Building new fences? : security concerns and protection of aliens at the European borders

Abstract

This research paper aims to examine the compatibility of border controls with the human rights standards that the EU and its Member States are bound to. For that purpose, expulsion has been chosen as the comparative element, since the non refoulement principle is one of the most developed constrains to the faculty of the State to expel non citizens. The human rights mechanisms available for the protection against expulsion will be examined and compared with the most representative EU regulations regarding forced removal of aliens. The analysis on the compliance of the EU policy with human rights standards is illustrated with a case study about Spain, which is one of the “guardians” of the Southern borders. The protection of citizens against security threats is the most common justification for the downgrading of the safeguards available for third country nationals aiming to reach Europe. The question is whether a balance between the interests at stake can be stroke, and to which extent the apparent clash between citizens and non citizens’ rights is illusory. In fact, the non refoulement principle has been reinforced in Europe thanks to the case law of the ECtHR. This development challenges the idea that aliens can be deprived of protection on account of an artificial equilibrium between their rights and the well being of the host community.