mise en ligne :04 06 2009 ( NEA say… n° 68 )

DROITS FONDAMENTAUX > Conditions d’accueil des réfugiés

Il rappelle les engagements pris par la Conférence de Paris du 13 juillet 2008 dans une Déclaration commune concernant les droits fondamentaux et les libertés publiques ainsi que la démocratie et le pluralisme politique. La Politique européenne de voisinage également est fondée sur ces principes incluant également la bonne gouvernance.

Outre ces deux références, EMHRN concentre ses recommandations sur les droits de la femme dans la région,, le rehaussement des relations avec Israël et plus encore le sort des réfugiés et des immigrés. Il appelle au respect du droit international et notamment dela Convention européenne des droits de l’homme. EMHERN demande à la présidence suédoise d’organiser une conférence ayant à son ordre du jour les droits de l’homme dans la région euro-méditerranéenne.

EMHRN recommendations to the Swedish Presidency of the EU

1. Introduction

The European Union (EU) is potentially one of the most important human rights actors in the world.

Human rights obligations are enshrined in the treaty basis of the EU, and the EU has created a number

of instruments to protect and fulfil human rights at home and abroad (1).

These commitments are reflected in the EU’s relations with its Mediterranean partners as ‘human rights

clauses’ and have been incorporated as essential elements into all bi-lateral association agreements.

Furthermore, on 13 July 2008 in Paris, the Heads of State and Government at the Summit of the Union

for the Mediterranean signed up to commitments ‘to strengthen democracy and political pluralism by

the expansion of participation in political life and the embracing of all human rights and fundamental

freedoms’. They also affirmed ‘their ambition to build a common future based on the full respect of

democratic principles, human rights and fundamental freedoms, as enshrined in international human

rights law’(2.)

The European Neighbourhood Policy initiated by the EU in 2004 is ‘built on a mutual commitment to

common values, including democracy, the rule of law, good governance and respect for human rights’3.

It is moreover based on the idea of positive conditionality meaning that the EU in its relation with South

Mediterranean neighbours will take into account the extent to which common values,, i.e. respect for

human dignity, liberty, democracy, equality, the rule of law and human rights, are effectively shared 4.

Unfortunately, there is a significant gap between the rhetoric of the EU and the South Mediterranean

partners on the one hand and the human rights realities in many countries of the EuroMed region on

the other. Too often human rights are subordinated to security or trade matters and to strategic and

economic considerations. The past years have seen an increasing distance between principles and

performance.

On 1 July 2009 Sweden takes over the Presidency of the EU for the third time. Human rights, dialogue

with civil society and transparency in public administration were high on former Swedish Presidency

agendas. Hence, the upcoming Presidency is an opportunity for bringing standards and implementation

in EuroMed cooperation closer to one another.

(1) The EU’s commitments to respect human rights flow from Article 6, paragraph 2 of the Treaty on European Union (TEU) stating that ‘The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as

general principles of Community law’. Commitments to respect and promote respect for human rights in third countries are anchored in legal obligations set out in the Treaty establishing the European Community (TEC). Articles 177 and 181a stipulate that Community policies in the areas of economic, financial and technical cooperation, as well as development cooperation, “shall contribute to the objective of respecting human rights and fundamental freedoms.”13 In addition, Article 11 of the Treaty on European Union (TEU) stipulates that the EU’s Common Foreign and Security Policy (CFSP) aim to ‘develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms’.

(2) Joint Declaration of the Paris Summit for the Mediterranean, Paris 13 July 2008

(3) Council of the EU, external relations, Conclusions, Brussels, 13-14 December 2004, p.9

(4) European Neighbourhood Policy, Strategy Paper, Communication from the Commission (Com (2004) 373 Final).

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The EMHRN is committed to critical engagement with human rights challenges both in the North and in

the South. With this document the EMHRN presents its recommendations to the Swedish Presidency on

issues where Sweden is well placed to move the human rights agenda in the EuroMed region forward.

2. Union for the Mediterranean

The Union for the Mediterranean (UfM) was officially launched in Paris on 13 July 2008 and made

operational in Marseille by 45 participating countries in Europe and around the Mediterranean. Despite

solemn commitments to human rights promotion and protection as well as emphasis on the importance

of the active participation of civil society, human rights found little leeway in concrete actions and

commitments of the UfM. In fact, obstacles for civil society participation in the dealings of the UfM were

noted.

The UfM has since the War on Gaza been at a stand still. Should it be revived Sweden and Egypt will be

co-chairing the meeting of Foreign Ministers in Istanbul, [xx] November 2009.

The EMHRN calls on the Swedish Presidency to

• Ensure that human rights, in particular the question of public freedoms, are tabled at the

meeting of Foreign Ministers in Istanbul. No vibrant and thriving civil society can exist in the

absence of these fundamental rights which are also key to the development of the UfM. The

EMHRN recommends that freedom of expression, of assembly and of association are on the

agenda of the Meeting of the Ministers of Foreign Affairs with the aim of developing common

regional norms and standards in legislation and practice complying with international human

rights standards.

• Promote broad consultation with civil society in the preparation of the activities of the UfM and

include participation of civil society representatives in relevant meetings, inter alia ministerial

meetings planned.

3. Women’s rights in the Euro-Mediterranean region

In November 2006, a first Euro-Mediterranean Ministerial Conference on ‘Strengthening the Role of

Women in Society’ was held in Istanbul, and a 5-year action plan was developed5..

The goal of this plan (renamed the ‘Istanbul Plan of Action’) was to consolidate the role of women in the

Euro-Med region at the political, civil, social, economic and cultural level, as well as the fight against

discrimination. It created hope that women’s rights and gender equality would be improved in the

region. However, reality in the field has since then showed that

• The situation of women’s rights in the region has seen little change.

• Gender equality is still not at the core of either the Euro-Mediterranean partnership or the

European Neighbourhood Policy (ENP), nor is it mentioned in the Union for the Mediterranean.

• Clear assessable objectives have not been defined in the Istanbul Action Plan and follow-up

mechanisms do not exist, while the IPA remains little known to the public, NGOs, or even the

signatory countries.

A Euro-Mediterranean Ministerial Conference is planned to be held in Morocco on 11-12 November 2009

to follow up on the results of the Istanbul Plan. This should be the moment to review the challenges of

implementing the plan and make recommendations to move forward. The EMHRN calls on the Swedish

Presidency to

• Ensure revision of the Istanbul Plan of Action (IPA) making it into a concise operational followup

document to the Istanbul Action Plan strongly rooted in international human rights standards

that clearly encourages the elimination of discrimination against women.

• Ensure the setting-up of a reliable follow-up mechanism. This will, amongst other resources,

require the establishment of an independent body officially charged to follow up on the action

5 Ministerial Conclusions on Strengthening the Role of Women in Society, November 2007

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plan; definition of responsibilities at the regional, national and European levels; and assessable

progress indicators.

4. European Neighbourhood Policy

During the Swedish Presidency a process of reviewing and/ or upgrading relations with the South

Mediterranean partners will be ongoing. At the Association Council meeting between the EU and

Morocco on 13 October 2008 a roadmap for an advanced status was agreed while the EU-Morocco

Action plan comes to an end in 20106. On 8 December 2008, the EU Council confirmed its intention to

upgrade relations with Israel7. Also, ENP Action plans with Jordan, Tunisia and the OPT should come to

an end in 2010. In this connection, Jordan, Tunisia and Egypt expressed their wish to strengthen

relations with the EU(8.)

In the past 4 years since the conclusion of the first ENP action plans, the human rights situation in the

Euromed region has deteriorated. Growing pressure and restrictions have been put on civil society and

human rights defenders, including their right to freely associate, and the South Mediterranean region

continues to fall considerably below standards pertaining to international human rights and international

humanitarian law.

The EMHRN welcomes the Commission’s recent position that ‘Formal upgrading would be based on the

commitments to share values and interests and when Action Plan implementation demonstrates the

ambition of the partner concerned to go further, notably as concerns democratic practices, respect of

human rights and fundamental freedoms, and the rules of law’9. This position should be translated into

practical policies to condition any upgrading by genuine achievements in human rights and political

reform; otherwise the ENP will lose its credibility as an efficient instrument for reform in the South.

The EMHRN also supports the Commission’s view that judicial reforms and the rule of law are a ‘key

condition to a truly effective rapprochement with the EU’(10).

During its Presidency Sweden will be chairing Association Council meetings with Jordan, Morocco and

Tunisia. Sweden will also be chairing subcommittee meetings on human rights with Egypt, Morocco and

Tunisia. The EMHRN welcomes the initiation of ad hoc consultations by the EU Commission and

delegations with human rights organisations prior to human rights sub committee meetings and, in

some cases, debriefings after these.

The EMHRN calls the Swedish Presidency to

• place the question of human rights and political reforms high on the agenda of all political

Dialogues

• take the lead in conditioning any strengthening of relations between the EU and its partners by

concrete human rights improvements and commitments

• initiate comprehensive assessments of democratic reforms and human rights based on clear

benchmarks before deepening relations with the South Mediterranean partners

• systematically consult with human rights NGOs in each of the ENP countries and in Europe,

taking into consideration their assessments of the human rights situation, and the degree to

which their fundamental right to freedom of association is respected in practice

(6) Cf. http://ec.europa.eu/external_relations/morocco/docs/document_conjoint_fr.pdf

(7) Council of the EU, external relations, Conclusions on Strengthening of the EU’s bilateral relations with its Mediterranean partners, 2915th External relations Council meeting, Brussels, 8 and 9 December 2008

(8) Communication from the Commission to the European Parliament and the Council: Implementation of the European Neighbourhood Policyin 2008 (COM(2009) 188/3)

(9) Cf. op.cit. (COM(2009) 188/3)

(10) Cf. op.cit. (COM(2009) 188/3)

4.European Neighbourhood Policy

• work for the strengthening and officialising of civil society consultations with the Commission as

well as the Presidency in view of the sub committee meetings, while developing the

transparency of these. In general human rights NGOs should be systematically consulted and

debriefed at local and EU head quarter level in connection with all subcommittee meetings

dealing with human rights issues (human rights, political, justice and security and migration and

social affairs). Agenda and minutes of the meetings should be made public in order to allow

NGOs to contribute to the process.

5. Up-grading bi-lateral relations with Israel

In its December 2008 Conclusions, the European Council agreed to up-grade bi-lateral relations with

Israel within the framework of the European Neighbourhood Policy despite gross Israeli violations of

human rights and international humanitarian law in the OPT as well as discrimination against the Arab-

Palestinian minority inside Israel.

During the Swedish presidency negotiations on a new Action Plan will take place, as the current one

elapsed on 1 April 2009 and has only been temporarily renewed.

The current EU-Israel Action Plan makes only brief and general reference to human rights issues under

its section devoted to shared values, without mentioning any specific action item. This omission

contrasts sharply with other Action Plans in the region.

In general, the human rights language in the current EU-Israel Action Plan is vague and generally

worded. Although formulations on respect for human rights and international humanitarian law have

found their way into the text, the weakness and the general character of the Action Plan makes the

monitoring of Israel’s human rights record by the EU as well as by various human rights organisations

very difficult.

Given the lack of progress made on the human rights issues raised in the Action Plan and the

deterioration of the human rights situation in Israel and in the OPT since the adoption of the Action Plan

in 2005, the EMHRN urges the Swedish Presidency to

• take the lead in issuing a public statement by the EU that the upgrading of mutual relations is

put on hold, conditioned by tangible progress in Israel’s respect for human rights, international

humanitarian law and its peace process commitments; this includes the lifting of the blockade

on Gaza, and facilitating an international independent inquiry into the violations of human rights

and international humanitarian law committed during the offensive on Gaza.

• Otherwise take steps to place substantial improvement of human rights at the centre of the EU’s

relation with Israel and condition access to European agencies and programmes with

improvements in Israel’s human rights behaviour.

• Work for the eventual new Action Plan to contain stronger commitments to respecting

international human rights and humanitarian law. The agreed points of cooperation should be

translated into concrete, detailed and sequenced actions to express explicit rights protection for

Israelis and Palestinians

• Take further steps to ensure that any existing cooperation instruments between the EU and

Israel are only applied to Israel proper and in no case to the Israeli settlements in the Occupied

Palestinian Territory

6. Migrants and refugees rights

The Swedish Presidency will be in charge of adopting the next multi-annual programme on an Area of

Freedom, Security and Justice (Stockholm Programme), as a successor to the 2004 Hague Programme.

This programme will present the EU’s policy roadmap and legislative timetable over several policy fields,

including migration and asylum. Cooperation with third countries, and more particularly with the Mediterranean countries, is growing in importance in the EU’s policies in the field of migration and

asylum.

The EMHRN wishes to remind the Swedish Presidency of the situation of migrants and refugees in the

Mediterranean countries:

Several countries from the region have not yet ratified the 1951 Geneva Convention of the status of

refugees and none of the countries from the region has a proper asylum system. Refugees and asylum

seekers in the Mediterranean countries benefit from no legal protection and can be easily detained and

deported.

Most countries of the region criminalise irregular migration. Irregular crossing of the border and/or stay

can be punished by prison sentences ranging from a few weeks to several years. Such penalties may

also equally apply to asylum seekers.

And, generally speaking, migrants (regular or not) and refugees are particularly vulnerable to all forms

of abuses and have little means of denouncing such violations or ensure protection of their rights. The

situation of domestic migrant workers (even when living and working legally) is particularly worrying.

Migrant and refugee women are particularly vulnerable and can easily be victims of trafficking

networks.

The EMRHN acknowledges the right of a state to control its borders. However, the EMHRN calls on the

Swedish Presidency to actively promote policies ensuring that

• Any cooperation with third countries from the region is not of a nature to endanger migrants

and refugees. Asylum seekers must have access to a proper asylum procedure and be able to

benefit from all the legal protection they are entitled to receive in the application of international

law. No person should be sent back to a country where he/she may face ill treatment.

• Any cooperation policy in the field of border management takes into consideration the impact of

such policy on the access of refugees to international protection mechanisms, including in

Europe.

• The EU member states strictly respect the principle of ‘non refoulement’ as well as their

obligation under article 3 of the European Convention on Human Rights (ECHR)

• No person is returned to a country other than its own or where he/she has a legal residency.

Sending back migrants to third countries puts them in a greater risk of being unlawfully

detained and submitted to ill treatment.

• Consultation with organisations active in the field of migrants and refugee protection is included

in EU funded EuroMed programmes on migration.

More generally, the EMHRN calls on Swedish Presidency to ensure that the protection of the human

rights of migrants and refugees are included as part of the Euromed priorities in the field of human

rights and democracy promotion. Equally, discussions related to cooperation in the field of migration

and border control need to include a greater human rights approach:

Finally, the EMHRN calls on the Swedish presidency to put the a proposal for a Euromed conference on

access to international protection on the agenda in order to discuss the situation of refugees and

indentify means of enhancing their protection, both in Europe and in the region.