More or less (soft) law? The case of third country migration cooperation and the long-term effects of EU preference for soft law instruments

Abstract

Through a variety of examples, an appraisal of EU third-country informal cooperation on migration is provided to show that a preference towards softer instruments of cooperation has emerged. To illustrate the breadth and depth of such informal tools, four perspectives are adopted: first, a geographical one, which elucidates the reach of the EU action; second, a perspective related to the vastness and variety of the objectives pursued through informal cooperation; third, one which focuses on the role of funding in support of this action; and lastly, a perspective which examines the narrative framework of soft cooperation. This paper aims to assess whether and to what extent this trend reflects either a ‘more’ or ‘less’ law approach to third country migration cooperation in the EU. Through the lens of European soft law theory, the status of informal cooperation within the realm of soft law is examined. As the choice of ‘more’ or ‘less’ law is inherently political, the preference for alternative law-making methods can have an immense impact on the functioning of a legal system. Thus, some of the practical consequences produced by soft law in this field are presented, namely de-proceduralisation, de-formalisation and de-legalisation.