The Nordic Countries and Fortress Europe

1
The Nordic Countries and Fortress Europe

• Professor Martin Scheinin
• 4th ETMU Days 2007

2
Bits of historical background

• The Nordic countries as Lutheran (Christian)
  states nationality, public service, identity
• Finland after 1809 the creation of nationhood
  and resistace to Russification based on the
  Swedish Constitution of 1772 and 1789
• The Cold War and the Iron Curtain
• The pull of human rights (the right to leave)
• The push of Realpolitik and a 1000 km land border
  with the Soviet Union
• Ratification of the Refugee Convention Denmark
  1952, Norway 1953, Sweden 1954, Iceland 1955,
  Finland 1968

3
Normative background

• Universal Declaration of Human Rights 1948
• Art 14.1 Everyone has the right to seek and to
  enjoy in other countries asylum from
  persecution.
• Refugee Convention 1951
• Art 1 definition of refugee
• Art 33 prohibition against non-refoulement
• International Covenant on Civil and Political
  Rights 1966
• Art 12.4 Everyone shall be free to leave any
  country, including his own.
• Art 13 An alien lawfully in the territory of a
  State Party to the present Covenant may be
  expelled therefrom only in pursuance of a
  decision reached in accordance with law and
  shall, , be allowed to submit the reasons
  against his expulsion and to have his case
  reviewed
• CSCE (later OSCE) Helsinki Final Act 1975

4
Fortress Europe

• Free movement of labour as one of the four
  fundamental freedoms of a single market (EEC -gt
  EU)
• Personal extension from workers to EU citizens
  and lawful residents
• Geographical extension to EEA countries
• Sharp distincton between eradication of internal
  boarders and collective responsibility over
  external borders

5
Facts about the burden2006 Global Trends
(UNHCR 2007)
6
More facts
7
UNHR statistics on Nordic Countries, end-2006
8
Lethal consequences of Fortress Europe

• Since 1993 the NGO UNITED has monitored the
  deadly results of the building of a 'Fortress
  Europe'.
• More than 6700 deaths of refugees and migrants
  have been documented up to now. Great majority of
  the deaths occur at sea.
• These deaths can be put down to border
  militarisation, asylum laws, detention policies,
  deportations and carrier sanctions.
• They are linked to the carrying out of decisions
  taken on highest political level the Schengen
  Treaty, the Dublin Convention and EU border
  control programs.

9
What can the Nordic Countries be blamed for?

• Restrictive domestic policies
• Involvement in restrictive European-level
  policies
• Outsourcing of border controls through carrier
  sanctions
• Fast-track procedures allowing removal before
  final decision
• Bypassing judicial review of deportation
• Breaching the rule of non-refoulement
• Unlawful, unnecessary or disproportionate use of
  force

10
Restrictive domestic policies Finland

• Tradition from the times of the Cold War
• Often only a handful of asylum applications are
  successful per year
• 2006 38 2005 12 2004 29 2003 8 2002 14
• Compensated through the adoption of quota
  refugees throuh the UNHRC and fairly generous
  humanitarian status
• the quota is not always filled
• EU harmonization is now forcing Finland towards
  stricter rules on humanitarian (subsidiary) status

11
Carrier sanctions

• EU Directive 2001/51/EC imposes an obligation to
  return persons arriving without proper travel
  documents and to impose on airlines and other
  carriers sanctions
• Territorial outsourcing of border controls
• Privatization of border controls
• Chilling effect on international protection
• Complicity in the denial of the human right to
  leave
• Disagreement as to sanctions apply even when a
  person is an asylum-seeker
• E.g. Denmark applies the sanctions nevertheless
• Finland and Sweden allow discretionary exemptions
• France, Greece, Lithuania, Luxembourg,
  Netherlands and Spain are more liberal

12
Fast-track procedures

• UN Human Rights Committees Concluding
  Observations on Finland 2004
• 12. The Committee notes the lack of clarity as to
  the implications and consequences of the
  amendment to the Aliens Act of July 2000
  providing for accelerated procedures in the case
  of asylum-seekers with manifestly ill-founded
  claims and applications by aliens from a "safe"
  country, as regards both the suspensive effect of
  an appeal and the legal protection available to
  asylum-seekers.
• The State party should ensure that legislation
  and practice in this area are compatible with
  articles 2, 6, 7 and 13 of the Covenant and, in
  particular, that appeals have a suspensive effect.

13
Breaching the rule of non-refoulement

• Agiza v. Sweden (Communication 233/2003)
• Sweden violated the Convention Against Torture
• Alzery v. Sweden (Communication 1416/2005)
• Sweden violated article 7 of the Covenant on
  Civil and Political Rights (prohibition against
  torture and related practices)
• Dar v. Norway (Communication 249/2004)
• Norway breached article 22 of CAT by deporting a
  complainant to Pakistan but remedied the breach
  by taking him back and granting residence

14
Excessive use of force

• European Committee for the Prevention of Torture,
  report on visit to Finland 2003
• 57. .. the delegation heard claims from various
  sources (and, in some cases, found evidence) of
  highly questionable practices, such as the
  involuntary administration of medication (cf.
  paragraph 36), the carrying out of deportations
  without prior notice to the persons concerned or
  the exercising of psychological pressure
  (including by threats of forcible administration
  of tranquillisers) on persons after a failed
  deportation attempt.
• 37. ..The administration of medication to persons
  subject to a deportation order must always be
  carried out on the basis of a medical decision
  taken in respect of each particular case the
  taking of such a decision necessarily involves
  that the person concerned has been physically
  seen and examined by a medical doctor. ...
• Excessive use of force (by CIA operatives) at
  Bromma airport was one of the violations by
  Sweden of ICCPR article 7 in Alzery v. Sweden