The Spanish-Moroccan border: Forgotten refugee zone

 

Rabah Aynaou
RefLaw, Editorial Advisory Panel
Mohammed I University, Professor of Public Law 

For thousands of refugees in Morocco, it is increasingly difficult to reach Europe, impossible to return home, and difficult to live trapped in harsh conditions. This is the fate of thousands of people stuck on the Spanish-Moroccan border, the only land border between Africa and Europe.[1] Frustrated, refugees resort to massive assaults—”suicidal attempts”—to cross the hyper-protected barriers surrounding the two Spanish enclaves of Ceuta and Melilla,[2] which have become destinations for those who seek to reach Europe.[3]

Spain and Morocco have over the years introduced an increasingly restrictive border management system, based essentially on a pure security approach embodied in collective expulsions and prohibited access to Spanish territory.[4] Barriers around the two enclaves of Ceuta and Melilla in the north of Morocco[5] prevent refugees from accessing Spanish territory and expedite de facto “hot returns” to Moroccan territory. The construction of walls and the reinforcement of barriers all along these borders contradicts the humanist discourse of human rights and justice in Europe and symbolizes the externalization of the European borders to the southwest to contain refugees by all means.

This article analyzes the practices of Spain and Morocco towards refugees near the Hispano-Moroccan borders and aims to better understand not only the illegality of “hot returns” and repression toward refugees, but also the ways in which the European Union (“EU”) accomplishes and perpetuates the externalization of its borders to North Africa. I argue this border system illustrates the predominance of Spain’s security interest at the expense of the protection of refugees. It is also the consequence of an egotistical approach that violates the rights of thousands of refugees on both sides of the Mediterranean. Furthermore, it has resulted in an illegal management model whose victims are trapped and left at the mercy of the security forces and traffickers.

Collective expulsions of migrants and refugees have become increasingly common at land borders between Europe and Northern Africa.

 Mass deportations are commonplace at the land and sea borders of Ceuta and Melilla.[6] These “refoulement à  chaud”  (“hot returns”) push the refugees who try to cross the barriers around the two enclaves back into Morocco without any formal admission application procedures.[7] This practice is illegal under EU and international refugee law.[8] But, Spanish authorities justify such returns with their concept of an “operational border.”[9] Under this concept, Spain argues that the area between the barriers is not Spanish territory, so Spain has no responsibility for the rights of refugees intercepted there.[10]

In fact, it was not until 3 October 2017 that the European Court of Human Rights (“the court”) rejected Spain’s claimed lack of responsibility and found Spain held de jure control over refugees moving between these barriers.[11] In N.D. and N.T. vs. Spain, Malian and Ivorian applicants attempted twice to enter Spain with a group of sub-Saharan individuals via the Melilla border crossing.[12] This border crossing is made up of three enclosures, namely two six-meter external barriers and another three-meter internal barrier.[13] During the first attempt, N.D. and N.T. eventually succeeded in crossing the barriers, but by mid-afternoon, they were arrested by members of Guardia Civil, handcuffed and returned to Morocco.[14]

The court refuted Spain’s argument that the area between the fences is not Spanish territory and that migrants are not in Spain until they have crossed the police line.[15] The court found no need to establish whether the border fence between Morocco and Spain is located in Spain; rather, the court concluded that “where there is control over another this is de jure control exercised by the State in question over the individuals concerned.”[16] Therefore, from the moment N.D. and N.T descended from the fence into the area between the fences, they came under the de facto continuous and exclusive control of the Spanish authorities.[17] Thus, the applicants came within the jurisdiction of Spain for the purposes of Article 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.[18]

Furthermore, the court observed that N.D. and N.T., who were under the exclusive and continuous control of the Spanish authorities, were removed and returned to Morocco against their will “in the absence of any administrative or judicial decision.”[19] This clearly constituted an “expulsion” within the meaning of Article 4 of Protocol No. 4 of the European Convention on Human Rights.[20]

The court’s ruling in N.D. and N.T. v. Spain is an important step in the right direction in declaring the unlawful nature of “hot returns” at the Moroccan-Spanish border. Such “hot returns” are not only incompatible with Spanish law,[21] but also contrary to EU and international human rights law which prohibits refoulement.[22] Restricting access to refugee status also jeopardizes the foundation of refugee law. Nevertheless, while Spanish authorities, notwithstanding the critics, persist in returning refugees to Morocco, the European Court of Human Rights has shown that their attempts to legalize this practice are legally reversible.

Prohibition of access to Spanish territory

Spain continues to prohibit access to Spanish territory, fulfilling her ultimate goal of maintaining the security, legal and political mechanisms that Spain and Morocco established at their shared border in the 1990s. Spanish and Moroccan authorities prevent refugees from accessing the border through three levels of intervention.

(i) Moroccan authorities’ practices before refugees reach the border: Moroccan authorities are often condemned by national and international NGOs when it comes to their brutal practices towards people trying to cross the fences.[23] Interventions by security forces in the Moroccan mountains near the enclaves of Ceuta and Melilla aim to move refugees away from the border zone by dismantling their makeshift camps.[24] Such actions exacerbate the situation of refugees and do not take into consideration either their fragile situation or their need for protection; many refugees flee before the arrival of the Moroccan authorities and hide in the forest until police forces depart. Unfortunately, this strengthened coordination between Spain and Morocco, mostly based on police exchanges and the training of Moroccan agents in border surveillance, ultimately deprives victims of persecution of their right to seek international protection. This repression by proxy is a natural consequence of increased cooperation between Spain and Morocco in their fight against “illegal immigration.”

(ii) Reinforcement of the barriers around Ceuta and Melilla: Spanish authorities have constructed an advanced surveillance and barrier system to prevent refugees from entering Spanish territory at Ceuta and Melilla.[25] This advanced surveillance and barrier system consists of video surveillance cameras with night vision, motion detectors, powerful lights, a triple fence, and an equipped unit of guards.[26] Expenditures for the construction and reinforcement of the border surveillance of the two cities have reached € 33 million.[27] This system has evolved in parallel with an increase in number of arrivals in both cities to prevent them from entering Spanish territory.

(iii) Treatment after crossing the border: A successful crossing over the fences does not protect refugees against the risk of expulsion or a “hot return.”[28] Refugees who manage to cross the barriers without being intercepted are taken to Centres for Temporary Accommodation of Migrants (CETI) in Ceuta and Melilla, which are largely overwhelmed by the high numbers of arrivals there.[29]  In addition, those who apply for asylum cannot leave the enclaves until a decision has been made on their application, which may take months if not years.[30]

The strengthening of border protection—starting with the rounding up people crossing through Moroccan territory, continuing with the fortification of fences and restriction of movement in Ceuta and Melilla, and ultimately resulting in systemic expulsion—provides powerful evidence of the externalization of European borders to the southwest of the Mediterranean. [31]

European strategy to perpetuate the externalization of European borders to Africa

As part of the EU’s efforts to externalize migration management, Spain and Morocco have over the years put in place an increasingly restrictive system of border management. This system transposes the EU-Turkey model of close collaboration to stem migration to Morocco and subsequently Spain. In the context of Moroccan-Spanish relations, three arguments provide evidence of Europe’s border externalization.

(i) Activation of Readmission Agreement: On 10 December 2012 the two countries activated the Agreement Between the Kingdom of Spain and the Kingdom of Morocco on the Movement of People, the Transit, and the Readmission of Foreigners Who Have Entered Illegally (“the Agreement”), previously signed on 13 February 1992.[32] This Agreement both requires Spain and Morocco to readmit the third country nationals who illegally entered the other’s territory from their territory, thus prohibiting Morocco from objecting to receiving “hot returns” from Spain on the grounds that those being returned are not Moroccan nationals.[33] Therefore, it legitimizes the return of non-Moroccan nationals to Morocco, removing a barrier to the execution of “hot returns” for these nationals.

Although this Agreement was published in Spain in 2012,[34] it was signed during the time of King Hassan II, in different context, when the number of migrants at the time was very limited in both enclaves. On one hand, the Agreement’s publication and implementation under current circumstances, where numerous people crossing borders, has triggered a series of critiques by NGOs because it opens the door for security forces to violate the rights of refugees,[35] while enabling their “hot return” by the Spanish authorities.[36] Another critique might note how both countries’ practice of refoulement contradicts the Agreement’s requirements to respect the rights of intercepted persons.

(ii) European Neighborhood Policy: This policy is part of regional strategy to encourage general, regular migration between countries that cooperate with the EU.[37] Under this Neighborhood Policy, the EU presents Morocco as “a privileged partner for the promotion of human rights.”[38] In 2007, the United Nations High Commissioner for Refugees (“UNHCR”) reopened a full-fledged office in Morocco and Morocco’s signing of the accord de siège clearly expressed increasing cooperation between Moroccan authorities and UNHCR operations in Morocco.[39] This cooperation focused on “the protection of refugees within broader mixed migratory movements affecting Morocco and the North African region.”[40] More recently, Morocco’s new migration policy, inaugurated September 2013,[41] made Morocco a so-called safe zone where potential asylum seekers can apply for and receive protection, even though before this policy, Moroccan officials refused to recognize refugee status. As a result, the EU may feel exonerated from its obligations towards refugees, and therefore have fewer qualms about strengthening its borders.[42]

(iii) Primacy of economic interests over the protection of the rights of refugees: The preeminence of economic interests takes precedence over the protection of the rights of refugees. Spain is Morocco’s largest trading partner. Bilateral trade flows have doubled in the last six years to reach an aggregate value of 12.6 billion Euros, according to the latest data reported by the Spanish Institute of Foreign Trade (ICEX).[43] A fishing agreement between Morocco and Spain also allows 49 trawlers to operate in the southern coast of Morocco.[44] This convergence of economic interests and panoply of agreements takes precedence over the protection and interests of migrants and refugees.

Towards the transposition of the EU-Turkey model

In March 2016, the EU and Turkey agreed to close the primary route through which hundreds of thousands of immigrants crossed from Turkey to reach European territory.[45] This agreement provides, inter alia, that all individuals who arrived in Greece from Turkey and do not apply for asylum or whose asylum applications are refused will be returned to Turkey.[46] In return, the EU has already begun providing € 3 billion in financial assistance to Turkey to properly integrate these “exiles” after they are returned to Turkey.[47] The EU has also agreed to quicken talks concerning Turkey’s desire to join the EU, meeting a key and long-standing Turkish demand.[48]

The fact that the number of refugees entering the EU from Turkey has fallen sharply since 2016[49] encourages leaders in Spain to apply this agreement to their its relations with Morocco. Hence, since 2016, the EU-Turkey agreement has inspired the Spanish government as a model that Spain would like to adopt with Morocco. For the Spanish government, cooperation and development aid in the countries of origin is the key to finding a solution to immigration.

José Antonio Nieto, Spanish Secretary of State for Security, stated “Morocco is making a considerable effort to manage with loyalty its cooperation with Spain on immigration.”[50] He also stated that it is “necessary to put in place a stable and well-ordered policy strategically to address this migration issue.”[51] For him Morocco, has “a long-term role in immigration, without receiving much in return, also needs help.”[52] Other Spanish officials, fearing increased traffic since the closure of the eastern route to Europe in 2016, have also repeatedly reiterated their willingness to negotiate a more comprehensive, joint-immigration agreement with Morocco.[53]

Conclusion

Although Morocco’s position has always been firmly opposed to the construction of migrant and refugee reception centers on its territory,[54] its fait accompli policy has made Morocco an open refugee camp by proxy. This situation has worsened following the closure of the Balkan roads and the pressure on the roads of the western Mediterranean.

In this context, refugees become victims of the converging political, economic and security interests between Morocco and Spain. Until the development of a new policy, other than the restrictive security approach adopted to date, Spain will remain an example of EU states managing migration through fences and restricted entry to Europe. It is in this sense that Greece has rushed to reinforce its land border with Turkey in 2012, followed by Bulgaria’s strengthening of its border with Turkey in 2015, and Hungary in 2015. Morocco will remain a prototype for the externalization of European borders for many years to come.

Both countries and the EU bear a great responsibility for violating the standards of protection for refugees on their borders in the name of security. Morocco, Spain and the EU are pursuing a security policy of strengthening borders and thus contributing to the violation of the rights of refugees. Moreover, calls to apply EU-Turkey model to Spain and Morocco and the conclusion of a readmission agreement with EU are signs of a European demand that endangers the lives of thousands of refugees.

[1] Raphael Minder, At Spanish Enclave, a Debate Over What Makes a Border, NY Times (Nov. 24, 2015), https://perma.cc/QWH8-M3UN; see also Second Campaign to Document Migrants in Morocco: National Appeals Commission Holds Its Second Meeting, Kingdom of Morocco National Human Rights Council, https://perma.cc/Z8YS-NWB5 (according to the National Council of Human Rights, 28,400 regularization files representing 113 nationalities were filed by migrants between December 15, 2016 and December 31, 2017, after an initial filing by 23,096 irregular migrants in 2014).

[2] See Said Saddiki, Ceuta and Melilla Fences: a EU Multidimensional Border? (presented at the Annual Conference of the Canadian Political Science Association), https://perma.cc/6WZ7-2F9R; see also Minder, supra, note 1.

[3] Laurent Ribadeau Dumas, Points de Passage de Migrants, Ceuta et Melilla, Gibraltar Espagnols au Maroc, Franceinfo (Sep. 1, 2017), https://perma.cc/UA2W-S3BM.

[4] See Francesco Bosso, Cooperation-based Non-entrée: What prospects for legal accountability? an IFHV Working Paper, Vol. 6(1), 7-8 (2016),  https://perma.cc/GSY2-TEB8.

[5] See Saddiki, supra, note 2 at 3-4, 10.

[6] Elsa Tyszler, Ceuta & Melilla: Centres de Tri à Ciel Ouvert aux Portes de L’AFRIQUE, 37-38 (2015), https://perma.cc/VF6N-LT8D.

[7] Id. at 38.

[8] These deportations violate the international principle of non-refoulement, see Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 137; Charter of Fundamental Rights of the European Union, art. 18, Dec. 7, 2000 (adopted in Treaty of Lisbon, art. 8, Dec. 17, 2007, 2702 U.N.T.S. 47938).

[9] Minder, supra, note 1.

[10] N.D. and N.T. v. Spain, Nos. 8675/15 and 8697/15, Eur. Ct. H.R. ¶ 44 (Oct. 3, 2017), https://perma.cc/U3G6-HTCQ.

[11] Id. at ¶¶ 54-55.

[12] Id. at ¶¶ 1, 9–15.

[13] Id. at ¶ 12.

[14] Id.

[15] Id. at ¶¶ 17, 44.

[16] Id. at ¶ 54.

[17] Id.

[18] Id. at ¶ 55.

[19] Id. at ¶ 107.

[20] Id. at ¶ 122.

[21] Arts. 26(2), 57(1), 58(3) of Ley Orgánica 8/2000, de 22 de diciembre, de reforma de la Ley Orgánica 4/2000, de 11 de enero, sobre derechos y libertades de los extranjeros en España y su integración social, BOE-A-2000-23660, (Dec. 23, 2000), https://perma.cc/T57U-9CFX.

[22] See Convention Relating to the Status of Refugees art. 33, July 28, 1951, 189 U.N.T.S. 137; Charter of Fundamental Rights of the European Union, art. 18, Dec. 7, 2000 (adopted in Treaty of Lisbon, art. 8, Dec. 17, 2007, 2702 U.N.T.S. 47938).

[23] Duncan Breen, Abuses at Europe’s borders, 51 Forced Migration Rev. 21, 21-22 (2016), https://perma.cc/7TSL-729T.

[24] Ashifa Kassim, Morocco Destroys Migrant Camps Near Border with Spanish Enclave, The Guardian (Feb. 11, 2015), https://perma.cc/JQ9S-7NY8.

[25] Amnesty International, Fear and Fences: Europe’s Approach to Keeping Refugees at Bay, 15-16 (2015), https://perma.cc/4NFC-LM5H.

[26] Id. at 17.

[28] Spain: Ceuta Migrant Tragedy – Deplorable Disregard for Human Life, Amnesty International (Feb. 9, 2015), https://perma.cc/SL6B-ZJZE.

[29] Amnesty International, supra, note 25 at 22.

[30] Id.

[31] For additional information on the programs and policies employed by Europe as a means to externalize her borders, see Henriette Ruhrmann & David FitzGerald, The Externalization of Europe’s Borders in the Refugee Crisis, Working Paper No. 194, Center for Comparative Immigration Studies (2016), https://perma.cc/2QYG-T5M6; see also Duncan Breen, supra, note 23 at 21-22.

[32] Agreement Between the Kingdom of Spain and the Kingdom of Morocco on the Movement of People, the Transit, and the Readmission of Foreigners Who Have Entered Illegally, Spain-Morocco, BOE-A-1992-8976 (Feb. 13, 1992) https://perma.cc/5CBE-EW8G.

[33] Id. at art. 1.

[34] Provisional Application of the Agreement Between the Kingdom of Spain and the Kingdom of Morocco on the movement of people, transit, and the readmission of foreigners who entered illegally, signed in Madrid on 13 February 1992, Population Europe Resource Finder And Archive, https://perma.cc/98MK-UN75.

[35] See, e.g., Press Release, Human Rights Watch, Spain/Morocco: Protect Migrants, Asylum Seekers (Mar. 24, 2014), https://perma.cc/F68A-MX6Z.

[36] But see art. 8(d) of the Agreement which allows a state to refuse to accept an expelled third country national if the national faces a risk of being mistreated in her deportation destination.

[37] For general information about Europe’s Neighborhood Policy with Morocco, the legal basis for EU-Moroccan relations, see European Commission, European Neighbourhood Policy And Enlargement Negotiations: Morocco https://perma.cc/K3KU-5TME; see also High Representative of the Union for Foreign Affairs and Security Policy,  Joint communication to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the Regions, European Commission (Nov. 18, 2015), https://perma.cc/Z9WZ-UBKY.

[38] Diane Kitmun, Le Maroc gère les flux des indésirables, 2011/1 Plein droit n° 88, 28, 30 (2011), https://www.cairn.info/revue-plein-droit-2011-1-page-28.htm.

[39] See Oum-Hani Alaoui, Migratory Trajectories: Moroccan Borderlands and Translocal Imaginaries, (Sept. 2009) (unpublished Ph.D. dissertation, Princeton University) (on file with author); see also Andrej Mahecic, Morocco and UN refugee agency sign agreement to strengthen cooperation, UNHCR (July 20, 2007), https://perma.cc/J4X7-3EYJ.

[40] Oum-Hani Alaoui, supra, note 39.

[41] See Morocco’s new migration policy masks continued abuses, IRIN (Feb. 18, 2014) https://perma.cc/NH9F-VFST; on September 10, 2013, Morocco initiated a new migration and asylum policy for foreign residents, especially for those lacking documentation. The decision is regarded as a turning point in Morocco’s commitment to human rights for asylum seekers, for more information see Haim Malka, Destination Maghreb: Changing Migration Patterns in North Africa, Center for Strategic & International Studies (May 2, 2018), https://perma.cc/X9Y3-SWRU.

[42] Diane Kitmun, supra, note 38 at 30.

[43] España se consolida como primer socio comercial de Marruecos, ICEX (May 2017), https://perma.cc/2Y4K-PZQA.

[44] See ACCORD DE PÊCHE: La Filiere Espagnole Retient Son Soufflé (Feb. 27, 2018), https://perma.cc/CLP3-2J7R.

[46] European Council, EU-Turkey Statement, § 1 (Mar. 18, 2016), https://perma.cc/U8MX-G74R.

[47] Id. at § 6.

[48] Id. at § 8.

[49] Refugees & Migrants Sea Arrivals in Europe, UNHCR (Dec. 2016), https://perma.cc/7WYG-T4MD.

[50] L.L. Caro, España plantea para Marruecos un acuerdo como el de Turquía para gestionar la inmigración, ABC España (Feb. 12, 2018), https://perma.cc/AYR6-29NH.

[51] Id.

[52] Id.

[53] Dylan Kuperblum, L’Espagne veut un plan d’immigration conjoint avec le Maroc, TELQUEL (Feb. 14, 2018), https://perma.cc/5T6T-9BXE.

[54] See the declarations of the Moroccan Foreign Minister Saâdeddine El Othmani in August 2012 that Morocco would not be the “gendarme of the European Union,” https://perma.cc/M7GS-JWNF.

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