CRC/C/80/D/4/2016 Third-party intervention 10.1 On 31 May 2018, the International Commission of Jurists, the European Council on Refugees and Exiles, the AIRE Centre and the Dutch Council for Refugees submitted a third-party intervention.34 10.2 The third-party interveners point out that the European Court of Human Rights has established that where a State takes action to prevent foreign nationals from entering its territory or to return them to another State, such conduct constitutes an exercise of jurisdiction that engages the responsibility of the State in question. 35 They add that construing the obligations of the State in this manner is necessary in order to avoid depriving the Convention rights of effectiveness 36 and that such an interpretation must be applied irrespective of the border control methods employed by the State. It follows, therefore, that the question of entry to a State’s territory is not decisive when assessing whether a State is exercising or has exercised its jurisdiction. 10.3 The third-party interveners maintain that the State must grant access to its territory to children at its border who are subject to its authority or effective control, as a prerequisite to the initial assessment process. They add that children should have the opportunity to present meaningful objections to their potential expulsion, as required by the principle of non-refoulement and the prohibition of collective expulsions. They further add that, in accordance with the Convention, the State must allow children access to its territory as a prerequisite to the initial assessment process in order to fulfil its obligations under articles 3, 20 and 37 of the Convention. Parties’ comments on the third-party intervention 11. In his comments of 31 July 2018, the author notes that the intervention reaffirms the scope and content of the State party’s obligations in relation to the alleged violations of articles 3, 20 and 37 of the Convention. 12.1 In its observations of 31 August 2018, the State party argues that the third-party intervention is based on incorrect premises, since any person wishing to seek asylum in Spain can do so from outside Spanish territory without the need to join a mob formed for the purpose of making illegal, collective and violent assaults on the border fence. Spain therefore has the right to prevent illegal entry to its territory, in accordance with article 51 of the Charter of the United Nations (on the right to self-defence) and article 13 of Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (on the prevention of unauthorized border crossings). It adds that, according to article 1 (F) (c) of the Convention relating to the Status of Refugees, persons who engage in acts contrary to the purposes and principles of the United Nations shall be excluded from the possibility of asylum. 12.2 The State party argues that the principle of non-refoulement applies only when the person comes from a territory in which there is a risk of persecution, which is not so in the present case. It also argues that, in the cases brought before international bodies concerning assaults on the border fence in question, there is no evidence that the complainants have been persecuted at the hands of the Moroccan authorities. It adds that these are cases of migration for reasons other than those that would justify an asylum application, because the migration is not prompted by a situation of persecution. 12.3 The State party argues that the Spanish authorities, in accordance with article 22 (2) of the Convention, first attempted to locate the family of the unaccompanied foreign minor and in the meantime took appropriate protective measures. 34 35 36 GE.19-07971 The intervention analyses the legal principles and jurisprudence related to the scope and content of States’ obligations in relation to State jurisdiction under the Convention, access to territory, the principle of non-refoulement and the prohibition of collective expulsions, without reference to the particular facts of the present communication. Hirsi Jamaa and others v. Italy (application No. 27765/09), judgment of 23 February 2012, para. 180. The third-party interveners cite European Court of Human Rights, Sharafi and others v. Italy and Greece (application No. 16643/09), judgment of 21 October 2014, para. 210. 9