EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

SERIES OF BLOG POSTS ON MIGRATION AND TRADE PUBLISHED UNDER THE SUPERVISION OF PROF. ELSPETH GUILD

NUMBER 5

By Sandra Lavenex, University of Geneva

 

This series of blog posts on Trade & Migration is published upon the initiative of Prof. Elspeth Guild  in relation with the controversial proposal for a regulation on the scheme of preferences for developing countries that the Commission links to the issue of readmission of irregular migrants.

The proposal to temporarily withdraw trade preferences under the EU’s Generalized System of Preferences (GSP) towards countries that fail to readmit their own nationals (COM (2021) 579, Art. 19) follows on a long trajectory of including readmission and other migration control commitments in EU trade agreements. The Commission’s proposal however introduces two major changes. Firstly, it shifts the EU’s approach from one based on positive conditionality, that is, based on incentives, to one based on negative conditionality, i.e. the threat of sanctions. Secondly, it elevates a one-sided interest of the EU, readmission, at the same level as alleged global public goods hitherto subsumed under GSP conditionality.

Early attempts of linking market power and readmission agreements

The attempt to leverage EU market power for the purpose of returning migrants can be followed back to the inception of migration cooperation in the EU (Lavenex 2002). Readmission, return and the fight against “illegal migration” were core themes in the first proposals to harmonise member state’s immigration policies by the Commission and the Council of Ministers (Council of the EU 1991). Already in 1993, the Justice and Home Affairs (JHA) Council discussed linking “Europe agreements, other association or cooperation agreements and third countries’ practices as regards the readmission of illegal immigrants” (Council of the EU 1993). In 1995, the JHA Council adopted a standard readmission clause to be included in trade agreements by the Community on a case by case basis, supplemented in 1996 by a standard clause for mixed agreements (Coleman 2009: 212; Council of the EU 1995, 1996). The clause was seen as a way to encourage the subsequent conclusion and implementation of bilateral readmission agreements between individual member states and the respective third country (European Commission 1994: para 115).

With the transfer of migration and asylum issues into the first pillar of the 1999 Amsterdam Treaty the Council decided that readmission commitments should be systematically included in all EU trade and broader association agreements (Council of the EU 1999, printed in Peers 2004: 219). At the same time, the Commission got the competence to conclude legally binding stand-alone readmission agreements – a task that soon proved particularly challenging. It is in this context that the need to “offer something in return” was formulated. Just three years after obtaining this mandate, the Commission noted that since readmission agreements “are solely in the interest of the Community, their successful conclusion depends very much on the leverage at the Commission’s disposal. In that context it is important to note that, in the field of JHA, there is little that can be offered in return …” (European Commission 2002: 24, emphasis added).

The 2002 Seville European Council: positive conditionality

Trade agreements, including cooperation, partnership and association agreements were thus seen as a reward that can be “offered in return” for third countries’ consent to cooperate in an issue that is “solely in the interest of the Community“. This classical issue-linkage leveraged on the EU’s superior market power to incentivise cooperation on migration control and readmission.

Initiatives to use trade and development policy to sanction recalcitrant countries, however, such as proposed by then Prime Ministers Blair and Aznar at the 2002 Seville European Council, were vividly objected. Talking to CNN reporters after the summit, French President Jacques Chirac’s spokeswoman Catherine Colonna said such a move would be self-defeating: “We think that to be effective, we should provide incentives and accompanying measures rather than punishment. It would be incomprehensible to establish conditionality between the fight against immigration and development aid.” She went on saying that “Exacerbating the economic situation of the country sanctioned would risk severely aggravating migratory flows and not diminish them. It would be particularly counterproductive” (CNN 2002).

The final Seville Council Conclusions thus implemented a softened form of the proposal based on positive (incentives-based) rather than negative (sanctions-based) conditionality. It was agreed that each future EU association or cooperation agreement should include a clause on “joint management of migration flows and compulsory readmission in the event of illegal immigration” (European Council 2002), implying that the EU would no longer sign any association or cooperation agreement unless the other side agreed to the standard obligations regarding readmission and migration management. The Seville Conclusions also decided that “inadequate cooperation by a third state could hamper the establishment of closer relations between that country and the Union”, following a systematic assessment of relations with that country (European Council 2002: 9). But no threats of sanctions or withdrawal were uttered.

The outcome of the Seville European summit reinforced practices that had effectively already taken shape in EU relations with its neighbours – showing a clear intensification over time. The 1994 Partnership and Cooperation Agreement (PCA) with Russia provided in quite general terms that “The parties shall establish cooperation aimed at preventing illegal activities such as illegal immigration…taking into account the principle and practice of readmission” (Art. 84). The Agreement with Ukraine of the same year stipulated that “The Cooperation Council shall examine which joint efforts can be made to control illegal immigration taking into account the principle and practice of readmission” (Art. 20). The PCA concluded with Georgia just two years later went much further stating not only that “Georgia agrees to readmit any of its nationals illegally present on the territory of a Member State…without further formalities” but also that “Georgia agrees to conclude bilateral agreements…regulating specific an obligation for the readmission of nationals of other countries and stateless persons” (Art. 75 paras 1 and 2).

This double provision on the readmission of own nationals and commitment to sign a readmission agreement covering also third country nationals became the template in future association, cooperation and partnership agreements. Some key countries however have withstood EU pressure. Thus, the association agreements signed with Tunisia (1998) and Morocco (2000) ‘only’ provide for a regular dialogue on “illegal immigration and the conditions governing (…) return” and programs to return “those repatriated because of their illegal status under the legislation of the state in question” (Articles 69 and 71 respectively).

Two years after Seville, the 2004 General Affairs Council made the positive conditionality approach based on the offer of rewards explicit. It decided that a dedicated readmission agreement should become a precondition for the negotiation of a PTA: “on a case-by-case basis, a direct link should be established between the negotiation of co-operation, association or equivalent agreements and the conclusion of readmission agreements with the same third countries” (GAER 2004: Conclusion no. 5. See also Coleman 2009: 197).

The Migration Provisions in Trade Agreements Database (MITA)

Detailed insights in the implementation of the trade-migration policy linkage can be drawn from the Migration Provisions in Trade Agreements Database (MITA) which maps all migration provisions (related to international mobility, migrant rights and migration control) included in trade agreements concluded between 1960 and 2020 worldwide (Lavenex, Lutz and Hoffmeyer-Zlotnik 2023).

The analysis of migration control provisions confirms that after 2002, EU cooperation, development or association agreements systematically include the commitment to readmit own citizens staying irregularly in the other party and to conclude dedicated readmission agreements in the future, including for third-country nationals. However, key countries of transit and origin of irregular migrants such as Libya, Morocco or Tunisia are hitherto not covered by such commitments. Also, there is no systematic inclusion of migration control and readmission clauses in pure trade agreements (Hoffmeyer-Zlotnik, Lavenex and Lutz 2023).

This data shows that after this preliminary apex of the EU’s trade-readmission conditionality discourse in 2004, and with the evolving EU competence in external migration policy, the importance of PTAs declines and alternative linkages emerge between readmission and visa policy (Council of the EU 2005) or via informal cooperation frameworks such as the mobility partnerships (Lavenex and Stucky 2011).

After 2015: From positive to negative conditionality

A renewed emphasis on using trade instruments for migration policy cooperation can be observed from the crisis of the Common European Asylum System in 2015 onwards – including, for the first time, also via the EU’s GSP.  The entry of the GSP into the migration cooperation tools falls under the EU’s 2016 Partnership Framework’s call for “fresh thinking with a mix of positive and negative incentives and the use of all leverages and tools” (European Commission 2016: 6). However, and contrary to the current proposal, the first instruments to link the GSP to migration policy did not conceive of the GSP as a tool for sanctioning non-cooperation via the withdrawal of preferences. Rather, the GSP was mobilized to offer additional positive incentives to cooperating countries such as Jordan and Lebanon in the wake of the war in Syria and with Ethiopia. Thus, the Jordan Compact relaxed the rules of origin under Jordan’s GSP+ status in exchange for the country’s hosting of Syrian refugees and their integration into the labour market (Lavenex and Fakhoury 2021: 43ff.).

While this first mobilisation of the GSP occurred in the context of promoting refugee protection in countries of first asylum, the Commission’s current proposal proposes to use the GSP to fight irregular migration. Even if the compacts have been said to be motivated also by the aim to counter onward migration towards the EU, the objective linked to the use of the GSP thus shifts from a humanitarian to an overtly repressive one. Apart from changing the focus, the Commission’s proposal also departs from the earlier scheme and from the approach used in PTAs in strategic terms as it shifts from a policy based on positive conditionality (promoting cooperation through the offer of incentives) to one based on negative conditionality or sanctions (on these different approaches to conditionality in the context of EU enlargement policy see Schimmelfennig and Sedelmeier 2020).

These shifts echo a more general hardening of the EU’s trade-migration control nexus in recent years. The notion of exerting the “necessary leverage” or “the mobilisation of any available leverage” finds more and more apparitions, such as in the 2021/947 Regulation establishing the Neighbourhood, Development and International Cooperation Instrument (para. 50) and the 2022/60 Council Implementing Decision on the Operational Coordination Mechanism for the External Dimension of Migration (Art. 2; see also Cassarino 2023). In line with this approach, the post-Cotonou Agreement negotiated with the Organisation of African, Caribbean and Pacific States (OACPS) in 2021 not only includes very detailed provisions on readmission, including a dedicated Annex, but it also introduces for the first time the possibility of sanctions or “proportionate measures” (Commission 2021 Art. 78 para. 4) for the failure to cooperate on readmission (Carbone 2022).

Conclusion

The proposal to use the GSP to sanction countries which do not cooperate with the EU on readmission is the continuation of a long-standing nexus between migration control objectives and EU trade policy instruments. While leveraging on EU superior market power, and thereby certainly exploiting third countries’ economic vulnerability, earlier approaches have been conceived as offering “something in return” for the latter’s cooperation on something that the Commission admitted to be “solely in the interest of the Community“: readmission. Art. 19 of the Commission’s proposal on GSP breaks with this approach based on positive conditionality by introducing for the first time the threat of sanctions, that is, negative conditionality. It thereby elevates the EU’s one-sided interest at the same level as the public good considerations that have hitherto figured as grounds for sanctions under the GSP scheme, namely 27 international conventions related to human rights, labour rights, protection of the environment, and good governance (Art. 15 Regulation No. 978/2012). This has something to tell about the EU’s self-positioning as a normative power in the international system (Manners 2002). By approving the Commission’s proposal, member states would re-join the Blair/Aznar initiative that they refuted at the 2002 Seville. The warning that such “punishment” would be counterproductive not only for third countries’ cooperation on migration but also for economic development and stability more generally should be recalled.