Why the EU-Turkey Statement should never serve as a blueprint
Forum on the new EU Pact on Migration and Asylum in light of the UN GCR
Contribution by Meltem Ineli-Ciger, Assistant Professor in International Law Department, Faculty of Law, Suleyman Demirel University, Turkey & Orçun Ulusoy, Researcher at the Amsterdam Centre for Migration and Refugee Law of the Vrije Universiteit Amsterdam
7 October 2020
On 23 September 2020, the EU presented the new Pact on Migration and Asylum seeking to overhaul a system no longer working and establish a predictable and reliable migration management system. One of the key elements presented in the Pact was the promotion of tailor-made and mutually beneficial partnerships with third countries in the area of migration. Section 6 of the European Commission Communication (COM(2020) 609 final) titled ‘Working With Our International Partners’ emphasises these mutually beneficial partnerships though it only mentions human rights of migrants and refugees once and makes no reference at all to the Convention relating to the Status of Refugees or the obligations of the EU or Member States towards refugees and migrants under international law. In this Communication, the European Commission notes “The 2016 EU-Turkey Statement reflected a deeper engagement and dialogue with Turkey, including helping its efforts to host around 4 million refugees.” Importantly, the Communication or any other document presented on 23 September 2020 by the Commission does not mention the legal problems that the EU-Turkey Statement has posed or the serious hurdles it has created for refugees and migrants accessing fundamental human rights.
Compatibility of the agreed measures under the EU-Turkey Statement with international and European refugee law and human rights law standards was widely questioned and criticized by academia and civil society. (Peers and Roman 2016; Roman, Baird and Radcliffe 2016; Amnesty International 2017; Ulusoy and Battjes 2017; Tometten 2018; Moreno-Lax and Giuffré 2019; Ineli-Ciger 2019; Öztürk and Soykan 2019; Kaya 2000). It seems there is a general consensus that the EU-Turkey Statement is likely to serve as a blueprint for future European cooperation arrangements with North African countries and the new Pact does not say anything to the contrary (Tometten 2018; Lehner 2019; Carrera, Vara and Strik 2019).
In view of these developments, we seek to identify problems with the Statement and its implementation and detail the reasons why the EU-Turkey Statement should not serve as a model for future EU-third country cooperation in the field of migration. We argue that the EU-Turkey Statement was a reactionary instrument to deal with the “so-called” crisis framed by the European policy-makers and it included a set of short-sighted and one-sided actions in a region where the reality was significantly different than the ideas put forward in Brussels. In this contribution we identify what these short sighted and one-sided actions are and the reasons the Statement should never be replicated.
1. A brief overview of the EU-Turkey Statement and its implementation to date
The EU-Turkey Statement was a reactionary instrument to deal with a complex situation namely, the arrival of nearly one million refugees and migrants by sea in Europe in 2015. In April 2015, after a series of tragedies, more than 800 migrants died in the Mediterranean and Aegean Seas in just one week. As the news of the deaths appeared on the front pages of newspapers across Europe, Donald Tusk, President of the European Council, called the European Council to an extraordinary meeting, while Home Affairs and Citizenship Commissioner Avramopoulos was presenting a 10-point emergency action plan with a press meeting. One of the points was establishing “a new return programme for rapid return of irregular migrants from frontline EU member states [to third countries]”.
In October 2015, the European Commission reached an ad referenda agreement with Turkey in the form of a Joint Action Plan. The plan attempted to address the so called ‘European migration crisis’: ‘(a) by addressing the root causes leading to the massive influx of Syrians, (b) by supporting Syrians under temporary protection and their host communities in Turkey and (c) by strengthening cooperation to prevent irregular migration flows to the EU.’ However, failing to address several crucial issues, such as not offering any solutions for coming from countries other than Syria, the objective of the Joint Action Plan to prevent irregular migration flows to the EU was not achieved in March 2016.
On 18 March 2016, in a renewed attempt to end irregular migration from Turkey to the EU, parties adopted the EU-Turkey Statement. To this end, the EU and Turkey agreed that “[a]ll new irregular migrants crossing from Turkey into Greek islands as from 20 March 2016 will be returned to Turkey.” According to the Statement, migrants who do apply for asylum or whose applications have been determined unfounded or inadmissible would be returned to Turkey. As of March 2020, the number of persons readmitted by Turkey from Greece under the Statement was 2,735.
The EU-Turkey Statement required Turkey to take any necessary measures to prevent the opening of any new sea or land routes for illegal migration from Turkey to the EU. Following adoption of the Statement, Turkey initially increased its efforts to prevent irregular migration to the EU although this drastically changed when in February 2020 Turkish President Erdogan declared that he had opened his country’s borders for migrants to cross into Europe. In return for Turkey’s efforts to stop irregular migration, the EU agreed to allocate €3 (now €6) billion under the EU Facility for Refugees in Turkey. According to the EU, as of March 2020, “all operational funds have been committed – of the €6 billion, €4.7 billion is already contracted and €3.2 billion disbursed”.
In the Statement, the EU also agreed that “[f]or every Syrian being returned to Turkey from Greek islands, another Syrian will be resettled from Turkey to the EU taking into account the UN Vulnerability Criteria”. The Statement noted that priority will be given to those who have not previously entered or tried to enter the EU irregularly. This arrangement is sometimes referred to as the 1:1 resettlement scheme. According to the Directorate General of Migration Management in Turkey (DGMM), as of September 2020, 26,166 Syrians had been resettled to 20 Member States under the 1:1 resettlement scheme.
These figures illustrate that the number of readmitted migrants from Greece to Turkey and resettled Syrians from Turkey to the EU were strikingly low and may even be regarded as a failure of the Statement. However, the real “success” of the Statement can be identified as creating a legal and political limbo that would be used as a deterrence tool as well as a blueprint for future agreements.
2. EU-Turkey Statement. A one-sided instrument to deal with a complex situation
Both the March 2016 Statement and the Joint Action plan preceding it essentially follow the “externalisation” policy of the EU and act as another step in the direction of placing migration management at the heart of EU’s external relations. Right from the start, the Statement does not take the priorities of and difficulties faced by Turkey and Greece in offering protection to large number of asylum seekers into consideration (and more crucially: migrants themselves) and establishes a plan to curb irregular migration to western EU states while turning the Aegean region to “borderlands”.
2.1 Whose Statement is it? The authorship problem
The legal nature and the authorship of the Statement has been much contested .The CJEU dismissed the action seeking annulment of the EU-Turkey Statement on the basis that authorship belongs to the Member States and Turkey and it lacked jurisdiction to hear and determine the case (Orders of the General Court in Cases T-192/16, T-193/16 and T-257/16 NF, NG and NM v European Council); whereas, the European Court of Human Rights identified the Statement as an instrument concluded between the Member States and Turkey in JR and Others v Greece.
One might present two perspectives regarding the authorship problem. First, one might argue that the ambiguous authorship problem of the Statement arises from the nature of the deal, not from the participants or technical aspects of it. While the final text of the Statement and “bargaining” period were carried out by the participants of the deal, the idea and framework behind the Statement were long before decided in offices in Berlin, the Hague and Strasbourg. Turkey and Greece, the states that would be directly affected by the implementation of the Statement (along with the other participating states), were left to discuss the amount of money and some minor (domestic) political gains. The author of the Statement was neither an actor nor a state. The real authors were the bureaucrats and technicians simply following the externalisation playbook and helping to create an ambiguity surrounding the responsibility regarding the consequences of the Statement.
A second perspective might suggest that the Statement was indeed a legal instrument concluded between Turkey and the EU. In view of the fact that the Statement was published as a press release on the European Council Website and the European Commission publishes progress reports and fact sheets relating to the implementation of the Statement, it is clear that one of the authors of the Statement was the EU. The EU denying the authorship of the Statement and the European Courts confirming this denial has two implications: first, that the Statement remains outside of checks and balances applicable to EU Law; and second, that the EU cannot be held responsible for the breaches of international law and human rights principles arising from the implementation of the Statement.
Whichever perspective you choose, to date three questions remain unanswered: it is still not clear whether the Statement is only a soft law instrument; who authored the Statement; and who can be held responsible for the violations of human rights under the Statement arrangements?
2.2. Ending the irregular migration from Turkey to the EU. Is this objective realised?
In 2015, over one million refugees and migrants arrived irregularly in Europe by sea whereas arrivals to Greece accounted for 80 per cent of this one million. According to UNHCR, in 2015 799 persons had died or gone missing at sea while trying to reach the Greek territories. Whereas, this number was 174 and 70 in 2018 and 2019, respectively. In 2019, 59,726 irregular land arrivals and 14,887 irregular sea arrivals to Greece were recorded. UNHCR noted that between 1 January 2020 and 20 September 2020, there were 12,577 sea arrivals to Greece and 495 persons had died or gone missing in the Mediterranean. UNHCR figures clearly suggest that both the number of irregular arrivals to Greece and the lives that have been lost at sea (to a certain degree) have decreased since the adoption of the EU-Turkey Statement.
Although it is clear that the Statement played a role in this, the extent to which it has contributed to the decrease in the number of irregular arrivals to Greece is not clear (Spijkerboer 2016; Reitano and Micallef 2016; Van Liempt et al. 2017; Reslow 2019). For instance, it is argued that changing migration routes, increased border controls on the Western Balkan route, right to work given to Syrians in Turkey in 2016 and media campaigns also played a role in the diminishing number of new sea arrivals to Greece (Spijkerboer 2016; Adar et al. 2020; Yıldız 2020). Therefore, although one of the most celebrated outcomes of the Statement by the European Commission is the decrease on the number of irregular sea arrivals to Greece, there is no clear evidence or objective study showing that this decrease is a direct result of EU-Turkey Statement.
On the other hand, it is clear that while the arrival of irregular migrants to Greece (albeit with a significant decrease) continues, the main benefactors of this Statement were northern and western EU members. The Statement did not only decrease the irregular migration to the western EU members in 2016 but it also guaranteed that these states won’t experience a similar influx as long as Greece and Turkey continually act as “buffer zones”.
2.3 A statement which leaves asylum seekers and migrants in limbo
The EU-Turkey Statement foresaw the return of asylum seekers and migrants who have arrived to Greece irregularly by sea. Implementation of the EU-Turkey Statement together with the hotspot approach established by the European Commission in 2015 led to the containment and long-term detention of asylum seekers and migrants in the Greek Islands in dire conditions.
The poor reception and detention conditions in the Greek islands are well documented and the absence of any measures to address COVID-19 in the camps makes it even worse. Apart from solidarity from the local Greek population and civil society, migrants stuck in the islands are left alone without any option to go forward. The fire in the Moria camp in Lesvos once again highlighted the problem of “locked and forgotten” people in the Greek islands who have no option to go back or forward. It is clear that long term detention of migrants and asylum seekers in poor conditions in the Greek islands is incompatible with Article 3 and Article 5 of the ECHR in addition to other human rights guarantees.
However, Greece is not the only actor to be blamed for this: the EU which established the hotspot approach and facilitated (if not authored) the EU-Turkey Statement is also responsible – in addition to the Member States that failed to share the responsibility of Greece and show real solidarity. The new Migration Pact acknowledging this problem proposes a new solidarity mechanism moreover, the Commission declared that it would establish a dedicated taskforce to improve the situation on the Greek islands beginning with Lesvos. Yet, although improving reception conditions in the Greek islands is on the EU agenda, abolishing containment policies is not. On the contrary, the new Pact and the proposed regulations expand the possibility to further detain asylum seekers and migrants.
3. EU-Turkey Statement. A short-sided reaction to a complex situation
Drafted and signed in “crisis” mode, the reactionary nature of the Statement is de facto short sighted. Primarily aimed at ending large scale irregular arrivals of migrants and asylum seekers to the EU by sea, the Statement did not include any meaningful supervision or accountability mechanism or any additional safeguards to ensure human rights are respected. Moreover, the Statement which, among others, aimed to improve the relationship between Turkey and the EU and was a step towards energising the accession process of Turkey ended up eroding the relationship between the EU and Turkey.
3.1 Absence of a meaningful accountability and supervision mechanism
One of the most problematic aspects of the Statement is that there is very little data on how it is being implemented. So far the EU has published seven reports on the progress made in the implementation of the EU-Turkey Statement. These progress reports were one-sided and had a number of shortcomings. The last progress report was published on 6 September 2017 and from that date on, no individual progress report in relation to the EU-Turkey Statement has been published by the European Commission. Since 2018, several Progress reports on the Implementation of the European Agenda on Migration and fact sheets offer fragmented data and information on the implementation of the Statement. Turkey does not publish any individual reports on how the Statement is being implemented though the website of the Turkish DGMM releases data on the number of returns from Greece to Turkey and the number of persons resettled under the 1:1 resettlement scheme.
The lack of data and confusing information on the implementation are not a coincidence since any reporting or monitoring mechanism was significantly absent in the text of the Statement. Defining itself as “… a temporary and extraordinary measure”, drafters of the Statement avoided any instrument that might challenge, slow down or assess the implementation. Due to the absence of any specific monitoring or supervision bodies or accountability mechanisms, shortcomings or misconduct taking place during the implementation of the Statement cannot be identified. Furthermore, considering that the Statement has been affecting the lives of thousands of migrants and asylum seekers for the last four years – reliable and objective supervision and accountability mechanisms are needed now more than ever to safeguard fundamental rights and human dignity.
3.2 Readmission: From temporary and extraordinary to the new normal
The EU-Turkey Statement underlined that readmissions from Greece to Turkey “will be a temporary and extraordinary measure which is necessary to end the human suffering and restore public order”. The Statement which was agreed as a temporary measure is in its fourth year and readmission of migrants and rejected asylum seekers became a central theme in European policies to manage migration. The new Pact on Migration and Asylum puts an emphasis on ‘return’ and even proposes solidarity in returning people through return sponsorships.
The EU Commission identifies the legal basis of irregular migrants being returned from the Greek islands to Turkey as the bilateral readmission agreement between Greece and Turkey and notes that “from 1 June 2016, this will be succeeded by the EU-Turkey Readmission Agreement, following the entry into force of the provisions on readmission of third country nationals of this agreement.” It is reported that Turkey unilaterally suspended its readmission agreement with Greece in 2018 as a response to a Greek court decision to release eight former Turkish soldiers who fled the country a day after the July 15, 2016 coup attempt. Moreover, Turkish Minister of Foreign Affairs Mevlüt Çavuşoğlu declared that Turkey suspended the EU-Turkey Readmission Agreement in July 2019 due to the fact that the visa liberalisation process for Turkish citizens had not been completed by the EU. If these reports are accurate, this means the return of persons from Greece to Turkey under the Statement have no legal basis.
The new Pact on Migration and Asylum includes the proposal of a Regulation addressing situations of crisis and force majeure in the field of migration and asylum which seeks to provide temporary and extraordinary measures needed in the face of a crisis. It is striking that in the Explanatory Memorandum section of the proposed Regulation, the Greek-Turkish border crisis is mentioned as an example where “temporary and extraordinary measures” can be applied due to situations of force majeure. However, the very reason we witnessed the March 2020 Greek-Turkish border crisis is the Statement itself and its one-sided and short-sighted policies.
There are precious lessons to be learned from the EU-Turkey Statement. Replicating the Statement with no amendments will harm the rule of law, violate human rights and cause further human suffering. At a minimum, all future EU-third country arrangements should observe the following principles so as not to repeat the mistakes of the EU-Turkey Statement. First, the EU-third country arrangements should not be in the form of soft law and the EU should own these future arrangements and take responsibility for the agreed measures. Second, objective and reliable monitoring, supervision and accountability mechanisms should be introduced to safeguard the fundamental rights of all persons who are subjects of these arrangements. Third, readmission agreements, as shown in the case of Turkey, can easily be denounced and persuading transit countries or countries of origin to take people back is no easy task. Hence, placing ‘return’ at the centre of supranational migration and asylum laws and policies is not viable and makes ‘refugees’ susceptible to be used as chips in readmission negotiations. Finally, containment policies which leave human beings in legal and actual limbo are not feasible ways to deal with a migration situation, crisis or not.