Spain cannot legalise what is illegal
Huffington Post Spain, 10/12/2014
The proposal to legalise automatic collective expulsions of migrants arriving in Ceuta and Melilla is wrong and unlawful under international law. Such a move would inevitably erode fundamental human-rights protections that the international community has fought hard to establish since World War II. The right response to migration influx is not less, but more protection.
International norms do not call into question the right of states to establish their own immigration policies. However, even in cases where the management of migratory flows poses particular challenges, states cannot resort to practices which are not compatible with their obligations under the European Convention on Human Rights and the 1951 Convention Relating to the Status of Refugees.
Spain acceded to these conventions at the end of the 1970’s, immediately after it restored its democracy. This was a symbolic move, which demonstrated to the international community that Spain’s future would be characterised by compliance with international legal principles agreed in the aftermath of the atrocities of World War II, as a result of which millions of people were killed, displaced and left unprotected.
That pledge is now threatened by the legislative proposal which would allow Spanish law enforcement officials to automatically return migrants crossing the borders in Ceuta and Melilla. Resorting to such “push-backs” makes it impossible to assess the protection needs of migrants and flies in the face of the case-law of the European Court of Human Rights which has established the illegality of such measures on grounds of Protocol 4 to the European Convention which unequivocally prohibits the collective expulsion of aliens. Moreover, push-backs prevent migrants from benefitting from other legal guarantees firmly established in international law, in particular the right to seek and enjoy asylum, the protection of life, and the prohibition of torture.
The situation of those trying to reach Europe today is not different from that of people fleeing war, persecution, torture or poverty in the past. Since 2013, when the number of people arriving irregularly in Ceuta and Melilla started to increase, the proportion of those coming from countries torn by war, violence and persecution, including Syria, Central African Republic and Mali has also gone up. So far this year, about 5 000 have arrived, including around 2 000 people fleeing conflict in Syria (of whom 70% are women and children). Spain is under a legal duty to assess their situation adequately and to grant protection to those in need. Summary rejection at the frontier, whether of a single person or a group, is incompatible with this obligation.
As the United Nations General Assembly proclaimed on 10 December 1948, while adopting the Universal Declaration on Human Rights, “Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms”.
I hope that tomorrow, when voting on the amendment to the Aliens’ Act, all members of the Spanish parliament act according to this Declaration and the values it stands for.