Introduction (full document available below):
Amsterdam, 27 February 2023
‘CSW and FIDH (International Federation for Human Rights) have requested a
legal opinion regarding the lawfulness, under the rules of the World Trade Organisation
(WTO), of proposals to include migration-related conditionalities in the Generalised
System of Preferences (GSP) of the European Union (EU), currently under review.
The request comes in the context of proposals, currently being negotiated among the Council of the European Union, the European Parliament, and the European Commission, to review, for the years 2024 to 2034, the EU GSP, a scheme designed to provide favourable treatment to the trade of developing and least-developed countries.
My conclusions are as follows:
- WTO rules authorise GSP schemes on the understanding that they can help ‘developing countries, and especially the least developed among them, secure a share in the growth in international trade commensurate with the needs of their economic development’. GSP schemes must be ‘designed to facilitate and promote the trade of developing countries’. They cannot be used to punish developing and least-developed countries or demand from them action that is in the domestic interest of the WTO Member applying the GSP scheme. To ensure these objectives are met, the WTO Enabling Clause imposes requirements on GSP schemes.
- GSP schemes may include conditionalities. Each conditionality must be ‘designed and, if necessary, modified, to respond positively to the development, financial and trade needs of developing countries’. The current EU GSP, for example, includes conditionalities relating to enforcement of labour standards, human rights, environmental conservation, and good governance, all of which fit under the rubric of development needs.
- The proposal of conditioning trade preferences on beneficiary countries facilitating the return and readmission of migrants, currently in Article 19.1(c) of the Proposed GSP Regulation, does not respond, let alone respond positively, to the development, financial and trade needs of developing countries. It is designed to fulfil an objective found desirable by some political coalitions within the EU and its Member states. As a result, it is incompatible with the conditions for a WTO- 2 compatible GSP scheme. A GSP scheme can neither condition participation on, nor draw distinctions between GSP beneficiaries depending upon, how far a developing or least-developed country pursues policies that the EU finds domestically desirable in the area of return and readmission of migrants.
The EU has been a stalwart for the maintenance of the rules-based international trade order. The WTO Agreements were ratified by the EU and all of its Member States. The interpretation offered in the attached opinion reflects legal conclusions developed by WTO panels and the Appellate Body, endorsed by all WTO Members gathered in the WTO Dispute Settlement Body. Given the clarity with which they apply to the present Article 19.1(c) of the European Commission’s proposed GSP Regulation, this element of proposed Article 19 should be withdrawn if the EU is to comply with its international commitments and avoid further straining the multilateral trading system.
Amsterdam Law School
University of Amsterdam’