The Informal Turn: Soft Law Regulatory Frameworks in EU External Relations?

The use of soft law in the external dimension of EU migration law has become particularly visible recently. However, this might be a sign of a more general path to soft regulation undertaken by the EU in external affairs. Through a survey of Memoranda of Understanding from 1974 to 2019, Ilaria Ronconi and Salvo Nicolosi explain that the EU has been increasingly relying on soft law arrangements, but its use differs across various policy areas,  with major risks for the constitutional fabric of EU law, especially in the area of migration.

Ilaria Ronconi is an LLM student in European Law at Utrecht University.
Salvo Nicolosi is a RENFORCE Senior Researcher and Associate Professor in European and International Law at Utrecht University Law School.

Soft law arrangements have become a distinct feature of the external dimension of European Union (EU) migration law. Nonetheless, this does not seem to be an isolated case: soft law has long been used to govern relations between the EU and third countries, but it has gained greater prominence in recent years due to the increasing politicisation of the issues it seeks to address through instruments such as Memoranda of Understanding. This post will reflect on the recent turn concerning the use of soft law in external relations, inquiring as to whether this shift towards soft law is present in other fields of EU law and policy, if so in what capacity, and how its use differs from its use in migration law.

Soft law in EU external relations

Alongside international agreements, normally based on Article 218 TFEU, the EU makes use of an array of soft law instruments while carrying out external relations with international organisations or third countries in various policy areas. These ‘soft’ instruments are mostly defined by their non-legally binding character for the parties. Therefore, they do not fall under the general definition of international agreements provided by the Court of Justice of the EU, which designates them as ‘any undertaking entered into by entities subject to international law which has binding force, whatever its formal designation’.

Soft law in external relations is often used for politically sensitive and technically complex issues. It tends to concern either political commitments or administrative arrangements but can also serve more than one purpose, by targeting political, procedural and diplomatic issues. Soft law instruments can take many different forms Soft law is overall estimated to account for 13 per cent of all EU law and there is no reason to assume that this percentage is any lower in the area of external relations. Despite this expansion, it is worth underlining that formal binding international agreements still form the basis for EU external relations.

A plethora of reasons could explain the expansion of soft law in external relations. These include increasing efficiency of external action, allowing smoothness in negotiation and ensuring an enhancement of discretion for the parties concerning the fulfilment of commitments. Soft law might also be more suitable to the political sensitivity or the changing nature of the topic in question, or it might simply be the best approach to prevent the complications that mixed agreements create. However, flexibility, efficiency, and informality come with several drawbacks.

The nature of these soft law instruments results in limited ex-ante and ex-post oversight to ensure their compliance with EU legal obligations and accountability safeguards. Furthermore, even if soft law does not impact the rights of individuals directly, as it is still non-binding, nonetheless these instruments often have considerable political significance and might have more ‘hard’ legal consequences. It follows that this increase might significantly affect essential EU constitutional principles such as the principle of conferral, institutional balance, sincere cooperation and even essential substantive elements such as the rule of law, fundamental rights and democracy.

To provide some contextualisation, a survey of Memoranda of Understanding from 1974 to 2019 was conducted and their respective policy areas were identified based on their content and categorisation on the EUR-lex website. By looking at this limited sample, it can be established that soft law is on the rise, with some areas, such as trade, being more affected than others. While the focus on soft law in the external dimension of EU migration law has been more visible lately, the use of soft law in external relations spans different policies. However, for the purposes of this blogpost, only three main fields will be taken into consideration: migration, trade, and enlargement.

Soft law in the external dimension of migration 

While soft law has always been used in the external dimension of migration law, in the last few years, the number of arrangements concluded between the EU and third states has been rising. These instruments are adopted to pursue several objectives and face various issues, especially after the ‘migratory pressure’ of 2015. These instruments promote returns, control irregular migration and, most notably, contribute to the shift towards externalisation of migration policy.

These instruments include the EU-Turkey Deal of 2016, aimed at curbing irregular migration through the Eastern Mediterranean route. A similar approach was taken by more recent initiatives, such as the 2023 Memorandum of Understanding with Tunisia, the Joint Declaration with Egypt and Migration Deal with Lebanon, which were both concluded in 2024 and the 2025 Partnership with Jordan. All these instruments essentially focus on ‘strengthening’ border management in an attempt to seek cooperation to prevent the departure of migrants. These instruments are more flexible, discretionary and quicker to conclude or terminate than a hard law agreement. While such instruments can be undertaken for any reason, the fact that they do not create any significant legal and economic leverage for either the EU or the third country and that they can be terminated at any given moment by either party without any legal consequences is a significant incentive.

Furthermore, informal cooperation on migration has been increasingly integrated into other policy fields through the use of ‘issue linkage’, i.e. when two or more issues are bargained in the same international cooperation instruments in order to motivate the parties into complying. By including migration clauses in informal agreements regarding trade and development, the EU creates some level of informal conditionality by tying economic and trade benefits to the enforcement of border control. The EU Jordan Compact of 2016 offers an illustration of this.

Still, this proliferation of soft law comes at the expense of various factors. As mentioned before, these instruments are part of the domain of the executive. Accordingly, as has been stressed, they lack parliamentary and judicial oversight. Therefore, there is no clear way to monitor or curtail any kind of violation or impact on human rights that they cause. In the case of the EU-Turkey Deal, this meant that the EU could not act as a monitoring body and thus could not check whether the provisions of the ‘deal’ had been respected.

Soft law in the policy area of trade

The use of soft law instruments is not particularly novel in the policy area of trade and investment either, as the EU has made use of Memoranda of Understanding, Action Plans and Compacts to tackle trade or trade-related issues. However, these instruments are highly technical and specific. An example is the Revised Memorandum of Understanding with the United States of America regarding the importation of beef from animals not treated with certain growth-promoting hormones and increased duties applied by the United States to Certain Products of the EU.

The soft law in the policy area of trade is also dedicated to adding to pre-existing agreements, which is done by developing existing frameworks through collaborations and partnerships. This is what happened, for example, with the EU-Canada’s Comprehensive Economic and Trade Agreement (CETA), as the original treaty allowed for subsequent collaboration on trade related issues not targeted by the treaty. In this case, the CETA Committee has created soft law instruments to deal with new developments, such as the rise of digital technologies or the need for raw materials, pushing the collaboration almost beyond the original CETA.

The development by the EU of the two Trade and Technological Councils with the US and with India, to facilitate collaboration on trade and technology, has significantly aided the proliferation of non-legally binding political agreements. This approach was preferred due to the previous failure of the Transatlantic Trade and Investment Partnership, which prompted the EU to adopt a ‘lighter touch’ in its trade relations. This confirms that the current geopolitical developments have caused the EU to turn towards new approaches, including a growing use of informal instruments to engage in commercial relations with third countries. This is particularly noticeable concerning the EU’s Critical Raw Material Strategy, as the EU has been establishing partnerships to secure access to minerals and metals necessary for various industries and vital for the fulfilment of the EU’s green and digital transitions. Such instruments are usually concluded with resource-rich, often developing, countries (especially those with significant mineral wealth), such as Canada, the Democratic Republic of the Congo, Greenland and Rwanda.

Similarly, the EU also plans to introduce the ‘Clean Trade and Investment Partnerships’, non-binding instruments to promote cooperation in issues such as clean energy, clean-tech trade, investments and critical raw materials. All these agreements are political, and, as such, their prerequisites are largely determined by the ‘resource-hungry’ side. However, due to their nature as soft law instruments, they give rise to substantial deficiencies in legal protection in case of failure to fulfil obligations.

In conclusion, while the use of soft law in this field was previously of a technical nature, more recent developments show that they are being progressively used in order to further key EU policies.

Soft law in the European Neighbourhood Policy

The ENP is an area in which the use of soft law is well-established. Soft law instruments are not only widespread but make up the majority of their legal construction as they allow for quickly and informally setting up flexible and customised partnerships. Before the Treaty of Lisbon, it was generally agreed that enlargement policy would be carried out almost exclusively through soft law, or more precisely ‘political documents’, as they were described by the Commission.

This somewhat changed with the Treaty of Lisbon, as Article 8 TEU was established as a way to formalise this subject area. The Article emphasises the use of international treaties (hard law) to establish and maintain a relationship with the neighbouring countries. This provision reshaped this part of EU external action, by making it an ‘official’ strand and by establishing a turn towards the hard law instruments, such as international agreements.

Despite this clear formalisation of the enlargement policy by the drafters of the Treaties, soft law continues to be used in this field as it remains the most pragmatic approach available. This is particularly illustrated by the 2011 Joint Communication ‘A New Response to a Changing Neighbourhood’. The use of hard law agreements is only mentioned concerning a few select areas such as human rights and fundamental rights, trade cooperation, visa and readmission policy and energy and environmental cooperation.

In short, the EU enlargement policy is still being understood as requiring not only hard law, as prescribed by Article 8 TEU, but also soft law, which is needed due to its flexibility and differentiation.

 The outlook of soft law in EU external relations

While the use of soft law agreements in EU external relations differs across the various policy areas, the EU has been increasingly relying on such instruments in the last few years. This is due to various reasons, but mostly has to do with the fact that the flexibility and promptness of these instruments make them particularly useful in a variety of situations.

However, using bilateral soft law arrangements in external relations comes at the expense of the respect of the usual procedural and juridical safeguards, which would normally be guaranteed with instruments adopted under Article 218 TFEU, thus weakening EU legal coherence and sidelining EU institutions. Such a trade-off only seems more costly in the case of matters which affect human rights. This is especially relevant in the policy area of migration, where this risk is a concrete and present one due to the political nature of the informal agreements as well as their increase in the last few years. On the other hand, at present, the use of soft law in other fields, such as trade and enlargement, is not expanding or is not political enough to raise the same concerns.

Regarding enlargement, such instruments are often of a practical nature. Consequently, their use does not necessarily hold severe implications for fundamental rights and principles. Similarly, most soft law in the policy area of trade has been, for the most part, of a more technical nature, thus not raising serious constitutional concerns. However, this seems to be changing. While the increase in use in this policy is not as significant as the one in the field of migration, it appears to be a comparable one and raises analogous concerns as to the possible implications.

In conclusion, the use of soft law could be deemed as reasonable and useful in some contexts, such as enlargement, where it is more suited to the task than hard law might be. However, this recorded increase in use still raises the important question of whether the benefits of soft law are truly advantageous enough to offset the possible risks to the EU constitutional framework.