The EU-Jordan compact in a trade law context: preferential access to the EU market to Keep Refugees in the Region

In the wake of the EU’s 2015/16 refugee crisis issue-linkage has made a comeback in the form of the EU Compacts. In an updated version of trade conditionality, the EU-Jordan Compact links refugee employment to a duty-free and quota-free (DFQF) preference under the EU Everything-but-Arms (EBA) for goods produced with up to 25% of refugee labor. The rationale underlying this ‘new approach’ to refugee protection, relates back to Migration Partnership Framework and the Global Compacts’ vision to operationalize the ‘multidimensional reality’ of migration and flight, including by linking refugee protection to non-refugee specific policies, including the EU’s Trade-for-All strategy of ‘value-based’ trade. Yet, precisely the link to trade informing this shift away from resettlement towards one of creating livelihood opportunities for refugees to remain in the region requires adjustments, which are so country-specific that they might infringe on the WTO’s special and differential treatment (SDT). The research question informing this chapter is under which conditions, the EU’s Generalized System of Preferences (GSP) under the WTO Enabling Clause which justifies trade preferences for ‘vulnerable developing countries’ can be used to compensate first-safe countries for their exceptionally important intakes of refugees. Without clear criteria to justify why, when and which EU neighbourhood country deserve a more favourable treatment than other ‘particularly affected’ ones, similarly situated countries could have a claim under the WTO’s EC-Tariff Treatment interpretation of the WTO SDT. Such legal creativity, even if justified by a time-limited ‘crisis’ narrative, raises claims under WTO law. The focus of this chapter is laid on the legitimacy of the EU-Jordan Compact under WTO law and its congruence with the EU Neighbourhood Policy. To bypass such concerns, and to prevent tertiary educated refugees from being held hostage in the export-oriented garment industry, we suggest adding a trade-in-services dimension to the export-based refugee employment program, by linking EU service provision in Jordan’s humanitarian infrastructure to Syrian employment in these sectors.