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Home EJIL Analysis The EU-Turkey Statement: A Treaty That Violates Democracy (Part 2 of 2)

The EU-Turkey Statement: A Treaty That Violates Democracy (Part 2 of 2)

Published on April 19, 2016        Author: 

In yesterday’s post, I discussed why the EU-Turkey joint statement should be regarded as a treaty under international law, replete with consequences on EU Member States as a matter of international law.  In this concluding post, I argue that EU Parliamentary prerogatives were violated in the substance of this agreement and the manner by which such agreement was reached.

…That Violates the Parliament’s Prerogatives

Since the 18 March statement is an international agreement binding on the Union, it should have been adopted, on the EU’s side, on the basis of Article 218 TFEU. This provision never mentions the European Council: it is the Council that authorises the opening of negotiations and that concludes (i.e. ratifies) them. More importantly, Article 218(6) TFEU stipulates that, in most cases, the Council may conclude an agreement only after obtaining the consent of the European Parliament.

The Parliament’s consent is required, in particular, when the international agreement covers fields to which the ordinary legislative procedure applies. This is the case of the 18 March statement, which concerns the readmission of citizens of third countries (although the statement does not explicitly mention the word ‘readmission’, it clearly refers to this concept, cf. the definition of ‘readmission’ in the EU-Turkey readmission agreement, Article 1). The EU’s competence to enter into readmission agreements is explicitly acknowledged by Article 79 TFEU, which regulates the EU’s ‘common immigration policy’. In this field, the ordinary legislative procedure applies (ex Article 79(2) TFEU). Hence, pursuant to Article 218(6) TFEU, the Council may conclude readmission agreements only after having obtained the consent of the European Parliament. The EU-Turkey readmission agreement was indeed concluded after having obtained the consent of the European Parliament – but that was not the case for the 18 March statement.

One may wonder whether the statement, by virtue of its specific features, could have been legitimately concluded in the form of an ‘executive agreement’, that does not require Parliamentary approval. It would seem, in fact, that EU institutions sometimes enter into executive agreements with foreign authorities, especially for the management of relatively ‘technical’ issues, such as the establishment of EU Delegations or the conduct of relations with international organisations. Be that as it may, I would argue that a readmission agreement cannot be concluded as an ‘executive agreement’. This argument is supported by a literal and systematic reading of the TFEU. Readmission agreements (envisaged by Article 79(3)) can be concluded only after having obtained the consent of the Parliament (Article 218(6)), since the ordinary legislative procedure applies in this area (Article 79(2)). If an EU institution could enter into a readmission agreement through another procedure, Article 218(6) would be deprived of its content.

The importance of the letter of Article 218(6) is reinforced by the case-law of the Court of Justice. According to an established jurisprudence, Article 218 TFEU ‘constitutes, as regards the conclusion of international treaties, an autonomous and general provision of constitutional scope, in that it confers specific powers on the EU institutions’ (Negotiating directives, para 62). Since Article 218(6) establishes a balance between the Council and the Parliament, the adoption of agreements in the simplified form, such as the 18 March statement, tips the balance against the Parliament. This can hardly be accepted: the Parliament’s involvement in the treaty-making area ‘is the reflection, at EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly’ (Mauritius, para 81).

It emerges from the above considerations that the 18 March statement was concluded in infringement of the Parliament’s prerogatives, and is consequently vitiated by violation of the essential procedural requirements imposed by Article 218(6) TFEU.

Conclusion

The EU-Turkey statement of 18 March appears criticisable for several reasons. Not only is it ethically questionable and problematic in terms of human rights protection, but it also challenges the democratic principles on which the EU is founded. The good news is that this statement might be subject to judicial review. Being a binding act, vitiated by violation of essential procedural requirements, the agreement may possibly be annulled under the procedure of Article 263 TFEU (cf. France v Commission, paras 16-17). It is also possible, at least in principle, that the agreement may be incompatible with substantive primary rules, notably those concerning fundamental rights protection.

If the Court of Justice is to review the legality of the 18 March statement, someone must obviously bring action against it. The European Parliament is the ideal candidate. Hopefully, (some of) its members might be more sensitive to humanitarian concerns than the governments of EU States. The European Parliament may also wish to defend the democratic principle at large, since they constitute the basis of its own legimacy. Moreover, the Parliament has an interest in protecting its own prerogatives: there is indeed the risk that the Member States, left to their own devices, may decide to ignore Article 218(6) TFEU in the future, too.

The Parliament may perhaps be tempted to turn a blind eye to the 18 March statement, to avoid exposing itself to criticism. The EU-Turkey deal is a hot potato that politicians are likely to avoid, if at all possible: political and legal uncertainty may seem preferable in the short term. Backroom deals of this sort are not uncommon in the history of the EU, but, in my view, they are no longer acceptable. If the EU’s democratic deficit is to be filled, political leaders – notably, the members of the European Parliament – should take responsibility for the EU’s actions. That is especially the case when the lives of thousands of people are at stake. Not only does the Parliament have a right to bring action against the 18 March statement, but it has also a moral duty to do so.

The annulment of the 18 March statement may not have immediate consequences, since it would hardly prevent Greece from considering asylum-seekers’ applications as ‘inadmissible’ and, ultimately, from sending them back to Turkey. The annulment of the 18 March statement may nonetheless serve a twofold purpose. It would draw attention to the consequences of statement, in terms of human rights protection and democratic governance. It may also contribute to stigmatise the action of the Member States, thereby discouraging them from seeking similar solutions in the future. The recent non-paper on readmission to Afghanistan, that prefigures the deportation of 80.000 people, suggests that further ‘questionable’ agreements may be on their way.

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4 Responses

  1. Anil Ozturk

    (Part 1 of 3) Similar to the European Union, but employing a different perspective, Turkey has also prioritized the migration issue: Turkey yearns to accommodate well-being of asylum-seekers, whereas EU tries to cast them out. Therefore, I would like to thank Mr. Gatti, for his post that has enabled me to consider the issue under the light of Human Rights Law, institutional law of the EU, Turkish statute, employing an humanitarian approach. As there is a maximum character limit on the comments, I will try to convey another perspective from Turkey in several parts – This is the first part.
    Mr. Gatti’s arguments on why 18 March Statement is a binding agreement has convinced me: Apart from the wording, it is clearly designed to declare that parties are undertaking some obligations inter partes, rather than just voicing their goals: Parties to the document have the intension to be bound by it. However, Mr. Gatti also argues that this is also an original agreement, as it brings obligations not mentioned in “the Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorization” which is signed beforehand. Considering that an agreement does not only state a promise or contract between two parties, but also reflects the common ground (e. g. scope, objective) that both parties stand on, if the same two parties agree to undertake obligations in order to substantiate the common ground they compromised beforehand in another agreement without broadening the common ground in one way or another; the second agreement cannot be evaluated as a novel agreement, but rather an agreement related to the execution of the first agreement. Although some of the components of the Statement, such as ‘1:1 Scheme’ cannot be found in the readmission agreement, those components are not in conflict with the agreement. By providing a timetable and several guidelines on the application of it, they simply fill in the blanks of the provisions of the readmission agreement. If “an agreement related to the execution of another agreement” or “executive agreement” does not perform this function, the concept itself would not have any use, and hence, would not be featured in the acquis of neither EU nor Turkey. As Mr. Gatti has rightfully pointed out, the concept does exist in EU acquis, and the European Council is able to conclude executive agreements. Though on EU’s side, it arguable that the agreement has already entered into force; on Turkey’s side; I think it is possible to state that this agreement has not been duly entered into force. Article 2 of Act no. 244 of 31 May 1963 in accordance with Article 90 of the Constitution states that, international agreements related to the execution of another international agreement are not required to be approved by national parliament by a law; however if they bring an obligation to the public finances; they need to be published in the Official Gazette of the Republic of Turkey in order to enter into force. The undertakings of Turkey, such as providing adequate level of reception conditions for immigrant and asylum-seekers it will re-admit; does logically include a burden of public finances; therefore, for Turkish government to actualize it’s undertakings, this agreement needs to be published in the Official Gazette: as of 24 April 2016, such publication has not been made; making the implementation of the Statement devoid of any legal ground; however, as the all members of the Cabinet, the Head of State and parliamentary majority are from same political party, de facto application of it is unlikely to create any dissent.

  2. Anil Ozturk

    (Part 2 of 3) In addition to believing that the way the Statement has been concluded does not infringe any EU Statute, I think it is also disputable that if it would have been possible to reach an agreement more beneficial to the asylum-seekers. At least, in the European Council, which consists of national leaders elected either by electorates or parliaments of their nations, the political ideologies that advocate expulsion of illegal immigrants are not as powerful as they are in the Parliament. Mr. Gatti also questions the democratic legitimacy of the Statement: According to him; if the statement had been discussed in both the European Parliament and the European Council; the representatives who are elected to deal with Union matters only would have their say on it in addition to national leaders; whose decision on the Union matters are not specifically and essentially supervised by their electorate. Moreover, the low (around %43) voter turnout in the European Parliament elections are axing the authority of parliament: how can a body who does not even able to represent half of the European electorate can provide democratic legitimacy to a decision of the body; whose members (directly or indirectly) are elected in aftermath of elections that definitely had higher voter turnouts, considering that the European Parliament even could not be classified as a legislative body on its own.
    When it comes to principle cause, the human rights question; Mr. Gatti’s arguments do not seem to be convincing as well.
    To begin with, UN Convention related to the Status of Refugees state that; if asylum seekers are able to demonstrate that they have a fear of persecution in their country, they are entitled to the right of asylum. Furthermore, Article 33 of the aforementioned Convention prohibits return of a refugee to a country were his life would be threatened or in danger; in other words, a person can only be readmitted to a ‘safe third country’. According to UNHCR, since the beginning of the civil war in Syria, Turkey hosted over one million Syrians; and “has maintained consistently high standard”, “ensured non-refoulement and assistance”. (1) This number, when other illegal migrants are added; is over two percent of Turkish population; and Turkish State, despite its structural malfunctioning and limited resources yearn to provide fundamental services such as education and health to all immigrants. Turkey might not be able to provide adequate humanitarian assistance; yet when the situation of those thousands stranded in Idomeni regarded; it is possible to state that Turkey is more hospitable for asylum-seekers. Furthermore, I would like to question what makes Mr. Gatti’s assessment of “well founded fear of persecution in one’s own country” than the Republic of Turkey. Obviously, Mr. Gatti asserts that Afghan citizens (that are sent back to their own country) have a well founded fear of persecution whereas Turkey asserts the opposite, and according to Mr. Gatti, this proves that Turkey is not a “safe third country” by his standards; yet some of the EU Member States such as Macedonia and Slovenia closing their borders to asylum seekers, forcing them to live under miserable conditions; without even a legal entitlement to right to health services, are always “safe. I have always been an admirer of Italian sense of humor, but this did not seem to be a joke at first sight; henceforth I hope that Mr. Gatti would forgive me for confusing his esprit with a type of hypocrisy. Consequently, it is possible to state that many EU Member States are, in fact intentional breach of right to asylum of asylum-seekers; whereas Turkey might only be erring in its assessment of “well founded fear of persecution”, yet it is impossible to classify Turkey is as “unsafe for refugees”, whereas daring to classify EU as “safe for refugees” and therefore declare the Statement an infringement of human rights is not really significant. Yet; as I have explained above, I suggest that many European states are already in some infringement of UN Convention related to the Status of Refugees; without the participation of Turkey, and those infringements are perhaps more severe, as it is impossible to find any humanitarian approach in them.

  3. Anil Ozturk

    (Part 3 of 3) Another human right infringement might be some of those protected in European Convention on Human Rights. Mr. Gatti points out that implementation of the Statement might result in mass expulsions and therefore infringe Article 4 of the Protocol No. 4 to ECHR which bans collective expulsion of aliens. European Court of Human Rights, states that “any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group” (2) would constitute an infringement of the prohibition of collective expulsion – as observable in Khlaifa and Others v. Italy, individual refoulement decisions are not enough to prove that each case has been assessed individually. Even though EU officials responsible for the application of the Statement have repeatedly asserted that they will regard this article in their actions and evaluate each illegal immigrant’s situations individually; rather than deporting them collectively and the Statement itself provides that experts would be sent to Greece to do this assessment, in one way or another most of the asylum-seekers who have reached to Greece would be send back to Turkey, and the basis for that decision would be the Statement, not the merits of the individual cases – in some way, this is what the Statement is all about: First to expulse all illegal immigrants to Turkey, and then choose which ones to grant asylum among those. Considering this, it is impossible not to agree with Mr. Gatti when he states this Statement is an infringement of Article 4 of the Protocol No. 4. Yet, main actors in the Statement are not bound by this protocol: Turkey has signed but never ratified the protocol; and Greece (from where the immigrants would be deported) has neither signed nor ratified it, and EU is also not under the jurisdiction of European Court of Human Rights.
    Nevertheless, the situation might not only result in the infringement of Article 4 of the Protocol No 4, but also might infringe Article 3 of ECHR which prohibits torture, “inhuman or degrading treatment” European Court of Human Rights has held that this article also applies the situation to poor conditions in detention and prohibits deportation of individuals whose deportation might result in inhuman and degrading treatment in the cases Soering v. United Kingdom and Chahal v. United Kingdom. Turkey’s extraditing Afghan or Iranian nationals to their own country where they would face persecution, after receiving them back from the EU member state, can be regarded as an infringement of Article 3 and result in Court decisions of violation. However so, the Court would only be able to decide on the consequences of implementation of the Statement, on individual applications to the court – it would not be able to struck it down as a whole, and ECJ; as it does not infringe TFEU; would not struck it down either.
    As a conclusion; I think Mr. Gatti is right to point out that the Statement might be problematic in some ways – but in contrary to the views he has employed, I think the procedure that has been employed in adoption of it does not breach the procedural requirements set out in TFEU, yet to be in force for Turkey de jure, it has to be published in Official Gazette. Furthermore, I find it impossible to agree with Mr. Gatti when he states that Turkey is not a safe third country, and therefore the Statement itself is a breach of UN Convention related to the Status of Refugees as he does not seem to provide logical basis for his statement. Yet, the actualization of the Statement, might infringe Article 4 of Protocol 4 to the ECHR and Article 3 to the ECHR – due to the circumstances in this case; the European Court of Human Rights might only review the latter on individual applications and would not be able to struck it down as a whole.
    In my point of view, the Statement is not a document prepared regarding the interests of asylum seekers. EU; aiming to hold a realistic approach to safeguard its cultural structure and economic stability, has bargained with Turkey to keep those less fortunate at the door – In the end, it will absorb only 72.000 asylum-seekers; while Turkey already hosts more than a million. Under that realistic approach, humanitarian conception; unfortunately could not find a place for itself; and apart from the logical analysis, thousands of asylum seekers stranded in the camps under miserable conditions demonstrate this fact and Turkey; though employing an open-door policy does neither have necessary expertise nor the funds to carry this burden alone, yet the readmission agreement and the funds necessitated by the Statement might be a first step of allocating the burden. At the end of the day, both of the parties to the Statement does only have an ethical duty to not leave fellow human beings to die, but Turkey; so far has given a better exam on this issue than EU, apart from its failure to act in accordance with ECHR, in its other conducts such as freedom of expression. As the Statement is the first step, albeit both the legislature and executive are de facto fused, Turkey needs to get the Statement in force through its publication in the Official Gazette and if necessary should enact laws on supplementary budget to tackle with this issue and provide the asylum seekers with minimum healthy standards of living.

    (1) “2015 UNHCR Country Operations Profile – Turkey.” UNHCR News. UNHCR. Web. 24 Apr. 2016.
    (2) “Factsheet on Collective Expulsions.” ECHR. ECHR. Web. 24 Apr. 2016.

  4. Mauro Gatti Mauro Gatti

    Dear Mr Ozturk,

    Thanks for your thought-provoking comments, which raise a number of issues that deserve clarification.
    I do not think that the statement may be described as an agreement related to the execution of another agreement. In my view, the statement is not meant to substantiate the common ground between the parties, but it creates an entirely new ‘scheme’, which is not a ‘guideline’ for the application of previous commitments. It indeed gives rives to unprecedented obligations, which are unnecessary for the purpose of applying the EU-Turkey readmission agreement. In other words, there is no ‘blank’ to fill in the first place. In addition, one may note that the parties are already giving application to the statement – while the readmission agreement is not in force yet. I am not sure whether an agreement may substantiate the content of a previous agreement that is not even in force.
    Even if we assumed, for the sake of argument, that the statement complements the previous agreement, the fact would remain that it was concluded in violation of EU Treaties. Pursuant to Article 218(7) TFEU, modifications to international agreements may be approved on the EU’s behalf by the ‘negotiator’ (i.e. the Commission or the High Representative), following the Council’s authorisation. Needless to say, this procedure was not respected in this case.
    EU institutions, as I noted in my post, do enter into international agreements through other procedures, but this practice relates to rather specific issues (e.g. establishment of EU Delegations) which do not seem to be relevant in this case.

    It is very interesting to see that the Turkish authorities are not treating the statement as a fully-fledged agreement, thanks for having pointed it out. Of course, this does not prevent the statement from binding Turkey (and the EU) at the international level.

    You also make an interesting remark about the democratic legitimacy of the statement. In principle, the European Council has impeccable democratic credentials, because of the reasons you mentioned. In practice, I think that the situation may be different. Accountability means, first and foremost, that the decision-maker may be punished by the persons he/she is accountable to. Each member of the European Council may possibly be punished, on an individual basis, by his/her parliament (through no confidence votes) and/or by his/her electorate (through elections). Yet, I do not think that this is going to happen in this case. Press reports suggest that the members of national parliaments, and citizens at large, criticise EU institutions (including the European Council) but not individual heads of State or government. Politically speaking, the EU-Turkey agreement is attributed to the European Union and/or to the 28 Member States – i.e. to everyone and no one at all. Even if a national parliament were exceptionally attentive, the national government may avoid responsibility by blaming other States. To put it like the Spanish prime minister, ‘when 28 States negotiate, you cannot impose your will on the others’ (http://www.elmundo.es/espana/2016/04/06/5704c03de2704e463b8b459c.html). By the way, the European Council is not transparent at all, so we do not know whether one of its members even ‘tried’ to influence the decision-making process.

    The European Parliament, in my view, is more democratic, since it is both transparent and elected. Of course, European elections are not perfect, notably because, in the past, most people did not know what they were voting for. In my opinion, that is about to change, since mass media have started to provide relevant information on EU policies. Admittedly, this is still a process. If one prevents the Parliament from exercising its function, this process may come to a stop: if voters perceive that decisions are taken by national governments, they will not bother voting for the Parliament.

    As for human rights : for the purpose of my analysis it is sufficient to note that ‘it is not clear…whether Turkey actually is a “safe country”’. Your arguments are certainly relevant, but I am not sure whether they comprehensively assuage any possible concern about the treatment of migrants and refugee-seekers in Turkey. The precise nature of these concerns has been clearly explained by other authors (you can find a few references in the first paragraph of my post), so I will not enter into the details here.

    Let me stress, in any event, that I never compared Turkey to any other country, let alone Slovenia or Macedonia. That does not necessarily mean, at any rate, that it is a good idea to ‘keep those less fortunate at the door’. Indeed, Turkey ‘does neither have necessary expertise nor the funds to carry this burden alone’.