Author:Schoenhuber, Manuel P.
  1. INTRODUCTION II. BACKGROUND A. The European Union B. The Republic of Turkey C. Promises of Accession D. The European Refugee Crisis III. ANALYSIS A. Contemporary EU Laws on Migration B. The European Union's Refugee Deal with Turkey C. Legal and Human Rights Concerns Associated with the Refugee Deal 1. Collective Expulsion Is Illegal Under EU and International Law 2. The EU Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals Requires a Case-by-Case Analysis Regarding Immigration of Illegal Migrants That Goes Beyond the Mere Fact of an Illegal Stay 3. The Refugee Deal Encourages Refugee Bartering Contrary to European Values 4. Turkey is not a "Safe" Country and Ignores Non-Refoulement Requirements 5. Anti-Democratic Movements in Turkey Change Commonalities Between Both Parties to the Refugee Deal D. The Refugee Deal in Action IV. CONCLUSION I. INTRODUCTION

    These words, famously proclaimed by the American lawyer Johnnie Cochran, accurately portray contemporary concerns about the approach taken by European political leaders in an effort to maneuver the refugee crisis of the European Union ("EU" or "Union"). The refugee crisis is arguably one of the most critical challenges the EU has been confronted with in its young history, and, therefore, requires special attention and altered decisionmaking authority. In the wake of such a historical challenge, we must nonetheless never forget that EU laws on immigration, refugees, and asylum are proclaimed in accordance with widely accepted humanitarian and fairness standards set forth by the international community. I urge that, when addressing the refugee crisis, these standards must always be at the heart of the Union's coordinated endeavor to ease the burden on its member states. Thus, in this comment, I address the landmark agreement concerning the refugee crisis, which seems to not only bypass EU laws in order to provide a relief valve for political pressure, but also to contradict the European understanding of democratic and humanitarian values: the EU-Turkey Refugee Deal of 2016 ("Refugee Deal").

    In Section II, I provide a general overlook about the organization and purpose of the European Union, the history and political system of the Republic of Turkey, Turkey's long-standing pursuit of joining the European Union as a fully recognized member state, and the European refugee crisis.

    First, I am concerned with the structure of the European Union as an economic and political union of twenty-eight European countries adhering to agreed-upon treaties. (2) Of special importance is the notion that all member countries must adhere to the Union's shared core values of human dignity, freedom, democracy, equality, rule of law, and respect for human rights. (3)

    The Republic of Turkey, the other party to the Refugee Deal, was founded on a democratic, secular, and parliamentary system. (4) Turkey has often been referenced as Europe's gateway to Asia. (5) Turkey's geography is of particular significance in relation to the Refugee Deal because the Eastern Mediterranean route from Turkey into Greece is the main source of maritime arrivals of refugees coming from Syria. (6) Today, Turkey is a major force in international trade, transportation, and logistics. (7) Even though Turkey is still not a member to the Union, the EU has always considered Turkey a European country. (8) Given Turkey's long path to potential EU membership, it is important to evaluate continued, yet unconsummated, promises of accession extended by the European community to Turkey as an indicator of adverse bargaining positions and unequal bargaining power during the negotiation process of the Refugee Deal.

    Turkey joined the Council of Europe in 1949 and, when Turkey officially applied tor hill membership to the European Union in 1987, a strenuous process of potential accession began to unfold. (9) The 1990s, in particular, were challenging times for Turkey. (10) Even though officials initiated change, the process of transforming and democratizing the country did not come effortlessly due to unstable coalition governments and a constant inability to commit to democracy. (11) EU officials especially criticized the state of freedom of speech, which is why it was not until the Helsinki European Council in 1999 that the EU finally declared Turkey a candidate for accession. (12) The EU launched actual membership talks in 2005, but no critical development has been made since. (13) To be more precise, a report on Turkey published by the European Commission in 2015--highlighting numerous issues regarding human rights, constitutional issues about freedom of expression, and the state of public administration in Turkey--essentially ended membership negotiations for the time being. (14) The tiring and unfortunate development of EU membership negotiations potentially fueled Turkey's desire to hold the upper hand in negotiating the Refugee Deal. The EU, for once, desperately needed Turkey's help, while the constellation was opposite with regards to EU membership negotiations. (15) Consequently, a description of the European refugee crisis rounds out Section II.

    Per Amnesty International, the world is currently experiencing the worst refugee crisis since World War II. (16) In fact, more than one million refugees came to Europe in 2015. (17) Turkey, with a refugee population of more than three million, is the largest refugee-hosting country in the world. (18) In a desperate attempt to address the refugee crisis and deter migrants from further coming to Europe via the dangerous sea route between Turkey and Greece, the EU and Turkey signed an agreement now known as the EU-Turkey Refugee Deal. (19) In general terms, migrants arriving in Greece under the Refugee Deal must be sent back to Turkey if they do not apply for asylum or their claims are rejected by Greek decision-making authorities. (20)

    In Section III, I first address European law with regards to human rights, the status of refugees, and migration before I consider the EU-Turkey Refugee Deal and its incompatibility with EU law and values. It is crucial to understand that migration into and within Europe is regulated by a combination of national law, EU law, the European Convention on Human Rights (ECHR), the European Social Charter (ESC), and other international obligations agreed to by European countries. (21) Asylum and refugee status legislation was first considered in Europe in the wake of the 1951 Geneva Convention and its subsequent Protocol, and since then the EU established a Common European Asylum System (CEAS). (22) The principle of non-refoulement is at the heart of the Geneva Convention, its Protocol, and EU refugee law. (23) Non-refoulement forbids the return of refugees to a country where they have a reason to fear persecution. (24) It plays a major role in the legal analysis of the Refugee Deal because Turkey, even though it signed the 1951 Geneva Convention, never fully adopted its regulations. (25) Turkey, in fact, applies the non-refoulement principle only with regards to refugees from Europe. (26)

    Next, I take a closer look at the actual wording of the Refugee Deal and analyze key sections. The Refugee Deal, at its core, allows Greece to return "all new irregular migrants" to Turkey. (27)

    In excnange, HiU iviemDer otates agree to increase resettlement of Syrian refugees residing in Turkey, accelerate visa liberalization for Turkish nationals, and boost existing financial support for Turkey's refugee population." (28) The text of the Refugee Deal is of major concern because, if taken literally, it is illegal under EU and international law. (29) In addition, I address legal and human rights concerns associated with the Refugee Deal below.

    The first sentence of the Refugee Deal calls for collective expulsion, which is illegal under EU and international law. (30) I further argue that the EU Directive on Common Standards and Procedures in Member States for Returning Illegally Staying Third-Country Nationals requires a case-by-case analysis regarding immigration of illegal migrants that goes beyond the mere fact of an illegal stay, which not only contradicts the Refugee Deal, but provides for additional proof of its illegality under EU law. The language of the Refugee Deal encourages refugee bartering contrary to European values and I urge European officials to accept that Turkey cannot be considered a "safe" country for migration and asylum purposes. For instance, I provide evidence that Turkey ignores non-refoulement requirements and address anti-democratic movements in Turkey as the result of a failed coup attempt in July 2016. In the aftermath of the attempted coup, the Turkish Government instituted a three-month state of emergency, and consecutively extended it in October 2016, January 2017, April 2017, and July 2017. (31) Under the state of emergency, Turkey can suspend parts of the European Convention on Human Rights, which directly impacts the refugees the EU returns to Turkey. (32) Considering this development, I explain that Turkey is no longer on its way to becoming an "E.U.-style liberal democracy." (33) In fact, I argue that Turkey has taken the path toward dictatorship. (34) Thus, I consequently have to question how the EU could enter into such a far-reaching agreement with Turkey in good conscience in the first place.

    Before I conclude, I investigate the Refugee Deal's applicability to real life situations and point out that, unless EU officials are willing to violate well-settled EU law on the right to appeal asylum decisions, there will be no significant increase in the number of refugees returned to Turkey. (35) As a matter of fact, shortly after the Refugee Deal came into effect, Greek Appeals Committees ruled that Turkey is not safe enough for Syrian refugees to return. (36) By June 1, 2016, Greek Appeals Committees had already issued ten decisions asserting...

To continue reading