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A Draft Treaty Concerning the Schengen Accord

Published online by Cambridge University Press:  21 July 2009

J.M. Noteboom  and
C.F. Doebbler
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Extract

Within the European Community several countries are seeking to accelerate the process of achieving free movement of persons. To this end several international forums have been created in which harmonization or coordination of matters relating to immigration is taking place. This article is concerned with the developments in one of these forums: that of the Schengen Accord. The Schengen countries involved in this forum are Belgium, the Netherlands, Luxembourg, France, and the Federal Republic of Germany.

Type
Current Legal Developments
Information
Leiden Journal of International Law , Volume 2 , Issue 2 , November 1989 , pp. 229 - 239
Copyright
Copyright © Foundation of the Leiden Journal of International Law 1989

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References

1. There are currently four different european forums in which issues of asylum is being discussed. In each of these forums there is already a draft treaty or directive concerning the subject or it is the intention of the participating parties to create a treaty or directive. All the Schengen countries are parties in all four forums. However, they form the minority in several forums. Thus there is a risk that rules agreed upon in the Schengen forum will conflict with rules agreed to in another fomm. The most important of these different forums are referred to and discussed in J.J., Bolton, Het Rechl om Asiel te Zoeken in Ewopa, Nederlands Juristenblad, Europese Speciale Editie 797–807 (1989).Google Scholar

2. Dutch Tractatenblad, 1985,102, and 1986,34.

3. In the Dutch Parliamentary Record from 1987–1988, TK 20 031, nr. 4, the government stated that Italy, Austria, Denmark and Switzerland had shown interest in becoming party to the Schengen Accord. To date none of these countries have become party to the agreement.

4. Supra note 2, Arts. 1–6.

5. Supra note 2, Art. 7.

6. Supra note 2, Art. 8.

7. Supra note 2, Art. 9.

8. Supra note 2, Arts. 11–16.

9. Supra note 2, Art. 10.

10. Supra note 2, Art. 17.

11. Supra note 2, Art. 17.

12. Supra note 2, Art. 17.

13. Supra note 2, Art. 20.

14. Supra note 2, Art. 20.

15. See Bolton, J.Het Recht om Asiel le Zoeken in Europa, Nederlands Juristenblad, Europese Speciale Editie at 797,800, and note 29. Also See Dutch Parliamentary Record: TK 19 326, nr. 1, p. 1.Google Scholar

16. TK 19 326, nr. 1 at 3.

17. Draft treaty, art. 20. The draft treaty is not yet public but is expected to be made public later this year.

18. See the answer of the Dutch government in the Tweede Kamer May 16,1989. In English: “All persons who are not nationals of one of the member states of the European Community are to be considered as aliens“ for the application of the draft treaty. See also the Introduction by Mr. CD. de Jong, to the workinggroup on refugeeslaw of the Dutch Ministery of Justice of May 11 at 2 (1989).

19. Draft treaty, Art 1(4).

20. Treaty establishing the European Economic Community, 298 UNTS 11 (1957). Art 8A is implemented by Art. 13 of the Single European Act of 1986, Tractatenblad 1986, 63, entered into force 28 February 1986. Art 8A foresees in the free movement of persons throughout the EEC.

21. 381 UNTS 165, entered into force 1 November 1960.

22. These two treaties are: the Convention on Establishment, VIII Annuaire Europeen 169 (1960), entered into force 11 April 1960 and the Convention concerning the Transfer of Entry and Exit Controls to the External Frontiers of Benelux Territory, 374 UNTS 3, entered into force 11 April 1960.

23. Supra note 18, answers to questions number 9 and 10.

24. 213 UNTS 223, entered into force 4 November 1950.

25. European Court of Justice cases 281/85,283/85,284/85,285/85 and 286/85.

26. Decision 88/384/EEC, pb. 1988, L 183.

27. Judgment of the Benelux Court on 20 December 1988.

28. European Consultation on Refugees and Exiles (ECRE), Towards Harmonization on Refugee Policies in Europe? (Oct. 1988) pp. 8 and 9.

29. Draft treaty. Art. 8 and annex.

30. Draft treaty, Art. 8.

31. Draft treaty, Art. 11.

32. Draft treaty. Arts. 9–19.

33. See infra note 47.

34. Draft treaty. Arts. 26–31.

35. Draft treaty, Art. 33.

36. Draft treaty, Art. 31(1).

37. Draft treaty, An. 31(1).

38. Draft treaty, Art. 31(2).

39. Draft treaty, Art. 31(4).

40. Draft treaty, Art. 31(5).

41. Draft treaty, Arts. 31(6) and (7).

42. Draft treaty, Art. 31(7).

43. Draft treaty, Art. 31(3).

44. Draft treaty, Art. 5(2–5).

45. Draft treaty, Art. 28.

46. In a comment to Art. 5(2–5) that accompanies the draft treaty it is asked whether this article is appropriate.

47. The decisions of the European Commission of Human Rights concerning the application of Art. 8 to protect the right of privacy of individuals are mixed. On the one hand the Commission has found that the collecting and using of personal facts could lead to a violation of Art. 8. See Van Oosterwijk v. Belgium, (Commission Rapport number 7654/76); X v. Norway, (Commission Rapport number 7945/77). And on the other hand, the Commission has held that intrusions on the right of privacy may be justified as necessary in a democratic society. See X v. Federal Republic of Germany, (Commission Rapport number 530/59) and X v. Federal Republic of Germany, (Commission Rapport number 6794/74). Professor Jacobs observes that “[t]he scope of the protection of privacy under the Convention remains largely unexplored in the case-law(…)“. See FJacobs, The European Convention on Human Rights 126 (1975). The important question concerning the provisions of the Schengen Information System will be whether or not it is necessary in a democratic society.

48. See Note of the Dutch Government in the Combined Ad Hoc Committee “Border Surveyance and Border Control“, Brussels, 25 April 1988, SCH/I+II-imm-c.f.r.(88)5.

49. Convention Relating to the Status of Refugees (entered into force 28 July 1951) UNTS 2545 (1951).

50. Where the refugee has a relationship to a person in the Netherlands Art. 8 (protecting private and family life) of the European Convention on Human Rights, Supra note 24, would also be violated.

51. Dutch parliamentary record: TK 19 326 nr. 18 at 17 The Dutch Minister of Justice claims that only three categories of persons will be signalled: 1. persons for which their is an outstanding extradition request;2. persons that are sought as defendants or witnesses in a criminal case; 3. persons that because they are professional or well-known criminals who deal in drugs, weapons, or who participate in other very serious forms of criminal activity and who therefore deserve special attention. Also See Supra note 18, the answer to question SI.

52. 1981 European Treaty Series 108, entered into force 1 October 1985.

53. Asof 31 January 1986.5ee Annuaire Europeen 1981, Conventions and Resolutions of the European Council, p.C of E 62.

54. See the remarks of Dutch Minister of Justice in the Dutch Parliamentary Record: TK 19 326 nr. 18 at 18.

55. See id. where the Dutch minister of Justice admits this possibility.

56. Art. 3(F)(a-c).

57. Draft treaty. Art 6.

58. See Dutch Parliamentary Record: TK 19 326, nr. 14 the motion of Mr.Van Traa. Although neither the Dutch parliament nor the parliaments of any of the other Schengen countries could constitutionally prohibit the government from signing the draft treaty, the persuasive force is strong.

59. See Dutch Parliamentary Record: TK 19 326, nr. 18.

60. See Europe, 18 May 1989 at 11.

61. See Avam-projet de Proposition de Directive du Conseil Relative au Rapprochement des Regies Concernant le Droit D'Asile et le Statut des Refugies. In 1988 this draft directive was sent to experts for comments but it has never officially been made public nor has the Commission ever submitted it to the Council. Presently it appears that this will never happen despite the fact that the draft directive is the most thorough and legally sound of all the proposed law making drafts.

62. Id. An. 18(2).