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Libya visa ban set "a bad precedent"

A solidarity clause applies among nations if one member state decides not to issue a Schengen visa


A move by Switzerland to impose Europe-wide visa restrictions against nearly 200 prominent Libyans may have backfired, a Geneva-based expert tells

The Swiss decision, made last autumn, was one of many salvos in a two-year bilateral dispute and sparked Tripoli to bar citizens of Schengen zone nations from entering the country.

Marcelo Kohen, a professor of international law at Geneva’s Graduate Institute of International and Development Studies, said that Bern chose the wrong strategy.

In late 2008, the Swiss ban would have produced few ramifications outside its own borders. But since entering the 25-country Schengen Area, Switzerland and its neighbours have been able to restrict the ability of people from outside the area to move freely within it.

That’s exactly what Switzerland did. The Libyans alleged to be on the Swiss list are still permitted to enter other Schengen countries but must apply for individual visas. That defeats the purpose of the Schengen agreement, Kohen argues.

Switzerland has not confirmed the blacklist’s existence but says it is continuing to operate a “restrictive visa policy” toward the north African country.

Kohen says it’s no surprise that Italy, which last year signed a cooperation treaty with Libya, is critical of the Swiss move.

On Thursday Swiss Foreign Minister will meet her Libyan counterpart in Spain for talks on resolving the ongoing dispute. From a legal standpoint, how was Switzerland able to bar some Libyans from receiving Schengen visas?

Marcelo Kohen: All Schengen countries provide visas for entering the entire Schengen area. If France delivers a visa for a Libyan citizen for example, this citizen can enter not only France but all around the Schengen area. That’s the normal situation.

If one member state decides not to issue a Schengen visa to a foreigner, there is a kind of solidarity clause that applies. This means that one state in the Schengen area can block access to the rest of the member states. This is what Switzerland did with the Libyans. Now the Italians have criticised the Swiss...

M.K.: The problem is that this bilateral conflict has now taken the form of a regional conflict. It was Switzerland versus Libya and is becoming Libya versus Schengen. That’s the problem.

In the Schengen agreement, there are two different kinds of visas. One is the Schengen visa and the other is a national visa, which is the exception. If one state vetoes a Schengen visa then the other states, France for example, is only allowed to deliver a French visa. So why the conflict?

M.K.: The problem is that the other countries in the Schengen area are not willing to use this two-fold system because the entire system suffers. The purpose of Schengen is to have a coordinated policy towards foreigners. If there is no solidarity among the member states, the entire system fails. Is Switzerland holding the rest of Europe hostage?

M.K.: That is what the Italian foreign minister said. In my view,
the Swiss policy toward the conflict with Libya is entirely wrong. Unfortunately, I would say that the federal council [the Swiss cabinet] was under the pressure of, and did not resist the pressure of, some political circles, and even some so-called specialists of the region, who wanted a hard line.

And then the Swiss government decided to follow a hard line. Instead of trying to solve this minor dispute, it added this Schengen veto policy... it aggravated the conflict. It’s a complete mistake to use Schengen as a political tool. If all states in the Schengen area used the system as a political tool, it would be the end of the system. What kind of pressure can the European governments put on Switzerland?

M.K.: Simply by saying they are not in solidarity with Switzerland anymore: “Please solve your dispute with Libya in other ways.” Describe the relationship between Italy and Libya.

M.K.: Everybody knows the nature of the Libyan regime. Everybody knows what Berlusconi did to improve relations with Libya. Don’t forget that Italy is the former colonial power. So there is all this history and now they have good relations. This means business, which is essentially the point. And the Swiss have not been able to solve the problems. Should they have enlisted the help of the Italians and others to put more pressure on Libya?

M.K.: I don’t think so. The solution is not to put pressure on Libya. Because with pressure you will not obtain anything with Gadaffi. Some specialists were saying to put more pressure on Libya and you will get results. And what is the outcome? You get more problems with your European neighbours and nothing is solved with the Libyans. Will most of the Schengen countries side with Switzerland?

M.K.: I wouldn’t make a bet. But as I said I don’t see the reasons why the other Schengen countries would adopt the Swiss position for a long time. To use the Schengen system as a political tool creates problems and is a bad precedent.

Justin Häne,

Marcelo Kohen

Professor Kohen has been a member of faculty at the Graduate Institute since 1995.

He is an associate member of the Institute of International Law.

Kohen has been a visiting professor at universities in Italy, Spain, and France.

He has acted as counsel and advocate in courts around the world, and is an expert on Palestinian issues. He has represented groups and individuals in Central and South America, and in Asia.

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July 15, 2008: Hannibal Gaddafi and his wife Aline are arrested in Geneva over allegedly mistreating two servants, and are charged with inflicting physical injuries against them. The Gaddafis are released on bail and leave Switzerland. The servants are later compensated and charges withdrawn.

July: Two Swiss nationals are arrested in Libya. Swiss businesses are forced to close their offices and the number of Swiss flights to Tripoli is cut.

January 2009: A diplomatic delegation travels to Tripoli.

April: Hannibal and his wife, along with the Libyan state, file a civil lawsuit against the Geneva authorities.

May: Swiss foreign minister visits Libya

June: Libya withdraws most assets from Swiss bank accounts.

August: The Swiss president apologises in Tripoli for the arrest.

September: Two Swiss nationals cannot leave the country, despite a promise made to President Hans-Rudolf Merz that they will be freed by September 1.They disappear after undergoing a medical check-up in Tripoli.

October: A 60-day limit for normalising relations between Switzerland and Libya passes with no sign of the two Swiss hostages.

November: Swiss ministers suspend treaty seeking to normalise relations with Tripoli and say they will pursue visa restrictions for Libyans.

December: Two Swiss nationals sentenced to 16 months in prison and fined for visa violations. Their terms are later overturned and cut during appeals.

February 14, 2010: A Libyan newspaper reports Switzerland has drawn up a blacklist of 188 top Libyan officials being denied entry to the country.

February 15: A Tripoli airport official says Libya has stopped issuing visas to citizens of nations in the Schengen zone, a measure the European Union later confirms has taken place.

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