Cyprus Mail 16 September 2020 - CM Guest Columnist
Crucial a balance is struck between genuine refugee cases and others as this month alone has seen six boats returned to Lebanon because they are carrying economic migrants
By Achilleas Demetriades
What is the legal position in relation to pushbacks or refoulement that the Cyprus Government is imposing on small vessels that are approaching Cyprus from Lebanon or Syria?
The short answer to this question is that they are incompatible with International and European Human Rights Law as well as the Acquis Communautaire.
Over the last few weeks there has been an increasing number of persons trying to enter Cyprus by boat, most likely originating from Lebanon or Syria.
The Cyprus government has employed “pushbacks” as the method for denying access to Cyprus to these people.
As I understand it, the argument is that they are neither genuine refugees nor asylum seekers and that instead that they are merely economic migrants.
This has been promoted by the minister of interior, who presented it as a huge threat to the country. In an effort to further justify the refoulement, Covid-19 and the Quarantine law have been cited as the reasons for these actions. As a result, only in September there have been six such pushbacks, as reported by the UNHCR in Cyprus.
The reality is that asylum applications have been on a steady rise since 2016. From 2,871 then to 4,559 in 2017, to 7,713 in 2018 and 12,724 in 2019. In 2020 up to the end of March there had been 2,953. It is interesting to note that in 2019 about 30 per cent of asylum applications were from Syria, 12 per cent from Georgia, 12 per cent from India and 12 per cent from Pakistan.
As can be seen, in contrast to the image that the ministry is trying to project, the problem is not a new one for Cyprus, which due to its location is a frontline country. Rather, it is a reflection of the surrounding political situation as well as the poor economic conditions of certain countries. Therefore, it is crucial that a balance is struck between genuine refugee cases and others.
There are essentially three types of legal systems applicable:
- International Human Rights
- European Human Rights
- The EU Acquis as transposed and applied by Cypriot Law.
The standard text for the first is the Geneva Convention, relating to the Status of Refugees of 1951 and its 1967 Protocol for which the UNHCR, that has an office in Cyprus, serves as ‘guardian’.
This Treaty has applied to the island since independence and its protocol was ratified in 1968. Article 33 of the Convention prohibits expulsion or return (refoulement) of a refugee where his life or freedom are threatened
The European Convention on Human Rights is also applicable along with its Protocols and in particular Article 4 of Protocol No 4 prohibits the collective expulsion of aliens.
Last but not least, one has to look at the EU Acquis as transposed into the Refugee law. It provides for the Asylum Service and the Refugee Review Authority which is slowly phased out. The Authority has been replaced by the Court for International Protection which operates as an administrative Court with additional powers to review the merits of cases brought by asylum seekers and even hear new evidence.
Sadly, the Cyprus Government has initiated an amendment to the Cyprus Constitution lowering the time to bring such actions for review from 75 to apparently 30 or even 15 days in some cases.
This appears to be a discriminatory move, which singles out this category of applicants or refugees in contravention of Article 146 of the Constitution.
One also has to consider the Quarantine law as a possible justification of what would otherwise be an action which is incompatible with the above.
The analysis here is much simpler because Article 169 of the Constitution provides that the force of International Treaties is superior to any domestic legislation.
Thus, assuming my position is correct under International or European Human Rights, the Government’s view is unfounded. Furthermore, it is in clear violation of the EU Acquis, which is also guaranteed supremacy by the Constitution.
So where do we stand in this apparent mess that the country finds itself?
On the one hand the Republic is under a clear obligation to protect the borders of the country but on the other it is also subject to Human Rights norms and the EU Acquis.
In my view its “pushback” operation while exercising border control on the high seas (let alone the territorial waters where the Acquis in any event is applicable) must be accompanied by an individual, fair and effective procedure to screen asylum seekers. The absence of such a system would, I believe, constitute a serious breach of the collective prohibition of collective expulsion of aliens and consequently the principle of non-refoulement.
Furthermore, the above cannot be overcome by the vague reference to the Quarantine law as a matter of national emergency when at airports all arrivals are given or have to provide a Covid-19 test.
It seems that there are deeper political reasons in this, which can trace their origin to the failure to properly prepare for this influx which people could see coming.
Clearly, both the UNHCR and the EU are there for assistance and I am sure that had they been asked, they could have helped.
Rather than preparing properly for this incoming problem the Government saw fit to engage in “pushback”, which as explained above does not appear to be in line with the international and European obligations of the Republic.
In fact, it appears that a Government delegation is visiting Lebanon to reach an agreement on the matter with the Government there. Little has been published about this.
A more sinister commentator could have argued that this outburst of xenophobia was not unrelated to the domestic efforts of the Government to distract attention from, say, the “Cyprus Papers” saga.
In a way though I am not surprised by this unruly behavior of the Government, which last March in total disregard of Article 14 of its own Constitution decided to block the repatriation of its own nationals and its university students, which are the future of the country.
Actually, it is reported that an NGO acting on behalf of a victim of refoulement has already applied to the European Court of Human Rights to vindicate their rights.
I guess we just have to wait and see, but in the meantime, it appears that this inhuman and illegal practice will continue on an island which in 1974 saw more than 200,000 displaced because of the Turkish invasion.
Achilleas Demetriades is a Partner at Lellos P. Demetriades Law Office LLC