co-respondent becomes a party to the proceedings so that the judgment is also binding on it. The key difference to the status of an ordinary respondent is that the applicant does not need to exhaust the domestic remedies in the co-respondent’s legal order. Procedurally, it therefore reduces the burden for the applicant and is to be welcomed.

The main flaw of the mechanism, as laid down in the draft agreement, is that the co-respondent cannot be forced to join proceedings. Rather, the status is voluntary. This calls into question the main rationale behind the mechanism, which is the ‘correct’ attribution of responsibility between the EU and its Member States. From the perspective of EU law, this attribution cannot be undertaken by the European Court of Human Rights since it would violate the autonomy of European Union law if a court other than the EU’s Court of Justice made such an assessment (for details see here). The rationale for the voluntariness of the co-respondent status given in the explanatory report is that a party cannot be forced into proceedings where it was not named in the initial application. Yet this argument is based on a mere technicality and is hardly convincing. There is no reason why an applicant should not ask another party to join proceedings at a later stage provided that the procedural rights of that party are respected, especially regarding their right to be heard. In addition, the draft appears to contradict the rationale for the co-respondent mechanism. According to the explanatory report, the main reason for its introduction is to avoid gaps in the participation, accountability and enforceability in the Convention system. But a voluntary mechanism leads to exactly such gaps. The EU or a Member State may well decide to steer clear of proceedings even though they would be responsible for the alleged violation. The fact that the applicant can nominate both from the outset does not remedy this problem since it would force the applicant to exhaust domestic remedies in all legal orders concerned, which is not only costly but also time-consuming. It should especially be borne in mind that an applicant before the ECtHR does not need to be represented by a lawyer so that she may not even be remotely aware of these requirements. It follows that the current draft only achieves sub-optimal results regarding the efficiency of human rights protection for individuals.

This is coupled with the danger that a Member State raises the defence that it was not responsible for the violation as the violation was rooted in its obligations under EU law and it had no discretion. If such a defence were possible, neither the EU nor the Member State would be responsible in the ECtHR[2], which would defeat the whole purpose of EU accession. The draft and the explanatory report are silent regarding this possibility. It is important that the ECtHR would not accept such a defence. Otherwise, the human rights protection as regards EU law would risk being less effective than it is now. It is suggested that the draft presupposes that no such defence should be possible. It is therefore suggested that the responsibility in such situations should generally be joint. Neither the Member State nor the EU should have a possibility to escape it. This seems to have been recognised by the EU as it tabled an amendment to the draft accession agreement during the first meeting of Group 47+1, which states that acts of the EU’s organs remain attributable to the Member States even where they occur when the Member States are implementing their EU law obligations.[3]

It would therefore be welcome if the on-going negotiations on EU accession revisited this issue and came to a more convincing solution. The co-respondent mechanism is generally a good solution to balance the interest of the EU and its Member States in not allowing an external court to decide who was internally responsible with the interest of a potential victim of a human rights violation to get an effective remedy. But the co-respondent mechanism can only work if it leads to truly shared responsibility before the ECtHR. Otherwise, there is a risk of thwarting the overall aim of EU accession to the ECHR, which is the improvement of human rights protection in Europe.

For a more detailed version of the arguments made in this blog post see my forthcoming article “End of an epic? The draft agreement on the EU’s accession to the ECHR” in the Yearbook of European Law 2012. A pre-edited version of that article can be found here.

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[1] This blog post repeats part of the argument I made at my SHARES lecture on 4 October on EU accession to the ECHR and the co-respondent mechanism. It is limited to explaining the main rationale for the co-respondent mechanism and to criticising its voluntary character. Other issues of shared responsibility could not be addressed (e.g. the question of who should have to pay ‘just satisfaction’ where the co-respondent mechanism applies).

[2] This argument assumes that in most cases an applicant would not be able to bring a case against EU legislative acts directly against the EU since it would lack the status of a victim required by Article 34 ECHR.

[3] Meeting report 47+1(2012)R02, page 15.

‘Left to die’ boat reveals collective failure to rescue migrants at sea

 Posted by: Heijer Maarten den

This week, a committee of the Parliamentary Assembly of the Council of Europe released a draft resolution and report on the fateful voyage of what has been dubbed the ‘left to die’ boat – a story that was first picked up by The Guardian. The tragedy involved a boat carrying 72 Sub-Saharan migrants who fled from the conflict in Libya in March 2011, but ran into trouble and, despite a distress call by satellite from the ship’s Ghanaian “captain” to an Eritrean priest living in Italy who alerted the Rome Maritime Rescue Coordination Centre (Rome MRCC), eventually washed up on the shores of Libya 15 days later. By then, only 11 people were still alive.

The story was made all the more rueful because of testimonies from the survivors that, while adrift somewhere between the Italian island Lampedusa and Libya, they had made contact with several boats (commercial fishing vessels and allegedly an aircraft carrier belonging to France, which was however denied by France and NATO) and even a military helicopter which had lowered down bottles of water and biscuits into the vessel and then flew away, never to return – but their calls for help were all but ignored.

The report finds that pretty much everything went wrong: there was a failure of NATO, the United Nations and individual States in planning the Libyan military operations and preparing for an expected exodus by sea; a failure of the Italian and Maltese authorities in coordinating the rescue and launching a rescue operation; communication misunderstandings; a failure of NATO vessels in the vicinity and commercial fishing boats to follow up on repeated navigational distress warnings. In short, the report concludes: a collective failure.

Although the report was unable to verify all allegations and leaves many questions – especially the legal ones – unanswered, it vividly uncovers how all kinds of dynamics (war, migration) and the sharing of responsibilities between States and international organizations may result in no-one actually undertaking any action.

For me, this is the Council of Europe at its best. Although mainly known for housing the European Court of Human Rights – the Parliamentary Assembly, but also the Committee for the Prevention of Torture (CPT), have often engaged in fact finding activities that later turned out to have major political repercussions. Think, for example, of the frequent CPT’s visits to the imprisoned PKK-leader Öcalan on Imrali island and very recently its visit to the detained former Ukrainian prime-minister Yulia Tymoshenko (see also here and here). Think also of the persistent efforts of Swiss senator Dick Marty and member of the Parliamentary Assembly, to uncover the spider’s web of extraordinary renditions and secret CIA prisons in Europe after 9/11. His efforts eventually lead, some five years after his first report and despite earlier denials, to evidence that such prisons had indeed existed in Europe.

As to the present report’s legal implications, one might expect that it would at least re-open the debate on necessary amendments to the maritime SAR framework (after the 2004 overhaul of the Annex to the International Convention on Maritime Search and Rescue). Some specific points mentioned in the report concern the distribution of responsibilities for coordinating and undertaking rescue operations (one obvious issue was the responsibility vacuum for Libya’s SAR zone), the question of how to enforce duties of rescue on the part of private shipmasters, and the interpretation of what constitutes a vessel in distress (should not any unseaworthy and overcrowded vessel with barely any supplies, navigational equipment and an untrained captain be considered to be in distress, regardless of whether it is still running on its engines? – something which according to the report was disputed by the Rome MRCC).

And then there is the question of distribution of responsibilities between NATO and its Member States. In a letter to rapporteur Ms. Tineke Strik from the Netherlands, NATO explained that it had forwarded all emergency alerts to NATO task force units under its operational control. It further succinctly referred to information provided by the Spanish and Italian authorities that their vessels in the vicinity at the time had often engaged in rescue operations and that they were well aware of their relevant obligations under maritime law. It is at least disturbing to see how readily NATO command discharges itself of any responsibility – and fails to announce for example, that it will try to get to the bottom of things.

Perhaps more than anything, the whole episode signifies how European authorities and societies have learned to look away from the constant flow of migrants packed in makeshift vessels trying to make their way to Europe. The foremost challenge to be confronted then, is reminding ourselves that international legal standards apply equally to all those who embark upon such fateful journeys. This very notion was recently underscored by the European Court in the case of Hirsi v Italy.

EU Aviation scheme as a countermeasure against other ICAO member states?

 Posted by: Nollkaemper André

The New York Times recently reported that China, the United States and two dozen other countries are looking at coordinated countermeasures against Europe — including putting pressure on European airlines and other industries — if the EU tries to enforce the EU Aviation Directive, that requires airlines to pay for their greenhouse gas emissions.

Much has been said on the legality of the Aviation Directive. Joshua Melzer just published a good analysis of the Directive and its WTO compatibility in the Journal of International Economic Law. In the ATA case, the ECJ considered its compatibility with customary international law (the principles of territoriality and of sovereignty), the Chicago Convention, and the Open Skies Convention, and eventually upheld the legality of the Directive (case C-366/10, Judgment of 21 December 2011).

One question that appears so far to have received very little attention is whether, even if the Directive would violate international law, it could not be justified as a response to the collective failure of the third states for setting standards for the airline industry.

The European measures are in part a response to the failure of the International Civil Aviation Organization (ICAO) to move quickly enough to establish standards and goals for greenhouse gases from aviation, as required under the Kyoto Protocol. Article 2(2) of the Kyoto Protocol stipulates that Annex I parties ‘shall pursue limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation and marine bunker fuels, working through the International Civil Aviation Organization and the International Maritime Organization, respectively.’

Attempt to realize such limitations have come to nothing. It is true that the obligation is not formulated in very hard terms (‘shall pursue limitation’), and in the ATA Case the Court found that this provision ‘as regards its content, cannot in any event be considered to be unconditional and sufficiently precise so as to confer on individuals the right to rely on it in legal proceedings in order to contest the validity of Directive 2008/101’ (para 77). However, the fact that a provision does not meet the high criteria for direct effect of EU legislation does not mean that States cannot breach the obligation vis-à-vis each other. At one point, the lack of will and effort to adopt reductions in the framework of ICAO may suggest that states do not pursue such reductions.

Already in the Sixth Community Environment Action Programme (Decision No 1600/2002/EC), it was provided that the Community would identify and undertake specific actions to reduce greenhouse gas emissions from aviation if no such action were agreed within the ICAO by 2002. The EU Member States have consistently strived in the ICAO framework for global regulations — to no avail. Regional action now surely has a political legitimacy. Even if it would be in violation of other state’s rights (a proposition that was questioned by the ECJ) there is some ground in the argument that this is a timely response to a shared responsibility of the defaulting third states, intended to spur these states to action.

It might be argued that this construction encounters the problem that the obligation that would be breached, and that would legitimize the Aviation Directive, is the Kyoto Protocol, yet the intended action eventually would have to come from ICAO, which obviously is not a party to that Protocol. However, we could construe the measures as targeted at the states that are both party to Kyoto and ICAO, and that should fulfill their obligation under Kyoto by taking action in the framework of ICAO.

The construction nonetheless is not entirely without obstacles. One is that the EU measures appear to apply to all states, irrespective of their particular obligations under the Kyoto Protocol, and notably also irrespective of the principle of common and differentiated responsibilities — which may make the proportionality argument more difficult.

Another issue to be considered is whether the EU and its member states are actually injured by the lack of willingness of other states to perform the obligation under article 2(2), in a way that would entitle them to take counter-measures, However, it should be taken into account that the failure by the ICAO member states to adopt necessary measures that complied with article 2(2), in effect made it difficult for the EU member states to comply with their obligations under Kyoto. This point, made by AG Kokott (para 186 of her opinion) opens the door to an argument based on the exception of non-performance.  Whatever the status of this exception as an independent defense to wrongfulness (the ILC eventually left it aside), it does straddle into and support an argument based on countermeasures.

It may well be that eventually the EU has to bend for economic pressure from target states, that may hit European industries hard. But on its face, the EU measure has not only the moral but also the legal high ground.

Dublin and Beyond: ‘Each According to Its Abilities’?

 Posted by: Swerissen Isabelle

Refugees are legally and morally entitled to some form of protection. This is generally undisputed. The disagreement begins when we ask the question which state will be called upon to provide that protection? David Miller discusses a comparable question in a situation where a person collapses on the street. In his article Distributing Responsibilities, Miller argues that the collapsed person is more likely to receive assistance if there is a single person, rather than several persons, passing by. This is true for several reasons, the most important of which, according to Miller, is that if there are several persons passing by, there is no clear allocation of responsibility.

In order to avoid this situation in the context of immigration, European states have, over the past two decades, created rules on responsibility allocation culminating in the Dublin II regulation. This regulation, often regarded as the flagship of the Common European Asylum System, has been the topic of heated debate following the ECtHR judgment in the case of M.S.S. v. Greece and Belgium and the ECJ Advocate-General’s opinion in joined cases C-411/10 NS and 493/10 ME. Negotiations on a recast Dublin regulation are ongoing, but seem to be gridlocked. Which lessons can the drafters learn from Miller’s discussion on the distribution of responsibilities?

Currently, the Dublin regulation establishes a hierarchy of criteria for identifying the state responsible for processing an asylum claim. In absence of family connections in the country of asylum, this will usually be the state through which the asylum seeker first entered the European Union. Asylum seekers who move to another state as a secondary movement can be sent back to the state of first entry, thereby increasing pressures on the border states of the European Union. This practice may have severe consequences in terms of human rights, as recognized in the M.S.S. case. Acknowledging that the Dublin system must be improved, the European Commission has proposed to introduce a mechanism for the temporary suspension of transfers to member states where the level of protection falls below Union standards. Unfortunately, given the politically sensitive nature of this ‘emergency mechanism’, member states have to this date been unable to reach agreement on this issue. The other changes proposed mainly relate to an expansion of the family-related allocation criteria and the speeding up of the process of identifying the responsible state. However, reconsideration may be needed beyond these modest changes.

A fundamental recast of the Dublin system should not be concerned with mere changes to the rules on responsibility allocation, ‘but with the underlying principles that should guide us …’, as Miller puts it. According to him, there are four principles (i.e. communitarian principle, causal responsibility principle, moral responsibility principle, capacity principle) that can inform a determination on the assignment of responsibility, three of which can, with some imagination, be recognized in the workings of the Dublin regulation.

A consideration that nowadays dominates the answer to the question which state is responsible for the protection of refugees in the Dublin system, but also in the global refugee regime (i.e. 1951 Convention), is geographic proximity. After all, a geographic proximate country is likely to be the first country of entry and, as such, is likely to have responsibility for many asylum seekers who arrive at its borders. The stated rationale behind this policy is to contain asylum seekers in neighboring countries, since those countries tend to have some sort of special solidarity bonds between them. This connects well to Miller’s communitarian principle. Under that principle, he assumes that agents feel a greater sense of responsibility towards those with whom they share communal ties. However, Miller himself recognizes that this principle cannot be used for all responsibility distributing purposes – a statement that also rings true in the context of immigration. Special solidarity bonds do not always exist between neighboring countries and may even exist between geographically distant countries, making geographic proximity not sufficiently morally justifiable to allocate responsibility in all cases.

Specific to the Dublin system is the idea that responsibility for examining an asylum claim should be allocated to the member state that played the most important part in the entry of the person concerned. This so-called ‘Dublin philosophy’ according to which the responsibility for deciding on an asylum claim is made dependent on the responsibility for controlling the external border, could be said to highlight the causal role played by a particular member state in ‘permitting’ a person to enter the territory of the European Union. As such, it conforms to Miller’s causal responsibility principle. Beyond that, this also involves somewhat of ‘an appraisal of the agent’s conduct’ in policing its land and sea frontiers, leaving the member state in question liable to moral blame for not sufficiently having done so. This corresponds well to Miller’s moral responsibility principle. However, the problem with both the causal and the moral responsibility principle is that they look, in the words of Miller, ‘too exclusively to the past’ in assigning responsibility. Forward-looking considerations, such as effective relief from harm in the future, are therefore not part of a determination on the allocation of responsibility. Such relief is, however, the core focus of refugee protection.

Taking their cue from the previous paragraphs and treating the provision of protection as of overriding concern, the drafters of the amended Dublin regulation may want to consider allocating responsibility on the basis of the fourth principle identified by Miller, the capacity principle. On the basis of this forward-looking principle, responsibility for ending a morally concerning situation should be assigned to the agent that can best bring it to an end. When applied to refugee situations, responsibility would thus fall on the member state that, in view of its absorption capacities, is best placed to offer protection. Besides the fact that the capacity principle, understood in this manner, is likely to be unpopular from a political point of view, it is also complex and problematic in the way that is creates incentives for member states to raise protection standards. Measures to help raise those standards in order to increase the ability of member states to offer protection seem to represent a more feasible interpretation of the capacity principle.

Having said that, the latest proposal by the Polish presidency concerning the introduction of an ‘evaluation mechanism’ should be welcomed. This mechanism, meant as a tool to address protection deficiencies before to grow into full-fledged crises, would be used as a preventive step before triggering the operation of the ‘emergency mechanism’ and will hopefully move negotiations on the Dublin regulation forward.

Expert Seminar on Shared Responsibility in International Refugee Law – In Search for a Legal Basis of Burden-Sharing

 Posted by: Swerissen Isabelle

Do States – and other subjects of international law – have a collective obligation to protect refugees? And if this is the case, does a breach of this obligation lead to shared international responsibility? At a time when the burdens and responsibilities that flow from massive displacement of people have been distributed so unevenly among the world’s regions and countries (see UNHCR Global Trends 2010), these two questions have attracted growing interest and were discussed at the Expert Seminar on Shared Responsibility in International Refugee Law that the SHARES Project organized on 30 May 2011 (see Programme). While a more detailed account will be provided in the forthcoming seminar report, we will use this blog post to give an overview of the discussions held at the Expert Seminar. Despite the variety of views presented on the above-mentioned questions, we intend to outline some of the general points and arguments made on the theory and practice of shared responsibility in international refugee protection at the international and regional levels.

INTERNATIONAL REFUGEE PROTECTION AND BURDEN-SHARING

At first sight, international refugee protection seems to be an area of international law that involves questions of sharing and distributing obligations and/or responsibilities. After all, “international protection” – while lacking a generally agreed definition – is understood as the protection provided by the international community because the refugee, due to a well-founded fear of persecution, is unwilling or unable to avail himself of the protection of his country of nationality (compare Article 1 of the 1951 Convention Relating to the Status of Refugees). UNHCR itself often refers to the “collective responsibility” to share the burden of the global refugee problem on the part of the State parties of the 1951 Convention and its 1967 Protocol (on burden-sharing see J.P. Fonteyne, ‘Burden-Sharing: An Analysis of the Nature and Function of International Solidarity in Cases of Mass Influx of Refugees’, (1978-1980) 8 Australian Year Book of International Law 162-188).

But is this burden-sharing really based on a legal obligation, or does it merely represent a moral principle? Some participants at the SHARES Expert Seminar observed that, in light of State practice, a collective obligation or ensuing shared responsibility, as manifested in equitable burden-sharing, does not exist. Whereas refugee protection was indeed considered a responsibility incumbent upon the international community during the Second War, UNHCR was not established with an operational mandate, which distinguished it from its different predecessor organizations, in particular the International Refugee Organization (IRO). Instead the responsibility for refugee protection was assigned to individual States or, more specifically, to the State on whose territory a refugee sought refuge. This responsibility to protect refugees on the part of individual States has been most prominently enshrined in Article 33 of the 1951 Convention, stipulating the prohibition to return a refugee to a place of persecution (non-refoulement).

The obligation of non-refoulement subsequently developed into the centerpiece of the international refugee protection regime, and has arguably even achieved the status of ius cogens. It is therefore all the more paradoxical that the obligation of non-refoulement counteracts an equitable sharing of the burden of refugee protection, for it imposes a larger burden on those States that are geographically closer to re-producing countries. These receiving countries are often less capable of accommodating large numbers of refugees for various reasons – one only has to think of the conflict-loaded and difficult socio-economic situation of most countries in sub-Saharan Africa. Consequently, it is not surprising that UNHCR’s mandate, enshrined in General Assembly 428 (V) (1950), has become quite operational over the years (as a Sudanese refugee in Egypt observed: “We live in a country of UNHCR”), and has been stripped of its temporary nature. The principle of non-refoulement does thus not present a valid legal basis for the collective obligation to protect refugees. It could even be argued that the principle has been (ab)used to prevent a more equitable of refugees among developed and developing nations due to its inherent link to with State territory, which prevents overburdened countries of asylum to send refugees to other potential host countries with better reception capacities.

Despite the absence of a legal basis for the collective obligation to protect refugees, shared responsibility may still be the result of a breach of obligations that concern the protection of individuals in other areas of law such as international human rights law and international humanitarian law. Although notions such as the “roots causes” of displacement or “preventive protection” have been tainted by the negative experiences during the war in the Former Yugoslavia, the current situation of mass flights from Syria to Turkey due to the repressive measures of the regime of Bashir Al-Assad proves the continuing relevance of the debate on the reasons of forced displacement (see SHARES news item on the situation in Syria), which are all too often found in massive human rights and humanitarian law violations. In this context, it could certainly be contended that the international community has a “responsibility to protect” civilian populations, to use the well-known catchphrase (see the forthcoming book by Julia Hoffmann and André Nollkaemper on the Responsibility to Protect: From Principle to Practice, based on the similarly titled conference). Strictly speaking, this “responsibility to protect” is not a responsibility but rather an umbrella concept for different collective obligations that are incumbent on the international community as a whole (erga omnes status). Failure to observe these collective obligations to protect may inter alia lead to forced internal and external displacement. Following this line of argument, the international community would incur shared responsibility for not having complied with its primary obligations.

Against this background, the participants discussed whether UNHCR could be seen as burden-sharing mechanism – that is a mechanism to implement the shared responsibility of the international community – as proposed, for instance, by former High Commissioner Lubbers. However, as mentioned above, UNHCR was de jure not designed to be a burden-sharing mechanism, although the continuously pressing needs of the global refugee problem have de facto led to the operationalization of the organization.  As a result of this discrepancy between normative and factual reality, the efforts of UNHCR are generally considered to be insufficient in reducing the disparities in international refugee burden-sharing. The activities of UNHCR are not guided by principles of equity but rather humanitarian necessity, as conditioned by budgetary and political constraints since UNHCR is largely dependent on the voluntary contributions of UN member States. UNHCR has made an attempt to remedy this situation by means of special agreements in the framework of the so-called “Convention Plus” Initiative, which was intended to lead to a more equitable burden-sharing. Yet, the Convention Plus Initiative ultimately failed to achieve its main objective for different reasons, mainly because it addressed burden-sharing eclectically rather than globally (see generally Marjoleine Zieck, ‘Doomed to from the Outset? UNHCR’s Convention Plus Initiative Revisited’, (2009) 21 International Journal of Refugee Law 387-420). Forced displacement is a global problem, which calls for global solutions and for a global approach in terms of burden-sharing, for instance, in the form of an amendment to the UNHCR Statute and/or the 1951 Convention.

REGIONAL REFUGEE PROTECTION AND BUCK-PASSING

The finding that burden-sharing at the global level does not really work begs the question whether burden-sharing functions better at the regional level, in particular the context of the European Union (EU). However, the practice of the European Union and its member States seems to somewhat mirror the problems that the refugee protection regime faces at the global level. Instead of sharing the burden of refugee protection by means of the more sophisticated legal framework of the EU treaties, the European Union and its member States have rather engaged in a practice of buck passing in their internal and external relations.

In its external or international relations, a policy of buck-passing may be observed in situations of where refugees are prevented from reaching the territory of the EU in the first place. This usually occurs as a result of a deliberate acts to circumvent refugee arrivals, referred to as ‘externalization of European border policies’, by taking action outside the territory, for example, by interdicting refugees in international waters or by exercising control over refugees in the territory of another (non-European) State through the operation of some kind of extraterritorial processing center (on extraterritorial immigration policies see M. den Heijer, ‘Europe Beyond its Borders: Refugee and Human Rights Protection in Extraterritorial Immigration Control’ in B. Ryan and V. Mitsilegas (eds.), Extraterritorial Immigration Control: Legal Challenges (Martinus Nijhoff Publishers: Leiden/Boston, 2010) 169-198). Frontex, the EU border agency, plays an important role in the context of buck-passing outside the EU. Equipped with high-tech detection equipment, helicopters and boats, it strengthens border security by ensuring the coordination of member States’ actions in the implementation of EU measures relating to the management of the external borders.

During the Expert Seminar it was argued that any time a State seizes the power or authority over a refugee to determine his or her destination, whether this occurs on the high seas or in the territory of another State, Article 33 of the 1951 Convention is implicated.  Moreover, the conduct of the EU and its member States is not only regulated by the 1951 Convention, and the prohibition of non-refoulement at the frontier, but also by other international obligations, which can in particular be found in the law of the sea (see the recent discussions on EJIL: Talk! here and here). A breach of these obligations will most likely result in a form of shared responsibility, depending on the degree of cooperation between the multiple actors involved. Various scenarios were discussed by participants in which both the State exercising extra-territorial powers, with assistance of Frontex, and the territorial State may have obligations in regard to refugees and may share responsibility in case of breach of such obligations. Although the competences of Frontex itself are limited in the execution of its border control operations, it was also suggested the EU – to which Frontex’s conduct is attributable – may be responsible to the extent that it shares competences with its EU Member States (see the recently adopted ILC Draft Articles on the Responsibility of International Organizations).

While the practice of extra-territorial refugee policies illustrates the shifting of obligations in relation to refugees who have yet to reached EU territory from EU member States to third States, the participants of the Expert Seminar also extensively discussed buck-passing in cases where refugees have been successful in reaching territory of the EU. This has been the subject of much debate, in large part due to the controversy surrounding the Dublin II regulation. This regulation, which replaced the 1990 Dublin Convention, is based on the presumption that protection standards in all EU member States are the same or at least equivalent. Mutual trust in comparable standards of protection, rather than actual harmonization of refugee rights, has thus formed the basis for assigning protective responsibility over refugees to member States. By virtue of the Dublin regulation, only one State, usually the country where the refugee first entered the Union, is responsible for the examination of an asylum application. As such, the system imposes an increased burden on countries at Europe’s external borders, who, due to the happenstance of geography, find refugees crossing their borders. Instead of distributing protection obligations more fairly, the regulation has resulted in an institutionalized form of buck-passing within the EU.

Greece’s broken asylum system shows this all too clearly. With a vast Mediterranean coastline and a porous land border with Turkey, Greece has become the gateway to Europe. The difficulties in coping with the increased influx of refugees have been recognized by the European Court of Human Rights in M.S.S. v. Belgium and Greece (also see SHARES blogpost), a case regularly referred to during the Expert Seminar. The case concerned the return of an Afghan asylum seeker to Greece by the Belgian authorities in application of the Dublin regulation. By knowingly exposing him to structural shortcomings in the asylum procedure and systematic problems in the detention and reception of asylum seekers in Greece – for which Greece itself was found responsible – the ECtHR ruled that Belgium had violated Article 3 of the European Convention on Human Rights. Rather than as a collectivity, both countries have individually breached their own human rights obligations, not making this case any less relevant from the perspective of shared responsibility, which can also arise from acts that cannot be attributed to the same actor. This judgment has dealt a major blow to the Dublin system, and underlined the continued international obligation of EU Member States to actively verify how the receiving States apply internal EU asylum legislation and procedures in practice, effectively debunking the myth of equality in protection.

Buck-passing or the assignment of ‘protection elsewhere’, whether extraterritorially or within the territory of the EU, is now surprisingly well entrenched. One striking feature, however, is that the idea of requiring a refugee to seek protection elsewhere is not explicitly anchored in the text of the 1951 Convention. In light of the absence of such authority, a key but less frequently asked question is whether protection elsewhere policies and practices are permitted under international law. A second related question is whether, assuming that some kind of transfer to another country of asylum is permitted, any legal impediments operate on States in choosing to send a refugee to a particular country. With regard to the latter question, States have mainly focused on the prohibition of refoulement as enshrined in Article 33 of the 1951 Convention as the only protection obligation that must be respected. States reason that, as long as they do not breach this obligation, they are not necessarily required to provide protection to refugees who reach their territory, but may send them to other States.

However, a perusal of the 1951 Convention shows that, Article 33 apart, there is a range of requirements imposed upon contracting States with respect to refugees, some of which can likewise be characterized as protection obligations. These obligations apply as soon as the refugee is within the territory of a State. This is so even if State agencies have not yet formally determined that the applicant satisfies the refugee definition, since recognition of refugee status is declaratory. In the words of the UNHCR Handbook: “recognition of refugee status does not make a person a refugee, but only declares him or her to be one”. Having said that, requiring a refugee to go somewhere else may therefore not be a simple ‘dumping’ of refugees abroad on the amorphous ground that they will be admitted and protected from expulsion, and expulsion only, in that third country. European policies have been controversial precisely for that reason. Rather, the sending State is under an obligation to ensure that refugees will be guaranteed certain fundamental rights or, as one of the speakers eloquently observed, “the onus is on the sending State”. Failure to observe this obligation and any ensuing violations of those rights in the State to which they are transferred, committed individually and separately by the sending and receiving States, can result in shared responsibility as illustrated by the M.S.S. case. In order to be lawful and meaningful, a burden-sharing scheme must therefore be implemented in a manner that takes into account all obligations incumbent on States under the 1951 Convention.

SOME PRELIMINARY CONCLUSIONS: BUCK-PASSING INSTEAD OF BURDEN-SHARING?

The discussions at the SHARES Expert Seminar revealed wide divergences between the theory and practice of shared international refugee protection at the global and regional levels. At the global level, only few geographically disadvantaged countries share the largest part of the burden of international refugee protection with the support of UNHCR, which could be characterized as a – albeit ill-equipped – de facto burden-sharing mechanism that implements the shared responsibility of the international community. Geography also appears to play a crucial role at the level of the European where EU Member States have used the framework of the Dublin II regulation to pass the buck to European border States such as Greece, or prevented refugees from entering EU territory in the first place.

It is widely accepted that States cannot “contract out” of their protection obligations or evade their international responsibility by passing it on to other States or by establishing an international organization, be it UNHCR or the European Union (including its border control agency Frontex), without a certain degree of effectiveness. However, an effective implementation of the obligations in the area of international refugee protection presupposes that the actors involved, be it States or international organizations, are aware of and recognize the nature and scope of their respective international obligations. While the discussions at the SHARES Expert Seminar have shown that States may have various collective obligations with regard to the prevention of forced displacement and individual obligations with regard to the protection of refugees, States often simply deny the existence of these obligations and ensuing responsibilities for political reasons. This observation is quite evident in the negatively connoted term “burden-sharing” that was criticized by several participants of the Expert Seminar as inappropriate in light of the compelling human tragedy that characterizes international refugee protection, which may actually not only come with ‘burdens’ but also benefits and opportunities for host countries.

It seems that the international community needs to be faced with yet another cataclysm – such as the two World Wars in the first half of the 20th century – in order to recognize the global dimension of international refugee protection as a shared responsibility. Interestingly, such a historical momentum may be created in another area of international law that could give rise to collective obligations and/or shared responsibility, namely international environmental law (see our next Expert Seminar on Shared Responsibility in International Environmental Law). For more recently, forced displacement induced by climate change has received increasing attention by scholars and practitioners alike and may lead to new and unforeseen challenges in the area of international refugee protection that call for a further clarification of collective rights and obligations.