EU-Africa Policy Cooperation in a Legal Perspective: Does The Lack of a Legal Framework for the Joint Africa-EU Strategy Violate Principles of the International Rule of Law?

(1)

EU-Africa Policy Cooperation in a Legal

Perspective: Does The Lack of a Legal

Framework for the Joint Africa-EU

Strategy Violate Principles of the

International Rule of Law?

Author:

Lena MATTMÜLLER

Supervisor:

Dr. Catherine BRÖLMANN

Track:

Public International Law

A thesis submitted in fulfillment of the requirements for the degree of Master in International and European Law

in the

Amsterdam Graduate School of Law

(2)

(3)

Declaration of Authorship

I, Lena MATTMÜLLER, declare that this thesis titled, ‘EU-Africa Policy Cooperation in a Legal Perspective: Does The Lack of a Legal Framework for the Joint Africa-EU Strategy Violate Principles of the International Rule of Law?’ and the work pre-sented in it are my own. I confirm that:

• This work was done wholly or mainly while in candidature for a research de-gree at this University.

• Where I have consulted the published work of others, this is always clearly attributed.

• Where I have quoted from the work of others, the source is always given. With the exception of such quotations, this thesis is entirely my own work.

• I have acknowledged all main sources of help.

Signed: Lena Mattmüller Date: 26.07.2018

(4)

(5)

University of Amsterdam

Abstract

Amsterdam Graduate School of Law

Master in International and European Law

EU-Africa Policy Cooperation in a Legal Perspective: Does The Lack of a Legal Framework for the Joint Africa-EU Strategy Violate Principles of the

International Rule of Law?

by Lena MATTMÜLLER

In this thesis, the cooperation between the EU and the AU are critically analyzed from a legal point of view. The most comprehensive framework for cooperation is

the Joint Africa-EU Strategy at the continental level. As a part of this framework, the Partnership on Mobility, Migration and Employment has been set up to provide

a framework for political dialogue. Interlinked with this are other policy frameworks such as the Rabat and Khartoum processes that cover different levels of cooperation. What these have in common, however, is that they treat issues such

as migration and mobility in a political fashion without anchoring this within a legal framework. This thesis shows that this can be problematic and lead to issues

both in terms of how it affects individuals and states but also in terms of an international rule of law in a general sense. The aim here is to show that power is,

in fact, exercised, but that there are no laws to restrict or govern the exercise of power and that this, in turn, can adversely impact on the different actors, including individuals. It may even entail violations of human rights law. Therefore, the thesis

at hand sets out three fundamental elements of the rule of law, namely human rights, equality before the law, and government of laws, and shows that the Partnership is not compatible with these notions. In a second step, it assesses whether the Cotonou Agreement could offer a more appropriate framework. The

Agreement is an international treaty and as such offers a legal framework for political dialogue. The thesis is concluded by stating that a legal framework such as

Cotonou is indeed necessary in order to safeguard human rights and the rule of law.

(6)

(7)

List of Abbreviations

ACP Africa, the Caribbean and the Pacific

AU African Union

EU European Union

(10)

(11)

Chapter 1

Introduction

International organizations are an important actor in international relations. It is thus inevitable that they interact with each other and that they furthermore define important policies with a wide impact. These can, however, have an influence on individuals, and they can have negative effects. Therefore, this thesis looks at one policy framework which is the most comprehensive framework for cooperation be-tween the EU and Africa, namely the Joint Africa-EU Strategy. More precisely, it looks at the Partnership on Mobility, Migration and Employment which is one of the partnerships of the wider framework. In that area, adverse effects have been seen in Sudan in terms of human rights. The thesis thus asks the question whether the lack of a legal framework for the Partnership on Mobility, Migration and Employment could lead to violations of the rule of law, including human rights violations, and whether this could be remedied by bringing it within the framework of the Cotonou Agreement.

In order to answer this question, a few theoretical considerations and definitions have to be set out. In the first place, the international rule of law needs to be defined. It is assumed here that there are substantive and formal aspects to a rule of law, both of which are relevant for this thesis. Furthermore, an international rule of law is distinct from a national rule of law and can be interpreted in different ways. The elements that are identified as central for this thesis are the human rights framework as a substantive element of the rule of law, the equality of states before international legal frameworks, and the government of laws which entails that exercise of power should be regulated by law. In the second chapter, these theoretical notions are thus detailed further in order to create the framework which this thesis will use to as-sess the different modes of cooperation between the EU and Africa, notably the Joint Africa-EU Strategy and the Cotonou Agreement. Furthermore, the second chapter will give a brief outline of the Partnership on Mobility, Migration and Employment. This is important because it is a very complex policy framework that is interlinked with several other frameworks and processes. It furthermore forms the central ob-ject of analysis and as such deserves to be introduced briefly. The third chapter then starts the analysis of the Partnership along the lines of the international rule of law as identified in the second chapter. The structure of the third chapter follows the three elements of the international rule of law that were identified to be of relevance. The first section is thus concerned with Sudan’s human rights violations in connection with the lack of human rights guarantees in the Partnership. In the second section, the focus lies on the EU’s Global Approach to Mobility and Migration which sees the Partnership as an EU foreign policy tool to exercise power abroad. This is then assessed in light of the notion of equality of states, and specifically partners to the agreement, before international law. Thirdly, the overarching issue of the lack of a legal framework for the Partnership is addressed in the context of the lack of a gov-ernment of laws. As has become clear, power is indeed exercised within the policy

(12)

2 Chapter 1. Introduction framework, but it is not governed by laws. Having detailed these issues in light of the rule of law, the fourth chapter sets out to analyze whether the legal framework provided by the Cotonou Agreeement could be an appropriate response to the short-comings of the Partnership in terms of the rule of law. The outline of that chapter follows the same three notions as chapter three in order to enable comparison. The main assumption for that chapter is that the Joint Africa-EU Strategy including the Partnership on Mobility, Migration and Employment would remain as they are but put within the Cotonou framework. This has the purpose of not involving too much speculation on how an actual merging of those frameworks would look like, spec-ulation that would go far beyond the scope of this thesis. It also has the advantage that it does not change the Partnership into something different but merely applies a legal framework to it, thus keeping the basic premises intact. The assessment of the Cotonou Agreement is intended to provide a possible solution to the situation of the Partnership but furthermore serves to show what difference a legal agreement can make and where there may be limits to that in terms of practical application. Finally, the last chapter will conclude the thesis by summarizing the findings and formulating a response to the research question.

Regarding the methodology, this thesis mainly relies on analyzing the texts mak-ing up the Partnership on Mobility, Migration and Employment as well as the Cotonou Agreement. To that end, the theoretical notion of the international rule of law will be applied. This notion is not discussed within the context of this thesis since that would exceed the scope. Rather, a definition is picked and certain clarifications as to the concrete application thereof in this thesis are applied. The thesis furthermore attempts to work from concrete issues that have been identified in academic litera-ture and frame them in the context of the international rule of law. That way, the framework can be used to propose solutions, as is done towards the end of the the-sis. Regarding the solutions, no speculations as to the actual incorporation of the Partnership into the Cotonou Agreement is made. This has two reasons. For one, such speculation would go beyond the scope of the thesis. On the other hand, it is not the purpose to advocate for an extension of Cotonou but rather to use the Agree-ment to show the advantages of having a legal framework at the basis of a political cooperation.

Overall, this thesis thus aims to apply constructive criticism to policy cooperation between the EU and Africa from a legal point of view. The legal point of view is certainly not the only one that can be applied here but it is an important one to take into account. Any time that peoples’ lives are affected, and likewise any time that states are affected in the international realm, a legal perspective cannot be missing from the array of possible perspectives. This is what this thesis hopes to provide within the context of the EU-Africa cooperation.

(13)

Chapter 2

Theoretical Foundation

As was explained in the introduction, the Partnership on Mobility, Migration and Employment is a policy partnership that poses problems to international human rights law and furthermore to the rule of law. In this chapter, the theoretical foun-dations will be laid for the analysis of the Partnership on Mobility, Migration and Employment. These foundations are two-fold. On the one hand, the international rule of law as understood for the purposes of this thesis will be laid out. This entails a short description, as well as a focus on the notion of legal certainty. This will form the relevant framework for the analysis in this thesis. On the other hand, it is neces-sary to briefly describe the Partnership on Mobility, Migration and Employment in order to understand its functioning and how it is interlinked with other mechanisms. Understanding the partnership is in turn important when it comes to assessing its shortcomings with respect to the international rule of law.

2.1 The International Rule of Law

The international rule of law will form the theoretical frame of analysis for this the-sis. However, there is no single, clearly defined notion that is the international rule of law. It is a concept that is distinct from the national rule of law as understood in its varying contexts. And it is furthermore something that is not agreed upon at the international legal level. Some even dispute the existence or use of an international rule of law entirely. However, these discussions will not concern this thesis since they would exceed the scope thereof. Rather, a definition for the international rule of law will be picked that is relevant for the analysis of the Partnership on Mobility, Migration and Employment and briefly. This definition will then briefly be elabo-rated with an emphasis on the notions of human rights, equality, and government of laws.

The notion of the rule of law has traditionally been a national one, developed in the context of a national legal framework. Historically, there has been an evolution of this. Whereas it was often seen in merely formal terms, being positivist and hav-ing a function of limithav-ing state power, substantive elements were later added.1These substantive elements contain more ideologically laden aspects. In Germany after the Second World War, for example, the notion of a social state came to be seen as form-ing part of the rule of law. These substantive elements very much reflect the choices a society makes for giving shape to its legal, economic, and social systems.2 On the international level, however, there is no common system which would give rise to

1_{Simon Chesterman, ‘"An International Rule of Law?"’} _{Version NEW YORK UNIVERSITY}

SCHOOL OF LAW PUBLIC LAW LEGAL THEORY RESEARCH PAPER SERIES WORKING PAPER NO. 08-11, pp. 1-39 (used here) (2008) 56(2) The American Journal of Comparative Law 331, p. 12.

(14)

4 Chapter 2. Theoretical Foundation shared ideas regarding these systems. Therefore, the definition of the rule of law is mostly a formal one.3

Such a formal definition typically contains three elements. The first is govern-ment of laws. It entails that state power must not be exercised in an arbitrary man-ner. From this, a few principles derive. Laws must be clear and accessible, meaning there must be legal certainty. The second element is the supremacy of the law which entails that the sovereign is not exempt from the law. As a third element, all people are to be seen as equal before the law.

What has furthermore been observed in practice is that human rights are added as an element of the rule of law in a substantive way.

Even if the formal and substantive aspects of the international rule of law can be defined somewhat clearly, the question remains as to what makes it international. Three alternatives are put forward. First, it can be taken to mean international in the most literal sense of between nations. This can also extend to other subjects of international law but in essence means that the rule of law should be observed in the international relations between states. Second, it could mean that international law has supremacy over national law. That would favor more comprehensive legal regimes such as human rights law or the EU’s law and would be more likely to entail substantive elements. In the third place, it could be seen as a global rule of law that governs individuals directly rather than states.4

Overall, the international rule of law seems to be seen as applicable mostly be-tween states. In the context of this thesis, however, it is also relevant to look at the other interpretations. This is justified and necessary because, first of all, the EU and AU, by setting up the Partnership on Mobility, Migration and Employment, have clearly agreed to safeguarding the rule of law and introducing it into states’ legal systems. This entails a set of values and principles they agreed upon in the diverse frameworks that will be discussed below. A part of that consist in human rights. While it would go too far to claim that supremacy of international human rights law is claimed by the participating states, the idea of this in more theoretical terms should still be assessed. In the third place, the AU and EU have made efforts to include civil society into the frameworks. While this does again not mean that the notion of a global rule of law has thereby been accepted, it warrants closer reflection on that point.

Furthermore, it is necessary to determine how the formal aspects of the rule of law as described above can be translated to the international level. Of special importance here is the notion of the government of laws. It entails that power is exercised in a non-arbitrary manner. In the area of international law, this means further codifying law and strengthening the process of how law is created at the international level.5 Supremacy of the law in the sense of its applicability to the sovereign is less impor-tant and applicable to the international legal order to the extent that there exists no supranational order.6 The third element of equality before the law means that sub-jects of the law should be treated equally before it. However, it is not clear whether that entails the treatment of states or individuals, or even both. This also depends

3_{Chesterman (see n.}₁_{) p. 15.} 4_ibid._{, p. 32.}

5_ibid._{, p. 36.} 6_ibid._{, p. 37.}

(15)

that of equality before the law will be of central importance. The notion of govern-ment of laws is used in order to argue that the codification and creation of interna-tional law is important when exercising power. This is the case because the exercise of power influences people’s lives as well as the domestic legal, social, and economic systems and as such should be subject to clear rules that guarantee legal certainty for both the states as well as their people. Equality before the law is here seen to mean an equality between states. Since the Partnership claims to be a partnership between countries, they should be equal in terms of the law.

Overall, the international rule of law as understood for the purposes of the thesis is mostly a formal concept relying on the elements of the government of laws and equality before the law. One substantive element that is emphasized within the Part-nership on Mobility, Migration and Employment is the importance of human rights. Therefore, they will also play a role in the further analysis. Furthermore, there are three different ways of interpreting the international aspect of the rule of law. One is that it applies only between states, the second entails that there is supremacy of international law over national law, and the third assumes a global application of the rule of law which governs individuals directly. Elements of all of these will be considered for the purposes of this thesis.

2.2 The PMME: A Policy Framework in Context

In this section, the object of the analysis will be briefly described, namely the Partner-ship on Mobility, Migration and Employment. The partnerPartner-ship is a complex policy cooperation framework that sits at the crossroads of many other policy frameworks, most notably the Joint Africa-EU Strategy and the Khartoum and Rabat processes on mobility and migration. These are likewise policy frameworks and like the Part-nership on Mobility, Migration and Employment, they do not build on international law. Due to the complexity of the frameworks, a closer look at their setup is war-ranted.

There are several policy frameworks in which the Partnership on Mobility, Migration and Employment is embedded. Two broader approaches can be distinguished. On the one hand, there is the level of cooperation which includes more formal processes and mechanisms. On the other hand, there are instruments regarding the content of the Partnership, namely mobility and migration. The first approach is the one of the Joint Africa-EU Strategy, whereas the other approach contains frameworks such as the Khartoum and Rabat processes. These two approaches will be summarized in turn below.

The first wider framework mentioned is the Joint Africa-EU Strategy. It offers a framework for strategic meetings and cooperation at the continental level, meaning between the EU and the AU. Before the JAES, there were already several frameworks and mechanisms for cooperation. In 2000, the Cairo summit took place, yielding four processes for cooperation. Besides the Cotonou Partnership Agreement between the EU and countries of the Caribbean, Pacific, and Africa, the Euro-Mediterranean Part-nership which is now part of the European Neighborhood Policy, and the Trade and

(16)

6 Chapter 2. Theoretical Foundation Development Cooperation with South Africa, there was an EU Strategy for Africa that shaped the later JAES.8However, this Strategy for Africa was criticized for be-ing one-sided and puttbe-ing the EU in a donor position. Therefore, the JAES was con-ceptualized as a real partnership between equal partners.9_{The JAES was launched at}

the Lisbon summit 2007 and contained four main objectives. The first was to create a political partnership in order to deal with common issues. Secondly, the strength-ening of peace, democracy, security, and other values as well as the promotion of the Millenium Development Goals formed an objective. In the third place, there was the objective to promote effective multilateralism, and lastly, to focus the partnership on people.10_{The way the partnership is intended to function is through the}

implemen-tation of short term action plans.11;12In this framework, migration and mobility are dealt with through the Partnership on Mobility, Migration and Employment. Fol-lowing several AU-EU summits, the Partnership was adopted in 2007.13

The migration policy framework has several levels. The first level is the level of political dialogue between European and African countries. This corresponds mostly to action undertaken previous to the introduction of the JAES. The second level framework includes the EU and the AU with their respective Member States and is the level at which the Partnership is situated. It is also referred to as the continental level.14 The third framework consists of European states and African subregional groups. This is mostly dealt with through the European Neighborhood Policy from a European point of view.15 The subregional level corresponds to the Rabat and Karthoum processes covering the countries along the western and east-ern migration routes.16 Furthermore, there is bilateral cooperation between the EU and individual countries, for example in the form of mobility partnerships.17On the level of regional cooperation, also referred to as subregional cooperation, there are Ministerial Conferences known as the Rabat Process. A Ministerial Conference was held in Rabat in 2006, yielding an action plan that comprises concrete actions on five migration-related groups. These are a cooperation effort between the EU and countries of the western migration route. A second Ministerial Conference in Paris in 2008 yielded a non-binding three year cooperation program.18 Building on the Rabat outcomes, there was a Ministerial Conference in Tripoli in 2006 which yielded the Tripoli declaration that identifies nine key migration cooperation areas. This declaration was followed up by the JAES and the PMME is intended to implement the Tripoli declaration.19At the EU-Africa summit in 2014 in Brussels, a Joint Dec-laration on Migration and Mobility was adopted alongside a new Action Plan for 2014-2017 and at the 2015 Valletta Summit on migration, an Action Plan and a po-litical declaration were adopted. Furthermore, the Karthoum process was launched at a Ministerial Conference in Rome in 2014. It is a cooperation between the EU and

8_{Jack Mangala, "Africa and the European Union: A Strategic Partnership" (Palgrave Macmillan 2013)}

pp. 16-18.

9_ibid._{, p. 19.}

10_{Africa and the EU, "The Africa-EU Strategic Partnership" (2007) II.} 11_{Mangala (see n.}₈_{) p. 23.}

12_{"The Africa-EU Strategic Partnership" (see n.}₁₀_{) I.2.} 13_{Mangala (see n.}₈_{) p. 195.}

14_{European Commission, ‘"The European Union’s cooperation with Africa on migration"’ (2015)}

hhttp://europa.eu/rapid/press-release_MEMO-15-4832_en.htmi.

15_{Mangala (see n.}₈_{) p. 206.}

16_{European Commission, ‘"The European Union’s cooperation with Africa on migration"’ (see n.}₁₄_). 17_ibid._.

18_{Mangala (see n.}₈_{) pp. 204-205.} 19_ibid._{, pp. 205-206.}

(17)

tinental level with the Partnership on Mobility, Migration and Employment. These intersecting frameworks form the subject of this thesis.

(18)

(19)

Chapter 3

The Partnership on Mobility,

Migration and Employment as a

Problematic Policy Framework

The current chapter has the aim of showing some of the problems created by the Partnership on Mobility, Migration and Employment and to analyze them in light of the international rule of law. The argument that this chapter is going to bring forward is that the Partnership is in conflict with the international rule of law in sev-eral regards. A few conceptual distinctions are necessary to be kept in mind when analyzing the Partnership. First of all, there is the distinction that needs to be made between the Partnership as such, taking place at the international level, and the re-sults that it yields at lower levels, namely at the EU, AU, and national levels. The chapter will be divided accordingly, starting at the national level with an example of human rights violations arising within the context of the Khartoum process in Sudan. The relevant framework for analysis will be the substantive element of the international rule of law that is made up of human rights. The interpretation of the rule of law in this context is of a the supremacy of the international rule of law, assuming that international human rights should be superior to domestic law. Sec-ondly, the EU Global Approach to Mobility and Migration will be analyzed. This Global Approach is a policy framework that forms part of the EU’s external policies and while preceding the Partnership on Mobility, Migration and Employment, uses it as the relevant framework for implementation. The Global Approach, however, still shows signs of imposing policies on the AU, signs that are found back in the Partnership itself as well. As such, the analysis will focus on whether this is in line with equality before the law in the understanding of the international rule of law as applicable mostly between states and subjects of international law such as the EU and AU. In the third place, the Partnership structure more in general will be as-sessed from the standpoint of the international rule of law. In that broader analysis, the question of equality of states and the AU and EU will return but there will be a greater emphasis on the question whether the Partnership is in line with the princi-ple of government of laws. Given the impact it has on peoprinci-ple’s lives, as evidenced by the problems that arise in Sudan as well as the sensitive nature of the issue of mobility and migration more generally, is it justifiable that the Partnership does not have a legal status under international law? This analysis will take the starting point of the international rule of law having a global function, meaning that it can have an impact on individuals. Finally, the chapter will be wrapped up with a brief conclu-sion as to whether the Partnersip on Migration, Mobility and Employment is in line with the international rule of law.

(20)

10 Chapter 3. The Partnership on Mobility, Migration and Employment as a Problematic Policy Framework

3.1 Sudan and a Substantive International Rule of Law

This section focuses on the consequences that can arise from the Partnership on Mo-bility, Migration and Employment and its implementation into policies and laws at the national level. The case analyzed in the following concerns legislation imple-mented by Sudan based on the goals of the Khartoum process. While the framework contains principles aimed at safeguarding human rights, the legislation passed by Sudan is contradictory with human rights. In order to analyze this issue from the standpoint of the international rule of law, the problems that arose in Sudan will first be laid out before they are related back to the rule of law and the framework of the Partnership on Mobility, Migration and Employment.

As was briefly explained above, the Khartoum process is one of the policy processes for mobility and migration and it intersects with the framework of the Joint Africa-EU Strategy. The Partnership on Mobility, Migration and Employment is accord-ingly influenced by the process. Whereas the Partnership is set at the intercontinen-tal level, however, the Khartoum process reaches down to the national level as well. Accordingly, states make legislation in order to implement the aims of the Khar-toum process. Such legislation was made by Sudan. Specifically, it adopted laws on asylum regulation and the combating of human trafficking between 2014 and 2015.1 While they can be seen as an improvement on Sudan’s preceding legislation in those areas, they still contain several problems in terms of international human rights law. In the Asylum Regulation Act that was adopted in 2014, for example, the freedom of movement of asylum seekers is restricted. Furthermore, it lacks judicial guarantees.2 That means that decisions cannot be challenged in front of a judge. In the legisla-tion on the combating of human trafficking, the death penalty is imposed for crimes that include crimes other than ’serious crimes’. According to international law, how-ever, only serious crimes may be punished with the death penalty.3 _{Another issue}

is that it is not fully foreseen in non-refoulement.4 These shortcomings in the legisla-tion are symptomatic of shortcomings of the legal system of Sudan more broadly. There is insufficient access to legal remedies and a lack of judicial processes.5_There

is furthermore no protection for witnesses or victims of human trafficking.6Overall, Sudan seems to have acted contrary to the Refugee Convention that it is part of, and it lacks more comprehensive legislation in areas such as migration.7 _{One problem}

that has been observed in practice is that victims of trafficking were often identi-fied as such but at the same time punished for crimes like immigration violations.8 What is problematic, then, is the fact that the Khartoum process relies on a state’s system that functions based on the rule of law.9 Sudan, however, clearly does not, and cannot simply, fulfill the criteria demanded by the process.

These problems highlight several issues with the rule of law at the level of the national policies but also with the Khartoum process at the international level. The

1_{Lutz Oette and Mohamed Abdelsalam Babike, ‘"Migration Control a la Khartoum: EU External}

Engagement and Human Rights Protection in the Horn of Africa"’ (2017) 36 Refugee Survey Quarterly 64, p. 76. 2_ibid._{, p. 76.} 3_ibid._{, p. 76.} 4_ibid._{, p. 76.} 5_ibid._{, p. 77.} 6_ibid._{, p. 78.} 7_ibid._{, p. 78.} 8_ibid._{, p. 82.} 9_ibid._{, p. 77.}

(21)

tions with regard to the equality of the countries involved in the process. These issues will, however, be treated in detail below. This section serves to highlight problems of a substantive nature. As it was laid out in the previous chapter, the rule of law often contains substantive elements. One such example for a substantive element is the international human rights regime. The way in which its function is interpreted at the international level for the purposes of this thesis is that it is su-perior to domestic legislation. As such, human rights as a substantive element of an international rule of law are meant to safeguard the application of the human rights regime not only between states but also within them since international hu-man rights can directly apply to individuals. As is evident, Sudan is not able to safeguard that aspect of the international rule of law. This is furthermore closely related with its inabilitiy to safeguard other, more formal, aspects of the rule of law, such as government of laws. This, in turn, is not only Sudan’s shortcoming but is inherent in the framework of the Khartoum process. Human rights are meant to safeguard rights of individuals. The Khartoum process, on the other hand, was set up as a policy framework between states and with involvement of the EU and AU. Accordingly, their respective interests were focused on more, and the interests of those affected, for example migrants or victims of trafficking, were hardly consid-ered.10Furthermore, human rights are not part of the Khartoum process in the sense that they do not form part of the process at the international level.11 While human rights are being advocated alongside the rule of law in the Khartoum process, this is clearly not a principle that is likewise safeguarded at the international level. As to the Partnership on Mobility, Migration and Employment, there are also no provi-sions ensuring that human rights are safeguarded. Furthermore, since it forms part of the monitoring and implementation process of the Khartoum process, it clearly fails to remedy the issues with regard to human rights as discussed above. As such, the Partnership also falls short in the area of the substantive rule of law as far as the human rights aspect goes. This is especially problematic since the processes at the international level clearly expect there to be adherence to the rule of law by the states involved, thereby applying different standards at the international level than at the domestic level. However, without there being a comprehensive approach to the rule of law at the international level, it seems rather hypocritical to demand such at the domestic level.

Overall, the issues with human rights in Sudan show that there is a gap of expec-tations between the policy frameworks at the international level and the domestic level. This is in contrast with the rule of law, not only in the domestic setting, but furthermore with the rule of law at the international level. Clearly, the framework lacks the substantive safeguards demanded by the rule of law for protecting human rights. That, in turn, is connected to the other, more formal, aspects of the rule of law. These aspects and how they are connected will be treated in detail below. This section, however, has already given a glimpse at what problems the lack of elements of the international rule of law in the Partnership on Mobility, Migration and Em-ployment can mean for individuals.

10_ibid._{, p. 72.} 11_ibid._{, p. 72.}

(22)

12 Chapter 3. The Partnership on Mobility, Migration and Employment as a Problematic Policy Framework

3.2 The EU’s GAMM and Equality Before the Law

This section is going to highlight a different aspect of the rule of law that is problem-atic in connection with the Partnership on Mobility, Migration and Employment. The policy considered here is the EU’s Global Approach to Mobility and Migration. It is an EU policy framework but closely connected with the Partnership as well as the Rabat and Khartoum processes. The policy touches upon another element of the international rule of law in this context. The relevant element is the formal element of the equality before the law. The equality that is at stake here is between the states and the EU and AU in their international relations.12In the following, it will be as-sessed whether the EU’s approach is in line with the requirements of equality before the law.

The Global Aproach to Mobility and Migration forms a comprehensive approach by the EU that is aimed at addressing migration and mobility issues. As such, it covers different levels of cooperation, ranging from continent-to-continent cooper-ation through regional and bilateral approaches.13The Global Aproach to Mobility and Migration is the EU’s overarching policy framework in the area of mobility and migration policy with migration and mobility dialogues being the drivers of it.14In concrete terms, that means that dialogues such as the Partnership on Mobility, Mi-gration and Emploment or the Rabat process are seen as being part of the Global Aproach to Mobility and Migration in EU policy terms, and the instrument for EU migration policy to become external policy.15 The Global Aproach to Mobility and Migration is thus an approach for external migration and mobility policy and as such forms part of the EU’s foreign policy.16_{Overall, the migration and mobility}

di-alogues are thus explicitly seen as a means to externalize EU migration policy by the EU itself. The same is true with respect to the Khartoum process. There is a pre-sumption that the problems exist in the African countries of the partnership while the EU’s policies offer solutions. The framing of the Partnership on Mobility, Migra-tion and Employment reveals that same attitude. For instance, the 2011-2013 AcMigra-tion Plan contains several initiatives that are set out to be funded mainly by the EU in order to address problems in African states. A good example is Initiative 8 which is funded mainly by the EC Support Program and has as its aims to implement policies in the AU, such as the Migration Policy Framework for Africa.17_;18_{It furthermore}

in-cludes a strengthening of inter-regional labor mobility, thereby deflecting such flows of people towards the EU and containing it to Africa.19From the EU’s point of view, the political dialogues on mobility and migration taking place in the frameworks of Khartoum, Rabat, and the Partnership that are an important part of pillar one on legal migration and mobility of the Global Approach are thus to be an externaliza-tion of EU law and policy. An example for this is the EU Blue Card Directive on the mobility of highly skilled workers from third countries.20Overall, African states are assumed to be the ones that need to implement the commitments made at the

12_{Chesterman (see n.}₁_{) p. 15.}

13_{European Commission, "The Global Approach to Migration and Mobility" (Brussels, November}

2011) p. 2.

14_ibid._{, p. 4.} 15_ibid._{, p. 5.} 16_ibid._{, p. 5.}

17_{Thematic Partnership on Migration, Mobility and Employment, "Action Plan 2011-2013" (2013).} 18_{African Union, "The Migration Policy Framework for Africa" (Banjul, 2006).}

19_{"Action Plan 2011-2013" (see n.}₁₇_). 20_{COM(2011) 743 final (see n.}₁₃_{) p. 12.}

(23)

This is not only problematic in terms of the colonial past and imperialistic sen-timents associated with such an approach but it is furthermore problematic with respect to the international rule of law. As was previously stated, one of the crucial elements of the formal rule of law is the equality before the law. In the international rule of law, this can mean different things. For the purposes of this thesis, it is under-stood as the equality between the states involved in the partnership and in extension thereof the EU and AU. Equality is taken here to mean that all international laws are deemed to be applied equally to states. In the context of the policy frameworks, there is, of course, the caveat that most of the applicable regimes are purely policy and as such not law. While the same considerations are relevant for policies, here the analysis will be focused on actual legal provisions. One such example are EU readmission agreements. Readmission agreements are tools under international law that provide for the readmission of people into their country of origin. The criticism that has been raised with regard to the EU’s agreements with third countries has been that they are an externalization of EU security policy, effectively extending the EU’s borders to third countries to let them control that border for the EU.22As in the case of Sudan, this leads to problems regarding human rights that affect individuals but it is furthermore problematic for the countries. The burden of controlling the EU’s border is placed on them despite obvious disadvantages in funds, infrastruc-ture, and without regard to the interests of the partner countries.23 Quite opposite of safeguarding equality, the law is thus used to enshrine unequal relations and to create and maintain advantages of power for the EU. And this approach is not only in international legal instruments but can be found in the wider policy approach of the EU’s Global Approach to Mobility and Migration. Soft law tools such as the Partnership on Mobility, Migration and Employment, the Rabat and Khartoum pro-cesses or Mobility Partnerships with third countries all show signs of this one-sided approach in which the EU aims to follow its interests regardless of those of its part-ners, as seen in the Initiative 8.24This runs counter to the principle of equality before the law because it utilizes both legal and policy tools to sustain inequality. This in turn influences the partner countries’ capabilities, or lack thereof, to make interna-tional agreements that are both binding under law and safeguarding their interests in a sufficient manner. It furthermore undermines the development of a rule of law and a coherent human rights regime by putting too high a burden on partners in the interest of EU security.

As this section has shown, the policy frameworks are drafted in a way that enables inequality between the partners. The law that is contained in them has a similar function. From the EU’s standpoint, many of the policy mechanisms are actually EU foreign policy meant to act on the African partner countries, making them respon-sible for implementation and essentially for guaranteeing the EU’s security. This is not an approach that can be united with the rule of law since it does not guarantee

21_{Oette and Babike (see n.}₁_{) p. 75.}

22_{Georgia Papagianni, ‘"Forging an External EU Migration Policy: From Externalisation of Border}

Management to a Comprehensive Policy?"’ [2013] (15) European Journal of Migration and Law 283, p. 295.

23_ibid._{, p. 295.}

(24)

14 Chapter 3. The Partnership on Mobility, Migration and Employment as a Problematic Policy Framework that the participating partners are equal before international law. While it may be ar-gued that the countries are not rid of their sovereignty, the argument here is that this might be true in formal terms but less so in substantive ones. Furthermore, it can be argued that this inequality jeopardizes the domestic rule of law of the countries that find too high a burden placed on them. This leads again to the contradictory point where the lack of an international rule of law as a principle in the policy frameworks runs counter to the aim of promoting a domestic rule of law.

3.3 The PMME and Government of Laws

This last section of the chapter treats the arguably most important issue. It focuses on the Partnership on Mobility, Migration and Employment in broader terms and takes the stance that the overarching problem in terms of the rule of law lies with the principle of government of laws. Government of laws entails that there should be laws that govern the exercise of power.25 As has been seen above, power is ex-ercised within the policy frameworks and it has an impact on people. As such, so the argument here, it should be governed by laws. As has also been seen, however, the frameworks rarely produce law, especially not at the international level. In the following, the argument will be developed as to why it is contrary with the interna-tional rule of law that the policy frameworks are not embedded within law and the link will be laid with the issues discussed in the previous sections.

As has been mentioned repeatedly, the Partnership on Mobility, Migration and Em-ployment offers a continent-to-continent platform for dialogue. This takes place within the framework of the Joint Africa-EU Strategy that offers an overall plat-form for dialogue and cooperation between the EU and the AU including its mem-bers. There are regular summits to develop action plans that are to be implemented at lower levels. These action plans are informed by related policy processes.26 For the issues of migration and mobility, the processes most relevant are the Rabat and Khartoum processes. They form policy frameworks for different levels and meet the Partnership on Mobility, Migration and Employment at the continental stage. The flexibility in incorporating other policy processes under the Joint Africa-EU Strategy means that it can work as a broad, all-encompassing framework. The Joint Africa-EU Strategy thus offers an institutional setting within which different institutions from the AU and EU can meet and cooperate structurally.27 _{What all of these}

pro-cesses have in common is that they focus on creating soft law. They are not founded on treaties and do not possess international legal personality beyond that of their members.28_{Furthermore, they often do not translate into law at the levels of the EU}

and AU or at national levels. Rather, they inspire further policies at those levels. It seems as though the cooperation aims at implementing policies in Africa with the help and funding of the EU.29 _{EU policies that are found within the framework are}

presented either as EU policies that are being externalized, or they are inspired by the Partnership on Mobility, Migration and Employment but still take effect mainly outside the EU. Thus, while officially being a partnership instead of an EU policy towards Africa, the content of the Joint Africa-EU Strategy and Partnership on Mo-bility, Migration and Employment especially still suggests that the responsibility for

25_{Chesterman (see n.}₁_{) p. 15.}

26_{"The Africa-EU Strategic Partnership" (see n.}₁₀_). 27_ibid._.

28_{Eric Pichon, "ACP-EU relations and the Joint Africa-EU strategy" (November 2017).} 29_{"Action Plan 2011-2013" (see n.}₁₇_{) see Initiative 8.}

(25)

One of the policies that resulted from the initiatives on migration and mobility is the AU Migration Policy Framework for Africa.30 As the title suggests, this Frame-work is a policy frameFrame-work. As such, it is not binding on the Member States, and there are furthermore no centralized priorities or mechanisms for evaluation avail-able.31 Involvement by the UN or other international organizations in support of these is, however, a possibility.32 It is, however, again emphasized that the frame-work cannot legally bind the Member States nor force them into any legally binding agreements.33The issues touched upon are labour migration, border management, irregular migration, forced displacement, internal migration, migration data, mi-gration and development, inter-state and interregional cooperation as well as other social issues.34Each of these topics comes with a set of recommended strategies. In the field of diaspora outreach, for example, there are strategies specifically proposed for remittances. These strategies entail both policies directed at the institutional side of remittances, for example post offices and banks, and also at the people of the diaspora.35

In terms of the principle of government of laws this offers several problems. This principle entails that the governments are subjected to law and that power shall be exercised in a manner that is not arbitrary.36 Internationally, that means that there should be law governing the states’ conduct and for the policy cooperation that means that this should be governed by laws as well. The reasoning for this is quite simple. As the examples above have shown, the policy cooperation results in the exercise of power. On the one hand, the EU exercises its power to impose crite-ria on African states that they need to adhere to, thereby forcing them to agree to terms they cannot fulfill. On the other hand, the policies are translated into policies and laws that impact on individuals. The examples for such policies are numerous, such as productivity capacity development for companies or the development of a Pan-African University.37 This is where the importance of non-arbitrariness comes to the fore. As the example of Sudan has shown, the policies set out in the Karthoum process were translated into policies that were conflicting with human rights law.38

Individuals should, however, be able to rely on certain laws. Within the context of the Partnership on Mobility, Migration and Employment, however, there is no guar-antee that policies will be implemented and no guarguar-antee as to how they will be implemented. That has as a consequence that there is neither a prohibition of an implmentation of policies that run counter to human rights law nor is there a guar-antee that rights and protective measures will be implemented and turned into law. Overall, thus, power resulting from an international partnership is exercised with-out there being a guarantee of legal certainty. This is furthermore aggravated by the fact that the policies are made at an overarching level over which individuals have

30_{Africa-EU Partnership, ‘"Migration and Mobility"’ •>1800 (•) h}_{https : / / www . africa eu} partnership . org / en / areas cooperation / migration mobility and employment / migration and -mobilityi.

31_{EX.CL/276 (IX) (see n.}₁₈_{) p. 2.} 32_ibid._{, p. 2.}

33_ibid._{, p. 7.} 34_ibid._. 35_ibid._{, p. 33.}

36_{Chesterman (see n.}₁_{) p. 15.} 37_{"Action Plan 2011-2013" (see n.}₁₇_). 38_{Oette and Babike (see n.}₁_).

(26)

16 Chapter 3. The Partnership on Mobility, Migration and Employment as a Problematic Policy Framework little to no influence. Especially due to the sensitive nature of the issue of migra-tion and mobility, there is a strong need for translamigra-tion of the partnership into law instead of mere policy, and for an international treaty regime offering legal remedies. As a whole, the partnership raises many issues with regard to the rule of law. They all culminate, however, in the overarching problem of the lack of any legal instru-ments regulating the partnership and setting out the guiding principles. As a result, human rights are set aside, and there is no certainty for individuals that rights will apply nor that the implementation of policies will follow fundamental laws like hu-man rights law. Nevertheless, policies are made that result in an exercise of power by state governments. This lack of a guarantee to non-arbitrary exercise of power is not in agreement with the principle of the government of laws. On another level, the EU is exercising power over African states by imposing its interests on them. This is not governed by laws setting out a legal framework within which the part-nership can take place. This is therefore also not in alignment with the principle of the government of laws.

3.4 The Partnership in Conflict with the International Rule

of Law

In this chapter, different aspects of the Partnership on Mobility, Migration and Em-ployment have been assessed against the question of whether they are compatible with an international rule of law. This has been done by taking different aspects of such an international rule of law in order to demonstrate problems within the Part-nership. In the first part of this chapter, the aspect of a normative rule of law has been highlighted. It has been taken here to mean human rights. As was shown, the Partnership does not contain human rights guarantees for individuals and no legal obligations for countries to implement policies in adherance of human rights. The substantive criterion of human rights is thus not guaranteed within the Partnership policy framework. Secondly, the issue of the EU’s unbalanced exercise of power over African states was highlighted. The EU perceives the Partnership as a foreign policy tool rather than a fully fledged partnership on an equal footing. As such, it uses African countries to make deals with them that essentially entail safeguarding the EU’s security interests while putting the costs largely on the third countries that enter into such agreements.39;40This enshrines power imbalances without providing legal guarantees or remedies and a legal framework. Not only does this violate the substantive requirement of human rights guarantees, but it also jeopardizes equality of the participating countries before the law. As a third element, the government of laws has been discussed. This element is an overarching issue that connects to the equality before the law and the lack of a human rights guarantee. The main problem with the Partnership on Mobility, Migration and Employment is namely the absence of a legal regime governing the exercises of power that can lead to human rights violations and inequality. This is furthermore visible on different levels. Both indi-viduals and states can be affected by these shortcomings. Overall, thus, this chapter has argued that the main issue is the lack of laws at the basis of the Partnership. This is an issue because it involves sensitive political areas and results in actual exercise of power that impacts on people’s lives without being governed by laws. This then leads to the conclusion that a legal basis is needed for the Partnership. What form

39_{Oette and Babike (see n.}₁_).

(27)

(28)

(29)

Chapter 4

The Cotonou Agreement as a

Solution?

In this chapter, a closer look will be taken at the Cotonou Agreement. The Cotonou Agreement is an international treaty regime set up between the ACP countries of Africa, the Carribbean, and the Pacific, as well as the EU. It covers varying issues that will be set out more in detail below and has been put forward as a potential framework for cooperation between the EU and AU that could incorporate the Joint Africa-EU Strategy including the Partnership on Mobility, Migration and Employ-ment.1In this chapter, the focus will be put on the question whether such an incorpo-ration of the Joint Africa-EU Strategy into the Cotonou Agreement could remedy the problems in terms of the international rule of law as identified in the previous chap-ter. To that end, it will briefly be laid out what the Cotonou Agreement consists of and what the legal framework looks like. Subsequently, it will be analyzed whether this framework can offer sufficient remedies to the problems of the Partnership. For this, the three focus points of the substantive aspect of human rights as well as the two formal criteria of the government of laws and the equality before the law will be taken up again. They will be the guiding points for reaching a conclusion on the question whether an incorporation of the Partnership into the Cotonou Agreement would provide sufficient rule of law guarantees.

4.1 The Cotonou Agreement

The Cotonou Agreement is an international treaty that was set up between the then European Community and its Member States as well as the Member States of the ACP.2_{The aim is to promote economic, cultural, and social development in the ACP}

states.3 To that end, a legally binding system has been set up adhering to the prin-ciples of equality of partners and ownership as well as participation of civil soci-ety.4_{An important part is furthermore given to political dialogue at the international}

level.5The agreement also comes with an institutional setup consisting of a Council of Ministers, a Committee of Ambassadors, and a Joint Parliamentary Assembly.6 The Approach taken in order to achieve the aims of the Cotonou Agreement is to

1_{"ACP-EU relations and the Joint Africa-EU strategy" (see n.}₂₈_).

2_{ACP Group and the European Community, "PARTNERSHIP AGREEMENT between the members}

of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000" (2000) Art. 1.

3_ibid._{, Art. 1.} 4_ibid._{, Art. 2.} 5_ibid._{, Art. 8.} 6_ibid._{, Art. 14.}

(30)

20 Chapter 4. The Cotonou Agreement as a Solution? support local efforts for development.7_{The three pillars that make up the Cotonou}

Agreement are developmental cooperation, political cooperation, and economic and trade cooperation.8 The agreement is thus not concerned with mobility and migra-tion as main issues but it does include an article setting out a dialogue on migramigra-tion.9

In 2010, the agreement was revised to incorporate topics such as the Millenium De-velopment Goals, climate change, and security. Furthermore, the range of actors of the agreement was extended to include inter alia national parliaments and civil society actors.10

Due to its legal framework and institutional structure, a merger of the Cotonou Agreement with the Joint Africa-EU Strategy was proposed by the European Par-liamentary Research Service in 2017.11 That could entail integrating the Strategy into the Agreement as one of the pillars. This would then elevate the Joint Africa-EU Strategy from in inter-continental policy cooperation to part of an international agreement with a more comprehensive institutional structure. This incorporation could, of course, take different forms. For the purposes of this thesis, the focus lies on the Partnership on Mobility, Migration and Employment and rather than to speculate on how the incorporation could look like, the question will be focused on whether the existing Cotonou framework provides solutions to the problems of the Partnership on Mobility, Migration and Employment in terms of the rule of law.

4.2 Remedying the Problems of the Partnership?

As was briefly laid out above, the Cotonou Agreement is an international treaty that creates a legal framework for cooperation between the European Union and the states of the ACP. Since it has been proposed to merge the Joint Africa-EU Strategy and the Cotonou Agreement, the question is whether the Agreement can provide for fixes to the problems that the Partnership on Mobility, Migration and Employ-ment has in terms of the rule of law. The problems have been set out in the previous chapter and include different levels of analysis. The first problem treated was that the Partnership did not include a human rights framework as a safeguard for the substantive rule of law. Thereby, the implementation of certain aims of the Khar-toum process as covered by the Partnership ran counter to human rights and even entailed that individuals were punished for mobility crimes because they were vic-tims of human trafficking in Sudan. A second example was the inequality that arises from the Partnership’s imbalance of power. The EU has strong security interests in the African partner countries and thus uses its power to stipulate agreements that put burdens on the partners that they cannot possibly take. This is evidenced by Sudan’s handling of human rights but also by the inability of countries that came to bilateral agreements with the EU in effectively controlling the borders and enforc-ing the policies agreed upon. As has been concluded above, these issues are related to, and enhanced by, the third point which is the absence of a legal framework to

7_{"PARTNERSHIP AGREEMENT between the members of the African, Caribbean and Pacific Group}

of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000" (see n.2) Art. 20.

8_{European Commission, ‘"ACP - The Cotonou Agreement"’ (2018) h}_{https : / / ec . europa . eu /} europeaid/regions/african-caribbean-and-pacific-acp-region/cotonou-agreement_eni.

10_{European Commission, ‘"ACP - The Cotonou Agreement"’ (see n.}₈_). 11_{"ACP-EU relations and the Joint Africa-EU strategy" (see n.}₂₈_).

(31)

with regard to the rule of law. In this chapter, it is analyzed whether the Cotonou Agreement can provide this legal framework and thereby the solution to the prob-lems set out. To this end, the three elements of human rights, equality before the law, and government of laws will be assessed for the Cotonou Agreement respectively.

4.2.1 Cotonou and Human Rights

The first question is whether the Cotonou Agreement is in line with the substantive element of the international rule of law that is human rights protection. Therefore, the treaty text will be consulted and an assessment made as to whether this element is safeguarded in the Agreement. This will then be used to briefly discuss whether that would offer a solution in the context of the Partnership on Mobility, Migration and Employment and whether it could effectively deal with the human rights viola-tions that arose in Sudan in this context.

In the pre-amble to the agreement, the parties acknowledge that the aims need to be pursued in an environment that is inter alia founded on the respect for human rights and the rule of law. However, it is likewise said that the responsibility for the creation of this environment rests primarily with the states. On the other hand, the agreement also foresees in political dialogue on these issues at the international level.12 Human rights and the rule of law are furthermore included as essential el-ements of the agreement as such, as well as the legal orders in which it is to take effect.13There is furthermore an emphasis on the impact that human rights have on individuals.14 On the specific point of migration dialogue, it was provided that in-ternational human rights law needs to be respected.15Compared to the Partnership on Mobility, Migration and Employment, the content of mobility does not go much further than political dialogue either. There are, however, some nuances that are of importance. For one, the rule of law is a condition for political dialogue. Secondly, the dialogue framework as a whole takes place within a legally binding framework. Regarding the first point, it is not specified what is meant by the rule of law. How-ever, since the adherence to human rights is likewise made conditional, it can be seen as a substantive addition to the rule of law without leaving it open to states’ interpretation to that effect. In that regard, this can be seen in two ways. On the one hand, it means that every member state is obliged to respect human rights when executing its duties under the agreement. On the other hand, it also means that a burden is yet again placed on countries to provide for an environment that respects human rights and the rule of law; a burden that may very well be too high to bear. This, in turn, has two consequences. First, it means that the burden might be ele-vated by the fact that it is an obligation that is made part of the agreement and as such legally binding. The danger that this legally enshrines inequalities is very real and shall be subject of the following section. The other consequence is the other side of the coin, namely the fact that by enshrining human rights and the rule of law as a condition in a treaty, there may be certain remedies available in case of a

of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000" (see n.2) Art. 8(4).

13_ibid._{, Art. 10.} 14_ibid._{, Art. 9.} 15_ibid._{, Art. 13(1).}

(32)

22 Chapter 4. The Cotonou Agreement as a Solution? breach. It should be kept in mind, however, that this does not automatically entail that individuals will have remedies available. This is especially relevant in the case of human rights violations as found in Sudan. If Sudan were to act contrary to the human rights obligations, responsibiltiy of Sudan could arise at different levels, in-cluding vis-a-vis the other parties to the Cotonou Agreement. While it might not provide a direct remedy to individuals, it would offer more pressure on Sudan to keep its human rights obligations in mind.

Overall, the agreement does thus not offer a guarantee that human rights will not be violated but it offers more protection to individuals. This is not the case in a very direct sense but is largely connected to two factors that will be treated in the following. The first factor is the increased pressure put on states, not merely through the political power as voiced in the dialogues, but also in legal terms. The second factor is connected to international treaty law and the fact that, as an international treaty, the agreement has a wider supporting net of laws and legal frameworks. As such, laws governing international treaties are applicable to the cooperation, offering an additional layer of guarantee for the states and their citizens.

4.2.2 Cotonou and Equality

This section seeks to address the question of whether the Cotonou Agreement can help towards a more balanced approach to organizing dialogue and policy making as well as legislation. The balance that should be striven towards is a more equal distribution of power and more equality in how interests are taken into account and safeguarded so as to make sure that the principle of equality is not violated. There-fore, the Cotonou text will be referred to in order to compare it to the Partnership.

Importantly here, the equality refers to equality between states, not the equal-ity of individuals. This equalequal-ity between the partners of the agreement is explicitly named as a fundamental principle alongside ownership of development.16The same article also mentions mutual obligations of the partnership states, meaning there will be obligations for both the EU and the ACP countries. Article 4 setting out the ap-proach to the partnership builds on that, emphasizing the sovereignty of the ACP states alsongside the element of ownership of the strategies.17Furthermore, both the provision on political dialogue as that on migration emphasize the partnership na-ture of the agreement, meaning that both EU and ACP states’ interests must be taken into account equally.18When compared with the Partnership on Mobility, Migration and Employment, the general tone is not very different. As the name suggests, the Partnership is meant to be a partnership on equal footing, and the wider framework of the Joint Africa-EU Strategy was set up on the basis of trying to achieve equal-ity between Africa and Europe as partners. The African Institute for Remittances is an example for a policy project that aims at stimulating development within Africa by allowing for a better regulation of remittances.19On the other hand, the Partner-ship still has a very imbalanced way of functioning. And the Cotonou Agreement is potentially vulnerable to these issues as well. One example is that the EU’s for-eign policy aims at securing its own borders abroad by coming to agreements with

17_ibid._{, Art. 4.}

18_ibid._{, Art. 8(4), 13(2).}

19_{African Union, ‘"The Establishment of an African Institute for Remittances (AIR) Organized Jointly}

With the World Bank."’ (2012) hhttps : / / au . int / en / newsevents / 28052 / establishment african -institute-remittances-air-organized-jointly-world-banki.

(33)

these notions, it also places a burden on many African states that is higher than the burden on European states that profit from such an order and can afford to delegate problematic tasks to third countries. As was briefly touched upon in the previous section, the Cotonou Agreement also specifically mentions that creating such an en-vironment is the task of each country, thereby presupposing that an efficient legal system must already be in place. The fact that the agreement is an international treaty raises this to the status of an international obligation. For states that have issues with enforcing human rights effectively, such as Sudan, this can mean that the country is in breach of another international treaty when it fails to provide the environment presupposed by the Cotonou Agreement. This is thus not very likely to improve the situation. Furthermore, if the EU manages to use its power to its advantage and actually enshrine its interests in an international treaty, that could be even worse for the partner countries. On the other hand, an international treaty is built on the sovereignty of states and taking sovereignty seriously is a fundamental step towards safeguarding equality.

Overall, it can thus be said that the Cotonou Agreement follows similar objec-tives as the Partnership in providing for equality. Legally, it is enshrined in the treaty and mentioned as a fundamental principle. On the other hand, the Partnership also does not deny sovereign equality but still has the effect of putting the EU at an ad-vantage. Laying this down in legal terms may then have the effect of enshrining this imbalance of power in international law. Practically, there is nothing to prevent this, since other treaties and organizations as the United Nations embody such im-balances as well. It is, however, an issue touching on the nature of sovereignty that is worth debating further but too much to discuss in this thesis.

4.2.3 Cotonou and Government of Laws

The third issue that arose in the context of the Partnership on Mobility, Migration and Employment was the fact that it is not an international treaty but a mere policy framework, meaning that there are no guarantees involved for individuals or states because of the absence of legal obligations. This is in need of being remedied because of the sensitive issue of mobility and migration but also because of the notion of government of laws that stipulates that every exercise of power by a government must be governed by the law.

As such, the simple conclusion would be that any laws are necessarily better than no laws, which is of course not true. There are, however, advatanges that come with a legal framework, and certainly when viewed from the point of view of the rule of law. The biggest difference between the Cotonou Agreement and the Partnership on Mobility, Migration and Employment in those terms is not the political nature of the endeavour but the existence or absence of a legal framework governing this. The Cotonou Agreement contains political dialogue much like the dialogue foreseen in the Joint Africa-EU Strategy. It furthermore deals with migration through dialogue, as does the Partnership on Mobility, Migration and Employment. The difference lies in the fact that the institutional structure and the principles forming the basis for the cooperation are laid down in an international treaty. To this treaty, international law such as the Vienna Convention on the Law of Treaties can be applied. Further-more, it sets out certain principles that all the parties need to abide by. Ultimately, it

EU-Africa Policy Cooperation in a Legal Perspective: Does The Lack of a Legal Framework for the Joint Africa-EU Strategy Violate Principles of the International Rule of Law?