Blog post by Sissy Katsoni, a PhD candidate and Research Associate at Ruhr-Universität Bochum
The European Court of Human Rights (‘ECtHR’, ‘the Court’) has repeatedly interpreted provisions on non-refoulement and the prohibition of mass expulsions as requiring States to grant protection-seekers access to means of legal entry into their territories (Fundamental Rights Report 2021, p. 154). The Court has further clarified that if States have made available genuine and effective access to means of legal entry, they may refuse the entry of protection-seekers who participate in a large group’s operation to illegally enter the State (A.A. and others v. North Macedonia, para. 123), or who without cogent reasons, cross the border at a different location, take advantage of their large numbers and use force in order to enter (N.D. and N.T. v Spain, para. 210). The fact that in some of the cases brought before it the means of legal entry were not accessible in practice, left the Court’s conclusions untouched.
Against this background, a paradox can be noted: if protection-seekers use force or misuse their large numbers to tackle the lack of accessible means of legal entry, the wrongfulness of the States’ negligence to grant access to such means will be precluded, even though this negligence triggered or at least contributed to the protection-seekers’ forceful entry attempts in the first place. This post will underline that the ECtHR’s decision to exclude ‘trespassing’ protection-seekers from the scope of the obligation to admit has left the States with what Nollkaemper and Jacobs have described as ‘too little [international] responsibility’, all while ‘trespassing’ protection-seekers have been left with ‘too much [international] responsibility.’ The post will recommend an alternative that is proportionate to each side’s responsibility share and will highlight the significant role that shared responsibility can play in this context.
Why is the responsibility allocated to States ‘too little’?
The rationale behind the ECtHR’s decision that the non-admission of ‘trespassing’ protection-seekers is compatible with the European Convention on Human Rights (‘ECHR’) implies that protection-seekers’ attempted irregular entries preclude the wrongfulness of the States’ failure to grant access to means of legal entry. It has been argued that when a mass influx of protection seekers threatens essential interests’ of the State it operates as a state of necessity, which under article 25 of the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) is a ground for precluding the wrongfulness of a State’s conduct that is not in conformity with an international obligation of that State (see e.g. Boed, pp. 26-37). The ECtHR could be seen as embracing this approach.
It is arguable that States contribute to the situation of necessity that drives protection-seekers’ forceful entry attempts precisely by not granting access to means of legal entry. As Wriedt rightly underlines in her critical analysis of the ECtHR’s approach, by closing their borders in advance and by not arranging means of legal entry and protection claims assessment, the States contribute to the protection-seekers’ resort to the use of self-help measures. The States’ contribution to the situation of necessity excludes its invocation as a circumstance precluding wrongfulness under ARSIWA 25(2)(b). Thus, even if the protection-seekers’ attempts to irregularly enter the state territory is deemed as a situation of necessity, it does not absolve States of their international responsibility.
The Court seems to have adopted a critical and even punitive attitude towards protection-seekers who irregularly enter States, noting that ‘it was in fact the applicants who placed themselves in jeopardy by participating in the illegal entry onto Macedonian territory’ (A.A. and others v. North Macedonia, para. 123), and that ‘the lack of individual removal decisions can be attributed to the fact that the applicants, if they indeed wished to assert rights under the Convention, did not make use of the official entry procedures existing for that purpose, and was thus a consequence of their own conduct’ (N.D. and N.T. v Spain, para. 231). Based on the Court’s assessment, because protection-seekers tried to irregularly enter the States’ territory, they do not deserve protection. Non-admission is the consequence of their own unlawful conduct. As the following section will discuss, the shift of responsibility solely to protection-seekers is disproportionate to the violation of their international obligation to enter States lawfully.
Why is the responsibility allocated to protection-seekers’ ‘too much’?
The protection-seekers’ contribution to the non-admissions discussed above, i.e. the use of force or misuse of their large numbers to enter the States’ territories, could indeed be seen as a breach of their international obligations. In her seminal work on international individual responsibility, Peters builds on a transnationalised principle of legality to identify certain conditions, under which international individual obligations may arise from inter alia international treaties and custom (Peters, pp. 60-114). The prerequisite identified by Peters is the requirement that the international obligation at issue shall be established via an accessible and foreseeable provision (ibid, p. 84). Thus, the question arising is whether there is an accessible international law provision foreseeably prohibiting protection-seekers to use force or misuse their large numbers to irregularly enter state territories, and, thus, requiring them to enter state territories via the available means of legal entry.
The prohibition of abuse of rights, which is provided in some human rights treaties (e.g. ECHR Article 17) and has been argued to be a general principle or customary rule of international law, could be seen as such a legal basis. As the protection-seekers’ use of force or the misuse of large numbers for unlawful entries are contrary to the spirit of provisions safeguarding protection-seekers’ rights, as well as other fundamental values of international law, such as States’ sovereignty, which encompasses their territorial integrity (Schabas, p. 616), it could be seen as a form of the prohibited abuse of rights. Such an interpretation would be in line with the relevant non-penalisation principle of Refugee Convention Article 31(1), which requires that States not penalise the irregular entry of protection-seekers into their territory, as the latter sets out a ‘good cause’ requirement for the non-penalisation of the protection-seekers’ illegal entry. A customary rule of international law stemming from national law provisions that set forth entry restrictions to non-nationals could also arguably serve as the basis for the protection-seekers’ obligation to enter States lawfully.
Nevertheless, a violation of the prohibition of abuse of rights by protection-seekers does not justify their complete exclusion from the protective scope of the prohibition of mass expulsions. The prohibition of the abuse of rights applies ‘only to an extent strictly proportionate to the seriousness and duration’ of such abuse (De Becker v. Belgium, para. 279). In this sense, even if protection-seekers abuse provisions on the prohibition of mass expulsions in human rights treaties, their complete exclusion from the protective scope of these provisions would be disproportionately harsh to the abuse and to the threat that they would arguably impose on States’ sovereignty. It is highly unlikely that the protection-seekers’ forceful attempts to enter a State are comparable to the force that the State authorities can (and do) use at their borders.
The lack of secondary rules, which would indicate the consequences of the violation of protection-seekers’ international obligations (Crawford, pp. 64-66), and the disregard of the States’ omission to establish accessible means of legal entry has led to the allocation of ‘too much’ responsibility on protection-seekers. A reconsideration of the allocation of responsibility on protection-seekers and States is essential.
Finding a Fair Share
The ARSIWA’s contribution to the re-distribution of responsibility among States and protection-seekers in a manner that is proportionate to each side’s responsibility share is minimal. Article 39 provides that ‘[i]n the determination of reparation, account shall be taken of the contribution to the injury by wilful or negligent action or omission of the [actor] in relation to whom reparation is sought.’ This could allow the State to deduct from a putative compensation to protection-seekers an amount for the damages that they may have caused during their forceful entry. Its application beyond reparations taking the form of damages, however, is difficult to imagine. After all, the current jurisprudential approach does not even raise the need for discussions on protection-seekers’ reparation, as responsibility lies entirely with the ‘trespassing’ protection-seekers.
If, however, one embraces the above view of forceful entry attempts as mere breaches of protection-seekers’ international obligations (and not as circumstances precluding the wrongfulness of the States’ omission to arrange accessible means of legal entry), then the States’ contribution to the protection-seekers’ violations should be ‘deducted’ from the protection-seekers’ responsibility. For this complex ‘deduction’ to be put in effect, a holistic view of primary and secondary rules as a coherent whole is helpful (Nollkaemper and Jacobs,p. 411).
Indeed, one can view the non-penalisation principle of article 31(2) of the Refugee Convention as a rule setting out the limits of the consequences of protection-seekers’ international responsibility. The referenced provision allows States to impose ‘necessary restrictions to the movement’ of protection-seekers, who have irregularly entered the State in bad faith, until their status is regularised (Noll, pp. 1267-1268). Thus, on the basis of the national law, implementing the non-penalisation principle, States could impose certain restrictions on protection-seekers that had sought to enter their territories forcibly in order to ensure their cooperation with the authorities until their status has been regularized.
Of course that presupposes that the protection-seekers at issue have already entered the State’s territory. In this regard, Principle 10 of the Guiding Principles on Shared Responsibility in International Law may be of influence. Under the principle, applied mutadis mutandis to the issue at hand, States that have contributed to the protection-seekers’ wrongful entries by not providing accessible means of legal entry, and whose contribution is thus not negligible, could be deemed as bearing the obligation to restitute the non-admission, essentially by admitting the protection-seekers. Then, in the context of recourse, the State could impose the aforementioned restriction on the protection seekers’ movement – if necessary (see Noll, pp. 1270-1271) – until their status is assessed.
As explained above, the current approach of the ECtHR leaves protection-seekers, who try to forcefully enter the State of destination, outside the protective sphere of non-refoulement and the prohibition of mass expulsions. This is the case even in situations, where States contribute to the protection-seekers’ forceful entry attempts by not complying with their obligation to grant protection-seekers’ with accessible means of legal entry. In fact, the mere use of force or the misuse of large numbers on behalf of the protection-seekers retrospectively absolves the States’ responsibility for their obligations’ violation. As a result, States end up bearing ‘too little responsibility’ all while protection-seekers end up bearing ‘too much responsibility’.
For the avoidance of this paradox, shared responsibility (particularly the holistic view of primary and secondary rules, suggested by Nollkaemper and Jacobs, and Guiding Principle 10 on Shared Responsibility in International Law) can be of influence as it can help distribute the responsibility among States and protection-seekers in a manner that is proportionate to each side’s international responsibility. Precisely, a holistic view of primary and secondary obligations in international law, and the influence of reparation and resource in the Guiding Principles on Shared Responsibility indicate the solution to be followed: on the one hand, States have to admit protection-seekers into their territory and the protection-seekers on the other, may be subjected to certain restrictions until their status has been regularized.
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