by Arindrajit Basu
On Tuesday, plumes of smoke, burnt garbage cans, and stone-throwing asylum-seekers scarred the Moria refugee compound on the Greek island of Lesbos. Ironically, the compound had been graced by a visit from Pope Francis as recently as April 16th. In furtherance of an insidious deal struck between the leaders of the EU and Turkey on March 18th, 13 migrants were deported on Tuesday to the Turkish town of Dikili to add to the 340 individuals that had already been sent back since the agreement came into effect on March 20th.
The agreement, touted as the only available means of mitigating the human catastrophe of the Middle-East Refugee crisis, essentially plans to turn Turkey into a gargantuan refugee-holding centre. By deterring refugees from reaching Greece, the EU leaders essentially sought to close the ‘Balkan route’ via Greece and Macedonia, thereby preventing millions of refugees fleeing the conflict in the Middle-East from reaching Europe. In return, the EU pledged to provide Turkey with three billion euros worth of aid for the refugees in addition to the three billion agreed upon last November. It will also expedite the approval of visa-free travel to Europe for Turkish citizens and revive dwindling negotiations over Turkey’s accession to the EU. Further, the EU also agreed to relocate a finite number of Syrian refugees – up to 72,000 – directly from Turkey to Europe in exchange for every Syrian smuggled to Greece but returned to Turkey. Finally, European leaders guaranteed that once the short term crisis is abated they will implement a “voluntary humanitarian admission scheme,” an ambiguously devised program whereby additional refugees would get rehabilitated among the various member states.
Contrary to European Council President Donald Tusk’s assertions, this incompetently negotiated deal is not the only available means of dealing with the Refugee Crisis and curbing human trafficking in Mediterranean Waters. In fact, the number of individuals braving the treacherous waters of the Aegean Sea has risen last week after a one month dip. This indicates that the measure may not succeed in its objective of deterring individuals for a notable period of time. Instead, it is a morally and legally reprehensible bargain that exacerbates the suffering of refugees, while simultaneously challenging the survival of the core democratic principles that formed the edifice of the EU ethos.
In this post, I deal both with the impact of the agreement on refugees and its consequent ramifications on International Human Rights Law, as well as the simultaneous subversion of democratic procedure, both of which this deal achieves with alacrity.
A Trade in Human Misery
The deal has already been criticised by multiple human rights organizations, including Amnesty International and Human Rights Watch, for setting up a ‘trade in human misery.’ The agreement also blatantly violates European and international law, since it might lead to the collective expulsion of individuals, thereby denying them the opportunity to seek refuge in the EU.
The Dublin Regulation, which is binding on all EU member nations, clearly states that asylum seekers should be received and processed in the first EU nation they enter. Sending the asylum-seekers en masse back to Turkey without a hearing would have been a blatant violation of not just of EU law but also numerous provisions of the 1951 Refugee Convention, most notably the obligation of non-refoulement. Hence, to lend a façade of legality to the agreement, EU member states insisted that Greece process asylum requests from all asylum-seekers and give them an expedited hearing and right to appeal.
Aye, therein lies the rub. Greece, plagued by a financial crisis and austerity generated political paralysis, has been unable to set up a working asylum process in the past two years. To expect it to establish an expedited system with judges, case officers, border guards, and translators ready for action within a day is quixotic, to say the least. Even if Greece were to achieve this admittedly Herculean task, the measure would still be in contravention of the principle of non-refoulement, that has long been recognized as a non-derogable principle of international law or jus cogens.
Safe Third Country?
This principle entails that asylum-seekers may only be returned to ‘safe third countries’ where they do not face a threat of serious harm or risk of being sent back to the country they are fleeing. Although Greece claims that Turkey is a safe-third country, the Courts may not agree. Turkey does not apply the standards of the Refugee Convention to refugees from outside the EU. Notwithstanding the fact that Turkey has spent roughly $9 billion supporting three million refugees, rights groups claim that many migrants in Turkey have been held in detention centres across the country without access to counsel or have been forcefully sent back to Syria.
The existing refugee protection framework in Turkey can be broadly divided into two categories: (1) Syrian nationals, who are given temporary protection status (with limited rights of employment) and (2) Refugees from all other countries, who have a right to international protection based on the Law on Foreigners and International Protection passed in 2014, although this stops short of granting full refugee status. More problematically, the framework for this protection exists more on paper than in practice. Turkey has emphatically stated that it will not allow the EU to monitor its asylum procedures to assess whether it is in compliance with the EU ‘safe third country requirements.’ Human Rights Groups say that refugees in Turkey face a “catalogue of human rights abuses.” Amnesty International has stated that Turkey sent back around 30 Afghans, after forcing them to sign “voluntary return” papers.
In fact, the ‘one for one’ exchange scheme devised by the EU makes matters worse: Turkey has no incentive to clamp down on the human smuggling that takes place on its shores, or reduce the number of individuals attempting the journey to Lesbos. For every irregular migrant that successfully completes the journey to Greece (and is subsequently returned to Turkey), Turkey will be able to send one of the Syrian refugees in its territory to the EU. Indeed, there was little attempt to stop the 1,600 who attempted the perilous journey across the Aegean Sea on March 21st, a day after the deal was signed. Four of those individuals drowned. The slight dip in the number of attempted journeys in the following two weeks could also be attributed to the high winds prevailing in the region at the time. The surge in the numbers (as soon as the weather conditions changed) lend validity to this claim. The EU seems to have failed to learn its lessons from last year when it cut funding for the rescue operations for migrant boats capsizing in the Mediterannean. This move, aimed at deterring these desperate individuals from attempting the journey only increased the dangers faced by refugees without reducing their numbers. It seems clear, therefore that, Turkey has negotiated a cosy deal for itself, at the expense of human life and well-being.
Abrogation of democratic tenets
Turkey isn’t the only winner here. Facing pressure from right-wing group and a strong anti-immigrant atmosphere at home, the leaders of EU states appear to have scored a major political victory. The fact that this political victory comes at the cost of democratic accountability does not seem to be niggling them. The European Council (which is the Heads of State of the EU Member Countries) unilaterally concluded the deal without giving the European Parliament or any other Parliament the opportunity to even read a draft.
This is symptomatic of a broader problem. The European Council is not known for its impeccable democratic record. While Article 10(2) of the Treaty on European Union (TEU) declares that the European Council is composed of Heads of States or Governments (‘themselves democratically accountable either to their national Parliaments, or to their citizens’), no process exists to ensure this accountability. The actions of the European Council play no part in national elections. Further, there is very little transparency in the functioning of the organisation. For example, there is no record on the discussion and debate that took place in the build up to the Agreement in question. The lack of a public record prevents citizens from gauging their nation’s point of view on the issue and their contributions to the debate, therefore allowing nations to shift the blame when things go awry.
It is indeed shocking that an issue as significant as migration would be debated and supposedly resolved by a body as shaky as the European Council. Bringing more stakeholders into the fray by institutionalizing this through a body such as the European Parliament would have possibly ended in a more balanced deal that was more perceptive of its impact on the refugees. Article 218 of the Treaty on the Functioning of the European Union (TFEU) actually requires all international agreements to be passed by the European Parliament and for good reason.
The refugee crisis has certainly posed one of the greatest threats to the functioning of the EU and the values it seemingly espouses. However, instead of stitching together a grossly unfair deal, the EU would be better off ensuring that the plans in status quo are enforced far more stringently and member nations do not shirk their responsibilities. States have openly flouted the Dublin Agreement. Hungary and Slovakia refused to participate in the relocation programme that sought to rehabilitate 160,000 refugees in Greece and Italy to other parts of Europe. Viktor Orban’s Hungary has taken the most extreme step by building border walls and convicting over 2,000 refugees of illegal ‘border activities’ and other such petty crimes in farcical trials. Germany cannot fight this losing battle alone.
It is time that the EU imposes sanctions on deviants like Orban for being unresponsive to any compromise. The EU should work towards an agreement that all member states have the capacity to live up to. Relying on robust institutions rather than on the whims of the European Council would be a sensible place to start. Negotiating this deal has allowed the EU leaders to pretend that they are attempting to resolve the crisis, while human smuggling and human misery continue to rise. As appropriately stated by Financial Times columnist Wolfgang Munchau, “The EU not only sold its soul that day [March 18th], it actually negotiated a pretty lousy deal.”
(Arindrajit Basu is a final year law student at the West Bengal National University of Juridical Sciences, Kolkata (WBNUJS). International law and international relations are some of his main areas of interest. He has also written for The Wire, The Statesman, Economic and Political Weekly, etc.)