EU-IGC: Right of asylum may remain between EU states
01 March 1997
The Spanish government has withdrawn its demand for the elimination of the right of asylum within the EU for citizens of member states, having been unable to overcome the strong resistance by major international humanitarian organizations including the UNHCR and Amnesty International. The demand, hitherto presented by the Spanish as non-negotiable, has been replaced by a less ambitious goal of limiting the right to three special circumstances: the existence of a state of emergency; the violation by a member state of the principle of democratic government; and a decision to that effect taken by a member state, although this would have effect for six months at most.
The juridical status of the proposed new regime would also be of a more limited nature, since it would not be incorporated in the body of the new treaty to come out of the intergovernmental conference, but in an annexed protocol, thus allowing any member state to add a clause excepting itself from the new regime. The final defeat of the Spanish government on this issue took place on 26 February, when the Portuguese Supreme Court rejected the Spanish authorities' application for the extradition of José Luis Telletxea, a Basque accused of assisting ETA. The support which he received from many quarters included that of several leading members of Portugal's ruling party, the deputy speaker of the Assembly, and various intellectual figures, who denounced the use of torture in the Spanish state and the violation of the human rights of Basque political prisoners. The Spanish government called in the Portuguese ambassador to whom it made a formal protest.
The original Spanish proposal
The Spanish government has been campaigning to limit the right of asylum within the EU since the first discussions on the Extradition Convention (which is now before national parliaments for ratification). Support from other governments led to a statement in the Presidency Conclusions to the European Council in Dublin on 13-14 December 1996. This asked the IGC negotiators:
"to develop the important proposal to amend the Treaties to establish it as a clear principle that no citizen of a Member State of the Union may apply for asylum in another Member State..."
The Spanish proposal to the IGC on 4 February read as follows:
"Every citizen of the Union shall be regarded, for all legal and judicial purposes connected with the granting of refugee status and matters relating to asylum, as a national of the Member State in which he is seeking asylum.
Consequently, no State of the Union shall agree to process an application for asylum or refugee status submitted by a national of another State of the Union."
Their paper goes on to argue ways of getting round the provisions of the Geneva Convention, especially Articles 1A, 3 and 33 and of exploiting the weak limits placed on changing international treaties under the Vienna Convention on the Law of Treaties.
In remains to be seen how the Dublin Presidency Conclusions will be interpreted in the new IGC treaty to be presented to the Amsterdam European Council on 16-17 June in view of the new proposals from Spain.
EC Treaty amendment to establish a principle that no citizen of a Member State may apply for asylum in another Member State, Discussion paper, SN/507/97 (C 8), Conference of the Representatives of the governments of the Member States, 4.2.97; letter from Office of UNHCR to the Dutch Presidency, 3.2.97.