Maarten den Heijer*, Thomas Spijkerboer**
*Assistant professor of international law at the Universiteit van Amsterdam
**Professor of migration law at the Vrije Universiteit Amsterdam.
The European Parliament recently inquired about the legal standing of the EU-Turkey Statement of March 18th, which initiated the return of asylum seekers from Greece to Turkey. Concerns arose because the agreement bypassed the standard EU treaty procedure outlined in Article 218 TFEU. The Parliament seeks clarification on whether the Council views this statement as a binding treaty and, if not, whether Turkey is aware of its non-binding status. This is particularly important because treaties concerning areas like asylum and immigration, which fall under the ordinary legislative procedure, require the European Parliament’s consent before enactment (Art. 218(6)(a)(v) TFEU).
The Commission and Council legal teams seem to recognize this complexity. Shortly after the EU-Turkey Statement, the Commission put forward a proposal to modify the Relocation Decisions for Italy and Greece. This amendment aimed to shift some relocation responsibilities for asylum seekers arriving in those countries to accommodate Syrians in Turkey. However, instead of citing the EU-Turkey Statement as the basis for this change, the Commission’s proposal (specifically, consideration 4) references the Statement of the EU Heads of State or Government of March 7, 2016. In this statement, the European Council, not Turkey, agreed to a resettlement plan: for each Syrian Turkey takes back from the Greek islands, a different Syrian from Turkey would be resettled in an EU Member State. By using this justification, the Commission appears to circumvent the EU-Turkey Statement, likely to avoid strengthening arguments that it constitutes a formal treaty.
One could argue that due to its designation as a “statement,” the March 18th agreement doesn’t qualify as a treaty according to the Vienna Convention on the Law of Treaties or an international agreement as defined by Article 216 TFEU. Legal experts like Steve Peers and Karolína Babická support this view, emphasizing that the “statement” lacks legally binding power and, therefore, doesn’t necessitate approval at the EU or national level. However, they acknowledge that the individual components of the statement, like new Greek, Turkish, and EU laws or their implementation, would require approval.
Further supporting the argument against its classification as a treaty is the statement’s avoidance of terms like “shall” and “should,” typically used in international law to signify obligations. Instead, the statement employs the more ambiguous term “will.” Conversely, the document does state that the EU and Turkey “have agreed on the following additional points.” This language mirrors Article 216 TFEU, which uses “agreement” when referring to treaties with third countries. This raises the question: if two parties reach an “agreement,” can the outcome be anything other than an “agreement”? Does the term hold a different meaning in Article 216 TFEU than in common usage?
If the March 18th statement were deemed non-binding based solely on its label and wording, it would set a concerning precedent. The EU could potentially circumvent the constitutional safeguards of Art. 218 TFEU simply by manipulating a text’s form or language. Allowing the European Parliament and CJEU to be bypassed through such tactics would be problematic, as it would render constitutional safeguards contingent on the stylistic choices of the Commission or Council rather than the content’s substance.
International Court of Justice (ICJ) case law confirms that form alone is not the deciding factor. In the Aegean Sea case, the ICJ addressed whether a joint communiqué, resulting from a meeting between Greek and Turkish Prime Ministers, constituted a treaty. The communiqué proposed resolving a territorial dispute through the ICJ. The Court determined that a joint communiqué’s form didn’t inherently preclude it from representing an international agreement for dispute settlement. The crucial factor was the intent behind the communiqué, determined by analyzing its content and the context of its creation.
Similarly, the Qatar/Bahrain case saw the ICJ evaluating whether minutes from a meeting between two Foreign Ministers could be considered a treaty. The Court ruled that since the minutes detailed commitments agreed upon by the parties, creating international rights and obligations, they did constitute an international agreement. Again, the ICJ prioritized the content and intent over the document’s form.
Therefore, determining whether a text constitutes a treaty hinges on whether the parties intended to be bound by it, ascertained through analyzing the language used and the context in which the agreement was reached.
While the EU is not party to the Vienna Convention, this reasoning remains applicable. The CJEU consistently interprets agreements between the EU and third countries through the lens of customary international law, which includes the definition of a treaty as outlined in Article 2(1)(a) VCLT. This approach is further solidified by the Vienna Convention on the Law of Treaties between States and International Organizations, which broadens this definition to encompass agreements between international organizations or between an international organization and a state.
Examining the EU-Turkey Statement’s text and context supports its classification as a treaty. The parties “decided” to halt irregular migration between Turkey and the EU, and to achieve this, they “agreed” on several action points. This included Turkey’s commitment to receive returned migrants and the EU’s pledge to resettle one Syrian for each Syrian returned to Turkey. Additionally, the Statement reaffirms and outlines the implementation of a joint action plan established in November 2015, as evidenced by several implementation reports. The current EU-Turkey Statement is also being put into practice, with the Greek parliament passing a law enabling the return of migrants to Turkey, and Turkey already accepting returned asylum seekers from Greece. These developments strongly suggest the EU-Turkey Statement was designed to carry legal weight, indicating an intention from both sides to be bound by its terms, thereby solidifying its status as a treaty.
One might argue that the EU-Turkey Statement simply reiterates existing obligations outlined in previous agreements, such as the EU-Turkey and Greece-Turkey Readmission Agreements, and therefore doesn’t qualify as a new agreement under Article 216 TFEU. However, this argument is difficult to support. The agreement introduces novel elements, including the return of all irregular migrants to Turkey, which, while subject to international and European law and explicitly excluding collective expulsion, represents a significant departure from previous agreements. Similarly, the EU’s commitment to resettling Syrians from Turkey and the additional funding allocated for the Facility for Refugees in Turkey are new elements. Moreover, the previously established readmission obligations under the existing readmission agreements were poorly enforced. Therefore, Turkey’s agreement to accept all irregular migrants as of March 20, 2016, constitutes a substantial shift. The argument that the EU-Turkey Statement merely reiterates existing legal obligations lacks persuasiveness.
Does the potential disregard for internal EU rules negate the statement’s legal effect? Likely not, as the agreement was reached by the Members of the European Council, who Turkey could reasonably assume had the authority to bind the EU. Article 46 of the Vienna Convention on the Law of Treaties (VCLT) states that a party cannot invalidate its consent to a treaty by citing violations of its internal laws regarding treaty-making competence unless the violation was obvious and involved a fundamental rule of its internal law. The ICJ, in the Qatar/Bahrain case, disregarded Qatar’s failure to follow its own constitutional procedures for treaty ratification, emphasizing that such an omission did not negate the country’s intention to enter into the agreement.
Therefore, despite its designation as a “statement” and potential procedural irregularities, the EU-Turkey agreement should be regarded as a legally binding treaty.
Why does its binding nature matter?
The classification of the statement as a treaty goes beyond simply compelling the EU and Turkey to adhere to its provisions. It opens the door for discussions on its legal ramifications, including potential challenges based on conflicts with other rules and treaties, such as those concerning human rights. Since the agreement is already in effect, it is no longer possible to seek an opinion from the CJEU regarding its compatibility with existing treaties (Art. 218(11) TFEU). However, EU institutions or Member States still have the option to challenge the European Council’s decision to enter into this agreement with Turkey through an annulment action. A successful example of this is the Commission v France case (C-327/91), where the ECJ nullified the Commission’s attempt to establish a competition agreement with the US due to a lack of authority. However, this ruling did not affect the agreement itself, upholding the principle outlined in Article 46 VCLT.
Given that international law generally treats all treaties as equal, it is difficult to argue for the EU-Turkey Statement’s invalidity based on potential conflicts with human rights as protected by the ECHR or within the EU legal order. This includes rights like asylum, the principle of non-refoulement, and the prohibition of collective expulsion. Only a conflict with jus cogens, compelling norms of international law, would render the statement void and unenforceable by Member States (Art. 53 VCLT).
However, individuals affected by the agreement, such as those being returned from Greece to Turkey, can challenge its implementation in national courts by arguing human rights violations. This could lead to referrals to the CJEU or complaints before the ECtHR. There are valid concerns regarding the agreement’s potential infringement on human rights, as raised by UNHCR and others. These concerns relate to the prohibition of refoulement, questioning Turkey’s safety and the risk of expulsion from there; the right to liberty, questioning the legitimacy of systematic detention in Greece; and the prohibition of collective expulsion, questioning whether individuals can challenge their return, including through legal avenues.
However, the Statement itself avoids dictating the specifics of how returns should be executed and doesn’t mandate the systematic detention of all asylum seekers entering Greece from Turkey. It emphasizes that returns should be carried out “in full accordance with EU and international law,” thereby precluding collective expulsion. It guarantees the protection of all migrants “in accordance with the relevant international standards and in respect of the principle of non-refoulement.” Furthermore, it mandates proper registration of migrants and individual processing of asylum applications by Greek authorities, adhering to the Asylum Procedures Directive. These provisions suggest that the statement itself does not directly violate international norms, granting Member States flexibility in implementing the obligations while respecting human rights. Therefore, Member States, particularly Greece, are obligated to implement the agreement in a way that aligns with human rights. As established by the ECtHR in Nada v Switzerland, seemingly contradictory legal instruments should be interpreted and implemented harmoniously to avoid conflict and ensure compliance with existing laws.
Conclusion
The success of the EU-Turkey agreement hinges on the details of its implementation. Although its effectiveness in curbing irregular migration relies on a deterrent effect achieved by the swift return of all individuals arriving in Greece, upholding fundamental rights might hinder returns in specific cases or lead to protracted legal processes. It remains unclear whether Greece has the necessary framework to ensure the protection of human rights, as highlighted by UNHCR.
The European Parliament’s concerns about the Council bypassing established procedures for treaty ratification are valid. Although time constraints might have been a factor, the agreement with Turkey was not reached overnight, suggesting that seeking consent from the European Parliament was possible. Article 218(6) allows for expedited consent procedures in urgent situations. The disregard for the EP’s institutional role in this instance is concerning, as it highlights a trend of intergovernmental decision-making overshadowing the EU’s commitment to common values, potentially undermining European democracy.
Barnard & Peers: chapter 24, chapter 26
JHA4: chapter I:5
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