Naman Anand (New York University (NYU), School of Law; University of Cambridge - Lauterpacht Centre for International Law) has posted Trouble in Paradise: The EU's Proposed Visa-Free Travel Ban through a Trade Law Lens on SSRN. Here is the abstract:
The European Union’s November 2022 decision to temporarily suspend the Visa Waiver privileges of Vanuatuan nationals (till August 2024)[1] because it offers a highly popular yet controversial Citizenship By Investment (CBI) program as a response to broader security, tax evasion, and immigration concerns, it was the first chapter of a multifaceted conundrum for not just Vanuatu but various Caribbean Community (CARICOM) states such as Antigua & Barbuda, Dominica, Grenada, St Kitts and Nevis, and St Lucia that offer CBI. This announcement was followed by a recent press release that the EU is considering enacting a new regulation that would allow the cancellation of visa-free privileges for jurisdictions operating CBI programs[2]. The effect of withdrawing such visa-free privileges is not limited to the obvious consequences (e.g., the mobility of citizens and the failure of their CBI programme). Still, it has broader ramifications that impact Trade in Services (TIS), economic development, and sovereignty.
This paper strongly asserts that the EU’s action is questionable and blatantly violates the Most Favoured Nation (MFN) principle, market access principle, and national treatment. By examining the provisions of the General Agreement on Trade in Services (GATS), the paper argues that the unilateral suspension of visa-free privileges is a de facto and manifestly illegal restriction on TIS. It may also breach Mutual Visa-Waiver Agreements (MVWAs) and the broader principle of pacta sunt servanda under International Law. The paper further highlights that such illegal acts harm sectors that rely on the mobility of natural persons – particularly real estate, energy, and tourism.
The paper takes a pro-CARICOM stance and highlights serious discrepancies within these programs whilst acknowledging the concerns faced by the EU. Due to the CARICOM – EU-focused nature of this paper, it shall only tangentially address the CBI program of Vanuatu. It shall not address non-EU and non-CARICOM CBI programs (Egypt, Jordan, the now-defunct Montenegrin CBI scheme, and Turkiye). Additionally, while closely related to the right to travel, the paper shall not address Golden Visas or Residence Permits (PR) as the degree of rights universally conferred to citizens as opposed to PR holders are much more significant and have more robust ramifications. All prices in the paper should be taken to exclude minor expenses such as Due Diligence Fees (20,000-50,000 USD), Apostilling (400-1200 USD), or physical visits to the agent’s offices (for example, the viral Yes Theory YouTube video where Omar, an Egyptian citizen, goes to Brookes and Partners’ Dubai office to obtain professional services and collect his St Kitts & Nevis passport[3]).
Lastly, the paper presumes that readers have a basic knowledge of International Trade and Investment Law and is not targeted towards General Public International Law aficionados.
