Burden of proof.
By Duncan Robinson
March 17, 2016
Frost: “So in a sense what you’re saying is that there are certain situations…where the president can decide that it’s in the best interest of the nation or something and do something illegal?”
Nixon: “Well, when the president does it, that means that it is not illegal.”
When it comes to the refugee crisis, Nixonian thinking appears to have taken over the EU’s institutions. Since the outline of a controversial deal with Turkey emerged last Monday, officials have repeated the mantra: whatever the EU does, it will be legal – and in the best interests of Europe. But doubts, both legal and practical, still remain.
On Wednesday, Frans Timmermans, the orotund first vice president of the European Commission, spelled out how the EU will try to return migrants and asylum seekers to Turkey without trampling on EU and international law. He said all asylum seekers on Greek islands would be subject to a proper hearing to determine whether their application is admissible – as is required in the Geneva Convention. This principle is also contained in a draft EU-Turkey agreement distributed to national capitals last night by Donald Tusk, who will host a two-day summit to hammer out the refugee deal starting today.
But for this to happen, Greece’s asylum system needs to be bulked up to cope with 10,000 arrivals per week. Extra judges and translators will be flown onto its islands, while reception facilities must be transformed into something resembling detention centres. In short, the system needs to be transformed from a dysfunctional mess labelled “degrading” by the European Court of Human Rights into the bulwark of the EU’s response to the refugee crisis. If the Greeks fail, and the system degenerates into a network of kangaroo courts rubber stamping decisions, then Europe’s actual courts – in either Strasbourg (European Court of Human Rights) or Luxembourg (European Court of Justice) – would likely strike the deal down.
But this is only half of the legal problem. Greece is set to label Turkey a “safe third country” – in other words, a place where non-Turks can easily claim asylum – in order to be able to deport asylum seekers there. The EU’s rules on this are quite clear: a state can only be deemed a “safe third country” if “the possibility exists to request refugee status and, if found to be a refugee, to receive protection in accordance with the Geneva Convention”.
Whether this applies to Turkey is deeply contentious. At the moment, Turkey only provides temporary protection (which falls short of full refugee status) to Syrians. A large group of human-rights groups argues that this invalidates any chance of Turkey genuinely being a “safe third country”. Even under most generous interpretation of the rules, only Syrian asylum seekers – who currently make up half of those arriving in Greece – could be returned to Turkey.
To get around this, Brussels is banking on Turkey overhauling its asylum system and offering proper protection to all applicants, including Iraqis and Afghans as well as Syrians – something Ankara has so far demonstrated little desire to do. On top of this, the EU must get Ankara to no longer send refugees fleeing countries such as Iraq, Afghanistan and Syria back into danger, something which is forbidden by both EU and international law.
The EU is walking a legal tightrope, relying on both Greek and Turkish willingness to transform themselves into something they are currently not. If either fails, then the deal falls. In more candid moments, officials admit that the legal justifications are shaky. The crux of their counter-argument is simple: just because it is illegal, it does not mean it is wrong. In their eyes, returning refugees to Turkey from Greece en masse is the only solution to the crisis. Such a “temporary and extraordinary” measure (as both the Commission and Council described it) will enable the EU to take in its share of refugees over the long term. It is a dirty deal, they say, but one that must be done.