The Practice of Mediterranean States in the context of the European Union's Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited

摘要

Identifying the exact scope of States' obligations in relation to refugees who have not reached the State's territory has become an issue of fundamental relevance and one of the most controversial areas in refugee studies nowadays. It is argued here that an attempt to identify the obligations of States towards refugees requires first clarification as to which rights a refugee can claim vis à vis a State. It is also argued that States' obligations towards refugees are engaged by the exercise of State jurisdiction, including when exercised outside the territory of the State. In order to assess the lawfulness of the practices of non-arrival into the EU's borders, this paper shall first elaborate on the practices of Mediterranean States, and in particular, of Spain, Morocco, Italy, and Libya. This choice serves different purposes: firstly, given that southern EU Member States continue to play a fundamental role as transit countries towards northern Europe, their practice highlights the political context where the practices take place. Secondly, the role of these countries as external borders of the EU places the debate within the broader framework of EU's relations with third countries, illustrating the way in which the policies of non-arrival go well beyond the immediate neighbouring States. And thirdly, the study of Mediterranean practices allows for an analysis of legal issues derived from the exercise of jurisdiction not only within the territory, but also in the High Seas. The paper then questions the ‘Safe Third Country’ concept as the legal standard used by States to transfer their obligations towards refugees to other countries. The paper concludes that the status of refugees under international law is defined not solely by International Refugee Law, but rather by the interaction of the different legal orders that may be applicable to any given refugee in any given circumstances, both of universal and regional scope. Accordingly, the lawfulness of the practices of the EU and its Member States in their relations with third countries in the field of asylum and migration is to be assessed against that broader framework of States' obligations derived from the interaction of different legal orders.