KIIT SCHOOL OF LAW , BHUBANESWAR

A Document Review Assignment Of Public International Law

B.A.L.L.B, SEMESTER - V

BATCH 2020-2025

TOPIC: Europe’s Most Fortified Border Is In Africa- The Spain

Morocco Conflict

UNDER THE GUIDANCE OF:

Prof. Madhuri Meelee Ma’am

SUBMITTED BY -

SHIVANSH SINGH

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Europe’s Most Fortified Border Is In Africa- The Spain

Morocco Conflict

I. INTRODUCTION
For a systematic review of the documentary, the author will review and examine this video titled, Europe’s Most
Fortified Border Is In Africa- The Spain Morocco Conflict, released by a media company named Vox in the year
of 20171. This article presents a distinct perspective in depicting the current scenario faced by the ordinary
citizen of Melilla - a city which falls within the territory of Spain. The main reasoning behind the present-day
atrocities on Melilla and cross-border conflict by Spain and Morocco falls within the ambit of International Law
as Spain, while protecting their border from migrants, strongly contends that as this constituency poses a critical
security concern,for which Spain has every right to secure its border. On the other hand, Morocco’s stand on
keeping stringent security and building a fortified wall has its own facets of benefit, which is related to the
International Trade Benefit and strong political backing from the European Union. Through this Documentary
review, we will critically analyze the facets mentioned above regarding fundamental human rights concern
under the ambit of International Law abiding by the general principles, treaties,customs and laws laid down by
the United Nation to protect the integrity and sovereignty of a nation while previewing the approach of both
countries in combating this issue of grave concern. 

II. ANALYSIS
 Melilla is a Spain-acquired geographical territory, consisting of about 87,000 people with a rich Spanish
culture all over mainland Europe. Although, when you dig deeper and walk to the city's periphery, you will
find forests, tents and immigrants scattered all over the forest region. These immigrants cross one of the most
fortified borders from both sides to lead a life with dignity and resources. Most immigrants are from the sub-
Saharan desert, where factors such as racism, religious discrimination, and unemployment are one of the main
reasons to cross the border illegally. Now moving forward with the historical context and contention of
International Law under which this border conflict is adhered.

A. Historical Context Of Conflict

Melilla and Ceuta, two Spanish enclave that have existed for more than a century are located around 200
kilometers east of Ceuta, Similar to Ceuta, the majority of the population is made up of Iberians and residents
of the Rif region, with the latter group's variety developing more quickly.Melilla's 1995 Autonomy Statute,
which calls for recognition for the population's cultural and linguistic diversity, reflects this fact. In 1497, the
city was taken by force from the Kingdom of Fez, portugal by Spanish forces. Morocco’s basic set of
argument revolved around Spain's claim to the title from Portugal is invalid because conquest is no longer
accepted. Spain's claim to Melilla could be viewed as invalid because it is based on antiquated methods of
acquisition.

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VOX, Europe’s Most Fortified Border Is In Africa, YouTube (Dec 5, 2017), https://www.youtube.com/watch?
v=LY_Yiu2U2Ts&list=PLJ8cMiYb3G5dRe4rC7m8jDaqodjZeLzCZ&index=36

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The present conflict regarding migrants in Melilla was sparked by the events of political developments in
Western Sahara, a former Spanish colony that Morocco seized in 1975.
Morocco and the Polisario Front have fought over the Western Sahara since the outset. The three-decade-old
cease-fire was interrupted several times as regional tensions increased as a result of Morocco's military effort
to disperse protestor’s blockade in a Western Sahara buffer zone that is governed by the UN.
Under the Trump administration, the US also agreed to acknowledge Moroccan sovereignty over the Western
Sahara in exchange for normalizing ties between Morocco and Spain. This discourse was a broader feature of
early decolonization. Just before Moroccan independence, similar arguments had already been advanced by
Indonesia to justify its absorption of West Irian, and a few years later they would be deployed—to a mixed
international reception as a pretext for India's annexation of Goa and the other Portuguese dependencies on its
Arabian seaboard.
Morocco has maintained its position on the 'unity' of its territory over the decades, despite the International
Court of Justice (ICJ) deciding that Morocco did not possess legal ties that would trump the exercise of self-
determination in Western Sahara, and even as the success of irredentist arguments based on 'unity' appeared to
decline after the 1960s Morocco maintains that Ceuta and Melilla are 'usurped cities' under Spanish occupation
and considers them, together with Vêlez, Alhucemas and the Chafarinas, to be 'the last colonies in
Africa'.Despite the consistency of its position since 1956, Morocco's pursuit of its claims to the five northern
territories took some time to get off the ground in the UN. Early appearances by Moroccan representatives in
the General Assembly focused on Spanish Sahara and Ifni.Morocco first protested about Ceuta and Melilla in
the UN on 7 October 1960 but did not ask for them to be included on the General Assembly's list of non-self-
governing territories at the time.

B. Humanitarian Crisis And Rights Of Immigrants Under International Law

The Melilla crisis is another manifestation of migrants’ vulnerability, as they get played as convenient pawns in
a big political game. Human rights groups have criticized Spain for using excessive force on migrants. Lack of
adequate legal protection and no legal pathways into Europe continue to characterise the predicament of these
migrants. The rapid expulsion of migrants that included some unaccompanied minors means that they had been
denied the right to seek asylum under international law. Amongst those who remained, most were left stranded
on the streets. Unaccompanied minors were put in deplorable, overcrowded warehouses at a time when
pandemic necessitates proper hygiene and social distancing measures a must. Thus, the crisis demonstrates that
the EU is still a long way from having a comprehensive and compassionate framework in place to deal with
huge groups of migrants entering illegally on its shores.

Moving forward with the contention of International law in the present issue, rights of immigrants emerges as
one of the prime concern among others. The Universal Declaration of Human Rights, proclaimed by the U.N.
General Assembly in resolution 217A(III) of December 10,1948, contains provisions of general scope and
additional provisions drawing distinctions on the basis of citizenship. The Preamble to the Universal Declaration
of Human Rights states that recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world. 2 Article 2, paragraph
1, provides that "everyone is entitled to all the rights and freedoms set in this Declaration without distinction of
any kind such as race, color, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status." While immigration status is not mentioned in this provision, both the text of the
provision and debates thereon in various bodies "tend to show that the enumeration was not meant to be
exhaustive and that article 2 was intended to have general application”.3

The current status of immigrants and the atrocities faced by them itself states that the obligation of UN norms
are the need of an hour for these countries. In melilla more than fifty deaths occurred during an attempt by as
many as 2,000 people to enter Spain by climbing the high chain-link fences surrounding Melilla, one of two
Spanish enclaves in North Africa. An independent, impartial investigation should identify the causes of death
and whether security forces were responsible for the loss of life with a view to ensuring accountability and
justice for families of the victims. Although, considering the discussed stand of the related countries one cant
expect free and fair trial , hence the intervention of UN under the ambit of international law is mandatory.

2
Sohn and Buergenthal, International Protection of Human Rights, Contemporary Legal Education Series, [1973]
3
Report of the Secretary General, A/C. 3/35/WG.l/CRP. 1 (September)

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C. General Principles Of International Law and Human Rights

International human rights law has developed separately from international law on migrants and refugees, but
neither is exclusive; both fields of law are interrelated and interdependent. Migrants and refugees staying in
Melilla, however, are often on the periphery of effective protection. In part, their vulnerability stems from the
fact of state sovereignty, from the particular role ascribed to states themselves as guardians or protectors of
human rights, and from a tendency to confine certain rights within a context of community or citizenship.
Non-nationals of Melilla , simply because of their lack of citizenship, are perceived to stand outside the
community and on that basis may be denied the substantive and procedural entitlements normally accorded to
members. Migrants and refugees of Morocco have a particular interest in liberty and personal integrity rights,
including freedom of movement and the rights to leave and to return to one's own country, to seek refuge and
asylum, to enter another country, not to be expelled, and not to be returned to a country in which life or
freedom may be endangered; "procedural" rights, for example equal protection of the law, access to courts and
tribunals, remedies; status rights, as resident, refugee with asylum, or of the child to a nationality; family
rights, including reunification and special protection for children; employment rights, such as the right to
work, to fair conditions of work and to security; political rights, including freedoms of thought and conscience,
expression, assembly and association; and cultural rights, relating to language, education and community
rights.
The 1948 Universal Declaration of Human Rights opens in article 1 with the affirmative, "All human beings
are born free and equal in dignity and rights". The Preamble to the Charter of the United Nations proclaims the
determination "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person".
The Annex to the ILO Constitution affirms that "all human beings irrespective of race, creed or sex have the
right to pursue both their material well-being and their spiritual development in conditions of freedom and
dignity, of economic security and of equal opportunity4.
General principles, Treaties ,Laws and customs are the major sources of International Law. Abiding by the
treaties, we infer that lack of mutual agreement between Spain and Morocco has led to the disturbed
atmosphere around their geographical location. Going by the norms of Human rights treaties, it generally
recognize the continuing authority of the state to maintain distinctions between citizens and non-citizens in
certain areas of activity. Although in the present case scenario Spain’s approach to disregard non citizen or
immigrants is a major issue of concern. The most fundamental of rights, however, permit no such distinctions,
while others require a measure of protection that both excludes arbitrary discrimination and best preserves
human dignity and integrity. At one end of the spectrum, all persons shall be free from torture and cruel and
unusual treatment or punishment. The European Commission has consistently held that article 3 of the
European Convention may be breached by expulsion, or where the removal of an individual exposes him or
her to the danger of such treatment on arrival at the destination. The Commission has also recognized that
"publicly to single out a group of persons for differential treatment on the basis of race might .constitute a
special affront to human dignity" contrary to the prohibition on degrading treatment.

III. CONCLUSION
The borders around Ceuta and Melilla, Spain’s two enclaves, are among the most heavily fortified in Europe.
Over the years, African migrants and asylum seekers have resorted to attempts to scale, en masse, the fences
surrounding the enclaves due to the lack of safe and legal migration channels and obstacles to reaching official
border posts. The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement
Officials require law enforcement officials, including border guards, to apply nonviolent means before resorting
to force, to use force only in proportion to the seriousness of the offense, and to use lethal force only when
strictly unavoidable to protect life. The principles also provide that governments shall ensure that arbitrary or
abusive use of force and firearms by law enforcement officials is punished as a criminal offense under their law.
The European Court of Human Rights has made clear in several cases involving border control that while states
4
Bownlie I., Basic Documents in International Law, (3rd ed., 1983) .

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can take measures to prevent unauthorized entry into their territory, including the use of force, the need for
border control cannot justify resorting to practices or using force in a manner that violates human rights
protections, including right to life and freedom from inhuman or degrading treatment. So, while concluding
under the international law, Morocco doesn't have strong claims to Ceuta and Melilla, which have been Spanish
for hundreds of years. There are significant legal and political barriers to any change in status of those territories
in favour of Morocco.