Fumbling towards Ecstasy? Canada as an associate member of the EU

 

Professor Steve Peers, Law School, Royal Holloway, University of London

Photo credit: Martin St-Amant, via Wikipedia Commons

“Living next to [the United States] is in some ways like sleeping with an elephant. No matter how friendly and even-tempered is the beast, if I can call it that, one is affected by every twitch and grunt.”

-          Pierre Trudeau, former Prime Minister of Canada

 

Introduction

Can Canada become an ‘associate member’ of the EU? What might that mean, and how might a process to this end work? There are few details yet, but this blog post explores the broad parameters of the law and politics of such a possibility.

The Legal Framework

Canada is not seeking to be a Member State of the EU – a process governed by Article 49 TEU. Nor is it seeking to sign an association agreement – as referred to in Article 217 TFEU. Rather the status under discussion is that of ‘associate member’ – a concept not referred to in the EU Treaties.

However, the absence of an explicit reference to such a concept does rule out an agreement to create such a thing. EU external relations law is replete with the creation of new categories of relationship to address the political priorities of the day, such as ‘Euro-Mediterranean Agreements’, ‘Europe Agreements’ and ‘Partnership and Cooperation Agreements’, to name just some.

In fact, the absence of a formal concept of ‘associate member’ leaves the EU and Canada free to innovate both the procedure and content of their relationship. Instead of being bound by the ‘staircase’ metaphor that came to dominate EU/UK post-Brexit relations, Canada and the EU can just take the elevator – although the underlying trade-off (greater market access in return for greater alignment with the EU) is likely to remain in some form.

Unlike membership or association, the ‘associate member’ concept does not necessarily even imply a treaty; Canada and the EU can simply declare the existence of such a status at the upcoming summit. Associate membership is an unidentified legal object; but it can still be a definite political outcome.

Nevertheless, both the EU and Canada have said that they expect something concrete to develop from deepening their relationship, even if it does not have the title of ‘associate member’. Let’s look at what each of them has recently said.

Issues for negotiation

In her State of the Union speech, the EU Commission President Ursula von der Leyen stated:

We will move from CETA to an Alliance for the Future to create a common prosperity and economic security space. We will work on intelligent manufacturing. We will create a tech alliance. We will integrate defence industrial bases. We will make the Arctic a flagship joint project. We will work on energy, critical minerals and batteries. On AI, quantum, cyber and economic security.

(CETA is the existing EU/Canada free trade agreement).

In his speech to the European Parliament, Canadian Prime Minister Mark Carney said:

Canada and Europe should secure our strategic autonomy through deep cooperation in the full range of strategic capabilities, including critical minerals, defence industrial capacity, AI and compute, energy security, space, and payments.

We should move toward seamless, digital trade in non-agricultural goods and a wide range of services.

We should deepen our people-to-people ties, allowing our youth to live, work and study where they want on either side of the Atlantic.

Canadian membership of Erasmus+ can give your students, and ours, more opportunity to learn at some of the world’s top universities, to broaden their horizons, and to build lasting ties that will sustain our alliance for the future.

Canadian membership of the next generation of Horizon would allow us to pool resources, cooperate on frontier technologies, and leverage our world-class research institutes and universities.

Yesterday, President von der Leyen announced a “new European Corporation on Critical Raw Materials” to obtain and stockpile the material needed for electric cars, chips and batteries, clean technology, and defence. Canada has deposits of over 34 critical minerals, and we are among the top producers of the 10 most essential for the world’s energy transition. Our alliance can help fill Europe’s need for reliable supply, Canada’s need for advanced processing capabilities, and our common objective to build complete value chains.

Canada can contribute LNG and hydrogen at large scale to support Europe’s energy security including by developing and leveraging new port infrastructure in the High North and on our East Coast. We, in turn, can benefit from your leadership in many clean energy technologies.

We can pool new sovereign compute capacity and build more secure broadband connections between Europe and Asia via our common geography.

Canada and Europe can join forces to develop AI safety protocols, coordinate common standards, and strengthen transparency, all while developing applications so our governments and companies can serve our citizens better. 

Canada and Europe should also consider exploring an integrated market for financial services to broaden choice and reduce costs for our citizens, improve access to capital for our companies while maintaining our world-leading financial resilience.

Comparing the two, we can see that there are more details offered on the Canadian side. There are several points in common: energy, defence industries, critical minerals, AI and computing. But it is notable that Carney raises two issues not mentioned on the EU side: financial services and youth mobility.

There is no inherent reason why the various issues for further cooperation all have to addressed in a single treaty. Some of them might be addressed better by commercial negotiations between companies (supported by governments/the EU on each side), and some might be addressed by non-binding ‘soft law’ encouraging developments. The EU tends to prefer single overarching treaties, but has compromised on this goal with Switzerland (settling for a common institutional framework for some EU/Swiss treaties), and the UK (there is a single treaty, but with different rules for different parts of it; it is effectively several separate treaties wearing a single trenchcoat). Further EU/Canada developments could follow either model.   

On one issue in particular – youth mobility – the obvious parallel is with EU/UK relations, where the EU seeks to negotiate its first youth mobility treaty (EU Member States have a number of such arrangements already, including agreements with Canada). Since the UK/EU negotiations have not concluded yet, there is no final template which could just be copied; and in any event, there is no reason for such arrangements to be identical (the UK’s youth mobility schemes differ greatly). Despite the existence of schemes between Canada and many Member States already, there could be added value in extending these schemes for longer than one year, or (as the EU has demanded from the UK) agreeing equal treatment in tuition fees.

It is possible that individual future treaties between the EU and Canada will raise legal issues on both sides: tuition fees, for instance, could fall within provincial jurisdiction on the Canadian side, and the EU courts have twice been asked already about the compatibility of EU/Canada treaties with EU law – the investment provisions of the EU/Canada free trade agreement, and the data protection rules in the EU/Canada passenger name records treaty.  (The various processes for referring issues to the Supreme Court of Canada to resolve their constitutionality broadly resemble the process of asking the CJEU to rule on whether planned treaties are compatible with EU law, set out in Article 218 TFEU).

However, one striking feature of EU external relations is that despite their legal complexity, the EU usually gets to where it wants to go in the end, even if (as with the EU/Canada passenger name records treaty) a planned treaty has to be amended to be compatible with EU law. (Member States do not have a veto on all treaties with non-EU countries; this depends on their subject-matter, and economic issues such as trade are subject mostly to qualified majority voting. Nor do Member States always have to be parties to treaties alongside the EU).

The broader context

Although neither the Commission President nor the Canadian Prime Minister mentioned the elephant by name, the underlying dynamic of the EU and Canada seeking a closer relationship is the current administration of the United States – which is far from friendly or even-tempered towards Canada, the EU, or most of the rest of the world (other than Putin’s Russia and North Korea). But despite the silence, the listeners to the speeches in the European Parliament – and the broader audience outside – knew exactly who was being referred to. As a great Canadian once sang, everybody knows that the dice are loaded. And yet, Trump might still manage to bankrupt another casino.

There’s a historical resonance to this conflict too. Growing up in Canada, I was never far from a War of 1812 battlefield; studying Canadian history, it is striking how much of the basic foundations of the Canadian state developed as a reaction to threats from the United States. In recent decades, characterised by alliance and friendship between the two countries, this history of conflict began to look ancient, but now the old threats are new again. Donald Trump has never met an ally he didn’t hate.

Further development of EU/Canada relations might face legal and political complications; after all, several Member States have still not ratified CETA (it’s being applied provisionally). But any differences of opinion will not result in the EU threatening annexation or economic coercion, renaming lakes, or posting violent memes about Canada on social media. Both sides are free to develop their relationships elsewhere (as they are doing). And if Trump – as threatened – imposes tariffs against the EU as a result of its friendship with Canada, the EU can quickly retaliate.

As for less aggressive partners, it’s not clear just how close Canada’s relations with the EU might become, for instance compared to Norway, Switzerland or the UK. The plans seem to fall short of full participation in the internal market or free movement of people. On youth mobility in particular, though, it’s possible that Canada might leapfrog the UK, given the slow pace of UK/EU talks. As another great Canadian once sang, this would be ironic indeed: the good advice that the UK just didn’t take on Brexit.

Fast-track visa reimposition: a strengthened tool for EU immigration control and external relations policies?

 

Professor Steve Peers, Royal Holloway University of London

Photo credit: Sixflashphoto, via Wikimedia Commons 

How and why can short-term visa requirements be re-imposed, on a fast track basis? For the EU, this issue is decided collectively, on the basis of legislation that applies to all EU Member States (except Ireland), plus the Schengen associated countries of Norway, Switzerland, Iceland and Liechtenstein. A proposal to change those rules to reinforce EU immigration and asylum policy is moving closer to agreement; and as it does so, both Member States and the European Parliament seek to use the new law to reinforce EU external relations objectives more generally too. (Update: the European Parliament and EU Member States agreed on the proposed revision of the law discussed here, on 17 June 2025).

Current legal framework

The EU has long had a law harmonising which non-EU States (and entities not recognised as States by some or all Member States) are – or are not – subject to visa requirement for their nationals to make short-term visits (90 days out of every 180 days) to visit the EU (Ireland has its own visa policy) and Schengen associated countries. The law was first amended to provide for fast-track reimposition of visa requirements on immigration and asylum policy grounds in 2013, to assuage Member States concerned about the impact of dropping visa requirements for most of the Western Balkans several years beforehand. These rules were amended in 2017, this time to assuage Member States concerned about dropping visa requirements for eastern neighbourhood countries (eventually visas were waived for Moldova, Ukraine and Georgia). Currently they are found in the codified version of the EU visa list Regulation, adopted in 2018.

At present, the countries whose nationals are not subject to EU short-term visa requirements (the ‘white-list’) comprise most non-EU European states (including the UK), North American and most Latin American countries, some wealthier Asian countries (such as Israel, the UAE, Japan and South Korea), Australia, New Zealand and a number of small middle-income islands in the Caribbean and the Indian and Pacific Oceans. All other countries (the ‘black-list’) are subject to visa requirements. Member States have some flexibility as regards some categories of people (such as holders of official passports), ie they can waive or impose visa requirements for these groups of people even if the non-EU countries as a whole are on the EU white-list or black-list.

For the countries on the black-list, the EU has agreed some visa facilitation treaties (usually in return for readmission treaties) which make it easier for their nationals to obtain visas. It has been willing to suspend these partly or wholly on political grounds (ie Russia and Belarus). The EU has also used its internal law (the visa code) in recent years to make (or threaten to make) visas harder and more expensive to get, if a country (in the EU’s view) does not cooperate sufficiently on readmission. A further proposal to restrict EU trade preferences for developing countries on these grounds has not yet been agreed (in part because it has been criticised for potentially breaching WTO law).

But our focus here is on the potential fast-track reimposition of visa requirements – ie, moving a country from the black-list to the white-list – in the first place. Under the current law, in addition to the separate possibility of a fast-track reimposition of visa requirements if a non-EU country does not waive its own visa requirements for EU citizens (a power that the EU has never used), visas can be reimposed on a fast track basis if there is ‘a substantial increase in the number of nationals of that third country refused entry or found to be staying in the Member State's territory without a right to do so’; or ‘a substantial increase in the number of asylum applications from the nationals of that third country for which the recognition rate is low’; or ‘a decrease in cooperation on readmission with that third country, substantiated by adequate data, in particular a substantial increase in the refusal rate of readmission applications submitted by the Member State to that third country for its own nationals’ (or nationals of other states who transited through that country, if a readmission treaty with the EU obliges the country concerned to readmit them); or ‘an increased risk or imminent threat to the public policy or internal security of Member States, in particular a substantial increase in serious criminal offences linked to the nationals of that third country’. The preamble to the Regulation defines some of these concepts further. A ‘substantial increase’ is more than 50%, although the Commission can use a lower threshold if it ‘deemed it applicable in the particular case’. A ‘low recognition rate’ for asylum applications is ‘around 3 or 4%’, although the Commission can deem a higher rate applicable in a particular case. There is no further definition of ‘serious criminal offences’, or any indications of what might otherwise comprise ‘an increased risk or imminent threat to the public policy or internal security of Member States’, given that the ‘serious criminal offences’ ground is only an example of such a risk or threat (‘in particular’). The reference period to assess these changes is a two-month period compared to the same period in the previous year, or compared with the last two months prior to dropping the visa requirement for a non-EU country. As for the process, after considering a complaint by a Member State for some issues, or on its own initiative for others, and holding discussions with the non-EU country concerned, the Commission can adopt an implementing act (ie subject to scrutiny by Member States’ representatives) suspending the visa waiver for some groups of that country’s nationals for nine months, followed (if the issues still persist) by a delegated act suspending the visa waiver for all nationals of that country for 18 months – which can be extended for six months if the Commission makes a legislative proposal (which would need to be agreed by the Council with a qualified majority of Member States, and the European Parliament) to make the move to the black-list permanent. As noted above, these rules were loosened in 2017, compared to the original 2013 version. The original version of the rules had: set a six-month reference period (instead of two months, with a seven-year time limit on the rule for countries moved to the white-list); required a ‘sudden’ increase creating an ‘emergency’ situation, and pressure on the asylum system as regards the ‘low recognition rate’ criterion’; and provided only for an implementing act reimposing visa requirements for all nationals of the country concerned for six months – possibly extended by 12 months if the Commission proposed legislation.   Despite this loosening of the rules, though, the EU has been reluctant to use them in practice. In fact, they have only been invoked once, to reimpose visa requirements for Vanuatu (see the implementing decision and the delegated act, later extended while the legislation was amended) after that Pacific micro-state introduced a form of ‘investor citizenship’, that the EU judged made it too easy for wealthy (and arguably dodgy) people from black-list countries to buy the nationality of the tropical island so they could visit the EU visa-free. (The question of whether a Member State – Malta – is breaching EU law by doing the same thing, is due to be decided by the CJEU next month). In the EU’s view, the ‘public policy’ ground for fast-track reimposition of visa requirements applied here. Proposal to change the rules After some period of generalised grumbling about the need to change the rules to reinforce the EU’s immigration and asylum policy – in particular to induce neighbouring countries to align their visa policies with the EU, to make it harder for nationals of black-list countries to reach the EU’s borders and claim asylum – the Commission tabled a proposed amendment to the visa list Regulation in 2023. The Council agreed its position on this proposed law in March 2024, and the European Parliament’s civil liberties committee agreed its position last week, as set out here.* (*updated 24 March 2025 to link to the final version of the committee's position)  The Commission proposal The Commission proposal keeps the existing four grounds for fast-track reimposition of visa requirements, with limited changes. There would have to be a significant risk to public policy, et al, rather than an increased risk (now expressly including ‘hybrid threats’, defined in the preamble as including ‘instrumentalisation’ of migrants, ie Belarus shoving them across borders). But there would be new grounds in addition: investor citizenship (which, as we have seen, is currently regarded as covered by the ‘public policy’ ground); non-alignment with visa policy; and non-compliance with commitments made to the EU when a country was moved to the white-list. The definitions of ‘substantial increase’ are moved from the preamble to the main text, and unchanged except for a power for the Commission to set them higher or lower than a 50% increase. For the asylum ground, the low recognition rate is set at 4%, but again the Commission can set it higher or lower than that. The Commission proposal also changes the details of how long visa requirements can be reintroduced for. An implementing act as regards some categories of people having to hold visas could apply for 12 months (instead of 9), and there would be a new power for the Commission to act urgently. A delegated act applying to all nationals of the country concerned could apply for 24 months, instead of 18. In either case, there would be a power to terminate the secondary measure in the event of a change in circumstances. The Council version The Council accepts most of the Commission’s proposal, but wants to make some changes. Its version would add ‘deficiencies in document security legislation or procedures’ to the public policy clause, and the preamble would refer to ‘terrorist offences and activities of organised criminal groups’ as regards public security. There would also be the possibility of reintroducing a visa requirement on external relations grounds:   a significant and abrupt deterioration in the Union’s external relations with a third country listed in Annex II, in particular when it relates to human rights and fundamental freedoms and is deriving from any of the following: (i) serious human rights violations and abuses; (ii) serious breaches of international law and standards, including human rights law and non-compliance with international court decisions and rulings   There would also be a fast-track possibility as regards ‘any other ground for suspension set out in a short-stay visa waiver agreement between the Union and a third country listed in Annex II, limited to the scope of application of such agreement’.   In the Council’s view, a ‘significant increase’ would be 30%, not 50%; and a low asylum recognition rate would be 20%, not 4% - matching the threshold for fast-tracking asylum applications under the recently agreed revised EU asylum procedures law.   The European Parliament   Like the Council, the European Parliament seeks to introduce a new external relations ground for fast-track reimposition of visas, although the Parliament’s text is worded differently:   a deterioration in the Union’s external relations with a third country listed in Annex II caused by: (i) serious breaches by that third country of the principles set out in the Charter of the United Nations; (ii) grave violations by that third country of the obligations deriving from international human rights law or international humanitarian law; (iii) violations by that third country of bilateral agreements between it and the Union; (iv) that third country carrying out hostile acts against the Union or Member States with the aim of destabilising or undermining society or institutions which are key for the public policy and internal security of the Union or the Member States; (v) non-compliance or non-alignment by that third country with relevant Union sanctions.

The preamble of the Parliament’s version states that the hostile acts ‘could result from foreign interference in political processes, economic coercion, cyber operations, economic espionage or the sabotage of critical infrastructure’.

Compared to the Council’s position, the ‘deterioration’ in external relations in the Parliament’s version need not be ‘significant and abrupt’, and is not solely focussed on human rights – although as the Council’s text is non-exhaustive (‘in particular’), the Council could encompass other issues too. In any event, the Parliament’s version mentions ‘serious breaches’ of the UN Charter, instead of violations of international law and non-compliance with judgments; it also differs by expressly referring to ‘international humanitarian law’, breaches of treaties with the EU, ‘hostile acts’ and non-compliance or non-alignment with EU sanctions. (It should be noted that non-EU countries are not legally obliged to comply or align themselves with EU sanctions; although there may be some cases where the EU and non-EU countries will be bound by sanctions because they were adopted by the UN Security Council, non-compliance with those sanctions would in that case be covered by the reference to non-compliance with the UN Charter)

Furthermore, the Parliament’s position would set 40% as the new definition of ‘substantial increase’, and drop any change in the threshold of low recognition rates for asylum. The Commission’s power to adopt urgent measures would be limited to cases of ‘significant risk or imminent threat to the public policy or internal security of a Member State’; and when visa obligations are reintroduced, Member States would lose their power to reintroduce the visa waiver for categories of people, such as holders of official passports. This last point may be a response to the situation created by the recent EU decision to partially suspend its visa waiver treaty with Georgia on human rights grounds, so there is no longer a visa waiver for holders of official passports; yet arguably Member States such as Hungary still have the option under the visa list Regulation to retain such waivers. The Parliament’s version of the law would address such issues. *The Parliament's version would also create a new power for the Commission to require (on a fast-track basis) Member States to reimpose visa requirements for official passport holders from black-list countries (ie Member States could no longer exempt them from the visa requirements) - either due to a 'significant and abrupt' deterioration in external relations (using the same definition of 'deterioration' as for white-list countries) or a failure to cooperate on readmission (as defined by the visa code). [last sentence updated 24 March 2025]    

Comments

Negotiations between the Parliament and the Council will likely start soon. Their two versions of the proposal are not profoundly far apart, differing in particular on: some of the details of a new external relations ground (but not the idea of such a new ground), as summarised above; the thresholds for ‘substantial increase’ and low recognition rates for asylum; limiting the new prospect of adopting a requirement to reimpose visa requirements urgently (but not the idea of an urgent procedure as such); and removing the power of Member States to waive visa requirements for official passport holders when visa requirements are reimposed. On the other hand, both institutions broadly agree on several aspects of the Commission proposal: the new grounds of investor citizenship, non-alignment with visa policy and non-compliance with commitments previously made to the EU; the lengthened periods for reimposing visa requirements via implementing or delegated acts; and a possible early end to the secondary measures.

It’s tempting to extrapolate which non-EU countries might be in the Council or Parliament’s mind as regards the new external relations ground. For instance, the Trump administration’s designs on Greenland (among other things) could, if put into the form of some economic pressure or military action, be seen as ‘hostile’; Israel is often accused of breaching international humanitarian law; and the EU has concerns about the UK’s compliance with Brexit deals. But the Commission will have a great deal of discretion using these powers, and is subject to scrutiny by representatives of Member States if it uses them. And it should be recalled that the Commission has been reluctant to impose visa requirements on the US in the context of non-reciprocity as regards some Member States for the EU’s visa waiver for the US (the European Parliament even sued the Commission on this point, and lost); the Commission and many Member States have been at most mildly critical of the Israeli government; and the EU has shown an established preference to settle disputes with the UK by negotiation, not escalation.  

There may be more enthusiasm for using new powers relating to non-alignment with EU visa policy – although on this point it should be noted that this would entail asylum seekers being prevented from taking a relatively safe journey to the EU border – following a visa-free flight to Serbia, for instance – and may undertake an unsafe sea journey via payment of smugglers instead. With enemies like the EU’s interior ministries, the smuggling gangs don’t need friends.

The existing powers as regards overstay rates, readmission cooperation and asylum recognition rates might be more widely used if the thresholds for their use are lowered. (Note that the European Parliament has already accepted the 20% threshold for asylum recognition, as regards fast-tracking asylum applications as part of the asylum procedures law). In each case, though, the Commission might prefer to use the threat of using the fast-track visa reimposition power to obtain concessions from non-EU countries, rather than move straight to using such powers. Speaking softly, and carrying (but rarely using) a big stick, has been the guiding principle of the EU’s approach to reimposing visa obligations – at least so far. Whether a bigger stick might be used more often remains to be seen.

EU cooperation on migration with third countries: Time to address the genealogy of informal agreements in EU migration law

 

Dr Céline Hocquet, Teaching Fellow, Birmingham Law School, University of Birmingham

Photo credit: Issam Barhoumi, via Wikimedia Commons 

As the EU makes yet another proposal to cooperate with a third country on containing migrants outside its territory, it is urgent to engage with a critical analysis of the EU externalisation policy and the use of informal cooperation informed by the historical, legal and political context underpinning the EU external migration and asylum policy.

From the EU-Turkey to the EU-Tunisia deal?

On 11th June, the EU and Tunisia issued a joint statement agreeing to work together on a comprehensive partnership package. This partnership would cover several cooperation areas, including economy, energy, and migration. More specifically, the EU and Tunisia declared ‘the fight against irregular migration’ and ‘the prevention of loss of life at sea’ as their ‘common priority’. As such, it addresses migrant smuggling and human trafficking and bolster border controls and migrants’ registration and return. In exchange for Tunisia’s cooperation, the EU offers 100 million euros for border management, search and rescue, anti-smuggling and return operations in addition to a 1 billion euros investment plan for Tunisian economic development, including projects in the digital and energy sectors.

To those familiar with EU migration law and policy, this news will, no doubt, sound familiar.

Back in March 2016, the European Council published a press release following a meeting with representatives from the Turkish government. The EU-Turkey Statement – widely known as the EU-Turkey deal – traded the containment and return to Turkey of all irregular migrants arriving in Greece in exchange for 6 billion euros of EU funding.

At the time, arrivals of migrants to Europe crossing the Mediterranean Sea were characterised by the EU as a ‘crisis’. Emphasis was put on the exceptional nature of migration flows, the extraordinary numbers of migrants reaching European shores and the severe loss of lives during sea crossings. In this way, the situation faced by the EU and its member states was presented as critical and unprecedented. Its characterisation as a ‘crisis’, highly questioned by researchers, highlighted potential threats to the stability and security of the EU and/or its asylum system. Swift and exceptional measures were, therefore, necessary to put an end to the ‘crisis’ situation and its disruption. Such measures focused on further controlling irregular migration and EU external borders notably by externalising controls to third countries and third actors.

The EU-Turkey Statement was rapidly considered a blueprint for future EU migration and asylum policy developments by swiftly reducing migrant arrivals from Turkey to Greece. Despite criticisms raised against the precedent set by its informal nature and the threats caused to migrants and asylum seekers’ rights (see for instance on this blog here and here), similar non-binding and opaque partnerships, such as the 2017 Italy-Libya memorandum of understanding or the 2016 Afghanistan-EU Joint Way Forward, were signed between the EU or its member states and third countries to facilitate the return and/or containment of unwanted migrants.

Investigating the lineage of EU informal cooperation on migration

In my PhD thesis, I focus on this development. Namely, the EU’s increasing use of informal cooperation arrangements with third countries to control migration. More specifically, my research focused on investigating the implications of characterising the arrivals of migrants to Europe as a 'crisis' for the EU migration and asylum law system. Rather than focusing on informal cooperation developed as a result of the so-called ‘crisis’, I argue for the need to contextualise these developments within the EU migration and asylum law system as a whole. Only by doing so are we able to step away from crisis-driven considerations of emergency and security and understand the genealogy of the EU’s use of informal cooperation to externalise migration and border controls.

Using an iterative approach, I looked at the emergence and early development of the EU migration and asylum law system, especially some of its key measures. My analysis shows that informal cooperation such as the EU-Turkey Statement, the Afghanistan-EU Joint Way Forward, or the Italy-Libya Memorandum of Understanding, is far from being the result of unprecedented circumstances specific to 2015-2016 requiring swift and exceptional measures. Instead, they fit within the genealogy of the EU external migration and asylum policy. In my analysis, I identified a number of long-lasting tendencies that underpin the EU migration and asylum law system throughout its evolution. One of these tendencies is the use of informal and diversified cooperation frameworks and measures circumventing regular procedures and fundamental rights guarantees.

The legacy of the intergovernmental era

The emergence of a common approach to asylum and migration law at the then-EEC level shows the significant role of informal cooperation between member states. Indeed, well before the 2015 crisis member states developed cooperation informally among themselves using intergovernmental cooperation. A particular example is the cooperation developed within the Trevi Group. An ad hoc group of interior ministers initiated by the 1975 European Council in Rome, the Trevi group initially focused on member states’ cooperation regarding counter-terrorism before its scope expanded to asylum and immigration in the 1980s. This informal cooperation led to the adoption of several soft law measures in the field of immigration and asylum with long-lasting impacts on the common migration and asylum law system. The Dublin Convention and acts related to its implementations were, for instance, originally agreed upon as part of this ad hoc group before being incorporated into the acquis communautaire and formalised by Maastricht. Still, this shows how fundamental informal and opaque cooperation has been in shaping the common migration and asylum policy. The use of informal cooperation circumventing existing frameworks is not uncommon in the field of EU migration and asylum law. Informal cooperation agreements with third countries are therefore not the result of exceptional circumstances in 2015-2016. Rather, they fit within the legacy of the common migration and asylum policy and of how cooperation in these fields emerged in the first place.

Tampere and the comprehensive approach to migration

Although the EU cooperation on migration with third countries initially focused on entering into formal EU readmission agreements, the use of informal and diversified tools is not recent. Back in 1999, the Tampere European Council called for a comprehensive approach to external migration policy. This meant diversifying external measures related to migration by using other tools of EU external action and by addressing ‘political, human rights and development issues’ in third countries as means to reduce immigration to the EU. Signed on 23 June 2000, the Cotonou Agreement is considered the first example of the diversification of EU externalised migration and border controls. This agreement was primarily focused on EU development cooperation with African, Caribbean and Pacific states. Yet it also included readmission clauses to facilitate the return of migrants irregularly staying in the EU. It corresponds to the widening of EU migration-related cooperation to other aspects of external action. The allocation of 6 billion euros funding in exchange for Turkey’s cooperation on migration containment is therefore not a practice unique to the crisis context at the time of the EU-Turkey deal.

The EU’s Global Approach to Migration and Mobility and political agreements

Following the adoption of the Global Approach to Migration and Mobility (GAMM) in 2011, the EU introduced a new tool to develop its cooperation with third countries on migration: mobility partnerships. These political agreements are non-binding and aim at providing ‘tailor-made’ partnerships addressing shared concerns between the EU and its partner. They provide significant flexibility in terms of how to conduct the cooperation and the areas covered and contain little guarantees for fundamental rights. Therefore, although informal and opaque cooperation with third countries circumventing human rights and ordinary procedures was presented as a shift in the EU external migration policy justified by the 2015 crisis, my findings suggest otherwise. The EU’s use of non-binding and flexible tools to develop cooperation on migration and border controls with third countries pre-dated the crisis. The adoption of such informal agreements from 2015 onwards, therefore, constitutes a continuation of pre-existing practices.

Conclusion

This brief overview shows the significance of genealogy when analysing developments in the field of EU migration and asylum law. Crisis-focused analyses of these developments only provide a limited understanding as they ignore the underpinnings and historical, political, and social contexts in which these arrangements operate. Contrastingly, contextualising informal cooperation with third countries (such as the EU-Turkey deal or the emerging negotiations between the EU and Tunisia) within the broader evolution of the EU migration and asylum policy enables us to distance ourselves from the crisis or exceptional circumstances used to justify such measures. In doing so, it reveals that far from being policy innovation driven by emergency and security considerations, informal arrangements and diversified tools to externalise EU migration and border controls are a long-lasting legacy of earlier developments in the EU migration and asylum policy.

 

How should the EU respond to the illegal closure of the Lachin corridor?

 

Nariné Ghazaryan, Assistant Professor in International and European Law, Radboud University Nijmegen

Photo credit: Alexander Naumov, via Wikimedia Commons   

When the 2020 Nagorno-Karabakh war came to an end through the adoption of the trilateral statement between Russia, Armenia and Azerbaijan on 9 November (Tripartite Statement), those closely observing the region were convinced that peace was still far away. By mid-2021, it became plain obvious that the ceasefire did not hold when attacks against the Armenian territory took place earlier in May. It is at this stage that the EU finally assumed leadership in fostering peace talks between Armenia and Azerbaijan. This leadership materialised through the high-level mediation by the President European Council, Charles Michel in relation to the release of prisoners of war, behind the scene diplomatic efforts and high-level trilateral meetings taking place through the course of 2021-2022. With the trilateral meeting in August 2022 hopes were running high that the EU could broker a deal to bring the parties closer to the resolution of their long-standing differences. In an affront to the EU’s efforts, however, Azerbaijan undertook a large military offensive against Armenia in September 2022 occupying parts of its territory and leading to new allegations of war crimes (Hauer, Euractiv 2022; Freedom House 2022; PACE 2022). Despite these developments, no immediate reaction followed by the EU. Continuous diplomatic engagement was preferred instead, with another high-level meeting taking place at the Prague summit in October 2022.

By that time, Armenia had already appealed to various international organisations requesting international presence on its territory (Council of the EU 2022; OSCE 2022). In a positive move, the EU responded swiftly by deploying a temporary CFSP border mission on the territory of Armenia (Council Decision (CFSP) 2022/1970). In an affront to the EU mediation efforts, President Aliyev of Azerbaijan shortly after declared his opposition to the mission, noting further that Azerbaijan did not permit the mission to be deployed on its territory (The Armenian Weekly, 18 October 2022). Although the mission was subsequently extended for a longer period (Council Decision (CFSP) 2023/162), its presence in the region did not prevent further hostilities on the territory of Armenia or in Nagorno-Karabakh.

Under the trilateral statement of November 2020, the safety of Nagorno-Karabakh Armenians was to be guaranteed by a Russian peace-keeping contingent. The presence of the latter, however, did not prevent further attacks since then. Rather the latter events confirmed the doubts about Russia’s genuine interest in the conflict resolution. When in December 2022, Azeri ‘eco-activists’ blocked the Lachin corridor, the only land route connecting Nagorno-Karabakh to Armenia and the only life line for the region’s economic survival, no action followed by the Russian forces. This was a blatant violation of the trilateral statement of November 2020 according to which the Lachin corridor ‘shall remain under the control of the peacekeeping contingent of the Russian Federation’, while ‘[t] he Republic of Azerbaijan shall guarantee safe movement of citizens, vehicles and cargo in both directions along the Lachin corridor’ (para 6, Tripartite Statement).

It is clear that without a ‘green light’ from the Russian side the blocking of the road would have been impossible. While the image of Russia as Armenia’s security guarantor has long been shattered, the events of the Lachin corridor can be seen as exerting pressure over Armenia keen to build closer ties with the EU, the US and the international community more generally. Any threat to the Armenians of Nagorno-Karabakh can lead to political turbulence in Armenia threatening the position of its pro-Western government. The fate of the Armenians of Nagorno-Karabakh is therefore left in the hands of the Russian army and Azeri government with its entrenched Armenophobia (UN Committee on the Elimination of Racial Discrimination, 2016). Although statements were issued by the EU representatives calling on Azerbaijan to ensure the free passage through the Lachin corridor (EEAS, December 2022), there were no suggestions that lack of compliance will be followed by appropriate EU response. 

Few months into the blockade, the ICJ confirmed the Azeri responsibility for the blocking of the land corridor ordering the latter in interim to ‘take all measures at its disposal to ensure unimpeded movement of persons, vehicles and cargo along the Lachin Corridor in both directions’ in the case of Armenia v Azerbaijan concerning alleged violations of CERD (para 62 of the Order).  As in the past, a call on Azerbaijan followed from the EEAS spokesperson to comply with the ICJ order without hinting at possible consequences of  lack of compliance (EEAS, February 2023). Only the European Parliament in its subsequent resolution called for sanctions to be imposed on Azerbaijan if the latter fails to implement the ICJ’s order (European Parliament 2023). In defiance of the ICJ judgement and the calls of the international community, Azerbaijan not only did not unblock the road, but in further escalation it dropped the pretense of eco-activism and established a military check-point at the Lachin corridor in April 2022. In addition, attacks continued against the Armenian territory and Armenian soldiers despite the presence of the EU border mission. Alarmingly, the EU border mission is never located in the vicinity of these events. This might be explained by the fact that the EU border mission coordinates its movements with Azerbaijan in advance (Gavin, Politico, 2023).

In this context, it is clear that Azerbaijan has no genuine interest in concluding a peace treaty with Armenia. The international community’s attention on the war in Ukraine gives Azerbaijan the upper hand in capitalising on the defeat of the Armenian side in the 2020 war by making claims to the South of Armenia, and creating the conditions for the potential ethnic cleansing of the Armenians of Nagorno-Karabakh. Given its diplomatic efforts of the past two years and the deployment of the CFSP mission in Armenia, the question is where does this leave the EU? Should it limit itself to its current mediation efforts, or should it make use of other political and legal instruments at its disposal, including sanctions?

Despite the spearheading of trilateral talks to advance the peace process, the EU’s approach is rooted in its past cautious engagement and its long-standing position of ‘both-side-ism’ (Ghazaryan 2023). In simple terms, the latter viewed both Armenia and Azerbaijan as equal in terms of the causes of the bilateral conflict, but also their intransigence in the attempts to resolve the conflict. Even if one views such perception as justified in the past, following the 2020 Nagorno-Karabakh war this no longer stands scrutiny given the precarious position of Armenia and the Armenians of Nagorno-Karabakh. It is precisely this vulnerable position that Azerbaijan is keen to exploit given its cordial relations with Russia, the only international power with a military presence on the ground (Eurasia Review, 2022). Its position has also been emboldened by a new energy deal concluded between the EU and Azerbaijan in the summer of 2022. The EU’s understandable desire to break away from its dependence on Russian fossil fuels, appears inevitably to push it into the arms of other authoritarian regimes. In its speech to mark the closing of the deal promising the doubling of gas supplies to the EU,  Commission President von der Leyen declared Azerbaijan to be a ‘trustworthy partner’ despite the latter’s political record and threats against Armenia’s territorial integrity.

The blockade of the Nagorno-Karabakh Armenians now affirmed by the establishment of the miliary checkpoint in breach of the ICJ order should not go unnoticed by the EU. The recent gas deal emboldening Azerbaijan also creates significant leverage for the EU which should be used to end the blockade to prevent the ethnic cleansing of Karabakhi Armenians. The war in Ukraine demonstrated the EU’s ability to respond to blatant violations of International Law by deploying a wide range of sanctions and taking a clear stance. Placating the authoritarian regime in Azerbaijan demonstrates that lessons have not been learned from the EU’s previous practice in its Eastern neighbourhood where its placating of Putin’s regime only led to impunity and further aggression. The EU’s partnership and prospects of concluding a new agreement with Azerbaijan should be put on hold unless the latter genuinely engages in the peace process with a view to resolve the conflict rooted in the issue of self-determination of the Armenians of Nagorno-Karabakh. The EU should not shy away from addressing the issue of how to guarantee the safety and rights of Karabakhi Armenians in the context of Azerbaijan’s lack of democratic governance and poor human rights record, as well as its decades-long Armenophobia. In particular, due to its relations with both Armenia and Azerbaijan the EU is well placed to deploy a European peace-keeping contingent given the poor record of the Russian forces on the ground.

Most importantly, the EU’s political, legal and economic weight should be used to take a stance in line with its values when clear breaches of International Law are taking place. Glossing over them to advance its energy interests will only lead to a new painful episode at the EU’s borders which it could have possibly prevented.

 

 

 

The ‘sidelining’ of the European Parliament from the EU-US Trade and Technology Council (TTC): TTC(s) as post-Democracy Divas or Disasters?

 

 

Professor Elaine Fahey, Institute for the Study of European Law, City Law School, City, University of London*

Elaine.fahey.1@city.ac.uk

 

* Professor of Law at the City Law School, City, University of London; Jean Monnet Chair in Law and Transatlantic Relations 2019-2022; co-director of the Institute for the Study of European Law (ISEL), City Law School since 2016; in 2023, Visiting Professor at the American University, Washington College of Law (WCL) and Senior Land Steiermark fellow at the University of Graz; Research interests: EU law, global governance, EU external relations and the EU as a global digital actor.

 

 

The EU-US Trade and Technology Council (TTC)

 

A Transatlantic Trade and Technology Council (TTC) has been set up quickly by the European Union (EU) with the US at the outset of the US Biden administration. It is not a trade negotiation and does not adhere to any specific Article 218 TFEU procedure, although it has many signature ‘EU’ characteristics. The TTC has high-minded goals to ‘solve’ global challenges on trade and technology with its most significant third country cooperating partner.  Yet it is notably not the only recent Council proposed by the EU- there is also a new EU-India Trade and Technology Council. These new Councils represent a new modus operandi for the EU to engage with ‘complex’ partners, comprising executive to executive engagement, meeting agency counterparts regularly in close groups in an era of EU trade policy deepening its stakeholder and civil society ambit overall. The TTC has a vast range of policy-making activities, traversing many areas of EU law.  Their precise selection and future is difficult to understand in EU regional trade and data policy, seemingly pivoting, like US trade law, to executive-led soft law.

 

One entity not officially to be found within the TTC is the European Parliament (EP).  The EP is formally not part in any way of the EU-US Trade and Technology Council (EU-US TTC).  The TTC has held three ‘high-level’ political meetings so far escribed as executive to executive ‘ministerial’ meetings steer cooperation within the TTC and guide its 10 working groups on technology standards, secure supply chains, tech regulation, global trade challenges, climate and green technologies, investment screening and export controls. The first two meetings focused on launching the TTC and setting its agenda, while the third – in December 2022 – was described as a ‘shift to deliverables’. The TTC strikingly has a vast range of global law-making goals and has received public critique for either ‘under-performing’ or for its overbroad focus. It comes at the back of significant EU-US collaboration in data privacy.

 

This short blog considers the merits of the placement of the EP. It considers its de facto and de jure ‘sidelining’ from this era of EU-US relations, in an ostensible age of parliamentarisation and widening participation.  

 

EP powers in external relations: increasingly empowered at all stages … to a point

 

The EP is increasingly empowered politically and legally in international relations including important powers of consent to approve international agreements in a wide variety of circumstances, pursuant to the EU treaties in Article 218(6)(a) TFEU, with information and veto rights. The EP is excluded from the critical stage of the opening of negotiations on external relations agreements.  Many of its powers represent a very end-point of diplomacy, politics and technical issues, in reality, temporally earlier issues are increasingly important in a world where soft international economic law prevails and trade agreements are viewed as old-fashioned. As a result, the EP uses many soft law resolutions to advocate legal positions in the shadow of its veto. The EP has, however, also been granted important information rights in Article 218(10) TFEU, which have been given constitutional significance by the CJEU in key caselaw initiated by the EP.

 

However, similar to or mimicking the US the EU increasingly uses ‘soft’ international arrangements rather than formal international agreements in establishing relations with non-EU states.  Yet the use of the many forms of soft law in EU external relations runs the risk that parliamentary influence is by-passed.  

 

 

The EP in EU-US relations: a striking history of litigation and evolving legal powers

 

The EP record on EU-US relations is quite striking, from civil liberties to trade, using its many and evolving legal powers. The EP litigated notoriously the EU-U.S. Passenger Name Records Agreement (PNR) and swiftly rejected the EU-US Transatlantic Terror and Financing Programme (TFTP) (Swift) giving it ever more legal prominence in EU-US relations. The EP did not issue recommendations on the opening of EU-US trade negotiations in 2019 and the EP notably even rejected a draft resolution recommend the opening of Trump-era EU-US trade talks relating to concerns as to the Trump administration, Eastern European country visas for the US, accepting the so-called mini-Lobster trade agreement with difficulty. The EP had a highly prominent role in compelling more transparency to the EU-US Transatlantic Trade and Investment Partnership (TTIP), through illegal leaking negotiation texts in the public interest.

 

The EP in TTC: self-sidelining?

 

However, it can now be said that the EP is not per se helping itself as to TTC. The EP has once received a briefing from the Commission through its INTA Trade committee on the TTC. The EP thus appears to be ‘monitoring’ the TTC through INTA- although this seems very odd as to why EP technology and industry committees might be any less involved than trade in a ‘trade and technology’ venture. One meeting of the INTA committee with two Commissioners held in December 2022 few tech committees MEPs were invited – and appeared to have few critical questions of the TTC. The EP has issued one critical press release via its trade committee publicly, in late 2022 but little else, critical of its lack of trade results. However, democratic scrutiny has been repeatedly mentioned by the EP as to the TTC-  via the European Parliamentary research service ‘EPRS’ briefings - rather than via an EP resolution- arguably downgrading its importance and EP engagement with it.

 

 

Stakeholders and the TTC - civil society, industry and the EP all lumped in together?

 

It is important to say that the TTC has a range of engagement strategies for stakeholders. A TTC Stakeholder Assembly was organised by the Trade and Technology Dialogue (TTD) which adopts the EU international relations lexicon of dialogues with stakeholders, increasingly found in EU trade negotiations and resulting agreements. One may say that it is confusing series of alphabetised meetings called the TTD, meant to support the TTC. The sheer range of issues and topics considered by the TTD by zoom- using breakout rooms- is particularly remarkable and easily accused of being ill-focused. The lack of formal accountability here appears striking also with stakeholder sessions run by thinktanks for the EU. High level US administration, professional lobbyists and/ or thinktanks and EU institutions all appear here to have privileged input and capacity to influence and scrutinise- but less so the EP.

 

 EU in the US:-  increasing EP and EEAS physical site offices

 

The sidelining of the EP in the TTC is notable given the EU’s ratcheting up of institutions and diplomacy in the US recently. In 2010, the EU established a dedicated structure with the explicit task of channelling and deepening ties between the EU and US legislatures - a European Parliament Liaison Office (EPLO) – notably with no US equivalent. The EPLO sits alongside physically the European External Action Service (EEAS) in Washington DC in the same building entitled the ‘The EU and US,’ but notably on the floor below it (metaphorically?). EPLO Washington DC has added a ‘hard’ dimension to institutionalising the EU-US inter-parliamentary relationship. Aside from the EEAS office in Washington DC and the EPLO in Washington DC alongside it, the EU recently opened its new EEAS office in San Francisco, California, as a self-professed global centre for digital technology and innovation. Its mission was said to be to promote EU standards and technologies, digital policies and regulations and governance models, and to strengthen cooperation with US stakeholders, including by advancing the work of the EU-US TTC. The office was said to work under the authority of the EU Delegation in Washington, DC, in close coordination with Headquarters in Brussels and in partnership with EU Member States consulates in the San Francisco Bay Area- but again without any mention of or reference to the EP or EPLO in the US.

 

 

Conclusions: the real harm of soft law councils?

 

The EP is arguably legally excluded from the new era of soft international economic law that the EU is readily subscribing to, to a high degree. The rights of the EP have evolved significantly - even in an age of soft law in international relations.  The TTC is following an EU law blueprint in effect legitimising its executive-led action but it is also acting contrary to the thrust of much EU international relations practice which is about widening and deepening participation.

 

The harm of ‘soft law’ councils remains very real if it becomes mainly executive to executive sidelining of parliaments.

 

Where entities such as the US have declared trade agreements to be old fashioned in favour of soft law framework agreements, the EU had always appeared less so inclined as a rules-based multilateralist.

 

The EP in transatlantic relations has been highly effective, engaged and participating and should not necessarily be formally excluded from this new era of EU-US relations, privileging TTC contacts.