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By Achilles Skordas, Professor of International Law, University of Bristol; Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg.

I. The Twenty-Day Crisis

This note was written after the events surrounding the opening of the Turkish borders on 28. February 2020 to migrants who wanted to enter Greece and the EU had come into a close. We can now take a more detached view of the crisis and its implications. On 13. March, it was reported that Turkey was scaling back its actions and on 18. March it announced that it was closing its borders to Greece and Bulgaria because of COVID-19. Nonetheless, so far, the tensions between Greece and Turkey endure.

The crisis offers the opportunity for a sober assessment of the relationship between asylum law and the geopolitical state of affairs. Geopolitics indicates more than just the quality of relations between two or more States. It includes the broader landscape of factors and actors, such as the structured national and transnational interests across a broader region, the physical and human geography, the power resources, the struggle for influence, and the conflict potential among States, as well as between State and non-state actors. Mass migration influxes constitute a major geopolitical factor that can rearrange the constellation of power in a broader region and have long-term consequences for governance and the foreign affairs of the States implicated.

This note does not aim to discuss in detail the legality or otherwise of the actions of the Greek authorities at the Greek-Turkish land and maritime border regions, but will take, instead, a broader look at the relationship between law and geopolitics and suggest an alternative to the mainstream position. The suspension of the right to request asylum for one month, as decided by Greece, was sharply criticized by the UNHCR, the UN Special Rapporteur on the human rights of migrants and by human rights groups, perhaps with good reasons and certainly with good intentions. A detailed analysis of the points raised in these statements, and of the underlying facts would require a different study. Here, it suffices to note that the critique of the Greek action does not take account of the complexities of the EU-Greece-Turkey triangle. Thus, they appear to be made in a geopolitical vacuum.

My aim is to explore the relationship between refugee law and the geopolitics of the region, and how the latter has an impact on the former. Both human rights and the geopolitical interests of the Union (and of Greece as a Member State) find recognition in primary EU law (Arts. 3 and 21 TEU). The EU’s normative and civilian dimension is a main component  of its ‘soft power’ and influence around the world, and the protection of human rights has always been a ‘hard law’ pillar of its legal order. In that sense, concerns for human rights and refugee rights are justified, in particular in situations of global uncertainty. Nonetheless, one of the main challenges to the rationalisation of public and academic discourse in this field is to separate rights in the legal sense from normative projections, narratives, and imaginaries.

Apart from its commitments to human rights, the TEU also provides that the EU ‘shall contribute to the protection of its citizens’ [Art. 3 (5)], and shall ‘safeguard its values, fundamental interests, security, independence and integrity’ [Art. 21.2.(lit. a)] (my italics). According to Stefan Oeter, the latter provision ‘restate[s] the traditional core objectives of any “realist” foreign policy’. The TEU offers the Union and the Member States possibilities for re-orienting their policies towards a more realist direction. Still, respect for rights is the rule, whilst the geopolitical interest may be central to the foreign policies of the EU and the MS, but is an exception as far as it collides with the protection of rights. Articles. 72 and 327 TEU constitute clauses of exception, applicable when their conditions are fulfilled.

II. European geopolitics and necessity clauses in EU law

 1. European geopolitics 

Arts. 72 and 347 TFEU offer possible justification bases for the Greek action. Both provisions are relevant for the geopolitical context and should be discussed in view of Europe’s ‘turn to geopolitics’, even though this might be counterintuitive, because the two provisions are linked in principle to the national and not to the supranational interest. However, the two levels need not to be exclusive to each other, because a major threat to the national interest of a MS may be a threat to the Union’s interests, as well. Methodologically, I assume here that the Greek response at the border was prima facie inconsistent with EU rules on international protection, in order to explore whether the necessity clauses could find application under the circumstances.

There is an irreversible change of perceptions and a tectonic shift in European society. Following the Great Recession, the Euro crisis, the collapse of the MENA region, the conflicts in Central Asia, the Russian invasions in Georgia and Ukraine, the consecutive mass influxes of migrants from East and South, the rise of China, the unreliability of the United States, the strengthening of illiberal forces in the MS and now the enormous challenge of COVID-19, the Union has realised that it can only survive if it sets itself a clear geopolitical agenda and demonstrates the will to protect its interests. The new Commission has given clear signals that it intends to develop Europe’s new profile and Ursula von der Leyen’s phrase of a ‘geopolitical Commission’ is representative of the ‘new thinking’, which is fully compatible with the Treaties. Similarly, the EU High Representative for Common Foreign and Security Policy Josep Borrell spoke about the necessity of ‘relearning the language of power’. Here is a brief overview of EU geopolitics that may help explain the Greek reaction in both policy and normative terms.

The Union’s geopolitical space and external borders are vulnerable mainly in the North-East (Baltic States), South-East (Greece) and South-Central (Italy). This is why the EU has externalised the border protection to Libya and Turkey, and NATO has taken measures to ensure the security of the Baltics. Turkey’s withdrawal from the 2016 EU-Turkey Statement has created an intolerable situation at the Southeastern EU borders. Turkey threatened to unleash new waves of migrants to force Europe change its politics on the Syrian conflict and, at the same time, it specifically targeted Greece.

The recent action by Turkey is only one element in a much more complicated regional architecture and tense Greek-Turkish relationship over decades. In addition to a long-standing pattern of disputes, claims, threats and provocations marking the Greek-Turkish relations since the 1970s, Turkey has relatively recently engaged in systematic threats against Cyprus and its maritime spaces. The EU  responded by imposing limited sanctions against Turkey on 27 February 2020. In one notable incident, the Turkish navy forced an Israeli research vessel to leave an area under Cypriot jurisdiction. Moreover, Turkey extended the scope of the confrontation with Greece when it concluded a Memorandum of Understanding with Libya on 27 November 2019 appropriating a large part of the continental shelf of southern Greece and implicating Greece, against its will, in the Libyan conflict.

The Turkish action at the Greek border was the final straw in the already difficult relations between the two countries. It is reasonable, therefore, that, in view of all these factors and developments, Greece considered the overall situation at its borders as a national security emergency, even more so, taking into account the weakness of its economy after a harrowing decade of economic and financial collapse. Following the closure of the border by Greece, Turkey sent 1,000 special forces at its side of the border to obstruct these measures, and there were at least two incidents involving the Greek and the Turkish coastguards near the islands of Kos and Lesbos. A new incident near Lesbos was reported on 18. April. On 28. April Turkish soldiers aimed at, and fired against, German Frontex border guards at the Greek-Turkish border (here).

This information does not have the purpose to prove any alleged ‘inherent aggressiveness’ by Turkey. The purpose is to explore the conditions of applicability of articles 72 and 347 TFEU, because their interpretation requires a view of the situation through the lenses of the State that might invoke them. Turkey may not have had the specific intention of triggering an armed incident with Greece, and it might have acted in order to challenge the Union’s policies on Syria and migration, which is enough of a provocation calling for a robust response, anyway. However, on its part, Greece could not take this conduct lightly, because any miscalculation might have unpredictable consequences: so, for instance, in 1996, when the two countries were almost drawn into an armed conflict unintentionally over the islet of Imia/Kardak in the Aegean Sea, which was prevented only after three Greek military died ‘in the fog’ of a night with high tensions.

The current Turkish pressure on the Greek borders is clearly linked temporally and substantively to the heavy losses Turkey suffered on 27 February in Syria, and this is a factor adding to the severity of the situation, as seen from the Greek side. The facts surrounding the Greek-Turkish border crisis can be viewed, therefore, under two parallel lenses: as a crisis related to the protection of the external borders of the Union from a guided mass influx with the purpose to enforce a change of EU policies, and as a crisis linked to the Greek-Turkish ‘power struggle’ over the years, which reaches an ‘almost point of no-return’ from time to time.

2. Article 72 TFEU

The recent CJEU judgement in the joint cases Commission v. Poland, Czech Republic and Hungary from 2 April 2020 about relocation offers some indications on the scope of application of Art. 72 TFEU which states the following: ‘This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security’. The CJEU correctly decided that the above Member States had violated EU law by refusing to participate in the EU-wide relocation scheme. Such an outcome of the procedure was expected, and the Court rejected the arguments of Poland, Czech Republic and Hungary by interpreting EU law, including Art. 72 TFEU, in a coherent and convincing manner. Because of the differences between the Greek-Turkish situation and the legal and factual situation in the above joint cases, Greece might draw some arguments in its favor from this judgment.

Significantly, the Court did not generally exclude the application of the above provision in border-related situations, but clarified that Art. 72 should ‘be interpreted strictly and, accordingly, does not confer on Member States the power to depart from the provisions of European Union law based on no more than reliance on the interests linked to the maintenance of law and order and the safeguarding of internal security, but requires them to prove that it is necessary to have recourse to that derogation in order to exercise their responsibilities on those matters’ (paras. 152 and 147, my italics). Moreover, the application of the provision is controlled by the institutions of the EU (para. 146). Therefore, if the Member State offers a convincing explanation on the necessity of the measures, then the invocation may be legitimate, if the other conditions are fulfilled, as well. The Greek-Turkish situation fits prima facie the conditions of necessity.

The Court also emphasised that Decision 2015/1601 on relocation stated that ‘national security and public order should be taken into consideration throughout the relocation procedure’ (para. 149). In the above cases, the risks invoked as grounds for the application of Art. 72 TFEU had already been taken into account by that specific action of the Union. Greece could argue that it had good reasons for taking strict measures at its borders and that the requirements of public order and national security could only be protected by its own actions, in the absence of any EU legal act that would have considered the country’s fundamental interests in such circumstances or introduced any special procedures on that purpose (for instance, a new relocation system for those entering Greece en mass; obviously such a measure is, for the time being, politically unfeasible).

3. Art. 347 TFEU

Let us now come to the question, whether Art. 347 TFEU could be applied in the current situation. Greece legally determined the situation at the border as an ‘urgent and unforeseeable necessity to confront an asymmetrical threat to the national security’, which roughly corresponds to the rationale of this provision. As already referred to above, the suspension of asylum applications was criticised as inconsistent with EU asylum law, but may be covered by the national security clause. Even though Greece justified its action in terms of the common European interest, this was not incompatible with the parallel determination of a national security threat in the respective domestic legislation. It is obviously a matter of policy whether a state invokes a legal or a policy justification internationally. What interests us here is to explore whether the Greek action would objectively fulfill the conditions of Art. 347 TFEU.

According to Art. 347 TFEU, ‘Member States shall consult each other with a view to taking together the steps needed to prevent the functioning of the internal market being affected by measures which a Member State may be called upon to take in the event of serious internal disturbances affecting the maintenance of law and order (1), in the event of war (2), serious international tension constituting a threat of war (3), or in order to carry out obligations, it has accepted for the purpose of maintaining peace and international security’ (4). The provision refers only to the ‘internal market’, but it is accepted that its scope covers any part of the Union Law, including the CFSP (Dittert, Art. 347, MN 1, in: von der Groeben, Schwarze, Hatje (eds), Europäisches Unionsrecht, Nomos Kommentar, 7. edition, 2015) and the AFSJ, affected by measures that constitute a violation of Union rules.

There are four justificatory bases for the application of Art. 347 TFEU:

The first is the necessity of measures ‘in the event of serious internal disturbances affecting the maintenance of law and order’. There have been such disturbances recently, in particular in the islands of the Aegean hosting a large number of migrants, but they did not reach the required threshold. The notion of ‘maintenance of law and order and the safeguarding of internal security’ in Art.72 TFEU is broader than the concept of ‘serious internal disturbances affecting the maintenance of law and order’ in Art. 347 TFEU.

The second basis (war) is obviously irrelevant, but the third legal basis of Art. 347 TFEU is very close to the facts of the Greek-Turkish crisis. It still sounds questionable whether a ‘threat of war’ might have existed between Greece and Turkey. However, it all depends on the interpretation of the above term. In that regard, there exists a ‘half-precedent’ that favors Greece. In his Opinion in Case 120/94 Commission v. Greece on the potential ‘improper use’ of embargo by Greece against FYROM (now: Republic of North Macedonia), then Advocate General Jacobs had concluded that, due to the geopolitical character and historical background of the dispute, Greece ‘could have had some basis for considering, from its own subjective point of view, that the strained relations between itself and FYROM could degenerate into armed conflict’, because ‘security is …. a matter of perception rather than hard fact’ (para. 54). He also concluded that by imposing an economic embargo against FYROM, Greece had not made an ‘improper use’ of its powers under what is now Art. 347 TFEU and proposed the dismissal of the Commission’s application. It is significant that the Advocate General established a subjective, and not an objective criterion for the threat of war. The Court also rejected the Commission’s application for interim measures. Ultimately, the Commission withdrew its application, when Greece and FYROM reached a temporary agreement, and was obliged to pay the cost of the procedure. Greece insisted that the Court should rule on the substance, which shows the strength of its legal position, but the Court decided to discontinue the case.

Given the geopolitical complexity of the current aggregate crises in the Eastern Mediterranean, the Greek reaction does not seem beyond proportion. Under the Advocate General’s standard in case 120/94 Commission v. Greece, the current Greek action does not appear incompatible with the rationale of the necessity clause. The fact that Greece’s measures were supported by the EU institutions for reasons of European geopolitics (here, here, here and here) and assistance for border protection was given by FRONTEX lends further support to this interpretation.

The fourth basis, on measures for the purpose of maintaining international peace and security, is an important one that can have application in a mass influx situation. Prima facie it seems that it is irrelevant to the current crisis, because Greece has not undertaken any specific obligations for the preservation of peace in the Eastern Mediterranean. However,  according to the practice of the UN  Security Council, mass refugee inflows from areas of armed conflict are ‘threats to international peace and security’, because they may destabilize the countries of transit or destination.  Considering the overall complex and technically problematic formulation of Art. 347 TEU as a whole, it is arguable that the fourth basis can be invoked when an attempted or ongoing mass influx reaches the threshold of a threat of serious destabilisation of a Member State, of the neighborhood, or the EU as a whole, even in the absence of a specific Security Council resolution.