Tag Archive | "The European Union"

The EU-Turkey Statement – Questions on Legality and Efficiency

Introduction

PowerPoint Presentation

The European Union (“EU”) has been facing challenges in recent years related to the large number of people who want to come to Europe. Although the ongoing conflicts in Syria, Iraq, Afghanistan, Somalia, and Eritrea were not new, the influx of people migrating to Europe had peaked in 2015. An overwhelming flow of smuggled migrants and asylum seekers traveled on fragile boats across the Aegean Turkey to the Greek islands[1] aiming for Western Europe. In 2015 alone, more than one million people arrived in the EU, around 885,000 of them through Greece whose asylum and reception system lacked the capacity to register and provide shelter to the migrants.[2] The majority of migrants moved on towards central Europe without proper registration. As a consequence of this migration flow, some Member States tried to limit the number of migrants entering their territory by introducing temporary internal border controls, putting into question the proper functioning of free movement within the Schengen area.[3] While entry conditions were re-applied even in countries that are part of the Schengen area, the arrivals from Turkey to Greece continued resulting in a great number of migrants and refugees stranded in Greece.

Because of its geographical location within the migration routes, the European Union and its Member States pay special attention to cooperation with Turkey. In dealing with this migration crises, existing instruments emerged as inappropriate, and new measures were deemed necessary to replace the irregular migration with organized, safe, and legal channels to Europe.

EU-Turkey statement

In 2015, the European Union and Turkey have negotiated a number of instruments regarding the flow of migrants coming from Turkey to the European Union, including a Joint Action Plan activated on November 29, 2015.[4]  The plan aimed at strengthening cooperation to prevent irregular migration and included financial support from the EU to Turkey.[5] More negotiations followed,[6] and in a press release published on March 18, 2016, the Council of the European Union announced through a joint statement that the EU and Turkey agreed on certain additional points,[7] important issues included[8]:

  • As of March 20, 2016, migrants crossing from Turkey into Greek islands will be returned to Turkey, a measure that was deemed “temporary and extraordinary” but “necessary to end the human suffering and restore public order.”[9]
  • For every Syrian being returned to Turkey, another legally registered Syrian refugee will be resettled from Turkey to the EU, up to a maximum of 72,000 people (so-called “one-for-one deal”[10]).
  • The EU will speed up the disbursement of previously allocated 3 billion euro, and mobilize funding of an additional 3 billion euro until the end of 2018.
  • Turkey will take any necessary measures to prevent new sea or land routes for illegal migration open from Turkey to the EU.
  • The EU will accelerate the fulfilment of visa liberalization for Turkish citizens.

The purpose of these action points was “to break the business model of smugglers and to offer migrants and alternative to putting their lives at risk.”[11] The EU tried to limit the overwhelming flow of smuggled refugees coming from Turkey via the Aegean to the Greek islands resulting in numerous shipwrecks and deaths on sea. The process of implementing the statement was monitored and coordinated by the European Commission. The deal raised many legal and political issues.

Question of legality and the General Court’s decisions

The EU-Turkey statement has been one of the most controversial policy steps taken by the EU and its Member States in recent year.[12] Intergovernmental organizations as well as human rights NGOs have criticized the deal,[13] and especially its legality should be questioned.

When examining the legality of the statement, we first have to assess the legal nature of the so-called “statement.”[14] While the name and form alone cannot be decisive, the facts that it is not called “agreement” and that it has a different form than international agreements usually have – it does not contain any signatures for example – indicates that it is not intended to be a binding international agreement. Additionally, it was not concluded following the required procedures of the Treaty on the Functioning of the European Union.[15] It appears that the statement constitutes a simple political commitment between the parties.[16]

The form of a document, however, is not as important in determining its legal nature as its aim and content which are essential criteria.[17] The document institutes a number of commitments for the EU, and has therefore a similar content to that of an international agreement. The use of certain terminology, words like “decided” and “agreed,” shows that the commitments have a normative and binding character.[18] Based on this assessment, the deal seems to constitute an international agreement.

If the EU-Turkey Statement indeed is an international agreement with the EU as a party, judicial examination before the European courts would be possible. In early 2017, the General Court dismissed three cases brought by asylum seekers who were affected by the deal on the ground that it lacked jurisdiction to hear them.[19] The court reasoned that the deal was not an act of an EU institution, but that of the Member States.[20]

The cases were brought by Afghan and Pakistani nationals who came to Greece from Turkey by boat after the EU-Turkey statement was implemented. In Greece, they were forced by Greek authorities to submit their asylum applications. Pursuant to the EU-Turkey statement, they face the risk to be returned to Turkey if their applications are rejected, so they decided to challenge the legality of the statement. They argued before the court that the EU-Turkey Statement was an act attributable to the European Council establishing an international agreement between the European Union and Turkey, and sought annulment of the act[21] because the established process to conclude international agreements by the EU was not followed.

The Court states in its three Court Orders that there were inaccuracies in the press release that announced the statement as to the identification of the authors of the EU-Turkey statement.[22] The press release indicates that it was the EU, not its Member States who acted, and that it was the “Members of the European Council”[23] who had met with their Turkish counterpart during the meeting which gave rise to the press release. The Court examined the evidence provided by the European Council regarding the meetings on the migration crisis held in 2015 and 2016 and concluded that it shows that it was indeed not the EU but its Member States who conducted the negotiations.[24]

The Court specifically stated that there were actually two different events that took place on March 17 and 18, 2016: First, on March 17, 2016, the European Council, as an institution of the European Union, held a session with representatives of the Member States acting in their capacity as members of the European Council.[25] Second, an international summit took place on March 18, 2016, where representatives of the Member States acted in their capacity as Heads of State or Government.[26] The Court states that the two events were organized in parallel in distinct ways from a legal, formal and organizational perspective, confirming the distinct legal nature of those two events.[27] The second meeting had taken place in the same building as that used for the meetings of the European Council for reasons of costs, security and efficiency.[28] Thus, the Court concluded that neither the European Council nor any other institution of the European Union decided to enter into an agreement with the Turkish government regarding migration,[29] and that it therefore does not have jurisdiction to review the lawfulness of the statement.[30]

The three Court Orders have been appealed to the Court of Justice of the EU,[31] and decisions are still pending. Whether the Court will take a different approach than the General Court remains to be seen.

Further analysis and critique

With view to these three decisions outlining that it was not the EU or any of its institutions acting, the question becomes whether the Member States were competent to act on their own. The instruments and procedures to conduct law- and policy-making within the European Union are laid out in the TFEU. Pursuant to Art. 2(2) TFEU, in areas of shared competences which includes area of freedom, security and justice (Art. 4(2)(j) TFEU), Member States are only allowed to exercise their competence to the extent the European Union has not exercised its competence. Since the European Union has exercised its competence in this specific area, Member States are precluded to enter into an agreement with Turkey on that topic.[32] Some scholars therefore conclude that the Member States had no competence to act in any way on issues covered by the deal.[33] Other scholars state that the EU-Turkey deal constitutes a “new mode of action at the European level”[34] and even called it a “strange legal creature.”[35] The critique is that this crisis-led governance circumvents the democratic and judicial checks and balances laid down in EU treaties.[36] Determining the responsible actors became more difficult with the decisions of the General Court, and that constitutes a serious challenge to the transparence, accountability, and quality of EU decision-making.[37] Furthermore, a crisis should not exempt European Union actors from their obligations, in the end “the legitimacy of the EU project is at stake.”[38]

Practical implications – were the objectives achieved?

            Putting the legal and political controversies aside, the practical effects of the EU-Turkey Statement were immediate: arrivals decreased dramatically from more than 10,000 migrants arriving in a single day in October 2015 to around 43 daily arrivals in March of 2016.[39] The number of deaths in the Aegean decreased from 1,145 in the year before the EU-Turkey Statement to 80 in the following year. Although arrivals sharply decreased after the EU-Turkey deal was implemented, the United Nations refugee agency statistics show that still about 26,000 people made the treacherous journey via the Eastern Mediterranean route between January and September of 2017.[40] With a decrease of arrivals, the total number of deaths also went down. However, critics point out that the number of those who either died or went missing at sea has never fallen below 3,000 per year (this number relates to total deaths in the Mediterranean Sea, not only on the Eastern route).[41] In fact, there are fewer people attempting the journey, but the risks of dying in the Mediterranean have only grown as smuggling networks employ more dangerous routes and methods using smaller, overcrowded vessels that are not seaworthy: In 2015, there was a 1 in 269 chance of dying or going missing at sea for those who crossed the Mediterranean; in 2016, the number increased to a 1 in 71 chance; and 2017, the odds rose to 1 in 55.[42]

Conclusion

While the legality of the EU-Turkey Statement is controversially discussed, it seems to be delivering on its main objectives of reducing the number of migrants arriving irregularly to the EU and the loss of lives in the Aegean. The question remains, however, whether a focus on containing the migration flow is desirable and effective when migration is a far more complex phenomenon.

 

Julia Roberts is Staff Editor with the Denver Journal of International Law and Policy, and a 1LE at University of Denver Sturm College of Law.

______________________________________________________________________________________________________________________________

[1] Elizabeth Collett, The Paradox of the EU-Turkey Refugee Deal, migration policy institute (Mar. 2016), https://www.migrationpolicy.org/news/paradox-eu-turkey-refugee-deal

[2] European Commission, Factsheet EU-Turkey Statement – One year on, Eur. Agenda on Migration – Factsheets (Mar. 17, 2017), https://ec.europa.eu/home-affairs/sites/homeaffairs/files/what-we-do/policies/european-agenda-migration/background-information/eu_turkey_statement_17032017_en.pdf.

[3] Id. The Schengen area is an area between twenty-six European Union countries where boarder checks have largely been eliminated to allow free movement throughout the entire zone.

[4] European Commission Press Release MEMO/15/5860, European Commission – Fact Sheet

EU-Turkey joint action plan (Oc. 15, 2015).

[5] Id.

[6] See generally Narin Idriz, The EU-Turkey Statement or the ‘Refugee Deal’: The Extra-Legal Deal of Extraordinary Times?, 2017-06 Asser Inst. for Int’l & Eur. Law Res. Paper 4-5 (2017).

[7] European Council Press Release 144/16, EU-Turkey statement, 18 March 2016 (Mar. 18, 2016).

[8] Id.

[9] Id.

[10] Kenan Malik, The dark side of the EU-Turkey refugee deal, Al Jazeera Media Network (Mar. 9, 2016), http://www.aljazeera.com/indepth/opinion/2016/03/dark-side-eu-turkey-refugee-deal-160309080433064.html

[11] European Council Press Release 144/16, supra note 7.

[12] Idriz, supra note 6, at 2.

[13] See Idriz, supra note 6 at 6.

[14] European Council Press Release 144/16, supra note 7.

[15] Consolidated Version of the Treaty on the Functioning of the European Union, 2008 O.J. C 115/47 [hereinafter TFEU].

[16] Constanța Mătușescu, Considerations on the Legal Nature and Validity of the EU-Turkey Refugee Deal, IV Int’l J. of L. & Juris. Online Semiann. Publ’n 95 (2016).

[17] Id. at 97.

[18] Id.

[19] Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 (Feb. 28, 2017); Case T-193/16, NG v. European Council, ECLI:EU:T:2017:129 (Feb. 28, 2017); and Case T-257/16, NM v. European Council, ECLI:EU:T:2017:130 (Feb. 28, 2017).

[20] See, e.g., Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 at ¶ 73 (Feb. 28, 2017).

[21] See, e.g., Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 (Feb. 28, 2017).

[22] See, e.g., id. at ¶ 53.

[23] European Council Press Release 144/16, supra note 7.

[24] See, e.g., Case T-192/16, NF v. European Council, ECLI:EU:T:2017:128 at ¶ 49-55 (Feb. 28, 2017).

[25] See, e.g., id. at ¶ 63-64.

[26] See, e.g., id. at ¶ 63.

[27] See, e.g., id. at ¶ 62.

[28] See, e.g., id. at ¶ 63.

[29] See, e.g., id. at ¶ 71.

[30] See, e.g., id. at ¶ 73.

[31] See Idriz, supra note 6 at 14.

[32] Idriz, supra note 6 at 11.

[33] Idriz, supra note 6 at 13.

[34] Mătușescu, supra note 16 at 100.

[35] Sergio Carrera, Leonhard den Hertog & Marco Stefan, It wasn’t me! The Luxemburg Court Orders on the EU-Turkey Refugee Deal, CEPS Policy Insight No. 2017/15, Apr. 2017, at 2.

[36] Mătușescu, supra note 16 at 100.; and Carrera, et al., supra note 35 at 8.

[37] Carrera, et al., supra note 35 at 7.

[38] Id. at 13.

[39] European Commission, supra note 2.

[40] United Nations High Commissioner for Refugees, Desperate Journeys, Update January through September 2017 (Nov. 2017), https://data2.unhcr.org/en/documents/download/60865.

[41] See id.

[42] Priyanka Boghani, The “Human Cost” of The EU’s Response to the Refugee Crisis, Pub. Broad. Serv. (Jan. 23, 2018), https://www.pbs.org/wgbh/frontline/article/the-human-cost-of-the-eus-response-to-the-refugee-crisis/.

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News Post: Is Austerity the Answer Europe’s Been Looking For?

Since the collapse of the world markets, Europe has been obsessed with austerity.  Just recently, 25 of 27 EU member states agreed to a new “fiscal compact” that would never allow them to have a cyclically adjusted budget deficit of more than 0.5% GDP.  As the American economy has begun to heal, Europe’s austerity policies have drawn the scrutiny of economists from around the world.  Some see the measures as an impediment to global economic recovery; others see the efforts as a worthy, albeit frustrating, strategy for long-term stability and growth.  Considering the depth of the crisis, the ultimate verdict on European austerity will be out for years to come.

When Prime Minister Cameron took power, Britain “was supposed to be a showcase for ‘expansionary austerity.’”  Those skeptical of Cameron’s strategy, which has been adopted by a majority of EU nations, point to Britain’s paltry recovery in comparison to that from the Great Depression as a sign that austerity has effectively failed.  Four years into the Great Depression, Britain had regained its peak in GDP.  In comparison, at the same point in its current recovery, Britain is “nowhere close to regaining its lost ground.”  Such comparisons are not unique to Britain, as Italy and Spain are experiencing similarly frustrating recoveries in comparison to the 1930s.  Nonetheless, European leaders continue to beat the drums of austerity as the best option for recovery.

Austerity protesters in Brussels (AP Photo/Geert Vanden Wijngaert)

Those supporting Europe’s austerity measures recognize the short-term perils of a reduction in expenditures.  The argument goes, whatever short-run impact lower demand will have on Europe’s debt ratio will be offset by rebounds in future demand.  In the long-run, therefore, austerity’s impact on deficits, as opposed to debt ratios, will spur even greater economic growth.  Proponents suggest that prospective buyers of long-term European bonds would be wise to maintain confidence in austerity’s positive influence on deficits, not on the short-term negative impact it has on debt ratios, as a sign of long-term economic health.   In the end, cutting deficits will allow European countries to take on more risk in the future, increasing potential for growth.  Europe need only survive the short-term pains of austerity to reap its long-term rewards.

A glance at recent headlines would suggest Europe’s economy has only two options: austerity or stimulus.  Some suggest, however, that the answers to Europe’s crisis may not be so polarized.  Although stimulus may provide a shot of confidence to the system, the long term deficit impacts could impede future growth. Alternatively, austerity could forever stunt the development of a whole generation of European workers and consumers.  Many economists believe the true answer to Europe’s economic woes resides in neither camp, but rather in a more stable fiscal union of European states.  Former ECB president Jean-Claude Trichet envisioned the creation of a euro-zone Ministry of Finance to oversee national budgets and economic policies.  In order for such a system to succeed, members of the euro zone must commit themselves to developing more consistent and universal labor costs, levels of productivity, and financial systems for example.  Given the EU’s unity struggles over the last several decades, this will certainly be no small task.

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