The Joint Way Forward on migration issues between Afghanistan and the EU: EU external policy and the recourse to non-binding law

The EU increasingly uses non-binding agreements as part of its response to the ongoing migration crisis. The preparation and implementation of such agreements are conducted in imprecise circumstances in terms of institutional responsibilities and they are subject to limited, if any, parliamentary control and judicial review. Taking the topical Afghanistan–EU Joint Way Forward as a focus point, this article raises the question whether the increasing recourse to non-binding instruments may be interpreted as a way of circumventing the constitutional allocation of powers to and within the EU. It highlights substantial issues related to the protection of fundamental rights and the allocation of the EU's financial resources stemming from the Joint Way Forward. It shows a number of legal drawbacks to this trend of using such non-binding instruments and argues in favour of more transparency and procedural clarity in their negotiation and implementation.