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EU silent on the conclusion of a readmission clause with Iraq

10 July 2012

10.07.12 - The EU has been keen on providing information about the recent developments towards the conclusion of a readmission with Turkey. [1] Less has been said, however, about the readmission clause included in the cooperation agreement which the EU signed with Iraq and which already seems to raise issues as forced returns to Baghdad have been prohibited by the Iraqi parliament a month after the conclusion of the cooperation agreement in May 2012.

In November 2006, the Council asked the Commission to propose a trade and cooperation draft agreement towards the establishment of "an overall framework for the cooperation" between the EU and Iraq. Negotiations initially aimed to enhance cooperation with Iraq in the framework of EU's external relations as well as stimulate "institutional and socio-economic reforms". Ultimately, cooperation was to benefit Iraq's development and improve EU-Iraq trade cooperation. [2]

In 2010, cooperation was given further impetus when the Commission submitted a draft proposal for a Council Decision on the conclusion of a Partnership and Cooperation Agreement between the EU and Iraq. [3] About 75% of the articles proposed by the Commission are related to economic and financial cooperation, including, importantly, in the energy sector. The Commission's proposal was concomitant on Iraq becoming a full partner of the EU-Arab Mashreq Gas Market (EAMGM) as the project entered its second phase. The EAMGM II, a 5 € billion European Neighbourhood Policy Initiative funded project, aims especially to extend the Arab Gas Pipeline, a pipeline network connected to the European Union. According to a November 2010 study commissioned by the EU on "Supplying the EU natural gas market":

"Iraq and Algeria are, by 2030, the most important countries in this study for supplying gas to the EU" and "Gas from both Iraq (Akkas field) and Egypt could potentially be available for EU around 2020". [4]

Long lasting negotiations to help build "a new Iraq" [5]

As the Arab Spring was spreading from Tunisia to Egypt, the finalisation of the agreement was strongly supported by the European Parliament, which gave its consent to the conclusion of the partnership on 26 January 2011 [6]: cooperation would support Iraq's stability, development and democratisation process, as the country was still in the midst of an institutional crisis.

According to the European Parliament's rapporteur on the cooperation and partnership agreement with Iraq, MEP Mario Mauro:

"It is time for European Union institutions to contribute to speed up the process towards a constitution corresponding with the needs of the country's freedom and democracy". [7]

The first agreement of this kind was finally signed on 11 May 2012 and presented by Catherine Ashton, EU's High representative for Foreign Affairs and Security Policy, as "above all a symbol of the EU's wish to be a positive partner for Iraq in its democratic efforts".

The final version of the agreement was not made public (but see footnote 9 with the full text). The only source of information as to the content of cooperation was limited to a press release from the Commission where Ashton broadly described the agreement:

"It will improve and clarify the trade arrangements between Iraq and the EU, to promote vital investment and to help integrate Iraq into the international economy. It also sets out a framework for continuing cooperation in many areas, from health and education to environment and energy. The agreement contains provisions in areas such as combating terrorism, countering proliferation of weapons of mass destruction, and promoting human rights".[8]

No mention was made of Article 105 on "Cooperation on migration and asylum", either by the European Parliament's rapporteur or by the Commission, even upon signature of the agreement.

Cooperation on migration and asylum

Article 105 was part of the Commission's proposal since 2010 and reaffirms "the importance of the joint management of migration flows between their territories" although intentions to address "illegal migration, smuggling of migrants and trafficking in human beings, as well as the inclusion of the migration concerns in the national strategies for economic and social development of the areas from which migrants originate" seem to refer more to efforts to be made by Iraq rather than the EU.

Cooperation will particularly consist in addressing the so-called "root causes of migration", tackle smuggling and trafficking issues, and ensure return of irregularly staying nationals "in a humane and dignified manner" (voluntary return should be promoted).

The agreement also comprises promotion of voluntary return of migrants present irregularly on each party's territory as well as a readmission clause whereby Iraq and each Member State:

"shall readmit any of its nationals who do not, or who no longer, fulfil the conditions in force for entry to, presence in, or residence on the territory of a Member State of the Union/Iraq, upon request by the latter and without further formalities" [emphasis added].

This readmission clause is binding and irrespective of Iraq not being a signatory of the 1951 Convention on the status of refugees.

Ultimately, cooperation is meant to help Iraq develop and implement national laws compliant with international protection standards, and lead to the signature of a readmission agreement applicable to Iraqi nationals and nationals from other countries, or even stateless persons.

"The parties agree to conclude … an agreement on preventing and controlling illegal migration and regulating the specific procedures and obligations for readmission, covering also, if deemed appropriate by both Parties, the readmission of nationals of other countries and stateless persons" [emphasis added].[9]

How effective will readmission be?

Readmission by a country of its nationals is a tacit obligation under customary law. In this sense, the agreement does not add much to what the Iraqi government is, as any country, already expected to do, except that an agreement makes such obligation more formal.

Moreover, by including a readmission clause in a global trade and cooperation agreement, the EU has adopted the "more for more" approach developed in its 2011 Global Approach to Migration and Mobility: the more a country cooperates, the more the EU will "deliver". Conversely, any lack of cooperation despite prior agreements to do so will impact on the whole cooperation. [10]

Despite this agreement, a campaign by the International Federation of Iraqi Refugees contributed to the Iraqi parliament deciding, on 23 June 2012, the prohibition of all forced returns of rejected asylum-seekers to Baghdad as security conditions did not permit their return. [11]

The UK and other EU countries have been unable to successfully remove rejected asylum-seekers for months. The parliament in Iraqi Kurdistan had already voted for such a ban a few years ago. The parliament also envisages taking measures to fine airlines which they would deem complicit of forcibly removing Iraqi nationals, and to reconsider the Memorandum of Understanding signed with Sweden in view of enforcing removal orders of irregular Iraqis. It remains to be seen how enforceable this will be as the EU and its Member States may argue that such decisions are not valid, as they contradict the agreement signed in May.

In 2011, Iraqis represented the second largest group of people to be granted international protection in Europe (8,955 people). [12]

See: European Union: Adopted 2012: Proposal for a Council Decision on the conclusion of a Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Iraq, of the other part (6 September 2011, Doc no: 5784/2/11)

Sources

[1] Council of the European Union (2012) Proposal for a Council Decision on the signing, on behalf of the European Union, of the Agreement between the European Union and Republic of Turkey on the readmission of persons residing without authorisation, 22 June 2011, Doc. no: 11744/12

[2] European Union External Action's website on partnership and cooperation agreement with Iraq

[3] European Commission (2010) Proposal for a Council Decision on the conclusion of a Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Iraq, of the other part, 5 November 2010, COM(2010) 638 final

[4] Mott MacDonald (2010) Supplying the EU Natural Gas Market - Final Report

[5] "The EU must help build a 'new Iraq'", by Mario Mauro, 30 September 2011, Public Service Europe

[6] European Parliament (2011) "EU and Iraq: signature of historic Partnership and Cooperation Agreement", 11 May 2012, press release, IP/12/467

[9] European Union: Adopted 2012: Proposal for a Council Decision on the conclusion of a Partnership and Cooperation Agreement between the European Union and its Member States, of the one part, and the Republic of Iraq, of the other part, 6 September 2011, 5784/2/11

[10] European Commission (2011) The Global Approach to Migration and Mobility

[11] "Iraq refuses to accept deported nationals", 4 July 2012, Iran Daily and International Federation of Iraqi Refugees (IFIR)

[12] Eurostat (2012) Asylum decisions in the EU27: EU Member States granted protection to 84 100 asylum seekers in 2011