European asylum policy - Inclusions and exclusions under the surface of universal human rights language

European Journal of Migration and Law

Volumn 11, Issue 4, 2009, Pages 347-366

  Pirjola, Jari ^a  

^a Office for the Parliamentary Ombudsman   (Finland)

Author keywords

Asylum debate; EU asylum and migration policy; Human rights language; Inclusion and exclusion; Migration management; Non entry policies; Open concept; Universalism and particularism

Indexed keywords

EID: 70450284420     PISSN: 1388364X     EISSN: 15718166     Source Type: Journal    
DOI: 10.1163/138836409X12501577630669     Document Type: Article

References (66)

1. &zE-mail: jari.pirjola@gmail.com. The opinions expressed in this article are solely those of the author.
2. James Hathaway, The Rights of Refugees under International Law, Cambridge University Press 2005, p. 279. This clash of priorities had led to proposals to lease land from states on which to shelter refugees, or attempts to establish internationally supervised sanctuaries for would-be refugees within the territory of their own state. So far these options have not replaced states as the most logical means to access safety.
3. Seyla Benhabib, The Claims of Culture. Equality and Diversity in the Global Era, Princeton University Press, 2002, p. 154.
4. On particularism and universalism in European Union politics, see Päivi Leino-Sandberg, Particularity as Universality, The Politics of Human Rights in the European Union, The Erik Castren Institute Research Reports, 15/2005.
5. On universality of human rights and critiques against universalism, see Jari Pirjola, "Culture, Western Origin and the Universality of Human Rights", Nordisk Tidsskrift for Mennesker-ettigheter (Nordic Journal for Human Rights), Vol.23, Nr. 1 (2005), pp. 1-15.
6. Hemme Battjes has observed that: "Asylum entered the field of activity of the European Community as a side effect of the ambition to create the freedom of movement of persons within the community. Before 1993, the Treaty on European Economic Community did not make any mention of asylum, immigration or even human rights. Rather, its main objective was the integration of the economies of the Member States. This implied shifting controls from the internal border to the external borders." Hemme Battjes, European Asylum Law and International Law, Leiden: Martinus Nijhoff Publishers, 2006, p. 26.
7. As a corollary of their territorial supremacy, states are entitled to control the composition of their populations, which means nothing less than delimiting the group to which protection is extended. See Gregor Noll, Negotiating Asylum, The EU Acquis, Extraterritorial Protection and Common Market of Deflec- tion, The Hague, 2000, p. 13.
8. See Elspeth Guild, "The Europeanisation of Europe's Asylum Policy", International Journal of Refugee Law, Vol.18, No.3-4 (2006), pp. 630-651.
9. See Tampere European Council Presidency Conclusions, 16-17 October 1999, point 1.
10. The Hague Programme for the strengthening of freedom, security and justice in the European Union. Council of the European Union, 16054/04, JAI 559, p. 2.
11. It is stated that fundamental rights as guaranteed in the European Convention on Human Rights and the Geneva Convention on Refugees must be "fully respected" (p. 5).
12. See art. 18 of the Charter. Published in Official Journal of European Community 18.12.2000.
13. On the other hand, EU initiatives seem to be very much based on the territorial principles of sovereign nation states. See Thomas Gammeltoft-Hansen, The extraterritorialisation of asylum and the advent of 'Protection Lite', Danish Institute for International Studies, Working Papers 2007/2.
14. Cf. Martti Koskenniemi: "I shall argue that as long as there is no wide agreement on what constitutes the good life, the formality of statehood remains the best guarantee we have against the conquest of modernism's liberal aspect by modernism's authoritarian impulse." See "The Future of Statehood", Harvard International Law Journal, Vol.32, No.2 (1991), p. 397.
15. Elspeth Guild, note 6 above, p. 631.
16. On "non-entrée" policies, see James Hathaway, The Rights of Refugees Under International Law, Cam bridge University Press, 2005, p. 293.
17. Sandra Lavenex, "The Europeanization of refugee policies: Normative challenges and institutional legacies", Journal of Common Market Studies, Vol.39, No.5 (2001), pp. 868-869.
18. Elspeth Guild, note 6 above.
19. See Gammeltoft-Hansen (above, note 10). See also the Presidency conclusions of the Brussels Euro pean Council of 16 and 17 June 2005, where: "The European Council welcomes the emphasis given by the Action Plan to operational cooperation between the various actors involved in the Union's internal security. In that context, it notes the more operational character of recent work by the Police Chiefs Task Force, Europol and Eurojust and welcomes the start of activities by the European Agency for the Manage ment of Operational Cooperation at the External Borders. The European Council invites the Council to step up coordination both amongst these various actors and between them and the competent authorities of the Member States."
20. Some protection-related paradoxes and challenges in the refugee and human rights law were explored
21. in Jari Pirjola, "Shadows in Paradise. Exploring non-refoulement as an open concept", IJRL, 2007, Vol.19:4, pp. 639-660.
22. The Hague Programme for the strengthening freedom, security and justice in the European Union. Council of the European Union, 16054/04, JAI 559, p. 2.
23. See: www.proasyl.de. Visited December 2007.
24. See, e.g., press releases: "European Union's Broken Promises on Refugee Protection", Sunday 20 June 2004, and statement on border management, 13 February 2008, both at www.ecre.org.
25. See ECRE statement AD1/03/2008/ext/ADC.
26. This was in the context of the ministerial meeting, Building a Europe of Asylum, held on 8-9 Septem ber 2008. See ECRAN Weekly Updates, 12 September 2008, p. 2. ECRE was calling for "solidarity", "integration" and "dialogue".
27. See Amnesty International's recommendations ahead of the Informal JHA Ministerial Meeting in Tampere, 20-22 September 2006. Amnesty International, EU Office, 18 June 2006.
28. Joanne van Selm, European Refugee Policy: Is there such a thing? New issues in Refugee Research, Working Paper No. 15, UNHCR 2005, p. 19.
29. See Alexander Betts and James Milner, The Externalisation of EU Asylum Policy: The Position of African States, Centre of Migration, Policy and Society, Working Paper No. 36, University of Oxford 2006, p. 44.
30. Carl Levy, "The European Union after 9/11: The demise of a liberal democratic asylum regime". Gov ernment and Opposition, Vol.40, issue 4, pp. 26-59. Published on line 6 January 2005. Levy discusses whether or not the liberal democratic tradition of asylum embodied in the Geneva Convention of 1951 has been sacrificed to the dual pressures of the electoral victories of the far right in Europe and a new form of terrorism that threatens European societies.
31. See Satwinder S. Juss, "The decline and decay of European refugee policy", Oxford Journal of Legal Studies, Vol 25, issue 4 (2005), pp. 749-792.
32. Martti Koskenniemi has written that "(. . .) rights are constantly examined, limited, and criticized from the perspective of alternative notions of good." See Koskenniemi, "The Effects of Rights on Political Culture", in: Philip Alston (ed.), The EU and Human Rights, Oxford University Press, 1999, p. 105.
33. See Martin Jones, "Lies, damned lies and diplomatic assurances: The misuse of diplomatic assurances in removal proceedings", European Journal of Migration and Law, Vol.8, 2006, pp. 9-39.
34. For more detailed analysis, see Elspeth Guild, note 6 above.
35. Gregor Noll has used the term "filter" for all legal devices explicitly or implicitly connected with the regulation of the personnel and material scope of extraterritorial protection (Noll, Negotiating Asylum, note 5 above, p. 14).
36. See Art. 33 of the Convention relating to the Status of Refugees 1951.
37. Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need inter national protection and the content of the protection granted, see Official Journal of the European Union, L 304/12.
38. On the concept of "harm" in Directive 2004/83/EC and its relation to the protection provided by Article 3 of the European Convention on Human Rights, see the Elgafaji case (C-465/07, 17 February 2009). According to Article 18 of the EU Charter, the right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union.
39. See, e.g., Gary T. Troller, Refugees in contemporary international relations: Reconciling state and indi vidual sovereignty, Working Paper No. 85, UNHCR, March 2003.
40. See Gregor Noll and Jens Vedsted-Hansen, "Non-Communitarians: Refugee and Asylum Policies", in: Philip Alston et al. (eds), The EU and Human Rights, Oxford, 1999, p. 360.
41. Gregor Noll, Negotiating Asylum, note 5 above, p. 75. This approach is vulnerable to criticisms coming from particular perspectives as will be discussed below.
42. This is interesting as human rights are generally said to be universal and valid against all persons and institutions. Jack Donelly has observed that human rights are the highest moral rights which regulate "the fundamental structures and practices of political life and in ordinary situations they take priority over other moral, legal and political clams" (Jack Donelly, Universal Human Rights in Theory and Practice, Cornell University Press 2003, p. 1).
43. See Seyla Benhabib, The Rights of Others. Aliens, Residents and Citizens, Cambridge University Press 2004, p. 221.
44. " To prevent international law from losing its independence vis-a-vis international politics the legal mind fights a battle on two fronts. On the one hand, it attempts to ensure the normativity of the law by creating distance between it and State behaviour, will and interest. On the other hand, it attempts to ensure the laws concreteness by distancing it from a natural morality" (Martti Koskenniemi, From Apology to Utopia. The structure of international legal argument, Cambridge University Press 2005. p. 17). Koskenniemi here addresses the question of why law is constantly in danger of lapsing into an apology for politics.
45. On descending and ascending arguments in legal language, see Koskenniemi, From Apology to Utopia, pp. 60-67.
46. See Hemme Battjes, European Asylum Law and International Law, note 4 above, pp. 171-172.
47. Noll and Vedsted-Hansen, "Non-Communitarians", note 36 above, p. 361.
48. See, e.g., N. v. Finland, ECtHR, Application no. 38885/02, Judgments 26 July 2005.
49. As is well known, under the Schengen regime heavy fines are imposed on airline carriers for boarding passengers without proper documentation and visas, effectively making these companies responsible for carrying out rigorous migration control functions.
50. James Hathaway, The Rights of Refugees Under International Law, Cambridge University Press, 2005, pp. 291-296.
51. A good example of this was the EU Resolution on Manifestly Unfounded Applications for Asylum, Ad Hoc Group on Immigration Doc. SN4822/1/92 (WG1) 1282, 1992.
52. Jens Vedsted-Hansen, "Non-admission policies and the right to protection. Refugees' choice versus states' exclusion?" in: Frances Nicholson and Patrick Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes, Cambridge University Press, 1999, p. 270.
53. See Amuur v. France, ECHR (application 19776/92). In that decision the Court noted that even though the applicants were not in France within the meaning of the Ordinance of 2 November 1945, holding them in the international zone of Paris-Orly Airport made them subject to French law. Despite its name, the international zone does not have extraterritorial status
54. Vedsted-Hansen, "Non-admission policies", note 48 above, p. 269.
55. Benhabib, The Rights of Others, note 39 above, p. 153.
56. Ibid., p. 152.
57. See the Joint Position of the Council of Ministers of 25 October 1996, EFT 1996 C 80/ 1.
58. Benhabib, The Rights of Others, note 39 above, p. 152.
59. Guy Goodwin-Gill, The Refugee in International Law, Second Edition, Oxford University Press 1998, p. 30.
60. For example, in 2005 Sweden and Spain gave positive decisions on 50% of asylum applicants from Iraq. In the same year, Denmark recognized only 7%, Greece 1%, and Slovenia none of the applicants. See European Commission statistics attached to the Green Paper on the future Common European Asy lum System, 6 June 2007, COM (2007) 301 final.
61. Green Paper on the future Common European Asylum System.
62. H.L. A Hart introduced the idea of 'open texture' to discussions in jurisprudence in The Concept of Law (Oxford, Clarendon Press 1977). Terms like 'cruelty' or 'courage' or 'inhuman and degrading treat ment' are vague and open textured. Tw o people, who both know what they mean can disagree whether they apply in particular case or situation. International normative language is full of expressions which are indeterminate or as I call them 'open concepts'.
63. Ramzy v. The Netherlands, ECtHR, Application no. 25424/05.
64. See Communication from the Commission to the Council and the European Parliament on "Strength ened practical cooperation. New Structures, new approaches: improving the quality of decision making in the common European asylum system", Brussels, 17 February 2006 COM (2006) 67 final.
65. Communication from the Commission to the Council and the European Parliament on "Strength ened practical cooperation. New Structures, new approaches: improving the quality of decision making in the common European asylum system", Brussels, 17 February 2006 COM (2006) 67 final, p. 2.
66. According to a report by PICUM (2008), at least 11,852 people have died since 1988 along the European frontiers. Among them, 4256 went missing at sea. According to the report, 8165 migrants died in the Mediterranean and crossing the Atlantic Ocean towards Spain, and 1587 lost their lives trying to cross the Sahara desert in order to reach Europe. One could say that asylum seekers or migrants risk their lives because It is so dangerous and difficult legally to get access to Europe, where universal human rights are said to be of highest priority. For reports see: www.picum.org. Visited January 2009.