The Case of Melilla and Ceuta: Spanish Violations of EU and International Law

January first of this year at around 4am local time, an estimated 1,100 migrants attempted to traverse the high double fence between Morocco and the Spanish enclave of Ceuta in the Northern part of Africa in what was deemed an “extremely violent and organized” act, according to the Spanish central government’s representative in Ceuta[if !supportFootnotes][1][endif]. The end result? Over 1,000 migrants pushed back into Morocco by Spanish and Moroccan authorities and at least two rushed to a nearby hospital to be treated for life threatening wounds. Events like these have become increasingly common occurrences across Europe as the refugee crisis mounts, particularly on this pivotal, and often overlooked, crossing point into Europe: Melilla and Ceuta. While indeed it goes without saying the refugee crisis facing Europe is on a level never before seen and a magnitude of dire proportions, regardless of situational circumstances both the EU and International Community have reaffirmed their commitment to the guidelines laid out in law for the proper processing and repatriation of foreign nationals—whether they be refugees or economic migrants. In this essay we will evaluate the extent that Spain is seen to be not following the protocols prescribed by EU and International law with regard to the treatment of refugees and migrants who attempt to enter its territories.

The principle of Non-refoulement rests at the core of international refugee law. According to Susan Saliba of the European Union Research Initiative, “as a part of customary international law, it is binding on all States even if they are not parties to the 1951 Convention and 1967 Protocol.” This means that regardless of a state’s agreement or ratification of the convention or that which it entails, all states are bound legally to follow what it prescribes. Many international legal scholars, such as Maria de la Coline, argue that, like laws banning slavery or the prohibition of chemical weapons, the laws guiding the treatment of refugees have reached a certain ergo omnes status in the international community, that is “the law is applicable ‘towards all’ or to everyone.” Article 33 of the Geneva Convention provides that “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.” The principle of non-refoulement is further entrenched in EU law[if !supportFootnotes][2][endif]. Moreover, Judgments of the European Court of Justice (CJEU) and the European Court of Human Rights (ECtHR) have deemed pushbacks of migrants highly illegal and called for the proper processing of migrants and refugees “irregardless of circumstance”[if !supportFootnotes][3][endif]. Therefore, states, and particularly those states such as Spain who have opted into joining the European Union, are bound by these laws prescribing the proper treatment of migrants and refugees. The European Convention on Human Rights (ECHR)[if !supportFootnotes][4][endif] as well as the the Schengen Borders Code[if !supportFootnotes][5][endif], which were ratified by Spain, expressly prohibit the mass push backs of refugees out of a territory. Furthermore, the EU Asylum Procedures Directive 127, which adds to the basis set out by the ECHR and Schengen Borders Code prescribe expressly the necessary procedures that must be taken to process and assign the status to those individuals attempting to cross into an EU state. While an exhaustive list of these rights can be found by looking at the texts themselves, in brief they expressly prohibit mass push-backs without due processing, they enshrine certain rights to children under the age of 18 (echoing obligations under the UN Convention on the Rights of the Child), they prohibit the repatriation of protected groups who are deemed to be fleeing conflict, religious, political, or sexual persecution, and those who are deemed to be in eminent danger if repatriated and they aim to bolster the European Union Charter of Fundamental Rights[if !supportFootnotes][6][endif] which further enshrined the rights of migrants to legal aid, translation services, and medical aid in the event of bodily harm. As a final key note, international law separates those who are deemed refugees, those fleeing persecution on their an individual or state-wide level, from migrants (otherwise deemed economic migrants) who are fleeing due to lack of work, opportunity, or access to economic prosperity.

Both International and EU law prescribe a strict regimen of protections for both migrants and refugees who attempt to enter the EU. Although economic migrants are afforded far fewer rights than refugees by way of permanent resettlement in the EU, they are still granted many of the same rights upon arrival to an EU state and require proper processing prior to repatriation. However, Spain, as well as many other European Union countries have, when faced with mounting refugee and migration pressures (like those seen since the beginning of the war in Syria), tried to circumnavigate and reinterpret these aforementioned EU and international laws more restrictively to keep out migrants before they have a chance to be processed. It has been a common argument by Spanish authorities that these irregular migratory flows into the enclaves that had been witnessed up until 2013 do not include people in need of international protection and thus need to be processed and could be directly repatriated—it was only in late 2013 with the Syrian migration crisis that Spain was bound to follow the international protections laid out by the Geneva convention. But moreover, Spain claims that most of the people coming into Melilla and Ceuta through Morocco or Algeria today still originate from the sub-Saharan countries—not Syria—and are thus deemed only economic migrants, not refugees, and thus are not offered the same level of protection. Spain points to mostly stagnant numbers of refugees attempting to cross over the borders into Melilla and Ceuta before and after the Syrian crisis began as proof that no Syrians are attempting to cross over into Spain through Melilla and Ceuta. But critics, such as CEAR, argue these numbers may be flawed and we have no way of knowing who exactly is trying to cross over because Spain is pushing them back into Morocco before any proper processing or investigation into their origins takes place. But even if we were to take Spain at their word, and assume there are indeed no Syrian refugees attempting to cross into Europe via Melilla and Ceuta, this would still exclude people from Sub-Saharan countries who are fleeing individual prosecutions in their home countries due to race, political opinion, religion, sexual or gender identity, and people fleeing ongoing conflicts across the region—all of which are afforded refugee protections and resettlement under EU and International Law.

Another way Spain has tried to fall back on their obligations under EU and International law has been through the passing of location-specific legislation particular to Melilla and Ceuta. On the 26th of March, 2015, the Spanish Congress amended the Law on Public Security[if !supportFootnotes][7][endif] and introduced a new administrative act of “border rejection” (el rechazo) specific to Melilla and Ceuta. The new amendment stipulates that “foreigners detected on the boundary line of the territorial demarcation of Ceuta and Melilla attempting to overcome the border containment elements in order to irregularly cross the border, may be rejected in order to prevent their illegal entry into Spain… [and] the rejection will be carried out in compliance with international human rights and international protection norms.” However, many critics have argued this last phrase has no true force in Spain’s domestic law and is only meant to quell international critics of the amendment. Critics point out that the amendment gives absolutely no details on how these human rights and international protection norms will be upheld during the “border rejections” nor what obligations and procedures the Spanish Guardia Civil (the Spanish border protection agency) will be under to gauge who is deemed worthy of proper processing and how they will be treated. Furthermore, the amendment overturns the pre-existing safeguards and internal protections that were present under the Spanish domestic law such as guarantees of legal aid and assistance in administrative processes prior to the process of refusal of entry (denegación de entrada) and access to interpreters in the events of mass or irregular entry and denial of entry (devolución and expulsión). In May of 2015 the European Committee against Torture urged Spain to review this new legislation and explicitly guarantee the principle of non-refoulement; ensuring the individual assessment of each case and access to asylum procedures. The Committee also noted that they believe the new amendment is only a “legal cover” for mass expatriations in Ceuta and Melilla. The United Nations Human Rights Committee recommended Spain to review the new law and introduce an article clearly articulating the rights of refugees and “ensur[ing] that all persons seeking international protection have access to fair procedures for individualized assessment and protection against refoulement without discrimination, and access to an independent mechanism with authority to suspend negative decisions.” As of October of 2017, Spain has not passed any further legislation or amendments to the new law.

It goes without saying that the current migration and refugee crisis facing Europe is one of mass scale and mass casualty. While many look Eastward to the Balkan route into Europe or profess outrage at those lives lost in rafts crossing the Mediterranean, few seem to be looking to these small enclaves in North Africa which are acting as key corridors into Europe. And it is exactly in these shadows the Spanish government has been acting, slowly circumventing EU and international law, and changing its own domestic law to more easily deny the rights of refugees and migrants. Spain needs to be held accountable for their actions, not for any moral reason, but for the upstanding commitments it has made under international law. One can sit around all day and bemoan and atrocities of state and non-state actors the world over, but it is rare that so clearly a state actor bound by international law decides to break their prior international legal agreements. Spain is a modern country, who themselves holds other nations to their obligations agreed upon under international law. And thus Spain needs to turn its gaze back on itself and respect its prior agreements and act on them with regard to the way they are treating the current migration crisis facing their country.

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[if !supportFootnotes][1][endif] Euractive

[if !supportFootnotes][2][endif] Article 78 of the TFEU and Article 18 and 19 of the EU’s Charter of Fundamental Rights

[if !supportFootnotes][3][endif] CJEU in 2015

[if !supportFootnotes][4][endif] Article 3 and Article 4 of Protocol 4, and Article 1 of Protocol 7

[if !supportFootnotes][5][endif] ibid Article 126

[if !supportFootnotes][6][endif] Articles 18 (Right to asylum), Article 19 (Protection in the event of removal, expulsion or extradition), and Article 47 (Right to an effective remedy and to a fair trial)

[if !supportFootnotes][7][endif] Organic Law 4/2000, Spain’s immigration law