Can Syrian refugees have human rights? Does the recent EU–Turkey refugee deal protect their rights? Yes, they can, and no, it doesn’t.
The European Union and Turkey have agreed on a controversial refugee deal aimed at preventing refugees from coming irregularly into the bloc. It was hailed by Donald Tusk, the European Commission’s lead negotiator, as a ‘breakthrough’, and the Turkish Prime Minister Ahmet Davutoğlu praised it as ‘historical’ and a ‘success story’.
But the grounds of considering the deal a ‘breakthrough’ or ‘success’ are much less clear. What they did not say was how they meant ‘success’ from a legal, ethical, or operational point of view.
The EU–Turkey refugee deal consists of a ‘one-in, one-out’ plan where, from March 20 onwards, for each Syrian sent back to Turkey, an eligible Syrian waiting in a Turkish refugee camp would be resettled in the EU.
Additionally Turkey will get extra funding to improve the lives of its 2.7 million Syrian refugees. The EU has pledged 3 billion euros for food vouchers, schools, and other refugee-related projects.
To ensure that refugee arrivals from Turkey to Greece are curtailed, it has also promised progress on Turkey’s EU membership process. Progress on EU integration would include visa liberalisation between the European bloc and Turkey, a long-desired goal on behalf of the Turkish authorities.
Europe is looking very hard for ways to prevent the arrival of Syrian refugees on its shores. In effect, the deal stipulates the blanket return of all individuals from one country (Greece) to another. Overall, this prevents them from exercising the human right to move across borders in order to seek asylum and refuge, as guaranteed by Articles 13 and 14 of the 1948 Universal Declaration of Human Rights.
This raises three concerns that are particularly pertinent to the current deal. Is it legal under international law? Is it ethical in terms of outsourcing the refugee problem to developing countries and creating a trade-off in human suffering by attaching refugee lives to a quid pro quo (EU membership)? And is it operationally viable?
The deal is generally considered to be legal, even though it has drawn criticism from many. The key issue is how it will be implemented in practice. According to Steve Peers, a law professor from Essex University, the legality of the deal depends on whether the asylum procedures will be applied correctly. However, this depends on three conditions.
First, Turkey must be declared as ‘safe third country’ by Greece. The concept of ‘safe third country’ is not part of the Refugee Convention and has been developed by the EU member states, particularly by the UK, with the objective of repatriating asylum-seekers to EU neighbours.
The concept is in direct violation of the Refugee Convention which states that each individual has the right to apply for asylum in any signatory state. The UNHCR accepts the concept only if the procedure accelerates access to asylum. In the last fifteen years however, unfortunately the ‘safe third country’, ‘host third country’, or aligned concepts have become instruments for the EU member states to outsource their legal obligations to a country outside the EU’s borders. The EU has attempted to overcome this hurdle by stipulating that as long as Turkey treats Syrian refugees as well as the Geneva Convention would require, then turning them back is appropriate.
Why not return the Syrian refugees to Turkey as a ‘safe country’ then? Turkey is not a country to which refugees can be returned in full respect of their rights, as has been reported by Amnesty International and other international NGOs. Apart from applying for asylum, refugees should have access to education, healthcare, and employment. Additionally, considerations of ‘safe country’ should take into account that most of Turkey’s 2.7 million refugees do not live in camps, but in off-the-grid urban settlements under marginal social conditions. The safety of refugees, we can argue, is also diminished in the cities on the Turkish-Syrian border, where most of them are congregated. Security considerations render Turkey an unsafe country even for its citizens.
The second condition is that the asylum applications should be processed case-by-case (not a blanket-procedure) and the UNHCR should be involved in each process. From a legal point of view, a blanket expulsion of refugees poses a danger to the individual assessment of their asylum claims. Louise Gunvén, lawyer and board member of Lawyers Without Borders, condemned the deal by stating that: ‘Asylum seekers have a fundamental right to have their individual asylum claims reviewed. Under the EU–Turkey agreement there is a genuine risk that people will be denied the right to an individual assessment because it treats all refugees under a mass agreement.’
A mass agreement implies that individual circumstances, as well as the complex and often inadvertent reasons that lead someone to seek refuge abroad through irregular means, may not be sufficiently heard in the decision for granting asylum once the refugees are returned to Turkey.
Furthermore, the UNHCR’s involvement is now in question. A spokeporson of the organization has recently declared that ‘UNHCR is not a party to the EU-Turkey deal, nor will we be involved in returns or detention’. In fact, the whole statement is a manifestation of the serious concerns of the UNHCR about the deal.
A strong advocate of the EU–Turkey deal may retort that the involvement of the UNHCR in operationalising the agreement is an indication that the asylum claims will be processed appropriately and in accordance with international law. Apart from the fallacy of this suggestion (indeed, the UNHCR is obliged to become involved once a political agreement is made, even if the latter is politically contentious—such as with Australia’s Pacific Solution), its advocates seem to consider that Turkey is, essentially, a ‘safe country’ for refugees.
But such definitional rigour does not take into account the conditions in Turkey that render it an unsafe country for refugees to be returned to. While the UNHCR can take part in the asylum procedures, its non-existance in returns or detention will seriously risk the ability of irregular migrants to access asylum.
Claims to legality also need to consider that non-Syrian refugees will be returned to Turkey as well. Is it legal to do so, especially if their individual cases are not assessed properly but blanketed with those of the Syrian refugees? The implementation of the deal in practice may become the site upon which several legal contradictions are enacted.
Thirdly, the UNHCR and also the EU Commission have supported ‘voluntary return’ where the asylum-seeker or refugee agrees to return to her/his county of origin. However, the deal will most likely result in forced mass repatriations. Even if the crossings cease, it is worth considering that the refugees already present in Greece will not concede to being deported. People who sacrificed so much prior to the crossing, made the expensive and perilous journey, lost loved ones at sea (frequently reported), and hope to join family in Europe, are not likely to accept their fate and go quietly.
The New York Times recently interviewed Syrians stranded in Greece to gauge their reactions to the deal. Mohammed, 32, emphasised: ‘We escaped from Syria and Turkey, but we go back to Turkey? Why? We lost our money, our homes, everything. We know the European Union is not criminals. And it would be a crime to send us back to Turkey.’ An unnamed woman who was visibly ill said that she did not care about the deal. ‘I go to Germany to save my children’.
Therefore, it can be argued that the deal fails on three accounts: Turkey as a ‘safe third country’, individualistic approach to the asylum procesudes with the UNHCR involvement, and voluntary return. However, there are further pitfalls. From a moral point of view, the deal pits several moral principles – foundational to the modern refugee system – against each other.
On the one hand, it recognises the aforementioned right that individuals have to cross borders to seek asylum and refuge. On the other hand, it stipulates that for each Syrian refugee who is returned for entering the EU illegally, a refugee who did not attempt to enter illegally (but who respected a state’s authority over its borders) will be granted asylum in the EU.
The deal straddles these two rights – the refugee and the state’s – but does not reconcile them. Refugees have a moral claim to legal rights even when they are still in an irregular status. It sounds reasonable to say that refugees who attempted the crossing should go back and wait their turn, but, as Joseph Carens has claimed, ‘to ask people to stand in a line that does not exist or does not move is disingenuous’.
Many Syrian refugees have admittedly attempted to enter the EU without permission, but the experiences of violence and conflict they are leaving behind and the new life they are trying to create matters much more from a moral perspective. We should balance competing moral considerations, and consider that the harm the refugees are escaping should perhaps offset their illegal entry – a principle that lies at the core of international refugee law.
Another moral limitation appears to be that the EU is outsourcing its refugee problem to less economically developed and security-challenged countries. It thus creates the idea that dealing with refugees should be a trade-off issue primarily with poor countries, rather than a humanitarian issue.
As mentioned earlier, Turkey has been promised progress on EU membership. Yet it lacks adequate health, education, and employment services for refugees, as well as the infrastructure to accommodate their immense numbers. The country’s security situation is also precarious. And can Greece, a bankrupt country, construct nearly from scratch and in a couple of weeks a functional asylum system and deploy thousands of staff? Several EU countries have special obligations to Syrian refugees, in addition to their moral obligation, if, for example, their involvement in the war caused further devastation to civilians. These countries cannot ignore their associative obligations.
Lastly, the deal has rendered the right to seek asylum and refugees a bargaining instrument in the EU-Turkey relations. Turkey’s demands for visa facilitation for its own citizens and opening new chapters in the accession negotations in return for keeping the asylum-seekers and refugees in Turkey is, in its simplist term, horsebargaining. Instrumentalization of one of the most important universal legal principles will result in turning individuals who have fled from the worst types of violence into a bargaining chip between states.
After all these political, legal and moral failings, can it be still argued that the deal can work in practice? From an operational perspective, the EU–Turkey deal raises many questions about its potential to be effective in practice. Several concerns stem from sheer numbers. For example, the deal has a cap of 72,000 refugees to be granted asylum across Europe. This number amounts to 0.026 percent of the 2.7 million refugees currently in Turkey. What will happen to the rest of them? So far, few countries have come forward to take refugees, either out of Greece or Turkey. Furthermore, the deal claims that if irregular migration to Greece continues, there will be a review, and the swap will not be extended beyond 72,000. Yet a previous EU–Turkey deal, struck in November, did not lead to the expected drop in irregular crossings. On 21 March, one day after the current deal was struck, 1,622 refugees were reported to have made the crossing from Turkey to Greece.
Whether or not the EU countries and Turkey considered all these legal, moral, and operational aspects of the deal, their handling of this issue shows that Syrian refugees as human beings, and their complex needs, are not at the heart of the deal, as many critics have highlighted. Clearly the EU–Turkey deal cannot be claimed to be either a ‘success’ or a ‘breakthrough’.