The second vote against the withdrawal agreement: what next?

Professor Steve Peers, University of Essex

Introduction

The second attempt to approve the withdrawal agreement has been defeated again in the House of Commons. What were the main legal issues in this second attempt – and what is the way forward, if any?

Overview

MPs were asked to vote on five documents:

a)      The Withdrawal Agreement, as agreed in November, which has not been changed (see my overview of the agreement here)

b)      The non-binding Political Declaration on the future relationship with the EU, which has not been changed (see my detailed annotation of the declaration here)

c)      A new Instrument relating to the Withdrawal Agreement, which claims to be legally binding; it is based on a previous exchange of letters

d)      A new, non-binding Joint Statement supplementing the Political Declaration; and

e)      A unilateral declaration by the UK on the issues.

Assessing the new texts in ascending order of importance, the Joint Statement on the Political Declaration is mainly about the timing of future talks, an issue which was addressed in the Political Declaration already in some detail. It is useful that the Commission commits to proposing provisional application of future post-Brexit EU/UK treaties, to speed up their application pending national ratification if needed, but not really surprising as this is common EU practice.

There’s a potentially important point on the future UK legal framework:

5. Fourth, and in the context of open and fair competition, the Union notes the United Kingdom’s intention to ensure that its social and employment standards and its environmental standards do not regress from those in place at the end of the transition period, and to provide its Parliament the opportunity to consider future changes in Union law in these areas.

However, a unilateral intention is not an international law guarantee, and the possibility to consider future EU legislation is a weak level of commitment. It also leaves out the impact of future CJEU case law. On this issue – and on the prospect of a future customs union – the UK government might obtain some Labour party support for the withdrawal agreement if it went further. However, going further on the prospect of a future customs union would split the Conservative party.

In any event, the political declaration, on top of its non-binding status, is vague or non-committal about a number of key aspects of the future relationship. It could be revised along the lines of my suggested amendments in my annotation, to provide for firmer and more precise commitments.

The unilateral UK government statement is not unusual as such, since there are often unilateral declarations attached to treaties. It might have some value as regards interpreting the treaty, as the Attorney-General’s advice points out. But in any event, on a close reading it does not assert very much substantively.

The first paragraph is an expression of intention about quickly starting talks on the future relationship. This matches the commitments in the political declaration on the future partnership. The second paragraph simply reiterates the withdrawal agreement text that the Northern Ireland backstop is not intended to be permanent. In this context, the third paragraph states the UK’s view that if the EU acts in bad faith when negotiating a replacement for the backstop, the UK could bring a claim under the dispute settlement provisions of the withdrawal agreement that could lead to the disapplication of the backstop. In any event, the UK will avoid a hard border and comply with its obligations under the Good Friday Agreement.

This claim simply reiterates the UK’s capacity to ask the arbitrators under the withdrawal agreement to rule on the alleged bad faith by the EU, and to exercise the remedy of disapplication of parts of the treaty that would potentially be allowed under the agreement in the event that it won its case (and assuming that the arbitrators did not find, upon request by the EU, that such a response by the UK was disproportionate). This claim does not alter the legal position however: the UK was always able to make such a claim under the withdrawal agreement, and the unilateral declaration does not mean that the arbitrators would be obliged to agree with the UK that bad faith existed or that the disapplication of the backstop was proportionate.

Finally, as for the joint instrument, it is legally binding based on the parties’ express agreement to this effect.  Indeed, as the text points out, under Article 31 of the Vienna Convention on the Law of Treaties the parties can agree additional texts supplementing a treaty, which are influential when interpreting that treaty. There’s a recent example of such a practice as regards the similar joint instrument agreed between the EU and Canada, which is already referred to by an Advocate-General of the CJEU.

But the issue is the substance of the joint instrument. Part A simply spells out some details of the mechanics of the negotiations aimed to replace the backstop. It adds, similarly to the UK unilateral declaration, that it would be in bad faith to act to attempt to keep the backstop applicable indefinitely. The dispute settlement process could be invoked in such a case, with the possibility of unilateral suspension of part of the agreement in the event of a breach.

Part B sets out safeguards for Northern Ireland.  The withdrawal agreement does not alter the Good Friday Agreement, including the role of the devolved Northern Ireland government. It clarifies that not all new EU measures will be added automatically to the Protocol. Finally, Part C notes that the future relationship between the UK and the EU need not have the same territorial scope as the withdrawal agreement.

The instrument therefore confirms the interpretation of certain potentially arguable aspects of the withdrawal agreement, in particular whether the claim of bad faith regarding negotiation of future treaties is justiciable before the agreement’s dispute settlement system. However, as the Attorney-General and others have noted (see Michael Dougan on this blog, and David Anderson and others), this does not amount to a unilateral right to exit the backstop by the UK, as some would wish to see. As a result, the vote was lost.

What next?

The Commons is due to vote on a no deal outcome and on a request for an extension. Some believe that an election or another referendum is possible (both would require an extension of UK membership; the latter would entail an extension of membership long enough to require UK participation in the European Parliament elections in late May, according to the Commission President). An election would not necessarily provide a decisive result.

It’s impossible to predict developments, but several key points should be emphasised. First of all, Remainers should keep in mind that a vote against the withdrawal agreement is not a ‘vote to stop Brexit’. Only revocation of the notification of withdrawal would do that. If there is insufficient support for revocation by the Prime Minister/Parliament or to hold another referendum, then Brexit will take place. Indeed, in that scenario a vote against the withdrawal agreement is actually a vote for no deal.

Secondly, a vote against no deal does not stop a no deal outcome happening. It’s politically relevant, but legally irrelevant. No deal is the default outcome. It will happen unless a withdrawal agreement is approved or the notification is revoked.

Thirdly, an extension delays a no deal outcome, but is not a resolution in itself. The same basic choices between no deal, a withdrawal agreement and revocation will still exist, but at a later date.

Barring a spectacular U-turn by the EU, in my view the most obvious landing zone for a package which the Commons might support is set out above: a future customs union with additional workers’ rights protections, set out slightly more precisely as the outcome in the political declaration. This is only achievable on the basis of Remainers accepting that Brexit is going to happen in the absence of support to overturn it, along with either the Conservative party splitting or a Labour government following an election. Whether any of these outcomes is plausible remains to be seen.

Barnard & Peers: chapter 27

Photo credit: parliament.uk

The Case of the Administrative Arrangement on Asylum-Seekers between Greece and Germany: A tale of “paraDublin activity”?

Stathis Poularakis, Legal advisor - Advocacy Officer Médecins du Monde – Greece*

* Reblogged from the EDAL blog. An earlier version of this article was published in Greek on immigration.gr blog. The views and opinions expressed in this article are those of the author and do not necessarily reflect the official policy or position of Médecins du Monde – Greece. Special thanks go to Evangelia Tzironi, PhD Candidate at the Law School of the National and Kapodistrian University of Athens for proofreading the article.

In mid-August 2018, Germany, Greece and Spain agreed on the sketchy details of the initial migration compromise deal that was reached on the sidelines of the EU Summit in Brussels in late June 2018. In this context, the Ministers on Migration of Germany and Greece reaffirmed their commitment by exchange of letters, to work towards common European solutions and to avoid any unilateral measure with respect to migration and asylum.  

In particular, both countries underlined their support for concluding the revision of the Common European Asylum System by end of 2018 “with the aim of achieving the goal of fair sharing of responsibility and solidarity”. In the event of a crisis – defined as a situation where asylum applications have surpassed a certain percentage e.g. 140% of a State’s fair share of asylum applications based on objective criteria (total population and GDP) – Germany committed to support Greece in the Council (of the European Union), especially on the adoption of additional support measures at European Union level. Germany agrees also that further supportive and development measures need to be adopted on the five Greek islands of Eastern Aegean, where the hotspot approach is implemented, in order to assist local communities. Finally, Germany affirms its commitment to increase the human resource capacity in Greece, through the EU Asylum Support Office (EASO), with the aim to strengthen the asylum system.

The final operational details of the aforementioned political agreement were annexed to the letters, under the Title “Administrative Arrangement”. This blog post aims to outline the key points of this “Arrangement”, to examine its legal nature arguing that argue that this document is a bilateral treaty whose scope extends beyond the Dublin Regulation, and to critically assess its impact on the EU asylum policy.

The content of the Administrative Arrangement

The Administrative Agreement is comprised of 15 articles and divided into three sections. The first part includes arrangements for the readmission to Greece of persons identified in the context of temporary checks at the German-Austrian border, having previously applied for asylum in Greece. The second part includes provisions for concluding pending Dublin cases of family reunification from Greece to Germany, and finally, the third section includes provisions on the review of the implementation of the "agreement", the mutual dispute settlement and beginning and ending of the aforementioned cooperation between the two countries.

In particular, under the "Administrative Arrangement", the following are agreed:

Germany will return to Greece, any adult third-country national who has been identified during a check at the German-Austrian border and wishes to apply for international protection if he/she has already applied for asylum in Greece i.e. when an entry in Eurodac (the EU system of exchanging fingerprints of asylum-seekers) indicates that the person has already requested protection in Greece, and such entry is dated from July 1st, 2017 onwards. Unaccompanied children (under the age of 18) at the time of the identification are excluded from readmission to Greece.

The German Authorities will provide notification of the refusal of entry to the Greek responsible authority using the form annexed to the Agreement via fax or email. The return should be initiated no more than 48 hours after the person has been apprehended, unless the Greek side objects to the return within six hours from the automatic confirmation of the receipt of the notification of the refusal of entry, demonstrating why the conditions of the administrative agreement have not been met. Within 7 days of the readmission, if the Greek authorities demonstrate that the above conditions had not been met (refusal of entry in error), Germany will readmit the person concerned without delay.

Germany commits to swiftly concluding family reunifications from Greece in the framework of the Dublin III Regulation by the end of 2018, with respect to “take charge” requests already accepted by the German Dublin Unit before 1 August 2018. It should be noted that due to the high number of Dublin transfers from Greece to Germany over the last year, asylum seekers entitled to be transferred to Germany under the relevant provisions of the Dublin III Regulation, were “blocked” in Greece for periods exceeding the six-month deadline provided by art. 29 of the Regulation. Germany also undertakes to examine all pending “take charge” requests that have been submitted before 1 August 2018 that have not been examined yet within two months of the beginning of the cooperation between the two parties based on this Administrative Agreement. The number of people to be transferred from Greece to Germany is capped at 600 people per month and family reunifications should be completed by December 2018.

At the same time, the German authorities will examine and reply "without undue delay" to all requests for re-examination submitted before 1 August 2018. To this end, the Greek authorities will provide a relevant sortable list with case numbers and submission dates. Passports and ID cards, marriage and birth certificates, family booklets, as well as the transcript of the interview with the person concerned, will be considered as evidence, when submitted in relation to a currently pending request for re-examination. These documents will be submitted in their original language. A translation in English will be also submitted, if available. It is explicitly envisaged that the submission of documentation in its original language (without translation) may not be used as a justification for rejecting the request for re-examination.

The cooperation between the two countries based on the Administrative Arrangement starts from the day of its acceptance by the Greek Minister on Migration Policy (dated 18.8.2018). The two parties will review the implementation of the agreement on a three-month basis. Each Party may withdraw from the Agreement by notifying the other Party in writing at least three weeks in advance. Lastly, it is explicitly envisaged that the agreement will discontinue upon entry into force of the revised Common European Asylum System.

"Administrative Arrangement" or international treaty?

The first issue raised by this so-called "Administrative Arrangement" concerns its actual legal nature.

Based on the public statements made so far and the title given to the document, it could be argued that the latter could be understood to be an informal non-treaty instrument - an arrangement on operational issues and actions in line with EU law. According to this argument this text seems to be in conformity with Article 36 of the Dublin III Regulation, which stipulates that Member States may, on a bilateral basis, establish administrative arrangements between themselves concerning the practical details of the implementation of this Regulation, in order to facilitate its application and increase its effectiveness. Such arrangements may relate to exchanges of liaison officers and the simplification of the procedures and shortening of the time limits relating to transmission and the examination of requests to take charge or take back applicants.

However, taking as a point of departure that negotiating States have the autonomy to choose between complex or simplified forms of express consent to be bound by a treaty (in the present case by exchange of instruments under Article 13 of the Vienna Convention on the Law of Treaties (VCLT), and given its content, it could also be argued that the “Agreement” could be perceived as an international treaty concluded in simplified form. This agreement in fact sets forth the “technical” modalities of the earlier political agreement between Chancellor Merkel and Prime Minister Tsipras in Brussels last June, in the sidelines of the EU Summit. International treaties in simplified form are concluded without the need for ratification by the State, nor the consent of the parliament. They are usually signed by Ministers or any other body authorized under national law and are related to technical or administrative issues of cooperation, military pacts concluded on a battlefield or arrangements for the application of a binding (“typical”) international treaty.

 

In order to draw a safe conclusion on the nature of the “administrative arrangement”, all the circumstances around the exchange of letters should be meticulously examined. “Treaty” means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation (Article 2(1)(a) of the VCLT). Whatever its designation (convention, accord, protocol, exchange of letters, agreed memorandum, memorandum of understanding), the intention of negotiating parties to create binding legal obligations marks the difference between treaties and informal instruments. To wit, even an exchange of letters could be considered as an international treaty.

A closer look on the actual content of the "Arrangement" suggests that this is not just an informal international non-binding agreement or arrangement on technical details of cooperation between the two Parties for the implementation of the Dublin Regulation, but rather a legal instrument setting forth “new” binding rules whose scope moves beyond the obligations established under the Dublin III Regulation.

In fact, the first part of the “Arrangement” contains clauses that are usually included in readmission agreements. No such an agreement has been ever signed between Germany and Greece. In particular, the clauses of the Arrangement lay down, among others, the specific conditions for readmission, the competent authorities of each State, the procedure to be followed, the responsible State in terms of costs etc. A standard template form is also included so as to facilitate the return. In reality, the “Arrangement” does not establish simplified and streamlined procedure for “Dublin transfers” (the wording “transfer” in not used in the text) but rather a fast-track readmission procedure for persons refused entry at the German-Austrian borders, likewise in any other case of an irregular migrant refused an entry in Germany. 

Another crucial element regarding the legal nature of this “Arrangement” lies with the specific clauses on family reunification that undoubtedly enumerate commitments to which the Parties have consented and their intention to create legal rights and obligations that go beyond those already provided for in the "Dublin III” Regulation. Namely, assuming the obligation to accept a transfer of an asylum seeker from Greece to Germany upon expiry of the 6 months’ time-limit under Article 29 of the Regulation – where the respondent MS is relieved of its obligations to take charge or to take back the person concerned – is a “new” obligation for Germany enshrined in the "Administrative Arrangement".

The same also applies for the obligation to re-examine all rejected requests for “take charge”. To avoid any confusion, one should make a clear distinction between the potential responsibility of Germany for the infringement of the time-limits and conditions laid down in the Dublin III Regulation, e.g. for breaching EU law, and the legal obligation of Germany to actually accept transfers for which its responsibility has already ceased under “Dublin”. These obligations are now explicitly assumed by the aforementioned "Administrative Arrangement".

It is worth mentioning that last year the competent Ministers of Greece and Germany had reached to a similar informal arrangement by which Dublin transfers to Germany were capped at 70 persons per month for a certain period of time. This informal agreement, however, was rather a "gentleman's agreement" between the two states without creating clear binding obligations for both parties. In any case, the conformity of this agreement to the Dublin Regulation is open to discussion, since the Dublin Regulation does not foresee such caps on relevant transfers for administrative convenience reasons.

Finally, one could hardly argue that during Merkel and Tsipras΄ meeting in Brussels, where a common political agreement was reached on migration, the two leaders concluded a formal treaty under international law with the subsequent "administrative arrangement” serving as a treaty in a simplified form, laying down modalities for the application of the treaty concluded by the two heads of state.

For all these reasons, the "administrative arrangement" should not be considered as a "gentlemen's agreement", nor as an administrative arrangement under Article 36 Dublin III Regulation but rather as a binding bilateral treaty whose provisions establish obligations that go beyond the scope of obligations established under the Dublin III Regulation. The agreement thus is governed by international law; an international treaty between Greece and Germany. This contravenes EU law which does not allow legislation at national level or bi/multilateral inter-se agreements in policy areas of shared competence, to the extent that the EU has exercised its competence, as it did through the adoption of the Dublin III Regulation (see TFEU Art 2(2); TEU Art. 4(3), third indent, and Protocol 25 to the TFEU). 

Dublin revisited or further violation of EU law?  A glimpse into the future of EU asylum policy

Another key point of concern is the impact of this bilateral agreement on EU’s asylum policy.

Could this “Administrative Arrangement” be seen as a new, enhanced and adapted to current developments, version of the Dublin rules, that is to say a bilateral agreement between two Member States that aims at strengthening the Dublin rules and principles or just another agreement beyond the scope of Dublin Regulation governed by international law?

One could argue that such bilateral agreements are rather symbolic in nature. They indicate that compromises at European Union level are feasible. As talks on the revision of the Dublin III Regulation stall, the establishment of interim measures among those Member States willing to move ahead collectively at European Union level (“enhanced cooperation”) seems indeed to be the only possible way to actually make progress in this area. However, that enhanced cooperation should to be done under the framework of EU law, i.e. following the procedures of EU law and not bilaterally as an inter-se agreement.

But is this "administrative arrangement" actually such a measure of European Union cooperation? Although the responsible Ministers expressly commit to continue working towards common European Union solutions and avoiding unilateral measures in relation to asylum and migration, this agreement is in fact just another – deeper – derogation from/violation of the European Union acquis. In fact, through such agreements, Germany cooperates with Member States serving as a key point of entry in EU by creating a “Quasi-Dublin” system / a Dublin-like system creating obligations that go beyond the scope of the Dublin III Regulation (i.e. extension beyond the 12 month period for the responsibility for irregular entry) and limitations that are not foreseen in the Regulation (such as caps on the numbers of transfers under the family reunion clauses). A system which, on the one hand, follows the general philosophy of the Dublin Regulation (application of the first country of entry criterion), but, on the other hand, is "free" from all “obstacles” that could jeopardize swift returns – namely clauses and safeguards provided for asylum seekers by the Dublin Regulation, such as family unity criteria, right to appeal against the application of Dublin criteria and deadline to appeal against the transfer decision etc.

Undoubtedly, Southern Member States serving as the main gateways to Europe for third country nationals are in absolute need of European Union solutions on the basis of solidarity and fair responsibility sharing. In this context, the revision of the Dublin III Regulation and the introduction of a permanent allocation mechanism among European Union states is a key issue for Greece. One can hardly wonder why Germany would then be interested in reforming the Dublin Regulation if a more flexible "Quasi-Dublin" system- tailored to its needs- has already being established. Bilateral agreements, such as this, with one of the most prestigious EU countries, could draw away any possibility of a positive revision of the Dublin Regulation for Southern Member States in the near future.

In any case, this "administrative arrangement" marks an alarming development in the context of Greece’s migration policy. To date, Greece has signed and ratified a number of agreements on the readmission of persons irregularly entering or staying in its territory. For all these agreements, the usual process of concluding international treaties was followed: Signing of an agreement, protocol, or treaty and its ratification by the Parliament, according to Article 36 of the Greek Constitution. On the contrary, in the present case, it is the first time that a readmission agreement is concluded by Greece through an exchange of letters between Ministers. Though such an agreement is totally valid and binding under international law, the fact that it not only deals with international relations and migration policy but ultimately with human rights, is concluded away from parliamentary scrutiny and procedures – without even being published in the Government Gazette – raises important concerns on transparency and the rule of law.

Barnard & Peers: chapter 26

JHA4: chapter I:5

Photo credit: Fortune

EU/Morocco relations and the Western Sahara: the ECJ and international law

Markus W. Gehring: University Lecturer, University of Cambridge; J.S.D. (Yale), LL.M. (Yale), Dr jur. (Hamburg), MA (Cantab); Deputy Director, Economic Law at CIGI 

On Wednesday 21 Dec 2016 the Court of Justice rendered its appeals decision in the case C-104/16 P Council v. Front Polisario. This was a Grand Chamber judgment under the expedited procedure which overturned the decision by the EU General Court in T-512/12 Front Polisario v Council decided a little over a year ago.

Background

The Front Polisario (Frente Popular de Liberación de Saguía el Hamra y Río de Oro) aims to end Moroccan presence in the Western Sahara territory and has been recognised internationally by over 40 countries with Algeria being regarded as its main backer. It had a difficult year (see here and here) after its leader died and Morocco, after a thirty-year absence from the African Union, applied to re-join (a vote will be held in January 2017). While Polisario did not win this case, the judgment will hardly be welcomed by Morocco either.

General Court judgment

As discussed by Geraldo Vidigal in EJILTalk, the decision by the General Court had been seen as an extraordinary victory by the Polisario as it was granted standing to bring a case against the Council decision concerning reciprocal liberalisation of certain agricultural products between the EU and Morocco (Liberalisation Agreement). The General Court recognised, contrary to objections by the Council and Commission, that Polisario had legal personality and could prove direct and individual concern (the standing requirement to challenge a decision in the EU courts, unless the challenger is an EU institution or Member State).

Polisario was concerned because the agreement, despite differing interpretations of its territorial scope between Morocco and the EU, was applied to Western Sahara. Polisario in particular argued that 140 undertakings based in Western Sahara were included in the EU Commission’s website list of approved Moroccan exporters, and both the Council and Commission had indicated at the oral hearing that the contested decision was de facto applied to the territory of Western Sahara (para 87). The General Court cited the C-386/08 Brita judgment by the CJEU extensively because in that judgment the Court had rejected products produced in the West Bank as being covered by the EU/Israel trade agreement, but did not rely on this judgement because neither the EU nor any of its Member States had ever recognised Polisario as representing Western Sahara as a sovereign state. However, the General Court confirmed direct and individual concern for Polisario to sue because the EU institutions by not including a clause excluding the Western Sahara territory from the application of the EU-Morocco Association Agreement had ‘at least implicitly’ accepted the interpretation of the Association Agreement which applied it to the part of Western Sahara controlled by Morocco (para 102).

On the substance, the General Court rejected all of Polisario’s substantive claims bar one. It agreed with Polisario that the Council had overstepped its wide margin of discretion in international relations by not ensuring that the exploitation of natural resources of Western Sahara under Moroccan control is beneficial to the population of that territory and thus does not violate the population’s fundamental rights. It said the “Council must examine, carefully and impartially, all the relevant facts in order to ensure that the production of goods for export is not conducted to the detriment of the population of the territory concerned, or entails infringements of fundamental rights, including, in particular, the rights to human dignity, to life and to the integrity of the person (Articles 1 to 3 of the Charter of Fundamental Rights), the prohibition of slavery and forced labour (Article 5 of the Charter of Fundamental Rights), the freedom to choose an occupation and right to engage in work (Article 15 of the Charter of Fundamental Rights), the freedom to conduct a business (Article 16 of the Charter of Fundamental Rights), the right to property (Article 17 of the Charter of Fundamental Rights), the right to fair and just working conditions and the prohibition of child labour and protection of young people at work (Articles 31 and 32 of the Charter of Fundamental Rights)” (para 228). 

By leaving the question solely to the Moroccan authorities, the Council failed to fulfill its obligation to examine all elements of the case. As a consequence the General Court annulled the Council decision. Several international commentators hailed the decision as beneficial for the international protection of human rights. Eyal Benvenisti strongly welcomed the decision because it highlighted that even indirect contributions to human rights violations through trade could violate international law.

ECJ judgment 

In this week’s appeal judgment, the ECJ Grand Chamber saw things differently. It largely followed, though in much fewer words, the Opinion of Advocate General Wathelet who on 13 September 2016 had concluded that the Court should set aside the General Court decision and dismiss the action by Polisario as inadmissible. He also expressed the opinion that the General Court erred in law when it applied the EU Charter of Fundamental Rights to the population of the Western Sahara (para. 272), although he did accept that international human rights law generally could apply to the EU’s decision.

The Council, supported by the Commission, alleged six errors of law of which the Grand Chamber only examined one in detail. It focussed on the standing of Polisario and the question whether the Liberalisation Agreement applied to Western Sahara. The Court of Justice did not see the finding that the Liberalisation Agreement applied to that territory as a finding of fact, but rather a legal interpretation by the General Court. The Court of Justice concluded that the General Court went too far when it ruled that the absence of an application clause in the Association Agreement meant that the EU had accepted the view by the Moroccan authorities which see Western Sahara as an integral part of the Kingdom of Morocco.

The Court of Justice then proceeded to analyse: a) the principle of self-determination; b) Article 29 of the Vienna Convention on the Law of Treaties, on treaties' territorial scope (“Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.”); and c) the relative effect of treaties. The Court of Justice concluded that given the erga omnes nature of the right to self-determination by the peoples of a Non-Self-Governing Territory and its status as an essential principle of international law, the General Court erred in law when assuming that the Association Agreement also applied to Western Sahara. 

With regards to Article 29 of the Vienna Convention the Court of Justice clarifies that ‘its entire territory’ only refers to the territory internationally recognised, and not the territory under its jurisdiction which would be the wider expression. As such, the Court sided with the Commission which argued that any extension of the application must be expressed in the agreement. Finally the Court of Justice also invoked the pacta tertiis principle by which “treaties do not impose obligations, or confer any rights, on third States without their consent” (para 100). It concluded that the people of Western Sahara according to the ICJ Advisory Opinion on Western Sahara constituted a third party in this respect and had not expressed their consent. In the view of the Court, the Liberalisation Agreement as a subsequent agreement is incapable of expanding the scope of the previous Association Agreement. This interpretation can also not be altered by the rule on subsequent practice in Art. 31 Vienna Convention. Though the Commission and the Council were aware that the Moroccan authorities had been applying the Association Agreement to Western Sahara for many years and the institutions never opposed such application and though certain tariff preferences de facto applied to product originating in Western Sahara, this did not constitute clear subsequent practice. As such, the agreements did not apply to Western Sahara and therefor Polisario lacked standing in the European Courts. 

Comment

This judgment contributes to the practice of international law, like many domestic courts would, in that it clarifies the rules of interpretation in the Vienna Convention on the Law of Treaties. It clarified how the territorial scope of the international agreements of the EU cannot be interpreted without reference to general public international law. The fact that the EU and Morocco ‘agree to disagree’ about the application of the Association and Liberalisation Agreements (AG Opinion para 67), could not alter the fact that in the EU’s view said agreements only applied to the territory of Morocco as internationally recognised.

Overall the Court’s judgement highlights that its practice is becoming more sophisticated, carefully evaluating the international legal arguments and not just accepting the Commission’s or Council’s view on the matter. In many ways this highlights that EU External Relations law has a greater body of international case law to rely upon. The impact on EU-Morocco relations as highlighted by Geraldo Vidigal might become a bit trickier. While the Council tried to side with Morocco by highlighting that despite the restrictive scope of the Association Agreement it could be seen as “application without recognition” (AG Opinion para 67), the Court very clearly asserted that the application of the Association Agreement to Western Sahara required an explicit treaty provision. This might make future relations between these two important partners more difficult. So, in some ways this judgment constitutes a bit of a pyrrhic victory for Morocco.

It remains to be seen if Polisario might bring a new case trying to challenge the de facto application of the agreements to the territory also administered by Morocco. (Note that another case on these issues is already pending before the ECJ, following a reference by a UK court, discussed further on the UK Human Rights Blog).  Unfortunately, the Court of Justice did not venture, beyond self-determination, further into the territory of human rights application to trade agreements. As Thomas Cottier wrote in 2002, this will remain an important field to be discovered.           

            

Barnard & Peers: chapter 24

Photo credit: diasporasaharaui-en.blogspot.com 

    

        

Could the UK stay in the single market after leaving the EU? The planned case on Article 127 EEA

Steve Peers

Might the UK stay in the single market, even if it leaves the EU? This is the issue to be raised by planned litigation relating to the UK’s position in the European Economic Area (EEA) – a zone set up by a treaty between the EU, its Member States, and Norway, Iceland, and Liechtenstein, which extends EU single market rules to the latter three States. It raises issues of both international and domestic law; but first, it would be useful to explain the EEA further.

The EEA

The EEA treaty was originally signed in 1991, adjusted in 1992, and come into force at the start of 1994. The aim was to extend the EU’s internal market (known as the ‘single market’ in UK political debates) to the countries which were part of the European Free Trade Area (EFTA). In the event, three of those countries decided to join the EU from 1995 (Sweden, Austria and Finland), and Switzerland decided not to sign up after all, relying on a separate network of treaties with the EU.

Some believe that the EEA is the same as the EU, but there are many differences. The EEA does not include the EU’s common trade policy, and indeed EFTA states have signed separate trade deals with non-EU countries. It also does not include EU policies on tax, justice and home affairs, foreign policy, agriculture, the single currency and fisheries, although EFTA states have signed separate agreements with the EU on aspects of these issues. In particular, while all EFTA states have signed up to the EU’s Schengen system for the abolition of internal border controls, that is a separate issue from the EEA (indeed, the treaties to become Schengen associates were signed later than the EEA).

The EEA does include applying EU laws on the free movement of goods, services, capital and people, along with the freedom of establishment.  However, EFTA states can apply an emergency safeguard to limit free movement, including the free movement of people. The EEA also involves participation in most of the EU laws concerns labour and environment, as well as competition and state aids. EFTA states make contributions to participate in EU programmes and to assist the development of poorer EU countries; but the money does not go into the EU budget and the EFTA countries have more control over how it is spent.

As regards institutions, the EFTA states have no role in EU institutions, but rather the EEA has its own bodies, where EFTA states are consulted on draft EU laws, but do not have a vote on the EU decision-making process. They are expected to apply new EU laws within the scope of the EEA (which, as noted already, does not extend to many areas of EU law-making), but they can in principle reject them, subject to the possibility of EU retaliation. They are not directly subject to the EU court, but instead take part in an EFTA Court, which usually follows the EU court’s case law – although note that some EFTA Court judgments are not binding.

Some argue that the UK should stay part of the EEA on at least an interim basis after leaving the EU, while negotiating a longer-term agreement. The basic arguments for this position are set out here; see also the EUreferendum site. One thing is clear: staying in the EEA was not on the referendum ballot paper. While comments by some on the Remain side or Leave side suggested that a vote on EU membership was also a vote on single market membership, that is not what voters actually voted on.

How to leave the EEA?

Leaving the EEA has two dimensions: international law and national law. Internationally, the only explicit way to leave the EEA is by invoking Article 127 of the EEA treaty, which says that any party can leave with at least 12 months’ notice. There is no explicit requirement to name the date of departure when giving the notice, so arguably the UK could specify the date of departure as the same date it leaves the EU. Therefore, as long as the UK gives notice to quit the EEA at least twelve months before Brexit Day, it could align leaving the EEA with leaving the EU.

What if the UK doesn’t give that notice? In that case, although Article 127 is the only explicit way to leave the EEA, some argue that that the UK would leave the EEA automatically when it leaves the EU. Why? Firstly, because the clause on territorial scope (Article 126) refers to the EU and EFTA states, but not to any other countries. Also, many of the substantive legal rules refer to the EU and EFTA states. Article 2(c) defines the contracting states as regards the EU and its Member States, and allocates responsibility as between them, but does not mention EFTA states.

If this analysis is correct, the UK could still rejoin the EEA after (or at the same time) as leaving the EU. In that case, Article 128 says the UK would have to join EFTA and apply to rejoin the EEA, subject to EU and EFTA states’ agreement, because only EU and EFTA states can join up to the EEA. (Article 128 isn’t, by itself, a good basis for arguing that the UK would have to leave the EEA if it leaves the EU, because it only addresses which countries may join the EEA in future, not which countries are members now and whether they might retain membership or implicitly lose it if they leave the EU or EFTA. It might, however, be referred to reinforce a conclusion based on Article 126 or other provisions).

So does the UK implicitly lose EEA membership if it leaves the EU? The answer isn’t clear, because the drafters of the EEA treaty never considered this possibility. On the one hand, the presence of an explicit clause on leaving presumes that states cannot implicitly cease to be EEA members. On the other hand, the substantive provisions and the clauses on territorial scope imply that leaving the EU is incompatible with being part of the EEA – unless the country concerned joins EFTA. That raises the question of how this would work: arguably there would be a ‘fundamental change of circumstances’ under Article 62 of the Vienna Convention on the Law of Treaties. (Note that the latter clause can’t be used as a quick route to leave the EU, since it only applies where a change was ‘not foreseen’ by the parties; but the prospect of a state deciding to leave the EU clearly was foreseen by the parties to the EU Treaties, since Article 50 TEU refers to it).  Or the other parties to the EEA could argue that the UK had committed a ‘material breach’ of the EEA by ceasing to be an EU Member State (if the UK does not join EFTA), and terminating application to the UK under Article 60 of the Vienna Convention.

The issue is arguably relevant by analogy to many other treaties which the UK signed up to as part of the EU, in particular trade agreements. Does the UK retain its status under the EU’s free trade deals with Korea, Canada and many other countries automatically on Brexit Day, or does it lose that status and have to negotiate a separate treaty? (Arguably, the international law principle of continuity of treaties could play a role here; and the legal issue also arises of whether the UK can start negotiating replacement treaties, if it has to, before Brexit Day).  

National law aspects

The termination of the UK’s EEA membership raises different issues as a matter of national law – which perhaps is the purpose of the planned litigation. If the UK government gives notice under Article 127, or asserts that it will implicitly cease being a party to the EEA on Brexit Day, does Parliament have to give its approval?

If the government is legally obliged (as a matter of international law) to give notice of leaving the EEA separately from the Brexit process, then the case is arguably analogous with the Miller case recently decided by the High Court, and now on appeal to the UK Supreme Court.  That case raises the question of whether the UK government’s royal prerogative extends to the termination of the UK’s EU membership, or whether Parliament must approve such use of the prerogative because leaving the EU would terminate rights conferred by an Act of Parliament. Since EEA membership is referred to in the European Communities Act, and extends many (though not all) of the same rights conferred by the EU Treaties, the answer to this question which the Supreme Court ultimately gives in the Miller judgment should logically apply by analogy to the EEA.

Therefore, in this scenario, if Parliament is obliged to approve withdrawal from the EU, it is also obliged to approve withdrawal from the EEA. And since EEA membership was not on the referendum ballot paper, the force of the political argument that Parliament ought to follow the view of the majority of those voting that the UK should leave the EU is not as strong. There will undoubtedly be a political argument that the referendum vote should apply by analogy – since to some extent the issues raised often by the Leave side as regards EU membership (migration of EU citizens, contribution to the EU, control over law-making) apply also to the EEA. But, as noted already, there are possible counter-arguments: the free movement safeguard clause in the EEA, the different nature of budget contributions, and the more limited scope of the EEA compared to EU law. Participation in the EEA could also, as some Leavers have suggested, be limited in time: an interim status pending negotiation of a longer-term framework for UK/EU relations.

On the other hand, if there is no distinct legal obligation to notify departure from the EEA, because its application to the UK will necessarily cease when the UK leaves the EU, then any Parliamentary vote to approve invoking Article 50 should logically encompass also the end of EEA membership, and the legal challenge relating to the EEA may find it harder to succeed. Or if the UK government succeeds in its appeal in Miller, it would be hard to convince a court that leaving the EEA raises distinct questions from leaving the EU.

In any event, any fresh litigation on the EEA could provide an opportunity to argue about whether an Article 50 notice is revocable – and it might be argued that that issue, and/or the issues about termination of EEA status as a matter of international law, should be referred to the ECJ to decide.

See also blog posts by:

Christian Dadomo and Noelle Quenivet

Francis Davey

David Allen Green

Jolyon Maugham QC

UK Civil Servant

Michael O’Connor

Meme: Steve Peers

Barnard & Peers: chapter 25, chapter 27

Is the EU-Turkey refugee and migration deal a treaty?

Maarten den Heijer*, Thomas Spijkerboer**

*Assistant professor of international law at the Universiteit van Amsterdam

**Professor of migration law at the Vrije Universiteit Amsterdam.

In the European Parliament, questions were asked about the legal nature of the EU-Turkey Statement of 18 March, pursuant to which Greece has started to return asylum seekers to Turkey this week. Apparently, the EU’s procedure for negotiating and concluding treaties with third countries, laid down in in Art. 218 TFEU, has not been followed. The European Parliament wants to know whether the Council nonetheless considers the Statement to be a treaty, and, if not, whether Turkey has been informed about the non-binding nature. Importantly, for treaties “covering fields to which the ordinary legislative procedure applies” (asylum and immigration is such a field), the Council may only conclude a treaty with a third country after obtaining consent of the European Parliament (Art. 218(6)(a)(v) TFEU).

It seems that legal experts of the Commission and the Council have identified the issue. Shortly after the EU-Turkey Statement, the Commission proposed to amend the Relocation Decisions relating to Italy and Greece, in order to transfer some of the relocation commitments concerning asylum seekers arriving in Italy and Greece to Syrians in Turkey. The proposal appears to contradict the view that the EU-Turkey Statement of 18 March did not intend to produce legal effects. However, in consideration 4 of the proposal’s preamble, the presented rationale for the amendment is the Statement of the EU Heads of State or Government of 7 March 2016, in which the Members of the European Council (and not Turkey) agreed to work towards the Turkish proposal of resettling, “for every Syrian readmitted by Turkey from Greek islands, another Syrian from Turkey to the Member States, within the framework of the existing commitments”. The Commission would seem to be navigating around the EU-Turkey Statement as the ground for amending the 22 September Council Decision, possibly fearing that to do otherwise may lend support to the argument that the Statement is, in fact, a treaty.

It could be argued that the statement is not a treaty in the meaning of the Vienna Convention on the Law of Treaties or an international agreement in the meaning of Article 216 TFEU, precisely because it is merely a “statement”. This is the view of Steve Peers on this blog: “Since the agreement will take the form of a ‘statement’, in my view it will not as such be legally binding. Therefore there will be no procedure to approve it at either EU or national level, besides its endorsement by the summit meeting. Nor can it be legally challenged as such. However, the individual elements of it – new new Greek, Turkish and EU laws (or their implementation), and the further implementation of the EU/Turkey readmission agreement – will have to be approved at the relevant level, or implemented in individual cases if they are already in force.” Karolína Babická appears to share this view: “The EU-Turkey statement as such is not legally binding. It is only a politically binding joint declaration. It is not challengeable as such but its implementation in practice will be possibly challenged in court.”

A further reason not to view the statement as a treaty is that it does not use terms as shall and should, which are normally used in international law to indicate obligations of result (shall) or obligations of effort (should). Instead, the more indistinct term ‘will’ is used. On the other hand, the Statement says that the EU and Turkey “have agreed on the following additional points”. Article 216 TFEU uses the term ‘agreement’ when referring to a treaty with third countries. If two parties agree to something, can the result be anything less than an “agreement”? Or is the meaning of the term agreement in Art. 216 TFEU different from its ordinary meaning?

If one would embrace the thought that the Statement of 18 March is not a treaty or agreement because it is designated as “Statement” and uses the term “will”, it would follow that the EU could neglect the constitutional safeguards of Art. 218 TFEU by changing the form or terminology of a particular text. It would be rather odd if the EP and CJEU could be sidetracked by such clever ruses. It would mean that the applicability of constitutional safeguards depends entirely on choices regarding the design instead of content made by Commission or Council.

That the form is not decisive is confirmed in the case law of the International Court of Justice. In Aegean Sea, the question was whether a joint communiqué, issued after a meeting between the Prime Ministers of Greece and Turkey, in which they agreed that a territorial dispute dividing the two countries should be resolved by the ICJ, constituted a treaty on the basis of which the ICJ had jurisdiction over the case. The Court held:

95. The Brussels Communiqué of 31 May 1975 does not bear any signature or initials, and the Court was informed by counsel for Greece that the Prime Ministers issued it directly to the press during a press conference held at the conclusion of their meeting on that date. The Turkish Government, in the observations which it transmitted to the Court on 25 August 1976, considered it "evident that a joint communiqué does not amount to an agreement under international law", adding that "If it were one, it would need to be ratified at least on the part of Turkey" (para. 15). The Greek Government, on the other hand, maintains that a joint communiqué may constitute such an agreement. To have this effect, it says, "It is necessary, and it is sufficient, for the communiqué to include-in addition to the customary forms, protestations of friendship, recital of major principles and declarations of intent-provisions of a treaty nature" (Memorial, para. 279). Counsel for Greece, moreover, referred to the issue of joint communiqués as "a modern ritual which has acquired full status in international practice".

96. On the question of form, the Court need only observe that it knows of no rule of international law which might preclude a joint communiqué from constituting an international agreement to submit a dispute to arbitration or judicial settlement (cf. Arts. 2, 3 and 11 of the Vienna Convention on the Law of Treaties). Accordingly, whether the Brussels Communiqué of 31 May 1975 does or does not constitute such an agreement essentially depends on the nature of the act or transaction to which the Communiqué gives expression; and it does not settle the question simply to refer to the form - a communiqué - in which that act or transaction is embodied. On the contrary, in determining what was indeed the nature of the act or transaction embodied in the Brussels Communiqué, the Court must have regard above all to its actual terms and to the particular circumstances in which it was drawn up.

The ICJ found that the terms of the communiqué, using terms as “decision” and “obligation” were indicative of the parties intending to bind themselves. However, it transpired from the context, namely previous and later negotiations and diplomatic exchanges between the parties, that they had not yet undertaken an unconditional commitment to submit the continental shelf dispute to the Court.

In Qatar/Bahrain, the question was whether minutes of a meeting between two Foreign Ministers constituted a treaty. The ICJ held:

24. The 1990 Minutes refer to the consultations between the two Foreign Ministers of Bahrain and Qatar, in the presence of the Foreign Minister of Saudi Arabia, and state what had been "agreed" between the Parties. In paragraph 1 the commitments previously entered into are reaffirmed (which includes, at the least, the agreement constituted by the exchanges of letters of December 1987). In paragraph 2, the Minutes provide for the good offices of the King of Saudi Arabia to continue until May 1991, and exclude the submission of the dispute to the Court prior thereto. The circumstances are addressed under which the dispute may subsequently be submitted to the Court. Qatar's acceptance of the Bahraini formula is placed on record. The Minutes provide that the Saudi good offices are to continue while the case is pending before the Court, and go on to Say that, if a compromise agreement is reached during that time, the case is to be withdrawn. 25. Thus the 1990 Minutes include a reaffirmation of obligations previously entered into; they entrust King Fahd with the task of attempting to find a solution to the dispute during a period of six months; and, lastly, they address the circumstances under which the Court could be seised after May 1991. Accordingly, and contrary to the contentions of Bahrain, the Minutes are not a simple record of a meeting, similar to those drawn up within the framework of the Tripartite Committee; they do not merely give an account of discussions and summarize points of agreement and disagreement. They enumerate the commitments to which the Parties have consented. They thus create rights and obligations in international law for the Parties. They constitute an international agreement.

On that basis, the ICJ concluded the dispute to be within its jurisdiction. It follows that the question of whether a text is a treaty does not depend on form but on whether the parties intended to bind themselves. Whether there is such intent, depends on the terms used and the context in which the text was drawn up.

There is no reason to assume that this reasoning does not apply to the EU (which is not a party to the Vienna Convention on the Law of Treaties). In interpreting agreements concluded between the EU and third countries, the CJEU consistently observes that even though the Vienna Convention does not bind either the Community or all its Member States, a series of provisions in that convention reflect the rules of customary international law which, as such, are binding upon the Community institutions and form part of the Community legal order (C-386/08, Brita, par 42). Presumably, the definition of a treaty in Art. 2(1)(a) VCLT belongs to customary international law. The 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which has not yet entered into force, uses the same definition and expands it to agreements concluded between international organizations or an international organization and a state.

Both the text and context of the EU-Turkey Statement support the view that it is a treaty. The parties “decided” to end the irregular migration from Turkey to the EU, and, to that purpose, they “agreed” on a number of action points. These include a commitment on the part of Turkey to accept returned migrants and a commitment on the part of the EU to accept for resettlement one Syrian for every one Syrian returned to Turkey. Further, the Statement reaffirms the joint action plan of November 2015 and mentions that it is already being implemented. Indeed, several implementation reports have been drawn up since November 2015, from which it is clear that the previous action plan has been activated (here and here). The EU-Turkey Statement now at issue is also being implemented. For example, the Greek parliament has passed a law allowing migrants arriving in the country to be returned to Turkey. On Monday 4 April 2016, Turkey accepted the first returned asylum seekers from Greece. All this indicates that the EU-Turkey Statement was meant to sort legal effects. This, in turn, indicates that both parties intended to bind themselves and that, therefore, it is a treaty.

One way to argue that the EU-Turkey statement is not an agreement in the sense of Article 216 TFEU would be to posit that it merely reconfirms already existing obligations from previous agreements (such as the EU-Turkey and Greece-Turkey Readmission Agreements). But textually as well as contextually, that argument is difficult to uphold. First, the substantive part of the agreement opens with the decision to return all irregular migrants to Turkey. Even though this sentence is followed by qualifications about compatibility with international and European law and even the explicit statement that this does not constitute collective expulsion, this is a highly novel (and legally very questionable) element, which can hardly be construed as a restatement of pre-existing obligations. The same is true for the EU commitments to resettle Syrians from Turkey and the additional funding for the Facility for Refugees in Turkey of 3 billion euro. Secondly, it is well known that the pre-existing readmission obligations (on the basis of the EU-Turkey and Greece-Turkey Readmission Agreements) were barely being applied. Therefore, the fact that Turkey agreed that, as of 20 March 2016, all irregular migrants were to be accepted is a substantively novel element. The idea that the EU-Turkey Statement merely repeats pre-existing legal obligations is not convincing.

Does the fact that the internal EU rules were possibly not followed mean that the Statement does not have legal effect? Probably not, as the Statement was agreed by the Members of the European Council, whom Turkey could have considered to have full powers to bind the EU. Article 46 VCLT provides that a party may not “invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance”. Paragraph 2 of that provision provides that a violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. In Qatar/Bahrain, the ICJ did not consider it relevant that Qatar had not followed the procedures required by its own Constitution for the conclusion of treaties: “Nor is there anything in the material before the Court which would justify deducing from any disregard by Qatar of its constitutional rules relating to the conclusion of treaties that it did not intend to conclude, and did not consider that it had concluded, an instrument of that kind; nor could any such intention, even if shown to exist, prevail over the actual terms of the instrument in question.” (par. 29).

We are therefore of the view that the EU-Turkey Statement is a treaty with legal effects, despite its name and despite internal EU rules not having been observed.

Why is the binding nature relevant?

That the Statement is a treaty implies not only that the EU and Turkey must uphold its terms; it also opens up a debate out is legal effects, including possible challenges against its legality in view of possible conflict with other rules and treaties, such as human rights. The fact that the Statement has already been concluded and is therefore no longer merely ‘envisaged’, means, however, that it is no longer possible to obtain an opinion of the CJEU “as to whether an agreement envisaged is compatible with the Treaties” (Art. 218(11) TFEU). It is still possible for one of the EU institutions or a Member State to bring an action for annulment of the act of the European Council to conclude the agreement with Turkey. Such an action was successfully brought in Commission v France (C-327/91), when the ECJ declared void the act whereby the Commission sought to conclude a competition agreement with the US, for reason of the Commission not being empowered to do so. However, this left the Agreement with the US itself intact, which is in conformity with the rule of Article 46 VCLT.

In view of the default position in international law that all treaties are equal, it further is difficult to argue that the Statement is void because of a possible conflict with human rights such as guaranteed in the ECHR or within the EU legal order, such as the right to asylum and the prohibitions of non-refoulement and collective expulsion. Only if the EU-Turkey Statement conflicts with jus cogens, is it to be considered void and may Member States not give effect to it (Art. 53 VCLT).

It is however possible for individuals (such as those being returned from Greece to Turkey) to challenge the implementation of the EU-Turkey agreement before national courts, arguing that it conflicts with fundamental rights. This in turn, may lead to a referral to the CJEU or a complaint before the ECtHR. Is the agreement in violation of human rights? As has been argued by UNHCR (here and here) and many others (eg here), the agreement may well raise issues under (at least) the prohibition of refoulement (is Turkey safe and is there a risk of expulsion from Turkey?), the right to liberty (is systematic detention in Greece allowed?) and the prohibition of collective expulsion (are the returnees able to challenge their return on individual basis, including before a court?). However, the Statement does not prescribe how, exactly, returns are to be effectuated and does not oblige Greece to systematically detain all asylum seekers who enter the country from Turkey. The Statement says that returns are to “take place in full accordance with EU and international law, thus excluding any kind of collective expulsion” and that “[a]ll migrants will be protected in accordance with the relevant international standards and in respect of the principle of non-refoulement.” Further, migrants are to be “duly registered and any application for asylum will be processed individually by the Greek authorities in accordance with the Asylum Procedures Directive.” It would seem therefore that the Statement itself does not directly violate international norms – it leaves the Member States sufficient freedom to implement the obligations in harmony with human rights. It follows that the Member States (Greece) must implement the agreement in harmony with human rights: “Where a number of apparently contradictory instruments are simultaneously applicable, they must be construed in such a way as to coordinate their effects and avoid any opposition between them. Two diverging commitments must therefore be harmonised as far as possible so that they produce effects that are fully in accordance with existing law.” (ECtHR Nada v Switzerland, par 170).

Conclusion

This brings us to two concluding observations. First, the devil of implementing the EU-Turkey deal is in the detail. Although its effectiveness in terms of stopping irregular migration by creating a deterrent effect may depend on returning all persons arriving in Greece as quickly as possible, fundamental rights may well halt returns in individual cases or result in lengthy procedures. It is indeed the question whether the appropriate human rights framework is in place in Greece (as is observed by UNHCR).  Second, the EP is right in asking critical questions about the Council not following the rules for concluding a treaty (also see earlier questions about the EU-Turkey deal of 29 November 2015). Although one could take the view that time did not allow to await an Opinion of the CJEU, the agreement was not concluded with Turkey overnight and there would at least seem to have been opportunity to ask consent from European Parliament (Art. 218(6) says that, in an “urgent situation”, EP and Council may agree on a time-limit for consent). That the institutional role of the EP has been neglected confirms the worrying trend that intergovernmental decision-making is taking over in the Union, and that national interests increasingly often prevail over the common values of the Union. This is bad for European democracy.

Barnard & Peers: chapter 24, chapter 26

JHA4: chapter I:5

Photo credit: rabble.org.uk