The Death of the “Non-Refoulement”. How the European Union Sentenced Itself and Refugee Law 

On Friday 18th, 2016, European and Turkish leaders reached an agreement to tackle the refugee crisis. The deal contains a series of provisions. Most notably, refugees arriving to Greece will be returned to Turkey. For every Syrian refugee sent back to Turkey, one Syrian in Turkey will be resettled in the EU. This deal, that commodifies humans and violates international law, relies on fictions and assumptions that are easily debunked. With its signing, European leaders are also signing the death certificate of a European Union that for years has prided itself as being a defender of human rights.

The deal starts by introducing a fiction in the way individuals trying to reach the EU are treated. They are now considered “irregular migrants” as opposed to refugees or asylum seekers. There has been a lot of debate on how we categorize these individuals. Are they refugees? Are they asylum-seekers? Are they migrants? Are they economic migrants? According to the 1951 Convention and Protocol Relating to the Status of Refugees, a person is a refugee not because it is recognized as such, but because he or she fulfils the criteria to be considered a refugee. One can dispute if women, men, and children arriving from Syria are refugees or asylum-seekers, but what they are definitely not is economic migrants, i.e. individuals leaving their country to improve their economic conditions. Being a refugee or asylum-seeker, up until now, had some consequences.

The cornerstone of refugee law is the principle of non-refoulement, which bans states from expelling or returning refugees or asylum-seekers. The deal does the exact opposite to what this principle – that obliges all member states of the EU –  envisions. Without upholding this principle of no-return, all refugee law is rendered useless. The European Union, that has longed championed international law, now incurs in outright violations of it. The deal also runs counter to the Dublin regulation (that establishes that every single asylum application must be examined) and the European Convention on Human Rights, which prohibits inhuman or degrading treatment in article 3. This agreement turns humans into numbers, negates the refugees’ agency, and can lead to an entrenched situation in which a life at the refugee camp goes from temporary to protracted and all hope of a better, safer life is destroyed.

Leaving moral and legal considerations aside, what does the deal specifically do? The European Union will give 6 billion euros to Turkey to help migrants, an amount that will be provided in two installments. It is difficult to even imagine how the money will reach those in need. According to UNHCR data, there are more than two million refugees in Turkey, but the vast majority of refugees in Turkey are not in refugee camps. How will Turkey and Greece, with its crippled economies and infrastructure, manage to help the refugees who, contrary to popular belief, are not all (not even half) concentrated in refugee camps?

The deal also brings about the opening of conversations about Turkey joining the EU; an accession that is unlikely going to happen unless under fraudulent circumstances (à la Greek fiasco). To become a member of the EU, a state has to have stable institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities. The authoritarian tendencies of the Turkish government make the fulfilment of this conditions in the near-future unthinkable, but the opening of the negotiations also conceals the reality of why Turkey’s accession has been stalled for years. The European Union is still based in Judeo-Christian values that many Europeans – as ironically evinced by the popular backlash in the face of the refugee crisis – are not ready to give up. A Turkish accession would reshape the configuration European institutions to an extent that many Europeans are not likely to tolerate.

The deal has been presented as a European victory to regain control of the situation. Well, guess what. It does none of that. The “success” of the plan relies entirely on the good will of Turkey, Greece, desperate individuals, and smugglers. The logic of the deal is inherently flawed. The deal is expected to have a “double-deterrence” effect of sorts. One of the stated goals of the policy is to deter refugees from attempting to escape to EU states. This would imply that these individuals have an option or that are not fleeing from life-threatening conditions. Fleeing to an unwelcoming and harsh Europe was probably their last resource. The masterminds of the accord also expect to influence smugglers (let’s remember that the crisis has also had enormous consequences for human-trafficking). The idea is that because migrants will be returned to Turkey, smugglers will lose business. Given the nature of human-trafficking, what the deal can potentially increase is profits while deteriorating already dire conditions for those smuggled and increasing the likelihood of death. If the dangers posed by the journey, for the refugees, and by the involvement in illegal activities, for the smugglers, have not deterred them so far, it is difficult to imagine why the threat of return to Turkey will, especially, given the lack of infrastructure that both Greece and Turkey are suffering.

Euro-skepticism has been in vogue among right wing parties for years now, but there was still a segment of the European population that had a tiny bit of faith of one day heading in the direction of a greater, human-rights and rule of law based, European Union. The deal with Turkey feels like a stab in the back for those, particularly left-leaning Europeans, who have had such a hard time defending the value of having the union.

Nothing excuses treating humans – and particularly humans fleeing from war – as commodities. In the short-term, the deal is not likely to accomplish its goals. If anything, it will simply deteriorate the refugee laws that were among the most solid and long-standing of public international law (if still ambiguous) and increase the numbers of lives lost. In the medium to long-term, this puts the European Union at an even greater identity crisis and erodes the imagery, the legal system, and the institutions that have taken so much effort to construct.

Among the darkness there is still some light. Last week, a much smaller deal was also signed. Three cities, Barcelona, Lesbos, and Lampedusa agreed to collaborate to tackle the refugee crisis in a more human way. One can only hope that if member states and Turkey continue adrift, local governments will take action and provide a better solution.

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