[Blog post] Migration: Revisiting the legal nature of the 2016 EU-Turkey statement

The 2016 EU-Turkey statement on migration (EU-Turkey deal) has often been scrutinised through the lens of EU law. In this blog post, Asser senior researcher Dr Eva Kassoti, analyses the legal nature of the EU-Turkey statement from an international law vantage point of view. ‘The analysis shows that by following an international law perspective the Court could have viewed the instrument as an agreement binding on the parties.’

The recent tensions at the Greek-Turkish borders have rekindled interest in the - by now infamous - EU-Turkey statement of 18 March 2016, on migration. The statements’ goal was to the stop the influx of thousands of migrants entering the EU through Turkey. Since late February, early March this year, however, the migration deal has been teetering on the brink of collapse. President Erdogan has stated that Turkey will not prevent refugees from crossing its border with the European Union (EU) – because, according to Erdogan, “Europe is not keeping its promises”.

As a result, thousands of migrants and refugees gathered at the Greek border. The Athens government has suspended all asylum claims and deployed border troops to keep out migrants and refugees. At the time (that is, before the coronavirus pandemic ), those developments signalled that the EU-Turkey statement had largely become a dead letter, but the EU still insists that it expects Turkey to abide by the terms of the 2016 deal. According to the deal, Turkey would halt the influx of people to the EU in exchange for funding, a speeding up of the visa liberalisation process, an upgrading of the customs unions, and the revitalisation of the Turkish EU accession process.

Persisting questions
While the EU-Turkey deal lies at the heart of the current migrant crisis, questions about its authorship still persist. The 2017 EU’s General Court (GC)’s Order in the NF case arguably raised more questions than answers. The Court in this case argued that the EU-Turkey Statement was not authored by the EU, but rather by the heads of State or government of the EU Member States and Turkey. In terms of the legal nature of the statement (political commitment vs international agreement), however, there is strong evidence to suggest that the statement constitutes a treaty binding upon the parties thereto – despite its designation.

The binding nature of the statement
It is a common theme in the law of treaties that the designation of an instrument is not determinative in establishing its legal status (ICJ, Maritime Delimitation and Territorial Questions Between Qatar and Bahrain, paras. 23-30). Rather, what matters in ascertaining the existence of an international agreement, is whether the instrument evidences the intention of its authors to be bound thereby (Art. 2(1)(c) Vienna Convention on the Law of Treaties (‘VCLT’)).

In this case, there is little doubt that the EU-Turkey statement constitutes an international agreement since the terminology used in it clearly indicates the intention of the parties to be bound by its terms. This view is also widely accepted in the literature– see here, here and here. The GC’s Order was vociferously criticised by some for condoning what is widely perceived as the EU institutions’ refusal to take legal responsibility for the statement and their choice to act outside the EU legal framework, thereby evading democratic scrutiny and judicial review.

The question of authorship
At the same time, the main challenge posed by the statement (namely its authorship) has largely been examined through the lens of EU law – and as such, limited attention has been paid to the nature of the instrument under international law.

In answering the question of authorship of the statement, the GC relied almost exclusively on internal (EU) documentation. From the outset, this raises a significant methodological problem. Which set of rules applies to the interpretation of the statement for the purpose of establishing its authorship? Taking into account the legal status of the instrument as an international agreement, it becomes obvious that the Court should have relied on the Vienna rule on treaty interpretation in order to answer this question.

This approach was also followed by the ICJ in determining the authorship of Kosovo’s Declaration of Independence in the context of its relevant Advisory Opinion. In that case, the Court answered the question of attribution of the Declaration of Independence by having recourse to the Declaration’s text and the context in which it was made – thereby following the interpretative rule enshrined in Art. 31 VCLT.

According to Art. 31(1) of the VCLT, the first step in interpreting the terms of an instrument is to examine their ‘ordinary meaning’. According to the text of the statement, it was the ‘EU’ that agreed to a number of obligations, enumerated therein, alongside with Turkey. This interpretation on the basis of the ordinary meaning of the terms used in the statement, is further bolstered by the simple fact that all EU Member States participated in the meeting leading to its adoption – even Member States that are not directly affected by issues of migration.

Simply put, if the EU was not the author of the statement, there would be no need for Turkey to have a meeting with all Member States, - in which both the President of the European Council and the President of the Commission were present. Furthermore, the text of the statement makes express reference to, and builds upon, other instruments issued by the EU and Turkey (such as the EU-Turkey statement of 29 November 2015 which activated the EU-Turkey Joint Action Plan of 15 October 2015) - thereby confirming that this instrument forms part of a series of bilateral instruments that clearly pertain to EU-Turkey relations.

The principle of good faith
Art. 31(1) VCLT also makes reference to the principle of good faith. The principle dictates that, in attributing meaning to treaty terms, account must be taken of what a ‘reasonable party’ could and should have understood by the terms used in the treaty. In this sense, good faith ensures that the protection of legitimate expectations is part of the interpretative process (R. Kolb, Good Faith in International Law, Hart, 2017). Thus, in interpreting the EU-Turkey statement, one must take into account the legitimate confidence that Turkey might have placed in the terms contained therein. The clear language of the statement and the repeated references to the obligations undertaken by the ‘EU’ entail that Turkey could have reasonably understood that the counterpart to the statement was the Union itself – and not the Member States.

‘Subsequent practise’
Turning to the other means of interpretation contained in Art. 31, of particular importance here is the element of ‘subsequent practice of the parties’ (Art. 31(3)(b) VCLT). The ILC has accorded particular importance to this element since it “constitutes objective evidence of the understanding of the parties as to the meaning of the treaty.” (ILC, Draft Articles on the Law of Treaties with Commentaries, 1966, p. 221). The relevance of ‘subsequent practice’ in the context of treaty interpretation has also been confirmed by the CJEU (Case C-104/16 P, Council v Front Polisario, para.120). In the case at hand, the subsequent practice of the parties in the application of the Statement reinforces the conclusion that the instrument is attributable to the Union. The EU has covered all costs for implementing the statement. Furthermore, the Union is involved through its Agencies in the implementation of the statement and the Commission is regularly monitoring the process of implementation. The Commission has also repeatedly praised the statement as “an important part of the EU’s comprehensive approach on migration”.

Similarly, Turkey has on multiple occasions referred to the instrument as an ‘agreement between the EU and Turkey’. In this respect, it is also instructive that in March, the Turkish President met with EU officials in Brussels in an effort to de-escalate the on-going crisis. European Council President, Charles Michel, expressly stated after the talk with Erdogan that: “of course the first topic we discussed, is the implementation of the deal between the European Union and Turkey on migration” – thereby leaving little doubt that, in the understanding of both parties, it is the EU and Turkey that are duty bound to implement the agreement.

The pacta tertiis principle
Finally, the application of the pacta tertiis principle (Art. 34 VCLT) further buttresses the view that the statement commits the Union – and not its Member States. The pacta tertiis rule expresses the cardinal principle that a treaty only applies between the parties thereto and thus, treaties to which a subject of international law is not a party are generally considered as res inter alios acta – a matter between others. If it were accepted that the real authors of the statement were the Member States and not the Union itself, this would mean that the Member States breached the rule in question, since by concluding the statement, they created concrete obligations for the Union – which, as the argument goes, is not a party thereto. However, instead of claiming that the Union is not bound thereby, EU institutions have implemented the statement in a manner consistent with the view that it created obligations for the Union itself.

Conclusion
In the light of the above, it is safe to assume that, contrary to the Court’s findings in the NF case, the statement is attributable to the EU. The foregoing has shown that the examination of the issue through the lens of international law would have allowed the Court to come to a different conclusion regarding the authorship of the statement.

By avoiding to do so, it effectively turned a blind eye to what commentators have described as “a mala fide attempt to circumvent the set of guarantees and standards on decision-making and democratic and judicial scrutiny carefully laid down in the treaties”. Some may argue that the EU-Turkey statement, however unfortunate the circumstances of its adoption, constitutes a pragmatic solution to a lingering problem. At the same time, the sobering images from the refugees and migrants at the Greek-Turkish borders highlight the importance of adopting instruments through the appropriate procedures in order to guarantee legal certainty– particularly when it comes to sensitive issues such as migration.

This blogpost is based on a paper that will be presented at the joint Asser – ACES multi-disciplinary conference on ‘Migration deals and their damaging effects’ which will take place on 9^th October at the T.M.C. Asser Instituut in the Hague. This conference is part of the Asser Global Europe project that focuses on 'Europe as a global player in the new strategic context'. Sign up here to join the conference.

About the author
Dr Eva Kassoti is a senior researcher in International and EU Law as well as the academic co-ordinator for the Centre of the Law of EU External Relations (CLEER) at the T.M.C. Asser Instituut. Along with Dr Narin Idriz,  she is leading the Global Europe Project which is part of the research strand ‘Advancing Public Interests in International and European Law’.

Further reading
- Maarten den Heijer and Thomas Spijkerboer, “Is the EU-Turkey Refugee and Migration Deal a Treaty?”, EU Law Analysis, 7 April 2016
- Meijers Committee, 1806 Note on the use of soft law instruments under EU law, in particular in the area of freedom, security and justice, and its impact on fundamental rights, democracy and the rule of law, 9 April 2018
- Narin Idriz, “Taking the EU-Turkey Deal to Court?”, Verfassungsblog, 20 December 2017
- Narin Idriz, “The EU-Turkey Statement or the ‘Refugee Deal’: The Extra-Legal Deal of Extraordinary Times?”, T.M.C. Asser Institute for International & European Law, Research Paper 2017-06

Video
Asser researcher Narin Idriz, co-organiser of the ‘Migration deals and their damaging effects’ conference, recently had the chance to pose a question Charles Michel, President of the European Council about the EU’s stance on the Greek-Turkey border situation. Watch it here. (Clip starts at 46.12 minutes) Source: CEPS Ideas Lab, 5-6 March 2020.