Much has been said about the Readmission Agreement concluded between the EU and Turkey. However, it is my professional opinion that the Readmission Agreement (Agreement) diverges from the law and provides an inadequate, pragmatic and temporary solution to the migrant crisis. This article aims to elucidate the Agreement and to explain why it lacks a legal infrastructure.
Turkey and the EU signed the Agreement on December 13th, 2013. Pursuant to the Agreement, Turkey is not required to fulfil its obligations related to the readmission of third-country nationals and stateless persons until October 2017. Worsening migrant crises have compelled the EU to move the date forward to June 1st of 2016. Needless to say, this is impossible without Turkey's approval. In order to obtain that approval, the EU has offered to lift the Schengen visa obligations imposed on the Turks. Visa liberalisation was never a feature of the Agreement between the EU and Turkey. The EU unilaterally decided that there would be a visa liberalisation should Turkey fulfil 72 requirements listed in the roadmap towards a visa-free regime. However, what is fair to be recognised, is that Turkish citizens in fact do have the legal right to a visa-free travel.
According to the Agreement Establishing an Association Between the European Economic Community and Turkey (Ankara Agreement), signed on 12 September 1963 in Ankara, contracting parties agree to, inter alia, progressive securing of freedom of movement for workers and to abolish restrictions on freedom to provide services between them. The Ankara Agreement was followed by an Additional Protocol, signed on 23 November 1970 in Brussels. Article 36 of the Ankara Agreement states that freedom of movement of workers should be secured by progressive stages, likewise, Article 41 refrains contracting parties from introducing any new restrictions on the freedom of establishment and the freedom to provide services. There was absolutely no visas imposed on Turkish citizens until 1980, first imposed by Germany and then followed by other member states. However, the European Court of Justice (Soysal case) found that Article 41 of the Additional Protocol precludes the visa requirement for Turkish citizens who enter the territory of a member state in order to provide services. Unfortunately, the EU, an organisation that claims to draw inspiration from the rule of law, failed to respect one of the most basic principles of law, which is pacta sunt servanda.
Returning to the topic of the Agreement, the primary objective of the deal is entrusting Turkey with the task of readmitting irregular migrants. According to the Agreement, Turkey should readmit Turkish citizens, third-country nationals and stateless persons who cannot fulfil the relevant conditions in a member state. This does not include regular migrants. However, if an asylum application is not granted, then the applicant is deemed as an irregular migrant. There is no provision in the Agreement explaining the future of the irregular migrant, should he in anyway act against the member state for the rejection of his application. Consequently in a few words, a refugee who survives the war and the boat ride and arrives to Europe for a fresh start, will end up in Turkey if the asylum application is not granted.
Not all member states of the EU are signatories of the Agreement. As stated in the joint declaration part of the Agreement, the Agreement does not apply to the territory of the Kingdom of Denmark, nor its nationals. Ireland has also not decided to be a part of the Agreement.
Article 23 mandates the EU to make available financial resources in order to support Turkey in the implementation of the Agreement. The amount was later clarified as €3 billion, followed by an additional funding of another €3 billion to the end of 2018, once the first disbursement is about to be used in full. Turkey has spent more than €10 billion for the migrant crisis, not to mention the other various consequences of the migratory flow. It is unknown how many irregular migrants will be readmitted by Turkey. The EU should have in fact been more clear about the number of irregular migrants or the contracting parties, should have declared a quota for readmission.
Contracting parties should also have considered the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol. The principle of non-refoulement, (the prohibition of returning a refugee to a territory where there is a threat to life or freedom) is unequivocally embedded in customary international law. Should a certain limit be exceeded in readmission, Turkey could very well be an unsafe place for more to seek refuge in. Turkey also cannot return any migrants to Syria, as the European Court of Human Rights in the case of L.M. and others v. Russia ruled that expulsion to Syria would violate the right to life and the prohibition of torture and of inhuman or degrading treatment enshrined in the European Convention of Human Rights.
It should also be noted that both contracting parties have the right to denounce the Agreement by official notification. It is well-known that the EU is working on a plan B concerning Greece, which is much less sustainable compared to the Agreement with Turkey. It is contentious how Greece would host millions of refugees in its limited space combined with its unstable economy.
The best way to resolve a global crisis is to share the burden. The notion of international burden-sharing was not created out of thin air. Contracting parties should be balanced in such an agreement, yet Turkey undertakes all the burden that should be shared between the EU countries. Turkey hosts nearly 3 million Syrian refugees, whereas in Europe 292,540 asylum applications were approved in 2015; 140,910 of them by Germany. Merely providing financial support to Turkey cannot provide a permanent solution. The member states must play an active role hosting more refugees, because they are bound to do so under Article 18 of the Charter of Fundamental Rights of the European Union. Therein lies the right to asylum, which obliges member states not only to offer it, but also to guarantee it. None have done so except for Sweden and Germany, although their efforts seem inconclusive considering what they could have done up till now. Furthermore, the world has witnessed draconian rules and grim acts carried out by official bodies against the migrants, such as the Danish law makers approving to allow authorities to seize refugees' cash and valuables and the Greek coast guard piercing the boat of Syrians with a lance. What we need is a genuine solution, not a contra legem deal. The Agreement cannot under any circumstances be defined as a genuine solution to one of the most fundamental global crises throughout the late history.
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