Analyzing the legality of the EU Commission’s proposed withdrawal of preferential tariffs for third countries when cooperation on migrant returns ‘fails’--an unholy alliance of trade and migration?

 

 

Marion Panizzon, Senior Research Fellow, World Trade Institute, University of Bern*

 

*Privat-Docent, Dr. iur., LL.M., Senior Research Fellow, World Trade Institute, University of Bern and Legal Consultant, World Trade Advisors, Ltd. Geneva. I thank Dr. Alan Desmond, Leicester University for his thoughtful comments on several earlier drafts. I’m grateful to Dr. Christian Häberli, World Trade Institute, for his critical read of an earlier draft in light of current WTO law and practice.

 

Photo credit: NOAA, via Wikimedia commons

 

 

As a strategy to rebalance uneven negotiating positions, the ‘comprehensive approach’ defined in paragraph 11 of the Global Compact for Safe, Regular and Orderly Migration (GCM) sets the stage for rendering more attractive EU trade and EU external migration policy to third countries. However, the comprehensive approach, considered a component of ‘shared responsibility’ under the GCM is often confounded with conditionality, because both might, according to Hocquét 2023, expand the radius of migration policies, to areas outside its immediate realm. There are marked differences though, since conditionality establishes a  co-dependency between measures the EU wishes to implement, with areas of interest to the third country, being education, energy, natural resources, climate adjustment, public health (Peers 2016). Conversely, the comprehensive approach while based on mutuality, rather than reciprocity, ideally strives to create the win-win-win situations, in most cases, breaks down to integrating safe pathways with border management (Vitiello 2022)

 

In trade, ‘rights-based conditionality’ for obtaining trade preferences, has been criticized by academics (Hafner-Burton et al. 2019) and UNCTAD alike (Irish 2007), and materializes when preferential import duties are leveraged for securing the developing or least-developed country’s cooperation to fulfill an EU public good, including combatting narcotics trading, child labor and worker exploitation,  as well as the smuggling and trafficking. At the outset, the trade and development chapter inserted in the 1960s into the General Agreement on Tariffs and Trade (GATT) had empowered developing and least-developed countries to catch-up. One such avenue came in the shape of GSP developed under the auspices of the UNCTAD in 1968 and anchored by several temporary waivers into GATT, to protect infant industries thru non-reciprocal treatment (Michalopoulos 2020). Today, the expectation on trade preferences is that they fulfill non-trade policy objectives (NTPO), which is an attribution that distorts the original idea behind the GATT Art. XXIV and the subsequent Enabling Clause, permanently waiving the most-favored nation treatment otherwise due if a WTO Member lowers a tariff(ECDPM 2020).

 

Initiated in 2021, the EU Commission’s reform of Regulation EU 978/2012 Generalized System of Preferences (GSP) for developing and least-developed countries, proposes to expand by the area of migrant readmission, the cooperation the EU requires from beneficiary countries for exports from those countries to benefit from a lower or zero import duty on two-thirds of tariff lines under standard GSP, a zero duty on the same tariff lines, conditioned on the ratification of 27 conventions (GSP+) or a zero import duty on all products from LDCs except for arms and ammunition (Everything-but-Arms, EBA)  into the EU. Adding to the EU’s long list of incentives to buy origin countries’ approval for sending back their citizens in irregular stays in the EU, the Commission’s proposal, critically viewed by the EU Parliament, NGOs, and academics alike, would have complemented that listing by adding preferential trade initiatives to it. Inversely, the GSP Regulation, equally boasting an ever increasing to-do list of criteria countries need to fulfill in order to enjoy the preferences, has now been topped by the criteria of readmitting (irregular) migrants.

 

The legality of both the EU external migration system with the new addition of trade and the EU GSP regulation with its expansion to include migration policy, poses challenges of legality and practicability under WTO law, as academics and practitioners have analysed and this post discusses.

 

In its reform proposal of EU GSP Regulation 978/2012, the EU Commission suggest for the very first time, to interlace EU external migration policy, notably EU readmission agreements and cooperation on assisted and voluntary return to the EU’s GSP for the period of 2024-34. In particular the proposal foresees to up the ante of EU Regulation 978/2012 withdrawal of tariff preferences procedure by adding migrant readmissions as one benchmark to measure good governance, the former which is, alongside sustainable development and human rights one of the areas of cooperation which can conditionality rewards either positively or which is sanctioned off negatively, by the withdrawal or suspension of preference, ranging from visa relaxation, development cooperation or lowered import tariffs into the EU. As Grundler and Guild 2023 have observed, the negative conditionality (Sabourin and Jones 2023) which the Commission would like to see, is insofar not surprising, as EU member states have traditionally taken to constructs double binds, pitting legal pathways against migration control (Garcia-Andrade 2020:260) in bilateral migration agreements, with questionable outcome.

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Whereas the EU has inserted Art. 25(a), a readmission clause in its 2019 revision of the  Schengen Visa Code (Bisong 2019; Grundler and Guild 2023), the Commission’s activating the Union’s common commercial policy Art. 207 TFEU, to secure cooperation on readmissions, uses a new tool for the same purpose, yet without specifying the periodicity of review of third countries’ cooperation or lack thereof, as Art. 25a does. Several human rights organizations have remarked in response to the Commission’s proposal and the Council’s endorsement in 2022, that the insertion of migration, is shaky on more than one legal ground (Human Rights Watch, FIDH, ECRE).

 

Firstly, withdrawing the preferential tariff treatment, which LDC and developing countries obtain under one of the three pillars of the GSP, GSP+ and Everything-but-Arms (EBA) treatment might be unlawful under the WTO Appellate Body jurisprudence, as shown by DG External Policies’ Report on the proposed GSP reform (2022). In that WTO decision of 2004, the benefit of lower tariffs must be granted on a non-discriminatory basis to ‘similarly situated beneficiary countries’ and a clear link between the benefit granted and the ‘development objective’ be made. Hence, the idea of threatening a developing or least developed country with the withdrawal of a tariff preference, is not new, as Peers (2016) points out (534-537), but the EU Parliament in its criticism of the EU Commission’s proposed new EU GSP Regulation  had legitimate concern, that the EU would be creating the similar situation that had led the WTO Appellate Body ruling in EC-Tariff Preferences, to condemn it and which had put a stop to any selective imposition of trade preferences (Bartels 2003).

 

Up until this day, the Commission rewards countries of origin for cooperating on forced returns, border screening, information campaign, via visa relaxations for diplomatic staff, journalists, by facilitating remittances transfers and lowering costs, by a promise of better integration of third country nationals (Peers 2016). In so doing, the EU has treated different migrant origin countries, differently, yet, so far, without risking WTO incompatibility, since if visa, remittances or integration remain outside the scope of the WTO. The situation is different, given the recently suggested negative trade conditionality, contingent on withdrawing tariff preferences, when a readmission cannot take place. It implies that the Commission must define ‘objective’ benchmarks around readmission, for when that tariff treatment is to be removed in addition to treating similarily situated countries, identically.

 

Secondly, the EP during the 2022 inter-institutional trilogues between Council, Commission, ascertained that tying preferences to readmission of one’s own nationals, might be too far removed a conditionality. Recently, the EP’s international trade (INTA) committee on 19 September 2023 voted in favour of extending the current EU GSP scheme to 31 December 2027, which the Commission proposed to avoid the current GSP lapsing in light of the lack of agreement on the main proposal, until the Parliament and Council can agree on how to update that Regulation. Meanwhile, INTA has not further entered into discussions about circumscribing the exact legal scope triggering a potential tariff withdrawal, whether a non-implementation of an EU readmission agreement or of a bilateral readmission agreement must be shown, or whether the refusal to negotiate such an agreement in the first place is sufficient to trigger the clause, or, as the DG External Relations suggested, the non-compliance with international obligations under a EURA. Nonetheless, the Commission’s proposal currently stands at the brink of extinction. Yet, it seems timely to analyse its legality with WTO and international obligations, as a final vote, after EP elections, could overturn the INTA’s refusal to follow the Commission’s proposal.

 

In this blogpost, I discuss legality of the EU’s reform proposal under two WTO instruments, the Enabling Clause 1971, setting the legal basis for the Special and Differential Treatment of trade in goods from developing and least-developed WTO Members and the LDC Services Waiver 2011, to understand which out of the two takes origin country concerns seriously. In so doing, I draw on the discussion started by Vidigal (2023) and Tans (2023) about why the  Commission proposal conflicts with WTO rules. In so doing, I touch upon the number of preferential trade agreements (PTAs) which, similarily, have used a trade component as the quid-pro-quo for obtaining a partner’s cooperation on irregular migration. Since PTAs pit trade in services, and thus a form of legal pathways (as opposed to trade in goods) to return migration, within their chapters on the temporary movement of natural persons, the conditionality is more closely or directly contingent on people-on-the-move.

 

Consequently, the EU Commission were better advised to negotiate such openings of its services markets for service supplying natural persons, from countries of origin, within one of its deep and comprehensive free trade agreements (DCFTA) than to go freestyle by attempting to match migrant readmission with trade-in-goods. Not only are countries of origin deeply in need of docking onto the global services markets, but that linkage to readmission, at least in theory, appears to be an immediate one, since services is the only trade flow, hinging, for face-to-face delivery, directly on human factor mobility. Finally, there is in WTO law, a legal basis for enabling such one-way flows of natural persons from developing and least-developing countries (LDCs), without this asymmetric trade posing problem under the WTO GATS most-favored nation clause (MFN), as discussed below.

 

Aggregated conditionality as catalyst of informalizing EU migration cooperation

 

As Frasca (2023) and Desmond (2023) point out, soft law, in the EU external migration context, re-asserts EU sovereignty in instances, where a legally binding obligation on shaky grounds. The key catalyst to jumpstart the process turns out to be conditionality, whitewashed as the comprehensive approach, because it allows to create the traction that soft law lacks. Consequently, conditionality substitutes for a norm failing to deploy a legally binding effect, whether a country refuses to embrace the internationally binding quality of the duty to take back one’s own nationals or considers not being concerned by the duty to take back one’s own nationals. However, the role of conditionality when the EU deploys its armada of informalized migration arrangements, whether partnerships, technical readmission arrangements, standard operation procedures, dialogues still needs more research.

 

Under the New Pact on Migration and Asylum of 23 September 2020, conditionality was up for a supposedly ‘fresh start’ with the  Communication, Attracting Skills and Talents to the EU (27 April 2022), spearheading the Talent partnerships complementing EU mobility partnerships as a multidimensional response to the 18 EU readmission agreements (2023) and 6 arrangements, which regularly fail for non-reciprocally engaging with the sending country ‘s interests and needs (Moraru, Cornelisse and de Bruycker 2022).  Whereas the Commission was not yet breaking with positive conditionality driving much of the EU external migration policy, conditionality’s new focus on vocational and professional upskilling of trainees thru circular Talent Partnerships bears evidence that the Commission is on the lookout for new anchors by which to reinvigorate conditionality, and its EU external migration policy (Tsourdi, Zardo and Sayed 2023).

 

Whereas negative conditionality, which retributes a third country for its lack of cooperation on implementing EU migration policy, has prompted Ethiopia and Afghanistan to sign non-binding readmission declarations (SWP Berlin 2020), the threatened suspension of development aid, has never materialized. Speaking against negative conditionality, as the one the Commission proposes for trade preferences is that raising visa processing charges has not encouraged cooperation (Grundler and Guild 2023), nor is cutting development aid the appropriate penalty for a country such as Nigeria, where remittances are high and thus, installing of vocational training makes more of a difference (Nigeria-Switzerland Migration Partnership of 2011).

 

In 2021, against the background of arrivals by at-sea crossings and over the central route to Europe (ICMPD 2023) tripling, the Commission introduced a new feature to its palette of negative conditionality for non-cooperation over irregular migration. Under its Proposal for a revised GSP Regulation, COM(2021) 579 final for 2024-2034, the EU would now withdraw preferential trade benefits, either under the GSP+ (Generalized System of Preferences) granted to the seven EU beneficiaries (Bolivia, Cape Verde, Kyrgyzstan, Mongolia, Pakistan, Philippines, Sri Lanka), or for least-developed countries (LDCs) under its Everything-but-Arms (EBA), if ‘beneficiary countries on migration and the readmission of rejected asylum seekers’ refuse to cooperate (Guild 2023 in this blogpost).

 

 

Along a well-trodden path—forerunners to identifying trade as leverage for incentivizing migrant returns

 

For the past decade or longer, EU Member States have sought to level the playing field over migration policy among North and West African countries of origin and transit, by proposing one-size-fits-all bilateral migration management, on the basis of Art. 79:5 TFEU in the shape of agreements linking legal pathways to cooperation on returns. France’s agreements on the joint management of migration flows and solidary development for example, stepped up labor admission quotas, or created the same new categories of admission, for all of the seven African countries willing to sign on to a readmission clause. The suggested EU GSP link to cooperation on migration, would run counter to precisely those efforts, that remove treating certain origin countries better than others, thus risking to re-install post-colonial privileges (Robertson 2017).

 

Another forerunner to the prospective trade and (return) migration linkage, is the EU Compact with Jordan which reduces tariffs to duty-free, quota-free exports (DFQF) for products manufactured in Jordan with 10% (first 2 years) and later on, 15% ‘refugee content’. For becoming eligible for this Everything-but-Arms (EBA) privilege, Jordan had to temporarily accept a least-developed country (LDC) status. Whereas Jordan was compensated for employing refugees, in an afterthought, the DFQF occurred with a view to reducing secondary onward movement of refugees to Europe (Lenner 2020). If the EU’s Jordan Compact targeted refugees and not migrants, it was critically received by scholars (Gordon 2021) and advocates of fair and ethical recruitment under ILO standards.

 

Tariff Reduction for Return Migrations? Criticism of the proposed EU GSP 2023-34

 

Trade preferences can be critical for the survival of a developing country on the global market, and their withdrawal carries ethical consequences, as discussed by Tans 2023. Questions about the legality of the EU GSP scheme under WTO law (ODI Report 2023) also arise. Firstly, for Tans, proposing to retract tariffs if migrant returns seem low (to the EU), is not immediate enough a link to human mobility (EP in-depth analysis of the Commission’s proposal of January 2022). In this line of thinking, the Commission would first need to open legal pathways for migrants under the temporary movement of persons, the so-called Mode 4, under an economic partnership agreement (EPA) before it could retract trade preferences in goods.

 

If we recall how Mode 4 GATS stands as the only format of international human mobility that is liberalised internationally, under the multilateral WTO/GATS (Chetail 2014), Mode 4 presents the very connection between trade and temporary migration that is missing from the EU’s proposal. Labelled ‘mode 4’ of Art. 1:2(d) GATS this temporary mobility is a sub-form of international migration. However, it is limited under an excruciatingly narrow definition, to a) temporary stay abroad, b) not entering the labor market (only the services) of the host country c) opened only under commitments by member states d) categories of persons are narrowly defined, often clustering in the highly-skilled segments (Trachtman 2009;). As (Tans in this blogpost) suggests, the EU conditionality working through Everything-but-Arms (EBA) and GSP+ should only apply to those nationals who move under the EU’s GATS mode 4 commitments, if they fail to return voluntarily at the end of their legal temporary stay.

 

Looking for Alternatives 1: Cotonou Convention’s Cooperation on Migrant Returns

 

To this day, the temporary, cross-border movement of natural persons, the so-called Mode 4 has been missing out of EU economic partnership agreements (EPA) with North African countries (Cottier and Shinghal 2021), such that threatening to withdraw tariff preferences under the EU GSP, or even suspending the cross-border mobility so as to penalize countries in North Africa for refusing to take back their own citizens in irregular stays abroad remains illusory. In addition, speaking against penalizing countries of origin for refusing to take back citizens, and thus, against applying the EU’s revised GSP, is Art. 74 on ‘return and readmission’ of the 15 April 2021 negotiated agreement text initialed by the EU and the ACPs chief negotiators -- a follow-up to the Cotonou agreement  -- restates Art. 5 Cotonou agreement with the exception of a return clause which is free from any conditionality—neither is there a negative consequence for failing to take back one’s nationals, nor are typical migrant host countries required to open their labor markets to potential migrant workers.

 

Looking for Alternatives 2: Preferential Trade Agreements and ‘Embedded’ Returns

 

Several economic partnership agreements (EPA) have been consolidating an emerging opinio juris of obliging the origin country to take back their own nationals, once these have terminated their temporary stay to supply a service abroad:  Japan’s EPAs with the Philippines (2008), Indonesia and Vietnam (2009) codify a return clause, which is linked to a services trade commitment. It spells out a requirement for the Filipino, Vietnamese nurses and caregivers to return home, who have failed Japan’s national board examination (NBE). Because this return clause applies solely to the closed-circuit of the categories of persons whose movement the EPA facilitates (Efendi at al. 2013; Naiki 2015), I label it ‘embedded return’. Japan’s EPA of 2019 with the EU, Annex 17 imposes a duty of cooperation on worker’s returns, even if it remains generic when compared to Japan’s EPA with the countries mentioned above. Unlike for what the EU Commission envisages with reforming its GSP regulation, Japan’s EPA carry no negative consequences if either Vietnam, Indonesia or the Philippines fail to cooperate on returns.

 

A Definitive ‘No’? Uncertain Legality of a Trade - Return Migration Linkage under WTO Law

 

As Carzaniga and Sharma 2022 note, WTO Members’ right to regulate emerges from Art. VI GATS. As such, there is a discretionary space under Art. VI, but not an unlimited one, which would permit biometric border surveillance and data collection at the border, under the condition that certain criteria, including transparency are met. However, such broad reading contrasts with the GATS Annex on the Temporary Movement of Natural Persons which stipulates that measures that regulate entry and stay remain under the sovereign right of WTO Members and fall outside the scope of the WTO. Under this narrow interpretation, any PTA linking return duties conditionally to the temporary movement of workers would, in theory, be in breach of the GATS Annex. To summarize, the EU Commission might be infringing WTO/GATS by proposing a GSP reform since the multilateral trade rules of the WTO/GATS Annex preclude a legal connection being made between migrants’ return and trade in services. Beyond the uncertain legality of the Commission’s proposed reform of Regulation EU 1083/2013, there are political economic reasons why arguing in favor of the reform would be bad judgment, discussed further below.

 

People-on-the-move and the ‘new’ EU GSP 2024-34: Moving to the GATS Services Waiver instead?

 

A key consideration speaking against using the revision of the EU GSP to manage the EU’s external migration policy, are the uncertain consequences for countries non-complying with the GSP+ or EBA? In general, countries subject to the GSP+, need to ratify the 27 international law conventions on good governance, labor and human rights, as well as environmental protection, for becoming eligible for the preferential tariff treatment. If the EU deems there is a failure to fully implement provisions of these 27 Conventions, it will normally suspend the preferential tariff and the country’s exports move back to the higher regular tariff (Cambodia in 2019). Now, if the EU considers a ‘failure to cooperate on return migration’ in the same rationale as the 27 Conventions, it conjures a questionable linearity between irregular migration and a non-existent international convention about protecting migrants’ rights. Naturally, the ILO Migrant Workers’ Convention could embody the 28th international convention countries of origin of migrants would be asked to sign to receive the tariff privilege, so as to create a closer lineage.

 

However, since no EU Member State has signed onto to it, this option falls out of question, even if thematically it would address the linkage the EU desires to build. If not the ICMWR, would the 7 GSP+ beneficiaries of the EU, which are Sri Lanka, Cap Verde, Pakistan, the Philippines, Kyrgysztan, in addition to ratifying the 27 UN Conventions be required to sign onto EU readmission agreements, or EU mobility partnerships or the UN anti-smuggling/trafficking protocols as the benchmark for obtaining the lower tariff? Would cooperating with a single EU Member State thru a bilateral readmission agreement be sufficient to hold off higher tariffs on cotton T’shirts or cocoa products or coffee? By the very act of withdrawing trade preferences, if the EU perceives efforts of reducing irregular migration as waning, becomes comparable to suspending tariff preferences from a beneficiary country where corruption starts to spread, narcotics are being produced or trafficked, labor standards are neglected, human trafficking and smuggling take place. In this logic, irregular migration becomes an act that is to be penalized and sanctioned, in the same order as narcotics trading, corrupting business practices or human trafficking and smuggling, which ethically and legally is a questionable nexus to make.

 

There are better ways to incentivize countries of origin to take back their citizens in unlawful stays abroad than to withdraw tariff preferences. One is to use the LDC Waiver of WTO/GATS whereby a host country increases sectoral labor market openings in services for nationals of a country of origin. This scheme has the advantage of closely matching with the EU Talent Partnerships, the former which are sending potential migrants for a training and upskilling to Europe. In concreto, the mechanism is the following: if the LDC cooperates with the EU on irregular migration, it shall obtain additional market access on mode 4 or mode 3 for its natural persons involved in service provision. Under this paradigm, unlike with for the GSP+/EBA, migration is neither treated as a criminal activity that needs to be contained. In fact, the EU is already testing an LDC Waiver type of model in its Skills Partnerships, which ‘buy professionals from an LDC to deliver services in Europe’ (WTO Council for Trade in Services, Webinar on LDC waiver 2-3 June 2021).

 

In preferring the LDC Waiver alternative to vamping up the GSP, the EU would make a strong statement that cross-border mobility, in the first instance, occurs for improving migrants’ wellbeing that it is ‘cooperative rather than punitive’ (FIDH 2023).

 

In addition, the EU GSP+/EBA reform, as proposed by the Commission, discredits its pilot projects on labor migration and skills partnerships, which already have incorporated a return obligation for all the trainees sent to an EU Member State for upskilling. Even if the contentious term of ‘return’, is replaced by the expression of a so-called ‘soft landing’ back home (Garcia Andrade 2020), these EU Talent Partnerships are anything but free from return obligations. Hence, to now enlist the GSP+/EBA scheme for securing even more returns, puts developing countries and LDCs at risk of an additional sanctioning mechanism (Bisong 2022).  

 

Exploring the ‘LDC Waiver’: Securing Cooperation on Returns by Providing Legal Pathways on Mode 4

 

Special and differential treatment (SDT) for the Global South under Art XIX GATS (OECD 2016) calls on  WTO Members to ‘give special priority’ when opening services markets to exports of LDCs.  On the basis of Art XIX, WTO Members took a Ministerial Conference decision on 17 December 2011 to install a LDC services waiver. Since WTO Members were not using it, LDCs were encouraged to make a collective request under the lead of Uganda, to indicate in which sectors of their services industries a waiver of the MFN and a removal of discriminatory barriers  to national treatment (including quotas, licensing requirements, authorization procedures, labor market tests or professional qualifications) could prove development-friendly. By 2015, 50 WTO Members had made offers, and at the Nairobi Ministerial Conference, a decision was adopted to prolong duration of the waiver until 2030.

 

Under the LDC waiver, the EU, US, Canada, Singapore offer ‘best Free Trade Agreement (FTA)-level’ or in 25% of cases above best FTA level, which is the only way for LDC service suppliers to enjoy a competitive advantage on the global services markets. The LDC waiver provides predictability to service traders who otherwise operate under high volatility, so that a sustainable services industry can grow in LDCs and is more in line with day-to-day reality of LDC economies, many of which are no longer export-based in terms of goods. Australia’s opening of warehouse services beyond the categories it has liberalized in the WTO is promising, while Switzerland opened insurance services to LDC providers with lower qualification/notification requirements.

 

Special and Differential Treatment (SDT) under the early years of GATT was limited to developing countries granted preferences amongst each other (1971) and later on, industrialized countries followed suit, when the GATT Enabling Clause L/4903 0f 1979 transformed the 10-year waivers  of the 1970s into permanent ones. In contrast, the LDC Services waiver, while based on the idea of SDT, requires countries, like the EU, to offer non-reciprocal market access in sectors or modes of services delivery of interest to the services exports of developing and least developed Members. Moreover, it is temporary without a clear scope for discretion over how much reciprocity the grant-giving country is prepared to offer. Such facts, including that SDT is generally considered more difficult to implement than trade facilitation (Elsig 2010), render the Commission proposal difficult to digest and even more treacherous to implement. On the upside, the causality of openings in all four modes of services supply or Mode 4 only, would make the case to embed international people-on-the-move and their forced returns within the Services Waiver more plausible, because the fourth mode of service delivery, the so-called Mode 4 of GATS is the only WTO entry point for the temporary movement of natural persons, which can involve migrants, including in irregular stays, depending on national immigration and labor legislation.

 

Conclusions

 

In this blogpost I put forward the case for subsuming a compensation mechanism for countries of origin taking back migrants in irregular stays under the LDC Services Waiver of the GATS, rather than under the 1971 GATT Enabling Clause legitimizing the sequence of EU GSP Regulations.

 

The EU Commission’s heralded ‘positive outcome’ for states cooperating on migrants’ return, appears to be a negative conditionality of withdrawing tariff duties. As such it is less attractive than pledging market access under the LDC Waiver, in more than one way. Firstly, sending countries are often serving as regional services hubs in construction, logistics, and production-related services or becoming global players in tourism and healthcare, such that benefitting from the LDC Waiver, if cooperating on return migration with the EU, resonates with the Global South’s evolution from export-based manufacturing to service economy.

 

Secondly, source countries are more likely to embrace a pledge by the EU to open a services sector, in exchange for ensuring a functioning readmission procedure, than they will actually benefit from already low tariffs. Therefore, to co-opt the LDC Waiver for migration management leads to a fuller integration of countries of origin into global value-chains.

 

Thirdly, the LDC Waiver works without attaching conditionalities. This is key because having too many conditionalities can increase the compliance costs on developing and least-developed countries and backfire, as a disproportionate amount of resources is invested into meeting criteria, rather than on the ground. (US Congress, GSP 2022).

 

In sum, the LDC Waiver not only responds to the WTO’s call for special and differential treatment of developing countries, but it offers more credibility to the revised EU GSP 2024-34 than the GSP, because of its co-ownership by countries of origin. The LDC Waiver opens up valuable export markets in exchange for a duty of taking back one’s own citizens. It would certainly be more in line with the WTO Marrakech Agreement’s Preamble which stresses ‘the need for positive efforts designed to ensure that developing countries …secure a share in the growth in international trade’ over negative retribution as a way to elevate nations out of poverty.