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 6

By Amanda Bisong, Policy Officer at ECDPM Center for Africa-Europe Relations

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.

Several EU Member States have called on the commission to explore using all relevant EU policies, instruments and tools to promote effective returns from the EU to countries of origin. Some of these tools include development cooperation, visas, pathways for legal migration and now discussions are ongoing on how to leverage trade policy instruments in promoting the return of third country nationals in an irregular situation to their countries of origin. In response to these discussions, several opinions have examined the legality of the proposals on the basis of WTO law, international law and other commitments.

Unilateral trade preferences and building partnerships aimed at economic development

Given the established link between trade and development, UNCTAD established the generalised system of preferences aimed at creating an enabling trading environment for developing countries. Consequently, several developed countries created a number of preferential trade schemes, to support developing and least developed countries (LDCs) in achieving economic and social development through international trade. The EU’s Generalised System of Preferences (GSP) is also a result of this UNCTAD initiative. 67 countries from Asia, Africa, the Pacific, and South America benefit from the GSP, which covers more than 6000 tariff lines of products and is valued at over 185 billion Euros. The scheme ensures market access for small scale producers as well as large businesses in developing and least developed countries, thereby seeking to contribute to reduced inequality and foster economic development. While the preferences granted under the scheme are unilateral, they must be compatible with the enabling clause and . Thus, they should be generalised, non-reciprocal and non-discriminatory in their design and application.

The EU in implementing these preferential trade schemes with third countries introduced conditionalities. These conditionalities emphasise the protection of social rights in the trading partner countries. These rights are based on core labour standards recognised by the ILO and almost all signatory states. The GSP through positive and negative conditionality seeks to ensure compliance with these core standards and the protection of the rights enshrined in conventions Nr 87 and 98 on ‘Freedom of Association and Collective Bargaining’; Nr 138 on ‘Elimination of Exploitative Forms of Child Labour’; Nr 29 and 105 on the ‘Prohibition of Forced Labour’ and Nr 100 and 111 on ‘Non-Discrimination in Employment’ that constitute the core labour standards as confirmed by the . However, the withdrawal of trade preferences under the GSP based on the infringement of these rights in the case of Burma and Belarus have not resulted in progress towards implementing these labour rights. Instead, the sanctions played a marginal role in the economy of the country because of regional hegemons – like China.

Although trade preferences are seen as a tool to promote economic development, the EU and its MS have used them as a coercive instrument in several instances. For example, imposing sanctions and restrictive measures as a response to political changes – lack of good governance, lack of respect for human rights. However, the general concern around the removal of trade preferences is that it results in hardships for the rest of the economy, including those sectors and individuals that are not direct targets of the actions, resulting in stagnation or deterioration in their living standards. Removing trade preferences from countries raises yet another issue, one that may have negative effects on the individuals whose rights are being upheld by the sanctions. This effect on the domestic economy and the lives of ordinary people is contrary to the policy coherence for sustainable development objectives of the EU and , which states that all EU actions should be in line with promoting development in third countries.

Conditionalities aimed at reshaping the behaviour of states and reinforcing cooperation

The use of conditionalities in reshaping the behaviour of states and reinforcing cooperation has been widely studied. The objective of states that impose conditionalities is to compel beneficiaries to act in a way that aligns with the priorities and interests of the imposing states.. Conditionalities are seen as mechanisms to bring about policy reform in the beneficiaries or to impose policies that the beneficiaries would not choose voluntarily. The use of conditionalities reinforces power asymmetries that exist between beneficiary and donor countries and makes a farce of any attempts or discussions of partnership between these countries.

The EU has maintained the use of conditionalities in its migration cooperation with third countries, although recent research shows that the use of this “conditionality and the policy characteristics that come with it (short-term, informal or even secret, bilateral cooperation) do not work and even backfire.” Specifically, cooperation on return and readmissions through formal and informal agreements has a limited effect on return rates with third countries. Also, there is no consensus on the utility of trade conditionality in promoting human and labour rights. There are concerns that labour conditionalities are a result of protectionist interests in the developed world. The withdrawal of such preferences will certainly have a negative effect on the populations of beneficiaries working in the export sectors, which means that conditionalities have been imposed without proper research on their efficacy

The use of conditionalities in international relations is frowned upon by development experts because of their propensity for instrumentalisation. But, conditionalities have increasingly become a tool used by the EU to enforce migration cooperation with non-EU countries. These conditionalities can be positive, meaning that countries that cooperate with the EU on migration and refugee protection receive more development aid or trade facilitation as a reward for their cooperation. Conditionalities can also be negative, implying that countries that do not comply with EU standards receive less development aid and are penalised for their lack of cooperation. The  EU’s current focus on the return and readmission of third country nationals who do not fulfil the conditions for entry, stay or residence in the EU has resulted in linking trade and development policies with migration conditionalities.

Partnership lost: paradise lost

The EU has emphasised its partnership approach in its cooperation with third countries, especially in migration. However, the rhetoric does not align with the practice in migration cooperation. Third countries, especially African countries, have often complained about how this ‘partnership’ focuses on the interests of the European partners to the detriment of other interests. More so, the intense focus on returns and readmission has rocked the partnership boat severally both within and outside the sphere of migration. The debates around return and readmission were a significant portion of the recently finalised post-Cotonou agreement, and countries are still voicing their displeasure with the language used to describe the commitments relating to return and readmission.

On the part of African countries, this intensive focus on the readmission of their nationals, including the discussions on the return of third country nationals, has led to tensions in the partnership between European and African countries. Most African countries are not interested in pursuing discussions on the return of their nationals due to domestic pressure – the exact reasons why European partners are interested in discussing only this aspect of migration cooperation. The emphasis on using conditionalities to promote cooperation, nevertheless, detracts in some ways from the quality of the partnership. Partnerships are based on mutual interest, trust and commitment of the parties. They are not enforced by conditionalities and coercive negotiation strategies as often observed in migration cooperation.

The way forward

Trade policy tools are not designed to deal with migration policy challenges. The current focus on using ‘all available policies – including trade’ will lead to a situation where unintended consequences – for example, leading to more difficulties for populations in countries of origin – would arise. Third countries should be allowed to reform their readmission and return policies based on analytical data and research on the effect of alternative return policies. As it is evident that the current return policies are not effective. However, EU countries should also realise that reform is a slow process and needs to take into consideration local conditions and realities.

We will continue to see a conflation of issues as migration debates get heated and as migration continues to be a salient and political issue across the EU and its member states. The challenge in these discussions will be refocusing the debates towards promoting development in countries of origin and not the current focus on the numbers of people returned or intercepted. Thus, smart and target cooperation and sanctions should be used only if necessary and not a sweeping conditionality that will lead to more hardships for the populations that should be helped.

In the search for results to satisfy these debates and the domestic population, the EU and its member states need to be aware of the risk of the focus on conditionalities to the international partnerships that are needed not only in the area of migration but also in other policy areas, especially in the context of the changing geopolitical relations.