“The conception of human rights based upon the assumed existence of a human being, as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships, except that they were still human. The world found nothing sacred in the abstract nakedness of being human.”(Hannah Arendt)(1)
It is not the first time the connection has been made between Arendt essay on statelessness or displaced person caused by the two World Wars, and the current situation migrants are undergoing within the EU.(2) Indeed, when States try to circumvent as much as possible obligations enshrined by International and European treaties and when third-country nationals attempt to challenge these practices in front of the Court of Justice of the European Union (CJEU) and of the European Court on Human Rights (hereafter ECtHR), the question of rightlessness remains relevant.
Arendt evoked the fact that we know how fragile a status is when it is more attractive for the individual to commit a crime than not to commit one. She said that since the right-less were “abnormal” criminals, it would be beneficial for them to be in the system as “normal” criminals. Today, we can see the trend of criminalization: EU, as well as domestic lawmakers, focus their migratory policies on the fight against illegal migration rather than ensuring legal avenues to request asylum in Europe.
Member States and the EU share the competence on the migration and asylum questions (article 4 (2) j) TFEU). Meaning that there is a Common European Asylum System in addition to which, Member States establish national laws relative to this field. As such, the control operated by the two Courts, the CJEU and the ECtHR, is essential to ensure the effectiveness of the human rights, especially on the question of migration. Both courts rely respectively on two legal instruments: the Charter of Fundamental Rights of the European Union (hereafter the Charter) and the Convention on Human Rights (hereafter the ECHR).
However, the Charter is only applicable when Member States are applying EU law (article 52 of the Charter). The Convention’s scope is also limited: it can only be applied where a State’s party has “effective control” (3) on the territory. These constraints can render extremely difficult the enforcement of the fundamental rights of migrants. As such, the question of whether rights provided for third country nationals are effective even though they cannot claim them in front of the two main Courts in Europe is crucial to answer. This article will analyse the difficulty, if not the impossibility, for migrants to challenge measures or practices established or operated by the Member States, by observing several rulings of the Luxembourg Court (CJEU) and the Strasbourg Court (ECtHR).
The ramifications of the externalization of the border.
The externalization of the border, meaning the deals concluded between the European Member States and Third Countries to send or send back migrants, reveals how States are circumventing International treaties. The most obvious example being the ship full of migrants pushed back before they enter into the territorial waters of the EU.(4) Member States considers that the principle of non-refoulement (article 33 of the Convention on the Refugee) (5) is not violated if migrants never reach their territory. Whereas this logic is already questionable, the method used is even more so: among others, States are concluding deals with private ships to avoid setting a search and rescue mission (6), leaving ships in the sea for days on end(7). Not only are they putting migrants’ lives in great danger, but they are also in violation of another fundamental principle of International law which is the duty to render assistance (article 98 Convention of Montego Bay).
This trend has led to the “un-justiciability” of the migrants, meaning that migrants cannot challenge the decision they are subject to.(8) The most blatant example of the ramifications of the externalization policy on migrants is the EU-Turkey Statement. The EU Turkey deal was concluded within the European Council. For the conclusion of this deal, the head of States and of the governments of the EU, the head of the EU Council and the head of the Commission were present. This deal foresaw the transfer of third country nationals who reached Greece back to Turkey.
Three third country nationals attempted to challenge this agreement. However, the Court followed the convoluted arguments of the EU institutions. The institutions argued that albeit the press released used words such as “European Council”, “EU” or “Members of the European Council” and the fact that this deal was called “EU-Turkey”, it was not an agreement between Turkey and the EU as such. They claimed that this text was established outside of EU legal framework: the heads of States and governments were not acting as members of the European Council – which would have not been in conformity with EU law since the institution does not have the competence to conclude agreements (article 218 TFEU).
To add to this confusion, although this deal creates legal obligations (e.g. the transfer of third-country nationals, the liberalization of visas for Turkey’s nationals or the transfer of a certain amount of money), the institutions and the States declared it was a “statement” on “complementary points”. Hence, according to them, it was a soft law instrument, and as such, could not be challenged by the applicants. Even though it followed the institutions’ reasoning, the Court refused to go as far as saying that it was a “political commitment” which would have amounted to the lack of any judicial control.(9)
As such, this unidentified legal object jeopardizes the rights of the asylum seekers significantly. Not only because of the situation of human rights in Turkey or because they put a geographical limitation on the Geneva Refugee Convention (Turkey only grants the refugee status to individuals fleeing events which occurred in Europe(10), but also because of the impossibility to challenge the act. Iris Goldner Lang, Jean Monnet Professor of European Union Law, writes that “the Courts’ behaviour could be explained as its desire to accommodate itself to political reality and the Member States’ intentions without having to rule on their compliance with EU law”. In this way, the CJEU avoids ruling on the compatibility of the EU – Turkey deal with human rights.(11)
More recently, in S.S. and others against Italy, third country nationals brought a proceeding in front of the ECtHR regarding a search and rescue mission coordinated by the Maritime Rescue Coordination Centre of Rome (hereafter MRCC). The applicants claim that the MRCC violated their right to life (article 2 of the Convention) and the prohibition of inhuman and degrading treatment (article 3 of the Convention) by letting the Libyan Coast Guard Ras Jadir take part in the search and rescue mission, and thus exposing them to the risk of enduring inhuman treatment and mortal danger. The applicants considered that the behaviour of Libya constituted illegal refoulement. Furthermore, they could not contest before a judicial authority the ill-treatment inflicted by Libyan authorities on the ship and in the detention centre they were taken immediately after being rescued. In light of the context, this ruling will be decisive to answer the question of rightlessness of migrants. Indeed, the first question the Court of Strasbourg will have to answer will be: are the facts claimed by the applicants under Italy’s jurisdiction?
The ECtHR previously ruled on a question similar in the case of Hirsi Jamaa versus Italy.(12) The Court held that Italy had violated the prohibition of inhuman and degrading treatment (article 3 of the Convention) by exposing the applicants to the risk of being ill-treated in Libya and to the risk of being sent back to Somalia and Eritrea. It also found that Italy was in breach of the prohibition of collective expulsion (article 4 Protocol 4 of the Convention) and that it infringed the possibility for the applicants to challenge this decision (article 13 of the Convention). However, the territorial jurisdiction of the Court was less of an issue since the facts in question occurred on an Italian military ship. Since Member States now tend to let the Libyan Coast Guards take charge of the search and rescue mission, the answer to the question of who is responsible is not as clear.
On June 26th, the Centre Suisse pour la Défense des Droits des Migrants (CSDM) requested that the UN, under article 20 of the Convention against torture, conducts an “inquiry into Italy’s Role in the Systematic Torture of Migrants Pulled Back to Libya”. (13) This investigation could go both ways: either, the Committee against torture finds that Italy conduct in the Mediterranean Sea is contrary to the Convention; or, it considers that since it is not Italy that is directly torturing but rather letting migrants be tortured, the Member State cannot be held responsible. The first option may impede States to conclude obscure deals with Countries that violate human rights and may render the rights of migrants more effective in front of the Courts. Whereas, the second option might have the dreadful effect of ensuring the Member States’ irresponsibility when it comes to what happen above their territorial waters. As article 20 of the Convention foresees a confidential inquiry if there is “well-founded indications that torture is being systematically practised in the territoryof a State Party”, it remains unlikely that it will found Italy responsible even indirectly.
The case of humanitarian visas.
Humanitarian visas are visas with limited territorial validity granted by Member States on « humanitarian grounds » or for international obligations. They are encompassed by European law, namely the Visa Code (article 25(1)(a)) and are limited to 90 days.
In the X and X against Belgium case law, a Syrian family requested a humanitarian visa at the Belgium Embassy in Lebanon, with the intent of requesting asylum once in Belgium. The question at stake was whether the “international obligations” mentioned in the article 25 (2) a) could be considered as including the prohibition of degrading and inhuman treatment (article 4 of the Charter of Fundamental Rights) and the right to asylum (article 18 of the Charter).
However, the Court of Justice of the EU did not answer this question and considered that since the request of the applicants concerned a visa of more than 90 days, it was not competent to rule on the case. The Court’s reasoning followed the consequentialist argumentation of the governments. It considered that if it starts to rule on cases such as this one, it would open the door for asylum applications in the embassies and hinder the States’ sovereignty to determine its citizens. The Advocate General on the case, M. Mengozzi did not agree with the Court considering that the intent of the families to request asylum, later on, should not be taken into consideration by the Court. As such, according to him, the Syrian family fulfilled the criteria required to comply with the visa in question.
The lack of will to rule on this case by the Court created a « legal grey zone » where — except if a Member States foresees a legal mean to request asylum from an embassy or a consulate — there is no legal avenue provided by EU law to ensure the effectiveness of the right to asylum. The fact that asylum is a Member States’ competence could explain the CJEU’s answer: EU law cannot interfere as much on asylum law. It remains that the Court missed an opportunity. If third country nationals could request a visa, in order to apply for asylum, they could avoid the sea crossing to the EU « with the help of unscrupulous traffickers (…) risking their lives in the process »(14). As such, this case does not resemble the case on the EU-Turkey deal. Indeed, the Court delved more in the core of the question of why this case was not under its jurisdiction. Still, it reveals the lack of effectiveness of the right to asylum and lack of options of the migrants.
In, M.N. against Belgium, another Syrian family brought a similar legal proceeding in front of the ECtHR. This case distinguished from X and X in the sense that the CJEU had more potential competences than the ECtHR. The legislation at stake was an EU legislation. The applicants submitted their visa request in an embassy—and thus not on the territory of a Contracting State. Since the jurisdiction of the Convention is mainly territorial—it can only deal with cases that happened on the territory of one of the State Party of the Convention (article 1 of the ECHR) — it is apparent that the ECtHR had much less leeway than the CJEU.
Nonetheless, in the case of M.N. against Belgium, applicants considered their claim could be successful as in some cases the ECtHR accepted “exceptional circumstances justifying (…) that the State concerned was exercising jurisdiction extraterritoriality”(15) (e.g. the case of Hirsi Jamaa mentioned above) .The ECtHR considered that the fact that the applicants had brought proceedings in Belgium to challenge the refusal to grant a visa was not sufficient to prove the jurisdiction of Belgium. In the same way as the CJEU, the ECtHR adopted a consequentialist argument. In response to the applicant’s claim, the ECtHR held that this argument “would amount to enshrining a near-universal application of the Convention on the basis that unilateral choices of any individual, irrespective of where in the world they find themselves, and therefore to create an unlimited obligation on the Contracting States to allow entry to an individual who might be at risk of ill-treatment contrary to the Convention outside their jurisdiction”.(16)
For a case in which the ECtHR founds itself not competent, the ruling took a surprising amount of time: the Court reached its final ruling very recently. However, as such, this ruling was unsurprising as the ECHR’s scope is more limited than the Charter’s. Still, it reveals that applying for a visa of limited territoriality in order to seek asylum in Europe is not an option for third country nationals.
The end of the prohibition of collective expulsion?
The case of ND and NT against Spain concerned two third country nationals who had climbed the fences that separated Spain from Morocco in Ceuta and Melilla (two 6 meters tall and one 3 meters tall). When the Guardia Civil found them, they were escorted back to Morocco with neither a proper examination of their situation nor the possibility to request asylum. As such, the applicants considered that there had been a violation of Article 4 Protocol 4 of the Convention. This provision foresees the prohibition of collective expulsion, meaning that a Contracting State should take in due consideration the individual situation of third country nationals before returning them to the border. The prohibition of collective expulsion is a rule of International law that is inherent to the right to a fair trial. Indeed, collective expulsion prevents individuals from challenging the expulsion decision in the sense that they are not directly the subject of this decision. The applicants specified that the case concerned the “right to an individual procedure in order to be able to challenge an expulsion” rather than the « right to enter the territory of a State”. (17)
What is interesting about this case is the fact that the applicants were third country nationals which were not present in Spain at the time of the case and that Spanish authorities did not put their decision in writing. Hence, to challenge such a decision proved to be difficult. As such, since this case was brought in front of the ECtHR, one could say they were still able to plead their case in front of a Court and thus were able to challenge it.
However, the conclusion of the ECtHR reveals that they did not have many chances of seeing their case succeed. In the Khlaifia case law, the Court considered that to identify a collective expulsion, it had to answer two questions: were the persons concerned by the expulsion decision able to effectively and genuinely submit arguments against it? Were the arguments examined appropriately by the authorities of the respondent State? (18) In ND and NT against Spain, it did not answer those questions, however, considering that their own conduct caused this immediate expulsion, and, as such, could not constitute collective expulsion.
What was at the core of the debate, and what interests us the most in the case at hand, is whether Spain could be considered responsible. The Spanish government argued that the case was inadmissible, considering that the fences were in a zone which was not under their jurisdiction. To this argument, the Court responded that:
« (…) the special nature of the context as regards migration cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention (…) As a constitutional instrument of European public order, the Convention cannot be selectively restricted to only parts of the territory of a State by means of an artificial reduction in the scope of its territorial jurisdiction. To conclude otherwise would amount to rendering the notion of effective human rights protection underpinning the entire Convention meaningless ».(19)
In light of the context, this preliminary assessment made by the ECtHR seems essential. However, the conclusion of the Courts strips the credibility of the message. The fact is that migrants lack options, their “conduct” is a direct consequence of the absence of legal option to enter the EU. As such, if the crossing of fences justifies the expulsion of third-country nationals without individual consideration, it may pave the way to fewer individual rights for migrants and asylum seekers and hinder the effectiveness of the few they have.
What is glaring in all these cases is the lack of legal options for the migrant. Could he be the right-less human depicted by Hannah Arendt? How could the EU and its Member States enable the “right to have rights”? Could we say, more broadly, that the rightlessness of the migrant is a result of a judicial passivism from both the Court of Justice of the EU and the European Court on Human Rights?
As such, this analysis of a few rulings does not reveal per se that migrants are right-less, for a few reasons.
First, because one could not draw a conclusion from only a few cases. As such, it may reveal “judicial passivism” meaning that “the CJEU is consciously (actively) not using its powers where it could, due to political sensitivity of the case, often combined by the ambiguity of the legal texts” like Mrs Golner Lang found. (20) It is important to note that “judicial passivism” is a form of “activism”: the CJEU chooses not to rule on a case.(21) Even though Member States often accused the Courts—especially the CJEU—of overstepping their judicial powers, this has never stopped the Court of Justice of the EU before. Nonetheless, the close link between asylum and migration field and the sovereignty of the Member States could explain the Court’s behaviour.
Second, in some cases, the Court examined the alleged violation of human rights thoroughly. Hence, third-country nationals were able to plead their case, and to invoke their rights. Furthermore, it remains to be seen what will be the ECtHR’s decision on the case of SS and others versus Italy .
Third, it appears, above all, that the European policies on migration are inherently flawed: when dealing with irregular migration, they do not take into consideration the human right based approach necessary. Indeed, one should bear in mind the fact that there are more illegal migrants than legal ones.(22) Illegal migrants can be potential refugees, and as such, should be capable of enjoying their right to asylum effectively. If the EU had a more human rights based approach when drafting the Common European Asylum System, maybe countries would not be able to circumvent the international obligations as much.
Furthermore, even though third-country nationals can see their rights ensured through cases, this legal recognition has its limits. On one side, the harm is (usually) already done: for instance, in SS and others , people died at sea. On another side, the enforcement of these cases is questionable. When the Court of Justice of the EU has ruled on the case, Member States are bound to respect it, and if they do not, they can face dreadful financial sanctions. However, the sanctions foresaw by the ECtHR are less dissuasive. Besides, even if States rectified the situation for the individual concerned, they do not necessarily change the legislation that enabled the violation of human rights.
Thus, the most prominent question to be answered is whether the integration of a human rights based approach on irregular migration could change the Courts’ behaviour.
For further information:
N. DELVINO, “European Union and National Responses to Migrants with Irregular Status: Is the Fortress Slowly Crumbling?”, in S. SPENCER and A. TRIANDAFYLLIDOU (ed) Migrants with Irregular Status in Europe, Evolving Conceptual and Policy Challenges, IMISCOE Research Series, Springer Open, 2020, 73-97.
C. O’CINEIDE, “The Human Rights of Migrants with Irregular Status: Giving Substance to Aspiration of Universalism”, in S. SPENCER and A. TRIANDAFYLLIDOU (ed) Migrants with Irregular Status in Europe, Evolving Conceptual and Policy Challenges, IMISCOE Research Series, Springer Open, 2020, 51-71.
The podcast episode of “Les origines du Totalitarisme” d’Hannah Arendt” par Adèle Van Reeth, Qui les droits de l’homme protègent-ils vraiment?,France culture, available on: https://www.franceculture.fr/emissions/les-chemins-de-la-philosophie/les-origines-du-totalitarisme-dhannah-arendt-44-qui-les-droits-de-lhomme-protegent-ils-vraiment
A. GENERALE, “When Migrants do not arrive in Europe: The Memorandum of Understanding”, March 4th 2020, available on: https://www.eu-logos.org/2020/03/04/when-migrants-do-not-arrive-in-europe-the-memorandum-of-understanding/
P. DELESTINNE, “Quel impact de l’externalisation de la politique migratoire européenne sur le respect des droits de l’homme dans les pays tiers? L’exemple de la Turquie, de la Libye, et du Maroc”, February 7th 2020, available on: https://www.eu-logos.org/2020/02/07/quel-impact-de-lexternalisation-de-la-politique-migratoire-europeenne-sur-le-respect-des-droits-de-lhomme-dans-les-pays-tiers-lexemple-de-la-turquie-de-la-lib/
i H. ARENDT, Le déclin de l’Etat nation et la fin des droits de l’homme, in ‘L’impérialisme. Les origines du totalitarisme (2)’, Points essais, 2010.
ii Among others: D. LOCHAK, « Étrangers, réfugiés, migrants: Hannah Arendt aujourd’hui », in A. KUPIEC; M. LEIBOVICI; G. MUHLMANN; E. TASSIN, « Hannah Arendt. Crises de l’État-nation », Sens & Tonka, pp. 165-180, 2007, 978-2-84534-166-1. ffhal-01728675f; A. HIRSCH and N. BELL, « What can Hannah Arendt Teach Us About Refugee Crisis? », Faculty of Law of the University of Oxford (blog), 2017, available on: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/10/what-can-hannah ; A. VARELA-MANOGRASSO, « Bloodless Death: Thinking the Refugee Crisis with Hannah Arendt », Medium, 2017, available on: https://medium.com/quote-of-the-week/bloodless-death-thinking-the-refugee-crisis-with-hannah-arendt-c89aca3efd87 ; P. HAZAN, « Lire la crise des réfugiés avec Hannah Arendt », Le temps, 2015, available on: https://www.letemps.ch/opinions/lire-crise-refugies-hannah-arendt
iii European Court on Human Rights, M.N. and others against Belgium (Grand Chamber), Application no 3599/18, 5 March 2020, para 103.
iv See I. MARTIN, How a Maltese fishing boat pushed migrants back to Libya , Times of Malta, April 24th 2020. https://timesofmalta.com/articles/view/how-a-maltese-fishing-boat-pushed-migrants-back-to-libya.787664 or N. FRENZEN, NATO Expands Aegean Sea Migrant Patrols Into Turkish and Greek Territorial Waters – Rescued Migrants to Be Automatically Returned to Turkey, Migrants at Sea, https://migrantsatsea.org/tag/push-back-practice/ or R. MURRAY, Migrants in Libya : Pushed away, pulled back, Middle East Eye, December 10th 2017, https://www.middleeasteye.net/fr/news/migrants-libya-pushed-back-pulled-back-409483752
v Article 33 paragraph 1 states : « 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 »
vi P. Kingsley et H. Wilis, »Latest Tactic to Push Migrants From Europe? A Private, Clandestine Fleet » https://www.nytimes.com/2020/04/30/world/europe/migrants-malta.html
vii Amnesty, « Malte: liberté pour les 425 migrants bloqués en mer », June 3rd 2020, available on: https://www.amnesty.fr/actions-mobilisation/malte-liberte-pour-les-migrants-bloques-en-mer
viii L. IMBERT, « La coopération sans le(s) droit(s): le foissonnement des accords « injusticiables » avec les pays tiers », Revue Plein droit, 2017, n°114, 45 à 58.
x See Turkey’s reservation of the Refugee Convention 1951 in « States parties, reservations and declarations » (updated in september 2019), page 12 available on : https://www.unhcr.org/5d9ed32b4
xi I. GOLDNER LANG, « Towards “Judicial Passivism” in EU Migration and Asylum Law? », in T. CAPETA, I. GOLDNER LANG & T. Perišin, The Changing European Union: A Critical View on the Role of Law and Courts, Hart Publishing, 2020.
xii European Court on Human Rights (Grand Chamber), Hirsi Jamaa and others v. Italy, Application no 27765/09, 23 February 2012
xiii Centre Suisse pour la Défense des Droits des Migrants, « Request for un inquiry into Italy’s role in the systematic torture of migrants pulled back to Libya », June 26th 2020, https://centre-csdm.org/request-for-un-inquiry-into-italys-role-in-the-systematic-torture-of-migrants-pulled-back-to-libya/
xiv Court of Justice of the European Union C-638/16 PPU, X, X, v Etat Belge, Opinion of Advocate General Mengozzi delivered on 7 February 2017, para 150
xv Op. Cit. iii para 102.
xvi Ibid para 123.
xvii European Court on Human Rights (Grand Chamber), N.D. and N.T. v. Spain Judgement, Applications nos. 8675/15 and 8697/15, para 123
xviii European Court on Human Rights, Khlaifia and others v. Italy (GC), Application no. 16483/12, 15 December 2016, para 248
xix Op. cit. xiv para 110.
xx Op. Cit. ix
xxii Catherine de Wenden, « Les flux migratoires légaux et illégaux », CERISCOPE Frontières, 2011, http://ceriscope.sciences-po.fr/content/part4/les-flux-migratoires-legaux-et-illegaux