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Anne CASTAGNOS-SEN

Member of the Executive Committee of ECRE - European Council for Refugees and Exiles, London

AFTER AMSTERDAM: HOW TO SAFEGUARD REFUGEE PROTECTION IN THE PROCESS OF EUROPEAN HARMONIZATION?

Lecture in the Cicero Foundation Great Debate seminar: "European Migration and Refugee Policy - PARIS, 10 June 1999

Introduction

First of all, I would like to thank the Cicero Foundation for the invitation to the European Council on Refugees and Exiles (ECRE) to participate in this conference and for providing ECRE the opportunity to contribute to the general debate on the perspective of the refugee protection in the light of the implementation of the Amsterdam Treaty.

Let me introduce very shortly ECRE: ECRE is a non-governmental umbrella organization of some 60 agencies from 25 countries throughout Europe concerned with assistance and protection of refugees and asylum seekers in Europe. ECRE campaigns on behalf on its pan-European membership for humane and fair asylum policies. It also works towards establishing the highest standard of refugee protection and assistance in Europe.

The universal declaration of Human rights proclaims the right of everyone to seek and enjoy asylum. This right however has no meaning if there is nowhere for someone to go. And there is no doubt that entry into the EU has been increasingly been made very difficult in the last ten years both at the European and at the national level: readmission agreements, the notion of the safe third country, the "internal flight alternative", the imposition of the visa requirements and carrier sanctions as stipulated in the Schengen convention are all measures which have been taken in order to prevent refugees leaving their country and from entering the European territory to make an asylum claim.

Given the nature of events or the types of violations going on in countries of origin, these obstacles may mean for those who are prevented from fleeing a matter of life and death. Obstacles to admission have been accompanied by attempts to reduce the scope of the 1951 Convention relative to the refugee status and introduced restrictions to its implementation. Examples include the 1992 London resolutions on manifestly unfounded applications, on a harmonized approach to questions concerning host third countries where there is no serious risk of prosecution and - in matters of substance rather than procedure - the 1996 joint position on the harmonized application of Article of the 1951 convention.

Although legally non-binding, but politically binding, these resolutions have led to an acceleration of asylum procedures, a substantive curtailment of appeal rights and an increasingly restrictive interpretation of the refugee definition of the Geneva Convention.

The Maastricht Treaty

The implementation of the Maastricht Treaty on European Union in November 1993, for the first time in its history, provided the European Community for some institutional legitimacy in dealing with the issues of asylum and immigration which are declared of "common interests". Under title VI, the Maastricht treaty transferred work on asylum and immigration from the area of informal cooperation amongst member states (outside any legal framework) to formal intergovernmental cooperation in the frame work of the socalled Third Pillar. By doing so, Maastricht established formally a intergovernmental cooperation in the fields of justice and home affairs. This Treaty represented a major step ahead towards a possible integration of these matters into the Competences of the community (First Pillar), and a positive although unsufficient improvement of the role devoted to the European Commission and Parliament on these matters. However, Maastricht did not provide the necessary transparency and democracy of the decision-making process.

The Treaty of Amsterdam

In the process leading to the signing of the Amsterdam Treaty, the intergovernmental conference (96/97) first raised high expectations from many non-governmental organisations that it would mark a new era of democratic and judicial accountability in EU decision making relating to asylum matters. In this context, the Amsterdam treaty can be interpreted both as a disappointing postponement of the necessary reforms and as an important step towards their eventual achievement.

There is no doubt that the Amsterdam Treaty, which came into force on May 1st, 1999, represents a key element in the evolution of the EU towards an increasing commitment to human rights and fundamental democratic values. The Treaty in article 6 of the Treaty of the EU solemnly declares the Union to be founded on the principle of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law. There have also been some moves towards more openness and democratic and judicial control by the European Parliament and European Court of Justice.

ECRE considers 1999 to be a very important, possibly even a decisive year in determining the future direction of asylum policies within the EU. In the Treaty of Amsterdam (Art. 63) and in the socalled Action Plan (on how best to implement the provisions of the Treaty of Amsterdam establishing an area of freedom, security and justice) adopted by the European Commission and the Council on the 3rd of December 1998, the EU has set itself a promising agenda of work for the coming years with time limits for undertaking such work, and some unique opportunities lie ahead for States to take a creative and principled approach towards asylum policy.

ECRE views the signing of the Treaty of Amsterdam as a fundamental step toward the creation of a dynamic for European immigration and asylum policy. For the first time, immigration and asylum are incorporated initially into the area of semi-community activity (during the first five years from the time the Treaty comes into force) and then full community activity. At the same time, community institutions are given the power to adopt binding rules in the field of immigration and asylum which are to be transposed into national law.

There was one key negative development in the treaty: the Protocol on Asylum for nationals of EU Member States, which seemed to be based on the assumption that it is impossible for European states to commit violations of human rights which would give ground for an asylum claim. However most of the member states in between committed themselves to continue examining all asylum applications on an individual basis.

What is clear is that the Treaty, while transferring the issue relating to asylum immigration to the First Pillar (community competences) creates an imperative for member states to develop a series of community instruments within a short deadline (2 or 5 years) which will govern the lives of many millions of migrants, asylum seekers refugees and other third nationals within and beyond the borders of the Union.

The Plan of Action

As far as asylum and refugees questions are concerned, the plan of action lists the following fields where measures should be taken:

Within 2 years:
- assessment of the situation in the countries of origin of asylum seekers and migrants in order to formulate a country specific integrated approach (cf. high-level working group)
- monitoring and improvement of effectiveness of the implementation of the Dublin Convention including the issue of family reunion and the possible development of a new instrument
- implementation of EURODAC: European databank of fingerprints for asylum seekers, in order to avoid simultaneous or successive multiple applications in Europe
- adoption of minimal standards on asylum procedures (cf. working document of the Commission from 3.3.99)(inter alia reducing the asylum procedure)
- limitation of the "secondary movement" by asylum seekers between member states
- defining minimal standards on the reception of asylum seekers
- undertake a study with a view to establishing the merits of a single European asylum procedure

Within 5 years:
- adoption of minimum standards with respect to the qualification of nationals of third countries as refugees (harmonisation of the criteria)
- adoption of minimum standards for subsidiary protection to persons in need of protection (outside the scope of Geneva Convention)(Lindeperg Report)

As soon as possible:
- establishng minimum standards for giving temporary protection to displaced persons from a third country who cannot return to their country of origin (Example: Kosovo)
- establishing a system of sharing the responsibility of receiving displaced persons/promote a balance of effort between member states in receiving and bearing consequences of receiving displaced persons.

A Role for NGOs?

There is a huge potential for civil society to play a vital role in monitoring and contributing to the development of these community instruments. Its role has been legally recognized in Declaration No. 17 to the Amsterdam Treaty relating to consultation with UNHCR and other international organizations. ECRE, together with two organizations: the Migration Policy Group and the European Network Against Racism (ENAR) have recently jointly compiled a paper entitled "Guarding standards - shaping agenda" on the entry into force of the Amsterdam Treaty in relation to asylum and immigration policies. This paper contains the views on how governments could implement the Treaty in a humane and fair way, in compliance with international human rights standards.

NGO Alternative Action Plan

We believe that the priorities should be determined not only by existing plans and the need to continue taking forward present medium-term programmes (Paragraph 27), but also and mainly by what is the most urgent to be decided on to meet the asylum seekers and refugee needs.

By this criteria, we would argue that the issues of refugee definition and the standards attached to complementary forms of protection require handling within two years, while the development of a new instrument related to the Dublin Convention and safe third country returns could be postponed until a clearer evaluation of this Convention is available.

As already mentioned, it is important to stress that a range of topics which are to be dealt with under the Amsterdam Treaty, have already been addressed at inter-governmental level in the early 90s in so called "soft law". The 1998 Action Plan refers briefly to the crucial question of "which if any of the present provisions (Third Pillar acquis) should be replaced by more effective ones". Regarding the numerous agreements and pieces of "soft law" which were adopted under the Third Pillar, many experts in the field believe that they will be taken as a basis for much of the new EU legislation.

Our concern is to ensure that this is not done without some hard critical rethinking and a principled commitment by Member States to avoid the "lowest common denominator" approach which prevailed so far. In that context, ECRE always welcomed the Commission's ability to balance divergent interests. In the last few years, the Commission has in our view indeed submitted various proposals which are properly balancing the legitimate interests of member states and the protection need for refugees. We also welcome the recent initiative taken by the Commission to issue a working document entitled "Towards common standards on asylum procedures" (March, 1999) which we fell provide a good basis for discussion and presents a well balanced approach on this issue.

Transparency and Democracy

Our main concerns remain the question of democratic accountability. This is because of the proposed limited role of the European Parliament and European Commission especially during the time of semi-community activities. The risk is high of using the lowest common denominator in determining standards of refugee protection, as an outcome of the requirement for unanimous voting and in particular in view of lack of references to the Geneva Convention in relation to measures for temporary protection, responsibility sharing and situations of mass influx of refugees.

We strongly feel that national and European parliamentary scrutiny and well-informed public debate, often lacking when the original non-binding resolutions and joint actions were adopted, should be encouraged.

The inter-parliamentary conference which brings together members of the European Parliament and the EU national parliaments to debate these issues is obviously very important to this process of democratic scrutiny. In addition, the Conference of European Affairs Committees (COSAC - Conference des organes specialisÚs dans les affaires communautaires), which includes representatives of national parliaments, now may examine any legislative proposal or initiative under the new immigration and asylum title which "might have direct bearing on the rights and freedoms of individuals" and should be urged to do so at every opportunity.

The Treaty of Amsterdam itself provides a legal basis towards more democracy and transparency. Indeed, a new Article 254 promises that EU documents will be made available, subject to approval by the Council, and if no single member raises an objection. Combined with the consultative role of the Parliament, this could and should bring some degree of transparency to the legislative process of the Council of Ministers. ECRE also urges Member States to allow expert NGOs, UN bodies and other international organizations to fulfil their consultative role by transmitting all relevant documents well in advance of final Council decisions.

Incorporation of the Schengen Acquis

Through the Amsterdam Treaty, all Member States, except Ireland and the United Kingdom, will incorporate the socalled Schengen Acquis (agreement and decisions taken by the Schengen Committee) into the EC Treaty and the Treaty on EU. Some parts of the Schengen acquis will go to the Third Pillar (probably those related to border control, admission for short term and visa). The legal basis for each provision will be determined by the Council of Ministers.
The matters relating to asylum are overtaken by the provisions of the Dublin Convention. This is the logical development of what was always meant to be the Schengen "laboratory". UK and Ireland being part of the Dublin Convention, these provisions of the Schengen agreement will also apply in these two countries.

ECRE believes that the process of incorporation offers the opportunity of suppressing the provisions relating to carrier liability for carrying undocumented passengers. We all know that, combined with a restrictive visa policy, carrier sanctions have undoubtedly led to prevent potential refugees from leaving their country where they are persecuted, as airlines and other carriers refuse to allow them in without visas and other valid documents.

Some Suggestions for Guaranteeing a High Level of Refugee Protection for the Future

(for detailed recommendation, see NGO Alternative Action Plan)

1. First of all, there is a need for a comprehensive analysis of migration trends and the development of differentiated strategies to deal on the one hand with large-scale movements of people escaping persecution, violation of human rights and civil strife, and on the other hand movements of people escaping from poverty, environmental degradation and gross economic inequalities. The Austrian presidency paper on Asylum and Immigration represented an ambitious effort to fill this gap. However, its overall conclusions on asylum matters were oriented towards protecting the European Union from refugees rather than providing protection to refugees themselves.

Potential for change may exist within current initiatives such as the creation of the cross-pillar High Level Working Group on asylum and Migration. ECRE is following carefully developments in relation to this initiative with interest and very much welcomes the possibilities it offers for NGO input. NGOs will be particularly careful that this group input does not end up in establishing criteria of a common list of safe country of origin. In terms of refugee protection, we feel that the test of effectiveness for the Working Group lies in moving beyond "joint analysis of the causes of migratory/refugee movements" in a time limited/country specific fashion to long term action aimed concretely at addressing root causes and improving the human rights' situation in refugee producing countries.

2. Secondly, ECRE recommends that the EU takes the opportunity offered by the Amsterdam Treaty (Article 63, etc.) and that it does rethink carefully the content of the "soft law" so far developed in terms of effectiveness and fairness, before introducing new legally binding instruments. An example would be the Dublin Convention in the framework of Article 63(1)(a) on "criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States". Here, ECRE would recommend that it might be time to reconsider the Dublin Convention in view of the heavy procedures and administrative costs associated with implementation, as well as the burdens continuing being placed on certain countries. In fact, Germany, the country with in absolute terms the highest number of asylum seekers, receives more asylum seekers under the Dublin Convention then it looses. Perhaps, the way forward lies in a careful evaluation of implementation from the perspective of responsibility sharing, administrative efficiency and, most importantly, refugee protection, before a new instrument is introduced. Any such instrument should at a minimum respect the family unity of applicants and their socio-economic rights and guarantee the exercise of a suspensive right of appeal against a decision to transfer a claim.

3. Thirdly, it is necessary to look beyond traditional asylum and consider options of resettlement for those with ongoing protection needs or supplementary protection for those falling outside the scope of the Geneva Convention definition, along the line proposed by the Lindeperg Report of the European Parliament (February 1999).

Following the Lindeperg Report, to which it has greatly contributed, ECRE would recommend the development, within the first two years of the Amsterdam Treaty coming into effect, of a new instrument containing a supplementary refugee definition for Europe, covering people fleeing generalised violence, foreign aggression, internal conflicts, massive violation of human rights or people who are unwilling to return owing to a well-founded fear of being tortured or subjected to inhuman and degrading treatment or punishment. It would also recommend the adoption of a non-binding agreement on EU participation as a bloc in the UNHCR resettlement system as a gesture of global responsibility sharing.

4. Fourthly, there is the need for further transparency, openness and co-ordination at the European level and a greater civil society involvement in the field of Justice and Home Affairs. I would reiterate here ECRE's support for co-decision powers for the European Parliament and a central role for the Commission in balancing the legitimate interests of states and the protection needs of refugees. Such role should extend beyond an exclusive right of initiative and include ongoing co-ordination of relevant parties across pillars.

Conclusion

How close are we to an "integrated and coherent response which combines realism and solidarity"? (Communication 1994 of the European Commission on Asylum and Immigration).

There have been recently missed opportunities for leadership, whether it is the Kurdish question or the crisis in Kosovo, and we need to address the key question: how shall we collectively fulfil our duty to provide international protection on the basis of shared responsibility and vigorous respect for human rights?

Very much can be done and, as we describe it, the potential scope for a comprehensive approach on the issue of asylum/immigration and of raising the level of refugee protection in Europe is there, provided the political will allows it. In that context, it is important to continue upholding the 1951 Convention and UNHCR as an institution as relevant to refugee realities in the present time and key to maintaining the principle of universality in human rights, including the right to seek and enjoy asylum.

Thank you.

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