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September 11, 001 has opened the world up. The events of September, 11 have demonstrated that terrorism can affect, in its most horrific and inhuman form any part of the world at any time and no one can feel safe unless this civilization-eating monster is completely eradicated from our planet. The European reaction to the events of September 11 was a) to sympathise with the United States; b) to declare that the Member States were willing to support the action each according to its means; c) to insist on the need to avoid impulsive and hasty responses; and d) to step up its involvement in anti-terrorist action. Consequently, the EUs task was to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States. Thereby, on 7 December 001, the Council of the European Union adopted four Acts by written procedure. These measures were simply circulated to EU governments and adopted unless any objections are raised on terrorism. None of them were subject to any form of democratic scrutiny, at least at the EU level, before adoption and in part these measures also circumvent democratic scrutiny over other proposals. Moreover, these legal documents significantly lack human rights component as it is spelt in international human rights and particularly refugee law. Also, to a large extent, the application of these measures is not legally accountable either. In the present article, I intend to test the adequacy of EU policy responses to the terrorist threat and the extent to which these measures are applicable and justifiable within the meaning of international law.


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IntroductionSeptember 11, 001 has opened the world up. Dramatic as this sounds it is a fact. This is the day when the world realised the true cost of terrorism. However, this was not the day that terrorism was born, terrorism has been in existence for many decades, if not hundreds of years, and it has been tolerated or, even seeded, as long. The events of September, 11 showed that terrorism can shown up in its most horrific and inhuman form in any part of the world at any time and no one can feel safe unless this civilization-eating monster is completely eradicated from Earth. Immediately after that, US President Bush launched a war against terror and called on Europe to face the truth about terrorism and support the US in the war against it. In turn, the European reaction to the events of September 11 was a) to sympathise with the United States; b) to declare that the Member States were willing to support the action each according to its means; c) to insist on the need to avoid impulsive and hasty responses; and d) to step up its involvement in anti-terrorist action. States are particularly sensitive to either outside or inside influences and responsive to apply the mechanisms of state regulation to eliminate undesirable intervention into the status quo in the areas falling within their competence. It is, therefore, not surprising that that state sensitivity is more likely to be affected when and if there is a serious threat to stability and sustainability of countrys political and social welfare. It is a sense of threat that mobilises political activity and initiative that later turn to policy development and formulation. The perceived threat may become an important detonator to the creation and transformation of migration and asylum policies and the formula threat-challenge-response has been an actual vehicle for policy-making and implementation for many years. In turn, states are supposed to act in the interest of the majority of people and guarantee effectiveness and adequacy of public awareness and policy responses. The threats might be, of course, illusive and exaggerated, but nevertheless they render a solid ground for governments to react and take assumedly appropriate measures. Not surprisingly, the EUs, as a union of states, objective is to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States. Thereby, on 7 December 001, the Council of the European Union adopted four Acts by written procedure i) Common position on combating terrorism, ii) Common position on the application of specific measures to combat terrorism, iii) Regulation on specific restrictive measures directed against certain persons and Entities, iv) Implementing Decision establishing the list provided for in Article () of the Council Regulation. These measures were simply circulated to EU governments and adopted unless any objections are raised on terrorism. None of them were subject to any form of democratic scrutiny, at least at the EU level, before adoption and in part these measures also circumvent democratic scrutiny over other proposals. These legal documents significantly lack human rights component as it is spelt in international human rights and particularly refugee law. Also, to a large extent, the application of these measures is not legally accountable either. Below, I intend to test the adequacy of EU policy responses to the possible terrorist threat and the extent to which these measures are applicable and justifiable in the European context of international law. I. General observations1. Lack of legal interpretation The Treaty of Amsterdam has inserted a specific reference to the fight against terrorism into Article of the EU Treaty (ex Article K.1), thereby allowing the Member States to adopt common positions, decisions, framework decisions and conventions in order to establish closer co-ordination in this field. It also assigned the task of co-ordinating the fight against terrorism to the European Police Office (Europol). With the relevant European Convention having come into force on 1 October 18, police co-operation on terrorism under the auspices of Europol began on 1 January 1. Furthermore, the European Council reached political agreement, subject to parliamentary scrutiny reservations by three delegations, on the Framework Agreement on combating terrorism at the EU Justice and Home Affairs Council on 7 December 001. The Framework Decision defines terrorist aims and offences and establishes thresholds for minimum/maximum penalties for various types of offence. When defining terrorist aims, the Council opted for a wording that strikes a balance between the need to punish terrorist offences effectively and the need to guarantee fundamental rights and freedoms, ensuring that the scope could not in any circumstances be extended to legitimate activities. Now, it should be observed that none of the four measures adopted on December 7th was the proposed Framework Decision harmonising national law on terrorism, which was the subject of the above political agreement. The first two of the four measures were Common Positions based on both Articles 15 and 4 of the EU Treaty. Article 15 provides that the Council shall adopt common positions Member States will ensure that their national policies conform to the common positions. At the same time, Article 4 stipulates respectively that in the areas referred to in this Title, Member States shall inform and consult one another within the Council with a view to co-ordinating their action. This all means that these measures address matters both within the scope of the Common Foreign and Security Policy (CFSP) and within the field of Co-operation in Justice and Home Affairs (CJHA). Further, the Council Common Position on combating terrorism, is based largely on the UN Security Council Resolution 17 of 8 September 001, which was passed on 8 September in the immediate aftermath of the 11 September attacks on the USA. There are however very significant differences worth to mention here. Point (a) of the Security Council Resolution says that states shall refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists. Article 4 of the EUs Common Position is instead worded to require Member States to prevent the public from offering any form of support, active or passive to such persons or entities. The change of meaning by the EU fails to distinguish between individuals who consciously assist those involved in terrorist acts and those who simply share the same goals as the terrorists but who do not pursue these goals by violent means or knowingly assist with the preparation of violent acts. Nor does this EU definition distinguish between support for terrorist groups and liberation movements, as does the Statement attached to the proposed EU Framework Decision on harmonising national laws on terrorism agreed by the Justice and Home Affairs Council on 6-7 December.. Refugees and asylum-seekers in the context of anti-terrorism measuresThe 1 men, who hijacked the planes that crashed into the World Trade centre and Pentagon, killing more than 6,000 people, were foreigners who had been in the US from a week to several years. Now, as a matter of fact, there is not a single EU member state that has not been affected by migratory movements. The continents strong economies and liberal democracies have been attracting increasing numbers of economic migrants and people in need of protection. For instance, in 18, of the EUs 74 million people, 1 million were immigrants, of which 1 million were from outside the Union. At present, these numbers are steadily high. Immigration and asylum were, therefore, perceived by public and authority as an advantageous loophole for potential terrorists or their associates to cross illegally the Unions external border and to assume their criminal activity. One of the EU serious concerns became that European States and the US should tighten their border controls following the attack on September 11 to protect its territory from terrorists. Consequently, then there arises a significant point of consideration. Whatever approach is taken towards refugees and asylum seekers, in my view, it is necessary to ensure that this category of vulnerable people do not become victims of recent events. All persons requesting asylum should therefore be granted access to a procedure in the EU Member State. In order to implement the 151 Refugee Convention in good faith, it is essential to determine whether an applicant fulfils the requirements of the Convention. Automatic bars to consideration of asylum claims, even of suspected criminals, are thus not in conformity with the Refugee Convention. In addition, because exclusion from refugee status may have potentially life-threatening consequences, such decisions should be made within the asylum procedure, by an authority with expertise and training in refugee law and status determination. Undoubtedly, it is equally important to ensure that criminals committing or planning serious crimes, such as terrorists, do not take advantage of the refugee protection system. Member States have a responsibility to implement the exclusion clauses of the Geneva Convention rigorously to fight such abuses. Indeed, the exclusion clauses contained in Article 1(f) of the Refugee Convention not only permit, but clearly oblige the contracting states to exclude certain categories of individuals from protection as refugees. The rationale underlying the exclusion provisions is that certain acts are so grave as to render their perpetrators undeserving of protection as refugees, and the receiving country must be protected from persons who present a danger to public safety or national security. In line with UN Security Council Resolution 17 and in accordance with international refugee case law, exclusion of persons involved in terrorist acts from refugee status may be based on either of the three grounds listed in the exclusion clause of Article 1(F), depending on the circumstances of the case. The last seven points in the EUs Common Position, Article 11 to 17, are not binding in the UN Security Council Resolution, but there are in the former. Article 16 saysAppropriate measures shall be taken in accordance with the relevant provisions of national and international law, including international standards on human rights, before granting refugee status, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts. The Council notes the Commissions intention to put forward proposals in this area, where appropriate under EU law this Common Position is binding on all Member States and will mean that all asylum-seekers and refugees are subject to vetting by the police and security services before their status can be granted. In effect a file will have to be created on each person/family as to their political and trade union activity in their country of origin or any other country they have stayed in. And, certainly in the new UK Anti-Terrorism, Crime and Security Act, they would never know what intelligence or suspicions had been recorded against them. This provision, taken in conjunction with Article 4 of the EU Common Position covering any form of support, active or passive for terrorist activities, could mean that a person who had helped raise funds to support the humanitarian needs of , say PKK prisoners in Turkish jails, could be refused refugee status. This is a gray area in the European asylum and migration policy, which according to Article 18 of the Charter of Fundamental Rights is at least party a human rights policy and should contain elements far more favorable for those affected than is the case under the national political process. Moreover, the interface of surveillance and intelligence-gathering to combat terrorism and illegal immigration can easily be combined. At the end of December the UK placed undercover MI6 Asian operatives inside the Sangate detention center in northern France. The MI6 (the UKs external intelligence service) operatives were supported by a team of 5 Special Branch officers providing logistical and intelligence support. The Special Branch is comprised of specially trained police officers who work in plainclothes, are proficient in at least one foreign language and who monitor the activities of specific foreign national or ethnic groups resident in the UK. The principal caveat here is that the matter of asylum should not be tied with, perhaps, legitimate and justified restrictive approaches against illegal migrants. It is true that immigration and asylum polices have become increasingly interdependent and incorporated plenty of issues similarly important for both areas. But improving effectiveness and operational capacities in dealing with refugees and immigrants does not necessarily mean developing capacities to stem illegal migration and vice versa. These objectives are even intentionally placed under different pillars of Community law. My overall argument is that asylum questions should be dealt within the context of freedom of movement of persons, not as a means to sustain the border control and fight terrorism. After all, the tightening of the border control and asylum regime undermines the concept of free movement as such, which is premised on the hob of the free market ideology of the EU. In the event, it is incompatible with the supreme goals of the Union. Summing up this point, I would like to share the AGIT Groups point of view forwarding that the starting point for EU policy on immigration has to be based on a positive view of immigration, against which any restrictions must be justified. The actions taken against illegal migrants and terrorists should not affect movement of potential vulnerable refugees. . Absence of legal and democratic scrutinyA standard reproach concerning the EU legal and democratic supervision is that the scrutiny is insufficient. Democratic deficit has always existed in the EU, especially prominent after the Single European Act (SEA) in the mid-180s. In a narrow sense, the democratic deficit is the gap between the powers of the European Parliament and EUs executive bodies. It was accentuated by the SEA and subsequent treaty changes that transferred responsibility for a wide range of policy areas from the national to the EU level of government. Before such large-scale transfers, national parliaments had the legislative authority to enact laws in the policy areas concerned. At the EU level, the European Parliament shares legislative authority with the Commission and, primarily, the Council. European rules are often held to be excessively detailed and in some cases appear to neglect national practices and the specific way in which each Member State carries out certain policies. As such, they run counter to traditions and identities, i.e. the way in which the peoples of Europe have built up their nations over the centuries. Moreover, they do not take account per se of the distribution of powers which certain Member States have introduced between the national level and the regions, particularly the regions which have legislative powers. The matter of powers emphasises certain shortcomings in the way the Union operates- lack of clarity, stemming from the complexity of the procedures and the number of instruments; - lack of accountability when the decision-making process is obscured by complexity, when those whom the citizens can sanction are not always those who take the decisions or are reluctant to shoulder their share of responsibility before the people who voted them in, democracy is ill-served; - lack of proximity, stemming from the fact that the principle of subsidiarity is not always respected; - lack of effectiveness protracted decision making, what Europe does being not in line with the main expectations of its citizens. Clarity, accountability, proximity, effectiveness there is no questioning the objectives, but how to attain them needs to be examined carefully. The adoption of the two Common Positions by the Council of the European Union (the 15 EU governments) by written procedure were made under Article 15 of the Treaty on European Union, which gives a very general power simply to adopt common positions and Member States shall ensure that their national policies conform to the common positions. Common Positions are thus binding on all EU Member States, but do not have to be submitted to national or European parliaments for scrutiny, they are simply adopted. In these two instances the measures adopted cover both Common Foreign and Security Policy (CFSP) and third pillar issues on police and criminal cooperation (Title VI of the TEU) and the European Communitys migration and asylum policy (Title IV of the ECT). By choosing to adopt these measures as Common Positions, the Council has not only by-passed the European Parliament, it also means that their validity cannot be challenged before the Court of Justice.As European leaders struggle to sell the concept of European integration to their citizens, they handicap themselves by failing to provide effective channels of accountability, and by perpetuating the democratic deficit. Changes made as a result of amendments by treaties of Maastricht and Amsterdam should have make Europe more real to its citizens. The democratic deficit can only be addressed by a wholesale reform of the EU institutions aimed at making them accountable to the citizens of Europe instead of to the leaders of the member states. II. Legal appraisal 1. Common Position 001/0 This is clearly based very closely on Security Council Resolution 17 (001), which, as mentioned earlier, was adopted shortly after the attacks on the USA (8 September). In fact, Articles 1 to 15 of this Common Position correspond in turn to points 1(b) to (d), (a) to (g) and (a) to (e) of the Security Council Resolution.However there are certain differences between the Resolution and the Common Position. They are as followsa) the last seven points, in Articles 11 to 17 of the Common Position, were not binding obligations in the Security Council Resolution; the Security Council merely call[ed] upon states to take the relevant measures.b) in point 1(d) of the Resolution, states were required to prevent their nationals and entities within their jurisdiction from providing funds to terrorists. However, Article of the Common Position appears to impose a total prohibition of any funds to such persons. It is questionable whether the Council can impose prohibitions outside Member States jurisdiction.c) in point (a) of the Resolution, states were obliged to refrain from supporting entities or persons involved in terrorist acts. Article 4 of the Common Position as worded instead requires Member States to prevent the public from offering any form of support, active or passive, to such persons or entities. This change to the meaning of the Resolution is questionable in the absence of any clarification of such a prohibition, to distinguish between individuals who knowingly assist those involved in terrorist acts with their plans and those who merely share the same goals as the terrorists, but do not pursue those goals by violent means or knowingly assist with the preparation of violent acts.Also, parts of this Common Position are potentially questionable from a legal point of view. Articles 10, 16 and 17 deal with subjects which form part of the European Communitys migration and asylum policy. As such it is doubtful that the EU can adopt a foreign policy measure affecting these subjects, thereby circumventing the European Parliament and the European Court of Justice. Similarly, points 1, 5, 8, and 11 deal with police and criminal law issues. These points, particularly point 1, arguably go beyond the powers conferred on the Council by the EU Treaty when it adopts a third pillar Common Position, since the Treaty implies that third pillar Common Positions are not binding and also makes clear that the Council must adopt a framework decision if it wishes to harmonise national law. In this case the Council purports to bind Member States and to harmonise national law by use of a Common Position. Again there is a lack of judicial and democratic accountability, since (unlike other third pillar measures) the European Parliament does not have to be consulted on Common Positions, their validity cannot be challenged before the Court of Justice, and national courts cannot ask the European Court questions about their validity or interpretation.. Common Position 001/1 The second Common Position addresses the application of specific measures to combat terrorism. First of all, it defines terrorist act in several ways (Article 1()). This definition comes directly from the Councils political agreement of December 001 on the proposed framework decision on terrorism. More precisely, Article 1 of the agreed Framework Decision is repeated as Article 1()(i), (ii) and (iii)(a) to (i) of the Common Position; Article () of the Framework Decision is repeated as Article 1()(iii)(j) and (k) of the Common Position; and Article (1) of the Framework Decision is repeated as the final paragraph of Article 1() of the Common Position. Applying this definition, the Council decrees that the persons, groups and entities listed in the Annex to the Common Position are subject to certain restrictions. Article 4 of the Common Position states that Member States shall assist each other as regards criminal investigations, et al into all the persons and groups listed in the Annex. Articles and specify that further European Community acts will freeze the funds of, and block any resources going to, any of the international terrorist persons, groups or entities listed in the Annex. These Articles do not apply to the domestic groups listed in the Annex (for example, Basque organisations, organisations on opposite sides of the Northern Ireland dispute and listed ETA activists), apparently because the Council assumed that the EC did not have the power to freeze the funds of or block any resources going to those groups or persons. Again it is legally questionable whether the Council can use a Common Position to harmonise the criminal law of the Member States, and there is again a gap in judicial and democratic accountability because the Common Position cannot be challenged directly or even indirectly through the national courts by the persons, groups or entities named in the Annex and because there was no involvement of the European Parliament. In fact, it is particularly questionable that the Council used the mechanism of a Common Position to adopt a definition of terrorism that was (in the form of the Framework Decision) still under scrutiny in several national parliaments and subject to reconsultation in the European Parliament.There are also added human rights concerns with the Common Position. The draft Framework Decision on terrorism contains extensive references to human rights protection in its Article 1b, its preamble and in statements to be adopted by the Council when it is adopted. These provisions attempt to ensure that the definition of terrorism is not so broad as to endanger the protection of human rights. In contrast, while the Common Position takes over the definition of terrorism from the draft Framework Decision, it does not take over the provisions related to human rights. In fact, there is no reference at all in this Common Position to the principle that the definition of terrorism and the fight against it must be in accordance with human rights obligations.. Regulation 580/001 This Regulation, based on Articles 60, 01 and 08 EC, implements part of Common Position 001/1, setting out the details of the freezing of funds and the ban on the issue of resources to terrorist persons, groups or entities. As noted above, the Regulation only applies to international terrorism, apparently because of the belief that the EC lacks the legal powers to agree a Regulation concerning domestic terrorism. The Council has the power, acting unanimously, to adopt a list of persons, groups and entities to which the Regulation applies (Article ()). This Regulation is subject to possible rulings by the European Court of Justice on its interpretation or validity, but this prospect may be weakened, because of the Regulations connection with the Common Position. Also, the Council had to consult the European Parliament before adopting the Regulation, but it ignored the Parliaments views in several key respects, particularly as regards an expiry date for the application of the 4. Decision 001/7 This Decision implements Reg. 580/001 for the first time, listing the persons, groups or entities covered by the freezing of funds and the ban on the supply of resources. In fact, the list is the same as the list of international terrorist groups, persons and entities attached as the Annex to Common Position 001/1 . Again, while the Decision (along with any future amendments to it) is subject to the jurisdiction of the Court of Justice on its interpretation or validity, that power might be circumscribed by the existence of the Common Positions. Also, there was no involvement of the European Parliament in the adoption of the Decision, and there will likewise be no involvement in any later Decisions adding persons, groups or entities to this list.ConclusionDuring the year 001 terrorism has been confirmed as one of the major concerns for the European Union owing to its enormous impact on the European Union, the Member States, the economy and society. Existing groups continued their terrorist activities. The number of incidents showed a small decrease, whereas the scale of the attacks increased dramatically. Important from a global point of view is the fact that the European Union is not only a target for terrorist attacks but also an important area for preparatory and logistic purposes in the widest sense. In the aftermath of the 11 September attacks in the United States of America, it became clear that a number of the suicide hijackers allegedly prepared their activities in the European Union.It is more than obvious that all those circumstance lead to the effect that the governments of EU Members States have opted for a restrictive and consensual approach in their law and policies towards third-country nationals and currently, the forces pushing for exclusion have the upper hand, resulting in a multifaceted, very restrictive, exclusionary immigration and asylum regime in Europe. Such policies of exclusions intensified after September 11th are well visible by imposing by national governments visa requirements on the nationals of an increasing number of countries; imposing penalties on airline carriers carrying unauthorised migrants; sending asylum seekers back to first countries of asylum or safe third countries, without examining the merits of the asylum-seekers request; introducing asylum quotas; authorising law enforcement agencies to conduct random checks; applying strict criteria in determining whether an asylum-seeker is a genuine refugee; introducing a list of prosecution-free countries; and dealing with some types of asylum claims without respecting most of the fundamental procedural safeguards. Consequently, asylum-seekers travelling from or through states sharing borders with the EU are increasingly faced with a cordon sanitaire erected along the outer limits of the EU. The Vienna European Council acknowledges that the European Union is founded on principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. Protection of fundamental rights is a founding principle of the Union and an indispensable prerequisite for their legitimacy. Human rights provide a basis for the European legal order within and beyond the circle of the EU Member States. Although, the EU has not acceded to the European Convention on Human Rights and Fundamental Freedoms (ECHR), it is important to bear in mind that the ECHR is an international instrument, to which all European states have adhered, and proves to be a major instrument of European integration. The Unions institutions are required to respect fundamental rights, as guaranteed by the ECHR. EU leaders have been urged to stop paying lip service to the needs of refugees and asylum seekers. This call follows a conference on EU migration policies and comes amid growing concern that the Union member states will put up the shutters to immigrants in the wake of the current Afghanistan crisis. Much of the discussions in the EU have been about the impact any new security measures will have on immigration. However, deterring refugees leads only to the tragedy of human trafficking and countries distrusting and competing with each other. Immigration and refugee law and policy cannot not be purely restrictive as they should respect international obligations and humanitarian traditions, in general. Restrictions, if applied, should be consistent with the obligations of the national governments derived from the ECHR to guarantee protection, promotion and respect for human rights throughout the territory of Europe. While the terrorist attacks on the US were awful, they must not be allowed to dominate policy on immigration and asylum in Europe. This should be given top priority at the European level at all times.





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