EU-Turkey Agreement Undermines Refugee Protection in Law and in Practice
Since over a million refugees and migrants arrived in Europe last year – and nearly 4,000 perished or went missing on the Mediterranean Sea – European leaders have been scrambling to find solutions to this evolving humanitarian and political challenge. On March 18th, the EU and Turkey reached an agreement aimed at halting the large-scale irregular movement of refugees and migrants from the Turkey to Greece. Under the agreement, all irregular migrants crossing from Turkey to Greece as of March 20th are to be sent back to Turkey (transfers began on April 4th), and in exchange for each Syrian returned to Turkey, another Syrian refugee would be resettled to the EU. The EU also promised Turkey around $6.6 billion in aid, visa-free travel for Turkish citizens, and other incentives in return for taking back migrants, preventing further irregular crossings, and instituting further reforms. Heavily criticized from the outset as a potential violation of international law and refugee rights, the EU has nonetheless pushed forward with the implementation of the agreement on the basis of its designation of Turkey as a “safe third country” for refugees. Nearly two months since entering into effect, EU leaders say that the agreement is producing results and deterring migrant arrivals. Yet with a number of those results unintended or undesired, and continued legal questions and crumbling political consensus on both sides of the Aegean, it is time to return to the drawing board.
“We have seen a sharp reduction of the illegal migration flows,” said European Council President Donald Tusk of the EU-Turkey deal in late April. Indeed, the EU-Turkey agreement coincided with a sharp decline in refugee and migrant crossings from Turkey to Greece, in line with its primary intention. According to UNHCR estimates, monthly Mediterranean Sea arrivals have been gradually declining every month since the peak in October 2015 (221,374), down to March 2016 (36,923); when the agreement took effect, this continued falling in April (12,799) and May (6,868). Thus, while the agreement came at a time when arrivals in Greece were already decreasing, it likely contributed to hastening the decline, if not closure, of the Aegean route.
However, the implementation of the EU-Turkey agreement, and Greece’s closure of its borders, has not cleared the considerable backlog of both asylum applicants and migrants in Greece hoping to transit onward to Germany and other Western European countries. Approximately 46,000 people await asylum determinations in Greece, and until last week, around 10,000 people were camped out in Idomeni on the Greek-Macedonian border, hoping to follow other refugees and migrants northward to Germany and other Western European countries, but stymied by border closures. With conditions in the makeshift camps deteriorating and tensions rising, Greek authorities moved last week to close the camp and move the remaining migrants to official refugee centers near Thessaloniki.
Moreover, stemming the flow of refugees and migrants from Turkey to Greece may have just shifted the problem elsewhere. As overall Mediterranean arrivals decreased in recent months, UNHCR reports that sea arrivals on the North Africa (especially Libya) to Italy route increased by more than 80% in the first three months of 2016 compared to the same period in 2015; arrivals showed a four-fold increase in March (of predominantly West African nationals). Notably, last month marked the first time since June 2015 – when the Aegean route eclipsed the western Mediterranean – that more migrants arrived in Italy than Greece.
Thus, while the agreement has coincided with a sharp decrease in irregular migration from Turkey to Greece, the demand for smuggling has nonetheless continued – in the absence of more formal mechanisms for regular migration and refugee resettlement, and with calmer weather and warmer waters leading more people to attempt the crossing as summer approaches. Moreover, the return of more migrants to the western Mediterranean smuggler’s route is a troublesome development for other reasons as well. For one, for most migrants this means transit through and departure from Libya, a country still in the midst of rising instability and conflict. And second, while the Turkey-Greece crossing has also proven deadly – the smugglers’ route from Libya to Italy on flimsy rubber dinghies and overloaded fishing vessels is notably longer and more dangerous. As many as 500 migrants died following a shipwreck during this crossing on April 19th, shortly after the EU-Turkey deal went into effect. The incident occurred exactly one year after the deadliest shipwreck on the Mediterranean in which an estimated 800 to 850 migrants drowned when their fishing boat collided with a merchant vessel that was attempting to rescue them off the coast of Libya. And last week alone, more than 700 people are estimated to have drowned in three shipwrecks on the Libya to Italy route – while Italian authorities rescued at least 13,000 migrants off the Libyan coast.
Concerns from the Outset
In attempting to stem irregular migration from Turkey to Greece, and to discourage the flourishing human smuggling trade, a key component of the EU-Turkey deal was also the return of irregular arrivals to Turkey, in exchange for the official resettlement of Syrian refugees from Turkey to the EU. As President Tusk notes, “Our return operations are working in tandem with resettlements of Syrian nationals from Turkey to EU member states, demonstrating the desired shift from illegal to legal migration.” Yet this component of the deal – mass returns of refugees and migrants to Turkey – also drew the heaviest criticism from humanitarian and human rights organizations who view it as a violation – or at minimum, obfuscation – of international and European law protecting refugees and asylum seekers.
In defense of the agreement and its aim of discouraging illegal crossings, Dutch Prime Minister Mark Rutte has said that, “[t]here is nothing humanitarian in letting people, families, children, step on boats, being tempted by cynical smugglers, and risk their lives.” While they would likely concur, UNHCR has expressed concern from the outset that the deal lacked adequate safeguards to uphold protections guaranteed under international law: “UNHCR is not a party to the EU-Turkey deal, nor will we be involved in returns or detention,” said UNHCR spokeswoman, Melissa Fleming. UNHCR was later joined by Médecins Sans Frontières (MSF), the International Rescue Committee (IRC), the Norwegian Refugee Council (NRC) and Save the Children in refusing to participate in the plan: “We will not allow our assistance to be instrumentalized for a mass expulsion operation and we refuse to be part of a system that has no regard for the humanitarian or protection needs of asylum seekers and migrants,” said Marie Elisabeth Ingres, MSF’s head of mission in Greece, in a separate statement.
In particular, many have expressed concerns that the agreement constitutes a violation of the principle of non-refoulement, a cornerstone of international refugee law that obliges states not to return or expel refugees to territories where their life or freedom could be threatened. This prohibition applies to individuals as well as the mass expulsion of groups before individual refugee status determinations can be carried out. The EU has claimed that this does not apply, since under the agreement, “[p]eople who apply for asylum in Greece will have their applications treated on a case by case basis,” and “[t]here will be no blanket and no automatic returns of asylum seekers.” However, they also note that “EU asylum rules allow Member States in certain clearly defined circumstances to declare an application “inadmissible”, that is to say, to reject the application without examining the substance,” in cases where the person has already been recognized as a refugee (“first country of asylum”), or where a third country can guarantee access to protection (“safe third country”). The EU’s designation of Turkey as a “safe third country” for refugees thus negates non-refoulement concerns in their view. Yet there are many reasons to question how “safe” Turkey really is for returning refugees, as highlighted in a recent Greek appeals committee’s decision to uphold an appeal to halt the deportation of a rejected Syrian asylum seeker, deeming Turkey an “unsafe country”, and creating a potential precedent for further challenges to returns.
In Search of a Safe Elsewhere
In terms of its legal classification as a “safe third country” for refugees, what matters is whether Turkey can ensure access to effective asylum procedures for all persons in need of international protection. And on this question, there are a number of reasons for doubt. First, while Turkey is a signatory to the 1951 Refugee Convention, it adopted a geographical limitation whereby only refugees from European states are entitled to full protection; for all others, Turkey may grant limited or “temporary protection” in the form of temporary status. It has done so for Syrians, who may either seek temporary protection in Turkey or apply for resettlement to a third country through UNHCR – albeit a lengthy process.
Beyond this lower level of protection than that guaranteed under the Refugee Convention, observers have raised a number of other concerns about Turkey’s treatment of refugees and ability to guarantee effective access to protection for asylum seekers. These concerns include the lack of local capacity to process migrants and implement proper individual status determinations, especially considering the size of the influx, the lack of juridical capacity to review asylum cases, the continued prevalence of security-based approach to migration, and the possibility of individuals being subsequently deported from Turkey to their country of origin, based on reports of mass returns or pushbacks of refugees from Turkey to Syria. “Far from pressuring Turkey to improve the protection it offers Syrian refugees,” says John Dalhuisen of Amnesty International, “the EU is in fact incentivizing the opposite. It seems highly likely that Turkey has returned several thousand refugees to Syria in the last seven to nine weeks. If the agreement proceeds as planned, there is a very real risk that some of those the EU sends back to Turkey will suffer the same fate.”
The conditions facing many of the over 2.7 million Syrian refugees currently in Turkey also raise concerns. While there are a few refugee camps in Turkey, the vast majority of Syrians there live in cities and towns throughout the country, under varying conditions. After years in displacement and highly restricted access to the Turkish labor market, reports indicate that many Syrians in Turkey have exhausted their resources and face harsh living conditions; and many Syrian children are out of school and vulnerable to child labor and exploitation. Indeed, the difficult conditions and lack of long-term prospects for integration in Turkey has helped fuel so many attempted Mediterranean crossings in the first place.
Crumbling Political Consensus
“Ensuring all returns are legal according to EU law and the 1951 Refugee Convention would thus likely lead to very few being returned,” write Elizabeth Collett of the Migration Policy Institute. That appears to the case, as legal, political and practical obstacles have largely hindered the implementation of the agreement thus far, at least beyond halting irregular migrant flows. Indeed, writes Collett, “governments are taking a bet that the ‘messaging’ of the EU-Turkey agreement, rather than its implementation, will suffice to deter arrivals without having to test its legality or viability in practice.”
As of mid-May, fewer than 400 people had been returned to Turkey through the agreement – far short of expectations – and Syrian nationals have reportedly only been returned voluntarily to Turkey. In return, the EU reports that only 177 Syrians have been resettled to Europe under the deal – to Sweden (55), Germany (54), the Netherlands (52), Finland (11) and Lithuania (5), with another 723 applications accepted and pending resettlement – far short of the 20,000 resettlements by mid-May anticipated under the deal.
In response to these low resettlement rates, the European Commission has called upon states “to speed up the pace and deliver fully” on the EU-Turkey agreement’s resettlement provisions, but also says it will not open “infringement” procedures against member states until the end of the program in 2017. Previously, the EU had proposed a penalty of €250,000 per migrant for European countries that fail to comply with the EU plan – though not for countries that fail to comply with international law protecting refugees – yet such proposals have only inflamed tensions between the Member States. The idea of a quota system for refugee resettlement has long divided European states. Outside of the specific scope of the agreement, at least 6,321 people have been resettled to Europe from refugee camps in the Middle East.
With the EU-Turkey agreement crumbing, it is time to return to the drawing board. European leaders cannot simply outsource the problem of mass displacement to Turkey, a country with both questionable capacity and political will to provide adequate protection for vulnerable refugees. As the previous failures of EU burden sharing plans indicate, there is a considerable lack of political will on the continent as well. States have legitimate concerns that must be taken into account in any refugee policy – including border security, economic capacity and political cohesion – if those states are to be reliable partners in international efforts to alleviate the pressures of mass displacement.
Granted, the EU-Turkey deal had a number of laudable aims, including: protecting vulnerable persons from dangerous sea journeys and exploitation at the hands of human smugglers; harmonizing EU refugee policies to bring order and predictability to the chaos of the last year; assisting Turkey in providing humanitarian assistance to its large population of Syrian refugees, and opening safe, legal routes for resettlement and access to asylum for those persons in need of international protection. Moving forward, these objectives should be preserved in a revised plan that addresses both the interests of states and the rights and needs of refugees seeking safe haven from war and persecution.
Legal Research Associate
Julia Brooks is a Legal Research Associate at Harvard Humanitarian Initiative (HHI), where she focuses on international humanitarian law, policy and education. For the Advanced Training Program on Humanitarian Action (ATHA), she serves as host and producer of the Humanitarian Assistance Podcast series; a researcher focusing on international humanitarian law and humanitarian protection; and a managing editor and contributor to the ATHA blog and paper series. She also contributes as a writer, teaching fellow and consultant to curriculum development for e-learning tools, online and in-person courses developed by the Humanitarian Academy at Harvard.
Previously, Julia worked in Berlin, Germany at the Foundation "Remembrance, Responsibility & Future" (Stiftung EVZ), Adelphi Research & Consult, the German Parliament (Bundestag), and the UN High Commissioner for Refugees (UNHCR) as a Senior Fellow with Humanity in Action. She has also worked at the Office of the High Representative in Bosnia and Herzegovina (OHR) in Sarajevo, and the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague, The Netherlands. She holds a Master of Arts in Law and Diplomacy (MALD) from the Fletcher School of Law and Diplomacy at Tufts University, where she received the Alfred P. Rubin Prize and Leo Gross Prize for excellence in international law, and a Bachelor of Arts (BA) in Public Policy from Brown University, magna cum laude.