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“As long as my neighbor does not protect refugees, I’ll do the same”.
Migration to the Maghreb region (Morocco, Algeria, Tunisia, Mauritania, and Libya), especially from African countries, is not a new phenomenon. Migrants and refugees from Sahel-Saharan countries have been moving to North Africa since the end of colonization, counting on religious and historical relationships with the Maghreb. Nonetheless, since 2000, the rate of migration of people from the Sub-Saharan countries to the Maghreb has been heightened by a set of factors, including political and religious violence and extreme poverty, especially in the Sahel-Saharan region. North Africa continues to be a region of transit and destination for refugees and migrants. In 2019, mixed population movements continued within and from the Maghreb, some in the hopes of reaching Europe, despite a clampdown on sea rescues by governments and other broader policy changes targeting such migration.
When refugees arrive in the Maghreb, they are already exhausted by the difficult and dangerous journey, which costs the lives of many among them. Yet their misfortune will not stop at their arrival because as soon as refugees cross the borders of a Maghreb state, they will be at the mercy of that state’s politics. These politics are often driven primarily by security interests; when it comes to the protection of migrants in general or refugees in particular, these governments become indifferent.
This paper examines three main ideas that I find essential to understanding refugee protection in the Maghreb within the current context of mobility and instability: the absence of national systems of asylum, the regional political instability exacerbating refugee suffering in the Maghreb, and the absence of a regional model that can be transposed onto the individual countries.
Absence of Legal Status of Refugees in the Maghreb
Despite the continuing pleas of refugees, national NGOs, and international NGOs, along with the high number of refugees who have died in the Mediterranean Sea over the last decade, the countries of the Maghreb choose to ignore many of the concerns expressed about the plight of refugees.
Although three out of the four North African Maghreb countries have assented to the Geneva Convention Relating to the Status of Refugees and Arab Convention on Regulating Status of Refugees in the Arab Countries, all four countries (Morocco, Algeria, Tunisia, and Libya) do not yet have a domestic legal framework regulating the issues of asylum and refugees. Signatories of international treaties are required to apply international treaty standards internally based on Article 26 of the Vienna Convention, which establishes that “every treaty in force is binding upon the parties to it and must be performed by them in good faith.” In this sense, the Vienna Convention establishes the obligatory nature of international agreements, particularly States Parties’ obligation to act in ways that promote compliance. Article 27 of the Vienna Convention states that “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” The obligation to fulfill the mandates of the treaty requires States Parties to take appropriate legislative, administrative, budgetary, judicial, and other measures towards the full realization of such rights guaranteed by the treaty.
The amendments made by the new Constitutions of Morocco in 2011, Tunisia in 2014, and Algeria in 2016 have introduced provisions for the establishment of a legal framework for refugees and asylum seekers. Article 30 of the Moroccan Constitution notes that the conditions of extradition and of granting the right of asylum are defined by law. Article 26 of the Tunisian Constitution states that the right to political asylum shall be guaranteed as prescribed by law and prohibits extradition of persons who have been granted political asylum. In the Algerian Constitution, Article 83 establishes that “[i]n no case shall a political refugee having legally the right of asylum be delivered or extradited.”
These three texts formally guarantee the right of asylum in the three states. In practice, however, these countries do not yet have domestic asylum systems that conform to the provisions of the Geneva Convention, the Arab Convention on Regulating Status of Refugees in the Arab Countries, or the OAU Convention, which governs the specific aspects of refugee problems in Africa. This lack of a robust domestic legal framework for refugee rights limits the protection efforts in these three countries and can be interpreted as a kind of tacit solidarity among the Maghreb states that disadvantages refugees and asylum seekers.
Libya, though not a party to the 1951 Convention Relating to the Status of Refugees, ratified the African Convention Governing the Specific Aspects of Refugee Problems in 1969, and it has also adopted the Arab Convention on Regulating Status of Refugees in the Arab Countries. However, like Morocco, Tunisia, and Algeria, Libya has neither a domestic legal framework for refugees nor established asylum procedures. UNHCR representatives in Libya are allowed to review asylum applications and issue refugee cards, but the cards have no legal value in Libya, and there is no official agreement between UNHCR and the Libyan authorities.
The four Mediterranean Maghreb states are required to comply with the obligations arising from their international commitments and constitutional obligations. Thus far, the laws framing the right of asylum have not yet been promulgated; the current status of laws regarding refugees in the Maghreb countries is an expression of an imprecise legal framework of protection of refugees and opaqueness regarding the procedures asylum seekers must follow. A limited number of people benefit from protection in the Maghreb countries as a result of pressure from the international community, especially the European Union, or from occasional (non-permanent) government initiatives.
Despite this lack of protection on the ground, there is little doubt that refugees in the Maghreb states are constitutionally protected as such. They have fled persecution (or risk of serious harm) in their countries, they seek substitute state protection, and it is the responsibility of the receiving states to establish mechanisms to determine their legal status.
Regional Political Instability Exacerbating Refugee Suffering in the Maghreb
Notwithstanding the optimism that has prevailed after recent political changes in North Africa, refugees are at risk because of political instability. For example, in Tunisia, refugees and asylum-seekers live in precarious situations after the closing of the Shusha camp. The absence of a legal protection framework highlights the reluctance of Tunisian officials to protect these persons and demonstrates that migration and refugee status are not priorities for Tunisian officials.
In Algeria, the waves of refoulement of migrants testify to the absence of any political will to progress in the field of refugee protection. Algerian authorities’ operations against migrants and refugees have been singled out by several damning reports. Algerian authorities have never expressed their will to effectuate their international commitments, either in the regional frameworks (Arab and African Conventions) or in the international framework (Refugee Convention) with regard to refugees and asylum seekers.
In Morocco, the optimism that prevailed after 2013, the year 25,000 migrants were granted legal status, gave way to a pessimism made worse by the delay of the adoption of a domestic asylum law. Six-year waits cast doubt on the Kingdom’s willingness to honor its obligations in regard to refugees and asylum-seekers. Thus, the migration issue in the Maghreb is a priority when it comes to negotiating with Europe, but the same issue becomes secondary when it comes to finding solutions internally.
Since the renewal of armed hostilities in 2019, Libya has witnessed a security and humanitarian crisis characterized by persistent violence and fragmentation of national institutions. Migrants and refugees are paying the price for this instability. The bombing of refugee camps is the nadir of a disaster that has persisted since 2011. Condemning this destruction, the UN special envoy for Libya, Ghassan Salamé, said: “This attack clearly could constitute a war crime, as it killed by surprise innocent people whose dire conditions forced them to be in that shelter. The absurdity of this ongoing war today has led this odious bloody carnage to its most hideous and most tragic consequences.”
Thus, the tragedies of the refugees in Libya do not stop at the absence of a domestic legal framework of protection; indeed, refugees have become direct victims of the aerial bombardments. Not only does Libya not protect refugees, it kills them as well.
The Absence of a Model Protection System in the Region
The crisis of the European refugee protection system undoubtedly has negative effects on the protection of refugees in the southern part of the Mediterranean. The Maghreb states are witnesses of the European dispute on asylum management. European disagreements over the management of migration and asylum have not encouraged the Maghreb states to set up domestic asylum systems. Justifying their decisions on the basis of national security, the Maghreb states are hiding behind their lack of material means to protect refugees and asylum seekers and the fight against illegal immigration, an avoidance of their responsibilities that pleases European nations at the expense of refugees and asylum seekers.
Furthermore, the failure of the Common European Asylum System (“CEAS”) of protection of refugees and asylum seekers does not encourage the Maghreb countries to move forward by developing national systems to fulfill their constitutional declarations and international treaty obligations.
In summary, the Maghreb states continue to violate the international treaties they have ratified (notably the Refugee Convention of 1951) by failing to develop domestic asylum systems that transparently regulate the right of asylum. On the one hand, the refugee situation in the Maghreb clearly reflects the limitations of the Common European Asylum System for the protection of refugees; on the other hand, the situation calls into question the willingness and seriousness of the Arab countries in general, and the Maghreb countries in particular, to establish mechanisms that will protect victims of persecution.
The choice of the Maghreb states to hide behind security concerns increases the tragedy of refugees in this region, which is experiencing the arrival of more and more victims of persecution. The challenge is to ensure that refugees and asylum seekers are able to benefit from the protection that their status affords, especially the right of non-refoulement. As long as the Maghreb states continue to act (or rather, fail to act) on the logic that “as long as my neighbor does not protect them, I’ll do the same thing,” refugees will continue to suffer in these host countries.
 This quote is my idea of an imaginary dialogue between the Maghreb countries.
 The Maghreb involves a portion of Africa’s northwest region that covers five nations: Morocco, Algeria, Tunisia, Mauritania, and Libya. Due to its position far from the Western Mediterranean Route of migration into Europe, Mauritania is not included in the analysis.
 Understood in its broadest sense, the Sahel-Sahara region or the Greater Sahel-Sahara region covers a vast buffer territory of some three million square kilometers, linking Mauritania in the west with Somalia in the east.
 Ousmane Sille, L’Afrique – le Maghreb – le Proche-Orient, Études internationales 35 (1970), https://perma.cc/7ZXM-J78G.
 Philippe Fargues, Four Decades of Cross-Mediterranean Undocumented Migration to Europe: A Review of the Evidence (2017), https://perma.cc/3YMY-NP65.
 1,239 migrant deaths have been recorded in the Mediterranean in 2019. Mediterranean, Missing Migrants, https://perma.cc/V82D-VYPG.
 Algeria, Morocco, and Tunisia have signed the Refugee Convention. See Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 152, https://perma.cc/9WQZ-3ZNF; States Parties, Reservations and Declarations, UNHCR, https://perma.cc/8WMN-FB23.
 Arab Convention on Regulating Status of Refugees in the Arab Countries, Council of the Arab League Resolution No. 5389, March 27, 1994, https://perma.cc/2FJJ-ZUKV [Hereinafter Arab Convention]. It should be noted that the Arab Convention does not have any role in the establishing of a domestic framework regulating the issues of asylum and refugees in the Arab countries.
 Id. at art. 27.
 Arab Convention, supra note 9. The signatories of the Arab Convention are: Algeria, Bahrain, Egypt, Iraq, Jordan, Kuwait, Lebanon, Libya, Mauritania, Morocco, Oman, Palestine, Qatar, Saudi Arabia, Syria, Sudan, Tunisia, United Arab Emirates, and Yemen.
 In Libya, UNHCR has been operating since 1991. The Libyan authorities have allowed UNHCR to register individuals from certain nationalities, namely Eritreans, Iraqis, Palestinians, Sudanese from Darfur, Somalis, Syrians, Yemenis, and South Sudanese. See UNHCR, Desperate and Dangerous: Report on the Human Rights Situation of Migrants and Refugees in Libya (Dec. 20, 2018), https://perma.cc/49MU-JVMP.
 Algeria: Inhumane Treatment of Migrants, Human Rights Watch (June 28, 2018, 12:00 AM), https://perma.cc/2K2X-BRRE.
 National Human Rights Council, Atelier sur les dispositifs de protection et integration des migrants au Maroc, https://perma.cc/AR8P-ZUZ8. According to Moroccan officials, all women and children applying are accepted. Id.
 Joint Declaration by the European Union and Morocco for the Fourteenth Meeting of the Association Council, EU Neighbours (June 27, 2019), https://perma.cc/JD3S-UJE7.
 Chandler Thornton et al., At Least 40 Killed After Airstrike Targets Migrant Center in Libya, CNN (July 3, 2019 10:47 PM), https://perma.cc/PXV5-AML8.
Suggested Citation: Rabah Aynaou, Tacit Complicity of Non-Protection in the Maghreb, RefLaw (January 6, 2020), http://www.reflaw.org/tacit-complicity-of-non-protection-in-the-maghreb.