Corso di Laurea Magistrale in Relazioni
Internazionali Comparate – International
Relations
Tesi di Laurea
The International Refugee Law.
The Case of Spain.
Relatore
Ch. Prof. Fabrizio Marrella
Correlatrice
Ch. ma Prof. ssa Sara De Vido
Laureanda
Anna Busnardo
Matricola 823221
Anno Accademico
2012 / 2013
A Suad, Mohamed, Afeef, Nazzer, Alì y Jamal.
De refugiados a hombres libres.
TABLE OF CONTENTS
ABSTRACT………. V
INTRODUCTION………... 1
1. HISTORY AND SOURCES OF REFUGEE LAW AT INTERNATIONAL LEVEL ……….... 4
1.1 The 1951 Geneva Convention Relating to the Status of Refugees …………... 10
1.1.1 Article 33: Prohibition of expulsion or return (non-refoulement) ………….. 21
1.2 The role of borders in the process of asylum ……… 25
2. HISTORY AND SOURCES OF REFUGEE LAW AT EUROPEAN LEVEL ……….33
2.1 Free movement of people: Europe and asylum……….. 39
2.2 The situation of Euro-Mediterranean borders from the point of view of human rights ……… 45
2.2.1 The right to seek asylum ………...………. 54
3. SPAIN: COUNTRY OF ARRIVAL OR COUNTRY OF DEPARTURE?...59
3.1 Rules of the Spanish immigration ………. 62
3.2 The system of asylum: the Spanish example………..70
4. CEUTA: THE DE FACTO SOUTHERN BORDER OF THE EUROPEAN UNION ……… 80
4.1 Seeking asylum in Ceuta………. 82
CONCLUSION ……….. 92
LIST OF ABBREVIATIONS
CAT: Convention Against Torture
CEAS: Common European Asylum System
CEDAW: Convention on the Elimination of All Forms of Discrimination Against Women
CERD: Convention on Ending Racial Discrimination CEPOL: European Police College
CETI: Centro de Estancia Temporal de Inmigrantes [Short-stay Immigrants Centre] CJEU: Court of Justice of the European Union
CRC: Convention on the Rights of Child EASO: European Asylum Support Office ECHR: European Convention on Human Rights ECtHR: European Court of Human Rights
EURASIL: European Union Network for Asylum Practitioners EURODAC: European Dactyloscopy
EUROPOL: European Police Office
ICCPR: International Covenant on Civil and Political Rights OAR: Oficina de Asilo y Refugio [Asylum and Refuge Office] OHCHR: Office of the High Commissioner for Human Rights
SIVE: Sistema Integrado de Vigilancia Exterior [Integrated External Surveillance System]
UDHR: Universal Declaration of Human Rights
UNHCR: United Nations High Commissioner for Refugees
UNRWA: United Nations Relief and Works Agency for Palestine Refugees in the Near East
ABSTRACT
L’obiettivo di questa tesi è delineare i concetti chiave raccolti negli strumenti internazionali riguardanti la protezione dei diritti dei rifugiati e dei richiedenti d’asilo. Partendo da un’idea più ampia di libertà di movimento degli individui sancita nella Dichiarazione Universale dei Diritti dell’Uomo e della conseguente libertà di lasciare il proprio paese, si evidenziano i numerosi diritti che appartengono a quei soggetti che non possono avvalersi della protezione del proprio paese d’origine. Il primo capitolo sottolinea le caratteristiche della protezione dei rifugiati e richiedenti d’asilo raccolte nella Convenzione di Ginevra del 1951. Scritta nell’immediato dopoguerra e volta a tutelare i diritti degli europei allontanatisi dalla patria, questo strumento è attuale e idoneo nell’indentificare quali sono gli individui che possono essere riconosciuti come rifugiati, soprattutto in questo periodo storico di guerre civili, ribellioni, povertà endemica e calamità naturali che forzano gli uomini ad abbandonare il proprio paese. L’Art. 1 della Convenzione identifica come rifugiato quella persona che temendo a ragione di essere perseguitata per motivi riguardanti la razza, la religione, l’etnia, l’appartenenza a uno specifico gruppo politico e la stessa opinione politica, si trova al di fuori del suo paese e non può o non vuole, a causa dei suddetti timori fondati, avvalersi della protezione dello stesso. Il citato articolo si riferisce anche a coloro che non avendo più una cittadinanza (apolidi) non possono avvalersi della protezione del proprio paese, chiedendo dunque la protezione internazionale in un altro stato. Si prosegue con un’accurata analisi dell’Art. 33 riguardante il principio di non-refoulement, vale a dire il divieto degli stati di respingere, espellere o espatriare i rifugiati e richiedenti d’asilo verso paesi in cui la paura fondata da cui sono scappati potrebbe ripresentarsi. Si vede in che modo questo divieto internazionale è rispettato dagli stati europei e in particolar
modo dalla Spagna osservando però, sia come molti stati riceventi sono incapaci di proteggere e organizzare le ondate di rifugiati, sia mettendo in luce quali sono gli errori in cui cadono numerose legislazioni. Oltre all’analisi del concetto di ‘paura fondata di essere perseguitati’ e alla sua composizione soggettiva e oggettiva, il primo capitolo tratta le cause di persecuzione su cui i giudici si basano per l’attendibilità delle testimonianze apportate dai rifugiati e dal ruolo tenuto dallo Stato da cui questi scappano; ovvero se è possibile avvalersi della protezione del paese d’origine, smascherando dunque quei finti rifugiati che cercano di approfittare della protezione internazionale per instaurarsi in altri paesi. Si prosegue poi con il trattare l’importanza delle frontiere, accompagnata dal ruolo della nazionalità, identificando le caratteristiche dei cittadini di una nazione e quelle degli immigrati che chiedono rifugio. Mostrando le varie procedure da seguire per acquisire la nazionalità di un paese, si vede come la titolarità della suddetta giochi un ruolo importante nell’avvalersi dei diritti di uno stato, evitando dunque espulsioni e godendo della protezione internazionale offerta da altri paesi. Si nota poi come questi abbiano l’obbligo, sancito nei trattati internazionali, di rispettare e proteggere i diritti umani degli individui, a maggior ragione dei rifugiati che scappano da paesi in cui questi diritti sono violati. Si pone l’accento, infatti, sull’importanza di un’apertura nell’accogliere rifugiati e richiedenti d’asilo da parte degli stati, per garantire la protezione dei diritti e della stessa dignità umana.
Dopo avere trattato la legislazione in materia di rifugiati a livello internazionale, si passa ad affrontare, nel secondo capitolo, la legislazione prettamente europea, partendo da un breve riassunto della formazione della Comunità Europea e dei trattati su cui si basa la sua vita legislativa. Si dà maggior luce al Trattato di Amsterdam e agli accordi di Schengen essendo le basi su cui poggia la legislazione in materia d’asilo a livello europeo. Dopo averne tracciate le caratteristiche e le linee guida, per esempio il libero movimento dei cittadini europei, si contrappone la
visione degli immigrati di una ‘Europa fortezza’, irraggiungibile a causa del rafforzamento dei controlli alle frontiere. Si affrontano anche i risultati degli incontri indetti dal Consiglio Europeo, quali Tampere, L’Aia e Laeken, coincidenti con un corretto controllo dei flussi d’immigrazione irregolari, con la cooperazione con i paesi d’origine e con la struttura di base di un sistema comune d’asilo a livello europeo. Questo sistema, che accomuna tutti i membri dell’Unione Europea, definisce quattro categorie che servono a guidare i giudici nella procedura d’asilo: chi è definito rifugiato, chi si avvale della protezione sussidiaria, colui al quale è garantita una protezione temporanea, colui al quale la propria richiesta non è ancora stata esaminata. Stabilendo queste categorie il sistema d’asilo europeo prevede e attua la protezione dei diritti umani degli appartenenti a questi gruppi. Il secondo capitolo prosegue poi con una rapida analisi della Convenzione di Dublino che si occupa della decisione riguardante quale stato deve farsi carico della procedura d’asilo di un richiedente. Tale regola attua da freno nei confronti dei rifugiati che non possono scegliere a quale stato affidarsi per essere protetti bensì devono avvalersi della protezione del primo stato europeo che raggiungono. Si prosegue poi con la spiegazione del compito dell’agenzia europea Frontex riguardante la gestione delle frontiere esterne degli stati membri con particolare riguardo alle frontiere meridionali. Si nota come il rafforzamento europeo dei controlli nelle proprie frontiere sia inversamente proporzionale al facile accesso di queste da parte degli immigrati, che si vedono obbligati a scegliere vie alternative e spesso illegali per arrivare in territorio europeo. Si procede in seguito con i vari tipi d’intercettazioni attuati dalle nazioni nei riguardi dei migranti: attiva o fisica se ci si riferisce alle intercettazioni delle imbarcazioni in mare; passiva o amministrativa per quanto riguardano i visti e i permessi di soggiorno. Sono mostrate le caratteristiche principali dei visti e come gli stati pretendono che i cittadini di alcune nazioni specifiche li posseggano per entrare in Europa, rallentando gli accessi di chi cerca
protezione internazionale. Dopo un esame dell’attuazione del principio di
non-refoulement a livello europeo, si percepisce come il concetto di giurisdizione
nazionale sia un concetto giuridico e non geografico che si estende dunque al di là dei confini di uno stato. Si conclude il riassunto a livello europeo affermando che il concetto di migrazione nell’epoca moderna continua ad essere affiancato all’idea di minaccia, sia alla sicurezza nazionale che a quella personale di ogni individuo, così come la figura dell’immigrato continua ad essere analizzata in relazione al concetto di criminalità, discriminazione e paura del diverso.
Il terzo capitolo analizza la situazione a Spagna riferendosi al suo cambiamento da paese di emigrazione a quello d’immigrazione, sottolineando la presenza massiccia di cittadini provenienti da stati nordafricani, data la vicinanza, e sudamericani data l’affinità per lingua e cultura. Questo capitolo pone l’accento su come le autorità spagnole si comportano nei confronti della presenza di rifugiati nel proprio territorio, notando un uso inappropriato di parole quali ‘illegale’ o ‘clandestino’ nel rivolgersi a suddetti soggetti. Sono inoltre illustrate le disposizioni e le leggi su cui lo stato spagnolo si basa per regolare il fenomeno dell’immigrazione e dell’asilo; si fa, infatti, riferimento alla Costituzione spagnola come punto d’appoggio di tutte le leggi per la tutela del cittadino, spagnolo o straniero esso sia, terminando con la creazione, recente e non, di leggi specifiche che regolano l’asilo e i diritti che possiedono i rifugiati in Spagna. Nonostante le prime leggi fossero state create in un momento in cui in Spagna la presenza straniera era pressoché limitata, queste si rivelano adatte al regolamento del fenomeno e si comportano da leggi-guida per quelle successive che apporteranno alcune modifiche quali: la totale garanzia di alcuni diritti agli stranieri che in precedenza era garantita solo ai cittadini spagnoli, il regolamento dei permessi di soggiorno e della permanenza nei centri di accoglienza per i rifugiati racchiusi nella Legge sull’Asilo del 2009. Dopo un’accurata descrizione della figura degli ‘empadronados’ ovvero gli stranieri e i cittadini
spagnoli che sono registrati all’anagrafe, il capitolo prosegue con l’esposizione dell’Africa Plan 2009-2012, consistente negli accordi stipulati tra lo stato spagnolo e alcuni paesi dell’Africa settentrionale, in particolar modo con il Marocco. Il piano consiste nella collaborazione in materia d’immigrazione dando particolare rilievo al concetto di non-discriminazione e di uguaglianza nel trattamento delle minoranze culturali e religiose.
L’ultimo capitolo tratta la situazione spagnola più da vicino con l’analisi della situazione di Ceuta, l’enclave spagnolo situato nello stato marocchino. Si fa riferimento a questa città come a una sorta di prigione a causa della difficoltà nell’accedervi e della lunghissima attesa per uscirne. La difficoltà nella gestione di questa zona consta nella problematica convivenza tra cristiani e musulmani che alimenta tensioni e ribellioni, ma soprattutto si manifesta a causa dell’esistenza di una recinzione che circonda tutto l’enclave, fonte di espulsioni irregolari e illegali o di ferite e lesioni di quegli immigrati che cercano di scavalcarla. Inoltre, il capitolo prende in considerazione lo svolgimento della procedura d’asilo, vedendo come, una volta raggiunto il territorio spagnolo, gli immigrati chiedano protezione internazionale e asilo che però non sempre sono rispettati. Si trattano i temi delle espulsioni irregolari, del sovraffollamento del Centro di Internamento per gli Stranieri di Ceuta, della lentezza nello svolgimento delle pratiche d’asilo, della violazione dei diritti umani nel permettere la permanenza, in mezzo a strade o case abbandonate, a rifugiati e titolari di protezione sussidiaria ai quali dovrebbero essere garantiti i diritti previsti dalla Convenzione di Ginevra in primis e dalle leggi nazionali poi. Si pone l’accento sul bisogno di chiarezza e facilità nel raggiungere informazioni sull’asilo da parte dei rifugiati per agevolare le loro interviste con avvocati e interpreti. Il capitolo si conclude poi con l’analisi delle caratteristiche dei Centri di Accoglienza per i Rifugiati nelle penisola spagnola con particolare attenzione allo statuto a cui questi fanno riferimento.
Si cerca infine di presentare delle accurate considerazioni e proposte per migliorare la tutela dei diritti propri dei rifugiati, in particolar modo a Ceuta e nel territorio spagnolo in generale. Si propone dunque una maggior velocità nelle decisioni finali della procedura d’asilo per diminuire la permanenza degli immigrati nei Centri di Internamento favorendone il trasferimento nella terraferma. Si ricorda l’importanza, propria degli stati, di assicurarsi della situazione politica, civile e sociale dei paesi in cui gli immigrati sono rimpatriati per evitare che questi subiscano successivi maltrattamenti o rischino persecuzioni per motivi di razza, religione, appartenenza a gruppi politici o violenze sessuali e di genere. Si termina dunque con l’inserimento del concetto di protezione dei diritti dei rifugiati in un contesto più ampio nel quale deve prevalere la collaborazione tra gli stati e le agenzie internazionali al fine di garantirne la tutela.
INTRODUCTION
Migration is a phenomenon spread all over the world that exists since the origins of our planet. People move from their hometown because of diverse reasons: due to economic necessities, due to the research of better work conditions, to study in a different country or simply for tourism. Nevertheless, this dissertation tries to develop a humanitarian approach that brings up the subject of migration because of fear of persecution.
The first chapter studies the development of the refugees’ law from an international point of view. Starting with the interpretation of some significant articles, in particular the n° 1 and n° 33, of the 1951 Geneva Convention relating to the Status of Refugees, we will succeed in explaining which are the criteria applied to identify an immigrant as a refugee. We will deal with the well-founded fear of persecution, consisting of subjective and objective aspects, caused by race, religion, gender-related abuses, ill-treatments and violation of human rights. We will continue examining the importance and prohibitions stated in the art. 33 about the principle of
non-refoulement. This principle is linked to the impossibility of States to return
immigrants to any countries in which they could risk persecution, even if we will see that some infractions happen everyday. Immediately after, we will focus the attention on the role of borders in a world trapped by the globalization, which lead up to massive movements of populations and vulnerable groups who find themselves displaced because of wars, natural disasters and ill-treatments in native countries.
The second chapter will have the purpose of dealing with the figure of refugee at European level. We will manage the most important treaties and directives that influence and create the Common European Asylum System with its concerns for civil liberties and the question of diversity. We are going to deal with how Europe
helps coastal countries in the reception of immigrants and how these countries handle the reception of refugees. We will move inside and through the European borders in order to see their openness and closure to the entrance of asylum seekers, people who are looking for protection, fleeing from persecutions. We will also take into consideration the idea developed by migrants of Europe as a fortress because of the worsening and strengthening of European border controls opposing to the internal freedom of movement of European citizens.
In order to examine in depth the European situation, we will take Spain as an example of the management of the issue of refugees. We will reveal the laws implemented, from the first Leyes Orgánicas to the recent Ley de Asilo 12/2009. It will be explained which is the system implemented to face the massive flow of immigrants who come from Africa’s Sub-Saharan countries and what kind of agreements and pacts Spain has contracted with these countries. We will make an example of collaboration that theoretically could be perfect, but it is difficult to be actualized. Because of several controls in transit zones and the intensification of control on Spanish borders, immigrants find, in any ways, possibilities to enter the country through illegal ways such as trafficking and smuggling. We will determine in which ways Spain comes to an understanding with European Union and its Directives, learning about that Spain is one of the most receiving countries of the Mediterranean context flanked by Italy and its Libyan arrivals.
Ultimately, to examine more in depth the situation of Spanish borders in the Mediterranean environment, we will deal with Ceuta, the de facto Southern frontier of European Union. We will see how this enclave, situated in Moroccan territory, has several similarities with a prison if we refer to the accommodation of migrants and asylum seekers in particular. In spite of the multitude of meetings among Member States and in this particular case between Spain and third countries, as happened in Seville and Rabat, we will become acquainted with the reality of Ceuta
thanks to the contribution of NGOs. We are going to see and suggest some arrangements that could be done in the reception of asylum seekers in Ceuta to reduce the pressure released by massive migration flows.
I have always been curious about this topic and about the importance of the integration among different cultures and nationalities. Thanks to a tough experience at the Refugees’ Centre located in Seville I got familiar with the refugees’ world and the asylum practice, learning what is the procedure that immigrants need to follow to enjoy international protection. All things considered, I understand that what drives third countries nationals to reach the ‘Fortress Europe’ are, first of all, economic trends and political or other kinds of persecution. Western countries and the same Europe have a lot of responsibilities towards immigrants. Someone can assert that Europe is not ready to house the worldwide poverty, or at least the African one. On the other hand, it is not possible to forget that everything started with the slave trade, colonization and neo-colonialism. Over the years, Western countries have worried about their personal interests, using every kind of means in hand, blowing up conflicts with spread consequences. Unexplainably, today Europe is closing its borders, compelling migrants, asylum seekers and refugees to take long and difficult routes to take a chance all alone.
1
HISTORY AND SOURCES OF REFUGEE LAW AT
INTERNATIONAL LEVEL
SUMMARY: 1 A brief history of migration. - 2. International treaties. – 3. The founded fear of persecution. – 4. Causes of persecutions. – 5. Out of native country. – 6. Analysis of elements of exclusion. – 7. The role of nationality. – 8. Right to depart, right to return. – 9. The connection between borders and the control of migration.
1. A brief history of migration
Talking about migration means to deal with a controversial issue, which has a leading position in the international agenda. The phenomenon of migration interpreted in his duality, as emigration and immigration, has remote origins. The reasons why people decided to leave their own country are several and linked to difficult situations and realities. Normally, without taking into account wars, persecutions and natural disasters, people leave their own country to reach new and better life conditions.
The business of migration started flourishing during 1990s thanks to the growth of population and so the resulting inequality. People opened their movement towards developed countries that were facing the growth too, unchaining the division between rich and poor people. It was not an isolated problem but a worldwide spread event. The solution of this occurrence, the boom of population, concerned the competence of each state to regulate the flow of people. Subsequently, the 1920s
were recognized as the years of the international apprehension about migration.1 It was understood that migration was not a war-related affair but it was a continuous and ever lasting movement. The principle of freedom of movement, effectively, came into existence since the period of colonization. In addition to this, in the 18th century, limitations were introduced: the USA Supreme Court claimed that every country, because of its sovereignty power, could prohibit the entrance of some migrants stating:
“It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigner within its dominions, or to admit them only in such cases and upon such conditions as it may see fit to prescribe.”2
For this reason, the concept of nation-State and the differentiation of people started developing and laid the foundations for the immigration law.
Every history of immigration asserts that each new group of arrivals has always been received with hostility and dubiety. The diversity has been placed side by side to the figure of war, and to the one who scrounges the job to the native. The difference between nationals and non-nationals is usually analysed through an interstate context, which considers the nationality a central topic. It underlines the relationship between individuals and State, the last one exercising the diplomatic protection. This is the protection and monitoring of characteristics of the Sates, which can be translated into one concept: international law.
The necessity of adopting legal instrument, at international level, is evident because of the numerical entity of the phenomenon of migration. According to UN’s appraisal, 175 millions of individuals live in a different country from their own: this
1 G. CLAYTON, Textbook on Immigration and Asylum Law, V ed., Great Clarendon Street
Oxford, Oxford University Press, 2012, p 5.
2 U.S. Supreme Court 18th January 1892, Nishimura Ekiu v. United Sates et al., 142 U.S.
means that they represent the 3% of the global population. If we refer to a smaller context, in the European Union the 3,4% of population is hailing from third countries.3 Despite its vastness, migration is widely regulated at the State level. The complex body of rules, laws and case law that govern the admission to every country is a 20th century phenomenon.4 These measures controlling the flow of aliens have always been connected with hostilities with other countries. It is difficult to cooperate at an inner level, it is almost impossible to cooperate and debate at European and international level. First, the control of immigration is an executive power’s task. Every government must exercise this power, all around the globe. What are not clear and create misunderstandings at international level of immigration law are the limitations and sources of this power.5 “Immigration law is in a sense all about the exercise of the executive power and the limits upon it”.6 Second, it is necessary to be aware of international treaties in order to see where the limits of the power of the State are fixed.
2. International treaties
A long history of bilateral treaties characterized the regulation of migration, supported by several regional treaties, as those regulating the European Community. The first treaties and conventions were linked to migrant workers (Paris Peace Conference of 1919: UN Convention on Migrant Worker’s rights). Sending states used to send workers to other countries in order to earn money. In this way, with a hypothetical international cooperation, developing countries, that send workers,
3 L. MANCA, L’immigrazione nel diritto dell’Unione Europea, Milano, Giuffrè Editore,
2003, p 2.
4 G. CLAYTON, Textbook on Immigration and Asylum Law, p 5.
5 M. E. PETERS, Immigration and International Law, University of Wisconsin-Madison, p
1
would gain from the increased flow of remittances facing a decreasing unemployment. On the other hand, developed countries, which were receiving migrants, would have a better control of the flow of migrants into their country. “Finally, migrants themselves would likely benefit from the increased protection that international law would afford them while working abroad.”7 Nevertheless, the most important treaties, which gave prominence to the figure of immigrant as unprotected and vulnerable, are the ones concerning human rights. Here, we find all the answers to our will to know more about the figure of migrant and individual in general.
The Universal Declaration of Human Rights (UDHR)8 stated:
“Everyone has the right to freedom of movement and residence within the borders of each State; everyone has the right to leave any country, including his own, and to return to his country.”9
This article, 13, has inspired all the principles, rights and duties related to the migrant and subsequently to the refugee. International human rights law, starting from this Declaration laid down obligations that States are tied up to respect. When a State becomes part of an international treaty10 it means that it has to submit to these international duties. The Declaration follows with art. 14, stating:
“Everyone has the right to seek and to enjoy in the other countries asylum from persecution. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.”11
7 G. CLAYTON, Textbook on Immigration and Asylum Law, p 5.
8 Universal Declaration of Human Rights, adopted on 9th December 1948 by the General
Assembly of the United Nations.
9 Article 13, UDHR.
10 This declaration (UDHR) does not represent a legal tool in the strict sense because it has
never been approved as a treaty. Nevertheless, it is referenced in full by several international norms of human rights’ protection.
It is easy to understand that interests of migrants are protected and brought to live for the first time in this document. The international migration law, in fact, is like a very large picture, every time it can be modified or completed, but the bases are always the same. Since the international law claims what can and cannot be done in all the contexts, it results that, through the direct impact of treaties in the daily life, the migrant is not unprotected, but his legal situation can be contingent. Six macro-rights12 can be marked in relation to the figure of migrant who moves inside international law. First of all it has to be recalled the right of individual to depart and so to leave his/her own county. As we saw previously, this right is recognized in the UDHR, in particular in art. 13. Secondly, the right to be admitted to a country other of the one of own nationality, grouped in articles 14 and 15, is directly connected to bilateral or multilateral agreements. Clear examples are the ones who concerned the relationship between Italy and Libya or Spain and Morocco.13 This means that this right should be protected by the sovereign competence but this is not absolute: the reference to UDHR is immediate. Thirdly, we should wonder how the migrant is to be treated in the country in which he or she has been admitted. Even this point is regulated by treaties, bilateral arrangements or, without doubts, by the UDHR. The general function of international law is to guarantee a governing body to the universal community of individuals. 14 Therefore, all the norms have the aim to protect the individual both in his personal and social dimension. In the international law of XVI-XIX centuries, the individual was protected by certain rules only when he was recognized as the citizen of another country, so as a foreigner. It followed that the country did not have international obligations concerning the treatment of its own subjects and of stateless. Today, after World War II, the individual is protected
12 Available at http://legal.un.org/avl/ls/intlmigrationlaw.html#
13 A clear example can be find in the Africa Plan 2009-2012 by The Spanish International
Development Co-operation Agency, Ministry of Foreign Affairs and Cooperation.
14 C. FOCARELLI, Lezioni di diritto internazionale, Padova, CEDAM, 2012, p 325
apart from his/her nationality. Fourthly, it is necessary to deal with the topic-area of expulsion, which is a typical discretionary competence. If we refer to the power to expel we find the instructions in the international law, in particular in the treaty regime or legal regime of human rights protection. Consequently, as well as it is considered the right to depart, it is equally contemplated the issue of return and so the right of the individual to return to his/her own country. In theory, this is an uncontested right but in practice it is difficult to exercise it. What is known is that people go abroad because they are not protected in the country of origin. For this reason there is the obligation of the State of nationality to protect its citizens avoiding or reducing, in this sense, the migration flow. Then it is necessary to bear in mind the topic of management and control and so what happens when a State acts outside its territory to manage and control the movement of people. At what extent is it bound from international obligations? What happens after an interception in high sea? To answer to these recurring question we have to refer to international treaties.15
Today, it is still controversial how a State has to behave with foreign citizens in its territory. We discussed a lot about the ‘national treatment’ (to deal with foreigners in the same way you behave with national citizens) or about a ‘minimum-international treatment’ (to have something in common about the treatment of foreigners among countries).16 The first example is implemented by underdeveloped countries in order to avoid that foreign citizens benefit from a major number of rights then their citizens. Developed countries, to align other countries to their own level of protection, generally use the second one. This last model seems more advisable even if there is no international practice, which claimed that countries should treat foreign citizens in the same way in which they treat national citizens.
15 A direct example can be find in the United Nations Convention on the Law of the Sea,
adopted on 10th December 1982 in Montego Bay, entered into force on 16th November 1994. 16 C. FOCARELLI, Lezioni di diritto internazionale, Padova, CEDAM, 2012, p 325
1.1 THE 1951 GENEVA CONVENTION RELATING TO THE
STATUS OF REFUGEES
Till now, it has been discussed about the figure of migrant without specifying why this individual decides to leave his own country. It has been analysed what a State should do to receive and accept a foreigner and the hypothesis of the treatment of foreigners of every country. What happens when an individual leaves his country because of persecutions, sexual violence, wars and crimes? How this individual has to be treated in the country of arrival? The Geneva Convention relating to the Status of Refugees deals with the figure of refugee and with all the rules, obligations and treatment relating to him. Its following Protocol of New York of 1967 aims for assure an equal status to all refugees who need international protection. Only three States have taken part to the Protocol and not to the Convention (Cape Verde, United States of America and Venezuela). Before entering in the explanation of this Convention it is preferable to deal with a brief history of the refugee’s world.
The current international system, whose aim is to protect refugees, hails from a long path started during the First World War with the establishment of several organizations culminating with the United Nations High Commissioner for Refugees (UNHCR). The concept of asylum, being present in the traditions of populations since a long time, has acquired importance and distinction only after the tragic events occurred in the XX century. Particularly speaking, with the end of the First World War and the Peace Treaty of Paris in 1919, the map of Europe was changed geographically and politically. In that moment the first phase of protection to refugees or displaced people was starting.
The evolution of international refugees’ law comes from eighty years of experience in the displacement of population and so a long history of arrangements between States (in practice and in law). This history is developed around four major pillars:
o What or who is a refugee;
o What means to protect a refugee;
o What are the solutions for the situation of the refugee;
o The necessity of the establishment of an international agency for cooperation about refugees.
The first international organizations under United Nations were born during the 1920s. They were ad hoc temporary agencies trying to safeguard the protection of refugees, which was not so much related to physical protection but to the implementation of legal tools to help them. The idea of refugee was not spread in the geographical and national sense because it was related to specific groups coming from specific countries. In 1920, Red Cross helped 800.000 refugees fleeing from war and Soviet Revolution. Subsequently, being aware of the wide problem of the displacement of people, international organisms were created in 1921. They were humanitarian experiences with the aim of repatriation of war soldiers. The Nansen International Office for Refugees was created in 1930 by the League of Nations to coordinate the control on refugees. The High Commissioner Office for Refugees from Germany was created in 1936 in order to facilitate the re-establishment in Europe of Jewish people from Nazi-Germany. Then, Franklin Roosevelt created the Intergovernmental Committee for Refugees in 1938 to support who wanted to escape from Germany. To help refugees in Europe in that moment meant to let them travel around the continent to find better living conditions and to give them solutions to their problems. There was the necessity of an identity certificate, a piece of paper, which permitted the movement of refugees giving them rights. The basis of this idea was developed in an initial agreement between States, in relation to Russian
refugees, to make them come back to their countries after the Soviet Revolution.17 In this sense, it was necessary the creation of new arrangements. There was not only the problem of Soviet soldiers, but there were other similar categories spread all over the world. From this point on the refugee has been identified with reference to his ethnic group and nationality and so as somebody who should have been a formal citizen and as somebody who has not the protection of the country of origin.
According to the art. 2(7) of the UN Charter,18 UN cannot intervene in matters related to domestic jurisdictions of any State because of the principle of non-intervention. For this reason UN is not free to intervene in refugees matters. A way to reconsider the principle of non-intervention in relation to refugees has been the Convention relating to the Status of Refugees adopted on 28th July 1951 by the UN conference convened under General Assembly resolution 429 and entered into force on the 22nd April 1954. This Convention is based on the principle that individuals shall enjoy fundamental rights and freedoms without discrimination.19 “Recognizing the social and humanitarian nature of the problem of refugees, States will do everything within their power to prevent this problem from becoming a cause of
17 U.S. Supreme Court 18th January 1892, Nishimura Ekiu v. United Sates et al., 142 U.S.
651, p 142.
18 “Nothing contained in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter Vll.” Art. 2(7) Charter of the United Nations, San Francisco 1945.
19 “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”. Art 2 Universal Declaration of
tension between them.” 20 These considerations mean that the State is responsible to look after the refugee. The first article stated:
“For the purposes of the present Convention, the term “refugee” shall apply to any person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;”
It continues:
“(2) As a result of events occurring before 1 January 1951 and owing to well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”21
The current meaning of this article is generally clear and does not need further explanations. We understand that the aim is to assure the protection of some rights of refugees, to try to cooperate at international level, especially with the help of UNHCR, and to avoid that the issue of refugee becomes the starting point of international conflicts and tensions. The article explains who is or should be a refugee. He is someone who has left his country of origin and he is unable to return
20Preamble of the 1951 Geneva Convention relating the Status of Refugees. 21 Art. 1 of Geneva Convention relating the Status of Refugees, 1951.
because of a well-founded fear of persecution related to race, religion, nationality, membership of a particular group and political opinion. The basic ambition of the Convention, helped by the preamble and the first article, is to facilitate the integration of refugee in the welfare and to make them approach the field of work. It is understandable, through the beginning of the text, the deep concern of UN about refugees trying to let them delight of their rights and of civil and political liberty. It is important to add that the rights included in the Convention addressed to refugees, and who is a refugee is defined in article 1(A) of the Convention. According to this statement, a person is a refugee when he meets the parameters contained in the Geneva Convention and he is called a de facto refugee. The identification of the refugee status does not automatically make the individual a refugee but it declares him in that way. This aspect of the identification of a person as a refugee entails that an asylum seeker, asking to be recognized as a refugee, is equally protected by the Convention being recognized as a de jure refugee. They are protected in the same way by the Convention being internal displaced people. Every State should interpret this Convention in the same way even though the adaptation in the internal law can be different.
3. The founded fear of persecution
The key concept to qualify an individual as refugee is his fear of persecution. It is indispensable to consider the whole case; it is necessary to posses the personal details and explanations and so every own personal experience of refugees (the subjective aspects), as well as the updated knowledge of the objective circumstances of the native country, which play an important role in the asylum procedure. The subjective aspect is different to every person who own very different personal
stories bore in different ways. Following this concept, it can be argued that the recognized subjective aspect is a way to prevent the return to the home country where the individual could risk persecution, again. We should remember that an individual does not acquire the ‘refugee condition’ by virtue of identification, but rather this condition is recognized for the mere fact of being a refugee. If somebody does not fulfil the requirements does not mean that he will not be a refugee. Once the person is recognised as a refugee-by-law (effective refugee), the reliability of the individual rises. The developed jurisprudence shows that the asylum seeker has the possibility to bring evidences about his situation in order to support his application.22 The objective face concerns the subjective elements put on objective grounds. It can be difficult for refugees to produce real evidences of the fear they risked in the native country because they do not have reference points or they do not know anyone who can help and support them in explaining their reasons.
Furthermore, it has been developed through the consuetudinary law the proof to establish when we are dealing with a founded fear of persecution. It has to be proved that the persecution is reasonably possible. In certain cases, the evaluation of the credibility of refugees can be particularly difficult. It is possible that the asylum seekers find obstacles to obtain supporting elements because of the specific circumstances of the asylum seeking. It is hard to remember specific dates, minor details that could be relevant, minor incongruities or it can be dangerous to generate incorrect details that can be used as determining factors of the credibility of the asylum-seeker. This credibility is fixed and taken into account when the applicant gives a coherent and reasonable application whose reasons can be believed. It is understandable that the founded fear of being persecuted has to be analysed with attention because it is the key element of the Convention. Generally, the fear is a personal feeling but it has to be ‘founded’ to determine the role of refugee. Although
it is subjective, it needs to have objective basis too. We take into consideration several cases in which the subjective fear has been proved in the objective plan, as well as objective occurrences, which are not determining in the solution of the case. According to the previous considerations, we can understand that conclusions about applications of asylum seekers are drawn only after an appropriate study of all the factors. An aspect of the ‘founded fear requisite’ has been problematic to the solution of few cases. As stated by numerous jurisdictions, the so-called ‘principle of outplacement’23 or internal resettlement (the possibility to move inside your country to a safer zone rather than practice your asylum right) has been used to turn down the possibility to be a refugee to people who had this right. This happens because this principle is considered to be related to the availability of the asylum seeker to take advantage of the protection of the native country. This deep analysis does not happen every time. It is only relevant when the fear of persecution is bounded to a certain part of a country, keeping out the several cases of persecution made by the authorities of every country (because they should exert their power to the entire country).
Another element that is deeply debated is the availability of the protection of national authorities. Somebody24 describes the ‘lack of State’s protection’ as the key element of the definition of refugee included in the 1951 Convention. In accordance with UNHCR, considering the effective national protection is not something isolated or exclusive but it deals with the ability of national authorities to mitigate the fear of population.
To continue the analysis of this first and fundamental article, it is necessary to underline that the term ‘persecution’ is not defined anywhere inside the international law. On one hand, it can be said that this term is well explained thanks to the
23 ACNUR, Interpretación del Articulo 1 de la Convención de 1951 sobre el Estatuto de
Refugiados, Ginebra, 2001, p 6
experience but it is possible to face everyday new kind of persecution that do not follow the ordinary explanation. Starting from the unique strict definition of persecution that can be read through the Convention, this term has been extended, thanks to the development of human rights, in order to include abuses and serious offenses even if not in a systematic way. It is claimed that an interrupted and generalized discrimination will represent a persecution legitimizing international protection. Although the aim of 1951 Geneva Convention is exclusive, to assure protection to refugees, States draw a particular attention to different parts of the Convention. Some countries focused the attention on the perpetrator of the fear or the violation and not in the simple case of persecution. For example, in order to consider an asylum seeker as ‘really’ persecuted, several jurisprudences demand for the identification of the individual,25 who is escaping from a civil war. They need to be sure of his motivations and reality of declarations. According to this, it is possible to confuse two key elements: a) despite situations of war, people can be forced to escape because of a founded fear of being persecuted by some reasons listed in the Convention; b) frequently, wars and violence are used as instruments of persecution (these are the means chosen to repress or eliminate specific groups). It has to be noticed that the Convention was written immediately after the World War II and so it refers to the victims of persecutions of that specific period. Nevertheless, with the development of international practice these victims would be threaten as refugees because they are escaping from ethnic, religious or political conflicts. Having said that, it is equally accepted the existence of persons who are escaping from the effects of indiscriminate violence linked to situations of conflict, without any element of persecution.
25 ACNUR, Interpretación del Articulo 1 de la Convención de 1951 sobre el Estatuto de
4. Causes of persecution
The founded fear must be linked to the five causes established by the Convention. These causes should be relevant although not the unique determiners. Three of these five reasons are included in the first article (race, religion, public opinion) and they do not require further explanations. Related to the cause of race there is the concept of racial discrimination that impedes the expression of fundamental rights and it is the leading reason so people decide to migrate and to enjoy international protection. According to the cause of religion, it refers to every kind of belief and also the absence of it and atheism. Frequently, it is possible the coincidence of these causes; for example, a cause of persecution, as the ethnic group of a person, can be found in more than one cause: race or nationality. Effectively, the cause of nationality gave rise to confusion because the word itself can be used to indicate the ethnic group or ethnic origin, but also the citizenship and the legal link with the State of an individual. It can be difficult to distinguish from persecution because of nationality (concerning cultural and linguistic characteristics) and persecution for public opinion. Stateless people are connected to this topic since they can be refugees as the others, as it is stated in the Convention. In the same way, they can be refugees when the mere lack of citizenship confers a rude discrimination, which ends with persecution. However, States refer to ethnic group and ethnic origin when they deal with the persecution’s cause of nationality. At present, the absolute political neutrality, as blamed and noticed causes, can constitute the basis of the asylum seeking. For instance, a person who does not have any manifest political opinion or does not adhere to any religion can be perceived as the persecutor of every other opinion or religion. In these cases, the only accusation is enough to risk persecution and so to satisfy the causes listed in the Convention. The membership of a particular social group is the less clear cause and the most open to interpretations.
Normally, we refer to some characteristics, which are innate or historical that can identify a group; then, the membership can refer to people who become part of a group to preserve their human dignity. It means that this membership cannot be modified because these groups are strict linked to the identity of the individual or because they are the expression of some fundamental human rights. On the other hand, this cause refers to members of a group linked to a persecutor and so automatically suspected. A cause that is not specified in the first article is the persecution because of gender. We can say that this category can benefit from refugees’ rights being recognized as part of a specific group. For example, women of an ethnic group can be persecuted not because of reasons related to sex or gender, but because of their nationality or religion. These violations include persecution because of female gender (such as the female genital mutilation) or because of female obligations as the wear of veil.
To conclude, it is clear that the definition of refugee is adequate to include the majority of the cases of persecution whose international protection is justified.
5. Out of native country
The requirement of that a refugee has to be out of his country to be protected by international law is fixed and decisive. Nevertheless, we do not have to think that a refugee has left his country uniquely because of the causes of persecution listed in the Convention. An individual can find himself out of his country as a student, as a diplomatic or on a trip when an event that produces a founded fear of persecution takes place. This individual is recognized as a ‘refugee sur place’.26 It is necessary to say that the defining elements have to be the probability that the fear happens, its
26 ACNUR, Interpretación del Articulo 1 de la Convención de 1951 sobre el Estatuto de
seriousness and its relationship with one of the causes enumerated in the Convention.
In relation to the protection assured by the native country, it has been deeply debated the meaning of the ‘State’s protection’. It is said that it refers to the apparatus of every State inside the native country, and it is an essential part of the exam needed to recognize the condition of refugee. Others believe that the protection of the State refers only to the diplomatic protection offered to citizens in foreign countries. It has been suggested that the element of internal protection is considered as an element of founded fear. In this sense, it can re-interpret the sentence in the first article of the Convention: if the native country is not able to provide for protection from persecution, the victim will be afraid of persecution in the case of return and so it is correct his weak will of asking protection in his country.
6. Analysis of elements of exclusion
Being a refugee is an extraordinary possibility that comply with some requirements. Nevertheless, not everybody can enjoy this kind of protection. The article 1(D)27 excluded, from the protection of the Convention, people who receive protection or assistance from another UN agency. This concerns people who are asking protection to the UN Agency relating to Palestinian refugees (UNRWA) since there are no other agencies dealing with refugee matter. In the same way, the article 1(E)28
27 “This Convention shall not apply to persons who are at present receiving from organs or
agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.”, Art. 1(D) of Geneva Convention relating to the Status
of Refugees, 1951.
28 “This Convention shall not apply to a person who is recognized by the competent
authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.” Art. 1(E) of Geneva Convention relating to the Status of Refugees, 1951.
omitted people who are recognised from the authorities of his country as benefiting from the same rights and duties of the other citizens, and so they are not facing a situation of founded fear of persecution. The article 1(F)29 excludes people who are believed to have committed war crimes, crimes against peace or humanity or acts against the principles of the United Nations. Even if these people face a founded fear of being persecuted they cannot be refugees because of their previous crimes. Surely, this does not mean that every kind of criminal cannot enjoy international protection. It is important to remember that the refugee status can cease for various reasons: if the refugee has come back definitively to his country, taking advantage of the protection of that country; if the refugee has recovered again his nationality or a new nationality; when, in the native country of the refugee, the circumstances which had generated the fear of persecution has ceased.30
1.1.1 ARTICLE 33: PROHIBITION OF EXPULSION OR RETURN
(NON-REFOULEMENT)
The article 33 – at square with art. 1 (definition of the term “refugee”), with art. 3 (non-discrimination), with art. 4 (religion) and with art. 16 (free access to courts) – is one of the fundamental regulation of the Convention, which has to be totally
29 “The provisions of this Convention shall not apply to any person with respect to whom
there are serious reasons for considering that: a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes: b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; c) He has been guilty of acts contrary to the purposes and principles of the United Nations.” Art. 1(F) of Geneva Convention relating to the Status of Refugees, 1951
accepted, without legal reserve. With this article, the Convention sets forth the principle of non-refoulement envisaging:
“1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provisions may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”31
“ Refoulement can happen directly, by putting someone on a plane to their home country, or more controversially it is said that it may be done indirectly, by making their life so miserable and impossible that the better choice is to return and risk persecution […] The obligation of non-refoulement applies to people seeking refugees status as well as those who are granted it, as the status is declaratory, in other words, to be granted refugee status means to have it recognized that one is a refugee, rather than to be made a refugee.”32
This prohibition has to be applied to every kind of forced transfer, including deportation, expulsion, extradition, informal transfers and non-admission at borders. It is possible to waive this principle only when a refugee is considered a threat to the security of the country or to community. This principle is leading in the international law and in human rights law; in addition, it is a recognized principle of common law. In this way, it prohibits to States to return a refugee or asylum seeker to territories where there is the risk that his life or freedom would be threaten because of his religion, race, nationality, the membership of a particular social group or his political opinion. Generally, it can refer also to human rights, meaning the prohibition of torture, rapes or ill-treatments. The UNHCR is interested to this
31 Article 33 of Geneva Convention relating to the Status of Refugees, 1951 32 G. CLAYTON, Textbook on Immigration and Asylum Law, p 406
article because it deals with the strict protection of refugees, as we can see in the paragraph 1 of its Statute:
“The United Nations High Commissioner for Refugees, acting under the authority of the General Assembly, shall assume the function of providing international protection, under the auspices of the United Nations, to refugees who fall within the scope of the present Statute and of seeking permanent solutions for the problem of refugees by assisting Governments and, subject to the approval of the Governments concerned, private organizations to facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities.
In the exercise of his functions, more particularly when difficulties arise, and for instance with regard to any controversy concerning the international status of these persons, the High Commissioner shall request the opinion of the advisory committee on refugees if it is created.”33
For this reason, it can be said that the UNHCR is a sort of watchman of the Convention and its Protocol, but it has to be remembered that the Convention is binding only for the States that have subscribed it. Furthermore, the art. 33 embodies the humanitarian essence of the Convention.
To analyse this article we need to pay attention to every words, reading them through a humanitarian filter. Firstly, who is restricted to this principle? The answer is the State that has subscribed the Convention, but also the ones who took part to the Protocol. The responsibility of the States is not limited to what happens in its territory, but to every action imputable to it. Secondly, we should consider what the State must not do (non-refoulement) ‘in any manner’. With these last three words we underline the reference to every kind of expulsion or refusal, which can endanger the individual. Thirdly, referring to refusals at borders or non-admissions, the Convention and the international law do not take into consideration the right to seek and enjoy asylum. This does not mean that the countries can freely refuse at borders, without distinctions, somebody who has a founded fear of persecution. When a
33 Paragraph 1 of the Statute of the Office of the United Nations High Commissioner for
States is not ready to grant asylum to people who faced a founded fear, they need to find an alternative way avoiding refoulement. This can be the transfer to a safer country or other solutions that have to be taken into account such as asylum in another country or temporary protection. In brief, the principle of non-refoulement refers to the borders as well as to the territory of the country. So the refuse at borders and every other kind of refusal are not contemplated in art. 33. Then, who is the one who has to be protected from refoulement? The art. 33 is pretty clear in referring to a ‘refugee’, but not uniquely. Sometimes it is said that this protection is addressed to the ones who have already been recognized as a refugee according to the requirements listed in the Convention. The implementation of this principle normally requires a detailed exam of every individual experience. Later, where the
refoulement is forbidden? The art. 33 refers to territories and not to countries. It does
not refer to the native country of the refugee or asylum seeker, even if the founded fear of being persecuted in that country is the mere reason of his application. The meaning is the prohibition beneath the borders of any country to return individuals where they could risk dangerous situations, without taking into consideration if the territory is the one of the native country. We underline that the word applied in the art. 33 is ‘territories’ and not ‘countries’ or ‘States’ (it is not important the legal situation of this place). Afterwards, it is necessary to pay attention to the expression ‘where his life or freedom would be threatened’. It deals with territories where the refugee could face a founded fear of persecution.
The last element of the article 33 concerns the importance of the threat addressed to the refugee. These threats have to be linked to race, religion, membership of a particular social group and political opinions.
To conclude, it is affirmed the prohibition of the penalization of the refugee to-be who crosses the borders illegally because he is fleeing from a founded fear of persecution deserving international protection. The fact that a refugee should not be
