The Declaration and the Guidelines on Migration of the CCBE (Conseil des barreaux européens) : Migration from the European Lawyers’ perspective.

On 3 October 2013 more than 100 people died after a migrant boat caught fire in trying to cross the “border sea” between  Africa and Europe, just in front of the Mediterranean isle of Lampedusa. The European Union could not ignore the human tragedy of those risking their life making the journey to Europe’s southern borders, escaping from countries where fundamental rights are systematically violated.[1]  This post does not aim to analyse the current legislative situation and the political response of the EU in this field, it will rather focus on the reaction  and the juridical response of European lawyers to this important issue in EU law. Indeed, the complexity of the phenomenon of migration and, also, its political involvements should not eclipse the main problem which is linked to this matter, that is the duties of every judicial operator in respecting and protecting, first of all, the fundamental  human  rights of migrants.

The whole legal profession is fully represented in the EU by 45 national delegations (32 member countries plus 13 further associate and observer countries) at the CCBE (Conseil des barreaux européens), which on  29 of November 2014  has adopted two different legal instruments with the aim of facing the serious matter of the protection of migrants’ fundamental rights: the Declaration on Migration and the Guidelines on Migration of the CCBE.[2]

The nature of the legal rules that the CCBE is charged to issue, coherently with its role, is basically deontological: that means that the task of its instruments is to regulate the conduct of European Lawyers in judicial and social systems. The adoption of a Declaration of principles and a track of Guidelines in migration matters, addressed to lawyers, represents, however, an important step for European political affairs and Civil Society, regardless of the nature of the rules in question. The philosophy of these regulations perfectly matches that underlying the previous instruments implemented by the CCBE. In the Code of Conduct for European Lawyers, as well as in the Charter of Core Principles of the European Legal Profession, it is strongly affirmed that the role of independent  lawyers constitutes part of the essential foundations of a democratic society and this principle also underlies the last Declaration on Migrants and the Guidelines on Migration.[3] In this sense, the social responsibility ascribed to lawyers is grounded on the supreme value of fundamental rights in the judicial systems of Member States, finding its legal foundation (among other instruments) in Article 47 of the European Charter for fundamental rights. . The mentioned provision guarantees the fair access to justice to all individuals, without mentioning nationality or citizenship.

The Declaration on Migration of the CCBE is conceived as the theoretical and practical  response to the necessity of promoting the respect for fundamental rights in the area of migration law. The charter is composed of five principles, expressing the core idea of the CCBE with regard to migrants’ protection by judicial operators and EU institutions in general These principles are: (a) the defence of the rule of law and democratic values; (b) the challenge offered by migration as a complex matter in terms of “giving rise to concerns and issues across a broad spectrum of rights and law including but not limited to human rights and humanitarian law, criminal law, employment law, family law and administrative law”;  (c) the obligation for the EU and Member States to guarantee the dignity of migrants and their access to justice and to legal aid with lawyers as front – line guarantors; (d) the supremacy of the protection of human rights and freedoms over any political, economic and safety consideration; (e) the consequent societal duties in light of the qualification of migration “as a crucial issue of the future social development”.[4]

On the other hand, the Guidelines try to draw the profile of a new legal profession with the aim of assisting European Lawyers practising in the field of migration law, by setting out  some additional  rules which may be summarised as follow: (a) the undeniable necessity of specialising training and educational programme for Lawyers in EU law, migration, asylum law and  protection requirements in order to ensure that the operators can acquire the technical skills necessary in those fields ; (b) the provision of facilities towards migrants’ access to legal aid and translation services; (c) the central role of the bar association as to the realisation of those objectives in the promotion of the free movement of persons internally in the European Union.[5]

The crucial points of these two texts reflect the common worries of the human rights advocacy, concerning the protection of a minimum level of fundamental rights for minorities.  This minimum level requires, on the one hand, ensuring equal access to justice for all individuals and, on the other, the professional development of all operators through programmes of technical education.[6]

Briefly, both these CCBE instruments arise from the general principle expressed in Article 1.1. of the Preamble of the Code of Conduct for the European Lawyers, which affirms the function of the lawyer in society as follow:

“In a society founded on respect for the rule of law the lawyer fulfils a special

role. The lawyer’s duties do not begin and end with the faithful performance

of what he or she is instructed to do so far as the law permits. A lawyer must

serve the interests of justice as well as those whose rights and liberties he or

she is trusted to assert and defend and it is the lawyer’s duty not only to plead

the client’s cause but to be the client’s adviser”.

Respect for the lawyer’s professional function is an essential condition for the rule of law and democracy in society.[7]

There is no doubt that migration is nowadays one of the challenges that the European Union of the 3rd millennium must face: it involves a lot of different aspects, from the safety management of European external borders to the  guarantee of a minimum level of protection for the fundamental rights of migrants who “knock to the EU’s doors”. In this patchwork of social, cultural and juridical situations, European lawyers are called upon to figure out the nature of the role that they must play in this field.

The CCBE and its regulations represent the main instruments for the approximation of deontological rules and codes of conduct in force in each European country, regardless of the differences between European judicial systems. These new regulations could also represent a crucial further step in the convergence of the different cultural approaches adopted by each European member in facing and solving issues arising from migration.

In conclusion, in this particularly delicate context, every unanimous voice invoking the supremacy of fundamental rights over all other considerations, such as the CCBE voice, ensures that the pressure is maintained on political authorities as to the human and juridical concerns arising from migration.

[1] See the European Parliament resolution of 23 October 2013, 2013/2827,  on migratory flows in the Mediterranean, with particular attention to the tragic events of Lampedusa.

[2] The CCBE Declaration on Migration, [2014 – 11 – 29 ], available on http://www.ccbe.eu/index.php?id; The CCBE Guidelines on Migration, [2014 – 11 – 29], ibidem.

[3] The Code of Conduct for European Lawyers, adopted at the CCBE Plenary Session held on 28 October 1988, and subsequently amended during the CCBE Plenary Sessions on 28 November 1998, 6 December 2002 and 19 May 2006, available on http://www.ccbe.eu/index.php?id=32&L=5 .

[4] The CCBE Declaration on Migration, ibidem.

[5] The CCBE  Guidelines on Migration, ibidem.

[6] Let me refer to the “pilot – project” of the Italian National Bar, which in 2014 has promoted the creation of a task force of Italian lawyers operating in Lampedusa to support the local institutions in facing current migration’s matters, called “Presidio Lampedusa” ( further informations available on http://scuolasuperioreavvocatura.it/progetto-lampedusa/).

[7] Preamble of the Code of Conduct adopted by the CCBE, Article 1.1.

Advertisements

Leave a comment

Filed under Public International Law

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s