Europe: refugee protection — illusion or reality
22 June 2011

Red Cross workers assist a Tunisian man at the port of Lampedusa, Italy. The man was among 40 people aboard a small migrant boat that was lost at sea for four days. (UN/Phil Behan)

(Brussels) June 22, 2011 — Since the beginning of the "Arab Spring" and most notably the armed conflict in Libya in mid-February 2011, ten of thousands of persons have tried to escape the escalating violence in North Africa and find protection in Europe. They have often failed. Almost every week, we receive news about a boat carrying refugees having foundered and its occupants drowned.

They are the victims of the impervious character of European frontiers. For years, the European Union and its member states have done everything in their power to close their borders to 'unwanted' migrants. They have failed to establish policies and procedures enabling identification and provision of assistance for those who come to Europe seeking international protection.

Instead, border cooperation with transit countries has been high on the EU agenda. EU states have offered carrots and sticks to these countries to make sure they are able to control their borders and prevent the arrival of these unwanted migrants.

Only a few months before the conflict in Libya began, EU commissioners and other representatives were actively courting the country's dictator, Colonel Gaddafi, in order to ensure his cooperation with their border control policies.

In parallel with EU activities, several member states have established bilateral contacts and concluded agreements with certain transit countries. The most notorious cases are the close relations between Spain and Morocco, Mauritania and Senegal, and — until very recently — between Italy and Libya.

Those who come to Europe in overcrowded boats, or wait in refugee camps for resettlement to third countries, have often fled severe human rights violations in their countries of origin. For instance, the vast majority of the population in the Tunisian Ras Jdir camp are from Somalia, Eritrea, Sudan, Chad, and Niger.

A cursory glance at reports by Amnesty International and Human Rights Watch provides enough information about the atrocious human rights situation in these countries. This is not a new trend. In 2009, for instance, approximately 60 percent of the asylum seekers in Malta came from Somalia and were in clear need of protection.

This border-tightening approach — while failing to take measures to identify those in need of protection in transit counties – undoubtedly leaves victims. Protection mechanisms have failed to materialize, despite repeated promises by European decision-makers. Neither the recently established European Asylum Support Office – which merely provides technical support to member states – nor the EU border agency, FRONTEX, have a protection mandate.

The danger that persons in need of protection are being turned back during border-control operations is far from being eliminated. Sixty years after the formal adoption of the 1951 refugee convention, it is clear that European governments are violating the spirit of this forward-looking document. At best, they are doing little or nothing to ensure those in need of international protection receive it; at worst, they are knowingly conspiring to prevent their arrival.

Has refugee protection in Europe become an illusion after only 60 years? This would be too pessimistic an assessment of the situation. Let us not forget the convention has already gained status as one of the 'world order treaties’ that has become the backbone of an emerging 'global constitution.'

The civilizing effect of a treaty giving rights to refugees – to those who can no longer depend on their government for protection and would otherwise be left without rights – cannot be overestimated.

In particular, the non-refoulement clause in Article 33(1) of the convention is of utmost importance. Over the years, it has become part of international customary law to be respected, even by non-signatory states. It clearly prohibits the direct or indirect return of an individual to his or her country of origin, if he or she has a well-founded fear of persecution for any of the reasons specified in the convention.

This near universal acceptance has permeated European jurisprudence. The 1951 refugee convention is now part of EU law. Article 18 of the Charter of Fundamental Rights – providing for the right to asylum to "be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 – has the same status as the founding treaties of the EU.

In addition, Article 19(2) of the charter goes further than the refugee convention when it states that "no one may be removed, expelled or extradited to a state where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment."

Yet the reality on the EU borders is far from the ideals expressed in these documents. To put it frankly, European states violate not only international, but also EU law. Fortunately, the law acts as a statutory source of arguments that can be used by advocates on behalf of asylum seekers.

At least the relevant law exists. In this sense, protection is a reality and not an illusion. It now is time for all decision-makers – at national and EU levels – to make sure these legal provisions are respected by ensuring a fair, open and effective asylum system for all those in need of it.

Underlying the struggle in favor of those denied state protection is a battle over values, between those who prioritize individual human life and those who emphasize the protection of state borders. In this struggle, the Jesuit Refugee Service draws inspiration from the ancient Jewish text of the Talmud: "Whosoever saves a life, is considered as if he had saved an entire world."

~ Stefan Kessler, Jesuit Refugee Service Europe Senior Advocacy Officer









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Mr Christian Fuchs
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