2014 - July 4: CLEER Conference: "Using Human Security as a legal framework to analyse the Common European Asylum System"

On the 4th of July, the Centre for the Law of EU External Relations (CLEER)- hosted by the T.M.C. Asser Instituut, convened the second conference relating to its research project “Human Security: a new framework for enhanced human rights in the EU’s foreign security and migration policies”. This expert conference went beyond traditional approaches to refugee protection in the Common European Asylum System (CEAS) and triggered an inter-disciplinary debate on the prospects of incorporating “Human Security” in the application of the EU asylum acquis and border control policies.  

The conference was split into four thematic panels with lively Q & A discussions following each session. Dr. Tamara Takacs, academic programme coordinator of CLEER and senior EU law researcher at Asser, opened the conference, outlining the research project which had inspired the topic of discussion for the day. In this manner, Dr. Takacs referred to the previous Human Security conference and explored the definition of Human Security with regards to the responsibility to protect and humanitarian intervention. Mr. Claudio Matera, researcher at Asser, developed these introductory remarks by locating notions of Human Security in the context of the CEAS, including recent jurisprudence and more specifically, fundamental rights. Building upon reports from the UN and EU, Matera noted the shift of discourse in the late nineties from state security military narratives to the safety of individuals faced with non-traditional security threats. Yet, despite this broader use of security, persistent notions of state sovereignty have prevailed, often to the detriment of human rights. Whilst reflecting on the malleable characteristics of Human Security (later noted by all speakers), Matera argued for an approach that would use the normative counter-part of Human Security, the right to dignity, to ensure an enhanced standard of protection in the application of EU asylum rules and policies. Human Security notions could, therefore, be used as a means to strengthen the operationalization of fundamental rights. The key note speaker, Ms Myrthe Wijnkoop from the Dutch Council of Refugees, subsequently outlined the development of both legislation and policies in the CEAS outlining that the Union asylum system, initially set up to guarantee a minimum level of protection to persons genuinely in need, has come under intense pressure and scrutiny due to a series of recent political, sociological and legal events.Wijnkoop reflected on the reference to human rights instruments in the EU asylum acquis, noting that they are often an “empty shell.” She underlined that this had continued in the Italian Presidency’s Strategic Guidelines, which will serve as the basis for the next EU Justice and Home Affairs strategy, and called for a permanent health and quality check of both EU instruments and Member State practices.

The second panel, chaired by Dr. Seline Trevisanut, Utrecht University, addressed the operational aspects of border controls in the EU along with access to protection under the Dublin system. Dr. Jorrit Rijpma, Leiden University, offered an assessment of the EU border management system, critically analysing these rules, which are comprised of both hard and soft law, from a human rights perspective. With regards to the latest recast of Frontex legislation, he noted that although human rights clauses have been introduced, it remains to be seen whether these are more than a mere “window dressing” fixture. Notably, while a fundamental rights strategy is outlined within the Regulation, the amended text does not include an accountability mechanism for violations. Rijpma further highlighted that whilst EUROSUR could easily provide information on boats in distress, it appears, to be used instead as another means to ensure management, surveillance and control of the borders. Having said this, with regards to the functioning of Member States border guards, Rijpma argued that it was not within the border guards mandate to be a search and rescue team per se. He, therefore, called for an increase of asylum case workers in border operations, ie Rapid Border Intervention Teams. Dr. Violeta Moreno-Lax, from Queen Mary University, London, proposed a critical assessment of Human Security in the context of the Dublin Regulation III and the sovereignty clause (Article 3.2). She argued that given Human Security’s fluidity it should not be pursued to the detriment of hard law, specifically, fundamental rights which are at the pinnacle of the EU normative order. Over reliance on soft norms, such as Human Security, ironically, carries the risk of fuelling restrictive tendencies of the host state, to the detriment of human dignity for the asylum seeker. In light of the theoretical approach, Dr. Moreno-Lax noted the gap between theory and practice and presented a trajectory of jurisprudence from both the ECtHR and ECJ. The former seemed to advocate a Human Security inspired reading, whereas the latter appears to contradict Member States responsibilities to those seeking asylum along with their fundamental rights obligations. Dr Moreno-Lax concluded that this crevasse between theory and practice could to some extent be rectified by using Human Security as a means to enhance and protect fundamental rights.

The third session, chaired by Dr. Violeta Moreno-Lax, raised the challenges and benefits of applying Human Security notions to operational mechanisms and substantive protection norms. Dr. Robert Visser, Executive Director of the European Asylum Support Office (EASO), introduced a broader reflection of the meaning of asylum and legal migration. In this manner, the Executive Director of EASO emphasised that the EU has built a system based on the 1951 Geneva Convention, expanding, in qualitative terms, protection and the development of jurisprudence. Further consideration was given to the on-going projects carried out by EASO so as to support and strengthen the uniform application of EU rules. Firstly, Dr. Visser spoke about the joint processing of asylum applications as a means to enhance mutual trust and uniform application of EU rules among civil servants of the Member States and, secondly, he spoke about the early warning system, codified in Article 33 of the Dublin Regulation III and EASO’s role in training asylum practitioners and harmonising Member States practices. The other speaker of this session, Dr. Lieneke Slingenberg from VU University Amsterdam, examined both the 2003 Receptions Conditions Directive and the amended Directive from 2011 in light of International human rights obligations and Human Security interests. Dr. Slingenberg emphasised that many tensions exist between several articles in the current Reception Directive and codified norms in the 1951 Geneva Convention, the European Convention on Human Rights and the International Covenant on Economic, Social and Cultural Rights. In this regard Human Security was presented as a means to focus attention on socio-economic rights and as a tool to also lessen the margin of discretion that Member States can justify having under the Receptions Directive.

Chaired by Claudio Matera, the final session contextualised the debate by focusing on EU initiatives and Member States responses to recurring tragedies in the South Mediterranean Sea. In this regard, Dr. Paolo Cuttitta, VU University, elaborated on so-called “humanitarian” missions in the Strait of Sicily from a socio-legal perspective. Shedding light on the “push-back” boat policies to the North of Africa, adopted by some EU Member States, Dr. Cuttitta developed the argument that there had been a continuous pattern in these push backs from 2002 to present day. Whereas these missions are now under the guise of “rescue operations,” they, in fact, continue to be a (border control) wolf in sheep’s clothing. In fact the only change, according to Cuttitta, had been the vast increase in funding these missions. To illustrate, Constant Vigilance, the predecessor to Mare Nostrum cost 1.5 million euros per month, whereas Mare Nostrum costs 9/10 million euros per month. Dr. Paula Garcia Andrade, Universidad Pontificia Comillas, analysed EU Member State cooperation in the Southern Mediterranean, with a step-by-step examination of the competences of both the EU and Member States in the field. Specific attention was paid to protected entry procedures, humanitarian visas, Frontex working arrangements and Temporary Protection, both with regards to competences and the impact of these different measures on human rights and Human Security standards.

Amanda Taylor, research assistant, T.M.C. Asser Institute