Is The Eu-Turkey Refugee As Well As Migration Bargain A Treaty?

Maarten den Heijer*, Thomas Spijkerboer**

*Assistant professor of international constabulary at the Universiteit van Amsterdam

**Professor of migration constabulary at the Vrije Universiteit Amsterdam.

In the European Parliament, questions were asked nearly the legal nature of the the catch of Steve Peers on this blog: “Since the understanding volition select the shape of a ‘statement’, inwards my catch it volition non every bit such live legally binding. Therefore at that topographic point volition live no physical care for to approve it at either European Union or national level, likewise its endorsement past times the summit meeting. Nor tin it live legally challenged every bit such. However, the private elements of it – novel new Greek, Turkish together with European Union laws (or their implementation), together with the farther implementation of the EU/Turkey readmission understanding – will conduct hold to live approved at the relevant level, or implemented inwards private cases if they are already inwards force.” Karolína Babická appears to share this view: “The EU-Turkey statement every bit such is non legally binding. It is only a politically binding articulation declaration. It is non challengeable every bit such but its implementation inwards exercise volition live perchance challenged inwards court.”

A farther ground non to catch the statement every bit a treaty is that it does non utilisation price every bit shall together with should, which are ordinarily used inwards international constabulary to dot obligations of resultant (shall) or obligations of effort (should). Instead, the to a greater extent than indistinct term ‘will’ is used. On the other hand, the Statement says that the European Union together with Turkey “have agreed on the next additional points”. Article 216 TFEU uses the term ‘agreement’ when referring to a treaty alongside tertiary countries. If 2 parties grip to something, tin the resultant live anything less than an “agreement”? Or is the pregnant of the term understanding inwards Art. 216 TFEU dissimilar from its ordinary meaning?

If i would comprehend the thought that the Statement of xviii March is non a treaty or understanding because it is designated every bit “Statement” together with uses the term “will”, it would follow that the European Union could fail the constitutional safeguards of Art. 218 TFEU past times changing the shape or terminology of a special text. It would live rather strange if the EP together with CJEU could live sidetracked past times such clever ruses. It would hateful that the applicability of constitutional safeguards depends alone on choices regarding the blueprint instead of content made past times Commission or Council.

That the shape is non decisive is confirmed inwards the instance constabulary of the International Court of Justice. In Aegean Sea, the inquiry was whether a articulation communiqué, issued after a coming together betwixt the Prime Ministers of Hellenic Republic together with Turkey, inwards which they agreed that a territorial dispute dividing the 2 countries should live resolved past times the ICJ, constituted a treaty on the ground of which the ICJ had jurisdiction over the case. The Court held:

95. The Brussels Communiqué of 31 May 1975 does non behavior whatsoever signature or initials, together with the Court was informed past times counsel for Hellenic Republic that the Prime Ministers issued it straight to the press during a press conference held at the conclusion of their coming together on that date. The Turkish Government, inwards the observations which it transmitted to the Court on 25 August 1976, considered it "evident that a articulation communiqué does non amount to an understanding nether international law", adding that "If it were one, it would demand to live ratified at to the lowest degree on the component of Turkey" (para. 15). The Greek Government, on the other hand, maintains that a articulation communiqué may constitute such an agreement. To conduct hold this effect, it says, "It is necessary, together with it is sufficient, for the communiqué to include-in add-on to the customary forms, protestations of friendship, recital of major principles together with declarations of intent-provisions of a treaty nature" (Memorial, para. 279). Counsel for Greece, moreover, referred to the number of articulation communiqués every bit "a modern ritual which has acquired total status inwards international practice".

96. On the inquiry of form, the Court demand only detect that it knows of no dominion of international constabulary which powerfulness prevent a articulation communiqué from constituting an international understanding to submit a dispute to arbitration or judicial short town (cf. Arts. 2, three together with xi of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does non constitute such an understanding essentially depends on the nature of the human activity or transaction to which the Communiqué gives expression; together with it does non settle the inquiry simply to refer to the shape - a communiqué - inwards which that human activity or transaction is embodied. On the contrary, inwards determining what was indeed the nature of the human activity or transaction embodied inwards the Brussels Communiqué, the Court must conduct hold regard higher upwards all to its actual price together with to the special circumstances inwards which it was drawn up.

The ICJ institute that the price of the communiqué, using price every bit “decision” together with “obligation” were indicative of the parties intending to bind themselves. However, it transpired from the context, namely previous together with later negotiations together with diplomatic exchanges betwixt the parties, that they had non yet undertaken an unconditional commitment to submit the continental shelf dispute to the Court.

In Qatar/Bahrain, the inquiry was whether minutes of a coming together betwixt 2 Foreign Ministers constituted a treaty. The ICJ held:

24. The 1990 Minutes refer to the consultations betwixt the 2 Foreign Ministers of Bahrain together with Qatar, inwards the presence of the Foreign Minister of Saudi Arabia, together with province what had been "agreed" betwixt the Parties. In paragraph 1 the commitments previously entered into are reaffirmed (which includes, at the least, the understanding constituted past times the exchanges of letters of Dec 1987). In paragraph 2, the Minutes supply for the expert offices of the King of Kingdom of Saudi Arabia to maintain until May 1991, together with exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed nether which the dispute may afterward live submitted to the Court. Qatar's credence of the Bahraini formula is placed on record. The Minutes supply that the Saudi expert offices are to maintain piece the instance is pending before the Court, together with instruct on to Say that, if a compromise understanding is reached during that time, the instance is to live withdrawn. 25. Thus the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd alongside the trouble of attempting to disclose a solution to the dispute during a current of half-dozen months; and, lastly, they address the circumstances nether which the Court could live seised after May 1991. Accordingly, together with reverse to the contentions of Bahrain, the Minutes are non a uncomplicated tape of a meeting, similar to those drawn upwards inside the framework of the Tripartite Committee; they do non simply give an line of piece of employment concern human relationship of discussions together with summarize points of understanding together with disagreement. They enumerate the commitments to which the Parties conduct hold consented. They thus do rights together with obligations inwards international constabulary for the Parties. They constitute an international agreement.

On that basis, the ICJ concluded the dispute to live inside its jurisdiction. It follows that the inquiry of whether a text is a treaty does non depend on shape but on whether the parties intended to bind themselves. Whether at that topographic point is such intent, depends on the price used together with the context inwards which the text was drawn up.

There is no ground to assume that this reasoning does non apply to the European Union (which is non a political party to the Vienna Convention on the Law of Treaties). In interpreting agreements concluded betwixt the European Union together with tertiary countries, the CJEU consistently observes that even though the Vienna Convention does non bind either the Community or all its Member States, a serial of provisions inwards that convention reverberate the rules of customary international constabulary which, every bit such, are binding upon the Community institutions together with shape component of the Community legal guild (C-386/08, Brita, par 42). Presumably, the Definition of a treaty inwards Art. 2(1)(a) VCLT belongs to customary international law. The 1986 Vienna Convention on the Law of Treaties betwixt States together with International Organizations or betwixt International Organizations, which has non yet entered into force, uses the same Definition together with expands it to agreements concluded betwixt international organizations or an international organisation together with a state.

Both the text together with context of the EU-Turkey Statement back upwards the catch that it is a treaty. The parties “decided” to terminate the irregular migration from Turkey to the EU, and, to that purpose, they “agreed” on a number of activity points. These include a commitment on the component of Turkey to select returned migrants together with a commitment on the component of the European Union to select for resettlement i Syrian for every i Syrian returned to Turkey. Further, the Statement reaffirms the articulation activity programme of Nov 2015 together with mentions that it is already beingness implemented. Indeed, several implementation reports conduct hold been drawn upwards since Nov 2015, from which it is clear that the previous activity programme has been activated (here together with here). The EU-Turkey Statement right away at number is also beingness implemented. For example, the Greek parliament has passed a law allowing migrants arriving inwards the province to live returned to Turkey. On Mon four Apr 2016, Turkey accepted the showtime returned asylum seekers from Greece. All this indicates that the EU-Turkey Statement was meant to sort legal effects. This, inwards turn, indicates that both parties intended to bind themselves together with that, therefore, it is a treaty.

One way to struggle that the EU-Turkey statement is non an understanding inwards the feel of Article 216 TFEU would live to posit that it simply reconfirms already existing obligations from previous agreements (such every bit the EU-Turkey together with Greece-Turkey Readmission Agreements). But textually every bit good every bit contextually, that statement is hard to uphold. First, the noun component of the understanding opens alongside the determination to render all irregular migrants to Turkey. Even though this judgement is followed past times qualifications nearly compatibility alongside international together with European constabulary together with fifty-fifty the explicit statement that this does non constitute collective expulsion, this is a highly novel (and legally rattling questionable) element, which tin hardly live construed every bit a restatement of pre-existing obligations. The same is truthful for the European Union commitments to resettle Syrians from Turkey together with the additional funding for the Facility for Refugees inwards Turkey of three billion euro. Secondly, it is good known that the pre-existing readmission obligations (on the ground of the EU-Turkey together with Greece-Turkey Readmission Agreements) were barely beingness applied. Therefore, the fact that Turkey agreed that, every bit of xx March 2016, all irregular migrants were to live accepted is a substantively novel element. The thought that the EU-Turkey Statement simply repeats pre-existing legal obligations is non convincing.

Does the fact that the internal European Union rules were perchance non followed hateful that the Statement does non conduct hold legal effect? Probably not, every bit the Statement was agreed past times the Members of the European Council, whom Turkey could conduct hold considered to conduct hold total powers to bind the EU. Article 46 VCLT provides that a political party may non “invoke the fact that its consent to live saltation past times a treaty has been expressed inwards violation of a provision of its internal constabulary regarding competence to conclude treaties every bit invalidating its consent unless that violation was manifest together with concerned a dominion of its internal constabulary of key importance”. Paragraph 2 of that provision provides that a violation is manifest if it would live objectively evident to whatsoever State conducting itself inwards the affair inwards accordance alongside normal exercise together with inwards expert faith. In Qatar/Bahrain, the ICJ did non consider it relevant that Qatar had non followed the procedures required past times its ain Constitution for the conclusion of treaties: “Nor is at that topographic point anything inwards the fabric before the Court which would justify deducing from whatsoever disregard past times Qatar of its constitutional rules relating to the conclusion of treaties that it did non intend to conclude, together with did non consider that it had concluded, an musical instrument of that kind; nor could whatsoever such intention, fifty-fifty if shown to exist, prevail over the actual price of the musical instrument inwards question.” (par. 29).

We are thus of the catch that the EU-Turkey Statement is a treaty alongside legal effects, despite its cry together with despite internal European Union rules non having been observed.

Why is the binding nature relevant?

That the Statement is a treaty implies non only that the European Union together with Turkey must uphold its terms; it also opens upwards a debate out is legal effects, including possible challenges against its legality inwards catch of possible conflict alongside other rules together with treaties, such every bit human rights. The fact that the Statement has already been concluded together with is thus no longer simply ‘envisaged’, means, however, that it is no longer possible to obtain an catch of the CJEU “as to whether an understanding envisaged is compatible alongside the Treaties” (Art. 218(11) TFEU). It is soundless possible for i of the European Union institutions or a Member State to convey an activity for annulment of the human activity of the European Council to conclude the understanding alongside Turkey. Such an activity was successfully brought inwards Commission v France (C-327/91), when the ECJ declared void the human activity whereby the Commission sought to conclude a contest understanding alongside the US, for ground of the Commission non beingness empowered to do so. However, this left the Agreement alongside the U.S.A. of America itself intact, which is inwards conformity alongside the dominion of Article 46 VCLT.

In catch of the default seat inwards international constabulary that all treaties are equal, it farther is hard to struggle that the Statement is void because of a possible conflict alongside human rights such every bit guaranteed inwards the ECHR or inside the European Union legal order, such every bit the correct to asylum together with the prohibitions of non-refoulement together with collective expulsion. Only if the EU-Turkey Statement conflicts alongside jus cogens, is it to live considered void together with may Member States non give resultant to it (Art. 53 VCLT).

It is soundless possible for individuals (such every bit those beingness returned from Hellenic Republic to Turkey) to challenge the implementation of the EU-Turkey understanding before national courts, arguing that it conflicts alongside key rights. This inwards turn, may Pb to a referral to the CJEU or a electrical load before the ECtHR. Is the understanding inwards violation of human rights? As has been argued past times UNHCR (here together with here) together with many others (eg here), the understanding may good enhance issues nether (at least) the prohibition of refoulement (is Turkey security together with is at that topographic point a conduct chances of expulsion from Turkey?), the correct to liberty (is systematic detention inwards Hellenic Republic allowed?) together with the prohibition of collective expulsion (are the returnees able to challenge their render on private basis, including before a court?). However, the Statement does non prescribe how, exactly, returns are to live effectuated together with does non oblige Hellenic Republic to systematically detain all asylum seekers who locomote into the province from Turkey. The Statement says that returns are to “take identify inwards total accordance alongside European Union together with international law, thus excluding whatsoever form of collective expulsion” together with that “[a]ll migrants volition live protected inwards accordance alongside the relevant international standards together with inwards honour of the regulation of non-refoulement.” Further, migrants are to live “duly registered together with whatsoever application for asylum volition live processed individually past times the Greek authorities inwards accordance alongside the Asylum Procedures Directive.” It would seem thus that the Statement itself does non straight violate international norms – it leaves the Member States sufficient liberty to implement the obligations inwards harmony alongside human rights. It follows that the Member States (Greece) must implement the understanding inwards harmony alongside human rights: “Where a number of champaign contradictory instruments are simultaneously applicable, they must live construed inwards such a way every bit to coordinate their effects together with avoid whatsoever opposition betwixt them. Two diverging commitments must thus live harmonised every bit far every bit possible then that they make effects that are fully inwards accordance alongside existing law.” (ECtHR Nada v Switzerland, par 170).

Conclusion

This brings us to 2 in conclusion observations. First, the devil of implementing the EU-Turkey grapple is inwards the detail. Although its effectiveness inwards price of stopping irregular migration past times creating a deterrent resultant may depend on returning all persons arriving inwards Hellenic Republic as rapidly every bit possible, key rights may good halt returns inwards private cases or resultant inwards lengthy procedures. It is indeed the inquiry whether the appropriate human rights framework is inwards identify inwards Hellenic Republic (as is observed past times UNHCR).  Second, the EP is correct inwards bespeak critical questions nearly the Council non next the rules for in conclusion a treaty (also consider earlier questions nearly the EU-Turkey grapple of 29 Nov 2015). Although i could select the catch that fourth dimension did non allow to appear an Opinion of the CJEU, the understanding was non concluded alongside Turkey overnight together with at that topographic point would at to the lowest degree seem to conduct hold been chance to inquire consent from European Parliament (Art. 218(6) says that, inwards an “urgent situation”, EP together with Council may grip on a time-limit for consent). That the institutional role of the EP has been neglected confirms the worrying tendency that intergovernmental decision-making is taking over inwards the Union, together with that national interests increasingly oftentimes prevail over the mutual values of the Union. This is bad for European democracy.

Barnard & Peers: chapter 24, chapter 26

JHA4: chapter I:5

Photo credit: rabble.org.uk

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