4 April 2011

The MSS Case: Shifting Burdens and Evading Responsibilities?

The European Court of Human Rights issued a landmark ruling in the case of M.S.S. v. Belgium and Greece on 21 January 2011. The case concerned the expulsion of an asylum seeker to Greece by the Belgian authorities in application of European asylum law. Not only is this judgment extraordinarily rich, it also exposes serious flaws in the current European asylum regime.

The Common European Asylum System (CEAS) was established to reduce ‘asylum shopping’ and ensure minimum standards of protection to asylum seekers across the European Union. So far, so good.

The Dublin II regulation, which is an important part of the CEAS, determines which Member State is responsible for the examination of an asylum application and allows them to deport asylum seekers to the country where they first entered the European Union. For geographical reasons, southern and southeastern European countries, including Greece, receive the greatest share of asylum seekers. After all, they form the closest port of entry into Europe. The result: unbalanced burden-sharing among the various European countries. Just take a look at Italy which is currently trying to deal with hundreds of thousands fleeing Libya. Here the trouble starts.

The Court has acknowledged these challenges by saying that “the States which form the external borders of the European Union are currently experiencing considerable difficulties in coping with the increasing influx of migrants and asylum seekers” (para. 223). Yet, by recalling the absolute character of Article 3 of the European Convention on Human Rights, it also underlines that the Dublin regulation (and a minimalist reading thereof) do not absolve Member States of their responsibilities vis-à-vis that Convention or other applicable international treaties, including the 1951 Refugee Convention.  Belgium and Greece are thus held individually responsible for violating their own human rights obligations.

How then is this case relevant from the perspective of shared responsibility? An interesting question is to what extent Belgium can be held responsible for the violations on the part of Greece? By virtue of the CEAS there arguably is a collective obligation on the Member States of the European Union to protect refugees, predicated on the presumption that all participating states can and will provide generally equivalent protection to those in need.

However, in the case of Greece, that presumption has been rebutted. Countless reports of NGOs and international instances such as UNHCR, Amnesty International and the European Committee of Torture have documented the structural deficiencies that plague the Greek asylum procedure. The Court therefore argues that the Belgian authorities must have been aware of the risks they were exposing the applicant to by returning him to Greece (para. 358).

I therefore wonder whether it can be argued that these authorities had a perception of risk that makes them subject to responsibility – not only for exposing the applicant to conditions in Greece that amount to violations of the Convention, but also for the violations themselves?

A valid question, especially in light of the fact that the Court has already held more than one state responsible in the past (albeit in circumstances that cast doubt on the credibility of its findings). The Court, in the Ilascu case, found that the breaches of the applicants’ rights under Articles 3 and 5 were attributable to both defendant states – Moldova and Russia.

And even though the Court does not pronounce itself on the possibility of multiple responsibility in this particular case, we may still be able to infer a difference in degree of responsibility from the respective damages that were awarded to the applicant. Pursuant to Article 41 of the Convention, Greece was held to pay the applicant some €6.000 in compensation whereas Belgium was fined to the tune of a whopping €30.000!

So where does this judgment leave us? It has dealt a severe blow to the principle of inter-state confidence in the CEAS. The Court considers that transferring states should not just “assume”, but must actively “verify” that other Member States will comply with their human rights obligations (para. 359). In practice, this means that, when an issue arises under Article 3, they are obliged to apply the so-called ‘sovereignty clause’ (read: suck it up and handle the examination of an asylum application themselves). However, this fails to remedy the principal problem: southern and southeastern European states will still receive far more asylum seekers than western European states. The question is how these problems of sharing responsibility can be better dealt with in the future?

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