Comparing the Moldova MP and the EU-Turkey Statement .1 Similarities

Understanding EU-Moldova and EU-Turkey relations as well as the content of the Moldova MP and the EU-Turkey Statement now means I can move on to comparing these two agreements.

4.3 Comparing the Moldova MP and the EU-Turkey Statement

Another similarity between the Statement and the MP is that they do not protect human rights as well as they reasonably should. The MP, as it is based on the GAMM, should be a balanced document covering all aspects of migration. However, other than a reference to respecting human rights in the introduction and one article mentioning refugee protection, the MP makes no effort ²⁰⁸ to commit to its goal of being a comprehensive migration agreement, in which migrant protection plays an appropriate role. Additionally, the MP has some indirect human rights issues. The focus on circularity and temporality in migration (together mentioned 12 times in the Moldova MP) mean migrants are mostly seen as financial units rather than human beings with human rights. Since the requirements for circular migration are quite strict, there are still incentives for irregular migration among vulnerable people who do not comply with those requirements and whose human rights are consequently not protected if they decide to migrate anyway. Similar to the MP the Statement ²⁰⁹ does not mention human rights explicitly once. It only mentions that migrants that will be returned from Greece to Turkey will be “protected in accordance with the relevant international standards and in respect of the principle of non-refoulement,” and in the Statement Turkey and the EU ²¹⁰ voice their intent to improve humanitarian conditions in Syria. Especially the mention of the principle of non-refoulement is interesting here. Non-refoulement, as set out by the Convention Relating to the Status of Refugees means the right of asylum seekers to not be sent back to their country of origin if they face persecution there. This can happen directly if a country sends back an asylum seeker to be persecuted, but it can also happen indirectly if a country sends back an asylum seeker to a third country of which they know or should know that is likely to not process an asylum request properly and thus makes refoulement of the asylum seeker by the third country more likely. Due to the risk of indirect refoulement, the Asylum Procedures Directive of the CEAS sets ²¹¹ out the concept of a ‘safe third country,’ which are countries the EU can safely return irregular migrants to. Another requirement under the Asylum Procedures Directive is that the principle of non-refoulement is respected by the EU member states. In the case of Turkey, their asylum ²¹² procedures have historically proven to not always respect non-refoulement. Additionally, migrants that do get to stay in Turkey are often treated poorly. Regardless of this, in order to make the Statement work, the EU labelled Turkey a safe third country and even mentioned the

non-208. Council of the European Union, “Joint Declaration,” 2-3.

209. Carrera and Hernández i Sagrera, 34.

210. European Council, “EU-Turkey Statement.”

211. Poon, 1196-7.

212. Poon, 1198.

refoulement principle in the Statement, despite not being able to guarantee this. As explained in ²¹³ section 3.2.3, this was made possible by crisis framing, as the safe third countries list was a crisis response. Thus, human rights are not actually protected under the Statement. The MP and the Statement are both instances of ignoring human rights responsibilities by leaving things out. The MP by barely mentioning human rights and leaving out how the human rights of those migrants falling outside the scope of circular migration are protected. The Statement by having Turkey labelled as a safe third country—despite evidence to the contrary, to make the Statement possible in the first place.

Linked to the human rights issue, a third similarity between the MP and the Statement is their disproportionate focus on (border) security, and specifically security for the EU member states themselves. The MP mentions issues related to security around 30 times, 12 of which are in the MP itself and the rest in the proposed activities annex. These security mentions all centre around either preventing, reducing or fighting illegal migration, the readmission or return of irregular migrants, border management, cooperation, security or control or the security of travel, identity or residence documents. Additionally, the focus on security within the MP can be seen in the use of ²¹⁴ conditionality. The condition for Moldova to sign a readmission agreement before they could enter into an MP with the EU for example, shows that security is a starting point for the EU. As mentioned above as well, the goal of the MP under the GAMM was to be balanced, but this excessive focus on security shows once more that it is not. With the Statement, security is a much clearer aspect as stopping irregular migration from Turkey to Greece is its main goal. This is inherently a border security goal, as the EU gets to control who gets to cross its borders with the Statement. The Commission even claimed that the Statement was necessary to secure the EU’s borders. This focus on security in the Statement is not surprising, given the focus on security in ²¹⁵ the Agenda for Migration which was released less than a year before the Statement. With both the ²¹⁶ MP and the Statement, the aim was not explicitly border security, but in both cases the focus does lie with border security more than anywhere else.

213. Poon, 1198-9.

214. Council of the European Union, “Joint Declaration.”

215. Gürkan and Coman, 288.

216. Luca Raineri and Francesco Strazzari, “Dissecting the EU response to the ‘migration crisis’,” in The EU and Crisis Response, eds. Roger Mac Ginty, Sandra Pogodda and Oliver P. Richmond (Manchester: Manchester University Press, 2021), 206, https://search-ebscohost-com.proxy-ub.rug.nl/login.aspx?

direct=true&db=nlebk&AN=3076013&site=ehost-live&scope=site.

Another similarity between the two agreements is the roles the EU institutions play within them. In both cases the EU institutions initially played a big role, but later took some steps back from the agreements they made. For both the MP and the Statement, the EU played a big role in deciding on the partner. Moldova because it already signed a readmission agreement and Turkey because that was were most of the migrants crossed into the EU from. Next to this, with the MP the role of the institutions is mostly in the framework and negotiations. The Council and the Commission decide who gets offered the possibility of an MP and they have to sign off on the readmission and visa agreements that are made as a prerequisite of the MP. However, other than that the Council has no role at all, and the Commission leaves most of the rest of the MP initiatives in the hands of the participating member states. The role of the EU institutions with the Statement is ²¹⁷ a little more complicated. The Statement was published as a press release by the Council. The Statement itself also refers to the “EU” and to the “Members of the European Council” as actors in the Statement. However, in February of 2017, only a year after the Statement was released, the ²¹⁸ Council stated that these terms should be understood as journalistic in the context of a press release and that the Statement was not a product of the ‘EU’ as such at all, but rather was just the result of a meeting between Turkey and the heads of state/government of the member states of the EU. With ²¹⁹ this, the Council completely backed out of its involvement with the Statement, just as the Commission took a step back from the Moldova MP after the initial negotiations.

The last similarity between the MP and the Statement is the controversy over their respective success. The MP’s progress and success is reported on a scoreboard website by the Moldovan government. The website tracks ongoing and completed projects and projects for consideration, divided by ten themes: monitoring of migration flows; consolidation of the National Migration Management System; information on legal migration and assistance for returning migrants; labour migration schemes; voluntary return and reintegration schemes; diaspora consolidation and co-development; social protection of migrants and their families; development of the Moldovan labour market; visa and readmission; cooperation in border management; identity and travel documents, fights against illegal/irregular migration and trafficking in human beings. ²²⁰ Unfortunately, the website is not well up to date. There are projects under the ongoing header that,

217. Parkes, 331.

218. European Council, “EU-Turkey Statement.”

219. Carrera et al., “It Wasn’t Me!,” 5.

220. Ministry of Foreign Affairs and European Integration of the Republic of Moldova, “Scoreboard,”

International Organization for Migration, Mission to Moldova, last accessed 6 February 2023, http://

scoreboard.mfa.gov.md/.

according to their own framework ended in 2014, which seems to be around the time the website stopped getting updated. Therefore, it is hard to say whether or not the MP is successful in terms of carrying out what it set out to do. However, in 2012 an evaluation report was conducted on the MP

—which unfortunately is no longer available, but was extensively discussed by Brocza and Paulhart in 2015. The report gives the impression that the MP had been very successful thus far, however, part of that success cannot actually be attributed to the MP itself, but rather to efforts outside of the MP that have similar goals. Furthermore, at least in 2012, developments in the areas of circular migration and the facilitation of legal migration were lacking. Next to this, as shown above, ²²¹ human rights protection is another area in which it cannot be argued the MP was very successful.

Additionally, the MP with Moldova was deemed a success in terms of process by EU actors, even before any evaluation had taken place, mostly based on the fact that actions were being taken, regardless of the quality of those actions. Thus, while none of this can accurately describe the current level of success of the MP, it is telling that at its early stages the EU was happy to point out anything about the Moldova MP they deemed a success, and subsequently using that supposed success to spread the MP concept further, in order to foster further EU activity in its neighbourhood. As for the Statement, there are some very clear successes. Between 2015 and ²²² 2016 there was a 98% drop of migrant arrivals in Greece and a 94% reduction of deaths and missing persons at sea in the Aegean Sea. The Statement coincided with some other measures that contributed to these numbers, but they are at least in part thanks to the Statement. However, returns from Greece to Turkey cannot be counted among the successes of the Statement, as their number remained very low. Additionally, as the Statement became operative criticisms against it became ²²³ louder as well. The human rights issues have already been mentioned above, dependency on Turkey was another concern, resettlement under the Statement happened too slowly and, as also already discussed above, the questionable legal status of the Statement was cause for concern. Despite its ²²⁴ questionable success—especially considering how the supposed success of the Statement later soured as clearly evidenced by the Council firmly stepping away from it—the Statement was later used as a blueprint for other deals with third countries. This is again similar to how the limited ²²⁵ success of the MP was used to further develop the concept with other countries.

221. Brocza and Paulhart, 5.

222. Parkes, 332.

223. Niemann and Zaun, 8.

224. Niemann and Zaun, 9.

225. Niemann and Zaun, 9.

What is demonstrated by these similarities is that external agreements such as these—not legally binding and in many ways vague, poorly defined and with questionable functioning—create a sweet spot for the EU where they can exert influence beyond their border without being made accountable itself. Having discussed these similarities, it is important to note that there are also very important differences between these two agreements. These will be discussed next.

4.3.2 Differences

The biggest difference between the two agreements that becomes clear at a first glance is the difference in length. Even excluding the proposed activities annex of the Moldova MP, the document is 11 pages long, whereas the EU-Turkey Statement, when downloaded from the press release page on the European Council’s website is only a page and a half long. Very fittingly, the time it took to negotiate the respective documents had about as big a gap. Moldova was recommended for an MP by the European Council in December 2007 and signed it in May 2008, half a year later. This was already considered quite quick. The Statement is a result of continued ²²⁶ talks on (among other things) migration management with Turkey that started in October 2015. The Statement was released half a year after that as well. However, the idea of returning all migrants back to Turkey, which is at the heart of the Statement, was not conceived of until 7 March. Only 11 days before the release of the Statement and 13 days before the idea was activated in reality. But ²²⁷ what role did crisis framing play in the creation of the Statement as opposed to the MP made in non-crisis time? The European Council meeting with Turkey was part of a longer set of talks with Turkey about deepening EU-Turkey relations and migration management. The implementation of the JAP was discussed and though good progress was made, the number of migrants irregularly crossing from Turkey to Greece was still deemed too high. Thus, more action was necessary and the EU was under pressure for a course of action against their crisis to finally work. As discussed in section 3.2.2, by March 2016 most internal measures taken to deal with the crisis had not been as successful as envisioned and EU member states had started taking their own national measures regardless of the common EU course of action. Additionally, the actual issue of too many migrants coming into the EU was not diminishing and most migrants in Turkey were expected to want to make the journey to the EU as well. Thus, despite the human rights concerns and concerns about Turkey being a safe third country as discussed in section 4.3.1, the EU chose to further its

226. Lavenex and Stucky, 128.

227. European Council, “EU-Turkey Statement.”

cooperation with Turkey. The Statement is, therefore, very much a product of the framed crisis, which led to a much quickly made agreement.

The second difference between the two agreements is their position within the EU at large.

The EU’s frameworks for migration management have been extensively discussed in section 3.1.

The Moldova MP falls very clearly within the GAMM framework. The whole idea of an MP is set out in the GAMM, the MP itself follows the pillars of the framework. However, the GAMM, made to address all aspects of migration, was not used to negotiate the EU-Turkey Statement under. As the Statement covers illegal migration, the first pillar of the GAMM (organising and facilitating legal migration and mobility) is not relevant. The fourth pillar (maximising the development impact of migration and mobility) does not apply either. However, the second and third pillars (preventing and reducing irregular migration and trafficking in human beings and promoting international protection and enhancing the external dimension of asylum policy respectively) seem to fit well with the objectives of the Statement. Despite this, the EU did not offer Turkey a Mobility Partnership to deal with the migratory pressures. With an MP, visa facilitation and readmission would necessarily be negotiated and both these aspects are important parts of the Statement. Still, the member states decided to take a fully intergovernmental approach to the Statement and not involve the supranational EU institutions or their policy frameworks. All the cooperation with Turkey in the context of the migration crisis happened intergovernmentally. From the initial idea of furthering cooperation with Turkey, to the negotiation to the implementation of the Statement, all communication went through heads of state/government. This is partially how the European Council managed to step away from the Statement altogether eventually, as discussed in section 4.3.1. During a crisis the EU is more likely to revert back to intergovernmental decision-making and the Statement is a good example of this. The MP, on the other hand, is largely a supranational ²²⁸ document. Though it is the Council that recommended Moldova for an MP, the negotiations went through the (supranational) Commission and fit with (the Commission’s) GAMM.

The third difference between the two agreements lies in the motivations behind them. As explained, the EU-Turkey Statement came from a situation of extreme pressure on the side of the EU. The EU needed a measure that actually worked and since most migrants at that point were coming into the EU from Turkey, this was where it made most sense to look for a solution. With the MP the situation was quite different. The EU initially was wary of cooperating with Moldova at all (see section 4.1.1), and the European Council only recommended Moldova for an MP after

228. Sandrino Smeets and Derek Beach, “When success is an orphan: informal institutional governance and the EU–Turkey deal,” West European Politics 43, no. 1 (2020): 135-6.

Moldova itself made it explicitly clear it wanted one. Despite only being recommended for an MP in December 2007, Moldova already sent a non-paper to the Commission in August 2007 expressing its interest in an MP. Turkey, on the other hand was approached by the EU. At an ²²⁹ informal European Council meeting of the heads of state/government on 23 September 2015, the EU leaders called for increased cooperation with Turkey in relation to the migration crisis. This ²³⁰ led first to the JAP and later to the Statement. With the large number of Syrian migrants in Turkey and the EU in a perceived crisis situation of too many migrants, Turkey appeared to be a logical partner in managing the crisis from the EU perspective. Thus, reaching out to Turkey in this context was a crisis led decision.

These different approaches tie in with the next difference between the two agreements, namely the role of the different partners within them. Moldova and Turkey clearly entered into their respective agreements differently, but the roles they played within them were also very different.

Moldova was not an equal partner to the EU and was aware of this as well during the negotiation of the MP. For example, they knew that the content of the MP aligned more closely with the EU’s priorities than their own. They accepted this as they wanted to prove their commitment to following EU migration rules. Additionally, implementation of the MP in Moldova was mostly driven by the promise of visa-free travel in return, which for Moldova was the more important aspect. Next to ²³¹ this, there is the issue of the voluntary nature by which EU member states can join MPs and the fact that the MP is offered to the third country who can oppose it, but not change it. Moldova could indicate what they wanted out of the MP, but it was the EU that decided which of those things to actually go for. Thus, the EU is clearly the partner with more leverage. The situation with Turkey ²³² is different. As has become clear from sections 4.1.1 and 4.2.1, Moldova and Turkey have historically different relations to the EU and Turkey has a lot more experience in negotiating with the EU than Moldova. Thus, Turkey has a better understanding of how to negotiate with the EU effectively and in their own favour. However, this is not the only difference in terms of the MP in ²³³ comparison to the Statement. As mentioned above, cooperation on migration with Turkey was an important priority for the EU in the context of the framed crisis. The same cannot be said for the MP

229. Lavenex and Stucky, 130.

230. European Council, “European Council, 15 October 2015,” Meeting web page, 15 October 2015, https://

www.consilium.europa.eu/en/meetings/european-council/2015/10/15/.

231. Brouillette, 8.

232. Lavenex and Stucky, 132.

233. Tolay, 50.

with Moldova. Turkey was in a position where it could make the European crisis much better or worse with in- or decreasing border surveillance due to the many Syrian migrants that were in the country. Turkey was also not afraid to point out this fact and use it as leverage against the EU. ²³⁴ Turkey additionally made sure to point out that they were shouldering a much bigger burden in terms of migrants than the EU and that the EU’s defensive policies made this burden even bigger. ²³⁵ This is how Turkey managed to get the EU to fund the entire operation under the Statement as well as 6 billion euros of funding from the EU to deal with the Syrian migrants in Turkey (3 billion under the JAP and an additional 3 billion under the Statement itself) and for the EU to re-energise Turkey’s accession process. Where the EU had all the leverage over Moldova with the MP, the ²³⁶ situation is almost the reverse with Turkey in negotiating the Statement. However, despite agreeing to accelerate the visa liberalisation roadmap in the Statement, these talks reached a stalemate over Turkey’s anti-terror law within a year. The EU’s relationship with Turkey deteriorated in 2016 after the Statement after an attempted coup in Turkey and Turkey’s subsequent constitutional changes. ²³⁷ Additionally, the promised acceleration in the accession process did not take place. Thus, while ²³⁸ Turkey had the leverage to negotiate a good deal for itself, it was not able to retain that leverage in the implementation phase of the Statement. Still, its negotiating position for the Statement was much better than Moldova’s in negotiating the MP. Part of these power dynamics can be attributed to the EU’s history with Moldova and Turkey respectively. However, a bigger part of Turkey’s leverage over the EU that Moldova did not have can be attributed to the crisis mentality in the EU.

The big perceived problem was the incoming Syrian migrants. Turkey had many Syrian migrants in its territory that wanted to get to the EU. For the EU it therefore seemed crucial for Turkey to keep the Syrians within their own territory and Turkey was aware of how critical the situation seemed for the EU. Thus, Turkey made use of the EU’s own framed crisis to gain leverage in negotiating the Statement.

The Moldova MP was an agreement made under a clear framework during a time there was no crisis either between the EU and Moldova or on the topic of migration. The EU-Turkey Statement, on the other hand, can very much be understood as a product of crisis. Understanding how the MP and the Statement both share characteristics and are considerably different from each

234. Kfir, 215.

235. Okyay and Zaragoza-Cristiani, 54.

236. Okyay and Zaragoza-Cristiani, 56.

237. Batalla Adam, 52.

238. Dagi, 209.