DAY 219: The separation of powers

July 28th, 2017 § 0 comments

Oh, my dears, back to reality! Which bit of it would you like to be in? Having done a brief tour d’horizon  of places one would rather not be (I mentioned Ferguson, Calais of course, Raqqa, Mosul, a few days ago, and you can add others as you like – Jerusalem?) I’ve been reading a fascinating digest of what’s wrong with everywhere – which partly arises out of my new ‘job’ as a compiler of digests for the ecthr European Database of Asylum Law, first time I‘ve put the Ll.M. to use. Idly reading through law digests, as one does, I found the obviously essential work of a somewhat obsessive lawyer by the name of Kester Ratcliff  (; and don’t blame me if you find you’ve exceeded your bandwidth). This work looks like it’s only got 58 pages, and so is much shorter than Mirzakhani and Eskin’s ‘Isolation, equidistribution, and orbit closures for the SL(2,ℝ) action on moduli space’ referred to in the last post; but its (the listicle’s) multi-layered structure has you constantly wandering though hyperlinks of hyperlinks to recent arguments on the ‘EU-Turkey EU--TurkeyAgreement’ -which is the basis for returning thousands of already miserable refugees from Greece and elsewhere to Turkey.

For example, you find yourself inexorably drawn to, inter alia, Birgit Sippel’s pertinent question

DEBirgit Sippel (Germany)

in the European Parliament  (March 2016):

“According to the Lisbon Treaty, an international agreement having an impact on ‘ordinary’ ‘EU legislation should be negotiated by the Council or the Commission in compliance with Article 218 of the Treaty on the Functioning of the European Union (TFEU) and approved by Parliament, which ‘shall be immediately and fully informed at all stages of the procedure.’ (Article 218(10) TFEU). The very aim of these provisions is, on the one hand, not to put Parliament under pressure to transpose into EU legislation measures which have not previously obtained its consent and, on the other hand, to implement the ‘bona fide’ principle with the third country concerned. Notwithstanding these clear provisions at Treaty level, a so-called ‘EU-Turkey Agreement’ has been negotiated by some Member States (with the participation of the Commission) and then finalised by the Heads of State and Government of the Member States meeting with the Turkish Prime Minister. Despite its generic title (‘Statement’), the agreement provides for several obligations on both sides and a mutual monitoring mechanism.

1. Does the Council consider that the ‘EU-Turkey Agreement’,refturkey which covers domains currently under EU exclusive and shared competence, is binding under international law and/or EU law?

2. If so, why was the Agreement not negotiated and concluded in compliance with Article 218 TFEU?

3. If not, has the Turkish counterpart been informed of the non-binding nature of the Agreement and of the fact that some aspects may not be implemented as expected?”

Pretty tough question, eh? The natural conclusion (I don’t think there was a satisfactory answer) is that the EU-Turkey Agreement is illegal; an executive action, like so many we’ve seen lately in the US, without legislative sanction; and that refoulements of refugees to Turkey – and the designation of Turkey as a ‘safe third country’ come to that are equally contrary to international law, and to EU law come to that. Another link (in Ratcliff, are you still with me?)will lead you to the leaked France-Germany note of last February which proposes ‘that (implicitly) all those entering the EU would be removed to non-EU countries willing to host them, and kept there in conditions which minimally guarantee their survival and non-removal to unsafe countries.’

What Ratcliff concludes, and I think his argument is hard to fault – but in a way we all knew it anyway – is that the whole of Europe, fearing a right-wing backlash in home countries if they were anything but uniformly repressive to refugees, have done their damnedest, bent or broke the rules, made up law as they went along – so as to avoid that generosity to the stranger which the Gospel (along with other world religions not to mention Kant) teaches.

So back to particular places and what can we do, apart from not doing harm? I’ll past in an appeal from Izzy, but you’re likely to find enough other ones for different dark places.

‘I have been on the ground of the refugee crisis for nearly two years, but most of my time has been spent on the island of Chios; an open air prison for those fleeing war-torn countries via Turkey.

As time has rolled on, money and support have dried up. The situation is entering a chapter of darkness we haven’t yet seen, unlawful detention, beatings, fear and overall neglect is growing at a huge rate.

We have totally run out of the funding we use for emergencies which can be anything from housing for those not considered vulnerable but indefinitely so, for food or clothing in special situations or transport among other things.

The people we try to reach are the ones that are often forgotten, your support and donations have never been more needed.

Please give what you can and share this post.

Thank you.

I should add that the air of crisis is shared by most organisations working it the field – MSF, Amnesty, RRDP, as well as smaller grass-roots organisations – all doing what they can to deal with the enormous indifference of the world.



Leave a Reply

What's this?

You are currently reading DAY 219: The separation of powers at Luke Hodgkin.