The (Nature and Effects of the) EU-Turkey Deal on Refugee Flows: Ignoring Treaty-Making Rules, Undermining Supranational Democracy

Violeta Moreno-Lax

The nature and effects of the EU-Turkey ‘deal’ sealed by the Heads of State and Government of EU Member States, on one side, and Turkey, on the other side, on 18 March 2016, regarding the management of refugee arrivals by sea onto the Greek islands has sparked a heated debate. Scholars are divided into two camps. While Peers and others maintain that the deal is not a treaty and, therefore, does not produce binding effects, with the corollary that only ancillary measures adopted on the European or Turkish side to implement the deal will be challengeable before courts, Den Heijer & Spijkerboer alongside Corten & Dony posit that the label is irrelevant and what matters is content, context, and intent. Against this background, this paper will ponder arguments for and against a conceptualisation of the deal as an international treaty, both under the 1969 Vienna Convention on the Law of Treaties, codifying customary rules on the matter, as well as under EU law norms enshrined in the founding Treaties. The consequences of a conclusion that the ‘deal’ is indeed a treaty in disguise will also be elaborated upon. Particular attention will be given to Article 218 TFEU, specifying the procedure in EU law that the EU institutions must follow for the conclusion of international agreements and what the effects of their inobservance may be for the validity of the ‘deal’. Especially, it will be argued that the sidelining of the European Parliament in this process is fatal, not only from the legal perspective, but from the political standpoint too. Neglecting the input of the only democratically elected European institution sets in motion a trend whereby the supranational dynamics of the méthode communautaire are supplanted by an increasingly solipsistic state-centric form of inter-governmentalism that runs counter to the founding principles of the organisation. The principles of loyal cooperation, transparency, and commitment to the rule of law are endangered, setting a very bad, democracy-eroding precedent that should be undone, if the wider legitimacy crisis of the EU is not to be deepened.

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