Lifting the organisational veil: positive obligations of the European Union following accession to the European Convention on Human Rights.

AuthorStubberfield, Catherine

Abstract

This article examines the likely positive obligations of the European Union ('EU') following its approaching accession to the European Convention on Human Rights. By focusing on the Dublin Regulation and recent asylum seeker returns to Greece as breaches of the prohibition on inhuman and degrading treatment, the article demonstrates that in dysfunctional areas of EU regulation, quite concrete changes will be necessary in order to meet the standards required thus far by the approach of the European Court of Human Rights and general principles of international law. This seems all the more probable given the prescriptive nature of the relationship between the EU and member states in the area of immigration. Ultimately, the article argues that current EU law fails to meet the requisite human rights obligations to protect and prevent, investigate, deter and prosecute. In the absence of reforms including a proposed suspension of transfers mechanism, the article concludes that the EU is likely to be condemned by the European Court of Human Rights for failing to meet its obligations under art 3 of the European Convention on Human Rights.

I Introduction

The potential for stales to hide behind the 'organisational veil' of international institutions has become ever more significant, with increasing international mandates, scope and influence. Lifting the veil, however, goes beyond implications for member states and raises issues of responsibility for the organisation itself. Though still in their relative infancy, 'budding doctrine[s]' (1) on the responsibility of organisations are emerging to fill existing gaps in international law. Against this background, the obligations of the EU (having acquired independent legal personality) present a new and unique opportunity for human rights protection in Europe.

The Treaty of Lisbon, (2) renders the Charter of Fundamental Rights (3) legally binding and stipulates that the EU shall accede to the European Convention on Human Rights ('ECHR'). (4) The development marks a pivotal moment in the evolution of the regional legal system, lifting the veil that has thus far deflected any Strasbourg scrutiny of acts of the EU itself. Although not expanding the competences of the EU in any way, the change is expected to offer individuals greater legal certainty arid increased uniformity in the implementation of EU law. In increasing the effectiveness of rights now enshrined by the Charier of Fundamental Rights, ECHR and general Principles, such an approach should lead to stronger human rights protection within the European system.

Given the existing partial reliance by the European Court of Justice ('ECJ') upon the ECHR, and the EU's commitment to the Charter of Fundamental Rights, there has been some scepticism about the practical impact of EU accession to the ECHR. This article argues, however, that, in what the author ventures to call 'dysfunctional' areas of EU regulation, concrete policy improvements will be required. In support of this view, the article focuses on recent asylum conditions in Greece as inhuman and degrading treatment, and the return of asylum seekers to such conditions by other member states. (under current EU Law) as violations of art 3 of the ECHR. While the recent case of NS and ME (5) has now settled conclusively that EU law neither requires nor permits return of asylum seekers to Greece, the article questions whether or not the current state of EU law adequately fulfils the positive obligations to protect and prevent, investigate violations, and deter and prosecute.

The impact of the ECHR on member states returning asylum seekers to countries such as Greece has already attracted significant research and this article does not rehash the question of member state responsibility. There has been ongoing debate concerning asylum conditions in Greece as a violation of art 3, with the landmark Grand Chamber decision of MSS v Belgium and Greece (6) handed down in January 2011 concluding that Dublin returns to such conditions amount to a breach not only by Greece, but also by the relevant returning state. (7) The ECJ decision of NS and ME (8) in December 2011 has affirmed this finding at EU law level. The implications of this situation for the EU as an institution subject to the ECHR, however, have not been explored. The focus of this article is the likely interpretation by Strasbourg of the EU's obligations under the ECHR, examining the specific issue of Dublin returns to Greece rather than asylum conditions there.

The article argues that the EU may well be required to undertake concrete preventative and protective measures to improve the Dublin system in a way that is unlikely to be considered overburdening or unreasonable by the Strasbourg Court given the nature of EU-member state relationship. Put simply, the EU has the competence to make relatively straightforward legislative and policy changes that would certainly have a significant impact in reducing violations committed within the context of Dublin returns. Similarly, the article argues that additional investigative and deterrent measures should be pursued by the European Commission in order to meet the standard of human rights protection expected by the European Court of Human Rights ('ECtHR').

Ultimately, the article will seek to demonstrate that the practice of Dublin returns to Greece in the recent past is attributable under the ECHR not only to the relevant member state, but also to the EU itself. In failing adequately to meet its positive obligations, the EU would therefore presumably be condemned by the Strasbourg Court were the same circumstances to arise again following its accession to the ECHR. In order to avoid such violations, the EU must therefore enact the proposed suspension of returns mechanism as soon as possible. As this article concludes, the relevant changes to the existing Dublin system are no longer merely a moral imperative but indeed a concrete and legal one.

II Background: the European Asylum System

The dramatic liberalisation of border control within the EU in the early 1990s brought with it new challenges in the field of asylum--most notably a need for harmonisation. (9) The Schengen (10) and Dublin Conventions (11) sought from the mid-1990s onwards to limit the lodgement of an asylum claim to only one application within the EU, but did not at that time address harmonisation of the respective review processes. (12)

Following the Treaty of Amsterdam, (13) which transferred competence in the fields of immigration and asylum to the EU, numerous directives, regulations and decisions have now been passed in creating what has become known as the 'Common European Asylum System' ('CEAS'). (14) Under the Treaty of Amsterdam, measures in the field of asylum and immigration were to be established progressively within five years. (15) The then Dublin Convention has since been succeeded by the Dublin Regulation ('Dublin II). (16) The stated motivations for the Dublin II system include effective and accessible refugee status determination procedures, the improvement of efficiency through the determination of responsible member states as quickly as possible, and the desire to close loopholes and prevent systemic abuses. (17)

Dublin II sets out the hierarchy for determining which European member state is responsible for examination of an asylum claim. Aside from exceptions, such as in cases of unaccompanied minors and family reunification, the state in which the asylum claim is to be examined shall generally be the state through which the individual entered the EU and filed an application. (18) The member state initially determined as responsible for examination of the asylum claim must 'take back' any applicant who has gone on to enter the territory of another member state without permission. (19)

It is noteworthy that member states retain a wide scope for discretion with regard to whether or not to return asylum applicants to the country responsible under Dublin II. Commonly referred to as the 'sovereignty clause', art 3(2) provides that each member state may choose to examine an application for which it is not responsible under the Dublin II criteria. (20) This provision, however, is permissive rather than obligatory (at least in its phrasing). Potential difficulties with Dublin II were widely foreseen by academics and commentators. As Papadimitriou and Papageorgiou note, 'from the start, it was obvious that countries on the periphery of the EU would, in the end, have to bear the burden of examining a disproportionate number of asylum applications.' (21) Further, it has been widely understood for several years that the principal motivation of many asylum seekers in moving from countries of the EU periphery to Western Europe is based on differences in reception conditions. (22) More recent directives have not altered these facts.

Subsequent to Dublin II are the Reception Directive, (23) the Qualification Directive (24) and the Procedures Directive. (25) The Reception Directive addresses concrete issues including freedom of movement, employment and material conditions for asylum seekers, aiming to 'ensure full respect for human dignity'. Described as 'the most important instrument in the new legal order in European asylum because it goes to the heart' of the Refugee Convention, (26) the Qualification Directive clarifies and defines the conditions through which an individual acquires refugee or complementary protection status within the EU.

Of more central importance to concrete asylum conditions (such as in Greece), however, is the Procedures Directive, concerned with minimum standards for the processing of asylum claims, member states retain the prerogative to introduce or maintain procedures more favourable than those stipulated under the Procedures Directive, (27) but are under no obligation to do so. The Procedures Directive has attracted significant academic, NGO and UN...

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