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Greece, EU Have Legal Case Against Turkey for Violating Refugee Deal

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Migrants and refugees at the Kara Tepe camp on Lesvos in September, 2020. Credit: Greek Ministry of Migration

Greece and the EU have a legal case against Turkey’s violation of the refugee deal, says Todd Carney, a Harvard graduate and specialist in international law.

By Todd Carney

On February 28, 2020, Turkish President Recep Tayyip Erdogan’s administration announced that Turkey would no longer prevent Syrian refugees from leaving Turkey to go into Europe. This of course created many issues for Europe, the biggest was that it put further pressure on an existing humanitarian crisis, where refugees are being mistreated due to the Europe’s lack of resources to handle the influx of refugees.

However, it also raises a legal issue. The European Union and Turkey signed a deal that stated Turkey would keep refugees from going to the EU unless the EU explicitly permitted for the refugees to enter.

Though Turkey has not formally withdrawn from the agreement, Turkey’s action in permitting refugees to go through to Europe is a clear violation of the agreement. There are a myriad of ways to try to hold Turkey accountable. However, given that this is such an important international issue, it merits going to the International Court of Justice (ICJ). This piece evaluates a potential ICJ case on this matter.

The EU and Turkey’s refugee deal

On March 18, 2016, the EU signed a deal with Turkey that sought to quell the influx of refugees from Syria that were arriving in the EU. The deal stipulated that all “irregular migrants” who came from Turkey moving forward would be returned to Turkey. The deal also stated that the EU would give Turkey six billion euros to assist with helping the refugees in the country and that EU accession talks for Turkey would resume.

The statement of cooperation released by the EU specifically said, “Turkey will take any necessary measures to prevent new sea or land routes for illegal migration opening from Turkey to the EU, and will cooperate with neighbouring states as well as the EU to this effect.”

Over the next few years, the EU and Turkey argued over whether the deal was being properly enforced. In 2018, Turkey accused the EU of not contributing enough money. The EU responded that it had given Turkey three billion Euros, while Turkey claimed it only received 1.85 billion euros.

The EU argued that this disparity in financial numbers came from the fact that the money was being dispersed through EU projects rather than directly to the Turkish government. There were even disagreements over the number of refugees in Turkey. The UN stated Turkey had 2,900,000 refugees, but Turkey said they had taken 3,500,000 refugees.

Turkey’s frustration with its view that the EU had not lived up to its obligations in terms of refugees, led to Turkey letting more migrants go into Greece, which created an overflow of refugees into Greece. The refugees cannot go beyond Greece because they are not allowed to move freely in the EU without permission of the EU government.

As a result, a few Greek islands function as a holding area. These Islands are small and short on resources, so they are creating horrendous living conditions for the refugees and pushing the EU, particularly Greece, to its limits in terms of resources and political will to take care of the refugees.

While the pre-2020 instances of Turkey letting refugees into Greece is arguably a violation of the deal, Turkey’s formal declaration that in 2020 it will not prevent refugees from reaching Europe provides clear evidence of a violation of the deal.

In the last few months, the situation for refugees has become even more contentious. Greece has been accused of taking more steps to stem refugee migration, while Greece continues to be pushed to the brink in terms of capacity.

The ICJ’s jurisdiction and the EU Turkey deal

In terms of jurisdiction, a state can agree to unconditional jurisdiction, meaning they have to report to the ICJ on any case raised against them. Seventy-four states have agreed to this jurisdiction, but Turkey is not one of them.

However, according to Article 36(2)(a) of the ICJ charter, when the matter concerns “the interpretation of a treaty,” that is sufficient to force a state to report to the ICJ. Given that Turkey does not believe it is in violation of the agreement with the EU, the conflict would concern the interpretation of the treaty, which gives the ICJ jurisdiction.

Though Turkey’s dispute is with the EU as a whole, the EU cannot bring a claim because only countries can bring a claim before the ICJ. However, there are several cases where there have been multiple countries as both plaintiffs and defendants. As a result, all of the EU countries could bring a claim against Turkey. This would be fair because by entering a treaty with the EU, Turkey entered a treaty with all of the EU’s members.

Evaluation of the Case

Under article 49(1), the countries that make up the EU would put forth their statement of relevant facts, laws and what remedy they request. The EU countries would likely argue that they had an agreement with Turkey, that stated Turkey would “take any necessary measures to prevent new sea or land routes for irregular migration opening from Turkey to the EU,” and Turkey has purposefully failed to live up that part of the obligation to prevent migrant from Turkey to the EU in the past.

Though Turkey did reduce the numbers of migrants going to the EU, thousands of refugees still made it to Greece. Moreover, the EU countries could argue that even if Turkey cannot be found of being guilty for the violation of allowances of refugees into the EU before 2020, Turkey became guilty of violating the deal on February 29, 2020, when Erdogan proclaimed “[w]hat did we do yesterday? We opened the doors” and that the number of migrants to the EU “may reach about 25,000-30,000 today. We will not close the doors hereafter.”

These statements makes it clear that Turkey has violated the agreement to not provide new openings for refugees into the EU. Erdogan’s own administration admitted that it let 76,000 people leave the country to go to Greece. The EU countries would seek to have Turkey block entryways out of Turkey and take all migrants who have come into Greece.

Under article 49(2), Turkey as the defendant, is entitled to either deny or admit the facts, provide further facts, and provide an answer to the EU countries’ claims. Turkey would claim that the EU violated the agreement first due to the fact that Turkey’s government has not received much of the six billion euros promised to their government. So, Turkey would argue the deal ended before Turkey started letting refugees go into the EU.

Alternatively, Turkey could argue even if the EU did not flat out violate the agreement, Turkey was still put in a position where they had no choice but to let migrants out because they could not contain all of them due to the resource shortages.

However, the numbers clearly show that the EU has given 3.5 billion of the six billion euros, just through aid dispersed among EU programs, instead of directly to Turkey. The agreement said that the money would be dispersed through the Facility for Refugees, not the Turkish government. There is no evidence that the EU did not distribute the promised money in this manner.

The parties could go back and forth if they have new facts and arguments to address each other’s claims, but the ICJ will not permit endless restatements of the same arguments.

Finding a workable remedy between EU, Turkey on Refugees

Assuming that the ICJ would find for the EU countries, there is the question of what remedy the ICJ would deliver. The most plausible decision would be for there to be a ruling that Turkey broke the agreement, and order Turkey to take back the refugees and close up the pathways to the EU.

However, the ICJ might avoid a formal order of Turkey to do anything. In the case, the Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia v. Greece), concerning Greece blocking then FYROM, now North Macedonia, from joining international organizations despite then FYROM having an agreement with Greece that said Greece would not do so, the ICJ found for then-FYROM’s claim that Greece violated the agreement, but refused to implement then-FYROM’s sought remedy to order Greece not to intervene in terms of then-FYROM joining international organizations because the ICJ believed Greece would never block then-FYROM from joining international organizations.

Despite the ruling, Greece continued to block then-FYROM from joining NATO. The ICJ likely refused to include an order because it felt Greece would ignore its order and it did not want to be delegitimize it. Given Turkey’s combative nature on international issues, the ICJ might deliver a similar verdict to ensure that it is not delegitimized by a blatant defiance from Turkey.

Though the deal between the EU and Turkey was not perfect, the failure of Turkey to live up to it has made a bad situation worse and is making the refugee crisis worst. Fixing the issues between Turkey and the EU can provide stability to the crisis and allow for a comprehensive solution moving forward.

  • Todd Carney is a graduate of Harvard Law. He is a writer on different issues concerning international law and national security.

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