Westlaw Document 04-59-04

E.C.L.
Review 2011, 7(3), 453-480 (Cite as: )
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E.C.L. Review 2011, 7(3), 453-480 European Constitutional Law Review 2011 The intergovernmental constitution of the EU's foreign, security and defence executive Daniel Thym 2012 Cambridge University Press Subject: European Union. Other Related Subject: Constitutional law Keywords: Common European Security and Defence Policy; Common foreign and security policy; EU constitution; European Union; Executive power Legislation cited: Treaty of Lisbon 2007 *453 European Union - Common Foreign and Security Policy - Changes with the abolition of the pillar structure by the Lisbon Treaty - Common Security and Defence Policy - Executive order of the EU Between supranationalism and intergovernmentalism - The role of the High Representative - Joint political leadership - The European External Action Service as an administrative infrastructure - Constitutionalisation of foreign affairs INTRODUCTION With the entry into force of the Lisbon Treaty, the EU's quest for international visibility and authority stands to benefit from a uniform institutional framework. The post of High Representative (HR) and the establishment of the European External Action Service (EEAS) are intended to allow the Union to move beyond institutional introspection and concentrate on reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world.1 Whether the new structure facilitates the realisation of this grand Treaty objective remains to be seen. Our legal analysis may, however, shed light on the underlying constitutional choices. This contribution suggests to rationalise the constitutional features of the Common Foreign and Security Policy (CFSP), which includes the Common Security and Defence Policy (CSDP),2 as the exercise of executive power based on legal intergovernmentalism. *454 Amongst the original motivations which kick-started the constitutional reform process, the simplification of Treaties with a view to making them clearer and better understood without changing their meaning 3 assumed a prominent role. Lisbon's abolition of the pillar structure and the cumbersome distinction between EU and EC proves the success of this undertaking. CFSP is now an integral part of a uniform legal order with a single legal personality. But this newly accomplished unity came at a price: Article 24 TEU underlines prominently that CFSP shall be subject to specific rules and procedures.4 What does this mean in legal terms? Certainly, the vague assertion of an indefinite sui generis character cannot be the ultimate answer. In its place, we should positively define the constitutional concept underlying the Treaty rules governing CFSP and CSDP. Doing so allows us to explain their continued peculiarity and to identify their status within the EU's uniform legal order. This contribution sets out to explain the persisting distinctiveness of the legal regime for CFSP and CSDP as
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E.C.L. Review 2011, 7(3), 453-480 (Cite as: )
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the manifestation of intergovernmental executive power. This argument is presented in two steps. In its first part, the inspection of the new rules in the light of institutional practice supports the identification of their executive character. Such a counter-intuitive reading of the Treaty articles accepts that foreign, security and defence policies are not about law-making, but are typified by political, administrative and operational activities. The analysis in the second part illustrates that the EU Treaty maintains distinct institutional rules and constitutional characteristics which I analyse under the label of legal intergovernmentalism. The heuristic category of legal intergovernmentalism is meant to describe the distinct decision-making procedures of foreign, security and defence coordination and designate their legal effects in relation to supranational Union law. On this basis, the constitutional peculiarity of CFSP and CSDP as an expression of intergovernmental executive power takes shape. Generally speaking, the persistence of CFSP intergovernmentalism has a tangible advantage. Whether we like it or not, vertical coordination remains crucial. Why? Since the EU has no military and police capabilities of its own, CSDP operations depend upon the availability of national personnel and military resources, without which the Union simply cannot act.5 On the diplomatic front, the knowledge, contacts and resources of the numerous member states' diplomatic and consular services are similarly valuable, not only as seconded national personnel within the EEAS.6 In international organisations, such as the UN, where *455 the EU has no genuine representation the member states' presence also remains indispensable.7 In short: coordination remains the lifeblood for Europe's compound executive order. In practice, member state dominance in CFSP supports and facilitates vertical coordination. INTERGOVERNMENTAL CFSP EXECUTIVE There is nothing new in describing foreign affairs as exercise of executive power. National governments play a central role in treaty negotiations, diplomatic relations, international organisations and military operations under most national constitutions. Indeed, classic authorities of state theory and modern constitutionalists alike have traditionally ascertained that foreign affairs favour executive action by their nature (notwithstanding parliamentary and judicial prerogatives).8 At the same time, academics working on EU law 9 (and political scientists10 ) have recently scrutinized the EU's executive order. Their focus of attention, however, remains the supranational domain of the Commission, agencies and comitology. CFSP and CSDP bodies, by contrast, are usually mentioned at the side-lines only. This deficit should be corrected. Consideration of CFSP sheds light on the intergovernmental branch of the EU's compound executive order. Moreover, the presentation as CFSP as executive power provides a positive explanation of its constitutional specificity, which deviates from supranational law-making and persists despite the abolition of the pillar structure. At an abstract level, executive power can be described as those state functions which are exercised by elected office-holders and their administrative infrastructure.11 At the EU level, they did indeed take centre stage during the constitutional reform process which eventually resulted in the Lisbon Treaty.12 Most minds *456 were focused on the thorny issue of political leadership with a view to the powers of the European Council, the Commission and the High Representative (first subsection). In contrast, the administrative CFSP infrastructure received much less attention, although Lisbon has codified its considerable expansion in recent years (second subsection). But the new rules remain incomplete insofar as they replicate the Community model of formalised decision-making procedures. Institutional practice illustrates that this quasilegislative conceptualisation of CFSP and CSDP contrasts with the prevailing informality of everyday CFSP activities. I therefore suggest a counter-intuitive assessment of the Treaty provisions as the exercise of executive foreign affairs power (third subsection). Political executive power For more than a decade, the pursuit of a single voice served as a symbol of CFSP reform. Indeed, personi-
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fication is its most visible outcome. With the Lisbon Treaty, the post of HR formally steps into the limelight by assuming the functions which had hitherto been held by the rotating Council Presidency and the Commissioner with the portfolio for external relations. Whereas the Amsterdam Treaty confined the HR to assist the Council and represent the CFSP at the request of the Presidency,13 the Lisbon Treaty entrusts the post with extensive agenda-setting, decision-shaping and implementing powers.14 But we should be careful not to equate personification with federalisation. The HR's legal capacities stop short of the political prerogatives of most national foreign ministers - and are also in future embedded into Europe's compound executive order. A high representative - no foreign minister In contrast to most foreign ministers, the HR does not hold the power to decide autonomously the EU's standpoint. Where there is lack of consensus among the member states, there is no policy position which he/ she may represent. Catherine Ashton may steer the Foreign Affairs Council, which she chairs, towards agreement and rely on the EEAS to elaborate proposals. Without approval she must, however, remain silent as a matter of legal principle.15 The EU's tardy reaction to the popular uprisings in North Africa in 2011 partly resulted from this need to first *457 establish a common line.16 Arguably, the appointment of a lesser-known figure as the first post-Lisbon HR also signals that the member states are intent on remaining at the helm.17 Article 18(2) TEU adequately grasps the post's underlying tension: the HR shall conduct the CFSP which he/she carries out as mandated by the Council.18 Given these shackles, the modest designation of a High Representative seems more adequate than the Constitutional Treaty's high-flying designation of a Foreign Minister.19 For the purposes of our analysis, it should be underlined that the Lisbon Treaty eschews a clear-cut job description for the post of HR. While Catherine Ashton is fully integrated into the Commission under her supranational hat, her formal status in CFSP remains unclear. The post of HR constitutes no institution in itself (although Article 18 TEU lists the post besides the other institutions).20 It is rather situated in institutional limbo - unsure whether it holds an institutional legitimacy in its own right or will primarily serve the requests and instructions of the (European) Council and, in the supranational domain, the Com mission collegiate.21 This construction results, as a pragmatic comprise, from the desire to keep the HR equidistant from both the Commission and the Council.22 But it also hints at an underlying difficulty: the post of HR fluctuates between political autonomy and administrative support. The Treaty remains unsure whether to conceptualise the HR as an integral part of the government function or as administrative infrastructure. The distinction between political and administrative executive power remains, as often in the EU, blurred.23 *458 The title High Representative of the Union for Foreign Affairs and Security Policy wrongly suggests that the portfolio is confined to CFSP.24 Rather, the HR shall, as a Vice-President of the Commission, simultaneously preside over supranational external relations and [coordinate] other aspects of the Union's external action.25 This personal union of CFSP spokesperson and Commission Vice-President explains the infamous double hat: Catherine Ashton receives her instructions from the Council in CFSP, while she must respect supranational decision-making as Vice-President.26 There is widespread consensus that the viability of this construction depends on human chemistry and the wider inter-institutional climate. Ideally, it may result in fruitful complementarity - or it could leave the HR in a grey zone of overlapping institutional loyalties, with the Council and the Commission mutually mistrusting what they perceive as a Trojan horse of the other institution.27 Moreover, the double hat continues one crucial feature of Europe's foreign affairs executive: joint leadership. Joint political leadership Uniform external representation is complicated by the President of the European Council, who may repres-
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ent the EU at his level and in that capacity28 and to whom the Commission President will not want to play second fiddle. Despite the original aspiration of uniform representation, a new troika may thus emerge.29 This plurality of spokespeople does, however, arguably reflect the general uncertainty about the allocation of political leadership in the European Union, within which no institution can claim to be the federal government. Governmental authority remains vested in the (European) Council and the Commission.30 As *459 far as this goes, Europe's foreign affairs constitution does mirror the situation in other policy fields - such as economic and monetary union - where heads of state or government similarly share government functions with the Commission, the European Central Bank and inter-state arrangements outside the Treaty framework.31 The corresponding potential for overlap and friction is neither new nor (at least in foreign affairs) amplified by the new institutional set-up. Many enthusiasts of the Community method had long diminished the role of (European) Council - or described its dominance in CFSP as a transitory arrangement which would sooner or later be assigned upon the Commission as the real executive.32 This strategy convinces no longer: With the formal recognition of the European Council as an institution and the persistence of intergovernmental decision-making in CFSP, described below, the Lisbon Treaty sanctions its authority. Procedural and legal intergovernmentalism are here to stay for the foreseeable future - as the HR's double hat and the dual line of commands for the EEAS amply illustrate. But that is only one side of the coin: Lisbon also confirms the Commission's wellestablished prerogatives in supranational external relations, including crucial policy fields such as development, enlargement, neighbourhood and association policies - or in the words of the Treaty: With the exception of [CFSP], it shall ensure the Union's external representation.33 Instead of abolishing the dichotomy between supranational and intergovernmental executive power, the Lisbon Treaty tries to neutralise this latent dualism under the auspices of the HR and the EEAS. But their cross-cutting responsibilities do not guarantee uniformity either. Why? The EEAS focuses on traditional spheres of foreign policy, including the high politics of security and defence, while other policy fields such as trade, climate change, global migration or financial regulation - with an undeniable relevance for present-day international relations34 remain the prerogative of other institutions and bodies. This need not be a disadvantage: arguably, the concept of diplomatic expert bodies for the uniform representation of (sovereign) states contradicts the interdependent reality of today's world order.35 Given the limits of EU competence, moreover, the member states *460 will add their voice and muscle in regular circumstances (most prominently in the case of mixed agreements).36 Joint leadership of foreign affairs governance will persist and establish a complex web of national, supranational and intergovernmental governance structures, which together establish Europe's compound executive order.37 The inherent coordination requirement may be tiring and sometimes compromise the EU's effectiveness on the international stage, but it remains an indispensable side effect of joint political leadership. In case of fruitful coordination it allows all actors to jointly benefit from the strength inherent in united action.38 The Lisbon Treaty's recognition of the administrative infrastructure During the Treaty drafting process and among legal academics the reform of the CFSP administration obtained little attention, since most minds were focused on political leadership.39 Nonetheless, Lisbon differs from earlier Treaty amendments: it formally reflects, at Treaty level, the considerable expansion of executive capacities within the realms of the Council in recent years40 that had formerly been portrayed to govern in the shadow.41 In this respect, the creation of the European External Action Service (EEAS) is the crucial reform effort, which the Treaty rather vaguely depicts as a body that shall comprise officials from relevant departments42 of the Council's General Secretariat, the Commission and national diplomatic services. This broad description left the identification of relevant departments to the implementing de-
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cision, which was adopted in July 2010 after six months of protracted negotiations.43 In future, the EEAS is the most visible expression of Europe's foreign affairs administration. *461 Such flexibility of the Treaty regime must be welcomed. Academics writing on EU law should be careful not to overstretch the reach and detail of Treaty provisions, as they carry the potential to fail to guide reality and curtail the room for political decisions.44 The EEAS set-up is a case in point. While the negotiations were tough and exasperating, the general wording of its legal basis guarantees the elasticity of future institutional profile. The organisation of diplomatic staff and corresponding lines of command are within national constitutional systems also subject to working arrangements which can be adapted at any time, without recourse to cumbersome (Treaty) amendment procedures.45 Moreover, the dichotomy between intergovernmentalism and supranationalism which pervades the EEAS and is described later rendered interinstitutional disputes unavoidable. The delineation of spheres of influence is a legitimate concern in a political system based upon the principle of institutional balance.46 In practice, most CFSP and CSDP support structures have been migrated to the EEAS. First, the Council Secretariat's Directorate-General E has become an integral part of the central administration of the EEAS.47 Second, the Council's military bodies have similarly been transferred. In future, the expertise of the EU Military Staff (EUMS) and diverse crisis management structures will act as intergovernmental subunits of the EEAS.48 But Lisbon does not stop at formal catchup49 with earlier developments at sub-Treaty level and their rearrangement within the EEAS. It furthermore transforms the intergovernmental executive by distinguishing the EEAS from the auxiliary support function of the Secretariat of the Council, which had been rightly criticised as a chameleonic institution embracing both decision-making and covert administrative functions.50 The Lisbon Treaty rather relegates the Council Secretariat to its original function of preparing *462 and assisting Council decisions,51 while the administrative support staff is integrated into the EEAS as an executive entity in its own right. Exercise of executive power Reading the Treaty articles on CFSP, the path dependency of European integration stands out. While the Treaties of Maastricht, Amsterdam, Nice and Lisbon certainly rejected the supranationalisation of CFSP, they followed the Community method insofar as they conceptualised CFSP as a quasi-legislative undertaking. The EU Treaty assumes that foreign policy is realised through the adoption of legal instruments (Articles 25, 26, 28, 29 TEU) on the basis of formalised decision-making procedures, which in specific circumstances provide for qualified-majority voting and parliamentary association (Article 31, 36 TEU).52 This focus on procedures and legal instruments mirrors Europe's epic constitutional reform process, which stretched over the quarter century after the Single European Act. For many observers, it was a foregone conclusion that CFSP would go the way of other policy fields and be communitarised sooner or later53 - with qualified majority-voting and parliamentary co-decision.54 Executive specificity of CFSP and CSDP On closer inspection the initial plausibility of the Community method as a blueprint and model for CFSP blurs our understanding of its special character. Foreign affairs are much less about rule-making than the realisation of the single market is.55 Supranational law-making, which characterises the Community method, cannot be projected to international diplomacy and military operations without modification. Even when all member states unreservedly comply with a CFSP position as if it was a directly applicable supranational legal act, the EU's policy standpoint would not necessarily prevail: Iran will not give up its nuclear weapons, only because the EU says so in its Official Journal. Successful foreign policy and effective military operations require adequate resources, the identification of strategic goals and the constant adjustment of methods for their realisation. The *463 success of CFSP does not so much depend on the binding force of internal de-
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cisions, but its persuasiveness and support of the member states. In short: CFSP diplomacy and CSDP operations are not about rule-making, but typified by a predominantly executive character.56 Against this background, we understand why our analysis benefits from a counter-intuitive reading of the Treaty articles. The Council's daily practice illustrates that legal instruments are only adopted whenever the projection of personnel, the imposition of sanctions or the dispersal of funds require a formal legal basis in a Council Decision.57 For other questions, informal vehicles and communication channels are regularly preferred. The adoption of legal instruments by the Council is the exception not the rule - even if the Treaty articles suggest otherwise (see the next subsection). It is true that military operations advance through a predefined line of command. But this does not unmake their executive character. CFSP diplomacy and CSDP operations presuppose political choices and operational decisions with a spontaneous and informal character, which evade the rigidity of ministerial decision-making by the Council. The classification of CFSP and CSDP as executive is not meant to imply the dominance of national governmental actors, but refers to the political and operative character (we should not confuse the modus of intergovernmentalism with the qualification of CFSP as executive power58 ). Within most national constitutions, foreign affairs are similarly treated as a specific activity which benefits from different discretion due to its need for flexibility and confidentiality.59 It also helps us to rationalise the Treaty rules on CFSP. Unfortunately, the Treaty itself only hints at this conclusion of executive character with the generic statement that in CFSP [t]he adoption of legislative acts shall be excluded60 (in the light of the Treaty's procedural understanding of the legislative act, the statement self-referentially confirms the Council's predominance in decision-making61 ). Also, Article *464 16 TEU describes the Council's powers rather vaguely as policy-making and coordinating62 in contrast to the formal recognition of the Commission's coordinating, executive and management functions.63 Such circumvention strategy cannot determine our analytical conclusion, which should acknowledge CFSP and CSDP as the exercise of executive power. Foreign policy under the living Constitution From the viewpoint of the Treaty, CFSP decisions are taken by the Council. Articles 25-31 TEU make a noteworthy effort to distinguish different legal instruments and decision-making procedures. Non-legal forms of cooperation are not mentioned explicitly. Informal instruments and communication channels do however take centre stage in Brussels (and Luxembourg64 ). The Council's established practice illustrates that policy statements are regularly promulgated through the informal vehicles of Council Conclusions, HR Declarations and internal strategy papers - instead of through adopting formal Council Decisions.65 The European Security Strategy as the central political reference document of CFSP remains a prominent example in this respect.66 More specific foreign policy questions provide numerous examples of similar dealings.67 Only situations requiring a firm legal basis, such as sanctions, are subject to formalised Council decisions.68 Other important developments, such as the negotiations on Iran's nuclear programme, are not reflected in the Official Journal - the substantive policy position is coordinated informally. As a result of the prevailing informality, our perspective on the EEAS and the Council's subordinate structures must change. They are not only preparatory bodies, but assume executive functions in their own right. The role of the Political and Security Committee (PSC), the CFSP twin of COREPER, which is composed of *465 national representatives at ambassadorial level, illustrates this extended autonomy in the day-to-day management of CFSP. The PSC is formally mandated to monitor the international situation [and] contribute to the definition of policies69 and has during the past decade established itself as the executive board for CSDP and CFSP.70 Many issues are discusse d in the PSC only, especially where the urgency or minor relevance of the topic does not lend itself to the overcrowded agenda of the monthly Council meetings - not even as an A point for adoption without discussion.71 The same applies to the PSC's preparatory bodies, such as the EU Military Committee (EUMC) or the Committee for Civilian Aspects of Crisis Management
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(CivCom),72 which similarly discuss and coordinate their policy positions on a daily basis.73 Of course, the Council and national capitals may at any time assume their residual decision-making power, and may control the activities of their agents in the subordinate Council bodies and the EEAS through national instructions.74 But this does not unmake the institutional practice that many decisions are being prepared and taken at sub-Council level. The PSC, its preparatory bodies and the EEAS play a dominant role in the day-to-day management of CFSP and CSDP. Indeed, the institutional school of political science explains that the institutionalisation of CFSP and CSDP can - even without supranationalisation - result in the de facto Brusselisation 75 of European foreign policy-making. Regular contact between national and European policy actors, the reorganisation of national foreign ministries and the formation of dedicated staff all facilitate the gradual alignment of national foreign policy preferences and leads to a collegial impulse.76 As the *466 mind and brain cells of foreign policy decision-making, the EEAS and the PSC with their officials play a crucial role in identifying common positions and the methods for their realisation. PERSISTENCE OF LEGAL INTERGOVERNMENTALISM Only in the early years of its existence was European foreign policy coordination intergovernmental in the literal sense of meetings between government officials without institutional infrastructure.77 Intergovernmental cooperation in this sense has long been abandoned. Various committees and bodies within the realm of the Council play a crucial role in the formulation and implementation of CFSP and CSDP with the involvement, albeit limited, of the supranational institutions. My choice of terminology does nothing to diminish these changes. The description of persisting CFSP intergovernmentalism does not, in particular, side with the intergovernmental school of political science, which implies that key players are primarily motivated by national interests and that non-state actors are irrelevant. Nor does the terminology negate the ideational impact of values or the relevance of institutions for the socialisation of CFSP staff and the reformulation of national positions.78 My choice of terminology rather follows the distinctly legal impetus to conceptualise the constitutional specificity of executive CFSP power in the age of the Lisbon Treaty. This section presents the particularities of the CFSP Treaty under the label of legal intergovernmentalism. While legal academia has developed no uniform concept of intergovernmentalism,79 the use of the well-esta blished terminology facilitates the heuristic description of CFSP specificity.80 It signals in particular that the well-established principles of legal supranationalism cannot be extended to CFSP without modification, reflecting the general claim that the former second pillar continues to be subject to specific rules and procedures.81 Indeed, the *467 newly-accomplished unity of the Treaty does not establish institutional and constitutional uniformity. CFSP proceeds along distinctive procedural lines (first subsection) and evades full supranational legal effects (second subsection). Decision-making procedures Lisbon's merger of the pillar structure is characterised by institutional pragmatism. The new Treaty combines the intergovernmental CFSP with supranational policies, such as development cooperation, without altering the underlying inter-institutional balance. This partial continuation of the status quo ante was a deliberate choice: simplification was not meant to erase all distinctions between the former pillars.82 The post of HR, described earlier, underlines the persistent dichotomy between supranational external action and CFSP/ CSDP. Due to her double hat the HR is fully integrated into supranational decision-making as VicePresident of the Commission, while she receives her instructions from the Council in CFSP. But how does the Council decide CFSP positions? And does the dichotomy between supranational and intergovernmental decision-making infiltrate the EEAS with its supposedly uniform institutional structure as the European foreign affairs bureaucracy?
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Inter-institutional balance The special character of CFSP procedures is manifest when we consider the dominance of national governments. Both the deliberation and the ultimate decision remain the almost exclusive prerogative of the (European) Council, which exercises full control over the contents and reach of CFSP. Lisbon shies away from disregarding the firm opposition of any member state: All policy positions can be traced back to a consensus among national capitals, even in the rare situations in which the Treaty allows for qualified-majority voting.83 It is true that Article 31.3 TEU introduces an explicit passerelle option for the expansion of qualified-majority voting in CFSP at a later point.84 This option has, however, been categorised as a Treaty amendment for the purposes of national constitutional law by the Ger*468 man constitutional court.85 Going even further, the latest version of the British European Union Act even requires a popular referendum.86 The activation of the passerelle therefore remains a distant option in the foreseeable future. For the time being, the Treaty stops at the water's edge: without consensus among the member states, CFSP cannot proceed. Conceptually, the passerelle option delineates a crucial threshold. If qualified-majority voting was permitted in situations where no collective preference had been established beforehand, CFSP would cease to be characterised by consensus-based intergovernmental cooperation, and would gradually evolve towards a supranational polity87 (even if vital and stated reasons of national policy88 would still necessitate a unanimous decision by the European Council). But such considerations remain a distant vision (or illusion) at the moment. Still, the absence of formal decision-making in the day-to-day management of CFSP described earlier may facilitate the emergence of consensus even without majority vote; also peer pressure may limit the factual influence of (smaller) member states. But such convergence occurs in the shadow of the veto option: legally each member state retains full control. Joint activities require consensus.89 This may explain CFSP's reactive disposition, which often responds to outside events with some delay instead of shaping and directing future policy scenarios. CFSP decision-making is therefore much less impressive than the abolition of the pillar structure would suggest: the member states acting by consensus remain in full control. Moreover, the Council's prerogatives correlate with the almost complete segregation of the supranational institutions. The Court of Justice continues to have no jurisdiction on core CFSP matters.90 Similarly, the Parliament is only consulted on major developments91 (although it extracted some remarkable political concessions on its enhanced involvement from the Council during *469 the negotiation of the EEAS framework92 ). The Commission's role has formally even been diminished, since its full association has been replaced by the HR's involvement, who in CFSP acts outside the Commission's ambit93 - although the Commission continues to be associated through its actual presence at Council meetings.94 We should nevertheless be careful not to confuse actual presence with institutional muscle: in CFSP, the Commission has no monopoly of initiative, does not control the intergovernmental units of the EEAS and cannot challenge non-compliance at the Court. It is difficult to conceive more pronounced procedural intergovernmentalism within the wider framework of the EU's complex interinstitutional balance. Administrative line of command The intergovernmentalism of CFSP extends to the EEAS. As a functionally autonomous body, it does not hold any residual powers but assists95 the HR in the exercise of her functions. In so doing, the EEAS is, in the same way as the HR, legally subordinated to the Council in CFSP and to the supranational institutions in other policy fields. Although the EEAS benefits from an extended factual autonomy in day-to-day management of foreign affairs described earlier, it does, from a legal perspective, prepare and implement decisions which are taken by the institutions in accordance with the rules governing the policy field concerned. One example: when CSDP is concerned, ultimate authority rests with the Council, while the Commission remains in charge of supranational policy fields. Its description as a functionally autonomous body96 does not im-
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ply political independence, but signals its organisational separation from the Council and the Commission. 97 What does functional autonomy imply in practice? Both the Council and the Commission may not treat the EEAS like a Directorate-General in their ambit, but must respect its functional independence. Instead of issuing policy instructions *470 directly to the EEAS unit responsible, they are channelled through the HR, who transmits them within the EEAS's internal line of command. This may sound rather cumbersome, but reflects the original rationale of its creation. The EEAS is meant to overcome the protracted turf battles between the Council and the Commission on the delimitation of the respective fields of influence.98 It shall guarantee peaceful co-existence between CFSP and supranational policies, which is also supported by the recalibration of the Treaty article on their delineation.99 It is true that diverging lines of commands for different policy fields continue. But disputes will arguably be mitigated by EEAS and broil below the surface. By contrast, the establishment of the EEAS was still accompanied by open conflict. The Commission, the Council and the Parliament each tried to swing the inter-institutional pendulum in its own favour. This became apparent after the entry into force of the Lisbon Treaty, when the President of the Commission preserved specific portfolios for neighbourhood policy, development and humanitarian assistance and resisted attempts to integrate the corresponding Commission departments into the EEAS.100 Similarly, the Council decided to regroup its civil and military crisis management staff to ensure that the Commission's development and humanitarian bureaucracies would not finally succeed in absorbing the civil dimension of CSDP. 101 With regard to development cooperation, the compromise provides for complex lines of command for the programming cycle of financial support instruments and their implementation by Union delegations.102 In short: within the uniform EEAS the dichotomy between supranationalism and intergovernmentalism survives and may surface any time. How does the Council control the EEAS executive in practice? Formal instructions will rarely be issued by the ministers themselves, but emanate from the PSC and the working groups and committees which report to it, including the military committee EUMC and the civil crisis management counterpart CivCom.103 Since *471 these bodies are composed of national representatives, member states remain conceptually in control: capitals may issue instructions to their delegates, which in turn control the everyday CFSP activities with or without Council involvement. In the case of CSDP operations, the Treaty formally sanctions the PSC's supervision authority: [T]hePSC shall exercise the political control and strategic direction of the crisis management operations. 104 This is no legal illusion. Military commanders regularly report back to the PSC, which issues operational instructions with the support of the EUMC.105 In other policy fields, the practice is similar. Substantive policy positions are decided by the Council, the PSC and its subordinate bodies with the assistance of the EEAS. Intergovernmental Union Law? With the entry into force of the Lisbon Treaty, the pillar structure was abandoned. The EU obtained a single legal personality.106 As a result, the earlier argument that the second pillar constitutes a legal order in its own right cannot be maintained.107 For proponents of the earlier separation thesis, which portrayed the second pillar as classic international law outside the reach of Community law, Lisbon represents a turning point which revises the earlier situation108 - those who championed the unity thesis, which pointed at the overlap between the pillars, may argue that the Lisbon Treaty formally sanctions substantive legal unity which their analysis had unearthed before.109 Be this as it may, the legal examination of CFSP must accept the Lisbon Treaty's legal unity as the starting point and explore its implications. We shall see that there are important arguments against the application of supranational legal characteristics such as primacy and direct effect, although the merger of the pillars exposes CFSP to constitutional control standards such as human rights.
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Six arguments against vertical supranationalisation? The existence of a single legal order does not imply the pervasive supranationalisation of all policy fields. Even within core areas of the former EC Treaty, primary law distinguishes between different categories of Union action. While some areas *472 are based on (exclusive or shared) legislative competences, other policy fields are subject to non-binding coordination measures only.110 The legal framework for employment policy coordination has, for example, always been weaker than the harmonisation option in the field of the environment.111 Indeed, unity of the legal order does conceptually not require substantive uniformity, but allows for sector-specific variations.112 Within this overall picture, we need to identify the status of the CFSP provisions, thereby substantiating the Treaty's generic claim that they are subject to specific rules and procedures.113 The following considerations may guide this undertaking and illustrate my claim of enduring legal intergovernmentalism of Europe's CFSP constitution. Direct and supreme effect are defining features of the Community legal order, which are central to the ECJ's assumption that supranational Union law transcends the characteristics of classic international law. Instead of creating obligations between states, the former E(E)C constitutes a supranational organisation, which acts in place of the member states by exercising original competences, which have been transferred to the European level by the member states. The legal obligations arising from such transfer of supranational powers have well-known legal effects, which are the backbone of legal supranationalism: Community law permeates directly into domestic legal systems with direct effect and claims supremacy over national laws in cases of conflict.114 Does CFSP command such direct and supreme effect? There are six reasons that it does not: First, we should be careful not to overstate the significance of the EU's express international legal personality (Article 47 TEU). It does not imply that the EU moves closer to statehood, since legal personality is a common feature of contemporary international organisations.115 It rather seems that the protracted dispute about the EU's legal status in the 1990s wrongly equated legal personality with *473 supranationalisation, which would explain the quasi-ideological objection of EU legal personality by some authors.116 That is not the case: bodies such as the International Criminal Court or the WTO possess legal personality117 - without being a state (one may on the contrary perceive Article 47 TEU as a drafting technique which designates the EU as an international organisation118 ). Also, international organisations exercise their own competences, whose exercise result in international legal obligations. But these obligations - unlike supranational EU law do not benefit from direct and supreme effect.119 Our debate does not concern legal personality, but the character of the CFSP powers. Second, the new categories of competences enshrined in Article 2-6 TFEU indicate that the CFSP does not encompasses real powers stemming from a limitation of sovereignty or a transfer of powers. 120 Rules governing CFSP are in particular not associated with the category of exclusive or shared competence, which characterise supranationalism and with regard to which the Lisbon Treaty explicitly pre-empts conflicting national action. Instead the EU Treaty simply lists CFSP as a category in its own right, which apparently differs from other policy fields.121 The silence of the Treaty may not stop the academic analysis from reconstructing a transfer of powers also in CFSP, but the absence of formal exclusive or shared competence remains a strong indication that CFSP is meant to differ. A declaration attached to the Lisbon Treaty goes even further when it claims the continuation of the status quo ante: the Treaty will not affect the existing legal *474 basis, responsibilities, and powers of each member state in relation to the formulation and conduct of its foreign policy.122 Third, the supremacy doctrine entails the obligation to set aside national rules. In cases of conflict, EU law prevails. We may also call it pre-emption: the member states shall only act, if the Union has not done so;123 conflicting national rules are automatically inapplicable.124 Member states hence lose the capacity to le-
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gislate in fields which the supranational institutions have occupied. This effect is most pronounced under the ERTA doctrine of exclusive treaty-making powers: insofar as EU legislation exists, member states must refrain from the conclusion of international agreements.125 It is true that CFSP rules oblige the member states to unreservedly support CFSP and refrain from any action which is contrary126 - reflecting the general obligation of loyal cooperation, which one may use as a trigger for partial supranationalism.127 But closer inspection of CFSP and CSDP legal instruments indicates that these have not been designed to replace national activities with supreme and pre-emptive effect. Fourth, CFSP instruments commit the Member States in the positions they adopt and in the conduct of their activity and define the Union's approach, in relation to which member states must ensure that their national policies conform.128 This clearly signals that CFSP decisions are leg ally binding in line with earlier ECJ case-law on criminal matters129 (a conclusion which is confirmed by the reorganisation of old-style joint actions and common positions as decisions within the meaning of Article 288 TFEU130 ). Member states therefore act ille*475 gally if they violate CFSP positions (in the same way as they can violate UN or WTO law). But do conflicting national policy instructions to diplomats or military orders have to be automatically disapplied, since CFSP obligations have direct and supreme effect? The textual description of CFSP decisions131 and the exclusion of supranational regulations (and directives) support my hypothesis that CFSP instruments have not been designed for supranational legal effects.132 Fifth, the specificity of CFSP instruments can be explained with conceptual differences to supranational law-making.133 As has been argued above, foreign policy and military operations are defined by their executive character - not legislative impact on individuals. That is a pivotal difference to the former third pillar on cooperation in criminal matters. Domestic court cases concerning the application of EU regulations in the legislative domain can be resolved on the basis of direct and supreme effect, which negatively sets aside conflicting national rules. But CFSP differs: Supremacy does not guarantee successful CFSP diplomacy and CSDP operations, whose effet utile rather requires positive political support and the provision of military capacities by the member states (notwithstanding the specific case of CFSP sanctions134 ). This executive character may have been one motivation for the explicit exclusion of legislative acts.135 CFSP diplomacy and CSDP operations aim at active member state support and do not replace national action pre-emptively. The supranational transfer of law-making powers does not conceptually fit executive coordination. Sixth, national constitutional law supports my hypothesis. In its judgment on the Lisbon Treaty the German constitutional court deliberately states: *476 Also after the entry into force of the Treaty of Lisbon, the [CFSP], including the [CSDP], will not fall under supranational law [T]here is no provision for legal acts to which Declaration No. 17 on Primacy would apply. The Treaty does not provide the Union with any sovereign powers that would permit supranational access to the Member States legal orders.136 This assertion may not prevent different academic conclusions, but hints at a more fundamental concern: If we accept that self-determination in foreign policy and matters of war and peace directly impacts upon state sovereignty,137 we should be careful not to overstretch the dogmatic reinterpretation of Treaty provisions. Also academics that politically or conceptually dislike CFSP intergovernmentalism should recognise the tangible effort in the Lisbon Treaty not to federalise European foreign affairs. Finally, a caveat: the analysis follows the traditional distinction between interstate obligations with an intergovernmental character and legal supranationalism with direct and supreme effect based on a transfer of powers - in line with ECJ case-law and national constitutional positions on the distinction of Union law from classic international law. This categorical distinction matters most for dualist countries, such as Germany and many new member states, where only the founding myth of supranationalism may explain mandatory
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direct and supreme effect.138 In monist jurisdictions, nuanced positions supporting an intermediate status between international and supranational legal obligations can be more easily defended - in line with those authors who emphasise the international legal roots of the European legal order in its entirety by pointing out that all supranational legal principles may be construed as the expressions of a highly specialised selfcontained regime of public international law.139 In short: member states are legally obliged to respect Union law, but CFSP legal acts do not command direct and supreme effect (member states retain the *477 legal capacity to behave differently - albeit with the consequence of breaching Union law). This deviation of the supranational model reflects the executive specificity of CFSP diplomacy and CSDP operations, whose effet utile aims at the activation of political and military support instead of pre-empting conflicting national legislation. Constitutionalisation of foreign affairs One core difference between the constitutional character of Union law and the international features of classic international law concerns the hierarchy of norms. Within the EU legal order, secondary law must respect the procedural and substantive imperatives of primary law. This legal constitutionalism remains the backbone of the Court's famous description of the EU Treaties as the a Community based on the rule of law, inasmuch as its institutions can[not] avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter. 140 This contention does not contradict my earlier finding that CFSP has no direct and supreme effect, since the vertical weight of the Union law in domestic legal orders must be conceptually distinguished from the horizontal subordination of CFSP to intraEuropean constitutional rules.141 While Lisbon eschews the vertical supranationalisation of CFSP, it proceeds with its horizontal constitutionalisation. Against this background, the most important consequence of the abolition of the pillar structure may be normative: constitutional control standards, such as human rights, apply to all areas of Union action. Foreign, security and defence policies are, as an integral part of Union law, no exception in this respect. Primary law guides and restricts CFSP and CSDP in the same way as it controls the Common Commercial Policy. In contemporary constitutionalism, human rights serve as the central point of reference for the substantive control of state action. As a matter of principle, the Lisbon Treaty does not leave any doubt that foreign affairs must respect human rights. Article 51 Charter of Fundamental Rights (CFR) states paradigmatically: The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union. This extension of human rights to all Union action mirrors, mutatis mutandis, Article 1 ECHR which mandates that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in this Convention.142 When it comes to human rights, CFSP and CSDP are no exclave - or in the words of the ECJ in its seminal Kadi judgment on sanctions against individuals: secondary law cannot have the effect *478 of prejudicing the constitutional principles of the [EU] Treaty, which include the principle that all Community acts must respect fundamental rights.143 After Lisbon, this principle extends without doubt to the former second pillar. CFSP and CSDP must respect human rights. We should nonetheless be careful not to overstate the implications of our initial conclusion. The extension of human rights to foreign affairs does not necessarily entail the application of the domestic protection regime; the interpretation of human rights in foreign affairs requires adjustments, especially in cases of military action. Their interpretation is, also outside the EU framework, subject to a number of caveats which include the necessary accomodation to international humanitarian law.144 Moreover, few courts have unfettered jurisdiction to enforce the human rights accountability of CFSP and CSDP.145 But these limitations do not diminish the conceptual relevance of Lisbon's constitutionalisation of foreign affairs. CFSP and CSDP may
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require procedural and normative adjustments, but, as a matter of principle, are not absolved from the requirement to respect EU constitutional law, including human rights. Future research will have to fine-tune the degree of human rights accountability. Human rights are the most pronounced expression of the EU's constitutional identity, but are not the only substantive control standard. First, all CFSP policy choices must be guided by the uniform Treaty objectives of external action, which the Lisbon Treaty combines in one overarching provision (even if most objectives will usually not entail hard legal obligations mandating specific policy positions).146 Second, the Court maintains that the EU must respect customary international law, which includes the rules of international humanitarian law and the prohibition of force.147 Third, the ECJ has during the past fifty years developed general principles of Union law, such as proportionality, which after Lisbon unquestionably extend to CFSP. 148 Such modifications may - even without ECJ jurisdiction - have unforeseen consequences. European integration provides ample illustration that constitutionalisation is no one-off event but designates a process whose consequences are gradually being discovered. *479 CONCLUSION CFSP diplomacy and CSDP operations differ from law-making and should be described as executive power instead. This may appear as a trivial conclusion, but allows us to read the Treaty regime for CFSP correctly. It explains why institutional practice follows the Treaty concept of formalised decision-making by the Council only when the projection of personnel or the dispersal of funds require a formal legal basis in a Council Decision. By contrast, everyday foreign policy business is often managed without Council involvement through informal instruments or direct contact with third country representatives. Thus, the EEAS and other administrative support bodies gain momentum of their own as Brussels-based executive institutions. These administrative CFSP bodies support the Council, the High Representative, the Commission and the member states, which jointly constitute Europe's compound executive order. Despite the abolition of the pillar structure CFSP continues to be subject to specific rules and procedures (Article 24.1 TEU). This assertion hints at the intergovernmental set-up of the Treaty regime. Both the High Representative's dual hat and the administrative line of command within the EEAS illustrate the persistence of intergovernmental decision-making procedures. The member states acting by consensus within the Council retain full control over the direction of CFSP. This persistence of procedural intergovernmentalism explains why the legal capacities of the HR and the EEAS fall short of the political prerogatives of most national foreign ministers and ministries. Without consensus among the member states, there is no foreign policy position to represent. CFSP continues to differ from supranational policy fields in this respect. The dichotomy between intergovernmental and supranational policies is mitigated but not overcome behind the faade of cross-cutting HR and EEAS responsibilities. Whereas the intergovernmentalism of decision-making is laid down in explicit Treaty rules, the identification of intergovernmental legal effects requires an abstract analysis. Six arguments support my hypothesis that CFSP is not persuasively supranationalised within the single EU legal order. Legal instruments, categories of competences, national constitutional law and the executive character of CFSP argue against the extension of supreme and direct effect. Formal CFSP decisions are legally binding, but are in regular circumstances not based on a transfer of sovereign powers to the European level. This state of affairs reflects the present structure of security and defence policies, whose effet utile requires political support by the member states - not the disapplication of national policies with supreme and pre-emptive effect. Like the coordination of macro-economic policies, CFSP is a variation on the supranational integration model. This sober outlook concerns the rejection of vertical supranationalisation of relations between the EU and the member states only. By contrast, the new unity *480 of the EU legal order results in the horizontal
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constitutionalisation of CFSP, which in future will be subject to Europe's constitutional control standards, including human rights. Thus, the most important consequence of the uniform Treaty framework does not concern institutions or procedures, but is normative, in the thick understanding of European constitutionalism: EU primary law is substantively biased towards the legal and political accountability of all Union action. CFSP is no exception in this respect. The effects of this constitutional revolution remain to be discovered. Academics working on CFSP should consider substantive control standards and institutional mechanisms to hold CFSP executive power to account for its action without ignoring its continued specificity, which involves the persistence of legal intergovernmentalism. Prof. Dr. Daniel Thym, LL.M., holds the chair of Public, European and International Law at the University of Konstanz and is Co-Director of the Research Centre Immigration & Asylum Law at the same university. Many thanks to the participants of conference The EU as a Global Actor at CEU San Pablo in Madrid for constructive comments on an earlier version of the paper; the usual disclaimer applies.
1. Indent 11 of the Preamble to the EU Treaty (OJ [2008] C 115/13). 2. Ch. 2 of the EU Treaty comprises two sections: the common provisions for CFSP and CSDP (Arts. 23-41) and specific CSDP rules (Arts. 42-46). 3. Indent 3 of the original Declaration (No. 23) on the future of the Union (OJ [2001] C 80/85) attached to the Nice Treaty, which opened the reform process. 4. Art. 24.1(2) TEU. 5. Cf. the appeal for their provision in Art. 42.3 TEU. 6. Arts. 32(3), 35 TEU call upon the EEAS and national diplomats to coordinate their activities; for the number and status of national secondments within the EEAS in line with Art. 27.3 TEU, see S. Vanhoonacker and N. Reslow, The European External Action Service, 15 EFA Rev. (2010) p. 1 at p. 7. 7. Cf. C. Tomuschat, Calling Europe by Phone, 47 CMLR (2010) p. 3 at p. 6; ECJ, Case C-45/07, Commission v. Greece [2009] ECR I-701, paras. 30-31 maintains that the member states should act as trustees of the EU, if an issue is covered by Union competences; for the option and practice of letting the High Representative speak in the UN Security Council, see Art. 34.2(3) TEU and D. Thym, Die Europische Union in den Vereinten Nationen, Vereinte Nationen (2008) p. 121 at p. 124-125. 8. Cf. the references by G. Biehler, Auswrtige Gewalt (Mohr Siebeck 2005) p. 29-55. 9. Most prominently D. Curtin, Executive Power of the European Union (Oxford University Press 2009); similarly, P. Craig, Institutions, Power, and Institutional Balance, in P. Craig and G. de Brca (eds.), The Evolution of EU Law, 2nd edn. (Oxford University Press 2011) p. 41 at p. 78-83. 10. See, e.g., J. Trondal, An Emergent European Executive Order (Oxford University Press 2010). 11. In a national context, this relates to government, ministerial bureaucracy and other administrative support bodies; cf. Curtin, supra n. 10, at p. 28-40. 12. See G. Grevi, The Common Foreign, Security and Defence Policy, in G. Amato et al. (eds.), Gense et destine de la Constitution europenne (Bruylant 2007) p. 807 at p. 811-817. 13. See Arts. 18.3, 26 TEU-Amsterdam/Nice; in practice the first HR, Javier Solana, was entrusted with important diplomatic missions, such as arbitration during the separation of Serbia and Montenegro and negotiations over Iran's nuclear programme; see S. Duke and S. Vanhoonacker, Administrative Governance and CFSP, 11 EFA Rev. (2006) p. 168. 14. For an overview, see J.-C. Piris, The Lisbon Treaty (Cambridge University Press 2010) p. 238-249. 15. Of course, there is an extensive grey zone between the autonomous conduct of foreign policy and the representation of positions decided elsewhere, especially in the case of political declarations, personal interaction and media interviews; but as from a legal standpoint the Treaty is clear: the HR chairs, proposes and represents under Art. 27.1+2 TEU, while the Council decides in accordance with Art. 31 TEU.
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16. Cf. the juxtaposition with the quick modification of the US standpoint in the Charlemagne column Out of the Limelight, The Economist, 3 Feb. 2011, <www.economist.com>. 17. See T. Barber, The Appointments of Herman van Rompuy and Catherine Ashton, 48:55 JCMSt. (2010) at p. 61-62. 18. This general rule is refined by Arts. 27-32 TEU. 19. Legally, the powers of the HR under Art. 18 TEU-Lisbon are identical to the functions of the Foreign Minister under Art. I-28 Treaty establishing a Constitution for Europe of 24 Oct. 2004 (OJ [2004] C 310/1), which never entered into force. 20. Institutions are enumerated in Art. 13.1 TEU; also the previous function as head of the Council Secretariat has been discontinued (see Art. 18.3 TEU-Amsterdam/Nice, which also reflected the interinstitutional hierarchy of the Council Presidency vis--vis the HR). 21. The appointment (and recall) procedure under Arts. 18.1, 17-8 TEU indicate the primary dependence upon European Council in CFSP; see also Curtin, supra n. 10, p. 101-102. 22. Cf. the considerations in the Final Report of Working Group VII External Action, 16 Dec. 2002, Doc. CONV 459/02, paras. 22-40, <european-convention.eu.int.>. 23. If we accept the formal criterion of (in)direct election by a parliament and/or the European Council as a dividing line, the post of HR (but clearly not the EEAS) would be political; for a more general discussion, see Curtin, supra n. 10, ch. 4 p. 69-104, and Duke and Vanhoonacker, supra n. 14, p. 164-165. 24. As it was the case prior to the Lisbon Treaty in accordance with Arts. 18.3, 26, 47 TEU-Amsterdam/Nice. 25. Art. 18.4 TEU. 26. Read the second sentence of Art. 18.4 TEU. 27. See my earlier argument D. Thym, Reforming Europe's Common Foreign and Security Policy, 10 ELJ (2004) p. 5 at p. 21-22 and, similarly, Curtin, supra n. 10, p. 102; Piris, supra n. 15, p. 248; Grevi, supra n. 13, p. 788-795. 28. Art 15.6 TEU; on the legal delimitation of its powers, see C. Kaddous, Role and Position of the High Representative under the Lisbon Treaty, in S. Griller and J. Ziller (eds.), The Lisbon Treaty (Springer 2008) p. 205 at p. 210-220 and C. Calliess, Die neue Europische Union nach dem Vertrag von Lissabon (Mohr Siebeck 2010) p. 122-124 and p. 401-402. 29. A minor, but telling, example briefly after the establishment of the EEAS: the Joint statement by President Van Rompuy, President Barroso and High Representative Ashton on recent developments in Egypt of 11 February 2011. 30. See P. Craig, The Lisbon Treaty (Oxford University Press 2010) p. 101-108 and P. Dann, The Political Institutions, in A. von Bogdandy and J. Bast (eds.), Principles of European Constitutional Law, 2nd edn. (C.H. Beck 2010) p. 253-262; from a legal angle, the Commission with its extensive executive responsibilities in supranational policies clearly constitutes one element of government irrespective of corresponding political-science qualifications. 31. The debt crisis in the Eurozone provides ample example for European Council action (Art. 121 TFEU), the Commission's supervision of the stability pact (Art. 126 TFEU), Eurogroup activities (Art. 136 TFEU) and complementary activities of the intergovernmental EFSF. 32. Cf. the original assessment by B. de Witte, The Pillar Structure and the Nature of the European Union, in T. Heukels et al. (eds.), The European Union after Amsterdam (Kluwer Law International 1998) p. 51 at p. 51: mal ncessaire. 33. The sixth sentence of Art. 17.1 TEU. 34. Cf., among many, S. Keukeleire and J. MacNaughtan, The Foreign Policy of the European Union (Palgrave Macmillan 2008) p. 19-28. 35. See, prominently, A.-M. Slaughter, A New World Order (Princeton University Press 2004). 36. For further references, see D. Thym, Foreign Affairs, in A. von Bogdandy and J. Bast, supra n. 31, p. 338-342.
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37. See D. Curtin and M. Egeberg, Tradition and Innovation: Europe's Accumulated Executive Order, 31 West European Politics (2008) p. 639-361. 38. J.H.H. Weiler, The External Legal Relations of Non-Unitary Actors, in ibid., The Constitution of Europe (Cambridge University Press 1999) p. 130 at p. 185. 39. Cf. the critique by B. de Witte, Executive Accountability under the European Constitution and the Lisbon Treaty, in L. Verhey et al. (eds.), Political Accountability and European Integration (Europa Law Publishing 2009) p. 137 at p. 149 and Curtin, supra n. 10, p. 18-22. 40. See the overview by H. Dijkstra, The Council Secretariat's Role in the CFSP, 18 EFA Rev. (2008) p. 149-166; F. Terpan, La Politique trangre, de scurit et de dfense de l'Union europenne (La documentation francaise 2010) p. 27-43 and D. Thym, Europisches Wehrverwaltungsrecht, in J. P. Terhechte (ed.), Verwaltungsrecht der Europischen Union (Nomos 2011) 17 paras. 32-33 and 42-48. 41. T. Christiansen, Out of the Shadows, 8 Journal of Legislative Studies (2002) p. 80-97. 42. Art. 27.3 TEU, which continues Art. III-296.3 Constitutional Treaty, supra n. 20. 43. See on the establishment of the EEAS Council Decision 2010/427/EU (OJ [2010] L 201/30) and on the course of the negotiations A. Missiroli, The New EU Foreign Policy System after Lisbon, 15 EFA Rev. (2010) p. 427 at p. 435-441 and D. Lieband and A. Maurer, Der Aufbau des Europischen Auswrtigen Dienstes, 3 Integration (2010), p. 195 at p. 199-202. 44. See the argument put forward by B. de Witte, Too Much Constitutional Law in the European Union's Foreign Relations?, in M. Cremona and B. De Witte (eds.), EU Foreign Relations Law: Constitutional Fundamentals (Essays in European Law) (Hart Publishing 2008) p. 3 at p. 11-13 and P. Koutrakos, Primary Law and Policy in EU External Relations, 33 EL Rev. (2008) p. 666 at p. 670. 45. Any modification of the EEAS requires an amendment of the EEAS decision under Art. 27.3 TEU; for the benefits of flexible institutional design, see Vanhoonacker and Reslow, supra n. 7, p. 16-17. 46. Similarly, G. Sydow, Der Europische Auswrtige Dienst, Juristenzeitung (2011) p. 6 at p. 7; more critical: Koutrakos, supra n. 45, p. 674. 47. For DG E, see Art. 4.3.a and the annex to the EEAS Decision, supra n. 44; for the strategic policy planning department which replicates the policy unit, see Art. 4.3.b. 48. See Art. 4.3.a.a and the annex ibid. and below. 49. D. Curtin and I. Dekker, The European Union From Maastricht to Lisbon , in Craig and de Brca, supra n. 10, p. 155 at p. 182. 50. Cf. Curtin, supra n. 10, p. 81-82 and Mangenot, infra n. 57, p. 46-67. 51. See Arts. 240.2, 236.4 TFEU. 52. In particular the Treaty of Amsterdam followed this path with the reform of legal instruments, qualified majority voting and constructive abstention; one step further, enhanced cooperation was extended to CFSP by Art. 27a TEU-Nice (now Art. 329.2 TFEU). 53. For regular calls for the normalisation of CFSP see, inter alia, R. Bieber, Democratic Control of International Relations of the European Union, in E. Cannizzaro (ed.), The European Union as an Actor in International Relations (Kluwer Law International 2002) p. 105 at p. 107-109 and P. Eeckhout, Does Europe's Constitution Stop at the Water's Edge? (Europa Law Publishing 2005) p. 4. 54. For the debate in the European Convention drafting the Constitutional Treaty, see Thym, supra n. 28, p. 9-17. 55. This paragraph reiterates my argument in Thym, supra n. 37, p. 333-334. 56. Similarly, Curtin and Dekker, supra n. 50, p. 179-184; G. De Baere, Constitutional Principles of EU External Relations (Oxford University Press 2008) p. 123-124 and M. Mangenot, The Invention and Transformation of a Governmental Body: The Council Secretariat, in J. Rowell and M. Mangenot (eds.) A Political Sociology of the European Union: Reassessing Constructivism (Europe in Change) (Manchester University Press 2011). 57. For a legal analysis of the Council's practice, see A. Dashwood, The Law and Practice of CFSP Joint Actions, in Cremona and de Witte, supra n. 45, p. 53 at p. 55-65.
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58. Both executive and legislative functions can be realised in different (intergovernmental or supranational) modes; national governments may control law-making in the same way as the Commission could theoretically command CSDP operations. 59. See the argument and references in Thym, supra n. 37, p. 311-314. 60. Art. 24.1(2) TEU, which, as one consequence, entails that Council sessions may be closed to the public under Art. 16.8 TEU. 61. Art. 288.3 TFEU defines legislation on the basis of procedure (not substance); the exclusion of CFSP legislation therefore implies the absence of legislative procedure. 62. Art. 16.1 TEU. 63. Art. 17.1 TEU. 64. Council meetings in April, June and October are held in Luxembourg in accordance with the Protocol (No. 6) on the Location of the Seats of the Institutions (OJ [2008] C 115/265). 65. Art. 25.a+b TEU continues the earlier differentiation between Common Strategies, Joint Actions and Common Positions under Art. 13-5 TEU-Amsterdam/Nice, but regroup the measures as decisions within the meaning of Art. 288 TFEU. 66. Legally, A Secure Europe in a Better World - The European Security Strategy, Council doc. 15895/03 of 8 Dec. 2003 constitutes a non-binding elaboration of the HR which was approved by the European Council; an adoption as a Common Strategy within the meaning of Art. 13 TEU-Nice, Art. 25.b TEU-Lisbon would have allowed for the adoption of implementing decisions by qualified majority under Art. 31.2 TEULisbon. 67. For an early assessment, see R. Wessel, The European Union's Foreign and Security Policy (Kluwer Law International 1999) p. 108-115 who rightly points at the present Art. 26.2 TEU as a textual reference to informal definition and implementation of CFSP standpoints; more recently Duke and Vanhoonacker, supra n. 14, p. 377-378. 68. See the references supra n. 58. 69. Art. 38.1 TEU. 70. See D. Thym, Reflections on the Political and Security Committee (PSC), in H.-J. Blanke and S. Mangiameli (eds.), The European Union after Lisbon (Springer 2011) p. 517-532 and A. Juncos and C. Reynolds, The PSC: Governing in the Shadow, 12 EFA Rev. (2007) p. 127-147. 71. Insofar as CFSP standpoints do not require legal force, there is no need for the A point practice, which guarantees formal Council involvement in legislative, supranational decisions; cf. C. Harlow, Accountability in the European Union (Oxford University Press 2002) p. 34. 72. For a list of preparatory bodies after the entry into force of the Lisbon Treaty, see Annex II to Council Decision 2009/908/EU (OJ [2009] L 322/28). 73. Since the EEAS or other bodies do not hold formal decision-making powers within the meaning of Arts. 25-31 TEU nor formal delegation of decision-making occurs; indeed, it seems that the ECJ's Meroni doctrine does not fir the concept of executive foreign affairs activities; see also B. Van Vooren, A legalinstitutional perspective on the European Union External Action Service, 48 CMLR (2011) p. 475 at p. 490-491. 74. See the subsection on the administrative line of command below. 75. D. Allen, Who Speaks for Europe?, in J. Petersen and H. Sjursen (eds.), A Common Foreign and Security Policy for Europe? (Routledge 1998) p. 41 at p. 48. 76. For further reflection, see J. Howorth, Security and Defence Policy in the European Union (Palgrave Macmillan 2007) p. 129-146 and K. Glarbo, Reconstructing a CFSP, in T. Christiansen et al. (eds.), The Social Construction of Europe (Sage Publications 2001) p. 140-157. 77. M. Smith, Europe's Common Foreign and Security Policy (Cambridge University Press 2004) p. 67-83 describes the early practice before the Single European Act. 78. See the overview by J. hrgaard, International Relations or European Integration, in B. Tonra and T. Christiansen (eds.), Rethinking European Union Foreign Policy (Manchester University Press 2005) p. 26 at
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p. 28-34, the classification by Trondal, supra n. 11, p. 6-8 and the governance perspective of P. Norheim, Beyond Intergovernmentalism, 48 JCMSt. (2010) p. 1351 at p. 1354-1355. 79. See the arguments put forward by E. Denza, The Intergovernmental Pillars of the European Union (Oxford University Press 2002) ch. 1, p. 5-32 and M. Pechstein, Die Intergouvernementalitt der GASP nach Lissabon, 65 Juristenzeitung (2010) p. 425 at p. 426-427. 80. An heuristic approach evades the deduction of legal consequences from the prior assumption of CFSP intergovernmentalism - instead, the term is used as an analytical category to signal procedural and legal characteristics of the Treaty regime. 81. Art. 24.1(2) TEU. 82. See the Final Report of European Convention's Working Group III Legal Personality, Doc. CONV, supra n. 23, 305/02 of 1 Oct. 2002, para. 18. 83. Art. 31.2 TEU adds the European Council request (which requires consensus under Art. 15.4 TEU) to the list for majority voting, in line with Art. III-300.2(b) Constitutional Treaty, supra n. 20; similarly, the specification of strategies (Art. 31.2 TEU, indent 1) and implementing decisions (indent 3) require prior unanimity in the Council. 84. Confusingly, the general passerelle provision of Art. 48.7(1) TEU also mentions CFSP explicitly, but differs from Art. 31.3 TEU concerning the veto power of national parliaments, which Art. 31 TEU does not mention; in practice, the different procedure should not make a difference in the light of the German caselaw mentioned hereafter. 85. The Federal Constitutional Court, Judgment of 30 June 2009, Case 2 BvE 2/08 et al. (Lisbon ), BVerfGE 123, 267, para. 320-1 requires prior parliamentary consent, most probably a two-thirds majority, before the consent at EU level. 86. See section 6(5)(a)+(b) European Union Act 2011 and, for Art. 48.6 TEU, section 4(1)(f)(ii) ibid. 87. Similarly, the argument by R. Wessel, The Multi-Level Constitution of European Foreign Relations, in N. Tsagourias (ed.), Transnational Constitutionalism (Cambridge University Press 2007) p. 160 at p. 198-199. 88. Art. 31.2(2) TEU; this variation of the infamous 1966 Luxembourg compromise, which had been introduced on the occasion of CFSP reform in the Amsterdam Treaty, was not abandoned during the constitutional reform process. 89. The experience of supranational policies suggests that qualified-majority voting serves as a trigger for convergence, directing the member states towards agreement, once the veto option disappears. 90. See Art. 275 TFEU. 91. See Art. 36 TEU and my earlier analysis D. Thym, Beyond Parliament's Reach?, 11 EFA Rev. (2006) p. 109-127. 92. Cf. the Draft Declaration by the High Representative on Political Accountability and Statement on the Basic Structure of the EEAS Central Administration (OJ [2010] L 210/1) and Van Vooren, supra n. 74, p. 479-480. 93. Arts. 27, 22.1 TEU-Amsterdam/Nice have been discontinued, while the corresponding powers of the HR under Arts. 30.1, 27.1 TEU are, as CFSP powers, outside the reach of the fourth sentence of Art. 18.4 TEU; see also Craig, supra n. 31, p. 413-414. 94. Despite the HR's chair function (Art. 27.1 TEU) the Commission continues to be represented autonomously in meetings of the Foreign Affairs Council and its preparatory bodies; see, e.g., the minutes of the 3069th Council meeting on 21 Feb. 2001, Council Doc. 6763/11, p. 5-6; for the earlier practice, see Duke and Vanhoonacker, supra n. 14, p. 163. 95. Art. 27.3 TEU, whereas Art. 2.1 EEAS Decision, supra n. 44 entrusts the EEAD to support the HR. 96. Art. 1.2 EEAS Decision, supra n. 44. 97. For an intensive discussion, see Van Vooren, supra n. 74, p. 486-491. 98. See D. Thym, Foreign Affairs, in von Bogdandy and Bast, supra n. 31, p. 309 at p. 483-487. 99. See the assessment of the symmetric orientation of Art. 40 TEU, which no longer shields supranational
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policies against CFSP interference only, by B. Van Vooren, The Small Arms Judgment in an Age of Constitutional Turmoil, 14 EFA Rev. (2009) p. 231-248. 100. See Missiroli, supra n. 44, p. 435-436. 101. Lieb and Maurer, supra n. 44, p. 200 report that it was a deliberate choice; Art. 4.3 EEAS Decision, supra n. 44, states ambiguously that the recently established Crisis Management and Planning Directorate (CMPD) shall support CFSP in accordance with Art. 40 TEU; for earlier disputes, see F. Hoffmeister, Inter-Pillar Coherence in the European Union's Civilian Crisis Management, in S. Blockmans (ed.), The European Union and International Crisis Management (T.M.C. Asser Press 2008) p. 157-180. 102. See Arts. 5.3, 9 EEAS Decision, supra n. 44, and their criticism by Sydow, supra n. 47, p. 9-10. 103. See the description of foreign-policy under the living constitution above. 104. Art. 38(2) TEU; for more detail, see Thym, supra n. 71, p. 522-524. 105. See for the operation ATALANTA on the coast of Somalia Arts. 6-7 Council Joint Action 2008/851/CFSP (OJ [2008] L 301/33). 106. See Arts. 1, 47 TEU. 107. On different lines of argument before the entry into force of the Lisbon Treaty, see R. Gosalbo Bono, Some Reflections on the CFSP Legal Order, 43 CMLR (2006) p. 337 at p. 370-376 and Thym, supra n. 99, p. 336-338. 108. See, e.g., Pechstein, supra n. 80, p. 425-426. 109. The most prominent prediction of unity had been voiced by A. von Bogdandy, The Legal Case for Unity, 36 CMLR (1999) p. 887-910. 110. Cf. Arts. 2-6 TFEU. 111. Contrast Arts. 2.3, 5.2, 145-50 TFEU with Arts. 2.2, 4.2(e), 191-3 TFEU 112. As has been convincingly argued by C. Herrmann, Much Ado About Pluto?, in Cremona and de Witte, supra n. 45, p. 20 at p. 34-36. 113. Again, Art. 24.1(2) TEU which was introduced in the Lisbon Treaty in order to underline, together with the continued placement of CFSP in the EU Treaty (instead of the TFEU), that CFSP differs from other aspects of external action - in contrast to Arts. III-294-331 Constitutional Treaty (supra n. 20), which positioned CFSP alongside CCP without however the same procedural and institutional rules. 114. The ECJ has never explained the reasons for supremacy expressly, but points at the particularity of the EU legal order and its distinction from public international law; the corresponding concept of a transfer of competences resonates with national constitutional rules in many member states; cf. M. Claes, Constitutionalising Europe at its Source, 24 Y.E.L. (2005) p. 81-125. 115. See J. Klabbers, An Introduction to International Institutional Law, 2nd edn. (Cambridge University Press 2009) p. 46-50 and M. Ruffert and C. Walter, Institutionalisiertes Vlkerrecht (C.H. Beck 2009) section 5. 116. After 2001 the EU (not the EC) concluded almost hundred agreements with third parties or international organisations on the basis of Art. 24 TEU-Nice which arguable established the legal personality which earlier Treaty amendments had shied away from designating explicitly; for more detail, see D. Thym, Die vlkerrechtlichen Vertrge der Europischen Union, 66 ZaRV/Heidelberg Journal of International Law (2006) p. 863 at p. 864-899 and R. Wessel, The European Union as a Party to International Agreements, in A. Dashwood and M. Maresceau (eds.), Law and Practice of EU External Relations (Cambridge University Press 2008) p. 152-187. 117. Cf. Art. 4.1 of the Rome Statute (UNTS vol. 2187, p. 3) and Art. 8.1 of the WTO Agreement (OJ [1994] L 336/3). 118. State constitutions usually refrain from mentioning explicitly that the state shall be a subject of public international law; in the 19th century the definition of federation (Bundesstaat ) and confederation ( Staatenbund ) included legal personality as an feature of the former - a distinction which predates the recognition of other international legal subjects than states and can therefore not be maintained in the age of international organisations, which nowadays a confederation might establish.
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119. Pechstein, supra n. 80, p. 427-428 misses the difference between international competences, whose exercise create obligations under public international law (such as within the WTO), and the supranational transfer of sovereign state powers to the EU. 120. ECJ, Case 6/64, Costa v E.N.E.L. [1964] ECR p. 1251 at p. 1269. 121. Art. 2.4 TFEU, in the same way as Art. I-12 Constitutional Treaty (supra n. 20), deliberately avoids to align CFSP with the supranational exclusive or shared competences. 122. Declaration (No. 14) concerning the Common Foreign and Security Policy (OJ [2008] C 306/255). 123. Art. 2.1+2 TFEU define these limits of national competences (without extending them to CFSP); on pre-emption more generally, see R. Schtze, Supremacy without pre-emption?, 43 CMLR (2006) p. 1023 at p. 1032-1046. 124. ECJ, Case 106/77, Simmenthal [1978] ECR 629, para. 17. 125. See Art. 3.2 TFEU and M. Cremona, External Relations and External Competence, in Craig and de Brca, supra n. 10, p. 217 at p. 244-251. 126. Art. 24.3 TEU; see also the obligation for procedural coordination in Art. 32 TEU. 127. Cf. the general obligation in Art. 4.3 TEU, which the ECJ has referred to in cases reinforcing supranational legal effects, also in the former third pillar in ECJ, Case C-105/03, Pupino [2005] ECR I-5285, paras. 39-42; more generally Wessel, supra n. 88, p. 178-186, C. Hillion and R. Wessel, Restraining External Competences of EU Member States under CFSP, in Cremona and de Witte, supra n. 45, p. 79 at p. 108-112 and P. Van Elsuwege, EU External Action after the Collapse of the Pillar Structure, 47 CMLR (2010) p. 987 at p. 1012-1017. 128. Arts. 28.2 and 29 TEU. 129. On common positions under Art. 34.2.a TEU-Nice see ECJ, Joint Cases C-354/04 and C-355/04 P, Gestoras Pro Amnista & Segi v Council [2007] ECR II-1579, para. 52-4. 130. Before Lisbon, Joint Actions and Common Positions were two distinct CFSP instruments, which by name and substance differed from supranational legal acts; most commentators nonetheless concluded that they were legally binding; cf., among many, F. Dehousse, La Politique trangre et de scurit commune, in M. Dony and J.-V. Louis (eds.), Commentaire J. Mgret 12, 2nd edn. (Universit de Bruxelles 2005) p. 439 at p. 469-470. 131. Art. 28-9 TEU describe the binding character on the member states without any indication of intra-state supremacy, which matters insofar as decisions are binding on the designated addressee (Art. 288(3) TFEU). 132. Similarly, Curtin and Dekker, supra n. 50, p. 171-172; for a more nuanced assessment, see Craig, supra n. 31, p. 418 and p. 432-433, Van Elsuwege, supra n. 128, p. 989-991; Wessel, supra n. 88, p. 174-178 and p. 189-195 and K. Lenaerts and T. Corthaut, Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law, 31 EL Rev. (2006) p. 287 at p. 290-292. 133. For a similar argument see P. Eeckhout, External Relations of the European Union, 2nd edn. (Oxford University Press 2011) p. 171; De Baere, supra n. 57, p. 123-124, Gosalbo Bono, supra n. 108, p. 364 and 378 and Pechstein, supra n. 80, p. 428. 134. Such as entry bans or arms embargoes, with regard to which Art. 275 TFEU provides for ECJ jurisdiction in specific circumstances; one might possibly support a different conclusion in these cases following Curtin, supra n. 10, p. 186-187 and ECJ, Case 9/70, Grad [1970] ECR 825, although CFSP excludes the adoption regulations, the usual instrument for directly applicable supra national sanctions. 135. Art. 24.1(2) TEU, which - in the light of Art. 289.3 TEU - does primarily indicate the confirmation of Council predominance in decision-making (as described in the section on the executive specificity of CFSP above). 136. German Lisbon Judgment (n. 86), paras. 390 (first sentence) and 342 (second and third sentence) under reference to Arts. 24.1, 40 TEU, Art. 2.4 TFEU and Declaration (No. 14); for more detail, see D. Thym, Integrationsziel europische Armee?, Europarecht Beiheft (I/2010) p. 171-191 (also available through the author).
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137. The protection of national sovereignty is identified as the main reason for the intergovernmentalism of CFSP by Denza, supra n. 80, p. 19 and C. Hillgruber, Der Nationalstaat in der berstaatlichen Verflechtung, in J. Isensee and P. Kirchhof (eds.), Handbuch des Staatsrechts (C.F. Mller 2004) vol. III, 32, para. 91. 138. For dualist countries, the core question is not whether CFSP measures can be directly relied upon in national courts, but whether Union law dictates this result irrespective of national constitutional rules; similarly, Dashwood, supra n. 58, p. 55-56 and Herrmann, supra n. 113, p. 46. 139. Cf. A. Pellet, Le fondements juridiques internationaux du droit communautaire, in 2 Collected Courses of the Academy of European Law (1997) p. 193 at p. 245-267, as well as Denza, supra n. 80, p. 5-33, T. Hartley, International Law and the Law of the European Union, 72 BYIL (2001) p. 1 at p. 10-17 and Gosalbo Bono, supra n. 108, p. 370-376. 140. ECJ, Case 294/83, Les Verts [1986] ECR 1339, para. 23. 141. See also Curtin and Dekker, supra n. 50, p. 170-171. 142. Art. 6.2 TEU calls upon the EU to accede to the ECtHR. 143. ECJ, Joined Cases C-402 and 415/05 P, Kadi v Council and Commission [2008] ECR I-6351, para. 285; it should be noted that the judgment considered the first pillar aspects of the case only and shied away from embracing CFSP - despite the presence of a second pillar decision in the background which was not annulled. 144. For further reflection, see F. Naert, Accountability for Violation of Human Rights law by EU Forces, in Blockmans, supra n. 102, p. 375-394. 145. Even in the absence of ECJ jurisdiction (Art. 275 TFEU) national implementation decisions may possibly be challenged in national courts, which may even have to apply EU human rights standards in line with Craig, supra n. 31, p. 343-344. 146. See Art. 21 TEU and S. Oeter, in Blanke/Mangiameli, supra n. 71. 147. Cf. ECJ, Case C-162/96, Racke [1998] ECR I-3655, paras. 45-46. 148. For a similar, earlier argument, see von Bogdandy, supra n. 110, p. 889. END OF DOCUMENT
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E.C.L. Review 2010, 6(1), 1-5 European Constitutional Law Review 2010 From confederacy to convoy: thoughts about the finality of the Union and its member states W.T. Eijsbouts Monica Claes 2012 Cambridge University Press Subject: European Union. Other Related Subject: Constitutional law Keywords: EU constitution; EU law; Member States Legislation cited: Treaty of Lisbon 2007 *1 Just ten years ago, on 12 May 2000, German foreign minister Joschka Fischer gave his famous speech entitled From Confederacy to Federation, in which he called for European political integration by way of a new constituent Treaty, for full parliamentarisation of the Union and for a real executive government. All this, he considered, was needed for the Union to be able to admit the Eastern European states and safeguard its action capacity. The outcome would be a lean European Federation, but one capable of action, fully sovereign, yet based on self-confident nation-states, and it would also be a Union which the citizens could understand, because it would have made good its shortfall on democracy. According to their nature, things have taken a somewhat different course from what Fischer envisaged. Much sooner than he had expected, the new member states joined and the Union embarked on its constitutional venture. Fischer's idea of a deliberate political act to re-establish Europe, on the other hand, took ten years to become reality. And it would not do so in the form of a deliberate political act of re-establishment, but as a traditional amending treaty. Still, in this Lisbon Treaty, Fischer's ideas are alive. This is one more good reason to give them some attention. They are alive both in the form of facts that have meanwhile obtained and in the form of remaining questions. As to an obtained fact one may consider the choice that actually has been made of allocating core executive power. Fischer had said: Either one can decide in favour of developing the European Council into a European government, i.e., the European government is formed from the national governments, or - taking the existing Commission structure as a starting-point - one can opt for the direct election of a president with far-reaching executive powers. But there are also various other possibilities between these two poles. The facts have opted for developing the European Council into a European government, in which the European Commission is involved through its president. As to remaining questions, probably the principal one for scholarship is that of the relationship between the Union and its member states. Fischer had correctly argued: The main axis for such a European constitution will be the relationship *2 between the Federation and the nation-state. This is perfectly true and it is
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equally true that little in the matter seems to have been settled. The Lisbon Treaty has introduced a system of division of competences between the Union and the member states; it has reasserted the principles of conferral, of subsidiarity and of proportionality. But no one will venture now to say that these principles exhaust the subject. It is no exaggeration to see the relationship between the Union and its member states as the dark and most contested continent of European Union scholarship. Even in only its legal aspects or elements, the relationship is defined in part by international law, in part by domestic law of the member states and in part by primary and secondary Union law. In the mere constitutional sphere, there is much more to the relationship than just law. The member states are at once masters and servants of the Union, and they are many things in between. On 25 February 2010, the European Council president Van Rompuy gave a principled speech in Bruges which, in many ways, was inspired by the same analysis that Fischer made ten years earlier. Like him, Van Rompuy drew attention to the difference of decision-making methods between economic and political integration. In foreign policy you need quick decision and action, whereas our original working method was devised, and works well, as a rule making procedure. Progress in European foreign policy has relied largely on the impulse and the authority of the Heads of State or Government. In foreign affairs, and especially in security policy, the States themselves are the actor and they take responsibility. Therefore we should not be surprised that the more the Union deals with foreign affairs, in the coming decade, the more certain differences in attitude between Member States rise to the surface. Van Rompuy's contribution to conceptualising the resulting situation has the form of a metaphor. As foreign policy is concerned, I would prefer to compare the European Union to a convoy. Think of a convoy of 27 ships finding its way across the geopolitical waves. The wind makes them drift apart some of the time, gets them to sail in the same direction at other times. What you don't see is what the 27 captains know very well: under the waterline, their ships, like the 27 EU governments, are all connected, economically and monetarily. This European convoy does not have one single captain. Recently it acquired a permanent President, however. One of his tasks is to preside over the meetings of the 27 captains and to find a consensus about where to go. To re-establish a sense of strategic direction. There is a useful distinction, implicit in this metaphor, between what in the Union happens, exists and evolves aboveboard, and what happens beneath the surface. If the ships of state (Plato's old metaphor, which has shed its authoritarian connotation), are tied up beneath the waterline, it is through their economies, their cultures, their interdependence, their administrations and hopefully even their *3 populations. But metaphors are not meant to serve or provide doctrinal precision. What this image does well is to express by default how little progress has been made in constitutional scholarship on Fischer's central and unresolved question of the relationship between the convoy and the ships or, in other words: the relationship between the Union and its member states. The relationship between the Union and the states is rich, complex and full of paradoxes; this much is certain. Member states are under Union obligations and at the same time they are the Union's masters. Member states administer Union policies while at the same time, as part of the Union government, they decide on these policies. Member states as treaty masters are above and outside the Union, and at the same time they are being ordered around and scrutinised by Union institutions such as the Commission, the European Council and the Court of Justice. Member states' governments are subject to Commission control and at the same time together they form a sort of European government of which the Commission is a part. National parliaments scrutinise their own governments and at the same time they are empowered under the Union to scrutinise the Commission. Nationals of the member states are citizens of the Union. All participants are playing several roles at the time. Georges Scelle, author of the idea of ddoublement fonctionnel, would have been dazzled by the extent to which his idea applies to the Union.
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The picture of the convoy points at an actual web of interconnections. Constitutionally, however, it is puzzling. In the famous image used for the Marshall plan (reproduced on the cover of Andrew Moravcsik's 1998 book The Choice for Europe ) there is a single ship under sail of all the European flags together.1 In that perspective, the convoy pictures a regression. But is there regression, really? Much of what Joschka Fischer hoped and looked for ten years ago has materialised, even if in a very different form than he envisaged. The Union is steadily growing to its membership of thirty. There is a form of Union government with democratic credentials, although it is not a parliamentary form of government. The Union is based on states and citizens. All this has been accomplished much by way of practice, often without assistance or even acknowledgement of doctrine. But the relationship between the Union and the member states, or its finality, is still quite unresolved. In this respect we are where we were ten years ago. The convoy image testifies to this. One may blame the European governments or the states for failing to agree on a finality or final model for their collaborative structure. One may hold that the Treaty embodying some such finality was voted down by the French and the Dutch in 2005. Though there may be some truth to this, it certainly is not the last word. *4 Legal and constitutional structure does not spring and grow from agreement only. In historical fact, an actual structure of authority is mostly based on a succession of agreements but also of other factual developments and of conceptual understanding. The mixture may differ, but the lack of full agreement between participants as to the nature of their collaboration does not make the latter fundamentally flawed, either factually or conceptually. Did the Americans agree about the nature of their federation, in, say 1800? Did they understand what they were getting themselves into? A somewhat similar question related to the Union's definition was that of its legal personality. On the basis of the Maastricht Treaty, in the negotiations for which this legal personality had not been agreed, member states could hold that legal personality was absent. But under international law, this is merely the subjective side of the matter. Objectively, legal personality also depends on fact, qualified by international law, such as action from the Union bodies and acceptance by others. European legal doctrine was then right in looking beyond the lack of a voluntary act when inquiring whether Union legal personality existed: this could also arise from Union action on the international plane and acknowledgement by other states. This is in keeping with the Reparation for Injuries Ruling of the ICJ of 1948. And as soon as the Union started to conclude agreements, much of legal doctrine found that legal personality existed. When the states finally acknowledged legal personality for the Union in the Lisbon Treaty, legal doctrine had preceded them by fifteen years. Likewise the Union's constitutional status does not only depend on whether the states have agreed on this or not and it is becoming imperative to look beyond what the member states have managed to agree on as the Union's finality. Like legal doctrine concerning the Union's legal personality, constitutional doctrine should start to sort out the complex relationship between the member states and the Union and look for objective constitutional structure. It should draw on agreement, on action and on other elements of fact, and use not just law but other sources of understanding available in the Western constitutional tradition. There was a time when the Union's typical ambivalence between its international and its domestic public law status might be thought to be solved some day by its ultimate submission to either one of the two familiar regimes. The Union could revert to the status of an organisation plainly under international law, or it could turn into a state. Or it could hang in between as a sui generis animal. That time is past. Both revolutionary scenarios are now unrealistic. The in-between situation is quite stable. But as a sui generis animal it defies definition and is only intelligible by experts and to others who are familiar with it through daily practice. That is not an option. *5 We as constitutionalists owe it to ourselves and even to the 500 million other citizens of a member state
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and of the Union at the same time, to come up with a legally and constitutionally readable understanding of the situation. It must not be one suffering from the split between international and domestic public law. It must not mystify the Union as a completely original structure, intelligible only in its own terms. Such understanding should encompass not only the limits but also the logic of the situation; not only its mechanics but also its evolution. It should be intelligible for the public. It should allow for the multiple dualities of loyalty, of function, of legitimacy. It should allow for shared authority. Constitutional thought is well equipped to deal with actual duality and ambivalence. These characteristics of the Union are real and are here to stay. The relationship between the Union and its member states must be accounted for in its full spectrum, as part of a single, intelligible structure. That is within reach of constitutional scholarship. WTE/MC
1. This is drawn from Stephan Leibfried et al., Through the Funhouse Looking Glass: Europe's Ship of States, German Law Journal 2009, p. 311-334. END OF DOCUMENT
J.C. & S.L. 2009, 14(2), 265-308 (Cite as: )
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J.C. & S.L. 2009, 14(2), 265-308 Journal of Conflict & Security Law 2009 The European Union and crisis management: will the Lisbon Treaty make the EU more effective? Steven Blockmans Ramses A. Wessel 2012 Oxford University Press Subject: European Union. Other Related Subject: International law Keywords: Common European Security and Defence Policy; European Union; External relations; Peacekeeping Legislation cited: Treaty on European Union (Maastricht) 1992 *265 Abstract The European Union's security and defence policy (ESDP) was invented 10 years ago and has been operational for more than five years. During this period the EU has launched over 20 ESDP missions allowing the organization to be engaged in international crisis management in various ways. The coming years will reveal whether the European Union is able to meet its ambitions to carry out a greater number of more complex ESDP missions in higher-risk theatres. While the EU has stepped up the plate to meet these challenges, the three case studies discussed in this article (EULEX Kosovo, EUPOL Afghanistan, EUFOR Tchad/RCA) reveal that the path paved with good intentions might in this case indeed lead to hell. Whereas the new Treaty of Lisbon introduces quite a few institutional changes to the current treaty regime of foreign affairs and security policy, it is questionable whether these innovations will significantly improve the decision-making and leadership on issues of ESDP and, consequently, the effectiveness of the Union as an international crisis manager. [M]ore than 20 civilian and military operations, are or have been deployed on almost every continent, from Europe to Asia, from the Middle East to Africa. Thousands of European men and women are engaged in these operations, ranging from military to police, from border guards to monitors, from judges to prosecutors, a wide range of people doing good for the stability of the world. This is the European way of doing things: a comprehensive approach to crisis prevention and crisis management; a large and diversified tool box; a rapid response capability; playing our role as a global actor. Obviously, if the Lisbon Treaty were to be ratified, and I hope it will be, we would be even more effective. Javier Solana, 18 February 20091 *266 1. Introduction Most informed observers recognize that the word crisis is over-used when it comes to the European Union
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(EU).2 The story of European integration has been most frequently described in terms of a perpetual sense of division, diplomatic wrangling and failure to meet targets and deadlines. Similarly, the perceived failure of the EU to punch its weight in both global and regional geopolitics is often criticized. Both as a soft power and in its approach to harder security issues, the EU is often perceived by others as unstable, weak and ineffective.3 While it is an undeniable fact that, in little more than 50 years, war between the European Member States themselves has become unthinkable, the Union's record in terms of crisis management abroad, especially in wars waged in its neighbourhood, is indeed mixed at best. The famous and ill-fated declaration of Luxembourg's former minister of foreign affairs Jacques Poos that Yugoslavia's violent implosion in 1991 heralded the hour of Europe may have been morally true, but it certainly was not politically. Neither the wars on the territory of the former Yugoslavia nor the recent conflicts in the EU's neighbourhood (the Caucasus, the Middle East) have posed an existential threat to (parts of) the Union. Is it perhaps for this reason that the Member States have almost always failed the test of unity in the EU's efforts to resolve conflicts on its borders? This contribution assesses the Lisbon Treaty's amendments in the field of the Union's foreign, security and defence policy and questions whether they sufficiently equip the EU with the legal and institutional framework to face the maturity test in crisis management that it is currently facing. To this end, some legal as well as semantic clarifications will be made (Section 2) before a critical overview is given of the legal-institutional build-up and conduct of EU missions in the first five years since the European Security and Defence Policy (ESDP) was declared operational (Section 3). On the basis of an analysis of the operational shortcomings4 that the EU faces in the formulation of a solid strategy, *267 the translation of that vision into policy and the implementation thereof by way of the capabilities created (Section 4), the amendments introduced by the Lisbon Treaty will be assessed (Section 5) with an aim to answer the question of whether the new Common Security and Defence Policy (CSDP) will prepare the Union for bigger, more complex and longer-term operations in more dangerous theatres around the world (Section 6). 2. Some Preliminary Clarifications: The Lisbon Treaty and Crisis Management A. The Lisbon Treaty On 18 December 2007 the representatives of the 27 Member States of the EU signed the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community.5 The Treaty of Lisbon has seven Articles only. Articles 1 and 2 list all amendments to, respectively, the current Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC); Articles 3-7 contain some final provisions on, inter alia, the duration of the treaty, the ratification procedure and the renumbering of articles. Thus, in contrast to the 2004 Treaty establishing a Constitution for Europe --which never came into force due to a negative outcome of referenda in France and The Netherlands--the Lisbon Treaty does not intend to replace the current treaties, but rather to amend them. After it comes into force,6 we will have new, consolidated versions of both the EU Treaty and the EC Treaty (which will be renamed as the Treaty on the Function of the European Union--TFEU). The reason for the conclusion of the Lisbon Treaty can be found in its preamble: to complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action. The preamble of the Lisbon Treaty thus makes clear that strengthening the Union's role in the world is one of the reasons for its conclusion. Indeed, coherence of the EU's external action is currently seriously hampered by the institutional structure of the Union, *268 in which external competences and procedures in all three pillars (the European Communities, the Common Foreign and Security Policy (CFSP) and the Police and Judicial Cooperation in Criminal Matters) are artificially kept apart. In that respect the dissolution of the pillar structure and the
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merger of the EU and the European Community (EC) potentially adds to the coherence of the Union's external action. The Lisbon Treaty not only integrates the EC7 into the EU, but the new TEU also explicitly provides that The Union shall have legal personality (Art 7), thus making an end to the academic discussion on the legal status of the Union.8 That there is still some uneasiness on the part of some Member States is reflected in Declaration No 24, attached to the Lisbon Final Act: The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties. Like many Declarations, this one also states the obvious. After all, the principle of attributed (or conferred) powers forms a starting point in international institutional law and is even explicitly referred to in the new TEU, this time with no exception for the CFSP: Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States (Art 5).9 Similar careful considerations can be found in Declarations 13 and 14, which underline that the new changes do not affect the responsibilities of the Member States, as they currently exist and do not prejudice the specific character of the security and defence policy of the Member States. It has been argued that, taken together, and apart from their declaratory nature, these Declarations may nevertheless prevent a communitarization of the Union's foreign, security and defence policy.10 The new TEU contains all institutional provisions, whereas all policy areas (including the current EU Third Pillar on Police and Judicial Cooperation in Criminal Matters) will be part of the reformed EC Treaty, the new TFEU. It is therefore striking that the new Common Foreign, Security and Defence Policy will remain part of the TEU. Indeed, the current Second Pillar will be the *269 only policy area that will continue to have a separate status in EU law and even within Title V on the General Provisions on the Union's External Action there is a separate section on Special Provisions on the Common Foreign and Security Policy. It has been argued that the Second Pillar thus de facto remains in place.11 The reasons for this continued separation of foreign/security policy from other Union external policies (including trade and development) could already be found in the mandate for the Lisbon Intergovernmental Conference (IGC), in which Member States could not agree on a transfer of the CFSP provisions from the TEU to the TFEU.12 From a legalinstitutional point of view this does not make too much sense. After all, with the end of the separation between Union law and Community law possible fears of a further communitarization of CFSP are unfounded and even within the new TFEU specific provisions (including the role of the institutions, voting rules and available legal instruments) could have been inserted, as was done for other policy areas. B. Semantic Clarifications Another preliminary note relates to the term crisis management. In the international context, the word crisis is widely understood as an acute situation in which armed force is (likely to be) used. The much broader conflict is intended to denote every national or international situation where there is a threat or breach to priority values, interests and goals. The concept of conflict prevention is thus to be understood as the adoption and implementation of measures that aim to impede the escalation of a non-violent dispute into a crisis. Crisis management then refers to the organization, regulation, procedural frameworks and arrangements to contain a crisis and shape its future course while resolution is sought. Conflict resolution refers to efforts to impose a (partial) settlement in the case of a crisis and consolidate the cessation of violence. Actions meant to address the root causes of crises that have been resolved are dubbed post-conflict reconstruction and rehabilitation measures or, perhaps again confusingly, peace building.13 *270 While these narrow definitions are in tune with the firm terminological distinctions employed in Article 17(2) of the current TEU and Article 43(1) of the new TEU, the dividing lines between the different cat-
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egories are often blurred in practice. For instance, the strategies and actions aimed at the stabilization of a country or a region,14 adopted in the wake of a crisis, are intended to prevent the resurgence of armed violence in the short, medium and longer term. As such, these measures could fall within the realm of both peace building and (future) conflict prevention. The same holds true for the fuzzy concept of crisis management, as evidenced by the several guises under which the EU may act as a crisis manager: as a military force to keep or make the peace and to fend off threats to international peace and security posed by, for example, separatist groups, terrorist organizations or pirates; and in its civilian capacity by way of a wide variety of ESDP operations: police missions, rule of law missions, civilian administration missions, civil protection missions, peace monitoring missions, support missions to EU Special Representatives, border assistance missions and security sector reform missions.15 In the EU context, the notion of crisis management thus serves as a catch-all phrase for both military and civilian ESDP operations, whether they are deployed to prevent conflict from bursting into crisis, assist in enforcing the peace, keep the peace or build the peace. The finalit in the EU's terminological inflation of crisis management might well boil down to the external dimension of providing security,16 in all its cross-pillar glory.17 3. Crouching Tiger, Hidden Dragon A. Paper Tiger The need to move beyond the paper security structures that were introduced in the Treaty of Maastricht during the 1991 IGC became painfully apparent with the violent disintegration of Yugoslavia at the end of that year and with the war in Bosnia and Herzegovina (1992-1995). In the absence of its own military *271 capabilities under the newly launched CFSP, the EU could, however, avail itself of the Western European Union (WEU) to elaborate and implement decisions and actions of the Council that had defence implications.18 The word defence had to be interpreted in the broad sense, as a common defence of the territory of the EU, similar to clauses laid down in Article 5 of the Washington Treaty (NATO) and Article V of the Modified Brussels Treaty (WEU), was excluded from the TEU. The term referred to military cooperation in actions out-of-area. Reviewing the significant changes that had taken place in the security situation in Europe after the outbreak of the Yugoslav crisis, the WEU Council of Ministers, at its 19 June 1992 meeting on the Petersberg (near Bonn), redefined its operational role so as to include the deployment of military units of WEU Member States for humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking to implement conflict prevention or crisis management measures taken within the framework of the OSCE or the UN.19 While military units of the 10 WEU Member States, all also EU Member States, conducted operations in the Adriatic and on the Danube, they did not do so in support of the EU.20 The only official request of the EU in the first half of the nineties to make use of WEU capabilities concerned the support for the EU administration of the Bosnian town of Mostar (1994). Unfortunately, this operation was generally perceived a failure, especially by the parties to the conflict.21 With the crises in Albania (1997) and Kosovo (1999), the EU was further embarrassed at how little it could contribute to the management of crises at its doorstep. Frustration at such inadequacies--and calls for change by others--led France and the United Kingdom, the EU Member States that pack the most military punch, to prod their colleagues at the European Council's December 1999 summit at Helsinki in carrying forward work on the development of the Union's own military and civilian crisis management capabilities.22 At Helsinki the European *272 Council underlined its determination to develop an autonomous capacity to take decisions and, where NATO as a whole was not engaged, to launch and conduct EU-led military operations in response to international crises.23 Since then, the EU has worked hard to close the infamous capabilities-expectations gap in the field of the European
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Security and Defence Policy.24 In subsequent steps, the European Council agreed to the institution of new political and military bodies, structures and procedures to ensure political guidance and strategic direction; 25 the principles for consultation and cooperation with non-European allies and the UN, NATO and other international organizations;26 measures to enhance the Union's military and civilian capabilities and timetables for carrying forward work in both domains;27 and the adoption of an acquis scuritaire,28 including a European Security Strategy (ESS), the EU's first comprehensive approach to security issues.29 Thus, in a very short timeframe, the EU has developed what was needed to create an ability of its own to undertake the full range of the so-called Petersberg tasks, as incorporated in Article 17(2) TEU.30 *273 B. Hidden Dragon (i) First 5 years: age of innocence The most striking manifestation--and raison d'tre --of the ESDP is the EU's capacity to back its diplomatic efforts by force. Since the Treaty of Amsterdam became operational in 1999, Javier Solana, Secretary-General and High Representative (SG/HR) of the CFSP, supported by his staff at the Council, has made the most of the cautious wording of his tasks in Article 26 TEU. In the Western Balkans, the testing ground par excellence for the CFSP and ESDP, the EU, by way of its SG/HR, was instrumental in brokering a peace deal between the government and the Albanian separatists in the Former Yugoslav Republic of Macedonia (FYROM) in 2001 and in hammering out the Belgrade Agreement (2002) to prevent the Federal Republic of Yugoslavia (FRY) from falling apart and having a knock-on effect on the precarious balance reached in Kosovo.31 The question remained, however, whether such diplomatic constructs could sustain the disintegrative forces at work in the Western Balkans. While NATO continued to secure stability in FYROM32 and peacekeeping in the FRY was unthinkable in the wake of Operation Allied Force , it became increasingly clear that the EU was in need of an operational success in the sphere of ESDP to bring much needed balance to its internationally perceived persona of an economic giant, political mouse and military worm.33 On 1 January 2003, the EU launched the EU Police Mission in Bosnia and Herzegovina (EUPM) as its firstever civilian crisis management operation within the framework of the ESDP.34 On 31 March 2003, the EU finally deployed Operation Concordia, its inaugural military mission, to follow up on NATO's efforts to contribute to a stable and secure environment in FYROM.35 Since 2003, the EU has affirmed its operational capability through the launching of more *274 than 20 ESDP operations,36 mainly in Africa37 and in the Western Balkans,38 but also in the EU's eastern neighbourhood,39 the Middle East,40 and Asia.41 The EU has acted as a crisis manager in several guises: (a) as an honest broker of peace between the parties to a conflict (eg Aceh); (b) as an assistant to border management (eg Moldova/Ukraine); (c) as an adviser in justice reform (eg Georgia); (d) as a trainer of police and prison staff (eg Iraq); (e) as a security sector reformer (eg Guinea-Bissau); (f) as a security guarantor during elections (eg Democratic Republic of Congo); (g) as a peacekeeper on the invitation of a host country (eg FYROM); (h) as a regional arrangement operating under a mandate by the UN Security Council, to counter the threat to international peace and security (posed by, eg piracy and armed robberies against vulnerable vessels off the
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Somali coast) and to assist peacekeeping operations carried out by other international organisations (eg Chad and, indirectly, Darfur); and (i) as a component of an international transitional administration (eg Pillar IV in UNMIK). The EU has never acted in the capacity of enforcer of the peace (like NATO in Kosovo in 1999) nor in defence against an armed attack on its territory. While most of the early ESDP operations were fairly successful, largely thanks to the fact that they were usually short term and limited in both scope and size, they have also revealed shortfalls, bottlenecks as well as broader issues in crisis management. They range from growing pains, including the creation of the brand of EU crisis management as well as the planning and drawing up of appropriate mandates for ESDP missions, to more enduring challenges such as coherence between EU policies, institutions and instruments, coordination with other international organizations, notably NATO and the UN, and consistency of *275 output.42 Lessons learned from these ESDP operations should be taken to heart now that the EU is facing its maturity test as an international crisis manager. (ii) The next five years: a maturity test In spite of the growing pains in the development of ESDP, the EU has made significant strides in deploying crisis management operations. However, the issue of defining success of the ESDP is no longer measured in terms of merely launching missions, ensuring mission output and gathering operational experience. ESDP is past its age of innocence. The bar is set much higher now. Not only is greater intra- and inter-institutional coordination and cross-pillar coherence required by EU law and policy,43 the Union is also expected to conduct several operations at the same time,44 to carry them out in line with both human rights law and international humanitarian law,45 to live up to its promises by *276 accomplishing its tasks, to effect positive change on the ground and to show that it can take the lead among other international and institutional actors. These issues have become more pressing since the EU embarked on bigger and more difficult ESDP operations, for instance in the high-risk theatres of Kosovo, Afghanistan and Chad.46 If such crises are managed badly, then the EU risks losing its recently found confidence and acquired image as a regional and global actor serving the interest of international peace and security, especially if an ill-prepared and/or underequipped ESDP operation stumbles into another Srebrenica. In short, the EU is facing a big maturity test in ESDP. While the stakes are high for the EU, all three of the above-mentioned test cases unfortunately got off to a bad start.47 (a) EULEX KOSOVO. The biggest and most ambitious civilian ESDP operation to date, the rule of law mission in Kosovo (EULEX KOSOVO), was born in legal uncertainty after protracted international negotiations on the final status for Kosovo failed to culminate in the adoption of a new UN Security Council mandate for the mission in Kosovo.48 Attempts to provide the ESDP mission with such a mandate had been blocked by Russia and China, which emphasized that any Chapter VII operation in Kosovo had to be conducted within the framework of UN Security Council Resolution 1244 (1999) and that this implied a complete respect for the territorial integrity of Serbia. From the beginning, the USA, UK and France have argued that the EU's non-military operation is authorized because Resolution 1244 leaves considerable freedom to UN members and relevant international organizations to establish a military presence in Kosovo and to the UN SecretaryGeneral (UNSG) to establish an international civilian presence in Kosovo, with the assistance of relevant international organizations, in order to provide an interim administration.49 Taking note of the EU's wish to intervene, the UNSG decided to restructure the international civilian presence by replacing *277 certain elements of UNMIK by EULEX.50 While this reconstruction of the international civilian presence was later endorsed in a statement of the President of the Security Council,51 it by no means amounts to an official Security Council authorization of EULEX as such. From a UN legal perspective, therefore, the position of EU-
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LEX KOSOVO is rather fragile and redolent of constructive ambiguity.52 The Council of the EU made use of the small window of opportunity between the re-election of the moderate and EU-minded Boris Tadic as President of Serbia on 3 February and the declaration of independence by the Parliamentary Assembly of Kosovo on 17 February 2008, to adopt two Joint Actions, one to create the EULEX mission53 and the other to appoint Pieter Feith as EU Special Representative,54 and to get the mission physically underway on 16 February 2008.55 The adoption of the Joint Actions was therefore not yet marred by the divisions between Member States in reaction to the declaration of independence of Kosovo. Thanks to the agreement that the mission would only be staffed on a voluntary basis and the constructive abstention (Art 23(1) TEU) of Cyprus, Greece, Slovakia, Spain and Romania, the Member States that resisted the recognition of independence, it was possible to launch EULEX KOSOVO. While the emergence of EULEX from the ashes of two years of political wrangling over the final status of Kosovo was in itself quite an achievement of diplomatic skill and manoeuvring, the fact that the mission was born in such legal controversy has had a negative impact on its actual deployment and on its achievements so far. Spain decided to refrain from contributing personnel to the mission.56 Much to the dismay of its Allied partners, Spain even decided to withdraw its military forces from NATO's military operation in (what it does not recognize as a sovereign and independent) Kosovo.57 Moreover, Russia (at the UN level) and Serbia (at both the international and local levels) are blocking the *278 transfer of powers from UNMIK to EULEX KOSOVO and the local authorities, and thereby made it impossible for the EU's mission to be fully deployed as planned, ie by 15 June 2008.58 Of the 2000 law enforcement and justice experts initially envisaged for EULEX KOSOVO, not even 400 were on the ground by then.59 While EULEX began operations on 8 December 2008, it only reached full operational capability on 6 April 2009, with the vast majority of its staff deployed.60 Despite the challenges, the mission began to fulfil its mandate. Some of the early achievements include: (a) EULEX judges and prosecutors and their local counterparts having scheduled more than 80 hearings; (b) EULEX having completed the first trial at Mitrovica District Court since 19 February 2008; (c) EULEX having carried out 13 exhumations and identified the remains of 23 missing people, 18 of whom have been returned to their families; (d) the Mission having a 24/7 police and customs presence at gates 1 and 31; (e) the re-establishment of partial customs controls at the northern gates having resulted in a measurable increase in revenue collection and a considerable decrease in oil smuggling.61 Nevertheless, the political and local opposition to EULEX KOSOVO continues to pose operational challenges for the mission, especially in the de facto separated ethnic Serbian northern Mitrovica and when trying to assure the rights of minority groups throughout the territory of Kosovo.62 On orders from Serbia's government, the Kosovo Serbs, who represent some 5 per cent of the entire population, are refusing to cooperate with Kosovo's government and with EULEX.63 Kosovo is, first of all, a European problem, and the EU has the primary responsibility and interest to stabilize the region. Regrettably, the EU's coherence problems and outright inability to agree on a common policy has not only *279 weakened its role at the international level, it has also become a major obstacle to determined action within Kosovo itself, creating problems of inconsistency between policies (ESDP and enlargement) governed by different EU institutions (Council and Commission respectively). The five EU Member States that continue to withhold recognition of Kosovo in fact encourage those who refuse to offer EULEX KOSOVO any cooperation and, therefore, are impeding the mission's and the Commission's work. That
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stance also makes it infinitely more difficult for moderate forces in Serbia to adjust to the new situation in Kosovo. Arguably, only a unified EU position on the international status of Kosovo, combined with the knowledge that EU accession for Serbia is unthinkable as long as its conflict with Kosovo has not been fully resolved, may over time lead to a change of attitude on the part of both ordinary Serbs and their government. Both Serbia and Kosovo also need a clear European perspective and unhesitating help to meet the daunting challenges they are facing. At the moment, both are missing.64 (b) EUPOL AFGHANISTAN. In the wider context of the international community's efforts to support Afghanistan in taking responsibility for law and order, the EU has launched a three-year civilian ESDP mission in mid-June 2007.65 EUPOL AFGHANISTAN, which builds on the heavily criticized efforts of the German Police Project Office66 and other international actions in the field of police and the rule of law, is supposed to monitor, mentor, advise and train at the level of the Afghan Ministry of Interior, regions and provinces. The mission is widely regarded as the Union's most visible contribution to the international efforts at stabilizing the country. It runs in parallel to NATO's first military mission outside Europe. At the time of writing, the NATO-led International Security Assistance Force (ISAF) was seen by many observers to be failing to such an *280 extent that it risked fracturing the Atlantic Alliance itself.67 US President Barack Obama's search for strengthened European engagement to fight Al Qaeda and the Taliban insurgency on the AfghanPakistani (AfPak) border and to rebuild Afghanistan increased the pressure on EU Member State governments to put the conflict's regional dimension higher up their foreign policy agendas and to step up their military, police and civilian contributions to match their vocal support for the US-led initiatives with troops and kit. Afghanistan thus represents a litmus test for the future of transatlantic relations and for the EU's credibility as a global security actor.68 Most EU Member State governments, however, remained reluctant to commit significantly more combat troops to ISAF or to remove national restrictions on their deployment.69 This was due to public reservations--if not outright opposition--in Member States to the war in Afghanistan, the deteriorating security situation and the remoteness of the theatre. Understandably, it makes it harder to argue the case for more military engagement in what seems to be an endless war far away in a country that has always ejected foreign occupiers. It was only after much cajoling and shaming by the USA and NATO that EU Member States, at NATO's 60th Anniversary Summit on 3-4 April 2009, committed 5000 new troops to the 26 000 already in place, but 3000 of them would be deployed only temporarily to provide security for the August 2009 elections.70 Obama's calls for a more permanent European troop increase were thus politely brushed aside. By increasing US troops in Afghanistan to some 68 000 by the end of 2009, *281 from 38 000 at the beginning of the year, the character of ISAF has been significantly Americanized.71 When EU Ministers of Foreign Affairs in February 2009 promised to forge a common approach with the USA to building a stronger and safer Afghanistan,72 they probably meant shifting the international focus from military solutions to a more comprehensive approach, covering wider security and development issues such as police and judicial training and reform, strengthening Afghanistan's governance and emboldening the counter-narcotics drive. Arguably, these are areas where the EU has more expertise and experience to play a key role. At the same time, this approach puts the onus on the EU to perform. Whereas the EU is already a leading aid donor to Afghanistan,73 with police reform now higher up the Afghan security agenda, most expectations and attention will be centred on EUPOL AFGHANISTAN, the Union's highest-profile initiative. As Islam and Gross have noted: [w]hatever else the EU does, its efforts will be judged by the police mission's success or failure. () The good news is that EUPOL is now widely recognised as an important component of the international drive for improved security in Afghanistan. The bad news is that its deficiencies mean Europe continues to punch below its weight in the country.74 Launched in 2007, EUPOL aims to contribute to the establishment of sustainable and effective civil policing arrangements that will ensure appropriate interaction with the wider criminal justice system under Afghan
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ownership. The mission's tasks include working on an Afghan national police strategy, encouraging Interior Ministry reform and training at the level of the central Afghan administrations, regions, provinces and districts.75 Nineteen EU Member States plus Canada, Croatia, New Zealand and Norway contribute to the mission.76 EUPOL got off to a slow start. Of its initially envisaged 230 personnel, mainly police, law enforcement and justice experts, only around 170 had taken up their post by mid-2008, more than one year after its debut.77 They were to be deployed at central, regional and provincial levels but the mission was so poorly prepared *282 that barely three months after EUPOL's inception, its first police chief, Friedrich Eichele, quit owing to the lack of furniture, computers and--above all--cars, which meant that the initial staff could not leave Kabul and help the training in the provinces.78 The decision taken by the Council of Ministers on 26 May 2008 to double the original number of experts working in the mission79 was still being implemented in March 2009.80 For all the EU's talk about engagement, Member States have been hard-pressed to muster around 400 of their more than 2 million police officers to send to Afghanistan to train a police force of 16 000, which in many provinces is corrupt and predatory.81 Member State governments are thus seriously undermining EUPOL's credibility and effectiveness,82 especially seeing that the EU's police and justice mission will remain dwarfed by the US police reform programme (CSTC-A), which has committed substantially more resources to police reform (some of which are British, Dutch and German!), sometimes adopting different standards and methods.83 Apart from leveraging its contribution to Afghanistan to boost its visibility and credibility internationally, a key challenge for the Union will be one of coordination and cooperation among Member States and between the EC Delegation (European Commission) and the ESDP mission (Council Secretariat), so as to be able to speak with a single voice. Yet, EU Member States appear to be giving priority to upping their national profile in Afghanistan rather than to promoting collective efforts through their flagship mission. Mirroring former Balkans trouble-shooter Richard Holbrooke's appointment as US envoy for AfPak, several EU Member States (including the UK, France, Germany and Sweden) have also nominated their own AfPak envoys in addition to the EU Special Representative for Afghanistan, Ettore Francesco Sequi.84 The creation of such parallel national positions complicates coordination efforts between the EUSR's office, the Commission Delegation, EUPOL AFGHANISTAN in an already crowded *283 theatre. Arguably, setting up an EU contact group on Afghanistan could further confuse the situation, making it even less clear who speaks for Europe.85 (c) EUFOR TCHAD/RCA. In Resolution 1778 of 25 September 2007, the UN Security Council approved the establishment of a UN Mission in the Central African Republic and in Chad (MINURCAT) and authorized the EU to deploy its forces in these countries for a period of one year from the time of its declaration of Initial Operating Capability.86 However, the initial deployment of the one-year EU operation did not go ahead as planned. In spite of the urgent need to stabilize Chad's borders with Sudan and to protect refugees from Darfur, EU Member States squabbled for months over who should provide troops, helicopters and (medical) equipment, and who should pay the bills. The UK and Germany were unwilling to help with manpower or money because of other commitments, like the war in Afghanistan. Other countries were put off by the expected high maintenance costs of running helicopters, planes and medical aircraft in Chad's dusty environment. In an ironical twist of fate, EU Member States--which had heavily criticized Russia's deep incursion into Georgia during and after the five-day war in August 2008, accepted Moscow's offer to provide four Mi8 MT utility helicopters (with full supporting equipment and up to 120 personnel) for its EUFOR operation. 87 But logistics and finances were not the only problems that beset the EU peacekeeping mission for Chad. Military chiefs also proved very cautious about casualties, partly because of the mistrust of Chadian rebels as to the political motives of the main troop-contributing nation and former colonial power, France.88 When money, troops and equipment were finally found, the date scheduled for *284 the launching of the EUFOR
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(28 January 2008)89 was pushed further back owing to rebel attacks on N'Djamena, Chad's capital.90 Even before Operation EUFOR TCHAD/RCA reached Initial Operating Capability on 15 March 2008, it suffered its first casualty.91 Obviously, this forced the EU to rethink its strategy to secure commitments when troops are being put at risk.92 EUFOR's mission, ultimately involving 3400 troops from 26 EU Member States and a number of third states--the most multinational operation the EU has ever carried out in Africa--ended on 15 March 2009 when UN peacekeepers (a large number of whom are ex-EUFOR personnel) took over. The establishment of EUFOR TCHAD/RCA formed part of a comprehensive package of enhanced EU commitment to a regional approach to resolve the crisis in Sudan's troubled Darfur region.93 All EU instruments--diplomatic, political, military, humanitarian and financial--have been mobilized in support of this effort. EUFOR's activities included carrying out patrols to observe the security situation in its area of operation (eastern Chad and the north-east of the Central African Republic); protecting civilians in danger, in particular refugees and persons displaced by the fighting in Darfur; facilitating the delivery of humanitarian aid and the free movement of humanitarian personnel; protecting UN personnel, facilities, installations and equipment and ensuring the security and freedom of movement of its staff and UN and associated personnel. As such, these activities helped to speed up the establishment of UNAMID in Darfur, but it is highly questionable whether EUFOR had any impact at all on the efforts by the African Union (AU) (and the UN) into revitalizing the political process with a view to finding a lasting solution.94 Given the situation on the ground, the vast area covered and the logistical difficulties, this operation proved a real challenge for the EU. Whereas the Ministers of Defence of the Member States, at their informal meeting in Prague on 12-13 March 2009, stated that the objectives of the EUFOR TCHAD/RCA had been fulfilled successfully,95 the ESDP operation did not improve the security *285 situation.96 The expulsion of 13 humanitarian organizations from the Darfur region and the suspension of their relief efforts, as a consequence of the indictment by the International Criminal Court of the Sudanese President Omar al-Bashir,97 led to a massive efflux of refugees into neighbouring Chad and a crisis of even greater dimensions. Arguably, EUFOR's mandate, like that of its successor MINURCAT, was too restricted as it was limited to reducing insecurity in camps for refugees and internally displaced persons and the surrounding areas and did not include, as it needed to, elements to eradicate the root causes of the conflict.98 C. Challenges for EU Crisis Management in the Coming Years (i) Introduction The EU not only faces legal and political challenges in crisis management that force it to explain its interpretation of public international law and redefine its approach to both unlike-minded countries and powerful allies demanding a *286 bigger input in operations elsewhere, it also has to ensure that internal political and administrative cohesion is maintained and that operational demands posed by big and increasingly hybrid missions in difficult and dangerous situations are met and are translated into successful action. Last but certainly not the least, shortcomings in both budget and capabilities will have to be addressed.99 Needless to say, this is a huge test for the ESDP, the outcome of which will define not just the future of European crisis management, but indeed the very position of the EU on the international political scene. (ii) The internal vs external and soft vs hard divides in EU security policies A theme that is perhaps difficult to discern but that nevertheless emerges from the test cases elaborated above is that the classic distinctions between internal and external security and hard and soft security no longer apply to the analytical framework in which the issues related to these concepts are approached. What we are observing is a merging of the concepts of internal and external security and a shifting emphasis between soft and hard security.
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The first point, that is, that the internal and external security concepts are both trans-boundary in nature, is illustrated by, for example, the need to (i) stabilize Kosovo and draw it closer to the EU so as to prevent refugees, illegal immigrants and organized crime from being imported into the Union;100 and (ii) fight terrorist groups on the Afghan-Pakistani border in order to better protect the EU's internal security against terrorist attacks. The point can be made in other contexts too, as evidenced by the need to monitor the transit of natural gas to secure deliveries to the EU in the wake of the dispute between Russia and Ukraine in January 2009 over the payment of supplies.101 While it is true that the European integration process has always been a transboundary security project, for the first 40 years of its existence the EC/EU promoted inter-state security through a system of cross-border networks. External security relations among Member States were turned into domestic EU policies and law. Now, in an era of trans-boundary threats and security challenges, the task of the Union is to defend and boost its security through similar networks beyond the internal-external divide. But the unhelpful distinction between internal securitarization of relations between EU Member States and an external Common Foreign and Security Policy, a distinction that originates in the tradition of territorial security and border defence, has been cemented into the EU's pillar structure: the Second Pillar (CFSP) has been set in contrast-politically as *287 well as legally--to the internal security domains of the First Pillar (civil protection, energy, environment, health, etc.) and the Third Pillar (police, border control, etc.). However, the question is to what extent a practical and analytical line between external and internal security can be drawn for an entity set up with the aim of eroding borders to enhance inter-state security. The 2003 European Security Strategy (ESS) declares that internal and external aspects are indissolubly linked.102 However, the implications of this merger for the EU's protection are hardly reflected in the creation and analysis of EU security institutions, law, policies and operational planning. It is widely acknowledged that there is great potential in a more efficient combination of the EU's cross-pillar security policies and capacities.103 On the second point raised at the outset of this section, it is clear that, while a lot of (media) attention is devoted to the (problems involved with the) EU increasingly equipping itself for harder-type security missions in higher-risk theatres around the world, the kind of security challenges that it has to deal with more routinely on the European continent have a softer security character (eg illegal immigration, organized crime and the disruption of the flow of energy resources). Increasingly though, the distinction between the hard and the soft security nature of EU policies and operations is shifting. EULEX KOSOVO and EUPOL AFGHANISTAN are cases in point. As has already been mentioned in connection with the first point raised in this section, one consequence of this trend may be that the consistency in the implementation of different policies is undermined. Another consequence may be that the choice for the legal basis becomes more difficult. This is most strikingly visible in the EU's Border Assistance Missions (EUBAM) deployed in the EU's neighbourhood and the Security Sector Reform (SSR) missions elsewhere in the world. Whereas the legal basis for EUBAM Moldova/ Ukraine was assigned to the First Pillar,104 EUBAM Rafah was based on the Second Pillar because of the *288 especially dangerous environment of the Gaza Strip.105 EUSEC RD CONGO, the Union's first SSR mission, was designed to provide advice and assistance to the Congolese authorities responsible for security, while also taking care to promote policies compatible with human rights and international humanitarian law, democratic standards and the principles of good governance, transparency and respect for the rule of law. 106 Consultations between the Council and the Commission on the planning of an integrated mission (including a military, a police and a justice component) failed as no compromise could be reached on how to delineate the line of command that could preserve the respective competences of the institutions. As a result, such an integrated mission was never set up.107 It was only after a joint assessment mission to the DRC that the Council and the Commission presented a joint paper outlining the EU approach to SSR. In the end, the military and police component was entrusted to a Second Pillar mission, EUPOL RD CONGO, while the
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mandate for the justice component, EUSEC RD CONGO, was based on the First Pillar.108 (iii) Coherence and consistency: decision-making and leadership As mentioned in the previous section, the finding that the classic distinctions between internal-external and soft-hard security policies are blurring has consequences for the attempts of the Union to achieve more coherence and consistency in policy-making and law-making in the European security field. The notion of coherence refers to the level of internal cohesion, ie the level of institutional coordination within the EU. As such, the principle carries a procedural obligation for the institutions to cooperate with each other.109 The principle of consistency carries an obligation of result, namely, to ensure that no contradictions exist in the external projection of strategies and policies. Achieving more coherence and consistency in policy-making and law-making in the European security domain is not a new challenge but has been heightened. The recent enlargements with 10 states from Central and Eastern Europe, Malta and Cyprus have complicated decisionmaking on EU security policies. Again, Kosovo is a case in point. The Union's new geographical and geopolitical position has brought relations with *289 third countries, especially those on its borders, into sharper focus and is forcing the EU to define its international role and responsibilities more clearly. Is the current legal framework still conducive to the achievement of consensus on any issue, let alone topics as sensitive as security policies, in an EU numbering 27 Member States (or more)? While the increases in the number of Member States do not seem to really matter in a veto system, as it only takes one state to block a proposal,110 the chances of disagreement and delay do increase exponentially as the number of participants rises. With increasingly diverse interests and approaches to dealing with security issues, the last waves of enlargement have stretched the sense of solidarity and commonality to the maximum. The EU faces the challenge of ensuring that enlargement does not further disrupt internal cohesion and add to, instead of detract from, its ability to externally project security and stability. Leadership is needed to ensure that decisions on, for instance, counter-terrorism or launching ESDP missions are made swiftly and give clear direction to EU security actions in the operational phase. Without efficient decision-making and/or clear leadership, efforts to converge security policies may be futile. Yet, leadership and decision-making within the expanded Union are potentially the hardest issues to resolve, with already extremely sensitive areas further complicated by enlargement. In particular, the rise in the number of small states spells greater opposition to large-state dominance. Leadership is required at three levels: (i) the political drive to crystallize the idea of a security policy; (ii) the institutional responsibility within EU structures; and (iii) the practical administration of EU policy. The lack of leadership at these levels makes it difficult to decide whether a crisis exists, to then determine the scale of the crisis and to achieve a consensus on the response. This failure was clearly illustrated by the arguments over the deployment of police in Afghanistan.111 In the case of Chad, the leadership was disputed by the recipients of the EU's assistance--another problem that ought to be avoided. Annoyingly, talk of leadership immediately raises concerns about the emergence of directoires.112 This form of enhanced cooperation consists of a small number of EU Member States, usually the largest and/or most powerful, constituting the core decision-making body. The primary concern is that such a move will marginalize other/smaller Member States. The enlargement of the EU with 12 new Member States has complicated the Union's political balance. The three biggest EU Member States--France, Germany and the UK-continue to be *290 crucial to the EU's security policy formulation, as their efforts to spearhead a resolution of the nuclear dispute with Iran demonstrate. At the next level down, Italy and Spain have been joined by Poland and Romania as medium-sized Member States, demanding a seat at the top table. However, as the majority of new Member States can be classified as small states, their security sensitivities in decision-making processes have become an even greater issue.113 Due to their markedly Atlanticist orientation, the new Member States have tipped the internal balance of the EU in that direction. But because there is no talk of a
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Central European bloc--not on the issue of Euro-Atlantic relations, nor for that matter on any other important security policy,114 they will not want any form of directoire to emerge for decision-making on security policies, regardless of what combination of large states that directoire may entail. This brings us back to the issue of unanimity-based decision-making procedures in the largely intergovernmental security policies of the EU, the outcome of which has been made more difficult by the eastern enlargement. The arguments in the European Convention on the Future of Europe and the pre-Lisbon IGC between medium-sized states, such as Poland and Spain, and the largest states, particularly Germany, over the number of weighted votes in the Council and a double-majority voting system, exemplify the sensitivities of the issue. This argument also illustrates how wary some of the new Member States are about being dominated by the older and larger Member States. The intergovernmental nature of decision-making does not foster a sense of commonality. Member States may wield (the threat of) their veto whenever they disapprove, when the position taken is contrary to their interests, when external pressure is exerted upon them or when domestic opposition pressurizes the government. However, the bottom line remains that the willingness of the Member States to act together through their Union is often missing. The actions of individual Member States in Afghanistan are the sad proof of this. While pragmatism about the fact that only a united EU can tackle most of the security challenges posed by a globalizing world should make the Member States mend their ways, it will depend on vision and political leadership whether they will. (iv) Subconclusion Whereas the EU includes the assertion of its own identity on the international scene and the promotion of peace, security and progress in Europe, its *291 neighbourhood, as indeed the world, among its principal mission statements,115 it has, so far, not excelled in projecting a picture of itself as a strong international security actor. Both as a soft power and in its approach to harder security issues, the EU is often perceived by others as unstable and weak.116 The EU's image problem has been less related to its scale of efforts than to its inherent structural deficiencies and the Member States' unwillingness to follow up on their own initiatives to launch ESDP missions. That is not to say that the efforts developed by the EU could not be strengthened. It goes without saying that, for example, the extension of unconvincing (prospects of) benefits, the adoption of ineffective targeted sanctions and the formulation of weak mandates of ESDP missions should be prevented and amended where already in existence. It is a positive sign that, in the framework of the European Neighbourhood Policy (ENP), for instance, the Commission has indicated to stand ready to develop, together with the Council, further proposals in the field of conflict resolution, using both Community and non-Community instruments.117 However, the real test of the EU's effectiveness will come at the level of cohesion among Member States. A Union that is divided, and where the biggest countries seek their own selfish interests in bilateral deals with powerful neighbouring states, while the smaller Member States stubbornly block common positions and joint actions to draw attention to their concerns, will achieve little but derision, both at home and abroad. An EU that unites around clearly defined objectives will stand a much better chance of playing a prominent role on the international scene. In the following section we will investigate to what extent the Lisbon Treaty will be able to counter these difficulties, with a focus on the two key areas: decision-making and leadership (Section 4.A) and consistency in external action (Section 4.B). In addition we will investigate whether some of the new competences in relation to defence policy will make the EU more effective in this field (Section 4.C). 4. EU Crisis Management after the Lisbon Treaty A. Decision-making and Leadership
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As we have seen, effective crisis management calls for effective decision-making. However, in terms of decision-making in CFSP/CSDP, the Lisbon Treaty will only introduce minor changes. The Council--in its configuration as Foreign *292 Affairs Council118 --will remain the key decision-making organ, but, unlike the other Council configurations, it shall not be chaired by Member State representatives, but by the HR (currently Javier Solana) (Art 18, para 3 new TEU). In the new Union qualified majority voting (QMV) is the rule,119 except for CFSP, where unanimity continues to form the basis for decisions, except where the Treaties provide otherwise (Art 24, para 1 new TEU). In that respect it is interesting to point to the fact that apart from the already existing possibilities for QMV under CFSP,120 it will become possible for the Council to decide on this basis on a proposal submitted by the HR (Art 31, para 2 new TEU). This proposal should, however, follow a specific request by the European Council, in which, of course, Member States can prevent this possibility. In addition QMV may be used for setting up, financing and administering a start-up fund to ensure rapid access to appropriations in the Union budget for urgent financing of CFSP initiatives (Art 41, para 3 new TEU). This start-up fund may be used for crisis management initiatives as well, which would potentially speed up the financing process of operations.121 Overall, however, it is clear that it will continue to be difficult to force or stimulate Member States to do something they would not like to do. The key role of the Member States is maintained by the Lisbon Treaty, but with some interesting modifications. So far, most proposals in the area of CFSP have come from Member States, with a particularly active role of the Presidency. In that respect it is striking that the Member States are not mentioned in the new Art 22, para 2, which refers to joint proposals by the HR and the Commission only. However, this seems to be made up by Art 30, para 1, which lays down the more general rule that Any Member State, the High Representative of the *293 Union for Foreign Affairs and Security Policy, or the High Representative with the Commission's support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate. It is in particular this new role of the Commission that may trigger new possibilities for the EU in its external affairs, including international crisis management. Whereas the Commission so far has virtually refrained from making use of its competence to submit proposals on issues in the area of foreign, security or defence policy (Art 22 TEU),122 the creation of the competence to submit joint proposals with the HR may enhance its commitment to this area. This is strengthened by the fact that the person holding the position of HR will at the same time be a member (and even a vice-president) of the Commission (Art 17, paras 4 and 5). This combination of the functions of HR and Vice-President of the Commission is, without doubt, one of the key innovations of the Lisbon Treaty.123 The potential impact of this combination on the role of the EU in international affairs lies in the fact that there could be a more natural attuning of different external policies. In other words: the weekly (breakfast) meetings between the Commissioner for External Affairs and the HR can be replaced by a breakfast for one. At the same time, the continued separation between CFSP and other Union issues may very well lead to a need for different legal bases for decisions, and hence for the use of distinct CFSP and other Union instruments. This holds true not only for the outcome of the decision-making process, but also for the process itself, where both the relevant Commission DG and the CFSP section in the Council Secretariat continue to exist. Much will depend on the way in which the legal provisions will be used. Over the past 15 years, practice has revealed a process of institutional dynamics in which a growing together of Community and CFSP decision-making and institutional involvement proved unavoidable.124 Interestingly enough, the HR may continue its functions even in the case of all *294 Commission members being forced to resign following a motion of censure from the European Parliament (EP) (Art 17, para 8 new TEU). With regard to the EP and its influence on the Union's role in the world, its position will not change substantially. Apart from the rule that the HR and the other members of the Commission shall be subject as a body to a vote of consent by the EP (Art 17, para 7), the task of consulting the EP regularly on CFSP issues
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moves from the Presidency to the HR (Art 36 new TEU). This shift is related to the creation of the position of a fixed Presidency of the European Council, which replaces the current system of rotating presidencies (Art 15, para 5 new TEU). One could argue that this is a further step in the ongoing Brusselization that one could witness in relation to CFSP over the past years, in line with the replacement of the Political Committee by the permanent Brussels-based Political and Security Committee (PSC) and the increased role of the Council Secretariat.125 As legislative acts are excluded from the area of CFSP, the formal influence of the EP continues to stand in stark contrast to its competences in other policy areas. Indeed, whereas Article 16 (new) provides that the Council shall, jointly with the EP, exercise legislative and budgetary functions, Article 24 makes clear that CFSP is subject to specific rules and procedures and that the adoption of legislative acts shall be excluded. This seriously limits the formal role of the EP in the CFSP decision-making process. One may argue that this at least supports the effectiveness of operations, but at the same time it continues the complexity in situations where (perhaps on the basis of a joint proposal by the Commission and the HR) decisions need to cover both CFSP and other Union issues. In those cases, the specific rules and procedures in CFSP would necessarily result in two (or more) separate decisions on the basis of different legal bases, which again complicates the relationship with third states and other international organizations.126 As the case studies revealed, the internal struggle for the correct legal basis may not be helpful in establishing strong external action. Although not termed legislative acts, the CFSP instruments are decisions, which--despite their non-legislative nature--continue to be binding on the Member States, or as phrased in Article 28: they shall commit the Member States in the positions they adopt and in the conduct of their activity. The familiar labels Joint Action and Common Position will disappear, although all three current forms of CFSP decision will reappear: the new CFSP decisions may define (i) actions to be undertaken by the Union; (ii) positions to be taken by the Union; (iii) arrangements for the implementation of the decisions referred to in points (i) and (ii) (Art 25 new TEU). The somewhat unclear--and unnecessary--difference between Joint Actions and Common Positions thus comes to an end, which at least adds to a further streamlining of CFSP. *295 The separation of the Common Foreign, Security and Defence Policy (CFSDP) from other Union policies is also reflected in the continued exclusion of the European Court of Justice in these matters. However, Art 24 new TEU provides that this is with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union. Article 40, first of all, reflects the current preservation of the acquis communautaire clause and states that the implementation of CFSP shall not affect the other policy areas of the Union and vice versa (see Section 4.B below). Article 275 TFEU provides the other exception and allows for the Court to review the legality of decisions providing for restrictive measures against natural or legal persons (the famous sanctions against persons and groups on the anti-terrorism lists of the EU). In terms of leadership, however, something does seem to change. Most of the institutional changes in the Lisbon Treaty relate to the position of the High Representative for the CFSP, which will be renamed the High Representative of the Union for Foreign Affairs and Security Policy. This name change reflects the fact that it has become clear that the HR indeed represents the Union and not the (collective) Member States. His or her competences are clearly laid down in the Union treaty and form part of the institutional framework. Although the term Foreign Minister, which was used in the Constitutional Treaty, has been abandoned, the new provisions make clear that the HR will indeed be the prime representative of the Union in international affairs. Even the President of the European Council (note: not the European Union127 ) will exercise its external competences without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy (Art 15, para 6(d)). The HR is to be appointed by the European Council (with the agreement of the President of the Commission) by QMV. This again underlines his role as Union
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representative, who is competent to act even in the absence of consensus among the Member States. The HR is to conduct the Common Foreign, Security and Defence Policy; he shall contribute by his proposals to the development of that policy, and preside over the Foreign Affairs Council (Art 18 new TEU). In addition, his de facto membership of the European Council is codified in Article 15 new TEU (although strictly speaking it is stated that the HR only takes part in the work of the European Council). He is to assist the Council and the Commission in ensuring consistency between the different areas of the Union's external action (Art 21 new TEU) and together with the Council ensures compliance by the Member States with the CFSP obligations (Art 24, para 3 new TEU). All in all, the position of HR has been upgraded to allow for a stronger and more independent development and implementation of the Union's foreign, security and defence policy, which--potentially--allows for a more coherent and more effective role for the EU in international affairs. *296 B. Continued Inconsistency in Crisis Management? As we have seen, the CFSDP will remain part of the Treaty on European Union (and not of the Treaty on the Functioning of the European Union) and will thus continue to have a separate status in EU law. At the same time the original CFSP tasks will be supplemented by a number of new purposes (below, in our italics), which occasionally go beyond CFSP stricto sensu. Article 21 of the new TEU thus seems to have integrated the CFSP policies into the more general external action policy objectives: The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or manmade disasters; and (h) promote an international system based on stronger multilateral cooperation and good global governance. On the basis of these principles and objectives, the European Council will identify the strategic interests and objectives of the Union, which will relate to both the common foreign and security policy and to other areas of the external action of the Union (Art 22 new TEU). In terms of consistency, this can only be applauded. However, for parts falling under the CFSP, the HR of the Union for Foreign Affairs and Security Policy will be responsible for proposals for Council *297 decisions, whereas for other areas of external action it will be the Commission. This reveals the continued need for separate procedures for foreign, security and defence policy. Nevertheless, as we have seen Article 22, paragraph 2 does allow for joint proposals, which would
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force the HR and the Commission to produce a consistent plan, thereby adhering to the demand that The Union shall ensure consistency between the different areas of its external action and between these and its other policies. (Art 21, para 3).128 The fact that the HR will also be a member of the Commission will certainly be helpful, although policy preparation and implementation may still have to be done in distinct Council and Commission directorates. From the outset (the 1992 Maastricht Treaty), consistency problems were the obvious consequence of the choice for a pillar structure in which both the EU and the EC had separate external competences and decision-making procedures. The division between political (CFSP) and other/economic (EC) external relations was never easy to make, but at the same time the Union and the Community were forced to use different instruments and decision-making procedures, thereby challenging the Union's potential as a cohesive force in international relations. There are numerous examples in which the institutional separation between CFSP and EC led to problematic decision-making and unclear situations for third parties, as was also revealed by our own case studies.129 Apart from the cases concerning the anti-terrorism measures against individuals,130 the recent Economic Community of West African States (ECOWAS) judgment again revealed the difficulties in separating foreign and security policy from other external policies. The case provided the first opportunity for the Court of Justice to speak out on a legal base conflict between the first (EC) and second (CFSP) pillars,131 and to shed some light on the distribution of competence between the *298 EC and the EU qua CFSP. In the event, the Grand Chamber of the Court found, unexpectedly for some and notably for the Advocate-General, that by using a CFSP decision on the EU support to ECOWAS in the fight against the proliferation of small arms and light weapons (SALW), the Council had encroached upon EC competence in the field of development cooperation, thus violating the provisions of Article 47 TEU.132 The Court preserved the acquis communautaire in the classic manner and argued that once foreign and security policy elements can be based on the European Community Treaty, they should not be based on CFSP. 133 Even more, the trend towards a more equal position of the CFSP134 (with its provisional peak in the new Art 40 after Lisbon; infra) seems to have been halted now that it is being envisaged that parts of the foreign and security policy be based on Community law once the latter allows for it, or be dealt with by the Member States acting individually or collectively. And, in view of the (established) scope of development policy, this should not be too difficult. The wide interpretation of development policy may have an effect not only on the effet utile of CFSP, but also on the consistency of EU external relations in general as ECOWAS may have taught the Council to be more careful with references to Community measures or tasks in its CFSP (and Third Pillar) decisions. It may also have warned Member States that allowing the Union to act qua CFSP may be harmful in areas where they enjoy a shared competence and it may trigger the Commission to come up with additional claims in other borderline areas. ECOWAS may thus prevent the smooth operation of a system of external relations where cooperation is more important and rewarding in terms of output, than competence competition. This judgment, together with the continued separate legal regime for foreign, security and defence policy within the EU, makes it difficult to improve the Union's consistency in its external actions. Nevertheless, the Lisbon Treaty introduces a new delimitation provision in Article 40 new TEU, which not only underlines the need for a preservation of the acquis communautaire (as in current Art 47 TEU), but seems to add that the CFSP competences should also be respected: The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of *299 the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter (CFSP).
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Thus, this provision no longer subjects CFSP to any Community competence, but equally calls for all other policies not to affect CFSP. One could argue that this provision places CFSP on an equal footing with other Union policies and at least no longer puts other Union policies in a default setting. At the same time internal delimitation problems similar to those we saw in ECOWAS, may continue to hamper effective external action. Crisis management is not achieved only by using CFSP/ESDP measures. The classic example of a cross-pillar policy--economic sanctions--returns in Article 215 of the new TFEU. As in the current Article 301 TEC, economic (and financial) sanctions may only be imposed after a CFSP decision to that end has been taken. An innovation can be found in the rule that the final legislation to that end can only be adopted by the Council (acting by a qualified majority) on a joint proposal by the HR and the Commission. The involvement of the HR in this procedure may guarantee an even better combination of political and economic questions. In addition, paragraph 2 makes clear that restrictive measures cannot be imposed only on states but also against natural or legal persons and groups or non-State entities. Finally, the debate on the legal protection of individuals and groups on sanctions lists resulted in a new paragraph: 3. The acts referred to in this Article shall include necessary provisions on legal safeguards. All in all, the Lisbon Treaty seems to offer a number of improvements that may compensate for the choice to separate the foreign, security and defence policy from other external policies (including trade and economic, social and environmental development). In that respect one can point to the broader objectives of the new CFSP and CSDP and the possibilities for the HR in his doublehatted function to combine security and military measures with the softer crisis-management measures that form part of other Union policies. C. New Competences in Defence Policy? (i) A collective defence obligation? As we have seen effective crisis management depends mainly on the potential of the EU to formulate and implement a security and defence policy. The Nice Treaty provided a basis for a European security and defence policy through a *300 modification of Article 17 TEU. Whereas originally the implementation of EU decisions with defence implications was left to the WEU, the Nice Treaty deleted all references to the WEU. From that moment on the Union had been given the competence to operate within the full range of the Petersberg tasks: humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking (Art 17, para 2). In that respect it is odd that Article 17 still refers to the progressive framing of a common defence policy after that same policy has entered into force on the basis of the same article. Provisions like these reveal the fact that, although a final consensus was reached on a European security and defence policy, some member states are more eager to lay everything down in treaty arrangements than others. Nevertheless, one cannot overlook the gradual development from the first provision in the Maastricht Treaty (the eventual framing of a common defence policy, which might in time lead to a common defence), to the Amsterdam Treaty (the progressive framing of a common defence policy, which might lead to a common defence) and finally to Nice where all references to the WEU were deleted, thereby making the EU itself responsible for the elaboration and implementation of decisions and actions that have defence implications. The Lisbon Treaty can certainly be seen as a further step in this development. For the first time a special title is devoted to the Common Security and Defence Policy (Chapter 2, Section 2 of the new TEU). On the basis of Article 42 The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The
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Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States. The Petersberg tasks have been extended to, inter alia, include: joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peacekeeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories. The references to joint disarmament operations, military advice and assistance tasks, post-conflict stabilisation and the fight against terrorism in Article 43, paragraph 1 are new and allow the Union to further develop its security and defence policy. Crisis management may also be needed in relation to an attack on the Union itself. However, with regard to the defence part of the new CSDP, the Treaty *301 remains ambiguous. The current provision reappears in the new Treaty: The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. (Art 42, para 2 new TEU). Nevertheless, the Lisbon Treaty does offer reasons to conclude that something has changed. First of all--and despite the claim that a common defence is not yet included in CSDP--Article 42, paragraph 7 provides the following: If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States. Taking into account that according to the Helsinki (1999) and Laeken (2001) Declarations the development of military capabilities does not imply the creation of a European army, it is puzzling what it is the European Council will have to decide on. One may argue that we are not yet dealing with strict obligations for all Member States. This would be confirmed by the second part of paragraph 7, which states that Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation. While this would indeed allow the neutral states Austria, Finland, Ireland and Sweden not to participate, the collective defence obligation does not really differ from Article 5 of the NATO Treaty or Article V of the WEU Treaty.135 What is different, however, is that both NATO and the WEU started their life as collective defence organizations and only started to get engaged in other security operations later. The EU seems to follow the reverse path, by concentrating on external crisis management before establishing a mechanism to defend its own Member States. Nevertheless, the feeling that something similar to a collective defence obligation has been created (although somewhat hidden in para 7 of Art 42) becomes *302 stronger when the so-called solidarity clause is taken into account.136 It is somewhat peculiar that this clause is separated from the collective defence clause and is included in the TFEU (Art 222) rather than together with the ESDP provisions in the TEU. The clause does not restrict common defence to armed aggression, but in fact extends the obligation to terrorist attacks: The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
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(a) prevent the terrorist threat in the territory of the Member States; - protect democratic institutions and the civilian population from any terrorist attack; - assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster. Paragraph 2 adds the following: Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council. Paragraph 3 refers to a coordinating role of the Council as well as the procedure: the arrangements for the implementation of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the HR. While the wording of the solidarity clause leaves room for both the Member States and the Council regarding the type and scope of their reaction, it may be seen as an innovation to the current legal regime, where no obligations for the Member States or competences of the Council form part of the treaties. However, after the Madrid terrorist attacks in March 2004, the European Council *303 issued a Declaration on Solidarity Against Terrorism,137 in which the solidarity clause was already incorporated, although the Declaration does not refer to a role for the Union as such, but to the Member States acting jointly. In addition, the Declaration leaves it to the Member States to choose the most appropriate means to comply with this solidarity commitment. (ii) A European army? As we have seen, some of the shortcomings in current EU crisis management seem to relate to the ad hoc implementation of ESDP. The Lisbon Treaty aims to counter this with the introduction of some form of institutionalization of procedures, formats and (civil and military) capabilities. First of all a new form of ad hoc flexibility is introduced by Article 44 new TEU: the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. This allows the Union to implement its new CSDP by subcontracting it to coalitions of the able and willing. An early example of this arrangement can be found in Operation Artemis, in which France took the initiative to form a group of EU Member States and other states to assist the UN operation MONUC in the Democratic Republic of Congo. A second form of institutionalization may be found in paragraph 6 of Article 42, which introduces the notion of permanent structured cooperation for those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions.138 The permanent structured cooperation is further elaborated by Article 46 and by a special Protocol. According to this Protocol the permanent structured cooperation can be seen as an institutionalized form of cooperation in the field of defence policy between able and willing Member States. In that sense it may be regarded as a special form of enhanced cooperation, although the term is not used. It shall be open to any Member State that undertakes to (Art 1): (a) proceed more intensively to develop its defence capacities through the development of its national contri-
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butions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and (b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat *304 units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 43 of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days. Obviously, no reference is made to the creation of a European army. Any explicit hints in that direction would have been unacceptable for certain Member States. Nevertheless, the tasks of the participating Member States come close to at least a harmonization of the different national defence policies. According to Article 2 of the Protocol, Member States undertake to: (a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities; (b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics; (c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures; (d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the Capability Development Mechanism; (e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency. Moreover, the Headline Goal 2010 includes the establishment of so-called battlegroups: force packages at high readiness as a response to a crisis either as a stand-alone force or as part of a larger operation enabling follow-on phases.139 On decision-making, the ambition of the EU is to be able to take the decision *305 to launch an operation within five days of the approval of the so-called Crisis Management Concept by the Council. On the deployment of forces, the ambition is that the forces start implementing their mission on the ground, no later than 10 days after the EU decision to launch the operation. In December 2008, the Council adopted a Declaration on Strengthening Capabilities in which a number of additional measures were agreed on to ensure that the Union will have sufficient military and civilian capabilities to enhance its contribution to international peace and security.140 In practice all these efforts seem to come close to what could be called an army, irrespective of the fact that--for political reasons--the documents stressed that the concept would not amount to the creation of a European army. Interestingly enough this phrase does not return in the Lisbon Treaty. D. Effective Crisis Management without the Lisbon Treaty In the event of a further delay in the entry into force of the Lisbon Treaty, the EU will certainly not halt all
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developments in ESDP. Apart from the above-mentioned Headline Goal 2010, on 19 November 2007 the Council adopted a Civilian Headline Goal 2010, which aims at improving the EU's civilian capability to respond effectively to crisis management tasks. This, the CHG 2010 should help to ensure that the EU can conduct crisis management, in line with the European Security Strategy, by deploying civilian crisis management capabilities of high quality, with the support functions and equipment required in a short time-span and in sufficient quantity. To that end it has been decided that by the year 2010: Sufficient numbers of well-qualified personnel are available across the civilian ESDP priority areas and for mission support, to enable the EU to establish a coherent civilian presence on the ground where crisis situations require it to do so. ESDP capabilities such as planning and conduct capabilities, equipment, procedures, training and concepts are developed and strengthened according to need. One of the results will be that missions have adequate equipment and logistics and other enabling capabilities, including for effective procurement procedures. The EU is able to use all its available means, including civilian and military ESDP, European Community instruments and synergies with the third pillar, to respond coherently to the whole spectrum of crisis management tasks. The development of civilian capabilities is given increased political visibility at EU as well as at Member States' level. *306 The EU strengthens its coordination and cooperation with external actors as appropriate. The CHG 2010 includes a procedural planning to gradually increase the capabilities of the Union and to make sure that lessens from earlier missions are taken into account. 5. Conclusion: An Effective Role for the EU in International Crisis Management? When we assume that the phrase improving the coherence of its action in the preamble of the Lisbon Treaty refers primarily to the Union's role in international affairs, it is indeed this aspect that needs to be assessed. The case studies of some key ESDP missions revealed that the classic distinctions between internalexternal and soft-hard security policies are blurring. Yet, the institutional structures do not (and will not) reflect this fact. The pillar structure introduced an inherent risk of inconsistency by dividing the Union's external relations over two different legal treaty regimes. In that respect the fact that the Common Foreign, Security and Defence Policy (the current Second Pillar) will continue to be in another treaty than all other Union policies should be seen as a missed opportunity. Both with regard to the decision-making procedures and the available instruments it will remain difficult to combine CFSP with other Union policies; which means that part of the Union's energy in international relations, including crisis management, will continue to be devoted to internal delimitation questions.141 After all, as a result of the complete communitarization of the Third Pillar (Police and Judicial Cooperation in Criminal Matters), there will be a more uniform decision-making regime in the other parts of the Union: more impetus will be given to QMV and the application of the co-decision procedure with the EP. Apart from an adaptation of the so-called constructive abstention provision the unanimity principle for decision-making with regard to CFSP/ESDP has been maintained. This means that consensus building among 27 (or more) Member States should become easier in the field of internal security policies but remain elusive in the field of external security policies. On the other hand, the above analysis reveals that a number of things will change in the CFSDP and that the Lisbon Treaty can certainly be seen as yet another step in the ongoing integration process in this policy field. The upgraded role of the HR is certainly the most innovating aspect. Apart from his extensive role as the key representative of the Union in (all) international affairs, his function has the potential of bridging the
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currently existing divide between Community and CFSP external relations. The same holds true for the future European *307 External Actions Service, although at this stage it is far from clear what its competences will entail. These consolidating developments are, however, conflicted by the choice to continue to divide the Union's external representation over different institutional actors. It is therefore debatable whether the Lisbon Treaty--if and when it enters into force--will repair two of the main current shortcomings in the realm of EU security policies: leadership and decision-making. The introduction of a High Representative of the Union for Foreign Affairs and Security Policy, while initially controversial, may improve leadership, especially when duly assisted by the European Commission, of which s/he will be one of the VicePresidents, and the European External Action Service. Then again, much will depend on the HR's rapport with the newly created President of the European Council, who will also be responsible for the external representation of the EU on issues concerning the CFSP. The delineation of responsibilities of both personalities is far from clear, at least on the basis of the text of the Lisbon Treaty. In addition, there are two other authorities responsible for representing the Union to the outside world: the rotating Presidency of the Council in configurations other than that of foreign affairs (Articles 16(9) new TEU and 236 TFEU) and the President of the Commission. Future practice will have to show how the new arrangements will work out. This being said, one may sincerely wonder whether the new arrangements will really contribute to enhancing the Union's visibility and to demonstrating greater unity to the outside world. As Kaddous pointed out: the task of external representation is shared by the High Representative, the President of the European Council and the Commission. Three entities? This comes out to at least three different phone numbers.142 As we have seen effective crisis management calls for effective leadership and the new provisions do not entail improvements as to consolidate the different views and opinions of the 27 EU Member States. The EU's potential in crisis management depends not only on the general institutional set-up, but also and more particularly on the provisions establishing a Common Security and Defence Policy. The special section in the new TEU devoted to this policy confirms its grown-up status. The Lisbon Treaty not only extends the possibility of the Union in this area (eg by extending the so-called Petersberg tasks), but also introduces something of a collective defence obligation, albeit perhaps in statu nascendi. Together with the European Defence Agency (which is already operational) and the possibility of Permanent Structured Cooperation, the new CSDP may allow the Union to further develop its presence as a military actor. The introduction of Permanent Structured Cooperation in the Lisbon Treaty (on the model of the Battlegroup concept) may allow for a more flexible and--the hope is--a more effective development of CFSP/ESDP in the future. The same applies to the so-called Group of the willing clause, on the basis of which the Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the *308 Union's values and serve its interests. The modifications may prevent urgent EU action from being blocked by a small minority of Member States. But, taking into account the serious problems many of the crisis management missions were facing (related to weak mandates, unwillingness on the side of Member States to work on capabilities as well as differences of opinion on how to respond), it is questionable whether the institutional innovations will suffice to improve things considerably. Indeed, the legal competences and possibilities available so far can hardly be blamed for the modest role of the EU in international affairs. And--as the history of CFSP shows--not so much the political will of Member States, but rather the Union's own institutional dynamics will trigger the coming of age of the Union's international capacities. The rather autonomous processes based on the adopted Headline Goals serve as clear examples. In that sense we have to agree with the observation that the Lisbon Treaty is also very much an enabling document in the sense that it provides for reforms, but with the details for their operationalization to be determined after the treaty is ratified.143 S Blockmans is Senior Research Fellow in EU Law at the TMC Asser Institute, The Hague; RA Wessel is Professor of the Law of the European Union and other International Organizations, Centre for European
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Studies, University of Twente, The Netherlands. Both authors are board members of the new Centre for the Law of EU External Relations (CLEER) in The Hague (<www.cleer.eu>).
1. Address by the EU High Representative for the Common Foreign and Security Policy, Javier Solana, to the European Parliament, Brussels, 18 February 2009, doc S045/09. 2. See, eg M Leonard, Why Europe Will Run the 21st Century (Fourth Estate, London/New York 2005) 4. 3. N Chaban, O Elgstrm and M Holland, The European Union as Others See It (2006) 11 EFA Rev, 245-262. For more recent figures and clues, see the ongoing survey coordinated by S Lucarelli, Research Report: the External Image of the European Union, GARNET Working Paper No 17 (GARNET, Dublin 2007). A first set of data drawn from the survey as published by L Fioramonti and S Lucarelli, How Do the Others See Us? European Political Identity and the External Image of the EU in F Cerutti and S Lucarelli (eds) The Search for a European Identity: Values, Policies and Legitimacy of the European Union (Routledge, London/New York 2008) 193-210. 4. Measuring the success, failure and effectiveness of policy making and concrete actions targeted at creating stability and security on the European continent and farther afield is fraught with difficulties. It is near to impossible to determine to what extent single efforts and approaches have led to positive or negative results at a more general level. Nevertheless, a number of activities and approaches may be ascribed a positive (or negative) influence on developments that have the potential to undermine the stability and security of a situation. It is on the basis of such general perceptions that general conclusions can be drawn. 5. Throughout this article, references to provisions of the Lisbon Treaty have been based on the consolidated versions of the TEU and the TFEU, as published in OJ 2008 C 115/1. 6. On 12 June 2008 the Lisbon Treaty was rejected in an Irish referendum. A new referendum is foreseen in the Autumn of 2009 and it remains difficult to speculate on the outcome. At the moment of writing (early July 2009), also the Czech Republic, Germany and Poland have not yet submitted their instruments of ratification. See for the possible future scenarios regarding the CFSP/ESDP provisions in the Lisbon Treaty: R Whitman and A Juncos, The Lisbon Treaty and the Foreign, Security and Defence Policy: Reforms, Implementation and the Consequences of (non-)Ratification (2009) 14 EFA Rev 25-49. 7. The European Atomic Energy Community (Euratom) will not be part of the new structure and will continue to be a separate international organization. See also Protocol 2 annexed to the Treaties. 8. See on this discussion the many references in RA Wessel, The International Legal Status of the European Union (1997) 2 EFA Rev 109; as well as Revisiting the International Legal Status of the EU (2000) 5 EFA Rev 507. 9. On the basis of Art 5 TEU, the principles of proportionality and subsidiarity also apply to all Union policy areas, although the Protocol on the Application of the Principles of Subsidiarity and Proportionality seems to focus on legislative acts only and these acts cannot be used for CFSP matters. 10. C Kaddous, Role and Position of the High Representative of the Union for Foreign Affairs and Security Policy under the Lisbon Treaty in S Griller and J Ziller (eds) The Lisbon Treaty: Constitutionalism without a Constitutional Treaty? (Springer, Vienna 2008) 205-221, 206. 11. S Kurpas, The Treaty of Lisbon--How Much Constitution is Left?--An Overview of the Main Challenges (December 2007) 147 CEPS Policy Brief 2. 12. In the words of Solana, the separation was important conceptually to the United Kingdom. See House of Commons, Foreign Affairs Committee, Foreign Policy Aspects of the Lisbon Treaty Third Report of Session 2007-2008 (London, January 2008). 13. The conceptual clarifications mentioned in this section have been distilled from a wide variety of policy papers, legal documents, handbooks and academic texts. See, eg An Agenda for Peace , UN doc A/ 47/277-S/24111, 17 June 1992, paras 20-59; Supplement to An Agenda for Peace , UN doc A/ 50/60-S/1995/1, 3 January 1995, paras 23-80; Report of the Panel on United Nations Peace Operations , UN doc A/55/305-S/2000/809, 21 August 2000; NATO Handbook (NATO Office of Information and Press,
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Brussels 2001); European Council, A Secure Europe in a Better World - European Security Strategy , Brussels, 12 December 2003; the High Representative's Report on the Implementation of the European Security Strategy--Providing Security in a Changing World , doc 17104/08 (S407/08), 11 December 2008; OSCE Handbook (OSCE Secretariat, Vienna 2007); A Schmid, Thesaurus and Glossary of Early Warning and Conflict Prevention Terms (Erasmus University, Rotterdam 1998); and P van Tongeren, H van de Veen and J Verhoeven, Searching for Peace in Europe and Eurasia: An Overview of Conflict Prevention and Peacebuilding Activities (Lynne Rienner, Boulder 2002). 14. The term stabilization is used here as a conceptual umbrella to cover all efforts geared towards removing the determinants of conflicts and crises. 15. One should note that election-monitoring missions do not feature among this categorization of ESDP operations, because they are financed out of the Commission's budget. 16. This point is derived from a Council official during the Jean Monnet Workshop on EU External Relations, jointly organized by Maastricht University and the TMC Asser Institute on 5 and 6 June 2008 at Kasteel Vaeshartelt, near Maastricht, as a precursor to the establishment of the Centre for the Law of EU External Relations (CLEER). 17. See Sections 4 and 5. 18. Article J.4(2) TEU. See also the document on the Relations between the Union and the WEU, adopted by the Council of the EU on 26 October 1993 and accepted by the WEU Council of Ministers on 22 November 1993, published in Bull EU 10-1993 and as document 1412 of the Assembly of the WEU, 8 April 1994. 19. The WEU Declaration of 19 June 1992 is reproduced in C Hill and K Smith (eds) European Foreign Policy: Key Documents (Routledge, London 2000) 205-211. 20. See W van Eekelen and S Blockmans, European Crisis Management avant la lettre in S Blockmans (ed) The European Union and Crisis Management: Policy and Legal Aspects (TMC Asser Press, The Hague 2008) 37-52 at 45. 21. van Eekelen and Blockmans (n 20), 46-48. See also J Monar, Mostar: Three Lessons for the European Union (1997) 2 EFA Rev 1-5. 22. See S Blockmans, A New Crisis Manager at the Horizon--The Case of the European Union (2000) 13 LJIL 255-263. As a result of a meeting between French President Jacques Chirac and British Prime Minister Tony Blair at Saint-Malo, a joint Franco-British declaration on European defence was issued on 4 December 1998, stating that [t]he Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them and a readiness to do so, in order to respond to international crises. The joint declaration is reproduced in Hill and Smith (eds) (n 19) 243-244. 23. See Bull EU 12-1999. The WEU Council facilitated this ambition by the EU by deciding to prepare the WEU legacy and the inclusion of those functions of the WEU, which will be deemed necessary by the EU to fulfil its new responsibilities in the area of crisis-management tasks. See WEU Ministerial Council, Luxembourg Declaration, 23 November 1999, para 4. For more details on the changing relationship between the two international organizations, see RA Wessel, The EU as a Black Widow: Devouring the WEU to Give Birth to a European Security and Defence Policy in V Kronenberger (ed) The European Union and the International Legal Order: Discord or Harmony? (TMC Asser Press, The Hague 2001) 405-434. 24. See C Hill, The Capability-Expectations Gap, or Conceptualising Europe's International Role(1993) 31 JCMS 305-328; and C Hill, Closing the Capabilities-Expectations Gap? in J Peterson and H Sjursen (eds) A Common Foreign Policy for Europe: Competing Visions of the CFSP (Routledge, London 1998) 18-38. 25. See, eg, S Duke, Peculiarities in the Institutionalisation of CFSP and ESDP in Blockmans (ed) (n 20) 75-105. 26. See J Wouters and T Ruys, UN-EU Cooperation in Crisis Management: Partnership or Rhetoric? in Blockmans (ed) (n 20) 215-232; M Reichard, The EU-NATO Berlin Plus Agreement: The Silent Eye in the Storm in Blockmans (ed) (n 20) 233-253; V De Graaf and A Verstichel, OSCE Crisis Management and OSCE-EU Relations, in Blockmans (ed) (n 20) 255-276; D Thym, Interregional cooperation in Crisis Management: EU Support for the AU, ASEAN and Other Regional Organisations in Blockmans (ed) (n 20)
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277-290; and A Sari, The Conclusion of International Agreements by the European Union in the Context of the ESDP (2008) 57 ICLQ 53-86. 27. See, eg G Lindstrom, Enter the EU Battlegroups , Chaillot Paper No 97 (EUISS, Paris 2007), in particular at 9-12; and J Schuyer, The Civilian Headline Goal 2008: Developing Civilian Crisis Management Capabilities for the EU in Blockmans (ed) (n 20) 135-142. 28. See C Glire, EU Security and Defence: Core Documents 2007 (Vol VIII) , Chaillot Paper No 112 (EUISS, Paris 2008). 29. See, eg S Biscop, The European Security Strategy-A Global Agenda for Positive Power (Ashgate Publishing, Aldershot 2005). 30. See more extensively, RA Wessel, The State of Affairs in European Security and Defence Policy: The Breakthrough in the Treaty of Nice (2003) 8 JCSL 265-288. 31. See S Blockmans, Tough Love: The European Union's Relations with the Western Balkans (TMC Asser Press, The Hague 2007) 189-207. 32. For months, Turkey delayed an agreement within the Atlantic Alliance on EU access to NATO assets and capabilities under the so-called Berlin Plus arrangements so as to enable the EU to take over from NATO while using the latter's hardware. See W van Eekelen, From Words to Deeds: The Continuing Debate on European Security (CEPS/DCAF Brussels 2006) 67-68. 33. See M Eyskens, Bron en horizon. Het avondland uit de impasse (Lannoo, Leuven 1985) 316. 34. See Council Decision 2002/968/CFSP of 10 December 2002 concerning the implementation of Joint Action 2002/210/CFSP on the European Union Police Mission, OJ 2002 L 335/1. 35. See Council Decision 2003/202/CFSP of 18 March 2003 relating to the launch of the EU military operation in the Former Yugoslav Republic of Macedonia, OJ 2003 L 76/43. 36. For an up-to-date list, see the website of the Council of the EU, ESDP operations, at <http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=268&lang=en&mode=g>. For the invisible crisis management operation in Georgia, ie the reinforced EUSR Support Team, comprising a Rule of Law follow-up to EUJUST THEMIS and a Border Support Team, entirely ensured through EC programmes, see F Hoffmeister, Inter-Pillar Coherence in the EU's Civilian Crisis Management in Blockmans (ed) (n 20) 157-180, at 166 fn 54. 37. See, eg A Abass, EU Crisis Management in Africa: Progress, Problems and Prospects in Blockmans (ed) (n 20) 327-343. 38. See, eg M Emerson and E Gross (eds) Evaluating the EU's Crisis Missions in the Balkans (CEPS, Brussels 2007). 39. See Hoffmeister (n 36) 163-167 and 170-175. 40. Hoffmeister (n 36). 41. See S Baroowa, EU Crisis Management in Asia in Blockmans (ed) (n 20) 345-354. 42. These issues are well documented. See, eg F Naert, ESDP in Practice: Increasingly Varied and Ambitious EU Security and Defence Operations in M Trybus and N White (eds) European Security Law (OUP, Oxford 2007) 61-101; Emerson and Gross (eds) (n 38); and T Hadden (ed) A Responsibility to Assist: Human Rights Policy and Practice in European Union Crisis Management Operations (Hart Publishing, Oxford/Portland 2009). 43. For academic analysis and references to relevant case-law of the ECJ, see P Koutrakos, Security and Defence Policy within the Context of EU External Relations: Issues of Coherence, Consistency and Effectiveness in Trybus and White (eds) (n 42) 249-269; Hoffmeister, (n 36); S Vanhoonacker, The European Security and Defence Policy and Coherence Challenges in the Council in Blockmans (ed) (n 20) 145-156; K Raube, European Parliamentary Oversight of Crisis Management in Blockmans (ed) (n 20) 181-198; and V Kronenberger, Coherence and Consistency of the EU's Action in International Crisis Management: The Role of the European Court of Justice in Blockmans (ed) (n 20) 199-211. 44. In its Declaration on Strengthening Capabilities of 11 December 2008, the Council mentioned the following ambitions: two major stabilisation and reconstruction operations, with a suitable civilian compon-
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ent, supported by up to 10,000 troops for at least two years; two rapid-response operations of limited duration using inter alia EU battle groups; an emergency operation for the evacuation of European nationals (in less than 10 days), bearing in mind the primary role of each Member State as regards its nationals and making use of the consular lead State concept; a maritime or air surveillance/interdiction mission; a civilian-military humanitarian assistance operation lasting up to 90 days; around a dozen ESDP civilian missions (inter alia police, rule-of-law, civilian administration, civil protection, security sector reform, and observation missions) of varying formats, including in rapid-response situations, together with a major mission (possibly up to 3,000 experts) which could last several years. The Declaration is available on the website of the Council of the EU, among the reference documents about civilian crisis management, at <http://ue.eu.int/showPage.aspx?id=1378&lang=En>. 45. See F Naert, Accountability for Violations of Human Rights Law by EU Forces in Blockmans (ed) (n 20) 375-393; M Zwanenburg, Toward a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Operations, in Blockmans (ed) (n 20) 395-415; and Hadden (ed) (n 42). 46. These ESDP missions will be taken as test cases. It is beyond the confines of this paper to explore other new or ongoing operations (eg Atalanta and Althea, respectively). 47. In other cases, the Union failed to intervene at all (eg over the 23-day assault of Israel on Gaza at the beginning of 2009) or did not get any further than sending a toothless EU Monitoring Mission (eg in Georgia after its five-day war with Russia in August 2008--even if the EU, ie France as holder of the EU Presidency at the time, brokered an early ceasefire agreement and showed unity over the condemnation of Russia for its deep incursion into Georgia proper and some Member States, eg the Baltic states, pushed heavily for an EU peacekeeping mission). 48. On the final status talks for Kosovo, the legal fallout of the decision of the USA, the majority of EU Member States (minus Cyprus, Greece, Slovakia, Spain and Romania), neighbouring states and other countries to recognize Kosovo as a sovereign state after it declared its independence from Serbia on 17 February 2008, see CJ Borgen, Kosovo's Declaration of Independence: Self-determination, Secession and Recognition (2008) 12 ASIL Insight , at <http://www.asil.org/insights/2008/02/insights080229.html>; M Weller, Negotiating the Final Status of Kosovo , Chaillot Paper No 114 (EUISS, Paris 2008); and J Ker-Lindsay, Kosovo: The Path to Contested Statehood in the Balkans (IB Tauris, London/New York 2009). 49. See UNSC Res 1244 (1999) paras 7 and 9 (military presence) and 10 (civilian presence), respectively. 50. In fact, the UNSG reported that he was simply informed of the European Commission's unwillingness to continue to finance UNMIK's Pillar IV. See UN doc S/2008/354, point 9. 51. See S/PRST/2008/44, 26 November 2008. 52. Editorial comments, And in the Meantime Kosovo (2009) 46 CML Rev 377-382 at 381. See also E Milano, Il Trasferimento di Funzioni da UNMIK a EULEX in Kosovo (2008) 91 Rivista di Diritto Internazionale 967-990. 53. Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, OJ 2008 L 42/92. 54. Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a European Union Special Representative in Kosovo, OJ 2008 L 42/88. Feith is also the head of the International Civilian Office (ICO) in Kosovo. His mandate was extended by Council Joint Action 2009/317/CFSP of 16 February 2009, OJ 2009 L 46/69. 55. As reported in R Goldirova, EU Kosovo Mission to Start Saturday Morning EU Observer 14 February 2008. 56. As reported in Spain Holds Staff from EU Kosovo Mission BalkanInsight 31 March 2008. 57. As reported by V Burnett, Spain's Retreat from Kosovo Raises Eyebrows International Herald Tribune 24 March 2009. 58. At the international level, Serbia--with strong support from Russia--is actively engaged in blocking Kosovo's accession to the UN and other global or regional organizations.
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59. See Summary of intervention of Javier Solana before the meeting of international organizations active on the ground in Kosovo, Council Press Release S 257/08, Brussels, 18 July 2008. 60. See Yves de Kermabon's speech at inauguration of new EULEX Headquarters, Pristina, 6 April 2009, at <http://www.eulex-kosovo.eu/?id=8&n=84>: With about 3,000 staff, EULEX is bigger than the other 9 civilian operations put together that the EU is currently running throughout the world. This is a major investment on the part of the EU. It was made because the EU is committed to regional stability and to the region's future in the European Union. 61. de Kermabon (n 60). 62. See Report of the Secretary-General on the UN Interim Administration Mission in Kosovo, UN doc S/ 2009/149, 17 March 2009, paras 6-8. 63. As reported by E Vucheva, Kosovo Not Yet Fully Independent, EU Envoy Says EU Observer 11 February 2009. 64. See M Ahtisaari, W Ischinger and A Rohan, The EU Is Coming Up Short in Kosovo Daily Star 18 February 2009; and in a more general sense Blockmans (n 20) 312-313: a so-called Helsinki moment should be created for the Western Balkans. This is a reference to the historic decision of the European Council gathered at Helsinki in December 1999 to grant candidate country status to Turkey. In a similar historic spirit, the European Council should use one of its forthcoming summits to review the achievements of the Western Balkans in satisfying the pre-accession criteria and grant candidate country status to Albania, BosniaHerzegovina, Montenegro, Serbia and Kosovo once all these countries have applied for membership. 65. Council Joint Action 2007/369/CFSP of 30 May 2007 on establishment of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN), OJ 2007 L 139/33 (as amended). On 23 March 2007, the UN Security Council adopted Resolution 1746 (2007) on the extension of UN Assistance Mission in Afghanistan's (UNAMA) mandate, which, inter alia , welcomes the decision by the EU to establish a police mission in the field of policing with linkages to the wider rule of law and counter-narcotics, to assist and enhance current efforts in the area of police reform at central and provincial levels. In a letter dated 16 May 2007 the government of Afghanistan invited the EU to launch an EU police mission in Afghanistan. 66. As reported by J Dempsey, Germany Criticized for Its Training of Afghan Police International Herald Tribune 15 November 2006. 67. See, eg M Williams, The Militia Mistake, Guardian 29 December 2008; J Blitz, NATO Summit Faces Afghan Test Financial Times 2 April 2009; T Shanker and S Erlanger, NATO Meeting to Highlight Strains on Afghanistan New York Times 3 April 2009; and D Korski, NATO: Keeping in Shape at 60 (2009) NATO Rev. 68. See, eg S Islam and E Gross, Afghanistan: Europe's Credibility Test EPC Policy Brief March 2009; and E Gross, Security Sector Reform in Afghanistan: The EU's Contribution, Occasional Papers No 78 (EUISS, Paris 2009). 69. In March 2009, the UK, the second-largest contributor to NATO forces with some 8300 soldiers, said it could not do more and was demanding fairer burden-sharing of responsibilities, particularly in more difficult areas such as the volatile southern province of Helmand. Germany had 3640 soldiers in the relatively calm North. France sent an additional 1200 troops in 2008, bringing its total to about 2800. Italy had 2350 soldiers, Poland about 1600, the Netherlands around 1800. National caveats on when, where and how these troops could be deployed remained in place, despite complaints that these significantly limit ISAF's operational capability. For an audit of EU Member States' contributions to Afghanistan's reconstruction, see D Korski, Shaping Europe's Afghan Surge (April 2009) ECFR Policy Brief 16-19. 70. As reported by S Erlanger and H Cooper, Europeans Offer Few New Troops for Afghanistan New York Times 5 April 2009. Twenty-five EU Member States are deploying troops to ISAF. Germany said it would send an additional 600 troops; Spain offered 600; the UK 900; Italy agreed to add 300 more soldiers; Poland wanted to send an extra 400. A further 1400-2000 soldiers would be sent to form embedded training teams for the Afghan army and the police. 71. See P Baker and T Shanker, Obama Sets New Afghan Strategy New York Times 27 March 2009.
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72. Council of the EU, Press Release 6729/09 (Presse 48) 23 February 2009, 7. 73. The combined European Commission and Member State aid to the country for 2002-2006 totalled EUR 3.7 billion. An extra EUR 700 million was earmarked for 2007-2010 in three key priority areas (justice sector reform; rural development, including alternatives to poppy production; and health) and this amount was again topped up with an additional EUR 60 million (20 million for election monitoring in August 2009, 15 million for police training and 24 million for rural development) at the International Conference on Afghanistan in The Hague on 31 March. See European Commission, Press Release IP/09/500 30 March 2009. 74. See Islam and Gross (n 68) 3. 75. Council Joint Action 2007/369/CFSP (as amended), Articles 3 and 4. 76. Factsheet on the EU Police Mission in Afghanistan (EUPOL AFGHANISTAN), March 2009. 77. See EUPOL AFGHANISTAN Press Release 3/2008, EUPOL completes deployment in the South, 2 July 2008. 78. As reported by J Dempsey, Europe Lagging in Effort to Train Afghan Police International Herald Tribune 28 May 2008. 79. Council of Ministers, 26-27 May 2008, Press Release 9868/08 (Presse 141) 29. 80. Council of Ministers, 16 March 2009, Press Release 7565/09 (Presse 63) 12. 81. No fewer than 14 calls by the EU Council Secretariat for contributions to EUPOL have fallen on deaf ears. See Korski (n 69) 9. Islam and Gross note one key problem in this regard, namely, that European police experts are more attracted by EULEX KOSOVO than the high-risk operation in Afghanistan, prompting EU Ministers of Foreign Affairs to discuss the possibility of tripling the salaries for those prepared to go to Afghanistan. See Islam and Gross (n 68) 3. 82. Especially those that have underperformed on military and civilian deployment: Austria, Estonia, Greece, Ireland, Latvia, Lithuania, Malta, Portugal, Romania and Slovenia. Austria, Belgium and Portugal do not even have an accredited resident ambassador in Kabul, a situation that undercuts their governments' proclamations of support for non-military purposes. See Korski (n 69) 3, 5. 83. Korski (n 69) 9. 84. Council Joint Action 2008/612/CFSP of 24 July 2008, OJ 2008 L 197/60; and Council Joint Action 2009/135/CFSP of 16 February 2009, OJ 2009 L 46/61. 85. See Islam and Gross (n 68) 4; and C Donnelly, Europe: Scrambling to Get it Right on Afghanistan Inter Press Service 4 April 2009. 86. Council Joint Action 2007/677/CFSP of 15 October 2007 on the European Union military operation in the Republic of Chad and in the Central African Republic, OJ 2007 L 279/21. 87. On 5 November 2008, Javier Solana signed an agreement with the Russian Ambassador to the EU on the participation of the Russian Federation in the operation EUFOR TCHAD/RCA. See Council of the EU, Press Release No S357/08. 88. As reported in Chad Rebels Warn EU Peace Force EU Observer 29 November 2007; and Charlemagne, Colonial Baggage The Economist 7 February 2008: A French national force, flying the tricolor, could not credibly pull off a mission sold as a humanitarian intervention, divorced from old-fashioned national interests. [] The Chad mission has proved a hard sell not because it is too ambitiously European, but because so many EU members suspect it of being a wheeze for advancing French interests. [] When columns of rebels attacked Chad's capital, the fear in Brussels was not that French troops might be overwhelmed, but that France would intervene so decisively on behalf of the sitting President, Idriss Dby, as to wreck EUFOR's claims to neutrality. [] Well over half of EUFOR's soldiers will be French, albeit sporting EU shoulder patches and taking orders from an Irish general, Pat Nash. The general told an Irish newspaper that his first challenge would be to disengage the [] mission from the French national presence in Chad. There would be much flying of European flags, he promised. 89. Council Decision 2008/101/CFSP of 28 January 2008 on the launching of the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/RCA), OJ 2008 L 34/39.
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90. EU Presidency Statement on the Republic of Chad, Brussels, 3 February 2008. 91. See EUFOR TCHAD/RCA, Press Release, 10 March 2008. 92. See A Mattelaer, The Strategic Planning of EU Military Operations--The Case of EUFOR TCHAD/ RCA IES Working Paper 5/2008. 93. See European Commission, Commission to Boost Support for Refugees and Displaced People in Chad and the Central African Republic, Press Release IP/07/1425, 1 October 2007. 94. It is thanks to the mediation of Qatar and Libya, the latter in its role as Chairman of the AU, that an initial accord was signed between Sudan and Chad with a view to a normalization of relations between the two countries. As reported on the website of the Qatari Ministry of Foreign Affairs, Sudan and Chad sign the Doha Accord, 3 May 2009, <http://english.mofa.gov.qa/newsPage.cfm?newsid=6265>. 95. As reported in the Press Release of the Czech EU Presidency, Informal meeting of EU defence ministers launched in Prague, 12 March 2009 at <http://www.eu2009.cz/en/news-and-documents/press-releases/informal-meeting-of-eu-defence-ministers-la unched-in-prague-12080/>. See also Javier Solana, EU High Representative for the CFSP, prepares the transition from EUFOR TCHAD/RCA to MINURCAT with the UN Special Representative Victor da Silva Angelo, Council Press Release No S039/09, 16 February 2009: With EUFOR, the European Union decisively contributed to increased security for the civilian populations and humanitarian workers in the region. 96. For a critical review of EUFOR's mission, see the reading of MEP Geoffrey van Orden (member of the EP's defence subcommittee): There is an appalling humanitarian and security situation in Chad. The EU has not managed the right response. [] The Chad mission would have been more successful and would have had continuity had the UN taken a role from the beginning, instead of acceding to the EU's politically driven request for military involvement. In the same vain, Elise Ford, head of Oxfam International's Brussels office, said that [c]ivilians in eastern Chad need as much protection as they did when the EU force was first deployed a year ago. The underlying security situation has not significantly improved even if part of the population feels safer. [] Crimes still go unpunished and banditry is a reality that thousands civilians face every day. Sexual violence is increasing and armed groups are free to recruit child soldiers, while inter-ethnic clashes have caused further deaths, left many injured and displaced. As reported by V Pop, EU Mission in Chad Ends Amid Tensions EU Observer 12 March 2009. 97. On 4 March 2009, Pre-Trial Chamber I of the International Criminal Court issued the ICC's first-ever arrest warrant for a sitting Head of State for war crimes and crimes against humanity. The ICC suspected alBashir of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property. See ICC Press Release No ICC-CPI-20090304-PR394, 4 March 2009. 98. See ICG, Chad: Powder Keg in the East Africa Report No 149, 15 April 2009. Oxfam called on the EU to work with the AU to appoint a high-level envoy to re-establish direct talks between the government and the main rebel groups. See Pop, (n 96). 99. For some out-of-the-box thinking on these issues, see A Bailes, The Conscription Debate That Europe Shies Away From (2009) 11 Europe's World 69-72. 100. To a lesser extent, this also applies to providing security to refugees in Chad. 101. For this Commission-driven initiative, see Press Release of 12 January 2009, ENERGY: Update on the deployment of EU monitor team in Ukraine at <http://www.delukr.ec.europa.eu/press_releases.html?y=2009&m=1>. 102. ESS: A Secure Europe in a Better World--European Security Strategy , Brussels, 12 December 2003. In the light of all evolutions that have taken place since its adoption in 2003, in particular the experiences drawn from ESDP missions, the endorsement by the December 2008 European Council of the High Representative's Report on the Implementation of the European Security Strategy--Providing Security in a Changing World --should be welcomed with a view to complement the ESS and to improve its implementation. See European Council, Presidency Conclusions, doc 17271/08 (CONCL 5) 12 December 2008, point 30,
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with reference to the Report of the High Representative laid down in doc 17104/08 (S407/08) of 11 December 2008. The report was written in full association with the Commission and in close cooperation with the Member States and highlights; for instance, climate change and energy dependence as major security threats. 103. See, eg S Duke and H Ojanen, Bridging Internal and External Security: Lessons from the European Security and Defence Policy (2006) 28 Journal of European Integration 477-494. 104. EU BAM Fact Sheet, December 2007 at <http://www.eubam.org>. See Hoffmeister (n 36) 173. For a review of the mission, see X Kurowska and B Tallis, EU Border Assistance Mission: Beyond Border Monitoring? (2009) 14 EFA Rev 47-64. 105. Council Joint Action 2005/889/CFSP of 12 December 2005, OJ 2005 L 327/28, Recital 13. Another reason for EUBAM Moldova/Ukraine to be legally based on the First Pillar is that the mission concentrates not only on security-related border and movement issues but also on customs and fiscal matters that are related to Community powers. 106. Council Joint Action 2005/355/CFSP of 2 May 2005, OJ 2005 L 112/20. 107. See G Grevi, Pioneering Foreign Policy: The EU Special Representatives Chaillot Paper No 106 (EUISS, Paris 2007) 116-117. 108. Council Joint Action 2007/405/CFSP of 12 June 2007 and Council Joint Action 2007/406/CFSP of 12 June 2007, OJ 2007 L 151/46 and /52, respectively. See Hoffmeister (n 36) 174. 109. Article 3(2) TEU imposes this obligation on the Council and the Commission. Within the framework of the Second Pillar, it is upon the Council to ensure the unity, consistency and effectiveness of action by the Union (Article 13(3) TEU). 110. See T Val%24sek, New EU Members in Europe's Security Policy (2005) 18 Cambridge Review of International Affairs 217-228 at 217. 111. The fault lines that opened up across Europe in 2003 over the war in Iraq were ominous signs for the development of a cohesive CFSP/ESDP and led to Rumsfeld's evocation of old and new Europe. See E Pond, The Dynamics of Alliance Diplomacy over Iraq EUI Working Papers , RSCA No 2004/26 (EUI Florence 2004). 112. See, eg S Keukeleire, Directorates in the CFSP/CESDP of the European Union: A Plea for Restricted Crisis Management Group (2001) 6 EFA Rev 75-101; T Jger, Enhanced Cooperation in the Treaty of Nice and Flexibility in the Common Foreign and Security Policy (2002) 7 EFA Rev 297-316. 113. See A Wivel, The Security Challenge of Small EU Member States: Interests, Identity and the Development of the EU as a Security Actor (2005) 43 JCMS 393-412. 114. For an illustrative conceptualization and categorization of EU Member States' positions on Russia-related topics, see M Leonard and N Popescu, A Power Audit of EU-Russia Relations ECFR Policy Paper (ECFR, London 2007). 115. See, eg the Preamble and Art 2 of the TEU; the 2003 ESS (n 5); and the 2004 Strategy Paper on the ENP: Communication from the Commission, European Neighbourhood Policy, Strategy Paper, COM (2004) 373 final. 116. See, Chaban, Elgstrm and Holland (n 3); Lucarelli (n 3); and Fioramonti and Lucarelli (n 3). 117. See Communication from the Commission, A Strong European Neighbourhood Policy , COM (2007) 774 final, Brussels, 5 December 2007 7. 118. According to Art 16, para 6 new TEU, The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission. The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent. 119. See also Art 16, para 4 new TEU: As from 1 November 2014, a qualified majority shall be defined as at least 55 per cent of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
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120. These exceptions return in Art 31, para 2 new TEU and are phrased as follows: - when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 22(1), - when adopting any decision implementing a decision defining a Union action or position, - when appointing a special representative in accordance with Article 33. 121. See also The Lisbon Treaty and its Implications for CFSP/ESDP, Briefing Paper, European Parliament, DG for External Policies of the Union, Policy Department, February 2008, 3. Nevertheless, for some Member States, resort to the EU budget may remain attractive, even if this means delaying the EU's response. See Whitman and Juncos (n 6) at 39. 122. See D Spence, The Commission and the Common Foreign and Security Policy in D Spence (ed) The European Commission (3rd edn, John Harper, London 2006). Spence quotes former Commissioner Chris Patten on this issue to provide the reason: Some of my staff [] would have preferred me to have a grab for foreign policy, trying to bring as much of it as possible into the orbit of the Commission. This always seemed to me to be wrong in principle and likely to be counterproductive in practice. Foreign policy should not in my view [] be treated on a par with the single market. It is inherently different (at 360). 123. More extensively: C Kaddous (n 10) Cf also Whitman and Juncos (n 6) at 32; and J Paul, EU Foreign Policy after Lisbon: Will the New High Representative and the External Action Service Make a Difference? 2 Centre for Applied Policy Research (CAP) Policy Analysis. 124. See also R Gosalbo Bono, Some Reflections on the CFSP Legal Order (2006) CML Rev 337-394, who even refers to progressive supranationalism in relation to the development of CFSP (at 349). More extensively and for further references: RA Wessel, The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation (2009) 1 European Constitutional Law Review 117-142. 125. Cf S Duke and S Vanhoonacker, Administrative Governance in CFSP (2006) EFA Rev 163-182; and A Juncos and C Reynolds, The Political and Security Committee: Governing in the Shadow (2007) EFA Rev 127-147. 126. See further on the complex division of external competences within the Union: C Hillion and RA Wessel, Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness (2009) 46 CML Rev 551-586. 127. This point is also stressed by the European Parliament in its Report on the impact of the Treaty of Lisbon on the development of the institutional balance of the EU (2008/2073(INI); the Dehaene Report), 17 March 2009, point 17. 128. Cf also Art 30 new TEU, which refers to the High Representative with the Commission's support. 129. More extensively and for further references: RA Wessel, The Inside Looking Out: Consistency and Delimitation in EU External Relations (2000) 37 CMLRev 1135; as well as RA Wessel, Fragmentation in the Governance of EU External Relations: Legal Institutional Dilemmas and the New Constitution for Europe in JW de Zwaan et al , (eds) The European Union -An Ongoing Process of Integration , Liber Amicorum Fred Kellermann (TMC Asser Press, The Hague 2004) 123. 130. See for instance Cases T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission; T-315/01, Yassin Abdullah Kadi v Council and Commission , 21 September 2005; T-47/03 Sison and T-327-03 Al-Aqsa , 11 July 2007; T-228/02, Organisation des Modjahedines du people d'Iran v Council , 12 December 2006 [update]. 131. The Court has in the past only been asked to test the compatibility of Third Pillar measures with Article 47 TEU: Case C-170/96 Commission v Council (Airport transit visa) [1998] ECR I-2763, paras 15-16; Case C-176/03 Commission v Council (Environmental penalties) [2005] ECR I-7879; Case C-440/05 Commission v Council (Ship Source Pollution) [2007] ECR I-1657; further, see: C Hillion and RA Wessel, Restraining External Competences of EU Member States under CFSP in M Cremona and B De Witte (eds) EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing, Oxford 2008) 79-121. 132. See also F Hoffmeister, Entwicklungszusammenarbeit und andere Politikbereiche (2008) Europarecht
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Beiheft 2, 55-101. 133. More extensively: C Hillion and RA Wessel, Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness? (2009) CML Rev 551-586; as well as B Van Vooren, EC-EU External Competences after the Small Arms Judgment (2009) 1 EFA Rev 7-24; and his The Small Arms Judgment in an Age of Constitutional Turmoil (2009) 2 EFA Rev 231-248. 134. Cf RA Wessel, The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation (2009) 1 European Constitutional Law Review 117-142. 135. Art 5 of the North Atlantic Treaty reads: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective selfdefence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. [] Art V of the modified Brussels Treaty (WEU) reads: If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power. 136. The idea that the decision on a mutual defence commitment was deliberately taken is confirmed by the fact that this point was already subject to debate during the Convention on the Future of Europe, which prepared the 2004 Constitutional Treaty, It was acknowledged that the current formula in the TEU matches the guarantee of the Brussels Treaty and goes beyond it with a reference to NATO. See The Lisbon Treaty and Its Implications for CFSP/ESDP (n 121). 137. Brussels European Council 25-26 March 2004, Presidency Conclusions. 138. S Biscop, Permanent Structured Cooperation and the Future of the ESDP: Transformation and Integration (2008) European Foreign Affairs Review 431-448. 139. Headline Goal 210, approved by the General Affairs and External Relations Council on 17 May 2004; endorsed by the European Council of 17 and 18 June 2004. 140. Declaration on Strengthening Capabilities, Brussels, 11 December 2008. 141. A slightly more positive conclusion on the contribution of the Lisbon Treaty to external consistency is drawn by J Wouters, D Coppens and B De Meester The European Union's External Relations after the Lisbon Treaty in Griller and Ziller (n 10) 143-203. 142. Kaddous (n 10) 219. 143. Whitman and Juncos (n 6) 45. END OF DOCUMENT
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I.C.L.Q. 2008, 57(1), 53-86 International & Comparative Law Quarterly 2008 The conclusion of international agreements by the European Union in the context of the ESDP Aurel Sari 2012 Cambridge University Press Subject: European Union. Other Related Subject: International law Keywords: Common foreign and security policy; Council of the European Union; European Union; External relations; International personality; Treaties Legislation cited: Treaty on European Union (Maastricht) 1992 art.24 *53 Abstract Between 2002 and 2007, the Council of the European Union has entered into more than 70 international agreements with third parties pursuant to Article 24 of the Treaty on European Union in order to address various legal and practical matters relating to the conduct of EU crisis management missions in third countries. The purpose of this article is to examine the Council's practice in the implementation of Article 24 of the Treaty and to assess the widely held view that the international agreements concluded under this provision offer conclusive proof of the EU's status as an independent subject of international law. Even though the Council's recent practice does indeed suggest that it concludes international agreements on behalf of the Union as such, this does not lay to rest all uncertainties surrounding the EU's nature as an international legal person. I. INTRODUCTION In 1999, the European Council launched the European Security and Defence Policy (ESDP) to enable the EU to respond more effectively to international crises.1 The purpose of the ESDP is to provide the EU with the institutional basis and the operational capabilities necessary to conduct military and civilian crisis management missions in third countries in pursuit of the Union's foreign policy objectives set out in Article 11 of the Treaty on European Union (TEU).2 In the period between 2003 and 2007, the EU has launched 18 crisis management missions in 11 third countries within the *54 context of the ESDP.3 These have ranged from advisory missions consisting of less than a dozen experts, to large-scale peacekeeping operations involving several thousands of military personnel. Out of a total of 18 crisis management missions, five were military operations carrying out general peacekeeping and humanitarian tasks.4 Four of these operations were authorized by the UN Security Council acting under Chapter VII of the UN Charter to take enforcement action in the performance of their mandate.5 In addition, the EU has launched 12 civilian crisis management missions, including seven police,6 two rule of law,7 one monitoring,8 one security sector,9 and one border assistance mission,10 and has undertaken one mixed civilian-military mission.11 The creation of the ESDP has resulted in a sharp increase in the number of international agreements concluded by the Council under Article 24 TEU. This provision enables the Council to enter into international agreements with one or more States or international organizations in order to implement the EU's Common Foreign and Security Policy (CFSP), of which the ESDP forms an integral part. Before the establishment of
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the first ESDP mission in March 2002, the Council has concluded only two agreements pursuant to Article 24 TEU,12 both of which related to the EU Monitoring Mission (EUMM) in the Western Balkans,13 an EU crisis management mission preceding the creation of the ESDP. Since March 2002, however, the Council has entered into more *55 than 70 international agreements with third parties under Article 24 TEU for the purposes of the ESDP. The launch of the ESDP and the resulting fiurry of treaty-making activity have presented the EU with new opportunities to assert its identity on the international scene.14 Several commentators have accordingly suggested that the Council's practice in this area now definitely confirms that the EU constitutes an international legal person.15 At the same time, the need to enter into a significant number of agreements within a relatively short period of time has exposed certain procedural weaknesses in Article 24 TEU. The purpose of this article is to offer an overview of the international agreements concluded in the context of the ESDP, to discuss the Council's recent practice relating to the implementation of the provisions of Article 24 TEU, and to assess whether the question of the EU's international legal personality has in fact become moot as a result of recent developments, as the emerging academic consensus seems to suggest.16 II. INTERNATIONAL AGREEMENTS CONCLUDED UNDER THE ESDP The conditions governing the participation of national contingents in an international crisis management operation as well as the conditions governing the deployment of the operation itself are normally regulated in the form of international agreements concluded between the sending States, the host State, and the international organization exercising command and control over the operation.17 The Council has concluded three types of international agreements under Article 24 TEU to address certain practical and legal matters relating to the conduct of ESDP operations. First, it has entered into so-called status of forces and status of mission agreements with host States to determine the legal position of ESDP operations and their members during their presence in the territory of the host States concerned. Secondly, it has entered into agreements with third States contributing personnel and assets to such operations in order to define the modalities of their respective contributions. Thirdly, it has concluded agreements to regulate the exchange of classified information between the EU and third parties. *56 A. Status of Forces and Status of Mission Agreements Status of forces agreements (SOFAs) and status of mission agreements (SOMAs) are bilateral or multilateral treaties that define the legal status of military forces and civilian personnel deployed abroad with the consent of the host State.18 They typically deal with such issues as the entry and departure of foreign personnel, the carrying of arms, taxation, the settlement of claims, and the exercise of criminal jurisdiction over members of the visiting force or mission. The Council has entered into separate status agreements under Article 24 TEU with Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia (FYROM), Georgia, the Democratic Republic of the Congo (DRC), Indonesia, and Gabon in order to determine the legal position of certain ESDP missions.19 The status of the remaining missions has been addressed either in the form of an exchange of letters not based on Article 24 TEU,20 or by extending to them the application, mutatis mutandis , of existing legal arrangements negotiated by an EU Member State or by third parties.21 In the case of one operation, the Council has not entered into any kind of status arrangement with the host State concerned at all.22 With one exception, all status agreements concluded by the Council under Article 24 TEU include provisions governing the exercise of civil and criminal jurisdiction by the local authorities over members of EU crisis management missions, as well as provisions concerning their entry and departure, freedom of movement, means of transport, and communications in the territory of the host State. More recent agreements are more sophisticated, however, insofar as they regulate a broader range of matters and do so in greater detail
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than most of their predecessors. The status agreements negotiated by the EU are in most respects similar to the status agreements concluded in recent years by other international actors, such as the UN, except for one key difference. In contrast to current international practice in this area, the EU has adopted the negotiating position that all members of its crisis management missions should benefit from treatment equivalent to that accorded to diplomatic agents *57 under the Vienna Convention on Diplomatic Relations of 1961.23 Given that the privileges and immunities of diplomatic agents are broader than the privileges and immunities normally conferred on members of peace support operations, this negotiating strategy runs counter to the growing emphasis on the accountability of peace support operations, and has been questioned within the Union. 24 B. Third Country Participation Agreements The EU has made it clear from the very beginning that it welcomes contributions by interested third parties to ESDP crisis management missions, and that it would invite third parties to participate in such missions on a case-by-case basis.25 To date, more than 20 third States have contributed personnel and assets to crisis management missions conducted by the EU, many of which have since become Member States of the Union. In the great majority of cases, the Council has concluded international agreements pursuant to Article 24 TEU with the third countries concerned in order to determine the conditions of their participation in ESDP missions. The Council has entered into such agreements with Albania,26 Argentina,27 Bulgaria,28 Chile,29 Croatia,30 Cyprus,31 the Czech Republic,32 Estonia,33 FYROM,34 Hungary,35 Iceland,36 Latvia,37 Lithuania,38 Switzerland,39 Morocco,40*58 New Zealand,41 Norway,42 Poland,43 Romania,44 Russia,45 Slovakia,46 Slovenia,47 Turkey,48 and Ukraine.49 However, not all participation agreements concluded under Article 24 TEU have been published in the Official Journal of the EU,50 including agreements concluded with Brazil, Brunei, Canada, Hungary, Malaysia, Singapore, South Africa, Thailand and the Philippines.51 Successive third country participation agreements concluded by the Council have followed the same basic pattern. The agreements oblige participating third States to associate themselves with the provisions of the Council Joint Action establishing the ESDP mission in question, and impose on them a duty to ensure that their personnel act in conformity with the Joint Action and related instruments, such as the operation plan. In addition, they extend the application of the status agreements negotiated between the EU and the host State to the personnel made available by participating third States, and contain provisions concerning the chain of command, the waiver of certain claims, the protection of classified information, and financial matters. Generally speaking, the purpose of third country participation agreements is to ensure that the participation of third States in ESDP missions is subject to the same or similar conditions as the participation of EU Member States. Since EU Member States contributing personnel and assets to an ESDP mission are already bound by the relevant internal legal instruments relating to that mission, it is not necessary for the Council to *59 enter into participation agreements with those Member States pursuant to Article 24 TEU.52 C. Exchange of Classified Information Agreements Following the launch of the ESDP, the Council has established a comprehensive security system covering the Council, the Council General Secretariat and the Member States with the aim of safeguarding classified information held by the EU from espionage, compromise or unauthorized disclosure.53 Where there is a permanent or occasional need for the exchange of classified information between the EU and third States or international organizations, the Council's security regulations expressly direct the Council to draw up agreements or memoranda of understanding with the third parties concerned to define the reciprocal rules on the protection of the information exchanged.54 The Council has entered into the first international agreement of this kind with NATO,55 and has subsequently concluded similar agreements under Article 24 TEU with Bosnia and Herzegovina,56 Bulgaria,57 Croatia,58 FYROM,59 Iceland,60 Norway,61 Romania,62 and
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Ukraine.63 In essence, the contracting parties to these agreements undertake to protect and safeguard classified information provided or exchanged by the other party, and to develop detailed security arrangements to this end. The cooperation and assistance agreement concluded between the EU and the International Criminal Court in 2006 pursuant to Article 24 TEU also contains detailed procedures on the release of EU classified information by the EU to an organ of the Court.64 III. EXPERIENCES IN THE IMPLEMENTATION OF ARTICLE 24 TEU The Council has gained considerable experience in recent years in the implementation of the provisions of Article 24 TEU as a result of the ESDP. Two points in particular merit attention. First, the procedure laid down in Article *60 24 TEU has turned out to be too clumsy for the purposes of planning and implementing international crisis management missions. Secondly, there is a clear and continuing need to enter into informal arrangements with third parties in this context, in addition to concluding international agreements based on Article 24 TEU. A. Efforts to Streamline Article 24 TEU The terms of Article 24 TEU require two successive decisions by the Council to conclude an international agreement: one decision to authorize the Presidency to open negotiations with the State or international organization concerned, and a second decision to approve the resulting text on a recommendation from the Presidency. The first few ESDP missions launched by the EU have demonstrated that this requirement of two successive Council decisions is time-consuming and renders Article 24 TEU a cumbersome tool for negotiating agreements with third parties.65 This was particularly evident in the case of the first ESDP mission, the EU Police Mission (EUPM) in Bosnia and Herzegovina, where the EU had to open parallel negotiations with a large number of contributing third States during the early stages of the planning process in order to determine the conditions of their participation in the mission in time. The Council's early experiences in the implementation of Article 24 TEU have thus shown that the negotiation of separate participation agreements with each third State for every ESDP mission is a lengthy process that is difficult to finalize in time, especially during operations of short duration.66 The participation agreement concluded between the EU and Cyprus for operation Artemis in the DRC, which was signed shortly after the operation had officially terminated, offers a striking example in this respect.67 In response to these difficulties, the Council decided to streamline the decision-making process under Article 24 TEU by concluding framework participation agreements with third States and adopting model agreements to be used as negotiating templates by the Presidency. On 23 February 2004, the Council authorized the Presidency to open negotiations with certain third countries to establish a permanent legal framework for their participation in future EU crisis management missions based on a generic framework participation agreement.68 The conclusion of framework participation agreements eliminates the need to negotiate separate participation agreements *61 for each new ESDP operation with those third States that are parties to these framework agreements, and thus considerably reduces the administrative burden facing the Council. However, so far the EU has entered into framework participation agreements with only seven third countries,69 two of which have since become Member States of the EU. This suggests that the full potential of these instruments has not yet been attained. On 13 September 2004, the Council adopted two model agreements on the participation of third States in military and civilian crisis management missions conducted by the EU,70 and authorized the Presidency to open negotiations on the basis of these model agreements with those participating third States which have not entered into a framework participation agreement with the EU.71 This was followed by the adoption of an EU Model SOFA concerning the legal status of EU military operations on 23 May 2005,72 and an EU Model SOMA concerning the legal position of EU civilian missions on 18 July 2005.73 In both cases, the
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Council authorized the Presidency to open negotiations with prospective host States based on the relevant model status agreement in order to define the legal position of EU missions present in their territory.74 Both the model participation agreements and the model status agreements are conceived as permanent negotiating mandates for the purposes of Article 24 TEU. This means that the Council has entitled the Presidency to open negotiations with third States on the basis of the relevant model agreement without the need to seek a fresh mandate from the Council in each specific case. As a result, only one Council decision approving the resulting text is necessary, which should considerably reduce the time required to conclude third country participation agreements and status agreements under the ESDP. To date, the Council has entered into six agreements based on the model participation agreement for civilian crisis management operations,75 and has concluded one agreement based on the EU Model SOFA and one based on the *62 EU Model SOMA.76 Since the model participation agreements and the model status agreements constitute permanent negotiating mandates to the Presidency, the Council considers that their disclosure would undermine the EU's position in future negotiations with third States. The Council has accordingly denied public access to these documents. 77 B. The Need for Informal Arrangements In addition to international agreements concluded pursuant to Article 24 TEU, various technical, administrative and practical arrangements have also been drawn up under the ESDP. The arrangements in question fall into two groups: those that merely implement or supplement agreements formally concluded on the basis of Article 24 TEU, and those that constitute independent instruments. As regards the first group, all status agreements entered into by the Council between 2002 and 2007 have called for the mandatory conclusion of supplementary arrangements to address certain specific questions, such as communications, medical services, host-nation support, or the procedures for the settlement of claims.78 They have also entitled or directed the head of mission or the force commander of the ESDP missions concerned to enter into additional supplementary arrangements with the host State's administrative authorities in order to settle other operational, administrative and technical matters.79 Similarly, some early third country participation agreements have provided for the mandatory conclusion of supplementary arrangements with contributing third States to deal with financial matters,80 while more recent third country participation agreements authorize the High Representative for the CFSP to enter into any necessary technical and administrative arrangements with the competent authorities of the contributing third State.81 The second group consists of arrangements that are independent instruments in the sense that they do not implement or supplement international agreements based on Article 24 TEU. Most of the arrangements falling into *63 this group have taken the form of an exchange of letters signed by the High Representative for the CFSP and the competent third party. For example, on 17 March 2003, the High Representative for the CFSP and the Secretary General of NATO have signed a series of arrangements tied together by a framework agreement, known collectively as the Berlin Plus agreement, whereby NATO has granted the EU access to its collective planning capabilities and to certain pre-identified operational assets and capabilities for the purposes of ESDP crisis management missions.82 Other exchanges of letters have taken place concerning the invitation to launch ESDP missions,83 their status in the territory of host States,84 the release of NATO assets for specific EU military operations,85 the participation of third States in ESDP missions,86 the transfer of EU classified information to international organizations and to contributing third States,87 and the EU's support to the African Union.88 In addition, in at least one case the signature of a status agreement concluded between the EU and a third State was executed through an exchange of letters.89 Many of the arrangements falling into the second group address matters that are normally dealt with in international agreements concluded pursuant to Article 24 TEU. It seems likely that administrative arrangements were preferred over international agreements in these cases for their procedural and substantive flexibility,
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which makes them particularly suitable as temporary measures and in circumstances requiring immediate action.90 For instance, considering the impeding accession of Cyprus, the Czech Republic, Hungary, Lithuania, Poland and Slovenia to the EU, the Political and Security Committee91 decided in December 2003 that the participation of these countries in the EU police mission in FYROM (Proxima ) should be regulated informally by exchanges of letters, rather than through the conclusion of *64 formal third country participation agreements pursuant to Article 24 TEU.92 Similarly, an exchange of letters took place between the High Representative for the CFSP and the Ambassador of Mali in order to determine, on an ad hoc basis, the details of Mali's participation in the EU police mission in the DRC (EUPOL Kinshasa ) pending the conclusion of a formal international agreement under Article 24 TEU.93 Not only do informal administrative arrangements avoid time-consuming procedures and offer greater confidentiality than international agreements based on Article 24 TEU, but in some circumstances there is simply no need to record understandings reached between the parties on the ground on practical matters in the form of binding international agreements. The conclusion of informal supplementary and administrative arrangements is therefore likely to remain a permanent feature of the ESDP. C. Is the Council's Practice Compatible with the TEU? The Council's practice relating to the implementation of Article 24 TEU raises certain questions concerning its compatibility with the terms of the TEU. First, it is worth noting the prominent role that the High Representative for the CFSP has assumed in the negotiation of international agreements under Article 24 TEU. The majority of Council Joint Actions establishing ESDP crisis management missions have authorized the High Representative to assist the Presidency in the negotiation of status agreements and third country participation agreements by conducting these negotiations on its behalf.94 In effect, the High Representative has thus taken on the role foreseen for the European Commission under Article 24 TEU in the area of the ESDP. This development is unsurprising, given that the High Representative is better placed to conduct negotiations with third parties in this policy area than the Commission. The sidelining of the Commission does not constitute an infringement of its prerogatives, however, since Article 24 TEU merely entitles the Council to seek the Commission's assistance without imposing an obligation on it to do so in specific cases. Consequently, nothing prevents the Council from authorizing the High Representative to assist the Presidency by conducting negotiations with third parties on behalf of the Presidency; in particular, as Article 18(3) TEU expressly provides that the Presidency shall be assisted by the High Representative in representing the Union in matters coming within the CFSP.95 Moreover, since Article 24 TEU merely provides that international agreements shall be concluded by the Council without *65 specifying which body should sign these agreements on its behalf, the Council is free to delegate this task to the High Representative.96 Secondly, the informal nature of supplementary and administrative arrangements does not imply that they cannot be binding under international law. Whether a particular informal arrangement concluded for the purposes of the ESDP constitutes a non-binding instrument or a binding international agreement drawn up in simplified form depends, in the first place, on the question of whether or not the parties to the arrangement possess the capacity to assume legal commitments under international law and, secondly, whether or not they actually intended to do so, as evidenced by the form, terms and circumstances of the arrangement in question.97 As regards the first requirement, on the EU's side most informal arrangements were signed by the High Representative for the CFSP. Bearing in mind that the High Representative acts under the authority of the Council98 and that the Council enjoys the capacity to conclude international agreements under Article 24 TEU, it is certainly possible that, by signing the informal arrangements in question, the High Representative has entered into legal commitments on behalf of the Council.99 For instance, the exchange of letters between the High Representative and the Turkish Foreign Minister of 28 June 2006 regarding the exchange of classified
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information refers to the need to put into place an ad hoc understanding between the European Union and the Republic of Turkey,100 which shows that the High Representative did not act in his own capacity when he signed this document.101 As regards the second requirement, the terms and circumstances of the publicly available informal arrangements do not demonstrate a clear and manifest intent by their parties to enter into legal relations, though some arrangements do not exclude the existence of such intentions either. 102 Thus, the exchange of letters *66 between the High Representative and the Turkish Foreign Minister of 28 June 2006 employs the term will as well as the term shall, and is understood both to enter into force and to take effect. The possibility cannot be excluded, therefore, that at least some informal arrangements adopted in the context of the ESDP constitute binding international agreements.103 In any event, even those supplementary and administrative arrangements that do not appear to constitute binding international agreements adopted in simplified form are not necessarily devoid of all legal effects. 104 For instance, an exchange of letters between the High Representative for the CFSP and a prospective host State wherein the latter formally invites the EU to conduct a crisis management mission in its territory expresses that State's consent to the presence of foreign military and civilian personnel within its borders. Even if the exchange of letters were not considered a binding international agreement, it nonetheless renders the presence of foreign personnel in the territory of the host State lawful under international law.105 Similarly, a supplementary arrangement concluded between an EU crisis management mission and the administrative authorities of the host State to regulate the settlement of claims brought against that mission is evidently intended to have legal effects.106 The same goes for the understanding recorded in an exchange of letters between the High Representative and the Secretary General of NATO on 18 November 2004, whereby an EU crisis management operation (EUFOR Althea ) became a legal successor to NATO's SFOR operation in Bosnia and Herzegovina.107 Some of the relevant arrangements may be regarded as expressing unilateral binding commitments,108 such as exchanges of letters in which the host State undertakes to grant the EU mission and its personnel certain privileges and immunities,109 or exchanges of letters in which third States participating in an *67 EU crisis management mission undertake to bear the costs of their participation in the mission.110 By concluding administrative and supplementary arrangements, the Council is by-passing the procedures laid down in Article 24 TEU for the conclusion of international agreements in the area of the CFSP. This does not pose any difficulties as long as the arrangements concerned are truly non-binding instruments, since Article 24 TEU is only concerned with the negotiation and conclusion of binding international agreements. 111 However, the question arises whether the Council may conclude informal arrangements that produce significant legal effects, or in fact constitute binding international agreements, without basing itself on the provisions of Article 24 TEU. It is useful to recall the case of France v Commission in this context.112 In that case, France brought an action before the European Court of Justice seeking a declaration that an agreement signed between the European Commission and the Government of the United States in the area of competition law was void because, amongst other things, the Commission lacked the competence to conclude the agreement. Having found that the text in question amounted to an international agreement within the meaning of the Vienna Convention on the Law of Treaties of 1986,113 the Court held that the Commission could not derive from Article 228 [now 300] of the European Community (EC) Treaty a power to enter into international agreements, because this infringed the competence of the Council to conclude such agreements under Article 228 and contravened the principle laid down in Article 4(1) [now 7(1)] EC Treaty whereby each institution shall act within the limits of the powers conferred on it by the Treaty.114 The Court also added that the Commission could not derive such a competence from practice either, since a mere practice cannot override the provisions of the Treaty.115 The Court accordingly annulled the act, whereby the Commission concluded the agreement concerned. *68 The Council's position under the TEU differs in certain key respects from that of the Commission in the
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case of France v Commission. First, the Council does enjoy the competence to enter into international agreements for the purposes of the CFSP. The conclusion of binding informal arrangements not based on Article 24 TEU does not, therefore, violate the principle of conferred powers, since the Council cannot be considered to be acting ultra vires in concluding such arrangements.116 Secondly, since the Council is the only institution that is competent to enter into international agreements under the CFSP, the conclusion of binding informal arrangements cannot infringe the competences of the other institutions either. Consequently, the Council's practice does not raise substantive concerns, but merely a procedural question,117 namely, must all agreements necessary for the purposes of the CFSP be based on Article 24 TEU, or is the Council entitled to circumvent this provision in order to enter into binding arrangements informally? Given that the conclusion of all supplementary and administrative arrangements is based on an authorization by the Council, it may be presumed that, by agreeing to these authorizations, the representatives of the Member States of the EU have accepted the possibility that informal arrangements may produce significant legal effects or even constitute binding international agreements in simplified form. As the European Court of Justice has confirmed in France v Commission , a mere practice cannot override the provisions of the EC Treaty as a matter of Community law.118 However, the provisions of the TEU dealing with the CFSP do not form part of Community law, but are part of public international law pure and simple.119 The interpretation of these provisions, including Article 24 TEU, is therefore subject to the rules of treaty interpretation as set out in the Vienna Convention on the Law of Treaties of 1969 (VCLT),120 and not to the rules of interpretation applied by the European Court of Justice to Community law measures.121 The general rule of interpretation laid down in Article 31 of the VCLT suggests that the Member States' support within the Council for the conclusion of binding informal arrangements should be regarded as subsequent practice in *69 the application of the TEU.122 This subsequent practice demonstrates that not all international agreements necessary for the implementation of the CFSP have to be based on Article 24 TEU, and thus sanctions the Council's practice of concluding binding supplementary and administrative arrangements using a simplified procedure that bypasses the technical aspects of Article 24 TEU.123 IV. THE INTERNATIONAL LEGAL PERSONALITY OF THE EU: BEYOND REASONABLE DOUBT? Whether or not the EU is an international organization that benefits from international legal personality has been the subject of a long-running debate in the academic literature. Since the adoption of the Amsterdam Treaty, the debate has centred mainly on the interpretation of Article 24 TEU, in particular on the question of whether or not the Council concludes international agreements pursuant to this provision on behalf of the EU as such. Those commentators who have analysed the Council's treaty practice since 2001 have argued that the international agreements concluded by the Council pursuant to Article 24 TEU do indeed confirm the international legal personality of the EU. The trend of academic opinion therefore seems to be swinging firmly in favour of the view that the EU constitutes an independent subject of international law. Nevertheless, certain doubts about the nature of the EU as an international legal person do remain, as the Council's treaty practice merely seems to be shifting the terms of the debate onto different legal territory. A. The Notion of International Legal Personality An international legal person is an entity that is subject to rights and duties under international law and possesses the capacity to enter into legal relations with other subjects of international law.124 Various theories have been put forward to explain the attribution of international legal personality to international organizations,125 yet in the final analysis all modern theories derive *70 the legal personality of international organizations from their constituent or related instruments, and thus ultimately from the consent and will of their creators.126 An organization's constituent instrument may confer international legal personality on it either explicitly or by implication. For example, Article 281 EC Treaty provides that the European Community shall have legal personality. The European Court of Justice and most commentators have interpreted this
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provision, somewhat uncritically perhaps, to endow the Community with international, rather than domestic, legal personality.127 Likewise, Article I-7 of the failed Constitutional Treaty128 and the new Article 46A inserted into the TEU by the Treaty of Lisbon declare that the Union shall have legal personality.129 By contrast, the EU's current constituent instrument, the TEU in its Nice version, does not confer legal personality on the Union in express terms. The academic debate over the EU's international legal status has accordingly revolved around the question of whether it does so by implication. The leading authority for the implicit attribution of international legal personality is the Reparation for Injuries case,130 where the International Court of Justice (ICJ) considered the international legal personality of the UN. Since the actual terms of the UN Charter do not address this matter, the *71 Court set out to determine whether the Charter nevertheless gave the UN characteristics that entailed the attribution of legal personality to it under international law. The Court found that the UN was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane.131 In reaching this conclusion, the Court had regard to the functions of the UN, the fact that the Charter equipped it with organs having special tasks, and that the UN in certain respects occupied a position in detachment from its Member States, partly as a result of enjoying and exercising the capacity to enter into treaties with them. Having thus established that the UN constitutes a subject of international law, the Court inferred from this that the UN must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties,132 such as the capacity to bring international claims. B. The EU as a Subject of International Law: Maastricht Applying the Court's reasoning in the Reparation case, the EU may be considered as a subject of international law provided that it constitutes a corporate entity distinct from its Member States that is capable of exercising and enjoying, and does in fact exercise and enjoy, such functions and legal capacities on the international level as to demonstrate the intention of its creators to attribute international legal personality to it.133 The EU certainly did not fit this description under the Maastricht Treaty.134 Not only did the Maastricht Treaty show no obvious signs that its founders intended the EU to exercise legal capacities on the international plane, but it is doubtful whether the Union occupied a position of sufficient detachment from its Member States in the first place. Whereas the Maastricht Treaty seemingly ascribed a separate legal existence to the EU in the area of foreign and security policy in so far as it made the Union and its Member States jointly responsible to define and implement the CFSP,135 it left the execution of the CFSP almost entirely to the Member States with the Council playing *72 essentially a procedural role. Most revealingly, the Maastricht Treaty directed the Union to pursue the objectives of the CFSP by two means: by establishing systematic cooperation between Member States in the conduct of policy and by gradually implementing joint action in the areas in which the Member States have important interests in common.136 Even though the Council was meant to serve as a forum for systematic cooperation and was empowered to adopt binding decisions concerning joint actions,137 systematic cooperation and joint actions were both conceived as processes engaging the Member States, not as instruments belonging to the Union as such.138 The predominant role played by the Member States in the CFSP rendered the legal nature of the Union deeply ambiguous under the Maastricht Treaty. On the one hand, the overall coordinating role played by the Council and some of the language employed in the Treaty may have suggested that in certain respects the Union was more than just a centre for harmonizing the actions of its Member States in the attainment of their common ends.139 On the other hand, the Maastricht Treaty did not invest the Union with international legal capacities, and in various places simply seemed to equate the Union with its Member States. The objective to safeguard the Union's common values and to act as a cohesive force in international relations,
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for example, was clearly aimed at the Union qua an association of States, rather than qua single legal entity. 140 Indeed, this ambiguity has led the German Federal Constitutional Court to conclude that the Maastricht Treaty employed the term Union as a name for the Member States acting in concert, not as an independent legal entity.141 Whilst some authors have argued that the EU amounted to an international legal person,142 the majority of commentators have accordingly *73 either taken the view that the Union did not constitute an entity distinct from its Member States, or that the Maastricht Treaty in any case did not establish the Union as an independent subject of international law.143 C. The Capacity to Conclude Treaties: Amsterdam The Amsterdam Treaty completely overhauled the provisions of the TEU dealing with foreign policy and security matters.144 Amongst other things, the Treaty imposed an obligation on the Member States to support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity, clarified the nature and role of joint actions and common positions, introduced qualified majority voting in certain circumstances, and created the position of the High Representative for the CFSP.145 Because of these changes, the sense of the Union's detachment from its Member States in the area of the CFSP has increased considerably, though it should be underlined that the Amsterdam Treaty did not remove all ambiguities concerning the legal nature of the Union, and even created new ones.146 Following the adoption of the Amsterdam Treaty, the focus of the academic debate has gradually shifted from its initial preoccupation with the legal nature of the EU to the question of the Union's legal qualities, in particular its treaty-making capacity. One of the key innovations of the Amsterdam *74 Treaty was the introduction of Article 24 TEU, entitling the Council to conclude international agreements in the implementation of the CFSP. However, the failure of Article 24 TEU to clarify on whose behalf the Council concludes such agreements has given rise to confiicting interpretations in the literature. A large number of authors have argued that the Council acts on behalf of the Member States as their agent.147 According to this view, the purpose of Article 24 TEU is to lay down a procedure for the collective conclusion of international agreements by the Member States. Others have argued that the Council acts on behalf of the Union as an independent legal entity.148 According to this interpretation, the Amsterdam Treaty endows the EU with treatymaking capacity, and thus implicitly recognizes that it is capable of acting as an independent subject of international law. *75 There is no need to rehearse the arguments advanced by these two opposing camps in any great detail here. It suffices to note the following. On the one hand, neither side has been able to conclusively prove or deny that Article 24 TEU implicitly attributes international legal personality to the Union. Both camps tend to invoke the same legal norms and facts to support their positions, and their respective arguments are often simply countered by the other side with a different interpretation of the same material. Since both camps have raised certain points supporting their position which the other side is unable to refute, the debate has remained inconclusive. For instance, much has been made of the fact that the Union bears sole responsibility for defining and implementing the CFSP under the Amsterdam Treaty.149 It has been suggested that this renewed emphasis on the EU is difficult to reconcile with the notion that the Council acts on behalf of the Member States. This may be so, yet Article 24 TEU must be interpreted in the light of all provisions of the Amsterdam Treaty. These include Article 12 TEU, which enumerates the means whereby the EU shall implement the CFSP without, however, mentioning international agreements: this suggests that international agreements concluded under Article 24 TEU are not instruments of the Union. The contextual interpretation cuts both ways. Another case in point is the fourth declaration adopted by the representatives of the Member States on signing the Amsterdam Treaty, which proclaims that the provision of Article 24 TEU and any agreements resulting from it shall not imply any transfer of competence from the Member States to the European Union.150
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Some commentators have argued that this declaration demonstrates that the Member States had no intention at all to endow the EU with independent treaty-making capacities. Others have responded to this by pointing out that States normally confer, rather than transfer, legal capacities on an international organization.151 Again, while this is a valid point, it does not prove that the Member States have in fact conferred treatymaking capacities on the Union, but merely leaves open the possibility of such an interpretation. Rather than illuminating the meaning of Article 24 TEU, the declaration thus simply adds another layer to the confusion. On the other hand, the interpretation of Article 24 TEU has occasionally lacked methodological rigour. During the drafting of the Amsterdam Treaty, the representatives of the Member States discussed the possibility of *76 attributing international legal capacities and personality to the EU in express terms. However, certain Member States were opposed to this idea, and Article 24 TEU was adopted instead. Some commentators have sought to downplay this negotiating background, arguing that the travaux prparatoires of Article 24 TEU are neutral in so far as they neither prove nor exclude the attribution of legal personality to the EU.152 Actually, the travaux are far from neutral. Three specific options were considered during the negotiations: the first conferred on the Union all those international legal capacities that are necessary to carry out its functions and explicitly recognized its legal personality; the second provided the Union only with treatymaking capacity without mentioning legal personality; the third option entitled the Council to conclude international agreements on behalf of all of the Member States.153 The fact that the final text of Article 24 TEU referred to the constitutional procedures of the Member States and to provisional application--which are the only two elements that were specific to the third option--strongly suggests that the drafters of the Amsterdam Treaty eventually decided that the Council should act on behalf of the Member States. This result cannot be dismissed on the ground that having recourse to the travaux prparatoires of the Amsterdam Treaty constitutes merely a supplementary means of interpretation under the VCLT, as has been suggested by some.154 The purpose of treaty interpretation is to ascertain the intentions of the parties as expressed in the text of the treaty.155 Where this textual interpretation leaves the meaning of the treaty ambiguous or obscure, as is the case with Article 24 TEU, reference should be had to the travaux in accordance with Article 32 of the VCLT.156 Not only do the travaux prparatoires of the Amsterdam Treaty demonstrate a lack of agreement among the Member States regarding the explicit attribution of legal personality to the EU, but they *77 also reveal that the discussions on this matter proceeded on the basis that there was no unanimous support in the Council for the implicit attribution of international legal personality either.157 Consequently, it requires compelling evidence to establish that the Member States have nevertheless agreed to implicitly attribute international legal personality to the Union in the form of Article 24 TEU, notwithstanding all the signs pointing in the opposite direction.158 As was already noted, the academic debate on Article 24 TEU has failed to produce such evidence.159 This partly results from overstretching the analogy between the UN and the EU in applying the Reparation case to the latter. In the Reparation case, neither the UN's treaty-making capacity nor its status as an independent subject of international law was disputed before the International Court of Justice.160 By contrast, neither the international legal capacities nor the legal personality of the Union is established. This important difference is often overlooked. For example, it has been suggested that Article 24 TEU must be understood as entitling the Council to conclude international agreements on behalf of the Union because the Council acts as an institution of the EU under the CFSP, not as an organ of the Member States.161 This argument is circular, since the Union's treaty-making capacity is inferred from the presumption that the Union is capable of acting as an independent subject of international law--yet this is precisely what has to be demonstrated in the first place.162 Besides, nothing prevents the Member States from directing the Council to act on their behalf, as was specifically foreseen in the third option considered during the negotiations of the Amsterdam Treaty. The same goes for the Presidency: even though the Presidency's role is to represent the Union in matters coming within the CFSP,163 this has not stopped the Member States from authorizing it to sign the
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Memorandum of Understanding governing the EU Administration of Mostar on their behalf.164 Overall, Article 24 TEU does not support the conclusion that the Member States have endowed the EU with treatymaking capacity and thus implicitly conferred international legal personality on it. At best, the Amsterdam Treaty has left this question open for subsequent developments. *78 D. The Current Legal Framework: Nice The amendments made to Article 24 TEU by the Nice Treaty call for a more guarded assessment.165 In addition to rearranging the content of Article 24 TEU over six paragraphs, the Nice Treaty directs the Council to proceed by qualified majority, rather than by unanimity, when an agreement is envisaged to implement a joint action or common position. It has been argued that it is not conceivable that agreements concluded by qualified majority, i.e., against the opposition of certain Member States, would nonetheless be concluded on their behalf.166 However, the use of qualified majority voting does not necessarily contradict the view that the Council acts on behalf of all the Member States as long as one is prepared to accept as tenable the interpretation that, by agreeing to Article 24 TEU, all Member States have eo ipso authorized the Council to negotiate and adopt international agreements on their behalf, subject to their continued right to ultimately refuse to become a party to an agreement in specific cases in accordance with the fifth paragraph of Article 24 TEU.167 This provision declares that No agreement shall be binding on a Member State whose representative in the Council states that it has to comply with the requirements of its own constitutional procedure; the other members of the Council may agree that the agreement shall nevertheless apply provisionally. It is not immediately clear whether Article 24(5) TEU refers to the binding effect of international agreements on the internal level as a matter of EU law or on the international level as a matter of the law of treaties. Some support for the former view may be derived from Article 24(6) TEU, which provides that international agreements concluded under the conditions set out in Article 24 TEU shall be binding on the institutions of the Union. Since the institutions clearly are not parties to the agreements in question, they are not directly bound by them under the law of treaties, but have to comply with their terms because Article 24(6) TEU provides so. At first sight, Article 24(5) TEU could be interpreted in the same fashion. However, it is widely accepted that the constitutional requirements referred to in that paragraph include those norms of domestic constitutional law that call for the parliamentary approval of international agreements before they may be ratified by the executive of the Member State concerned. It is difficult to see why these constitutional requirements should be considered applicable to international agreements concluded under Article 24 TEU unless the Member States were parties to these agreements. This interpretation is reinforced by the rule concerning the provisional application of international agreements concluded under Article 24 TEU. The provisional application of an international agreement is an act *79 that takes place on the international level in accordance with the law of treaties.168 In its original version under the Amsterdam Treaty, the second part of what is now Article 24(5) TEU declared that those Member States which did not make a statement in the Council regarding the need to comply with their constitutional requirements may agree that the agreement shall apply provisionally to them .169 Once again, it is difficult to see how the Member States could be competent to decide on the provisional application of an agreement unless they were prospective parties to it. However, it somewhat complicates matters that the Nice Treaty has omitted the words to them from the original version of Article 24(5) TEU. This omission has been interpreted to confirm that it is for the EU, rather than the individual Member States, to decide on the provisional application of international agreements, which would imply that the EU is a party to these agreements in its own right.170 This argument loses some of its force, however, if one considers that at one stage the draft version of the Nice Treaty expressly provided that the Member States may agree that the agreement shall nevertheless apply provisionally to the Union ,171 but that this wording failed to receive the support of all negotiating Member States and was deleted from the final text. Arguably, Article 24(5) TEU should therefore be understood as enabling
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those Member States which have not made statements in the Council regarding the need to comply with their constitutional requirements to agree to provisionally apply the agreement in question as between all Member States of the EU, including those that have made such statements, on one side and the third party concerned on the other side.172 The Member States which have made statements in the Council could then either opt to become parties to the agreement once their constitutional requirements have been met, or they could unilaterally terminate the provisional application of the agreement to them in accordance with Article 25 of the VCLT by notifying the other States and organizations concerned of their intention not to become parties to the agreement.173 While this interpretation is certainly tenable, it has to be acknowledged that the amendments introduced to Article 24 TEU by the Nice Treaty do weaken the interpretation that the Council acts on behalf of the Member States. Nevertheless, they hardly offer conclusive proof in favour *80 of the opposite view whereby the Council is said to act on behalf of the Union as an independent legal entity. E. Subsequent Practice Given that the academic debate surrounding Article 24 TEU has yielded no conclusive results, a significant number of authors have argued that definite conclusions regarding the international legal status of the EU can only be drawn once the Council has actually begun to implement the provisions of Article 24 TEU in practice.174 The launch of the ESDP has supplied plenty of such practice, and it seems that a consensus is now emerging in the literature to the effect that the international agreements concluded by the Council since 2001 in the context of the ESDP demonstrate that the Council acts on behalf of the EU under Article 24 TEU, rather than on behalf of the Member States.175 One of the key arguments put forward in support of this view is that both the internal Council acts adopting international agreements as well as the agreements themselves name the European Union as one of the contracting parties. The Council has consistently approved the agreements negotiated by the Presidency under Article 24 TEU on behalf of the European Union, and has specifically authorized the Presidency to designate the person empowered to sign them in order to bind the European Union.176 Moreover, the titles and preambles of all of the more than 70 agreements concluded by the Council refer to the European Union as one of their parties.177 Consequently, there can be no doubt that the Council has acted on behalf of the European Union when entering into these agreements, and that the Union has become a contracting party to them. *81 Still, the fact that the agreements were concluded in the name of the European Union does not establish, in and of itself, that the EU enjoys and exercises the capacity to enter into treaties as a separate entity, unless one simply assumes that the term European Union refers to a legal entity that is distinct from the Member States and is capable of acting on the international level, rather than being merely a collective name for the Member States. Though perfectly reasonable given the evolution of the Union's role under the CFSP since the Maastricht Treaty, this assumption has to be tested by examining the actual terms of the agreements, in particular by considering whether or not they grant rights to and impose duties on the EU separately from its Member States. Despite the large number of agreements concluded by the Council since 2001 in the area of the ESDP, only a handful of passages differentiate between the EU on the one hand and the Member States on the other. Status of forces and status of mission agreements are the least instructive group of agreements in this respect, since they confer privileges and immunities directly on EU crisis management missions and their personnel, and not on the EU or the individual national contingents making up those missions. The agreements laying down security procedures for the exchange of classified information are not very helpful either. All agreements falling into this group provide that the term EU shall mean, for the purposes of these agreements, the Council, the Council General Secretariat, and the Commission.178 While this definition excludes the Member States, certain parts of the agreements continue to refer to the EU in a broader sense.179 It appears that the EU is a contracting party to these agreements in this broader sense, rather than the Council, the Council General Secretariat and the Commission acting collectively.180 The only agreement in this
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group that clearly differentiates between the EU and the Member States is the one concluded with NATO, which authorizes the EU to disclose NATO classified information to its Member States in certain circumstances.181 A similar distinction is drawn in recent third country participation agreements and in framework participation agreements in the form of a clause whereby the European Union undertakes to ensure that Member States make a declaration waiving certain types of claims against the participating third State concerned.182 The terms of the international agreements concluded by the Council shed comparatively little light on the legal character of the EU and its relationship *82 with its Member States. Once again, it is useful to recall the Reparation case, where the International Court of Justice was able to confirm the UN's detachment from its Members on the ground that it had entered into treaties with them. The practice of the Council under Article 24 TEU is not as clear-cut as that of the UN. Nevertheless, at least some of the relevant agreements seem to treat the EU as an entity that is distinct from its Member States and is capable of bearing rights and duties under international law.183 This seems to confirm that the EU is a contracting party to these agreements in its own right, independently from its Member States, and that it must be considered an international legal person as a result.184 However, the Council's practice in implementing Article 24 TEU should not be understood as retrospectively corroborating the view that the Member States had already conferred international legal personality on the EU by implication under the Amsterdam or Nice Treaty: it should rather be seen as a stage in the gradual evolution of the legal nature and capacities of the EU since its creation at Maastricht, one that constitutes the EU as a new subject of international law. F. Political Actor or Legal Person? As an international legal person, the EU is subject to rights and duties under international law separately from its Member States. One of the key consequences of its status as an independent subject of international law is that the EU bears legal responsibility for its conduct should it fail to comply with its international obligations. However, it is precisely in this field that the agreements concluded by the Council since 2001 cast some doubts on the actorness of the Union as a legal person.185 Two points illustrate the dilemma. First, all agreements that contain provisions concerning the settlement of disputes arising out of their interpretation or application provide that such disputes shall be settled by diplomatic means.186 The sensitive subject-matter of the agreements concluded in the context of the ESDP does not necessarily *83 rule out binding methods of dispute settlement, such as arbitration or adjudication. Indeed, international practice offers several examples of status of forces agreements and other politico-military agreements that provide for compulsory forms of dispute settlement between their parties.187 The fact that the EU has in all cases preferred bilateral diplomatic negotiations over more formal procedures as a means to settle potential disputes with the other contracting parties indicates that it seeks to avoid the international agreements concluded for the purposes of the ESDP from becoming the subject of legal proceedings. Of course, this in no way affects the legal nature of the commitments undertaken in those agreements, nor does it prevent the EU and the other contracting parties from incurring international legal responsibility should they breach these commitments. What it does mean, however, is that none of the parties may have recourse to legal remedies in order to invoke the responsibility of another party and to resolve disputes relating to the application and interpretation of the agreements.188 Secondly, the relevant legal instruments provide that the Member States and institutions of the EU as well as the third States contributing personnel to an ESDP mission shall be responsible for answering any claims linked to, from or concerning the personnel they have seconded to the mission.189 While claims relating to seconded personnel are thus settled directly by the sending States or institutions, claims for damage caused by the headquarters of military operations are covered by a financing mechanism acting on behalf of the contributing States.190 These arrangements are designed to settle claims arising from EU crisis management missions without invoking the international legal responsibility of the EU itself.
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These two examples suggest that the Member States are more content with the EU as a political actor on the international stage than as a legal person: whereas the Union has concluded more than seventy international agreements and conducted 18 crisis management missions in its own name in the period between 2002 and 2007, it has been reluctant, or so it seems, to fully accept the legal consequences of its status as an independent subject of international law. It is unlikely, however, that the Member States and the EU *84 will be able to indefinitely avoid the question of the Union's sole or joint responsibility for damage or injury caused by its crisis management missions from arising in practice.191 Indeed, should third States or private claimants ever commence proceedings against EU Member States in relation to EU crisis management missions before international judicial bodies, such as the International Court of Justice or the European Court of Human Rights, it would not be surprising to see the Member States concerned arguing that the alleged wrongful conduct that gave rise to the proceedings should be attributed exclusively to the EU, rather than to them.192 The extent to which the EU may be held responsible for the acts or omissions of its crisis management missions, and whether it has a sufficient legal interest in acting on their behalf, for instance by presenting international claims,193 depends in large measure on the nature of the legal and institutional relationship between the EU and those missions. Whereas peace support operations established by the UN and operating under its effective command and control are subsidiary organs of the Organization,194 it is unclear whether missions launched in the context of the ESDP should be considered as de jure subsidiary organs of the EU, as instrumentalities of the participating States and organizations, or as independent legal entities. Arguments can be found both for and against each of these three positions. For example, the fact that ESDP missions are established by the Council in the form of a Joint Action under Article 14 TEU suggests that a close institutional relationship exists between them and the EU. At the same time, nothing indicates that the operational assets and personnel contributed to ESDP missions by the participating States and organizations are incorporated into the institutional structure of the EU for the purposes and duration of these missions: instead, it appears that such assets and personnel remain the exclusive organs of the respective contributing States and organizations. Still, the fact that the status of forces and *85 status of mission agreements concluded by the Council confer privileges and immunities directly on ESDP missions and entitle them to enter into contracts and to conclude arrangements with the local authorities could imply that they are not mere instrumentalities of the contributing States and organizations after all, but entities that in some respects lead an independent legal existence. Consequently, the extent of the EU's international legal responsibility for the acts or omissions of ESDP missions and their personnel remains uncertain.195 V. CONCLUSION The academic debate concerning the international legal status and nature of the EU has entered a new phase. A review of the Council's treaty practice between 2002 and 2007 reveals that the Council acts on behalf of the European Union under Article 24 TEU, and that the Union has thereby become a contracting party to the more than 70 international agreements concluded by the Council in the context of the ESDP. Most importantly, some of these agreements appear to treat the European Union as a distinct legal entity that is capable of bearing rights and duties under international law separately from its Member States. The Council's practice thus strongly suggests that the EU has acquired the capacity to conclude treaties in its own right, and that this capacity has been recognized by those third States and organizations that have entered into agreements with it. As a result of these developments, the EU must be considered as an independent subject of international law. In the past, those arguing against the existence of the EU's international legal personality have sometimes been accused of fighting a rearguard action.196 Scepticism concerning the international status of the EU is likely to become an increasingly unfashionable position now that a consensus is emerging in the literature concerning the interpretation of Article 24 TEU and the Council's recent practice under this provision.197 However, some doubts *86 concerning the legal status and nature of the EU do remain and should not be
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brushed aside lightly. The Council's efforts to streamline Article 24 TEU and the conclusion of informal arrangements show that the EU's practice in the area of treaty-making is still evolving. In particular, important questions remain unanswered concerning the extent of the Union's legal capacities, its willingness to assume international commitments and legal responsibility, as well as the exact nature of its relationship with its Member States, third parties, and the crisis management missions launched in the context of the ESDP.198 The debate surrounding the legal character of the EU is thus far from over: its terms are merely shifting onto different territory, in particular the law of international responsibility. BA (Durham), LLM (LSE), Doctoral candidate (UCL). Email: A.Sari@ucl.ac.uk. I am grateful to Richard Gardiner and Jrg Kammerhofer for comments on an earlier version of this paper. The responsibility for any shortcomings is mine alone.
1. For an overview of the ESDP, see TC Salmon and AJK Shepherd, Toward a European Army: A Military Power in the Making? (Lynne Rienner, Boulder CO, 2003); RA Wessel, The State of Affairs in EU Security and Defence Policy: The Breakthrough in the Treaty of Nice (2003) 8 Journal of Conflict and Security Law 265; N Gnesotto (ed), EU Security and Defence Policy: The First Five Years (1999-2004) (EU Institute for Security Studies, Paris, 2004); R Keane, European Security and Defence Policy: From Cologne to Sarajevo (2005) 19 Global Society 89; S Graf von Kielmansegg, Die Verteidigungspolitik der Europischen Union: Eine Rechtliche Analyse (Boorberg, Stuttgart, 2005); M Trybus and N White (eds), European Security Law (OUP, Oxford, 2007). 2. These include the preservation of peace and the strengthening of international security, in accordance with the principles of the United Nations Charter, as well as the development and consolidation of democracy and the rule of law, and respect for human rights and fundamental freedoms. See E Denza, The Intergovernmental Pillars of the European Union (OUP, Oxford, 2002) 129-33. 3. See F Naert, ESDP in Practice: Increasingly Varied and Ambitious EU Security and Defence Operations in Trybus and White (n 1) 61; N Tsagourias, EU Peacekeeping Operations: Legal and Theoretical Issues in ibid 102. 4. Council Joint Actions 2003/92/CFSP of 27 Jan 2003 [2003] OJ L34/26 (Concordia ); 2003/423/CFSP of 5 June 2003 [2003] OJ L143/50 (Artemis ); 2004/570/CFSP of 12 July 2004 [2004] OJ L252/10 (Althea ); 2006/319/CFSP of 27 Apr 2006 [ 2006] OJ L116/98 (EUFOR RD Congo ); 2007/677/CFSP of 15 Oct 2007 [2007] OJ L279/21 (EUFOR Tchad/RCA ). 5. SC Res 1484, 30 May 2003 (Artemis ); SC Res 1575, 22 Nov 2004 (EUFOR Althea ); SC Res 1671, 25 Apr 2006 (EUFOR RD Congo ); SC Res 1778, 25 Sept 2007 (EUFOR Tchad/RCA ). 6. Council Joint Actions 2002/210/CFSP of 11 Mar 2002 [2002] OJ L70/1 (EUPM ); 2003/681/CFSP of 29 Sept 2003 [2003] OJ L249/66 (Proxima ); 2004/847/CFSP of 9 Dec 2004 [2004] OJ L367/30 (EUPOL Kinshasa ); 2005/797/CFSP of 14 Nov 2005 [2005] OJ L300/65 (EU COPPS ); 2005/826/CFSP of 24 Nov 2005 [2005] OJ L307/61 (EUPAT ); 2007/369/CFSP of 30 May 2007 [2007] OJ L139/33 (EUPOL AFGHANISTAN ); 2007/405/CFSP of 12 June 2007 [2007] OJ L151/46 (EUPOL RD Congo ). 7. Council Joint Actions 2004/523/CFSP of 28 June 2004 [2004] OJ L228/21 (EUJUST Themis ); 2005/190/CFSP of 7 Mar 2005 [2005] OJ L62/37 (EUJUST Lex ). 8. Council Joint Action 2005/643/CFSP of 9 Sept 2005 [2005] OJ L234/13 (AMM ). 9. Council Joint Action 2005/355/CFSP of 2 May 2005 [2005] OJ L112/20 (EUSEC RD Congo ). 10. Council Joint Action 2005/889/CFSP of 12 Dec 2005 [2005] OJ L327/28 (EU BAM Rafah ). 11. Council Joint Action 2005/557/CFSP of 18 July 2005 [2005] OJ L188/46 (EU Civilian-Military Supporting Action to AMIS II ). 12. EU-FRY, 25 Apr 2001 [2001] OJ L125/2; EU-FYROM, 31 Aug 2001 [2001] OJ L241/2. Subsequently, a similar agreement was also concluded with Albania: EU-Albania, 28 Mar 2003 [2003] OJ L93/50. 13. Council Joint Action 2000/811/CFSP of 22 Dec 2000 [2000] OJ L328/53, as extended and amended.
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14. Art 2 TEU. 15. P Eeckhout, External Relations of the European Union: Legal and Constitutional Foundations (OUP, Oxford, 2005) 159. 16. For other works on this subject, see G de Kerchove and S Marquardt, Les accords internationaux conclus per l'Union europenne (2004) 50 Annuaire Franais de Droit International 803; D Thym, Die vlkerrechtlichen Vertrge der Europischen Union (2006) 66 ZaRV 863; RA Wessel, The EU as a Party to International Agreements: Shared Competences? Mixed Responsibilities?, forthcoming in A Dashwood and M Maresceau (eds), The Law and Practice of EU External Relations--Salient Features of a Changing Landscape (CUP, Cambridge, 2008). 17. For the UN's practice in this field, see RCR Siekmann, National Contingents in United Nations PeaceKeeping Forces (Martinus Nijhoff, Dordrecht, 1991); M Bothe and T Drschel, The UN Peacekeeping Experience in D Fleck (ed) The Handbook of the Law of Visiting Forces (OUP, Oxford, 2001) 487. 18. DW Bowett, Military Forces Abroad (1997) 3 Encyclopaedia of Public International Law 388. For a comprehensive treatment of the subject, see Fleck (n 17). 19. EU-BiH, 4 Oct 2002 [2002] OJ L293/2 (EUPM ); EU-FYROM, 21 Mar 2003 [2003] OJ L82/46 (Concordia ); EU-FYROM, 11 Dec 2003 [2004] OJ L16/66 (Proxima ); EU-Georgia, 3 Dec 2004 [2004] OJ L389/42 (EUJUST Themis ); EU-DRC, 1 Sept 2005 [2005] OJ L256/58 (EUPOL Kinshasa ); EU-Indonesia, 9 Sept 2005 [2005] OJ L288/60 (AMM ); extended by EU-Indonesia, 28 Feb 2006 [2006] OJ L71/55 and EU-Indonesia, 15 Sept 2006 [2006] OJ L273/9; EU-Gabon, 16 June 2006 [2006] OJ L187/43 (EUFOR RD Congo ). In the case of two operations, the EU and the host States concerned agreed to extend the application of earlier status agreements to the operations in question: see recital (11) of Joint Action 2005/355/CFSP (n 9) (EUSEC RD Congo ) and Art 11(1) of Joint Action 2005/826/CFSP (n 6) (EUPAT). 20. See n 84. 21. eg SC Res 1671 of 25 Apr 2006 provided that the agreement governing the status of the UN Mission to the Democratic Republic of the Congo (MONUC) of 4 May 2000 (on file with the author) shall apply to EUFOR RD Congo , the EU's most recent military operation in the DRC. 22. The operation in question was operation Artemis in the DRC. 23. 18 Apr 1961, 500 UNTS 95. 24. For details, see A Sari, Status of Forces and Status of Mission Agreements under the ESDP: The EU's Evolving Practice, forthcoming in (2008) 19 EJIL. 25. Annex 1 to Annex IV (Presidency Report on the ESDP) to Helsinki European Council Presidency Conclusions, 11 and 12 Dec 1999, 25. 26. EU-Albania, 7 Mar 2005 [2005] OJ L65/35 (Althea ). 27. EU-Argentina, 9 June 2005 [2005] OJ L156/22 (Althea ). 28. EU-Bulgaria, 9 Jan 2003 [2003] OJ L239/41 (EUPM ). 29. EU-Chile, 25 July 2005 [2005] OJ L202/40 (Althea ). 30. EU-Croatia, 4 Oct 2007 [2007] OJ L270/28. 31. EU-Cyprus, 10 Dec 2002 [2003] OJ L239/2 (EUPM ); EU-Cyprus, 1 Oct 2003 [2003] OJ L253/23 ( Artemis ). 32. EU-Czech Republic, 11 Dec 2002 [2003] OJ L239/8 (EUPM ); EU-Czech Republic, 23 June 2003 [2003] OJ L229/39 (Concordia ). 33. EU-Estonia, 18 Dec 2002 [2003] OJ L239/26 (EUPM ); EU-Estonia, 28 July 2003 [2003] OJ L216/61 ( Concordia ). 34. EU-FYROM, 30 June 2006 [2006] OJ L188/10 (Althea ). 35. EU-Hungary, 13 Dec 2002 [2003] OJ L239/20 (EUPM ). 36. EU-Iceland, 10 Dec 2002 [2003] OJ L239/5 (EUPM ). 37. EU-Latvia, 12 Dec 2002 [2003] OJ L239/17 (EUPM ); EU-Latvia, 14 Oct 2003 [2003] OJ L313/79 ( Concordia ). 38. EU-Lithuania, 11 Dec 2002 [2003] OJ L239/11 (EUPM ); EU-Lithuania, 9 Sept 2003 [2003] OJ L234/19
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(Concordia ). 39. EU-Switzerland, 11 Dec 2002 [2003] OJ L239/14 (EUPM ); EU-Switzerland, 14 July 2004 [2004] OJ L354/78 (Proxima ); EU-Switzerland, 22 Dec 2004 [2005] OJ L20/42 (Althea ); EU-Switzerland, 22 Dec 2005 [2005] OJ L349/31 (AMM ); EU-Switzerland, 10 Aug 2006 [2006] OJ L276/111 (EUFOR RD Congo ). 40. EU-Morocco, 1 Feb 2005 [2005] OJ L34/47 (Althea ). 41. EU-NZ, 4 May 2005 [2005] OJ L127/28 (Althea ); EU-NZ, 3 Oct 2007 [2007] OJ L274/18 (EUPOL AFGHANISTAN ). 42. EU-Norway, 19 Dec 2002 [2003] OJ L239/32 (EUPM ); EU-Norway, 9 Sept 2004 [2004] OJ L354/86 ( Proxima ). 43. EU-Poland, 24 Feb 2003 [2003] OJ L64/37 (EUPM ); EU-Poland, 15 Oct 2003 [2003] OJ L285/44 (Concordia ). 44. EU-Romania, 16 Dec 2002 [2003] OJ L239/23 (EUPM ); EU-Romania, 7 Nov 2003 [2003] OJ L120/6 ( Concordia ). 45. EU-Russia, 24 July 2003 [2003] OJ L197/37 (EUPM ). 46. EU-Slovakia, 31 July 2003 [2003] OJ L239/44 (EUPM ); EU-Slovakia, 19 Dec 2003 [2004] OJ L12/54 ( Concordia ). 47. EU-Slovenia, 18 Dec 2002 [2003] OJ L239/29 (EUPM ). 48. EU-Turkey, 20 Dec 2002 [2003] OJ L239/35 (EUPM ); EU-Turkey, 4 Sept 2003 [2003] OJ L234/23 ( Concordia ); EU-Turkey, 10 Sept 2004 [2004] OJ L354/90 (Proxima ). 49. EU-Ukraine, 23 Dec 2002 [2003] OJ L239/38 (EUPM ); EU-Ukraine, 8 July 2004 [2004] OJ L354/82 ( Proxima ). 50. Pursuant to Art 13(1)(f) of Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, international agreements concluded under Art 24 TEU shall be published in the Official Journal, subject to the exceptions laid down in Arts 4 and 9 of the Regulation. See also Art 17(1)(h) of Council Decision 2004/338/EC, Euratom of 22 Mar 2004 adopting the Council's Rules of Procedure [2004] OJ L106/22, as amended. 51. See Council doc 11550/03, List of A Items for 2522nd meeting of the Council (General Affairs and External Relations), 18 July 2003, 3; Council Doc 12321/05, Council Decision concerning the conclusion of an Agreement in the form of an Exchange of Letters between the European Union and Brunei, Singapore, Malaysia, Thailand, and the Philippines, 4 Oct 2005. 52. By contrast, the UN does conclude such agreements with its Member States: see UN Doc A/46/185, Model Agreement between the United Nations and Member States Contributing Personnel and Equipment to United Nations Peace-keeping Operations, 23 May 1991. 53. Council Decision 2001/264/EC of 19 Mar 2001 adopting the Council's security regulations [2001] OJ L101/1, as amended. 54. Sec. XII, Council Decision 2001/264/EC. 55. EU-NATO, 14 Mar 2003 [2003] OJ L80/35. 56. EU-BiH, 5 Oct 2004 [2004] OJ L324/16. 57. EU-Bulgaria, 25 Apr 2005 [2005] OJ L118/53. 58. EU-Croatia, 10 Apr 2006 [2006] OJ L116/74. 59. EU-FYROM, 25 Mar 2005 [2005] OJ L94/39. 60. EU-Iceland, 12 June 2006 [2006] OJ L184/35. 61. EU-Norway, 22 Nov 2004 [2004] OJ L362/29. 62. EU-Romania, 22 Apr 2005 [2005] OJ L118/48. 63. EU-Ukraine, 13 June 2005 [2005] OJ L172/84. 64. EU-ICC, 10 Apr 2006 [2006] OJ L115/50. 65. Council Doc 11206/03, Lessons from the planning of the EU Police Mission in Bosnia and Herzegovina (EUPM), 14 July 2003, 8-9.
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66. Council doc 6040/04, Draft Framework Participation Agreement-Report, 6 Feb 2004, 1. 67. EU-Cyprus (Artemis ) (n 31). 68. 2562nd Council meeting (General Affairs), 23 Feb 2004, v. See Council doc 6040/04 (n 66). The third countries concerned were Bulgaria, Canada, Iceland, Norway, Romania, Russia, Turkey, and Ukraine. 69. EU-Bulgaria, 24 Jan 2005 [2005] OJ L46/50; EU-Canada, 24 Nov 2005 [2005] OJ L315/21; EU-Iceland, 21 Feb 2005 [2005] OJ L67/2; EU-Norway, 3 Dec 2004 [2005] OJ L67/8; EU-Romania, 22 Nov 2004 [2005] L67/14; EU-Turkey, 29 June 2006 [2006] OJ L189/17; EU-Ukraine, 13 June 2005 [2005] OJ L182/29. 70. Council Doc 12047/04, Draft model agreement on the participation of a third State in an European Union military crisis management operation, 3 Sept 2004; Council Doc 12050/04, Draft model agreement on the participation of a third State in an European Union civilian crisis management operation, Sept 2004. 71. 2603rd Council meeting (General Affairs and External Relations), 13 Sept 2004, 10. 72. Council Doc 8720/05, Draft Model Agreement on the status of the European Union-led forces between the European Union and a Host State, 18 May 2005. 73. Council Doc 10564/05, Draft Model Agreement on the status of the European Union Civilian Crisis Management Mission in a Host State (SOMA), 27 June 2005. 74. 2659th Council Meeting (General Affairs and External Relations), 23 May 2005, 10; 2674th Council Meeting (General Affairs and External Relations), 18 July 2005, 21. 75. EU-Switzerland (AMM ) (n 39); Council Doc 12321/05 (n 51). 76. EU-Indonesia (AMM ) (n 19); EU-Gabon (EUFOR RD Congo ) (n 19). Further agreements based on the EU Model SOFA shall be negotiated with Chad and the Central African Republic in accordance with Art 12 of Council Joint Action 2007/677/CFSP (n 4). 77. Council doc 11697/05, Confirmatory application made by Mr Aurel Sari (35/c/04/05), 16 Sept 2005, 4-5. 78. eg Art 8(6), EU-FYROM (Proxima ) (n 19); Art 16, EU-FYROM (Concordia ) (n 19); Art 15(6), EUGabon (EUFOR RD Congo ) (n 19). Such mandatory supplementary arrangements could be classified as pacta de contrahendo , assuming that their parties are the same as those of the original agreement. See U Beyerlin, Pactum de contrahendo und pactum de negotiando im Vlkerrecht? (1976) 36 ZaRV 407. 79. The EU-BiH (EUPM ) (n 19), agreement called for the conclusion of practical arrangements between the contracting parties to the agreement, rather than between the head of mission and the local administrative authorities. Provisions to this effect were also included in the status agreements for the EUMM (see n 12). 80. eg Art 6(2), EU-Poland (EUPM ) (n 43); Art 6(3), EU-Norway (Proxima ) (n 42). 81. eg Art 6, EU-Chile (Althea ) (n 29); Art 19, Annex I, EU-Switzerland (EUFOR RD Congo ) (n 39). 82. See M Reichard, Some Legal Issues Concerning the EU-NATO Berlin Plus Agreement (2004) 73 Nordic Journal of International Law 37; M Reichard, The EU-NATO Relationship: A Legal and Political Perspective (Ashgate, Aldershot, 2006) 273-310. The text of the Berlin Plus agreement is classified, but see EU-NATO Declaration on ESDP (2003) 42 ILM 242 and the Appendix to Annex VII to the Presidency Report on the ESDP (Nice), 13 Dec 2000, 58. 83. eg recital (1), Council Decision 2003/202/CFSP of 18 Mar 2003 [2003] OJ L76/43. 84. Such exchanges of letters took place concerning EUJUST Lex, EU BAM Rafah and EU COPPS. 85. eg recital (13), Council Joint Action 2004/570/CFSP (Althea ) (n 4). 86. eg Council doc 14578/06, EUPOL KINSHASA: exchange of letters between the EU and the Republic of Mali, 27 Oct 2006. 87. eg Council doc 11247/06, Release of Operation EUFOR RD Congo related EUCI-Exchange of letters between the EU and the Republic of Turkey, 4 July 2006. 88. Recital (15), Council Joint Action 2005/557/CFSP (EU Supporting Action to AMIS II ) (n 11). 89. EU-FYROM (Concordia ) (n 19) 50. 90. See C Lipson, Why are Some International Agreements Informal? (1999) 45 International Organization 495. 91. The Political and Security Committee forms part of the Council structure and is responsible for the day-
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to-day management of the CFSP and ESDP. In particular, the Committee exercises political control and strategic direction of EU crisis management operations under the authority of the Council in accordance with Art 25 TEU. 92. Council doc 15944/03, EUPOL Proxima: legal basis for the contribution of Acceding States, 10 Dec 2003. 93. Council doc 14578/06 (n 86). 94. eg Art 9(6) and Art 13(1), Council Joint Action 2003/681/CFSP (Proxima ) (n 6); Art 10(3), Council Joint Action 2006/319/CFSP (EUFOR RD Congo ) (n 4). 95. See also de Kerchove and S Marquardt (n 16) 808; Thym (n 16) 871. 96. This fact is apparently overlooked by Reichard, who argues that only the Presidency may sign international agreements under Art 24 TEU. See Reichard (2004, n 82), 58-60 and (2006, n 82), 138-41, 298-300, and 348. 97. See FMnch, Non-binding Agreements (1969) 29 ZaRV 1; FS Hamzeh, Agreements in Simplified Form-Modern Perspective (1968-1969) 43 BYIL 179; M Rotter, Die Abgrenzung zwischen vlkerrechtlichem Vertrag und ausserrechtlicher zwischenstaatlicher Abmachung: Zu Art. 2(1)a der Vienna Convention on the Law of Treaties in R Marcic et al (eds), Internationale Festschrift fr Alfred Verdross zum 80. Geburtstag (Fink, Mnchen, 1971) 413; O Schachter, The Twilight Existence of Nonbinding International Agreements (1977) 71 AJIL 296; A Aust, The Theory and Practice of Informal International Instruments (1986) 35 ICLQ 787, especially 800-4; M Nash (Leich), International Acts not Constituting Agreements (1994) 88 AJIL 515; R Jennings and A Watts, Oppenheim's International Law (Longman, London and New York, 1996) 1199-203. cf Opinion 1/75, OECD Local Cost Standard [1975] ECR 1355, 1356. See also K Raustiala, Form and Substance in International Agreements (2005) 99 AJIL 581. 98. Art 26 TEU. 99. For a different view, see Reichard (n 96). 100. Council doc 11247/06 (n 87) 3. 101. In fact, Council doc 11247/06 (n 87) states that the High Representative acted on the instructions of the Council. 102. On the difficulties involved in construing the intentions of the parties to an informal international instrument, see J Klabbers, The Concept of Treaty in International Law (Kluwer Law, The Hague, 1996) 65-95; C Chinkin, A Mirage in the Sand? Distinguishing Binding and Non-Binding Relations Between States (1997) 10 Leiden Journal of International Law 223. 103. However, the simultaneous use of terminology normally found in treaties and in nonbinding agreements in one and the same instrument could also indicate that the contracting parties hold divergent views as to whether or not the instrument in question is legally binding. For an example of such a disagreement, see JH McNeill, International Agreements: Recent US-UK Practice Concerning the Memorandum of Understanding (1994) 88 AJIL 821. 104. See Schachter (n 97) 301; Aust (n 97) 807-12; H Hillgenberg, A Fresh Look at Soft Law (1999) 10 EJIL 499. For a critical assessment of this position, see Klabbers (n 102), esp 97-119. 105. eg Letter from the Vice Prime Minister of Israel addressed to the High Representative of the CFSP concerning EU BAM Rafah , 23 Nov 2005 (on file with the author). 106. Art 15(6), EU-Gabon (EUFOR RD Congo ) (n 19). 107. UN docs S/2004/915 and S/2004/916 of 19 Nov 2004. 108. See Jennings and Watts (n 97) 1187-96. 109. eg Letter from the Prime Minister of Iraq addressed to High Representative of the CFSP concerning EUJUST Lex , 26 May 2005 (on file with the author); exchange of letters between the High Representative and the Special Representative of the UN Secretary-General in Kosovo during the second half of 2006 concerning the extension of the privileges and immunities of the United Nations Mission in Kosovo (UNMIK) to the EU Planning Team for Kosovo (EUPT Kosovo ) (on file with the author). 110. Council doc 9627/07, EUPOL KINSHASA: Exchange of letters between the EU and Canada, 14 May
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2007; Council doc 9628/07, EUPOL KINSHASA: Exchange of letters between the EU and Turkey, 14 May 2007. 111. See S Marquardt, The Conclusion of International Agreements under Article 24 of the Treaty on European Union in V Kronenberger (ed), The European Union and the International Legal Order: Discord or Harmony? (TMC Asser, The Hague, 2001) 333, 339. It has been suggested that Art 24(3) TEU lays down a special rule entitling the Council to conclude administrative arrangements: HCH Hofmann, Agreements in EU Law (2006) 31 European Law Review 800, 811. However, this view is mistaken in as much as Art 24 TEU as a whole applies to international agreements as the term is understood in public international law, without distinguishing between different types of agreements, while Art 24(3) TEU simply deals with a procedural question of internal decision-making. 112. Case C-327/91, France v Commission [1994] ECR I-3641. See N Burrows, No General External Relations Competence for the Commission (1995) 20 European Law Review 210; AJ Riley, The Jellyfish Nailed? The Annulment of the EC/US Competition Cooperation Agreement (1995) 16 European Competition Law Review 185. 113. 21 Mar 1986 (1986) 25 ILM 543. 114. Case C-327/91 (n 112) paras 18-39; cf Opinion of Advocate General Tesauro [1994] ECR I-3641, paras 18-27. 115. Case C-327/91 (n 112) paras 32-7. 116. Even though Art 7 of the EC Treaty does not apply to the Council's activities under the CFSP, the international law principle of attributed or conferred powers imposes similar restrictions on the Council in this policy area as Art 7 does under the EC Treaty. See J Klabbers, An Introduction to International Institutional Law (CUP, Cambridge, 2002) 60-81. 117. See E Osieke, The Legal Validity of Ultra Vires Decisions of International Organizations (1983) 77 AJIL 239, 243-7. 118. Case C-327/91 (n 112) para 36. 119. cf Denza (n 2) 1-32; R Gosalbo Bono, Some Reflections on the CFSP Legal Order (2006) 43 CMLRev 337, 366-79. The Court of First Instance has recently affirmed that the CFSP and Community law constitute two separate legal orders, see Case T-306/01, Ali Yusuf v Council and Commission [2005] ECR II3533, para 156; and Case T-315/01, Kadi v Council and Commission [2005] ECR II-3649, para 120. 120. 23 May 1969, 1155 UNTS 331. 121. Nevertheless, it has been suggested, wrongly, that the VCLT should not play any role in the interpretation of the TEU. See U Everling, Reflections on the Structure of the European Union (1992) 29 CMLRev 1053, 1064. 122. On the notion of subsequent practice, see A Aust, Modern Treaty Law and Practice (CUP, Cambridge, 2000) 194-5. 123. Cf H Neuhold, Organs Competent to Conclude Treaties for International Organizations and the Internal Procedure Leading to the Decision to be Bound by a Treaty, in K Zemanek (ed), Agreements of International Organizations and the Vienna Convention on the Law of Treaties (Springer, New York, 1971) 195, 266; S Engel, Living International Constitutions and the World Court (1967) 16 ICLQ 865, 909-10. In addition, a teleological interpretation could be made to similar effect along the lines of the Separate Opinion of Judge Spender, Certain Expenses of the United Nations (1962) ICJ Rep 182. 124. I Brownlie, Principles of Public International Law (OUP, Oxford, 2003) 57; Jennings and Watts (n 97) 119-20. 125. On the development of the notion of the international legal personality of international organizations, see B Fabender, Die Vlkerrechtssubjektivitt internationaler Organisationen (1986) 37 sterreichische Zeitschrift fr ffentliches Recht und Vlkerrecht 17; DJ Bederman, The Souls of International Organizations: Legal Personality and the Lighthouse at Cape Spartel (1995-6) 36 Virginia Journal of International Law 275. 126. See HG Schermers and NM Blokker, International Institutional Law (Martinus Nijhoff, The Hague,
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1995) 976-82; P Sands and P Klein, Bowett's Law of International Institutions (Sweet & Maxwell, London, 2001) 470-5; Klabbers (n 116) 52-7; CF Amerasinghe, Principles of the Institutional Law of International Organisations (CUP, Cambridge, 2005) 77-86; ND White, The Law of International Organisations (MUP, Manchester, 2005) 68-9; D Akande, International Organizations in MD Evans (ed), International Law (OUP, Oxford, 2006) 277, 282. This also applies to the theory of objective or inherent legal personality advanced by F Seyersted, Objective International Personality of Intergovernmental Organisations: Do Their Capacities Really Depend upon Their Constitutions? (Krohns Bogtrykkeri, Copenhagen, 1963). Essentially, for Seyersted the key question is whether an international organization, in the sense that he defines the concept, has in fact been established by its creators. 127. Case 22/70, Commission v Council (ERTA) [1971] ECR 263, paras 13-14, eg D McGoldrick, International Relations Law of the European Union (Longman, London and New York, 1997) 29; DR Verwey, The European Community, the European Union and the International Law of Treaties (TMC Asser, The Hague, 2004) 19; P Koutrakos, EU International Relations Law (Hart Publishing, Oxford, 2006) 8-9; but see I MacLeod, ID Hendry, and S Hyett, The External Relations of the European Communities (OUP, Oxford, 1996) 29-36. 128. Treaty Establishing a Constitution for Europe, 29 Oct 2004 [2004] OJ C310/1. This provision too is understood to refer to legal personality under international law. See M Cremona, The Draft Constitutional Treaty: External Relations and External Action (2003) 40 CMLRev 1347, 1350; M Martin and I Lirola, External Action of the European Union After the Constitutional Setback (2006) 2 European Constitutional Law Review 358. See also European Convention doc CONV 305/02, Final Report of Working Group III on Legal Personality, 1 Oct 2002. 129. Art 1(55), Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, 13 Dec 2007 [2007] OJ C306/1. The Treaty of Lisbon was formally signed by the Heads of State and Government of the Member States of the EU on 13 Dec 2007 at Lisbon. The Treaty has not yet entered into force. 130. Reparation for Injuries Suffered in the Service of the United Nations [1949] ICJ Rep 174. See M RamaMontaldo, International Legal Personality and Implied Powers of International Organizations (1970) 44 BYIL 111. 131. ibid 179. 132. ibid 182. 133. Cf Brownlie (n 124) 649. Whereas in the Reparation case the ICJ referred to the exercise of functions and the enjoyment of rights, rather than legal capacities (see n 131), it is clear from the context of the relevant passage that the Court was referring to rights enjoyed by the UN as a result of the exercise of its treatymaking capacity. Effectively, it is the existence of such legal capacities which serves as proof of the conferral of legal personality, rather than the specific treaty rights and obligations arising out of the exercise of those capacities. 134. Treaty on European Union [1992] OJ C191/1. 135. Art J.1(1), Maastricht Treaty. Apparently, this distinction between the Union and its Member States was meant to underline the intergovernmental character of the CFSP, see F Fink-Hooijer, The Common Foreign and Security Policy of the European Union (1994) 5 EJIL 173, 177. 136. Art J.1(3), Maastricht Treaty. 137. Art J.2 and Art J.3, Maastricht Treaty. 138. Under the Maastricht Treaty, the concept of a joint action continued to refer to collective action taken by the Member States, just as it did in Art 30 of the Single European Act (SEA) [1987] OJ L169/1. This is illustrated by the fact that early Council instruments adopting joint actions were labelled Council decisions concerning joint action, where the term Council decision referred the binding legal act and the envisaged joint action merely constituted to the subject of the decision, eg Council Decision 94/790/CFSP of 12 Dec 1994 concerning the joint action on continued support for European Union administration of the town of Mostar [1994] OJ L326/2.
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139. Cf Reparation for Injuries (n 131) 178-9. 140. Art J.1(2) and Art J.1(4), Maastricht Treaty. 141. Maastricht-Urteil (1993) BVerfGE 89, 155, 195; (1994) 33 ILM 388, 428-9; [1994] 1 CMLRev 57, 94-5. See SC Monaghan, European Union Legal Personality Disorder: The Union's Legal Nature Through the Prism of the German Federal Constitutional Court's Maastricht Decision (1998) 12 Emory International Law Review 1443, especially 1486-92. 142. eg G Ress, Ist die Europische Union eine juristische Person? (1995) 30 Europarecht (Beiheft 2) 27; O Drr, Zur Rechtsnatur der Europischen Union (1995) 30 Europarecht 334; A von Bogdandy and M Nettesheim, Ex Pluribus Unum: Fusion of the European Communities into the European Union (1996) 2 European Law Journal 267, 284-6; RA Wessel, The International Legal Status of the European Union (1997) 2 European Foreign Affairs Review 109; J Klabbers, Presumptive Personality: The European Union in International Law in M Koskenniemi (ed), International Law Aspects of the European Union (Kluwer, The Hague, 1998) 231; C Busse, Die vlkerrechtliche Einordnung der Europischen Union (Heymanns, Kln, 1999) (arguing that the CFSP, rather than the EU itself, constitutes an international legal person). 143. eg Everling (n 121) 1061; D Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces (1993) 30 CMLRev 17, 27; H Kirschner, The Framework of the European Union under the Treaty of Maastricht (1993-1994) 13 Journal of Law and Commerce 233, 242; Fink-Hooijer (n 135) 177; MR Eaton, Common Foreign and Security Policy in D O'Keeffe and PM Twomey (eds), Legal Issues of the Maastricht Treaty (Chancery, London, 1994) 215, 224; T Heukels and J de Zwaan, The Configuration of the European Union: Community Dimensions of Institutional Interaction in D Curtin and T Heukels (eds) Institutional Dynamics of European Integration: Essays in Honour of Henry G. Schermers , vol II (Martinus Nijhoff, Dordrecht, 1994) 195, 202-4; T Jrgens, Die Gemeinsame Europische Aussen- und Sicherheitspolitik (Heymanns, Kln, 1994) 329-31; M Pechstein, Rechtssubjektivitt fr die Europische Union? (1996) 31 Europarecht 137; E Paasivirta, The European Union: From an Aggregate of States to a Legal Person? (1997) 2 Hofstra Law and Policy Symposium 37, 45-54; MacLeod, Hendry, and Hyett (n 127), 25; Gosalbo Bono (n 119) 345-7. International relations scholarship has also struggled to come to terms with the nature of the EU as a foreign policy actor, see RH Ginsberg, Conceptualizing the European Union as an International Actor: Narrowing the Theoretical Capability-Expectations Gap (1999) 37 Journal of Common Market Studies. 429. 144. Treaty of Amsterdam, 2 Oct 1997 [1997] OJ C340/1. 145. Arts 11(2), 14, 15, 23, 26, Amsterdam TEU (consolidated) [1997] OJ C340/145. 146. While Art J.2(1) of the Maastricht Treaty called upon the Member States to inform and consult one another so that their combined influence is exerted as effectively as possible by means of concerted and convergent action, Art 16 of the Amsterdam Treaty modified this provision to refer to the Union's influence. This suggests that the Union's foreign and security policy stands for joint action by the Member States. The possibility cannot be discounted, however, that this change was intended to serve merely rhetorical aims, see F Dehousse, The IGC Process and Results in D O'Keeffe and P Twomey (eds), Legal Issues of the Amsterdam Treaty (Hart Publishing, Oxford, 1999) 93, 98-9. 147. eg J Monar, The European Union's Foreign Affairs System after the Treaty of Amsterdam: A Strengthened Capacity for External Action? (1997) 2 European Foreign Affairs Review 413, 427; Paasivirta (n 143) 57-9; M Cremona, The European Union as an International Actor: The Issues of Flexibility and Linkage (1998) 3 European Foreign Affairs Review 67, 70; NAEM Neuwahl, A Partner With a Troubled Personality: EU Treaty-Making in Matters of CFSP and JHA after Amsterdam (1998) 3 European Foreign Affairs Review 177, 185-6; D Vignes, L'absence de personnalit juridique de l'Union europenne: Amsterdam persiste et signe in G Hafner et al (eds), Liber Amicorum Professor Seidl-Hohenveldern (Kluwer, The Hague, 1998) 757, 760; JW de Zwaan, The Legal Personality of the European Communities and the European Union (1999) 30 NYIL 75, 100-5; K Lenaerts and E de Smijter, The European Union as an Actor under International Law (1999-2000) 19 Yearbook of European Law 95, 130;MPechstein and C Koenig, Die Europische Union (Mohr Siebeck, Tbingen, 2000) 151-2; D Mahncke, Reform of the CFSP:
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From Maastricht to Amsterdam in J Monar and W Wessels (eds), The European Union after the Treaty of Amsterdam (Continuum, London and New York, 2001) 227, 244; E Regelsberger and U Schmalz, The Common Foreign and Security Policy of the Amsterdam Treaty: Towards an Improved EU Identity on the International Scene? in ibid 249, 252-3; Denza (n 2) 176; cf DM Curtin and IF Dekker, The EU as a Layered International Organization: Institutional Unity in Disguise in P Craig and G de Brca (eds), The Evolution of EU Law (OUP, Oxford, 1999) 83, 111. See also DT Murphy, The European Union's Common Foreign and Security Policy: It is Not Far From Maastricht to Amsterdam (1998) 31 Vanderbilt Journal of Transnational Law 871, 911-2; A Aust, Handbook of International Law (CUP, Cambridge, 2005) 480. 148. eg NM Blokker and T Heukels, The European Union: Historical Origins and Institutional Challenges in T Heukels, N Blokker, and M Brus (eds), The European Union after Amsterdam: A Legal Analysis (Kluwer, The Hague, 1998) 9, 27-38; B de Witte, The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral?, in ibid 51, 63-4; S Langrish, The Treaty of Amsterdam: Selected Highlights (1998) 23 European Law Review 3, 13-14; A Tizzano, La personnalit internationale de l'Union europenne (1998) Revue du March Unique Europen 11, 25-8; JC Wichard, Wer ist Herr im europischen Haus? (1999) 34 Europarecht 170, 174; RA Wessel, Revisiting the International Legal Status of the EU (2000) 5 European Foreign Affairs Review 507, 527-31; G Hafner, The Amsterdam Treaty and the Treaty-Making Power of the European Union: Some Critical Comments in Hafner et al (n 147) 257, 270-2; Marquardt (n 111; MM Pachinger, Die Vlkerrechtspersnlichkeit der Europischen Union (Peter Lang, Frankfurt aM, 2003) 92-103; TM Gtt, Die Gemeinsame Auen- und Sicherheitspolitik und ihre Bedeutung fr die Europische Union: Rechtspersnlichkeit und Rechtsnatur der EU (Herbert Utz, Mnchen, 2003) 125-35; T Georgopoulos, What Kind of Treaty Making Power for the EU? Constitutional Problems Related to the Conclusion of the EU-US Agreements on Extradition and Mutual Legal Assistance (2005) 30 European Law Review 190, 193; R Leal-Arcas, EU Legal Personality in Foreign Policy? (2007) 24 Boston University International Law Journal 165. 149. Art 11(1) Amsterdam TEU. 150. Declaration on Arts J.I4 and K.10 of the Treaty on European Union, Final Act [1997] OJ C340/131. 151. Cf E Cannizzaro, Fragmented Sovereignty? The European Union and its Member States in the International Arena (2003) 13 Italian Yearbook of International Law 35, 38-9. See also D Sarooshi, Conferrals by States of Powers on International Organizations: The Case of Agency (2003) 74 BYIL 291. Some have argued that the declaration was really aimed at preventing the so-called ERTA effect: Tizanno (n 148) 28. However, since the CFSP does not form part of Community law, the reasoning in the ERTA case (n 127, paras 15-8) does not apply to Art 24 TEU. cf Thym (n 16) 900-5; Wessel (n 16). 152. Tizanno (n 148) 25. 153. Council docs CONF 3850/96, A strengthened external action capability, 24 May 1996, at 10; CONF 3860/96, Progress Report on the Intergovernmental Conference, 12 June 1996, at 36-7; CONF 3860/1/96 ADD1, Draft texts, 13 June 1996, 18-20. The much-quoted Dublin II proposal by the Irish Presidency subsequently dropped the third option in favour of the first two, while noting the lack of unanimity on the subject. See Council doc CONF 2500/96, The European Union Today and Tomorrow, 5 Dec 1996, 88-90. 154. Blokker and Heukels (n 148) 36-7. 155. Draft Articles on the Law of Treaties with Commentaries (1966) 2 Yearbook of the International Law Commission 177, 220. 156. Recourse to the travaux prparatoires is itself fraught with ambiguities and is frequently considered controversial. See M Ris, Treaty Interpretation and ICJ Recourse to Travaux Prparatoires : Towards a Proposed Amendment of Arts 31 and 32 of the Vienna Convention on the Law of Treaties (1991) 14 Boston College International Law and Comparative Law Review 111; J Klabbers, International Legal Histories: The Declining Importance of Travaux Prparatoires in Treaty Interpretation? (2003) 50 Netherlands International Law Review 267; U Linderfalk, Is the Hierarchical Structure of Articles 31 and 32 of the Vienna Convention Real or Not? Interpreting the Rules of Interpretation (2007) 54 Netherlands International Law Review 133. There can be no doubt, however, that Art 24 TEU presents a prime example of a provision from
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which no clear and unequivocal meaning can be derived by applying the general rule of interpretation under Art 31 VCLT. 157. Council doc CONF 3850/96 (n 153) 10. 158. Cf McGoldrick (n 127) 38. 159. In particular, one cannot admit that several Member States resisted the attribution of international legal personality to the EU during the negotiations of the Amsterdam Treaty, yet at the same time propose that they somehow still granted that status to the Union through Art 24 TEU by implication: eg Hafner (n 148) 283. This makes a mockery of the principle of State consent to be bound by a treaty; cf Separate Opinion of Judge Spender (n 123) 196. 160. eg Written Statement Presented by the Government of the United Kingdom (1949) ICJ Pleadings 23, 26-31. 161. Marquardt (n 111) 341-2. 162. eg it has been argued that the EU possesses the legal capacity, pursuant to the implied powers doctrine, to conclude international agreements on its on behalf without, however, enjoying international legal personality: Georgopoulos (n 148) 191-4. 163. Art J.5(1) TEU ( Maastricht); Art 18(1) TEU (Amsterdam/Nice). 164. Memorandum of Understanding on the European Union Administration of Mostar, 5 July 1994 (on file with the author). 165. Treaty of Nice, 26 Feb 2001 [2001] OJ C80/1. 166. Marquardt (n 111) 344-5. See also Pachinger (n 148) 107-8; Gtt (n 148) 133. 167. Cf A Mignolli Sul treaty-making power nel secondo e nel terzo pilastro dell'Unione europea (2001) 84 Rivista di diritto internazionale 978, 983-9. 168. Art 25(2) VCLT 1969; Art 25(2) VCLT 1986. See MA Rogoff and BE Gauditz, The Provisional Application of International Agreements (1987) 39 Maine Law Review 29; R Lefeber, The Provisional Application of Treaties in J Klabbers and R Lefeber (eds), Essays on the Law of Treaties: A Collection of Essays in Honour of Bert Vierdag (Martinus Nijhoff, The Hague, 1998) 81; Aust (n 122) 139-41. 169. Emphasis added. 170. de Kerchove and S Marquardt (n 16) 813. 171. Council Doc CONFER 4790/00, Progress report on the Intergovernmental Conference on institutional reform, 3 Nov 2000, 12. 172. Of course, the provisional application of the agreement in this manner would require the consent of that third party. 173. While it seems that there is no subsequent practice on the implementation of Art 24(5) TEU in the area of the CFSP, such practice does exist with regard to agreements concluded under the EU's third pillar. See n 198. 174. eg A Dashwood, External Relations Provisions of the Amsterdam Treaty (1998) 35 CMLRev 1019, 1038-41, reprinted in O'Keeffe and Twomey (n 146) 201, 218-21; P Gautier, The Reparation for Injuries Case Revisited: The Personality of the European Union (2000) 4 Max Planck UNYB 331, 347-58; NAEM Neuwahl, Legal Personality of the European Union-International and Institutional Aspects in Kronenberger (n 111) 3, 11-20. See also S Peers, Common Foreign and Security Policy 1997 (1997) 17 Yearbook of European Law 539, 561-4; Wessel (n 142) 126; M Gavouneli, International Law Aspects of the European Union (2000) 8 Tulane Journal of International and Comparative Law 147, 155-6; L Grard, L'Union Europenne, sujet de droit international (2006) 110 Revue gnrale de droit international public 337, 352. 175. Editorial Comment, The European Union: A new international actor 38 CMLRev (2001) 825; Reichard (n 82) 52; de Kerchove and S Marquardt (n 16) 814; M Kleine, Die Militrischen Komponente der Europischen Sicherheits- und Verteidigungspolitik (Nomos, Baden-Baden, 2005) 115-31; Naert (n 3) 101; Tsagourias (n 3) 116-17; Eeckhout (n 15) 159-60; Verwey (n 127) 60-1; Koutrakos (n 127) 409; Thym (n 16) 870-5; Grard (n 174) 352-4; Leal-Arcas (n 148); Wessel (n 16). 176. eg Council Decision 2004/924/CFSP of 22 Nov 2004 [2004] OJ L389/41.
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177. This may be contrasted with the Memorandum of Understanding on the EU Administration of Mostar (n 164), which named to the Member States of the European Union acting within the framework of the Union as the sending party. 178. eg Art 3, EU-BiH (n 56). See also Art 2, EU-ICC (n 64). 179. The preambles of the agreements invoke the objective to strengthen the EU's security in all ways (Art 11 TEU), while Art 6 contrasts the EU with the Council, the Council General Secretariat and the Commission. 180. This is particularly evident from Art 6, EU-NATO (n 55), which refers to the Council, the Council General Secretariat and the Commission as entities of the Parties, thereby distinguishing these entities from the EU as a contracting party. 181. Art 5(a), EU-NATO (n 55). 182. eg Art 2(6), EU-NZ (n 41); Art 3(6), EU-Turkey (n 69). 183. Such a distinction between the EU and its Member States is also drawn in certain agreements negotiated in the context of the EU's third pillar using the procedure set out in Art 24 TEU pursuant to Art 38 TEU. Thus, the EU has undertaken to provide for enhanced cooperation between its Member States and the United States in the field of extradition and mutual legal assistance in two treaties drawn up between the EU and the United States: EU-US, 25 June 2003 [2003] OJ L181/27 (extradition); EU-US, 25 June 2003 [2003] OJ L181/34 (mutual legal assistance). 184. It makes little difference whether the Council's practice is understood as subsequent practice of the Member States within the meaning of Art 31(3)(b) of the VCLT, or as practice of the Council as an organ of the EU. See T Sato, Evolving Constitutions of International Organizations (Kluwer Law, The Hague, 1996). 185. The term is borrowed from European foreign policy analysis, see RH Ginsberg, The European Union in International Politics (Rowman & Littlefield, Lanham, 2001) 45ff. 186. eg Art 14, EU-Georgia (EUJUST Themis) (n 19); Art 16, EU-Romania (n 62); Art 16, EU-Gabon (EUFOR RD Congo) (n 19). 187. eg Art VIII, Treaty for Collaboration in Economic, Social and Cultural Matters and for Collective Selfdefence (Brussels Treaty) 17 Mar 1948, 19 UNTS 51; Art 46, UN-Congo (UNOC) 27 Nov 1961, 414 UNTS 230; Arts 53 and 54, UN doc A/46/185 (n 52). 188. The majority of third country participation agreements and all framework participation agreements contain a clause entitling either party to terminate the agreements should the other party fail to comply with its obligation, eg Art 8, EU-Estonia (Concordia ) (n 33); Art 14, EU-Ukraine (n 69). 189. eg Art 13(2), Council Joint Action 2003/681/CFSP (Proxima ) (n 6); Art 2(4), EU-Morocco (Althea ) (n 40); Art 3(4), EU-Iceland (n 69). 190. Art 40(4), Council Decision 2004/197/CFSP of 23 Feb 2004 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications [2004] OJ 63/68, as amended. On the financing of military operations, see D Scannell, Financing ESDP Military Operations (2004) 9 European Foreign Affairs Review 529. 191. On this matter generally, see K Schmalenbach, Die Haftung Internationaler Organisationen im Rahmen von friedenssichernden Manahmen und Territorialverwaltungen (Peter Lang, Frankfurt aM, 2004); SR Lder, Vlkerrechtliche Verantwortlichkeit bei Teilnahme an Peacek-keeping-Missionen der Vereinten Nationen (Berliner Wissenschafts-Verlag, Berlin, 2004); M Zwanenburg, Accountability of Peace Support Operations (Martinus Nijhoff, Leiden, 2005); K Schmalenbach, Third Party Liability of International Organizations: A Study on Claim Settlement in the Course of Military Operations and International Administrations (2006) 10 International Peacekeeping 33. 192. Submissions of this nature were made by certain member States of NATO in proceedings before the ICJ and the European Court of Human Rights relating to NATO's armed intervention in Kosovo and the subsequent international administration of the territory, see Oral Pleadings of Canada, CR/99/27, Legality of Use of Force (Serbia and Montenegro v Canada) 27 May 1999, 10; Oral Pleadings of France, CR 2004/12, Legality of Use of Force (Serbia and Montenegro v France) 20 Apr 2004, 23-5; Bankovic and Others v Bel-
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gium and 16 Other Contracting States (2007) 44 EHRR SE5, para 30; Behrami and Behrami v France and Saramati v France, Germany and Norway (2007) 45 EHRR SE 10. For a critical analysis of Behrami and Saramati, see Sari, Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases forthcoming in (2008) 8 Human Rights Law Review. 193. Cf Reparation for Injuries case (n 131). 194. See n 17. 195. This uncertainty is compounded by the lack of clear rules determining how responsibility should be shared in cases where internationally wrongful conduct is attributable to more than one legal subject, as often happens in complex peace support operations, and by the unresolved question as to whether or not States bear concurrent or secondary responsibility for the acts and omissions of international organizations of which they are members. On the second issue, see I Brownlie, The Responsibility of States for the Acts of International Organizations in M Ragazzi (ed), International Responsibility Today: Essays in Memory of Oscar Schachter (Martinus Nijhoff, Leiden and Boston, 2005) 355; S Yee, The Responsibility of States Members of an International Organization for Its Conduct as a Result of Membership of Their Normal Conduct associated Membership in ibid 435. 196. Tizanno (n 148) 28 and 40. See also C Tomuschat, The International Responsibility of the European Union in E Cannizzaro (ed), The European Union as an Actor in International Relations (Kluwer Law, The Hague, 2002) 181. 197. Indeed, the debate surrounding the legal personality of the EU and the interpretation of Art 24 TEU will become obsolete with the entry into force of the Treaty of Lisbon (n 129), which confers legal personality on the EU in express terms and replaces Art 24 TEU with a provision stating that international agreements are concluded by the Union. 198. Some of these questions were raised by the two agreements signed between the EU and the United States in 2003 on extradition and mutual legal assistance (n 183), see S Marquardt, La capacit de l'Union europenne de conclure des accords internationaux dans le domaine de la coopration policire et judiciaire en matire pnale in G de Kerchove and A Weyembergh (eds), Scurit et justice: enjeu de la politique extrieure de l'Union europenne (ditions de l'Universit de Bruxelles, Brussels, 2003) 179. Even though one of the reasons for negotiating the two agreements under Art 24 TEU, rather than on a bilateral basis between the US and each EU Member State, was to expedite their conclusion, the US insisted on inserting a provision into both agreements whereby the EU agreed to ensure that its Member States confirm, in written agreements exchanged between themselves and the US, the undertakings entered into by the EU in the two agreements (Art 3(2)(a) EU-US on extradition, Arts 3(2)(a) and 3(3)(b) EU-US on mutual legal assistance). As noted by Marquardt (ibid 192-3), this appears to call into question the EU's capacity to enter into binding commitments. At the very least, it displays considerable distrust on part of the US as to whether the Member States will comply with agreements concluded under Art 24 TEU. Moreover, it is peculiar that most Member States have submitted the two agreements for parliamentary approval even though they do not consider themselves to be (prospective) parties to them. One explanation for this apparent inconsistency is offered by the relevant German legislation: the German Government considered that the two agreements became binding on Germany as a matter of international law following their signature in accordance with the procedure laid down in Art 24 TEU and therefore sought parliamentary approval for their binding effect (Bindung ) on Germany, rather than for the agreements as such. See Bundestag Drucksache 16/4377, 23 Feb 2007 <http://dip.bundestag.de/btd/16/043/1604377.pdf>. See also Avis n 368.976, Conseil dtat (France) 7 May 2003 <http://www.conseil-etat.fr/avisag/368976.pdf>; Rapport n 252 (2002-3) prsent par M. Pierre Fauchon au nom de la commission des Lois <http://www.senat.fr/rap/l02-252/l02-252.html>; Avis du Conseil dtat (Luxembourg) 25 Sept 2007 <http://www.ce.etat.lu/html/47612.htm>, all accessed on 1 Nov 2007. END OF DOCUMENT
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I.C.L.Q. 1993, 42(2), 238-268 International & Comparative Law Quarterly 1993 Neutrality in a changing world: European neutral states and the European Community Surya P. Subedi 2012 Cambridge University Press Subject: International law. Other Related Subject: European Union Keywords: Europe; European Community; European political cooperation; Neutrality; United Nations *238 I. INTRODUCTION THE signing of the Treaty on European Union at Maastricht (the Maastricht Treaty)1 on 7 February 1992 by the 12 members of the European Communities (EC) has heralded a new era of co-operation among the Western European States. While the members of the EC are moving steadily closer to economic and political union, and showing their determination to pursue a common foreign and security policy largely in line with the decisions of NATO, there appears to be a rush among certain permanently neutral States of Europe to join the EC.2 This rush has coincided with the end of the Cold War and the demise of the Soviet Union. These permanently neutral States have been quick to adapt to a new political environment and to offer a modified interpretation of the obligations of a neutral State that would suit the changed circumstances in Europe. It was in 1972 that not only Switzerland and Austria but also Sweden preferred free trade arrangements with the EC to EC membership, partly on the grounds of their permanent neutrality; they joined EFTA but not the EC. Under such free trade arrangements they safeguarded their neutrality by retaining their freedom of action in commercial relations with non-members of the EC and the freedom to suspend or terminate *239 the treaties if their neutral status required such a step.3 But now permanently neutral Austria, Sweden and Malta have applied for EC membership. Finland, whose Prime Minister, Kalevi Sorsa, stated categorically as late as in 1987 that Membership of the EC is barred to any country that wishes to preserve its neutrality,4 has now decided to join the EC.5 Even Switzerland, which has 450 years of history of permanent neutrality, is considering joining.6 A growing number of Swiss lite appear to fear the consequences of Switzerland becoming an island within the EC. At the same time, the EC also seems ready to open its arms to rapid membership for wealthy neutral States. The EC has already concluded with the seven members of EFTA an agreement creating a European Economic Area (EEA).7 But this agreement has been regarded as a half-way house and the EC seems interested in bringing the seven EFTA members, including neutral Austria, Finland, Sweden and Switzerland, into the EC in order to complete the process of economic integration among the wealthy Western European nations. The Maastricht summit signalled to these neutral States that membership negotiations could start as soon as possible. The EC is in effect saying, We always said that we don't want you to miss the train. Well, we're blowing the whistle , was the interpretation of a Swedish diplomat of a final communique issued at the conclusion of the Maastricht summit.8 The question then arising is *240 whether the train or its
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destination is suitable for neutral States or is there appropriate room on the train for the States who would like to come in their neutral costume and who would seek some changes in the mode of travel. When in August 1991 the EC gave a fundamentally positive opinion on Austria's application for membership, it said that Vienna would have to give assurances that its neutrality would not hamper EC plans for a common foreign and security policy. But Austria specifically added a clause to its membership application insisting on the preservation of its neutrality.9 Now, since the Maastricht Treaty has been concluded, certain European neutral States are hoping to negotiate their entry into the EC in such a manner that the outcome would be favourable to their neutral policy as well as to the process of closer economic and political union within the members of the European Union. For instance, when Finland decided to apply for EC membership, the Finnish Prime Minister said that his country intended to stay outside military alliances and to keep an independent defence force.10 However, the Swedish and Austrian leaders have hinted that they are prepared to make some changes in their traditional neutral policy in order to accommodate the principles embodied in the Maastricht Treaty.11 The Maastricht Treaty raises a host of legal issues: can the neutral States preserve their neutrality within its framework? Can a permanently neutral State unilaterally abandon its policy of permanent neutrality in *241 favour of EC membership? What are the implications of the Maastricht Treaty for the neutral States of Europe whose application for EC membership is under consideration? What type of formula could possibly be devised under the framework of the Maastricht Treaty to admit the neutral States in the EC while still allowing them to retain their neutral policy? Can the present European neutral States bend the principles of permanent neutrality in order to obtain EC membership? These are the issues that this article aims to examine. In doing so, we will first briefly examine the concept of permanent neutrality and State practice on the subject with particular reference to the European neutral States. Next will follow a discussion on the compatibility of UN membership of permanently neutral States with a view to deducing the generally accepted norms of State practice on the membership of international organisations by neutral States. In the light of these discussions, the final section of the article examines the compatibility of EC membership with neutrality for a neutral State. II. THE INSTITUTION OF PERMANENT NEUTRALITY12 A. Different Forms of Neutrality There may be several forms of neutrality. Neutrality of opinion, commercial neutrality and absolute neutrality are examples. However, our concern here is with permanent neutrality--a policy of States not to become involved in all future wars between belligerents. It should also be stated at the outset that the concept of permanent neutrality is different in many respects from the concept of neutralisation. For instance, the adoption of permanent neutral policy by Austria, Finland, Sweden and Switzerland is different from neutralisation. If States or territories are neutralised under a treaty, that neutralisation cannot be revoked without the consent of all States party to the treaty. The neutralisation of the Aaland Islands is an example. B. Permanent Neutrality A simple definition of permanent neutrality is that a State adopting such a *242 policy must observe the rules of neutrality in all future wars. The concept of permanent neutrality is an institution of international law, but, legally speaking, a State pursuing a policy of neutrality of its own free will remains free at all times to change its policy provided that it gives appropriate notice to other States and no other treaty obligations are violated. However, if a permanent neutrality policy was adopted under a bilateral or multilateral treaty or any other understanding between the States concerned, the permanently neutral State should first seek abrogation of such a treaty or appropriate change in it.
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Castren defines permanent as opposed to temporary neutrality in the following terms:13 By the former is meant that a State stands aside from all inter-state armed conflicts and not merely, as in the latter case, from some particular war In this sense even permanent neutrality is connected with a state of war and only acquires practical significance during a war. Temporary neutrality is the policy whereby a State which is not at war remains aloof in a war between belligerent parties. Oppenheim defines neutrality as the attitude of impartiality adopted by third States towards belligerents and recognised by belligerents, such an attitude creating rights and duties between the impartial States and the belligerents.14 A neutral State neither participates in the hostilities nor provides any assistance to any of the belligerents. A declaration of neutrality entails a special legal status in international law. In other words, the neutral State acquires certain special rights, incurs the duties and enjoys the privileges of a neutral State under international law. C. The Rules of Neutrality The rules of neutrality are numerous and governed by a number of international instruments and custom. Principal instruments are the Declaration of Paris of 1856 on maritime warfare and the Hague Conventions of 1899 and 1907. Conventions V and XIII of 1907 concern themselves exclusively with neutrality. Whereas Convention V deals with rights and duties of neutral States in land warfare, Convention XIII deals with the rights and duties in naval warfare. Although the provisions of these Conventions are often interpreted as being part of customary international law, they seem now largely outdated and it is doubtful whether the rules prescribed in them can still be regarded as the law appropriate for the world of today. *243 However, there is no international treaty or convention which deals with the rules of permanent neutrality. The concept of permanent neutrality is an old doctrine of international law. But there is considerable controversy as to how far the traditional rules of permanent neutrality can still be regarded as valid. Of course, a permanently neutral State is considered bound by the rules of temporary neutrality in all future wars between the belligerents, but these rules, let alone the rules applicable during peacetime, are not well developed. Nevertheless, the practice of States over the last two centuries, since the adoption of a permanent neutrality policy by Switzerland in 1815, have culminated in certain customary rules which are accepted as binding by most permanently neutral States. The unbroken Swiss practice of permanent neutrality for nearly 200 years is illuminating. Permanent neutrality has, however, since the establishment of the United Nations, entered a new stage of development. The adoption of a permanent neutrality policy by Austria in 1955 throws some light on the plight of those UN members who wish to pursue a policy of permanent neutrality while remaining under the collective security system of the UN Charter. III. STATE PRACTICE A. Switzerland15 The Congress of Vienna of 1815 on the permanent neutrality of Switzerland was part of a general settlement in Europe after the Napoleonic Wars. By the Act of Paris of 20 November 1815, Austria, France, Great Britain, Prussia and Russia declared their formal and authentic acknowledgement of the perpetual neutrality of Switzerland; and they guarantee to that country the integrity and inviolability of its territory.16 Since 1815 Swiss neutrality has passed the tests of several wars and accumulated a wealth of experience upon which the rules of permanent neutrality have been built. The Official Interpretation of Permanent Neutrality adopted by the Swiss government on 26 November 1954 sets out the basic features of this institution.17
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Although this is a unilateral interpretation by Switzerland of the rules of its permanent neutrality, none of the powers that were parties to the Act of Paris objected to it. In the absence of any objection from other States it can be regarded as a legitimate interpretation of the Swiss neutrality and a reliable guide to the principles of permanent neutrality. *244 In addition to the obligations of neutrality proper, this interpretation specifies the following obligations of a permanently neutral State in time of peace: (1) duty to abstain: the neutral State must abstain from starting a war; (2) duty to defend: the permanently neutral State must defend its neutrality; and (3) duty to take preventive measures: the permanently neutral State must avoid policies and actions that might in future involve it in hostilities with other States. The last point covers a variety of legal and political situations. It prevents the permanently neutral State from entering into military alliances, both defensive and offensive, or from permitting the establishment of foreign military bases on its soil or use of its military facilities by foreign powers. B. Austria18 After the defeat of Nazi Germany in 1945, Austria was put under the victorious four-power occupation. After several years of occupation the four powers were in search of the basis for an agreement to end their occupation and restore Austria's independent statehood. Consequently, the Soviets proposed the neutralisation of Austria, which would give no advantage to one bloc against the other. In spite of initial hesitation the United States, United Kingdom and France gave the signal to Austria to negotiate the conditions of neutralisation with the Soviets. The outcome of these negotiations was the Moscow Memorandum of 15 April 1955.19 Although this Memorandum provided that Austria would practise permanent neutrality of the type maintained by Switzerland, it was a Constitutional Federal Statute of Austria of 26 October 1955 which made permanent neutrality an integral part of the constitutional arrangement of Austria. Article I of the Statute reads as follows:20 *245 Article I.I. For the purpose of the permanent maintenance of its external independence and for the purpose of the inviolability of its territory Austria, of its own free will, declares herewith its permanent neutrality. Austria will maintain and defend it with all means at its disposal. 2. In order to secure these purposes Austria will never in the future accede to any military alliances nor permit the establishment of military bases of foreign states on its territory. As Kunz says, the Austrian statute expressly mentions only three duties: the negative duties not to accede to alliances, not to grant military bases on its territory to foreign States, and the positive duty to defend its neutrality with all means at its disposal. He continues: The first two duties meet the wishes of the Soviet Union; the last the wish of the United States.21 This declaration of neutrality was subsequently recognised by the four powers and other States having diplomatic relations with Austria. The recognition from the four powers came in the form of individual note verbals. C. Malta22 Malta adopted the status of permanent neutrality in 1981 through an Exchange of Notes with Italy23 under which Malta stated, inter alia, that it24 is a neutral State actively pursuing peace, security and social progress among all nations by adhering to a policy of non-alignment and refusing to participate in any military alliance; 2. Affirms that such a status will, in particular, imply that:
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(a) no foreign military base will be permitted on Maltese territory; (b) no military facilities in Malta will be allowed to be used by any foreign forces except at the request of the Government of Malta, and only in the following cases: (i) in the exercise of the inherent right of self-defence in the event of any armed violation of the area over which the Republic of Malta has sovereignty, or in pursuance of measures or actions decided by the Security Council of the United Nations; or (ii) whenever there exists a threat to the sovereignty, independence, neutrality, unity or territorial integrity of the Republic of Malta. Italy, in its turn, recognised and committed itself to respect in the future the sovereignty, independence, neutrality, unity and territorial integrity of Malta.25 *246 D. Ireland26 After its independence from Great Britain the Republic of Ireland has occasionally claimed that it is a permanently neutral State. Irish neutrality is often characterised as military neutrality, meaning nonparticipation by Ireland in military alliances. Under Articles 6 and 7 of a treaty of 1921 between Great Britain and Ireland concluded at the end of the War of Independence the naval security of Ireland was the responsibility of Great Britain. The Anglo-Irish Agreement of April 1938 abrogated these two articles and on the outbreak of the Second World War Ireland decided to pursue a policy of permanent neutrality. However, Ireland did not seek any special arrangement to safeguard its policy of neutrality when it applied for EC membership. The Irish government's White Paper on EC membership included a brief reference to the effect that The Treaties of Rome and Paris do not entail any military or defence commitments, and no such commitments are involved in Ireland's acceptance of these Treaties.27 However, there is neither a treaty nor a unilateral declaration or a constitutional provision which obliges Ireland to pursue the policy of neutrality and Ireland has not shown consistency in pursuing its policy of neutrality. E. Sweden28 Although the new conservative government of Sweden seems prepared to abandon the traditional policy of permanent neutrality in favour of EC membership, Denmark's No vote on the Maastricht Treaty has sent a wave of second thoughts rippling over Sweden and other Scandinavian countries. Sweden still holds strongly to the idea that it should stay neutral in the EC. It has been successfully pursuing a neutral foreign policy for a long time. Not allied between power blocs in peace in order to be able to remain neutral in a war was the Swedish definition of its neutrality:29 *247 Sweden's security policy, like that of other countries, aims to preserve the country's independence. The goal of our security policy should, therefore be, in all situations and by means of our own choice, to ensure national freedom of action in order that within our own borders we may preserve and develop our society in political, economical, social cultural and all other respects, according to our own values, and in conjunction with this to promote international detente and peaceful development. The concept of Swedish neutrality had, in fact, as Wallin writes, gradually evolved over the last century and half; and although it was not always a consistent policy, its roots can be traced to the early nineteenth century.30 Sweden began to pursue a policy of neutrality after its demise as a major power following the War of the Swedish Succession. Although compelled to allow the passage of German troops through its ter-
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ritory during the Second World War, Sweden retained its status as a neutral country during the war. While Denmark and Norway joined NATO with restrictions on foreign military bases and nuclear weapons, Sweden remained a non-aligned country. Although the Swedish policy of neutrality is not laid down in any legally binding document, Sweden enjoyed a high degree of respect from other States as a neutral country during the Cold War and it played a very constructive role in many international conferences in harmonising the policies of States with different political convictions. Nevertheless, in the aftermath of the Cold War and in the face of the growing EC economic and political union, Sweden is redefining its foreign policy under which obtaining EC membership rather than preserving neutrality seems to be one of the main objectives.31 F. Finland32 A former Finnish President, Paasikivi, who is regarded as one of the key players in the formulation of Finnish foreign policy, said at the end of the 1940s that Finns do not seek neutrality in the sense given to the word in the international law. Instead, they seek at all times to remain outside conflicts between States. 33 Prime Minister Harri Holkiri of Finland *248 stated on 27 November 1990 that For Finland neutrality is neither a myth nor a holy cow, as malicious tongues sometimes claim. Neutrality is no more than a tool.34 Finnish neutrality was to a certain extent attributed to a paragraph of the Preamble to the 1948 Treaty of Friendship, Co-operation and Mutual Assistance with the Soviet Union. The relevant clause mentions Finland's desire to remain outside the conflicting interests of the Great Powers.35 During the Cold War Finnish neutrality was viewed by many people with scepticism because the 1948 Treaty envisaged the possibility of military co-operation with the Soviet Union. But a seasoned diplomat of Finland, Jakobson, argues that the Treaty lacked the essential characteristics of a treaty of alliance, such as regular consultations in time of peace and automatic mutual assistance in case of war.36 However, the 1948 Treaty was scrapped in November 1991 and references to Finland's neutrality and military co-operation with the Soviet Union disappear from a new document outlining the future relations between Russia and Finland. 37 G. Conclusion The State practice discussed above shows that the institution of permanent neutrality is, rather, a flexible policy. As Jakobson writes, It is not, after all, an immutable dogma that must be obeyed or rejected. 38 However, there appear certain hard-core principles of permanent neutrality to which every permanently neutral State must adhere. On the basis of the State practice discussed above we can enumerate the following rules as the generally accepted rules of permanent neutrality. (1) Renunciation of the right to go to war. (2) Non-participation in war between belligerents. (3) Prohibition of the use of neutral territory for military purposes by belligerents. (4) Absence of foreign military bases. (5) Prohibition of the use of neutral military facilities by foreign powers. (6) Non-participation in military alliances. (7) Duty to defend the neutrality. (8) Impartiality towards belligerents.
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*249 Here it is worth noting that most of these hard-core principles were incorporated in the Declaration of the Neutrality of Laos, signed on 23 July 1962 by 13 States which took part in the International Conference on the Settlement of the Laotian Question, 1961-1962. The participants were Burma, Cambodia, Canada, China, Vietnam (then both North and South), France, Laos, India, Poland, Thailand, the Soviet Union, the United Kingdom and the United States. The Declaration contains a list of commitments undertaken by Laos as a neutral State. They include, inter alia, commitments not to resort to the use or threat of force and not to interfere in the internal affairs of other countries, not to enter into any military alliances and not to allow the establishment of any foreign military base on Laotian territory and not to allow any foreign interference in the internal affairs of Laos. This Declaration is by far the most comprehensive document in spelling out the obligations of a neutral State as well as the guarantor States. Given the wider participation of States in this process (it included all permanent members of the UN Security Council) and the intensive negotiations that led to the conclusion of this Declaration, it can be considered the most authoritative view of States on the rules of permanent neutrality. The 13 States committed themselves not to:39 (1) bring the Kingdom of Laos in any way into any military alliance or any other agreement, whether military or otherwise, which is inconsistent with her neutrality, nor invite or encourage her to enter into any such alliance or to conclude any such agreement; (2) introduce into the Kingdom of Laos foreign troops or military personnel in any form whatsoever; (3) establish, facilitate or connive at the establishment in the Kingdom of Laos of any foreign military base, foreign strong point or other foreign military installation of any kind; and (4) use the territory of the Kingdom of Laos for interference in the international affairs of other countries. IV. PERMANENT NEUTRALITY AND MEMBERSHIP OF THE UNITED NATIONS THE permanently neutral States are not barred from becoming members of regional or international organisations of a non-military character. However, Switzerland is not a member of the United Nations; it seems to *250 be the major concern that UN membership could involve Switzerland in military actions under Chapter VII of the UN Charter.40 But Austria, whose permanent neutrality is required to be of the type maintained by Switzerland, became a member in 1955 and no State opposed this. Other neutral States (Finland, Ireland, Sweden and Malta) are also members. Articles 2(5), 24, 25, 41, 42, 43, 45, 48 and 49 of the UN Charter require all UN members to provide necessary assistance, including military assistance, to the Security Council upon its request. Moreover, Article 2(6) appears to have imposed certain obligations even upon non-member States to act in accordance with the principles of the United Nations so far as may be necessary for the maintenance of international peace and security.41 However, a close look at the provisions of the Charter does not suggest that neutrality is totally incompatible with UN principles.42 State practice of the last four or five decades reveals that it is possible for a UN member to adopt a policy of neutrality. Article 2(5) of the Charter43 is often cited to rule out the possibility of neutrality of a UN member. This Article simply lays down a principle; there are other articles which give effect to this principle. Therefore, Article 2(5) should be read together with other relevant articles of the Charter. The most important provisions are those of Chapter VII, under which the Security Council is authorised to take a number of measures to maintain or restore international peace and security. Although all UN members must carry out the decisions of the Security Council taken under this Chapter, the Council does not always take mandatory decisions under it; even if the Council determines that there exists a threat to the peace, breach of peace, or act of aggression it may make recommendations under Article 39. Decisions taken under Articles 41 and 42 are binding on all UN member States. Article 41 provides for measures not *251 involving the use of force and Article
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42 for measures involving the use of air, sea, or land forces as may be necessary to maintain or restore international peace and security. A. Economic Sanctions So far as implementation of economic sanctions under Article 41 is concerned it has been often argued that States do not compromise their neutrality by employing measures not amounting to armed conflict.44 Neutrality is related to the idea of war and neutral States are required to observe impartiality in their behaviour towards belligerents. The idea of absolute neutrality or absolute impartiality no longer exists in this modern era of international co-operation and interdependence. The permanently neutral Switzerland had accepted in becoming a member of the League of Nations that the obligation under the Covenant of the League to execute economic and financial measures was not incompatible with a neutral policy.45 Switzerland was released by the League Council only from the duty of participating in military measures and allowing transit of foreign troops. 1. The Rhodesian crisis When the UN Security Council decided to impose economic sanctions against Rhodesia in 1968 it sought to extend its sanctions policy to the broadest number of States. The Council called upon not only all UN members but also the members of the UN Specialised Agencies which included, inter alia, Switzerland which, while maintaining that as a neutral State it could not submit to the mandatory sanctions of the United Nations, agreed, nonetheless, to ensure that Rhodesian commerce will be given no opportunity to circumvent United Nations sanctions on Swiss territory.46 Further, Switzerland took some measures to limit trade with Rhodesia and imposed restrictions on the exports of war materials to Rhodesia.47 2. The Gulf crisis Another example of the imposition of economic sanctions under Chapter VII of the UN Charter relates to the decisions of the Security Council *252 in the recent Gulf crisis. Under Resolution 661(1990) of 6 August 1990 and Resolution 670(1990) of 25 September 1990 the Security Council decided that all States shall impose economic sanctions upon Iraq.48 Paragraph 5 of Resolution 661(1990) made it even clearer by calling upon all Stales, including States non-Members of the United Nations, to act strictly in accordance with the provisions of the present resolution notwithstanding any contract entered into or licence granted before the date of the present resolution.49 (Emphasis added.) All permanently neutral States, including Switzerland, imposed sanctions upon Iraq.50 Sweden even deployed a field hospital in Saudi Arabia during the Gulf War and Austria allowed allied overflights. Even Iran and Jordan, which had declared a complete neutrality in the armed hostilities between the allied forces and Iraq, did not challenge the economic embargo imposed by the Security Council. By neutrality they seem to have understood impartiality in armed conflicts between belligerents (where the United Nations is not involved), but not in applying economic sanctions or in assisting the United Nations to carry out its decisions taken under Chapter VII of the Charter. It seems that in the case of implementing economic sanctions against an aggressor the neutral State UN member may not be granted any exemption; it would have to apply economic sanctions imposed under Article 41. B. Actions Under Article 42 This leads us to the question of the participation by a neutral State in the measures taken by the Security Council under Article 42. Obviously, a neutral State's participation in measures amounting to armed force cannot be considered compatible with the traditional idea of neutrality. If in order to maintain or restore international peace and security the Security Council decides to take measures including the use of force under
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Article 42 and calls upon all member States, including neutrals, to make available to the Security Council armed forces, assistance and facilities, etc., no State can assert that because it is a neutral it is thus duty bound to be impartial towards the belligerents. Under the collective security system of the Charter, the UN members have relinquished largely, though not exclusively, the free choice whether to participate directly in a war between other States or to remain neutral. Nevertheless, under Article 48 of the Charter the Security Council is able to excuse individual members from the measures taken under Article 42. Paragraph 1 of Article 48 implicitly permits the Security Council to *253 use its discretion in selecting States to carry out its decisions: The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. (Emphasis added.) Since the inception of the United Nations more than 120 wars have been fought and several million people have been killed in such fighting. But on only two occasions has the Security Council authorised the use of force against the aggressors. The United Nations has deployed forces in a number of situations but they are for the purposes of peacekeeping and not for repelling the aggression. 1. The Korean War The first instance of the use of force by the United Nations under the collective security system was in the Korean War in 1950. After the North Korean forces crossed the 38th parallel and entered the Republic of Korea in June 1950, the Security Council adopted a resolution on 25 June 1950 calling, inter alia, for the immediate cessation of hostilities and the withdrawal of North Korean forces to the 38th parallel. In operative paragraph III of the resolution the Security Council called upon all Member States to render every assistance to the United Nations in the execution of this resolution and to refrain from giving assistance to the North Korean authorities.51 This vaguely couched resolution gave rise to different interpretations. Since there was no specific requirement to fulfil, any State, even a UN member, could have remained neutral while refraining from giving assistance to the North Korean authorities. Resolution 83(1950) of 27 June 1950 merely recommended the UN members to furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area. Since this resolution was not binding, neutral States were not obliged to assist the Republic of Korea. Resolution 84(1950), which included operational matters including the setting up of a unified command, designation of the commander and the authorisation of the use of the UN flag in the course of operations, had no effect on neutral States. 2. The Gulf War After 40 years the Security Council resorted once again to the use of force under Chapter VII of the UN Charter to expel Iraq from Kuwait. But this time too the Security Council did not require neutral States to participate in the military measures. Unlike mandatory resolutions on economic sanctions (i.e. Resolutions 661 and 670), which were enforced rigorously and near universally, Security Council Resolution 678(1990) *254 of 29 November 1990, which authorised UN members co-operating with the government of Kuwait to use all necessary means to expel Iraq from Kuwait, merely requested all other States to provide appropriate support for the actions undertaken in pursuance of that resolution.52 Although this resolution was adopted under Chapter VII of the Charter, it was not a mandatory resolution. Certain UN members such as Yemen and Cuba even opposed the actions of the allies, while others such as Iran and Jordan declared themselves to be neutral. Their neutrality was not challenged by the allied powers. Rather, the allied powers expressly recognised the neutral stance taken by Iran and Jordan.53 Ireland said that it would provide facilities for the allies, but maintained that it would not become involved in direct military action. The establishment of the United Nations has stopped neither the adoption of a policy of permanent neutrality
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nor the practice of adopting a policy of neutrality in a war. Austria adopted a policy of permanent neutrality in 1955 which was endorsed by all major powers. Laotian neutrality was accepted in 1962 after an extensive discussion among the great powers and leading Third World countries.54 Malta adopted a policy of permanent neutrality in 1981 under a bilateral treaty with Italy; no State raised any objection to it. Costa Rica declared its unarmed, active, permanent neutrality in 1983 under a unilateral Presidential Proclamation;55 it was communicated to all States with whom it had diplomatic relations. Since no State has as yet objected, all States which have full knowledge of this neutrality can be said to have acquiesced in it.56 V. PERMANENT NEUTRALITY AND MEMBERSHIP OF THE EUROPEAN COMMUNITY IF neutrality can be reconciled with UN membership, why can it not be *255 reconciled with EC membership? This is a question worth asking since the EC is basically an organisation concerned with economic cooperation. The increasingly integrated regional trading blocs and regional economic institutions have forced neutral States to consider becoming members of such economic blocs in order to become economically competitive. It was only in 1971 that, after considering the possibility of joining the EC, Sweden announced that it found it impossible to reconcile Sweden's neutrality with membership of the Community.57 But Ireland became a member of the EC in 1972, stating that membership of the EEC did not entail any military or defence commitments.58 EC membership by a neutral State was not as hotly debated an issue during the Cold War period because the activities of the EC were limited largely to economic matters. Ireland was the only neutral country in the EC; Irish neutrality is not based on any legally binding document and Ireland has interpreted its neutrality to suit its political and economic objectives. A. The EC and the Falkland Islands Crisis Irish neutrality came under some scrutiny only during the Falkland Islands War during which the EC decided to impose trade sanctions on Argentina. Ireland supported the decision in the interests of EEC solidarity. But neutral Switzerland had decided to suspend arms deliveries to both Argentina and Great Britain pending a settlement of the dispute.59 Ireland, however, maintained that it supported the EC trade embargo as an extension of the diplomatic efforts to achieve peace but would remain neutral should war be formally declared between Britain and Argentina over the Falkland Islands.60 B. Different Interpretations However, certain writers have argued that membership of the EC may be inconsistent with neutrality.61 The compatibility of membership of the EC with neutrality has attracted considerable attention as all neutral States in Europe consider becoming members of the EC. Writing in 1990, the *256 Austrian Foreign Minister said that he saw no contradiction in permanently neutral Austria becoming a member of the EC.62 The Austrian reasoning for its application of EC membership was as follows:63 national autonomy and sovereignty has been reduced by the unprecedented degree of economic interdependence established in Western Europe, and the margin of manoeuvre for individual states is much reduced as a consequence; independence and sovereignty are enhanced by cooperation; increased cooperation between East and West, even before 1989, demonstrated the central role of the EC in European developments; Austrian security is irreversibly linked with the evolution of a new European security order; Austria should be prepared to participate in the evolution of this new security order and contribute to it. The Finnish Prime Minister, Esko Aho, recently said that neutrality has to be re-evaluated in the new cir-
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cumstances in Europe. He stated: But it means we have certain new challenges for neutrality, not that time for neutrality is over.64 The political leadership in Sweden and Austria seem prepared to abandon neutrality in favour of EC membership.65 Certain EC members have indicated that they won't allow neutrals to neuter the common foreign policy of Western Europe.66 In fact, the Maastricht Treaty seems to have tied EC foreign and security policy to NATO through the Western European Union (WEU). Article J.4 of the Section on Common Foreign and Security Policy of the new Treaty on European Union incorporates the idea of common defence. The WEU is likely to become the defence arm of the European Community as well as the European pillar of NATO. But until the second Danish referendum the future of the Maastricht Treaty will remain uncertain. Britain has hinted that if Denmark voted No again it will not proceed with the ratification process in the British Parliament. In that case the Treaty may not come into effect in its present form. VI. PRINCIPAL PROVISIONS OF THE MAASTRICHT TREATY INTRODUCTORY Article A of the Maastricht Treaty establishes a European Union; Article B sets out the objectives of the Union.67 One of *257 the objectives of the Union is to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the eventual framing of a common defence policy, which might lead in time to a common defence. A. Common Foreign and Security Policy There is a separate section in the Maastricht Treaty on common foreign and security policy. Article J.I of this section stipulates the objectives of the common policy and one such objective is to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter as well as the principles of the Helsinki Act and the objectives of the Paris Charter. Article J.4 of the section, which deals with matters relating to the eventual framing of a common defence policy which might lead to a common defence, is of considerable significance. It provides, inter alia, that:68 1. The common foreign and security policy shall include all questions related to the security of the [European] Union, including the eventual framing of a common defence policy, which might in time lead to a common defence. 2. The Union requests the Western European Union (WEU), which is an integral part of the development of the [European] Union, to elaborate and implement decisions and actions of the Union which have defence implications. The Council shall, in agreement with the institutions of the WEU, adopt the necessary practical arrangements. 4. The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework. B. The WEU's Declaration At the conclusion of the Maastricht Treaty, a separate Declaration was issued by those member States of the WEU that are also members of the EC on the role of the WEU and its relations with the European Union and with the Atlantic Alliance.69 Under the title WEU's relations with European Union section A(3) of the Declaration states that: The objective is to build up WEU in stages as the defence component of the
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European Union. Section B(4) on the WEU's relations with the Atlantic Alliance states that: The objective is to develop WEU as a means to *258 strengthen the European pillar of the Atlantic Alliance WEU will act in conformity with the positions adopted in the Atlantic Alliance. C. Evaluation of the Treaty Provisions On the basis of the above provisions it can be said that the Maastricht Treaty makes the WEU the defence arm of the European Union. At the same time the member States of the WEU have agreed to develop the WEU as NATO's European pillar. In these circumstances one may easily argue that membership of the European Union by a neutral State would be incompatible with its policy of permanent neutrality. However, a close look at the provisions of the Maastricht Treaty shows that it would not seem to rule out the maintenance of a policy of neutrality by a member State of the Union. As stated earlier, neutral States are not barred from becoming members of international or regional organisations. Nor are the neutral States required to observe the principle of impartiality in matters other than choice of a military nature and the Maastricht Treaty does not impose any military obligations on the member States of the European Union. Rather, it is claimed that the Treaty specifically recognises the desire of member States to remain neutral. The following assertion of the Irish Prime Minister is worth noting:70 Not only does the Maastricht Treaty not threaten Ireland's policy of avoiding military alliances: It specifically recognises it. Let me quote you the actual words of the treaty. The policy of European Union on security shall not prejudice the specific character of the security and defence policy of certain member States. That statement was put there by Ireland--and it will help more than us. Austria, Finland, Sweden and Switzerland have all applied to join the Union under the new treaty. All of them have a tradition of neutrality. So, no threat to our neutrality, then No European army involving Ireland. A similar view was expressed by the President of the EC Commission, Mr Jacques Delors, in an interview with the Irish Times on 13 June 1992. He stated that the other 11 countries specifically recognise and respect the Irish position and this is made very clear in the Maastricht Treaty.71 Neutral States can become members of an organisation as long as such membership does not involve participation in a war between belligerents. This means that the neutral State must not join a military alliance. Neutrality is basically an idea devised in order to be able to remain aloof in a war between the belligerents. If viewed from this perspective, membership of the new European Union, basically an organisation devoted to *259 economic co-operation between the member States, does not seem incompatible with the principles of permanent neutrality. D. Decisions in Military and Security Matters The new European Union is not a military alliance. Of course, the Maastricht Treaty envisages a common foreign and security policy. But that does not mean that the pursuit of a common foreign and security policy in certain matters is automatically in violation of neutrality. The current EC members have long been pursuing a somewhat uniform foreign policy, yet rarely have the EC decisions created any problems for Ireland, the only neutral member of the EC. Other member States have recognised this fact and Article J.4 of the section on common foreign and security policy of the Maastricht Treaty implicitly permits a neutral State to retain its neutrality. Under Article J.I of the section, the Union will, in order to achieve the objectives of the common foreign and security policy, follow two courses of action: establishing systematic co-operation between member States in the conduct of foreign and security policy; and the gradual implementation of joint action in these areas in which member States have essential interests in common. Under the first of these procedures, described as systematic co-operation, member States are required to
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inform and consult one another within the [European] Council on any matter of foreign and security policy of general interest in order to ensure that their combined influence is exerted as effectively as possible by means of concerted and convergent action.72 Although the Council may define, whenever it deems necessary, a common position and the member States are required to ensure that their national policies conform to the common positions, the decision of the Council will be by consensus. Here again a neutral State may express its concerns. Under the second procedure the Council may decide that a matter should be the subject of joint action. But such decisions too must be taken unanimously. However, the Council shall, when adopting the joint action and at any stage during its development, define these matters on which decisions are to be taken by a qualified majority.73 In other words, the Council would through unanimity define those matters on which decisions are to be taken by majority. Even then the Maastricht Treaty makes it clear that joint action by the European Union will not extend to defence issues.74 These issues will be matters for the WEU, and neutral *260 States that are members of the European Union are not obliged to join the WEU. Moreover, any requests made by the European Union to the WEU in accordance with Article J.4 of the section on common foreign and security policy of the Maastricht Treaty must be agreed by unanimity among the member States of the European Union. As far as the decision of the members of the WEU to build it in stages as the defence component of the European Union is concerned, it is essentially for the members of the WEU. Any arrangements made by the members of the WEU will not involve other members of the European Union in a mutual defence commitment nor can the WEU members require the neutral States of the EC to join the WEU. Of course, the member States of the WEU have invited non-members of the WEU who are members of the EC to join the WEU. Yet neutral States members of the EC or future European Union are not obliged to do so. Ireland, Denmark and Greece were invited to become full members of the WEU at the time of the Maastricht summit. But Denmark has rejected the treaty and Ireland has decided not to accept this option but to apply for observer status instead. The differences between the United Kingdom and the 11 other members of the EC over the single European currency and the United Kingdom's refusal to sign the document on social policy75 show that member States can choose to opt out of a common defence policy should they regard it as inconsistent with their neutrality. E. Membership of the WEU Supposing that it becomes inevitable some time in the future for all members of the European Union to join the WEU in order to achieve the objectives of common foreign and security policy of the European Union agreed at Maastricht, it seems possible for neutral States still to retain their neutrality under the current structures of the WEU. The WEU was established under the Treaty for Collaboration in Economic, Social and Cultural Matters and for Collective Self-Defence of 17 March 1948.76 Although Article IV of this treaty provides for mutual automatic military assistance in the event of an armed attack in Europe and Article III of the 1954 Protocol Modifying and Completing the Brussels Treaty77 establishes a firm link between the WEU and NATO, Article IX provides that if the States party to the treaty invite any other State to accede to the treaty the State so invited may not be required to adhere to all provisions of the treaty: The High Contracting Parties may, by agreement, invite *261 any other State to accede to the present Treaty on conditions to be agreed between them and the State so invited. Moreover, the Declaration adopted at Maastricht by the members of WEU, who are also members of the EC states, that States which are members of the European Union are invited to accede to WEU on conditions to be agreed in accordance with Article XI of the modified Brussels Treaty, or to become observers if they so wish. 78 Similarly, Article O of the Maastricht Treaty states that:79 Any European State may apply to become a member of the Union
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The conditions of admission and adjustments to the Treaties on which the Union entails shall be the subject of an agreement between Member States and the applicant State. In view of these provisions it could be argued that the neutral States can negotiate the terms and conditions of their accession to the Maastricht Treaty which do not contravene the principles of permanent neutrality. If the neutral States are allowed to retain their independence of action in matters of defence, which is the most significant attribute of neutrality, they could not be said completely to have abandoned their neutrality. Of course, that would be a qualified neutrality and not an absolute neutrality. But the fact is that, by becoming a member of the United Nations, an organisation with a collective security system, all neutral States except Switzerland have compromised their neutrality and accepted de facto qualified neutrality.80 At the moment the WEU is merely a consultative organisation. There are plans to develop it as a defence organisation. Yet the neutral States will have their opportunity to voice their concerns as and when comes the question of implementing the plans. The neutral States could secure arrangements similar to those secured by Switzerland while it became a member of the League of Nations.81 Further, although Article 4 of the Brussels Treaty can be likened to Article 5 of the North Atlantic Alliance82 and Article 4 of the former Warsaw Pact,83 the WEU cannot be equated at present with traditional forms of military alliances like NATO or the former Warsaw Pact. Unlike NATO the WEU does not have a standing army under its control. The primary aim of the WEU is to *262 deliberate matters of security in Western Europe and devise appropriate methods necessary for the protection of the security of the contracting parties. There is more to security than defence. At most, the WEU may be a Western European consultative group within NATO. The defence of Western Europe is a matter for NATO and this position was endorsed by the Maastricht summit. In this sense, the security policy of the WEU does not seem very different from that of the CSCE; all European States, including neutral and non-aligned States, are members of the CSCE and one of its objectives is to promote the security of all European countries. The Brussels Treaty can be likened to the Inter-American Treaty of Reciprocal Assistance. Costa Rica perceived no difficulties in becoming a permanently neutral State while still remaining a member of the OAS and party to the Inter-American Treaty for Reciprocal Assistance concluded at Rio de Janeiro in 1947.84 Article 2 of the Charter of the OAS, which specifies the purposes of the organisation, provides for common action in the event of aggression.85 The Rio Treaty concluded within the OAS system provides in Article 27 that:86 Every act of aggression by a State against the territorial integrity or the inviolability of the territory or against the sovereignty or political independence of an American State shall be considered an act of aggression against the other American States. However, Article 20 of this treaty, which states that no State shall be required to use armed force without its consent, has been invoked to argue that a permanently neutral State can remain in this form of regional regime as long as it does not give its consent to the use of its armed forces.87 Costa Rica has declared its permanent neutrality; other American States, after being formally informed of this status, have so far neither registered their disapproval nor argued in any way that this neutrality is in conflict with the OAS Charter or the Rio Treaty. They can thus be said to have acquiesced in this neutrality and may be barred in the future from asking Costa Rica to implement the military measures decided upon by the OAS. F. The EC and Common Defence Policy The new European Union will not have a common defence policy immediately even if the Maastricht Treaty enters into force. The provisions of the Treaty on defence stop short of common defence. The Maastricht*263 Treaty envisages an eventual framing of a common defence policy which might lead in
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time to a common defence. It is only an aim and not a commitment. That time is not likely to come before 1996, when Article J.4 of the section on common foreign and security policy of the Maastricht Treaty is to be reviewed.88 During the revision the neutral members of the European Union would have the opportunity of presenting their point of view as to the future direction of the Union's foreign and security policy. Should the neutral States fail in 1996 to accommodate their interest in framing a common defence policy leading to a common defence, they could then opt out of the defence policy which contravenes their policy of neutrality--as did Denmark at the Edinburgh summit over the EC defence policy. While asking the Irish people to vote for the Maastricht Treaty in a referendum on 18 June 1992, the Irish Prime Minister made it clear that any decision made in 1996 would be the subject of another referendum.89 As far as the present arrangements within the Maastricht framework are concerned the neutral States' independence of action and non-participation in military alliance, including WEU, are preserved. Moreover, the European Council would through unanimity define the foreign and security policy matters on which decisions are to be taken by majority. This means that a neutral State member of the European Union not willing to compromise its neutrality can prevent action or otherwise dissociate itself from measures incompatible with its neutral policy. The outcome of the Edinburgh summit exhibits that, as in the case of single European currency and the EC social policy, different member States of the European Union may preserve their independence of action in matters of a military nature while acting broadly in conformity with the spirit of the European Union on other matters of foreign and security policy. *264 VII. THE FUTURE OF NEUTRALITY IN WESTERN EUROPE AND THE EUROPEAN COMMUNITY A. Abandoning Neutrality If a State wishes to retain its policy of neutrality it is then subject to the principles of neutrality; it enjoys the rights and privileges of a neutral State under international law. If that State elects to abandon that policy, it will no longer enjoy those privileges. In this sense, all European neutral States seem able to abandon their neutrality and join the European Union and eventually the WEU. The Swedish, Finnish and Irish policies of neutrality are not based on any legally binding document; no international legal obligation is involved in time of peace. Their change of policy will affect no other State's legal rights. As far as Austria is concerned, it has always maintained that its neutrality is based on its own free will and not on any international document. For instance, in reaction to a statement by Khrushchev during his 1960 visit to Vienna that Austria's neutrality would be violated by entry into the Common Market, Austria maintained that it was solely within Austria's power to decide what would constitute a violation and what countermeasures might be in order. Although Austria's statehood was fully reinstated after the understanding between the four victorious occupying powers that it remain a neutral State, Austria adopted neutral status through an internal law of 26 October 1955. Through the exchange of notes of 6 December 1955 this neutrality was merely recognised unilaterally by a number of States, including major powers. Swiss neutrality is often attributed to the Vienna Treaty of 1815, yet this neutrality is also based on the free will of the Swiss people. Switzerland had maintained a policy of neutrality since its establishment as an independent State under the peace treaty of Munster (1648). The Vienna Treaty had formally recognised the desire of the Swiss people to remain neutral. Switzerland also maintains that matters of the maintenance of the neutrality are essentially for the Swiss voters. For instance, a declaration issued by Switzerland in August 1914 asserted that the Swiss Federation had voluntarily determined to depart in no respect from the principles of neutrality which the Powers signatory of the treaties of 1815 have formally recognised.90 In fact, the questions of Swiss membership of
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the United Nations and the maintenance of Swiss army have been frequently put to a referendum.91 B. Reconciling with the EC Policy However, the question here is not the abandonment of neutrality but its *265 compatibility with membership of the EC. Europe is caught up in a period of rapid change, towards ever closer unity. There appears a strong feeling among EFTA members that the trade agreements they have with the EC members are not good enough. The political elite in the seven EFTA countries seem to have taken the view that only EC membership will enable them fully to participate in EC policy-making and will give full protection against possible discrimination by the EC against EFTA members. Together with five other non-members of the EC, Austria and Switzerland signed the new European Economic Area (EEA) agreement with the EC.92 With the primary exception of agriculture, the agreement provides for the free movement of people, goods, services and capital. This process of economic integration has resulted in the re-evaluation of the neutral policy in all neutral States in Europe. Although the Maastricht summit decided that the European Union's military activities would be channelled through the WEU, this basically consultative organisation will not be a tool for building a separate European force. Evidence of this is the rejection by the EC leaders of a French-led attempt to make the WEU a powerful military organisation.93 As stated by a British spokesman, the strengthened WEU will not have standing forces, it will have standing planners.94 Denmark has already decided to opt out of certain aspects of the EC defence policy. What is more, the planners will have to work under a system where each member of the European Union will have the veto power on major foreign policy decisions. Therefore, the decision of the members of the WEU to make it a European bridge to NATO will have little impact on the neutral members of the EC. Moreover, the WEU has often been criticised as a paper tiger. The decision of the WEU in July 1992 to mount an air and sea operation in the Adriatic to enforce UN sanctions against Serbia was the first major act of the organisation in its history.95 Although that decision was taken outside the CSCE framework, it was in keeping with the general agreement within the CSCE; the blueprint for European security adopted at the end of two-day CSCE summit in Helsinki in July 1992 provides for peacekeeping operations to be carried out at the request of the CSCE by organisations such as the WEU. *266 Further, NATO, which was founded on the legacy of ideological and military divide, is itself in the process of adjusting to situations where it no longer has a rival to fear. Consequently, NATO has reviewed its policies and strategy and is in the process of adopting a wider view of security, one that encompasses political, economic, social and environmental aspects.96 It could also be argued by pro-EC unity people that the end of the Cold War and the demise of the Soviet Union signify that the time for permanent neutrality of European neutral States, whose neutrality had relevance to the bipolar and bloc-based political system existing in post-Second World War Europe, is over.97 In the post-Cold War period neutrality may be viewed as a luxury by the populace of neutral States if they consider that the benefits of EC membership outweigh the benefits of neutrality. To them the concept of neutrality may appear irrelevant to a situation of relative peace and in the absence of East-West rivalry. It would be increasingly difficult to find answers to questions such as those of neutrality between whom, why and how. Owing to the growing inter-penetration of political, economic and security matters through the EFTA, EEA and the CSCE process, the neutral States in Europe would find it exceedingly difficult to be strictly neutral. With regard to the participation by a neutral State in economic sanctions imposed by the EC or future European Union, it is generally accepted that a neutral State is not required strictly to observe impartiality in measures not involving the use of force.98 When the CSCE decided to suspend Serbia and Montenegro all European neutral States supported the decision.99 Similarly, when the EC decided to impose trade sanctions
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against Serbia in May 1992100 Ireland, a neutral member of the EC, did not dissociate itself from the decision. C. Qualified Neutrality Therefore, one way or the other, most European neutral States may be forced to join the EC and accept the concept of qualified neutrality; the Maastricht Treaty does not completely close the door of the EC to the States who are prepared to accept the fact that only qualified neutrality *267 is possible in this era of closer political and economic union among the European States. At the same time, the neutral States will have to bear in mind that if they do not follow a common position while negotiating their entry into the EC, they may find themselves overwhelmed by the majority of the EC member States who are committed to the objectives set out in the WEU declaration adopted at the Maastricht summit and are likely to pursue them through the EC structures. If the neutral States do not adopt a common position during and after negotiations, only one or two States' concerns may be undermined under the commitment made at Maastricht.101 Perhaps fearful of the impact of the arrival of the four neutral States on the common defence and security policy of the Maastricht Treaty, the EC seems to be taking a tough position while dealing with the applications of the neutral States. For instance, in its opinion on Sweden's application, on 31 July 1992 the EC Commission said that Specific and binding assurances from Sweden should be sought with regard to her political commitment and legal capacity to fulfil the obligations [on] the eventual framing of a common defence policy and the possible establishment in time of a common defence.102 Referring to these tough requirements, Carl Bildt, the Swedish Prime Minister, said that it was unfair to ask for a commitment on defence that current members have not had to make.103 Defence is likely to be the big argument in the negotiations with the EC and the decision of the Edinburgh summit to permit Denmark to opt out of common defence policy will strengthen the bargaining position of neutral States. If the neutral members are cautious, the EC seems unable, under the current arrangements, to go further on the military front than assuming peacekeeping or other humanitarian operations, such as the EC decision to send EC observers to former Yugoslavia and provide the Kurds with humanitarian assistance.104 As far as peacekeeping operations by the EC are concerned, most neutral States have long been participating in such operations under the UN and any future participation in similar operations under the EC *268 would make little difference. Thanks chiefly to the British opposition to the federal goal of the EC, every member State of the EC retains most of the vital attributes of its sovereignty, including national defence, in its own hands. This means that by joining the EC or a future European Union a neutral State does not lose its freedom of action in vital national and foreign policy matters, essential for preserving a policy of neutrality. M.A.(Tribhuvan), LL.M. with Distinction (Hull); Lecturer in Law, University of Hull. The author acknowledges with thanks the helpful comments made on an earlier draft of this article by Dr Christine Gray, fellow at St. Hilda's College, Oxford.
1. The Treaty on Political Union of 7 Feb. 1992. For text see Treaty on European Union (Office for Official Publications of the European Communities, 1992). The Treaty will enter into force when all 12 EC countries ratify it. But owing to the Danish rejection of the Treaty in a referendum on 2 June 1992 and the delay in the UK Parliament to ratify the treaty by the end of 1992 it could not enter into force on schedule, i.e. Jan. 1993. The Treaty cannot legally come into force unless Denmark, in one way or another, gives its consent to it. The deal struck at the Edinburgh summit by the leaders of the 12 EC countries in Dec. 1992 paved the way for a second referendum in Denmark by permitting it to opt out of certain provisions of the Treaty concerning defence, citizenship, monetary union and immigration. The package of documents agreed at the summit concerning subsidiarity and openness are designed to appeal not only to Danes but also to a section of the British public and members of the UK Parliament who are not entirely happy with the Treaty. But if the
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Danes voted No again Denmark may leave the EC. See further Hartley, Constitutional and Institutional Aspects of the Maastricht Agreement, (1993) 42 ICLQ 213. 2. See Week in Europe, Commission of the EC, WE/38/90, 1 Nov. 1990 and Rush to Join EC Prompts Nordic Rethink on Future, Guardian, 30 Apr. 1991, p.6; The Economist, 11 July 1992. Special Survey, pp.20-21. 3. See H. Neuhold. Permanent Neutrality in Contemporary International Relations: A Comparative Perspective (1982) I Irish Studies in International Affairs 13-26, at p.21; G. Maude, The Finnish Dilemma: Neutrality in the Shadow of Power (1976), p.95. 4. See Kalevi Sorsa's lecture The International Situation and Finland, of 26 Feb. 1987 in Finnish Foreign Affairs Ministry, Finnish Features, No.5, Apr. 1987, p.12. Similar views were expressed by Finnish President Koivisto in his interview published in 1989 in newspaper Helsingin Sanomat and West German magazine Der Spiegel. Cited in The Yearbook of Finnish Foreign Policy, 1990, p.64. 5. The application for EC membership was delivered recently to Brussels by the Finnish government after 108 of the 200 members of the Eduskunta (Parliament) voted in favour of EC membership: Guardian, 19 Mar. 1992. p.4. See also Independent (London), 4 Dec. 1991, p.8. 6. The government of Switzerland has stated that it wants to put Switzerland on the road to accession to the Maastricht Treaty: International Herald Tribune, 28 Apr. 1992, p.2. Jean-Pascal Delamuraz, the Swiss Finance Minister, justified his government's decision: Swiss membership in the European Community is a matter of economic survival: idem, 6 Aug. 1992, p.2. See on present discussions in Switzerland about Swiss neutrality and EC membership and a report on the Swiss position on EC membership, Angst in the Swiss Alps and Neutrality's Pay Off, Time, 12 Aug. 1991, pp.12-18. Guardian, 30 Apr. 1991, p.6; The Economist, 23 May 1992, p.54. But the rejection by Swiss voters in a recent referendum of an agreement on the creation of a European Economic Area has been seen as rejection of the government's decision to seek full membership of the EC. See International Herald Tribune, 7 Dec. 1992, p.1. 7. This new agreement extends EC legislation on the free movement of goods, people and capital to the seven EFTA nations--Sweden, Austria, Finland, Norway, Switzerland, Iceland and Liechtenstein. See International Herald Tribune, 15-16 Feb. 1992, p.1. 8. Idem, 11 Dec. 1991, p.3. The June 1992 Lisbon summit decided that entry talks with the rich neutral States could start when the 12 EC countries had ratified the Treaty. Although the Danish rejection of the Maastricht Treaty has thrown the whole process into confusion, the EC plan seems to be to let these countries in by 1995, in time for the 1996 revision of the Maastricht Treaty. 9. Financial Times, I Aug. 1991, p.3. A senior French official was reported as saying that Austria would have to give up its neutrality if it wanted EC membership: Independent (London), 4 Dec. 1991, p.8. However, the official report of the EC Commission concluded that Austria is the candidate which has best prepared itself for integration in the EC: International Herald Tribune, 24 June 1992, p.11. There seem to be economic reasons behind such a conclusion as Austria's per capita income is higher than the EC average and according to the Austrian Finance Minister's calculation Austria would pay up to $1.5 billion more into the EC treasury than it received in return. 10. Guardian, 19 Mar. 1992, p.4. A similar view was expressed by Thomas Klestil, the newly elected President of Austria. He said in an interview with International Herald Tribune, 24 June 1992, pp.9, 11, that Austria's neutrality must be adapted to the new political situation. That does not mean we will join a military alliance. 11. E.g. the Austrian Chancellor, Franz Vranitzky, hinted recently that the country's neutrality may soon be challenged. He said that if Europe were to develop a common security policy, Austria would know how to respond to this situation and on which road to set itself: see The Times, 7 Mar. 1992, p.9. He said: There is a good possibility that a neutral country could participate in a common-security system. We have proved this is possible during the Kuwait crisis: Independent (London), 20 May 1992, p.13. He was referring to Austria's decision to allow transportation of allied military equipment through Austria. Similar views were expressed by the Swedish Prime Minister, Carl Bildt: Neutrality in the traditional Swedish sense does not
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really apply any more. It is overtaken by the end of the cold war and we now have new security concerns which relate to the part of the world in which we live. We will want these fully reflected in the security policy of the new European union: see Guardian, 3 Mar. 1992. 12. See generally, C. F. Wicker, Neutralization (1911); Peter Lyon, Neutralism (1963); Cyril E. Black et at., Neutralization and World Politics (1968); W. G. Malbone, Neutralization as a Movement in International Law (1927) 21 A.J.I.L. 79-94; G. E. Sherman, The Permanent Neutrality Treaties (1915) 24 Yale L.J. 217-241; M. M. Whiteman, Digest of International Law, Vol.1, pp.342 et seq. ; H. Neuhold, op. cit. supra n.3; H. F. Koeck, A Permanently Neutral State in the Security Council (1973) 6 Cornell Int. L.J. 137; W. P. Grieve, The Present Position of Neutral States (1948) 33 Trans. Grot. Soc. 99; T. Komarnicki, The Place of Neutrality in the Modern System of International Law (1952-1) 80 Recueil des Cours 399-510; Report of the US Secretary of Defence Cheney to the Congress on the conduct of the Gulf War of 1991 in (1992) 31 I.L.M. 612, 636-641. 13. E. Castren, The Present Law of War and Neutrality (1954), p.449. 14. Oppenheim, International Law, Vol.11: Disputes, War and Neutrality (7th edn, E. Lauterpacht (Ed.)), p.653. 15. Concerning Swiss permanent neutrality see E. Bonjour, Swiss Neutrality: Its History and Meaning (1946); J. Kimche, Spying for Peace: General Guisan and Swiss Neutrality (1962); Political Department of the Swiss Government, Conception officielle suisse de la neutrality (1957) 14 Swiss Y.B.I.L. 195; Marko Milivojevic and Pierre Maurer, Swiss Neutrality and Security: Armed Forces, National Defence and Foreign Policy (1990). 16. Whiteman, op. cit. supra n.12, at p.345. 17. Swiss Government, op. cit. supra n.15. 18. J. L. Kunz, Austria's Permanent Neutrality (1956) 50 A.J.I.L. 418; A. Verdross, Austria's Permanent Neutrality and the United Nations Organizations, idem, p.61; D. Kennedy and L. Specht, Austrian Membership in the European Communities (1990) 31(2) Harv. Int. L.J. 407; W. B. Bader. Austria Between East and West, 1945-1955 (1966); K. Zemanek, Neutral Austria in the United Nations (1961) 15 Int. Organization 408; Stourzh, The Austrian State Treaty and the Origins of Austrian Neutrality, in K. Misra (Ed.), Non-Alignment and Neutrality (1982). 19. Text in (1955) 49 A.J.I.L. 191-194; (1955) 32 Dept. of State Bulletin 1011-1013. 20. In Whiteman, op. cit. supra n.12, at pp.348-349. 21. Kunz, op. cit. supra n.18, at p.424. 22. N. Ronzitti, Malta's Permanent Neutrality (1983) 5 Italian Y.B.I.L. 171. 23. Full text of the Exchange of Notes is reproduced in idem, pp.352-357. 24. Idem, pp.352-353. 25. Idem, pp.353-355. 26. P. Keatinge, The Formulation of Irish Foreign Policy (1973); R. Fanning, Irish Neutrality--An Historical Review (1982) I Irish Studies in International Affairs 27 ; D. Driscoll, Is Ireland Really neutral? idem, p.55; M. M. MacSweeny, Irish Neutrality and International Law (1983-84) 1-2 Irish Law Times 143; Trevor C. Salmon, Unneutral Ireland (1989). 27. The Accession of Ireland to the European Communities : Irish government White Paper, Stationery Office, Dublin, Jan. 1972. 28. N. Andren, The Neutrality of Sweden--Background Factors, in K. E. Birmbaum and H. Neuhold (Eds), Neutrality and Non-Alignment in Europe (1981); La Ruche, La Neutralit de la Suede (1953). 29. This policy statement of the Swedish Parliament was adopted in 1968, and it was reconfirmed in 1972, 1977, 1982 and 1987. Quoted in Lars B. Wallin, Sweden, in Richard E. Bissell and Curt Gasteyger (Eds), The Missing Link: West European Neutrals and Regional Security (1990), p.11. 30. Ibid. 31. See Guardian, 3 Mar. 1992 for an interview by the Swedish Prime Minister, Carl Bildt, outlining his foreign policy objectives. But Sweden's top military official stated recently that Sweden should join the EC but
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remain neutral vis--vis the three great power blocs, the US, Russia and the EC, affecting the country: We don't know how the future relationship between these centres of Power will develop. Therefore Sweden should uphold optional plans of action. Only Swedes will defend Sweden: Guardian, 20 July 1992, p.6. The Swedish Parliament has recently reaffirmed its belief in neutrality in peace and freedom from alliances in war: The Economist, 8 Aug. 1992, p.36. 32. G. Maude, The Finnish Dilemma: Neutrality in the Shadow of Power (1976); B. S. Faloon. Aspects of Finnish Neutrality (1982) 1 Irish Studies in International Affairs 3; M. Jakobson, Finnish Neutrality (1968). 33. Quoted by Alpo Rusi in Ministry of Foreign Affairs, Finnish Features, Helsinki, 16/1990, p.4. 34. Idem, 17/1990, pp.8-9. 35. 48 U.N.T.S. 149 and 203. 36. Max Jakobson, Finland: Myth and Reality (1987), p.69. 37. Guardian, 7 Nov. 1991. 38. Max Jakobson, Europe's Neutrals should Relax and Join Right In, International Herald Tribune, 17 Oct. 1991. 39. See for text of the Declaration on the permanent neutrality of Laos, XLIVII Bulletin, Dept. of State, No.1207, 13 Aug. 1962, pp.259-263. See also J. J. Czyzak and C. F. Salans, The International Conference on the Settlement of the Laotian Question and the Geneva Agreements of 1962 (1963)57 A.J.I. L. 300; A. J. Donmen, Conflict in Laos: the Politics of Neutralisation (1964); G. Modelski, International Conference on the Settlement of the Laotian Question, 1961-62 (1962). 40. See Robertson, Switzerland Rejects the United Nations (1988) 12 Fletcher Forum 312. 41. Switzerland has consistently insisted that Art.2(6) of the Charter does not impose any obligations on Switzerland, a non-member of the UN. For instance, when the UN Security Council decided to impose economic sanctions upon Iraq after its invasion of Kuwait under Res.661(1990), Switzerland notified the UN that it had imposed economic sanctions upon Iraq but denied that it was legally bound by the resolution. See for text of the resolution (1990) 29 I.L.M. 1325-1327 and for Swiss position, C. Greenwood, New World Order or Old? The Invasion of Kuwait and the Rule of Law (1992) 55(2) M.L.R. 153, 160. 42. Oppenheim, op. cit. supra n.14, at p.647, states: While the Charter has affected in a decisive way the right of the members of the United Nations to remain neutral, it has not substantially abolished their right to neutrality either in wars between Members of the United Nations or in wars between non-Members or between Members and non-Members. Both Kunz and Verdross, op. cit. supra n.18. see no problem in a permanently neutral State becoming a member of the UN. 43. Art.2(5) of the UN Charter reads: All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any State against which the United Nations is taking preventive or enforcement action. 44. Cf. Verdross and Kunz, op. cit. supra n.18. 45. This position was confirmed by the Swiss Bundesrat in a message of 4 Aug. 1919. In connection with the Swiss position with regard to economic sanctions see Verdross, idem, p.65; League of Nations, Official Journal, Special Supplement, No. 146, p.41; C. L. Brown-John, Multilateral Sanctions in International Law: A Comparative Analysis (1975), pp.81-83. 46. R. Zacklin, The United Nations and Rhodesia: A Study In International Law (1974), p.85. 47. Idem, p.86, see also supra n.41. 48. (1990)29 I.L.M. 1325-1327, 1334-1336. 49. Went, p.1327. 50. But see for Swiss reservation regarding the effect of the Security Council resolution on Switzerland supra n.41. 51. Res.82(1950) of 25 June 1950. 52. Paras.2 and 3 of the Res. read: The Security Council 2. Authorises Member States co-operating with the Government of Kuwait to use all necessary means to uphold and implement resolution 660(1990) and all subsequent relevant resolutions and to restore international peace and security in (he area; 3. Requests all
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States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution. See for the whole series of Security Council resolutions concerning Iraqi aggression (1990) 29 I.L.M. 1323-1336 and 1561-1565. 53. See The Times, 11 Aug. 1990; Independent (London), 10 Aug. 1990. 54. See supra n.39. 55. Proclama Presidencial sobre la Neutralidad Perpetua, Activa y No Armada de Costa Rica, 17 Nov. 1983, San Jose, 1983. See H. G. Espiell. Costa Rica's Permanent Neutrality and the Inter-American System (1988) 11(2) Dalhousie L.J. 663-676 and L. A. Monge,. The Neutrality of Costa Rica (1984). 56. Mention should also be made of the neutralisation of the Panama Canal Zone. The Zone was put under a regime of permanent neutrality by a bilateral treaty of 1978 between the US and the State of Panama. As this treaty has an accession clause, several third States have acceded to it. The Protocol to the Treaty Concerning the Permanent Neutrality and Operation of the Panama Canal: (1977) 161.L.M. 1040-1098. The Panama Canal Treaty of 1977 in idem, p.1022. As of Dec. 1988, 36 States have ratified the Protocol. 57. Keesing's Archives of World Events (1970/71), p.24536. 58. Op. cit. supra n.27. 59. As cited in MacSweeny, op. cit. supra n.26, at p.148. 60. Irish Times, 27 Apr. 1982. 61. E.g. MacSweeny, op. cit. supra n.26, at p.148. See also Kennedy and Specht, op. cit. supra n.18. at p.409. See generally on European political co-operation, Martin Holland (Ed.), The Future of European Political Cooperation (1991); J. K. de Vree et al., Towards a European Foreign Policy (1987); P. Ifestos, European Political Cooperation (1987); William Nicoll and Trevor C. Salmon, Understanding the European Communities (1990); Trevor C. Salmon, Testing Time for European Political Co-operation: The Gulf and Yugoslavia, 1990-1992 (1992) 68(2) Int. Affairs 233-253. 62. Alios Mock, Austria in a Changing Europe, New European (Spring 1990), pp.25-27. 63. As quoted in Richard Latter, The Future of Neutrality in Europe (1991), Wilton Park Papers, London: HMSO, pp.11-12. 64. Independent (London), 4 Dec. 1991, p.8. 65. See supra n.11. 66. Independent (London), 4 Dec. 1991, p.8. 67. Art.A of the Common Provisions of the Treaty on European Union, supra n.1, pp.7-8. On the Maastricht Treaty generally, see Hartley, Constitutional and Institutional Aspects of the Maastricht Agreement, (1993) 42 I.C.L.Q. 213. 68. Idem, p.126. 69. See idem, p.242 for the text of the Declaration on Western European Union. 70. Irish Times, 16 June 1992, p.6. 71. Idem, 13 June 1992, p.7. 72. Art.J.2 of the Section on Common Foreign and Security Policy of the Maastricht Treaty. 73. Idem, Art.J.3(2). 74. Idem, Art.J.4(3). 75. See Guardian, II Dec. 1991; Independent (London), 11 Dec. 1991. 76. Also known as the Brussels Treaty. See for text 19 U.N.T.S. 51. 77. (1955) 39 U.K.T.S. 3. 78. Idem, p.246. 79. Idem, p.138. 80. Referring to the provisions of Chap.VII of the UN Charter, Brownlie states that under Article 48 States may be ordered to adopt only a qualified neutrality and to apply economic sanctions: International Law and the Use of Force by States (1963), pp.403-404. 81. Switzerland was a member of the League of Nations. Art.16 of the Covenant of the League of Nations had, indeed, imposed certain obligations on the members of the League which were not suitable for neutral
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States. But Switzerland was exempted by the League Council from applying measures of military nature. 82. 34 U.N.T.S. 243; (1949) 43 A.J.I.L. Supp. 159. 83. (1955)49 A.J.I.L. Supp. 194. 84. 21 U.N.T.S. 324. 85. The Charter of the OAS: 30 U.N.T.S. 449. 86. 21 U.N.T.S. 324. 87. In the case of Costa Rica there is no question of asking it to provide military assistance or to use armed force since it has no army. 88. Mr Jacques Delors, the President of the EC Commission, stated that Defence is not an issue for today or tomorrow. It is an issue for 1996 when the Treaty is reviewed We must be careful on this point. The Treaty refers to the eventual framing of a common defence policy which might in time lead to a common defence policy: Irish Times, 13 June 1992, p.7. But a prominent Irish writer argues that Art.J.4(1) would bind Ireland from the day Maastricht came into effect. It would be a common policy, and it would as of now commit us to the establishment of a common defence policy. From the start, moreover, we would be implicated in authorising military action in our name as Union members: John Maguire, A Campaign of Silence on the Defence Issue, idem, 11 June 1992, p.6. Similarly, Carol Fox, a former chairwoman and spokeswoman of Irish CND, claimed that Art.J.4(1) was a solemn treaty obligation on Ireland's part to end neutrality: idem, 9 June 1992, p.7. But the Irish voters rejected such arguments and voted for the Treaty. They seem to have believed their government's interpretation that by voting for the Treaty they were not abandoning their neutral policy, as the opinion polls showed that at least four out of five voters favoured Ireland's neutrality. See The Economist, 13 June 1992, p.52. 89. See the text of television and radio address by the Irish Prime Minister, Albert Reynolds, on 16 June 1992 in Irish Times, 17 June 1992, p.6. 90. Quoted in Kennedy and Specht, op. cit. supra n.18, at p.411. 91. See Financial Times, 27 Nov. 1989, p.3 and The Times, 25 Nov. 1989, p.11. 92. International Herald Tribune, 5 Dec. 1991: The EC is Making Waves to the North. But Swiss voters rejected this agreement in a referendum held in Dec. 1992. 93. See The Maastricht Summit: Britain Sees Gaullist Trick on Defence, The Times, 10 Dec. 1991. 94. Quoted j n International Herald Tribune, 11 Dec. 1991, p.3. 95. Even this decision was regarded as more a political than a military move: see WEU Armada Aimed at the Wrong Target , Financial Times, 11 and 12 July 1992. The WEU had undertaken limited joint naval operations to protect shipping during the Iran-Iraq and Gulf wars. 96. See the Rome Declaration on Peace and Cooperation issued by the NATO Summit Conference held in Rome on 7-8 Nov. 1991: (1991) 39(6) NATO Review 19. 97. Hoagland writes that Neutralism was so artificial that it followed the Cold War into history's junkyard with amazing speed. Neutralism in East-West affairs as practised by four important European countries, turns out to have been a mixture of desperation and opportunism that had no sustaining values of its own: Jim Hoagland, And so Finland will Embrace the Hairy Monster, International Herald Tribune, 2 June 1992. 98. See on the conduct of neutral nations during the 1991 Gulf War the Report of US Secretary of Defence Cheney to the Congress in (1992) 31 I.L.M. 612, 636-642. 99. Security Conference Suspends Yugoslavs, International Herald Tribune, 9 July 1992. 100. European Community Bans Trade with Serbia, Guardian, 28 May 1992. 101. The Declaration on Voting in the Field of the Common Foreign and Security Policy adopted at Maastricht reads: with regard to Council decisions requiring unanimity Member States will, to the extent possible, avoid preventing a unanimous decision where a qualified majority exists in favour of that decision: supra n.1, at p.239. 102. As quoted in The Economist, 8 Aug. 1992, p.36. 103. Ibid. See also Neutrality Against Whom?, in Into the Void: A Survey of the European Community,
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The Economist, 11 July 1992, pp.20-21. 104. In fact, one of the reasons for the Danish rejection of the Maastricht Treaty was its provision on the common foreign and security policy; the Danes thought that this provision would undermine the Danish sovereignty. Since the Edinburgh Summit permitted Denmark to opt out of certain defence policy matters of the EC, it will be difficult for the EC to seek specific and binding assurances from the neutral States with regard to their political commitment and legal capacity to fulfil the obligations on the possible establishment of a common defence. END OF DOCUMENT
20 TLNJICL 123 20 Tul. J. Int'l & Comp. L. 123
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Tulane Journal of International and Comparative Law Winter 2011 The European Union 20 Years after Maastricht: Transatlantic Perspectives Symposium Articles THE FOREIGN AFFAIRS' POWER OF THE EUROPEAN UNION: ALL HAT AND NO CATTLE? Lloyd Bonfield [FNa1] Copyright (c) 2011 Tulane Journal of International and Comparative Law; Lloyd Bonfield
I. Introduction II. American States in a Multipolar World III. The High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission's Hat IV. Models of Integration: Should the Institutional Precede the Functional? V. The EU and the United Nations: European Seats Around the Security Council's Table VI. Conclusion
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I. Introduction Historians frequently portray transition over time as proceeding in an orderly, almost linear, fashion. Perhaps the most widely known evolutionary model of legal transmogrification is the one constructed by Sir Henry Maine in the nineteenth century: his description of the progress of Western law from status to contract. [FN1] Change over time is therein portrayed as a ceaseless, inevitable march of progress from less to more desirable forms of legal order. While the narrative may have certain kernels of truth imbedded within, it is as much art as it is science. While the existing state at the onset of the Western legal order can be hypothesized and the outcome discerned, the very pace of change is often nuanced and therefore difficult to chart. The trajectory may be upward, but there are undulations, rather like the stock market index over a bull run. In both instances, we may have some idea from whence we came and where we arrived, but how exactly we got there is frequently a very different matter. Similarly, the astonishing European journey from the post-Second World War period to the present has not been
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linear. While the success of the European Union (EU) in creating a common market for goods, services, and workers cannot be doubted (including avoiding the reoccurrence of armed conflict), there were moments in its history in which even the stout of heart might have despaired for the level of European integration that today exists. The blanket rejection of the voters of two of the founding nations (France and the Netherlands) to approve the so-called Constitutional Treaty in referenda in 2005 is perhaps the starkest example, but it does not stand alone as a discrete epoch in the journey in which the experiment may have been thought to have gone astray. [FN2] Indeed, the decade between 1975 and the formulation of the Single European Act (1986) has frequently been characterized as one of malaise. [FN3] Yet just as one might argue that the darkest hour is just before the dawn, the European Economic Community rebounded. Invigorated by the completion of the internal market, the Community morphed into the EU in 1992 with the Treaty of Maastricht, which sported additional areas of competence (usually referred to somewhat pretentiously as pillars): Common Foreign and Security Policy (CFSP) and Justice and Home Affairs. [FN4] Other significant additions were embodied in the Treaty: for example, consider citizenship of the Union and the move to a common currency and central bank. [FN5] If this massive leap forward in the 1990s was not sufficiently impressive, the following decade witnessed the near doubling (at least figuratively, if not actually) of the number of stars on the blue and gold EU flag. [FN6] As noted, one of the additional competencies established in the Treaty of Maastricht of 1992 is the CFSP. [FN7] The modest scope of the power envisaged therein was extended in the Treaty of Lisbon, which came into effect in 2009. [FN8] Perhaps the most salient institutional accretion was the introduction in Maastricht, and the upgrading in Lisbon, of a post currently designated as the High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission (High Representative). [FN9] The first major test for the enhanced foreign affairs collaboration after Lisbon followed about a year thereafter: the so-called Arab Spring. [FN10] This Article will discuss, chart, and ruminate upon the reaction of European nations and the EU to this momentous event, paying particular attention to the military action currently underway in Libya. The purpose of this Article is to issue a report, albeit a preliminary one because the Libyan enterprise is at the time of this writing a work in progress, on the manner in which the Treaty of Lisbon innovations have actually functioned in the course of its first ordeal. Three points will be addressed. The first is whether the structural innovations, in particular the creation of the High Representative post, have actually facilitated a common European response to the revolts in the Arab world. My vantage point and perspective is from without the Union rather than from within, in part given the topic of this session, The EU as a Player in a Multipolar World. However, looking through the CFSP telescope from this end provides a reasonable view because, while the Lisbon reformers might have looked at the creation of the enhanced foreign affairs powers as simply another area for functional harmonization, outsiders (non-EU nations) also have an interest in the operation of the CFSP. For other countries--the United States, for example--it is the impact of the Treaty of Lisbon on the conduct of European foreign policy that matters. One might hope that the reforms embodied in the upgraded CFSP, particularly the post of High Representative, produce a more unified stance. Such an outcome might be positive because it is probably more straightforward for other players to deal with a single bloc with a common position on a foreign policy issue than it is to deal with multiple entities, even in circumstances in which their views do not vary significantly. On the other hand, if the structure fashioned by the Treaty of Lisbon supplements (rather than supplants) Member State positions, and the CFSP fails to mediate between them, all the reform has achieved in substance is to add another voice with which an American or Russian or Chinese administration must contend. In short, if Catherine Ashton, the current High Representative, cannot speak for Europe, but simply for the EU, another player has merely been added to the already crowded table where complex decisions leading to international action are forged. [FN11] The vexing matter alluded to above, who speaks for Europe, presents an interesting vantage point from which to observe the process of European integration, both past and present. Moreover, it may present guidance for the future: how it does and should progress. Integration proceeds incrementally. As noted, the Treaty of Lisbon builds
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upon the Treaty of Maastricht by creating a more robust structure for foreign affairs governance. No doubt it would be preferable if that configuration could hit the ground running, but it is perhaps fanciful to think that such a major transition within the EU could occur seamlessly. While it is not a perfect world, some efforts at integration may proceed more gracefully than others. Comparison with the adoption of the euro may provide a lesson on how further harmonization should occur. Though there is a tortured history that precedes its introduction, [FN12] might one learn from a review of that journey and contrast it with that of the CFSP in tackling the next European integration aspiration? I frame the second issue as follows: whether change within the Union is best accomplished when institutional or structural change actually comports with functional reality. The consideration is whether the Union's interest is best served where an institution is created which has some apparent, but little actual, authority and operates without a policy consensus. More colloquially, and with specific reference to our concern over foreign affairs, does it further the conduct of international relations when the High Representative is all hat and no cattle? [FN13] Finally, I assert that the balance between Member State power and the Union's foreign affairs competence can be observed through the lens of the current debate over Security Council permanent membership. Space constraints and my own expertise do not allow a complete consideration of the variety of issues that a reconfiguration of the permanent membership of that august body raises. My ambitions and observations shall be more modest, eschewing the obvious question as to whether an additional European presence is warranted (after all, even excluding Russia, which perhaps should be regarded as one-half, Europe has forty percent of the seats). But the question of whether the EU should have a permanent seat in the Security Council is integrally connected to the previously mooted one. Like the first issue, whether the post of High Representative serves the purpose of facilitating the conduct of international relations, the observer of the EU in a multipolar world might want to ponder whether similar and additional presence at the meeting table in the Security Council simplifies or complicates what can at times be regarded as a difficult deliberative process. If the High Representative is without cattle, does the international community need another hat? II. American States in a Multipolar World Imagine a hypothetical scenario: the following is a paraphrase of an article that appeared in the New York Times on March 12, 2011. However, imagine the meeting takes place in Brussels, Kansas, as opposed to Belgium: At an emergency meeting of American state governors the previous Friday, a statement was issued in which it was agreed to examine all necessary options--including armed intervention--to protect civilians should the Libyan leader, Colonel Muammar el-Qaddafi escalate attacks on rebel-held territories. No specific reference was made to the calls by New York and California for a no-fly zone over Libya, but Governor Bobby Jindal of Louisiana said he was fundamentally skeptical. A diplomat attending the meeting reported that the only states supporting that action were, in fact, New York and California, but Louisiana is against it. Tensions at the meeting were said to be exacerbated by California's decision to grant de facto recognition to a Libyan opposition group. Louisiana refused to recognize the group as a legitimate government and Governor Jindal indicated that the recognition of California must be regarded as only creating a political interlocutor. Even before the meeting, upon his arrival, Governor Andrew Cuomo of New York suggested that both New York and California (Governor Cuomo having met separately with Governor Jerry Brown) were considering airstrikes in Libya. At the meeting, although both Cuomo and Brown fought hard to obtain authorization for a no-fly zone; Jindal was opposed, and the statement by the governors made no mention of the action. [FN14] An update: a resolution was introduced in the American Security Council on March 17, 2011. [FN15] Permanent members New York and California strongly supported the resolution, which passed, but Louisiana abstained. [FN16] Immediately upon the adoption of the resolution, the armed forces of New York and California began enforcement of the no-fly zone in concert with other members of the mutual defense alliance. Although also a member of that alliance, Louisiana's armed forces have not as yet participated.
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The savvy reader will at once comprehend that the American states of California and New York serve as proxies for the United Kingdom and France, and Louisiana's position is meant to track that of Germany. The exercise illustrates two points. The first is obvious: while Governors Cuomo, Brown, and Jindal may have views about the wisdom of intervening in Libya, they sport in such matters neither much of a hat, nor any cattle. The second pertinent point is likewise evident: President Barack Obama has the cattle. So why is he absent from the Americanized version of the Brussels discussion? That is simply because the view of the Union (for whom he would be a proxy) is not reported in the Brussels excerpt, and the reason simply is that it appears that the High Representative was not involved in the Brussels trialogue. III. The High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission's Hat Although the presence of the High Representative was not manifested at either the Brussels meeting or in the Security Council debate, Catherine Ashton has spoken frequently on the Libyan crisis. [FN17] But before rehearsing some of her statements in more detail, it is necessary to consider with more precision the function of the position by reference to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The position of High Representative is created in article 18 within Title III Provisions of the Institutions. [FN18] The ambit of the High Representative's power is limited: the relevant language in the TEU provides, He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. [FN19] Within the institutional hierarchy, the High Representative's role is to act within the Commission and coordinate the Union's external action. No serious argument can be crafted from treaty language that the brief of the High Representative is to coordinate the foreign policy of the individual Member States, however laudable that goal might be. But the uneducated observer might be persuaded otherwise, particularly if she pays attention to some of the High Representative's own words. For example, on December 2, 2009, Catherine Ashton, in a written statement based on remarks to the Foreign Affairs Committee of the European Parliament, employed some rather ambitious language. [FN20] Though much of the presentation was directed towards her audience (Ashton stressed that her own role would also be calibrated and calculated to further the importance of the European Parliament as a player in forging the foreign affairs agenda of the Union), one could read some of her statements as suggestive of a more proactive role for the High Representative vis--vis the Member States. While Ashton conceded her authority was derived from the European Council and from the Foreign Affairs Council comprised of Member State foreign ministers, she made the following three observations that suggest that she believed that her function consisted of something more than a voice. First, Ashton described her role as one of a unifier, presumably between foreign affairs policies of the Member States, [FN21] because there is power in unity: My job is to make our voice stronger and more unified still. As underlined in the European Security Strategy, the European Union should become a more capable, more coherent and more strategic global actor. [FN22] To that we might add the notion that she also perceived her role as that of a power broker: There will also be continuity in our capacity to react in situations of crisis. Our security and defence policy is now a reality, and our capacity in the area of crisis-management is making a real difference on the ground. There is much to be proud of where there was only a common will ten years ago. We do not just make declarations, we act to monitor, to protect, and to stabilise. With concrete results. [FN23] Finally, she expressed her function more succinctly as that of a mediator, calculated to lead European nations to common foreign policy positions: As High Representative I do not replace member states or the Commission, but rather ensure that we combine views and input in the best interests of Europe. My ambition is to help member states and the Commis-
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sion, through dialogue, to upgrade their level of consensus on CFSP. I will do so proactively, and I will not settle for the lowest common denominator. [FN24] Without doubt, Ashton's words are measured. After all, as she reminded the European parliamentarians in her written statement, Catherine Ashton is a British Labour Party politician with an impressive pedigree. Yet it must be noted that, to the extent she believes that her role is to mediate between opposing, or not entirely consistent, Member States' positions on matters dealing with foreign affairs, she must unearth that authority from outside the narrow language of her mandate in article 18 of the TEU, which stipulates only a role within the Commission. [FN25] Reference to the actual provisions is useful. Clause 2 directs that the High Representative shall conduct the Union's common foreign and security policy, [FN26] while clause 4 makes it quite clear that the High Representative shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. [FN27] Unless Ashton regards conducting the Union's CFSP as somehow implying combining views or harmonizing Member States' policies, her position seems to have rather modest treaty authority. [FN28] If treaty authority is not explicit, can it be extrapolated from the provisions' context? Let us agree that though such an expansive interpretation may not be entirely spurious, its logic is by no means obvious. Regardless of whether one is persuaded by Ashton's position, reality intervened. Given the manner in which events unfolded at the Security Council on March 17, 2011, Ashton's apparent inability to combine views on Libyan action leaves her with a hat, but with very little cattle. [FN29] Indeed, the interpretive subtleties [FN30] that Ashton offers above would likely be very well lost upon outsiders. After all, a casual student of the Union might assume that well-worn principles of law like direct effect and the supremacy of Union law over Member State law that obtain in the Community pillar might fold over into Foreign Affairs and Security Policy. That proposition is at the very least debatable, and currently unsettled. [FN31] Others, at times, have expressed the ambit of the CFSP in grandiose terms. For example, the Union's ambassador to the United States, Joo Vale de Almeida, was reported as remarking that he is empowered to speak on behalf of EU Council President Herman Van Rompuy, EU Commission chief Jose Manuel Barroso and EU member states. [FN32] While he was subsequently reported as referring only to areas in which the Union took a common position, such a distinction may not seem apparent to less savvy outsiders. The nuances of language matter. In that vein, particularly intriguing, and perhaps to some extent quite disturbing, is Ashton's perplexing use of the royal we in the above excerpted statements. To whom, or to what entities, does it refer? Is the we the EU, the Member States, or, perhaps, even the High Representative's office? A real danger for consumer confusion arguably exists by use of this hitherto undesignated pronoun. An example may serve to illustrate the point. On March 14, 2011, as the Security Council drama was unfolding, Ashton found herself in Egypt. [FN33] In remarks made after her meeting with Arab League Secretary General Amr Moussa, she said: Finally, we talked about Libya and the UN Security Council, which I understand will be discussing the issues again today and the possibilities of a no-fly zone. The European Council said very clearly that we are doing planning for all options, but looking to the legal basis for action which is the Security Council, and we are looking to the Arab League statement for Saturday which has now happened and which we were able to discuss. I think in a sense our eyes are now on the Security Council, but as we look at the situation in Libya we call again for an end to violence. [FN34] Given the High Representative's claim that the Union, through her office, would undertake peace keeping, and not peacemaking, operations, [FN35] one might wonder what cattle we could possibly deliver if not unanimity amongst Member States with respect to votes in the Security Council in responding to the Libyan crisis.
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IV. Models of Integration: Should the Institutional Precede the Functional? My argument thus far has been that consumers of diplomatic information in our multipolar world may be misled by pronouncements from the High Representative of the Union for Foreign Affairs and Security Policy and VicePresident of the Commission. Rhetoric from Ashton, even guarded language that may be suggestive of authority to speak for the Member States in high-profile matters such as Libya, may raise perceptions in the minds of other international actors that some meaningful Union action may follow. Setting aside external perceptions and expectations in this particular chapter in the progress of harmonization (and with recognition that a seamless transition in the foreign policy arena would be difficult), the episode is a useful one in considering the manner in which the implementation of functional change in the structure of the EU should proceed. It is to that issue, the second on my agenda, that we may now turn. The underlying assumption that informs this inquiry is that the EU has achieved success nothing short of remarkable over the past half-century in bringing together sovereign states with differing languages, cultural traditions, political systems, economic structures, etc. Surely, fissures are not absent, and stress can be discerned in times of crisis. [FN36] It is also necessary to note that the harmonization of either institutions or policies should not be assumed to proceed following a single motif. One harmonization size neither can nor should fit all. Yet, contrasting the process by which the common currency was introduced with the most recent phase of enhancement of the CFSP may be of some use in determining the more appropriate pathways along which to proceed in order to facilitate progress in other areas of harmonization. [FN37] While the establishment of a European Central Bank and the euro were not explicitly contemplated in the Treaty of Rome, considerations of money were not absent: free movement of capital was a core principle of Community law and was calculated to facilitate cross-border investment and trade. [FN38] The scope of protection against restrictions on free movement of capital is not specified in the TFEU, but in the very broad language of the Treaty reduced to particulars in annex 1 of Directive 88/361, which provides a detailed, but nonexhaustive, list of what actions constitute restrictions under the TFEU. [FN39] In common with other areas of free movement, the Treaty does permit Member States a limited ability to infringe upon free movement of capital (particularly where there are tax ramifications and where the prudential supervision of financial institutions is at stake) [FN40] subject to the usual caveat in the other free movement contexts that the measures adopted do not amount to arbitrary discrimination or a disguised restriction on the free movement of capital. [FN41] Thus free movement of capital was implemented, and it probably did, albeit imperfectly, facilitate cross-border investment and trade. Yet the integrated market for goods, services, and workers was, to some extent, impeded by exchange rate risk because the value of one Member State's currency fluctuated against that of the others. As early as the late 1960s, aspirations towards remedying that shortcoming emerged, due in part to the realization that exchange rate uncertainty hindered cross-border economic activity. [FN42] Discussions in the Community proceeded towards creating the Economic and Monetary Union (EMU). Options from fixed exchange rates to a single currency were mooted. The Union (or the Member States) realized, however, that a common currency required something more than free movement and that coordination between national banks and a common monetary policy was critical. [FN43] The first attempt to set exchange rates in the Community was more modest. The pathway selected was to allow currencies to float against each other, but generally within a narrow 2.25% band. [FN44] This EMU morphed into the comprehensive European Monetary System (EMS) in 1978, which created the European Currency Unit (ECU). [FN45] The Exchange Rate Mechanism (ERM) was established to peg the value of national currencies to the ECU. [FN46] While the system was more rigorous than its predecessor, alterations and fluctuations in value were allowed, again within bands. [FN47] Governmental institutions (be they Union or Member State) cannot control events; they must, however, necessarily respond. Both the EMU and the EMS were required to weather periodic economic crises over which the Union
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and the established system had little control. Market pressure led to the collapse of the ERM in the currency crises of 1992-93, largely because Member States were forced to act in their own national interest. Existing bands were breached, leading ultimately to the devaluation of the currencies of the nations with more fragile economies. [FN48] While the episodes sketched above cannot be regarded as the Community's finest hour, the structural weaknesses from which the ERM suffered made it clear that, in a properly functioning world, horses come before carts: common economic policies have to precede monetary union. Indeed, even before its demise, the existing edifice was not regarded as capable of enduring. [FN49] Various efforts were already underway to rethink the basic structure that monetary union should assume. [FN50] These discussions appear to have recognized that before constructing any form of monetary union, whether a single currency or fixed exchange rates, some coordinated, if not strictly unified, approach to setting fiscal policy amongst the participants had to be fashioned. [FN51] Though recent events in Greece, Ireland, and Portugal suggest only limited success was ultimately achieved, the need to control national budget deficits was viewed as crucial to creating stability. Likewise, a monetary system requires a coordinated monetary policy. These preliminary discussions led to the successful creation of a more enduring EMU in the Treaty of Maastricht than its 1960s predecessor. Its creation was embodied in a process (as opposed to being the product of a single event), the complex details of which need not concern us here. Suffice it to say that the current phase of the EMU has succeeded (at least thus far) because, unlike its predecessors, economic coordination accompanied institution building. Those who crafted Maastricht's EMU recognized that price stability must be maintained, interest rate convergence assured, and budget deficits controlled. Indeed, they stipulated in detail the need for, and the means to attain, policy coordination in a protocol attached to the Treaty. [FN52] To be sure, this economic policy coordination was supported by the fashioning of institutions: first the European Monetary Institute and then the European Central Bank. Is there a lesson to be learned from the process of monetary union, the barebones of which has been sketched above, which might have been applied to facilitate the transition from a more modest to an enhanced role for the EU in foreign affairs under the Treaty of Lisbon version of the CFSP? I would argue in the affirmative. The lesson to be learned is policy before institutions: cattle before hat. Before the CFSP as an institution can contribute to an international dialogue in response to a crisis, it must mediate the differing views of Member States to produce a common policy or, at the very least, a least common denominator. My point is simply that without policy coordination, institutions themselves, even as impressive as they are, could not have brought about the desired goal: monetary union. By contrast with the EMU, the CFSP does not appear to have much in the way of a coordinated policy. Nor does it have a robust supporting infrastructure. While article 27(3) of the Treaty of Lisbon does establish the European External Action Service (EEAS), [FN53] this body is currently a work in progress. [FN54] Ashton is responsible for appointing staff drawn from three sources: the General Secretariat of the Council, the Commission, and national diplomatic services. [FN55] By Council Decision, the staff of the EEAS is managed by an executive secretary general. [FN56] While the hope may be that policy proposals fashioned by a technocratic elite might have more influence within Union institutions, it is not clear how the EEAS will actually, according to the Treaty, work in cooperation with the diplomatic services of the Member States [FN57] or as a Council press release promises, ensure close cooperation with the Member States. [FN58] These aspirations aside lead the observer of the EU in a multipolar world to query whether it would have been more sensible to have created the EEAS (and perhaps awaited their unifying expertise) before the High Representative began to take an active role on the international stage. [FN59] V. The EU and the United Nations: European Seats Around the Security Council's Table The reforms to the CFSP in the Treaty of Lisbon and, in particular, the establishment of the post of High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission also raises the question of how the EU should be represented at the United Nations. Recently, the EU has achieved one of its
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cherished aspirations: its observer status in the General Assembly was upgraded. [FN60] The General Assembly voted: [T]o adopt the modalities set out in the annex to the present resolution for the participation of the representatives of the European Union, in its capacity as observer, in the sessions and work of the General Assembly and its committees and working groups, in international meetings and conferences convened under the auspices of the Assembly and in United Nations conferences. [FN61] To clarify the extent of its enhanced role, although the Union does not have the right to vote or to put forward candidates, the annex of the General Assembly Resolution accords the Union the rights to present proposals and amendments agreed to by EU Member States (but not to challenge decisions of the Assembly's presiding officer), to be invited to participate in the general debate of the General Assembly, to speak during sessions, to allow Union communications relating to the sessions and work of the Assembly to be circulated directly as documents of the Assembly, to reply, and to raise points of order. [FN62] This significant hurdle at the United Nations successfully cleared, one may ponder whether the logical next step for the EU is permanent membership in the Security Council. One could fill volumes rather than pages in tackling one of the most vexing issues with which students of international organizations must grapple: whether the structure of the Security Council should be altered and, if so, what form the revisions should assume. The membership conundrum is all the more baffling because of the rather stable history of the body: change in membership has not come easily to the Security Council. On the other hand, one could argue that transmogrification has occurred: the seat allocated to China moved west (from the island of Taiwan to the mainland) and the Soviet Union's seat was reallocated to Russia (where, at least arguably, it had always been). Regardless of whether the dedication of a permanent seat in the Security Council to the EU is somehow rational and justifiable, political concerns intervene. To enlarge membership, even (or perhaps especially) by one, would require a comprehensive rethinking of the criteria for permanent membership of the Security Council. After all, there are other candidates for such recognition so an enlargement exercise would surely require a consideration of the claims of other countries, particularly those with emerging, and now powerful, economies. Brazil and India, in particular, come to mind. Moreover, balance is necessary between continents. The General Assembly was careful not to appear Eurocentric when it upgraded observer status for the EU in the General Assembly, noting that other regional organizations could seek similar observer status. Such equality, however, would hardly be feasible around the much smaller table in the Security Council. There is an alternative to the enlargement of the permanent membership of the Security Council, and that is additional transmogrification reminiscent of those examples referred to above. Could not an existing seat move to the EU? There are, after all, no shortage of European seats currently around the table. This solution has been already considered. In an article in the Harvard International Review, Commander Norman Denny mooted the issue of Security Council permanent membership for the EU. [FN63] While he recognized the claims of emerging world powers, Denny found a solution in what I have called transmogrification. [FN64] First, he assessed the EU's claim. [FN65] Denny illuminated the enhanced CFSP that was implemented in the Treaty of Lisbon. [FN66] He also noted the EU's weight, both in terms of population (500 million) and economy (thirty percent of the world's Gross Domestic Product (GDP)). [FN67] Yet he adopted a curious solution: France should cede its permanent seat in the Security Council to the EU. [FN68] While he conceded that support in France for such a proposition was unlikely, [FN69] others might regard it as odd, given the fact that there was another candidate for equally unlikely generosity: the United Kingdom. To be sure, Denny did not forget the United Kingdom, but he preferred British continued presence as a permanent member to that of the French on two grounds: first, due to the United Kingdom's having a larger GDP than France; and second, owing to a lesser level of integration of the United Kingdom into the EU. [FN70] Both these points require consideration and, perhaps, clarification. Regarding GDP, Denny argued that the United Kingdom's continued membership (as opposed to that of France) could be supported based upon its share of EU GDP
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in 2010, which was modestly higher than that of France. [FN71] The mathematics supporting the proposition are questionable given both the International Monetary Fund and the World Bank estimates that France's GDP exceeds that of the United Kingdom by more than one percent. [FN72] Of course, the GDP card is a difficult one to play, since Russia's GDP is close to half as much as France or the United Kingdom; and the GDP of Japan is more than that of France and the United Kingdom combined (and then there is Germany). [FN73] Economic considerations aside, the second point that made France, rather than the United Kingdom, the logical choice was how each nation went about the business of exercising power in the area of international affairs. In the first place, Denny argued that France's influence was limited to Francophone regions (primarily, he noted, in Africa). [FN74] There may be something to that assertion, though its current lead role in Libya may give one pause to reflect. But Denny argued that France exercises a level of influence through its seat on the Security Council beyond that justified by its military, political, or economic ranking in the world. [FN75] If this cooperative approach is a justification for removing France from Security Council permanent membership, it creates perverse incentives to international actors: being a team player may limit a nation's potential for exercising influence through permanent membership in the Security Council. Finally, Denny also argued that the United Kingdom is not a fully integrated EU member. [FN76] To be sure, the United Kingdom has retained its own currency and often expresses economic and political views that are out of the European mainstream, but in the area of the exercise of foreign affairs, it is as fully integrated into the CFSP as is France. The idea of the transmogrification of a European seat is intriguing. Here I am not arguing that geopolitical and economic reality suggests that the United Kingdom rather than France should be shown the door to the Security Council chamber, at least as a permanent member, and be replaced by the EU. Rather, a focus on which one should exit is in my view misplaced; the conversation should turn from which one to whether both should cede their places at the table before the EU is seated. In the preamble to its recent resolution enhancing the EU's observer status, the General Assembly made the following point: that it is for each regional organization to define the modalities of its external representation. [FN77] While it is for the international community to decide which nations sit around the table at the Security Council on a permanent basis, it is for the EU to decide whether it should be Member States or the Union. If Ashton's representation that the goal of the CFSP is to arrive at common positions on matters of international affairs is to be realized, then perhaps a second European seat (for an EU member at least) must be considered superfluous. VI. Conclusion Much of the thrust of this Article is critical of the implementation of the CFSP as it pertains to the exercise of Union-based foreign policy initiatives, particularly with regard to the High Representative's representations in response to the Arab Spring and the intervention in Libya. But my argument has been undertaken with the full realization (and with considerable admiration) that in many areas of its competence and its agenda, the Union has made remarkable strides. One way of placing the debate on any single aspect of Union action in proper context is to ask the broader question: who amongst us would prefer to return to the Europe of the first half of the twentieth century? Without a doubt the enhancement of the CFSP was an ambitious undertaking. While the Union has impinged upon Member State sovereignty in a variety of critical areas, there may be some aspects of the exercise of foreign relations powers that cut more deeply into closely held notions of appropriate national dominion. While one might readily concede that creating a common policy in the area of foreign affairs was a particularly tough row to hoe, it was one the Union itself selected to till. Accomplishments acknowledged and difficulties conceded, two points bear consideration by way of conclusion. One is practical, the other more theoretical. The first is simply that the High Representative, by promising more than can be delivered by the Union, creates an interesting permutation of that old saw the moral hazard. Taking positions in the way Ashton has, as highlighted in the above discussion, might lead one to conclude that the Union's CF-
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SP is able to deliver more in the way of coherence than it actually can. Arguably, such pronouncements may incline third-party independent actors to a course of action in reliance that Member State action will accurately reflect EU pronouncements. Perhaps this particular argument is more academic than it is practical, and I have grossly underestimated the savvy or realism of other international actors. To pursue the expression in my title: they are aware of the ratio between the High Representative's hat and her cattle. The second point, however, raises a crucial question as the Union considers further enlargement of its areas of competence. While some may wonder whether the common enterprise has proceeded to its logical conclusion, others may believe that the journey may well continue. If there are to be future competencies added, or existing ones augmented, more thought must be devoted to the manner in which they are articulated and implemented. Careful delineation between Member State and EU competence is required, particularly in areas in which the Union specifically shares functions and powers with the Member States. While the observer may have been disappointed by the rift over Libya between France/Britain and Germany, it is not surprising given the experience of the war in Iraq. That experience highlighted that there are some significant residual differences between some of the Member States in the conduct of foreign affairs, and that the individual philosophy of the person who controls Member State government may matter. Such divergence might also arise in a variety of other areas making convergence more problematic. It is therefore important that the creation of a common policy in the area should either precede, or at the very least accompany, the creation of additional competencies. Finally, where the particular area of Union infiltration requires or imagines the creation of a significant bureaucracy, it may be useful to have it up and running before (or at least simultaneous with) its launch. Getting it right is imperative because of the significant impact that Europe has in the international arena. One could argue that in the international arena, Europe punches above its weight. But there is an additional responsibility that is derived from its astonishing success as an international organization. The EU is a noble experiment, an innovative paradigm for regional and multinational cooperation; it should, and will, be regarded as a model for similar regional organizations.
[FNa1]. 2011 Lloyd Bonfield. Lloyd Bonfield is a Professor of Law and the Director of the Center for International Law at New York Law School. Sincere thanks to my New York Law School (Class of 2012) research assistants Christina De Rosa and Artem Djukic for their tireless efforts in supplying and checking references for the presentation and reading countless drafts of the Article. Thanks are also due to Lisa Bonfield, Tulane Law School (Class of 2011) and Senior Research Editor of the Tulane Journal of International and Comparative Law (2010-2011) for volunteering to also assist in the endless process of producing this work-in-progress. [FN1]. Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas 138-41 (Dorset Press 1986) (1861). [FN2]. See generally Renaud Dehousse, The Unmaking of a Constitution: Lessons from the European Referenda, 13 Constellations 151 (2006) (discussing the perils and history stemming from the EU's use of referenda). [FN3]. Paul Craig & Granne de Brca, EU Law: Text, Cases, and Materials 12 (4th ed. 2008). [FN4]. Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) 1 [hereinafter Treaty of Maastricht]. [FN5]. Id. [FN6]. The number of Member States increased from fifteen to twenty-seven, with Croatia standing in the wings. See Enlargement, Eur. Comm'n, http:// ec.europa.eu/enlargement/the-policy/from-6-to-27-members/index_en.htm (last visited Sept. 5, 2011).
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[FN7]. Treaty of Maastricht, supra note 4. [FN8]. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon]. [FN9]. Id. art. 9(E). [FN10]. George Friedman, Re-Examining the Arab Spring, STRATFOR (Aug. 15, 2011, 21:34 GMT), http://stratfor.com/weekly:20110815-re-examining-arab-spring. [FN11]. Press Release, Foreign Affairs Comm. of the European Parliament, Catherine Ashton High Representative of the Union for Foreign Affairs and Security Policy, and Vice President of the European Commission Written Statement (Dec. 2, 2009), http://europa.eu/rapid/pressReleasesAction.do? reference=SPEECH/09/567. [FN12]. The literature on the adoption of the euro is formidable. It is not the purpose of this Article to revisit in great detail the history of the euro, but for a useful source in setting out the history of the euro, see, for example, Sebnem Kalemli-Ozcan, Elias Papaioannou & Jos-Luis Peydr, What Lies Beneath the Euro's Effect on Financial Integration? Currency Risk, Legal Harmonization, or Trade?, 81 J. Int'l Econ. 75 (2010). [FN13]. I am grateful to President Bush for bringing to the forefront this Texas expression; alarmingly, it seems frequently appropriate. See Katrina vanden Heuvel, Governor for Sale, Wash. Post, Aug. 23, 2011, http:// www.washingtonpost.com/opinions/governor-for-sale/2011/08/23/g/QAGC3vY2_ story.html (explaining that all hat and no cattle refers to someone [with] the swagger of success without accomplishments to back it up). [FN14]. Stephen Castle, European Leaders Don't Rule Out Armed Intervention in Libyan Conflict, N.Y. Times, Mar. 12, 2011, at A7. [FN15]. Of course, no such resolution was voted upon by the hypothetical parties. But see S.C. Res. 1973, U.N. Doc. S/RES/1973 (Mar. 17, 2011), which was adopted by the members of the United Nations Security Council. [FN16]. Id. [FN17]. There is ample discussion in this Article of Ashton's positions and no need to provide further examples. For speeches and statements by Ashton concerning the Libyan crisis, see Libya: Latest News, Eur. Comm'n, http:// www.eeas.europa.eu/libya/index_en.htm (last visited Aug. 1, 2011). [FN18]. Consolidated Version of the Treaty on European Union art. 18, Sept. 5, 2008, 2008 O.J. (C 115) 26 [hereinafter TEU]: 1.The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure. 2.The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy. 3.The High Representative shall preside over the Foreign Affairs Council. 4.The High Representative shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union's external action. He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3. [FN19]. Id. art. 18(4).
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[FN20]. Press Release, Foreign Affairs Comm. of the European Parliament, supra note 11. [FN21]. If not that, what else could she be unifying? The Union position need not be unified; Member States' positions could require unification. [FN22]. Press Release, Foreign Affairs Comm. of the European Parliament, supra note 11. [FN23]. Id. [FN24]. Id. [FN25]. TEU art. 18. [FN26]. Foreign Policy, Eur. Comm'n, http:// www.consilium.europa.eu/policies/foreign-policy.aspx?lang=en (last visited May 19, 2011). The following is a summary of the ambit of that power from the Council's Web site: The Common Foreign and Security Policy (CFSP) of the European Union established In 1993 with the Maastricht Treaty aims to: preserve peace and strengthen international security in accordance with the principles of the United Nations Charter; to promote international co-operation; and to develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms. An important decision in terms of improving the effectiveness and profile of the CFSP was the creation of the office of High Representative for CFSP (1999) whose role it was to co-ordinate EU foreign policy and, in conjunction with the rotating Presidency, speak on behalf of the EU in agreed foreign policy matters. By adopting the EU Security Strategy (2003) and the subsequent report on implementation (2008), the EU established a strategic approach and set clear objectives for advancing its security interests based on core European values. The strategy takes into account key concerns such as: proliferation of weapons of mass destruction, terrorism, regional conflicts and problems related to state failure, including organised crime. With the entry in into force of the Lisbon Treaty (2009) the post of High Representative of the Union for Foreign Affairs and Security Policy was created. This post combines three functions: the EU's representative for the CFSP, the President of the Foreign Affairs Council and a Vice-President of the Commission. At the moment, this post is held by Catherine Ashton. Member states of the EU define the principles and general guidelines for the CFSP. On this basis, the Council adopts decisions or common approaches. A major component of CFSP is the Common Security and Defence Policy (CSDP) which includes to date more than 20 civilian and military missions and operations on three continents. Id. [FN27]. TEU art. 18(4). [FN28]. One finds no support for the proposition in the above description. See Foreign Policy, supra note 26. [FN29]. France and the United Kingdom voted in favor of Resolution 1973, S.C. Res. 1973, supra note 15. Although Germany did not vote against the Resolution, it did abstain from voting, essentially shrugging its shoulders at any suggestion of unanimity amongst EU member states with seats on the Security Council. Germany's abstention is viewed by some as a statement of disregard for European unity and highlights the ineffectiveness of the European External Action Service (EEAS). See Richard Rousseau, Why Germany Abstained on UN Resolution 1973 on Libya, Foreign Pol'y J. (June 22, 2011), http:// www.foreignpolicyjournal.com/2011/06/22/why-germany-abstained-on-un-resolution-1973-on-libya/. [FN30]. See the unofficial Web site of the High Representative for another perplexing distinction: Ashton will mainly be responsible for so-called implementation missions (peace-keeping), since the Union sees NATO responsible for its territorial defence (peace-making). highrepresentative.eu, http:// www.highrepresentative.eu (last visited
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Sept. 5, 2011). [FN31]. This question has been raised in the context of whether CFSP instruments bear the same legislative authority as legislative instruments adopted within the mantle of the Community pillar. See Ricardo Gosalbo Bono, Some Reflections on the CFSP Legal Order, 43 Common Mkt. L. Rev. 337 (2006). [FN32]. Andrew Rettman, EU Envoy to US Flaunts New Powers, EUobserver (Aug. 11, 2010, 1:31 PM), http://euobserver.com/9/30607 (emphasis added). [FN33]. Remarks by EU HR Ashton After Meeting Arab League SG Amr Moussa, Eur. Comm'n (Mar. 14, 2011), http://eu-un.europa.eu/articles/fr/article_10808_ fr.htm. [FN34]. Id. (emphasis added). [FN35]. highrepresentative.eu, supra note 30. One might argue that the Libyan venture is neither peace keeping nor peacemaking. [FN36]. See, for example, a recent statement by Roberto Maroni, the Italian Interior Minister, uttered in desperation over what he regarded as other Member States' lack of sympathy for Italy's plight over the influx of immigrants: [I]t is better to be alone than in bad company.... I wonder if it makes sense to stay in the European Union. Rachel Donadio, Italy Lashes Out at European Union over Immigrants, N.Y. Times, Apr. 12, 2011, at A9 (internal quotation marks omitted). [FN37]. Since this Article has been presented at a conference, the monetary crisis in the eurozone has escalated, casting doubt on whether even an incremental evolutionary process of harmonizing areas of policy critical to Member State interests can be successful. [FN38]. Consolidated Version of the Treaty on the Functioning of the European Union art. 63, Sept. 5, 2008, 2008 O.J. (C 115) 47 (formerly Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11, art. 56) [hereinafter TFEU]. [FN39]. Council Directive 88/361, Annex 1, 1988 O.J. (L 178) 1 (EC). [FN40]. TFEU art. 65(1)-(2). These restrictions are justified on the grounds of public policy/public security and are akin to the exceptions permitted in other free movement provisions. Id. [FN41]. Id. art. 65(3). [FN42]. Craig & De Brca, supra note 3, at 728. [FN43]. Id. [FN44]. Id. [FN45]. Id. [FN46]. Id. [FN47]. Id. at 728-29. [FN48]. Id. at 729. [FN49]. Id.
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[FN50]. Id. [FN51]. Id. [FN52]. Treaty on European Union, Protocol on the convergence criteria referred to in Article 109j of the Treaty Establishing the European Community, July 29, 1992, 1992 O.J. (C 191) 1 (as in effect 1993): ARTICLE 1 The criterion on price stability referred to in the first indent of Article 109j(l) of this Treaty shall mean that a Member State has a price performance that is sustainable and an average rate of inflation, observed over a period of one year before the examination, that does not exceed by more than 1 percentage points that of, at most, the three best performing Member States in terms of price stability. Inflation shall be measured by means of the consumer price index on a comparable basis, taking into account differences in national definitions. ARTICLE 2 The criterion on the government budgetary position referred to in the second indent of Article 109j(l) of this Treaty shall mean that at the time of the examination the Member State is not the subject of a Council decision under Article 104c(6) of this Treaty that an excessive deficit exists. ARTICLE 3 The criterion on participation in the Exchange Rate Mechanism of the European Monetary System referred to in the third indent of Article 109j(l) of this Treaty shall mean that a Member State has respected the normal fluctuation margins provided for by the Exchange Rate Mechanism of the European Monetary System without severe tensions for at least the last two years before the examination. In particular, the Member State shall not have devalued its currency's bilateral central rate against any other Member State's currency on its own initiative for the same period. ARTICLE 4 The criterion on the convergence of interest rates referred to in the fourth indent of Article 109j(l) of this Treaty shall mean that, observed over a period of one year before the examination, a Member State has had an average nominal long-term interest rate that does not exceed by more than 2 percentage points that of, at most, the three best performing Member States in terms of price stability. Interest rates shall be measured on the basis of long term government bonds or comparable securities, taking into account differences in national definitions. [FN53]. See TEU art. 27(3): In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission. [FN54]. Even the location of its offices was a subject of considerable controversy. See Andrew Rettman, Ashton Set To Take New Office in EU Nerve Centre, EUobserver (Aug. 24, 2010, 2:21 PM), http://www.euobserver.com/9/30666. [FN55]. TEU art. 27(3). [FN56]. The exact employment data for the EEAS is unpublished, but the 2011 budget requested 3720 staff slots (1643 policy and operational officers plus 2077 additional staff). See Daily Hansard, Parliament.uk (July 15, 2011), http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/110715w0001.htm #11071555000063; Andrew Rettman, France and Germany Eye Top Job in EU Diplomatic Corp, EUobserver (Nov. 3, 2010, 2:05 PM), http:// euobserver.com/18/29659. [FN57]. TEU art. 27(3).
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[FN58]. Press Release, General Secretariat of the Council of the EU, Background--The High Representative for Foreign Affairs and Security Policy/The European External Action Service (Nov. 2009), http:// www.consilium.europa.eu/uedocs/cmsUpload/Background-HighRepresentative_EN.pdf. [FN59]. It should be noted that the creation of such a large additional foreign affairs bureaucracy in Brussels at the same time in which Member States are endeavoring to reduce public expenditure (and therefore cut existing positions) has raised consternation, particularly in the United Kingdom. [FN60]. General Assembly Designates Friendship Day and Grants EU Higher Participation Status, UN News Centre (May 3, 2011), http:// www.un.org/apps/news/story.asp?NewsID=38261&Cr=general+assembly&Cr1. [FN61]. G.A. Res. 65/276, U.N. Doc. A/RES/65/276 (May 3, 2011). [FN62]. Id. annex: Annex Participation of the European Union in the work of the United Nations 1.In accordance with the present resolution, the representatives of the European Union, in order to present positions of the European Union and its member States as agreed by them, shall be: (a)Allowed to be inscribed on the list of speakers among representatives of major groups, in order to make interventions; (b)Invited to participate in the general debate of the General Assembly, in accordance with the order of precedence as established in the practice for participating observers and the level of participation; (c)Permitted to have its communications relating to the sessions and work of the General Assembly and to the sessions and work of all international meetings and conferences convened under the auspices of the Assembly and of United Nations conferences, circulated directly, and without intermediary, as documents of the Assembly, meeting or conference; (d)Also permitted to present proposals and amendments orally as agreed by the States members of the European Union; such proposals and amendments shall be put to a vote only at the request of a Member State; (e)Allowed to exercise the right of reply regarding positions of the European Union as decided by the presiding officer; such right of reply shall be restricted to one intervention per item. [FN63]. Norman Denny, There Is a Seat on the UN Security Council for the European Union--The French Seat, Harvard Univ. (Dec. 22, 2010), http:// www.hir.harvard.edu/pressing-change/there-is-a-seat-on-the-un-security-council-for-the-european-union-the-french-s eat. [FN64]. Id. [FN65]. Id. [FN66]. Id. [FN67]. Id. [FN68]. Id. [FN69]. Id. [FN70]. Id. [FN71]. Id.
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[FN72]. See World Economic Outlook Database: September 2011 Edition, Int'l Monetary Fund, http://www.imf.org/external/data.htm (follow Data hyperlink; then follow World Economic Outlook Databases (WEO) hyperlink; then follow World Economic Outlook Database September 2011 hyperlink); World Bank Data, World Bank, http://databank.worldbank.org/ddp/home.do? Step=28id=4&hActiveDimensionId=WDI_Series# (listing France's GDP as over one percent higher than the United Kingdom's GDP). [FN73]. Gross Domestic Product 2010, World Bank, siteresources.worldbank.org/DATASTATISTICS/Resources/GDP.pdf (last visited Oct. 13, 2011). [FN74]. Denny, supra note 63. [FN75]. Id. [FN76]. Id. [FN77]. G.A. Res. 65/276, supra note 61, pmbl. 20 Tul. J. Int'l & Comp. L. 123 END OF DOCUMENT http://
18 CLMJEURL 1 18 Colum. J. Eur. L. 1
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Columbia Journal of European Law Fall, 2011 Article THE EUROPEAN COURT OF HUMAN RIGHTS, THE EU CHARTER OF FUNDAMENTAL RIGHTS, AND THE RIGHT TO ABORTION: ROE v. WADE ON THE OTHER SIDE OF THE ATLANTIC? Federico Fabbrini [FNa1] Copyright 2010 by European Legal Studies Center, Columbia University; Federico Fabbrini This Article analyzes the legal regulation of abortion within the context of Europe's multilevel system for the protection of fundamental rights. The Article examines the constitutional dynamics and challenges that emerge in the field of abortion law from the overlap between national and supranational norms in Europe, comparing the European multilevel architecture with the United States (U.S.) federal system. To this end, the Article summarizes the main trends in the regulation of abortion in the various European Union (EU) countries, assesses the growing impact of the EU and the European Convention on Human Rights in the field of abortion law, and emphasizes how supranational law generates new pressures and creates several inconsistencies within the domestic legal systems of those states which restrict abortion rights. It then explores how analogous dynamics have historically been at play in the U.S. federal system. Finally, the Article evaluates--in light of the U.S. experience--the potential consequences upon the European abortion regime of the most recent developments in the European Court of Human Rights case law and the entry into force of the EU Charter of Fundamental Rights via the Lisbon reform Treaty. I. II. III. INTRODUCTION STATES' ABORTION LAWS THE IMPACT OF SUPRANATIONAL LAW ON STATES' ABORTION LAWS THE RIGHT TO ABORTION IN THE U.S. CONSTITUTIONAL EXPERIENCE RECENT DEVELOPMENTS IN THE PROTECTION OF ABORTION RIGHTS IN EUROPE: THE DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS IN A., B. & C. V. IRELAND THE LISBON TREATY AND THE EU CHARTER OF FUNDAMENTAL 2 6 16
IV.
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V.
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VI.
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RIGHTS: FROM HARD TO SOFT PLURALISM IN THE EUROPEAN ABORTION REGIME? VII. CONCLUSION 52
I. INTRODUCTION Abortion laws in Europe and the United States (U.S.) have increasingly converged throughout the last thirty years. In the early 1980s, the refrain among many comparative lawyers was that, among Western countries, the U.S. stood alone in recognizing a broad individual right to the voluntary interruption of pregnancy. Conversely, most European states subjected abortion to stricter regulations or prohibited it tout court. [FN1] Already during the mid1990s, however, scholars emphasized that the U.S. was retreating from its earlier, very liberal position, by permitting states to restrict a woman's right to an abortion. [FN2] Simultaneously, European countries were widening the conditions under which women could choose whether to terminate their pregnancies, often under the pressures of the rising supranational laws. [FN3] An assessment of the abortion laws on each side of the Atlantic at the end of the 2010s highlights an even clearer pattern of convergence. In the U.S., the federal government [FN4] and many state legislatures have enacted laws that further constrain a woman's access to an abortion. [FN5] These measures have gradually pushed back the time period during which a woman can obtain an abortion, from the end of her second trimester to somewhere closer to the end of her first trimester. [FN6] Moreover, a bill enacted in March 2011 by the state of South Dakota [FN7] has introduced a system of mandatory counseling for the first time in the U.S., which is not dissimilar from that in effect in several European states. The bill states that women seeking abortions in South Dakota must first participate in a directed consultation at a pro-life pregnancy center. [FN8] Meanwhile, a number of Member States in the European Union (EU) have liberalized their abortion legislations over the last few years. [FN9] In addition, the strictest abortion bans have come under the scrutiny of the European supranational courts. In a landmark ruling, A., B. & C. v. Ireland, [FN10] decided in December 2010, the European Court of Human Rights (ECtHR) found that Ireland, the country in the EU with perhaps the most restrictive prohibition on abortion, [FN11] had violated the European Convention on Human Rights (ECHR) by failing to provide accessible and effective procedural mechanisms by which a woman could establish her fundamental right to a lawful abortion when her life was in peril due to her pregnancy. [FN12] The ruling generated widespread public reaction, [FN13] and the resulting dialogue on the most appropriate way of complying with the ECtHR's decision played a major role in the ensuing Irish electoral debate. [FN14] The purpose of this Article is to compare the constitutional dynamics at play in the field of abortion law in the U.S. federal and European multilevel constitutional systems. Other works already deal with the similarities and differences between the U.S. and European approaches to the complex questions raised by abortion. [FN15] These scholarly assessments, however, usually compare European countries individually with the U.S. When these assessments consider the jurisprudence of supranational jurisdictions (such as the ECtHR or the EU Court of Justice (ECJ)), it is mainly to better explain the internal legal framework of a specific European state. In this Article, I plan to take into account the European system as a whole. The European system, in fact, can be described as a multilevel constitutional architecture in which national, supranational (EU) and international (ECHR) laws intertwine. [FN16] The pluralist nature of the European constitutional architecture is particularly evident in the field of fundamental rights. Each of the three layers comprising the European structure is endowed with norms and institutions for the protection of human rights that overlap and interact with one another. [FN17] The dominant perception among European constitutional lawyers is that the European multilevel system is a sui generis architecture.
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However, as I have argued elsewhere, [FN18] the European constitutional system for the protection of fundamental rights can be meaningfully compared with other federal arrangements and can be better understood when compared as such. Therefore, this Article analyzes the ways in which the complex interactions among national and transnational norms and institutions in Europe affect abortion law by comparing the European multilevel architecture to the U.S. federal system. In particular, the Article claims that, whereas several differences exist in the regulation of abortion among the EU Member States, the growing impact of EU and ECHR law has generated new pressures and challenges in the domestic legal systems that restrict abortion. Consequently, a number of tensions and inconsistencies currently characterize the European abortion regime. As the comparative assessment of the U.S. constitutional experience emphasizes, however, analogous constitutional dynamics have also been at play in the U.S. system because of the interplay between state and federal rules. Abortion regulations among the states have varied greatly in the U.S. Since the 1970s, the federal judiciary has recognized that the U.S. Constitution protects a woman's right to choose whether to terminate her pregnancy. This recognition established a more consistent framework for the protection of abortion. At the same time, no uniform, federal abortion law exists in the U.S. because the states are relatively autonomous in regulating pregnancy and other family law issues. Using the U.S. experience as a comparative tool, this Article examines whether a similar development is foreseeable in Europe, with the recognition of a transnational minimum standard for the protection of abortion rights, which can be integrated or superseded, but not lowered by domestic rules. Hence, the Article considers the recent decision of the ECtHR in the case A., B. & C. v. Ireland, as well as the potential impact of the entry into force of the EU Lisbon Treaty and its binding Charter of Fundamental Rights. In comparing the peculiar dynamics that characterize the regulation and protection of abortion rights in pluralist, heterarchical constitutional arrangements like the European multilevel architecture and the U.S. federal system, this Article's aim is primarily analytical. [FN19] My goal is to underline, from a descriptive point of view, how comparable constitutional challenges arise from the two systems, rather than to advocate, from a prescriptive point of view, the migration of constitutional solutions from one system to the other. [FN20] The U.S. example is used as a mirror to better appreciate the complexities and tensions that are at play in the European framework of abortion laws--not as a model that should be imported into the European context. The Article proceeds as follows Section 1 summarizes EU Member States' abortion laws. Section 2 describes the growing influence that the EU and the ECHR exercise upon domestic abortion laws and highlights the challenges and tensions that emerge from this overlap. Section 3 argues that these inconsistencies are neither unique nor exceptional and explains how comparable dynamics have also been at play in the U.S. federal system. Section 4 analyzes the recent decision of the ECtHR in A., B. & C. v. Ireland and evaluates its implication for the protection of abortion rights in Europe. Finally, Section 5 assesses the impact of the entry into force of the Lisbon Treaty and discusses the potential role of the EU Charter of Fundamental Rights in the review of domestic abortion laws. Before getting started, I believe a final warning is in order: I am aware that when dealing with a controversial topic such as abortion, it is difficult for an author to resist the influence of his or her personal conceptions regarding the serious moral questions at the core of abortion issues. From this point of view, the very fact that I formulate the issue as a woman's right to an abortion will reveal my inclination towards a more liberal position, which supports the protection of abortion [FN21] --a position with which pro-life advocates would certainly disagree. Having revealed my subjective viewpoint on the moral issue presented, I have sought to adopt, throughout my assessment, an analytical stance, which will use a comparative methodology to explore the complex constitutional phenomena characterizing the European abortion regime for what they are, rather than for what they should be. In the concluding part of the Article, however, I will abandon analytical neutrality and advance what is a normative argument in favor of greater protection for abortion rights at the supranational level in Europe. In a nutshell, I
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will emphasize how the existence in some EU states of strict criminal bans on abortion, coupled with the possibility for pregnant women to escape the prohibition by travelling to another EU state where abortion is permitted, has discriminatory effects upon well-off and low-income women, raising serious questions of equality. In discussing the future alternative scenarios for the European abortion regime, therefore, I will suggest that the creation of a system of soft pluralism, with stricter review of domestic abortion laws to ensure their conformity with transnational human rights standards, is an advisable option in the EU. II. STATES' ABORTION LAWS Abortion law in Europe is quite diversified. [FN22] A plurality of the EU Member States recognizes, in a more or less liberal fashion, a right--based mostly on statutory law--for a pregnant woman to have an abortion within a certain number of weeks from the inception of pregnancy. In several states, however, abortion is not regarded as a woman's right; rather, it is only permitted under certain conditions and pursuant to specific procedures, which often include mandated medical advice and counseling sessions. In addition, some EU Member States still have extremely restrictive abortion laws, which criminalize all forms of abortion, except when deemed necessary to save the life or protect the health of the pregnant woman from severe injury. Criminal bans on abortions appeared in the statute books of European states during the nineteenth century, originally to protect the life of women because, because medical techniques for abortion were then not considered sufficiently reliable to prevent endangering the health of the women. [FN23] Over time, however, these measures began to serve the purpose of safeguarding a traditional concept of the family and morals. [FN24] This view largely survived the enactment of post-World War II liberal Constitutions. Since the 1960s, however, social and political pressures to reform criminal bans on abortion began to rise in many countries of Western Europe. [FN25] Starting with the United Kingdom (U.K.), which legalized abortion in 1967, [FN26] measures legalizing or decriminalizing abortion were successfully enacted in a few years in Scandinavia, Austria, [FN27] France, [FN28] West Germany, [FN29] Italy, [FN30] and the Netherlands. [FN31] A second wave of reforms then took place between the late 1980s and 1990s in Belgium, [FN32] and--after the transition to democracy--in Greece [FN33] and Spain. [FN34] The collapse of the Soviet block, where abortion was already lawful, also prompted some of the new democracies of Central and Eastern Europe to enact legislation reaffirming the legality of abortion. [FN35] In the aftermath of unification, Germany revised its abortion legislation, harmonizing the (more restrictive) Western and (more liberal) Eastern German abortion laws. [FN36] In the last decade, liberal abortion legislation has been adopted in Portugal [FN37] and new, more permissive, abortion acts have been passed in France [FN38] and Spain. [FN39] Nevertheless, although there is a general trend toward the gradual liberalization of abortion laws in Europe, opposing pressures exist and merit attention. [FN40] In the late 1970s and early 1980s, Ireland tightened its antiabortion regime by reinstating the strict nineteenth century criminal ban on abortion and amending the Constitution to enshrine the fundamental right to life of the unborn. [FN41] Equally restrictive pulls emerged in some postCommunist countries of Central and Eastern Europe. Especially in Poland where abortion on demand was widely available during the Communist regime, reforms in the 1990s resulted in backward movement, with a substantial prohibition of the voluntary termination of pregnancies. [FN42] Despite the differences existing among the various abortion laws in Europe, it is useful to classify the national legislations in four models. Abortion is permitted in the first three legislative models: these models can be placed in a continuum from a more liberal to a more restrictive one, considering criteria such as the time-limitations during which a woman can have an abortion and the conditions and procedures that define a woman's right or ability to choose an abortion. [FN43] A fourth, alternative, model of legislation is represented by those EU Member States that prohibit abortion tout court, save in limited, exceptional circumstances. In these systems, the right to life of the un-
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born is regarded as paramount. As a consequence, women are denied any right to choose whether to terminate their pregnancies. The U.K. has a fairly liberal legislative model of abortion. [FN44] The Abortion Act 1967, [FN45] as amended by the Human Fertilisation and Embryology Act 1990, [FN46] states that pregnancy can be lawfully terminated up to th the 24 week if the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family. [FN47] In addition, abortion is always permitted if the termination is necessary to prevent grave permanent injury to the physical or mental health of the pregnant woman, [FN48] if the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated, [FN49] or if there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities. [FN50] The consent of two registered medical practitioners is required to perform an abortion, [FN51] except when terminating the pregnancy is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman. [FN52] Nevertheless, in determining whether the continuance of a pregnancy would involve a risk of injury to the health of a woman, doctors may also consider the pregnant woman's actual or reasonably foreseeable environment. [FN53] As a consequence, women may obtain elective abortions for a wide variety of social reasons. [FN54] Otherwise, the law neither sets counseling duties nor imposes waiting periods or parental / spousal consent / notification requirements. A different model of regulation of the right to abortion is represented by the 1978 Italian legislation, [FN55] shaped largely on the French Loi relative l'interruption volontaire de la grossesse of 1975, [FN56] which was, however, recently amended. [FN57] Abortion is decriminalized and can lawfully be obtained in the first ninety days of pregnancy when continuance of pregnancy, delivery or maternity would involve a serious risk for the physical and psychological health [of the woman] in light of her state of health, or her economic, social and family conditions or the circumstances in which conception occurred or in view of the anomalies and malformations of the fetus. [FN58] After the first trimester, abortion is only permitted when there is a medically certified risk for the life of the pregnant woman or for her physical and psychological health. [FN59] Before obtaining an abortion in the first trimester, however, women are required to undergo compulsory nondirective counseling. Social assistants, family planning centers, or the woman's physician must discuss together with the woman any possible alternative solution to abortion and help her to overcome all the problems of a social nature that may push her to seek an abortion. [FN60] If at the end of the counseling process a woman still wants an abortion, she has the right to receive a document certifying her pregnancy and her desire to terminate it. After a waiting period of seven days, she can obtain an abortion in any hospital or authorized private clinic. [FN61] Spousal notifications are suggested but not required by the law, [FN62] and the requirement of parental consent for minor aged girls seeking an abortion can also be lifted thorough a judicial bypass. [FN63] France provided a similar regulation in 1975, allowing a woman to seek an abortion within the first ten weeks of pregnancy, [FN64] after mandatory counseling, [FN65] and a seven-day waiting period. [FN66] In 2001, however, a new bill [FN67] extended the possibility of seeking a termination of pregnancy in a situation of stress up to the twelfth week. [FN68] More importantly, the new bill abolished the mandatory counseling procedure, except for girls underage. [FN69] Now, counseling is only systematically suggested, before and after the voluntary interruption of pregnancy. [FN70] A system akin to the Italian one, instead, has recently been adopted in Portugal. [FN71] A right to abortion exists by option of the woman, within the first ten weeks of pregnancy. [FN72] Women who seek an abortion must undergo mandatory counseling and a three-day mandatory waiting period has also been established. [FN73] Spain too has finally recently enacted a new abortion act [FN74] along the above-mentioned model, with the explicit purpose of reflecting the consensus of the international community in this field [FN75] and the legislative
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trend prevailing among [European] states. [FN76] Contrary to the Ley organica 9/1985, which simply stated that abortion will not be punishable [FN77] if performed with the consent of the woman by a physician at any time for medical reasons, within twelve weeks of pregnancy in the case of rape and up to the twenty-second week in case of fetal impairment, the new Ley organica 2/2010 has introduced a right to abortion at the request of the woman [FN78] up to the fourteenth week of pregnancy, after a three-day waiting period and a counseling meeting in which women are informed about the means of social assistance and public support available for mothers. [FN79] Abortion is then permitted until the twenty-second week on medical grounds and when there are risks of fetal impairment or with no limit if a medical team certifies that the fetus has no reasonable possibility of surviving delivery. [FN80] In contrast, Germany has the most restrictive model of abortion regulation among the EU Member States in which abortion is permitted. [FN81] After unification, an Act was adopted in 1992, [FN82] which, in order to harmonize the law in force in East Germany [FN83] (where women had a right to abortion until the twelfth week of pregnancy after mandatory counseling) and in West Germany [FN84] (where abortion was prohibited save on four enumerated grounds), [FN85] made first-trimester abortions lawful after mandatory counseling. Nevertheless, in 1993, the Bundesverfassungsgericht, following a 1975 precedent [FN86] quashing the first West German Abortion Act, [FN87] declared the 1992 Act unconstitutional, [FN88] arguing that the State had a duty to protect human life, and that, therefore, legislation ought to express a clear disapproval of abortions. [FN89] In reaction to this decision, the German Parliament enacted a new abortion Act in 1995, [FN90] amending, among other things, the Criminal Code. On the basis of the new law, abortion is unlawful, but may not be punished, [FN91] if it is performed at the request of the woman, by a medical practitioner, before the end of the twelfth week of pregnancy, after a mandatory counseling session and a three-day waiting period, [FN92] In contrast, abortion is not unlawful [FN93] if performed, at any time, under medical indication to prevent danger to the life of or serious harm to the health of the woman or, within the first twelve weeks of pregnancy, on criminal-ethical grounds, e.g., because the pregnancy was the result of rape. [FN94] The mandatory counseling process is a peculiar feature of the 1995 German abortion Act. [FN95] Following an explicit request by the Bundesverfassungsgericht, the law clarifies that the counseling must be pro-life oriented; [FN96] that is, the counseling must be directed toward encouraging the woman to continue the pregnancy and to open her to the perspective of a life with the child. Social assistants and family planning centers must therefore inform women that the unborn has a right to life and that abortion can only be performed under exceptional circumstances. From this point of view, the regulation of abortion via the instruments of criminal law and the imposition of a directive counseling procedure highlight the German legal system's restrictive attitude toward the voluntary interruption of pregnancy. [FN97] At the same time, however, the possibility for a woman to obtain an abortion during the first trimester, if she still wishes to do so after the mandatory counseling and three-day waiting period, differentiates the German law from the legislative model of the last group of EU countries--Malta, Poland and Ireland--where abortion is generally always prohibited, with only a few, narrowly tailored exceptions. [FN98] Poland swiftly enacted legislation banning elective abortion in 1993, following the collapse of the Communist regime. [FN99] The new Act permits abortion only if: (1) a physician, other than the one which performs the abortion, certifies that the pregnancy is endangering the mother's life or health; (2) up to viability (i.e., up to the twenty-fourth week), if the fetus is seriously impaired; or (3) up to the twelfth week, if pregnancy resulted from rape. [FN100] Terminating pregnancy outside these cases may be punished with three years' imprisonment. A legislative attempt in 1996 to reform the law and re-introduce a right to abortion in the first trimester on grounds of material or personal hardship failed. The Trybunal Konstytcyjny declared the bill incompatible with the Constitution, interpreting the right to life provision of the Polish Constitution as protecting the unborn. [FN101] Of all European countries, Ireland has the most restrictive legislation on abortion. [FN102] On the basis of the Offences Against the Person Act 1861, [FN103] the content of which was re-affirmed in the Health (Family Planning) Act 1979, [FN104] [e]very woman, being with child, who, with intent to procure her own miscarriage, shall
Page 7
unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent ... to procure the miscarriage ... shall be liable to be kept in penal servitude for life. [FN105] Contrary to the interpretation of the 1861 Act offered by the English courts, [FN106] Irish tribunals have traditionally adopted a narrow construction of the provision excluding the lifting of criminal sanctions, even when abortion is carried out to preserve the life or the health of the woman. [FN107] In 1983, to prevent a possible recognition of a right to abortion by judicial fiat, [FN108] an amendment to the Irish Constitution was adopted by popular referendum, which enshrined a right to life of the unborn in Irish fundamental law. [FN109] According to the Eighth Amendment, codified as Article 40.3.3 of the Irish Constitution, the State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. [FN110] The amendment generated a cluster of litigation. Much of this litigation dealt with the issue of whether the state could prohibit distribution of information on abortion services provided in other EU countries. This litigation involved the ECJ and the ECtHR [FN111] and eventually led to the adoption of two further constitutional amendments explicitly guaranteeing a right to travel to other states in order to obtain an abortion, [FN112] as well as a right to provide information about abortion services performed overseas. [FN113] The specific consequences of Article 40.3.3 on the prohibition of abortion were addressed in the seminal X. case. [FN114] This case involved a fourteen-year-old female rape victim who became pregnant. The girl wanted an abortion and showed clear signs of suicidal tendencies if she could not obtain one. Her family agreed to bring her to England for the abortion. On the Attorney General's application, however, the Irish High Court issued an injunction prohibiting the girl from leaving Ireland on the basis of the new constitutional provision protecting the life of the unborn. According to the Court, the risk that the defendant may take her own life if an order is made is much less and is of a different order of magnitude than the certainty that the life of the unborn will be terminated if the order is not made. [FN115] The decision of the High Court sparked widespread controversy and was quickly overruled by a majority of the Irish Supreme Court. On appeal, Chief Justice Finlay framed a new test to review the lawfulness of an abortion in light of Article 40.3.3 of the Irish Constitution: if it is established as a matter of probability that there is a real and substantial risk to the life, as distinct from the health, of the mother, which can only be avoided by the termination of her pregnancy, such termination is permissible. [FN116] The Court recognized that suicide could be considered as a real and substantial risk to the life of the woman and therefore concluded that the defendant had a right to obtain an abortion in Ireland. [FN117] Attempts have been made since the X. case to restrict the Supreme Court's interpretation of Article 40.3.3 by enacting new constitutional amendments directed at excluding suicide from the conditions that may justify a therapeutic abortion. All of these attempts, however, have failed in popular referenda. [FN118] As a result, the current status of abortion law in Ireland appears to be that, constitutionally, termination of pregnancy is unlawful unless it meets the conditions laid down by the Supreme Court in the X. case. [FN119] Women have both a constitutional right to travel to seek an abortion overseas and to obtain information about abortion services provided in other EU Member States pursuant to the 1995 Information Act. [FN120] However, no specific regulation exists on the basis of which a woman can establish her right to obtain a lawful abortion in Ireland on grounds of a real and serious risk to her life, including a risk of suicide. [FN121] In fact, no lawful abortion is known to have ever been carried out in Ireland, [FN122] effectively making Ireland the EU country in which abortion is most severely restricted. As the preceding survey clarifies, a variety of regulatory models exists in the EU Member States in the field of abortion law. In all legal systems, however, abortion is permitted at any time, at least on the law in the books, if necessary to save the life of the woman. Almost every country recognizes the right to an abortion on medical health grounds, to varying degrees. Further, a clear trend exists among a majority of states toward the legalization of elective abortion roughly within the first trimester of pregnancy, either upon the simple request of the woman, or upon the
Page 8
request of the woman certified (on wide social grounds) by medical doctors, or after a mandatory counseling period, be it of a. neutral or life-oriented- kind. Finally, all state abortion laws are subjected to the increasing influence of supranational laws. III. THE IMPACT OF SUPRANATIONAL LAW ON STATES' ABORTION LAWS In the last two decades, the legal orders of the EU and the ECHR have steadily increased their involvement in the field of abortion law, and both the ECJ and the ECtHR have reviewed states' abortion legislations with growing frequency. [FN123] Although the authority to regulate abortion rights remains primarily in the purview of the EU Member States, a series of substantive checks and procedural balances on the exercise of national sovereignty have been developed in this area, mainly by the jurisprudence of the two European supranational courts. [FN124] Indeed, as David Cole has argued, the interplay between European and domestic laws on abortion has now reached such a level of complexity that national isolationism is impossible, even on an issue as strongly felt as abortion. [FN125] In the 1991 Grogan case, [FN126] the ECJ had the opportunity to rule on the abortion issue in the context of a preliminary reference procedure from the Irish High Court. [FN127] In this case, the Society for the Protection of the Unborn Child (SPUC) had requested an injunction prohibiting the representatives of three student unions from advertising the names and contacts details of overseas abortion providers, arguing that the recently enacted Eighth Amendment to the Irish Constitution banned the publication of any such information. [FN128] In its preliminary reference, the High Court asked the ECJ whether abortion could be considered a service within the meaning of the European Economic Community (EEC) Treaty (EECT) [FN129] and, therefore, whether a national ban on information about abortion services overseas was contrary to EEC law, including the fundamental rights protected by EEC law. [FN130] Advocate General (AG) Van Gerven acknowledged that medical termination of pregnancy constituted a service within the meaning of the EECT. Therefore, he devoted most of his opinion to examining whether the Irish prohibition on distributing information about abortion services that are lawfully available in other EU states could be regarded as consistent with or not incompatible with the general principles of EU law, including respect for fundamental rights. [FN131] However, the AG found that the Irish restriction was justified in light of the public interest pursued by the state and of the high priority the Irish Constitution attached to the protection of unborn life. [FN132] In addition, the AG concluded that the ban on information sought by SPUC did not disproportionately infringe upon freedom of information, which is protected as a general principle of EEC law and is thus binding upon the Member States in an area covered by EEC law. [FN133] The ECJ followed only the very first part of the opinion of the AG, stating that medical termination of pregnancy, performed in accordance with the law of the State in which it is carried out, constitutes a service within the meaning of the EECT. [FN134] The ECJ rejected the contention made by SPUC that abortion could not be regarded as a service since it is immoral and stated that it would not substitute its assessment for that of the legislature in those Member States where the activities in question are practiced legally. [FN135] However, on the controversial question of the compatibility of the Irish ban on the publication of information with EEC law, the ECJ refused to take a position, arguing that the link between the Irish student unions and the U.K. abortion providers was too tenuous [FN136] to trigger the application of EEC law. [FN137] The ECJ, therefore, failed to address directly the confrontation between the Irish ban and EU fundamental rights, [FN138] showing a certain reluctance to deal with the thorny issue of abortion. [FN139] Nevertheless, by stating that a Member State had the power to prohibit student unions from distributing information about abortion clinics that are lawfully operating in another EU state, so long as the clinics in question have no involvement in the distribution of the said information, [FN140] the ECJ left open the possibility that, should a party directly connected to providing abortion become involved, the outcome could be different. [FN141] In addition, by concluding that abor-
Page 9
tion was a service within the meaning of the EECT, [FN142] the ECJ made clear that Ireland's treatment of access to abortion was not simply a matter of Irish law [FN143] but also a matter of concern for EU law. [FN144] Ireland understood the pressures arising from the EU legal system on domestic abortion legislation. On the eve of the approval of the Maastricht Treaty in 1992, Ireland obtained from its EU partners the enactment of an additional protocol to the EU Treaty stating that nothing in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland. [FN145] Nevertheless, the special case approach sought by Ireland produced domestic public outcry, [FN146] forcing Ireland to retract its position by adding a negative declaration to the EU Treaty, restricting the meaning of the Protocol. [FN147] Consequentially, it seems that the status of EU law vis--vis Irish abortion law has not changed very much at all. [FN148] The ECtHR has followed a more direct path toward involvement in abortion rights. [FN149] When the ECHR was adopted in 1950, abortion was of course still regarded as a criminal issue in all of the signatory parties. Therefore, it was not the intention of the drafters of the ECHR to codify a substantive limitation on the national powers to regulate abortion. [FN150] Nevertheless, the ECHR does include a number of provisions--such as the right to life, [FN151] the right to respect for private and family life, [FN152] and freedom of information [FN153] --which, over time, became increasingly relevant in litigation challenging Member States' abortion legislations. [FN154] Until the 1990s, the ECtHR did not have the opportunity to decide cases concerning national abortion laws. Prior th to the 1998 enactment of the 11 additional Protocol to the ECHR, all individual applications lodged before the ECtHR were first addressed by the European Human Rights Commission (ECommHR). [FN155] In the few abortion cases raised before the Strasbourg institution, the ECommHR adopted a prudent stand: [FN156] on the one hand, it declared inadmissible the challenges, based on the right-to-life provision of the ECHR, [FN157] made against some liberal domestic abortion laws (including the 1967 U.K. Abortion Act). [FN158] On the other hand, it rejected on the merits a challenge against the restrictive 1975 German abortion statute, which was raised on the basis of the rightto-privacy provision of the ECHR. [FN159] The first abortion case before the ECtHR arose out of the SPUC controversy in Ireland, which had previously compelled the ECJ to intervene. [FN160] Pursuant to Article 40.3.3 of the Irish Constitution, the SPUC had obtained an injunction from the Irish High Court, [FN161] later confirmed by the Supreme Court, [FN162] which perpetually prohibited two Dublin-based family planning and counseling clinics from providing information concerning the availability of abortion services in the U.K. [FN163] Having exhausted their domestic remedies, the two clinics lodged an appeal before the ECHR supervisory bodies, arguing that the Irish ban unduly limited their freedom of expression. The ECommHR declared the case admissible and, [FN164] in its preliminary report, found that the law violated Article 10 ECHR because the ban was not prescribed by law, since it was not reasonably foreseeable that Article 40.3.3 would have been interpreted as prohibiting the non-directive counseling conducted by the two clinics. [FN165] The decision of the ECommHR laid the foundation for the ruling of ECtHR in Open Door, [FN166] which also found a violation of Article 10 ECHR. [FN167] However, in Open Door, the ECtHR did not follow the reasoning of the ECommHR; rather, in a fifteen-to-eight majority opinion, the ECtHR concluded that the national measure under review could not pass judicial scrutiny, even under a more restrictive test. [FN168] According to the ECtHR, the prohibition barring the two clinics from providing information about abortion services overseas could be regarded as prescribed by law--that is, grounded in the Eighth Amendment to the Irish Constitution--and necessary to pursue the legitimate aim of the Irish State to protect the life of the unborn. [FN169] But, the absolute nature [FN170] of the restraint imposed on the applicants from receiving or imparting information was disproportionate to the aims pursued [FN171] and was thus in violation of the right to freedom of information. [FN172] After declaring in Open Door that a state's ban on the circulation of information about abortion was contrary to
Page 10
the ECHR's freedom-of-expression clause, [FN173] the ECtHR was asked to review a number of other national measures directly regulating abortion for their compatibility with the ECHR's right-to-life and right-to-privacy clauses. Whereas the ECtHR has rejected all pro-life claims raised against permissive state abortion laws, [FN174] it has also carefully avoided stating whether abortion is protected under the ECHR, [FN175] leaving to the contracting parties a margin of appreciation to determine the availability and legal status of abortion. [FN176] Yet, the ECtHR has squarely affirmed that legislation regulating abortion falls under the sphere of Article 8 [ECHR] and statutory abortion restrictions may constitute an interference with women's private lives. [FN177] In a series of cases challenging national laws on abortion on the basis of Article 2 ECHR, the ECtHR has deferred to domestic legislation, [FN178] rejecting the argument that the fetus could be regarded as a person within the meaning of the ECHR. [FN179] In Boso, [FN180] the Court upheld the Italian abortion statute, arguing that the domestic legislation struck a fair balance between, on the one hand, the need to ensure protection of the fetus and, on the other [hand], the woman's interests. [FN181] In addition, in Vo, [FN182] the ECtHR--while expressing its awareness that it was neither desirable, nor even possible as matters stood, to answer in the abstract the question when life begins and whether the unborn child is a person for the purposes of Article 2 of the [ECHR] [FN183]-concluded that the French law at issue did not violate the right-to-life clause of ECHR. [FN184] In Tysiqc, [FN185] however, the ECtHR took the important step of finding a violation of Article 8 ECHR in the operation of the restrictive Polish abortion law. [FN186] The case involved a Polish woman suffering from a pathological optical disease. Having become pregnant, the woman was informed by several medical practitioners that pregnancy and delivery might cause a serious deterioration in her optical condition. As a consequence, she sought a medical termination of pregnancy on the basis of Polish law, which permits abortion when pregnancy seriously threatens the health of the woman. [FN187] Nevertheless, the doctors refused to grant the woman the health certificate necessary to obtain an abortion in public hospitals. The woman was forced to deliver the baby and, as expected, her conditions deteriorated badly, and she became practically blind. [FN188] The applicant raised a facial challenge against the Polish abortion law, arguing that the prohibition on voluntary interruption of pregnancy amounted to an interference with her Article 8 ECHR right to respect for private life. [FN189] The ECtHR, instead, took the view that the circumstances of the applicant's case and in particular the nature of her complaint [we]re more appropriately examined from the standpoint of the respondent State's ... positive obligations. [FN190] According to the ECtHR, Article 8 ECHR establishes not only a negative limit on the power of the state to interfere with the person's physical and psychological integrity, but also a positive obligation [for the state] to secure to its citizens their right to effective respect for this integrity. [FN191] In the case at hand, the national authorities had failed to comply with this duty. [FN192] As highlighted by the ECtHR, the Polish abortion act did allow for termination of pregnancy on health grounds, an exception that the applicant's condition should certainly have triggered. Nevertheless, the Polish legislation lacked any effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in [the applicant's] case. [FN193] The absence of a clear, time-sensitive procedure for ascertaining in a fair and independent manner whether a woman had a right to interrupt her pregnancy on health grounds had a chilling effect on doctors when deciding whether the requirements of legal abortion are met in an individual case. [FN194] In the ECtHR's view, once the legislature decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it. [FN195] The decision of the ECtHR in Tysiqc is significant because it confirms that women's right to access legal abortions may not be illusory. [FN196] At the same time, in stressing the positive duties that states have in adopting all relevant measures to make legal abortion practically available, the ECtHR focused only on the procedural aspects of abortion law. The ECtHR followed the same approach in the D. case, [FN197] where it declared the complaint of a woman who could not obtain an abortion in Ireland on grounds of fetal impairments as inadmissible since the applicant had not explored all of the domestic procedural avenues that might have been available to make her claim heard,
Page 11
including a constitutional challenge to the Irish Supreme Court. [FN198] From this point of view, the approach of the ECHR judicial branch seems far more prudent than that of the Parliamentary Assembly of the Council of Europe, [FN199] which has recently, albeit in a non-binding form, expressed its concern that in many of the contracting states numerous conditions are imposed and restrict the effective access to safe, affordable, acceptable and appropriate abortion services. [FN200] The Parliamentary Assembly explicitly advocates that abortion should not be banned within reasonable gestational limits. [FN201] Rather, Tysiqc indicates the ECtHR's unwillingness to address substantive violations of abortion rights, even when there is a legal basis for abortion, and propensity to rely on procedural violations to remedy the wrong. [FN202] In conclusion, the jurisprudence of the ECJ and the ECtHR highlights the increasing impact of supranational law over states' regulations of abortion. [FN203] On the one hand, the ECJ--while strategically avoiding a clash with the state authorities on the human rights questions raised by a ban on the circulation of information about abortion [FN204]--has clearly affirmed that abortion represents a service within the meaning of EU law and is thus subjected to EU supervision. [FN205] On the other hand, the ECtHR--while falling short of recognizing a right to abortion in the penumbras of the ECHR [FN206] --has built up a solid jurisprudential framework, which prohibits states from abridging freedom of information about abortion services and requires them to ensure adequate procedural mechanisms to make the right to abortion, where it exists, effective. [FN207] From this point of view, a contextual analysis of the national abortion regulations and of the law of the EU and the ECHR illuminates the complex dynamics that arise in the European multilevel constitutional architecture. Although at this point, it appears that there is no direct legal incompatibility between the national laws, especially those dictating a restrictive regulation of abortion, and the principles established by supranational jurisdictions, several tensions and challenges shape the interrelationship between some national legal systems and the normative order established by the EU treaties and the ECHR. [FN208] Ireland can still prohibit abortion, as EU law does not prevent it from doing so. Nevertheless, EU law requires abortion to be treated as a service and demands that Irish people be allowed to seek all services, including abortions, overseas and be free to receive information about them. By the same token, Poland can still prohibit abortion save on health grounds, as ECHR law does not prevent it from doing so. Yet if abortion on health ground is permitted, ECHR law requires Poland to ensure that adequate and effective procedures are in place to this end. To make sense of this complex picture, I suggest employing the concept of inconsistency, as a catch-word that well describes the pressures and frictions emerging from the interplay of distinct bodies of laws pushing in opposite directions. [FN209] Until the 1990s, abortion law was exclusively in the purview of national states, with major variations in the choice of regulation pursued by the EU countries. However, also in this field, developments in both the framework of the EU and in the ECHR system have proven that--to quote the famous statement of Koen Lenaerts--there is simply no nucleus of sovereignty that the Member States can invoke [FN210] against the evolution of supranational law. [FN211] The ECJ and the ECtHR have, step-by-step, developed a series of substantive checks and procedural balances that constrain the freedom of the Member States to deal with abortion as they see fit. This has created a web of complexities and inconsistencies. It is now necessary to investigate whether these dynamics are uniquely European and how such phenomena might prospectively develop in the future. IV. THE RIGHT TO ABORTION IN THE U.S. CONSTITUTIONAL EXPERIENCE As the previous section has highlighted, a series of pressures and complex constitutional tensions characterize the field of abortion rights in the European multilevel architecture. However, these inconsistencies are not a peculiarly European phenomenon; rather, analogous issues arise in other constitutional systems that are premised on regulatory federalism regarding abortion policy. [FN212] From a comparative point of view, it seems possible to argue, albeit with several caveats, that the dynamics arising in the field of abortion law in Europe are not dissimilar from those at
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play in those federal systems in which different abortion legislations are in force in the various constituent states, and in which a federal court must review the states' regulations on the basis of a transnational law protecting fundamental rights. [FN213] As Stephen Gardbaum has convincingly explained, this seems to be particularly the case in the United States of America (U.S.). [FN214] Whereas in other federal systems, such as Canada or Switzerland, criminal law and, by implication, the regulation of abortion, is a field of federal competence [FN215] and is thus subjected to a uniform federal legislation, or lack thereof, [FN216] in the U.S., jurisdiction over criminal law and abortion belongs to the constituent states, albeit under constraints imposed by the federal government. [FN217] In addition, contrary to other federal countries such as Australia, where criminal law and, by implication, the regulation of abortion, is also within the competences of the constituent states [FN218] but is essentially addressed in a uniform manner, [FN219] the U.S. has historically displayed a wide variation in the way in which the several states have regulated abortion rights. [FN220] Therefore, a comparative assessment of the U.S. constitutional experience can illuminate the challenges and developments at play in the field of abortion law in the European system. [FN221] A number of clarifications, however, are necessary. [FN222] The comparison between the constitutional dynamics shaping the issue of abortion in the U.S. and Europe neither implies that the two systems neither are identical nor suggests that the two systems will necessarily develop along the same lines. Despite the fact that the EU and the ECHR have increasingly taken on the features of full-blown constitutional structures, [FN223] there are still some significant differences between the European multilevel architecture and the U.S. federal system, and many of these differences are likely to remain for at least the near future. As I have argued elsewhere, [FN224] the U.S. federal system and the European multilevel architecture share an important structural analogy: they both feature a pluralist constitutional arrangement for the protection of fundamental rights in which rights are simultaneously recognized at the state and federal / supranational levels and adjudicated by a plurality of institutions operating in these multiple layers. [FN225] Hence, a comparative assessment of how the U.S. constitutional system has dealt with abortion rights issues over time raises useful insights for understanding the current European challenges. In addition, this comparison provides some cautionary tales that help observers appreciate the possible scenarios that might open up in the future in the European multilevel human rights system. [FN226] Abortion laws in the U.S. in the early 1960s closely resembled the European laws of the same time. During the nineteenth century, all of the states of the federation had enacted criminal bans on abortion, with the primary aim of protecting the potential mother from the abortionist. [FN227] By the turn of the century, however, anti-abortion laws had been redrafted with the goal of protecting the fetus rather than protecting the woman and had acquired a symbolic social curb ... [of] women's autonomy over their own bodies [and] ... sexual relations. [FN228] The standard format of abortion legislation in U.S. states typically made it a crime for anyone to perform an abortion and also usually made it a crime for a woman to obtain one. [FN229] Most states only allowed the termination of pregnancy when strictly necessary to save the woman's life. [FN230] By the 1960s, however, pressures had emerged in many states to change restrictive abortion legislations, either by reforming them or by abolishing them. [FN231] In 1962, the American Law Institute (ALI) published its Model Penal Code, which, in reconsidering the entire system of U.S. criminal law, also offered a model of reform for abortion laws. [FN232] The Code removed the criminal sanctions for the performance of an abortion when the medical practitioner certifies that there is substantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other felonious intercourse. [FN233] In the following years, a number of state legislatures amended their codes to incorporate the changes suggested by the ALL [FN234] Others adopted even more liberal reforms, allowing abortion on demand up to the first trimester or later. [FN235]
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Because the reform of slate laws proceeded unevenly, however, advocates for changes began to mount challenges against restrictive abortion laws before the state judiciary. [FN236] For instance, in 1969, the California Supreme Court found that the state's act prohibiting abortion, except when necessary to save the woman's life was unconstitutionally vague under the state Constitution. [FN237] Also the federal judiciary, however, soon became a forum for legal attacks against restrictive state abortion laws. Since the late 1920s, indeed, the U.S. Supreme Court had began interpreting the due process clause of the Fourteenth Amendment to the U.S. Constitution [FN238] to incorporate parts of the first ten amendments to the U.S. Constitution, commonly referred to as the Bill of Rights. [FN239] As a result of this transformative jurisprudence, the U.S. Supreme Court mandated states' adherence to and protection of many of the fundamental rights articulated in the Bill of Rights, and plaintiffs were empowered to rely on these rights to challenge states' legislations before the federal judiciary. [FN240] In the early 1970s, thus, federal district and circuit courts began to embrace claims that restrictive state abortion laws conflicted with the fundamental rights guarantees protected by the U.S. Constitution [FN241] and most specifically with, the right to privacy which the Supreme Court had recognized in Griswold v. Connecticut. [FN242] Needless to say, the eighteenth century Bill of Rights of the U.S. Constitution--much like the twentieth century fundamental laws of the EU Member States, the ECHR, and the EU treaties--does not contain an explicit, textual protection for the right to an abortion. [FN243] In the paramount 1973 Roe v. Wade decision, [FN244] however, the U.S. Supreme Court found that the federal Constitution protected an unenumerated right to abortion and that state laws prohibiting abortion were unconstitutional. [FN245] In Roe, the Supreme Court invalidated an old Texas statute, which made abortion a crime in all circumstances. [FN246] On the same day that the Court delivered its Roe judgment, it also struck down, in Doe v. Bolton, [FN247] another more modern abortion statute from Georgia that criminalized abortion except on medical grounds. [FN248] Writing for a seven-to-two majority of the Supreme Court, Justice Blackmun stated that the right to privacy was broad enough to encompass a woman's decision whether or not to terminate her pregnancy. [FN249] The Court rejected the argument that a woman's right to abortion was absolute; rather, it acknowledged that some state regulation in areas protected by that right is appropriate. [FN250] Like the ECtHR, [FN251] the Court refused to speculate on the difficult question of when life begins. [FN252] But it unequivocally stated that the fetus could not be regarded as a person within the meaning of the Fourteenth Amendment in order to justify restrictive states' antiabortion statutes. [FN253] In light of this constitutional assessment, the Court developed its well-known trimesters guidelines, clearly dictating the legitimate contours within which a state could regulate abortion: [FN254] (a) For the stage prior to approximately the end of the first trimester [of pregnancy], the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician; (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. [FN255] The Roe decision generated strong reactions [FN256] and effectively transformed the issue of abortion into the central legal problem of contemporary U.S. constitutional law. [FN257] Attempts were made at the federal level to overrule Roe through the enactment of a human life amendment [FN258] and to limit Roe's impact by prohibiting the financing of abortion through federal funds. [FN259] The main responses to the decision nevertheless occurred at the state level. [FN260] Indeed, Roe federalized (rather than nationalized) abortion policy, making state legislatures supporting players in abortion policymaking. [FN261] In many states, legislatures responded to Roe by enacting new restrictions that attempted to reduce the number of abortions without challenging what came to be called Roe's central premise'--that the Constitution barred states from making it a criminal offense to have or perform any abortion. [FN262]
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Whereas a handful of states enacted statutes that were facially incompatible with Roe and thus directly defied the decision of the Supreme Court, [FN263] other states passed legislation purporting to circumvent the Court's decision by denying public financing for abortion and setting strict conditions under which abortions would be allowed, such as requiring abortions to be performed in hospitals, requiring prior parental and spousal consent, and waiting periods. [FN264] In a series of decisions in the twenty years following Roe, the Supreme Court struck down many such state laws, including: the imposition of spousal consent, [FN265] mandatory waiting periods, [FN266] and the requirement that abortions be performed only in hospitals. [FN267] In Bigelow v. Virginia, [FN268] the Court struck down a Virginia statute, which, much like the Irish ban challenged before the ECJ in Grogan, [FN269] prohibited the advertising of abortion providers in other U.S. states. [FN270] At the same time, the Supreme Court upheld state laws imposing women's informed consent, [FN271] requiring parental notification, [FN272] and foreclosing both state and federal public funding for elective abortions. [FN273] In addition, under the influence of newly appointed judges and, possibly, under pressure from states' legislatures, the Court incrementally retracted from Roe's rigid trimester formula. [FN274] The reasoning of the Court in Roe had been criticized, from a liberal perspective, for overemphasizing the role of medical doctors in the decision and failing to address the issue of women's autonomy and equality. [FN275] In contrast, conservative critics found that Roe's prohibition of any state regulation of abortions during the first and second trimesters represented an unwarranted interference by the federal judicial branch in a matter that should be decided by the state legislature, through the states' democratic processes. [FN276] This eventually paved the way for the Court's 1992 decision in Planned Parenthood v. Casey. [FN277] In a plurality opinion jointly written by Justices Kennedy, O'Connor, and Souter, the Supreme Court upheld Roe's core holding that a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability. [FN278] However, it rejected Roe's trimester framework, replacing it with the undue burden test. [FN279] Under this test, a state's regulation of abortion would be regarded as invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. [FN280] Applying the undue burden test in Casey, the Supreme Court upheld a number of provisions in the Pennsylvania law at issue, including the imposition of informed consent and a waiting period for women seeking abortions. [FN281] However, the Court struck down the spousal notification requirement, arguing that due to the threat of violence that a woman might face if she had to inform her partner of her decision to seek an abortion, [FN282] the provision represented a substantial obstacle to a woman's right to choose and was comparable, for all practical effects, to a proviso outlaw[ing] abortion in all cases. [FN283] Therefore, it has been argued that Casey saved Roe. [FN284] At the same time, however, the Court made clear that state regulations [would] almost invariably pass[] muster, [FN285] unless they attempted to bar abortion tout court. [FN286] Although it has been argued that Casey somehow settled the abortion dispute, both by establishing a majoritarian, split-the-difference standards, and perhaps more importantly, by providing a template that helps states determine what types of abortion regulations can be constitutionally pursued, [FN287] the two decades following the decision featured a wide array of activities by both the federal and the state legislatures. [FN288] In 1994, the U.S. Congress enacted its first piece of legislation in the field of abortion law, making it a federal crime to harass and obstruct lawful providers of abortion. [FN289] In 2003, Congress enacted a ban on the performance of abortion through the intact dilate and extraction technique (referred to by its critics as partial birth abortion), [FN290] an act that-despite the existence of a contrary precedent, [FN291] federalism concerns, [FN292] and limited legislative findings [FN293] --was upheld by the Supreme Court in Gonzales v. Carhart. [FN294] At the state level, several scholars have emphasized how states were generally uninterested in pushing the boundaries of Casey [FN295] or Gonzales by enacting measures that challenged Roe outright. [FN296] Nevertheless, it appears that in the last twenty years many states have enacted increasingly restrictive abortion laws. [FN297] The latest and most remarkable example is perhaps represented by South Dakota, which recently introduced, for the first time
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in the U.S., a directive counseling requirement, similar to the German model, [FN298] which obliges women seeking an abortion to consult with pro-life pregnancy centers, even if they seek an abortion during the first trimester of pregnancy. [FN299] Because of such legislative experimentations, wide variations among the states' approaches to abortion exist today, even though all such legislation must take place within the framework of permissible limitations set by the Supreme Court. [FN300] The contemporary picture of abortion regulation in the states of the U.S. highlights a crazy-quilt pattern of the laws--a diversity that resembles the diversity of state law during the reform period of the late 1960s. [FN301] On the one hand, a number of states have passed legislation that restricts abortion to the greatest extent permitted by federal law. [FN302] To this end, together with more traditional provisions imposing parental notification, waiting periods, or informed consent requirements, [FN303] recent statutory enactments require women to hear about all potential medical complications that could arise from an abortion (even those complications that are irrelevant in their cases), [FN304] require women to hear ultrasounds of the fetus, [FN305] and, as mentioned, undergo directive counseling. [FN306] A series of demanding targeted regulations for abortion providers are also in force in several states. [FN307] Finally, whereas the unenforceable pre-Roe statutory prohibitions of abortion remain on many states' statutory books, [FN308] some states have enacted so-called trigger laws, which would automatically outlaw abortion if the Supreme Court were to overrule Roe. [FN309] On the other hand, a number of states have autonomously decided to supersede the federal standard by offering even greater constitutional protection for the right to an abortion than the federal minimum. [FN310] Following the lead of the California Supreme Court, [FN311] nine state superior courts have concluded that their state constitutions contained an independent right to abortion. [FN312] In addition, inferior courts in nine other states have recognized a state constitutional right to abortion or privacy. [FN313] Finally, broad recognition of the right to abortion without any major statutory limitations is provided in the legislation of many other states with the consequence that, even in the unlikely case that the Supreme Court overrules Roe, abortion would be lawful in a plurality of U.S. states. [FN314] In conclusion, the assessment of the U.S. constitutional experience in the field of abortion law highlights an evolving pattern. Historically, the competence over criminal law belonged to the several states and by the late 1960s, wide variations existed in the ways in which each state regulated abortion. The Supreme Court's Roe v. Wade decision imposed a unifying standard, recognizing a woman's fundamental right to decide privately whether to carry on a pregnancy and precluding states from criminalizing abortion. Since that decision, however, the Supreme Court has taken a number of retreating steps, recognizing wider room for states to maneuver, albeit within the limits of the Casey undue burden test. As a consequence, significant differences remain today in the regulation of abortion in the several U.S. states, but a woman's right to terminate her pregnancy--at least during the first trimester of pregnancy--is solidly grounded in the Supreme Court's interpretation of the U.S. Constitution. [FN315] V. RECENT DEVELOPMENTS IN THE PROTECTION OF ABORTION RIGHTS IN EUROPE: THE DECISION OF THE EUROPEAN COURT OF HUMAN RIGHTS IN A., B. & C. V. IRELAND The dynamics at play in the U.S. constitutional system have produced over time a more consistent framework for the regulation of abortion rights throughout the U.S., while still preserving a degree of diversity among the several states. The U.S. Supreme Court now ensures a minimum federal standard of protection for the right to an abortion: states can supersede this standard and integrate it, but they cannot place undue burdens that would substantially impair a woman's right to an abortion. In light of the U.S. experience, this section addresses the question whether a comparable evolution toward the definition of a supranational standard for the protection of abortion rights can be detected in the most recent transformations taking place in the law in the books and the law in action in the European human rights system. To this end, I focus on a recent decision of the ECtHR: the December 2010 Grand Chamber ruling in A., B. & C. v. Ireland [FN316]
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The case concerned three women, two Irish citizens and a Lithuanian citizen residing in Ireland, who had to travel to England to terminate their pregnancies due to the Irish prohibition on abortion. [FN317] The first applicant was an unmarried and unemployed woman, who already had four children and sought an abortion for reasons of health and well-being and out of a concern that an additional pregnancy would make it impossible for her to raise her children. [FN318] The second applicant had become pregnant unintentionally and had been initially warned that there was a substantial risk of an ectopic pregnancy. By the time she decided to seek an abortion, the risk had been excluded but the woman was willing to terminate her pregnancy out of well-being concerns. [FN319] The third applicant had become pregnant after a three-year chemotherapeutic treatment for a rare form of cancer. Although the pregnancy seriously threatened a recurrence of the cancer and imperiled her life, the woman was unable to obtain advice from Irish doctors on whether she was entitled to an abortion in Ireland, and she therefore decided to seek an abortion in England out of concern for her life. [FN320] All of the applicants complained that the Irish prohibition on abortion restricted their ECHR rights. [FN321] They maintained that the criminalization of abortion violated Article 3, since it produced stigma and prejudice against women seeking an abortion, which humiliated and degraded their dignity. [FN322] They also claimed that the prohibition of abortion was contrary to Article 14, which prohibits discrimination, and Article 13, which requires contracting parties to the ECHR to set up effective domestic remedies to vindicate their conventional rights. [FN323] The third applicant complained that the impossibility of obtaining advice as to the medical implications of a pregnancy for her cancer also amounted to a violation of Article 2, which enshrines the right to life. [FN324] Finally, all the applicants claimed that the Irish prohibition of abortion represented an undue interference with their right to respect for private life protected by Article 8. [FN325] The ECtHR began its opinion by explaining the Irish legal framework on abortion in great detail and reporting the criticisms and proposals for reform that had been discussed both at the national and international levels. [FN326] It then addressed the admissibility issue, distinguishing the present case from the D. case. [FN327] As far as the first two petitioners were concerned, the ECtHR stated that they could not be required to pursue and exhaust the domestic avenues of recourse before applying to the ECtHR as it was clear that a domestic complaint alleging a violation of the ECHR due to the impossible nature of obtaining an abortion in Ireland for health and well-being reasons did not have any prospect of success, going against ... the history, text and judicial interpretation of Article 40.3.3 of the [Irish] Constitution. [FN328] As far as the third petitioner was concerned, the ECtHR underlined how the lack of domestic legislation implementing the right to abortion to save the life of the mother was at the core of her complaint and therefore had to be addressed on the merits. On the substantive issues of the case, the ECtHR summarily rejected the claim of a violation of Article 3 ECHR, arguing that the facts alleged d [id] not disclose a level of severity falling within the scope of the contested provision. [FN329] The Court also rebuffed the third applicant's complaint under Article 2 ECHR because there was no legal impediment to the third applicant travelling for an abortion abroad. [FN330] The ECtHR then moved to address the alleged violation of Article 8 ECHR by considering separately the complaint of the first two applicants that they could not obtain an abortion for health and / or well-being reasons in Ireland, [FN331] and later, the complaint of the third petitioner about the absence of any legislative implementation of Article 40.3.3 of the [Irish] Constitution. [FN332] According to the ECtHR, although Article 8 ECHR could not be interpreted as conferring a right to abortion, [FN333] its well-consolidated case law made it clear that legislation regulating the interruption of pregnancy touches upon the sphere of the private life of the woman, [FN334] protected by Article 8 ECHR. [FN335] As a consequence: [t]he prohibition in Ireland of abortion where sought for reasons of health and / or well-being about which the first and second applicants complained, and the third applicant's alleged inability to establish her qualification for a lawful abortion in Ireland, come within the scope of their right to respect for their private
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lives and accordingly Article 8. [FN336] Nevertheless, the difference in the substantive complaints of the first and second applicants, on the one hand, and that of the third applicant on the other, require[d] separate determination of the question whether there ha[d] been a breach of Article 8. [FN337] The third applicant's case raised an issue that had already been considered by the ECtHR: that is, the existence of a series of positive obligations stemming from Article 8 ECHR that require the contracting parties to set-up an effective legal framework at the domestic level to verify whether the conditions for obtaining a lawful abortion had been met. [FN338] In contrast, the first two applicants' cases raised a novel issue: they presented the ECtHR with the first opportunity to develop certain general Convention principles on the minimum degree of protection to which a woman seeking an abortion would be entitled [FN339] and to expound upon the negative obligations that limit the authority of the contracting parties to prohibit voluntary termination of pregnancy. The ECtHR reached different conclusions in the two scenarios, agreeing unanimously on a violation of Article 8 ECHR with regard to the third applicant but dividing sharply on the complaint of the first two applicants. [FN340] In the case of the third applicant, the ECtHR, by drawing heavily on the Tysiqc precedent, [FN341] remarked how Article 8 ECHR may also impose on a State certain positive obligations [FN342] and that these obligations may require the implementation, where appropriate, of specific measures in an abortion context. [FN343] The ECtHR underlined how, under the X. doctrine of the Irish Supreme Court, abortion could be obtained lawfully in Ireland when there was a real and substantial risk to the life of the mother--as distinct from the health of the mother--and this risk could only be avoided by a termination of the pregnancy. [FN344] The ECtHR then noted that the case of the third applicant would fit within this category; however, it found that no effective mechanisms existed under domestic law to ensure a right to an abortion in such lifesaving situations. [FN345] The ECtHR noted a variety of factors that revealed the ineffectiveness of Irish domestic law in ensuring that a woman could access an abortion when necessary to save her life. First, the ECtHR raised a number of concerns as to the effectiveness of [the medical] consultation procedure as a means of establishing the third applicant's qualification for a lawful abortion in Ireland. [FN346] The ECtHR emphasized that no legal framework existed whereby any difference of opinion between the woman and her doctor or between different doctors consulted, or whereby an understandable hesitancy on the part of a woman or doctor, could be examined and resolved. [FN347] The ECtHR then remarked how the existence of severe criminal sanctions for unlawful abortions constitute[s] a significant chilling factor for both women and doctors in the medical consultation process. [FN348] Second, the ECtHR underlined how a constitutional complaint was not a satisfactory means of protecting the third applicant's right to respect for her private life. Constitutional courts are not the appropriate fora for the primary determination as to whether a woman qualifies for an abortion which is lawfully available in a State [FN349] because it would be wrong to turn the High Court into a licensing authority for abortions. [FN350] Furthermore, it would be equally inappropriate to require women to take on such complex constitutional proceedings when their underlying constitutional right to an abortion in the case of a qualifying risk to life was not disputable. [FN351] The ECtHR concluded that Ireland had violated Article 8 ECHR by failing to provide the third applicant, whose life was at risk due to her pregnancy, with adequate procedures by which she could establish her right to a lawful abortion in Ireland. In the ECtHR's view: [t]he uncertainty generated by the lack of legislative implementation of Article 40.3.3 [of the Irish Constitution], and more particularly by the lack of effective and accessible procedures to establish a right to an abortion under that provision, has resulted in a striking discordance between the theoretical right to a lawful abortion in Ireland on grounds of a relevant risk to a woman's life and the reality of its practical implementation. [FN352]
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The ECtHR found that this amounted to a violation of Article 8 ECHR. In contrast, in the case of the first two applicants, eleven judges out of seventeen of the ECtHR's Grand Chamber concluded that Ireland had not violated the negative obligations stemming from Article 8 ECHR, which prohibits contracting parties from interfering with the right to respect for private life. The majority of the ECtHR acknowledged that the prohibition of the termination of the first and second applicants' pregnancies sought for reasons of health and / or well-being amounted to an interference with their right to respect for their private lives. [FN353] However, in undertaking the three-tier proportionality test, required by Article 8(2) ECHR to verify whether the interference was in accordance with the law, pursued a legitimate aim, and was necessary in a democratic society, [FN354] the ECtHR concluded that the Irish prohibition of abortion did not disproportionately interfere with the first and second applicants' right to respect for private life. [FN355] On the first issue, whether the interference with Article 8 ECHR was in accordance with the law, the ECtHR simply recalled its Open Door ruling. [FN356] On the second issue, whether the interference pursued a legitimate aim, the ECtHR remarked how under Irish law, the right to life of the unborn was based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum and which have not been demonstrated to have relevantly changed since then. [FN357] The ECtHR hence affirmed that the impugned restriction ... pursued the legitimate aim of the protection of morals. [FN358] Finally, on the third and most relevant question, whether the interference with Article 8 ECHR was necessary in a democratic society, the ECtHR clarified that in the present case, it had to examine whether the prohibition of abortion in Ireland for health and / or well-being reasons struck a fair balance between, on the one hand, the first and second applicants' right to respect for their private lives under Article 8 and, on the other hand, profound moral values of the Irish people. [FN359] Given the acute sensitivity of the moral and ethical issues raised by the question of abortion, [FN360] however, the ECtHR decided that Ireland enjoyed a broad margin of appreciation [FN361] in determining whether a fair balance was struck between the two conflicting values. [FN362] The ECtHR also examined whether this wide margin of appreciation is narrowed by the existence of a relevant consensus among the other European states and, significantly, underlined how a substantial majority of the Contracting States of the Council of Europe ... allow abortion on broader grounds than accorded under Irish law. [FN363] In the factual part of the decision, the ECtHR had already remarked how: Abortion is available on request (according to certain criteria including gestational limits) in some 30 Contracting States. An abortion justified on health grounds is available in some 40 Contracting States and justified on well-being grounds in some 35 such States. Three Contracting States prohibit abortion in all circumstances (Andorra, Malta and San Marino). In recent years, certain States have extended the grounds on which abortion can be obtained (Monaco, Montenegro, Portugal and Spain). [FN364] Despite the existence of a clear European trend in favor of the legalization of abortion, [FN365] the majority of the ECtHR denied that this consensus decisively narrow[ed] the broad margin of appreciation of the State. [FN366] To justify this conclusion, the ECtHR affirmed that there was no agreement on the scientific and legal definition of the beginning of life [FN367] and that this consensus [could] not be a decisive factor in the Court's examination of whether the impugned prohibition on abortion in Ireland for health and well-being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive interpretation of the Convention. [FN368] Therefore, the ECtHR denied that the prohibition in Ireland of abortion for health and well-being reasons, based as it is on the profound moral views of the Irish people as to the nature of life ... and as to the consequent protection to be accorded to the right to life of the unborn, exceed[ed] the margin of appreciation accorded in that respect to the Irish State. [FN369] In addition, the ECtHR mentioned in passing how Irish women still had the option of lawfully travelling to another State [FN370] to seek an abortion and to receive information about abortion services overseas (without considering, however, the discriminatory effects that this possibility has on high-income and low-income women). [FN371] The ECtHR thus concluded that there had been no violation of Article 8 ECHR as regards the first
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and second applicants. The decision of the majority of the ECtHR prompted a vigorous dissent by six judges. In a joint opinion, the minority disagreed with the majority's finding that Ireland had not violated Article 8 ECHR with regard to the first and second applicants and blamed the majority for: [I]nappropriately conflat[ing] ... the question of the beginning of life (and, as a consequence, the right to life), the States' margin of appreciation in this regard, with the margin of appreciation that States have in weighing the right to life of the fetus against the right to life of the mother or her right to health and well-being. [FN372] Rather, the dissenting judges argued that the court should consider two elements when applying the proportionality test. The first element considered was the existence of a clear ... consensus amongst a substantial majority of the Contracting States of the Council of Europe towards allowing abortion. [FN373] According to the dissenting judges, the precedents of the ECtHR demonstrated that, whenever a consensus existed, this decisively narrow[ed] the margin of appreciation given to the Member States. [FN374] As the dissent's opinion emphasized: [T]his approach is commensurate with the harmonising role of the Convention's case-law: indeed, one of the paramount functions of the case-law is to gradually create a harmonious application of human rights protection, cutting across the national boundaries of the Contracting States and allowing the individuals within their jurisdiction to enjoy, without discrimination, equal protection regardless of their place of residence. [FN375] Given the existence of a strong consensus in the case at hand, [FN376] according to the dissenting judges, the decision of the ECtHR to refrain from narrowing the margin of appreciation granted to Ireland out of concern for the profound moral values of the Irish people amounted to a real and dangerous disregard of established precedents. [FN377] Indeed, in the dissent's view, it is only when no European consensus exists that the ECtHR should refrain [] from playing its harmonising role, preferring not to become the first European body to legislate on a matter still undecided at European level. [FN378] The second element that, according to the dissenting judges, the court should consider when applying the proportionality test was the striking [FN379] severity of the (rather archaic) law, [FN380] which punished abortion in Ireland with the sentence of life imprisonment. [FN381] The dissenting judges concluded that it was clear that in the circumstances of the case there has been a violation of Article 8 with regard to the first two applicants. [FN382] In conclusion, the analysis of A., B. & C. v. Ireland reveals that the ECtHR has fallen short of bringing Europe along the path set forth by the U.S. Supreme Court in Roe v. Wade. [FN383] The ECtHR found a violation of Article 8 ECHR as far as the third applicant was concerned because Ireland had breached its positive obligations to set up an adequate domestic legal framework by which the petitioner could establish her right to a lawful abortion for lifesaving purposes. However, a majority of the ECtHR concluded that the Irish prohibition of abortion on health and well-being grounds did not amount to a disproportionate interference with the first and second applicants' rights to respect for private life. Yet, although the ECtHR has not delivered a decision analogous to Roe v. Wade, it is difficult to predict what the consequences of the ruling will be, both for the Member States and the future case law of the ECtHR. [FN384] Indeed, in. May 2011, the Fourth Section of the ECtHR delivered another innovative abortion decision that, widely quoting A., B. & C. v. Ireland, marked a further step toward the protection of the right to an abortion at the supranational level in Europe. The case, R.R. v. Poland, [FN385] concerned a Polish woman who, although she was informed since the early days of pregnancy that her fetus might be affected by a serious genetic disease, was not able to obtain the medical test needed to ascertain the impairment of the fetus and eventually delivered a baby affected by the Turner syndrome. In her application to the ECtHR, the woman complained that it was impossible for her to ob-
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tain timely prenatal tests because the medical doctors with whom she consulted had intentionally postponed all genetic examinations. Because of these deliberate medical delays, therefore, the woman was unable to obtain an abortion within the time limits provided by the law, which permits termination of pregnancy within the first twenty-four weeks for reasons of fetal impairment. [FN386] In its decision, the ECtHR ruled that Poland had violated Article 8 ECHR. By recalling its precedents, the ECtHR remarked that [w]hile a broad margin of appreciation is accorded to the State as regards the circumstances in which an abortion will be permitted in a State, once that decision is taken the legal framework devised for this purpose should be shaped in a coherent manner. [FN387] The ECtHR emphasized the critical importance [FN388] of the time factor in a woman's decision to terminate a pregnancy and underlined how it had not been demonstrated that Polish law as applied to the applicant's case contained any effective mechanisms which would have enabled the applicant to seek access to a diagnostic service, decisive for the possibility of exercising her right to take an informed decision as to whether to seek an abortion or not. [FN389] It thus concluded that the Polish authorities had failed to comply with their positive obligations to secure to the applicant effective respect for her private life and that there ha[d] therefore been a breach of Article 8. [FN390] In an unprecedented move, however, the ECtHR also found Poland in violation of Article 3 ECHR, which sets up an absolute prohibition against torture and inhumane and degrading treatments. In the ECtHR's view, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. [FN391] However, the circumstances of the case unequivocally led to the conclusion that this minimum threshold of severity had been passed. The ECtHR noted that the applicant had tried, repeatedly and with perseverance, through numerous visits to doctors and through her written requests and complaints, to obtain access to genetic tests which would have provided her with information confirming or dispelling her fears; to no avail. [FN392] In addition, it emphasized how the applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the fetus could be affected with some malformation. [FN393] As the ECtHR explained, however, although the woman suffered acute anguish ... [h]er concerns were not properly acknowledged and addressed by the health professionals dealing with her case ... [who showed no regard for] the temporal aspect of the applicant's predicament. [FN394] Because of the deliberate delay by the medical doctors, the woman obtained the results of the tests when it was already too late for her to make an informed decision on whether to continue the pregnancy or to have recourse to legal abortion as the time limit provided for by [the Polish Abortion Act] had already expired. [FN395] In light of the conduct of the public authorities, the ECtHR expressed its regret that the applicant was so shabbily treated by the doctors dealing with her case and concluded that the humiliation suffered by the woman and the impossibility of availing herself of a lawful abortion on fetal impairment grounds amounted to a violation of Article 3. [FN396] In the end, the R.R. v. Poland decision finding a violation of Article 3 ECHR in the Polish abortion context, suggests that the Grand Chamber ruling in A., B. & C. v. Ireland is not an obstacle for further judicial developments and greater supranational protection of the dignity of women in the field of abortion rights. In addition, the R.R. v. Poland decision predicts that the complex questions of balancing state sovereignty and women's autonomy will remain a core feature of the ECtHR case law in the years to come. [FN397] At the same, whether the creation of a more consistent framework for the regulation of abortion rights in Europe remains a possible scenario will also depend on transformations taking place in the EU constitutional system. VI. THE LISBON TREATY AND THE EU CHARTER OF FUNDAMENTAL RIGHTS: FROM HARD TO SOFT PLURALISM IN THE EUROPEAN ABORTION REGIME? The Lisbon Treaty, entered into force on December 1, 2009, [FN398] has significantly reshaped the EU human rights architecture and its connection with the systems for the protection of fundamental rights established at the na-
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tional and international levels. [FN399] The Lisbon Treaty rescued most of the substantive and institutional innovations contained in the abandoned 2003 Constitutional Treaty and can therefore be regarded as a momentous reform of the EU constitutional system. [FN400] Its potential impact on the protection of fundamental rights and on the controversial issue of the right to an abortion needs to be considered. The Lisbon Treaty has provided the legal basis for the accession of the EU to the ECHR, paving the way for external supervision by the ECtHR on the human rights conduct of the EU. [FN401] In addition, pursuant to the new Article 6(1) of the EU Treaty (TEU), the Charter of Fundamental Rights (CFR), [FN402] which was only proclaimed in 2001 by the EU institutions, has now acquired the same legal value as the other EU treaties (that is, the formal status of EU constitutional law). [FN403] The CFR is the first written EU Bill of Rights [FN404] and was initially conceived as a codification of the fundamental rights recognized by the ECJ. The CFR, however, contains a complete and coherent catalogue of rights that extends well beyond a mere jurisprudential restatement; rather, it features one of the most advanced human rights instruments worldwide. [FN405] Hence the CFR includes a number of provisions that are relevant to the issue of abortion including, safeguarding a right to life, [FN406] protecting private life [FN407] and recognizing a general principle of equality without discrimination. [FN408] The CFR binds all the EU institutions and the Member States when they act within the scope of application of EU law. [FN409] Since the ECJ had already acknowledged in Grogan that abortion constituted a service within the meaning of EU law, [FN410] it would appear that any national regulation on abortion would fall within the scope of application of EU law and would thus be subject to compliance with the fundamental rights principles contained in the CFR. [FN411] At the same time, whereas in the early 1990s, in the Grogan case, the ECJ was able to get around the Irish domestic ban on information about abortion services on purely economic grounds, [FN412] it would seem that today, given the binding nature of the CFR, any possible challenge to a national measure restricting abortion would inevitably require the ECJ to consider the human rights issues involved in the case. This clearly shifts the theoretical underpinnings of the ECJ's oversight from an internal market paradigm toward a fundamental rights paradigm. [FN413] The potential for the above scenario to take place in the abstract seems to be confirmed by the legal safeguards that a few EU Member States have adopted to prevent such a future development. [FN414] Protocol No. 30 on the Application of the CFR, [FN415] which Poland and the U.K. secured from the other EU Member States during the negotiations of the Lisbon Treaty, represents the first piece of evidence in this regard. [FN416] The Protocol is attached to the EU treaties and has their same legal status. It affirms that the CFR does not extend the ability of the [ECJ], or any court or tribunal of Poland or of the [U.K.], to find that the laws, regulations or administrative provisions, practices or action of Poland or of the [U.K.] are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. [FN417] The U.K. and Poland sought the adoption of the Protocol in order to limit the impact of the CFR upon their national legal systems. For the U.K., its support of the Protocol did not stem from a concern for its permissive abortion law, but, rather, out of fear that the social rights provisions of the CFR could destabilize its labor market. [FN418] In contrast, Poland primarily viewed the Protocol as a legal instrument to shield its. restrictive abortion regulation from EU supervision. [FN419] This is confirmed by the non-binding unilateral declaration No. 61 in which Poland makes further efforts to affirm its position that the CFR does not affect in any way the right of Member States to legislate in the sphere of public morality, family law, as well as the protection of human dignity and respect for human physical and moral integrity. [FN420] The redundancy with which the treaties affirm that the CFR does not extend the competences of the EU provides additional evidence of several Member States' concerns when considering a binding CFR; namely, its possible spillover into the domestic legal systems through the human rights adjudication of both the ECJ and the national courts. [FN421] This same idea is restated multiple times, including in Article 6(1)(2) TEU, in Article 51(2) of the CFR it-
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self, in the joint non-binding declaration No. 1 of the EU Member States annexed to the EU treaties, [FN422] and in the unilateral declaration No. 53 by the Czech Republic on the CFR. [FN423] In light of the Grogan case, it is uncertain whether these provisions will effectively prevent the ECJ from ruling on a new abortion case. [FN424] Still, importantly, the EU treaties contain other ad hoc clauses designed to protect specific national abortion laws. [FN425] For example, in its 2003 accession agreement to the EU, Malta obtained a special provision, Protocol No. 7, which leaves unaffected the application in the territory of Malta of national legislation relating to abortion. [FN426] Moreover, the consolidated version of the EU treaties post-Lisbon has preserved the 1992 Irish protocol (renumbering it as Protocol No. 35), [FN427] ensuring that nothing in the [EU treaties] shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland. [FN428] The December 2008 Conclusions adopted by the European Council after the rejection of the Lisbon Treaty in the first Irish referendum of 2008 and paving the way to the second, successful, Irish referendum in 2009, [FN429] provided an additional guarantee that the provisions of the Irish Constitution in relation to the right to life ... and the family are not in any way affected by the fact that the Treaty of Lisbon attributes legal status to the [CFR]. [FN430] Legal scholars debate whether these provisions of the EU treaties can be truly effective. [FN431] Contrary to the purely political declarations, the additional Protocols have the same legal value as the EU treaties; however, scholars have argued that, for instance, Protocol No. 30 is totally useless: it can not prohibit lawyers from requesting the application of the rights codified in the CFR. [FN432] In addition, if one considers that Protocol No. 30 purportedly only aims to clarify the application of the [CFR] in relation to the laws and administrative actions of Poland and the [U.K.] and of its justiciability within Poland and the [U.K.], [FN433] it would seem that its effect is not to opt-out from the CFR. [FN434] Rather, Protocol No. 30 is an exercise in smoke and mirrors, largely motivated for presentational reasons. [FN435] At the same time, the concessions granted in the Irish and Maltese abortion protocols, as well as the political reassurances that the European Council made to Ireland after the first unsuccessful referendum on the Lisbon Treaty, reveal a pattern. These concessions reflect a trend to accommodate in the EU treaties the distrust of several states toward the EU [FN436] and its human rights instruments. In this context, it is not easy to imagine that the ECJ will, in practice, fully incorporate the fundamental rights guarantees included in the CFR within the legal systems of the Member States, along the lines pursued by the U.S. Supreme Court in its gradual incorporation of the Bill of Rights into the legal systems of the states. [FN437] Nor is it easy to imagine that the ECJ will inaugurate a review of domestic legislation limiting abortion rights for its compatibility with the transnational human rights standard enshrined in the CFR at any time in the near future. [FN438] Still, as Miguel Poiares Maduro has persuasively argued, the CFR has a double constitutional life. [FN439] On the one hand, the CFR is regarded as a simple consolidation of the previous fundamental rights acquis aimed at guaranteeing regime legitimacy. [FN440] On the other hand, the CFR can be seen as a bill of rights of a political community, a constitutional document that is part of a complete political contract among citizens and that therefore legitimises new claims and an increased incorporation at the state level. [FN441] At the moment, it is impossible to predict which of these two visions will prevail. Yet, the U.S. experience with its Bill of Rights demonstrates that intentions and outcomes may differ greatly. [FN442] Nothing precludes the CFR from becoming a powerful federalizing element that sets the minimum human rights standard with which states shall comply to an extent that the Union can actually function. [FN443] De jure condendo, a similar development may even be advisable in the field of abortion rights on the basis of an equality argument. I do not intend to articulate here a complete normative theory of equality as a justification for protecting the right to abortion in Europe, comparable to the claims made by a number of distinguished U.S. scholars in favor of grounding the central premise of Roe v. Wade in the equal protection clause of the Fourteenth amendment of the U.S. Constitution. [FN444] What I want to briefly suggest, however, is that in the European context too, the regulation of abortion raises a number of equality concerns. [FN445] In fact, in a multilevel constitutional system, states'
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bans on abortion can produce discriminatory effects that are hard to accept. In the previous sections, I explained how a minority of EU Member States, notably Ireland, Poland, and Malta, have enacted extremely restrictive abortion laws, prohibiting women from obtaining an abortion at home except when necessary to save their lives or protect against grave injury their health. [FN446] At the same time, women residing in these states have a right-- protected under EU law, ECHR law, and now often also codified under domestic law--to be informed about abortion providers in other EU countries. In addition, women in these countries have the right to travel abroad if they want to terminate their pregnancies. [FN447] Women are able to exercise these rights without facing any risk of prosecution or subjection to the severe domestic criminal sanctions against abortion. [FN448] The possibility for a woman to escape the restrictive domestic abortion bans by going abroad and to avoid prosecution in her home state has shaped the jurisprudence of the European supranational courts. [FN449] In fact, this go-around is precisely what prompted AG Van Gerven in Grogan to conclude that the Irish ban on information about abortion services was not disproportionate. [FN450] In his opinion, AG Van Gerven clearly affirmed that a ban on pregnant women going abroad or a rule under which they would be subjected to unsolicited examinations upon their return from abroad [FN451] would never be tolerated under EU law. Furthermore, the ECtHR cited the fact that the Irish law granted women the ability to opt-out of the abortion ban by lawfully travelling to another State [FN452] as one of the justifications for its ruling in A., B. & C. v. Ireland. [FN453] The consequence of all this is that the Irish, Polish and Maltese abortion domestic bans, along with their equivalents, effectively constrain only those women who cannot side-step the national prohibition by travelling to another EU state. [FN454] In other words, these laws only prohibit abortion to those women who do not possess sufficient private economic resources to leave their countries to terminate a pregnancy. This situation is clearly discriminatory, as the undue burden of an unwanted pregnancy is only imposed on low-income women. [FN455] Nevertheless, in its argument before the ECtHR in A., B. & C. v. Ireland, the Irish government, while openly acknowledging that in 2007 at least 4,686 women travelled to the U.K. to have an abortion, [FN456] it still resolutely argued that Ireland's high protection of the unborn child's right to life justified a domestic prohibition on abortion. [FN457] In the same case, the majority of the ECtHR did not address whether the Irish abortion ban was compatible with the non-discrimination clause of the ECHR. The Grand Chamber majority laconically stated that: [Although] it may even be the case ... that the impugned prohibition on abortion is to a large extent ineffective in protecting the unborn in the sense that a substantial number of women take the option open to them in law of travelling abroad for an abortion not available in Ireland ... it is not possible to be more conclusive. [FN458] Yet a legal regime that discriminates between women by making abortion possible and lawful only for the women that can financially afford it and making it impossible and unlawful for the poor, conflicts with the principles of equality that should govern any liberal democratic constitutional system. [FN459] From this point of view, Article 21 of the CFR codifies a general principle of equality in the EU basic laws for the first time and expressly prohibits any discrimination on grounds of property. [FN460] De lege ferenda, therefore, it might be desirable for the ECJ, in cooperation with the national courts, to take the appropriate steps to enforce this fundamental guarantee of the CFR if necessary also by quashing national abortion legislations that discriminately impact low-income women. [FN461] Needless to say, because of the previously mentioned legal constraints on the application of the CFR, the scenario I am depicting is not likely to occur in the near future. In any case, a ruling by the ECJ that national bans on abortion violate the CFR would likely raise a loud public reaction, equivalent to that following Roe v. Wade: the decision would be welcomed by some and demonized by others. From a purely normative point of view, however, a judicial opinion stating that statutes prohibiting abortion are incompatible with the EU's non-discrimination principle would simply be the acknowledgment that restrictive domestic rules having a disparate impact on rich and poor wo-
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men can no longer be acceptable in an ever closer Union. In conclusion, the entry into force of the Lisbon Treaty represents a potential turning point for the protection of fundamental rights in the EU constitutional system. As the CFR, in particular, has acquired binding legal value, the EU will now be endowed with a comprehensive and advanced Bill of rights on the basis of which actions by the supranational institutions and the Member States that fall within the scope of application of EU law may be reviewed. [FN462] Nevertheless, whether this transformation will have a major impact on the domestic legal systems of the EU countries remains to be seen. Some states have inserted a number of legal caveats and reservations into the EU treaties in order to prevent the ECJ and the national courts from consistently making use of the CFR to review national laws, including abortion laws. [FN463] As things stand now, the European abortion regime reflects what may be called a system of hard pluralism. [FN464] Despite the existence of a growing consensus among the EU Member States in favor of legalizing abortion, relevant regulatory differences persist among EU countries. The rise of supranational law through the case law of the ECJ and the ECtHR has placed growing constraints upon and new challenges for the regulatory autonomy of the Member States, but has not reached the point of prohibiting states from maintaining restrictive abortion laws. Thus, while the possibility for pregnant women to travel from one state to another to seek termination of pregnancy is solidly grounded in the fabric of both EU and ECHR law, no minimum transnational standard for protecting abortion rights is enforced throughout Europe. Yet, from a normative standpoint, the existence of strict national abortion bans in a multilevel system in which resourceful women can evade the domestic restrictions by travelling to other EU states has discriminatory effects that undermine the principle of equality. In this situation, if the ECJ, in cooperation with national courts and under the CFR, were to review the most restrictive domestic abortion laws, it could foster the establishment of a less discriminatory legal regime. Such a regime may be called a system of soft pluralism. Under this framework, a woman's right to an elective abortion, at least in the early phase of pregnancy, would be recognized at the supranational level, while states would still be free to integrate (or qualify or supersede, but not impair) this supranational standard to reflect their domestic policy preferences. Indeed, as the United States' experience with abortion rights shows, the imposition of a uniform transnational standard that does not allow for any local variation is bound to fail in a federal union that is premised upon states maintaining a degree of autonomy. [FN465] At the same time, a minimum standard across the federal / multilevel architecture to protect a woman's right to choose whether to terminate her pregnancy appears to be a necessary condition to avoid discrimination and to ensure a single and comprehensive vision of justice for all members of the polity. [FN466] Whether the European abortion regime will evolve from a system of hard pluralism to one of soft pluralism, however, depends on the future role of the CFR and its potential for polity building in the EU. [FN467] VII. CONCLUSION At the dawn of the second decade of the twenty-first century, abortion and reproductive rights continue to remain extremely controversial topics on both sides of the Atlantic. In early April 2011 in the U.S., conservative opposition toward the allocation of federal funds to abortion providers almost derailed the difficult budget deal reached between Congress and the President and threatened to shut down the federal government. [FN468] Simultaneously in Europe, major protests accompanied the enactment by the Hungarian nationalist government of the new Constitution, which now includes a provision to protect embryonic and fetal life from the moment of conception, [FN469] a measure that critics describe as contrasting with EU fundamental rights and European constitutional values. [FN470] At the same time, as Ireland's continuing difficulties in implementing the ECtHR ruling indicate, nothing suggests that the heated constitutional debates over abortion are likely to scale down in the near future. [FN471] This Article has analyzed the implications that arise in the field of abortion law from the complex interaction
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among national and supranational laws in Europe. Section 1 surveyed the main regulatory models that emerge from the states' legislation and practice in the field of abortion law. It underlined the growing trend in favor of the protection of a right to voluntary termination of pregnancy in Europe and the exceptions to this consensus, reflected in the strong disapproval of abortion in the laws of countries such as Ireland, Malta, and Poland. Section 2 examined the rising impact of EU and ECHR law in the field of abortion law and explained how the case law of the ECJ and the ECtHR has incrementally produced a set of substantive checks and procedural balances on the autonomy of the Member States in the regulation of abortion. I have argued that the overlap between domestic and transnational norms in the European multilevel architecture generates new challenges and inconsistencies in the field of abortion law. Section 3, however, made it clear that the constitutional dynamics at play in the European multilevel system are not unique. Indeed, a comparative assessment highlights that a number of tensions have also characterized the U.S. constitutional experience with abortion law. While states' laws differed in the early 1970s, the Roe v. Wade decision of the U.S. Supreme Court established a federal constitutional right for women to interrupt their pregnancies. The recognition of a federal minimum standard for the protection of the right to an abortion, however, has not prevented the states from further intervening in the field and, as a result, a plurality of regulatory models are still in place today throughout the U.S. Whether the recent developments occurring in the European multilevel architecture point toward an analogous evolution is unclear. Section 4 examined the recent Grand Chamber decision of the ECtHR in A., B. & C. v. Ireland and explained why the ruling cannot be fully regarded as Europe's equivalent to Roe v. Wade. The ECtHR unanimously ruled that Ireland had violated the ECHR for failing to provide an adequate legal framework by which a woman whose life was in peril due to her pregnancy could establish her right to an abortion in Ireland. At the same time, however, a majority of the ECtHR rejected the facial challenge against the Irish abortion ban, recognizing, despite the growing European pro-choice consensus, a margin of appreciation to the ECHR contracting parties in the field of abortion law. Section 5 assessed the CFR and the alternative scenarios that opened up in the EU constitutional system after the entry into force of the Lisbon Treaty. A number of legal constraints have been placed in EU primary law to prevent the ECJ and the national courts from developing a substantive CFR-based review of Member States' restrictive abortion laws. Yet, as I have argued, from a normative point of view, a CFR-based review of Member States' abortion laws may be the only satisfactory solution to the discrimination resulting from a regime in which resourceful women are able to escape domestic abortion bans by travelling abroad, and poor women are not. Whether the CFR will play the same constitutionalizing role in the EU multilevel architecture that the Bill of Rights has played in the U.S. federal system is a tantalizing question that only the future will answer.
[FNa1]. PhD Researcher, Law Department, European University Institute. BA summa cum laude in European and Transnational Law at the University of Trento School of Law (Italy) (2006); JD summa cum laude in Constitutional Law at the University of Bologna School of Law (Italy) (2008); LLM in European, Comparative and International Law at the Law Department, European University Institute (2009). A first version of this paper was presented at the 9 th Jean Monnet Seminar: Advanced Issues of European Law: The First Year of the Treaty of Lisbon--Consolidation and Enlargement, in Dubrovnik, Croatia, on April 15, 2011, and greatly benefitted from the thorough and useful comments received from, among others, professors Marise Cremona, Bruno de Witte, Zdenek Khn, Miguel Maduro, Tamara Perisin, and Sins a Rodin. I am also in a debt of gratitude toward professors Lech Garlicki, Vicki Jackson, and Martin Scheinin who graciously read a draft of the article and shared their precious thoughts. Finally my warmest thanks go to Machteld Nijsten, the Law Librarian of the European University Institute, who, as an expert in the field of abortion laws in Europe and the United States, provided invaluable help with the bibliographical research. Needless to say, all responsibility for the content of the article remains my own. Further comments are welcome at Federico.Fabbrini@eui.eu.
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[FN1]. See MARY ANN GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 10-50 (1987). See also Marie-Thrse Meulders-Klein, Vie prive, vie familiale et droits de l'homme, 44 REVUE INTERNATIONALE DE DROIT COMPAR 767, 767 (1992). [FN2]. See LAURENCE TRIBE, ABORTION: THE CLASH OF ABSOLUTES 197 (1990); MARK TUSHNET, ABORTION: CONSTITUTIONAL ISSUES 115 (1996). [FN3]. See David Cole, Going to England: Irish Abortion Law and the European Community, 17 HASTINGS INT'L & COMP. L. REV. 113, 114-15 (1994); Rick Lawson, The Irish Abortion Cases: European Limits to National Sovereignty?, 1 EUR. J. OF HEALTH LAW 167, 167-83 (1994). [FN4]. See infra text accompanying notes 289-94. [FN5]. See Eric Eckholm, Across Country, Lawmakers Push Abortion Curbs, N.Y. TIMES, Jan. 22, 2011, at A1. [FN6]. See David Garrow, Significant Risks: Gonzales v Carhart and the Future of Abortion Law, SUP. CT. REV. 1, 46 (2008) (arguing that in the long run the hypothesis that federal constitutional protection [of abortion] will eventually recede toward an end-of-the-first-trimester benchmark, after which any legal abortion will require case-by-case medical review and approval, remains the historical best guess as to how the controversy will reach stasis). [FN7]. See H.B. 1217, 86th Sess. (S.D. 2011) (An Act to establish certain legislative findings pertaining to the decision of a pregnant mother considering termination of her relationship with her child by an abortion, to establish certain procedures to better insure that such decisions are voluntary, uncoerced, and informed, and to revise certain causes of action for professional negligence relating to performance of an abortion). [FN8]. See A.G. Sulzberger, Women Seeking Abortions in South Dakota to Get Anti-Abortion Advice, N.Y. TIMES, Mar. 23, 2011, at A16 (arguing that the law enacted on March 22, 2011 in South Dakota makes the state the first [in the U.S.] to require women who are seeking abortions to first attend a consultation). [FN9]. See infra text accompanying notes 25-39. [FN10]. A., B. & C. v. Ireland, App. No. 25579/05, [2010] Eur. Ct. H.R. 2032, available at http://www.echr.coe.int. [FN11]. See infra text accompanying notes 102-13. [FN12]. See Convention on the Protection of Human Rights and Fundamental Freedoms, Counc. Eur., Nov. 11, 1950, CETS No. 5 [hereinafter ECHR]; see also Carl O'Brien & Harry McGee, Irish Abortion Laws Breach Human Rights, Court Rules, IRISH TIMES, Dec. 16, 2010. [FN13]. See Aoife Carr, Anti Abortion Group Calls for Referendum, IRISH TIMES, Dec. 17, 2010; Kitty Holland, Judgment A Landmark for Irish Women, IRISH TIMES, Dec. 17, 2010. [FN14]. See Paul Cullen & Carl O'Brien, Abortion Becomes Election Issue After Court Ruling, IRISH TIMES, Dec. 17, 2010. As the February 25, 2011, election date neared, the debate about the economy and the grave crisis that had hit Ireland took the front lines. The issue of abortion and how to implement the ECtHR ruling was addressed in the manifestos of all political parties and was soon tackled by the new government. On June 16, 2011, the Department of Health released an action plan for the implementation of the judgment. In this plan, the Government inter alia committed to establish an Expert Group by November 2011, which would be charged with making recommendations on how to properly address the matter. Press Release, Dep't of Health, Action Plan Regarding A., B. and C. v. Ireland (Dec. 16, 2010), available at http://www.dohc.ie/press/releases/2011/20110616.html?lang=en. [FN15]. For a comparison of abortion law and politics in the U.S. and a selected number of European countries, see
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MAURO CAPPELLETTI & WILLIAM COHEN, COMPARATIVE CONSTITUTIONAL LAW (1979); VICKI C. JACKSON & MARK TUSHNET, COMPARATIVE CONSTITUTIONAL LAW 1, 1-140 (1999); Machteld Nijsten, Abortion and Constitutional Law: A Comparative European-American Study (unpublished Ph.D. 1990). [FN16]. On the concept of multi-level constitutionalism, see the works of Ingolf Pernice: Multilevel Constitutionalism and the Treaty of Amsterdam, 36 COMMON MKT. L. REV. 703 (1999); Multilevel Constitutionalism in the European Union, 27 EUROPEAN L. REV. 511 (2002); The Treaty of Lisbon: Multilevel Constitutionalism in Action, 15 COLUM. J. EUR. L. 349 (2009). [FN17]. On the pluralist European architecture for the protection of fundamental rights, see Miguel Poiares Maduro, Contrapunctual Law: Europe's Constitutional Pluralism in Action, in SOVEREIGNTY IN TRANSITION 501 (Neil Walker ed., 2003); Marta Cartabia, Europe and Rights: Taking Dialogue Seriously, 5 EUROPEAN CONST. L. REV. 5 (2009); AIDA TORRES PEREZ, CONFLICTS OF RIGHTS IN THE EUROPEAN UNION: A THEORY OF SUPRANATIONAL ADJUDICATION (2009). [FN18]. Federico Fabbrini, The European Multilevel System of Fundamental Rights Protection: A Neo-Federalist Perspective, JEAN MONNET WORKING PAPER NO. 15 (2010), available at http:// centers.law.nyu.edu/jeanmonnet/papers/10/101501.pdf. [FN19]. On the concept of constitutional heterarchy as the descriptive model of both the U.S. and the EU constitutional arrangements, see Daniel Halberstam, Constitutional Heterarchy: The Centrality of Conflict in the European Union and the United States, in RULING THE WORLD: CONSTITUTIONALISM, INTERNATIONAL LAW AND GLOBAL GOVERNANCE 326 (Jeffrey Dunoff & Joel Trachtman eds., 2009). [FN20]. On the potential of comparative constitutional law in fostering the migration of constitutional models and ideas, see Sujit Choudhry, Migration as a New Metaphor in Comparative Constitutional Law, in THE MIGRATION OF CONSTITUTIONAL IDEAS 1, 13-16 (Sujit Choudhry ed., 2006). [FN21]. For a classical liberal argument in favour of a woman's right to choose whether to seek an abortion, see generally RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA AND INDIVIDUAL FREEDOM (1994). [FN22]. For an overview of abortion regulation in the EU Member States, see generally Caroline Forder, Abortion: A Constitutional Problem in European Perspective, 1 MAASTRICHT J. EUR. & COMP. L. 56 (1994); ALBIN ESER & HANS-GEORG KOCH, ABORTION AND THE LAW: FROM INTERNATIONAL COMPARISON TO LEGAL POLICY (2005). For a summary of abortion legislation in Europe in 2009, see International Planned Parenthood Federation (IPPF), ABORTION LEGISLATION IN EUROPE, INTERNATIONAL PLANNED PARENTHOOD FEDERATION (2009), available at http:// www.ippfen.org/en/Resources/Publications/Abortion+Legislation+in+Europe.htm. [FN23]. See ESER & KOCH, supra note 22, at 19 [FN24]. Id. at 31. [FN25]. See Rebecca Cook & Bernard Dickens, Human Rights Dynamics of Abortion Law Reform, 25 HUM. RTS. Q. 3, 4-7 (2003). [FN26]. See infra text accompanying notes 45-54. [FN27]. Cf. Bundesgesetzblatt [BGBL], No. 60/1974, von 23 (Austria). The Act, which amended the Strafgesetzbuch [Criminal Code], was upheld by the Verfassungsgerichthof in its decision of 11 October 1974, VfGH 7400-JBL 1974.
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[FN28]. See infra text accompanying notes 64--70. [FN29]. See infra text accompanying notes 83-85. [FN30]. See infra text accompanying notes 55-58. [FN31]. Joyce Outshoorn, Policy-Making on Abortion: Arenas, Actors and Arguments in the Netherland, in ABORTION POLITICS 205, 206 (Dorothy McBride Stetson ed., 2003). [FN32]. See Perrine Humblet et al., Developments in Abortion Policy in a Context of Illegality: The Belgian Case from 1971 until 1990, 6 EUR. J. OF PUB. HEALTH 288 (1995). [FN33]. See Nomos (1978: 821) (Greece). [FN34]. See Beln Cambronero-Saiz et al., Abortion in Democratic Spain, 15 REPRODUCTIVE HEALTH MATTERS 85, 86 (2007). [FN35]. See Patrick Flood, Abortion and the Right to Life in Post-Communist Eastern Europe and Russia, 36 EAST EUROPEAN Q. 191 (2002). [FN36]. Eva Maleck-Lewy, Between Self-Determination and State Supervision: Women and the Abortion Law in Post-Unification Germany, SOCIAL POLITICS 62 (1995). [FN37]. See infra text accompanying notes 71-73. [FN38]. See infra text accompanying notes 67-70. [FN39]. See infra text accompanying notes 74-80. [FN40]. See ESER & KOCH, supra note 22, at 18. [FN41]. See JAMES KINGSTON & ANTHONY WHELAN, ABORTION AND THE LAW 4-5 (1997). [FN42]. See Andrzej Kulczycki, Abortion Policy in Postcommunist Europe: The Conflict in Poland, 21 POPULATION AND DEV. REV. 471,471-72 (1995). [FN43]. Cf. ESER & KOCH, supra note 22, at 42 (arguing that the creation of basic regulatory models is not dependent on one single differentiating criterion, but rather is based on a multi-factored approach). [FN44]. Note that the U.K. abortion legislation, however, applies in only Great Britain and not in Northern Ireland. See Abortion Act 1967, 15 Eliz. 2, c. 87, 7 (Eng.). [FN45]. Id. [FN46]. Human Fertilisation and Embryology Act 1990, 38 Eliz. 2, c. 37 (Eng.). [FN47]. Abortion Act, l(l)(a), as amended by Human Fertilisation and Embryology Act, 37(1). (Prior to the enactment of the Human Fertilisation and Embryology Act 1990, Abortion Act 1967, l(l)(a), allowed abortion, without specifying limits, whenever the termination of pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy was terminated. As such, the 1990 revisions have disentangled the original 1967 provision, setting a limit at the end of the second trimester for abortion on ground of physical and mental distress, while allowing abortion with no limits in case of a serious risk to the life of or permanent injury to the health of the preg-
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nant woman). [FN48]. Id. l(l)(b). [FN49]. Id. l(l)(c). [FN50]. Id. l(l)(d). [FN51]. Id. 1(1). [FN52]. Id. 1(4). [FN53]. Id. 1(2). [FN54]. See Christina Schlegel, Landmark in German Abortion Law: The German 1995 Compromise Compared with English Law, 11 INT'L J. L. POL'Y. & THE FAMILY 36, 51 (1997) (highlighting how although according to the letter of the law and the intent of the legislator, there is no abortion on demand in England, in fact a woman seeking an abortion only has to find two registered medical practitioners to certify the wide socio-medical grounds that justify abortion). [FN55]. Legge 22 maggio 1978, n. 194, in G.U. May 22, 1978, n. 140 (It.). In its decision of February 18, 1975, the Corte Costituzionale [Constitutional Court] had already declared unconstitutional the provision of the Italian Codice Penale [Criminal Code] punishing abortion to the extent to which it did not include an exception for a pregnant woman whose life was in peril. See Racc. uff. corte cost. 18 febbraio 1975, n. 27 (It.). For an overview of the Italian abortion law, see generally Lucio Valerio Moscarini, Aborto. Profili costituzionali e disciplina legislativa, in 1 ENCICLOPEDIA GIURIDICA TRECCANI (1988), ad vocem. [FN56]. Loi 75-17 du 17 janvier 1975 relative a l'interruption volontaire de la grossesse [Law 75-17 of January 17, 1975, on the voluntary interruption of pregnancy], JOURNAL OFFICIEL DE LA RPUBLIQUE FRANAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Jan. 18, 1975, p. 739. The law was challenged before the Conseil Constitutionnel [Constitutional Court], which declared it constitutional in its decision Conseil Constitutionnel decision No. 75-17DC, Jan 15, 1975 (Fr.). [FN57]. See infra text accompanying notes 67-73. [FN58]. L. n. 194/1978, art. 4 (It.) (la prosecuzione della gravidanza, il parto o la maternit comporterebbero un serio pericolo per la sua salute fisica o psichica [della donna], in relazione o al suo stato di salute, o alle sue condizioni economiche, o sociali o familiari, o alle circostanze in cui avvenuto il concepimento, o a previsioni di anomalie o malformazioni del concepito). [FN59]. Id. art. 6. [FN60]. Id. art. 5. [FN61]. Id. [FN62]. Id. art. 5. [FN63]. Id. art. 12. [FN64]. CODE DE LA SANT [Health Code], art. 161-1, introduced by Loi 75-17 du 17 janvier 1975 relative l'interruption volontaire de la grossesse [Law 75-17 of January 17, 1975 on the voluntary interruption of pregnancy], J.O. [OFFICIAL GAZETTE OF FRANCE], January 18, 1975, p. 739 (Fr.).
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[FN65]. Id. art. 161-4. [FN66]. Id. art. 161-5. [FN67]. Loi 2001-588 du 4 juillet 2001 relative l'interruption volontaire de la grossesse et la contraception [Law 2001-588 of July 4, 2001 on the voluntary interruption of pregnancy and contraception], JOURNAL OFFICIEL DE LA RPUBLIQUE FRANAISE [J.O.][OFFICIAL GAZETTE OF FRANCE], July 7, 2001, p. 10823. The law was challenged before the Conseil Constitutionnel. See Conseil Constitutional decision No. 2001-446 DC, June 27, 2001; Conseil Constitutionnel decision No. 2001-449 DC, July 4, 2001 (declaring the law consitutional). [FN68]. CODE DE LA SANT [Health Code], art. 2212-1, modified by Loi 2001-588, du 4 juillet 2001 (Fr.) (dans une de dtresse). [FN69]. Id. art. 2212-4, modified by Loi 2001-588, du 4 juillet 2001 (Fr.). [FN70]. Id. (systmatiquement propos, avant et aprs l'interruption volontaire de grossesse.). [FN71]. See Lei 16/2007 de 17 de Abril 2007, Excluso da ilicitude nos casos de interrupo voluntria da gravide [Law 16/2007 of April 17, 2007, Excluding unlawfulness in cases of voluntary interruption of pregnancy], 17.4 DIRIO DA REPBLICA [DAILY REPUBLIC] (2007) (Port.). [FN72]. CODIGO PENAL [Criminal Code], Art. 142(l)(e), modified by Art. 1, Law 16/2007 (por opo da mulher, nas primeiras 10 semanas de gravidez). [FN73]. Id. art. 142(4)(b). [FN74]. See Ley Organica de salud sexual y reproductive y de la interrucion voluntaria del embarazo [Sexual and Reproductive Health and Abortion Law] (B.O.E. 2010, 55) (Spain). The 2010 Act has been challenged before the Tribunal Constitucional [Constitutional Court], which still has to deliver its decision. See Julio Lazaro, El Constitucional admite el recurso del PP contra la ley del aborto [The Constitution allows the use of PP against abortion law], EL PAIS, (Spain), June 30, 2011, available at http:// www.elpais.com/articulo/sociedad/Constitucional/admite/recurso/PP/ley/aborto/elpepusoc/ 20100630elpepusoc_4/Tes. [FN75]. Sexual and Reproductive Health and Abortion Law, pmbl. I. ([e]l consenso de la comunidad internacional en esta materia). [FN76]. Id. pmbl. II (la tendencia normativa imperante en los pases [europeos]). [FN77]. CDIGO PENAL [Penal Code] art. 417 (Spain), as modified by Ley Organica 9/1985 (B.O.E. 1985, 166) (no ser punible). The 1985 Act was challenged before the Tribunal Constitutional [Constitutional court], which declared it constitutional in its decision in S.T.C. Apr. 11, 1985 (B.O.E. No. 53) (Spain). [FN78]. Sexual and Reproductive Health and Abortion Law, art. 14 (a peticin de la mujer). [FN79]. Id. art. 17. [FN80]. Id. art. 15. [FN81]. See Maleck-Lewy, supra note 36, at 62; see also Schlegel, supra note 54, at 52. [FN82]. See Schwangeren-und Familienhilfegesetz [Pregnancy and Family Assistance Act], July 27, 1992, BUNDESGESETZBLATT, Teil I [BGBL I] at 1398 (Ger.).
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[FN83]. See Gesetz ber die Unterbrechung der Schwangershaft [Act on Abortion], Mar. 9, 1972, GESETZBLATT DER DEUTSCHEN DEMOKRATISCHEN REPUBLIK, TEIL I [GDDR I] at 89 (Ger.). [FN84]. See Fnfzehntes Strafrechtsnderungsgesetz [Fifteenth Amendment to the Criminal Law], May 21, 1976, BGBL I at 1213. (Ger.). [FN85]. See id. art. 1(4) (declaring, on the basis of the indication model (lndikationslsung), that abortion was nicht strafbar [not punishable] if performed: (1) at any time, on medical grounds, (2) within the first twenty-two weeks, on embryopathic grounds, (3) within the first twelve weeks, on criminal-ethical grounds, and (4) within the first twelve weeks, on social grounds). See Maleck-Lewy, supra note 36, at 67. [FN86]. See Bundesverfassungsgericht [BVerfGE] [Federal Constitutional Court] Feb. 25, 1975, 39 BVerfGE 1, 1975 (Ger.). This first decision of the Bundesverfassungsgericht has been the object of extensive comparative analysis with the abortion decisions of the U.S. Supreme Court. See John Gorby & Robert Jonas, West German Abortion Decision: A Contrast to Roe v. Wade, 9 J. MARSHALL J. PRAC. & PROC. 551(1976). [FN87]. See Fnftes Gesetz zur Reform des Strafrechts [5.StrRG] [Fifth Act to Reform the Criminal Law], June 18, 1974, BGBl 1 at 1297 (Ger.). [FN88]. See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 28, 1993, 88 BVERFGE 203, 1993 (Ger.). [FN89]. Cf. Gerald Neuman, Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany, 43 AM. J. COMP. L. 273 (1995) (offering a comparative analysis of Abortion Law in Germany and the United States). [FN90]. See Schwangeren-und Familienhilfenderungsgesetz [SFHAndG] [Pregnancy and Family Assistance Act], Aug. 21, 1995, BGBL I at 1050 (Ger.). [FN91]. A subtle distinction is indeed drawn in German criminal law between the abstract lawfulness of an act and the effective possibility to sanction an act. As such, an act may be lawful and therefore, not punishable, or an act may be unlawful. In the latter case, however, an act might still not be punishable when other compelling reasons push for the lifting of the criminal sanction. The 1992 Act had made first trimester abortion not unlawful, but the Bundesverfassungsgericht declared the measure unconstitutional to the extent to which it failed to protect the right to life of the unborn. The 1995 Act, therefore, made abortion simply not punishable, in order to express a clear disapproval for abortion. See Neuman, supra note 89, at 285. [FN92]. STRAFGESETZBUCH [StGB] [PENAL CODE], Aug. 21, 1995, BGBL 1 218a(l) (Ger.) as amended by SFHAndG, art. 8. [FN93]. Id. 218a(2) (Ger.) (nicht Rechtswidrig). [FN94]. Id. 218a(3)(Ger.). [FN95]. See Nanette Funk, Abortion Counselling and the 1995 German Abortion Law, 12 CONN. J. INT'L L. 33, 51 (1997) (discussing the importance of the counseling process in the German abortion regime). [FN96]. See STGB, 219 (Ger.) as amended by SFHAndG, art. 8. [FN97]. See Funk, supra note 95, at 57; see also JACKSON & TUSHNET, supra note 15 (describing how the German abortion law limits abortions by requiring mandatory counseling).
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[FN98]. See Eser & Koch, supra note 22, at 46 (defining the prohibition model approach to abortion); Forder, supra note 22, at 85-86 (explaining how the German approach to abortion is less restrictive than the Irish one). [FN99]. See Magdalena Zolkos, Human Rights and Democracy in the Polish Abortion Debate, 3 ESSEX HUM. RIGHTS REV. 1-4 (2006). [FN100]. Act on Family-Planning, Human Embryo Protection and Conditions of Legal Pregnancy Termination, Jan. 7, 1993, 4(a) (an English translation of this provision is available in Tysiqc v. Poland, 2007-I Eur. Ct. H.R. 38). The fact that Poland only permits abortion in these three specific cases differentiates Polish legislation and makes it more restrictive than German legislation, where abortion is not punishable (although it is not lawful) in a wider array of circumstances. See supra text accompanying note 91. Still, undoubtedly, the Polish abortion law is more permissive, at least on the books, than the Irish one. See supra text accompanying note 99-101. [FN101]. Trybunal Konstytucyjny [Constitutional Court] May 28, 1997, K 26/96. But see the dissenting opinions of Judges Garlicki and Sokolewicza. See also Alicia Czerwinski, Sex, Politics and Religion: the Clash Between Poland and the European Union over Abortion, 32 DENV. J. INT'L L. & POL'Y 653, 659-60 (2004) (discussing the Polish abortion regime and its tensions with EU law). [FN102]. See Forder, supra note 22, at 57. See also TUSHNET, supra note 2, at 85. [FN103]. Offences Against the Person Act 1861, 24 & 25 Vict. 236, c. 100 (U.K.). Note that this Act was adopted by the U.K. and applied in Ireland because, until 1922, the U.K. exercised dominion over Ireland. See Gerard Hogan, An Introduction to Irish Public Law, 1 EUR. PUB. L. 37 (1995). [FN104]. Health (Family Planning) Act 1979 (Act No. 20/1979), 10 (Ir.). [FN105]. Offences Against the Person Act 1861, 58, 59. The same penalty applies to the doctor performing the abortion. It is a misdemeanor to supply a woman with the poisons or instruments necessary to procure an abortion. [FN106]. See R. v. Bourne, [1939] 1 K.B. 687. In this decision, the King's Bench, per Justice Macnaughten, affirmed that 58 of the Offences Against the Person Act 1861 ought to be construed in a reasonable sense, and, if the doctor is of the opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, abortion should be permitted on therapeutic grounds. Id. at 693-94. [FN107]. See Soc'y for the Prot. of Unborn Children Ireland Ltd. v. Grogan, [1989] I.R. 753 (Ir.) (where Justice Keane affirmed that the preponderance of judicial opinion in this country would suggest that the Bourne approach could not have been adopted ... consistently with the Constitution prior to the Eighth Amendment.). [FN108]. Note that in McGee v. Attorney General, [1974] I.R. 284 (S.C.) (Ir.), the Irish Supreme Court had recognized a fundamental right to privacy as either an unenumerated personal right or a familial right. As a result, there was widespread preoccupation that the Irish Supreme Court would follow the path of the U.S. Supreme Court, whose decision recognizing a right to abortion in Roe v. Wade, 410 U.S. 113 (1973), followed from its decision recognizing a right to privacy in Griswold v. Connecticut, 381 U.S. 479 (1965). See TUSHNET, supra note 2, at 86. On the U.S. constitutional issues of abortion law, see infra Section 3. [FN109]. See John Quinlan, The Right to Life of the Unborn--An Assessment of the Eighth Amendment to the Irish Constitution, 3 B.Y.U. L. REV. 371, 383-90 (1984). [FN110]. IR. CONST., 1937, art. 40.3.3, as amended by the Eighth Am. (1983). [FN111]. See infra Section 2.
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[FN112]. IR. CONST., 1937, art. 40.3.3(2), as amended by the Thirteenth Am. (1992). [FN113]. IR. CONST., 1937, art. 40.3.3(3), as amended by the Fourteenth Am. (1992). [FN114]. See Cole, supra note 3, at 129-35; Forder, supra note 22, at 57-58. [FN115]. Att'y Gen. v. X, [1992] I.L.R.M. 401, 410 (H. Ct.) (Ir.). [FN116]. Att'y Gen. v. X, [1992] 1 I.R. 41, 53-54 (S.C.) (Ir.). [FN117]. Id. at 55. Although the opinion of the Irish Supreme Court left some doubts as to whether abortion could be obtained in Ireland in case of real and substantial risk to the woman's life, this possibility was later confirmed by the High Court in A. and B. v. E. Health Bd., [1998] 1 I.L.R.M. 460, 478-79 (H. Ct.) (Ir.). [FN118]. The proposed Twelfth Amendment of the Constitution would have allowed abortion only when necessary to save the life, as distinct from the health, of the mother where there is an illness or disorder of the mother giving rise to real and substantial risk to her life, not being a risk of self-destruction. RAYMOND BYRNE & WILLIAM BINCHY, ANNUAL REVIEW OF IRISH LAW 1992, 195-97 (1992). The proposal was rejected in a popular referendum in November 1992. Id. The proposed Twenty-Fifth Amendment of the Constitution, Protection of Human Life in Pregnancy Bill, 2001 sched. 2 1(2), available at http://www.oireachtas.ie/documents/bills28/bills/2001/4801/b48b01d.pdf, would have allowed abortion only when necessary to prevent a real and substantial risk of loss of the woman's life other than by self-destruction. The proposal was rejected in a popular referendum in March 2002. RAYMOND BYRNE & WILLIAM BINCHY, ANNUAL REVIEW OF IRISH LAW 2001, at 113. [FN119]. DEP'T OF THE TAOISEACH, THE GREEN PAPER ON ABORTION 3 (1999), available at http://www.taoiseach.gov.ie/eng/Publications/Publications_ Archive/Publications_2006/Publications_for_1999/Green_Paper_on_Abortion.html. This report was prepared at the request of the Irish government to clarify the legal framework of abortion in Irish law. [FN120]. Regulation of Information (Services Outside the State for Termination of Pregnancy) Act 1995 (Act No. 5/1995) 3. The Act makes it legal to distribute information on abortion services abroad as long as the information does not promote abortion. The Irish Supreme Court was asked to decide on the abstract and a priori constitutionality of the Act, and it unanimously upheld it See In re Article 26 of the Constitution and the Regulation of Information (Services Outside the State for Termination of Pregnancy) Bill, [1995] 1 I.R. 1 (S.C.) (Ir.). [FN121]. See infra text accompanying notes 321-337. [FN122]. See IPPF, supra note 22, at 39. [FN123]. See Forder, supra note 22, at 56 (arguing that recent developments have shown that abortion also has a transnational character. It is no longer possible for one country to regulate abortion without regard to what is happening elsewhere in Europe. Both the [ECJ] and the [ECtHR] have bared their teeth, and shown that there are certain minimum standards which must be met). See also Lawson, supra note 3, at 167. For an assessment of the impact of international human rights law on national abortion legislation outside the European context, see generally Cyra Choudhury, Exporting Subjects: Globalizing Family Law Progress through International Human Rights, 32 MICH. J. INT'L L. 259 (2011). [FN124]. Compare the open view in Bryan Mercurio, Abortion In Ireland: An Analysis of the Legal Transformation Resulting from Membership in the European Union, 11 TUL. J. INT'L & COMP. L. 141 (2003), with the extremely sovereigntist view in Diarmuid Rossa Phelan, Right to Life of the Unborn v Promotion of Trade in Services: the
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European Court of Justice and the Normative Shaping of the European Union, 55 MOD. L. REV. 670 (1992). [FN125]. Cole, supra note 3, at 115. [FN126]. Case C-159/90, Soc'y for the Prot. of Unborn Children Ir. Ltd. v. Grogan, 1991 E.C.R. I-4685. [FN127]. The preliminary reference procedure is the technical mechanism, regulated by art. 267 TFEU (as in effect since 2009) (former EC Treaty art. 234), by which a lower state court can, or a state court of last instance shall, request from the ECJ a judgment on the interpretation of or on the validity of a EU law, which is of relevance in the case pending before it. Consolidated Version of the Treaty on the Functioning of the European Union, art. 267, March 30, 2010, 2010 O.J. (C 83) 164. See Jeffrey Cohen, The European Preliminary Reference and U.S. Supreme Court Review of State Court Judgments: A Study in Comparative Judicial Federalism, 44 AM. J. COMP. L. 421 (1996); Paul Craig, The Jurisdiction of the Community Courts Reconsidered, in THE EUROPEAN COURT OF JUSTICE 177 (Grainne de Brca & Joseph H.H. Weiler eds., 2001). [FN128]. Soc'y for the Prot. of Unborn Children Ir. Ltd. v. Grogan, [1989] I.R. 753, 758 (H. Ct). (Ir.). While the Irish High Court referred the question to the ECJ, it stayed the proceedings and did not grant the injunction requested by SPUC barring the student from publishing information about abortion providers. SPUC appealed to the Supreme Court, and the Supreme Court granted a temporary injunction but did not interfere with the High Court's decision to raise a preliminary reference to the ECJ. Rather, the Supreme Court gave the parties leave to apply to the High Court again in order adjust the injunction in light of the ECJ's decision. Prot. of Unborn Children Ir. Ltd. v. Grogan, [1989] 4 I.R. 760, 765-66 (S.C.) (Ir.). [FN129]. Cf. Cole, supra note 3, at 126-127; Mercurio, supra note 124, at 156-57. [FN130]. See Case 29/69, Stauder v. City of Ulm-Sozialamt, 1969 E.C.R. 419, 7 (affirming that fundamental rights are general principles of EU law). In the absence of a written EU catalog of fundamental rights (which was only recently introduced with the enactment of the EU Charter of Fundamental Rights) the ECJ for long time drew inspiration for its human rights jurisprudence from the common constitutional traditions of the Member States and especially from the ECHR. See Case 4/73, Nold v. Comm'n, 1974 E.C.R. 491, 13; Consolidated Version of the Treaty on European Union, art. 6, Mar. 30, 2010, 2010 O.J. (C 83) 19 [hereinafter EU Treaty]. See also Jos N. Cunha Rodriguez, The Incorporation of Fundamental Rights in the Community Legal Order, in THE PAST AND FUTURE OF EU LAW: THE CLASSICS OF EU LAW REVISITED ON THE 50TH ANNIVERSARY OF THE ROME TREATY 89, 91 (Miguel Poiares Maduro & Loic Azulai eds., 2010). The ECJ has recognized that both the EU institutions as well as the EU Member States must respect fundamental rights as general principles of EU law when acting within the scope of application of EU law. See Case 5/88, Wachauf v. Bundesamt fr Ernhrung und Forstwirtschaft, 1989 E.C.R. 2609, K 17-19; Case C-260/89, ERT, 1991 E.C.R. I-2925, 41. See also Zdenek Khn, Wachauf and ERT: On the Road from the Centralized to the Decentralized System of Judicial Review, in THE PAST AND FUTURE OF EU LAW: THE CLASSICS OF EU LAW REVISITED ON THE 50TH ANNIVERSARY OF THE ROME TREATY 151 (Miguel Poiares Maduro & Loic Azulai eds., 2010). [FN131]. Opinion of Advocate General Van Gerven, Case C-159/90, Soc'y for the Prot. of Unborn Children Ir. Ltd. v. Grogan, 1991 E.C.R. I-4685, 24. [FN132]. Id. 29. [FN133]. Id. 31. [FN134]. Grogan, 1991 E.C.R. I-4685, 21. [FN135]. Id. 20.
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[FN136]. Id. 24. [FN137]. See Lawson, supra note 3, 173; Cole, supra note 3, 128. [FN138]. See Siofra O'Leary, Freedom of Establishment and Freedom to Provide Services: The Court of Justice as a Reluctant Constitutional Adjudicator: An Examination of the Abortion Information Case, 16 EUR. L. REV. 138, 156(1992). [FN139]. Catherine Barnard, An Irish Solution, 142 NEW L.J. 526 (1992). [FN140]. Grogan, 1991 E.C.R. I-4685, 32. [FN141]. Mercurio, supra note 124, at 160. [FN142]. David O'Connor, Limiting Public Morality Exceptions to Free Movement in Europe: Ireland's Role in a Changing European Union, 22 BROOK. J. INT'L L. 695, 702-03 (1997). [FN143]. Cole, supra note 3, at 129. [FN144]. See Alison Young, The Charter, Constitution and Human Rights: Is This the Beginning or the End for Human Rights Protections by Community Law?, 11 EUR. PUB. L. 219, 230 (2005) (arguing that Grogan can be regarded as a triumph for the right of the woman to choose.). [FN145]. Protocol Annexed to the Treaty on European Union and to the Treaties Establishing the European Communities, Feb. 7, 1992, 1992 O.J. (C 224/130). [FN146]. Deirdre Curtin, The Constitutional Structure of the Union: A Europe of Bits and Pieces, 30 COMMON MARKET L. REV. 17, 48 (1993), (arguing that the negative reaction in Ireland to the additional Protocol negotiated by the Irish government was exacerbated by the Irish Supreme Court's ... ruling in [the] X [case]). [FN147]. Declaration of the High Contracting Parties to the Treaty on European Union, May 1, 1992, available at http:// europa.eu/abc/treaties/archives/en/entr3.htm, (stating that the Protocol shall not limit freedom either to travel between Member States or ... to obtain or make available in Ireland information relating to services lawfully available in Member States.). See Chris Hilson, The Unpatriotism of the Economic Constitution? Rights to Free Movement and their Impact on National and European Identity, 14 EUR. L. J. 186, 191-92 (2008). [FN148]. Cf. Forder, supra note 22, at 64 (arguing that the Declaration ... confirms the law as it was after SPUC v. Grogan and thus sets the course for a head-on collision between the Irish constitution and Community law). [FN149]. See Alec Stone Sweet, Sur la constitutionnalisation de la Convention europenne des droits de l'homme: cinquante ans aprs son installation, la Cour europenne des droits de l'homme conue comme une cour constitutionnelle [On the Constitutionalization of the European Convention on Human Rights: Fifty years after its Establishment, the European Court of Human Rights is Viewed as a Constitutional Court], 80 REVUE TRIMESTRIELLE DES DROITS DE L'HOMME 923 (2009) (describing the increasing importance of the ECHR as an instrument for the protection of fundamental rights in Europe and for the supervision of Member States' conduct). [FN150]. See generally Andrew Moravcsik, The Origins of Human Rights Regimes: Democratic Delegation in Postwar Europe, 54 INT'L ORG. 217 (2000) (providing an historical assessment of the origins of the ECHR); see also Danny Nicol, Original Intent and the European Convention on Human Rights, PUB. L. 1 52(2005). [FN151]. ECHR art. 2. [FN152]. ECHR art. 8.
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[FN153]. ECHR art. 10. [FN154]. The ECHR recognizes a detailed catalogue of civil and political rights that Member States can limit only according to the conditions provided by the ECHR itself and subject to the ECtHR's proportionality-based review. See Alec Stone Sweet & Jude Matthews, Proportionality, Balancing and Global Constitutionalism, 47 COLUM. J. TRANSNAT'L L. 73 (2008). [FN155]. The institutional machinery of the ECHR has been evolving. Individuals can directly lodge an application before the supervisory bodies of the ECHR, after they have exhausted the domestic avenues of recourse and if they th allege to be victims of a violation of fundamental rights by a contracting party. Until the enactment of the 11 additional Protocol to the ECHR, applications were first examined by the ECommHR, which sought to achieve a friendly settlement of the dispute and decided the issue with a decision. Decisions by the ECommHR could then be appealed th to the ECtHR. Since the 11 additional Protocol to the ECHR has come into force, instead, the ECommHR has been eliminated and individuals can directly lodge an application before the ECtHR under the conditions provided by Art. 35 ECHR. See Antonio Bultrini, II meccanismo di protezione dei diritti fondamentali istituito dalla Convenzione europea dei diritti dell'uomo: Cenni introduttivi [The Mechanism of Protection of Fundamental Rights Established by the European Convention on Human Rights: Introduction], in LA CONVENZIONE EUROPEA DEI DIRITTI DELL'UOMO: PROFILI ED EFFETTI NELL'ORDINAMENTO ITALIANO [THE EUROPEAN CONVENTION ON HUMAN RIGHTS: PROFILES AND EFFECTS ON ITALY] (Bruno Nascimbene ed., 2002) (describing the institutional machinery of the ECHR and its evolution); see also CLARE OVEY & ROBIN WHITE, THE EUROPEAN CONVENTION ON HUMAN RIGHTS, ch. 24 (4th ed. 2006) [FN156]. See Lawson, supra note 3, at 170. [FN157]. See David Harris, The Right to Life Under the European Convention on Human Rights, 1 MAASTRICHT J. EUR. & COMP. L. 122., 126-27 (1994). [FN158]. X. v. United Kingdom, App. No. 8416/79, 19 Eur. Comm'n H.R. Dec. & Rep. 244 (1980) (declaring inadmissible a challenge against the U.K. Abortion Act 1967 based on the claim that Art. 2 ECHR protected the right to life of the fetus). See also R.H. v. Norway, App. No. 17004/90, 73 Eur. Comm. H.R. Dec. & Rep. 155(1992) (declaring inadmissible a challenge against the Norwegian legislation on abortion based on the claim that Art. 2 protected the right to life of the fetus). [FN159]. See Brggemann and Scheuten v. Germany, App. No. 5969/75, 10 Eur. Comm'n H.R. Dec. & Rep. 100 (1977) (rejecting on the merits a challenge to the German regulation of abortion established by the 1976 Fnfzehntes Strafrechtsnderungsgesetz based on the claim that Art. 8 ECHR extended to protect the right of privacy of the woman to decide whether to terminate pregnancy). [FN160]. See Mercurio, supra note 124, at 155-56. [FN161]. See SPUC v. Open Door Counselling, [1988] I.R. 593 (H. Ct.) (Ir.). [FN162]. Id. at 618. [FN163]. Having succeed in obtaining a judicial injunction barring the two Dublin-based counseling clinics, Open Door Counselling Ltd. and Dublin Well Woman Centre Ltd., from circulating information about abortion service providers in the U.K., SPUC started a proceeding against the students associations. This proceeding then lead to the decision of the ECJ in Case C-159/90, Soc'y for the Prot. of Unborn Children Ir. Ltd. v. Grogan, 1991 E.C.R. I-4685. [FN164]. Open Door Counselling v. Ireland, App. No. 14234/88 & 14235/88, May 15, 1990. [FN165]. Open Door Counselling v. Ireland, App. No. 14234/88 & 14235/88, 14 Eur. Comm'n H.R. Dec. & Rep. 131
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(1991). [FN166]. Open Door Counselling v. Ireland, App. No. 14234/88 & 14235/88, 246 Eur. Ct. H.R. (ser. A), 73 (1992) [hereinafter Open Door]. [FN167]. See Lawson, supra note 3, at 177. [FN168]. See Cole, supra note 3, at 135. [FN169]. Open Door, 246 Eur. Ct. H.R. (ser. A), 60-63. [FN170]. Id. 73. [FN171]. Id. 80. [FN172]. The decision of the ECtHR reached an issue that, as mentioned supra in the text accompanying note 137, was not addressed by the ECJ in Case C-159/90, Grogan, 1991 ECR I-4685. AG Van Gerven, instead, had reached the issue and concluded that the Irish ban on the freedom to provide information about abortion providers overseas did not violate Article 10 ECHR. See supra text accompanying note 134. [FN173]. See Cole, supra note 3, at 138. [FN174]. See Christina Zampas & Jaime Gher, Abortion as a Human Rights - International and Regional Standards, 8 HUM. R. L. REV. 249, 264 (2008). [FN175]. Id. at 276. [FN176]. On the doctrine of the ECtHR's margin of appreciation, see generally Eva Brems, The Margin of Appreciation in the Case-law of the European Court of Human Rights, 56 ZEITSCHRIFT FR AUSLNDISCHES FFENTLICHES RECHT UND VLKERRECHT 240 (1996); Palmina Tanzarella, Il margine di apprezzamento [The Margin of Appreciation], in I DIRITTI IN AZIONE [RIGHTS IN ACTION] 14 (Marta Cartabia ed., 2007). [FN177]. Zampas & Gher, supra note 174, at 276. [FN178]. Art. 2(1) ECHR (Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law). See also Zampas & Gher, supra note 174, at 264-65 (discussing how each of the abortion laws at issue in these cases were fairly liberal. It is unclear whether the ECtHR would accord similar deference to Member States with more restrictive abortion laws.). [FN179]. See Jakob Pichon, Does the Unborn Child Have a Right to Life? The Insufficient Answer of the European Court of Human Rights, 7 GERMAN L. J. 433, 433 (2006); Lorenza Violini & Alessandra Osti, he linee di demarcazione della vita umana [The Lines of Demarcation of Human Life], in 1 DIRITTI IN AZIONE [RIGHTS IN ACTION] 185, 222 (Marta Cartabia ed., 2007). [FN180]. Boso v. Italy, App. No. 50490/99, 2002-VII Eur. Ct. H.R. [FN181]. Id. 1. [FN182]. Vo v. France, App. No. 53924/00, 2004-VIII Eur. Ct. H.R. [FN183]. Id. 85.
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[FN184]. See Evans v. United Kingdom, App. No. 6339/05, 2007 Eur. Ct. H.R. (declining to extend the protection of the right-to-life provision of Article 2 ECHR to embryos). [FN185]. Tya c v. Poland, App. No. 5410/03, 2007-I Eur. Ct. H.R. [FN186]. See Nicolette Priaulx, Testing the Margin of Appreciation: Therapeutic Abortions, Reproductive Rights' and the Intriguing Case of Tysiqc v. Poland, 15 EUR. J. OF HEALTH L. 361, 361 (2008); Daniel Fenwick, Recognition of Violation of Women's Human Rights Under the ECHR in the Context of Restrictive Abortion Regimes (2011) (unpublished Master's thesis), available at http://etheses.dur.ac.uk/595. [FN187]. See text accompanying note 110. [FN188]. Tysiqc, 2007-I Eur. Ct. H.R., 18. [FN189]. See Jill Marshall, A Right to Personal Autonomy at the European Court of Human Rights, E. H. R. L. R. 337, 346 (2008). [FN190]. Tysiqc, 2007-I Eur. Ct. H.R., 108. [FN191]. Id. 107 [FN192]. On the concepts of negative and positive obligations stemming from fundamental rights, see Neuman, supra note 89, at 300; David Currie, Positive and Negative Constitutional Rights, 53 U. CHI. L. REV. 864(1986). [FN193]. Tysiqc, 2007-I Eur. Ct. H.R., 124. [FN194]. Id. 116. [FN195]. Id. [FN196]. Zampas & Gher, supra note 174, at 279. [FN197]. D. v. Ireland, App. No. 26499/02, 2006 Eur. Ct. H.R. 14. [FN198]. Id. 102. [FN199]. The Parliamentary Assembly is one of the statutory bodies of the Council of Europe. It is composed of representatives from each of the contracting parties who are elected or appointed by the national parliaments. It exercises advisory functions. See Tony Joris & Jan Vandenberghe, The Council of Europe and the European Union: Natural Partners or Uneasy Bedfellows? 15 COLUM. J. EUR. L. 1, 5 (2009). [FN200]. Council of Europe, Access to Safe and Legal Abortion in Europe, Resolution 1607, 2 (2008). [FN201]. Id. 4. [FN202]. Zampas & Gher, supra note 174, at 279. [FN203]. See Forder, supra note 22, at 99 (arguing that the presence of EEC Law and the ECHR means that it is no longer possible to fossilise certain values within constitutional principles in the hope that these values will be safeguarded against development and change). [FN204]. See Cole, supra note 3, at 128; Lawson, supra note 3, at 173. [FN205]. See Mercurio, supra note 124, at 179; Phelan, supra note 124, at 686.
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[FN206]. See Marshall, supra note 189; Zampas & Gher, supra note 174, at 265. [FN207]. See Cole, supra note 3, 128, at 138; Priaulx, supra note 186, at 362. [FN208]. See Czerwinski, supra note 101, at 663-64; Mercurio, supra note 124, at 150-153. [FN209]. See generally Fabbrini, supra note 18. [FN210]. Koen Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 AM.J.COMP.L. 205, 220(1990). [FN211]. On the impact that the developments of supranational human rights law produces in the legal systems of the EU Member States, see generally MIRIAM AZIZ, THE IMPACT OF EUROPEAN RIGHTS ON NATIONAL LEGAL CULTURES (2004); Alec Stone Sweet & Helen Keller, The Reception of the ECHR in National Legal Orders, in A EUROPE OF RIGHTS 3 (Helen Keller & Alec Stone Sweet eds., 2008). [FN212]. Stephen Gardbaum, State and Comparative Constitutional Law Perspectives on a Possible Post-Roe World, 51 ST. LOUIS U. L.J. 685, 690 (2007). [FN213]. See VICKI JACKSON, CONSTITUTIONAL ENGAGEMENTS IN A TRANSNATIONAL ERA 213 (2010) (arguing that in several federal systems, regulation [of abortion] not only varies substantively but takes place (or not) in quite different ways as between national and subnational levels.). [FN214]. Gardbaum, supra note 212, at 687-90. [FN215]. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) 91(27) (Can.) (attributing to the federal government the competence in the field of criminal law); VERFASSUNGSVERGLEICH [CONSTITUTION] Apr. 18, 1999, SR 101, art. 123 (Switz.). Note that this is also the case also in the two federal countries that are members of the EU, Germany and Austria. See supra text accompanying notes 36 and 81-97. [FN216]. CODE PNALE SUISSE [CP] [SWISS CRIMINAL CODE] Dec. 21, 1937, SR 311.0 (1938), art. 199(2), as amended by Loi Fdrale, Mar. 23, 2011 (Switz.) (allowing abortion within the first trimester upon request of a woman in a state of distress and at any time if required, upon indication of a medical practitioner, to prevent the threat of a serious harm to the physical integrity or mental distress of the woman). In Canada, on the contrary, there is at present essentially no federal legislation on abortion as Criminal Code, R.S.C. 1985, S. 251, C-34 was declared unconstitutional by the Canadian Supreme Court in R. v. Morgantaler, [1988] 1 S.C.R. 30 (Can.), on the ground that it violated the principles of liberty codified in Section 7 of the 1982 Canadian Charter of Rights and Freedom and never replaced. In the absence of federal intervention, the attempt by the province of Nova Scotia to enact a criminal ban of abortion was also declared unconstitutional by the Canadian Supreme Court in R. v. Morgantaler, [1993] 3 S.C.R. 463 (Can.), on the ground that the competence over criminal law and, by implication, over abortion belongs to the federal government. [FN217]. See infra text accompanying notes 217-220. [FN218]. See AUSTRALIAN CONSTITUTION S 51-52 (detailing the competences of the federal government without enumerating criminal law, which therefore belongs to the states and territories). [FN219]. See Elizabeth Kennedy, Abortion Laws in Australia, 9 O&G MAGAZINE 4, 36 (2007) (arguing that a common law defense of necessity precludes punishment for abortion performed on medical grounds and applies in the states of Victoria, New South Wales, and Queensland, while specific health legislation precludes punishment for abortion under medical certification and is in force in Western Australia, Tasmania, South Australia, the Northern Territory and the Australian Capital Territory).
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[FN220]. See infra text accompanying note 236. [FN221]. On the advantages of comparing the European system with the U.S. federal architecture, see generally Eric Stein, Towards a European Foreign Policy?: The European Foreign Affairs System from the Perspective of the United States Constitution, in INTEGRATION THROUGH LAW: EUROPE AND THE AMERICAN FEDERAL EXPERIENCE, VOLUME 1, BOOK 3, 3 (Mauro Cappelletti, Monica Seccombe, & Joseph Weiler eds., 1986); George Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and the United States, 94 COLUM. L. REV. 332 (1994). [FN222]. On the caveats that are necessary when undertaking a comparison of the EU with the U.S. see Daniel Elazar, The United States and the European Union: Models for Their Epochs, in THE FEDERAL VISION: LEGITIMACY AND LEVELS OF GOVERNANCE IN THE UNITED STATES AND THE EUROPEAN UNION 31 (Robert Howse & Kalypso Nicolaidis eds., 2001); ROBERT SCHTZE, FROM DUAL TO COOPERATIVE FEDERALISM: THE CHANGING STRUCTURE OF EUROPEAN LAW (2009). [FN223]. Gardbaum, supra note 212, at 694. [FN224]. See Fabbrini, supra note 18. [FN225]. See generally PREZ, supra note 17; Halberstam, supra note 19. [FN226]. See Ernest A. Young, Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism, 77 N.Y.U.L. REV. 1612 (2002). [FN227]. On the history of abortion law in the U.S., see DAVID GARROW, LIBERTY AND SEXUALITY: THE RIGHT TO PRIVACY AND THE MAKING OF ROE V. WADE (1994); N.E.H. HULL & PETER CHARLES HOFFER, ROE V. WADE: THE ABORTION RIGHTS CONTROVERSY IN AMERICAN HISTORY (2010). [FN228]. HULL & HOFFER, supra note 227, at 47. [FN229]. TUSHNET, supra note 2, at 45. [FN230]. See Edward Veitch & R.R.S. Tracey, Abortion in the Common Law World, 22 AM. J. COMP. L. 652,663(1974). [FN231]. See TUSHNET, supra note 2. [FN232]. See Veitch & Tracey, supra note 230, at 664. [FN233]. MODEL PENAL CODE 230.3(2) (1962). [FN234]. See Colorado Rev. Stat. 40-2-50, 40-2-51, 40-2-52 (1967); North Carolina Gen. Stat. 14-45.1 (1967) ; California Health & Safety Code 25950-54 (1967). [FN235]. See New York Penal Law 125.05.3 (1972) (justifying abortion upon request within 24 weeks from the commencement of pregnancy); Hawaii Rev. Stat. 453-16(c) (1972) (justifying abortion on demand until viability). [FN236]. See GARROW, supra note 227. [FN237]. People v. Belous, 71 Cal. 2d 954 (Cal. 1969). On the approach of the California judiciary on the issue of abortion, see People v. Abarbanel, 239 Cal. App. 2d 31 (1965) (holding, under the aegis of the pre-1967 legislation, that abortion was not criminal if the doctor performing it believed in good faith that the mother would have committed suicide).
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[FN238]. U.S. CONST. amend. XIV, 1 (Nor shall any State deprive any person of life, liberty, or property, without due process of law.). On the due process clause of the Fourteenth amendment, see JOHN ORTH, DUE PROCESS OF LAW: A BRIEF HISTORY (2003); WILLIAM NELSON, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988). [FN239]. See Gitlow v. New York, 268 U.S. 652 (1925) (holding that the freedom of speech, protected by the First Amendment to the U.S. Constitution from abridgment by Congress, was among the fundamental personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the states). A major debate as to whether the Fourteenth Amendment incorporated all the Bill of Rights to the U.S. Constitution or only some provisions of it developed in the last century. Three different opinions can be identified in this debate. A first doctrine, called the doctrine of selective incorporation (mainly advocated by U.S. Supreme Court Justice Brennan), favored the incorporation in the law of the states (only) of specific rights contained in the federal Bill of Rights. A second position, called the doctrine of total incorporation (mainly advocated by U.S. Supreme Court Justice Black), supported the incorporation of all the federal Bill of Rights in the law of the states. A third doctrine (advocated by U.S. Supreme Court Justice Frankfurter), finally, was essentially against the incorporation of the federal Bill of Rights, except in extraordinary circumstances for reasons of fundamental fairness. On this debate and on the results achieved by the Supreme Court, see AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (2000). [FN240]. See John Paul Stevens, The Bill of Rights: A Century of Progress, in THE BILL OF RIGHTS IN THE MODERN STATE 13 (Geoffrey Stone et al. eds., 1992); Michael Zuckert, Toward a Corrective Federalism: the United States Constitution, Federalism and Rights, in FEDERALISM AND RIGHTS 75 (Ellis Katz & Alan Tarr eds., 1996). [FN241]. See HULL & HOFFER, supra note 227. [FN242]. Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that a Connecticut law prohibiting the selling of contraceptives even to married couples was in violation of the right to privacy, a right that the Court derived from aggregating the penumbras of the Bill of Rights and other amendments to the Constitution). [FN243]. See TUSHNET, supra note 2. [FN244]. Roe v. Wade, 410 U.S. 113(1973). [FN245]. The decision of the U.S. Supreme Court in Roe v. Wade is the object of detailed assessment in any U.S. constitutional law casebook. See GERALD GUNTHER & KATHLEEN SULLIVAN, CONSTITUTIONAL LAW 530 (13* ed. 1997). For a comparative perspective, see also JACKSON & TUSHNET, supra note 15; CAPPELLETTI & COHEN, supra note 15. [FN246]. TEX. PENAL CODE, arts. 1191-94 (1961), invalidated by Roe v. Wade, 410 U.S. 113 (1973). [FN247]. Doe v. Bolton, 410 U.S. 179 (1973). [FN248]. GEORGIA CRIM. CODE, 26-1201-03 (1968), invalidated by Doe v. Bolton, 410 U.S. 179 (1973). [FN249]. Roe, 410 U.S. 113, at 153. [FN250]. Id. at 154. [FN251]. See supra text accompanying note 184. [FN252]. Roe, 410 U.S. 113, at 159.
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[FN253]. See Veitch & Tracey, supra note 230; DWORKIN, supra note 21. [FN254]. See HULL & HOFFER, supra note 227, at 176; TUSHNET, supra note 2, at 73. [FN255]. Roe, at 164-65. [FN256]. Compare John Hart Ely, The Wages of the Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973) (criticizing the decision), with Laurence Tribe, Toward a Model of Roles in the Due Process of Life and Law, 87 HARV. L. REV. 1 (1973) (defending it). See also Richard Fallon, If Roe Were Overruled: Abortion and the Constitution in a Post-Roe World, 51 ST. LOUIS U. L.J. 611 (2007). [FN257]. Ann Althouse, A Response to If Roe Were Overruled, 51 ST. LOUIS U. L.J. 761, 761 (2007) (emphasis in original). [FN258]. See HULL & HOFFER, supra note 227, at 186 (within three years [of Roe] more than fifty differently worded amendments to ban or cut back on abortion had reached the floor of Congress.). [FN259]. This was accomplished via the 1976 Hyde Amendment to Title X of the Public Health Service Act, which was systematically re-enacted in successive Health Service appropriations bill and is now codified as Pub. L. No. 111-8, H.R. 1105, Div. F, Title V, Gen. Provisions, 507(a) (2009). [FN260]. For an assessment of the federalism issues involved, see Anthony Bellia, Federalism Doctrines and Abortion Cases, 51 ST. LOUIS U. L.J. 767 (2007). [FN261]. Glen Halva-Neubauer, Abortion Policy in the Post-Webster Age, 20 PUBLIUS 27, 32 (1990). [FN262]. TUSHNET, supra note 2, at 76. [FN263]. See Veitch & Tracey, supra note 230, at 668; Halva-Neubauer, supra note 261, at 32. [FN264]. See TUSHNET, supra note 2, at 76-78; HULL & HOFFER, supra note 227, at 189. [FN265]. See Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52 (1976). [FN266]. See City of Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416 (1983). [FN267]. See id. [FN268]. Bigelow v. Va., 421 U.S. 809 (1975). [FN269]. See supra text accompanying note 128. [FN270]. See Fallon, supra note 256, at 628. [FN271]. See Danforth, 428 U.S. at 52. Informed consent requirements are a core component of the relationship between medical doctors and patients and require doctors to disclose and discuss with the patient the patient's diagnosis (if known), the nature and purpose of a proposed treatment or procedure, its risks and benefits, and the alternatives (if available). [FN272]. See Planned Parenthood Ass'n of Kansas City v. Ashcroft, 462 U.S. 476 (1983). [FN273]. See Maher v. Roe, 432 U.S. 464 (1977) (upholding the constitutionality of a Connecticut statutory provision denying public funding for elective abortions); Harris v. McRae, 448 U.S. 297 (1980) (upholding the constitutionality of the Hyde Amendment).
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[FN274]. See HULL & HOFFER, supra note 227, at 214; GARROW, supra note 227, at 600. [FN275]. See Donald Regan, Rewriting Roe v. Wade, 77 MICH. L. REV. 1569 (1979); Ruth Bader Ginsburg, Some Thought on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375 (1985). [FN276]. In the anti-Roe rhetoric, there does not seem to be an express Tenth Amendment criticism to the limitation on state authority produced by the Supreme Court decision. U.S. CONST. amend. X (The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.). However, much of the criticisms to the praetorian action of the Supreme Court in Roe are inspired by the belief that abortion laws should be addressed by the states' legislative processes, rather than by federal courts. See Clarke Forsythe & Stephen Presser, The Tragic Failure of Roe v. Wade: Why Abortion Should Be Returned to the States, 10 TEX. REV. L. & POL. 85 (2005). [FN277]. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992). [FN278]. Id. at 879. [FN279]. See TUSHNET, supra note 2, at 82. On the undue burden test, see also Erin Daly, Reconsidering Abortion Law: Liberty, Equality and the New Rhetoric of Planned Parenthood v. Casey, 45 AM. U. L. REV. 77 (1995); Earl Maltz, Abortion, Precedent and the Constitution: A Comment on Planned Parenthood v. Casey, 68 NOTRE DAME L. REV. 11 (1992). [FN280]. Casey, 505 U.S. at 878. [FN281]. Id. at 879. [FN282]. Id. at 893. [FN283]. Id. at 894. [FN284]. See Ronald Dworkin, Roe Was Saved, in, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 117 (1996). [FN285]. HULL & HOFFER, supra note 227, at 258. [FN286]. See Brent Weinstein, The State's Constitutional Power to Regulate Abortion, 14 J. CONTEMP. LEGAL ISSUES 229 (2005); Reva Siegel, Dignity and the Politics of Protection: Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694 (2008). [FN287]. Neal Devins, How Planned Parenthood v. Casey (Pretty Much) Settled the Abortion Wars, 118 YALE L.J. 1318, 1322 (2009). [FN288]. See HULL & HOFFER, supra note 227, at 265. [FN289]. Freedom of Access to Clinic Entrance Act (FACE), 18 U.S.C. 248 (1994). [FN290]. Partial-Birth Abortion Ban Act (PBABA), 18 U.S.C. 1531 (2003). [FN291]. See Stenberg v. Carhart, 530 U.S. 914 (2000) (declaring a Nebraska statute that prohibited the intact dilate and extraction abortion technique as unconstitutional). [FN292]. Congress enacted the PBABA pursuant to the Commerce Clause, U.S. CONST. art. I, 8, cl. 3 (granting Congress the power to regulate commerce among the several states). Some criticism has been raised however, as to
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whether the regulation of the intact dilate and extraction abortion technique represented a permissible exercise of Congress' power under the Commerce Clause. See generally Robert Pushaw, Does Congress Have the Constitutional Power to Prohibit Partial Birth Abortion?, 42 HARV. J. ON LEGIS. 319 (2005). The U.S. Supreme Court did not address this federalism concern in reviewing the PBABA in Gonzales v. Carhart, 550 U.S. 124 (2007). [FN293]. See Garrow, supra note 6, at 25; Reva Siegel, supra note 286, at 1766. [FN294]. Gonzales, 550 U.S. 124, at 162 (upholding the PBABA by affirming that Congress enjoys wide discretion in its fact-finding assessment). [FN295]. See Devins, supra note 287, at 1336. [FN296]. See Garrow, supra note 6, at 43. [FN297]. See Judith Waxman, Privacy and Reproductive Rights: Where We've Been and Were We re Going, 68 MONT. L. REV. 299, 315 (2007) (arguing that Casey has led directly to a growing number of legislative restrictions on abortions.). See also supra text accompanying note 5. [FN298]. See supra text accompanying notes 92-98. [FN299]. See supra text accompanying note 6. [FN300]. See generally NARAL Pro-Choice America Foundation, WHO DECIDES? THE STATUS OF WOMEN'S REPRODUCTIVE RIGHTS IN THE UNITED STATES (2011), available at http://www.prochoiceamerica.org/government-and-you/who-decides. [FN301]. HULL & HOFFER, supra note 227, at 265. [FN302]. See Devins, supra note 287, at 1339. [FN303]. See Rebecca Dresser, From Double Standard to Double Bind: Informed Choice in Abortion Law, 76 GEO. WASH. L. REV. 1599, 1602-1603 (2008). [FN304]. See Harper Jean Tobin, Confronting Misinformation on Abortion: Informed Consent, Deference, and Fetal Pain Laws, 17 COLUM. J. GENDER & L. 111, 111 (2008). [FN305]. See Guttmacher Institute, STATE POLICIES IN BRIEF: REQUIREMENTS FOR ULTRASOUND (2011), available at http:// www.guttmacher.org/statecenter/spibs/spib_RFU.pdf. [FN306]. See supra text accompanying note 8. [FN307]. See NARAL Pro-Choice America Foundation, TARGETED REGULATION OF ABORTION PROVIDERS (TRAP), available at http://www.prochoiceamerica.org/what-is-choice/fast-facts/issuestrap.html. TRAP measures are laws that single-out the medical practices of doctors who provide abortions and impose requirements on them that are different and more burdensome than those imposed on other medical practices. [FN308]. See Fallon, supra note 256, at 255, 614. [FN309]. See Matthew Berns, Trigger Laws, 97 GEO. L.J. 1639, 1641-42 (2009). [FN310]. On the possibility for state constitutions to offer greater fundamental rights protection than the minimum provided by federal law, which is a distinctive feature of the U.S. federal system for the protection of fundamental rights, see William Brennan, State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489,
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491 (1977); Stewart Pollock, State Constitutions as Separate Sources of Fundamental Rights, 35 RUTGERS L. REV. 707, 707 (1983). [FN311]. See Comm. to Defend Reproductive Rights v. Myers, 625 P.2d 779, 796 (Cal. 1981) (holding that the right to procreative choice under the California Constitution is at least as broad as that described in Roe v. Wade). [FN312]. On the expansive interpretation of state constitutions offered by some state courts in the field of abortion law, especially with regard to state funding of abortion, see Janice Steinschneider, State Constitutions: The New Battlefield for Abortion Rights, 10 HARV. WOMEN'S L.J. 284, 284-87 (1987); Linda Vanzi, Freedom at Home: State Constitutions and Medicaid Funding for Abortions, 26 N.M. L. REV. 433, 433-34 (1996). [FN313]. See Gardbaum, supra note 212, at 687. [FN314]. See Fallon, supra note 256, at 614 (noting that many states formally repealed their old abortion laws after Roe, [but] seventeen states currently have laws on their books that would forbid nearly all abortions.). [FN315]. See JACKSON, supra note 213, at 210, 213; Garrow, supra note 6, at 19. [FN316]. A., B. and C. v. Ireland, App. No. 25579/05, [2010] Eur. Ct. H.R. 2032. [FN317]. Id. 11-12. [FN318]. Id. 13-17. [FN319]. Id. 18-21. [FN320]. Id. 22-26. [FN321]. Id. 113. [FN322]. Id. [FN323]. Id. [FN324]. Id. [FN325]. Id. [FN326]. Id. 27-112. [FN327]. See supra text accompanying notes 197-98. [FN328]. A., B. and C. v. Ireland, App. No. 25579/05, [2010] Eur. Ct. H.R. 2032, 147. [FN329]. Id. 164. [FN330]. Id. 158. [FN331]. Id. 167. [FN332]. Id. However, the ECtHR did not address the complaints under Articles 13 and 14 ECHR because, according to the Court, its decision based on Article 8 was decisive and rendered consideration of Articles 13 and 14 unnecessary.
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[FN333]. A., B. & C, [2010] Eur. Ct. H.R. 2032, 214. [FN334]. Id. 213. [FN335]. See supra text accompanying notes 185-92. [FN336]. A., B. &C, [2010] Eur. Ct. H.R. 2032, 214. [FN337]. Id. [FN338]. See supra text accompanying notes 185-92. [FN339]. A., B. & C, [2010] Eur. Ct. H.R. 2032, 193. [FN340]. See Diletta Tega, Corte europea dei diritti: l'aborto tra margine di apprezzamento statale e consenso esterno [European Court of Human Rights: Abortion Between State Margin of Appreciation and External Consensus], 2011 QUADERNI COSTITUZIONALI 159 (2011) (providing an early comment on the decision). See also Fiona de Londras, Ireland Is Still in Denial Over Abortion, THE GUARDIAN, Dec. 16, 2010, at 6; Carl O'Brien, State Loses Case on Woman's Abortion Right, IRISH TIMES, Dec. 17, 2010. [FN341]. See supra text accompanying notes 185-98. [FN342]. A., B. & C, [2010] Eur. Ct. H.R. 2032, 244. [FN343]. Id. 245. [FN344]. Att'y Gen. v. X, [1992] I.L.R.M. 401 (H. Ct.) (Ir.). See supra text accompanying notes 114-15. [FN345]. A., B. & C, [2010] Eur. Ct. H.R. 2032, 250. [FN346]. Id. 253. [FN347]. Id. [FN348]. Id. 254. [FN349]. Id. 258. [FN350]. Id. [FN351]. Id. 259. [FN352]. Id. 264. [FN353]. Id. 216. [FN354]. ECHR, Art. 8(2). [FN355]. A., B. and C. v. Ireland, App. No. 25579/05, [2010] Eur. Ct. H.R. 2032. K 242. [FN356]. Open Door Counselling v. Ireland, App. No. 14234/88 & 14235/88, 246 Eur. Ct. H.R. (ser. A), 73 (1992) (finding the Irish prohibition on abortion in accordance with the law as clearly based in domestic constitutional law). See supra text accompanying notes 161-72. [FN357]. A., B. & C, [2010] Eur. Ct. H.R. 2032, 226.
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[FN358]. Id. 227. [FN359]. Id. 230. [FN360]. Id. 233. [FN361]. Id. [FN362]. See supra text accompanying notes 169-72. [FN363]. A., B. & C, [2010] Eur. Ct. H.R. 2032, 234-235. [FN364]. Id. 112. [FN365]. See supra Section 1. [FN366]. A., B. & C, [2010] Eur. Ct. H.R. 2032, K 236. [FN367]. Id. 237. [FN368]. Id. [FN369]. Id. 241. [FN370]. Id. 239. [FN371]. See infra text accompanying note 454--461. [FN372]. A., B. & C, [2010] Eur. Ct. H.R. 2032, 2 (JJ. Rozakis, Tulkens, Fura, Hirvel, Malinverni & Poalelungi, Joint Partly Dissenting). [FN373]. Id. 4. [FN374]. Id. 5. [FN375]. Id. [FN376]. Id. 6. [FN377]. Id. 9. [FN378]. Id. 5. [FN379]. Id. 10. [FN380]. Id. [FN381]. See supra text accompanying note 105. [FN382]. A., B. & C, [2010] Eur. Ct. H.R. 2032 11 (JJ. Rozakis, Tulkens, Fura, Hirvel, Malinverni & Poalelungi, Joint Partly Dissenting). [FN383]. That the decision of the ECtHR in A., B. & C. could result in Europe's Roe v. Wade had been discussed as a possible (or even likely) scenario. See Shannon Calt, A., B. & C. v. Ireland: Europe's Roe v. Wade, 14 LEWIS & CLARK L. REV. 1189 (2010); Sarah Pentz Bottini, Europe's Rebellious Daughter: Will Ireland Be Forced to Con-
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form Its Abortion Law to That of Its Neighbours?, 49 J. CHURCH & ST. 211 (2007). [FN384]. As for the implication of the decision on the legislation of the contracting parties, see Alessandra Osti, Corte europea dei diritti: accelerazione delta legalizzazione dell'aborto in Irlanda? [European Court of Human Rights: Acceleration of the Legalization of Abortion in Ireland?], QUADERNI COSTITUZIONALI 156, 158 (2011) (arguing that, despite its apparently restrictive approach, the decision of the ECtHR could still accelerate the process of legalization of abortion in Ireland). [FN385]. R.R. v. Poland, App. No. 27617/04, [2011] Eur. Ct. H.R. 828. [FN386]. See supra text accompanying note 100. [FN387]. R.R. v. Poland, [2011] Eur. Ct. H.R. 828, 187 (quoting A., B. & C, [2010] Eur. Ct. H.R. 2032, 249). [FN388]. Id. 203. [FN389]. Id. 208. [FN390]. Id. 214. [FN391]. Id. 148. [FN392]. Id. 153. [FN393]. Id. 159. [FN394]. Id. [FN395]. Id. [FN396]. Id. 160. [FN397]. See Elizabeth Wicks, A., B. & C. v. Ireland: Abortion Law Under the European Convention on Human Rights, 11 HUM. RTS. L. REV. 556, 565 (2011) (arguing that A., B. & C. v. Ireland hints at a more interventionist Court in future abortion cases); see also Judith Resnik, The Production and Reproduction of Constitutional Norms, 35 N.Y.U. REV. L. & SOC. CHANGE 226, 244 (2011) (arguing that abortion cases are likely to remain a key issue in the docket of the ECtHR and other constitutional courts worldwide in the near future). [FN398]. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 3, 2007, 2007 O.J. (C 306) 30 [hereinafter Lisbon Treaty]. See generally JACQUES ZILLER, IL NUOVO TRATTATO EUROPEO [THE NEW EUROPEAN TREATY] 178 (2007); Michael Dougan, The Treaty of Lisbon 2007: Winning Minds, Not Hearts, 45 COMMON MKT L. REV. 617 (2008). [FN399]. See Marta Cartabia, I diritti fondamentali e la cittadinanza dell'Unione [Fundamental Rights and Citizenship of the Union], in LE NUOVE ISTITUZIONI EUROPEE: COMMENTO AL TRATTATO DI LISBONA [THE NEW EUROPEAN INSTITUTIONS: REVIEW OF THE TREATY OF LISBON] 81 (Franco Bassanini & Giulia Tiberi eds., 2008); see also, Giacomo di Federico, Fundamental Rights in the EU: Legal Pluralism and Multi-Level Protection After the Lisbon Treaty, in THE EU CHARTER OF FUNDAMENTAL RIGHTS 15 (Giacomo di Federico ed., 2009) (regarding the impact of the Lisbon Treaty on the protection of fundamental rights in the EU system). [FN400]. See Bruno de Witte, Saving the Constitution? The Escape Routes and their Legal Feasibility, in GENESIS AND DESTINY OF THE EUROPEAN CONSTITUTION 919 (Giuliano Amato et al. eds., 2007).
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[FN401]. See Alessandra Giannelli, L'adesione dell'Unione Europea alla CEDU secondo il Trattato di Lisbona [The European Union's Accession to the ECHR Under the Treaty of Lisbon], DIRITTO DELL'UNIONE EUROPEA 684 (2009); Francis Jacobs, The European Convention on Human Rights: The EU Charter of Fundamental Rights and the European Court of Justice, in THE FUTURE OF THE EUROPEAN JUDICIAL SYSTEM IN COMPARATIVE PERSPECTIVE 291 (Ingolf Pernice et al. eds., 2006). [FN402]. Charter of Fundamental Rights of the European Union, Mar. 30, 2010, 2010 O.J. (C 83) 389 [hereinafter CFR]. [FN403]. See Emanuelle Bribosia, L'avenir de la protection de droits fondamentaux dans l'Unione europenne [The Future of the Protection of Fundamental Rights in the European Union], in GENESIS AND DESTINY OF THE EUROPEAN CONSTITUTION 995 (Giuliano Amato et al. eds., 2007); Julianne Kokott & Christoph Sobotta, The Charter of Fundamental Rights of the European Union After Lisbon, EUI WORKING PAPERS - ACADEMY OF EUROPEAN LAW, NO. 6 (2010). [FN404]. Koen Lenaerts & Eddy de Smijter, A Bill of Rights for the European Union, 38 COMMON MKT. L. REV. 273(2001). [FN405]. See Armin Von Bogdandy, The European Union as a Human Rights Organization? Human Rights at the Core of the European Union, 37 COMMON MKT. L. REV. 1307 (2000); Marta Cartabia, L'ora dei diritti fondamentali nell'Unione Europea [The Time for Fundamental Rights in the European Union], in I DIRITTI IN AZIONE [RIGHTS IN ACTION] 13 (Marta Cartabia ed., 2007). [FN406]. CFR, art. 2. [FN407]. CFR, art. 7. [FN408]. CFR, art. 21. [FN409]. See Piet Eeckhout, The EU Charter of Fundamental Rights and the Federal Question, 39 COMMON MKT. L. REV. 945 (2002); Alexander Egger, EU-Fundamental Rights in National Legal Orders: The Obligations of Member States Revisited, 25 Y.B. OF EUR. L. 515 (2006). [FN410]. See supra text accompanying notes 130-132. [FN411]. See Lawson, supra note 3, at 174 (arguing that, in regard to the Grogan decision, it seems inevitable that the ECJ will sooner or later be confronted with the same matter). [FN412]. See Cole, supra note 3, at 126-28; Phelan, supra note 124, at 686-87. [FN413]. See Giorgio Sacerdoti, The European Charter of Fundamental Rights: From a Nation-State Europe to a Citizens' Europe, 8 COLUM. J. EUR. L. 37 (2002); Rick Lawson, Human Rights: The Best is Yet to Come, 1 EUR. CONST. L. REV. 27 (2005). [FN414]. See Koen Lenaerts & Eddy de Smijter, The Charter and the Role of the European Courts, 8 MAASTRICHT J. EUR. & COMP. L. 90 (2001); Antonio Bultrini, I rapporti tra Carta dei diritti fondamentalie CEDU dopo Lisbona: una straordinaria occasione di sviluppo per la tutela dei diritti umani in Europa [The Relationship between the ECHR and the Charter of Fundamental Rights after Lisbon: An Extraordinary Opportunity for Developing the Protection of Human Rights in Europe], DIRITTO DELL'UNIONE EUROPEA 700 (2009). [FN415]. Protocol No. 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, 2010 O.J. (C 83) 313.
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[FN416]. See Stefano Amedeo, Il Protocollo n. 30 sull'applicazione delta Carta a Polonia e Regno Unito e la tutela asimmetrica dei diritti fondamentali: molti problemi, qualche soluzione [Protocol No. 30 on the Application of the Charter to Poland and the United Kingdom and the Protection of Asymmetric Fundamental Rights: Many Problems, Some Solutions], DIRITTO DELL'UNIONE EUROPEA 720 (2009); Catherine Barnard, The Opt-Out for the U.K. and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric Over Reality?, in THE LISBON TREATY: EU CONSTITUTIONALISM WITHOUT A CONSTITUTIONAL TREATY? 257, 257-83 (Stefan Griller & Jacques Ziller eds., 2010). [FN417]. Protocol No. 30, 2010 O.J. (C 83) 314. [FN418]. See Barnard, supra note 416, at 270. [FN419]. See Czerwinski, supra note 101, at 663. [FN420]. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union, 2010 O.J. (C 83) 358. [FN421]. See ZILLER, supra note 398, at 170. [FN422]. Declaration Concerning the Charter of Fundamental Rights of the European Union, 2010 O.J. (C 83) 337. [FN423]. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union, 2010 O.J. (C 83) 355. [FN424]. Any such ruling, in fact, would not be an extension of the regulatory competences of the EU. See supra text accompanying note 396-97. [FN425]. See Curtin, supra note 146, at 47; Czerwinski, supra note 101, at 654. See also Peta-Gaye Miller, Member State Sovereignty and Women's Reproductive Rights: The European Union Response, 22 B.C. INT'L & COMP. L. REV. 195 (1999). [FN426]. Protocol No. 7 on Abortion in Malta, 2003 O.J. (L 236) 947. [FN427]. See supra text accompanying note 145. [FN428]. Protocol No. 35 on Article 40.3.3 of the Constitution of Ireland, 2010 O.J. (C 83) 321. [FN429]. See John O'Brennan, Ireland and the Lisbon Treaty: Quo Vadis?, 176 CEPS POL'Y BRIEF 1, 1-13 (2008) (describing the failure of the first Irish referendum to approve the Lisbon Treaty, and the step that Ireland took to take a second, successful referendum). [FN430]. Presidency Conclusions, Brussels European Council (Dec. 11-12, 2008). [FN431]. See Kokott & Sobotta, supra note 403, at 12; Amedeo, supra note 416, at 720. [FN432]. ZILLER, supra note 398, at 178. [FN433]. Protocol No. 30, 2010 O.J. (C 83) 313. [FN434]. Barnard, supra note 416, at 270 (arguing that the Protocol No. 30 contains a genuine opt-out for the U.K. and Poland only insofar as the social rights contained in Title IV of the CFR are concerned.). See Art. 1(2) of Protocol No. 30, 2010 O.J. (C 83) 314 (affirming that for the avoidance of doubt, nothing in Title IV of the Charter creates justifiable rights applicable to Poland or the [U.K.]).
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[FN435]. Barnard, supra note 419, at 283. [FN436]. Ziller, supra note 401, at 170. [FN437]. See Jochen Frowein, Stephen Schulhofer & Martin Shapiro, The Protection of Fundamental Rights as a Vehicle of Integration, in INTEGRATION THROUGH LAW: EUROPE AND THE AMERICAN FEDERAL EXPERIENCE, VOL. 1, BOOK 3, 231 (Mauro Cappelletti, Monica Seccombe & Joseph Weiler eds., 1986) (examining whether the process of incorporating the fundamental rights standards contained in the federal Bill of Rights could possibly take place also in the European context); see also Koen Lenaerts, Federalism and Rights in the European Community, in FEDERALISM AND RIGHTS 139 (Ellis Katz & Alan Tarr eds., 1996). [FN438]. See Bruno de Witte, The Past and the Future Role of the European Court of Justice in the Protection of Human Rights, in THE EU AND HUMAN RIGHTS 859, 873 (Philip Alston et al. eds., 1999). [FN439]. Miguel Poiares Maduro, The Double Constitutional Life of the Charter of Fundamental Rights of the European Union, in ECONOMIC AND SOCIAL RIGHTS UNDER THE EU CHARTER OF FUNDAMENTAL RIGHTS 269 (Tamara Hervey & Jeff Kenner eds., 2003). [FN440]. Id. at 269. [FN441]. Id. at 292. [FN442]. Id. at 299 (recalling how the U.S. Bill of Rights was adopted under pressure from those who opposed the federation, but it later constituted one of the most important elements of federal control over the states). [FN443]. Lawson, supra note 416, at 36. [FN444]. See Regan, supra note 286, at 1569; Ginsburg, supra note 286, at 385; Siegel, supra note 298, at 1694. [FN445]. See RONALD DWORKIN, What the Constitution Says, in FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 110 (1996) (providing a liberal jurisprudential statement that the right to abortion is linked to a moral reading of the constitutional principles of liberty and equality). But see Dworkin, supra note 22 (grounding the right to procreative autonomy in the constitutional principle of freedom of religion). [FN446]. See supra Section 1. [FN447]. See supra Section 2. [FN448]. See Abigail-Mary Sterling, The European Union and Abortion Tourism: Liberalizing Ireland's Abortion Law, 20 B.C. INT'L & COMP. L. REV. 385, 385 (1997). For a comparative perspective, see generally Seth Kreimer, The Law of Choice and the Choice of Law: Abortion, the Right to Travel and Extraterritorial Regulation in American Federalism, 67 N.Y.U.L. REV. 451 (1992). [FN449]. Indeed, it could even be argued that because women theoretically can get out of restrictive bans on abortion by leaving their home countries for the abortion, the European supranational courts are more protective of the Member States' autonomy to ban abortions since, viewed from one perspective, this ban is not absolute. [FN450]. See Opinion of. Advocate Gen. Van Gerven, June 11, 1991, Case C-159/90, Soc'y for the Protection of Unborn Children v. Grogan, [1990] E.C.R. I-4703, 4732, 29. [FN451]. Id. [FN452]. A., B. and C. v. Ireland, App. No. 25579/05, [2010] Eur. Ct. H.R. 2032.
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[FN453]. See supra text accompanying note 371. [FN454]. See Cook & Dickens, supra note 24, at 59 (describing the socially discriminatory impact that abortion bans produce). See also Eur. Parl. Ass., Resolution 1607 (Apr. 16, 2008), at 4, available at http:// assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta08/ERES1607.htm. (remarking that a ban on abortions does not result in fewer abortions but mainly leads to clandestine abortions, which are more traumatic and increase maternal mortality and/or lead to abortion tourism which is costly, and delays the timing of an abortion and results in social inequities). The discriminatory effects that are produced by an abortion ban have also been highlighted by the report of the EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS, CONCLUSIONS AND RECOMMENDATIONS ON THE SITUATION OF FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION AND ITS MEMBER STATES (2005) available at http:// cridho.cpdr.ucl.ac.be/documents/Download.Rep/Reports2004/En.synth.rep_2004.pdf (stating that [a] woman seeking abortion should not be obliged to travel abroad to obtain it, because of the lack of available services in her home country even where it would be legal for her to seek abortion, or because, although legal when performed abroad, abortion in identical circumstances is prohibited in the country of residence. This may be the source of discrimination between women who may travel abroad and those who, because of a disability, their state of health, the lack of resources, their administrative situation, or even the lack of adequate information may not do so). For further data concerning the number of women travelling abroad to seek abortion, see Mark Hennessy, Money Plays Ever Increasing Role in Decisions of Irish Women to Travel, THE IRISH TIMES, Dec. 17, 2010; Steve Clements & Roger Ingham, Improving Knowledge Regarding Abortions Performed on Irish Women in the U.K., CRISIS PREGNANCY AGENCY REPORT NO. 19 (2007) available at http:// www.crisispregnancy.ie/pub/CPA%20Abortion%C20Trends%2019.pdf; ASTRA NETWORK, REPRODUCTIVE AND HEALTH SUPPLIES IN CENTRAL AND EASTERN EUROPE (2009), available at http://www.astra.org.pl/PAI%20astra%C20report%202009.pdf; U.N. Human Rights Comm., The Third Periodic Report on Ireland, Jul. 30, 2008, 13, CCPR/C/IRL/CO/3 (2008); U.N. Human Rights Comm., The Concluding Observation on Poland, Dec. 2, 2004, 8 CCPR/CO/82/POL (2004). [FN455]. For the argument that laws forbidding abortion require women to behave as Samaritans, see Regan, supra note 286, at 1569. [FN456]. A., B. and C., [2010] Eur. Ct. H. R. 2032, 183. [FN457]. Id. 185. [FN458]. Id. 239. [FN459]. See DWORKIN, supra note 448, at 27. [FN460]. On the principle of equality in the post-CFR EU constitutional system, see Paolo Caretti, L'uguaglianza: da segno distintivo dello Stato costituzionale a principio generate dell'ordinamento comunitario [Equality: From Distinctive Mark of the Constitutional State To General Principle of Community Law], in LO STATO COSTITUZIONALE 513 (Paolo Caretti & Maria Cristina Grisolia eds., 2010); Dimitry Kochenov, Citizenship Without Respect: The EU's Troubled Equality Ideal, JEAN MONNET WORKING PAPER NO. 8 (2010). [FN461]. On the inescapable role that the judiciary plays in addressing the moral issues involved with abortion and to remedy inequalities, see Susanna Mancini & Michel Rosenfeld, The Judge as a Moral Arbiter? The Case of Abortion, in CONSTITUTIONAL TOPOGRAPHY: VALUES AND CONSTITUTIONS (Andras Sajo & Renata Uitz eds., 2011 forthcoming); see also Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373 (2007). [FN462]. See Lawson, supra note 416, at 36; Cartabia, supra note 402, at 103.
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[FN463]. See Barnard, supra note 419, at 283; Amedeo, supra note 419, at 720. [FN464]. I borrow the terms hard and soft pluralism from Mark Rosen, Hard or Soft Pluralism? Positive, Normative, and Institutional Considerations of States' Extraterritorial Powers, 51 ST. LOUIS U. L. J. 713 (2007), who uses them to describe two alternative visions of federalism in the context of U.S. abortion laws. Note, however, that I use the expressions hard and soft pluralism differently. To begin with, whereas he describes a system of hard pluralism as a federal arrangement (e.g. the one that, in his opinion, would exist in the U.S. if Roe v. Wade were overruled) in which any constituent state of the federation can enforce its abortion ban extra-territorially (e.g. prohibiting its citizen from travelling abroad for an abortion), I instead regard hard pluralism as the abortion regime currently in force in Europe. Therefore, for my purposes, hard pluralism refers to a regime where states can enact abortion ban but cannot enforce them extraterritorially because of the constraints of supranational laws. The European arrangement that I describe would be a system of soft pluralism in Rosen's terminology. In addition, whereas Rosen advocates for a system of hard pluralism, I am convinced that soft pluralism' would be more appropriate in the European multilevel system. [FN465]. See Daniel Elazar, Federalism, Diversity and Rights, in FEDERALISM AND RIGHTS 1 (Ellis Katz & Alan Tarr eds., 1996); Eric Stein, Uniformity and Diversity in a Divided-Power System: the United States' Experience, 61 WASH. L. REV. 1081 (1986), now reprinted in THOUGHTS FROM A BRIDGE: A RETROSPECTIVE OF WRITINGS ON NEW EUROPE AND AMERICAN FEDERALISM 309 (2000). [FN466]. RONALD DWORKIN, LAW'S EMPIRE 134(1986). [FN467]. See Poiares Madura, supra note 414, at 292. Incidentally, it may be noticed that the considerations developed here with reference to Europe and the discriminatory effects that strict state abortion laws can produce in a federal system can be applied, ceteris paribus, to the U.S. For a discussion of these issues in an hypothetical postRoe scenario, see Fallon, supra note 255, especially at 647. [FN468]. See Jennifer Steinhauer, Late Clash on Abortion Shows Conservatives's Sway, N.Y. TIMES, April 9, 2011, at A1. [FN469]. See A MAGYAR KZTRSASG ALKOTMNYA [CONSTITUTION OF THE REPUBLIC OF HUNGARY], art. II. [FN470]. See Joelle Stolz, La nouvelle Constitution hongroise, juge ractionnaire, soulve l'inquitude [The New Hungarian Constitution, Considered Reactionary, Raises Concern], LE MONDE, April 17, 2011. [FN471]. See Mary Minihan, Cabinet Discussed Possible Changes to Abortion Law, IRISH TIMES, April 20, 2011. 18 Colum. J. Eur. L. 1 END OF DOCUMENT
10 RMDJGLB 549 10 Rich. J. Global L. & Bus. 549
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Richmond Journal of Global Law and Business Fall 2011 Article FROM RUSSIA WITH LOVE: THE EU, RUSSIA, AND SPECIAL RELATIONSHIPS Dr. Jur. Eric Engle, JD DEA LLM [FN1] Eric.Allen.Engle@justice.com Copyright (c) 2011 Richmond Journal of Global Law & Business; Dr. Jur. Eric Engle, JD DEA LLM ABSTRACT: This paper compares the institutions and goals of the USSR, the EU, and the CIS to understand the differing origins and competing tendencies of these alternative models of transnational governance. It then projects those models through history to examine the current relationships of the former Soviet Republics to the EU and the United States. Understanding the historical sources and development of transnational relations in Eastern Europe will enable better international relations among the EU, the Russian Federation, and the other former Soviet Republics. This comparison will also help the Russian Federation and other former Soviet Republics to take up EU models of governance where appropriate (most often the case) in order to help restructure Eastern Europe, and to safeguard peace by increasing economic prosperity and interdependence. Keywords: EU, USSR, Russia, CIS, Commonwealth of Independent States, EurAsEC, Eurasian Economic Community, WTO, US, NATO, eastern partnership, northern dimension, common spaces, ECHR, European Court of Human Rights, Rule of Law, Human Rights, Democracy, Legitimation, Partnership and Cooperation Agreement, PCA. TABLE OF CONTENTS:
I. II.
INTRODUCTION COMPARING TELEOLOGIES OF TRANSNATIONAL GOVERNANCE: GOALS AND STRUCTURES A. The Structure and Teleology of the USSR B. The Objectives of the EU C. The Objectives of the CIS
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1. The Breakdown of the CIS 2. The Eurasian Economic Community (EurAsEC) 3. Comparing CIS and EU institutions III. CONCEPTS IN TRANSNATIONAL GOVERNANCE A. Historical Materialism Revisited B. Functionalism C. Ex Post Legitimacy and Democratic Deficit in the EU IV. THE EU AND RUSSIA A. The EU's Concerns with respect to the Russian Federation 1. Political Concerns 2. Economic Concerns 3. Legal Concerns B. The EU-Russia Partnership and Cooperation Agreement (PCA) 1. Common Economic Space 2. Common Space on Freedom, Security, and Justice 3. Common Space on External Security 4. Common Space of Research and Education, Including Cultural Aspects C. The Northern Dimension
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D. The Eastern Partnership E. WTO Accession V. CONCLUSIONS
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I. INTRODUCTION The European Union builds peace through interdependence and prosperity by transferring elements of state sovereignty to intergovernmental and supranational bodies. An unparalleled success, the EU presents a model for transnational governance. The EU is the world's most advanced and successful example of a pragmatic mixture of supra-national and intergovernmental governance. It is thus a key vector of globalization. [FN2] Other regions of the world, such as Eastern Europe, can emulate its rules and institutions. This paper compares the institutions and objectives of the USSR, the EU, and the CIS to understand the differing origins and competing tendencies of these alternative models of transnational governance. Understanding the systemic differences and commonalities of those models enables the contextualizing of past history, and thus improves our understanding of current relationships of the former Soviet Republics to the EU. Hopefully, understanding the historical sources and development of transnational relations in Eastern Europe will, in turn, enable better international relations between the EU, the Russian Federation, and other former Soviet Republics and the United States. II. COMPARING TELEOLOGIES OF TRANSNATIONAL GOVERNANCE: GOALS AND STRUCTURES Understanding the past helps us appreciate the present and form the future. First, we compare the goals and structures of the USSR, the EU, and the CIS. By disaggregating the differing origins and competing tendencies of these distinct transnational governance models, we can see their commonalities and the historical breakdowns in order to foster improved relations by understanding shared goals and methods used to attain these goals. A. The Structure and Teleology of the USSR The USSR was a one-party system. It was a workers' and peasants' dictatorship in name, [FN3] directed and led by the Communist Party of the Soviet Union (CPSU). The CPSU regarded itself as a vanguard party, the most advanced elements (intelligentsia) of the most advanced class (the proletariat), subject to democratic centralism (open debate within the party upon the issues, followed by a vote, and then decisive unanimous action to implement the voted decision with no further discussion or dissent), and exercising a dictatorship on behalf of the proletariat (workers and peasants). The party elite of the CPSU (the nomenklatura) claimed to govern on behalf of and for the benefit of the workers and peasants, i.e. the peoples of the Soviet Union. [FN4] In western terms, the CPSU was a centralized, hierarchical party of elites directing a centrally planned economy via dictatorship. The dictatorship was justified as necessary to work revolutionary changes on the behalf of the workers and peasants, and, indeed, the initial performance of the USSR was breathtaking. The USSR eradicated illiteracy, literally doubled average life expectancy, [FN5] and ended the chronic famines endemic of Tsarist Russia. Leninism also instituted sex equality. [FN6] In these real human terms, Leninism was unquestionably progress as compared to Tsarism. TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Source: Narodnoe obrazovanie, nauka i kul'tura v SSSR: Statisticheskii shornik (Moscow, 1977, 9; SSSR: zarubezbnye strany, 1987: Statisticheskii sbornik (Moscow, 1988), 83. The CPSU justified its dictatorship as the best way to obtain the well-being of the workers and peasants, [FN7]
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and also as necessary to help prevent or win any future world war. [FN8] Over time, however, the Soviet system degenerated, and worked increasingly for the benefit of the party establishment (the nomenklatura) [FN9] at the expense of the broad masses of workers and peasants. Meanwhile, the threat of invasion diminished. From this perspective, which I call dual delegitimation, we can better understand the sudden, unexpected, and relatively bloodless restoration of capitalism [FN10] in Russia. The system, in its own terms, lost legitimacy as being no longer necessary for defense against a war that never came. Likewise, the system lost legitimacy because consumer well-being was simply higher in the west and the nightmare of Tsarist famine, illiteracy, and inequality was long past. These systemic facts help explain the near bloodless dissolution of the Soviet system. Soviet foreign policy was less aggressive than what the U.S. foreign policy elites, particularly the military, perceived at the time. Rather than relentlessly seeking to inflame global revolution at every turn in a zero-sum struggle against the West, the USSR first sought to build socialism in one country, [FN11] and then in its own sphere of influence, to construct a stable autarchic system. The Soviets sought autarchy as the means to self-defense. Geopolitically, the Soviet system was a series of concentric rings. The USSR was at the center, then Eastern Europe, [FN12] then Third World Marxist states, and, finally, Third World non-Marxist allies. The closer a country was geographically to the Soviet center, the greater the level of integration into the autarchic economy. Western efforts to roll back Marxism were generally unsuccessful, [FN13] perhaps because the Soviet system was autarchic. The failure of roll back ultimately led to the Brezhnev doctrine, wherein the USSR declared the attainment of socialism (i.e. single party state capitalism with worker safeguards) in any country as irreversible. [FN14] To attain autarchic economic development, the USSR implemented an import substitution industrialization (ISI) model for economic development. ISI had already been used in the West for the industrialization of the United States and Japan. [FN15] However, the Soviet system's rationales were the opposite of those of the United States. The USSR justified its version of ISI through rationales of substantive equality and solidarity, and contrasted those with the merely formal freedoms conditioned by economic inequality that justified western democracies [FN16] some of which were social. Social democracies provide guaranties of basic well being, especially to workers. Socialist production in contrast is the state ownership of enterprises, a form of state capitalism. Russia's approach to ISI was, within its own terms, rational. The Soviet leadership considered obtaining and maintaining the autarchy of the USSR a necessary, legitimate, and attainable goal. [FN17] Given the historical fact that Russia has suffered invasion after invasion, the Soviet goal of economic autarchy as a means to national security, though definitively economically suboptimal to trade and international economic integration, was politically justifiable, albeit increasingly inapt due to sub-optimal economic performance. Pursuant to the ISI strategy, the USSR created a ruble currency economic zone, and made the ruble inconvertible. [FN18] Capital restrictions were the norm as were border controls, such as customs duties and passport checks. The policy of autarchy complemented military security by enabling independent political choices. Soviet leaders saw military security as a precondition to economic security and well-being. [FN19] To circumvent the problem of a lack of foreign currency, the inability to use the ruble for currency exchanges overseas, and related problems arising from the nature of a closed economic system, barter in, and for, real goods was taken up between the COMECON countries. That practice was known as countertrade i.e. cashless goods-for-goods barter. For example, the USSR would barter with Cuba, trading sugar for finished Soviet goods. [FN20] Barter also occurred at the micro-economic level, though not as a legitimate de jure instrument of state policy, but as a de facto necessity of everyday life, albeit of questionable legality. [FN21] Gifts could be justified as social and fraternal acts under the Marxist logic of transforming monetary economic compulsion into cooperative voluntary social acts. With capitalist restoration, however, the primitive version of a gift economy warped into generalized bribery, undermining the rule of law in the post-Soviet era. [FN22] Preferential tariff treatment for the COMECON and Soviet client states was a key feature of the Socialist bloc's
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international trade policy. [FN23] High tariff barriers were created to protect the autarchic COMECON home market. [FN24] These tariff barriers would also encourage infant industries. [FN25] Non-tariff technical barriers such as restrictions on imports for health and safety reasons also served the ISI logic. Meanwhile, intellectual property would be either unprotected or weakly protected to use Western innovation to support the USSR. [FN26] For example, piracy of Western computer software and microchip technology was the norm during the Soviet era. [FN27] Intellectual property law enforcement in Russia remains a sore spot in United States-Russian relations to this day. [FN28] Most importantly, the centrally-planned economy's taxing and subsidization systems aimed to accumulate the surplus capital needed for economic development through the creation of infrastructure (e.g., housing, roads, airports) via forced saving [FN29] and also, ominously, for military production. The political and legal institutions in the USSR and its satellites paralleled those of the West. Legal and institutional parallels included: the Warsaw Treaty Organization (the Warsaw Pact), which paralleled the North Atlantic Treaty Organization (NATO); [FN30] the Council for Mutual Economic Assistance (COMECON, also known as CMEA), for its part, paralleled the European Economic Community (EEC). [FN31] Other parallels could be found fairly readily and, in my opinion, Soviet socialist legalism should be seen as a variant of civilianist law. Legal and political parallels arose because each system sought the same goals (economic development, technical progress, national security) albeit by somewhat different methods and justified by differing rationales. The Soviet system was an authoritarian egalitarian variant of late modernity that sought to attain economic development using the Western import substitution industrialization (ISI) model. [FN32] The Soviet systemic rationales were substantive equality and social solidarity; the West's were freedom, property and individual rights. These rationales also served as principles for organizing production and social life generally. The Soviets, like the West, sought the same goals: to obtain a better life for workers (the people) and physical (military) security (i.e., defense). The means to those ends, however, differed. The USSR sought to obtain prosperity not through the capitalist anarchy of production but through centralized economic planning. [FN33] Similarly, the USSR sought to attain security through autarchy (isolation and independence) rather than through economic interdependence. [FN34] Economic interdependence was the path to peace the West took, as the EU and WTO exemplify. [FN35] The Soviet economy's key problem was the fact that it was defined around building up a military-industrial complex to fight and win a World War III if ever attacked again: autarchy as a means to security. [FN36] Tragically, [FN37] in pursuit of its military defense, the USSR and its Warsaw Pact allies wasted almost all their surplus production on unproductive military spending. [FN38] Ultimately, the United States response to the failure of rollback and the Brezhnev doctrine was to compete in fields where the USSR could not compete due to technological inferiority or due to the structure of a closed dictatorship. The United States' own arms buildup aimed to bankrupt the USSR by forcing it into an unsustainable arms race, a policy that worked. [FN39] The resulting economic strains led to constant shortages that seriously undercut the USSR's claim to be creating a workers' paradise with the highest standard of living for ordinary people on earth. [FN40] The USSR was undermined by economic dislocations, the inability of the planned economy to deliver high quality goods to the most needed areas on time, and due to the increasing strain of militarism. The party of Lenin, despite such stunning initial success, was ultimately unable to match capitalism in the quality and abundance of consumer goods. [FN41] This, coupled with the increasing tendency of the nomenklatura to serve its own goals rather than to seek the well-being of all the Soviet peoples, and the fact that the U.S., unlike Nazi Germany, was not threatening to invade the USSR to seize resources, led to a crisis of purpose, of legitimacy, and a capitalist restoration. B. The Objectives of the EU The EU aims to form a single, integrated European market to: (1) break the link between territory and trade
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which drove Europe into at least two global wars; and (2) generate the prosperity through trade that results from specialization in production, economies of scale, and reduced transaction costs. [FN42] At one extreme, Euro-Federalists have cautiously and tentatively argued for the formation of a United States of Europe. [FN43] The EuroFederalists' ultimate goal is both unrealistic and undesirable - recreating mercantilist nation states as mercantilist continental empires would only lead to more global conflict. [FN44] Good, practical reasons, however, validated the EU's creation. The EU's objectives, also (and more importantly) included preventing another European war and improving the well-being of all workers. [FN45] Those objectives were attained through the functionalist method of forming specialized institutions defined around particular goals to take advantage of unbiased expert judgment. This expert judgment in specific sectors in turn enabled the EU to attain socially desirable goals in the common interest of all Europeans in an incremental step-by-step fashion. The functionalist method first pooled together the military industries: coal, steel, and atomic power via the European Coal and Steel Community (ECSCE) [FN46] and the European Atomic Energy Community (EURATOM). [FN47] European states also formed a customs union, the European Economic Community (EEC) to disaggregate national cartels, which were seen as a cause of wars for market share, because trade and territory had been linked and as a result the only way any state could expand its economy and resource base was by war. [FN48] Thus, the customs union aimed to attain a single integrated market via the free movement of goods, workers, capital, and enterprises (the four freedoms). Ultimately, the EU evolved into a supranational body with a common currency (the Euro), common citizenship and passports, common borders (the Schengen Area), and to some extent, a common foreign and security policy. [FN49] As a confederation, [FN50] the EU began to share many elements of classical Westphalian nationstates. [FN51] C. The Objectives of the CIS The CIS arose in the chaotic aftermath of the collapse of the USSR, which saw competing concerns hamper political movements toward cooperative relations in the former Soviet states. [FN52] Unlike the USSR or the EU, the CIS never had well-articulated goals. While one faction of the former Russian nomenklatura may well have seen the CIS as the Soviet Union by other means, another faction of Russians, comprised of those who had been the former economic criminals, may well have seen the CIS as merely a vast economic opportunity. [FN53] Even presupposing the unity of Russian nationalist leaders, the fact that such unity centered on great Russian nationalism rather than proletarian internationalism indicates that the CIS's centralizing tendencies were disunited and unattractive to the newly independent national states. On the part of the CIS leaders, this indicates disunity of factions and of objectives. Nevertheless, even if there were a unity, if only of great Russian factions and objectives, then that unitary vision was not able to attract adhesion or persuade the newly independent national republics in, e.g. former Soviet Central Asia, to help form some variant of confederation featuring a customs union and/or common currency and/or common defense. [FN54] The lack of a compelling and attractive central vision of shared goals and objectives for the CIS crippled it as an institution for transnational governance. Absent a common teleology or purpose, the CIS degenerated into the political overseer of the peaceful dissolution of the USSR [FN55] and, to a limited extent, the introduction of market mechanisms to replace the planned economic system. Consequently, in Western literature the CIS is typically described as moribund and can accurately be compared to the present day British Commonwealth. [FN56] 1. The Breakdown of the CIS The CIS failed to evolve into a viable transnational governing institution due to a lack of a common vision [FN57] and elite inexperience in transnational institutionalism, [FN58] particularly with regards to market liberalization. [FN59] The CIS sought to undertake the simultaneous tasks of privatization, political and economic liberalization, and the implementation of the rule of law to replace rule-by-command. However, the CIS lacked experts and
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practical proficiency in transnational governance beyond the context of a strong vertical hierarchy of a one-party dictatorship. Consequently, liberal western transnational governance models such as those of the European Communities could not inform the CIS's already overwhelmed managerial class. Moreover, some of the new managerial class were Soviet era economic criminals, [FN60] while others were former nomenklatura. Consequently, factionalism soon ensued both between and within these two historically conflicting groups. The CIS's failure is unsurprising, and was perhaps even inevitable, given those conditions. [FN61] Lacking a common vision, the CIS defaulted into the role of the clearinghouse for the USSR's remarkably peaceful dissolution via two distinct factors: (i) privatization; and (ii) the devolution of former federal powers to individual Republics. [FN62] The institutional problems mentioned contributed to the breakdown of CIS. For example, the CIS's transnational trade policy was characterized by incoherence. Numerous overlapping multilateral and bilateral treaties covered similar issues, [FN63] leading to economic disputes due to the contradictory obligations imposed by the various treaties. [FN64] However, these overlapping multilateral and bilateral treaties also left many issues unaddressed. [FN65] For example, the CIS' agreements were not sophisticated enough to take into account non-tariff trade barriers such as health, safety, and technical restrictions to trade. [FN66] In sum, CIS institutions and rules were simply ineffective. Any effort to bring the USSR's customs and monetary union into the CIS era was thus doomed for several interlocking reasons. The absence of legal concepts important to coordinating supranational and intergovernmental tendencies and attaining by accretion the objectives of economic integration--such as basic economic rights (the four freedoms) [FN67] subsidiarity, proportionality, and acquired community positions (acquis communautaire [FN68] )--within the CIS treaties further crippled the CIS. Common institutions such as the Economic Court of the CIS were weak or entirely absent [FN69] because of a lack of a common will, common goals, and common concepts. Although the CIS lacked the institutional expertise and juridical structure to transform the USSR into something like the EEC, this does not mean that it is currently impossible or undesirable. Accordingly, this paper considers the Eurasian Economic Community (EurAsEC) to see whether and how the CIS may consider and implement EU principles. 2. The Eurasian Economic Community (EurAsEC) [FN70] Following the instauration of market mechanisms to replace the planned economic system, and because of the EU's continual success as an institution of transnational governance, the Russian Federation, Belarus, and Kazakhstan together instituted a customs union known as the Eurasian Economic Community. [FN71] The EurAsEC could, and should, look directly to the EU's growth and evolution as a source of inspiration and also for basic legal concepts such as: Direct effect of treaty provisions (that private persons have directly enforceable rights and duties under the EurAsEC treaty). The four freedoms (free movement of goods, labor capital, workers and enterprises) [FN72] Acquis communautaire (the idea that each step toward a single integrated market is irreversible, and that new adherents to the EurAsEC must agree to abide by the existing acquis) [FN73] General principles of international law as a source of EurAsEC law The principle of legality (that EurAsEC institutions should be legal, not political) Functionalism (that the EurAsEC institutions should be built out incrementally to progressively attain a single integrated market) Economic development occurs more quickly through open borders. [FN74] Thus, despite critiques of the rule of
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law and democracy in the former Soviet republics, the path forward is through free trade. Economic development is the most practical and effective way to build stronger and more democratic institutions in the former Soviet Republics because wealth creates the conditions that enable genuine human rights protection. [FN75] The authoritarian democracies in the former Soviet Republics are not systematic violators of the most basic human rights. [FN76] Functionalist incrementalism is thus more effective than extreme methods at securing human rights protection. [FN77] Economic integration resulting from freer trade and improved economic performance are positively correlated. [FN78] Likewise, improved economic performance and improved human rights protection are positively correlated. [FN79] Consequently, through a constructive engagement policy, [FN80] aid and trade can help improve economic well-being, leading to both improved human rights protection, and improved rule of law within the former Soviet Republics. Supranational and intergovernmental governance worked well in the EU to leverage Member States and their immediate neighbors out of war. [FN81] The former Soviet Republics can and should use those same methods - economic integration leading to increased prosperity to foster peace and the progressive realization of human rights [FN82] -to support the rule of law and human rights protection. [FN83] Free trade generates economic prosperity, which in turn generates improved human rights protection. [FN84] Thus, free trade improves human rights protection. 3. Comparing CIS and EU institutions Marx demonstrated that the business cycle of booms, panics, and depressions causes wars to obtain markets and raw materials as well as to burn off surplus production and employ the unemployed. [FN85] Both the EU [FN86] and the USSR sought to prevent such wars and to attain well-being for ordinary workers. However, their similar teleological goals were to be attained by differing means. Institutionally, the USSR was, at least nominally, a workers' and peasants' dictatorship: an advanced vanguard party would exercise a dictatorship on behalf of the proletariat [FN87] to prevent [FN88] the wars for market share that capitalism unleashed in economic crises at the trough of business cycles. [FN89] While we might criticize the idea of a vanguard party exercising a dictatorship on behalf of workers and peasants, we should also understand that the USSR's proletarian dictatorship shared the same stated objectives as the EU. Paradoxally, the EU and USSR both sought to transform the state (coercion) into society (voluntarism), but through opposite means. The USSR, following Marx's prescription to transform the state into civil society, [FN90] sought to end market relations entirely [FN91] to attain the goal of peace and prosperity. The EU sought to use market forces to attain that same goal. [FN92] Like the EU, the USSR was multinational, multilingual, and attained a monetary union with the free movement of goods, labor, and capital. But, the USSR did not in fact attain the best standard of living for workers. Life expectancy was only a few years lower than in the West but double that of Tsarist Russia. [FN93] Leisure was assured, but consumer goods were always in short supply. [FN94] The quality of goods suffered from production deadlines at the end of the five-year planning cycles when production goals had to be met, though this improved over time. [FN95] However, in sum, the quality of Soviet life did not match Western European standards. This was mostly because so much of the government's resources were wasted on building a military-industrial complex that did not advance the well-being of Soviet citizens. [FN96] Moreover, the planned economy faced an increasingly complex task: the centralized coordination of production and distribution of a growing variety of goods. [FN97] Central planning of a primitive industrializing economy with only a few basic inputs is considerably easier than for a diversified industrial economy with hundreds of consumer goods. The Soviet planned economy succeeded in shifting the USSR from a semi-feudal economy producing but a score of basic goods into an industrial economy. [FN98] This newly created industrial economy, however, produced a myriad of different goods. [FN99] This production diversity doomed the centrally planned economy. Namely, the ever-greater product variety made central planning increasingly complex and thus less efficient when coordinating
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production and consumption. Soviet production was not, however, entirely inefficient. Soviet weaponry was cheap, durable, easily maintained and reliable. The USSR was the first country to put a satellite into space, and later a man into orbit. Still, the USSR's centrally planned economic production system was more appropriate for a semi-feudal industrializing society with few goods than for a highly developed industrial economy producing a myriad of goods. [FN100] The institution of a single party dictatorship and the teleology of the USSR were not apt to liberalism. [FN101] Thus, the customs and monetary union of the CIS quickly degenerated into national economies with separate currencies and tariff barriers still trying to implement the ISI development model - a model that neoliberalism had long surpassed. [FN102] The establishment of inter CIS customs and tariff barriers raised transaction costs and reduced economies of scale. [FN103] Restructuring a centrally planned dictatorial economy centered on autarchy and war into a consumer oriented networked globalizing economy exacerbated those problems. The result was sub-optimal economic performance. [FN104] At times, the newly independent Republics were trying to implement outdated and inefficient liberal or Soviet models of economic development. At other times, they became disposable experiments in neoliberalism. All too often the results were chaos, corruption, asset stripping, and economic failure [FN105] resulting in a declining average life expectancy in the post-Soviet years. [FN106] These results explain why multiparty liberal democracy did not take root in some of the former Soviet Republics. The return of one-party rule in some former Soviet Republics after the collapse of the USSR resulted from the chaos of the failed Soviet planned economy model, the failed ISI model, and the asset stripping and kleptocracy which resulted from neoliberal experimentation. The CIS's lack of institutional experience and personnel expertise in the principles and practices of liberal markets and transnational governance in any context other than that of a single party dictatorship in turn explains the failure of the CIS member states to have adopted EU governance models in the late 1990s. III. CONCEPTS IN TRANSNATIONAL GOVERNANCE This section describes the relationships between the rule of law, the economy, human rights protection, and democracy. It outlines ideas about political legitimation and presents practical methods to advance transnational relations to explain how international relations between the United States, the E.U., and the former Soviet Republics may be improved. A. Historical Materialism Revisited A key question for transnational governance is: how to untangle the relationships among the rule of law, democracy, the economic system, and human rights? The rule of law, democracy, free trade, and human rights protection are all positively associated - improving the protection of one tends to improve protection of the others. [FN107] Does any hierarchy order their relations? I hypothesize that the rule of law is needed for an optimally productive market economy, and that a productive economy and the rule of law in turn lead to effective human rights protection de jure and de facto respectively. I also argue that democratic institutions are less important to human rights protection or to the attainment of the rule of law than is usually thought to be the case. [FN108] That is because, in practice, democratic processes are used only to reinforce and legitimize policies which were already formed by elites rather than to actually create public policies. [FN109] Most legislative bills are introduced not by democratic referenda but by elected republican representatives. Policies are typically proposed by elites [FN110] which are then either taken up or rejected by masses through the democratic process. [FN111] The West tends to equate democracy with the rule of law, [FN112] and wrongly presumes that the democratic process is necessary to the rule of law and human rights protection. I maintain that the rule of law leads to a productive economy. [FN113] The rule of law and a productive economy together foster democratic processes and provide
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substantive human rights protection. These ideas are summed up in the following key points: The rule of law is necessary for a productive open market; [FN114] A market economy with social protections favors prosperity; Economic prosperity favors protection of human rights; Democratic deficit can be ex post facto legitimized by the success of public policies that were politically unpopular at the time of their enactment. Rather than adopting the position that democratic processes are either the source of human rights protection or a necessary precondition to the rule of law, I argue that the rule of law and economic development positively correlate [FN115] and that each is a precondition to effective and meaningful human rights defense. I also argue that democratic legitimation can be an outcome of economic and legal development. [FN116] These arguments reiterate the historical materialist claims that economic processes ultimately drive legal and ideological rationalizations of any given political system. [FN117] The dialectical materialist refinement of that argument is to note that the economic base (the forces of production) generally determines the legal forms of the superstructure (the relations of production), but that exceptionally, at particular times and under certain conditions, the superstructure (ideology) can determine the base (production). [FN118] In other words, the material forces of production generally constitute and constrain the ideological superstructure that rationalizes them - but, exceptionally, at certain times and places in history, the ideological superstructure can influence and compel the structure of the material forces of production. Marxism aimed to act as a catalyst for the natural and inevitable movement of history by intervening at the margins, - these exceptional points in social life where superstructure can influence base. [FN119] Perhaps the vanguard party's altruism outran the basic needs for consumption of the productive base (the workers) it was leading. Perhaps the vanguard party became corrupted. Perhaps both explanations apply. Nevertheless, the USSR shows that vanguard parties exercising a dictatorship on behalf of the proletariat are very effective at ending illiteracy and starvation, and at introducing sex equality, but are not terribly effective at coordinating production and consumption in a complex consumer economy. [FN120] The rule of law, economic development via free trade and open markets, human rights protection, and democracy all correlate positively and are mutually reinforcing. [FN121] These concepts form an interrelated hierarchy. I postulate their priority as follows. Without basic laws, economic development is impossible due to physical insecurity and legal uncertainty. Without economic development, human rights protection is impossible or at least meaningless. Meanwhile, democratic processes require a basic legal system and at least minimal economic well-being. Human rights protections without economic development are sub-optimal. For example, religious freedom in the face of starvation is merely the right to receive one's last rites, so to speak. While dying with dignity isn't utterly meaningless, would it not be better to choose life, somehow? By placing survival rights, such as the right to food, [FN122] ahead of psychological rights, or even political rights, we will better protect people in real terms. In any case, democracy, productive open markets, human rights protection, and the rule of law are all positively correlated, and mutually reinforcing. As Russia increasingly implements the rule of law, transaction costs will decline, which will strengthen the economy. This, in turn, creates an environment where it is possible to envision better human rights protections and practically apply the material resources needed for substantive human rights protection and enjoyment. B. Functionalism [FN123] Functionalism argues that institutions should be understood and formed in terms of the functions that they aim to fulfill. [FN124] Functionalist approaches to transnational governance seek to safeguard peace by drawing nations to-
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gether, [FN125] rather than splitting them apart. [FN126] Functionalism forms specialized institutions incrementally [FN127] to attain specific practical purposes. [FN128] When functionalism is linked to market liberalism, it seeks to obtain peace, obviate war, and generate prosperity and economic interdependence by delinking trade and territory. [FN129] One tenet of functionalism is that economic and political integration is best achieved not at one fell swoop with grandiose and impossible ideas, [FN130] but rather through incremental efforts in diverse fields. [FN131] Functionalism is realistic and pragmatic: it seeks to attain the possible here and now rather than utopian dreams that never really come true. Its methods obtain political legitimacy after the fact because of the success of the institution at achieving practical goals. [FN132] Ultimately, functionalists aim to prevent war not by keeping states apart, but by drawing them together - by establishing transparent, responsible, and effective transnational governance structures in specific sectors. Neo-functionalism takes functionalism one step forward by seeking political integration. [FN133] Just as functionalist methods were successfully applied to create the EEC and grow them into the EU, so can they be used to build stable prosperous transnational governance among the former Soviet Republics, and foster the rule of law and human rights protection through increased economic prosperity. [FN134] Specifically, the functionalist method would focus on developing the idea of the rule of law in Eastern Europe. First is the idea of an impartial independent judiciary seeking to implement the national will as expressed in legislation. Second is the idea of law as more than mere positive command, but law also as persuasive attractive, and moral appeal. Third is the idea of legal certainty. This requires further construction of a but partially existent legal culture. In Estonia, for example, Soviet era judges were effectively shunted aside to secondary tasks, retrained, and entered retirement or academia. New judges were selected from shockingly young candidates. To a much lesser extent this is also happening in Russia. The lack of institutional retraining initiatives extending from the United States or E.U., however, can be partly to blame. Educating and reforming an entire legal culture is necessary, but initiatives to do so are starkly lacking. With the formation of a neutral independent unbiased judiciary it would then be possible to form transparent, responsible and effective institutions. A functionalist approach would then seek to protect human rights sequentially, focusing first on survival rights, then on economic rights, progressively attaining ever greater human rights protections: the hierarchy of norms [FN135] to attain the hierarchy of needs. [FN136] I have argued elsewhere for hierarchizing some of the basic human rights as follows: the right to one's own life, then the right to food, [FN137] then the right to shelter, then political rights and cultural rights. [FN138] In other words, one's basic needs in the hierarchy must be met before the more advanced and complex needs can be satisfied. [FN139] All these rights are vital to a good life, but some naturally precede others. From the Russian perspective, establishing a judiciary or administrative institution is easy: The President and Prime Minister issue the order. But the question is, how can Russia form an independent and unbiased judiciary? From the EU perspective, forming judicial expertise is not difficult. It is a matter of training in western legal methods. Joint E.U.-Russian judicial and administrative bodies might enable the positive implementation of neutral unbiased adjudication. EU judges would also thereby be able to compare experiences, methods, and ideas with their Russian counterparts. This is to merely indicate the extent of the problem and suggest possible ways ahead. C. Ex Post Legitimacy and Democratic Deficit in the EU Democratic deficit in the EU was not an obstacle to economic and political integration because of legitimation after the fact. As long as processes are transparent (i.e. open, governed by the rule of law) and not tainted with secrecy and deception (i.e. political), policies can attain legitimacy after their implementation by virtue of their efficacy. The EU was a long term project driven by elites with minimal mass support. [FN140] It was built gradually and sequentially, using the functionalist method that focused first on aggregating the war industries, and then on dissolving national cartels by building a single integrated market for goods, labor, capital, and services. The war industries were made subject to common control not to prepare for a war against the Soviet bloc, but to prevent yet another
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Western European War. While NATO greatly facilitated the EU's development by providing a defensive umbrella under the premise of collective security, two World Wars had already shown that collective security alone is insufficient to prevent war. Something beyond nation-state alliances are necessary to achieve lasting peace. That something is economic integration. The EU was built without the mass public support often thought needed for political legitimization. Despite this democratic deficit, the EU has emerged to become one of the world's most competent and effective transnational organizations. One lesson of the EU for the former Soviet Republics is that the former Soviet Republics problem of democratic governance is surmountable. We can and should draw all the lessons from the EU's experiences. Democratic institutions in Eastern Europe can be built gradually over time using functionalist methods. Transnational governance via functionalism will generate the economic well-being necessary to create a foundation for improved respect of human rights. We now turn our attention to the relationship between the EU and Eastern Europe. This will help us understand exactly how Eastern Europe can apply EU governance models to build effective, transparent participatory state systems governed by the rule of law, and thus enjoy economic prosperity and improved human rights protections. IV. THE EU AND RUSSIA We propose the creation of a harmonious economic community stretching from Lisbon to Vladivostok - Vladimir Putin [FN141] The success of the EU as an example of transnational governance and the growing number of Eastern European legal scholars familiar with the basics of EU law explain the growing acceptance of the EU in the former Soviet republics. The Russian Federation's ultimate long-term goal with the EU is to form an economic union to achieve trading synergies and encourage technological innovation [FN142] to generate economic development. Schumpeter rightly noted that innovation generates wealth. [FN143] EurAsEc and the EU complement each other [FN144] because each has the same goals: to attain economic development via free trade and to engage in economic integration to create the economic base needed for human rights protection, to guarantee the rule of law, and to obviate the risk of war. EurAsEc could develop independently of the EU, but he logic of economic synergy resulting from specialization and economies of scale enjoyed as a result of free trade, however, explains why both transnational organizations are more effective when cooperating rather than when competing with each other. These economic benefits are further augmented by the fact that good foreign relations means fewer resources wasted on weapons. France's Nicholas Sarkozy supports Russia's desire for economic integration with Europe, as does Italy's Silvio Berlusconi. [FN145] As earlier noted, the desire for increased economic integration is partly driven by the fact that trade between Russia and Europe is growing. This growing trade reflects Russia's comparative advantage in hydrocarbons [FN146] and, to a lesser extent, atomic energy. This growing trade also reflects the asymmetric European comparative advantage in certain industrial goods. Though Western Europe is even more dependent than the U.S. on imported petroleum, alternatives exist to Russian natural gas. Solar energy has become much more efficient in the past decades. [FN147] Wind turbines, too, are increasingly competitive. Though Germany largely rejects atomic energy [FN148] for environmental reasons, France uses it extensively. [FN149] It is even possible, albeit expensive, to liquefy coal into petroleum products. [FN150] Likewise, ethanol has been used successfully in Brazil as an alternative automotive fuel. [FN151] Thus, the energy dependence on petroleum imports of countries such as the United States or Germany is only relative. Russian energy exports are driven not by geopolitical ambitions, but by the practical fact of who will pay the most. [FN152] Recall that, during the Cold War, the USSR did not participate in the Arab oil embargos and continued to sell petroleum to the U.S. [FN153] This experience demonstrates that energy issues are not determinative of foreign relations between the Russian Federation and other states, but merely constrain outcomes because of the fact that energy dependence is relative, not absolute. While the importance of those economic
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relationships is obvious, they are not the EU's primary legal concern. Nor are these economic relationships the driving force of efforts toward Russia's de jure economic integration into the EU or the WTO. Meanwhile, de facto economic integration is, and will continue to further deepen regardless of political issues because of practical economic facts. Mutual economic interests between the EU and Russia are leading to de facto economic integration. Europe is dependent on Russian primary resources and exchanges them for investments into Russia's secondary and tertiary markets. [FN154] This creates conditions under which the rule of law is likely to be increasingly respected because 1) Increasing wealth makes rule breaking less frequent due to reduced desperation; 2) Foreign investors do not wish to see their economic interests nationalized and foster the rule of law through private contractual mechanisms such as jurisdiction and binding arbitration clauses; and 3) International commerce requires legal stability so that contracts clear quickly and efficiently, thus incentivizing the Russian judiciary to professionalism. This extensive wealth creation in turn indirectly makes the real protection of human rights much likelier in practice. I argue that de jure economic integration will accelerate the inevitable process of de facto economic integration and help contribute to the formation of the rule of law in the former Soviet Republics, at least in an exemplary fashion, though hopefully also through formation of institutions and comparison of expertise. What about human rights? Often people think of the false dichotomy: either the market or human rights. In fact, trade leads to prosperity resulting in better human rights protection. [FN155] Trade also leads to interdependence, making war unprofitable. Accordingly, the EU seeks to create an open integrated market with the Russian Federation. Both partners desire increased integration because the EU is Russia's main trading partner [FN156] and because the level of trade between the EU and Russia continues to rapidly grow. [FN157] Key institutions created to channel EU-Russia relations include the EU-Russia Partnership and Cooperation Agreement (PCA), the four common spaces pursuant to the PCA, and the Northern Dimension. Finally, to understand how the EU relates to other former Soviet Republics that are not EU Member States, we must also understand the EU's Eastern Partnership program. A. The EU's Concerns with respect to the Russian Federation To understand the relations between the EU and the Russian Federation, we must understand the perceptions of the EU toward the Russian Federation. The issues that cause concern among the EU's leadership or its citizens with respect to the Russian Federation are political, economic, and legal in nature. This section briefly summarizes the EU's position on all three issues to show how they, albeit discretely, interact to a significant degree. Ultimately, this section illustrates how the EU and Russia are moving closer to each other in the post-Soviet era. 1. Political Concerns Politically, the EU's concerns with respect to the Russian Federation go to questions of the rule of law, democracy, [FN158] and human rights protection. [FN159] As to the rule of law, a Russian procedural rule of law state enables construction of durable and predictable legal institutions, rather than uncertain political ones, with the aim of transforming zero-sum political interactions into positive-sum economic interactions. Corruption in the domestic governance of the Russian Federation is a substantive problem for Russia's relationship with the EU because it threatens the security of economic relations [FN160] and undermines protection of human rights. The EU's desire to foster democracy, in turn, is not merely an issue of the legitimacy of state power. The existence of democratic institutions is also taken - to some extent erroneously - as evidence or guarantor of the rule of law. [FN161] The EU's concern with democracy in the Russian Federation [FN162] can be seen as a proxy for con-
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cerns about the rule of law. [FN163] However, equating democracy and the rule of law - and they do correlate means that failure to attain the former is seen, wrongly, as necessarily, i.e. inevitably, impinging on attainment of the latter, and this can prevent progress. The rule of law is a precondition to stable business relations, in turn generating prosperity [FN164] and leads to effective human rights protection. [FN165] Democratic legitimation can thus be obtained after the fact and is not a necessary, indispensable precondition to improving human well-being in real terms. Open governance institutions and processes are needed for the economy; [FN166] the rule of law is also crucial for human rights protection. [FN167] Poverty resulting from legal uncertainty and corruption reduces the real level of human rights protection and the legitimacy of Russian democracy. [FN168] The relationships between the rule of law, a productive economy (which results from an open market, free trade, and the rule of law), democracy, and the attainment of human rights are mutually reinforcing and intertwined in complex ways They are, however, all positively associated: improvement in one tends to encourage improvement in the others. 2. Economic Concerns As mentioned earlier, the economic context of Russian-EU trade can be summed up as raw materials for finished goods, a normal pattern of trade between developed and developing countries. [FN169] In other words, the EU and the Russian Federation have an economic relationship based on interdependence. Nevertheless, Russian-EU trade has not, to present, coalesced into a binding legal document or relationship [FN170] beyond the existing partnership and cooperation agreement. The key to peace and prosperity in the war 21st century is economic interdependence rather than isolation. Trading states have a strong incentive to renounce war against each other. [FN171] For example, the United States, unlike the EU, does not trade heavily with the Russian Federation. [FN172] Perhaps as a consequence, U.S. analysts seem to overemphasize security aspects of the West's relationship with Russia. [FN173] 3. Legal Concerns The EU's legal concerns with Russia touch a myriad of issues. This section covers only some of the most salient ones. One concern is criminality, [FN174] which includes arms and drug trafficking. [FN175] Human migration is also a concern, with fears that Russian workers might flood European labor markets. [FN176]These fears, however, are not particularly realistic. Most people are not criminals, and most criminals are eventually caught. The EU's eastward expansion did not lead to the flooding of Western European labor markets with cheap Eastern labor. [FN177] Western European fears of a flood of Eastern European workers have shown themselves to be unrealistic and overstated. [FN178] Like most modern industrialized countries, the Russian Federation faces net labor inflows rather than outflows. [FN179] In fact, about ten million foreigners, mostly from China and Northern Korea, work in the Russian Federation, most of them illegally. [FN180] Thus, Russian-EU economic integration will not cause a flood of Russian labor into the EU. The aforementioned political, economic and legal concerns return us to the question of the relationships between the rule of law, democracy, the economic system, and human rights - questions to which we now focus our attention. B. The EU-Russia Partnership and Cooperation Agreement (PCA) The EU and the Russian Federation aim to create an open integrated market. Just as the EU created a single integrated market in order to generate prosperity and interdependence to obviate and avert war, so too do the EU and Russian Federation seek to create an integrated market. [FN181] This open and integrated market is to be attained via the Partnership and Cooperation Agreement, which is the principal legal instrument governing EU-Russia relations.
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[FN182] The EU also uses PCAs to relate to several other former Soviet Republics. [FN183] The PCAs seek, via functionalist incrementalism, to create over time the same base found in the EU: a customs union featuring the free movement of goods and capital, the right to establish enterprises, and eventually to include the exchange of professional services and workers. [FN184] The EU-Russia PCA forms the basis of the four common spaces between the EU and the Russian Federation [FN185] resulting in an effective institutional framework functioning through the Permanent Partnership Council. [FN186] At the 2003 Petersburg Summit, the EU and Russia agreed to strengthen cooperation by creating four common spaces in the framework of the Partnership and Cooperation Agreement. [FN187] These are: 1. The Common Economic Space, covering economic issues and the environment; 2. The Common Space of Freedom, Security and Justice; 3. The Common Space of External Security, including crisis management and non-proliferation; and 4. The Common Space of Research and Education, including cultural aspects. This approach parallels the pillar structure that was one aspect of the EU prior to the Lisbon Treaty. The Russian Federation wants to be treated as an equal partner to the EU. Thus, a pillar approach, rather than the European Neighborhood Policy (ENP), was established. The pillar approach, however, in fact parallels the ENP approach: [FN188] 1. Common economic space The essence of the European Union is a single integrated market. The EU-Russian common economic spaces seek to attain an open integrated market. Formation of the common economic space requires the gradual approximation of legislation. [FN189] Legal harmonization is one means to the end of improving the rule of law in Russia. Legal harmonization increases legal certainty and reduces transaction costs as do the suppression of tariff barriers, quantitative restrictions, and legal provisions with similar effect. 2. Common Space on Freedom, Security and Justice This common space essentially governs police cooperation. [FN190] Here, the EU addresses its concerns earlier mentioned of criminality. [FN191] The essence of this common space is cooperative and largely a political, rather than legal, arrangement. Regarding travel freedoms, travel to and from Russia is still generally subject to visas. Second is the ongoing concern of unauthorized migration. As to security, the central focuses are countering the problems of crime and terrorism. As to justice, the primary human rights issues involve press freedoms and overreactions against terrorism by the Russian State, and secondarily is the concern with ultra-nationalist violence. [FN192] 3. Common Space on External Security This common space parallels the former common foreign and security policy (CFSP) pillar of the EU. [FN193] The goals here are non-proliferation of weapons of mass destruction (especially nuclear weapons), anti-terrorism collaboration, and EU-Russia security cooperation. Today, the EU and the Russian Federation cooperate militarily in certain peacekeeping missions in Africa pursuant to the common space of external security. 4. Common Space of Research and Education, Including Cultural Aspects This common space seeks to foster intellectual exchanges and encourage scientific and technical innovation as a key contributor to economic growth. [FN194] From the Russian perspective, it involves developing the Skolkovo research and industrial park, which is considered the Russian Silicon Valley. [FN195] C. The Northern Dimension
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The Northern Dimension's objective is to promote environmentally sustainable development throughout the region. [FN196] It is a regional political framework established to govern the Baltic and Arctic regions. [FN197] Most notably, it focuses on environmental pollution and cleanup issues that particularly concern radioactive waste [FN198] resulting from the decommissioning of Soviet-era nuclear vessels, and related issues such as health and maritime transit. [FN199] The Northern Dimension's objective is to promote environmentally sustainable development throughout the region. [FN200] D. The Eastern Partnership The EU frames its relations with the Ukraine, Moldova, and the Caucasian republics within its Eastern Partnership framework. [FN201] The Joint Declaration of the Prague Eastern Partnership Summit stated that [t]he main goal of the Eastern Partnership is to create the necessary conditions to accelerate political association and further economic integration between the European Union and interested partner countries. [FN202] To attain this goal of open borders and economic integration to foster economic development and ultimately political stability, the respect of human rights, and the rule of law, [t]he European Commission proposed a differentiated, progressive, and benchmarked approach to the new neighbors which was specified in the European Neighborhood Policy (ENP) Strategy paper. [FN203] To promote this strategy, the EU has jointly mobilized aid and trade as rewards for the attainment of the rule of law and human rights protections to EU standards. [FN204] Both Russia and the EU have sometimes perceived the Eastern Partnership as a point of contention between the EU and the Russian Federation. Each side inaccurately perceived the other as trying to carve out spheres of influence to freeze out the other. [FN205] The obstacles that had been hindering improved economic integration, however, will be increasingly surmounted by visionary leadership in the EU, Russia, and the other former Soviet Republics. This is because of increased transnational institutional awareness and improved mutual understanding. Most importantly, it is also because of the mutual recognition that EU cooperation with the formation of EU-modeled transnational governance in the Russian Federation and the former Soviet Republics is complementary and not conflicting. E. WTO Accession The EU views Russia's accession to the WTO as a means of achieving the end of increased prosperity through freer trade, and the construction of legal institutions as the formation of a Russian rule of law state. [FN206] The United States shares this view. [FN207] For its part, the Russian Federation wishes to join the WTO [FN208] and coordinates its accession with EurAsEC [FN209] and the EU [FN210] toward that goal. This paper argues that free trade leads to specialization and economies of scale, and that the rule of law increases legal certainty and reduces transaction costs. This in turn leads to increased prosperity and the reduced likelihood of war. The EU and EurAsEc are aiming to achieve the same goals of greater prosperity and political security through free trade. Thus, the EU and EurAsEc are not in conflict, but rather compliment each other. [FN211] The WTO extends the logic of free trade as the path to peace and prosperity to the global level. [FN212] It is therefore desirable for the Russian Federation to join the WTO, since joining will both reflect and increase acceptance by the West of the Russian Federation's economic growth and future potential. Political issues appear to have needlessly hindered that economic process. Following derailment of Russia's WTO accession process because of its 2008 war with Georgia, the Russian Federation is now back on track to conclude its accession to the WTO Treaty. [FN213] The EU and Russia appear to have worked out their differences [FN214] and are prepared to see the Russian Federation join the WTO. [FN215] Both the EU and the Russian Federation consider Russian participation in the WTO as desirable since it creates new economic opportunities on both sides of the ledger. [FN216] Russian adhesion to the WTO should not be impeded by Russia's existing free trade with areas such as EurAsEC. [FN217] The bottom line: Russia and the EU need each other, and the United States should foster that process as part of globalization because it will lead to greater stability and
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productivity for all. V. CONCLUSION This paper has argued that the Russian Federation and other former Soviet Republics can apply EU governance models in their relations with each other, and with the EU. To make that case, this paper compared the objectives and institutional structure of the USSR, the EU, and the CIS. The USSR and EU both tried to react to the problem of war to obtain the best standard of living possible for their people. Nevertheless, they pursued these objectives in radically different manners. Recognizing that both the USSR and EU shared common goals helps us to contextualize the USSR's collapse and the CIS' failure. It also enables us to propose workable governance models based on the EU's extensive historical experiences in transnational governance. Such institutions and rules can serve as a basis for the formation of the rule of law in Eastern Europe that, in turn, will generate economic prosperity, especially through trade liberalization. This will consequently improve the real protection of basic human rights in the region and make conflict less likely. Understanding the mutually reinforcing character of a market economy, the rule of law, and human rights protection enables all actors to pursue the best rules and processes to obtain optimal outcomes for all. Common teleologies, coupled with conflicting methods of competing governance models contextualize historical experiences: understanding these broad tendencies enables mutual understanding, and enables us to build bridges instead of walls.
[FN1]. This article was written while the author was a visiting professor of EU Law at Pericles LL.M. Institute Moscow, Russia (Pericles.ru). The author wishes to thank Pericles' Dean Marian Dent and the Pericles faculty, staff, and students for the chance to compare our ideas and experiences. Dr. Engle's articles are available at http://papers.ssrn.com/author_id=879868. For Natalia: Lex Nata. [FN2]. See generally Eric Engle, Europe Deciphered: Ideas, Institutions and Laws, 33 Fletcher F. World Aff. 63, 63-81 (2009), available at http:// papers.ssrn.com/sol3/papers.cfm?abstract_id=1336490 (describing transnational governance within the EU). [FN3]. Konstitutsiia SSSR (1936) [Konst. SSSR][USSR Constitution] art. 1, translated in 1936 Constitution of the USSR, Bucknell University (Sept. 7, 2011), http://www.departments.bucknell.edu/russian/const/36cons01.html (stating [t]he Union of Soviet Socialist Republics is a socialist state of workers and peasants.) [hereinafter USSR Constitution]. [FN4]. A. Nove, Is There a Ruling Class in the USSR?, 27 Soviet Studies 615, 615-16 (Oct. 1975). [FN5]. Stephen White, Russia Goes Dry: Alcohol, State and Society 43 (Cambridge Univ. Press 1996). [FN6]. See, e.g., Gail Warshofsky Lapidus, Women in Soviet Society: Equality, Development, and Social Change 136 (Univ. of Cal. Press 1978). [FN7]. USSR Constitution, supra note 3 (The Union of Soviet Socialist Republics is a socialist state of the whole people, expressing the will and interests of the workers, peasants, and intelligentsia, the working people of all the nations and nationalities of the country.). [FN8]. Id. art. 28. [FN9]. See generally Michael Voslensky, Nomenklatura: The Soviet Ruling Class (Eric Mosbacher trans., Doubleday 1984).
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[FN10]. Capitalism is a system of economic production predicated on the private ownership of capital. It is distinct from state capitalism wherein the state or public-private partnerships hold capital. Many define capitalism as an industrial rather than a feudal mode of production. The Tsarist economy was semi-feudal and industrializing. Further, many of its economic projects involved heavy state participation (state capitalism). However, the ownership of capital in the hands of the financial elite distinguishes Tsarist semi-feudal (state) capitalism from the Soviet planned economy. Of course, strong state participation in the economy, directly and indirectly, remains a mark of the Russian economy. However, the post-Soviet era definitively restored private ownership of capital and the role of the Orthodox Church as the spiritual guides of the nation. Thus, I refer to this process as capitalist restoration rather than capitalist instauration. See, e.g., Steven Rosefielde, Comparative Economic Systems: Culture, Wealth, and Power in the 21st Century 183 (Blackwell Publishers 2002). [FN11]. Josef Stalin, The October Revolution and the Tactics of the Russian Communists, Preface to Josef V. Stalin, Problems of Leninism 117 (Charles Farrell trans., Foreign Languages Press, Peking 1976), available at http:// www.marxists.org/reference/archive/stalin/works/1924/12.htm. [FN12]. Joseph G. Whelan & Michael J. Dixon, The Soviet Union in the Third World: Threat to World Peace? 8 (Pergamom-Brassey's Int'l Def. Publishers 1986). [FN13]. See, e.g., Peter Grose, Operation Rollback: America's Secret War Behind the Iron Curtain 210 (2000). [FN14]. This policy was known as The Brezhnev Doctrine. See generally Matthew J. Ouimet, The Rise and Fall of the Brezhnev Doctrine in Soviet Foreign Policy (The Univ. of N.C. Press 2003) (explaining the doctrine). [FN15]. See generally David M. Trubek & Alvaro Santos, The New Law and Economic Development: A Critical Appraisal (Cambridge Univ. Press 2006) (describing the exposition of the import substitution industrialization model of development). [FN16]. Eric Engle, Marxism, Liberalism, And Feminism: Leftist Legal Thought 33-35 (Serials Publ'ns 2010). [FN17]. Ronald A. Francisco, The Foreign Economic Policy of the GDR and the USSR: The End of Autarky?, in East Germany in Comparative Perspective 190 (David Childs et al. eds., 1989). [FN18]. Vladimir Sobell, Convertibility in the CMEA: The Long Road Ahead, Radio Free Europe Research 4 (Nov. 5, 1987), http:// www.osaarchivum.org/files/holdings/300/8/3/pdf/128-5-21.pdf. [FN19]. USSR Constitution, supra note 3, at art 31. [FN20]. Jos F. Alonso & Ralph J. Galliano, Russian Oil-For-Sugar Barter Deals 1989-1999, in Cuba in Transition: Volume 9, Papers and Proceedings of the Ninth Annual Meeting of the Association for the Study of the Cuban Economy (ASCE) 335 (1999), available at http:// www.ascecuba.org/publications/proceedings/volume9/pdfs/alonso.pdf. [FN21]. See, e.g., Jim Leitzel, Russian Economic Reform 128 (Routledge 1995); see also Byung-Yeon Kim, Informal Economy Activities of Soviet Households: Size and Dynamics, 31 J. Comp. Econ. 532, 532-551 (2003). [FN22]. Barbara Walker, Maximilian Voloshin and the Russian Literary Circle: Culture and Survival in Revolutionary Times 174 (Ind. Univ. Press 2005). [FN23]. Marie Lavigne, International Political Economy and Socialism 175 (David Lambert trans., Cambridge Univ. Press 1985). See generally Adam Zwass, The Council for Mutual Economic Assistance: The Thorny Path from Political to Economic Integration (M.E. Sharpe 1989). [FN24]. COMECON (also known as the CMEA) was the USSR's effort to form a common market within the Soviet
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bloc. See, e.g., J. J. Brine, COMECON: The Rise and Fall of an International Socialist Organization xvi (1992). [FN25]. Id. [FN26]. Intellectual property remains weakly protected in the Russian Federation and the USSR successor states. [C]ounterfeiting and piracy activity in Russia remains on a high level. The lack of effective enforcement affects Russian markets on a large scale. To be fully integrated in the world trading system, to continue to attract foreign investment and to prevent major losses for right-holders, Russia has to implement all its international obligations, in particular the ones related to Intellectual Property Rights and their Enforcement. Directorate-General for Trade, Intellectual Property: Dialogues, European Comm'n (Aug. 22, 2011), http://ec.europa.eu/trade/creating-opportunities/trade-topics/intellectual-property/dialogues/#_russia. [FN27]. See, e.g., Shane Hart, Computing in the Former Soviet Union and Eastern Europe, 5 Crossroads 23, 23-25 (Mar. 1999). [FN28]. U.S. Dept. of State, Background Note: Russia (Aug. 28, 2011), http://www.state.gov/r/pa/ei/bgn/3183.htm. [FN29]. See generally Eric Engle, A Social-Market Economy for Rapid Sustainable Development, 2 J.L. Dev. & Pol. 42, 42-62 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424695 (explaining the ISI model in the context of Soviet development theory). [FN30]. Malcome Byrne & Vojtech Mastny, The Warsaw Pact, Gone with a Whimper, N.Y. Times, (Mar. 14, 2005), http:// www.nytimes.com/2005/05/13/opinion/13iht-edbyrne.html. [FN31]. See Brine, supra note 24. [FN32]. Engle, A Social-Market, supra note 29, at 43. [FN33]. Id. [FN34]. Id. [FN35]. Id. [FN36]. Id. [FN37]. Recall that tragedy, strictly speaking, means the inevitable downfall of a hero (or anti-hero) due to his excess of virtue. In the Soviet Union defense of the motherland taken to its excess became paranoia, crippling production and dooming the system to (inevitable) collapse. However, the West did not win the cold war; rather, the Soviets lost it. [FN38]. Russian Military Budget, GlobalSecurity.org (Aug. 25, 2011), http:// www.globalsecurity.org/military/world/russia/mo-budget.htm (By the mid-1980s, the Soviet Union devoted between 15 and 17 percent of its annual gross national product to military spending, ... Until the early 1980s, Soviet defense expenditures rose between 4 and 7 percent per year.); see also Anders slund, Building Capitalism: the Transformation of the Former Soviet Bloc 131 (2001). [FN39]. Kremlinology often focuses on budget questions. See, e.g., Bill Keller, Soviet Budget Deficits Are Disclosed By Kremlin; Wasteful Subsidies Blamed, N.Y. Times, (Oct. 28, 1988), http:// www.nytimes.com/1988/10/28/world/big-soviet-budget-deficits-are-disclosed-by-kremlin-wasteful-subsidies-blamed .html; see also Timothy Sosnovy, The Soviet Military Budget, 42 Foreign Aff. 487, 487-94 (1964), available at http:// www.foreignaffairs.com/articles/23604/timothy-sosnovy/the-soviet-military-budget.
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[FN40]. See, e.g., 31 V. I. Lenin, Collected Works 516 (1966) (stating Communism is Soviet power plus the electrification of the whole country. That is, the Soviet system justified itself as the fastest route to development, which it was for at least one generation. However, ultimately, the system lost legitimacy as it became clear and clearer that the west produced better quality consumer goods and in greater numbers). [FN41]. See Alex F. Dowlah & John E. Elliott, The Life and Times of Soviet Socialism 182 (1997). [FN42]. Engle, Europe Deciphered, supra note 2, at 65. [FN43]. See, e.g., Euro-Politics: Institutions and Policymaking in the New European Community 260 (Alberta M. Sbragia ed., 1992). [FN44]. Eric Engle, The EU Means Business: A Survey of Legal Challenges and Opportunities in the New Europe, 4 DePaul Bus. & Com. L.J. 351, 352-53 (2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_ id=1020467. [FN45]. Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11, available at http://ec.europa.eu/economy_finance/emu_ history/documents/treaties/rometreaty2.pdf [hereinafter Treaty of Rome]. The Treaty of Rome was succeeded by the Treaty of Amsterdam ( Maastricht) and then the Treaty of Lisbon which reiterated those goals: The Union's aim is to promote peace, its values and the well-being of its peoples. Treaty of Lisbon Amending the Treaty on European Union and the Treaty establishing the European Community art.2, Dec. 13, 2007, 2007 O.J. (C 306) 1, available at http:// europa.eu/ lisbon_treaty/index_en.htm [hereinafter Treaty of Lisbon]. [FN46]. See European Union, Treaty Establishing the European Coal and Steel Community (Aug. 29, 2011), http://europa.eu/legislation_ summaries/institutional_affairs/treaties/treaties_ecsc_en.htm (explaining that the ECSCE merged into the E.U.). [FN47]. See generally The European Atomic Energy Community (EURATOM), European Comm'n (Aug. 25, 2011), http:// ec.europa.eu/energy/nuclear/euratom/euratom_en.htm (indicating that the EURATOM's Atomic Energy Commission (AEC) maintains a separate legal existence as an international organization). [FN48]. Namely, the unity of trade and territory under the Westphalian state system led to war because any state which wished to expand its economy also had to expand its territory. See, e.g., Eric Engle, Europe Deciphered, supra note 2, at 63. [FN49]. See generally Eric Engle, I Am My Own Worst Enemy: Problems and Possibilities of European Foreign Policy Vis-a-Vis the United States,18 St. Thomas L. Rev. 737, 737-38 (2006). [FN50]. See, e.g., Eric Engle, Theseus's Ship of State: Confederated Europa between the Scylla of Mere Alliance and the Charybdis of Unitary Federalism, 8 Fla. Coastal L. Rev. 27, 28-30 (2006). [FN51]. See Eric Engle, The Transformation of the International Legal System: The Post-Westphalian Legal Order, 23 Quinnipiac L. Rev. 23, 23-25 (2004). [FN52]. See Michael Roberts & Peter Wehrheim, Regional Trade Agreements and WTO Accession of CIS Countries, 36 Intereconomics 315, 315 (2001), available at http://www.springerlink.com/content/41642065037ll583/ (Shortly after the collapse of the Soviet Union most of its successor states, with the exception of the Baltic States, joined the Commonwealth of Independent States (CIS). At the same time many CIS countries opened up their trade regimes by dismantling various trade restrictions, state trading monopolies, multiple exchange rate regimes as well as formal tariff barriers. However, in the course of the 1990s pressure for the protection of domestic industries has increased. Import tariffs on sensitive imports, such as refined sugar, have started to pop up. By far the most serious barriers to
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trade and the ones most frequently used are non-tariff barriers. The ever more complex and constantly changing trade regimes of many CIS countries have also opened the door for corruption and smuggling.). [FN53]. See Theodore P. Gerber, Membership Benefits or Selection Effects? Why Former Communist Party Members Do Better in Post-Soviet Russia, 29 Social Science Research 25, 47 (2000) (It seems likely that such individual attributes as ambition, career-mindedness, a willingness to submit to organizational discipline, a penchant for organizational and administrative work, and perhaps what might be termed opportunism may characterize Party members. These attributes are just as readily translated into material advantage in market institutional contexts as in the institutional context of the Soviet Union.); Frederico Varese, The Transition to the Market and Corruption in Postsocialist Russia, 45 Poli. Studies 579, 594 (1997) (It is harder to secure property right in the new market economy because the number of criminal opportunities is immense...People have had novel opportunities to cooperate and, at the same time, to defect, to cheat, and to commit crimes.). [FN54]. See Stephan K. Batalden & Sandra L. Batalden, The Newly Independent States of Eurasia: Handbook of Former Soviet Republics 18 (1997) (considering factional conflict within the Russian Soviet Federative Socialist Republic at the outset of the CIS); see also Scott L. Greer, Questioning Geopolitics: Political Projects in a Changing World-System 216-17 (2000) (noting the factionalism prevalent within the nomenklatura); Boris Grushin, The Emergence of a New Elite: Harbinger of the Future or Vestige of the Past, in The New Elite in Post-Communist Eastern Europe 53, 57 (Vladimir Shlapentokh et al. eds., 1999) (discussing the lack of vision prevalent in CIS elites). [FN55]. See Roberts & Wehrheim, supra note 52, at 323 (Ten years after the break up of the USSR, CIS countries are still struggling to find the appropriate format to govern their mutual trade relations. At present a patchwork of half-implemented bilateral agreements and a series of paper framework agreements govern intra-CIS trade relations. Most of the RTAs among CIS member states remain de jure agreements. If one were to characterise this institutional framework, one might term it managed disintegration.). [FN56]. See Commonwealth of Independent States tp://www.globalsecurity.org/military/world/int/cis.htm. (CIS), GlobalSecurity.org (Aug. 24, 2011), ht-
[FN57]. See Rilka Dragneva & Joop de Kort, Russia's Role in Fostering the CIS Trade Regime, Memorandum from the Dept. of Econ. Research of Leiden University 9 (Mar. 2006), available at http://ssrn.com/abstract=1440809 (The CIS was burdened with ambivalent goals. On the one hand, it aimed to assist the newly independent countries to gain economic independence, while on the other hand it was the intended institution to bring the newly independent states together in an economic union. The ambivalent character of the CIS, and the increasing self-consciousness, both politically and economically, of the newly independent states, resulted in numerous bilateral and multilateral agreements at the same time.). [FN58]. See Margot Light, International Relations of Russia and the Commonwealth of Independent States, in 1999 Eastern Europe and the Commonwealth of Independent States 21 (4th ed.1999). [FN59]. See Philip Hanson, The Economics of the Former USSR: An Overview, in 1999 Eastern Europe and the Commonwealth of Independent States 74, 79 (4th ed. 1998). [FN60]. See Leonard Orland, Perspectives on Soviet Economic Crime, in Soviet Law and Economy 169, 177-78 (Olimpiad S. Ioffe & Mark W. Janis eds.) (1987) (outlining what defined a Soviet-era economic criminal). See generally Charles A. Schwartz, Economic Crime in the USSR: A Comparison of the Khrushchev and Brezhnev Eras, 30 Int'l & Comp. L.Q. 281, 295 (1981) (discussing the scaling back of the rigidity of economic rules allowing more economic freedom). [FN61]. Nonetheless, its failure was remarkable in that it contributed to the peaceful transition from one-party dictatorships to independent republics with varying degrees of democratic participatory government.
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[FN62]. See Stephen Kux, From the USSR to the Commonwealth of Independent States: Confederation or Civilized Divorce, in Federalizing Europe? 325, 346-347 (Joachim Jens Hesse &Vincent Wright eds. 1996). [FN63]. What can be observed in the CIS is that economic cooperation takes the form of overlapping bilateral and multilateral agreements of very distinct legal quality. From an economic point of view it does not make sense that countries that have concluded a multilateral free trade agreement, as the CIS countries did in 1994, an agreement that they amended in 1999, subsequently conclude bilateral free trade agreements with their partners as well. It creates overlap, increases transaction costs, and obfuscates the status of multilateral and bilateral agreements. See Dragneva & de Kort, supra note 57, at 1. [FN64]. Id. (What can be observed in the CIS is that economic cooperation takes the form of overlapping bilateral and multilateral agreements of very distinct legal quality. From an economic point of view it does not make sense that countries that have concluded a multilateral free trade agreement, as the CIS countries did in 1994, an agreement that they amended in 1999, subsequently conclude bilateral free trade agreements with their partners as well. It creates overlap, increases transaction costs, and obfuscates the status of multilateral and bilateral agreements.). [FN65]. See id. (The agreements that are concluded often are partial and selective, while their ratification and implementation also is a mixed affair.). [FN66]. See id. at 3 (The CIS trade regime can be described as a symbiosis between bilateral and multilateral regimes, both of which can be described as weak regimes. Bilateral agreements cover some key free trade rules, such as tariffs, but remain minimal and quite basic. Non-tariff barriers, for instance, are generally left out, as are liberalisation of services or intellectual property to name a few issues that have become important in international trade agreements. Disputes are generally resolved through consultations). [FN67]. The central concept to the foundation of the European Union as an economic area are the four freedoms (basic rights): the free movement of goods, workers, capital and of enterprises among the Member States. See, e.g., Engle, Europe Deciphered, supra note 2. [FN68]. Knud Erik Jrgensen, The Social Construction of the Acquis Communautaire: A Cornerstone of the European Edifice, 3 European Integration online Papers 1, 3, 10-12 (Apr. 29, 1999), http://eiop.or.at/eiop/texte/1999-005a.htm (using the Nietzsche-Foucauldian genealogical method to explore various definitions of acquis communautaire); Acquis Communautaire, BBC News (Apr. 30, 2001), http://news.bbc.co.uk/1/hi/in_depth/europe/euro-glossary/1216329.stm. [FN69]. Dragneva & de Kort, supra note 57, at 2 ([T]he CIS presents a mix of, often overlapping, bilateral and multilateral agreements. The picture gets even more complicated as bilateral and multilateral agreements often differ in the strength of commitment they require from the signatories. Bilateral agreements rarely envision a mechanism for resolving disputes between its parties, relying on negotiations to do so. Multilateral agreements on the other hand often do attempt to strengthen the bindingness of the commitments undertaken. In 1993, the Treaty of the Economic Union even went as far as to strengthen the role of the Economic Court, by requiring that if the Economic Court recognises that [...] a member state has not fulfilled its obligation ensuing from the Treaty, this state is obliged to take measures connected with the implementation of the decision of the Economic Court. A year later, in 1994, a Free Trade Agreement (FTA) was concluded which undermines' the position of the Economic Court...). [FN70]. About EurAsEC, Ebpackoe kohom?eckoe Cooectbo (Aug. 24, 2011), http://www.evrazes.com/en/about ([A] customs union within the EurAsEC framework, with the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation as initial members. Other EurAsEC member states will join the customs union when their economies are ready to take this step.). [FN71]. Roberts & Wehrheim, supra note 52, at 321 (Russia and two other CIS countries - Kazakhstan and Belarus -
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established a customs union (CU) in 1995. The Kyrgyz Republic joined in March 1996 and Tajikistan in 1999. The text of the customs provided for discontinuation of all trade tariffs between member countries, tariffs for trade with other countries were adjusted to one level, [i.e., harmonized into a common external tariff] and the system of privileges was unified. In addition, certain measures were taken to unify tax policy (tax rates and application of indirect taxes). The agreements on the customs union called for coordination of customs, excise, and value-added dues.). [FN72]. See, e.g., Engle, Europe Deciphered, supra note 2, at 75. [FN73]. See Jrgensen, supra note 68, at 3. [FN74]. Clemens L. J. Siermann, Politics, Institutions, and the Economic Performance of Nations 131 (Edward Elgar Publ'g 1998). [FN75]. Nat'l Intelligence Council, Conference Report, Russia in the International System (June 1, 2001), http://www.dni.gov/nic/confreports_ russiainter.html (Living in the post-Cold War era has lent some air of stability--a peace dividend--to life in Russia. This may have a positive effect on the development of the economy and democratic institutions.). [FN76]. Eleanor Bindman, Russia's Response to the EU's Human Rights Policy, OpenDemocracy.net (Oct. 1, 2010), http://www.opendemocracy.net/od-russia/eleanor-bindman/russiaSrs-response-to-euSrs-human-rights-policy ([T]he election of President Medvedev in 2008 has led to gradual changes in the previously more hard-line policy regarding human rights in EU-Russia relations. The new foreign policy doctrine appears to emphasise less confrontational and more pragmatic relations with partners such as the EU with the aim of promoting Russia's modernisation.); Human Rights Watch, 2011 World Report 456, 460, 462 (2011), available at http://www.hrw.org/en/world-report-2011/russia (In 2010 Russia demonstrated increased openness to international cooperation on human rights ... In January 2010- after years of delay - Russia ratified Protocol 14 to the European Convention for Human Rights, becoming the last Council of Europe (CoE) member state to do so. Protocol 14 streamlines the case review process at the ECtHR and strengthens the enforcement mechanisms of the CoE's Committee of Ministers.... In 2010 Russia showed some improved cooperation on human rights, but Russia's international partners did not do enough to encourage human rights reform.). [FN77]. Elena Klitsounova, Promoting Human Rights in Russia by Supporting NGOs: How to Improve EU Strategies 19 (Ctr. for European Policies Studies, Working Document, No. 19, Apr. 2008), available at www.ceps.be/system/files/book/1637.pdf. [FN78]. See, e.g., U.N. Econ. & Soc. Comm'n for W. Asia, Assessment of Trade Policy Trends and Implications for the Economic Performance of the ESCWA Region, at 3, U.N. Doc E/ESCWA/EDGD/2009/1 (Apr. 14, 2009), available at http://www.escwa.un.org/information/publications/edit/upload/edgd-09-1-e.pdf. [FN79]. Siermann, supra note 74, at 131. [FN80]. Sanford J. Ungar & Peter Vale, South Africa: Why Constructive Engagement Failed, 64 Foreign Aff. 234 (Winter 1985/86) (defining constructive engagement), available at http://www.foreignaffairs.com/articles/40525/sanford-j-ungar-and-peter-vale/south-africa-why-constructive-engageme nt-failed. [FN81]. See, e.g, Paul Craig & Grinne De Brca, EU Law: Text, Cases, and Materials 3-6 (2008). [FN82]. tefan Fle, Address at Columbia tp://www.europa-eu-un.org/articles/fr/article_10447_fr.htm. University (Aug. 25, 2011), ht-
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[FN83]. Zbigniew Brzezinski, Living With Russia, 61 The National Interest 5, 5 (Fall 2000) (Both Russia and China may be susceptible to a strategy aimed at their inclusion in cooperative international structures. To that end, two Eurasian power triangles must be steadily managed and, over time, more directly connected: one involving the United States, the European Union and Russia; and the other involving the United States, Japan and China. For that linkage to be effective, the constructive engagement of Russia is essential.); Jonathan M. Winer & Phil Williams, Russian Crime and Corruption in an Era of Globalization: Implications for the United States, in Russia's Uncertain Future, S. Prt. 107-5, at 97, 121 (Joint Comm. Print 2001), available at http://econ.la.psu.edu/~ bickes/jecrussia.pdf (Following the collapse of the Soviet Union and the ascendancy of Boris Yeltsin, U.S. policy could be defined in brief as one of constructive engagement, in which the United States aggressively and assiduously worked to secure Russian integration with the world economy, Russian political, economic and legal reform, and democratization.); see Graham Timmins, German-Russian Bilateral Relations and EU Policy on Russia: Reconciling the Two-Level Game?, in Russia and Europe in the Twenty-First Century: An Uneasy Partnership 169-70 (Jackie Gower & Graham Timmins eds., 2009) (describing diplomatic tensions between a post-Putin CIS and the European Union). [FN84]. See Siermann, supra 74, at 131; Fle, supra note 82. [FN85]. Karl Marx & Friedrich Engels, The Communist Manifesto 11 (The Echo Library 2009) (1888). [FN86]. See, e.g., Damian Chalmers et al., European Union Law: Cases and Materials 7 (Cambridge Univ. Press 2010). [FN87]. See generally Peter Brger, Theory of the Avant-Garde (Michael Shaw trans., Univ. of Minn. Press 1984). [FN88]. See Vladimir Ilyich Lenin, Imperialism, the Highest Stage of Capitalism (1916), reprinted in 1 Lenin: Selected Works 667 (Progress Publishers 1963), available at http:// www.marxists.org/archive/lenin/works/1916/imp-hsc/ch09.htm. [FN89]. See 1 Karl Marx, Capital (Samuel Moore & Edward Aveling trans., Frederick Engles ed., 1867), available at http:// www.marxists.org/archive/marx/works/1867-c1/; 2 Karl Marx, Capital (I. Lasker trans., Progress Publisher 1956) (1885), available at http:// www.marxists.org/archive/marx/works/1885-c2/index.htm; 3 Karl Marx, Capital (Tim Delaney et al. trans., 1999) (1894), available at http:// www.marxists.org/archive/marx/works/download/pdf/Capital-Volume-III.pdf; see also Vladimir Ilyich Lenin, State and Revolution (1917), in 25 Collected Works 381-492, available at http:// marxists.org/archive/lenin/works/1917/staterev/index.htm; Marx & Engels, supra note 85, at ch. 2. [FN90]. Friedrich Engels & Karl Marx, Socialism: Utopian and Scientific 68 (Andrew Moore ed., Edward Aveling trans., Mondial 2006). [FN91]. See, e.g., USSR Constitution, supra note 3, at art. 4 (The socialist system of economy and the socialist ownership of the means and instruments of production firmly established as a result of the abolition of the capitalist system of economy, the abrogation of private ownership of the means and instruments of production and the abolition of the exploitation of man by man, constitute' the economic foundation of the U.S.S.R. 1936.). [FN92]. See, e.g., Treaty of Rome, supra note 45, at pmbl. [FN93]. White, supra note 5, at 43. [FN94]. See generally Robert Whitesell, Why Does the Soviet Economy Appear to be Allocatively Efficient?, 42 Soviet Studies 259, 259-268 (Apr. 1990). [FN95]. Zigurds L. Zile, Consumer Product Quality in Soviet Law: The Tried and the Changing, in 2 Soviet Law After Stalin: Social Engineering Through Law 202 (Donald D. Barry ed., 1978) (discussing the rising quality of So-
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viet goods between 1960s and 1970s). [FN96]. See Engle, A Social-Market, supra note 29, at 42. [FN97]. Id. [FN98]. Id. [FN99]. Engle, A Social-Market, supra note 29. [FN100]. See generally Ludwig von Mises, Introduction to Ludwig von Mises, Economic Calculation in the Socialist Commonwealth 2, 2-3 (S. Alder trans., 1920), available at http://mises.org/econcalc.asp. [FN101]. I mean liberalism in the sense intended by Aristotle and Locke; an open democratic form of governance in which people are free to enter into economic transactions as they themselves choose. See John Locke, Second Treatise of Civil Government (1690), available at http:// www.constitution.org/jl/2ndtreat.htm. [FN102]. See, e.g., Milton Friedman, Capitalism and Freedom (Univ. of Chicago Press 1962). While I critique certain points of Friedman, Friedman's views on monetary policy seem entirely correct to me and replaced the failed theory of John Maynard Keynes's General Theory of Employment, Interest and Money. Compare Friedman, supra, with Eric Engle, Lex Naturalis, Ius Naturalis 220-428 (Donna M. Lyons & Jacob D. Zillhardt eds., 2010), available at http:// tinyurl.com/lexnaturalis, and John Maynard Keynes, General Theory of Employment, Interest and Money (1936), available at http:// www.marxists.org/reference/subject/economics/keynes/general-theory/. [FN103]. World Bank, Belarus: Prices, Markets, and Enterprise Reform 1 (1997). [FN104]. See, e.g., id. [FN105]. Privatization: Lessons from Russia and China - Employment Sector, Int'l Labor Org. (Joseph Prokopenko ed.), available at http:// www.ilo.org/public/english/employment/ent/papers/emd24.htm (By the beginning of 1997 the Russian economy had perhaps reached its lowest point. GNP fell by 6 percent in 1996, compounding a decline of more than 50 per cent since 1991 (although the shadow economy has expanded). Many enterprises are on the brink of collapse; the proportion of loss-making enterprises in the main economic sectors is approximately 43 per cent.). [FN106]. See, e.g., D. A. Barr & M. G. Field, The Current State of Health Care in the Former Soviet Union: Implications for Health Care Policy and Reform, 86 Am. J. Pub. Health 307, 308 (1996). [FN107]. See, e.g., Amazu A. Asouza, International Commercial Arbitration and African States: Practice, Participation and Institutional Development 42 (2001); Henry J. Steiner, in Do Human Rights Require a Particular Form of Democracy?, in Democracy, the Rule of Law and Islam 193, 202-204 (Eugene Cotran & Adel Omar Sherif eds., 1999); Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1 (2008). [FN108]. See, e.g., Thomas Carothers, The Rule of Law Revival, 77 Foreign Aff. 95, 96-97 (1998). [FN109]. Eva Etzioni Halevy, Fragile Democracy: The Use and Abuse of Power in Western Societies 16 (1989); David Held, Models of Democracy 164 (2006); Joseph A. Schumpeter, Capitalism, Socialism, and Democracy 269-83 (1942); see Harry Eckstein et al., Can Democracy Take Root in Post-Soviet Russia?: Explorations in State Society Relations 134 (1998) (explaining government institutions in the context of Russia). [FN110]. See Charles Wright Mills & Alan Wolfe, The Power Elite 3-4 (2000). [FN111]. Anne Peters argues, as does this paper, for legitimation ex post i.e. legitimation by success. See Anne Peters, Elemente einer Theorie der Verfassung Europas 517, 580 (2001); see also Andrew Arato, Dilemmas Arising
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from the Power to Create Constitutions in Eastern Europe, Constitutionalism, Identity, Difference, and Legitimacy: Theoretical Perspectives 165, 186 (Michel Rosenfeld ed., 1994); Alan Keenan, Democracy In Question: Democratic Openness in a Time of Political Closure 28 (2003). [FN112]. See, e.g., Richard Bellamy & Dario Castiglione, Constitutionalism and Democracy - Political Theory and the American Constitution, 27 Brit. J. Pol. Sci. 595 (1997). [FN113]. David Silverstein & Daniel C. Hohler, A Rule-Of-Law Metric for Quantifying and Assessing the Changing Legal Environment of Business, 47 Am. Bus. L.J. 795, 818-19 (2010) (For more than half a century, a prevailing view motivating Western foreign aid approaches was that rule of law correlated in some positive and significant way with economic development and an attractive business climate for foreign investment .... More recent literature in this field, however, has led to growing skepticism about the validity and general application of the assumptions that served as the touchstones for Western development initiatives. Debate continues, for example, over whether a causal relationship between rule of law and a successful market economy exists and, if so, in which direction that causation runs, whether these variables may be mutually reinforcing, what key elements characterize a rule-of-law system, and how does one explain away the many anomalies.) [FN114]. See, e.g., Edgardo Buscaglia, U.N. Office for Drug Control & Crime Prevention [UNODCCP], Ctr. for Int'l Crime Prevention [CICP], Judicial Corruption in Developing Countries: Its Causes and Economic Consequences 6-7, U.N. Doc. CICP-14 (Mar. 2001), available at http:// www.unodc.org/pdf/crime/gpacpublications/cicp14.pdf. [FN115]. Frank Richardson, Pro Bono Work Has Burgeoned Over the Past Few Years Both Geographically and in Its Legal Range, 64 Int'l B. News 26 (Aug. 2010) (explaining the positive correlation between rule of law and economic performance; negative correlation between corruption and economic performance). [FN116]. There is a plethora of literature, much of it contradictory, on the relationships among the rule of law, prosperity, democracy, and human rights. See, e.g., Susan D. Franck, Judicial Independence and Legal Infrastructure: Essential Partners for Economic Development: Foreign Direct Investment, Investment Treaty Arbitration, and Rule of Law, 19 Pac. McGeorge Global Bus. & Div. L.J. 337, 342-43 (2007); Stephan Haggard et al., The Rule of Law and Economic Development, 11 Ann. Rev. Pol. Sci. 205 (2008); James R. Jones, Open Markets, Competitive Democracy, and Transparent and Reliable Legal Systems: The Three Legs of Development, 83 Chi.-Kent L. Rev. 25 (2008); Randall Peerenboom. Social Networks, Rule of Law and Economic Growth in China: The Elusive Pursuit of the Right Combination of Private and Public Ordering, 31Global Econ. Rev. 3 (2002); John Hewko, Foreign Direct Investment: Does the Rule of Law Matter? (Carnegie Endowment for Int'l Peace, Democracy and Rule of Law Project, Working Paper No. 26, 2002), available at http:// carnegieendowment.org/files/wp26.pdf. [FN117]. See generally G. A. Cohen, Base and Superstructure: A Reply to Hugh Collins, 9 Oxford J. Legal Stud. 95 (1989). [FN118]. The dialectical relationship between the material forces of production (base) and the ideological relations of productions (superstructure) is a basic tenet of Marxism. See Karl Marx, Preface to A Contribution to the Critique of Political Economy (R. Rojas trans., Progress Publishers 1977) (1859), available at http://www.marxists.org/archive/marx/works/1859/critique-pol-economy/preface. [FN119]. See, e.g., Karl Marx, Afterword to the Second German Edition, Capital (1873); Marx, Capital, supra note 87, at ch. 24 1; see also Friedrich Engels, Dialectics of Nature (Andy Bluden et al. trans., 2006) (1883), available at http://www.marxists.org/archive/marx/works/1883/don/index.htm. [FN120]. See generally Engle, Marxism, supra note 16. [FN121]. See Pamela K. Star, The Two Politics of NAFTA in Mexico, 16 L. & Bus. Rev. Am. 839, 841 (2010)
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(discussing how trade liberalization, economic performance, democratization are correlated positively); see, e.g., North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 289 (1993). [FN122]. See, e.g., Jean Ziegler, Special Rapporteur on the Right to Food, Economic, Social and Cultural Rights: The Right to Food, U.N. Doc. E/CN.4/2001/53 (Feb. 7, 2001), available at http:// www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/f45ea4df67ecca98c1256a0300340453? Opendocument (indicating that a well-functioning economy facilitates the furtherance of the right to eat). [FN123]. As a theory of sociology, functionalism analogizes society to an organism, with each member having particular functions, like organs of a body. See, e.g., Kent McClelland, Functionalism, Grinnell College (Oct. 15, 2011, 12:15 PM), http://web.grinnell.edu/courses/soc/s00/soc111-01/IntroTheories/Functionalism.html. [FN124]. Steve Charnovitz, Triangulating The World Trade Organization, 96 Am. J. Int'l L. 28, 48 (2002) (The core idea of functionalism is that international governance should be organized according to tasks' and functional lines.). [FN125]. Bartram S. Brown, The United States and the Politicization of the World Bank: Issues of International Law and Policy 14-15 (1992) (Functionalism is a theory of international organization which holds that a world community can best be achieved not by attempts at the immediate political union of states, but by the creation of nonpolitical international agencies dealing with specific economic, social, technical, or humanitarian functions. Functionalists assume that economic, social and technical problems can be separated from political problems and insulated from political pressures.). [FN126]. Juliet Lodge, Preface: The Challenge of the Future, in The European Community and the Challenge of the Future, at xix (Juliet Lodge ed., 2d ed. 1993) (The logic behind the approach is to prevent war not negatively - by keeping states apart - but positively by engaging them in cooperative ventures ... to establish functionally specific agencies, initially in what were then seen as non-contentious areas like welfare. These were to transcend national boundaries and be managed by rational technocrats (not swung by the vagaries of political ideology and powerhungry political parties) owing their allegiance to a functionally specific organization not to a given nation state ... Their tasks will cover those areas of the economy essential to running military machines. Governments, deprived of control over those areas, will be unable to pursue war and will eventually be left to manage residual areas not covered by functional bodies ...). [FN127]. Sabino Cassese, European Administrative Proceedings, 68 L. & Contemp. Probs. 21, 23 (2004) (functionalism ... has enabled the incremental, progressive development of the European Union). [FN128]. Lodge, supra note 126 (Functionalism starts from the premise that by promoting functional cooperation among states it may be possible to deter them from settling disputes over competition for scarce resources aggressively.). [FN129]. There is vast literature on functionalism. See, e.g., Ernst B. Haas, The Uniting of Europe: Political, Social, and Economic Forces, 1950-57 (Stanford Univ. Press 2004). [FN130]. Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 Am. J. Int'l L. 260, 283 (1940) (Grandiose legalistic schemes purporting to solve the ills of the world have replaced the less spectacular, painstaking search for the actual laws and the facts underlying them.). [FN131]. See id. at 284. [FN132]. Ernest A. Young, The Trouble With Global Constitutionalism, 38 Tex. Int'l L.J. 527, 540 n.86 (2003) (The neo-functionalist theory that has driven much of European integration, for example, posits that supranational institu-
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tions formed for fairly narrow purposes will attract political support over time and will thereby be able to expand their functions.) (citing Ben Rosamond, Theories of European Integration 51-52 (2000)). [FN133]. Lodge, supra note 126 (Neofunctionalists have a common starting point with functionalists in their attachment to ... learning processes, allegedly apolitical, technocratic socio-economic welfare functions, consensus-building and functional specificity, neofunctionalists adopt a pluralist perspective. They argue that competitive economic and political elites mediate in the process and not only become involved in it but become key players.... Neofunctional integration sees integration as a process based on spillover from one initially non-controversial, technical sector to other sectors of possibly greater political salience, involving a gradual reduction in the power of national government and a commensurate increase in the ability of the centre to deal with sensitive, politically charged issues.). [FN134]. Jackie Gower, EC Relations with Central and Eastern Europe, in The European Community and the Challenge of the Future 286 (Juliet Lodge ed., St. Martin's Press, 2d ed. 1993). [FN135]. See Eric Allen Engle, Universal Human Rights: A Generational History, 12 Ann. Surv. Int'l & Comp. L. 219, 236 n.120 (2006), available at http://ssrn.com/abstract=1020464 (explaining the hierarchical evolution of human rights); see also Engle, Lex Naturalis, supra note 102 (discussing the logical hierarchization of human rights). [FN136]. See, e.g., Jim Ife, Human Rights and Social Work: Towards Rights-Based Practice 83 (2001). [FN137]. Universal Declaration of Human Rights, art. 25 P 1, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948), available at http:// www.un.org/en/documents/udhr/ (Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.). [FN138]. Amitava Mukherjee, Hunger: Theory, Perspectives and Reality 83-84 (2002). [FN139]. See e.g., Babu Joseph, Human Rights and Poverty: A Philosophical Perspective, in 2 Human Rights and Poverty in India: Theoretical Issues and Empirical Evidences 24 (S. N. Chaudhary ed., 2005). [FN140]. See, e.g., Paul C. Adams, Atlantic Reverberations: French Representations of an American Presidential Election 50 (2007) (discussing how whole forests have been felled to rehash the famous issue of democratic deficit); see also Jeffrey J. Anderson, Introduction to Regional Integration and Democracy: Expanding on the European Experience 1 (Jeffrey J. Anderson ed., 1999). [FN141]. C. G. H., From Lisbon to Vladivostok': Putin Envisions a Russia-EU Free Trade Zone, Spiegel Online Int'l (Nov. 25, 2010, 11:44 AM), http:// www.spiegel.de/international/europe/0,1518,731109,00.html. [FN142]. Valentina Pop, Putin Proposes Russia-EU Union, EU Observer (Nov. 26, 2010, 09:29 AM), http://euobserver.com/19/31361. [FN143]. Joseph Schumpeter, The Theory of Economic Development 154 (Redvers Opie trans., 1934). [FN144]. European Parliament Resolution of 17 June 2010 on the Conclusions of the EU/Russia Summit (31 May - 1 June 2010), 2011 O.J. (C 236 E/103) para. 1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:C:2011:236E:0101:0104:EN:PDF [hereinafter EU/Russia Summit]. [FN145]. See, e.g., Berlusconi Wants EU-Russia Visa Tegime to be Scrapped, Rianovosti (Apr. 18, 2008, 7:25 PM), http:// en.rian.ru/world/20080418/105424007.html. [FN146]. Balance Human Rights & Energy with Russia Says Knut Fleckenstein MEP, European Parliament (June 23,
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2010, 2:52 PM), http:// www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IM-PRESS&reference=20100618STO76329 (The European Union's relationship with Russia is one of its most important and most complicated. Strong trade and energy ties bind both although many in the EU are concerned about Moscow's human rights record.). [FN147]. Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, Renewable Energy Sources in Figures 8 (2010), available at http://www.erneuerbare-energien.de/files/english/pdf/application/pdf/broschuere_ee_zahlen_en_bf.pdf (The expansion of renewable energy sources in Germany has been an exemplary success. Since 2000, renewable energies' contribution to final energy supply has increased 2.5-fold to a level of 10.3 %. In the electricity sector, the German Government had originally aimed to achieve a 12.5 % renewables' share of gross electricity demand by 2010. This target was already surpassed, considerably, by 2007. In 2009, a share of over 16% had been reached.). [FN148]. Eben Harrell, Germany Decides to Extend Nuclear Power, Time (Sept. 6, 2010, 7:38 AM), http://ecocentric.blogs.time.com/2010/09/06/germany-decides-to-extend-nuclear-power/ (Every [sic] since Chernobyl puffed its radioactive plume over Europe in 1986, Germany has been deeply suspicious of nuclear power. Opposition to Atomkraft is at the center of the country's green movement, and almost a decade ago the country decided to phase out its nuclear plants by 2021.). [FN149]. Nuclear Power in France, World Nuclear Ass'n (Oct. 15, 2011, 12:35 PM), http://www.world-nuclear.org/info/inf40.html (France derives over 75% of its electricity from nuclear energy. This is due to a long-standing policy based on energy security.). [FN150]. Sasol's Synthetic Fuels Go Global, S. tp://www.southafrica.info/business/success/sasol-130307.htm. Africa Info (Mar. 16, 2007), ht-
[FN151]. Larry Rohter, With Big Boost from Sugar Cane, Brazil Is Satisfying its Fuel Needs, N.Y. Times (Apr. 10, 2006), http:// www.nytimes.com/2006/04/10/world/americas/10brazil.html?_ r=1&pagewanted=1&sq=Bush%20Brazil%20ethanol&st=nyt&scp=5. [FN152]. Marshall Goldman, Petrostate: Putin, Power and the New Russia 136-70 (Oxford Univ. Press 2010). [FN153]. Dina R. Spechler & Martin C. Spechler, The Soviet Union and the Oil Weapon: Benefits and Dilemmas, in The Limits to Power: Soviet Policy in the Middle East 96, 96-98 (Yaacov Ro'i ed., 1979). [FN154]. See, e.g., Europe and Russia's Resources: We Are Mutually Dependent on Each Other, Spiegel Online Int'l (July 14, 2006), http:// www.spiegel.de/international/spiegel/0,1518,426555,00.html. [FN155]. See, e.g., Cline Charvriat & Romain Benicchio, Trade and Human Rights: Friends or Foes?, in Peace and Prosperity Through World Trade 279 (Fabrice Lehmann & Jean-Pierre Lehmann eds., 2010); Craig Forcese, Human Rights Mean Business: Broadening the Canadian Approach to Business and Human Rights, in Giving Meaning to Economic, Social, and Cultural Rights 74 (Isfahan Merali & Valerie Oosterveld eds., 2001); Adam Gearey, Globalization and Law: Trade, Rights, War 133 (2005). [FN156]. Directorate-General for Trade, Trade: Russia (Bilateral relations), European Comm'n (Oct. 7, 2011), http://ec.europa.eu/trade/creating-opportunities/bilateral-relations/countries/russia/index_en.htm (The EU is by far Russia's main trading partner, accounting for 52.3% of its overall trade turnover in 2008. It is also by far the most important investor in Russia.). [FN157]. Press Releases, European Union, Review of Russia-EU Relations (Nov. 5, 2008) http://europa.eu/rapid/pressReleasesAction.do? reference=MEMO/08/678&format= (Trade and investment between
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the EU and Russia are substantial and growing, and it is in our mutual interest that this trend should continue. Russia is our third most important trading partner and we see growth rates of up to 20% every year. Energy is a major factor, but impressive growth figures have also been seen in services. With its sustained high growth rates and emerging middle class, Russia is an important emerging market on our doorstep that offers opportunities to EU enterprises. The EU is the major investor in Russia, accounting for 80% of cumulative foreign investment.) [hereinafter Russia-EU Relations]. [FN158]. European External Action Service, Freedom, Security and Justice, European Union (Oct. 15, 2011, 4:50 PM), http:// www.eeas.europa.eu/russia/common_spaces/fsj_en.htm (The EU has supported the development of democracy, the protection of human rights and the development of a healthy civil society in Russia notably through the European Initiative for Democracy and Human Rights (EIDHR).) [hereinafter Freedom, Security and Justice]. [FN159]. With democracy, respect for human rights, fundamental freedoms and the rule of law an essential element of EU-Russia relations, it is only natural that these issues are regularly discussed at all levels. In 2005 regular, sixmonthly EU-Russia human rights consultations were established. They have provided for a substantial dialogue on human rights issues in Russia and the EU and on EU-Russian cooperation on human rights issues in international fora. The EU also maintains a regular dialogue with both Russian and international NGOs on human rights issues. Issues that the EU raises with Russia in the human rights consultations include: the human rights situation in Chechnya and the rest of the North Caucasus, including torture and ill-treatment; freedom of expression and assembly, including freedom of the media; the situation of civil society in Russia, notably in light of the laws on NGOs and extremist activities; the functioning of the judiciary, including independence issues; the observation of human rights standards by law enforcement officials; racism and xenophobia; legislation relating to elections. For its part the Russian side raises matters of concern to it in developments inside the EU. Id. (The EU has supported the development of democracy.). [FN160]. European Union Action Plan on Common Action for the Russian Federation on Combating Organised Crime, 2000 O.J. (C 106/5) 1, available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:C:2000:106:0005:0012:EN:PDF. [FN161]. EU/Russia Summit, supra note 144, at para. 1 ([the EU] [r]eaffirms its belief that Russia remains one of the EU's most important partners in building long-term cooperation and a commitment to working together to address common challenges by means of a balanced, results-oriented approach based on democracy and the rule of law.). [FN162]. See, e.g., Maria Elena Efthymiou, Fact Sheets on the European Union: Russian Federation, European Parliament (Jan. 25, 2011), http:// www.europarl.europa.eu/parliament/expert/displayFtu.do?language=EN& id=73&ftuId=FTU_6.4.2.html (The fundamental values and principles of democracy, human rights, the rule of law and the market economy underpin the EU-Russia bilateral relationship and its legal basis, the Partnership and Cooperation Agreement (PCA). Russia and the EU are committed to work together to combat new threats to international security, such as terrorism, organised crime, illegal migration and trafficking in people as well as drugs.). [FN163]. See, e.g., EU/Russia Summit, supra note 144, at para. F (whereas, as a member of the Council of Europe and of the Organisation for Security and Cooperation in Europe (OSCE), Russia has committed itself to protect and promote human rights, fundamental freedoms and the rule of law, and to respect the sovereignty of its European neighbours; whereas EU-Russia relations have faced a number of serious challenges over the last few years, notably as regards concerns about democracy and human rights in Russia). [FN164]. Cf. Smock, Kozlovsky on Russia's Failed Democracy, BoycottSochi.eu (Nov. 24, 2009), http://boycottsochi.eu/breaking-human-rights/401-kozlovsky-on-russias-failed-democracy (reviewing Oleg Kozlovsky, Russia: Lessons of Russia's Failed Liberalization, in 20 Years Ago, 20 Years Ahead: Young Liberal Ideas (Ulrich Niemann & Neli Kaloyanova eds., 2009)) (Property rights are not guaranteed and can easily be violated via the cor-
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rupt police, courts and other government agencies. As a result, free markets cannot function and the best competitor is not the most efficient but the one with the best connections. ). While I respectfully think Mr. Kozlovsky overstates the case, his identification of the rule of law as a needed precondition to the most productive open market economy is accurate. However, I argue that even a corrupt yet productive economy will generate improved human rights protection and the rule of law indirectly over time, but not as rapidly as a clean economy would. Corruption is a significant transaction cost and a source of inefficiency. [FN165]. Cf. Country Strategy Paper 2007-2013: Russian Federation, European Union, at 3 (2007), http://ec.europa.eu/external_relations/russia/docs/2007-2013_en.pdf (The EU places emphasis on the promotion of democracy, the rule of law and good governance in general, as well as respect for human rights and fundamental freedoms.). [FN166]. See Sergei Guriev, Tackling Corruption in the Russian Economy, openDemocracy.net (Nov. 12, 2009), http://www.opendemocracy.net/od-russia/sergei-guriev/tackling-corruption-in-russian-economy (Growth requires specific economic institutions: the protection of ownership rights and of competition, the fulfillment of contracts (i.e. an independent and effective court system.). [FN167]. Cf. Murad Tangiev, Political Leadership and Transitional Democracy in the Russian Federation: Challenges and Prospects, 11 J. Peace Conflict & Dev. 3 (2007) (Democracy and human rights are considered to be fundamental prerequisites for a [sic] sustainable development and long-term peace.). [FN168]. See, e.g., Jonathan D. Weiler, Human Rights in Post-Soviet Russia, Demokratizatsiya (Spring 2002), available at http:// findarticles.com/p/articles/mi_qa3996/is_200204/ai_n9062371/ (declining state capacity, fiscal austerity, and growing social inequality, characteristic features of many of the new democracies, translate into gross violations of the rights of socially vulnerable groups.). [FN169]. See EU-Russia Energy Relations, European Comm'n (Sept. 13, 2011), http://ec.europa.eu/energy/international/russia/russia_en.htm (The Russian Federation is the 3rd biggest world trade partner of the EU. Energy represents 65% of total EU imports from Russia. Russia is the biggest oil, gas, uranium and coal exporter to the EU. In 2007, 44.5% of total EU's gas imports (150bcm), 33.05% of total EU's crude oil imports, and 26% of total EU coal imports came from Russia. In total, around 24% of total EU gas sources are originating from Russia. In general, energy dependency varies significantly between different Member States / regions in the EU. The EU is by far the largest trade partner of the Russian Federation: 45% of Russia imports originate from the EU, and 55% of its exports go to the EU, including 88% of Russia's total oil exports, 70% of its gas exports and 50% of its coal exports. The export of raw materials to the EU represents around 40% of the Russian budget, and the EU represents 80% of cumulative foreign investments in Russia.). [FN170]. See id. ([F]ollowing the gas crisis from 2009, it is essential to reinforce mutual confidence and to establish a strong and stable legal framework for EU-Russia energy relations.). [FN171]. Paul D'Anieri, International Politics: Power and Purpose in Global Affairs 184 (2d ed. 2010); see Brink Lindsey, Against the Dead Hand: The Uncertain Struggle for Global Capitalism 71 (2002). [FN172]. Russia, Office of the U.S. Trade Representative (Aug. 30, 2011), http://www.ustr.gov/countries-regions/europe-middle-east/russia-and-eurasia/russia (Russia is currently our 24th largest goods trading partner with $31.7 billion in total (two way) goods trade during 2010. Goods exports totaled $6.0 billion; Goods imports totaled $25.7 billion. The U.S. goods trade deficit with Russia was $19.7 billion in 2010. Russia was the United States' 37th largest goods export market in 2010 U.S. goods exports to Russia in 2010 were $6.0 billion, up 11.9 percent ($636 million) from 2009.); Trade in Goods with Russia, U.S. Census Bureau, available at http://www.census.gov/foreign-trade/balance/c4621.html#2010 (showing data that in 2010 the U.S. exported but 6.0064 billion dollars of goods to Russia and imported only 25.6910 billion dollars of goods from Russia.).
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[FN173]. See, e.g., Norman A. Graebner, Richard Dean Burns & Joseph M. Siracusa, Reagan, Bush, Gorbachev: Revisiting the End of the Cold War 2, 47 (2008); John Prados, A World of Secrets: Intelligence and Counterintelligence, in The Central Intelligence Agency: Security Under Scrutiny 143 (Athan G. Theoharis et al. eds., 2006) (explaining that errors in U.S. analysis of Russian capabilities and intentions are a fairly consistent historical fact). See generally Eric Engle, Beyond Sovereignty? The State After the Failure of Sovereignty, 15 ILSA J. Int'l & Comp. L. 1 (2008); Engle, Europe Deciphered, supra note 2; Engle, The Transformation, supra note 51; Eric Engle, Working Paper, Contemporary Legal Thought in International Law: A Synopsis (2010), http://www.law.harvard.edu/students/orgs/hela/working% 20papers/2010/EngleContemporaryLegalThought.doc (explaining that this results from 1) individualist method which does not consider historical tendencies of groups 2) presuming the opponent has the same experiences and objectives (failure in opponent modeling) 3) presuming the opponent is an (implacable) adversary and cannot be a partner. These sorts of errors are the result of applying the outmoded realist state centric view of the world to international relations). [FN174]. See Matthew Day, EU Immigration Fears over Polish Visa Deal with Russia, The Independent.ie (Dec. 28, 2010), http://www.independent.ie/world-news/europe/eu-immigration-fears-over-polish-visa-deal-with-russia-2475682.html (Poland is pushing for citizens of the Russian enclave of Kaliningrad to have visa-free travel, despite fears this could increase smuggling and illegal migration into the European Union.). [FN175]. Cf. Freedom, Security and Justice, supra note 158 (Our cooperation contributes to the objective of building a new Europe without dividing lines and facilitating travel between all Europeans while creating conditions for effectively fighting illegal migration. Moreover, the EU has a considerable interest in strengthening cooperation with Russia by jointly addressing common challenges such as organised crime, terrorism and other illegal activities of cross-border nature.). [FN176]. Russia-EU summit: Is Russia Part of Europe?, Rianovosti (June 2, 2010, 5:04 PM), http://en.rian.ru/analysis/20100602/159271440.html (The visa barrier between the EU and its eastern neighbors has been growing stronger since the 1990s as a result of Europe's fear of a wave of poor immigrants from the East. As it turns out, this fear was unjustified. Even after Poland joined the EU and all restrictions on Polish immigration were lifted, Poles continued to immigrate to other European countries legally for jobs they had already secured and with enough travel money in their pockets. There was no wave of immigrants from Belarus, Ukraine or Russia, even though Ukrainians, for example, can get a Schengen visa from Poland free of charge.). [FN177]. Id. [FN178]. Id. [FN179]. Russia to Announce Amnesty for Millions of Illegal Guest-Workers, Russ. Daily News Info. Serv. (Sept. 13, 2011), http://www.english-to-russian-translation.com/russian-translation-news-091105.html (The chairman of the Federal Migration Service said that there were up to 15 million illegal workers living in present-day Russia. About 80 percent of them come from the countries of the former USSR.). [FN180]. Russia Cracking Down on Illegal Migrants, N.Y. tp://www.nytimes.com/2007/01/15/world/europe/15iht-migrate.4211072.html. Times (Jan. 15, 2007), ht-
[FN181]. EU-Russia Common Spaces Progress Report 2009, European Comm'n (Mar. 2010), at 5, available at http://www.st-gaterus.eu/_media/commonspaces_prog_ report_2009_en.pdf (The overall objective of the Common Economic Space is the creation of an open and integrated market between the EU and Russia. ) [hereinafter Progress Report]. [FN182]. See Agreement on Partnership and Cooperation Establishing a Partnership Between the European Com-
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munities and their Member States, of One Part, and the Russian Federation, of the Other Part, 2007 O.J. (L 327), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do? uri=CELEX:21997A1128(01):EN:HTML. [FN183]. See Partnership and Cooperation Agreements (PCAs): Russia, Eastern Europe, the Southern Caucuses and Central Asia, European Union (Sept. 29, 2010), http://europa.eu/legislation_summaries/external_relations/relations_ with_third_countries/eastern_europe_and_central_asia/r17002_en.htm (showing that the EU has signed PCAs with almost all of the former Soviet Republics). [FN184]. Id. [FN185]. Joseph Francois & Miriam Manchin, Economic Impact of a Potential Free Trade Agreement (FTA) Between the European Union and the Commonwealth of the Independent States 102 (CASE Network Reports, ENEPO Project, No. 84/2009), available at http://www.case-research.eu/upload/publikacja_ plik/ 23704363_CNR_84_final.pdf. (The Partnership and Co-operation Agreement (PCA) which entered into force in 1997 has been the framework of the EU-Russia relationship for a decade. The agreement regulates the political, economic and cultural relations between the EU and Russia and is the legal basis for the EU's bilateral trade with Russia. In 2003 the EU and Russia agreed to create four EU-Russia common spaces, within the framework of the existing Partnership and Co-operation Agreement (PCA). The Common Economic Space (CES) aims at increasing economic cooperation with creating grounds for establishing a more open and integrated market between the EU and Russia.). [FN186]. Russia-EU Relations, supra note 157 (EU-Russia relations are based on the Partnership and Cooperation Agreement (PCA) in force since 1997, which was further complemented by the Four Common Spaces in 2005. This results in an institutional framework which in many respects works well, particularly at political level [sic] through the Cooperation Council (now Permanent Partnership Council in Foreign Ministers' format).). [FN187]. European External Action Service, EU-Russia Common Spaces, European Union (Aug. 29, 2011), http://www.eeas.europa.eu/russia/common_spaces/index_ en.htm. [FN188]. Commission Report Reviews Progress Under EU-Russia Common Spaces, N. Dimension P'ship in Pub. Health and Soc. Well-being (Apr. 23, 2010), http:// www.enpi-info.eu/maineast.php?id=21349&id_type=1&lang_id=450 (Russia is not part of the European Neighbourhood Policy. Its relationship with the EU is defined as a Strategic Partnership, consistent with the ENP but evolving along different lines.). [FN189]. European External Action Service, Common Economic Space, European Union (Aug. 29, 2011), http://www.eeas.europa.eu/russia/common_spaces/economic_ en.htm. [FN190]. Freedom, Security and Justice, supra note 158 (The EU and Russia agreed at the St. Petersburg Summit of May 2003 to create in the long-term a Common Space on Freedom, Security and Justice. A road map agreed in 2005 sets out the objectives and areas for cooperation in the short and medium term. Its gradual development takes place in the framework of the Partnership and Cooperation Agreement.). [FN191]. Id. (Our cooperation contributes to the objective of building a new Europe without dividing lines and facilitating travel between all Europeans while creating conditions for effectively fighting illegal migration. Moreover, the EU has a considerable interest in strengthening cooperation with Russia by jointly addressing common challenges such as organised crime, terrorism and other illegal activities of cross-border nature.). [FN192]. See generally Progress Report, supra note 181, at 41-43. [FN193]. European External Action Services, External Security, European Union (Aug. 29, 2011), http://www.eeas.europa.eu/russia/common_spaces/external_ security_en.htm (The EU and Russia have agreed to rein-
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force their cooperation in the area of external security... ). [FN194]. European External Action Services, Research and Development, Education, Culture, European Union (Aug. 29, 2011), http:// www.eeas.europa.eu/russia/common_spaces/research_en.htm (In the area of research and development the objective is to enhance EU-Russia cooperation in mutually agreed priority fields... ). [FN195]. Russia to Spend $132 Million on Skolkovo Research Hub in 2010, RIA Novosti (Aug. 29, 2010, 19:29), http:// en.rian.ru/business/20100729/159987299.html. [FN196]. NDPHS - About NDPHS - Background, Mission, Priorities, Strategy, Actors and Activities, N. Dimension P'ship in Pub. Health and Soc. Well-being (Aug. 29, 2011), http://www.ndphs.org/?about_ndphs (The mission of the NDPHS is to promote the sustainable development of the Northern Dimension area by improving peoples' health and social well-being.). [FN197]. European External Action Services, European Union: Northern Dimension, European Union (Aug. 29, 2011), http:// ec.europa.eu/delegations/russia/eu_russia/fields_cooperation/regional_ issues/northern_dimension/index_en.htm (The Northern Dimension Policy of the European Union answers to the EU's intensive cross-border relations with Russia in the Baltic Sea and Arctic Sea regions.). [FN198]. Id. [FN199]. European External Actions Services, Northern Dimension, European Union (Aug. 29, 2011), http://eeas.europa.eu/north_dim/ (To facilitate project implementation within the framework of the ND policy, partnerships on the following issues were created: the environment (NDEP), public health and social wellbeing (NDPHS), culture (NDPC) and transport and logistics (NDPTL).). [FN200]. NDPHS - About NDPHS - Background, Mission, Priorities, Strategy, Actors and Activities, N. Dimension P'ship in Pub. Health and Soc. Well-being (Aug. 29, 2011), http://www.ndphs.org/?about_ndphs (The mission of the NDPHS is to promote the sustainable development of the Northern Dimension area by improving peoples' health and social well-being.). [FN201]. See European External Action Services, Eastern Partnership, European Union (Aug. 29, 2011), http://eeas.europa.eu/eastern/index_en.htm (The European Commission put forward concrete ideas for enhancing our relationship with: Armenia, Azerbaijan, Belarus, Georgia, Moldova and Ukraine. This would imply new association agreements including deep and comprehensive free trade agreements with those countries willing and able to enter into a deeper engagement and gradual integration in the EU economy.). [FN202]. Press Release, Council of the European Union, Joint Declaration of the Prague Eastern Partnership Summit (May 7, 2009), available at http:// europa.eu/rapid/pressReleasesAction.do? reference=PRES/09/78&format=HTML&aged=0&language=EN&guiLanguage=EN. [FN203]. Francois & Manchin, supra note 185, at 9. [FN204]. See, e.g., European Neighbourhood and Partnership Instrument: Georgia, National Indicative Programme 2007-2010, European Comm'n 4 (Sept. 13, 2011), http://ec.europa.eu/world/enp/pdf/country/enpi_csp_nip_georgia_en.pdf. [FN205]. See, e.g., Motion for a Resolution on the EU-Russia Summit, Com (2010) B7-0297 (June 9, 2010), available at http:// www.europarl.europa.eu/sides/getDoc.do?type=MOTION&reference=B7-2010-0297&language=EN (whereas there is a latent dispute between the EU and Russia on creating spheres of influence in the common neighbourhood; whereas this competition prevents the solution of frozen conflicts and risks to create new one's; whereas the European Union and the Russian Federation could and should play together an active role in promoting peace and
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stability in the common neighbourhood,); Pop, supra note 142; Andrew Wilson et al., The Future of EU-Russia Relations, Eur. Parl. 15-16 (2009), http:// www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/pe407011en_ wilsonpopes/pe407011en_wilsonpopescu.pdf. [FN206]. EU/Russia Summit, supra note 144, at para. G (whereas Russia's accession to the World Trade Organisation (WTO) would make a substantial contribution to further improving economic relations between the EU and Russia, subject to a binding commitment on Russia's part to full compliance with and implementation of WTO undertakings and obligations, and would pave the way for a far-reaching, comprehensive economic integration agreement between the two partners on the basis of genuine reciprocity, and whereas Russia established a customs union with Kazakhstan and Belarus on 1 January 2010). [FN207]. 2007 EU-U.S. Summit Promoting Peace, Human Rights and Democracy Worldwide, European Union 2 (2007), http://www.eeas.europa.eu/us/sum04_ 07/statement_political_security_issues.pdf (We note the importance of our relationship with Russia. A stable, prosperous and democratic Russia remains in our common interest. We seek in our relations with Russia to promote common values such as political pluralism, the rule of law, and human rights, including freedom of media, expression and assembly, and note our concerns in these areas. We will continue to work with Russia in areas of mutual interest, including non-proliferation, counterterrorism, energy security and regional issues, such as the resolution of frozen conflicts. We will also continue to work with Russia towards its accession to the World Trade Organization.). [FN208]. Events: Russia's WTO Accession is Our Foreign Economic Policy Priority - Deputy Prime Minister Alexander Zhukov, Official Website of the Gov't of the Russ. Fed'n (Dec. 1, 2010), http://government.ru/eng/docs/13142/ (Russia's WTO accession is our foreign economic policy priority.). [FN209]. Prime Minister Vladimir Putin Meets with Representatives of the German Business Community, Official Website of the Gov't of the Russ. Fed'n (Nov. 26, 2010), http://premier.gov.ru/eng/events/news/13120/ (We believe that we have come close to meeting every requirement for this. Moreover, I can tell you that, as our negotiators report, in practical terms we have agreed, at least with the European Union (EU), on every major issue. I hope that we will document this in the near future. And, finally I'd like to comment on an issue that is worrying many people. I'm referring to our Customs Union, which is to be followed by the Common Economic Space (CES), and that will mean further integration with Belarus and Kazakhstan. I see here a lot of my acquaintances and even friends. And this is what I want to tell you: I think you should be grateful to us for our enormous and complicated work on coordinating the positions of our partners from Belarus and Kazakhstan.... the process of coordinating those positions, which are almost identical to WTO rules, was indeed complicated and exhausting. This means that our partners in Europe ... will be able to work, in the near future, both in Belarus and in Kazakhstan by nearly common rules, rules that are very close to WTO requirements. If you study in detail what we are negotiating, you will see that there are practically no deviations from WTO rules.). [FN210]. Press Release, European Union, Joint Statement of the Delegations of the Russian Federation and of European Union on the Occasion of the Conclusion of the Bilateral Talks on the Key Issues in the Accession of the Russian Federation to the WTO (Nov. 24, 2010), available at http:// europa.eu/rapid/pressReleasesAction.do? reference=IP/10/1599&format=HTML&aged=0&language=EN&guiLanguage=EN [hereinafter Joint Statement on Russia] (Both sides are confident that this agreement will greatly facilitate the overall process of accession of Russia to the WTO.). [FN211]. EU/Russia Summit, supra note 144, at para. G. [FN212]. The 10 Benefits: 1. Peace, World Trade Org. (Feb. 6, 2011), http:// www.wto.org/english/thewto_e/whatis_e/10ben_e/10b01_e.htm; see also Comparative Advantage, World Trade Org. (Aug. 22, 2011), http://www.wto.org/english/res_ e/reser_e/cadv_e.htm; David Ricardo, On the Principles of Politic-
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al Economy and Taxation 7.13-7.16 (Library of Econ. & Liberty 1999) (1817); Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 3 (Univ. of Chi. Press 1976) (1776) (noting an example of increased production in a pin factory due to specialization). [FN213]. See Joint Statement on Russia, supra note 210 (Both sides are confident that this agreement will greatly facilitate the overall process of accession of Russia to the WTO, and they re-affirm their shared commitment to continue working in a constructive and co-operative spirit on the remaining questions in this multilateral process to achieve this goal as soon as possible.). [FN214]. Lyudmila Alexandrova, No Key Differences Left at Russia's Talks on WTO Membership, The Org. of Asia-Pacific News Agencies (Nov. 27, 2010), http:// www.oananews.org/view.php?id=143824. [FN215]. Russia to Sign WTO Accession Document with EU Next Week - EU Official, RIA Novosti: Johnson's Russia List (Nov. 29, 2010), http:// www.cdi.org/russia/johnson/russia-wto-europe-nov-366.cfm. [FN216]. See Joint Statement on Russia, supra note 210 (Both sides stressed their strong expectation that the rapid accession of Russia to the WTO will greatly contribute to the opening of new opportunities to do business with and in Russia and strengthen the international competitiveness of the Russian economy by harmonising its economic regime with global trading rules.). [FN217]. See Roberts & Wehrheim, supra note 52, at 316 (Normally, setting up a customs union or free trade area would violate the WTO's most-favoured-nation principle which assures equal treatment for all trading partners. However, three WTO articles provide derogations from this principle. Article XXIV of the GATT (complemented by an Ad Art XXlV, and updated by the 1994 Understanding) allows regional trading arrangements to be set up under certain conditions. Article XXIV contains the primary provisions covering customs unions (CUs), free trade areas (FTAs) and interim trade agreements (necessary for the formation of CUs and FTAs). It is based on four main criteria: Duties and other restrictive regulations of commerce must be eliminated (XXlV:8) on substantially all trade between constituent territories of a customs union or free trade area. Interim arrangements leading to the formation of a free trade area or customs union should exceed ten years only in exceptional circumstances. Furthermore, Article V of the General Agreement on Trade in Services allows WTO members to sign regional agreements on services provided that such agreements have substantial sectoral coverage, eliminate existing discriminatory measures and/or prohibit new or more discriminatory measures. Finally, the Enabling Clause allows derogations from the mostfavoured nation treatment principle in favour of developing countries and permits preferential arrangements among developing countries in goods trade.). 10 Rich. J. Global L. & Bus. 549 END OF DOCUMENT
56 WAYNLR 795 56 Wayne L. Rev. 795
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Wayne Law Review Fall, 2010 Note THE LISBON TREATY AND EU TREATY-MAKING POWER: THE NEXT EVOLUTIONARY STEP AND ITS EFFECT ON MEMBER STATES AND THIRD-PARTY NATIONS Richard L. Merpi II Copyright 2010 Wayne State University; Richard L. Merpi II
I. II. A.
Introduction Background The Evolution of EU Foreign Policy and Treaty Power Pre-Lisbon The Single European Act The Maastricht Treaty and Common Foreign and Security Policy Evolution of CFSP, Granting EC Legal Personality and Abandoning Unanimity The Lisbon Treaty and Explicit Treaty Power Analysis Treaty Power Implementation and Operation The Problems of Mixed Treaties The Problem of Conflict Between EU Treaties and the Treaties of Member Nations Supremacy Principle as Applied to
795 796 797
1. 2.
797 798
3.
801
B.
803
III. A. B. 1. 2.
804 804 805 806 809
3.
809
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Treaties C. Treaty Interpretation, the ECJ, and the National Courts The Preliminary Ruling Action and Treaties Original Jurisdiction of EU Courts for Treaties Third Party Nations and Legal Certainty Conclusion 812
1.
813
2.
814
3.
816
IV.
817
I. Introduction The European Union (EU) overcame the final hurdle to the implementation of the Lisbon Treaty in October 2009 when, in the country's second referendum on the treaty, a majority of Irish citizens voted for ratification. [FN1] Following the vote, the Lisbon Treaty entered into effect on December 1, 2009. [FN2] The Lisbon Treaty signals many changes for the EU, but this Note will focus on the formal treaty-making power that article 216 grants to the EU. [FN3] The explicit power raises issues as to the effect of treaties on individuals and member nations, the relationship between EU treaties and the existing treaties of the member states, the uniform legal interpretation of EU treaties, and the effect the answers to all these questions will have on foreign nations who are parties to the treaties. It would seem that the EU can look to existing practices to resolve questions of direct effect and supremacy of EU treaties. [FN4] However, to ensure uniformity of interpretation and result, and the effect of those on relations with third-party nations, the EU should adopt a more Eurocentric judicial paradigm. The EU can only guarantee consistency if the European Court of Justice (ECJ) and the courts of the EU have the exclusive power to make decisions regarding EU treaties. [FN5] Furthermore, this seems to be the most certain way for the EU to ensure that the treaty interests of the third party nations are adequately represented and respected. II. Background The Lisbon Treaty brings many changes to the structure and operation of the EU, [FN6] but the one of most interest to the United States and the rest of the world is likely the explicit grant of international legal personality and treaty-making power. [FN7] It is this new power which will likely most affect foreign nations, though as this Note will show, the EU power is not nearly so new as its explicit grant in the Lisbon Treaty might suggest. A. The Evolution of EU Foreign Policy and Treaty Power Pre-Lisbon The present day EU traces its beginnings to the Treaty of Paris, concluded by the original six member nations to form the European Coal and Steel Community (ECSC). [FN8] This treaty did not contemplate that the ECSC would
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need to be an independent actor with regard to third party nations; rather it was a way to ensure cooperation among the member nations and facilitate commerce between them. [FN9] The Treaty of Rome then continued and expanded these goals by forming the European Community (EC) in 1957. [FN10] It would be twelve more years before, through the European Political Cooperation (EPC), the EC glimpsed the beginnings of cooperation on foreign policy. [FN11] It would be another seventeen years before the principles of the EPC formally and legally made their way into the EC. [FN12] 1. The Single European Act In 1986, the EC adopted the Single European Act (SEA). [FN13] The act was significant in many respects, as it was the first statement of many of the principles that form the foundation of the EU today. [FN14] In addition to those bedrock principles, the SEA created a legal basis for the EPC. [FN15] It provided that members of the EC shall endeavour jointly to formulate and implement a European foreign policy...[and] to avoid any action or position which impairs their effectiveness as a cohesive force. [FN16] In other words, the SEA aimed to require cooperation between the member states when it came to foreign policy. It further provided a method for that cooperation to take place by requiring regular meetings between representatives of the member states concerning the EPC. [FN17] Despite the advances and legal basis for the EPC provided by the SEA, the EC primarily utilized these EPC procedures to facilitate cooperation between the member states rather than between the EC and third party nations. [FN18] Nevertheless, it represented an important first step [FN19] in the development of the competency of the EC to form agreements with third party nations on behalf of the European member nations. The next step would come with the Treaty on European Union, better known as the Maastricht Treaty. [FN20] 2. The Maastricht Treaty and Common Foreign and Security Policy The Maastricht Treaty represented a momentous step toward a unified Europe under a more powerful, supranational governmental body that would come to be known as the EU. [FN21] The treaty set up a three pillar organization of the EU institutions of government. [FN22] The first and most important pillar absorbed all of the previously existing European treaties and put them under the moniker of the European Community (EC). [FN23] The other two pillars were largely intergovernmental: the second pillar dealt with the Common Foreign and Securities Policy (CFSP) and the third dealt with issues regarding Justice and Home Affairs. [FN24] The CFSP was essentially the next step in expanding the EPC which had existed previously. The principal thrust of the CFSP was to require that the member nations of the EU work together and consult each other when determining foreign and security policy. [FN25] The Maastricht Treaty put the responsibility for CFSP cooperation on the member nations as well as the EU governmental body of the European Council. [FN26] The significant provision on the operation of the CFSP stated: Member States shall inform and consult one another within the Council on any matter of foreign and security policy of general interest in order to ensure that their combined influence is exerted as effectively as possible by means of concerted and convergent action. [FN27] The effect of this language is that representatives from each of the member nations must meet and agree upon foreign and security policy in the European Council. [FN28] Actions of the European Council require unanimity among the representatives, so each member state had veto power when it came to negotiations on foreign and security policy. [FN29] This ensured that no member state would be forced into any foreign policy measures it did not like. [FN30] Because of these provisions, the Maastricht Treaty clearly did not give competency or international legal personality to the EU or any branch of the EU with regard to foreign relations and treaties. [FN31] However, it did clearly provide a mechanism to establish a unified front among the member nations as they dealt with the rest of the
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international community. [FN32] This is bolstered by the delegation of responsibility to the president of the European Commission [FN33] for the implementation of common measures [FN34] that were agreed upon by the member states in the European Council. [FN35] In other words, the president, a decidedly EU position, is responsible for representing to the rest of the world whatever measures the member nations agree upon. [FN36] Despite the appearance this may have given to other nations that the president had some power over foreign policy, the power truly still vested in the member nations. [FN37] This created problems in dealing with third-party nations and organizations because the president did not have any power or authority to negotiate. [FN38] The simple fact that power rested with the member nations also created problems for the EU in striving toward unification. [FN39] As long as CFSP proceedings required unanimity and every nation had veto power, the EU had to clear a high hurdle to accomplish anything. [FN40] The process was further complicated by the fact that the ECJ did not have jurisdiction over any matter falling under the second pillar of the EU. [FN41] Therefore, with regard to CFSP matters, the ECJ was powerless to hear cases, make rulings, and, most importantly, further EU integration on any CFSP resolution. [FN42] Nevertheless, this version of the CFSP represented an important step toward foreign policy and treaty competency for the EU and showed the desire on the part of the member nations to have the EU handle some aspects of foreign relations. [FN43] 3. Evolution of CFSP, Granting EC Legal Personality and Abandoning Unanimity The Treaty of Amsterdam and the Treaty of Nice presented further advancements in the ability of the EU and its institutions to act on an international level. [FN44] The Treaty of Amsterdam created the position of High Representative of the CFSP. [FN45] The purpose of this provision was to cure the problems of inconsistency that came with the president of the commission acting as the representative to third parties on CFSP matters. [FN46] The treaty specifies that the secretary-general of the council will hold the post of high representative. [FN47] He is responsible for assisting the council and the president on CFSP matters by aiding in every step of the evolution of policy decisions and meeting with third parties per the request of the president. [FN48] The creation of the post of high representative was clearly a further indication that the member states desired to have more cohesion and unity on CFSP matters. [FN49] In addition to this post, the Treaty of Amsterdam made subtle changes in the procedure of the Council on CFSP matters, seemingly aimed at making it easier to decide on any given CFSP issue. [FN50] While under the Maastricht Treaty all CFSP votes required unanimity, the Treaty of Amsterdam allowed the Council to take a preliminary vote by Qualified Majority Vote (QMV) [FN51] to decide whether the matter to be discussed needed unanimity to pass. [FN52] By this method, the Council had the ability to designate a CFSP matter as one that could be passed without the unanimous agreement of all of the member state representatives. [FN53] In theory, this would make it easier to pass foreign policy measures. [FN54] In practice, however, this procedural nuance had little effect, because representatives were able to prevent a QMV vote from taking place if even one stated that the CFSP matter conflicted with the national policy of his member nation. [FN55] Nevertheless, this did not stop the council from increasing its CFSP activity and concluding a number of treaties through the most important grant of power in the Treaty of Amsterdam: international legal personality for the council. [FN56] The treaty was still ambiguous, though, on whether treaties concluded by the Council would bind all of the member states or only the EU governmental bodies (which did not have legal personality or treaty power). [FN57] Still, the council pressed on in an effort to gain some recognition of the personality of the EU on the international stage. [FN58] The Treaty of Nice provided more procedural advances aimed at enhancing CFSP. The most significant of these is to only require unanimity in the council on issues of CFSP for which unanimity is required for the adoption of internal decisions. [FN59] This means that, at the discretion of the Council and without a preliminary vote, the coun-
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cil may decide issues of CFSP by the weighted voting system of QMV. [FN60] Admittedly, this is a small step on the path to treaty competency, but it is a further signal that the member nations desired to have the EU play a major role in foreign policy. [FN61] B. The Lisbon Treaty [FN62] and Explicit Treaty Power The Lisbon Treaty took effect on December 1, 2009. [FN63] Among other things, it does away with any uncertainty as to the legal personality and treaty power of the EU. [FN64] Article 216 of the new treaty explicitly states: 1. The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope. 2. Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States. [FN65] The treaty follows this article with several more which outline the method by which treaties must be concluded and what governmental bodies must be notified. [FN66] However, in one fell swoop, this provision of the Lisbon Treaty bestows legal personality on the EU and makes the EU competent to conclude treaties on behalf of all of the member nations. III. Analysis The new explicit treaty power raises several questions. How will new EU treaties be implemented in the member states? What will happen if there is a conflict between a new EU treaty and an existing treaty of a member state? How can the EU ensure uniformity of interpretation of EU treaties in the governments and courts of the member states? And most importantly, to what degree can the United States and other nations expect to rely on the treaties they conclude with the EU? This Note will strive to provide possible answers to those questions and shed light on potential problems that will accompany the EU's treaty-making power. A. Treaty Power For the first time in its existence, the European Union as an entire governmental body has international legal personality through the provisions of the Lisbon Treaty. [FN67] Article 216 explicitly states that the EU shall have the power to enter into treaties with third party nations on behalf of the EU and all of the member states. [FN68] Through this provision, treaty-making powers which were formerly the exclusive preserve of the member states and, in some special circumstances, the European Community, [FN69] will now consolidate to the EU superstructure as a whole. While this is certainly a momentous step in the evolution of the EU, it is largely only a symbolic and formalistic one. The fact that the member nations incorporated explicit language into the Lisbon Treaty granting treaty-making power to the EU signifies the increasing willingness of the citizens and member states of Europe to cede more and more governing power to the EU. However, it is little more than a symbol, because though the EU has not previously had the explicit or even implicit power to do so, it has already entered into several treaties with third-party nations. [FN70] Notably, the United States has already concluded an extradition treaty and a cooperation of laws treaty with the European Union. [FN71] Nevertheless, the formal recognition and grant of treaty-making power to the EU is important in that it gives clarity and legal legitimacy to the EU as an international actor, capable of concluding treaties with third party nations. The resolution of one issue in the European Union always seems to bring up several more, and the grant of
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treaty-making power in the Lisbon Treaty is no exception. The new power and EU treaties such as the extradition treaty with the United States raise some important legal questions when it comes to their implementation, operation and legal interpretation among the member states of the EU. B. Implementation and Operation Implementation of new EU laws is always an issue with regard to whether the law will be directly effective, directly applicable, or each member nation has to adopt the law through its own national legislature. [FN72] For the World Trade Organization treaties, which the EC pillar [FN73] of the EU concluded, the trend of the decisions of the European Court of Justice (ECJ) seems to mostly hold that they are not directly effective. [FN74] However, depending on the treaty and its specific provisions, the ECJ may find some limited direct effect. [FN75] It is perhaps telling that the ECJ has found direct effect when the WTO provision at issue benefits EU farmers by prohibiting imports that are potentially harmful economically and environmentally. [FN76] These decisions would seem to indicate that the ECJ will be more inclined to find a treaty to be directly effective when a citizen of the EU desires to rely on it to his benefit and less inclined to find direct effect if the treaty is detrimental to an EU citizen. Whether this trend will continue with new EU treaties concluded under the provisions of the Lisbon Treaty remains to be seen. But such decisions will determine the importance of EU treaties to individual EU citizens and the way those treaties are reviewed in a court of law, as discussed below in section C of this Note. 1. The Problems of Mixed Treaties In still other instances, such as the extradition treaty with the United States, the EU has tailored its treaty to work with the existing treaties of the member nations and required those nations to implement the treaty into their national laws. [FN77] In the extradition treaty, the EU replaced some key provisions of the extradition treaties of the member states, allowed others to remain intact, and further allowed member states to negotiate any new terms with the United States as long as the issues were not covered by the EU's treaty. [FN78] Prior to the Lisbon Treaty's explicit grant of treaty-making power to the EU, this mixed treaty method had been the preferred choice of the EU. [FN79] The use of the mixed treaty likely speaks to the reality that the EU is not a single state for international law purposes. [FN80] However, given the new explicit powers contained in the Lisbon Treaty, it is difficult to imagine that the EU will continue to follow the same course with many treaties going forward. Leaving so many variables open to the potentially disparate desires of each of the member nations flies in the face of one of the most important principles in the EU: uniformity of EU laws and their interpretation. [FN81] Furthermore, doing so poses a danger to the integrity of such treaties and has the potential to jeopardize negotiations and relations with third party nations. What seems far more likely is that the EU will, given its legislative and judicial history, interpret the Lisbon Treaty's grant of treatymaking power to the EU exclusive competency to conclude treaties. [FN82] The trajectory of EU law and the decisions of the ECJ have consistently been to interpret more and more power residing with the EU, as opposed to the courts and legislatures of the individual member nations. [FN83] Even more than the supporting case law, [FN84] the fact that the EU has concluded treaties with third party nations without having the explicit authority to do so would seem to constitute ample evidence that the EU has no qualms about giving itself more power and authority. [FN85] Acting under a newly minted power explicitly given to the EU through the Lisbon Treaty, it would seem that the EU will continue on that trajectory and interpret the treaty-making power as one that now no longer resides with the member states, but solely with the EU. [FN86] 2. The Problem of Conflict Between EU Treaties and the Treaties of Member Nations
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Even if the EU does construe and act upon the power in this way, however, there is still the issue of what happens to the existing treaties that EU member nations may have with third-party nations. Again, the EU circumvented this problem in the extradition treaty with the United States by drafting it to work with the existing extradition treaties. [FN87] However, for many of the same reasons stated above--consistency of interpretation, supremacy of EU law, direct effect, parallelism--that is unlikely to happen with every treaty the EU concludes. [FN88] What seems far more likely is that, in the future, the EU will conclude treaties that will have provisions which conflict with existing treaties in the member states. When it comes to treaty conflicts, the EU presents a novel legal problem. Usually, when there is an issue as to what to do with a preexisting treaty, it arises in a situation where a state has ceased to exist and a new state has surfaced in its place. [FN89] In such instances, new states can look for guidance to the clean slate doctrine, or instances of state absorption such as the combination of East and West Germany. [FN90] But these traditional customary international law procedures for new states replacing old states and negotiating new treaties do not apply to the EU. [FN91] This is because the EU cannot currently be considered a state. [FN92] However, the EU already has a paradigm in place to deal with potential conflicts between EU treaties and the pre-existing treaties of the member states: the supremacy principle. [FN93] 3. Supremacy Principle as Applied to Treaties In the United States, the founding fathers inserted the Supremacy Clause into the Constitution to address potential conflicts between the laws of the federal government and the laws of state governments. [FN94] It provides: This Constitution...and all Treaties made...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby. [FN95] However, the Lisbon Treaty contains no such provision for the EU to deal with potential conflicts between EU law and the laws of the member states. [FN96] Instead, the ECJ has adopted the supremacy principle through its decisions, primarily in preliminary rulings under article 234 of the Treaty of Nice, beginning with Costa v. E.N.E.L. [FN97] Whenever there has been a conflict between the laws of the EU and the laws of member states, the ECJ has held that the EU law prevails. [FN98] While these conflict-of-laws cases have primarily arisen in the realm of private law provisions having to do with commerce and economics between the member states, there is no reason the supremacy principle should be so limited and not extend to public law issues and treaties. The principle does not stem from the subject matter of the law, it stems from the power of the EU and must continue to be applied to preserve that power. It is only natural, then, that conflicts between EU treaties and those of member nations should be governed by the same principle. In fact, it may be more important for the supremacy principle to apply to treaties, because where past EU cases have primarily dealt with conflicts within the EU and its membership, treaties involve third party nations. It seems to be a matter of common sense that the international community would not continue to put much stock in the EU and its treaty-making powers if those treaties could be undermined by the member nations. As one commentator has put it: [P]erhaps most importantly, the designation of treaties as the supreme Law of the Land serves to protect against the international embarrassment and friction that would flow from subsequent interference by the legislatures or courts of the individual states...[T]he risk of international discord was a real and immediate concern during the Framing Period--and one (although in a different aspect) that remains today. [FN99] This observation about the American Supremacy Clause contains the same logic underlying the long held American principle that politics stop at the water's edge. When it comes to foreign powers, it is important that everyone is united so that the nation can maintain its position and power. However, if the EU enters into a treaty, and the United Kingdom, Germany, and France refuse to honor it, it would be nearly impossible for the EU to maintain its position. Admittedly, this may be an extreme and unlikely example, but here is a hypothetical analogy within the United
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States. Imagine that there was no Supremacy Clause written into the Constitution, and that each of the fifty states was able to enter into its own treaties in addition to and separate from the treaties that the federal government negotiated. It is not a stretch to think that Texas would want to negotiate very different treaties with Mexico from the ones Maine would negotiate. It is further reasonable to think that if the federal government then negotiated separate treaties with Mexico, with terms similar to the ones that Maine had negotiated, Texas would not be too keen to honor them. Texas would likely feel that the federal government had not adequately represented its interests. There is also an historical analogy, which needs no hypothetical, of how member states could react to treaties. During the Confederation era prior to ratification of the Constitution, many of the new American states refused to honor their treaty obligations under the Treaty of Paris. [FN100] They were able to do so without immediate consequence, because the Articles did not provide that treaties were part of the supreme law of the land and binding on all states. [FN101] It was only after the Framers discarded the Articles of Confederation and such provisions appeared in the new Constitution that this intransigence ceased. [FN102] I offer this example to show how member states could potentially react to EU-negotiated treaties. It is not offered to suggest that the EU follow the U.S. paradigm and attempt to invalidate all existing treaties of the member nations, forcing them to comply fully and exclusively with EU treaties. However, when it comes to issues on which member nations have already negotiated treaties, if the EU negotiates new treaties on the same issue, it would seem that the only way to adequately protect the EU's treaty power is to ensure that its treaties will at least be supreme to any existing treaties of the member nations and supersede those treaties. C. Treaty Interpretation, the ECJ, and the National Courts If the EU is to ensure the supremacy of its treaties, it must ensure their uniform interpretation and application. This will not only serve to maintain the power of the EU, but to assure third party nations that they can rely on the terms of the treaties into which they have entered. Traditionally, the EU has achieved uniformity of interpretation through the preliminary action. [FN103] However, when it comes to treaties, a more forceful, EU-centric method, requiring that the EU courts have exclusive original jurisdiction over any cases arising under treaties, might better serve the EU. This method would be similar to, but even more stringent than that of the United States. [FN104] While Article III of the U.S. Constitution brings interpretation of treaties under the purview of the federal courts, there are instances where state courts interpret treaties collateral to the principal action before them. [FN105] However, even in these situations, the Supreme Court can still have the final say as to treaty interpretation because it can grant certiorari to review appeals on state court cases. This mechanism ensures uniformity of interpretation and result of U.S. treaties. The exact same model, however, would not work for the EU, because cases decided in the national courts of the member nations cannot be appealed to the courts of the EU. [FN106] Therefore, in order to ensure uniformity of interpretation and result in the EU, it is necessary that the courts of the EU have exclusive original jurisdiction. 1. The Preliminary Ruling Action and Treaties The preliminary ruling is one of the most important judicial actions in the EU and has served to establish the uniformity and supremacy of EU law. [FN107] The action typically arises when a national court of one of the member states is hearing a case that deals with an unclear area of EU law. [FN108] Rather than make its own determination as to the legal interpretation, the national court brings a preliminary ruling action before the ECJ, essentially certifying questions for an interpretation of the legal issues. [FN109] The ECJ does not decide the case, it merely decides the law. [FN110] The national courts have been fairly diligent about bringing preliminary actions and deferring to the ECJ on legal
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issues. [FN111] And it is this diligence which has allowed the ECJ to use its preliminary action rulings to ensure uniformity of interpretation throughout the EU and the supremacy of EU law. [FN112] However, the national courts are not always so inclined to defer to the ECJ, and there is a dearth of cases in which the national courts have taken it upon themselves to decide areas of EU law that have not always been clearly established. [FN113] Given this fact, it does not seem that relying on national courts to bring a preliminary action on treaty matters on their own is the best way to ensure the uniformity and supremacy of those treaties. Some courts may decide they do not need the input of the ECJ and interpret a treaty differently from the rest of the member states of the EU. The problem is that this would not only prejudice EU citizens, but it could adversely affect third party nations, leaving them unable to rely on their treaties. One solution might be to mandate that the courts of the member nations bring a preliminary action for any case where interpretation of a treaty is implicated. This course of action is not without precedent. In Foto-Frost v. Hauptzollamt Lubeck-Ost, [FN114] a lower national court attempted to invalidate an act of the European Commission with regard to import duties. [FN115] The ECJ, however, ruled that national courts lacked the authority to overturn any EU action, and that they must bring a preliminary action before the ECJ in such an instance. [FN116] The ECJ ruled that only it had the exclusive jurisdiction to review and potentially invalidate acts of the EU. [FN117] While following the Foto-Frost precedent and requiring the national courts to file a preliminary action with the ECJ for any case dealing with a treaty is certainly an option, it seems a bit unsatisfactory. Requiring that EU courts have exclusive original jurisdiction for cases arising under EU treaties seems to be a far better and more comfortable solution to ensure uniformity of interpretation and result regarding treaties. 2. Original Jurisdiction of EU Courts for Treaties The best option for the EU is to make the ECJ, or the EU courts in general, courts of first instance for cases arising under EU treaty provisions. Currently, the courts of the EU only have original jurisdiction for certain types of legal actions. [FN118] They have original jurisdiction over actions for annulment, [FN119] actions for failure of the EU to act, [FN120] actions for the failure of a member state to comply with EU laws, [FN121] and actions for a preliminary ruling. [FN122] It is certainly conceivable that cases involving EU treaties could arise under these existing actions. One could readily imagine a scenario in which each of these actions could be a vehicle for a case arising out of an EU treaty. However, they certainly cannot cover all treaty cases, especially if, as I suggest above, the national courts were to decline to avail themselves of the preliminary ruling action. A provision similar to one in the U.S. Constitution would ensure that the courts of the EU hear all treaty cases. [FN123] The U.S. Constitution explicitly states that the federal courts shall have jurisdiction over cases arising under treaties. [FN124] Among other things, this provision ensures uniformity of interpretation of U.S. treaties. [FN125] Michael Van Alstine stated the reasons behind the provision are as follows: First, the delegation of exclusive control over treaty-making to the federal government ensures that the parochial concerns of the numerous and disparate state polities cannot frustrate the interests of the nation as a whole in matters of international diplomacy, trade, and commerce. Second, and of equal importance, the inclusion of treaties within the federal judicial power guarantees a final and authoritative federal voice in their domestic interpretation and application. [FN126] This quotation points to the most important reasons behind the decision of the founding fathers to keep treaties solely within the purview of the branches of the federal government. These same reasons justify a need for cases regarding EU treaties to be evaluated solely by the courts of the EU. To this point, no EU legislation has specified that EU courts would have original jurisdiction over it. [FN127] Despite this fact, it would seem simple enough for the EU to include a clause in every treaty it concludes which spe-
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cifically designates the EU courts as having original jurisdiction over that treaty. In the unlikely event that such a provision would overstep the powers of the EU, a requirement that the national courts always file a preliminary ruling action in treaty cases would seemingly fit nicely into the preexisting judicial powers of the EU. Either of these options would surely satisfy the reasoning of Van Alstine. [FN128] They would keep the disparate parochial interests of the member states at bay while providing for a final and authoritative determination of the legal issues, promoting uniformity of result and application. [FN129] They would achieve these goals, because there would essentially be one voice when it came time to make a decision. However, it seems that the best option is exclusive jurisdiction for the courts of the EU on treaty matters. And this will ensure uniformity and stability throughout the EU and with regard to the treaty interests of third party nations. 3. Third Party Nations and Legal Certainty As noted above, the implications of treaty interpretation as to the foreign entities that are parties to the treaty is paramount. [FN130] Although giving the federal government of the United States the exclusive competency to conclude treaties was certainly significant, more important for present purposes was the new institutional mechanism the Framers created for the local enforcement of treaties . . . . [They] determined to confer on the federal courts the responsibility to ensure fidelity to the domestic-law incidents of the nation's international treaty obligations. [FN131] In other words, more important than the fact that the federal government concluded treaties was the fact that the federal courts had the final say on the interpretation of those treaties. [FN132] Third-party nations like the United States must certainly, then, have a vested interest in the manner by which the EU implements and interprets its treaties. One of the bedrock principles of international law and treaties is that parties to an agreement honor their obligations in good faith. [FN133] And the manner by which an international actor implements and interprets its treaties is essential to honoring those obligations. [FN134] Without a uniform, centralized method, it is doubtful that the EU can adequately uphold its end of the treaty bargains. But with one, third party nations would be assured that their interests were protected, have legal certainty as to the evaluation of those interests, and be free from the parochial whims of the member states. IV. Conclusion While the Lisbon Treaty's explicit grant of treaty-making power to the EU is nothing new in practice, its formality and definitive nature require that the EU address issues surrounding the new power. Questions will arise regarding the effect of treaties as to individuals and member nations, the relationship between EU treaties and the existing treaties of the member states, the uniform legal interpretation of the EU treaties, and the effect the answers to all these questions will have on foreign nations who are parties to the treaties. The EU can look to its legislative and judicial history for paradigms on how to deal with the direct effect and supremacy of EU treaties. [FN135] However, when it comes to uniformity of interpretation and the effect on third-party nations, it seems that the EU would best be served by adopting a judicial treaty model consolidating all review of treaty cases to the courts of the EU. By giving the EU courts original and exclusive jurisdiction for matters arising under treaties, the EU can ensure uniformity of treaty interpretation and the strength and protection of its formal treaty power. [FN136] This, in turn, will assure third-party nations that they will get what they bargained for in treaties with the EU. [FN1]. Lisbon Treaty--A Fresh Start ec.europa.eu/news/eu_explained/091201_en.htm. [FN2]. Id. for the EU, Dec. 1, 2009, http://
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[FN3]. Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union art. 216, Apr. 30, 2008, 2008 O.J. (C 115) 1, available at http://www.consilium.europa.eu/showPage.aspx? id=1296&lang=en (select the hyperlink en under the heading Information Note) [hereinafter Lisbon Treaty]. [FN4]. See infra notes 87-99 and accompanying discussion. [FN5]. I must stress that I propose that the EU apply a more Eurocentric method only with regard to the interpretation and judicial review of treaties concluded by the EU. This method will not apply to pre-existing treaties that individual member nations have concluded with third-party nations, so long as those treaties are still valid and have not been superseded by EU treaties. This seems only proper, since the treaties of individual member nations will have been agreed upon with the understanding that they would govern relations between only the member state and the third party nation, and that any disputes would be resolved by the national courts of parties to the treaty. As long as the EU has not more recently concluded a treaty with the same third party nation on the same issue, the pre-existing treaty of the member nation should remain valid and in effect. As discussed later in this Note, I propose that an existing treaty of a member state may be superseded by an EU treaty if both treaties deal with the same issue. [FN6]. See generally Lisbon Treaty, supra note 3. [FN7]. Lisbon Treaty, supra note 3, art. 216. [FN8]. Francis G. Jacobs, The State of International Economic Law: Re-Thinking Sovereignty in Europe, 11 J. Int'l Econ. L. 5, 11-12 (2008). The original six members were France, West Germany, Italy, Belgium, Luxembourg and the Netherlands. [FN9]. Id. See also Heinrich Klebes, Membership in International Organizations and National Constitutional Law: a Case Study of the Law and Practice of the Council of Europe, 99 St. Louis-Warsaw Transatlantic L.J. 69 (1999). [FN10]. See Malgorzata Lawrynowicz, Note, A Foreign Policy for Europe: Integration or Illusion?, 16 Mich. St. J. Int'l L. 691, 692-93 (2008). [FN11]. See id. Though not incorporated into the EC treaty, the member nations formed the EPC through negotiations at the Hague. It was an informal and largely ineffectual step, but it laid the groundwork for changes to come. [FN12]. See Pieter Jan Kuijper, Fifty Years of EC/EU External Relations: Continuity and the Dialogue Between Judges and Member States as Constitutional Legislators, 31 Fordham Int'l L.J. 1571, 1572 (2008). [FN13]. Id. [FN14]. Dmitry Tuchinsky, Note, The Takeover Directive and Inspire Art: Reevaluating the European Union's Market for Corporate Control in the New Millenium, 51 N.Y.L. Sch. L. Rev. 689, 697 (2006). The act first set out the bedrock principles of the current EU: free movement of goods, persons, services, and capital. [FN15]. Lawrynowicz, supra note 10, at 693. [FN16]. Single European Act, tit. III, art. 30(2)(a), (d), June 29, 1987, 1987 O.J. (L 169). [FN17]. Id. art. 30(3)(a). [FN18]. Ambassador Hugo Paemen, The European Union in International Affairs: Recent Developments, 22 Fordham Int'l L.J. S136, S143 (1999). [FN19]. Lawrynowicz, supra note 10, at 694.
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[FN20]. The Treaty on European Union and the Treaty Establishing the European Community title V, Feb. 7. 1992, 1992 O.J. (C 191) 58-60, available at http://eurlex.europa.eu/en/treaties/dat/11992M/tif/JOC_1992_191__1_EN_0001.pdf [hereinafter Maastricht Treaty]. The Maastricht Treaty has undergone amendments by the Treaty of Amsterdam and the Treaty of Nice which have further expanded the competency of EU institutions with regard to foreign agreements and policy. However, the Maastricht Treaty laid the groundwork for these powers. See Lawrynowicz, supra note 10, at 695-99. [FN21]. Kuijper, supra note 12, at 1573-74. [FN22]. Frans G. von der Dunk, European Satellite Earth Observation: Law, Regulations, Policies, Projects, and Programmes, 42 Creighton L. Rev. 397, 408 (2009). [FN23]. Id. [FN24]. Lawrynowicz, supra note 10, at 695-96. [FN25]. Maastricht Treaty, supra note 20, tit. V, art. J.1(1). [FN26]. Id. art. J.2(1). [FN27]. Id. [FN28]. Lawrynowicz, supra note 10, at 696. [FN29]. Id. International legal personality is the key element to be able to negotiate and conclude treaties with third party entities. The member states each have international legal personality, because it is a status they attain through their designation as independent states. The EU, however, must be given the status by a decision of the member states, as it is not an independent state. Rather, the EU is classified as a supranational organization, much like the UN. Up until the passage of the Lisbon Treaty, the EU member nations had not granted international legal personality to the EU. [FN30]. Id. [FN31]. Id. at 696-97. [FN32]. Id. at 697. [FN33]. The European Commission is a governmental body that operated under the first pillar, the EC pillar, of the EU. The president of the commission was the de facto president of the EU prior to the passage of the Lisbon Treaty. The commission is primarily charged with safeguarding and ensuring the application of the EU treaty, providing recommendations on treaty provisions if necessary, and helping shape the measures taken by the European Council. A summary of the structure and power of the European Commission is available at http:// europa.eu/institutions/inst/comm/index_en.htm (last visited Jan. 9, 2011). [FN34]. Maastricht Treaty, supra note 20, tit. V, art. J.5(2). The Troika, the previous member state and the next member state to hold the commission presidency, were to aid the current president in this process. This was another provision aimed at preserving unity and consistency with regard to CFSP, however its effectiveness in that regard was suspect. The EU no longer requires Troika involvement. Lawrynowicz, supra note 10, at 714 n. 19. [FN35]. Lawrynowicz, supra note 10, at 697-98. [FN36]. See id.
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[FN37]. Kuijper, supra note 12, at 1575. [FN38]. See generally Maastricht Treaty, supra note 20, tit. V. The treaty does not explicitly give the president any power to negotiate. His role is merely to present the CFSP matters that the member states agree on in the Council. He presents them not only throughout the EU, but also as the face, albeit the powerless face, of the EU to third party nations. Id. [FN39]. See id. [FN40]. See id. [FN41]. Dieter Kugelmann, The Maastricht Treaty and the Design of a European Federal State, 8 Temp. Int'l&Comp. L.J. 335, 345 (1994). The ECJ still has no jurisdiction over CFSP matters under Article 275 of the Lisbon Treaty. [FN42]. Id. While the decisions of the ECJ do not enjoy precedential value, they are significant measures of what is permissible under EU law and what is not. They also communicate the likely outcome of future litigation regarding an area of EU law. Furthermore, the decisions of the ECJ consistently prove to enhance the power of the EU and bring EU legislation from the realm of theory and bureaucracy into reality. The fact that the ECJ had no jurisdiction over CFSP matters is further evidence that the member states did not want or intend to surrender too much power to the EU through CFSP measures. [FN43]. Kuijper, supra note 12, at 1575. [FN44]. Id. [FN45]. Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, tit. V, art. J.8(3), Oct. 2, 1997, 1997 O.J. (C 340), available at http:// eurlex.europa.eu/en/treaties/dat/11997D/tif/JOC_1997_340__1_EN_0005.pdf [hereinafter Treaty of Amsterdam]. [FN46]. Helene Sjursen, The Common Foreign and Security Policy: an Emerging Voice in International Politics? 7 (Arena Working Papers WP 99/34, 1999), available at http:// www.sv.uio.no/arena/english/research/publications/arenapublications/workingpapers/ working-papers1999/wp99_34.htm (last visited Sept. 26, 2010). The Presidency of the European Commission is a semi-annually rotating position among the representatives of each member state. This is an attempt to ensure that no one member state will have too much power over the commission and the EU as a whole. It creates problems, however, when this position is in charge of representing a unified foreign policy to third parties, yet a different person comes before those third parties every six months. Id. [FN47]. Treaty of Amsterdam, supra note 45, tit. V, art. J.8(3). [FN48]. Lawrynowicz, supra note 10, at 700. [FN49]. See Kuijper, supra note 12, at 1575-76. [FN50]. Lawrynowicz, supra note 10, at 700. [FN51]. Qualified Majority Voting is a similar concept to the super majority needed in the U.S. Senate to defeat a filibuster. However, it is more complicated. The EU has a formula for weighting the votes of the representatives depending on which member state they represent. The most important factor is the population of the member states--the larger the population, the more weight that state's representative has for his vote. So, in the current council, where there are 27 representatives, one from each of the 27 member states, there are 322 total votes. Those votes are distrib-
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uted amongst the 27 representatives according to the formula. A Qualified Majority requires that 232 votes go the same way. This process accomplishes two goals. It allows the larger, more influential member states to protect their interests and advance those interests in the EU. It also lowers the bar that must be cleared to take action, ensuring that no single member state has pure veto power. A summary of Qualified Majority Voting is available at http:// www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/qualifiedmajorityvoting.htm (last visited Jan. 9, 2010). [FN52]. Michael E. Smith, Understanding Europe's New Common Foreign and Security Policy: A Primer for Outsiders (Inst. on Global Conflict and Cooperation, Policy Paper 52, 2000) available at http:// igcc.ucsd.edu/pdf/policypapers/pp52.pdf. [FN53]. Lawrynowicz, supra note 10, at 700. [FN54]. See id. [FN55]. Id. at 701. [FN56]. See Kuijper, supra note 12, at 1574-75. [FN57]. Id. at 1575-76. [FN58]. Id. at 1574. The Treaty of Amsterdam also significantly gave legal personality and treaty-making power to the EC. However, the EC operates principally with regard to issues of trade and commerce, so this power had little effect on the governmental foreign policy of the EU. Id. at 1587. [FN59]. Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community art. 24, Dec. 29, 2006, 2006 O.J. (C 321) 1, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do? uri=OJ:C:2006:321E:0001:0331:EN:PDF [hereinafter Treaty of Nice]. The Maastricht Treaty, signed in 1992, has been amended by the Treaty of Amsterdam and the Treaty of Nice. While these amendments have left the Maastricht Treaty largely intact, they have made changes with regard to foreign relations. [FN60]. Lawrynowicz, supra note 10, at 702. [FN61]. Id. [FN62]. Prior to the Lisbon Treaty, representatives of the member states came to an agreement on a Constitution of Europe. I do not deal with the proposed constitution here because it was not ratified and at no time has governed the operation of the EU. It did, however, lay the groundwork for the newly adopted Lisbon Treaty. The principal aim of this Constitution was to do away with the treaty basis for the EU and create a system more akin to that of the United States with the EU superstructure essentially acting as a federal government. This is, of course, a vast oversimplification of what the constitution sought to implement, and the EU would not have operated in exactly the same way that the US does had the constitution been ratified. Nevertheless, it is a helpful analogy. A copy of the European Constitution is available at http://eurlex.europa.eu/JOHtml.do?uri=OJ:C:2004:310:SOM:EN:HTML. [FN63]. Lisbon Treaty--A Fresh Start for the EU, supra note 1. [FN64]. Lisbon Treaty, supra note 3, art. 216. [FN65]. Id. [FN66]. Id. art. 217-19. [FN67]. See Lawrynowicz, supra note 10, at 695-701.
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[FN68]. Lisbon Treaty, supra note 3, art. 216. [FN69]. Lawrynowicz, supra note 10, at 701. [FN70]. For a list of all of the treaties to which the European Union is a party, visit http://ec.europa.eu/world/agreements/searchByOrganization.do? countryId=30122&orgName=European%20Union (last visited Jan. 9, 2011). [FN71]. Extradition Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25299215. Mutual Legal Assistance Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25297816. [FN72]. See generally Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Admin., 1963 E.C.R. 1; Case C-166/99, Marthe Defrenne v. Sabena SA, 2000 E.C.R. I-06155. Both cases deal with the principle of direct effect. If legislation is directly effective in the EU, that means it can be relied upon by individuals in their nations' courts. There are three factors to consider to determine whether a provision is directly effective: whether it is clear and unambiguous, unconditional, and does not require any new legislative action by the states. A law is directly applicable when no further action is required by the member states to make it law in those member states; however, it cannot necessarily be relied upon by an individual in the national courts. [FN73]. The EC is the pillar of the EU that has been explicitly granted international legal personality and has the ability to enter into treaties. As indicated by the fact that the treaties here discussed regard the WTO, the treaties of the EC primarily deal with issues of trade and commerce. [FN74]. See generally Case C-149/96, Portuguese Republic v. Council of the European Union, 1999 E.C.R. I-08395 (WTO provisions did not confer rights to individual EU citizens, therefore not directly effective); Case C-181/73, R. & V. Haegeman v. Belgian State, 1974 E.C.R. 449. [FN75]. See generally Case C-317/99, Kloosterboer Rotterdam BV v. Minister van Landbouw, Natuurbeheer en Visserij, 2001 E.C.R. I-09863 (direct effect of provisions to stabilize price of agricultural commodities); Case C-93/02 P, Biret International SA v. Council of the European Union, 2003 E.C.R. I-10497 (direct effect of prohibition on import of farm animals exposed to certain substances). [FN76]. See Biret, 2003 E.C.R. I-10497. [FN77]. Extradition Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25299215. [FN78]. Id. [FN79]. Rafael Leal-Arcas, Polycephalous Anatomy of the EC in the WTO: An Analysis of Law and Practice, 19 Fla. J. Int'l L. 569, 573 (2007). [FN80]. See id. Since the EU is not a state itself and, at the time of the extradition treaties and others, the member states had not explicitly given treaty power to the EU, the advent of the mixed treaty seems to be the EU's way of dealing with reality. The EU likely did not want to create conflict with the member nations by overstepping its bounds with regard to treaties. The mixed treaty is a compromise--a way for the EU to exercise some power on an international level while, at the same time, keeping the member nations happy. Unfortunately, as with many compromises, mixed treaties create uncertainty as to form and application throughout the member states, which will likely extend the uncertainty to third party nations. [FN81]. Treaty of Nice, supra note 59, art. 234. Article 234 covers preliminary rulings by the ECJ, one of the most important legal actions which promotes uniformity in EU law. Through this process, national courts certify a question of EU law to the ECJ for an initial determination of the general question of law. The ECJ then hands down a de-
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cision and the national court will make a determination on the facts before it based on the preliminary ruling of the ECJ. This is similar to a federal court certifying a question to a state supreme court on an issue of state law. However, it is much more common and much more important to the advancement and supremacy of EU law. [FN82]. See Maastricht Treaty, supra note 20, art. 308. See also infra note 83. These cases are just a few that show how the ECJ has consistently ruled in favor of a stronger EU--that EU laws and principles are superior to challenges rooted in the laws of the member states. The legislative trend toward EU power is also evident in the outline above of the progression of EU power in making foreign policy and concluding treaties. [FN83]. See, e.g., Case 6/64, Costa v. E.N.E.L., 1964 E.C.R. 585 (arising over a conflict between Italian domestic law and EU law. The ECJ found partially for the Italian government, finding that the EU provision at issue had no direct effect. However, the ECJ also held that Costa could challenge the Italian domestic law as incompatible with EU law. The court said the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions.); Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Netherlands Inland Revenue Administration, 1963 E.C.R. 1 [hereinafter Van Gend & Loos] (arising over a tariff charged by the Netherlands on imports from West Germany. Van Gend and Loos challenged the provision as contrary to EU law. The ECJ found in their favor, holding that the Netherlands' tariff increase, whether through a new tariff or reclassification of goods, violated the EU treaty and was illegal.); Case C-166/99, Marthe Defrenne v. Sabena SA, 2000 E.C.R. I-06155 (arising over gender discrimination of airline hostess as to rate of pay, article 119 of EU treaty at the time. The ECJ held that the provision was both horizontally and vertically directly effective, meaning it is directly effective both between parties and on governments. Therefore, Defrenne can rely on it and it is supreme to any contrary provision in domestic law.); Case 22-70, Comm'n of the European Communities v. Council of the European Communities, 1971 E.C.R. 263 [hereinafter ERTA] (arising over treaty negotiations by the EC. ECJ created soft parallelism, saying that if the EU has passed a law on an issue, the member states can no longer legislate or negotiate treaties on that point of law.); Case C-467/98, Comm'n of the European Communities v. Kingdom of Denmark, 2002 E.C.R. I-9519 [hereinafter Danish Bottles] (arising over a Danish regulation of drink containers. It was aimed at environmental protection, but also had a significant restraint on trade between the member states. The ECJ held that the regulation was not appropriately tailored to overcome the EU principle of free movement of goods between member states.). [FN84]. See supra note 83. [FN85]. See, e.g., Extradition Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25299215; Mutual Legal Assistance Agreement with the European Union, U.S.-E.U., June 25, 2003, 2003 WL 25297816. [FN86]. See ERTA, 1971 E.C.R. 263. In this case, the ECJ prohibited member nations from concluding treaties with third party nations on any issue where there had been EU legislation. That was when the EU did not have any explicit treaty-making power. Article 219(4) of the Lisbon Treaty does preserve the right of member nations to enter into international agreements with third party entities; however, it does so without prejudice to the power of the EU to do the same. Lisbon Treaty art. 219(4). Following the doctrine of parallelism that started with the ERTA case, it would seem that this provision is largely meaningless, and any area where the EU has concluded treaties can be deemed off limits to the member nations. Now that the Lisbon Treaty explicitly grants that power, it would seem to follow that the ECJ will determine that the EU has virtual exclusive competency to conclude treaties. See also Costa, 1964 E.C.R. 585; Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal SpA, 1978 E.C.R. 629; Case C213/89, The Queen v. Sec'y of State for Transport, ex parte: Factortame Ltd., 1990 E.C.R. I-02433 (These cases provide further support for the supremacy of EU law to the law of the individual member states). [FN87]. Extradition Agreement with the European Union, U.S.-E.U., supra note 85. [FN88]. See, e.g., ERTA, 1971 E.C.R. 00263; Costa, 1964 E.C.R. 585; Simmenthal, 1978 E.C.R. 629; Factortame,
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1990 E.C.R. I-02433. [FN89]. Anthony Aust, Handbook of International Law 394-98 (2005). [FN90]. Id. [FN91]. Id. [FN92]. See id. The EU has a definite population, it is a governmental body, and the Lisbon Treaty will give it the power to make treaties. However, it cannot be said to have a defined territory. The EU member nations have defined territories, but the land itself is not subsumed into the EU. Therefore, the EU does not satisfy the traditional requirements for statehood and cannot apply the traditional rules on how to deal with preexisting treaties. [FN93]. Costa, 1964 E.C.R. 585. [FN94]. U.S. Const. art. VI, cl. 2. [FN95]. Id. [FN96]. See Lisbon Treaty, supra note 3 (containing no such provision). [FN97]. See, e.g., Costa, 1964 E.C.R. 585. See also Simmenthal, 1978 E.C.R. 629; Factortame, 1990 E.C.R. I-02433. The preliminary ruling action was previously authorized for the ECJ under article 234. In the Lisbon Treaty, the articles have been renumbered and the current article governing preliminary rulings is Article 267. Lisbon Treaty art. 267. [FN98]. See discussion supra note 97. [FN99]. Michael P. Van Alstine, The Death of Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 Geo. L.J. 1885, 1898 (2005). [FN100]. Id. at 1886-87. [FN101]. Id. at 1899-1900. [FN102]. Id. [FN103]. Lisbon Treaty, supra note 3, art. 267. See, e.g., Case 6/64, Costa, 1964 E.C.R. 585. See also Simmenthal, 1978 E.C.R. 629; Factortame, 1990 E.C.R. I-02433. [FN104]. U.S. Const. art. III, 2, cl. 1. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.... Id. (emphasis added). The force of this provision as it applies to treaties is that the federal courts have original and appellate jurisdiction over cases arising under treaties. There are, however, instances where treaty interpretation comes up as a collateral matter in a case before the state courts. See, e.g., Sanchez-Llamas v. Oregon, 108 P.3d 573 (Or. 2005) (foreign national alleged a procedural violation of Vienna Convention to try to suppress evidence against him in attempted murder case). [FN105]. See, e.g., Sanchez-Llamas, 108 P.3d at 574. [FN106]. Robert A. Schapiro, Intersystemic Remedies for Governmental Wrongs, 41 U. Tol. L. Rev. 153, 164 (2009) .
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[FN107]. See supra note 97. [FN108]. Christopher Smithka, From Budapest to Berlin: How Implementing Class Action Lawsuits in the European Union Would Increase Competition and Strengthen Consumer Confidence, 27 Wis. Int'l L.J. 173, 183 (2009). [FN109]. Id. [FN110]. Id. [FN111]. See, e.g., supra note 97. [FN112]. Id. [FN113]. See, e.g., Bundesfinanzhof [BFH][Federal Tax Court] June 11, 1997, X R 74/95 Sammlung der Entscheidungen und Gutachten des Bundesfinanzhofs [BFHE] 436, 1997 (Ger.) (arising in Germany over the tax treatment of schooling costs for the education of the plaintiff's son in England. Though this deals with tax matters between the member states, an area where an ECJ decision would seem appropriate, the German court concluded it did not need to file a preliminary action with the ECJ.); Bundesverfassungsgericht [BVerfG][Federal Constitutional Court] August 5, 1998, Entscheidungen des Bundesverfassungerichts [BVerfGE] 728, 1998 (Ger.) (arising in Germany over a pension scheme for part time workers. Though the applicable EU law was not perfectly clear, the German court did not file a preliminary action and found against the plaintiffs.); S.T.S., April 27, 1998 (R.J., No. 3328) (Spain) (arising in Spain, where court said it was not for the ECJ to determine if national law was in accordance with Community (EU) law. Also held that EU provisions in question were sufficiently clear, despite no reference to guiding ECJ decisions.). [FN114]. Case 314/85, Foto-Frost v. Hauptzollamt Lubeck-Ost, 1987 E.C.R. 4199. [FN115]. Id. [FN116]. Id. [FN117]. Paul R. Dubinsky, The Essential Function of Federal Courts: The European Union and the United States Compared, 42 Am. J. Comp. L. 295, 318-20 (1994). [FN118]. Lisbon Treaty, supra note 3, art. 256. (This was article 225 in previous iterations of the Treaty Establishing the European Community (TEC)). [FN119]. Id. art. 263 (formerly TEC art. 230--provides for a challenge to the legality of an EU legislative action). [FN120]. Id. art. 265 (ormerly TEC art. 232). [FN121]. Id. art. 258, 259 (formerly TEC art. 226, 227). [FN122]. Id. art. 267 (formerly TEC art. 234). [FN123]. See supra note 104. [FN124]. U.S. Const. art. III, 2, cl. 1. [FN125]. Van Alstine, supra note 99, at 1895-97. [FN126]. Id. at 1897 (Footnote omitted). [FN127]. I have conducted an extensive search of the EU database as well as law review and article databases. To the
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best of my knowledge, no EU law explicitly requires that it only be reviewed by the ECJ and the courts of the EU. [FN128]. See Van Alstine, supra note 99. [FN129]. Id. [FN130]. Id. [FN131]. Van Alstine, supra note 99, at 1900. [FN132]. Id. An example of the dangers inherent in decentralized treaty interpretation was the fact that the several states, operating under the failed Articles of Confederation, refused to honor the Treaty of Paris, which concluded the Revolutionary War. Id. It was in direct response to this that the Framers put Article III into the Constitution, ensuring that the states would abide by the treaties of the United States. Id. [FN133]. Id. at 1899-1900. [FN134]. Id. [FN135]. See Van Alstein supra notes 87-99 and accompanying text. [FN136]. See generally Van Alstein supra note 99. 56 Wayne L. Rev. 795 END OF DOCUMENT
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University of Pittsburgh Law Review Winter, 2010 Articles THE SIGNIFICANCE OF THE RULE OF LAW AND ITS IMPLICATIONS FOR THE EUROPEAN UNION AND THE UNITED STATES Ricardo Gosalbo-Bono [FNa1] Copyright (c) 2010 University of Pittsburgh Law Review; Ricardo Gosalbo-Bono Table of Contents
Introduction The Rule of Law in Domestic Law I.
. . The Common European and American Heritage The Differing National Conceptions in Europe (i) The German Rechtsstaat (ii) The French Etat de Droit (iii) The English Rule of Law (iv) The supranational pan-European concept (a) The Rule of Law in the European Union (b) The Rule of Law under the European Convention for the Protection of Human Rights (c) Assessment: The Added Value of the Pan-European Rule of Law
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II.
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III.
The Rule of Law in American Law (i) The Natural Rights of Man (ii) Due Process under the Fifth Amendment (iii) Due Process under the Fourteenth Amendment (iv) The Supreme Court as the guarantor of the American Rule of Law
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IV.
The Rule of Law in China and the Rest of Asia The Socialist Rule of Law The Rule of Law in Islam The Rule of Law in Latin America and Africa Elements for a Universal Definition of the Rule of Law .
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V. VI. VII.
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VIII.
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The Rule of Law in International Law I.
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Is There an International Rule of Law? The Implementation of the International Rule of Law The Rule of Law in the External Action of the European Union (i) The Union's predisposition to international law (ii) The legal means of EU external action on the Rule of Law (iii) Political clauses in EU agree-
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III.
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ments (iv) The European Neighbourhood and Partnership Policy (v) Pre-accession assistance (vi) EU development and economic, financial and technical assistance policies (vii) The Rule of Law in the Common Foreign and Security Policy of the Union (a) The Rule of Law in EU Civilian Crisis Management Operations (b) The Rule of Law and EU Military Operations (viii) Overall evaluation IV. The Rule of Law in the External Action of the United States (i) The United States and International Law (ii) The Rule of Law as a strategy in U.S. external action (iii) A comparison between the EU and U.S. strategies on the rule of law Are the European Union and the United States Allies or Competitors? Epilogue: A Universal Definition of the Rule of Law? . 313
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Introduction Although the rule of law is today universally recognised as a fundamental value, [FN1] indeed the term rule of law is very fashionable at present, [FN2] there is no universal agreement about what it means: the rule of law
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has meant many things to many people; [FN3] nor is there agreement about how it can be reconciled with other, competing, values, notably with the requirements of democratic government. [FN4] It is submitted in this paper, that any universal definition of the rule of law will have to incorporate all of the following four principles: (1) The principle that power may not be exercised arbitrarily. This principle requires a rejection of the rule by man and the notion that laws should be prospective, accessible, and clear; and (2) The principle of supremacy and independence of the law. This principle distinguishes the rule of law and requires acceptance of the principle of the separation of powers, which is the idea that the law applies to all, including the sovereign, and that there must be provisions for an independent institution, such as a judiciary, to apply the law to specific cases; (3) The principle that the law must apply to all persons equally, offering equal protection without discrimination. This principle requires that the law should be of general application and capable of being obeyed; [FN5] (4) The principle of respect for universal human rights as laid down in the instruments and conventions accepted by the international community as a whole. The universal definition of the rule of law suggested in this paper results from an examination, undertaken in the following pages, of the evolution of the rule of law in the principal different systems of the world, and of the status of the rule of law in international law. This paper also examines the implementation and promotion of the rule of law by the different subjects of international law with a particular attention paid to the external action of the European Union and the United States. The Rule of Law in Domestic Law In Europe and the United States, the idea of the rule of law (hereinafter referred to as the rule or the idea) has a long and fascinating history. I. The Common European and American Heritage The idea of the rule of law has ancient roots in European political thought. It appeared as a rule of restraint in the exercise of political power by subjecting it to certain abstract principles. A horizon of meaning of the rule of law [FN6] was elaborated by ancient Greek philosophers concerned about the potential for a democratic government to degenerate into a tyranny. The idea was already put into practice in Athens during the fifth Century B.C. where the Magistrates of the Polis, the democratic political community, could be charged with violations of the law by private citizens. [FN7] Thus, Plato intended that, the legal code incorporated in his work The Laws, would be permanent in nature and insisted that the government should be bound by these laws because: [W]here the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state. [FN8] Aristotle went further in stating: Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; . . . That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual; On the same principle, even if it be better for certain individuals to govern, they should be made only guardians and ministers of the law. . . . Therefore he who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire. [FN9] This passage from Aristotle's work, Politics, raises most of the fundamental questions that have accompanied the discussions of European history on the idea of the rule of law, i.e. the question of self-rule in situations of political equality, of subjection of government officials to the law, and of identification of the law with reason which would
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protect the law from abuse by those who hold power. In particular, the contrast that Aristotle established between the rule of law as reason, and the rule of man as passion, became one of the recurrent questions throughout the European history of the philosophy of law. [FN10] Both Plato and Aristotle considered the maximization of the common good of the community and the improvement of moral development as the aim (or the purpose) of law. Thus, according to Plato, law is a reflection of a divine order consistent with The Good: the laws that are not established for the good of the whole state are bogus law [FN11] while Aristotle adds that what is just will be both what is lawful and what is fair, and what is unjust will be both what is lawless and what is unfair. [FN12] Aristotle concluded that true forms of government will of necessity have just laws, and perverted forms of government will have unjust laws, [FN13] and he added further that laws, when good[,] should be supreme. [FN14] However, neither Plato nor Aristotle advocated rebellion against the law, even against unjust laws, and neither of them approved of popular democracy, which was viewed as the potential rule of the uneducated and unintelligent mob susceptible to being seduced by demagogues. Also, neither were egalitarian since they both believed people had unequal talents in political capacity, virtues, and intelligence. According to Plato and Aristotle, the best government consisted of rule by the best man, not rule by law, for the law cannot foresee all eventualities. Therefore, Plato considered that where the good king rules, law is an obstacle standing in the way of justice [FN15] and Aristotle advocated rule under the law in order to avoid the risk of corruption and abuse that arises when power is concentrated in a single pair of hands. [FN16] In contrast with the Athenian Democrats, who advocated the supremacy of the law created by all citizens in order to avoid the governance of the aristocratic oligarchies, Plato and Aristotle were concerned about how to avoid popular tyranny in a democracy. When criticising popular tyranny in democracies, Aristotle introduced the notion of sovereignty of law: [S]uch a democracy is fairly open to the objection that it is not a constitution at all; for where the laws have no authority, there is no constitution. The law ought to be supreme overall, and the magistracies and government should judge of particulars. [FN17] In the end, the most mature form of the rule of law achieved by Athens was one that ensured the equality of citizens before the law; the principle that laws had to be drafted in general terms; that the Athenian Council, magistrates, and legislative assemblies were bound by the law, and that citizens were free to operate as they wished under the law, provided that their actions were not prohibited by the law. The Romans brought both positive and negative elements to the idea of rule of law, although the negative elements proved to be of much greater consequence. On the positive side, there was the work of Cicero, who continued the Greek tradition of Plato and Aristotle in The Republic, his masterpiece produced in the first Century B.C. There, Cicero commented that the king who does not abide by the law is a despot, the foulest and most repellent creature imaginable. [FN18] Furthermore, in his work, The Laws, while describing the function of the magistrate, Cicero points out that: [The magistrate] is to take charge and to issue directives that are right, beneficial and in accordance with the laws. As magistrates are subject to the laws, the people are subject to the magistrates. In fact it is true to say that a magistrate is a speaking law, and the law a silent magistrate. [FN19] According to Cicero, the status of the laws differed depending on their consistency with natural law. Natural law was the rule of reason, and according to the rule of reason, law should be for the good of the community, it should be just, and it should preserve the happiness and safety of the citizens. This idea of natural law stood above positive and human law; it was a law that was consistent with justice and hence reigned supreme. [FN20] The negative Roman contributions to the rule of law result from the Lex Regia and the Corpus Iuris Civilis. The Lex Regia provided a legitimation for the move from the rule of the Roman Republic to the rule of the Roman Emperor Constantine. Constantine managed to combine secular and religious power in a manner that many European monarchs would emulate for centuries by converting to Christianity and deciding to move the capital from Rome to Constantinople (Istanbul) in the year 306 A.D. According to the Lex Regia, the new power of the Roman Emperor
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derived from the absolute authority that the Roman people had bestowed on him for the preservation of the state, [FN21] which was a legal fiction created by early Roman jurists in order to justify the power of the Emperor. This legal fiction enjoyed considerable authority during the Middle Ages both in the course of democratic thinkers elaborating on the idea of original popular sovereignty and on the development of the idea of the absolute authority of the king by the absolutist thinkers. [FN22] The Corpus Iuris Civilis, which codified the Roman Law instituted by Emperor Justinian in 527 A.D., contains two maxims relevant to the idea of the rule of law: Sed quod principi placuit legis habet vigorem, what has pleased the prince has the force of law and Princeps legibus solutus est, the prince is not bound by the law. [FN23] The expressions illustrate, for the first time, the tension existing in the fact that the sovereign is both the source of law and subject to the law, a tension that the idea of the rule of law has attempted to reconcile within modern legal systems. The concept of the rule of law continued to be enriched in the Middle Ages, a period in European history which lasted one thousand years, from the collapse of the Roman Empire in the fifth century A.D. until the Renaissance in the fifteenth and sixteenth centuries A.D. The sources of the contributions to the medieval concept of the rule of law are: the contest for supremacy between the kings and the popes, Germanic customary law, and the Magna Carta, which epitomised the efforts of nobles to use law to impose restraints on sovereigns. One manifestation of the medieval concern for the rule of law is the importance that medieval authors accorded to the question of whether all men were subject to the law or, in terms of medieval dispute, whether the prince was bound by the laws or not. [FN24] According to the traditional, feudal idea expressed by Bracton: [T]he King must not be under man but under God and under the Law, because the Law makes the King . . . for there is no Rex where will rules rather then Lex . . . if he brakes the Law his punishment must be left to God . . . for the King cannot be sued or punished. [FN25] But the opposite view appears in the Digest (1, 3, 31), where the words of Ulpian 228 A.D. were recorded under the imperial authority of Justinian, that the Prince is not bound by the law which was originally recorded in Latin as [p]rinceps legibus solutus est. Given the clarity of the pronouncement and the authority of the Digest, the Ulpian text could not possibly be ignored. But it did not necessarily mean that rulers were at liberty to act arbitrarily and operate above the law. Accursius (1184-1263 A.D.), a great lawyer of the thirteenth century A.D., who also was a glossator i.e. a lawyer devoted to the study, annotations, and explanations of Roman legal texts, made the impact of the maxim less severe by pointing to other passages in the Digest including the Code and the Institutes, which provide that even the Emperor had to obey the law. These include, C. 1, 14, 4: re vera majus imperio est submittere legibus principatum, it is worthy of the majesty of the ruler that the emperor should acknowledge that he is bound by the laws; Inst. 2. 17. 8: licet enim legibus soluti sumus, attamen legibus vivimus though we are not bound by the laws we live by the laws. Accursius seemed to indicate that the absence of authority in Roman law with the necessary jurisdiction to compel the Emperor, was an institutional defect, rather than a question of principle. [FN26] But, it has been suggested that ever since, European legal thought has been divided between those who, like Jean Bodin, adhered to the absolutist theory, founded on the principle of princeps legibus solutus est and those who, like Bracton and Fran ois Hotman, considered the king subject to the law. [FN27] The Middle Ages were a long and tumultuous period and the citizens during this time were not always lawabiding. Indeed, feuds were legal in the Middle Ages and law often regulated less and left more liberty than our present laws. However, the opposite also held true, e.g., the strict rules of the preuves savantes (evidences based on documents and witnesses as developed by Gratian, the canon lawyer), isolated the modern notion of discretionary assessment and the conviction intime or beweisw rdigung of judges, (the free evaluation of evidence by the judges according to their inner deep-seated convictions). [FN28] There is no doubt that the idea of the rule of law was clearly perceived by medieval thinkers and practitioners and that it prevailed in certain periods and in certain countries during the Middle Ages. [FN29] The question arises whether medieval law was observed and enforced against all subjects irrespective of their
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power or legal status. On one hand, medieval history went through certain periods of weak law enforcement, times which could be described as lawless and anarchical. For example, after the breakdown of the Carolingian monarchy in ninth century France, the unscrupulous and despotic robber barons imposed illegal and immoral practices such as illegally charging tolls on passing merchant ships. Additionally, when the ordinary feudal machinery became deficient, strange ecclesiastical expedients like the Peace and the Truce of God were established in order to ensure a certain measure of protection from spiritual retribution through violence on the individual for certain categories of people and places at certain privileged dates and periods of the year. [FN30] On the other hand, when the western monarchies increased their power, they subjugated these barons, demolished their adulterine castles, i.e. castles built without the approval of the superior lord, and submitted them to the royal courts, which afforded judicial protection to the ordinary man. Thus, legal historians have concluded that given a minimum of political stability, the medieval states offered a large measure of judicial protection even to their most ordinary citizens. [FN31] Did the law prevail over the highest political authorities of medieval times? Numerous charters expressly excluded arbitrary rules, stipulated that the government was subject to the law, and guaranteed certain individual rights even though the enforcement mechanism ensuring observation of those charters was weak. Indeed, one of the main clauses of the English Magna Carta of 1215 provided the origin of the concept of habeas corpus, we command to have the body, as follows: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we [the King] proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land. The justification for this clause was that the King was at all times entitled to have an account of why the liberty of any of his subjects was restrained. But, whenever the king himself breached any provisions of the Carta, he was only subject to the control of the council of twenty-five barons which had no power of enforcement over the king, i.e. they could only threaten the king with civil war. [FN32] Thus, although the government was bound by the law, the illegal arbitrary exercise of power was very rarely subject to institutional control. [FN33] Indeed, the great majority of those charters lacked an enforcement mechanism to make them effective. The four centuries that followed became a laboratory for these medieval ideas but, from a legal point of view, the idea of the rule of law did not receive further impetus until the seventeenth and eighteenth centuries. During that time, Europe experienced popular uprisings that gave birth to significant philosophical contributions to the theory of government and the rule of law. The most fundamental question was that of the source of legitimacy for governmental action and authority, since unquestionable adherence to monarchical rule had lost support. The negative contribution was provided by Hobbes, according to whom the sovereign, though bound in conscience by natural law, wields absolute untrammelled power. Therefore, the rule of law and the rule of will were always synonymous and equivalent. Furthermore, a rule was inherently powerless unless it was applied, interpreted, and enforced by individuals: there must always be somebody who has the final word. [FN34] In contrast, other legal philosophers, such as John Locke, Jean-Jacques Rousseau, and Count Montesquieu, provided a new legal basis for governmental authority and the rule of law. First, Locke suggested that legitimate governments had to be based on popular consent and that any action by any government that was not supported by popular consent was not valid and was without authority. He also suggested the following concept of the rule of law: [A]ll the power the government has, being only for the good of society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers too kept within their bounds. . . . [FN35] These views of Locke prevailed over other ideas. Secondly, on the question of the proper structure of government, Montesquieu provided the most widely-followed contribution. He suggested that countries should elaborate constitutions as fundamental charters containing the original will of the people to be governed. He also underlined the importance of the separation and balance of powers between the legislative, the executive, and the judiciary when
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he stated that: When the legislative and the executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. . . . Again there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. [FN36] Thirdly, there emerged the notion of the rights of individuals, i.e. the idea that individuals were entitled to certain rights of which they could not be deprived of either by the actions of government or by the actions of other individuals. This notion of individual rights, now known as human rights, was above all brought to fruition in the American Declaration of Independence in 1776. It proclaimed that all men were born free and equal and that the right to life, liberty and the pursuit of happiness were among those rights that are unalienable. That document declared: We hold these truths to be self-evident, that all men are created equal, that they are endowed by the Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. [FN37] In 1780, the Constitution of the state of Massachusetts reflected in its Article 30, the idea of separation of powers under the rule of law in the following terms: In the government of this Commonwealth, the legislative department shall never exercise the executive and the judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end it may be a government of laws and not a government of men. [FN38] Finally, the amalgam of concepts underlying the idea of the rule of law, such as the government submitting to the consent of those being governed, the principle of the separation of powers as an instrument of protection against any violation of the principle of popular consent, and the principle of the existence of inherent and inalienable individual rights were incorporated in the Constitution of the United States of 1789, [FN39] the French Declaration of the Rights of Man and the Citizen of 1789, [FN40] and the Bill of Rights of the United States of 1791. [FN41] II. The Differing National Conceptions in Europe The amalgam of these concepts gave birth to the term rule of law, which appeared when the common European heritage based on Roman law, the Medieval Jus Commune, natural law, and the enlightened secular law of reason was transposed, in the context of the establishment of sovereign states, into differing national laws. (i) The German Rechtsstaat The term Rechtsstaat originated in Germany in 1798 as a neologism combining the words law and state, thus putting more emphasis on the nature of the state than on the judicial process. Due to the link that the concept of Rechtsstaat establishes between law and the state, it is common understanding that Immanuel Kant is the spiritual father of the German term, even though Kant himself never used it. Indeed, in his Theory of the State, Kant defined the state as the union of a multitude of men under laws of justice with any lawful state necessarily being a state governed by the law of reason, i.e. the law based on the principles of freedom of every member of society, equality, and of individual autonomy. Furthermore, the laws of the State were required to preserve and promote these principles. [FN42] The neologism Schule der Rechts-Staats-Lehre was apparently first used by Johan Wilhelm Placidus in his Litteratur der Staatslehre, Ein Versuch [FN43] and was then popularized by Robert von Mohl, who contrasted the Rechsstaat with the aristocratic police state. He defined the main objective of a Rechtsstaat as organi[zing] the living together of the people in such a manner that each member of it will be supported and fostered, to the highest
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degree possible, in the free and comprehensive exercise and use of his strengths. [FN44] According to von Mohl, the guiding light of any state action is individual freedom, and, for that purpose, the state has an obligation to respect all laws and customs, to take account of the dispositions and particular inclinations of its people, and to respect private property as the unavoidable condition for individual development. The concept of Rechtsstaat was much used in the course of the nineteenth century A.D. during which Germany experienced an extraordinary development of public law mainly as a result of the Restoration which followed the 1848 revolts. The development of public law was prompted by the outstanding theoretical contributions of G. Jellinek, O. Mayer, and R. von Jhering. Politically, this development epitomised a compromise between liberal doctrine, support of the bourgeoisie, and authoritarian ideology supported by conservative forces such as the monarchy, the rural aristocracy, and senior military bureaucracy. The Rechtsstaat as defined by the German publicists was based on three elements: the theory of the state's self-limitation, the theory of subjective rights, and the theory of the primacy of law. According to the theory of the state's self-limitation, the state as sovereign was not conditioned by any external limit. Instead, the state was restrained by its free decisions owing either to the pressure that society exercised on the state [FN45] or to the counteracting effect of mature civilised people. [FN46] The theory of subjective public rights represented a statist conception of rights, i.e. individual rights were established by the sovereign authority of the state, which thereby imposed limits on its own freedom of action. These individual rights were the result of popular sovereignty as theorized by the French revolutionaries and did not include the right of resistance to the state. [FN47] The power to establish individual rights within a state belonged to the legislator, i.e. statutory reservation. Individual rights were not of a pre-political origin, as they were discussed through Locke's contractualism, or of a religious nature and thus based on a transcendent and universalist natural law. In this Rechtsstaat there were different categories of individual rights. The first category included those rights resulting from the status passivus or status subjectionis, where individuals had only duties and no rights as in the case of the duty to perform military service. The second category included those resulting from the status negativus or status libertatis, where individuals possessed a right to be free which derived from history as prescribed by the legislator. In the context of the status negativus, every freedom [was] nothing but the exemption from illegal constraint. There were those rights resulting from the status positivus or status civitatis, where the state conferred on the individual subjective public rights in the form of capacities and remedies such as the right to have an administrative act annulled. Finally, there were those rights resulting from the status activus or status activae civitatis, or the political rights of the citizen. [FN48] In this latter Rechtsstaat, the law was supreme, it referred to the theory of primacy of law, and it comprised a system of impersonal, abstract, general, and non-retroactive rules governed by the principle of legality (originally termed Gesetsm ssigkeit). According to the principle of legality, the acts of Parliament had to be rigorously respected by the executive and judicial powers. This obligation to respect the law was the most effective defence against any political misuse of powers and constituted the supreme guarantee for the protection of individual rights. However, the nineteenth century A.D. theory of the Rechtsstaat failed to take into account the potential arbitrary use of legislative power, sic volo or sic jubeo, and was too optimistic in taking for granted the trust of the citizens since it assumed a perfect correspondence between the will of the state, legality, and moral legitimacy. This Rechtsstaat became a mere law of the state or Staatsrecht, characterised by a purely technical and formal concept of law, which consisted of both general and abstract norms, detached from ethical and political contents, (except the protection of freedom and property), without providing for constitutional review. Under these conditions, the Rechtsstaat was soon regarded as legalistically vacuous, or as a tautological, procedural, and a mere legal state. At the end of the nineteenth century A.D., a turbulent period in the history of the Rechtsstaat commenced. The concept either retained a meaning only in administrative law, where the concept was transformed into a mere principle of legality [FN49] or was made a subject of derision by Bismarck as an artificial expression or Kunstausdruck
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invented by Mohl, on which nobody has yet found a satisfactory definition for the body politics. [FN50] Others likened the term Rechtsstaat to an all-purpose notion, magic box, or zauberkiste from which an ingenious spirit could take out, by means of a magical trick, any suitable legal principle or claim. [FN51] As further evidence of the total malleability of the term, some lawyers did not hesitate to describe the Third Reich as an exemplary Rechtsstaat, [FN52] Carl Schmitt (1888-1985) justified the fact that the Hitlerian state had its own Rechtsstaat based on the idea that there existed as many Rechtsstaat as states [FN53] and that the Hitler state could be described as the Deutsche Rechststaat Adolf Hitlers or the German Rechtsstaat of Adolf Hitler. [FN54] In particular, Otto Koellreutter (1883-1972) defended the eternal nature of the idea of Rechtsstaat, which he defined as a state based on order or Ordnungstaat. [FN55] Therefore, since the Third Reich had a legal order, it was a Rechtsstaat. Later, legal positivism emphasized the formal aspect of the Rechtsstaat. [FN56] In particular, it transformed the Rechtsstaat into the radical theory introduced by the Austrian Hans Kelsen, according to whom the state was not a real entity but a theoretical object created by jurists. According to Kelsen, the state was a set of norms which personified the legal system. The state was not power, but law. Therefore, all state organs had to be placed on an equal footing to any other legal subject. According to Kelsen, the Rechtsstaat is determined in all its activities by the legal system and this legal system is hierarchical, with a Grundnorm or superior norm at the top, such as a constitution that allows for constitutional control. [FN57] At present, a mixed formal and substantive concept of the Rechtsstaat has gained an unprecedented popularity in Germany. The 1949 German Basic Law or Grundgesetz has enshrined the Rechtsstaat as a fundamental principle in its Article 28, Paragraph 1, according to which [t]he constitutional order in the states must conform to the principles of the republican, democratic and social state under the rule of law. The terms republican, democratic and social state were taken from the constitutions of the L nder. With constitutional practice, the concept of Rechtsstaat has evolved into a constitutional principle informing all the activities of the state under the law. It also includes fundamental organizational principles, e.g.: the separation of powers, the constitutional judicial review undertaken by the German Constitutional Court or Bundesvervassungsgericht, the principles of legality, fair procedure, and legal certainty, and the principle of proportionality. Despite its extreme popularity, both in the legal literature and with the Constitutional Court, the present Rechtsstaat has not managed to escape criticisms that underline its relative and elusive nature. As we have seen, the problem surrounding the study and the definition of the Rechtsstaat start with the very word. [FN58] It has questionable dogmatic value, it covers many of the different principles already guaranteed in the Basic Law, [FN59] and indeed, its very usefulness is questionable since the Rechtsstaat is little more than a pleonasm, redundant with the concept of staat. [FN60] The term Rechtsstaat was exported from Germany to the rest of continental Europe starting at the end of the XIX century, giving birth to the French Etat de droit, the Italian Stato di diritto, the Spanish Estado de Derecho, the Dutch Rechtstaat, the Russian Prawowoje gosudarstwo as well as to the regional supranational Community of law [FN61] or Union of law [FN62] in the case of the European Union. In the 1970s, the German constitutional construction of the Rechtsstaat as a constitutional principle informing all the actions of the state, was incorporated into Article 1, Paragraph 1, of the Spanish Constitution of 1978, into Article 2 of the Portuguese Constitution of 1976, and into most of the constitutions adopted by the Eastern European countries after the collapse of communism. [FN63] It was also adopted outside Europe in Latin American [FN64] and Asian [FN65] legal systems, although they were also influenced by the constitution of the United States. (ii) The French Etat de Droit The idea, not the expression, of the rule of law took on idiosyncratic characteristics in revolutionary France. [FN66] It was linked to the idea of constitutional governments and was introduced by Montesquieu in De l'esprit des lois. Montesquieu, looking to the English system as a model, considered the idea of Constitution as the indispensable term to describe the fundamental order of a state, the model of political existence of a nation or
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people, the essential disposition of the elements or powers composing a form of government. He added that, in order to ensure liberty, legislative, executive, and judicial power must be kept separated. However, it was necessary that the judicial power be subordinate to the legislative power, as the sole function of the judge was to apply the law. [T]he judges of the nation are . . . nothing but the mouth which pronounces the words of law . . . some inanimate beings who cannot moderate either the force or the rigor of the law. [FN67] Accordingly, Article XVI of the Declaration of the Rights of Man and the Citizen of 1789 provided that [a]ny society in which the guaranty of rights is not assured or the separation of powers established, has no Constitution. Thus Montesquieu and the Declaration equated constitutional government with two decisive components of the rule of law, the separation of powers, and the protection of human rights. There are several reasons that explain the absence of the term rule of law in French legal history. The first reason is that there was no need for a distinct concept given the fundamental and central importance of three other terms in French legal vocabulary: Nation, Etat, and Republique. [FN68] On the one hand, the fundamental political change brought about by the French Revolution started a gradual process of transfer of sovereignty from the monarch to a new abstract entity which substituted the people for the King. This new abstract entity was to be known as the Nation (all sovereignty resides essentially in the Nation, Article III of the Declaration). [FN69] On the other hand, the French word Republique was given multiple meanings: it could imply not only a government of the people, by the people, and for the people, but also the principles enshrined in the 1789 Declaration, i.e. freedom, equality, and solidarity. In particular, according to Jean-Jacques Rousseau, Du contrat social (1762) laws voted by the people had sacrosanct and infallible qualities. He identified the rule of law with the rule in accordance with the will of the people and the supremacy of law with the supremacy of Parliament, the institution where the representatives of the people carried out the will of the people. Thus, according to Rousseau, tout etat regi par des lois or every state governed by law was a Republique. [FN70] For Rousseau the words Etat and Republique or a res publica were equivalent. The term Etat usually referred to the principle that political power was subject to the law. Furthermore, Montesquieu described the State as a societe oily a des lois or society where there are laws. [FN71] Given this background, the French translation of the German Rechtsstaat as Etat de droit was considered meaningless. It was difficult to see what could be meant by a State which was not a State governed by law: a society governed by arbitrariness could not be a State, since the mere existence of the State implied its subjection to the law. Thus in France, the concepts of Nation, State, and Republic incorporated the basic principles associated with the concept of the Rechtsstaat. [FN72] The second reason for the absence of the term Etat de droit in French legal history has been identified as the result of a lack of stable constitutionalism. [FN73] Revolutionary France adopted five constitutions in fifteen years, [FN74] namely, a constitutional monarchy, a radical republic, a moderate reaction, a consulate, and finally a dictatorship. During the nineteenth century, from 1814-1875, each important political change resulted in a new constitution. [FN75] Each constitution shaped the structure of government and the fundamental values of the state in a different way. It has been suggested that the reason for the French constitutional instability can be found in the difference between the French and the American revolutions. [FN76] While the American Revolution arose against alleged abuses of public power, the French Revolution turned against the oppression of certain powerful private social groups, which were the remnants of the feudal system, and against the power and privilege of the Church and aristocracy protected by the judiciary. [FN77] Thus, the revolutionary programs which expressed the aspirations of American and French societies were embodied in documents which necessarily took different forms: [A] Constitution in the United States, with its emphasis on the separation and limitation of [public] power; and a code of private law in France (Code civil), based on the principles of legislative supremacy, equality, the personal and economic autonomy of the individual, and the right to property. [FN78] However, the most fundamental explanation for the weakness of constitutionalism in France derives from the association of the idea of human rights with the principle of legislative supremacy and from the distrust of judicial power which precluded any effective judicial review of statutory law. [FN79] Thus, a genuine and explicit French theory of the Etat de droit was only very belatedly formulated during the
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Third Republic, in the early decades of the twentieth century, by some professors who supported the idea of judicial review of statutory law and the end of the supremacy of Parliament. In particular, the Alsatian Jurist R. Carre de Malberg conceived a theory of the Etat de droit, under the influence of the German and American experiences, as an alternative model to unstable French constitutionalism and, in particular, the institutions of the Third Republic. [FN80] Like the German liberal jurists, Carre de Malberg believed that the main aim of the Etat de droit was the protection of individual rights against the potential arbitrariness of the state and for this purpose the state had to self-limit its sovereign power by requiring it to respect valid rules which had a general, erga omnes effect. According to Carre de Malberg, the protection of individual rights necessitated a profound reassessment of the French constitutional tradition and the French revolution. In particular, he questioned the omnipotence of Parliament since this institution had become the depository of national sovereignty, of a pre-legal and unlimited constituent power, or pouvoir constituant which was the exceptional power of the people when they act directly and create a new constitution, and of the constituted power, or pouvoir constitue according to which Parliament acts within the Constitution in the realm of policy. [FN81] Carre de Malberg questioned the primacy of Parliament as depository of the revolutionary theory of popular or national sovereignty over the other powers of the state. He also disagreed with the conception proposed by Rousseau that law was the expression of the nation's general will whose prescriptions rigorously bound the executive power. Finally, Carre de Malberg also questioned the Jacobin tradition [FN82] of the revolutionary mistrust of judges. He proposed an understanding of the rule of law which submitted all powers, including the legislative power, to the law. In particular, Parliament had to be viewed only as a constituted power and administrative acts in addition to being submitted to the principle of legality, which corresponded to the condition of the legal state or Etat legal, had to ensure the full protection of the rights and liberties of the individuals. These rights and liberties could only be guaranteed by the Etat de droit, that is, the State equipped with the legal means to ensure that the individuals would be in a position to oppose the will of the parliamentary legislator acting in breach of fundamental rights. [FN83] Thus, while the Etat legal purported to ensure the legislative supremacy of Parliament, the Etat de droit was designed to protect the rights and liberties of the individual against arbitrary action of the parliamentary majority. Finally, Carre de Malberg argued that, considering the evolution of French law, the aim of the Etat de droit could not be achieved in France by means of judicial review of legislation of the American type. He proposed instead a clear distinction between the Constitution and ordinary laws placing the former above the latter and compelling Parliament to respect all the legal limits laid down by the Constitution, thus relinquishing any constituent claim. [FN84] Since the conception of the Etat de droit proposed by Carre de Malberg precluded any effective judicial review of statutory law, it failed to put an end to the supremacy of Parliament. This failure explains the disappearance of the concept of the Etat de droit in French legal doctrine until the twentieth century. [FN85] At the beginning of the twentieth century, the expression Etat de droit re-emerged, promoted by those professors who favoured the incorporation into French law of the principle of judicial review of statutory law. The expression Etat de droit made its initial appearance in a French dictionary in 1938 [FN86] and gained some popularity after the Second World War, without, however, being used frequently. [FN87] Until recently, French lawyers have not been quite at ease with the Germanic Rechtsstaat, although at present they give the impression that they are slowly accepting the term Etat de droit as a literal translation of the German neologism Rechtsstaat. The symbolic starting point of a new influence exercised by the concept of Etat de droit was the speech given on November 8, 1977 by Valery Giscard d'Estaing, the President of the French Republic, in the Conseil Constitutionnel, the French equivalent of a constitutional court and one of the major innovations of the Constitution of the Fifth Republic. Giscard d'Estaing indicated that: when each authority, from the modest to the highest, acts under the control of a judge who ensures that this authority respects the entirety of formal and substantive rules to which it is subjected, the Etat de droit emerges. [FN88] Indeed, the France of the Fifth Republic upheld two fundamental ideas of the Etat de droit, namely (1) the judicial review of statutory law by the conseil constitutionnel, which elevated the status and importance of the Constitution and constitutionally based decision-making in the political life of the nation
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[FN89] and (2) the limitation of executive power by courts pursuant to substantive constitutional standards. Today, France, an old democracy that has met the criteria of the rule of law for a long time, can also be formally described as an Etat de droit, [FN90] if we believe the standard conception of French constitutional doctrine according to which the state must act exclusively in a legal manner, i.e. in accordance with the principle of legality or the Etat legal and the notion that the state is subject to the law in accordance with the principle of constitutionality or the Etat de droit. This conception of the Etat de droit essentially equates the Etat de droit with judicial review of statutory law in accordance with formal and substantive rules laid down in the Constitution, which is placed at the top of the hierarchy of norms. [FN91] (iii) The English Rule of Law Until its entry into the European Union and the incorporation of the European Convention on Human Rights into English law, England did not possess many of the features which German, French, or American laws attribute to the rule of law. England has no written constitution, no explicit bill of rights in the modern sense, and no judicial review of Acts of Parliament. Yet, England is considered to be the bastion of the rule of law. This is so for very idiosyncratic historical legitimate reasons. As we have seen, in England the notion of law as a primary means of subjecting political power to control, appeared as early as the thirteenth century A.D. with Bracton. Based on the medieval idea of a universal natural law, Bracton maintained that, since law makes the King the King shall not be subject to men, but to God and the law. [FN92] This theory was taken on by the Magna Carta and its subsequent confirmations as a means to provide a remedy for the grievances of certain classes of individuals within the community. In the sixteenth century A.D., the medieval idea of a universal natural law did not gather the same pre-eminence. Renaissance and reformation put the emphasis on the national legal system as an aspect of the sovereignty of the state. [FN93] However, it was not until the seventeenth century that a struggle between Crown and Parliament led to a rejection of the Divine Right of Kings and to an alliance between common lawyers and Parliament. In particular, Sir Edward Coke advocated the supremacy of the common law as an objective law, ensuring the primary condition of freedom, constituting a limitation to the power of the monarch, and ensuring the protection of personal freedom and human rights. According to Coke, the common law is the surest sanctuary that a man can take, and the strongest fortress to protect the weakest of all, and the objective application of the common law by the courts provides individuals with a birth right or protection that enables everyone to be free and keep safe his life, honor, family, and patrimony. [FN94] It took a civil war, the beheading of the monarch, the overthrow and exile of the second monarch, the 1640 abolition of the Court of Star Chamber, [FN95] (which drew its authority from the King's sovereign power and was not bound by the common law), the adoption of the Act declaring the Rights and Liberties of the subject, (the Bill of Rights Act of 1689), and the establishment of the succession to the English throne, before English law made the monarchy subject to the law. The Crown was thereafter forced to govern through Parliament and the right of individuals to be free from unlawful interference in their private affairs was established. Most importantly, the 1689 Act provided, inter alia, that it was illegal for the sovereign to suspend (Section 1) or dispense (Section 2) with laws, to establish his own courts (Section 3), or to impose taxes without approval by Parliament (Section 7). The Act also provided for free elections. At the same time, the procedure for habeas corpus was being developed as a remedy, writ, or legal action through which a person could seek a relief by the judicial power from unlawful detention. In particular, by means of the writ of Habeas Corpus ad subiciendum, the court could order that a prisoner be taken before the court in order to determine whether a prisoner had been lawfully detained or should be released (Habeas Corpus act 1679). [FN96] The nineteenth century British jurist A.V. Dicey was inspired by this evolution when he commented that the Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty. Dicey delivered a series of lectures at Oxford which were first published in 1885 under the title, Introduction of the Study of the Law of the Constitution, [FN97] with the aim to introduce students to two or three guiding principles of the constitution. Foremost, among these guiding principles
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was the rule of law, an expression introduced in English law by W.E. Hearn in 1867. The treatise written by Dicey is remarkably clear, and represents the first strictly legal approach to English public law which, up to then, had been dominated by historical studies. The treatise expressed the general doctrine of the rule of law in the form of several detailed statements describing the English constitution. Some of these derived from authors who immediately preceded Dicey. [FN98] Dicey gave three meanings to the rule of law: First, the rule of law means the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness; a man may with us be punished for a breach of law, but he can be punished for nothing else. [FN99] Thus, according to this first meaning, nobody could be made to suffer penalties except for a distinct breach of law established before the ordinary courts. According to Dicey, the systems under the rule of law differed from the systems of government based on the exercise of wide arbitrary powers of constraint by those in authority, such as the power of detention without trial. Secondly, the rule of law ensured equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts which meant that nobody was above the law and that there were no administrative courts. [FN100] Thirdly, the rule of law signified: that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence of the rights of individuals, as defined and enforced by the courts; that, in short, the principles of private law have with us been by the action of the courts and Parliament so extended as to determine the position of the Crown and of its servants; thus the constitution is the result of the ordinary law of the land. [FN101] Thus, according to its third meaning, the rights of the individual were secured, not by guarantees set down in a formal document, as in the constitutions of European states, but by the ordinary remedies of private law available against those who unlawfully interfered with his liberty, regardless of whether they were private citizens or public officials. According to Dicey, the rule of law was linked to another fundamental constitutional principle, the principle of parliamentary sovereignty; a principle which made superfluous in England a written constitution modelled on those of the European continent. The principle of parliamentary sovereignty implies that Parliament has the right to make or abolish any law and that no organ or individual in Great Britain has the right to ignore parliamentary legislation. In considering that the Parliament is a sovereign holder of an absolute legal power, the political sovereignty thus remains with the electorate. Dicey follows the late nineteenth century legal philosopher John Austin who maintained that, in order to exist as such, a state required a sovereign body whose competence was not predefined and whose power could not be limited. [FN102] This conception of parliamentary sovereignty rules out the division, adopted by jurists on the continent, between constitutional or fundamental laws and ordinary laws. This is why the English constitution does not contain a catalogue of fundamental or unalterable rights, the rights of Englishmen being safeguarded by the common law which ensured personal liberty as guaranteed by the habeas corpus writs, freedom of assembly, freedom of speech, freedom of debate, and by ordinary courts. In addition, the sovereignty of the Parliament is incompatible with the existence of a constitutional charter defining the competence of every authority like those of continental Europe. Its legitimacy depends on the respect of the historic rights of Englishmen. Thus, according to Dicey, on the one hand, there is the legislative sovereignty of parliament or the King in Parliament as a formal legal source. On the other hand, there is a common law in the hands of ordinary courts as a natural legal source which applies the laws adopted by the Parliament, while following an autonomous jurisprudential tradition bound only by legal precedent. Half a century after Dicey, Friedrich von Hayek developed the ideas of Dicey in The Road to Serfdom in which Hayek identified the rule of law as the core of British liberty and established a connection between the growth of a measure of arbitrary administrative coercion and the progressive destruction of the cherished foundation of British liberty, the rule of law. [FN103] He juxtaposed (1) the English spontaneous legal order, which developed naturally through history and was founded on tradition and case-law, in which political institutions are merely instrumental; (2) the legal orders founded on the artificial construct of the Rechtsstaat or continental states, and (3) the legal orders
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of the totalitarian states where institutions were central for the operation of the rule of law. [FN104] According to Hayek, only the English legal order genuinely ensures a notion of the rule of law based on liberty, allowing individuals to know the range of activities in which they are completely free to do as they please without being exposed to government coercion. Hayek reiterates: [T]he government in all its actions is bound by rules fixed and announced beforehand-rules which may be possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one's individual affairs on the basis of this knowledge. The goals of substantive equality and distributive justice are inconsistent with the rule of law. [FN105] The ideas of Hayek have been highly influential in the United States, in particular, where economic liberalism has had its way. [FN106] Thus, the originality of the English rule of law has been linked by Dicey and Hayek to the originality of the English constitution. In England, the different nature of powers does not result from any imperative act by the state or from the general will of a constituent assembly expressing popular sovereignty, nor does it result from a written and normatively supreme constitutional charter like in the United States. In England, the Parliament can change the constitution at any time and no political body is entrusted with controlling the constitutionality of legislative acts. The English constitution depends on a longstanding tradition rooted in political conflicts between the King and Parliament and between the absolutist demands of monarchs and the courts as guarantors of English freedoms, normative acts, customs, usages, and not strictly legal precepts. In some cases these conflicts are centuries old and are tied to a millenial and immemorial ancient constitution whose validity derives from its own antiquity and from its quality of being the law of the land. Thus, the rule of law is only very indirectly a legal theory of the state; it is not its juridicisation or constitutionalisation. The English rule of law contrasts with the German or French notions of legislative state according to which judges are officials of the state who have to apply the law of the state and individual rights are only those laid down by the Parliament. Indeed, the English rule of law is a distinctive characteristic of the English constitution. [FN107] In present day Britain the meanings of the rule of law proposed by Dicey and Hayek have been said to raise considerable problems. [FN108] With regard to the supremacy of the law, the first meaning of rule of law proposed by Dicey discussed above, the emphasis on the attacks against the existence of discretionary powers has been displaced in favour of the establishment of a system of legal and political safeguards by which the exercise of discretionary powers may be controlled. [FN109] The second meaning of the rule of law given by Dicey relating to the equal subjection of all persons to the ordinary law is similar to that of the Fourteenth Amendment to the United States Constitution, which provides, inter alia, that no state shall deny to any person within its jurisdiction the equal protection of the laws. [FN110] It is also similar to the provisions laid down in the constitutions of India, Germany, and Canada. [FN111] But today, any legal system, including the English system, distinguishes between different categories of persons by reference to economic or social considerations or their legal status. Furthermore, although Dicey proclaimed the illegitimacy of administrative law in Britain, [FN112] today it is accepted in Britain that the legal protection of the citizens against unlawful official conduct can be secured by separate administrative courts. Finally, today it is difficult to share Dicey's faith in the common law. [A]s the primary legal means of protecting the citizen's liberties against the state. [FN113] In the first place, the common law is subject to modification by Parliament: the most fundamental liberties may be removed by statute. Secondly, the common law does not assure the citizen's economic or social wellbeing. Thirdly, while it remains essential that legal remedies are effective, the experience of many Western countries is that there can be value in imposing legal limits upon the legislature's power to infringe human rights: and the European Convention on Human Rights has shown the value of supra-national remedies. [FN114] Therefore, it can be argued that Dicey's view of the rule of law is based on an analysis of the British constitution which today is in many respects outdated. Nor did Dicey adequately resolve the potential conflict between the two notions of the rule of law and the supremacy of Parliament or indeed the Royal Prerogative. [FN115] For, unlike
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most European states and the United States, legal limits on the sovereignty of Parliament have not been imposed in the United Kingdom and there is no judicial review of Acts of Parliament. [FN116] Indeed, the term judicial review has been expropriated by administrative law [FN117] to refer exclusively to review of the acts of the executive, a government minister, or a local authority where it is alleged that they have acted unlawfully. The expression judicial review has been mostly used as a technical term to denote the application to the court for a remedy against such unlawful administrative action. However, important constitutional innovations have been incorporated into British constitutional arrangements recently. First, the adoption of the Human Rights Act 1998 has introduced two important changes into UK law. On the one hand, it has incorporated into English law most of the rights provided for by the European Convention on Human Rights and its First and Sixth Protocols. These rights, termed Convention Rights, are laid down in a Schedule to the Act. The Act, makes explicit in Section 6(1) that [i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right. On the other hand, the Human Rights Act contains a series of solutions for possible conflicts between fundamental rights and the sovereignty of Parliament, e.g., by requiring UK courts to construe all legislation, both primary and secondary, consistently with Convention rights and requiring the UK courts to make a declaration of incompatibility upon which the Government can take remedial action for an Act of Parliament to be amended. [FN118] Secondly, the Constitutional Reform Act of 2005 has severed the link between the judiciary and the House of Lords through the establishment of the Supreme Court of the United Kingdom, operative since October 2009. The consequence of this is that the UK is evolving towards an incipient constitutional separation between legislative and judicial powers. Indeed, the UK's membership of the European Union has had the effect of Europeanising the way in which English courts interpret and apply English law by looking more to the aim and purposes of legislation rather than to the literal meaning and by being more ready to apply general principles, such as the principles of proportionality and human rights. To some extent, English courts are following the European way of the rule of law, [FN119] which accepts judicial review by supranational institutions. Thus, most recently Lord Tom Bingham has proposed a core definition of the rule of law (that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of law publicly made, taking effect (generally) in the future and publicly administered in the courts which he expands to over the protection of human rights and compliance by the state with its obligations in international law as well as in national law. [FN120] (iv) The supranational pan-European concept This European way of the rule of law derives from the law of the European Union and from the system established under the European Convention of Human Rights. (a) The Rule of Law in the European Union As we have seen, historical legal differences between European States in the attribution of sovereignty, constitutional mechanisms, and the protection of individual rights explain the different doctrines and expressions of the rule of law in those states. However, when the philosophical and political assumptions behind such diversities are considered, they give way to a great number of similar legal institutions and political structures which provide a basis for a genuine pan-European rule of law acceptable to all European states. Indeed, any European national legal system is entrusted with the task of protecting individual rights and any legal system has enacted provisions constraining the inclination of political power to expand, to act arbitrarily, and to abuse its prerogatives [FN121] by means of the principle of distribution of powers. The limitation of the power of the state aims at enlarging the scope of individual freedoms, differentiates the legal system from non-legal subsystems (ethical, religious or economic), and delimits the function of the legislator or legis latio and the enforcement of legislation or legis executio [FN122] or the principle of differentiation. These common European elements have made it possible to refer to the rule of law as a common European value
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of the European Union in the new Article 2 of the Treaty on European Union (TEU) (as amended by the Treaty of Lisbon) which provides that: [T]he Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the member states in a society in which pluralism, non discrimination, tolerance, justice, solidarity and equality between women and men prevail. [FN123] When looking at the French, Spanish, Italian or German versions of the treaties, it is interesting to note that the term rule of law has been translated by Etat de droit, Estado de Derecho, Stato di Diritto, or Rechtsstaat, as equivalent legal notions so that the inclusion of the element of statehood has no effect for the purpose of the supranational EU conception of the rule of law. [FN124] Indeed there is an EU supranational concept of the rule of law that appears to be the most important principle promoting unity both of the law of the European Union and of political integration of the European Union. This EU rule of law has been described as a constitutional principle of the European Union. [FN125] According to the EU rule of law, the European Union itself and its institutions operate under the law. Indeed, in its seminal judgment Parti ecologiste Les Verts, the Court of Justice of the European Union, was first to define the European Union, not as a state governed by law or simply on the rule of law, but as a Community based on the rule of law. The Court emphasized in this regard that: [T]he European . . . [Community] is a [Community] based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty. In particular . . . the Treaty established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institution. [FN126] In its Opinion of 1991, the Court of Justice reaffirmed the political and legal nature of the European Union, recalling that the founding treaty was the constitutional charter of a community based on the rule of law which established a new legal order: [I]ndeed[,] the . . . treaty aims [at] . . . making concrete progress towards European unity . . . [the] Treaty albeit concluded in the form of an international agreement, nonetheless constitutes the constitutional charter of a Community based on the rule of law. The . . . treaties established a new legal order for the benefit of which the states have limited their sovereign rights in ever wider fields and the subjects of which comprise not only Member States but also their nationals. The essential characteristics of the . . . legal order which has thus been established are in particular its primacy over the law of the Member States and the direct effect of a whole series of provisions. [FN127] The formula Community based on the rule of law is actually the translation of the German term Rechtsgemeinschaft, formulated for the first time by Walter Hallstein, President of the European Commission from 1958 to 1967, [FN128] which in French is translated as Communaute de droit. The Court of Justice avoided using the classical term Rechtsstaat or Etat de droit in order to escape the difficulty of characterising the European Union as a State. However since the Maastricht Treaty of 1992, the Amsterdam Treaty of 1997, and the Nice Treaty of 2003, new developments have taken place. For, even though the European Union is nowhere defined as a Community based on the rule of law, the treaties have subsequently expressly provided that the European Union is based on the principle of the rule of law, presently in Art. 2 TEU ( Lisbon). The reviewability of decisions of public authorities by independent courts is key to the EU notion of the rule of law, and this demonstrates that the European Union is based on the rule of law to a far greater extent than any other international or transnational organization or entity. [FN129] The European Union is endowed with a Court of Justice, and the Court of Justice has held that:
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[A]ccess to justice is one of the constitutive elements of a Community based on the rule of law and is guaranteed in the legal order based on the Treaty in that that the Treaty has established a complete system of legal remedies and procedures designed to permit the Court of Justice to review the legality of measures adopted by the institutions . . . the Court of Justice uses the constitutional traditions common to the Member States and . . . the European Convention For the Protection of Human Rights and Fundamental Freedoms as a basis for the right to obtain an effective remedy before a competent court. [FN130] The jurisdiction of the Court is not optional but compulsory. The main purpose of the Court is to ensure that in the interpretation and application of the Treaties the law is observed. (Art. 19 of the ( Lisbon) TEU). Additionally, the Court functions to underscore the importance that, in measures taken by the European Union institutions, in a community governed by the rule of law, adherence to legality must be properly ensured. [FN131] This guarentees that the Courts considerable powers are exercised in accordance with the law and that Member States comply with adverse judgments when they fail to observe their duties under the European Union Treaties. Indeed, if a Member State fails to comply with a judgment of the Court, that Member State is liable to have a very substantial fine imposed. [FN132] Thus, the European Union's rule of law is applicable both to the European Union institutions and to the Member States. This is illustrated by the fact that, the Treaty has established the Court of Justice as the judicial body responsible for ensuring that both the Member States and the Community institutions comply with the law. [FN133] As it has been pointed out, there is no precedent or equivalent in international law for this system of enforcement. [FN134] Finally, the Court of Justice of the European Union adjudicates on questions of Union law referred to it by the court of a Member State. This mechanism has allowed the Court to develop a remarkable body of case-law, including a body of administrative law which seeks to strike an appropriate balance between the public authorities and the individual: Individuals are . . . entitled to effective judicial protection of the rights they derive from the Community legal order, and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights. [FN135] This has even inspired substantial and positive developments in the purely internal law of the Member States. [FN136] The most important principle derived from the EU rule of law is that of effectiveness or effet utile of law with regard to public authorities and includes the legal concepts of autonomy and direct effect of Union law, primacy and comprehensive legal protection. The concept of autonomy and direct effect was laid down for the first time in the celebrated judgment of van Gend en Loos in 1963. [FN137] That case dealt with the question, referred to the Court, of whether a specific treaty provision could be enforced in the national courts in the face of conflicting national legislation. The Court held that the Community or Union constituted a new legal order of international law for the benefit of which the states had limited their sovereign rights and the subject of which comprised not only the Member States but also their nationals. This meant that the Treaty created individual rights which the national court must protect: the task assigned to the Court of Justice under Article (234) . . . confirms that the states have acknowledged that [Community] law has an authority which can be invoked by the nationals before those courts and tribunals. [FN138] It has been pointed out that the ruling is decisive both to the effectiveness of Union law and to the very existence of the rule of law: [F]irstly because it meant that individuals could secure recognition and enforcement of their Union rights in the national courts, secondly because it made national courts the principal instrument for effective application of Union law, and thirdly, because it led to the recognition of the primacy of Union law over national law; if Union law were to be applied by the national courts, it had to be applied across the Union as a whole, leaving no room for the idea that the application of Union law might conflict, in some Member States, with national law; Union law must necessarily prevail over national law, and this was indeed inherent in the very idea of a Union based on the rule of law. [FN139] The concept of primacy or supremacy of Union law derives from the inherent logic of the Union system. It was
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spelled out in the Costa v. ENEL judgment which stressed the unique character of the principle of primacy in the Treaty since, in contrast with ordinary treaties, the treaty has created its own legal system which, on entry into force of the treaty, became an integral part of the legal system of the Member States and which the courts are bound to apply. [FN140] This means that Union law, of whatever status, prevails over conflicting national law of whatever status. [FN141] This concept applies not only to Treaty provisions but to decisions, [FN142] directives, [FN143] and other legal acts. [FN144] The concept of supremacy of Union law has in the past been challenged by the constitutional courts of Germany, [FN145] Italy, [FN146] and by the Supreme Court of Denmark. [FN147] However, the Court of Justice has established that the principle of primacy cannot be denied in stating: [N]o provision of municipal law; of whatever nature they may be, may prevail over Community law . . . lest it be deprived of its character as Community law and its very legal foundations be endangered. The validity of a Community act or its application in a Member State remains, therefore, unimpaired even if it is alleged that the basic rights . . . of the national constitution were violated. [FN148] This is so even when it seems legally and constitutionally impossible for the laws of some Member States. [FN149] This is so even with regard to international law in cases where a United Nations Resolution of the Security Council, acting under Chapter VII of the UN Charter, or an international agreement is incompatible with the law of the European Union. The Court of Justice has held that: [I]n a Union based on the rule of law,] an international agreement cannot affect the allocation of powers fixed by the treaties or, consequently, the autonomy of the Community legal system, observance of which is ensured by the Court by virtue of the exclusive jurisdiction conferred on it by Article 220, jurisdiction that forms part of the very foundations [of the Union]. [FN150] In addition, the Court of Justice acknowledged that where the Union judicature decides that a Union measure, intended to give effect to a UNSC resolution under Charter VII, is contrary to a higher rule of law in the Community legal order it would not entail any challenge to the primacy of that resolution in international law. [FN151] The rule of law has also been associated by the Court of Justice of the European Union with the fundamental values referred to in Articles 2 and 6 of the ( Lisbon) TEU. In a Union based on the rule of law, its institutions are subject to judicial review of the compatibility of their acts with the Treaty and with the general principles of law which include fundamental rights. [FN152] In particular, Article 6 of the Treaty provides that the Union recognizes the rights, freedoms, and principles set out in the Charter of the Fundamental Rights of the European Union of December 7, 2000. It also provides that it shall have the same value as the Treaties, [FN153] that the Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that fundamental rights shall exist as guaranteed by the European Convention. As they result from the constitutional traditions common to the Member States, the same articles guarantee that they shall constitute general principles of Union's law. Thus, the Court has held that access to justice is one of the constitutive elements of a community based on the rule of law and it uses the constitutional traditions common to the Member States and Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms as a basis for the right to obtain an effective remedy before a competent court. [FN154] The Court of Justice has derived a great number of principles from the above-mentioned core concepts of the rule of law. These include the concept of legal certainty (otherwise referred to as legal clarity and predictability), [FN155] the protection of fundamental rights, [FN156] such as procedural rules governing actions brought before the Union's courts ensuring effective judicial protection of an individual's rights under Union law), [FN157] and the principle of democracy. [FN158] The Court also developed from these core concepts the principles of due process, [FN159] justice, [FN160] state liability under Union law, [FN161] the principle of solidarity, [FN162] and the principle of equality. [FN163] Furthermore, it gained the principle of proportionality, i.e. the principle that EU institutions may only impose such obligations, restrictions, and penalties upon citizens as are strictly necessary for the attainment of the aims pursued for purposes of the public interest. [FN164] These principles, including the principle of sound administration, are fundamental to good governance. [FN165] The Court additionally developed the protection of legit-
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imate expectations, [FN166] the principle of transparency, [FN167] and the right of access for the citizen to official documents. [FN168] Finally, it obtained fundamental values such as religious freedom, [FN169] the principle of equal treatment, [FN170] the right to respect for private life, [FN171] and the principles relating to the internal market of the Union: fiscal supervision, [FN172] public health, [FN173] fairness of commercial transactions, [FN174] defence of the consumer, [FN175] freedom to trade, [FN176] fair competition, [FN177] and the protection of the environment. [FN178] These are all principles that form part of the European civil law system and the European common law system. [FN179] Both systems have been reinforced by the impact of the law of the European Union upon the domestic law of the Member States. For instance, judicial remedies constitute a very sophisticated part of the English private law (e.g., the system of injunctions), but remedies in public law have been weak until recently. In particular, injunctions against ministers of the crown were not allowed under English law, but since the Factortame litigation and following a reference to the Court of Justice of the European Union, the House of Lords held that an injunction should be granted under English public law. [FN180] Finally, as it has been pointed out, the European Union based on the rule of law serves as a magnet for other European states to join it. [FN181] Additionally, further beyond its frontiers, the Union has inspired many imitations. [FN182] In addition to the EU rule of law, there is the pan-European system created by the European Convention for the Protection of Human Rights and Fundamental Freedoms which covers a wider European space than the system of the European Union. (b) The Rule of Law under the European Convention for the Protection of Human Rights The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), generally known as the European Convention on Human Rights, was elaborated and adopted under the auspices of the Council of Europe. Article 3 of the Statute of the Council of Europe provides that every Member state of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms. [FN183] Articles 7 and 8 of the Statute provide for suspension and, where a Member state of the Council of Europe seriously violates Article 3, for appropriate expulsion from the Council of Europe. These provisions have no parallel in the history of international organizations. The rights protected by the Convention include most of the basic civil and political rights, such as: the right to life, liberty and security; prohibition of torture and of inhuman or degrading treatment, slavery, servitude and forced labor; the right to a fair trial; and freedom of conscience and religion, of speech and of assembly. [FN184] These rights are also protected by the Universal Declaration of Human Rights. The difference between the UN Universal Declaration and the European Convention is that the former is a mere declaratory text while the latter contains a system of judicial enforcement for the human rights protected. Initially, the enforcement system established in the European Convention consisted of a European Commission of Human Rights and, at a later stage, also a European Court of Human Rights. This enforcement system was subject to voluntary options by states. Now, because of the Eleventh Protocol of November 1, 1998, which merged the European Commission of Human Rights and the Court of Human Rights, the European Court of Human Rights has become the only enforcement mechanism provided for by the Convention. This has resulted in individual applicants being given the right of action before the Court. In addition, the mechanism is not subject to any condition. Accession to the Convention automatically entails permanent acceptance of the jurisdiction of the Court of Human Rights. Furthermore, the parties to a case must abide by the judgments of the Court and take all necessary measures to comply with them. The Committee of Ministers of the Council of Europe supervises the execution of judgments. The Secretary General of the Council of Europe may request the parties to provide explanations on the manner in which
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their domestic law ensures effective implementation of the Convention. Acceptance of the Convention is also a precondition for membership of the European Union (Articles 49 and 2 TEU), [FN185] which is itself firmly based on respect for the rule of law and respect for human rights. It has also become part of the internal law of many of the Member States, both by virtue of the interpretation of national constitutions by the national courts of the parties or by specific domestic legislation as in the case of the UK Human Rights Act 1998. It has thereby been given internal legal effect in almost all the Member states of the Council of Europe. These internal effects, which enable the Convention to be invoked in domestic courts, have obvious advantages. [FN186] Indeed, the Convention has proven extraordinarily effective [and] it is particularly striking that these developments have taken place in Europe, where state sovereignty has had the longest history, and might have been thought to be most strongly entrenched. The human rights directly related to the rule of law include the right of access to justice, the right to a legally competent judge, inadmissibility of double jeopardy (ue bis in idem), nonretroactivity, presumption of innocence, and the right to a fair trial. [FN187] (c) Assessment: The Added Value of the Pan-European Rule of Law The two European systems described above have contributed remarkably to reinforce the rule of law within Europe. Indeed, the two European systems provide an additional supranational remedy to those existing under the domestic law either where there is no domestic remedy or in the absence of domestic jurisdictions. The new additional supranational remedy is for the benefit of individuals and corporations and can be exercised before the EU supranational courts where supranational institutions act illegally, e.g., the review of the legality of EU acts as laid down in Article 263 TFEU. [FN188] In addition, where there is no remedy available within the domestic system, the two European systems can improve the domestic systems by requiring them to establish a new national remedy. On the one hand, the European Court of Human Rights held that Article 6, paragraph 1 of the Convention, which provides that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal, guarantees a right of access to a court and consequently, that English law had to provide for such remedy. [O]ne can scarcely conceive of the rule of law without there being a possibility of access to a court . . . the principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally recognised fundamental principles of law; the same is true of . . . international law which forbids the denial of justice; Article 6, para. 1 must be read in the light of these principles. [FN189] On the other hand, the Court of Justice of the European Union has recognized the right to judicial protection as a general principle of law that must be ensured by national law. [FN190] Finally, the European systems of protection of the rule of law have established a very beneficial dialogue between both the Court of Justice of the European Union and the European Court of Human Rights and the national courts. [FN191] This dialogue has resulted in a marked improvement of all the systems involved. [FN192] With the accession of the European Union to the system of the European Convention of Human Rights foreseen in Article 6 of the TEU, a more persistent dialogue between the two supranational courts should result in an even more sophisticated and uniform system of protection of the rule of law for the whole Europe. The question arises as to how this European concept compares with other legal systems. Among those systems, that of the United States awakens curiosity because of its proximity to European legal systems. Thus, the question is, whether there is a unified conception of the rule of law shared between Europe and the United States. III. The Rule of Law in American Law Following the philosophical and political thoughts of John Locke and Thomas Jefferson, the law of the United States incorporates the most radical principles of individualism and liberty ever known to man. These principles, proclaimed in the American Declaration of Independence, were inserted in the Preamble of the U.S. Constitution and
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provide that people have certain fundamental and inherent rights such as life, liberty, property ownership, and the pursuit of happiness. These rights have been endowed by nature and God, and not by government. (i) The Natural Rights of Man Liberty and natural rights explain why the rule of law has acquired a central position in U.S. law to the point where the rule of law has become a veritable civil religion. [FN193] Indeed, the liberty of citizens and their individual natural rights could not be secured unless the act of self-determination embodied in the most fundamental law of the land, i.e. the Constitution, limited the power of the government. [FN194] Thus, the U.S. Constitution purports above all to institute a government which can be kept within a very narrow remit: to protect, and not regulate or destroy, the natural rights of the people bestowed by God. [FN195] On the one hand, the constitutional doctrine of legislative, executive, and judicial separation of powers, the checks and balances of each branch against the others, and the explicit guarantees of individual liberty, were all designed to strike a balance between authority and liberty, which is the main objective of the U.S. Constitution. On the other hand, the laws of the United States, and international treaties ratified by the United States, became the supreme law of the land pursuant to Article VI of the Constitution and ordinary laws, even those made by the legislature, were to be subject to the fundamental law of the Constitution and could, therefore, be held invalid if they violated it. If laws which conflict with the Constitution may be held invalid, the question then of course, becomes who can declare the laws invalid. The U.S. Constitution does not provide an answer. That answer was provided by the U.S. Supreme Court. While replying on the principle of separation of powers, the U.S. Supreme Court held that it had power to review the compatibility of ordinary legislation with the Constitution, i.e. judicial review. The constitutional judicial review was established by the U.S. Supreme Court, specifically by Chief Justice Marshall, in the famous case of Marbury v. Madison in 1803. [FN196] In that case, the Supreme Court found a conflict between a statute enacted by the U.S. Congress and the Constitution. The Court noted that Article III of the U.S. Constitution provides, that the judicial power is exercised by the courts, that the Constitution is interpreted by the courts, and that the Supreme Court of the United States is the final court of appeal from the state and federal courts. The Supreme Court then held that it had the authority to render null and void any federal or state law that was contrary to the fundamental law of the U.S. Constitution. The Supreme Court considered that the essence of judicial duty was to ensure that the law conforms to the Constitution and this principle constitutes the essence of the American understanding of the rule of law. Although the expression rule of law does not appear in the Constitution, a close constitutional analogy has been found in the due process clauses of the Fifth Amendment (No person shall be . . . deprived of life, liberty or property without due process of law) and Fourteenth Amendment (Nor shall any state deprive any person of life, liberty or property, without due process of law). [FN197] (ii) Due Process under the Fifth Amendment With regard to the Fifth Amendment, the Supreme Court has held that it is: [A] settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply embedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due process is that which comports with the deepest notions of what is fair and right and just. [FN198] Indeed, the content of due process of law under the Fifth Amendment is a historical product [FN199] whose meaning originates in chapter 39 of Magna Carta, in which the English King John promised that: [N]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go
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upon him nor send upon him, except for the lawful judgment of his pairs or by the law of the land[.] [FN200] Due Process also has roots in the English Liberty of Subject Act of 1354, according to which no man of what state or condition he be, shall be put out of his lands or tenements nor taken nor disherited, nor put to death, without he be brought to answer by due process of law. [FN201] Over time, the expression due process of law became widely used until the founders of the American constitutional system incorporated it into the U.S. Constitution. The constitutional meaning of the expression due process of law was taken from the work of Sir Edward Coke. In his Second Institutes, Coke identified the term by the law of the land with the term due process of law, which he in turn defined as by due process of the common law, that is by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law. [FN202] In the early years of the United States, the terms law of the land and due process were used somewhat interchangeably. Initially, the term law of the land was the preferred expression in colonial charters and declarations of rights, but some state constitutions incorporated both terms. [FN203] Later, due process of law became the favorite and soon the question arose whether due process of law was a principle relating to procedure or whether it also included questions of substance. [FN204] While a literal interpretation of the language used in the Fifth Amendment leads to the conclusion that it is a procedural provision, as it appears to refer to court procedure, that is not the interpretation that has been given to the due process of law by the U.S. Supreme Court. On the one hand, the Supreme Court held that the legislature or Congress was not free to determine the contents of due process in stating that: [I]t is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial power of the government, and cannot be so construed as to leave congress free to make any process due process of law by its mere will. [FN205] On the other hand, the Supreme Court held that due process under the Fifth Amendment also incorporates the protection of substantive rights for historical reasons. Early in the judicial history of the United States, a number of jurists attempted to formulate a theory of natural rights or natural justice that would limit the power of government, especially with regard to property rights. They argued firstly, that the written constitution was the supreme law of the state and that judicial review could only apply to legislation and not to the unwritten law or natural rights. Secondly, they argued that the police power of government enabled the legislature to regulate the use and possession of property in the public interest, subject only to the specific prohibitions in the written Constitution. These jurists thus found in the law of the land and the due process of law clauses of the state constitutions provided substantive restrictions on the power of the legislature. [FN206] Indeed, Chief Justice Roger B. Taney was not innovating when, in his opinion in the Dred Scott case, he commented on one of the reasons why the Missouri Compromise [FN207] was unconstitutional: [The Act of Congress which deprived] a citizen of his liberty or property, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law. [FN208] Thus at present, the due process clause of the Fifth Amendment offers a procedural and substantive protection to all persons within the territory of United States, including not only citizens, but corporations, aliens, and presumptive citizens seeking readmission to the United States. The Fifth Amendment does not apply to the U.S. States. (iii) The Due Process under the Fourteenth Amendment Instead, U.S. States are subject to the due process of law clause inserted in the Fourteenth Amendment, which was adopted following the American Civil War. Under the Fourteenth Amendment: [N]o state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. Again, due process under the Fourteenth Amendment can be divided into two categories: procedural due process
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and substantive due process. Procedural due process is based on principles of fundamental fairness and deals with procedures that must apply in state proceedings, such as: giving notice, an opportunity for a hearing, confrontation and close examination, discovery, the basis for the decision, and availability of counsel. Substantive due process is used to assess whether the substance of a law can fairly be applied by states at all, regardless of the procedure followed for its adoption. Substantive due process has generally dealt with specific subjects, such as: liberty of contract or privacy. Over time, emphasis has been placed on the importance of economic and non-economic matters. Although, in theory, procedural and substantive due process are closely related, in practice, substantive due process has had greater impact because significant portions of the legislative jurisdiction of a state can be restricted by its application. This is so because the due process clause under the Fourteenth Amendment has been used to make a large portion of the Bill of Rights applicable to States. This resulted from the adoption between 1865 and 1870 following the Civil War of the so-called Reconstruction Amendments (13th, 14th and 15th) to the U.S. Constitution in order to change the half-slave and half-free, in the words of President Lincoln, nature of the United States, into a unified land of freedom for the whole population. These amendments gave the federal courts the authority to apply the Bill of Rights when a State threatened any fundamental right of its citizens. [FN209] Over time, the principal provisions of the Bill of Rights have been held applicable to the three protections of the Fourteenth Amendment, i.e. privileges and immunities, due process, and equal protection. [FN210] In particular, a gradual absorption into due process of the rights provided for in the Bill of Rights has taken place by means of the doctrine of selective incorporation [FN211] which has made possible the incorporation into the due process clause of personal rights, [FN212] freedom of speech and the press, [FN213] liberty, [FN214] the prohibition of unreasonable searches and seizures [FN215] and, not without some controversy, the legalization of abortion. [FN216] The principal controversy today is whether, once a guarantee or a right set out in the Bill of Rights is held to be a limitation on the States under due process of law, the same standard which restricts the action of the federal government restricts that of the States. The majority of the Supreme Court has consistently held that the standards are identical, irrespective of whether the Federal Government or a State is involved. [FN217] [T]o suppose that due process of law meant one thing in the fifth amendment and another in the fourteenth is too frivolous to require elaborate rejection. [FN218] The Court has also rejected the notion that the Fourteenth Amendment applies to the state only as a watered down, subjective version of the individual guarantees of the Bill of Rights. [FN219] Those who have argued for a differentiated application of due process for the federal government and for the States, (in the past Justices Harlan, Steward, Fortas, Powell, and Rehnquist) have stated that, if the same standards were to apply, the standards applied to the federal government would have to be diluted when applied to the States in order to give the States more flexibility in the operation of their systems of criminal justice. [FN220] The latter result seems to have been reached for the purpose of application of the jury trial guarantee of the Sixth Amendment. [FN221] (iv) The Supreme Court as the guarantor of the American Rule of Law It is important to note that within the context of the rule of law, the United States has put in the hands of its courts, not in its legislature or in its executive, many of the fundamental choices that society makes. American courts, and in particular the Supreme Court, have become the ultimate arbiter in conflicts between goals and values. This has required not merely that American courts apply the law in force, but also that they develop the law. In the process of the development of the law, the question of the reasoning employed in judicial decisions has become of major importance. It is often asked if the courts seek to determine the original intent of the constitution and to give effect to that. The U.S. Supreme Court held in 1855, that in order to determine whether a process is due process the first step is to examine the Constitution itself, to see whether this process be in conflict with any of its provisions. [FN222] Others believe that the courts should treat the constitution rather as an evolving instrument, to be adapted to changing circumstances and to changing values. In that case, judicial review may include criteria which balances the importance of the governmental interest being served and the appropriateness of the governmental method of
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implementation against the resulting infringement of individual rights, with two consequences. First, if the governmental action breaches a fundamental right, the highest level of judicial review or strict scrutiny is applied. [FN223] Additionally, in order to pass the review of strict scrutiny, the law or act must lay down very clearly that it pursues a compelling interest of the government. When the governmental action or law restricts liberty in a manner that does not affect a fundamental right, then the judicial review is exercised on a rational basis and the existence of a legitimate interest of the government is sufficient for it to pass the review. [FN224] Recently, a perceived erosion of the rule of law in the United States, particularly with regard to actions taken by the Bush Administration, [FN225] has led to renewed debates over the role of American courts as final guarantors of the rule of law. [FN226] Above all, American law has given birth to what is considered to be the essence of constitutionalism, i.e. the idea of a rule of law, according to which the Constitution is the fundamental law which entitles the courts to set aside even the laws enacted by democratic legislatures which violate the constitution. Judicial review of the constitutionality of legislation has a dual justification in the United States. Firstly, since the Constitution is the supreme law of the land, its principles prevail over ordinary legislation. Secondly, since in the United States federal powers are divided between the U.S. Congress and the State legislatures, each being the supreme legislature, the separate legislatures are equal, and there is no true sovereign. In that situation, there is a need for an independent system of adjudication with powers to resolve disputes over the respective competences of the central legislature and the state legislatures. It results from the preceding analysis that the American idea of the rule of law shares the following principles with the European Union: (i) power may not be exercised arbitrarily; (ii) the law is supreme and independent; (iii) equality of the law; and (iv) respect for individual rights. The question arises as to how the European and American conceptions of the rule of law compare with other expressions of the rule of law resulting from the different legal systems and regions in the world. A brief examination of this question is provided in the following paragraphs. IV. The Rule of Law in China and the Rest of Asia The old Chinese civilization was governed by the rule of man and by the rule by law. The rule of man originated in the Confucian philosophy and in the body of rules of proper behaviour, called li, which prevailed in old Chinese law. It corresponded to a genuine rule by rite. [FN227] In the Confucian Chinese view, social relations were part of the natural order and must, in compliance with the Confucian and Tung Chung-Shu doctrines, conform to cosmic harmony: man and God, Heaven and Earth, all things living and inert, are organic parts of a harmoniously ordered and integrated universe. Therefore, the most important goal of man must be to keep his thoughts, feelings, and actions in perfect accordance with cosmic harmony. The ideal man is a person who is conscious of the natural order of the world and who recognizes the necessity of the rules of behaviour, follows them spontaneously and modestly, and quietly represses his own interests in order to maintain that harmony. Above all, man must comply with the li, or rules of proper behaviour specifically dependent on the social status of the person concerned and on the specific situation. Law could not take into account of all the various imponderables inherent in the social position of the parties and court procedures could not be established to uphold legal rights based on these complicated structures. This led to skepticism about the value of law and all forms of court enforcement; a tradition that survives in the China of today. Any breach of the rules of li must be resolved by finding an equitable solution by means of peaceful discussions, by exercising a degree of forbearance in a conflict and, if necessary, by accepting injustice. Therefore, since law played only a complementary role to morality and li, traditional China developed a great variety of forms of conflict resolution outside the courts (e.g., conciliations by the head of the family or by a relative in family disputes). This meant that only a very small proportion of disputes (mainly relating to matters of private law) were submitted to state courts for resolution. In contrast to the Confucian school of thought, there existed the old Chinese legalist school of thought which cri-
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ticized the Confucian system as nothing more than rule of man, or ren zhi, in which the Confucian sage determined what was best in a given situation based on his own judgment rather than on legal rules of general applicability. In response, the legalists advocated the rule by law, or fa zhi, according to which laws had to be written, clearly codified, publicly promulgated, and impartially applied to commoner and nobleman alike. However, under the fa zhi of the legalist school, the ruler remained the ultimate authority, both in theory and in practice, and the scope of his discretion was only limited by his own morality and his understanding of social expectations. Law was what pleased the ruler, who retained the power to enact and amend the laws and remained above and beyond the law. [FN228] Law was simply a pragmatic instrument for obtaining and maintaining political control and social order. Later, the Chinese Imperial legal system combined the Confucian rule by rite and the legalist rule by law, however the system reflected the inherent weaknesses of both. These shortcomings led to a reform movement at the end of the Qing dynasty. However, the successive reforms of the dynasty never succeeded in reversing the shortcomings. This situation prevailed until very recently. In the early 1900s, a number of reformers advocated learning from the West and specifically from Western legal systems and the notions of rule of law, i.e. constitutionalism and human rights. They imported European legal traditions which led to an improvement of the Chinese legal system. These changes included the elaboration of the first Chinese constitution in the early 1900s, the adoption of legal codes modelled on German and Japanese laws, and the modernization of the judiciary and the restructuring of the courts. These modern judiciary incorporated the establishment of administrative courts, professional judges, and a bar of private practitioners. However, such reforms did not succeed in the turbulent, republican period that preceded Communism. During the socialist or communist period, the legal systems served primarily the interests of politicians. As in earlier periods, the law was conceived of as an instrument to strengthen a paternalistic state. That is, the purpose of law was to serve the state, not to protect individual rights. There was little if any separation between law and politics. There was neither an independent judiciary nor an autonomous legal profession. There were no effective limits on state power, particularly the power of the ruler and the ruling elite. There were few legal remedies available to the citizens in order to challenge government decisions. Finally, there was little space for the participation of ordinary citizens in the elaboration, enactment, or implementation of legislation. [FN229] Since the death of Mao in 1976, China has undertaken unprecedented economic, political, and legal reforms. Within this framework, the drive to implement the rule of law has received wide support from various groups. For the new rulers of China, many of whom suffered under the arbitrary rule of Mao, the dangers of unfettered government are readily apparent and the desire for legitimacy, both at home and abroad, has made possible a discussion about how to hold the government accountable for its actions. Since 1999, the Chinese constitution provides that China implements [the principle] to rule the country according to law or yi la zhi guo and establishes a socialist state regulated by law or jianshe shehuizhuyi fa zhi guoja. Fa zhi has become, above all, an expression of extensive legislation by the National People's Congress and the State Council, China's central government. In particular, administrative law is seen as a way to rationalize governance, enhance administrative efficiency, and control local governments. Owing to a political system controlled by a paramount leading party and the absence of separation of powers, fa zhi is an instrument for political ends rather than a principle limiting political power. However, as economic reforms have progressed, people have begun to have more property and business interests to protect and this has increased the demand for greater protection of their rights and interests. [FN230] At present, one of the main theoretical and practical issues relating to the rule of law is how to reconcile the leading role of the Chinese Communist Party with the principle of the supremacy of law, which is a basic tenet of the rule of law. [FN231] The rest of Asia does not offer a unified picture on the rule of law. While the rule of law, in its European and American conceptions, forms an integral part of the mature Japanese democracy, [FN232] the rule of law is the subject of political debate in Hong Kong, Singapore, Malaysia, and even Vietnam. In contrast, until very recently, the term rule of law remained largely irrelevant to most Koreans. Thailand, after decades of semi-democracy followed by repeated coups, adopted a new constitution in 1997 that incorporated the rule of law. Yet, democracy and human
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rights attract more attention than the rule of law because the Thai term for the rule of law is Luck Nititham, implying a precept of law based upon a sense of justice and virtue. The term justice in Thailand is steeped in popular incomprehension because it is not an easy notion to grasp in a concrete sense. For that reason there is a kind of mythification of the term as a lynchpin of Thai society. Thus, the rule of law has become a rule of lore, [FN233] a myth without practical impact. In Vietnam, like in China, the main issue is whether the ruling regime is willing to accept the basic requirement of the rule of law and whether the state and state actors are bound by the law. [FN234] There have been attempts to postpone the implementation of the requirements of the rule of law in Asia because the idea is not part of the Asian values. The term Asian values was first proposed by the Prime Minister of Singapore, Mr. Lee Kuan Yew, in order to give priority to economic developments, the improvement of living standards, and the secondary priorities of non-interference in the internal affairs of the state over civil and political rights. The concept of Asian values has attracted strong criticism in large part because Asia is not a monolithic culture, but also because Asian Confucian civilization focuses on the moral growth of the individual and not on human rights and democracy. [FN235] It is no mere coincidence that the pre-eminence of economic and social values is also a tenet of legal socialism. V. The Socialist Rule of Law The legal system that resulted from the Soviet revolution of 1917, giving birth to the USSR, and that later inspired other communist states (at present there remains notably China, Vietnam, North Korea, and Cuba), does not accept the subjection of the state to a higher law. This system, based on Marxist-Leninist ideology, creates a totalitarian state which, in order to ensure economic equality, owns all the means of production and lacks a system of protection of private civil rights. It does not ensure the principle of separation of powers and it does not provide for judicial review of action by the government. In this system, the law is an instrument used by the state in order to eliminate the political power and dominance of the bourgeoisie and to motivate society towards communism under the supervision of the communist party. In the stage of transformation, which lasts indefinitely, socialist law has evolved to tolerate a socialist legality in which certain individual rights, mainly procedural and statutory, are upheld against the state, provided that such rights do not involve any political or religious rights to oppose the socialist regime. The ultimate control of the legal system lies with the leadership of the communist party, which is the only party authorized within that system. The aim of socialist legality is to ensure legally the good ordering of society in response to social needs. [FN236] Thus, the socialist idea of the rule of law is very limited and does not offer guarantees for the supremacy of the law over the will of the communist party or the arbitrary exercise of power by the state. [FN237] At the opposite extreme of the socialist legality lies the Islamic religious conception of the rule of law. VI. The Rule of Law in Islam Islamic Law requires that Muslims first obey Allah (God), through the Prophet Mohamed, who was ordered by God to guide his people or ummah in their life. As such, the Prophet is also a legislator or al-shari, and in turn those who have political authority, provided that their decisions and policies conform to the injunctions of God (via the Koran), and the tradition of the Prophet or Hadith as stipulated in the Koran. Consequently, according to Islamic Law, the ultimate authority and sovereignty does not lie with the political authorities, but with the law of God or Sharia. [FN238] The Sharia comprises not what Western lawyers categorize as a set of legal rules; but rather, something deeper and higher, connected with the divine, and infused with moral and metaphysical purpose. That is, a set of unchanging beliefs and principles that order life in accordance with the will of God and the idea that all human beings, and all human governments, are subject to justice under the law of God. [FN239] Islamic law obliges its adherents to apply Islamic moral principles to politics and the state. The moral and ethical principles of the Islamic political system consist of trust or amanah, justice or adalah, consultation or shura, pluralism or ta'addudiyyah, [FN240] equality or musawah, brotherhood or ukhuwwah, and peace or silm. The Prophet Mohamed himself estab-
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lished the Medinah state in the year 627 by issuing the Medinah Constitution or mithaq al-madinah, which is considered to be the first written constitution in the world. [FN241] Thus, the Islamic state is a Rechtsstaat or dawlat al-qanun, subject to the rule of law of the Sharia or siyadat alqanun. As such, the traditional Islamic state and political system was, for more than a thousand years, a divine nomocracy or a theo-democracy governed by the Sharia, which did not offer a doctrine of separation of powers. This system rendered a government legitimate only if it generally respected the individual legal rights of its subjects laid down in the Sharia and if it was accepted by those subjects as doing so. [FN242] The Sharia individual rights, known as the rights of humans, included the rights to: life, property, legal process, and individual rights arising from the relationship between individuals and the Islamic state. [FN243] Any Islamic ruler, either the caliph or another, was subject to the Islamic rights of humans which functioned as a guarantee against oppression by arbitrary acts of the Islamic government. [FN244] The rights of humans contrasted with the rights of God which, of course, also formed part of Islamic law. The relationship between God and individual included questions relating to worship and rituals. The Islamic principle, according to which the ruler was subject to the rule of law of the Sharia, or hukm al-qanun, was enforced by Islamic scholars, who became the guardians of Islamic law, and whose pronouncements operated as a real balance to the power of the ruler. Thus, the ruler who perverted the course of justice had to pay the high price of being declared by Islamic scholars in breach of the Sharia-the law of God. Since the Koran does not cover all actions, Islamic scholars had ample latitude to interpret the will of God according to their scholarly consensus or ijtihad. By controlling the law, scholars limited the ability of the political authorities to violate it. [FN245] Islamic scholars and their law were absolutely essential to the extraordinary success of Islamic society from its inception until well into the nineteenth century. Most scholars today accept that modern democracy is compatible with Islamic Law. [FN246] Today, Islamic law provides for an Islamic review of legislation by Islamic courts that exercise the functions occupied by Islamic scholars in earlier times. Like the scholars, the judges of the reviewing court present their opinions as interpretations of Islamic law. This is why Muslims of today are not entirely fanciful when they assert that Sharia can apply in a constitutional state subject to the rule of law. [FN247] However, the Islamic rule of law is not equivalent to the Western rule of law. In Western constitutionalism, democracy and the separation of powers presuppose secularism and this is not acceptable to Islamic democracy. This explains why some Islamic democrats view Western democracy as a doctrine or procedure, a mere method of dispensing, sharing and managing political power and secularism, nationalism and alike. According to these Islamic scholars, secularism is not an inevitable consequence of democracy: free elections, political parties, individual freedoms, and human rights can co-exist within an Islamic constitution which upholds the basic principles of the Islamic faith. [FN248] There are other developing countries, mainly in Latin America and Africa, that do not adhere to Islam, and that have undertaken the road to democracy on the Western model. VII. The Rule of Law in Latin America and Africa Since Latin America inherited its civil law systems from Europe, the rule of law is widely considered as an integral part of democratization. [FN249] In practice, however, it appears that the transition to democracy in many Latin American countries has proceeded without consolidation of the rule of law. [FN250] Citizens and governments alike circumvent the rule of law by pursuing their interests through informal networks and practices. [FN251] This resistance to or declining confidence in the rule of law appears in the available data on the status of judicial independence, military interference, and independence of the law. Chile appears to be the only exception to the declining confidence of Latin America in the rule of law. [FN252] Africa has developed its own conceptions of human rights and rule of law over the past decade. [FN253] These conceptions have been facilitated by important political transformations, which have given birth to an African view
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of an international rule of law where priority is given to self-determination, as inspired by the process of decolonization, the definition of the term refugee, and the insistence, in a continent ravaged by mass murder and poverty, that human rights must protect not only civilian and political rights but also economic and social rights. [FN254] The preceding paragraphs provided an illustration of the significance of the rule of law in the different legal systems in the world. The question arises whether it is possible to agree on a definition which could be accepted by all. VIII. Elements for a Universal Definition of the Rule of Law From the preceding analysis, it appears that the Western world emphasizes the independent existence of law as a distinct social phenomenon. The independence of the law, ensured by an independent judiciary, allows effective control of the arbitrary state and guarantees a formal equality of citizens before the law. It also provides legal certainty. In its most general definition, the rule of law expresses the idea that ordinary laws, even those made by the sovereign, are subject to a fundamental law, typically a higher law or constitution, and therefore, can be held invalid by independent courts if that fundamental law is breached. From this general definition two theories on the rule of law have been advocated: formal and substantive. Those who propose a formal theory consider that the rule of law limits itself to requiring only restrictions on the exercise of state authority. They tend to be positivist and are often referred to as thin theorists. They also consider that the exercise of power is, with few exceptions, subject to review by courts and that it would ensure that the acts of the public authorities are in conformity with the law. This aspect of the rule of law, known as the principle of legality, includes compliance with the derivative principles of legal certainty, transparency and proportionality, publication, general application, clarity, non-retroactivity of laws, enforceability, and non-discrimination. [FN255] Formal theories distinguish themselves from the substantive or thick theories according to which the rule of law requires a specific legal content. This content would include values which are widely accepted as essential to modern social and political life, such as the fundamental organizational principles of the state. Examples include, the German Rechtsstaat, the values of the Republican state in France, the basic principles of the common law in England, the natural rights of Man in the United States, and respect for human dignity, freedom, democracy, human rights, pluralism, non-discrimination, tolerance, justice, solidarity and equality in the European Union. Substantive theories of the rule of law appeal to comprehensive social and political philosophies. [FN256] Outside the Western World, the Western conception of the rule of law is either refuted, as in the socialist systems where law is a means to achieve the transformation of society and therefore the law cannot bind the state, or transformed, as in Islamic law that excludes secularism, according to which subordination of the Islamic rulers to the Sharia is subject to the control (in the past) of Islamic scholars and (in the present day) of Islamic courts. Additionally, the rule of law can only partially be accepted into a wide variety of political agendas, either in its formal or in its substantive aspects (in many countries in Latin America, Asia, and Africa). States that rely on law to govern, but that do not accept the basic requirement that law binds the state, state actors, and states in transition to a democratic form of government, cannot be identified as states governed by the rule of law, but rather, are best described as states ruled by law (the fa zhi of old China). States that rely on rules of proper behaviour, based on philosophical conceptions (the li of old China), are better described as belonging to the rule of man or ren zhi. States that rely on religious moral laws, like Islam, do not belong either to rule by the law of the state or the rule of law independent from the state, but to the rule of the Sharia. This implies that any universal definition of the rule of law will have to incorporate at least three principles: (i) the principle that power may not be exercised arbitrarily, which requires a rejection of the rule by man and requires that laws should be prospective, accessible, and clear; (ii) the principle of supremacy of the law, which distinguishes the rule of law from the rule by law and implies acceptance of the principle of separation of powers or the idea that the law applies to all, including the sovereign, with an independent institution, such as a judiciary, to apply the law to
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specific cases; and (iii) the principle that the law must apply to all persons equally, offering equal protection without discrimination or the idea that the law should be of general application and should be capable of being obeyed. There is controversy over the question of whether the rule of law requires respect for fundamental rights, the exact content of which has been illustrated as varying in the different legal systems of the world. On this last question, international law may offer an answer. The Rule of Law in International Law Can the principles on the rule of law laid down in the domestic systems of the states discussed above be applied at the international level? Is there an international rule of law forming part of international law that is binding upon all international organizations and states? What is the content of such a rule? Can the rule of law, understood as requiring the political power to act without arbitrariness, upholding the supremacy of the law, and equal treatment before the law be translated into international law? Rosalyn Higgins, former President of the International Court of Justice, has suggested that this core meaning of the rule of law would require the existence of an international rule of law according to which: [T]here should be an executive reflecting popular choice, taking non-arbitrary decisions applicable to all for the most part judicially reviewable for constitutionality, laws known to all, applied equally to all, and independent courts to resolve legal disputes and to hold accountable violations of criminal law, itself applying the governing legal rules in a consistent manner. [FN257] Can international law ensure such a conception of the rule of law? How does international law apply the rule of law to itself? I. Is There an International Rule of Law? Above all, there is no evidence of a general practice of states accepting the rule of law as international customary law, [FN258] nor is there evidence of a belief that such a practice is rendered obligatory by the existence of an international rule of law or opinio juris sive necessitatis. [FN259] In addition, it is obvious that at present, international law has not yet achieved the normative and institutional level required by the rule of law described by Higgins. The relationship of international law and the rule of law has been the subject of several doctrinal analyses, including an important essay by S. Cherterman, [FN260] which have identified the following shortcomings: The United Nations Charter, which is the expression of the constitutional international order [FN261] (the UN assembles 192 states), does not explicitly provide that its organs and the member states are subordinated to the principle of the rule of law. Indeed the UN Charter does not use the expression rule of law and although there are several references to the expression rule of international law in the UN Charter, such references are simply exhortatory. Thus, the Preamble to the UN Charter expresses the determination of the peoples of the UN to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained. Article 1(1) of the Charter states that a purpose of the UN is the adjustment or settlement of international disputes or situations that might lead to a breach of peace in conformity with the principles of justice and international law. Furthermore, Article 13(1)(a) of the Charter establishes, as one of the important roles of the General Assembly, the initiation of studies and the issuance of recommendations for the purpose of encouraging the progressive development of international law and its codification. Furthermore, the legal mechanisms established in the Charter for the operation of the UN do not necessarily prevent the UN organs from using the power conferred upon them in an arbitrary manner. In particular, the Security Council decision on the procedure for imposing targeted sanctions by listing terrorists and freezing their assets without regard for the rules of transparency or the possibility of formal review has been the subject of strong criticism. [FN262] This has been the subject of demands for fair and clear procedures for listing
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and delisting, [FN263] demands that have resulted in a clear, although not yet completely satisfactory, improvement of such procedures. [FN264] The question has been raised whether the United Nations organization is bound by the treaties which have been negotiated and concluded under UN auspices. [FN265] Although the United Nations possesses legal personality, [FN266] it is not a party to the international conventions on human rights which have been negotiated under its auspices or monitored through its agencies. The question of whether the organization is bound by those instruments has gained momentum as a result of a series of cases arising from the establishment of targeted financial sanctions against terrorists. The EU General Court, called the Court of First Instance prior to the Lisbon Treaty taking force, has held that decisions adopted by the Security Council under the provisions of Article 103 and Chapter VII of the UN Charter are binding upon all states, but must conform to the norms of jus cogens, i.e.: [T]he Court is empowered to check, indirectly, the lawfulness of resolutions of the Security Council in question with regard to jus cogens, understood as a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations, and from which no derogation is possible. [FN267] This judgment of the General Court stands as one of the few cases in which a court has reviewed indirectly the validity of action by the UN Security Council, [FN268] in particular because on appeal to the Court of Justice of the European Union, the Court of Justice appears to have abandoned the reasoning of the General Court with regard to the power to review, even indirectly, the validity of the action by the Security Council. [FN269] With regard to the subjection of the United Nations organization to International Humanitarian Law, the doctrine rejects a 1952 American Society of International Law opinion that doubted whether international humanitarian law was fully applicable to the forces of the UN and suggested that the UN was free to select such of the laws of war as may see to fit its purposes. [FN270] At present, the doctrine requires that the states that participate in UN enforcement actions be bound by their individual obligations under the jus in bello. [FN271] Any doubt about the applicability of international humanitarian law to the United Nations organization has been set aside by an administrative order by the UN Secretary General. [FN272] However, the doubts persist with regard to the case where the UN Security Council (UNSC) deploys forces pursuant to Article 43 of the UN Charter, i.e. by means of the forces made available to the UNSC as a result of international agreements concluded between member states, even though the doubts remain hypothetical since no such agreement has been concluded so far. [FN273] Unlike domestic legal system of states, the review of legality in international law is based on voluntary submission to judicial institutions, the rule of consent to jurisdiction. In particular, the International Court of Justice (ICJ) is not a constitutional court because it lacks jurisdiction to review the legality and any ultra vires action of the UN organs. Instead, the Charter intentionally leaves the interpretation of the scope of the powers of the UN organs to the organs themselves, [FN274] even though it is possible for an organ to ask for an advisory opinion of the ICJ in accordance with Article 96 of the UN Charter. In particular, the question of the scope of the powers of the UN Security Council (UNSC) has been the subject of contention. The Lockerbie rulings constitute an interesting illustration: in these cases both the UNSC and the ICJ contemplated the issue that arose from the bombing of the Pan Am flight 103 over Lockerbie in Scotland on December 21, 1988. Although the ICJ declined to rule on the merits and held that the UNSC had acted within its powers, [FN275] the rulings have been interpreted as an implicit assertion by the ICJ of its power to determine the limits of the discretion by the UN Security Council. [FN276] It has been suggested that these rulings constitute significant judicial decisions comparable to the U.S. Supreme Court's decision in Marbury v. Madison, which, as we have seen, upheld the power of the U.S. Supreme Court to determine whether the executive power had acted in accordance with the U.S. constitution. [FN277] The UNSC has also created international criminal tribunals, to the exclusion of any domestic judicial procedure, in order to adjudicate on the criminal activities that arose from the conflicts in the former Yugoslavia (the International Criminal Tribunal for the former Yugoslavia) [FN278]
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(ICTY) and in Rwanda (the International Criminal Tribunal for Rwanda). [FN279] Those tribunals have been criticized for spending significant resources while succeeding in prosecuting only a few individuals and for achieving little lasting impact on the judicial institutions of the territories concerned. Other hybrid tribunals such as the Special Court for Sierra Leone and the Extraordinary Chambers in the Court of Cambodia were established by means of bilateral agreements between the UN and the countries concerned in order to ensure international supervision over the development of national institutions. However, they have had limited success. [FN280] Finally, the establishment of the International Criminal Court (ICC) to adjudicate on the most serious criminal offences in international law may be considered a rather modest achievement. On one hand, the ICC does not exercise primary jurisdiction, its jurisdiction being complementary to those of national courts. Thus, the Court must respect national sovereignty and national judicial procedures and must encourage national prosecution where possible. On the other hand, pursuant to Article 16 of the Rome Statute of the ICC, the UNSC retains the power to defer prosecutions for a renewable period of one year. This reflects a tension between two international interests, the promotion of justice and the achievement of peace. [FN281] Finally, the UN Security Council has assumed quasi-legislative functions in its resolutions, adopted under Chapter VII of the UN Charter, relating to counter-terrorism and the fight against proliferation of weapons of mass destruction. [FN282] These resolutions have been criticized for having been adopted inappropriately under Chapter VII while establishing abstract rules of general application and for having given pre-eminence to the Security Council at the expense of the more democratic General Assembly. [FN283] Finally, although the United Nations Charter provides for sovereign equality of its members in Article 2(1) of the UN Charter, the structure of the UN Security Council with permanent seats for some states that also hold the right to veto its decisions suggests that this principle does not apply to the Security Council. Indeed, in the ELSI case, a Chamber of the International Court of Justice held that: [T]he fact that an act of a public authority may have been unlawful in municipal law does not necessarily mean that that act was unlawful in international law . . . . Nor does it follow from a finding by a municipal court that an act was unjustified, or unreasonable, or arbitrary, that that act is necessarily to be classed as arbitrary in international law, though the qualification given to the impugned act by a municipal authority may be a valuable indication. [FN284] In international law, the Court held, arbitrariness was to be defined not as a breach of a rule of law, but as inconsistent with the rule of law. In the Tadic case, the ICTY held that the rule of law was a matter for national courts rather than for international courts. [FN285] The issue there was whether the ICTY itself was established by law within the meaning of Article 14 of the International Covenant on Civil and Political Rights (ICCPR), so that the international trial of Tadic was in accordance with international human rights standards. In response, the ICTY appeared to say that there was no problem-that these standards were set for national, not international courts: the principle that a tribunal must be established by law . . . is a general principle of law imposing an international obligation which only applies to the administration of criminal justice in a municipal setting. [FN286] It is submitted that as far as the Tadic ruling by the ICTY implies: [T]hat international institutions including judicial institutions are in principle exempt from international standards. Such a position is indefensible in the long term, even if it were morally acceptable. In the long run national systems founded on the rule of law cannot tolerate review by international systems which are not so founded, especially as to otherwise internal matters. [FN287] A second set of reasons given by the ICTY in Tadic interprets the requirements of the rule of law at the international level so as to ensure at least substantial compliance with the underlying values. [FN288] This second line of analysis would have been a sufficient basis for the trial in Tadic to go ahead, [FN289] without specifying that international courts do not have to comply with the international law standard for courts generally. [FN290] So, does international law apply the rule of law to itself? In my view, there is above all, a need for the rule of law
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as a moral virtue at the international level, i.e. a rule of law that is a moral requirement when necessary to enable a law to perform a good/useful social function. [FN291] There is such a need at least to the extent that international law approximates a system of public order between states as legal orders in their own right, or to the extent that it performs tasks of adjudication, assessment, or review of domestic decision-making in areas or matters in which international law itself prescribes compliance with the rule of law. [FN292] But the application of the basic value of the rule of law at the international level is conditioned on the absence of the sophisticated legal mechanisms that exist in internal legal systems and the requirement to decide by consensus as a general rule. It is submitted that, within these parameters, there exists an international rule of law which has the following characteristics: 1. The element of the rule of law requiring an absence of arbitrary power is embodied in the fundamental principle that agreements are binding pacta sunt servanda. It is also evident in efforts to establish international protection of human rights, governance of international trade, and international security institutions. However, there are serious practical difficulties with international law. [FN293] On the one hand, as we have seen, although the decisions of the Security Council are subject to the authority of the Charter, there is no regular institutional means for bringing the Security Council to act within the limits laid down by the Charter: the Security Council has delimited maritime territory, [FN294] decisively determined the outcome of judicial proceedings, [FN295] dealt with issues that were before the International Court of Justice, [FN296] and established international criminal tribunals. [FN297] In addition, the Security Council is either used as a legitimating mechanism (e.g., the policy of the United States towards Iraq), or its authority is ignored. In these contexts the rule of law is insecure and precarious. [FN298] On the other hand, one must recall the virtual universality of the United Nations and the extreme character of many of the situations with which the Security Council has had to deal. So, if there is a growing appearance of the rule of law at the international level, it is not surprising that this may be happening slowly and in some fields more than others. [FN299] 2. International law now has a fairly well-developed set of techniques that aim to deal with the question of non-retroactivity, in relation both to treaties and to customary or general international law. Specific problems may arise with retroactivity in the criminal law, but that is no different from problems that arise, for example, in common law systems. The European Court of Human Rights has dealt, in a rather subtle way, with the nonretroactivity issue in domestic criminal law. At the international level, it may at least be presumed that the definitions of crimes in the ICC Rome Statute reflect general international law, and therefore there is no problem of unjustified retroactivity. 3. As a general rule, international law applies the principle of supremacy of the law in the form of subordination of all states to the law (a principle which owes its origins to Natural Law thinking) and purports to do so on a basis of equality before the law in the sense of equality of legal personality and capacity (notwithstanding the voting system in the Security Council). 4. Progress has been made at the institutional level with regard to the requirement of the rule of law that the judiciary must be independent and established by law. The International Court of Justice has been developing its procedures to resolve particular issues of independence, and it has also expanded its role. [FN300] The existence of a large proportion of international judicial or arbitral decisions made by ad hoc panels prevents at least an impression of selectivity and of arbitrariness and has expanded international judicial settlement to cover very varied fields. Although the basic rule of consent to jurisdiction has been repeatedly reaffirmed, progress has been made, in particular with the European Union and the European system for the protection of human rights and fundamental freedoms of the Council of Europe, which provides for a European Court of Human Rights. This makes it possible for an individual to bring a case against a state before an international court. In the field of international trade, disputes between states are now regularly settled by the revolutionary machinery established by the World Trade Organization (WTO) agreement of 1994, which also provides for an appellate body that is, in effect, an international supreme trade court. In fact, that court has developed an impressive body of caselaw in a short time. To a lesser extent, there is also Part XV of the United Nations Convention on the Law of the Sea. [FN301] Thus, although it is still utopian to suggest that the basic rule of consent to jurisdiction is disappearing, the emergence of more integrated systems of law is a reality.
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[FN302] 5. Therefore, it is submitted that important progress has been achieved in the development of an international rule of law and that the remaining shortcomings should not constitute a roadblock for international lawyers that prevents continued work on the rule of law as a fundamental goal. [FN303] For, on empirical grounds, given the number of civil wars, wars of secession and coups d'etat since . . . 1945, a good case can be made for saying that . . . international law is more efficient than public law within states. [FN304] This brings us to the question as to how international law applies the rule of law to others, how international law performs its vital tasks on the rule of law, and how the rule of law is applied at international level by subjects of international law. II. The Implementation of the International Rule of Law Among international organizations, the UN has undertaken a leading role on the rule of law in order to support the development, promotion, and implementation of international norms and standards in most fields of international law, particularly the protection of human rights, the promotion of development, and the maintenance of peace. The Secretary General has made the unambiguous statement that every nation that proclaims the rule of law at home must respect it abroad and that every nation that insists on it abroad must enforce it at home. [FN305] He has submitted various reports on the rule of law to the UN organs. [FN306] The General Assembly has considered the rule of law as an agenda item since 1992, and with renewed interest since the 2001 Millennium Declaration, [FN307] and has adopted several resolutions in this regard [FN308] calling for compliance with the decisions of the International Court of Justice, for non-discrimination, and for an inventory of activities on the rule of law by the UN organs. The UN Security Council has held a number of thematic debates on the rule of law [FN309] and justice, post-conflict national reconciliation, Haiti, humanitarian crises, and the maintenance of international peace and security. Important reports on the rule of law have been submitted [FN310] within the context of conflict prevention and peace-keeping operations, which have led to the adoption of resolutions and to important statements of the President of the Security Council. [FN311] In particular, the rule of law has been strongly promoted by the UN Security Council in its work in the field of peace and security. Of course, Article 84 of the UN Charter refers to the domestic law of the states in the context of trust territories (the last of which became independent in 1994), but Article 2(7) of the Charter specifically excludes matters essentially within the domestic jurisdiction from interference by the UN, except when the UNSC acts in its enforcement capacity for the purpose of preserving international peace and security under Chapter VII. Consequently, the UNSC has incorporated the concept of rule of law in many of its peace-keeping operations, [FN312] and in some of them the components of the rule of law play a fundamental role. [FN313] In both Kosovo since 1993 and in East Timor/Timor-Leste from 1999-2002 the UN has had and still has direct responsibility for the administration of justice (the so-called executive powers,) including the control of the police and prison services. In Kosovo, before its declaration of independence, the High Representative could exercise all legislative and executive authority . . . including the administration of the judiciary. [FN314] Additionally, the officials working for the Kosovo High Representative enjoyed personal or functional immunity from legal process while being unaccountable to the local population. [FN315] Similar executive powers were conferred on the Office of the High Representative in Bosnia and Herzegovina. [FN316] Ever since then, UNSC resolutions have continuously expanded the scope of the rule of law to include gender issues, the protection of children in armed conflict, the protection of civilians, and due process in the fight against terrorism. [FN317] The United Nations also works to support a rule of law framework at national levels. In this regard, the UN Secretary General has indicated that for the purpose of the United Nations: [The] rule of law refers to a principle of governance in which all persons, institutions and entities, public
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and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. [FN318] Thus, in its different programs and actions, the UN supports the establishment of national legal systems that incorporate a constitution (or its equivalent) as the highest law of the land. The constitution should include a clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security, and human rights that are well-structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. These are the norms, policies, institutions, and processes that form the core of a society in which individuals feel safe and secure, where disputes are settled peacefully, where effective redress is available for harm suffered, and where all who violate the law, including the State itself, are held accountable. [FN319] With regard to human rights, it is useful to recall that the Preamble to the 1948 Universal Declaration of Human Rights states that it is essential if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights would be protected by the rule of law. [FN320] Additionally, the Declaration contains provisions ensuring rights, inter alia concerning the prohibition against arbitrary deprivation of liberty in Articles 3, 8, 9, 12, and 29, fair trials by independent judges in impartial tribunals in Articles 10 and 11, and ensuring equality before the law in Articles 6 and 7. Most international instruments and treaties on the protection of human rights incorporate the rights protected by the Universal Declaration, but neither the International Covenant on Civil and Political Rights nor the International Covenant on Economic, Social, and Cultural Rights, which represent the other two pillars of the so-called international bill of rights, mention the rule of law. [FN321] In addition, there exist international codes of conduct for law enforcement officials, [FN322] principles on the independence of the judiciary, [FN323] and sophisticated conventions on discrimination [FN324] that contain principles proper to the rule of law. Upon request, the United Nations offers technical and financial assistance to national projects in reforming penal and correctional establishments, education and training of lawyers, judges and security forces in human rights, and any other sphere of activity relevant to the good functioning of the rule of law. [FN325] A series of resolutions adopted by the General Assembly has established the rule of law as an essential factor in the protection of human rights. [FN326] Finally, progressive steps have been achieved by judicial decisions on human rights relating to the right to an effective remedy [FN327] on which the General Assembly has adopted a series of Basic Principles in this area. [FN328] This has been complemented by the rise of international criminal law and by landmark judicial decisions that have reduced the scope of the immunity of heads of state responsible for violations of human rights (e.g., the 1999 Pinochet judgment). [FN329] In summary, the universal human rights instruments have been accepted voluntarily by the international community, which has agreed that universal human rights have to be protected by the rule of law. This constitutes a major contribution of international law to the definition of the rule of law accepted by all. [FN330] Indeed, certain human rights (e.g., rights against torture, genocide, and slavery) may now be regarded as having entered into the category of customary international law and thus have become legally binding in the light of state practice. [FN331] In addition, human rights established under treaty law may constitute obligations erga omnes (jus cogens) for the states parties. [FN332] The rule of law understood as a requirement of efficient and predictable justice, has also been a paramount means for the promotion of economic development. [FN333] In its American origins in the 1960s, the U.S. Agency for International Development, the Ford Foundation, and other private American donors promoted the rule of law by focusing on an ambitious program to reform the laws and judicial institutions of countries in Africa, Asia, and Latin America. Within this framework, American donors created the Law and Development Movement (LDM) based on the assumption that law has the ability to shape social relations and that legislative change and judicial reform were instruments for social transformation. These donors emphasized legal education aimed at inculcating lawyers with legal ideas suited to the promotion of a political end, which was economic liberalism. However, the LDM soon be-
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came the subject of criticism for several reasons: first, the transformative power of the law is not supported by conclusive evidence and therefore remains a hypothesis; second, the sponsors of the LDM acted unilaterally without seeking the contribution of those countries that benefited from development aid; and third, the LDM took the American common law system as the model to be transplanted irrespective of the nature of the legal culture of the recipient country. [FN334] This led to the accusation that the LDM was a form of cultural imperialism and the Ford Foundation declared it a failure. [FN335] Subsequent efforts (e.g., by the World Bank) have put the emphasis on law as a means to empower both the market and market actors, rather than the state, by using the rule of law as an instrument to limit interference with the market. [FN336] However, this change of focus from the state to the market has not resolved the underlying problem of the relationship between law, politics, democracy, and development. Thus, although there seems to be an almost universal acceptance by the international community of the need to promote the rule of law for development, there is no agreement on the means to bring it about or on the criteria to measure the rule of law. The 1992 Human Development Report by the UN Development Programme suggested five possible indicators: fair and public hearings in criminal cases; a competent, independent, and impartial judiciary; the availability of legal counsel; provision for review of convictions in criminal cases; and whether government officials or pro-government forces are prosecuted when they violate the rights and freedoms of other persons. [FN337] In this regard, the World Bank has defined the rule of law as the extent to which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, the police, and the courts, as well as the likelihood of crime and violence. It also included a combination of indicators from other sources to measure the rule of law in more than 200 countries and territories. [FN338] Later assessments have been less negative, however, noting inter alia, that projects on law reform take many years to bear fruit. [FN339] More recently, the terms governance and good governance are being increasingly used by the development community. The concept of governance is not new. It refers to the process of decision making and the process by which decisions are implemented. Also, it focuses on the formal (the government of a state) and informal (the civil society) actors and structures. Good governance requires a society that ensures the participation of its people, transparency, responsiveness, consensus, equity, effectiveness, accountability, and a fair legal framework that is enforced impartially (rule of law). [FN340] Thus, the good governance donors finance not only projects and structural adjustments but also government policies. Under good governance, intergovernmental organizations such as the World Bank and the International Monetary Fund have financed government policies and political processes even if under their Charter they were not meant to do so. [FN341] The developing countries have accepted the notion of good governance when they acknowledged in the 2005 World Summit Outcome Document that good governance and the rule of law at the national and international levels are essential for sustained economic growth, sustainable development, and the eradication of poverty and hunger. [FN342] The UNDP Strategic Plan 2008-2011 on Democratic Governance, Crisis Prevention, and Recovery includes the rule of law as the core pillar of the UNDP's work. [FN343] In addition, the UNDP adopted a global program on strengthening the Rule of Law in Conflict and Postconflict situations (2008-2011). This program acknowledges that security and justice are essential in achieving the rule of law and that the rule of law is a precondition for the maintenance of peace and development. [FN344] Thus, international law has created commitments and obligations concerning the rule of law at the international level with which states are to comply. Some of those commitments and obligations reflect elements of the rule of law that are present in national legal systems, while other commitments and elements (such as the protection by the rule of law of the universal human rights that have been accepted by the international community as a whole) constitute a contribution of international law to a definition of the rule of law acceptable to the whole international community. Above all, international law has made it possible for the concept of universal human rights to be voluntarily accepted by the international community and for it to form a part of the universal definition of the rule of law. The question arises about how states implement and promote the requirements of the international rule of law. [FN345] Here, both the European Union and the United States have taken a leading role. It is now appropriate to look
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at how the principle of the rule of law operates in the external actions of both these actors. III. The Rule of Law in the External Action of the European Union The external action of the European Union on the international scene, with regard to the rule of law, is not a question of political choice. Rather, it is a legal duty not only established by international law but also laid down in the EU treaties. It is also inspired by the principles that provide the foundations for the Union's own creation and that it applies in its domestic jurisdiction. Article 21 of the ( Lisbon) TEU provides that in its external action, the Union seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. Indeed, Article 21, Paragraph 2 of the TEU ( Lisbon ) provides that external common policies and actions of the Union are defined in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or man-made disasters; and (h) promote an international system based on stronger multilateral cooperation and good global governance. In practice, how does the Union consolidate and support these principles and in particular democracy, the rule of law, human rights, and the principles of international law? How do the requirements of international law with regard to the rule of law apply in the EU? (i) The Union's predisposition to international law The Court of Justice of the European Union has ruled that the Union, when exercising its powers, must comply with international law including the judgments of the International Court of Justice. [FN346] The Court has held that the two main sources of international law, both customary international law and treaties, concluded by the European Union and by its Member States, have binding force for the EU. In particular, customary rules of international law have binding force and, as such, must be applied in the European Union legal order. [FN347] In addition, the Court has upheld the direct effect of treaties in situations where the national law of some Member States do not accept it. [FN348] The Court of Justice treats the European Convention on Human Rights as if it were binding upon the Union even if the Union itself is not yet a party to the Convention. [FN349] In other cases, the Court has applied the following principles of international law: by assuming a new obligation which is incompatible with rights held under a prior treaty, a state ipso facto gives up the exercise of these rights to the extent necessary for the performance of its new obligation; [FN350] a state is precluded from refusing its own nationals the right of entry or residence; [FN351] the territoriality principle is universally recognized in international law; [FN352] and the principle of good faith as recognized in customary international law [FN353] applies to the Union. Also, the Court of Justice has interpreted United Nations Security Council Resolutions principally in two series of cases. The first series of cases concerned UN sanctions following the war in the former Yugoslavia (e.g., the Bosphorus Airways case). In those cases, the Court ensured both that the relevant Security Council resolutions were implemented in full, and that the interests of those affected by the imposition of the restrictive measures in question were taken into consideration. [FN354] A second series of cases concerned UNSC Resolutions imposing restrictive
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measures in the context of the fight against terrorism (e.g., the Yusuf [FN355] and Kadi [FN356] cases), where the EU General Court (the former Court of First Instance) accepted that UN law took precedence. [FN357] However, on appeal, the Court of Justice held that, for the purpose of Union law, UN Security Council Resolutions must be implemented in accordance with the Union's fundamental values and respect for human rights. [FN358] The Court of Justice has interpreted broadly the treaty-making power of the Union with the result that the Union has concluded a large number of treaties (more than one thousand). [FN359] The Court has determined that even the so-called mixed agreements concluded jointly by the Union and its Member States, constitute acts of the institutions of the Union within the meaning of Articles 263 and 267 of the ( Lisbon) Treaty on the Functioning of the European Union (TFEU), and that such mixed agreements fall within the jurisdiction of the Court to give preliminary rulings on interpretation of such agreements [FN360] pursuant to Article 267 of the TFEU, provided that the provisions of the agreement in question apply to both the Union and the Member States. Another example of the predisposition of the Court towards international law is the recognition that the provisions of international treaties may have direct effect within the EU legal order. [FN361] The Court of Justice does not impose, as a condition of direct effect, the requirement of reciprocity that is often imposed by other legal orders, nor does it any longer impose the existence of a close relationship between the EU and a third country for the purpose of according direct effect to a treaty: for instance, in recent years the Court has held that both Association Agreements with European countries and a treaty embodying a less close relationship (the Partnership and Cooperation Agreement with Russia) have direct effect. [FN362] A final example of the predisposition of the Court of Justice to other legal systems is its evolving approach to the system of the European Convention on Human Rights, a treaty to which the EU is not yet a contracting party, where the Court of Justice both has cited and has sought to follow the case-law of the European Court of Human Rights. [FN363] The question arises as to how the EU's openness to international law is reflected in the external policy of the EU. (ii) The legal means of the EU external action on the Rule of Law The external action of the EU is guided by the principle that the rule of law presupposes a State's possession of independent constitutional and judicial authorities, a properly functioning public administration at local and central government level, a well-qualified and independent judiciary, an accountable law enforcement structure, an adequate, well-trained and disciplined police force, and an independent media. The EU considers that the rule of law underpins such goals as: equality before the Court, due process, executive accountability, good governance, and anti-corruption measures. [FN364] Finally, the EU encourages third countries to respect human rights. The EU considers the rule of law an essential element of its agreements with third countries since it sees it as a prerequisite for stability outside its borders (Neighborhood), for economic and social development. [FN365] The rule of law is a key element in EU technical and financial assistance, becase: Governance is a key component of policies and reforms for poverty reduction, democratisation and global security. This is why institutional capacity-building, particularly in the area of good governance and the rule of law is one of the six priority areas for EU development policy that is being addressed in the framework of EU programs in developing countries. [FN366] More recently, within the framework of EU crisis management and conflict prevention, EU foreign policy has linked the rule of law to its security and defense policy. [FN367] The EU rule of law requires that military, civil, and internal security institutions be subject to civilian power and accountable to legal authority. (iii) Political clauses in EU agreements
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For many years, the EU has included political clauses in its agreements with third states. [FN368] With the inclusion of such clauses, the EU aims at promoting its values as well as as promoting its security interests. Moreover, political clauses constitute a specific tool that the EU can use to implement its most important policy objectives (respect for the rule of law, human rights, and non-proliferation) in its external action. Thus, the contents of the political clauses include EU policies on respect for the rule of law, democracy, human rights, non-proliferation (weapons of mass destruction as well as small arms and light weapons), the fight against terrorism, and cooperation with the International Criminal Court. The clauses are usually included in horizontal agreements, the so-called EU framework agreements, where this term is generally taken to refer to Association Agreements and cooperation agreements such as Partnership and Cooperation Agreements, Trade, Development and Cooperation Agreements, and Economic and Technical Assistance Agreements. Sectoral Free Trade Agreements may not include political clauses if such clauses are already included in an existing horizontal framework agreement with the country concerned. In the absence of any framework agreement, a provision on the rule of law, democracy, and human rights is, as a minimum, regularly included in free trade agreements. [FN369] The EU considers that the rule of law, democracy, and human rights clause represents the core of EU values and, as a result, it is defined as an essential element of the EU agreements. [FN370] This clause has been widely used, having been included in agreements with more than 120 countries. It follows that, in accordance with the Vienna Convention on the Law of Treaties, such agreements may be suspended or terminated in the case of serious violations of the clause by one of the contracting parties. [FN371] In this regard, the EU systematically includes in its agreements a suspension mechanism in case of a serious violation of the rule of law, democracy, and human rights clauses. The mechanism includes a procedure that allows a reaction with immediate effect in case of a violation of an essential element. The mechanism may include the possibility for urgent dialogue within a specified time frame in order to seek a solution before specific commitments may be suspended, whether in full or in part, under the agreement. [FN372] A role attributed to arbitration after suspension can also be considered, where necessary, as part of the dispute settlement provisions. [FN373] (iv) The European Neighbourhood and Partnership Policy The European Neighbourhood Policy (ENP) was first outlined in a European Commission Communication on Wider Europe in 2003. [FN374] The Communication was completed by a more detailed Strategy paper on European Neighbourhood Policy of May 2004. [FN375] At present, the legal framework for planning and delivering EU assistance is laid down in Regulation 1638/2006, establishing a European Neighborhood and Partnership Instrument (ENPI). [FN376] The ENPI applies to the partner countries listed in the Annex to the Regulation, which are Ukraine, Moldova, Belarus, Armenia, Azerbaijan, Georgia, Algeria, Egypt, Israel, Jordan, Lebanon, Libya, Morocco, Palestinian Authority, Syria, and Tunisia. Although Russia is a neighbor of the EU, Recital 11 of the Regulation explains that the EU and Russia have decided to develop their specific strategic partnership through the creation of four common spaces (these are Economic Freedoms, Security and Justice, External Security, Research, and Education). [FN377] Multilaterally, the axes of the ENP are the Eastern Partnership [FN378] and the Union for the Mediterranean [FN379] through which the EU offers its neighbors a privileged relationship. The objectives of this relationship are stability, security, and prosperity, as a means to strengthen cooperation and expand these objectives beyond the borders of the European Union. The ENP goes beyond existing relationships to offer a deeper political relationship and economic integration with the EU. [FN380] The level of ambition of the relationship depends on the extent to which the common values are shared. The ENP is not an enlargement policy although it does not prejudge the future development of the relationship with the EU of the states involved. It offers more than partnership and less than membership. [FN381] The chief elements of the ENP are the bilateral or multi-country programs, cross-border cooperation programs setting out strategies, and joint operational programs covering cooperation on programs for land borders and sea crossings. [FN382] These are in addition to ENP Action Programs and joint-cross border cooperation Plans agreed to by the EU and each partner, which are drawn up on the basis of the strategies contained in the country or multi-country pro-
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grams. The Action Programs specify the objectives pursued, the fields of intervention, the expected results, the management procedures, and the total amount of financing planned. [FN383] These Action Programs and joint crossborder cooperation Plans set out an agenda of political and economic reforms that include short and medium term priorities. Implementation of these Action Programs and Plans is jointly promoted and monitored through subcommittees established in the framework of the relevant agreement with each partner. Although adopted in 2006, the ENPI Regulation 1638 does reflect the new mandate from Article 8 TEU ( Lisbon ) that the Neighborhood Policy of the Union is founded on the values of the Union as laid down in Article 2 TEU, which provides that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. More specifically, with regard to the rule of law, Art. 2(d) of Regulation 1638/2006 provides that EU assistance shall be used to support measures within the area of cooperation aimed at promoting the rule of law and good governance, including strengthening the effectiveness of public administration and the impartiality and effectiveness of the judiciary, and supporting the fight against corruption and fraud. The ENPI Regulation establishes a privileged relationship between the European Union and its neighbors, which is built on commitments to common values including democracy, the rule of law, good governance and respect for human rights, and to the principles of market economy, free trade and sustainable development, and poverty reduction, [FN384] pursuant to recital clause 4 of the Preamble to Regulation 1638/2006. Article 1(3) of the Regulation specifies that these are values that the Union seeks to promote . . . in partner countries through dialogue and cooperation. These principles are not new. The Common Strategies adopted by the European Council in relation to Russia, Ukraine, and the Mediterranean in the late 1990s made explicit references to a strategic partnership based on values and common interests, [FN385] and foundations of shared values enshrined in the common heritage of European civilisation. [FN386] In the case of the Mediterranean, the promotion of core values embraced by the EU and its Member States has been made a key goal of Union policy towards the region. [FN387] The Preambles, both of the existing Partnership and Cooperation Agreements (PCAs) and of the Euro-Mediterranean Association Agreements (developed at present within the framework of the Union for the Mediterranean assembling the 27 EU Member States and 16 partner countries primarily from the Mediterranean [FN388]), contain a reference to the common values that they share. [FN389] In the case of the PCAs, the values constitute an essential element of the agreement so that a violation of the values constitutes a justification for suspension or denunciation of the agreements. In practice, a curious distinction has been made between the PCAs with Russia, Ukraine, and the Republic of Moldova on the one hand, and those PCAs concluded with Southern Caucasus on the other hand. The former include a paramount reference to the rule of law in the Preamble: [c]onvinced of the paramount importance of the rule of law and respect for human rights, particularly those of minorities, the establishment of a multiparty system with free and democratic elections and economic liberalization aimed at setting up a market economy. . . . However, the rule of law is neither explicitly included among the essential elements in Article 2, [FN390] nor mentioned in Article 6 on political dialogue, unlike democracy, human rights, and minority rights. [FN391] The PCAs with the Southern Caucasus countries, by contrast, in addition to a mention of the rule of law in the Preamble (again, it is not among the essential elements), include among the areas of cooperation: [A]ll questions relevant to the establishment or reinforcement of democratic institutions, including those required in order to strengthen the rule of law, and the protection of human rights and fundamental freedoms according to international law and OSCE principles. This cooperation shall take the form of technical assistance programmes intended to assist, inter alia, in the drafting of relevant legislation and regulations; the implementation of such legislation; the functioning of the judiciary; the role of the State in questions of justice; and the operation of the electoral system . . . . [FN392] The relationship with Armenia, Azerbaijan, Belarus, Georgia, the Republic of Moldova, and Ukraine has been given further impetus within the framework of the Eastern Partnership, which was launched at the EU Prague Summit on May 7, 2009. The Eastern Partnership envisages further economic integration (by means of the conclusion of
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new Association Agreements) and an acceleration of political association by strengthening the promotion of democracy and good governance. [FN393] Belarus, Libya, and Syria do not yet have Association Agreements in force. The provisions on shared values constitute a political conditionality so that the level of ambition of each relationship depends on the extent to which the common values are shared. The Commission's Strategy Paper of May 2004 makes clear the link between progress in relations with the EU and progress in implementing agreed targets, including commitment to the rule of law: The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. . . . The European Neighbourhood policy seeks to promote commitment to shared values. The extent to which neighbouring countries implement commitments in practice varies and there is considerable scope for improvement. Effective implementation of such commitments is an essential element in the EU's relations with partners. The level of the EU's ambition in developing links with each partner through the ENP will take into account the extent to which common values are effectively shared. The Action Plans will contain a number of priorities intended to strengthen commitment to these values. These include strengthening democracy and the rule of law, the reform of the judiciary and the fight against corruption and organised crime . . . . [FN394] The political conditionality of the rule of law and other shared values is also identified in the priorities established in the Action Plans. The level of the EU's ambition in developing links with each partner through the ENP will take into account the extent to which common values are effectively shared. The Action Plans will contain a number of priorities intended to strengthen commitment to these values. These include strengthening democracy and the rule of law, the reform of the judiciary and the fight against corruption and organised crime; respect of human rights and fundamental freedoms, including freedom of media and expression, rights of minorities and children, gender equality, trade union rights and other core labour standards, and fight against the practice of torture and prevention of ill-treatment; support for the development of civil society; and co-operation with the International Criminal Court. Commitments will also be sought to certain essential aspects of the EU's external action, including, in particular, the fight against terrorism and the proliferation of weapons of mass destruction, as well as abidance by international law and efforts to achieve conflict resolution. [FN395] Above all, the shared values (as well as prosperity and stability) are included in the context of security as a paramount purpose of the ENP relationship, which will enhance the security of the Union itself. As it is emphasized in the European Security Strategy (A Secure Europe in a Better World adopted by the Brussels European Council in December 2003): It is in the European interest that countries on our borders are well-governed. Neighbours who are engaged in violent conflict, weak states where organized crime flourishes, dysfunctional societies or exploding population growth on its borders all pose problems for Europe. The integration of acceding states increases our security but also brings the EU closer to troubled areas. Our task is to promote a ring of well-governed countries to the East of the European Union and on the borders of the Mediterranean with whom we can enjoy close and cooperative relations. [FN396] The emphasis is thus placed on partnership, interdependence, avoiding the creation of new dividing lines, and shared values which create a common project. [FN397] The implications of the rule of law for the EU's own security policies involve the alignment of the EU neighbors to EU policies on sensitive issues such as terrorism, immigration, and border issues. [FN398] Thus, the EU is concerned with the potential for breakdown in the rule of law and in law and order and stability within its neighbors, not just as an uninvolved observer or aid donor (the Union links the gains for the neighbor states in the ENPI to increased EU financial assistance, participation in EU programs, assistance in alignment to EU legal and regulatory norms; a stake in the biggest Single Market in the world [FN399]), but as a neighbor whose members are likely to be directly affected by the fallout from civil insecurity.
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Finally, the success of the security objective in the ENP depends on achieving stability and prosperity, [FN400] which means promoting stability conceived also as a pre-condition for the democratization, rule of law, good governance, political reform, [FN401] and economic development. In its March 2003 paper on the Wider Europe, the Commission stressed this link as follows: Democracy, pluralism, respect for human rights, civil liberties, the rule of law and core labour standards are all essential prerequisites for political stability, as well as for peaceful and sustained social and economic development. . . . A political, regulatory and trading framework, which enhances economic stability and institutionalises the rule of law, will increase our neighbours' attractiveness to investors and reduce their vulnerability to external shocks. [FN402] In summary, the ENP is a form of EU relationship lying between enlargement and the general foreign policy. Although the ENP is not an enlargement policy, it does not prejudge the issue of enlargement. Within the ENP, the rule of law is an important element of conditionality in the progress of the EU's policy with its neighbors. In its Work Program 2011, the Commission indicated that over the past five years the ENP has shown . . . the EU's ability to project its values and principles and to contribute to political stability and economic development in its neighbourhood. . . . The Commission will continue to help to deepen the EU's special relationship with these neighbours. . . . [FN403] The Commission intends to make further proposals in 2011 for the further development of the EU bilateral and multilateral partnership in its Eastern Partnership and Union for the Mediterranean dimensions. (v) Pre-accession assistance The principles applied in the context of the ENP also apply to the assistance provided by the EU to European states which may one day become members of the Union. Compliance with the rule of law has also been a condition within the pre-accession strategy for the enlargement of the EU (where the key objectives are stability, prosperity, security of the Union's borders and shared values) since, as we have seen, Article 49 of the ( Lisbon) TEU makes it a condition for any applicant European state to respect the rule of law and other values of the EU pursuant to Article 2 of the ( Lisbon) TEU. At present, the pre-accession strategy takes place within the framework of Council Regulation 1085/2006. This establishes an Instrument for Pre-Accession Assistance (IPA). [FN404] The European Union assistance is based on a crucial distinction between two groups of countries: candidates countries (Croatia, Turkey, and the former Yugoslav Republic of Macedonia and Iceland [FN405] which was granted candidate status in July 2010), and potential candidates (Albania, Bosnia, Montenegro, Serbia including Kosovo, as defined in UNSC Resolution 1244 [FN406]). (vi) EU development and economic, financial and technical assistance policies Pursuant to the Treaties, the policies of the EU relating to development cooperation and economic, financial, and technical assistance to third countries have to be consistent with and take place within the framework of the rule of law as an objective. The promotion, development, and consolidation of the rule of law and democracy, and of respect for human rights and fundamental freedoms have constituted a prime objective of the EU development policy and economic, financial and technical cooperation with third countries. [FN407] The Treaty of Lisbon has reinforced the objective of the rule of law in these fields since the Union's policy in those fields shall be conducted within the framework of the (general) principles and objectives of the Union's external action. This is included in Article 21(b) of the ( Lisbon) TEU, which provides for the consolidation of and support for democracy, the rule of law, human rights, and the principle of international law pursuant to Article 208 and 212(1) TFEU. [FN408] For the current period 2007-2013, EU development cooperation is funded within the legal framework established by Regulation 1905/2006. That establishes a financing instrument for development cooperation [FN409] and covers all countries not eligible under ENPI or PCA. The Member States' development cooperation assistance is funded inter alia by the 10th European Development Fund, which is the main instrument for providing development aid to
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the African, Caribbean, and Pacific (ACP) countries and the overseas countries and territories. The Fund is governed by the ACP-EU Partnership Agreement (signed in 2000 and revised in 2005 and in 2010) [FN410] and the amended Overseas Association Decision. [FN411] The EU's action on the rule of law and development is based on the European Consensus on Development, signed on December 20, 2005, whereby the EU Member States, the Council, the European Parliament, and the Commission agreed to a common EU vision of development. [FN412] The Consensus identifies a development based on the EU's democratic values, including the rule of law, goals, principles, and commitments to be implemented in development policies, in particular in reducing poverty and in the alignment of EU aid with the national strategies and procedures of developing countries. The Consensus also includes a section on Policy Coherence for Development (PCD) [FN413] to be applied in many areas (trade, environment, climate change, security, agriculture, fisheries, social dimension of globalization, employment and decent work, migration, research, information, transport, and energy), with the rule of law, democracy, good governance, and human rights among the cross-cutting issues identified. [FN414] The EU and its Member States together constitute the biggest providers of development aid in the world, collectively spending around 49 billion Euro on development assistance in 2009. [FN415] The economic, financial, and technical cooperation assistance of the European Union is provided mainly through Regulation 1934/2006 of December 21, 2006. That establishes a financing instrument for cooperation with industrialized and other high-income countries and territories. The assistance is given through multi-annual cooperation programs pursuant to Article 5 and annual action programs pursuant to Article 6, provided that the areas of cooperation are implemented with full respect for the principles of liberty, democracy, respect for human rights and fundamental freedom and the rule of law. [FN416] In addition, two horizontal legal instruments are significant. First, Regulation 1717/2006, establishing an Instrument for Stability [FN417] creates a development and financial assistance instrument aiming to contribute to stability in situations of crisis and emerging crisis, and in the face of specific global and trans-regional threats. The Regulation provides that technical and financial assistance shall cover: [S]upport for the development of democratic, pluralistic state institutions, including measures to enhance the role of women in such institutions, effective civilian administration and related legal frameworks at national and local level, an independent judiciary, good governance and law and order, including non-military technical cooperation to strengthen overall civilian control, and oversight over the security system and measures to strengthen the capacity of law enforcement and judicial authorities involved in the fight against the illicit trafficking of people, drugs, firearms and explosive materials. [FN418] The second instrument is Regulation 1889/2006 establishing a financing instrument for the promotion of democracy and human rights worldwide, [FN419] which provides: This Regulation establishes a European Instrument for Democracy and Human Rights under which the [EU] shall provide assistance, within the framework of the [EU]'s policy on development cooperation, and economic, financial and technical cooperation with third countries, consistent with the European Union's foreign policy as a whole, contributing to the development and consolidation of democracy and the rule of law, and of respect for all human rights and fundamental freedoms. [FN420] This Regulation allows for assistance which is independent of the consent of third country governments and other public authorities and codifies a series of piecemeal legislation provisions which contributed to the general objective of consolidating democracy, the rule of law, and respect for human rights such as Regulations 975/1999 and 976/1999. [FN421] (vii) The Rule of Law in the Common Foreign and Security Policy of the Union As with the rest of the external action of the Union, the Common Foreign and Security Policy of the Union (CFSP) must respect and pursue the general objectives of the rule of law, democracy, and human rights. [FN422]
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The starting point is the European Security Strategy, adopted by the European Council in 2003, according to which [t]he development of a stronger international society, well functioning international institutions and a rulebased international order is our objective. We are committed to upholding and developing International Law. The fundamental framework for international relations is the United Nations Charter. [FN423] The Union considers it a condition of a rule-based international order that law evolves in response to developments such as proliferation, terrorism, and global warming. [It has] an interest in further developing existing institutions such as the World Trade Organisation and in supporting new ones such as the International Criminal Court, and in [c]ontributing to better governance through assistance programmes, conditionality and targeted trade measures. . . . A world seen as offering justice and opportunity for everyone will be more secure for the European Union and its citizens. [FN424] With regard to policy implications, the EU acknowledges that if we are to make a contribution that matches our potential, we need to be more active, more coherent and more capable. And we need to work with others. [FN425] Having identified international conflicts (Middle East), state failure, terrorism, organized crime, nuclear proliferation, global warming, environmental degradation, financial turmoil, and globalization among the threats and challenges that the Union is facing, the 2008 Report on the Implementation of the European Security Strategy entitled Providing Security in a Changing World, states that [I]t is important that countries abide by the fundamental principles of the UN Charter and OSCE principles and commitments. We must be clear that respect for the sovereignty, independence and territorial integrity of states and the peaceful settlement of disputes are not negotiable. Threat or use of military force cannot be allowed to solve territorial issues-anywhere. At a global level, Europe must lead a renewal of the multilateral order. The UN stands at the apex of the international system. Everything the EU has done in the field of security has been linked to UN objectives. We have a unique moment to renew multilateralism, working with the United States and with our partners around the world. For Europe, the transatlantic partnership remains an irreplaceable foundation, based on shared history and responsibilities. The EU and NATO must deepen their strategic partnership for better co-operation in crisis management. [FN426] Generally the EU's external action on the rule of law, within the framework of the CFSP, distinguishes between the EU's action ensuring the promotion of the rule of law by third parties as an objective, and the EU's action ensuring respect for the rule of law by the EU itself. With regard to the promotion of the rule of law by third parties as an objective of the EU, the EU Council has adopted Guidelines on Promoting Compliance with International Humanitarian Law (2005, [FN427] revised in 2009 [FN428]) as well as various guidelines on specific human rights issues, including the death penalty, human rights defenders, and torture. [FN429] In several cases, the EU has adopted sanctions (restrictive measures), in response inter alia to violations of human rights and the rule of law in a third country. These sanctions have taken the form of interruption of economic relations with a third country, arms embargoes, economic and financial sanctions, freezing of assets, restrictions on admission (visa or travel ban) and targeted (smart) sanctions against specific persons, groups, and entities responsible for terrorist acts. [FN430] The EU has also adopted various measures in support of the international criminal tribunals and national prosecution and reconciliation mechanisms. These measures include the EU Common Position on the International Criminal Court. [FN431] the cooperation agreement with that Court, [FN432] guidelines on agreements adopted pursuant to Article 98 of the ICC Statute (which aim to exempt persons from the Court's jurisdiction) that seek to limit the scope of those agreements to only what is deemed to be in accordance with the ICC Statute, [FN433] and sanctions against persons indicted by the ICTY including the freezing of funds [FN434] and support for reconciliation and transitional justice processes. It should also be recalled that with regard to non-CFSP competences, Article 3(2)(d) of the Instrument for Stability provides for the EU to support for international criminal tribunals and ad hoc national tribunals, truth and reconciliation commissions, and mechanisms for the legal settlement of human rights claims and the assertion and adjudication of property rights, established in accordance with international human rights and rule of law standards, thus ensuring that the external action of the EU is consistent as a whole. [FN435]
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With regard to respect for the rule of law by the EU itself in the conduct of its external relations under CFSP, the EU has to comply with the principle of conferred powers according to which the Union shall act only within the limits of the competences conferred upon it by the Member States pursuant to Article 5(2) TEU. [FN436] And the principle of solidarity, according to which the conduct, definition, and implementation of policies are based on the development of a mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions pursuant to Article 24 paragraph 2 TEU. [FN437] Therefore, not surprisingly, the Treaties regulate the EU's external relations competences in quite some detail even though the EU's competences in the rule of law are very wide. The EU's action under the CFSP is subject only to limited control by the Court of Justice of the European Union. The Court is not competent on CFSP issues, but it has jurisdiction over EU sanctions involving physical and legal persons (e.g., in the fight against terrorism) and it is competent to verify whether CFSP decisions encroach on other EU competences (non-CFSP competences) and vice versa pursuant to Articles 24 and 40 ( Lisbon) TEU and Article 275 TFEU. Finally, respect by the EU for human rights in external relations is an ongoing challenge involving a balancing of the rule of law; human rights, and security (e.g., counter-terrorism sanctions). Questions relating to the interaction between legal orders and the rule of law at each of these levels, and between them (e.g. the Kadi judgment, which while criticized by some from an international law perspective), have led to improvements with regard to due process in the elaboration, adoption, and implementation of lists of terrorists by the UN Security Council. [FN438] The EU's external action within its crisis management operations is of particular relevance for the purpose of the rule of law. These crisis management operations and missions are carried out by the Union in third countries pursuant to its Common Security and Defence Policy (CSDP). A distinction is made between the civilian aspects and the military aspects of the crisis management operations of the EU. The record is quite successful, since after being launched as the European Security and Defence Policy (ESDP) in 1999, the Common Security and Defence Policy (CSDP), referred to in the TEU ( Lisbon), has developed rapidly. [FN439] Also in the period from January 1, 2003 until December 31, 2009, some 22 crisis management operations have been launched, including 6 military operations, 15 civilian operations, and one mixed civil-military operation. [FN440] The most recent operation being EUFOR Libya, which had not been launched yet. (a) The Rule of Law in EU Civilian Crisis Management Operations The strengthening of the rule of law was identified in the year 2000 by the Feira European Council as one priority area for targeting civilian aspects of crisis management (the area most specifically concerned was assistance for the re-establishment of a judicial and penal systems). [FN441] It marked out the possibility of providing up to 200 judges, prosecutors, and other legal experts. Concrete targets in the field of rule of law were set in the G teborg European Council in 2001 in order to ensure a complete and functioning criminal justice process in EU operations in which international police perform an executive role. For the purpose of EU civilian crisis management operations, Member States of the EU were requested to develop their capacity to deploy officials to local public prosecution, courts, and detention activities and, on a voluntary basis, to be able to contribute by 2003, up to 200 officials adequately prepared, (including prosecutors, judges, correctional officers, and police rapid deployment units). They were also requested to be able to contribute to fact-finding missions made up of officials with broad knowledge in the field of rule of law, enabling an early planning of rule of law support, which could be deployed within 30 days. [FN442] The G teborg European Council stressed that rule of law capabilities were meant both to enable the EU to respond to requests from an international lead organization more effectively, and to carry out autonomous missions. These EU missions could be tasked with strengthening local institutions; and rule of law missions could also be undertaken without a police component. Furthermore, with regard to any given mission, subsequent hand-over to local ownership would be considered essential. [FN443] Indeed, at a May 16, 2002 a senior official level capabilities commitment conference, Member States made, on a voluntary basis, commitments to build up the EU rule of law capabilities for crisis management by 2003 that exceeded the above-mentioned numeric targets. [FN444] Finally, the G teborg European Council described two generic concepts of rule of law missions. The first comprises of missions
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strengthening the rule of law, in which personnel in the field of rule of law are deployed essentially to educate, train, monitor and advise with the aim of bringing the local legal system up to international standards, [FN445] in particular in the field of human rights. The second comprises of missions aiming at substitution for local judiciary/legal system, in which personnel in the field of rule of law are deployed to carry out executive functions, notably where local structures are failing (or do not exist), to consolidate the rule of law in a crisis situation and thereby restoring public order and security. [FN446] Of particular importance was the Comprehensive EU Concept for Missions in the Field of the Rule of Law in Crisis Management, which was endorsed by the Council Committee for Civilian Aspects of Crisis Management (CIVCOM) and noted by the EU Political and Security Committee (PSC) on May 26, 2003 (Council Doc. 9792/03). The Comprehensive EU Concept stresses that in most instances, particularly when a police component has been deployed, the primary focus of the EU's efforts in the field of rule of law will be criminal procedure. However, the possibility of a rule of law mission dealing with civil law and administrative law aspects (for example family law, property, contracts, customs, and taxation) was also contemplated. The Concept adds a court system that commands the confidence of all and that will enforce obligations as a fundamental element of the EU mission. A particular feature of the EU is that EU personnel in the field of rule of law come from different legal systems. This diversity is a qualitative asset for the EU. [FN447] The Comprehensive EU Concept also emphasizes that rule of law missions will have to be adapted to the specific circumstances they will face in the mission area. [FN448] For that purpose, assessments and, where appropriate, EU fact-finding missions will have to be carried out. [FN449] The composition of a fact-finding mission should be decided on a case-by-case basis, taking into account the ad hoc nature of fact-finding missions and the varying degrees of complexity of situations to be addressed. [FN450] The Council of the European Union makes decisions on launching a rule of law mission in accordance with the Treaty and the established procedures described in the Crisis Management Procedures. The objectives of the mission are described in a mission statement accompanying the decision of the Council. The aim is to provide for complete and sustainable judiciary and penitentiary systems under local ownership and meeting rule of law and human rights standards in the mission area and to improve these systems' capacities in accordance with the demands of a democratic society. [FN451] In principle, local law is applied, and when this is impossible, recourse might be made to an interim legal framework to be elaborated within the framework of the UN. [FN452] The objective of a rule of law mission will be achieved throughout different phases (normally comprising an activation phase, a development phase, and a consolidation phase). [FN453] The EU considers the participation of non-EU states in its civilian operations to be of paramount importance. Indeed, the EU could lead a mission that includes EU components or also contributions from other international organizations or third states. [FN454] The involvement of third states includes the conclusion of participation agreements based on model agreements adopted by the Council in the form of Framework Participation Agreement (FPA) or Model Participation Agreement (MPA). [FN455] Alternatively, the EU could provide a rule of law component to a mission led by another organization. [FN456] The EU draws on the experience of international organizations, in particular the UN, OSCE, and Council of Europe. The modalities for potential contributions of nongovernmental organizations and non-state experts are delineated in Annex IV to the EU Comprehensive Concept. The EU also recognizes that the success of a rule of law mission lies to a large extent in the capacity and readiness of local authorities to be fully involved from the beginning in the achievement of the [mission's] objectives. [FN457] A lessons learned process is also regularly carried out. [FN458] In principle, the EU does not launch a rule of law operation or mission unless the decision of the Council is based on and complies with international law, either pursuant to a resolution of the UN Security Council under Chapter VII of the UN Charter, following an invitation of the host country, or otherwise in conformity with the UN Charter. Respect for the rule of law and applicable human rights and/or international humanitarian law (in situations of armed
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conflict or occupation) is explicitly laid down as a duty in all EU rule of law missions. [FN459] So far, only the beginning of operation EULEX Kosovo has raised some controversy due to the fact that the EU has not, unlike some of its Member States, recognized Kosovo as an independent state, (the EU operates in Kosovo under UNSC Resolution 1244). [FN460] The EU Rule of Law Mission in Kosovo (EULEX Kosovo) is the largest civilian mission ever launched and therefore it likely serves as a model. Its central aim is to assist and support the Kosovo authorities in the rule of law and in particular, in the police, judiciary, and customs. It also explicitly provides that all the activities of the mission, respect international standards concerning human rights and gender mainstreaming. [FN461] Other EU rule of law missions include EUJUST Themis (Georgia), [FN462] which provided for EU assistance in the development of a horizontal governmental strategy for a new criminal justice, judicial, and anti-corruption reform, new legislation, and cooperation in the area of justice. Another example is the EU integrated rule of law mission for Iraq, EUJUST LEX Iraq, [FN463] which addresses urgent needs in the Iraqi criminal justice system through training for senior and midlevel officials in senior management and criminal investigations. Outside rule of law missions, elements of the rule of law may form part of the mandate, e.g., of the EU security sector reform missions. Thus, EUPOL DR Congo, the EU police mission undertaken in the framework of the Congolese security sector and its interface with the Congolese system of justice contributes to improving interaction between the police and the criminal justice system in the broader sense. [FN464] EUSEC DR Congo, the EU mission that provides advice and assistance for security sector reform in the DR Congo [FN465] makes explicit that the aim of assisting the Congolese authorities in setting up a defence apparatus capable of guaranteeing the security of the Congolese people, has to respect democratic standards, human rights and the rule of law, as well as the principles of good governance and transparency. [FN466] Some EU civilian crisis management operations specifically detail the rule of law aspects in their mission statements. In the past, inter-institutional discrepancies relating to questions of powers and competences have arisen between the European Commission and the Council. The European Commission favors rule of law missions led by the Commission under non-CFSP instruments, [FN467] whereas the Council of the European Union favors CFSP action led by the Council. These discrepancies have on occasion created difficulties in the EU decision-making process, and some have been arbitrated by the Court of Justice. [FN468] In order to avoid these discrepancies, the Treaty of Lisbon has introduced new provisions aiming to reinforce the consistency and effectiveness of the EU external action as a whole by requiring mutual respect between CFSP and non-CFSP competences pursuant to Article 40 TEU. Furthermore, the Articles 18, 21(3), and 27 TEU Treaty of Lisbon confer on the new High Representative for the Common Foreign and Security Policy of the Union new powers within the Council (i.e. the chair of the Foreign Affairs Council) and within the European Commission (as vice-president of the Commission in charge of the coordination of the non-CFSP external action of the Union), in addition to those competences already attributed under the pre-Lisbon regime. The High Representative is assisted by the European External Action Service (EEAS) composed of officials transferred from the European Commission, the General Secretariat of the Council and the Diplomatic Services of the Member States (Council Decision 2010/427/EU adopted on July 26, 2010; OJ 2010, L. 201). (b) The Rule of Law and EU Military Operations The EU has developed a solid legal framework for its military operations. This framework has been reinforced by the new provisions inserted into the TEU by the Treaty of Lisbon. The new TEU provisions set out, in quite some detail, the legal bases, procedures, and competences of the different actors pursuant to Title V, Chapter 2 TEU, (especially Section 2, i.e. Articles 42-46). As with civilian operations, the basic legal instrument governing each EU military operation is a Council decision adopted on the basis of Article 43 ( Lisbon) TEU, in conjunction with Articles 28 and 31 TEU. As with its civilian missions, EU decisions on military operations set out the objectives, the mission mandate, the chain of command, provisions on the participation of other actors, and various other parameters. [FN469] Of particular relevance are the EU planning documents leading to the launching of the EU military operation. The Operation Plan is the plan for the operation that includes the elaboration of the tasks, the means re-
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quired, the command and control structure, and the way in which the Commander intends to conduct the operation. The Operation Plan also includes an explanation of when the use of force may be required, and sets out the rules of engagement (ROE) [FN470] which determine when, where, and how force is to be used. The rules of engagement are approved by the Council (by unanimity of all the Member States) usually at the same time the decision is made to launch the operation. In addition to these provisions the European Union has concluded a number of international agreements relating inter alia to the participation of third States in EU military operations [FN471] and the status of forces agreements. [FN472] These agreements define the legal position of the operation and its military personnel. Such agreements have been concluded on the basis of Article 24 pre-Lisbon EU Treaty and are now governed by Articles 37 of ( Lisbon) TEU and 218 of the Treaty on the Functioning of the European Union. [FN473] As we have seen, the EU military operations are committed to upholding and developing International Law. [FN474] This is reflected in the following elements: first, as with civilian missions, EU military operations can have different bases in international law. The most common bases have been UN Security Council Resolutions, [FN475] consent by the host state government, or a peace agreement. In some cases, several of these bases are combined. Another basis in international law, is illustrated by Operation Atalanta, the counter-piracy operation off the coast of Somalia. This operation was based on the UN Convention on the Law of the Sea). So far, these international legal bases have not been controversial in any of the EU's military operations. Secondly, the EU will normally conclude a Status of Forces Agreement (SOFA) (based on a model adopted by the Council) with the host state. This agreement will regulate the status and activities of an operation in the host state including provisions on identification, entry into the host state's territory, freedom of movement, the wearing of uniforms, the carrying of arms, the exercise of criminal jurisdiction by sending States, privileges and immunities of the operation and the forces, host state support and contracting, handling of deceased personnel, security of the forces and military police, communications, handling of claims, implementing arrangements, and the settling of disputes. [FN476] In addition, the Member States have concluded amongst themselves an agreement to regulate the status of their forces within each others' territory (EU SOFA, not yet entered into force at the time of print), [FN477] and an agreement on any claims between them for damage to any property, injury, or death suffered by any staff in the context of an EU crisis management operation (not yet entered into force at the time of print). [FN478] Thirdly, the arrangements for the participation of a third State in an EU military operation are laid down in a participation agreement with the EU. Such agreements may be concluded on an ad hoc basis for a given operation (on the basis of a standard agreement) or may take the form of framework agreements covering participation generally in EU operations. [FN479] International humanitarian law or the law of armed conflict [FN480] only applies to situations of armed conflict and occupation. Therefore, the EU and its Member States accept that if EU-led forces become a party to an armed conflict, [FN481] international humanitarian law would fully apply to them. [FN482] In the context of the EU, this was reflected in the Salamanca Presidency Declaration, which provided that [r]espect for International Humanitarian Law is relevant in EU-led operations when the situation they are operating in constitutes an armed conflict to which the forces are party. [FN483] This position corresponds with the position reflected in Article 2(2) of the 1994 Convention on the Safety of United Nations and Associated Personnel. [FN484] However, given that only some EU military operations might involve the use of armed force by EU personnel as combatants, international humanitarian law is only likely to be applicable in a few EU operations. Therefore, the EU position is that international humanitarian law does not necessarily apply in all EU operations. [FN485] So far EU-led forces have not become engaged in combat as a party to an armed conflict in any of the EU's military operations. Though international humanitarian law was not applied, it could have been utilized if the situation had escalated in certain operations, especially Artemis [FN486] and EUFOR Chad/RCA. [FN487] In Artemis, a few isolated incidents were reported but these did not seem sufficient to have crossed the threshold into armed conflict. [FN488] Although EUFOR Chad/RCA was conducted in
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a challenging environment in which several armed conflicts were ongoing, [FN489] the EU stressed repeatedly that in observance of its mandate, EUFOR Chad/RCA would act with full independence, impartiality and neutrality. [FN490] Although a number of incidents occurred, it seems that this approach was well understood and the operation did not get involved in the various conflicts. [FN491] When international humanitarian law does not apply, the EU primarily looks towards human rights law as the appropriate standard for the conduct of EU operations. [FN492] Admittedly, the applicability of human rights as a matter of law remains controversial in some respects. These controversies include the extraterritorial application of the European Convention on Human Rights, the question of derogation in times of emergencies and its applicability to peace operations, the relationship between human rights and international humanitarian law, [FN493] and the impact of UN Security Council mandates on human rights. [FN494] However, as a matter of policy and practice, human rights provide significant guidance in EU operations. Furthermore, pursuant to Article 6 of the ( Lisbon) TEU, the EU recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. [FN495] In addition, (as was the case before the Lisbon Treaty), the EU is bound by human rights as general principles of EU law. Since the Lisbon Treaty took effect, it is now also provided that the EU must accede to the European Convention on Human Rights pursuant to Article 6(2) ( Lisbon) TEU. [FN496] Therefore, EU operational planning and rules of engagement fully respect internationally recognized standards of the rule of law and human rights law. [FN497] This has been explicitly reflected in the EU decisions establishing some of the more recent EU military operations such as the EU EUNAVFOR Somalia/Atalanta operation. [FN498] In particular, references to respect for human rights as an element of the rule of law are incorporated in the EU Atalanta military operation off the Somali coast and in transfer agreements dealing with the conditions of transfer of suspected pirates. Thus, Article 12(2) of the Council Joint Action 2008/851/CFSP (Atalanta) of 10 November 2008 provides that no persons involved in acts of piracy who are arrested or detained in the course of the EU operation: [M]ay be transferred to a third state unless the conditions for the transfer . . . (are) consistent with . . . international law, notably . . . human rights, in order to guarantee that no one shall be subject to the death penalty, to torture or to any cruel, inhuman or degrading treatment. [FN499] Moreover, the transfer agreements contain provisions ensuring that the persons transferred are treated in accordance with human rights and with the requirements of a fair trial. [FN500] The promotion of the rule of law in EU military operations does not usually constitute a priority. Instead, this tends to be a task for other actors that are present in theatre (e.g., an EU civilian CSDP operation, other EU measures, [FN501] or a mission by the UN or OSCE which intervene in parallel with the military operation). However, in some cases, military CSDP operations may be specifically mandated to undertake rule of law (related) tasks. Thus, the EU guidelines on international humanitarian law provide, inter alia, that: (15(b)) Whenever relevant . . . Commanders of EU Military Operations . . . should include an assessment of the IHL situation in their reports about a given State or conflict. Special attention should be given to information that indicates that serious violations of IHL may have been committed. Where feasible, such reports should also include an analysis and suggestions of possible measures to be taken by the EU . . . (16(f)) Crisismanagement operations: The importance of preventing and suppressing violations of IHL by third parties should be considered, where appropriate, in the drafting of mandates of EU crisis-management operations. In appropriate cases, this may include collecting information which may be of use for the ICC or in other investigations of war crimes. [FN502] In practice, EU military CSDP operations always take into account rule of law considerations. This is specifically provided in the reporting mechanisms applicable to operations, such as human rights and gender advisers.
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(viii) Overall evaluation At present, [FN503] the EU possesses a comprehensive framework for the promotion of democracy, human rights, the rule of law, and good governance. This framework covers the whole world, and consequently, the EU has become a major civilian power. [FN504] The various EU policies consist of remarkably similar instruments, but differ mainly with regard to the steering mechanisms which are established for the implementation of requirements imposed by the respect of the rule of law, democracy, and human rights. These mechanisms are mainly of three types. First, there are political dialogues based on persuasion and learning strategies. Second, there are clauses on political conditionality which are based on cost-benefit calculations and which create incentive structures. And third, there are programs establishing capacity-building for the institutionalization of democracy, human rights, and the rule of law. These three types of instruments are used in all geographical locations. The EU follows the same approach everywhere: the establishment of legal instruments as the starting-point and support for the enforcement of those instruments by the local authorities as the end result. This approach is consistent with the EU Security Strategy: in order to induce compliance with its policies, the EU stresses a preference for soft security and soft power in foreign policy. For that purpose, it uses positive incentives, capacity-building, persuasion, and learning. [FN505] Of course, the EU is sometimes not fully consistent when dealing with infringements of the rule of law and human rights. It is tough on Myanmar, but rather soft on China. In many cases, it does not use the instruments available in the various partnership agreements, or uses them only reluctantly. Indeed, it has been pointed out that inconsistent use of political conditionality mitigates the transformative power of the EU and damages the EU international credibility as a normative power. [FN506] Nevertheless, a quantitative study of the use of EU carrots and sticks in its rule of law and human rights policies has not revealed that the EU acts with a particular bias one way or another. [FN507] The EU policies are implemented in a differentiated way, but this difference in treatment is not the result of a systematic pre-eminence of economic and security interests over considerations for the rule of law, democracy, and human rights. The evolution of EU policies on the rule of law has followed a pragmatic approach-that is, learning by doing. [FN508] An illustration is provided by the evolution of the policy of conditionality, which was first developed in relations with the ACP countries as part of the 1990 Lome IV agreement. This was then quickly introduced in the form of positive conditionality (closeness to the EU) and a weak form of negative conditionality (economic support provided if there is compliance with the rule of law) in relations with the Central Eastern European and Northern African countries during the early 1990s. [FN509] In short, the EU emphasis is on value export-the promotion of the rule of law, democracy, and social and economic rights. This EU external action distinguishes itself from the U.S. version of freedom, democracy and capitalism. This distinction has brought practical consequences. For example, in Latin America where the EU and the United States seem to compete, the EU tries to promote its own model of regional integration, i.e., by including strong supranational institutions going beyond mere free trade areas, which is the preferred American option. Above all, the EU's external policy for the promotion of the core EU values of the rule of law, democracy, and human rights is firmly integrated in the overall framework of crisis management, as explicitly required in the European Security Strategy. The European strategic vision in crisis management purports to create democratic societies as a means to achieve peace, stability, and wealth. For that purpose, the EU should act as a soft power, or a small power for some analysts, [FN510] and have recourse to effective multilateralism. Behaving as a soft power has not prevented the Union from becoming, within a relatively short period of time (ten years or so), a major player in post-conflict peace-building and reconstruction efforts, including robust peacekeeping. With regard to the peace-keeping, EU Member States provide a large number of troops in the various peace-keeping operations, be it under UN auspices, under NATO, or under EU autonomous operations. The EU is now a major contributor to the UN with regard to peace-keeping, but at the same time EU military missions also operate within the EU's larger political stabilization and peace-building objectives for the promotion of democracy, human rights, and the rule of law. [FN511] Indeed, while the immediate goal is to provide security and stability, all EU missions have been linked to the long-term goal of rule of law, state-building, and democracy promotion that require civilian rather than military
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measures. A strong emphasis is put on security sector reform as an important condition for successful state-building and democratic transformation. A major focus is (democratic) control of those actors who command executive and coercive power. This is why some EU missions have made training and monitoring police forces a major priority. Most military operations have been complemented or followed up by so-called civilian police (EUPOL) missions for the building and reforming of police institutions in accordance with rule of law requirements. For a supranational entity, this EU action is quite unique and comprehensive, as it enables the EU to provide a whole package of political, economic, social, cultural, and military measures in crisis prevention, crisis management, and post-conflict situations even though coordination between the various EU agencies and the EU delegations on the ground can be challenging. Having recourse to effective multilateralism provides that all EU missions have been either requested or at least endorsed by the UN. [FN512] The EU considers that it acts in accordance with international law when its operations take place without a UN mandate but with the consent of the host state in practice and the UN has often later endorsed these EU missions in one way or another. [FN513] The EU has become a reliable burden-sharing partner, particularly in areas such as rapid reaction to humanitarian crisis and sustainable post-conflict management. The EU has also cooperated with other international and regional organizations, such as the OSCE in both the Western Balkans (FYROM and Bosnia-Herzegovina) and on Russia's borders (Georgia, Ukraine, and Moldova), the African Union (Sudan), and the ASEAN (Aceh/Indonesia). The cooperation with NATO is of course fundamental: the EU and NATO have concluded the Berlin Plus Agreement. [FN514] That agreement provides a framework for the consultation and cooperation between NATO and the EU and has also prevented dissensions between the United States and its major European allies. Yet EU/NATO cooperation has not proven to be fully satisfactory, in particular when the EU acts autonomously and NATO also operates in the same place, such as in Afghanistan. Coordination, in these instances, has been weak. In short, the EU's role in conflict resolution and peace-building has transformed it into a major civilian power, which subordinates the purely military and security interests to the civilian objectives relating to the reform of the capacity-building and positive conditionality. While the EU does not prevent the use of military force in its military operations, the latter is integrated in the overall framework of an EU concept of crisis management that combines the use of financial, civilian, and military instruments in order to transform and adapt countries to the requirements of the rule of law. The question arises as to how the EU vision compares with that of the United States. IV. The Rule of Law in the External Action of the United States American scholars have suggested that the strength of the adherence of a country to the rule of law in international affairs is essentially linked to the extent to which international law can be enforced through national mechanisms. [FN515] Therefore, the question arises as to how international law is enforced through American mechanisms. (i) The United States and International Law It is worth mentioning that the United States Supreme Court has held that [w]hen the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement. [FN516] Therefore, the United States has systematically accepted that international legal commitments are binding upon it both internationally and domestically in accordance with the following principles. The Supreme Court has also held that customary international law binds the United States and is part of our law, meaning that it is integrated into the law of the United States through the common law when there is no treaty, and no controlling executive or legislative act or judicial decision in conflict. [FN517] In 1900, the Supreme Court held that customary international law is . . . our law only when there is not a controlling executive or legislative act
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in force. [FN518] Thus, while customary international law may be part of the law of the land, it has limited applicability when it is in conflict with a domestic law that has been adopted later in time. As a result, the United States can exempt itself from the requirements of customary international law by adopting a statute to the contrary pursuant to last in time rule [FN519] provided. Of course, it is required that the statute does not violate any rule of international customary law that has acquired the status of jus cogens. [FN520] The Supreme Court has so far never declared a U.S. statute non-applicable on the ground that it violated customary international law. In any case, customary international law can potentially affect how domestic law is interpreted. The United States assumes international obligations most frequently when it concludes agreements with other states or international organizations that are intended to be legally binding. Once concluded by the United States, such agreements are legally binding and can take the form of an international treaty or an executive agreement. [FN521] A treaty is an agreement negotiated and signed by the executive that enters into force if it is approved by a two-thirds majority of the Senate and is subsequently ratified by the President. It should be noted that the Senate may also propose amendments to the text of the treaty itself and that, in such case, the other contracting parties to the agreement would have to consent to the changes in order for them to take effect. However, the great majority of international agreements concluded by the United States are not treaties but executive agreements that are entered into by the executive without being submitted to the Senate for its advice and consent, although Congress generally requires notification upon the entry into force of such an agreement. [FN522] Although the Constitution of the United States does not mention the category of executive agreements, they have nonetheless been considered to be valid international commitments by the Supreme Court and as a matter of historical practice. [FN523] There are three types of executive agreements: first, the so-called congressional-executive agreements, in which Congress has authorized the conclusion of an international agreement by the executive before its conclusion or after its conclusion with retroactive effects; second, the so-called executive agreements made pursuant to an early treaty, in which the conclusion of an executive agreement has been authorized by a ratified treaty; and third, the so-called sole executive agreements in which an agreement is made pursuant to the constitutional authority of the President without any authorization either by the Congress or by a prior treaty. [FN524] Pursuant to the Supremacy Clause in Article 6 of the Constitution, all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding. [FN525] In general, the effects of international agreements upon the domestic law of the United States depend upon the nature of the treaty or agreement, namely, whether the agreement is self-executing (i.e. which is able to operate automatically within the United States without the need for any municipal legislation [FN526]), or not self-executing (i.e. when it requires legislation before it can be applied in the United States and bind American courts [FN527]), and whether it was made pursuant to a treaty or an executive agreement. [FN528] Until implementing legislation is enacted, existing domestic law relating to the issues covered by an international agreement that is not self-executing remains in force. However, when a treaty is ratified or an executive agreement is entered into, the United States assumes obligations under international law and may be unable to apply those obligations unless implementing legislation is enacted. Sometimes, a treaty or executive agreement may conflict with a state law, a federal law, or the Constitution. For domestic purposes, a ratified, self-executing treaty is part of the law of the land having a status equal to federal law, [FN529] and superior to state law, [FN530] but inferior to the Constitution. [FN531] A self-executing executive agreement is likely to be superior to state law, [FN532] but sole executive agreements may be inferior to conflicting federal law in certain circumstances, [FN533] and all executive agreements are inferior to the Constitution. As a rule, courts of the United States interpret statutes in such a way as to comply with the international obligations contracted by the United States, a principle known as the Rule of Interpretation. Since the role of the American Court is to determine the intent of the legislature when the court interprets a statute, the recognized general public policy is to comply with international legal obligations and interpret statutes in such a way as to comply with international law. When statutes directly refer to international law, thereby incorporating its terms, international law is
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incorporated by reference into American law. If a U.S. statute refers to specific treaty provisions, the specific terms are thereby given the same force as the statute. The record of U.S. compliance with international law is controversial. [FN534] In some cases, the United States has taken the lead in multilateral efforts to create legal rules and institutions and has offered considerable (financial) support. In other cases, the United States has found that multilateral cooperation and acceptance of some form of international supervision are the best available options for a superpower in a uni/multipolar world. For example, in the field of environmental law, notwithstanding its high-profile withdrawal from the Kyoto Protocol, American compliance with international commitments has been considered good. [FN535] However, there have also been instances in which the U.S. attitude towards international law has been less favorable (e.g., the refusal to sign or ratify the Rome Statute of the International Criminal Court, the United Nations Convention on the Law of the Sea, or the Ottawa Convention on Landmines). Although the United States does not violate international law by refusing to accept these treaties, it is difficult to maintain that this position actively contributes to a strengthening of the international rule of law. This also applies to the U.S. reluctance to accept third party settlements in international disputes, or the possibility for its citizens to submit petitions to international supervisory bodies in the area of human rights. [FN536] In yet other instances, the United States has simply violated international legal obligations, in the sphere of international peace and security, human rights and humanitarian law, (Guantanamo). and UN membership (UN dues). [FN537] In particular, the issue of the UN dues withheld by the United States under Article 17 of the UN Charter has been severely criticized: a sharper deviation from the rule of law paradigm is hard to imagine. [FN538] Criticisms have also been made concerning the United States policy on cooperation with the rest of the international community on topics such as arms control, disarmament, non-proliferation, and safeguards (but this is changing with the Obama Administration). Many of these criticisms are mainly based on a perceived negative effect that the former Bush administration had on cooperation in these areas. The difficulty that the United States has with accepting the rule of law in these areas had been compounded with the coming into office of the George W. Bush administration because of its considerable distrust of any external constraints on its behaviour, especially the constraints imposed by international norms and institutions. [FN539] Particularly disturbing, is the aftermath of the Nicaraguan case with regard to the role of the International Court of Justice, which has led the United States to refuse to accept the compulsory jurisdiction of the Court for the foreseeable future. In the case of the International Criminal Court, the United States has combined several strategies to prevent the Court from prosecuting U.S. nationals (through the world order treaty, through bilateral treaties, and through unilateral measures). What is the reason for such a controversial record? Part of the explanation may be found in the U.S. National Security Strategy (NSS). (ii) The Rule of Law as a strategy in U.S. external action As with the EU's Security Strategy (ESS), U.S. external action on the rule of law is guided by its formalized National Security Strategy (NSS), a requirement of Congress for any U.S. President since 1986. [FN540] The formalization of the NSS by the Obama administration took place in May 2010. The new President had indicated in some of his Presidential speeches, and through the speeches of his Secretary of State, H. Clinton (e.g., her speech at the Council on Foreign Relations in 2009), that his strategy would continue to be assertive abroad but with a change of emphasis. The new strategic goals are to reverse the spread of nuclear weapons and build a world free from the threat of their use and to isolate and defeat terrorists and counter violent extremists while reaching out to Muslims around the world. [FN541] The Obama Strategy no longer refers to the global war on terror (a term commonly employed by the Bush administration) but states that the United States will continue to fight a war against a far reaching net-
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work of hatred, while, at the same time, restoring American values, banning torture, and safeguarding the legal rights of the terrorist held in detention and American exceptionalism. [FN542] The new Strategy also commits the Obama administration to the encouragement and facilitation of the efforts of all parties to pursue and achieve a comprehensive peace in the Middle East as well as to seek global economic recovery and growth by strengthening our own economy. [FN543] Indeed, it identifies the future security with America's economic recovery, putting emphasis on education, energy, science, and on the American ability to reinvent its rusting economic infrastructure. The new Strategy also seeks to advance a robust development agenda, to expand trade that is free and fair, to boost investment that creates decent jobs, [FN544] to combat climate change, increase energy security and lay the foundation for a prosperous clean-energy future, and last but not least, to use the requirements of the rule of law to support and encourage democratic governments that protect the rights and deliver results for their people. [W]e intend to stand up for human rights everywhere. [FN545] The new Administration brings back multilateralism to the center of its strategy (which had been relegated to the periphery in the NSS of the Bush Administration). In contrast to the Bush Strategy, which asserted the U.S. hegemony (the United States will never allow the rise of a rival super power if necessary by undertaking pre-emptory strikes), the Obama NSS reverts to more traditional U.S. diplomacy. An essential part of the Obama strategy is its call for a renewal of American leadership by working with other partners, by recognizing the existence of a multi-partner world instead of a multi-polar world [FN546] with peer competitors, in which America[] lea[ds] to solve problems in concert with others [FN547] because no nation can meet the world's challenges alone. [FN548] Therefore unity of effort is paramount. The approach is that of a tough and smart power that brings all relevant domestic actors to the table and the playing field, and bases its external action upon several pillars. The first is the creation of strong mechanisms of cooperation with our historic allies, with emerging powers, and with multilateral institutions, and to pursue that cooperation in . . . a pragmatic and principled way. [FN549] The second is focused on developing leadership with diplomacy, even in the cases of adversaries or nations with whom we disagree. . . . [D]oing so advances our interests and puts us in a better position to lead with our other partners[] [for] [w]e cannot be afraid or unwilling to engage. [FN550] The third is upgrading and integration of development as a core pillar of American power. [W]e advance our security, our prosperity, and our values by improving the material conditions of people's lives around the world. These efforts also lay the groundwork for greater global cooperation, by building the capacity of new partners and tackling shared problems from the ground up. [FN551] The fourth strategy involves ensuring that our civilian and military efforts operate in a coordinated and complementary fashion where we are engaged in conflict. This is the core of our strategy in Afghanistan and Iraq, where we are integrating our efforts with international partners. [FN552] The final pillar is the reinforcement of the traditional sources of our influences, including economic strength and the power of our example. [FN553] The application of these principles has had an evident and practical effect in Presidential demarches as it de-links terrorism from Islam and reduces the role of nuclear weapons in American defense, (e.g., the new Nuclear Posture Review (NPR)). This decreased role for nuclear weapons in American defense reduces the importance of nuclear weapons in the NSS and thus promotes the non-proliferation of weapons of mass destruction with the goal of achieving a nuclear-free world. This goal, asserts the policy of the defense of human rights throughout the world including in countries such as China. What is not yet clear is how the United States will behave if diplomacy cannot prevent Iran from developing nuclear weapons, or cannot encourage developing states either to pursue clean energy policies or to recognize the right of oppressed peoples to achieve greater freedom. This leads one to question which parts of the Bush NSS, as recast in 2006, remain in force. One would venture to say that the basic principles remain the same: the promotion of freedom, justice and human dignity, [FN554] the encouragement of democracy through confronting the challenges of our time by leading a growing community of democracies, [FN555] and the establishment of states abiding by the rule of law or well governed states. The term rule of law is mentioned nine times in the 2002 NSS and sixteen times in the 2006 NSS [FN556]). In particular, the Preface to the 2009 edition of the Rule of Law Handbook
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published by the Centre for Law and Military Operations, incorporates the fundamental principle that America must stand firmly for the non-negotiable demands of absolute power of the state; free speech, freedom of worship, equal justice, respect for women, religious and ethnic tolerance, and respect for private property. [FN557] Indeed, President Obama has remarked that I believe that our nation is stronger and more secure when we deploy the full measure of both our power and the power of values, including the rule of law. [FN558] We know that the interpretation of those values by President Obama has changed in comparison with that of the Bush Administration. This is demonstrated by the attitude of President Obama to the situation in Guantanamo, as well as the question of the military tribunals and the redefinition of the prohibition of torture in the armed forces. But what about the means? The Bush doctrine of pre-emption-armed intervention-does not stand, but President Obama has not explicitly ruled out striking first: the United States must reserve the right to act unilaterally if necessary to defend our nation and our interests, yet we will also seek to adhere to standards that govern the use of force. [FN559] Will the Bush principles of transformational diplomacy apply in the same way during the Obama Administration? How do these traits of the American strategy compare with those of the European Union? (iii) A comparison between the EU and U.S. strategies on the rule of law In theory, the American NSS and the EU ESS do not greatly differ in their principles, particularly in their comprehension of the rule of law. [FN560] Nevertheless, the application of the rule of law in the EU and U.S. external action differs due to the different priorities established in their security strategies. Specifically, the NSS emphasizes the protection of freedom while the ESS focuses more importance on the rule of law. The emphasis in the NSS is on the military aspect while in the ESS it is on the civilian aspect. The NSS represents one country, the sole remaining power in the world, while the ESS represents the compromises proper to an entity of 27 Member States. The NSS reflects the enduring shock of the terrorist attack of 9/11 while the ESS was shaped by the debate on the U.S. invasion of Iraq. The NSS has traditionally seen terrorism by rogue states as the primary threat (although President Obama has added other threats), while the ESS has traditionally seen a panoply of threats (terrorism, proliferation, regional conflicts, state failure, [FN561] and organized crime). The NSS strategic goal is to make the world not just safer but better, [FN562] by fighting terrorists and tyrants, by building good relations among the great powers and by encouraging free and open societies on every continent. [FN563] Although the Obama NSS avoids any hint of imposing elections at gun point, the ESS strategic objectives are addressing threats, creating an international legal order based on effective multilateralism, and building a secure neighborhood. With regard to the means for achieving these goals, the Bush NSS proclaimed that the United States will be using all the elements of national and international power [FN564] and the Obama NSS used the milder expression of the tough and smart power taking international obligations seriously. The ESS emphasizes effective multilateralism, [FN565] preventive engagement with the full spectrum of instruments for crisis management and conflict prevention at their disposal, including political, diplomatic, military and civilian, trade and development activities. This enables the EU to act before countries around us deteriorate and to support the United Nations as it responds to threats to international peace and security; [FN566] while the NSS stresses the significance of hard power and military solutions, based on the option of acting unilaterally if necessary. The conceptual framework of the ESS is comprehensive security (global actions, sanctions, the UN's robust engagement including military capabilities as a last resort). [FN567] Are the European Union and the United States Allies or Competitors? Some years ago, Robert Kagan, the influential American thinker, suggested that, since the collapse of the Soviet Union and the establishment of the European Union, Europe has emerged into a political paradise in the image of the stable, civilized, world order of perpetual peace envisioned by Kant. [FN568] In contrast, America, with its massive defense budget, its capacity to launch military operations anywhere in the world, and its willingness to engage in unilateral actions against rogue states remains within a violent, anarchic, Hobbesian world. [FN569] According to Kagan, in the post-cold war era, this divergent situation has provoked a profound division in the transatlantic alli-
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ance between the United States and the EU so that on major strategic and international questions today Americans are from Mars (the brave god of war) and Europeans are from Venus (the beautiful goddess of love). [FN570] Does this suggestion stand today? Is it correct to conclude that the EU and the United States are bound to become continuing competitors, with Europe encouraging a peaceful world order built upon international law, multilateral common institutions, and shared dispute settlement mechanisms, while the United States continues to maintain its status as a self-appointed global sheriff with a powerful military capability willing to engage in combat around the world? Or is this an over-simplification of a much more complex reality? [FN571] It could perfectly be argued that this disinclination by the EU to use military power as a source of regime change is not necessarily a sign of weakness or a sign of an excessively idealistic or Kantian conception of human nature. Rather, it can also reflect the judicious, prudent use of power in response to available evidence, the likelihood of particular threats, and the anticipation of particular outcomes. Analysts like Kagan do not appear to give sufficient weight to the possibility that the combination of legal, diplomatic, and economic alternatives to military engagement might not only be more legitimate, but also more effective than the exercise of military power. The Obama Administration's emphasis on the promotion of the rule of law and the extension of peace in the world, has raised tremendous hope in Europe. However, this emphasis is not a new phenomenon in the foreign policy of the United States On the contrary, it forms part of the perennial American grand strategy, [FN572] and of a concept of a Democratic Peace, also based on Kant's idea of a federal contract between states that would abolish war and would lead to perpetual peace, [FN573] that has informed American history for centuries. This American democratic peace strategy assumes that democratic states do not go to war against each other but might be aggressive towards non-democratic states (which form an impoverished zone of war) for the purpose of bringing them to the democratic, prosperous, and peaceful zone of peace. [FN574] According to this strategy, the objective of democratic peace can only be achieved by the spread of (liberal) democratic institutions such as multi-party democracy, market economies, free trade, and respect for human rights, which constitute the best prescription for international peace. [FN575] Indeed, elements of such a strategy, particularly the promotion of democracy, have regularly underpinned American foreign policy and can be found in the Monroe Doctrine of 1823, in the promotion of democracy in Central and Latin America, the Pax Americana of President Wilson of 1913 under the slogan making the world safe for democracy, the Reagan/Kirkpatrick doctrine of 1979 that distinguished between right-wing and left-wing dictatorships for the purpose of democratization, the call by President Carter for democracy in all nations, not just non-communist autocracies, the Clinton policy of democratic enlargement linking political and economic liberalism (free market economy) as a means of advancing the economic interest of the United States, and the Bush doctrine of pre-emptive attacks and regime change in order to obtain a free world with free people in the free market economy. This American grand strategy has gained conceptual reinforcement through the propositions of Fukuyama on the end of history, according to which the advent of democracy in the Western style constitutes the final stage in the political evolution of mankind and has become the final form of human government. [FN576] It has also found support in the observations of Huntington regarding a third wave of democratization relating to the democratic transitions of developing countries. [FN577] These theoretical contributions still influence American policy. The only element that changes in this American grand strategy is the degree of emphasis on the use of force. In Europe, this American grand liberal tradition of promotion of democracy in the world does not exist as a strategy. In the past, the link between democracy and peace did not acquire a practical dimension in foreign policy in Europe. This link remained exclusively in the sphere of ideas, in the writings on freedom and democracy of Kant, Grotius, Locke, Montesquieu, and Rousseau, while in practice, Europeans spread colonialism and authoritarianism in the world. Thus, Europe is only a debutante in the instrumentalization of the promotion of democracy and the rule of law as an instrument of its foreign policy. It is important to note, however, that the present European conception is not only based on Kant but also on Grotius, whose Law of War and Peace (1625) constitutes the foundation of the European conception of international law. Consequently, European foreign policy strategy emphasizes respect for the rule of law, the incorporation and promotion of the rule of law as part of international law, and preservation of such international legal order more than the establishment of democracy and freedom in third countries. In the
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European context, the promotion of democracy is always linked with the establishment of the rule of law and the protection of human rights. Recently, a European link between the rule of law, democracy, and peace was found in the EU notion of structural stability, which includes an assessment of the root causes of conflict and incorporates the rule of law, sustainable development, human rights, viable political structures, healthy environmental and social conditions, and the capacity to manage a change to democracy without resorting to conflict. This is what is meant by the European concept of preventive engagement. Is it possible to bridge this conceptual gap between the EU and the United States? The overtures made by the Obama Administration promise increased cooperation between the United States and the EU. There are no conceptual difficulties with this cooperation from a legal point of view because, as we have seen, there is no legal difference between European and American laws with respect to the meaning of the rule of law. What needs to be improved is the mutual understanding of how the rule of law is promoted. The United States would appear to emphasize the bottom-up phenomenon, the belief that a free, healthy, and vibrant civil society will always overthrow dictators and opt for a democratic government which will reduce the intervention of the state to the permissible limits imposed by a market economy. By contrast, the EU prefers institutionalized rule of law mechanisms in addition to freedom. This preference is the result of Europe's historical experience of conflict and war, and it has led the EU to concentrate on the state rather than on its society. The EU has a top-down appreciation where the emphasis is not placed on civil groups, political parties, and elections but on building up the necessary legal capacity for the state in order to enable it to ensure order through the rule of law and to establish an enduring democracy. [FN578] In my view, if the EU and the U.S. Strategies on the promotion of the rule of law and democracy in the world are to succeed, it will require elements of both the U.S. bottom-up emphasis on civil society and the EU top-down appreciation on the role of the state. Without the U.S. enthusiasm and optimism, the promotion of democracy will not become more than a timid attempt, yet without the European attention to the rule of law and institution-building, the triumph of democracy will only be a short-lived parenthesis. Therefore, EU and U.S. strategies on the rule of law need not become a source of transatlantic tension if both sides are willing to draw on the strength and experiences of each other. On the European side, a point of departure may be found in the suggestions of Robert Cooper for a new liberal imperialism [FN579] strategy which would distinguish between a post-modern zone of peace which includes Europe and a pre-modern zone of chaos (of failed states), and which would incite Europe to become also a military power in order to make achievable the objective of bringing the efficient and well-governed export of stability and liberty to the zone of chaos. [FN580] An additional step would draw from the practical assessment of how the United States and the EU use political dialogue, diplomatic measures, multilateral initiatives, economic and financial incentives, conditionalities and sanctions, aid programs, and military intervention. This assessment could be conducive to opening doors and ways of cooperation. I would like to comment briefly on this practice. With regard to political dialogue the case of Russia provides an illustration. The EU political dialogue with Russia is based on a partnership which includes the rule of law, respect for democracy, human rights, and the market economy and takes place twice a year. The political dialogue of the United States with Russia has been disappointing due to the high expectations created by the United States' strong rhetoric and the emphasis put on a particular person (the great leader approach), in contrast to the European preference for structures and institutions. Although the U.S. and EU efforts to coordinate political dialogues with third countries have intensified in recent years following the 2007 U.S.-EU summit declaration (e.g., in central Asia), this effort has not completely succeeded due to an alleged U.S. benevolence with regard to regimes that cooperate on counter-terrorism (e.g., Pakistan, Belarus). With regard to multilateral initiatives where the EU and the United States have collaborated successfully on establishing priorities for the UN Human Rights Council, they have also co-sponsored resolutions adopted by the UN 3rd Committee on Belarus, Burma, Iran, and North Korea; they have worked together in the Peace-Building Commission; they have together managed to establish the UN Democracy Fund that provides grants to pro-democracy civil organizations in the world; they have caused the G-8 to adopt the Broader Middle-East and North Africa Initiative (MENA), which is aimed at fostering economic and political liberalization in Arab and non-Arab Muslim
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countries. [FN581] Also, at present, EU and U.S. cooperation on multilateral initiatives is increasing. With regard to incentives, conditionalities, and sanctions, the United States is seen as more capable of providing quick responses to disruptions in countries pursuing democratic transitions. However, this is at the risk of sometimes being perceived as taking unilateral action. [FN582] The EU, on the other hand is slower, pursuing a long-term strategy based on persuasion and consent as well as the encouragement of multilateral responses (UN sanctions). But the EU and the United States have sometimes cooperated on joint measures and sanctions (Belarus). Without doubt the most controversial question is the place that the use of force occupies in the EU and U.S. strategies. In the view of the EU, neither democracy nor the rule of law can be imposed. They have to be built from within, with a preference for civilian coercive measures over military involvement, the latter only allowed in pre-crisis situations, as part of a comprehensive conflict prevention strategy. [FN583] By contrast, the United States of the past Bush Administration has been perceived as using the promotion of the rule of law and democracy as a repackaged commitment to the unilateral use of force as well as a justification for war, [FN584] which has led to a damaging breakdown in the solidarity required for transatlantic cooperation. [FN585] Aid programs purport to foster a democratic opening in a non-democratic country or to further a democratic transition in a country that has experienced a democratic opening. [FN586] The EU has been using an impressive panoply of instruments in this regard (European Neighbourhood and Partnership Instrument, pre-accession instruments, stability instruments, human rights instruments in the form of TACIS, PHARE, SAP, CARDS, and MEDA programs). It has been suggested that the EU concentrates on local ownership while the United States often supports high-profile initiatives that are sometimes insensitive to local conditions and that use replica features of American democracy. [FN587] However, the recently adopted U.S. Guiding Principles for Stabilization and Reconstruction offer ample space for cooperation between the United States and the EU. [FN588] Finally, both the EU and the United States have set up mechanisms to coordinate their respective aid programs-Europe Aid Cooperation Office in the case of the EU, USAID in the case of the United States-and there is a promising possibility of coordination in electoral assistance even though the EU has so far preferred to carry out its electoral assistance missions independently. Both the United States, the EU, and its Member States have a varied number of NGOs active in first-in fundings for the promotion of the rule of law and democracy in the world. Although the U.S. national endowment for democracy, the U.S. World Movement for Democracy, several German foundations (Heinrich-B ll Stiftung, KonradAdenauer Stiftung, etc.) and the British Westminster Foundations belong to different political persuasions, there is also ample room for a more fruitful cooperation with each other. Finally, the ratification of the Lisbon Treaty has created new EU institutions, such as the European Council with its permanent President, [FN589] a reinforced High Representative/Chair of the Foreign Affairs Council of the EU, and the European External Action Service (EEAS). All of these institutions can be conducive to greater European cooperation in improved U.S.-EU discussions. These innovations may also facilitate more direct links with the United States. In particular, the EEAS may also allow for greater EU-U.S. cooperation on assessments of emerging conflicts and the development of joint strategies. With the opportunity afforded by the fifteenth anniversary of the New Transatlantic Agenda in mid-2010, the EU and United States ought to shape a new cooperative agenda with a primary focus on conflict prevention, democracy and the rule of law which would allow their respective capacities for comprehensive stabilization and reconstruction missions to become interoperable and mutually supportive in our globalized world. Epilogue: A Universal Definition of the Rule of Law? The rule of law distinguishes European and American civilizations from those of other cultures. In the European and American historical experience, the rule of law has divorced social conflicts from force, emotions, interests, and prejudices which, contrary to accusations made herein, have more frequently produced liberating rather than repress-
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ive results. Do the traits of the European and American rule of law outlined in these pages have a chance of becoming part of a future planetary legal culture? It is encouraging to note that the international community and, in particular, most non-Western nations, have in fact opted in favor of human rights conventions and in particular of the Universal Declaration of Human Rights (1948) whose Preamble Paragraph 3 (it is worth repeating) states that it is essential, if man is not to be compelled to have recourse as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law. Thereby, the international community has opted for the basic inventory of individual and social rights, of human dignity, personal freedom, protection against arbitrariness, active political rights, freedom of voting, equality before the law, and the responsibility of society for the social and economic conditions of its members. As we have seen, the realization of these postulates cannot succeed unless these rights are safeguarded by means of predictable legality and procedures enforced by independent courts. There are good reasons for hoping that the fundamental decision of these nations is more than lip service before international organizations by whatever politicians happen to be in power. This implies that any universal definition of the rule of law will have to incorporate at least the following four principles: (i) the principle that power may not be exercised arbitrarily, (this principle implies a rejection of the rule by man and requires that laws should be prospective, accessible and clear); (ii) the principle of supremacy of the law, which distinguishes the rule of law from the rule by law and requires acceptance of the principle of separation of powers, and means that the law applies to all including the sovereign and that the law is applied to specific cases by independent judicial institutions; (iii) the principle that law must apply to all persons equally without discrimination (this requires that the law should be of general application and capable of being obeyed); and (iv) the principle of respect for universal human rights as laid down in those international instruments and conventions accepted by the international community.
[FNa1]. Director, Legal Service, Council of the European Union, Professor of Law, Free University Brussels (VUB), Doctor of Laws (Spain), PhD (Cantab). The opinions expressed and the approach taken in this paper are personal to the author and in no way do they reflect the position of or engage the Legal Service of the Council or the Council itself. [FN1]. Francis G. Jacobs, The Sovereignty of Law: The European Way 7 (2007). [FN2]. T. Bingham, The Rule of Law 3 et seq. (Allen Lane Penguin 2010). See also the three-volume work by S. Holovaty, The Rule of Law (Kyiv, Phoenix Publishing House 2006); Brian Z. Tamanaha, The Rule of Law for Everyone?, 55 Current Legal Probs. 97 (2002). [FN3]. Jeffery Jowell, The Rule of Law and Its Underlying Values, in The Changing Constitution (J. Jowell & D. Oliver eds., Oxford Univ. Press 7th ed. 2011). See also Jeffery Jowell, The Rule of Law Today, in The Changing Constitution 57 (J. Jowell & D. Oliver eds., Oxford Univ. Press 6th ed. 2007). [FN4]. Jacobs, supra note 1. [FN5]. See Report on the Rule of Law adopted by the Venice Commission at its 86th plenary session (25-26 Mar. 2011), Council of Europe Doc. CDL-AD (2011) 003, Study No. 512, at 10 et seq. See Simon Chesterman, Rule of Law (2007), in Max Planck Encyclopedia of Public International Law (2010), available at http://www.mpepil.com. [FN6]. Pietro Costa, The Rule of Law: A Historical Introduction, in The Rule of Law: History, Theory, and Criticism 73, 75 (Pietro Costa & Danilo Zolo eds., 2007) [hereinafter The Rule of Law]. [FN7]. Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 7 (Cambridge Univ. Press 2004). [FN8]. Plato, The Laws 174 (Trevor J. Saunders trans., London, Penguin 1970) (355-347 B.C.).
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[FN9]. Aristotle, Politics bk. iii, at 78 (Steven Everson ed., Cambridge Univ. Press 1988). [FN10]. See Tamanaha, supra note 7, at 9. [FN11]. See generally Plato, supra note 8; Aristotle, supra note 9; Fred D. Miller, The Rule of Law in Ancient Greek Thought, in The Rule of Law in Comparative Perspective 11, 11 (Mortimer, Sellers & Tadeusz eds., 2010) [hereinafter Comparative Perspective]. [FN12]. Aristotle, Nicomachean Ethics 117 (Terence Irwin trans., Hackett Publ'g Co. 1985). [FN13]. Aristotle, supra note 9, at 68. [FN14]. Id. [FN15]. Plato, quoted in John Walter Jones, The Law and Legal Theory of the Greeks 7 (Oxford, Clarendon Press 1956). [FN16]. Aristotle, supra note 9, at 76. [FN17]. Aristotle, Politics bk. iv, at 89 (Steven Everson ed., Cambridge Univ. Press 1988). [FN18]. Cicero, The Republic bk. ii, at 50, in The Republic and The Laws (Niall Rudd trans., Oxford Univ. Press 1998). [FN19]. Cicero, The Laws bk. iii, at 150, in The Republic and The Laws (Niall Rudd trans., Oxford Univ. Press 1998). [FN20]. Tamanaha, supra note 7, at 11. [FN21]. Peter Stein, Roman Law in European History 59 (Cambridge Univ. Press 1999). [FN22]. Brian Tierney, The Prince is Not Bound by the Laws. Accursius and the Origins of the Modern State, 5 Comp. Stud. Soc'y & Hist. 378, 392 (1963). [FN23]. Digest 1.4.1 and Digest 1.3.1, cited in Stein, supra note 21, at 59. [FN24]. R.C. van Caenegem, Legal History: A European Perspective 122-23 (1991). [FN25]. 1 Henrici De Bracton, De Legibus Et Consuetudinibus Angliae 38 (Sir Travers Twiss ed., W.S. Hein 1990) (1878) (on laws and customs of England); Frederic William Maitland, The Constitutional History of England 100-01 (Cambridge Univ. Press 1963) (1908). [FN26]. Tierney, supra note 22, at 378-400. [FN27]. G. Rebuffa, Jean Bodin e il Princeps legibus solutus, in Materiali per una storia della cultura giuridica 91-123 (G. Tarello ed., 1972); Julian H. Franklin, Jean Bodin and the Rise of Absolutist Theory (1973); Francois Hotman, Franco-Gallia or an Account of the Ancient Free State of France (2007), quoted in van Caenegem, supra note 24, at 123. [FN28]. J. Hilaire, la construction de l'Etat de droit 356 (Dalloz 2011) (study based on the judicial archives of the medieval France); J.P. Levy, La hierarchie des preuves dans le droit savant du Moyen-Age depuis la Renaissance du droit romain jusqu'a la fin du XIV me si cle 57 (Paris, Sirey 1939). [FN29]. Van Caenegem, supra note 24, at 146-47 and 14-16 (describing town charters which stipulated that in crim-
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inal cases the relevant article must be read out to make sure that the law is duly applied). [FN30]. Hartmut Hoffmann, Gottesfriede und Treuga Dei, Schriften der Monumenta Germaniae Historica 20 (Stuttgart 1964). [FN31]. Van Caenegem, supra note 24, at 147. [FN32]. J. C. Holt, Magna Carta 242-68 (Cambridge Univ. Press 1992) (1965). [FN33]. Robert S. Summers, A Formal Theory of the Rule of Law, 6 Ratio Juris 127 (1993). See, e.g., S. Rutherford, Lex, Rex, The Law and the Prince (1644) (ed. 2002) where he supports the idea of a limited monarchy. [FN34]. Thomas Hobbes, Leviathan 176-79, 250 (J.C.A. Gaskin ed., Oxford Univ. Press 1996) (1651). [FN35]. John Locke, Second Treatise of Government 46-51 (C.B. Macpherson ed., Hackett 1980) (1690). [FN36]. Baron de Montesquieu, The Spirit of Laws bk. xi, at 202 (David Wallace Carrithers ed., Univ. of Cal. Press 1977) (1748). [FN37]. See Unanimous Declaration of the Thirteen United States of America, 1 Stat. 1 (1776). For a study, see D. Armitage, The Declaration of Independence: A Global History (2007). [FN38]. Mass. Const. pt. 1, art. XXX, reprinted in The Founders' Constitution: Fundamental Documents, vol. I, ch. 1, doc. 6, at 13-14 (Philip B. Kurland & Ralph Lerner eds., Liberty Fund, Inc. 2000). [FN39]. S. Rep. No. 108-17 (2004). [FN40]. Declaration of the Rights of Man and the Citizen, reprinted in The Columbia Encyclopedia (6th ed. 2008). [FN41]. U.S. Const. amends. I-X. See The Bill of Rights and the States (Patrick T. Conley & John P. Kaminski eds., 1992). [FN42]. The definition of lawful state by Kant exerted a considerable influence on the liberal theories of constitutional law which developed in Germany in the first half of the nineteenth century. See M. Brocker, Kant ber Rechtsstaat und Demokratie (VS Verlar 2006); Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany 36-37 (2d ed. 1997) (1989). For instance, for an account of the difference in origins and concept between Rechtsstaat, Etat de droit and Rule of Law, see M. Loughlin, Foundations of Public Law ch. 11, 312-37 (Oxford Univ. Press 2010). [FN43]. J.W. Placidus, Litteratur der Staatslehre. Ein Versuch (1798). [FN44]. Robert von Mohl, Die Polizeiwissenschaft nach den Grunds tzen der Rechtstaates 8 (T bingen, Laupp 1844). Robert von Mohl opposes the suggestions made by F.J. Stahl that Rechsstaat simply refers to a state acting in a legal form and purporting to exactly determine and unquestionably establish the lines and boundaries of its actions as well as the free ambits of its citizens in accordance with the law (in der Weise des Rechts). Friedrich Julius Stahl, Die Philosophie des Rechts, II 195-96 (Tubingen 1878, Hildesheim-Olms 1963); see Costa, supra note 6, at 90-91. See K. Sobota, Das Prinzip Rechtsstaat 306 et seq. (M. Siebeck 1977). [FN45]. R. von Jhering, Der Zweck im Recht [Law as a Means to an End] (Goldbach, Keip 1997) (1877). [FN46]. G. Jellinek, Allgemeine Staatslehre (1919). [FN47]. C. Schmitt, Legalit t und Legitimit t, in Verfassungs rechtliche Aufs tze aus dem jahren 1924-1954, at 264,
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276-77, 279 (J. Seitzer trans., 2004) (1932). [FN48]. G. Jellinek, System der subjectiven ffentlichen Rechts 95-97, 102-03 (1905), discussed in Gustavo Gozzi, Rechtsstaat and Individual Rights in German Constitutional History in The Rule of Law, supra note 6, at 237, 248-49. [FN49]. See Otto Mayer, Deutsches Verwaltungsrecht (1895), quoted in Laurent Pech, The Rule of Law in France, in Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the United States 76, 80 (Randall Peerenboom ed., 2004) [hereinafter Asian Discourses of Rule of Law]. [FN50]. Letter addressed by Bismarck to Minister van Gossler on 25 November 1883, in L. Henschling, Etat de Droit, Rechtsstaat, Rule of Law 6 (2002). [FN51]. G. P ttner, Vertrauensschutz im Verwaltungsrecht, in Ver ffentlichungen der Vereinigung der Deutschen Staatsrechtlehrer vol. 203 (1974). [FN52]. C. Schmitt, Nationalsozialismus und Rechtstaat, in Juristische Wochenschrift 716 (1934). [FN53]. There was a federal Rechtsstaat, a corporativist Rechtstaat, a bourgeois Rechtsstaat, a Rechtsstaat based on natural law, a Rechtsstaat based on the law of reason so that each one chooses the Rechtsstaat to qualify the political regime that each one favours. Recht aber soll vorz glich heissen, was ich und meine Gervattern preisen. See C. Schmitt, Legalit t und Legitimit t 18 (Berlin, Humblot 5th ed. 1993). [FN54]. C. Schmitt, Was bedeutet der streit um de Rechtstaat? In Zeitschrift fr die gesamte Staatswissenschaft 10 (1935). [FN55]. O. Koellreutter, Deutsches Verfassungsrecht Ein Grundriss 12 (Gunther & D rmhaupt 3d ed. 1938). [FN56]. O. Mayer, Deutsches Verwaltungsrecht 61 (Dunker & Humblot 1st ed. 1985). [FN57]. H. Kelsen, Hauptproleme der Staatsrechtslehre (1984); H. Kelsen, Staat und Recht, in Soziologische Hefte 18-37 (1922); H. Kelsen, Rechtsstaat und Staatsrecht 36 (1913); H. Kelsen, La giustizia costituzionale 199 (1981). [FN58]. R.C. Van Caenegem, The Rechtstaat in Historical Perspective, in Legal History: A European Perspective 185 (1991); K.A. Schaditschneider, Prinzipien des Rechsstaates (Duncker & Humblot GmbH 2006). [FN59]. Philip Kunig, Das Rechtstaatsprinzip: berlegungen zu seiner Bedeutung fr das Verfassungsrecht der Bundesrepublik Deutschland (1986). [FN60]. Hans Kelsen, Reine Rechtslehre 314 (2d ed. Wien 1992) (1960). In English-the book is Pure Theory of Law. [FN61]. Case 294/83, Parti ecologique Les Verts v. Parlement, 1986 E.C.R. 1339. [FN62]. C.J. Rideau, De la Communaute de droit a l'Union de droit (2000). [FN63]. Romanian Constitution of 1991 art. 1, 1, art. 37, 2; Bulgarian Constitution of 1991 pmbl., art. 4, 1; Czech Constitution of 1992 pmbl., arts. 1-2; Slovak Constitution of 1992 arts. 1, 134, 4; Lithuanian Constitution of 1992 art. 7; Estonian Constitution of 1992 art. 10; Hungarian Constitution of 1999 pmbl. and art. 2, 1; the New Fundamental Law of Hungary of 2011, at art. B, 1; Russian Constitution of 1993, at art. 1; Polish Constitution of 1997, at art. 2. See Notes on Constitutional Courts and the Rule of Law, 12 Am. U. J. Int'l L. & Pol'y 87 (1997) (a study of the Constitutional review in Russia and Eastern Europe). [FN64]. See Russell H. Fitzgibbon, The Process of Constitution Making in Latin America, 3 Comp. Stud. Soc'y &
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Hist. 1 (1960). [FN65]. See generally Asian Discourses of Rule of Law, supra note 49. [FN66]. Marc Loiselle, Le Concept d'Etat de droit dans la doctrine juridique fran aise (2000) (unpublished Ph.D. dissertation, Universite de Paris II) (on file at Universite de Cergy-Pontoise). [FN67]. Montesquieu, supra note 36, at 209. [FN68]. See Pech, supra note 49, at 81 (describing the distinction between Etat and Republique). [FN69]. E. Sieyes, Qu'est-ce-que c'est le Tiers Etat? (Blondel trans. & Finer ed., Frederick A. Praeger, Inc. 1964) (1789). [FN70]. Jean-Jacques Rousseau, The Social Contract or Principles of Political Right 61 (Charles M. Sherover trans., The New American Library 1974) (1762). [FN71]. Montesquieu, supra note 36, at 199. [FN72]. Daniel Mockle, L'etat de droit et la theorie de la rule of law, 35 Cahiers de droit 823 (1994) (Can.). [FN73]. See Pech, supra note 49, at 81 (explaining that between 1789 and 1959, in addition to 16 constitutions, France had 21 semi-constitutional governments and de facto regimes). [FN74]. Constitution of 3 September 1791; Constitution of 24 June 1793; Constitution of 26 August 1795; Constitution of 13 December 1799; and Constitution of 18 May 1804. [FN75]. Charter of 4 June 1814; Charter of 14 August 1830; Constitution of 4 November 1848; Constitution of 14 January 1852; Constitutional Laws of 24-25 February and 16 July 1875. [FN76]. Pech, supra note 49, at 81. [FN77]. Alexis de Tocqueville, L'Ancien regime et la revolution (Gerald Bevin trans., Penguin Classics 2008) (1856). See also Francois Furet & Mona Ozouf, A Critical Dictionary of the French Revolution (Arthur Goldhammer trans., Belknap Press of Harvard Univ. 1989) (1988). [FN78]. Martin A. Rogoff, A Comparison of Constitutionalism in France and the United States, 49 Me. L. Rev. 23 (1997). [FN79]. Pech, supra note 49, at 82; Mauro Cappelletti, The Judicial Process in Comparative Perspective 190-98 (1989). [FN80]. M.J. Redor, De l'Etat legal a l'Etat de droit, L'evolution des conceptions de la doctrine publiciste fran aise, 1879-1914 (Economica 1992); 1 Raymond Carre de Malberg, Contribution a la theorie generale de l'Etat 140 (1920-22). [FN81]. This distinction was proposed by the prestigious E. Siey s in his essay Qu'est-ce que le tiers etat? Siey s, supra note 69. The English version entitled What is the third state? may be found in Siey s, Political Writings 35, 135-40 (Michael Sonenscher ed., Hackett 2003). [FN82]. The Jacobin Club was the most famous political meeting room of the French Revolution; it was so-called after the Dominican convent were the members of the club met in Rue St. Jacques (in Latin: Jacobus) in Paris.
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[FN83]. Malberg, supra note 80, at 488-92; Alain Laqui ze, Etat de Droit and National Sovereignty in France, in The Rule of Law, supra note 6, at 261, 265-66. [FN84]. Malberg, supra note 80, at 493-500; and Costa, supra note 6, at 111. [FN85]. Luc Heuschling, Etat de droit, Rechtsstaat, Rule of Law n.392 (2002). [FN86]. Van Caenegem, supra note 58, at 185-86 (explaining that the expression is found, inter alia, in a paper by De Visscher, published in 1946, and in the writings of Ellul in 1956 and Duverger and Vedel, both in 1973 and indicating that in post-war dictionaries the term can be found in the second edition of Debbasch and Daudet's Lexique of 1978 and that it is striking that the index of Prelot's Manuel contains droit de l'Etat, but not Etat de droit). [FN87]. L.E. Marcel, Dictionnaire de culture religieuse et catechistique (1938). [FN88]. Quoted by Jacques Chevallier, L'Etat de droit 128 (2d ed. 1994). [FN89]. See Alec Stone, The Birth of Judicial Politics in France: The Constitutional Council in Comparative Perspective (1992); F.L. Morton, Judicial Review in France: A Comparative Analysis, 36 Am. J. Comp. L. 89 (1988). [FN90]. Laqui ze, supra note 83, at 261; J. Chevallier, L'Etat de droit, Montchrestien, 2003). [FN91]. Louis Favoreu, Legalite et constitutionalite, in 3 Les Cahiers du Conseil Constitutionnel 33 (1997); Louis Favoreu et al., Droit constitutionnel 116-18 (4th ed. 2001). [FN92]. A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law 99 (14th ed. 2007). [FN93]. Id. at 95; see also Alexander Passerin d'Entr ves, The Notion of the State: An Introduction to Political Theory 86 (1967); Maitland, supra note 25, at 100-04. For the rule of law in 16th century England, see G.R. Elton, Studies in Tudor and Stuart Politics and Government 260-84 (1974). [FN94]. 1 Edward Coke, The Second Part of the Institutes of the Laws of England 55 (R.H. Helmholz & Bernard D. Reams, Jr. eds., William S. Hein Co. 1986) (1642). [FN95]. The Court of Star Chamber was so named for the star pattern on the ceiling of the room where its meetings were held at Westminster Palace. It was established in 1487 as a judicial body which evolved from the medieval King's Council. It dealt inter alia with government administration and public corruption. The case of Entick v. Carrington constitutes a good illustration. In that case, two King's messengers were sued for having unlawfully broken and entered the plaintiff's house and seized his papers: the defendants relied on a warrant issued by the Secretary of State ordering them to search for Entick and bring him with his books and papers before the Secretary of State for examination. The Secretary of State claimed that the power to issue such warrants was essential to government, as being the only means of quieting clamours and sedition. Entick v. Carrington, (1765) 95 Eng. Rep. (K.B.) 807; 19 How. St. Tri. 1030, 1064. The court held that, in the absence of a statute or a judicial precedent upholding the legality of such a warrant, the practice was illegal. Lord Camden explained: What would the Parliament say, if the judges should take upon themselves to mould an unlawful power into a convenient authority, by new restrictions? That would be, not judgment, but legislation . . . . And with respect to the argument of State necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. Id. at 1067, 1073. This judicial decision stressed the value of personal liberty, and the necessity of protecting private property against official interference; it excelled in showing that the rule of law is the best form of protection against arbitrary action by the executive power and it still exercises considerable influence on judicial attitudes to the claims of government. See Bradley & Ewing, supra note 92, at 95. [FN96]. See Emilio Santoro, The Rule of Law and the Liberties of the English: The Interpretation of Albert Venn
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Dicey, in The Rule of Law, supra note 6, at 153, 153-58; see also E.P. Thompson, Whigs and Hunters: The Origin of the Black Act 258-69 (1st ed. 1975). [FN97]. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution 187 (10th ed. 1982) (1889). [FN98]. See H.W. Arndt, The Origins of Dicey's Concept of the Rule of Law, 31 Austl. L.J. 117 (1957). [FN99]. Id. [FN100]. Id. [FN101]. Dicey, supra note 97, at 202-03. [FN102]. Id. at 26-27; see also Santoro, supra note 96. [FN103]. F.A. Hayek, The Road to Serfdom xxi-xxv (50th Anniversary ed. 1994) (1944). [FN104]. See generally F.A. Hayek, The Constitution of Liberty (1960). [FN105]. Hayek, supra note 103, at 80. [FN106]. F.A. Hayek, The Political Ideal of the Rule of Law 34 (1955). For a critique, see Maria Chiara Pievatolo, Leoni's and Hayek's Critique of the Rule of Law in Continental Europe, in The Rule of Law, supra note 6, at 421, 421 (pointing out that the juxtaposition suggested by Hayek mirrors the classic opposition between a government of law and a government of man devised by Plato in his Statesman). [FN107]. Danilo Zolo, The Rule of Law: A Critical Reappraisal, in The Rule of Law, supra note 6, at 9, 9. [FN108]. See A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law 105 (12th ed. 1997). [FN109]. See Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry (Greenwood Press Reprt. 1980) (1969). See also Kenneth Culp Davis et al., Discretionary Justice in Europe and America (1976). Cf. Committee on Administrative Tribunals and Enquiries, Report of the Franks Committee, 1957, Cmnd. 218, 29 (U.K.). [FN110]. U.S. Const. amend. XIV 1. This provision has been a fertile source of constitutional challenges to discriminatory state legislation in Canada. See Geoffrey Marshall, Constitutional Theory (1980); P.G. Polyviou, The Equal Protection of the Laws (1980). [FN111]. See K. Tuori, The Rule of Law and the Rechtsstaat, in Ratio and Voluritas, Chap. 7, 8 et seq. (Ashgate 2011); Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act, c.11, 15 (U.K.); Grundgesetz fr die Bundersrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBl. 1, art. 3 (Ger.); India Const. art. 14. [FN112]. See L. Neville Brown & John S. Bell, French Administrative Law (Clarendon Press, 5th ed. 1998) (1967). [FN113]. Dicey, supra note 97, at 199 (for practical purposes worth a hundred constitutional articles guaranteeing individual liberty). [FN114]. See E.C.S. Wade, G. Godfrey Phillips & A.W. Bradley, Constitutional and Administrative Law 102 (9th ed. 1977). It has been suggested that currently, the UK rule of law expressed three related but separate ideas: First the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and strife. In this sense, the rule of law is a philosophical view of society that is linked with basic democratic notions. Secondly, the rule of law expresses a legal doctrine of fundamental importance, namely that government
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must be conducted according to law, and that in disputed cases what the law requires is declared by judicial decision. Thirdly, the rule of law should provide in matters both of substance (for example, whether the government should have power to detain citizens without trial) and of procedure (for example, the presumption of innocence in criminal trials, and the independence of the judiciary). A.W. Bradley & K.D. Ewing, supra note 92. [FN115]. The Royal Prerogative is the body of customary authority, privilege and immunity belonging to the Sovereign. The Prerogative covers several important powers in the field of the Constitution, the Administration, the conduct of foreign affairs, defence and national security which by convention are not in many cases exercised by the monarch herself but mostly by the government. [FN116]. See generally N.W. Barber, The Rechtsstaat and the Rule of Law, 53 U. Toronto L.J. 443 (2003). [FN117]. Jacobs, supra note 1, at 7. [FN118]. Id. at 25-38. [FN119]. Bulmer v. Bollinger, [1974] Ch. 401 at 425 (Eng.); see also Jacobs, supra note 1, at 12. [FN120]. This evolution meets some of the concerns expressed by Lord Bingham in Lord Bingham, The Rule of Law, 66 Cambridge L.J. 67 (2007). See Lord T. Bingham, The Rule of Law 8 et seq. (Allen Lane Penguin 2010). [FN121]. Zolo, supra note 107, at 19. [FN122]. N. Luhmann, Gesellschaftliche und politische Bedingungen des Rechtsstaates, in Studien ber Recht und Verwaltung 53-65 (K ln 1967). [FN123]. Quoted in Laurent Pech, The Rule of Law as a Constitutional Principle of the European Union; Jean Monnet Working Paper Series No. 4/2009, 20 (2009), available at http://ssrn.com/abstract=1463242. [FN124]. See, e.g., R. Bin, Lo Stato di diritto (I'l Mulino ed., 2004); Armin von Bogdandy, Founding Principles, in 8 Principles of European Constitutional Law 3, 28 (Armin von Bogdandy & J rgen Bas eds., 2006). For a criticism of a perceived lack of uniform employment of the concept of the rule of law in EU institutions and policies, see E. Wennerstr m, The Rule of Law and the European Union 348 (Iuitus Frlag 2007). [FN125]. Pech, supra note 123, at 1. [FN126]. Case 294/83, Parti ecologiste Les Verts v. Parliament, 1986 E.C.R. 1339, 1365. [FN127]. Opinion 1/91, Opinion Pursuant to Article 228 of the EEC Treaty, 1991 E.C.R. 6079, 6102. It is to be noted that in the Lisbon Treaty Ratification Judgment of 30 June 2009, the German Constitutional Court (Bundesverfassungsgericht) appears to indicate that further steps towards European unity may require an amendment of some of the fundamental provisions of the German Fundamental Law. See Helmut Phillip Aust, German Constitutional Law Cases 2007-2009, 16 Eur. Public Law, Mar. 2010, at 17, 36; Jacques Ziller, The German Constitutional Court's Friendliness towards European Law: On the Judgment of Bundesverfassungsgericht over the Ratification of the Treaty of Lisbon, Eur. Public Law, Mar. 2010, at 53 (suggesting that the German Constitutional Court appears to indicate that further steps towards European unity may require an amendment of some of the fundamental provisions of the German Fundamental Law). [FN128]. M. Zuleeg, Die Europ ische Gemeinschaft als Rechtsgemeinschaft, Neue juristische Wochenschrift 546 (1994) (quoting Walter Hallstein, Die Europ ische Gemeinschaft 51 (Dusseldorf: Econ-Verlag 1979). [FN129]. Jacobs, supra note 1, at 35.
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[FN130]. See Case C-131/03, R.J. Reynolds Tobacco Holdings, Inc. v. Comm'n, 2006 E.C.R. I-7795, 7837 (quoting and later affirming a proposition from the Court of First Instance in the judgment on appeal). [FN131]. Case C-496/99, Comm'n v. CAS Succhi di Frutta SpA, 2004 E.C.R. I-3801, 3870. On the several aspects of the impact of the Treaty of Lisbon, see W. Twining & D. Miers, How to Do Things with Rules (Law in Context) 315 et seq. (5th ed. Cambridge Univ. Press 2010). [FN132]. For an examination of the record of compliance of the Member States, see Phedon Nicolaides & AnneMarie Suren, The Rule of Law in the EU: What the Numbers Say, 2007 EIPAScope, No. 1, 33. [FN133]. Case C-2/88, Zwartveld, 1990 E.C.R. I-3365, 3372. [FN134]. Jacobs, supra note 1, at 36. [FN135]. Case C-229/05, Ocalan ex rel. Kurdistan Workers' Party v. Council, 2007 E.C.R. I-439, 508. [FN136]. See generally Koen Lenaerts, The Rule of Law and the Coherence of the Judicial System of the European Union, 44 Common Mkt. L. Rev. 1625, 1645-50 (Aug. 2007) (discussing the obligations placed on the national courts of Member States by European Union law). [FN137]. See Case 26/62, Van Gend & Loos v. Nederlandse administratie der belastingen, 1963 E.C.R. 1. [FN138]. Id. at 12. [FN139]. Jacobs, supra note 1, at 40. [FN140]. Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, 593. [FN141]. Jacobs, supra note 1, at 41. [FN142]. Case 9/70, Grad v. Finanzamt Traunstein, 1970 E.C.R. 826. [FN143]. Case 8/81, Becker v. Finanzamt M nster-Innenstadt, 1982 E.C.R. 53. [FN144]. Case 181/73, Haegeman v. Belgian State, 1974 E.C.R. 449. [FN145]. See Bundesverwaltungsgericht [BVerwG] [Federal Constitutional Court] The Solange I [BverfGE] 37, 271; Bundesverwaltungsgericht [BVerwG] [Federal Constitutional Court] The Solange II [BverfGE] 73, 339; Bundesverwaltungsgericht [BVerwG] [Federal Constitutional Court] The Maastricht Ratification Judgment [BverfGE] 1993, 89; Bundesverwaltungsgericht [BVerwG] [Federal Constitutional Court] The Lisbon Treaty Ratification Judgment [2 BvE] 2/08. [FN146]. See Frontini v. Ministerio delle Finance, case 183, Corte Costituzionale (Italy) (Racc. uff. corte cost. 1973); (1974) CMLR 372. [FN147]. See Maastricht Ratification Judgment (UfR 1998). [FN148]. Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr und Vorratsstelle fur Getreide und Futtermittel, 1970 E.C.R. 1125, 1134. [FN149]. See Regina v. Sec'y of State for Transp. ex parte Factortame Ltd., [1991] 1 A.C. 603 (H.L.). In particular with regard to the doctrine of parliamentary sovereignty of the UK (according to which no Parliament can bind its successor). The primacy of Union law in relation to a future Act of Parliament was considered in the UK courts in
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the Factortame cases (see Regina v. Sec'y of State for Emp't ex parte Equal Opportunity Comm'n, [1995] 1 A.C. 1 (H.L.)), where the House of Lords held, as the court of final appeal and after reference to the Court of Justice of the European Union, that the law of the European Union prevailed over the act of Parliament. Thus where an act of Parliament of the UK is clearly incompatible with Union law, the British court will disapply the provisions of the Act without a reference to the Court of Justice of the European Union. See Jacobs, supra note 1, at 42. [FN150]. Joined Cases C-402/05 and C-415/05, Kadi v. Council, 2008 E.C.R. I-6351, 6490. [FN151]. Id. at 6491. [FN152]. Case C-50/00, Union de Pequenos Agricultores v. Council, 2002 E.C.R. I-6677, para. 38. [FN153]. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Communities, Dec. 13, 2007, 2007 O.J. (C 306) 1. [FN154]. See Case C-131/03, R.J. Reynolds Tobacco Holdings, Inc. v. Comm'n, 2006 E.C.R. I-7795, 7837 (quoting and later affirming a proposition from the Court of First Instance in the judgment on appeal). [FN155]. See Case 10/78, Belbouab v. Bundesknappschaft, 1978 E.C.R. 1915, 1924. [FN156]. See Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr und Vorratsstelle fur Getreide und Futtermittel, 1970 E.C.R. 1125, 1134. [FN157]. See Case C-521/06, Athinaiki Techniki AE v. Comm'n, 2008 E.C.R. I-5829, 5879; Henry G. Schermers & Denis F. Waelbroeck, Judicial Protection in the European Union 309-19 (6th ed. Kluwer Law Int'l 2001). [FN158]. See Case 138/79, SA Roquette Freres v. Council, 1980 E.C.R. 3333, 3360. [FN159]. See Case 248/84, Federal Republic of Germany v. Comm'n, 1987 E.C.R. 4013, 4042. [FN160]. Joined Cases 17 & 20/61, Kl ckner-Werke AG & Hoesch AG v. High Auth. of the European Coal and Steel Cmty., 1962 E.C.R. 325, 340. [FN161]. Joined Cases C-6/90 & C-9/90, Francovich and Others v. Italian Republic, 1991 E.C.R. I-5357, 5414. [FN162]. Joined Cases 6 & 11/69, Comm'n v. France, 1969 E.C.R. 523, 540. [FN163]. See Case 1/72, Frilli v. Belgium, 1972 E.C.R. 457. [FN164]. Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr und Vorratsstelle fr Getreide und Futtermittel, 1970 E.C.R. 1125, 1136. [FN165]. See Case 179/82, Lucchini Siderurgica SpA v. Comm'n, 1983 E.C.R. 3083. [FN166]. Cases 205-215/82, Deutsche Milchkontor GmbH v. Germany, 1983 E.C.R. 2633, 2668. [FN167]. See Case T-194/94, Carvel v. Council, 1995 E.C.R. II-2765. [FN168]. Id. [FN169]. Case 130/75, Prais v. Council, 1976 E.C.R. 1589, 1597-98. [FN170]. Joined Cases 117/76 & 16/77, Albert Ruckdeschel & Co. v. Hauptzollamt Hamburg-St. Annen, 1977 E.C.R. 1753, 1769.
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[FN171]. See Case 136/79, National Panasonic (UK) Ltd. v. Comm'n, 1980 E.C.R. 2033. [FN172]. Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung fr Branntwein, 1979 E.C.R. 649, 662. [FN173]. Joined Cases 266 & 267/87, The Queen v. Royal Pharm. Soc'y of Great Britain ex parte Ass'n of Pharm. Imps., 1989 E.C.R. I-1295, 1328. [FN174]. Rewe-Zentral, 1979 E.C.R. at 662. [FN175]. Id. [FN176]. See Joined Cases C-37/02 & C-38/02, Di Lenardo Adriano Srl & Dilexport Srl v. Ministero del Commercio con l'Estero, 2004 E.C.R. I-6911. [FN177]. See Case C-450/06, Varec SA v. Belgium, 2008 E.C.R. I-581. [FN178]. See Joined Cases C-154/04 & C-155/04, The Queen v. Sec'y of State for Health & Nat'l Assembly for Wales, 2005 E.C.R. I-6451; Case C-41/02, Comm'n v. Netherlands, 2004 E.C.R. I-11375. [FN179]. Takis Tridimas, General Principles of EU Law 5-7 (2d ed. 2006). [FN180]. See Regina v. Sec'y of State for Transp. ex parte Factortame Ltd., [1991] 1 A.C. 603 (H.L.). [FN181]. Jacobs, supra note 1, at 122 (2007). Indeed, the European Union has expanded ever since 1973, when the original Union of six became a Union of nine (first enlargement), then a Union of twelve (second and third enlargements of 1981 and 1986), then a Union of fifteen (fourth enlargement of 1995), and now a Union of twenty-seven (fifth and sixth enlargements of 2004 and 2007). Id. It should be noted that following the entry into force of the Treaty of Lisbon, actually even before then ever since the adoption of the Copenhagen criteria, respect for the rule of law constitutes a condition for accession to the Union (The Copenhagen criteria are requirements defining whether a European state is eligible to join the European Union. They include geographic, political (democracy, rule of law, human rights and respect for and protection of minorities), economic criteria (free market economy) and legislative alignment to the law of the Union. They were adopted by the European Council of Copenhagen in 1993). Erik O. Wennerstr m, The Rule of Law and the European Union 35 (2007). Indeed, enlargement of the European Union cannot take place unless the newcomers comply with the rule of law as one of the fundamental European values laid down in Article 2 of the ( Lisbon) TEU: Article 49 of the ( Lisbon) TEU provides that Any European state which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community, art. 49, Dec. 13, 2007, 2007 O.J. (C 306) 1. [FN182]. Jacobs, supra note 1, at 130. The Union has been seen as a model, the progressive integration of economies in other regions of the world being a salient feature in recent years: the North American Free Trade Agreement (NAFTA), the Association of Southeast Asian Nations (ASEAN), the Southern American Common Market (MERCOSUR), the Andean Pact, and several African groupings including Southern Africa (SADEC), East and Southern Africa (COMESA), and West Africa (ECOWAS), together with the attempt which has now been made to form a continent-wide African Union directly imitating the European Union, as well as the Commonwealth of Independent States (comprising the eleven former Soviet Republics of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Ukraine and Uzbekistan, with Turkmenistan being an associate member), and finally the Conference on Security and Cooperation in Europe which adopted the 1990 Paris Charter for a new Europe which announced a new area of democracy, peace and unity' founded upon human rights, democracy and the rule of law. Id. [FN183]. In the preamble to the Statute of the Council of Europe, May 5, 1949, E.T.S. 1, the contracting states
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reaffirm[ed] their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy. [FN184]. Convention for the Protection of Human Rights and Fundamental Freedoms arts. 2-6, 9, 11, Nov. 4, 1950, E.T.S. 5. Further rights were added in subsequent protocols to the Convention including property rights and the right to education. The first protocol also requires states to organise free elections, thus establishing a direct link between human rights and democracy. See id. Protocol No. 1 arts. 1-3, Mar. 20, 1952, E.T.S. 9. [FN185]. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Communities art. 49, Dec. 13, 2007, 2007 O.J. (C 306) 1. It should be noted that ever since the adoption of the Copenhagen Criteria, respect for the rule of law has constituted a condition for accession to the European Union. The Copenhagen Criteria are requirements defining whether a state is eligible to join the European Union. They include geographic, political (democracy, rule of law, human rights, and respect for and protection of minorities), economic (free market economy), and legislative alignment to the law of the European Union. They were adopted by the European Council of Copenhagen in 1993. See Presidency Conclusions, Copenhagen European Council (June 21-22, 1993). [FN186]. For a summary of the effects of the Convention in UK law as a result of the UK Human Rights Acts 1998, see Jacobs, supra note 1, at 23-34. [FN187]. See Report on the Rule of Law Venice Communication Council of Europe, CDL-AD 003, para. 59, at 12 (2011). See also Rule of Law Inventory Report, Hague Institute for the Internationalization of Law Discussion Paper for the High Level Expert Meeting on the Rule of Law of 20 Apr. 2007, at 16. Jacobs, supra note 1, at 22-23. [FN188]. Id. at 14. [FN189]. Golder v. United Kingdom, 1 Eur. H.R. Rep. 524, para. 34 (1975); id. [FN190]. Case 222/86, Union Nationale des Entra neurs et Cadres Techniques Professionnels du Football (UNECTEF) v. Heylens, 1987 E.C.R. 4097, 4117. [FN191]. Jacobs, supra note 1, at 14. [FN192]. For a detailed examination of this mutual beneficial influence and dialogue, see Ricardo Gosalbo-Bono, The Development of General Principles of Law at National and Community Level: Achieving a Balance, in Richterrecht und Rechtsfortbildung in der Europ ischen Rechstgemeinschaft 99 (2003); E. Carparro, Etat de droit et droits Europeens (L'harmattan 2005). [FN193]. Brunella Casalini, Popular Sovereignty, the Rule of Law, and the Rule of Judges in the United States, in The Rule of Law, supra note 6, at 201, 201. [FN194]. On the origins and intentions of the framers of the Constitution, see generally Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985); Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (1996). [FN195]. Jacob G. Hornberger, The Constitution and the Rule of Law, Freedom Daily, Aug. 1992, at 1, 2. For a general treatment of the subject see generally Ronald A. Cass, The Rule of Law in America 214 (John Hopkins Univ. Press 2003). [FN196]. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 137 (1803). [FN197]. R. Charlow, America's Constitutional Rule of Law, in Comparative Perspective, supra note 11, at 89, 89;
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George P. Fletcher, Basic Concepts of Legal Thought 13 (Oxford Univ. Press 1996). [FN198]. SolesBee v. Balkcom, 339 U.S. 9, 16 (1950). Due process is violated if a practice of rule offends some principle of justice so routed in the traditions and conscience of our people as to be ranked fundamental. Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). [FN199]. Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). [FN200]. William Sharp McKechnie, Magna Carta 375 (Burt Franklin 1914) (1905). [FN201]. English Liberty of Subject Act, 1354, 50 Edw. III, c.3. [FN202]. Coke, supra note 94, at 50. [FN203]. The 1776 Constitution of Maryland, for example, used the language of the English Magna Carta including the expression law of the land. In New York a statutory bill of rights was enacted in 1987 containing four different clauses relating to due process. Alexander Hamilton commented on the language of the bills of rights of New York that the words due process' have a precise technical import. Alexander Hamilton, Remarks on an Act for Regulating Elections, in 5 The Founders' Constitution 313, 313 (Philip B. Kurland & Ralph Lerner eds., Univ. of Chicago Press 1987). New York was the only state that asked Congress to enact the language relating to due process in the Constitution of the United States with the following proposal: no person ought to be taken in prison or disseized of his freehold, or be exiled or deprived of his privileges, Franchises, Life, Liberty or Property, but by due Process of Law. James Madison drafted his proposal for a clause on due process based on the New York proposal by cutting some language from it and inserting the word without which had not been proposed by New York. Congress then adopted the exact wording that Madison proposed aware that the due process clause would not be sufficient to protect guarantees of the right although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of consciences, come in question in that body (Congress) the invasion of them is resisted by able advocates, yet there Magna Carta does not contain anyone provision for the security of those rights, respecting which the people of America are most alarmed. Congress, Amendments to the Constitution, in 128 The Founders' Constitution 313, 313 (Philip B. Kurland & Ralph Lerner eds., Univ. of Chicago Press 1987); John V. Orth, Due Process of Law: A Brief History 30-31 (Univ. Press of Kansas 2003). [FN204]. Orth, supra note 203. [FN205]. Murray's Lessee v. Hoboken Land and Improvement Co., 59 U.S. 272, 276 (1856). [FN206]. Edward Samual Corwin, Liberty Against Government 59-115 (Louisiana State Univ. Press 1948). [FN207]. The 1820 agreement between the pro-slavery and the anti-slavery factions of Congress, involving the regulation of slavery in the Western territories. [FN208]. Scott v. Sanford, 60 U.S. 393, 450 (1857). [FN209]. Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 163-80 (Yale Univ. Press 1998). [FN210]. See Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 Stan. L. Rev. 5, 5-6 (1949); Howard Jay Graham, Our Declaratory Fourteenth Amendment, 7 Stan. L. Rev. 3, 3-39 (1954). For the evolution of the case-law, see Walter Walker v. Sauvinet, 92 U.S. 90 (1876); Spies v. Illinois, 123 U.S. 131 (1887). [FN211]. Felix Frankfurter, Memorandum on Incorporation of the Bill of Rights Into the Due Process Clause of the Fourteenth Amendment, 78 Harv. L. Rev. 746, 747-48 (1965).
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[FN212]. Twining v. New Jersey, 211 U.S. 78, 99 (1908). [FN213]. Gitlow v. New York, 268 U.S. 652, 666 (1925). [FN214]. NAACP v. Alabama, 357 U.S. 449, 460 (1958). [FN215]. Abington Sch. Dist. v. Schempp, 374 U.S. 203, 215 (1963). [FN216]. Roe v. Wade, 410 U.S. 113, 113 (1973). [FN217]. Malloy v. Hogan, 378 U.S. 1, 10-11 (1964). [FN218]. Malinski v. New York, 324 U.S. 401, 415 (1945). [FN219]. Williams v. Florida, 399 U.S. 78, 107 (1970). [FN220]. Williams v. Florida, 399 U.S. 78, 129-38 (1970). [FN221]. See Steven Breyer, Active Liberty: Interpreting Our Democratic Constitution 50 (Alfred A. Knopf 2005). [FN222]. Murray v. Hoboken Land, 59 U.S. 272, 277 (1855). On the power of the American judiciary see R. Fass, The Rule of Law in America 214 (Johns Hopkins Univ. Press 2003). [FN223]. Adarand Constructors v. Pena, 515 U.S. 200, 200-39 (1995). [FN224]. Sanford H. Kadish, Methodology and Criteria in Due Process Adjudication-A Survey and Criticism, 66 Yale L.J. 319, 319-63 (1957). [FN225]. See Jerry L. Mashaw, Due Processes of Governance: Terror, the Rule of Law, and Limits of Institutional Design, 22 Governance: An International Journal of Policy, Administration, and Institutions 353, 353-68 (2009). [FN226]. The movement of critical legal studies has attacked the idea of a rule of law openly stressing the ideological character of judicial deliberations. However, various contemporary approaches defend the idea of the rule of law through the formulation of theories of interpretation aimed at providing judicial decisions with objective foundations. The main theories are the following: those that identify the rule of law as the rule of rules (i.e., as a formal state under the law) in which judges respect the objective meaning of the text of the law and avoid interpreting the intention of the legislator (the rule of men) in order to avoid judicial arbitrariness (see Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175-88 (1989)); those that identify the rule of law with the objective principles of constitutional morality informing the constitution (see Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution 7-12 (1996)); and those that identify the rule of law with the commitment of the people to self-government and to the reformulation of fundamental rights (see Bruce Ackerman, We The People (1991); Bruce Ackerman, We the People: Transformations (1998)). See also Cass, supra note 195, at 72; Casalini, supra note 193, at 214-16. [FN227]. Wu Shu-chen, Chinese Legal Tradition and the European View of the Rule of Law, in The Rule of Law, supra note 6, at 615, 618. [FN228]. Randall Peerenboom, Competing Conceptions of Rule of Law in China, in Asian Discourses of Rule of Law, supra note 49, at 100, 111. [FN229]. See generally Randall Peerenboom, China's Long March Toward Rule of Law (2002). [FN230]. Article 90 of the Law on Legislation of the People's Republic of China lays down a procedure for constitu-
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tional review of legislation. LifaFa [Law on Legislation], 2000 Standing Comm. Nat'l People's Cong. Gaz. 112 (China). The law ensures political rights but these can be suspended by the National People's Congress. See id. art. 8. [FN231]. According to some authors, there is ample room for further improvement in China's future constitutional development. Ling Feng, Modern Constitutionalism in China, in The Rule of Law, supra note 6, at 633, 643. See also Yali Peng, Democracy and Chinese Political Discourses, 24 Modern China 408-44 (1998); Minxin Pei, Racing Against Time: Institutional Decay and Renewal in China, in China Briefing: The Contradictions of Change 11-49 (William A. Joseph ed., 1997); fazhi de lixiang yu xianshi 33 (Gong Xiangui ed., 1993); Su Li, Bianfi, Fazhi Jianshe Ji Gi Bentu Ziyuan, 41 Zhongwai Faxue 1 (1995) (emphasizing the native Chinese institutions (bentu ziyuan)). [FN232]. Carl F. Goodman, The Rule of Law in Japan: A Comparative Analysis (2008). [FN233]. Vitit Muntarbhorn, Rule of Law and Aspects of Human Rights in Thailand, in Asian Discourses of Rule of Law, supra note 49, at 340, 348. [FN234]. Id. [FN235]. See A. Ehr-Soon Tay, Asian Values and the Rule of Law, in The Rule of Law, supra note 6, at 565, 575-76. [FN236]. For a discussion and critique, see Eugene Kamenka & Alice Erh-Soon Tay, Beyond the French Revolution: Communist Socialism and the Concept of Law, 21 U. Toronto L.J. 109, 132-36 (1971). [FN237]. Laurence Lustgarten, Socialism and the Rule of Law, 15 J.L. Soc'y 25 (1988). See, e.g., Report by the International Commission of Jurists on Cuba and the Rule of Law (Geneva 1962). [FN238]. See Edward Mortimer, Faith and Power: The Politics of Islam 16 (1982). [FN239]. See generally Kilian B lz, Sharia Versus Secular Law, in Islam and the Rule of Law 121 (Helmut Reifeld & Birgit Krawietz eds., 2008). [FN240]. See Abdulaziz Sachedina, The Islamic Roots of Democratic Pluralism 15 (2001). [FN241]. See Sayyid Abul A'la Maududi, Islamic Law and Constitution 57-62 (1960). [FN242]. B. Krawietz & H. Reifeld (Hrsg.), Islam und Rechtistaat ZMO, Konrad Adenauer Stiftung 19-37 (2008); Anthony Black, The History of Islamic Political Thought: From the Prophet to the Present 11 (2001); Patricia Crone, God's Rule: Government and Islam 20 (2004). [FN243]. Owing to Western prejudice and the horrors of terrorism today, Sharia law has been unfairly and incorrectly portrayed as involving exclusively cruel and unusual penalties such as the amputation of hands and the stoning of adulterers as well as the oppression of, and discrimination against, women. But when the harsh punishments prescribed by the Sharia are assessed by Western commentators, the latter generally fail to acknowledge the high standards of proof that Islamic law requires for the implementation of the punishments. In addition, it is rarely recalled that until the eighteenth century torture was systematically practiced and legally authorised by the criminal laws of most European states and that European married women were denied any property rights or indeed any legal personality independent from that of their husbands until very recently. On the contrary, for most of its history, Islamic law has offered the most liberal and humane legal principles available anywhere in the world. See Adel El Baradie, Gottes-Recht und Menschenrecht Grundlagen der islamischen Strafrechtslehre 96 (1983). [FN244]. On the right to resist and the legal debate on rebellion, see Khaled Abou El Fadl, Rebellion and Violence in Islamic Law 50 (2d ed. 2002).
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[FN245]. Timur Kuran, The Rule of Law in Islamic Thought and Practice: A Historical Perspective, in Global Perspectives on The Rule of Law 71 (James J. Heckman et al. eds., 2010). [FN246]. For an overview of the constitutional evolution of Muslim states, see N.J. Brown, Regimes Reinventing Themselves: Constitutional Development in the Arab World, 18 Int'l Soc. 33 (2003); only a small number of Islamic scholars reject modern democracy, arguing that it is a system invented by man and as such negating the sovereignty of God over men. See in this sense H. Salih, Al-Dimuqrattiyya Wa-hukm Al-islam Fiha 95-96 (1988). [FN247]. Mawil Izzi Dien, Islamic Law: From Historical Foundations to Contemporary Practice 35-45 (2004). [FN248]. Raji Bahlul, Is Constitutionalism Compatible with Islam?, in The Rule of Law, supra note 6, at 515, 515. [FN249]. For the particular situation of the native Americans in respect of the rule of law, see Bartolome Clavero, The Rule of Law and the Legal Treatment of Native Americans, in The Rule of Law, supra note 6, at 443, 456. [FN250]. Mary Fran T. Malone, An Uneasy Partnership? Democratization and the Rule of Law in Latin America (Aug. 28-31, 2003) (unpublished manuscript) (a paper submitted to the Meeting of the Latin American Political Science Association, Philadelphia); the Economic Freedom of the World Network, Communique on the Rule of Law in Latin America (Nov. 2, 2006) (ranking the region of Latin America as number 85, behind Russia, Senegal and Uganda, in the rule of law). [FN251]. Cf. M. Malone, Citizens' Support for the Rule of Law in Central America (Continuum Pub. 2011). See also E. Peruzzoti & F. Simulovitz, Enforcing the Rule of Law: Social Accountability in the New Latin American Democracies (Univ. of Pittsburgh Press 2006); R. Bill Chavez, The Rule of Law in Nascent: Democracies (Argentina) 272 (Stanford Univ. Press 2004); Rule of Law in Latin America: The International Promotion of Judicial Reform (Pilar Domingo & Rachel Sieder eds., 2001). [FN252]. William C. Prillaman, The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law 137-52 (2000). See, e.g., Augusto Zimmermann, The Failure of Constitutionalism in Brazil, in Comparative Perspective, supra note 11, at 101, 101; Lisa J. Laplante, The Rule of Law in Transitional Justice: The Fujimori Trial in Peru, in id. at 177, 177. [FN253]. M.M. Mborantino, La contribution des cours constitutionnelles a l'Etat de droit en Afrique (Economica 2007). For a criticism of the European colonial model of the rule of law in Africa, see Carlos Petit, The Colonial Model of the Rule of Law in Africa: The Example of Guinea, in The Rule of Law: History, Theory and Criticism 467-512 (Pietro Costa & Danilo Zolo eds., 2007). [FN254]. Human Rights, The Rule of Law, and Development in Africa 312 (Paul T. Zeleza & Phillip J. McConnaughay eds., 2004). [FN255]. Support for the formal conception of the rule of law include Joseph Raz, The Rule of Law and its Virtue, 93 L.Q. Rev. 195; Joseph Raz, The Authority of Law (1979); Scalia, supra note 226. [FN256]. A third option, different from the formal and substantive conceptions of the rule of law is offered by Paul Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, 1997 Pub. L. 467; see also Lon L. Fuller, The Morality of Law (1969). On Fuller's principles of legality see M. Kramer, Objectivity and the Rule of Law 186 et seq. (Cambridge Univ. Press 2004). On the rule of law as a morally precious desideratum, see id. at 102. [FN257]. Rosalyn Higgins, Former President, The Int'l Court of Justice, The ICJ and the Rule of Law, address before the United Nations University 2-3 (Apr. 11, 2007).
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[FN258]. Asylum Case (Colom. v. Peru) 1950 I.C.J. 266, 276-78 (Nov. 20). See in general the collective work L'Etat de droit eu droit international Folloque de la Societe fran aise pour le droit international (Pedone 2009). [FN259]. North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.) 1969 I.C.J. 3 (Feb. 20). [FN260]. Simon Chesterman, An International Rule of Law?, 56 Am. J. Comp. L. 331, 351-54 (2008). [FN261]. Thomas M. Franck, Is the UN Charter a Constitution?, in Verhandeln fr Den Frieden: Liber Amicorum Tono Eitel 95 (Jochen Abr Frowein et al. eds., 2003). [FN262]. Simon Chesterman, The Spy Who Came In from the Cold War: Intelligence and International Law, 27 Mich. J. Int'l L. 1071, 1109-20 (2006). [FN263]. 2005 World Summit Outcome Document, 134 U.N. Doc. A/Res/60/1 (Oct. 24, 2005). Such anxieties may be contrasted with the elaborate protections established by the Security Council in its resolutions establishing the International Criminal Tribunals for the former Yugoslavia and Rwanda, see Chesterman, supra note 262, at 1113. [FN264]. S.C. Res. 1904, U.N. Doc. S/RES/1904 (Dec. 17, 2009). [FN265]. Of course disputes between the staff and the U.N. are subject to the control of the U.N. Administrative Tribunal (U.N. Admin. Trib.), which was established by the General Assembly Resolution 35/A (IV) (1949), an independent organ competent to hear and pass judgment upon applications by staff members alleging breaches of these terms of their contracts of judgment. See, e.g., the Chinese Translators Case, Qin Zhon and Yao v. Secretary-General of the United Nations, Judgments U.N. Admin. Trib., No. 482, U.N. Doc. AT/DEC/482 (1990). [FN266]. See Advisory Opinion on the Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. 11, 1949). [FN267]. Case T-306/01, Ahmed Alu Yusuf & Al Barakaat, Int'l Found. v. Council of the European Union & Comm'n of the European Cmtys. (2005). See also Case T-49/04, Faraj Hassan v. Council of the European Union & Comm'n of the European Cmtys. (2006); Case T-253/02, Chafiq Ayadi v. Council of the European Union & Comm'n of the European Cmtys. (2006); Case T-315/01, Yassin Abdulla Kadi v. Council of the European Union & Comm'n of the European Cmtys., 2005 E.C.R. II-3649. [FN268]. See also Legal Consequences for States of the Continued Presence of South Africa in Namibia, where the ICJ adopted an Advisory Opinion in which it referred to a situation which the Court has found to have been validly declared illegal by the UN Security Council, 1971 I.C.J. Rep. 16, 54. In Prosecutor v. Tadic a/k/a Dule, the International Criminal Tribunal for Former Yugoslavia (ICTY) held that neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutus' (unbound by law), Appeal of 2 October 1995, Case IT94-1-AR72 105, 105 I.L.R. 453 (1997). [FN269]. See joined cases C-402/05P and C-415/05P, Kadi and Al Barakaat v. Council of the European Union & Comm'n of the European Cmtys., 58 ICLQ 229, 230 (2009). For a study of the challenge of terrorism to the rule of law see Y.C. Paye, La fin de l'Etat de droit (La Dispute ed., 2004). [FN270]. See Chesterman, supra note 260, at 353 n.121. [FN271]. D.W. Bowett, United Nations Forces: A Legal Study of the United Nations Practice 503-06 (1964). [FN272]. U.N. Secretary-General, Observance by United Nations Forces of International Humanitarian Law, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999). See also the so-called Zagreb Resolution of 1971, Institut de Droit International, First Commission, Rap. Paul de Vischer (Sept. 3, 1971).
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[FN273]. Christopher Greenwood, Protection of Peacekeepers: The Legal Regime, 7 Duke J. Comp. & Int'l L. 185 (1996). [FN274]. See Chesterman, supra note 260, at 353 n.125. [FN275]. Cases Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie, Provisional Measures (Libya v. UK), 1992 I.C.J. 3, 11 (Apr. 14) and Provisional Measures, (Libya v. US) 1992 I.C.J. 114, 122 (Apr. 14); see also (Libya v. UK and the USA), 27 Apr. and 29 June, 1999 I.C.J. 975 (1999). [FN276]. Chesterman, supra note 260, at 354 (citing Thomas M. Franck, The Powers of Application: Who Is the Ultimate Guardian of UN Legality?, 86 Am. J. Int'l L. 83 (1992), who is said to have interpreted the I.C.J. ruling focusing on what the Court did not say rather than what it did.). [FN277]. Id. at 353 (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). [FN278]. S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993). [FN279]. Id. [FN280]. Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, U.N.-Sierra Leone, Jan. 16, 2002, contained in UN document S/2002/246, Appendixes II and III; Agreement between the United Nations and the Royal Government of Cambodia concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea, U.N.-Cambodia, June 6, 2003, UN document A/57/806. [FN281]. See L. Condorelli & S. Villalpando, Referral and Deferral by the Security Council, in A. Cassese, P. Fraeta & Y.R.W.D. Jones, The Rome Statute of the International Criminal Court, A Commentary 627 (Oxford 2002); M. Bergsmo & J. Pejic, Article 16: Deferral of Investigation or Prosecution, in Commentary on the Rome Statute of the International Criminal Court (O. Triffterer ed., Hart Publishing 2d ed. 2008). [FN282]. See, e.g., Security Council Resolution 1368 (2001); Security Council Resolution 1373 (2001); Security Council Resolution 1540 (2004); Security Council Resolution 1566 (2004); Security Council Resolution 1695 (2006); Security Council Resolution 1696 (2006); Security Council Resolution 1747 (2007); Security Council Resolution 1803 (2008); Security Council Resolution 1810 (2008); Security Council Resolution 1835 (2008); Security Council Resolution 1874 (2009) and Security Council Resolution 1887 (2009). [FN283]. See J. Alvarez, Hegemonic International Law Revisited, 97 Am. J. Int'l L. 873 (2003); S.A. Talmon, The Security Council as World Legislature, 99 Am. J. Int'l L. 175 (2005). [FN284]. Case concerning Elettronica Sicula Spa (ELSI) (United States v. Italy), 1991 I.C.J. 312, 380 (July 20, 1989). [FN285]. Prosecutor v. Tadic, Appeals Chamber, 105 I.L.R. 453 (ICTY 1997), discussed in James Crawford, The Drafting of the Rome Statute, in From Nuremberg to The Hague 129-33 (Philippe Sands ed., 2003). [FN286]. Prosecutor v. Tadic, Appeals Chamber, 105 I.L.R. 453, 472-73 (ICTY 1997). [FN287]. James Crawford, International Law and the Rule of Law, 24 Adel. L. Rev. 3, 10 (2003). [FN288]. Id. at 472-73. [FN289]. It should be noted that the defendant in Tadic was sentenced to 25 years imprisonment, later reduced to 20
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years by the Appeals Chamber. Prosecutor v. Tadic (Revision of Sentence), Appeals Chamber, 124 I.L.R. 213, 214 (2003). [FN290]. Crawford, supra note 287, at 10. Crawford indicates that there is a real question whether even the doctrine of approximation is enough for a criminal court. Unlike in civil law, there is a serious problem in the field of criminal law with ad hoc courts, and it was this factor which gave such impetus to the movement for an International Criminal Court created by multilateral treaty. Concerns about the rule of law were a major factor for many governments that supported the Rome Statute and the creation of the International Criminal Court. Crawford conceives the present system of public order at the international level not as a hierarchy of international executive power masquerading as law and prevailing over national systems-the Vattelian system that Philip Allott criticises in his work-but [rather as] an interpretation of legal orders each with its own internal rules of hierarchy, each acknowledging the existence and validity of the other. Id., citing Philip Allott, Eunomia: New Order for a New World 488 (1990). [FN291]. Raz, supra note 255. An interesting attempt to establish a necessary connection between law and morality may be found in Lon L. Fuller, The Morality of Law (1969). [FN292]. See Crawford, supra note 287, at 10. [FN293]. Luigi Ferrajoli, The Past and the Future of the Rule of Law, in The Rule of Law, supra note 6, at 323, 349. [FN294]. See Crawford, supra note 287. [FN295]. S.C. Res. 1483, 22, U.N. Doc. S/RES/1483 (May 22, 2003). [FN296]. S.C. Res. 748 (Mar. 31, 1992); S.C. Res. 731, 3 (Jan. 21, 1992). [FN297]. S.C. Res. 955, 1, U.N. Doc. S/RES/955 (Nov. 8, 1994). [FN298]. Chesterman, supra note 260, at 348 (suggesting that since the mid-1990s the UNSC enforcement powers have increasingly been used to support, supplant, or replace domestic legal systems). [FN299]. See William W. Bishop, The International Rule of Law, 59 Mich. L. Rev. 553 (1961) (considering that the international rule of law includes reliance on law as opposed to arbitrary power in international relations). [FN300]. Mahomedali Currim Chagla, Rule of Law and the International Court of Justice, 54 Am. Soc'y Int'l L. Proc. 237 (1960); Fiona de Londras, Dualism, Domestic Courts, and the Rule of International Law, in Comparative Perspective, supra note 11, at 217, 217. [FN301]. United Nations Conventions on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S 3. [FN302]. See Yuval Shany, The Competing Jurisdictions of International Courts and Tribunals (2003). [FN303]. For a more pessimistic view of the rule of law in international law, see Chesterman, supra note 260. [FN304]. Ian Brownlie, The Rule of Law in International Affairs 14 (1998). [FN305]. See U.N. Secretary-General, In Larger Freedom: Towards Development, Security and Human Rights for All, 133-39, delivered to the General Assembly, U.N. Doc. A/59/2005 (Mar. 21, 2005). [FN306]. In his follow-up report to the outcome of the Millennium Summit entitled In Larger Freedom: Towards Development, Security and Human Rights for All, the Secretary General of the UN identifies that nowhere is the gap between rhetoric and reality-between declaration and deeds-so stark and so deadly as in the field of international humanitarian law, and recommends to embrace the responsibility to protect, to strengthen the rule of law by uni-
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versal participation in multilateral conventions, to include justice as a vital component of the rule of law (inter alia by) . . . cooperating fully with the International Criminal Court . . . (and by considering) means to strengthen the work of the International Court of Justice. Id. In his 2009 annual Report to the General Assembly on strengthening and coordinating United Nations rule of law activities, the Secretary General indicates that the UN work on the rule of law rests on a shared vision across the spectrum of the United Nations aims of peace and security, social and economic progress, and human rights, . . . (the UN activities) are founded on the Charter and international norms and standards. The principle that all individual and entities-including states-are accountable to the law drives efforts in the field . . . . Ultimately, legal protection as the means to achieve freedom from fear and freedom from want is the most sustainable form of protection. The Secretary-General, Annual Report on Strengthening and Coordinating United Nations Rule of Law Activities, delivered to the Security Council, U.N. Doc. S/2004/616 (Aug. 17, 2009). With regard to the Security Council, in his report on the rule of law and transitional justice in conflict and postconflict societies, the Secretary General suggests to support domestic reform constituencies, help build the capacity of national justice sector institutions, facilitate national consultation on justice reform and transitional justice and help fill the rule of law vacuum evident in so many post-conflict societies. The Secretary-General, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, delivered to the Security Council, U.N. Doc. S/2004/616 (Aug. 23, 2004). [FN307]. United Nations Millennium Declaration, G.A. Res. 55/2, U.N. Doc. A/RES/55/2 (Sept. 18, 2000) (reaffirming the commitment of all nations to the rule of law as the all-important framework for advancing human security and prosperity) [hereinafter Millennium Declaration]. [FN308]. Id. (stating that the UNGA resolves to strengthen respect for the rule of law in international as national affairs and, in particular, to ensure compliance by member States with the decisions of the International Court of Justice, in compliance with the Charter of the United Nations, in cases to which they are parties); G.A. Res. 62/128, U.N. Doc. A/RES/62/128 (Jan. 29, 2008); G.A. Res. 62/70, 3, U.N. Doc. A/RES/62/70 (Jan. 8, 2008) (indicating that the Resolution invites the International Court of Justice, the UN commission on International Trade Law and the International Law Commission to comment . . . on their current roles in promoting the rule of law); G.A. Res. 61/39, U.N. Doc. A/RES/61/39 (Dec. 18, 2006) (proclaiming that the promotion of and respect for the rule of law should guide the activities of the United Nations and of its Member States, and requesting that the Secretary General prepare an inventory of the current activities of the various UN organs and departments); G.A. Res. 60/1, 134, U.N. Doc. A/RES/60/1 (Oct. 24, 2005) (endorsing the recommendations of the UN Secretary General's report of the outcome of the Millennium Summit, calling in addition upon states to continue their efforts to eradicate policies and practices that discriminate against women). [FN309]. The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/PRST/2006/28 (June 22, 2006) (discussing the rule of law and maintenance of international peace and security); The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/PRST/2005/30 (July 12, 2005) (discussing the role of the Security Council in humanitarian crisis); The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/PRST/2004/32 (Sept. 10, 2004) (discussing Haiti); The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/PRST/2004/2 (Jan. 26, 2004) (discussing post-conflict national reconciliation); The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/ PRST/2003/15 (Sept. 24, 2003) (discussing justice and the rule of law). [FN310]. The Secretary-General and the President of the Security Council, Report of the Panel on United Nations Peace Operations, delivered to the General Assembly and the Security Council, U.N. Doc. A/55/305, S/2000/809 (Aug. 21, 2000) (recommending inter alia a doctrinal shift in the use of civilian police, other rule of law elements and human rights experts in complex peace operations to reflect an increased focus on strengthening rule of law institutions and improving respect for human rights in post-conflict environments).
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[FN311]. The President of the Security Council has also made statements on the rule of law on behalf of the Security Council, and in particular with regard to the protection of civilians in armed conflict, in relation to peace-keeping operations and in connection with international criminal justice. See, e.g., The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/PRST/2005/30 (July 12, 2005) (discussing the role of the Security Council in humanitarian crisis); The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/PRST/2004/32 (Sept. 10, 2004) (discussing Haiti); The President of the Security Council, Statement by the President of the Security Council, delivered to the Security Council, U.N. Doc. S/PRST/2003/15 (Sept. 24, 2003) (discussing justice and the rule of law). [FN312]. The Security Council incorporated the term rule of law as early as 1961 in the preamble of Resolution 161B (Feb. 21, 1961) on the deterioration of law and order in Congo: Noting with deep regret and concern the systematic violations of human rights and fundamental freedoms and the general absence of the rule of law in the Congo. (The French text contains the expression l'absence generale de legalite au Congo.) The Security Council also referred to the rule of law in paragraph two of Resolution 1040 (Jan. 29, 1996) where it expressed its support for the Secretary General's efforts to promote national reconciliation, democracy, security and the rule of law in Burundi. (It should however be noted that the French text does not use the expression rule of law, but the expression le retablissement de l'ordre.) See Chesterman, supra note 260, at 348. [FN313]. Id. [FN314]. Interim Administration in Kosovo Reg. 1999/1, U.N. Doc. UNMIK/REG/1999/1 (July 25, 1999). For a criticism see C. Bull, No Entry Without a Strategy Building the Rule of Law Under UN Transitional Administration (UNU Press 2008). [FN315]. S.C. Res. 1244, 10-11, U.N. Doc. S/RES/1244 (June 10, 1999). [FN316]. See, e.g., S.C. Res. 1035 (Dec. 21, 1995); see also Chesterman, supra note 260, at 348. [FN317]. The Security Council has adopted resolutions identifying elements of the rule of law under international law which include include the willingness to incorporate a gender perspective into peace-keeping operations, S.C. Res. 1325, 5, U.N. Doc. S/RES/1325 (Oct. 31, 2000), the protection of children affected by armed conflict; S.C. Res. 1612, 1, U.N. Doc. S/RES/1612 (July 26, 2005), and the protection of civilians in armed conflicts; S.C. Res. 1674, 5, U.N. Doc. S/RES/1674 (Apr. 28, 2006). In the fight against international terrorism, the Security Council has adopted a series of measures, sanctions and listing of terrorists providing an improved due process for listing and delisting (to be assisted by an Ombudsperson), and establishing a monitoring team, which will submit written, comprehensive and independent reports, to the Counter Terrorism Committee (CTC) and the Security Council Committee in accordance with the information and dialogue procedure established in Annex II to the resolution. S.C. Res. 1904, U.N. Doc. S/RES/1904 (Dec. 14, 2009) (referencing S.C. Res. 1822, U.N. Doc. S/RES/1822 (June 30, 2008); S.C. Res. 1735, U.N. Doc. S/RES/1735 (Dec. 22, 2006); S.C. Res. 1730, U.N. Doc. S/RES/1730 (Dec. 19, 2006); S.C. Res. 1699, U.N. Doc. S/RES/1699 (Aug. 8, 2006); S.C. Res. 1624, U.N. Doc. S/RES/1624 (Sept. 14, 2005); S.C. Res. 1617, U.N. Doc. S/RES/1617 (July 29, 2005); S.C. Res. 1566, U.N. Doc. S/RES/1566 (Oct. 8, 2004); S.C. Res. 1526, U.N. Doc. S/RES/1526 (Jan. 30, 2004); S.C. Res. 1455, U.N. Doc. S/RES/1455 (Jan. 17, 2003); S.C. Res. 1452, U.N. Doc. S/RES/1452 (Dec. 20, 2002); S.C. Res. 1390, U.N. Doc. S/RES/1390 (Jan. 16, 2002); S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001); S.C. Res. 1363, U.N. Doc. S/RES/1363 (July 30, 2001); S.C. Res. 1333, U.N. Doc. S/RES/1333 (Dec. 19, 2000); S.C. Res. 1267, U.N. Doc. S/RES/1267 (Oct. 15, 1999); see also The Chairman of the Security Council, Report of the Security Council Committee Concerning Al-Qaida and the Taliban and Associated Individuals and Entities, delivered to the Security Council, U.N. Doc. S/2009/676 (Dec. 31, 2009). [FN318]. The Secretary-General, Report of the Secretary-General on the Rule of Law and Tranisition Justice in Con-
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flict and Post-Conflict Societies, delivered to the Security Council, U.N. Doc. S/2004/616 (Aug. 23, 2004). See also Democracy and the Rule of Law 472 (N. Dorseri & P. Trifford eds., C.F. Press 2001). [FN319]. Over 40 U.N. entities are engaged in rule of law issues and the Organization is conducting rule of law operations and programming in over 110 countries in all regions of the globe, with the largest presence in Africa. Any U.N. entities carry out activities in the same countries. Five or more entities are currently working simultaneously on the rule of law in at least 24 countries, the majority of which are in conflict and post-conflict situations. [FN320]. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess. 1st plen. mtg., (Vol. III), U.N. Doc. A/810 (Dec. 12, 1948). [FN321]. African Charter on Human Rights and People's Rights, June 27, 1981, 21 I.L.M. 58; American Convention on Human Rights, Nov. 22, 1969, 1144 U.N.T.S. 123; International Covenant on Civil and Political Rights, Dec. 16. 1966, 999 U.N.T.S. 171; European Convention for the Protection of Human Rights and Fundamental Freedom, Nov. 4, 1950, 213 U.N.T.S. 222. [FN322]. Code of Conduct for Law Enforcement Officials, G.A. Res. 34/169, Annex, U.N. Doc. A/34/46 (1979). [FN323]. Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy, Aug. 26-Sept. 6, 1985, Basic Principles on the Independence of the Judiciary, U.N. Doc. A/CONF.121/22/REV. [FN324]. Convention on the Elimination of All Forms of Discrimination Against Women, Dec. 18, 1979, 1249 U.N.T.S. 13; International Convention on the Elimination of All Forms of Racial Discrimination, Jan. 4, 1969, 660 U.N.T.S. 195. [FN325]. World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, 69, U.N. Doc. A/CONF.157/23 (July 12, 1993). [FN326]. Chesterman, supra note 260, at 345 n.74. See also Randall Peerenboom, Human Rights and Rule of Law: What's the Relationship?, 36 Geo. J. Int'l L. 809 (2005). [FN327]. See, e.g., Castillo-Paez v. Peru, Inter-Am Ct. H.R. (ser. C) No. 34, 82-83 (Nov. 3 1997). [FN328]. Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law, G.A. Res 60/147, UN Doc. A/ RES/60/147, (Dec. 16, 2005). [FN329]. See R v. Bow St. Metro. Stipendiary Magistrate, ex parte Pinochet Ugarte (1999) 2 W.L.R. 827 (H.L.). [FN330]. According to Peerenboom, supra note 326, the rule of law protected under the Universal Declaration has been open to an interpretation that is more consistent with what has been described as rule by law. [FN331]. See Malcolm Shaw, International Law 275 (5th ed. 2008); Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). See generally Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford Clarendon Press 1989). See also the series of articles devoted to the study of human rights as pat of customary internatinoal law in the special volume 25 Ga. J. Int'l & Comp. L. (1995-96). [FN332]. Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 1970); Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, 18, 38 (June 27). [FN333]. See Chesterman, supra note 260, at 346. For an early link between the rule of law, the free market, and economic prosperity, see Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations 15 (Edwin Can-
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non ed., 1976) (1776). See also Kristen E. Boon, Open for Business: International Financial Institutions, PostConflict Economic Reform, and the Rule of Law, 39 N.Y.U. J. Int'l L. & Pol. 513 (2007). [FN334]. I. Glivanos, Rule of Law Promotion and Development, in Law and Justice Institutions, The World Bank 11 (2009). [FN335]. See St. Humphreys, Theatre of the Rule of Law 332 (Cambridge Univ. Press 2010); K. Dam, The Law Growth-Nexus (The Rule of Law and Economic Development) (Brookings Institution Press 2006); James Gardner, Legal Imperialism: American Lawyers and Foreign Aid in Latin America, 76 Am. J. Int'l L. 196 (1980); John H. Merryman, Comparative Law and Social Change: On the Origins, Style, Decline & Revival of the Law and Development Movement, 25 Am. J. Comp. L. 457 (1977). [FN336]. See, e.g., Joel M. Ngugi, Policing Neo-Liberal Reforms: The Rule of Law as an Enabling and Restrictive Discourse, 26 U. Pa. J. Int'l Econ. L. 513 (2005). [FN337]. U.N. Dev'l Programme [UNDP], tp://hdr.undp.org/en/reports/global/hdr1992/chapters/. Human Development Report 1992 (1992), ht-
[FN338]. World Bank, A Decade of Measuring the Quality of Governance: Governance Matters 2006, at 3 (2006), http:// siteresources.worldbank.org/INTWBIGOVANTCOR/Resources/1740479-1150402582357/2661829-1158008871017/ booklet_decade_of_measuring_governance.pdf. [FN339]. R. McCorquodale, The Rule of Law in International and Comparative Context, British Institute of International and Comparative Law (2010); Bruce Zagaris Tamanaha, The Lessons of Law-and-Development Studies, 89 Am. J. Int'l L. 470, 472-73 (1995). [FN340]. See generally McCorquodale, supra note 339. See also UNDP, Governance for Sustainable Human Development (Jan. 1997), http:// mirror.undp.org/magnet/policy/; Goran Hyden, Governance and the Reconstitution of Political Order, in State, Conflict and Democracy in Africa 179 (Richard Joseph ed., 1999). [FN341]. Chesterman, supra note 5, at 4; F. Neate, ed., Rule of Law Perspectives from Around the Globe, LexisNexis (2009). [FN342]. World Summit Outcome Document, supra note 263, 11. See also 21, 24(b). [FN343]. UNDP, UNDP Strategic Plan 2008-2011, 84, 102, U.N. Doc. DP/2007/43, (July 16, 2007). [FN344]. UNDP, Strengthening the Rule of Law in Conflict/Post-Conflict Situations: Global Programme for Justice and Security (2008-2011), http:// www.undp.org/cpr/documents/Rule_of_Law_Global_Programme.pdf. [FN345]. On the question of rule of law as a political weapon, see J.M. Maravall, The Rule of Law as a Political Weapon, in J.M. Maravall & A. Przeworski, Democracy and the Rule of Law 242 (Cambridge Univ. Press 2003). [FN346]. Case C-286/90, Anklagemyndigheden v. Peter Micheal Poulsen Diva Navigation Corp., 1992 E.C.R. I6019. [FN347]. See Case C-192/99, The Queen v. Sec'y of State for the Home Dep't ex parte, Manjit Kaur, 2001 E.C.R. I1237. [FN348]. See Case C-53/96, Herm s Int'l v. FHT Mktg. Choice, 1998 E.C.R. I-3603; Joined Cases C-300 & 392/98, Parfums Christian Dior v. TUK Consultancy & Gr ste v. Layher, 2000 E.C.R. I-11307.
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[FN349]. See Case 4/73, Nold v. Comm'n, 1974 E.C.R. 491. [FN350]. Case 10/61, Comm'n v. Italian Republic, 1962 E.C.R. 1, 10. [FN351]. Case 41/74, Van Duyn v. Home Office, 1974 E.C.R. 1338, 1351. [FN352]. Case 89/85, Osakeyhti v. Comm'n, 1988 E.C.R. 5233, 5243. [FN353]. Case T-115/94, Opel Austria v. Council, 1997 E.C.R. II-39, II-71. [FN354]. See, e.g., Case C-84/995, Bosphorus Hava Yollaria Turzin ve Ticaret v. Minister for Transp., Energy, and Commc'ns, Ir., 1996 E.C.R. I-3953. [FN355]. Case T-306/01, Yusuf v. Council, 2005 E.C.R. II-3533. [FN356]. Case T-315/01, Kadi v. Council, 2005 E.C.R. II-3649. [FN357]. See Joined Cases C-400 & 405/05, Kadi v. Council, 2008 E.C.R. I-6351. [FN358]. Id. [FN359]. Jacobs, supra note 1, at 57. [FN360]. See Herm s Int'l, 1998 E.C.R. I-3603. [FN361]. Id. For other examples, see Joined Cases 21-24/72, Int'l Fruit Co., and others, Produktschap voor Groenten en Fruit, 1972 E.C.R. 1219 (holding that provisions of the General Agreement on Tariffs and Trade may bind the European Economic Community); Case C-377/02, Leon Van Parys v. Belgische Interventie en Restitutiebureau, 2005 E.C.R. I-1465 (holding that provisions of the World Trade Organization agreements may bind the European Community). The Court has more recently reached the same conclusion in respect of the United Nations Convention on the Law of the Sea. See Case C-308/06, Int'l Ass'n of Indep. Tanker Owners v. Sec'y of State for Transp., 2008 E.C.R. I-4057, 4058. See also Jacobs, supra note 1, at 57-59. [FN362]. Case C-265/03, Simutenkov v. Ministerio de Educacion y Cultura, 2005 E.C.R. I-2579, 2607; Jacobs, supra note 1, at 57-59. [FN363]. See Jacobs, supra note 1, at 57-61. [FN364]. Anthony Arnull, The Rule of Law in the European Union, in Accountability and Legitimacy in the European Union 239, 254 (Anthony Arnull & Daniel Wincott eds., 2002). [FN365]. Commission Communication on Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, at 7, COM (2003) 104 final (Mar. 3, 2003). The role played by the rule of law in encouraging foreign investment has been challenged since there is evidence that it is not a determining factor. See Thomas Carothers, Promoting The Rule of Law Abroad: The Problem of Knowledge (Carnegie Endowment for Int'l Peace, Working Paper No. 34, 2003). [FN366]. Commission Communication on Governance and Development, 3, COM (2003) 615 final (Oct. 10, 2003). [FN367]. Marise Cremona, The European Neighbourhood Policy: Legal and Institutional Issues 1-27, 11 (Stanford Inst. for Int'l Studies Center on Democracy, Dev., and the Rule of Law, Working Paper No. 25, 2004). [FN368]. Council document 17370/08 of 16 December 2008.
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[FN369]. Council document 10491/1/09, Rev. 1, of 2 June 2009. [FN370]. See also Case C-268/94, Portugal v. Council, 1996 E.C.R. I-6177. [FN371]. Council of the European Union, Reflection Paper on Political Clauses in Agreements with Third Countries, Doc. 7008/09 (Feb. 27, 2009). [FN372]. Id. [FN373]. Commission Communication on Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, COM (2003) 104 final (Mar. 11, 2003). E.g., Art. 96 of the EU Cotonou Agreement with African, Caribbean and Pacific countries, the mechanism laid down therein has been invoked in more than 19 cases since 1995. Council Decision 2005/95, art. 96, 2005 O.J. (L 209) 26 (EC). [FN374]. Communication from the Commission to the Council and the European Parliament on Wider EuropeNeighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, COM (2003) 104 final (Mar. 11, 2003), available at http://ec.europa.eu/world/enp/pdf/com03_104_en.pdf. [FN375]. Communication from the Commission on European Neighbourhood Policy Strategy Paper, COM (2004) 373 final (May 12, 2004), available at http:// ec.europa.eu/world/enp/pdf/strategy/strategy_paper_en.pdf. The genesis of the European Neighbourhood Policy can be traced several years earlier. For an exposition of such genesis, see Marise Cremona, The European Neighborhood Policy. More than a Partnership?, in Developments in EU External Relations Law 244, 246 (Marise Cremona ed., 2008); Marise Cremona, The European Neighbourhood Policy: Partnership, Security and the Rule of Law, Wider Europe Policy Papers (2005); Marise Cremona, The European Neighbourhood Policy: Legal and Institutional Issues 1 (Ctr. on Democracy, Dev., and the Rule of Law, Stanford Inst. for Int'l Studies, Working Paper No. 25, 2004). [FN376]. Council Regulation 1638/2006, 2006 O.J. (L 310) 1 (EC). Regulation 1638/2006 replaces Regulation 1488/96 supporting the Mediterranean non-member countries and territories (MEDA) (Council Regulation 1488/96, 1996 O.J. (L 189) 1 (EC)) and Regulation 99/2000 assisting Eastern Europe and Central Asia (TACIS) (Council Regulation 99/2000, 2000 O.J. (L 12) 1 (EC, EURATOM)). [FN377]. 2006 O.J. (L 310/1) 2. [FN378]. Joint Declaration 8435/09, of the Prague Eastern Partnership Summit, Presse 78 (May 7, 2009), available at http:// www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/er/107589.pdf. The Eastern Partnership Prague Summit Declaration of 7 May 2009 also contains ample references to the rule of law. Joint Declaration 8435/09, at 78. [FN379]. The Summit Declaration of the Union for the Mediterranean of 13 July 2008 explicitly refers to the rule of law to which references in the context of counter-terrorism and more general references can be found in the Marseille Ministerial Declaration of 3-4 Nov. 2008. Joint Declaration 11794/08, of the Paris Summit for the Mediterranean, Presse 211 (July 13, 2008); Final Declaration 15187/08, on the Barcelona Process: Union for Mediterranean Ministerial Conference, Presse 314 (Nov. 3-4, 2008). [FN380]. Presidency Conclusions, Brussels European Council, 57 (June 15-16, 2006), available at http://www.consilium.europa.eu/uedocs/cms_ Data/docs/pressdata/en/ec/90111.pdf. [FN381]. Romano Pradi, President of the European Comm'n, A Wider Europe-A Proximity Policy as the Key to Stability (Dec. 5-6, 2002). [FN382]. Council Regulation 1638/2006, arts. 6, 7, 9, 12, 13, 2006 O.J. (L 310) (EC).
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[FN383]. Id. at arts. 12, 8. [FN384]. See also General Affairs and External Relations [GAER], Council Conclusions on European Neighbourhood Policy (EC) No. 10189/04 (Presse 195) of 14 June 2004. The idea of shared values has been included in the ENP from the beginning; the European Council at Copenhagen in December 2002, for example, said that the new dynamic created by enlargement presents an important opportunity to take forward relations with neighbouring countries based on shared political and economic values. Copenhagen European Council, Presidency Conclusions 15917/02, 22, 12 and 13 December 2002 (EU) (emphasis added). [FN385]. Common Strategy 1999/887, of the European Council of 11 Dec. 1999 on Ukraine, 1999 O.J. (L 331) 1. [FN386]. Common Strategy 1999/414, of the European Union of 4 June 1999 on Russia, 1999 O.J. (L 157) 1. [FN387]. Common Strategy 2000/458, of the European Council of 19 June 2000 on the Mediterranean Region, 2000 O.J. (L 183) 6. The core values include human rights, democracy, good governance, transparency and the rule of law. Id. [FN388]. Joint Declaration 11794/08, supra note 379. [FN389]. See, e.g., Partnership and Cooperation Agreement between the European Communities and their Member States, and Ukraine, 1998 O.J. (L 49) 3; Decision of the Council and the Commission 98/238, on the Conclusion of a Euro-Mediterranean Agreement Establishing an Association Between the European Communities and their Member States, of One Part, and the Republic of Tunisia, of the Other Part, 1998 O.J. (L 97) 2. [FN390]. See, e.g., Partnership and Cooperation Agreement between the European Communities and their Member States, and Ukraine, 1998 O.J. (L 49) 3; and Decision of the Council and the Commission 98/238, on the Conclusion of a Euro-Mediterranean Agreement Establishing an Association Between the European Communities and their Member States, of One Part, and the Republic of Tunisia, of the Other Part, 1998 O.J. (L 97) 2. [FN391]. See 1999 O.J. (L49); Benita Ferrero-Walker, European Comm'r for External Relations and European Neighbourhood Policy, European Strategies for Promoting Democracy in Post-Communist Countries (Jan. 20, 2006) (We understand that democracy can never be improved from the outside; genuine democratic transition must always come from within.). [FN392]. Council and Commission Decision 1999/515, on the Conclusion of the Partnership and Cooperation Agreement Between the European Communities and their Member States, of the One Part, and Georgia, of the Other Part, art. 71, 1999 O.J. (L 205) 21. The PCAs with Armenia and Azerbaijan contain similar provisions. There is also a provision on cooperation with respect to prevention of illegal activities including corruption. Id. at arts. 72, 22. [FN393]. See Joint Declaration 8435/09, supra note 378. See also Press Release, Council of the European Union, Conclusions on Eastern Partnership, (Oct. 25, 2010), available at http://www.consilium.europa.eu/uedocs/cms_ data/ docs/pressdata/EN/foraff/117327.pdf. [FN394]. Communication from the Commission European Neighbourhood Policy Strategy Paper, supra note 375, at 12-13. [FN395]. Id. at 13. [FN396]. Council of the European Union, A Secure Europe in a Better World, Doc. 10881/03, at 7-8 (Dec. 12, 2003), available at http:// www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf. [FN397]. It should be noted that, on a wider scale, the Lisbon OSCE Declaration states that [o]ur approach is one of
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co-operative security based on democracy, respect for human rights, fundamental freedoms and the rule of law, market economy and social justice. It excludes any quest for domination. It implies mutual confidence and the peaceful settlement of disputes. Organization for Security and Co-operation in Europe [OSCE], Libson Declaration on a Common and Comprehensive Security Model for Europe for the Twenty-First Century 3, OSCE Doc. S/1/96 (Dec. 3, 1996). [FN398]. See Elspeth Guild, International Terrorism and EU Immigration, Asylum and Borders Policy: The Unexpected Victims of 11 September 2001, 8 European Foreign Aff. Rev. 331 (2003). [FN399]. Judith Kelley, New Wine in Old Wineskins: Promoting Political Reforms through the New European Neighbourhood Policy, 44 J. Common Mkt. Stud. 29 (2006). [FN400]. Marise Cremona, The European Neighbourhood Policy as a Framework for Modernization, in European Integration without EU Membership: Models, Experiences, Perspectives 7 (European University Institute, Working Papers 2009/10, 2009), available at http:// cadmus.eui.eu/bitstream/handle/1814/11294/MWP_2009_10.pdf?sequence=1. [FN401]. See id. Thus, the stability of national institutions is a first priority in the ENPI Action Plan for Ukraine. [FN402]. Commission Communication on Wider Europe-Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours, at 7, 9, COM (2003) 104 final (Mar. 11, 2003). [FN403]. See Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Region, at 9, COM (2010) 623 final (Oct. 27, 2010). [FN404]. 2006 O.J. (L 210) 82. IPA Regulation replaced previous enlargement programs such as Phare, SAPARD, ISPA and CARDS. [FN405]. Council Regulation 540/2010, 2010 O.J. (L 158) 7 (EU). In 1999 the European Commission had envisaged an articulation between three groups: first, those European countries which are eligible for membership, but either do not at present which to accede or are at the initial stages of submission of their candidacy (such as Switzerland, Iceland and Norway); second, those European countries which may be seen as potential candidates (Thessaloniki European Council of June 2003), which may desire membership but which do not yet meet the criteria and may not yet have made a formal application (this includes certain countries of the Western Balkans-Montenegro, Albania, and Serbia have applied); and third, those countries which are already or will become near neighbours of the enlarged Union, including Russia, Ukraine and the southern states, especially those of the Maghreb (Algeria, Morocco, Tunisia). [FN406]. 2006 O.J. (L 210) 82, 92-93 (annexes I and II of Regulation No. 1085/2006). [FN407]. Communication from the Commission to the Council and the European Parliament on the European Union's Role in Promoting Human Rights and Democratisation in Third Countries, COM (2001) 252 final (May 8, 2001). [FN408]. 2002 O.J. (325) 1, 109-11 (this objective was present before the entry into force of the Treaty of Lisbon: Community policy in this area shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms (formerly Arts. 177(2) and 181a(1) of the TEC)). [FN409]. 2006 O.J. (L 378) 41. This instrument replaces thirteen regulations including Council Regulation 443/92, 1992 O.J. (L 51) 1 on the provision of assistance to developing countries in Latin American and Asian countries (ALA).
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[FN410]. 2000 O.J. (L 317) 3, amended by 2005 O.J. (L 209) 27, and by 2010 O.J. (L 287) 3. [FN411]. 2002 O.J. (L 64) 39; 2001 O.J. (L 324) 1; 2001 O.J. (L 314) 1. [FN412]. 2006 O.J. (C 46) 1. [FN413]. Communication from the Commission to the Council and the European Parliament on the European Union's Role in Promoting Human Rights and Democratisation in Third Countries, supra note 407. [FN414]. Joint Statement on European Union Development Policy: the European Consensus, 2006 O.J. (C 46) I, paras. 35-38. [FN415]. A Twelve-Point EU Action Plan in Support of the Millennium Development Goals, at 5, COM (2010) 159 final (Apr. 21, 2010), available at http://ec.europa.eu/development/icenter/repository/COMM_COM_2010_0159_MDG_ EN.PDF. [FN416]. Id. at 46-49; 2006 O.J. (L 405) 41. [FN417]. Commission Regulation 1717/2006, 2006 O.J. (L 327) 1 (EC) (establishing an Instrument for Stability). [FN418]. Id. at 3 (Art. 3 (2)(c)). [FN419]. Commission Regulation 1889/2006, 2006 O.J. (L 386) 1 (EC). [FN420]. Id. at 4 (Art. 1(1)). [FN421]. Council Regulation 976/1999, 1999 O.J. (L 120) 8 (EC) (laying down the requirements for the implementation of Community operations, other than those of development cooperation, which, within the framework of Community cooperation policy, contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms in third countries); Council Regulation 975/1999, 1999 O.J. (L 120) 1 (EC) (laying down the requirements for the implementation of development cooperation operations which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms). See also Council Common Position (EC) 98/350/CFSP of 25 May 1998, 1998 O.J. (L 158) 1 (concerning human rights, democratic principles, the rule of law and good governance in Africa). [FN422]. 1992 O.J. (C 191) 1, 58 (Art. 11(1), ex Art. J.1 of the TEU provides that the objectives of the CFSP include safeguard[ing] the common values, fundamental interests and independence of the Union . . . in accordance with the principles of the United Nations Charter as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, and develop [ing] and consolidat[ing] democracy and the rule of law, and respect for human rights and fundamental freedoms). These objectives have been considerably reinforced under the Treaty of Lisbon; see 2008 O.J. (C 115) 15, 17 (Art. 3(5) of the Treaty on European Union (TEU) provides that the Union shall contribute to the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter); see also 2008 O.J. (115) 15, 35-36 (strengthening further these objectives with the guiding principle of the rule of law laid down in the general provisions of Art. 21 TEU). [FN423]. European Council, European Security Strategy, Doc. 15895/03 PESC 787, at 11, available at http:// www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf. [FN424]. Id. at 10.
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[FN425]. Id. at 11. [FN426]. Council of the European Union, Report on the Implementation of the European Security Strategy: Providing Security in a Changing World, Doc. S407/08, at 2 (Dec. 11, 2008), available at http:// www.euun.europa.eu/documents/en/081211_EU%20Security%20Strategy.pdf. [FN427]. 2005 O.J. (C 327) 4. [FN428]. 2009 O.J. (C 303) 12. [FN429]. See Council of the European Union, tp://www.consilium.europa.eu/showpage.aspx?id=1681&lang=EN. Guidelines on Human Rights, ht-
[FN430]. See Council of the European Union, Restrictive Measures-EU Best Practices for the Effective Implementation of Restrictive Measures, Doc. 11679/07 (July 9, 2007) (an update maybe found in the website http:// ec.europa.eu/external_relations/cfsp/sanctions/docs/measures_en.pdf.); Council of the European Union, Basic Principles on the Use of Restrictive Measures (Sanctions), Doc. 10198/1/04 REV 1 (June 7, 2004), available at http:// register.consilium.europa.eu/pdf/en/04/st10/st10198-re01.en04.pdf; Council document 5579/03 of 8 Dec. 2003. [FN431]. Council Common Position (EU) 2003/444/CFSP of 16 June 2003, 2003 O.J. (L 150) 67. [FN432]. Council of the European Union, Agreement between the International Criminal Court and the European Union on Cooperation and Assistance, Doc. 14298/05 (Dec. 6, 2005), available at http:// register.consilium.eu.int/pdf/en/05/st14/st14298.en05.pdf. [FN433]. Council of the European Union, General Affairs and External Relations, Doc. 12134/02 (Presse 279), at 9-10 (Sept. 30, 2002), available at http://www.consilium.europa.eu/uedocs/cms_ data/ docs/pressdata/en/gena/72321.pdf. [FN434]. Council Common Position (EU) 2004/694/CFSP, 2004 O.J. (L 315) 52 (as amended). [FN435]. Commission Regulation 1717/2006, 2006 O.J. (L 327) 1, 3 (EC). [FN436]. 2008 O.J. (C 115) 13, 18. [FN437]. Id. at 30. [FN438]. See Chagla, supra note 300. [FN439]. See, e.g., European Security and Defence Policy: The First Ten Years (1999-2009) (Giovanni Grevi et al. eds., 2009), available at http:// www.iss.europa.eu/uploads/media/ESDP_10-web.pdf; European Security Law (M. Trybus & N. White eds., Oxford Univ. Press 2007); Frederik Naert, International Law Aspects of the EU's Security and Defence Policy, with a Particular Focus on the Law of Armed Conflict and Human Rights (Intersentia 2010); Martin Trybus, European Union Law and Defence Integration (Hart Publishing 2005); The European Union and International Crisis Management: Legal and Policy Aspects (Steven Blockmans ed., T.M.C. Asser Press 2008); see generally EU Common Security and Defence Policy, Consilium, http://www.consilium.europa.eu/showPage.aspx? id=261&lang=EN&mode=g. [FN440]. Council Decision 2011/210/CFSP of 1 Apr. 2011 on the European Union, military operation in support of humanitarian assistance in Libya, 2011 OJ (L. 89) 17. See, e.g., Naert, supra note 439, at 97-191; European Security Law, supra note 439, at 61-101. The reader may find a detailed list of EU operations on the Council's website: http://www.consilium.europa.eu/cms3_ fo/showPage.asp?id=268&lang=EN&mode=g. The number depends to some
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extent on how one counts them. This number excludes European Community or Union missions launched before 1999, which would probably qualify as crisis management operations today. In addition, the 25 January 2010 Foreign Affairs Council decided to set up a military mission to contribute to training of Somali security forces and to set up a cell in Brussels, EUCO Haiti, to coordinate contributions by Member States of military and security assets to meet needs in Haiti following the earthquake there. [FN441]. Presidency Conclusions, Santa Maria da Feira European Council, Annex I, III, Appendix 3, II (June 19-20, 2000). [FN442]. Presidency Conclusions, G teborg European Council, 47-52 (June 15-16, 2001), available at http:// ec.europa.eu/governance/impact/background/docs/goteborg_concl_en.pdf; Council of the European Union, Presidency Report to the Goteborg European Council on European Security and Defence Policy, Doc. 9526/1/01 REV 1 (June 11, 2001). [FN443]. Id. See also Council of the European Union, Comprehensive EU Concept for Missions in the Field of Rule of Law in Crisis Management, Including Annexes, at 3-4, Doc. 14513/02 (Nov. 19, 2002). [FN444]. The ensuing declaration was annexed as Annex V to the Seville European Council. Presidency Conclusions, Seville European Council, at 6-7 (Oct. 24, 2002), available at http://www.consilium.europa.eu/ueDocs/cms_ Data/docs/pressdata/en/ec/72638.pdf. [FN445]. UN, OSCE and Council of Europe standards will be particularly important. Council of the European Union, supra note 443, at 4. [FN446]. Council of The European Union, supra note 443, 4-5. [FN447]. Id. at 7. [FN448]. Id. [FN449]. Id. at 7-8. For that purpose a non-exhaustive check-list is provided in Annex 1 to the Comprehensive Concept which supplements those listed in Section D of the Annex to the general guidelines on fact-finding missions contained in Doc. 15048/01. [FN450]. Id. at 10. [FN451]. Id. [FN452]. Id. at 11 (In this context, it is recalled that the EU has offered to the UN High Commission for Human Rights a set of draft guidelines as an initial contribution to the work undertaken within the UN. It is also recalled that the European Union co-funded a 2-year project presented by the office of the UN High Commissioner for Human Rights entitled Restoring the rule of law: supporting rights-sensitive transitional justice arrangements in postconflict and post-crisis countries.). [FN453]. Council of the European Union, supra note 443, at 12-13 (explaining the different phases of a mission). [FN454]. Id. at 13-15 (It has been agreed to further develop modalities for contributions of non-EU states to EU civilian crisis management operations, which could include rule of law missions. These modalities, which include the conclusion by the EU of participation agreements with participating non-EU states which are based on a model agreement that has been concluded by the Council, are of relevance to EU crisis management as a whole; suitable arrangements should therefore be elaborated at an early stage in order to ensure coherence and co-ordination both at the political/strategic level as well as in the field.).
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[FN455]. See, e.g., the Agreement between the European Union and the Republic of Croatia on the participation of the Republic of Croatia in the European Union Rule of Law Mission in Kosovo, O.J. L 317, 27.11.2008, at 20. [FN456]. Council of the European Union, supra note 443, at 14. [FN457]. Id. at 14-15. [FN458]. Id. at 14-18. [FN459]. Id. at 10-11. [FN460]. Council Joint Action 2008/124/CFSP, of 4 Mar. 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, 2008 O.J. (L 42) 92, amended by Council Joint Action 2009/445/CFSP, of 9 June 2009 amending Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, 2009 O.J. (L 148) 33. [FN461]. Id. at 93. [FN462]. Council Joint Action 2004/523/CFSP, of 28 June 2004 on the European Union Rule of Law Mission in Georgia, art. 2, 2004 O.J. (L 228) 21. [FN463]. Council Joint Action 2009/475/CFSP, of 11 June 2009 on the European Union Integrated Rule of Law Mission for Iraq, art. 2, 2009 O.J. (L 156) 57. [FN464]. Council Joint Action 2009/769/CFSP of 19 Oct. 2009, 2009 O.J. (L 274) 45; Council Joint Action 2007/405/CFSP of 12 June 2007, 2007 O.J. (L 151) 46, 47. [FN465]. Council Joint Action 2009/709/CFSP of 15 Sept. 2009, art. 1(1), 2009 O.J. (L 246) 33, 34. [FN466]. Id. [FN467]. They were undertaken within the framework of the EU Assistance for Reconstruction, Development and Stabilisation (CARDS), Council Regulation 2666/2000, 2000 O.J. (L 306) 1 (EC) (in the context of judges and prosecutors to be sent to Bosnia-Herzegovina), as well as of the Human Rights Regulation 1889/2006, 2006 O.J. (L 386) 1 (EC), in the case of EU action complementing the local judicial system with an international rule of law component under CFSP within the framework of the first crisis management Exercise (CME 02), and of Regulation 1717/2006, 2006 O.J. (L 327) 1 (EC), establishing an Instrument for Stability. [FN468]. See Case C-91/05, Comm'n of Eur. Cmtys. v. Council of the Eur. Union, 2008 E.C.R. I-3651 (regarding the legal base for the adoption of EU measures in relation to the non-proliferation of small arms and light weapons). [FN469]. See, e.g., Council Joint Action 2008/851/CFSP, of 10 Nov. 2008 on a European Union Military Operation to Contribute to the Deterrence, Prevention, and Repression of Acts of Piracy and Armed Robbery off the Somali Coast, 2008 O.J. (L 301) 33 (subsequently corrected and amended). [FN470]. The rules of engagement (ROE) may be described in short as instructions concerning the use of force. See International Institute of Humanitarian Law, Rules of Engagement Handbook (2009), available at http:// www.iihl.org/iihl/Documents/rule%20engagement%20definitive.pdf. [FN471]. The EU has adopted a Model Framework Participation Agreement and a Model (ad hoc) Participation Agreement. See, e.g., Agreement Between the European Union and the Russian Federation on the Participation in the European Union Military Operation in the Republic of Chad and in the Central African Republic (EUFOR Tchad/ RCA), 2008 O.J. (L 307) 16; other agreements include Croatia, O.J. L 307, 18.11.2008, at 33; Albania, O.J. L 307,
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18.11.2008, at 19 etc. [FN472]. See, e.g., Agreement Between the European Union and the Republic of Chad on the Status of the European Union-led forces in the Republic of Chad, 2008 O.J. (L 83) 40. [FN473]. Many of the EU military documents relating to EU military operations, including almost all of the legal instruments, are accessible to the public and are usually published in the Official Journal. Key sources are the CSDP pages on the Council's website as well as the public register of Council documents. [FN474]. European Council, A Secure Europe in a Better World, at 9 (Dec. 12, 2003), available at http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf. [FN475]. The 2003 European Security Strategy indicates that: The fundamental framework for international relations is the United Nations Charter. The United Nations Security Council has the primary responsibility for the maintenance of international peace and security. Id. [FN476]. See Council of the European Union, Revised draft Model Agreement on the status of the European Unionled forces between the European Union and a Host State, Doc. 12616/07 (Sept. 6, 2007), available at http:// register.consilium.europa.eu/pdf/en/07/st12/st12616.en07.pdf; Council of the European Union, Draft Model Agreement on the status of the European Union-led forces between the European Union and a Host State, Doc. 11894/07 (Sept. 5, 2007), available at http://register.consilium.europa.eu/pdf/en/07/st11/st11894-co01.en07.pdf; Council of the European Union, Draft Model Agreement on the status of the European Union-led forces between the European Union and a Host State, Doc. 11894/07 (July 20, 2007), available at http:// register.consilium.europa.eu/pdf/en/07/st11/st11894.en07.pdf. [FN477]. See 2003 O.J. (C 321) 6 (EU); Aurel Sari, The European Union Status of Forces Agreement, 13 J. Conflict & Sec. Law 353 (2008). [FN478]. 2004 O.J. (C 116) 1 (EC). [FN479]. See, e.g., The Agreement Between the European Union and the Republic of Albania on the Participation of the Republic of Albania in the European Union Military Operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/RCA), 2008 O.J. (L 219) 74. [FN480]. These terms are used interchangeably in this contribution. [FN481]. Although the contrary is often thought, in the EU Treaty tasks of combat forces in crisis management, including peacemaking cover peace enforcement and hence potentially high-intensity operations involving combat. Naert, supra note 439, at 95-96, 197-206 (2010). [FN482]. See generally id. at 463-540; Marten Zwanenburg, Toward a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Operations, in The European Union and International Crisis Management, supra note 439, at 395, 395-416. [FN483]. The outcome of the international humanitarian law European seminar of 22-24 April 2002 in Salamanca, Doc. DIH/Rev.01.Corr1. [FN484]. Convention of the Safety of United Nations and Associated Personnel, 34 I.L.M. 482, 487 (1995). Article 2(2) stipulates that This Convention shall not apply to a United Nations operation authorized by the Security Council as an enforcement action under Chapter VII of the Charter of the United Nations in which any of the personnel are engaged as combatants against organized armed forces and to which the law of international armed conflict applies.
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[FN485]. See also Frederik Naert, Challenges in Applying International Humanitarian Law in Crisis Management Operations Conducted by the EU, in L'Union Europeenne et le Droit International Humanitaire 139, 142 (Anne-Sophie Millet-Devalle ed., 2010). [FN486]. Council Joint Action 2003/423/CFSP, of 5 June 2003 on the European Union Military Operation in the Democratic Republic of Congo, 2003 O.J. (L 143) 50. [FN487]. Council Joint Action 2009/795/CFSP, repealing Joint Action 2007/677/CFSP on the European Union Military Operation in the Republic of Chad and in the Central African Republic, 2009 O.J. (L 283) 61. [FN488]. For example, on 16 June EU forces under attack returned fire and killed two attackers. See Operation Artemis: Mission Improbable?, Eur. Sec. Rev. (Int'l Sec. Info. Serv., Brussels, Belg.), July 2003, at 6 n.3. [FN489]. In particular, there was an internal armed conflict in Chad as well as in Sudan, and both countries had accused each other of supporting rebels fighting the respective governments. See, e.g., The Secretary-General, Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, 7-14, delivered to the Security Council, U.N. Doc. S/2008/215 (Apr. 1, 2008); The Secretary-General, Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, 10-15, delivered to the Security Council, U.N. Doc. S/2008/444 (July 8, 2008). In fact, it would seem that on two occasions, EUFOR personnel/assets were attacked by Sudanese armed forces. See The Secretary-General, Report of the Secretary-General on the United Nations Mission in the Central African Republic and Chad, 35, UN Doc. S/2008/215 (Apr. 1, 2008); The SecretaryGeneral, Report of the Secretary General on the United Nations Mission in the Central African Republic and Chad, 4, S/2008/760 (Dec. 4, 2008). These appear to have been isolated incidents that did not lead to any escalation. On the former incident, see also Press Release, EUFOR TCHAD/RCA, EUFOR Suffers Its First Fatality (Mar. 10, 2008); Press Release, EUFOR TCHAD/RCA, Remains Found in Sudan Believed to that of EUFOR Peacekeeper (Mar. 5, 2010); Press Release, EUFOR TCHAD/RCA, Lieutenant General Nash Appeal for Information on Missing EUFOR Peacekeeper (Mar. 4, 2010); Press Release, EUFOR TCHAD/RCA, OHQ Mont Valerien (Mar. 3, 2010), http://www.consilium.europa.eu/showPage.aspx?id=& lang=en. [FN490]. See, e.g., Council of the European Union, Conclusions of the External Relations Council, May 26-27, 2008, EU Council Doc. 9868/08, 33 (In observance of its mandate EUFOR Chad/RCA will act in an impartial, neutral and independent manner.); Council of the European Union, Conclusions of the External Relations Council, Oct. 15-16, 2007 (EU Council Doc. 13720/07), 10 (The operation will be conducted with full independence, impartiality and neutrality.). [FN491]. For a summary account of two incidents, see Press Release, EUFOR TCHAD/RCA, EUFOR Troops Challenge and Disperse Ambushers (Aug. 19, 2008); Press Release, EUFOR TCHAD/RCA, EUFOR Action Under Fire Protect IDP's Refugees (June 14, 2008), available at http://www.consilium.europa.eu/showPage.aspx? id=1368&lang=en. [FN492]. See generally Naert, supra note 439, at 541-658; F. Naert, Accountability for Violations of Human Rights Law by EU Forces, in The European Union and International Crisis Management: Legal and Policy Aspects, supra note 439, at 375, 375-93. [FN493]. For a partial EU perspective, see European Union Guidelines on Promoting Compliance with International Humanitarian Law (IHL), 2005 O.J. (C 327) 4, 5; Updated European Union Guidelines on Promoting Compliance with International Law (IHL), 2009 O.J. (C 303) 12, 13. [FN494]. By virtue of Article 103 of the UN Charter, obligations under the UN Charter prevail over other international agreements. States often invoke this as a basis for partially limiting or setting aside certain human rights in peace operations. For a leading judgment, see R (on the application of Al-Jedda) v. Sec'y of State for Defence,
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(2007) A.C. 58 (H.L.), available at http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd071212/jedda-. However, this is not uncontested and the European Court of Justice has shown far less deference to the UN Charter in some of its judgments on counter-terrorism measures. See, e.g., Case C-402/05 P, Kadi v. Council of the Eur. Union, (Sept. 3, 2008). The European Court of Human Rights has essentially shied away from ruling on this question so far. See, e.g., Behrami and Behrami v. France (Application No. 71412/01) and Saramati v. France, Germany and Norway (Application No. 78166/01), May 31, 2007. [FN495]. 2008 O.J. (C 115) 13, 19. [FN496]. Id. [FN497]. See also European Community, Mainstreaming Human Rights and Gender into European Defense and Security Policy, (2008), available at http:// www.consilium.europa.eu/ueDocs/cms_Data/docs/hr/news144.pdf. [FN498]. See generally Naert, supra note 439, at 179-91. [FN499]. O.J. L 303, 12.11.2008, p. 33. [FN500]. Exchange of letters between the EU and the government of Kenya, 2009 O.J. (L 79) 49; Exchange of letters between the EU and the Republic of Seychelles, 2009 O.J. (L 315) 37. [FN501]. In the context of Operation Atalanta, the EU is providing, under the Stability Instrument, aid on capacitybuilding for the Kenyan judicial system so as to reinforce its ability to prosecute suspected pirates while respecting human rights. [FN502]. European Union Guidelines on promoting compliance with international humanitarian law (IHL), 2005 O.J. (C 327) 4, 5-6. [FN503]. Until 1999, the EU had targeted the promotion of the rule of law democracy and human rights. Its policy mainly focused on economic cooperation under which the Member States continue to have their own policies. Thus, the EU assumed a rather weak role acting as an additional donor rather than a coordinator of European development policies. [FN504]. Tanja A. B rzel & Thomas Risse, Venus Approaching Mars? The EU as an Emerging Civilian World Power, 34 Archive of European Integration (AEI) (PDF format) (Berlin Working Paper on European Integration, 2009). [FN505]. Id. [FN506]. Tanja A. B rzel, The Transformative Power of Europe Reloaded: The Limits of External Europeanization 25 (Freie Universit t Berlin, KFG Working Paper Series No. 11, 2010), available at http:// www.daad.de/imperia/md/content/de/zentren/boerzel.pdf. [FN507]. Hadewych Hazelet, Carrots or Sticks? EU and US Sanctions in Reaction to Human Rights Violations (Sept. 17, 2001) (unpublished Ph.D. dissertation, European University Institute). [FN508]. Judith G. Kelly, Ethnic Politics in Europe: The Power of Norms and Incentives (Princeton Univ. Press 2004). [FN509]. The so-called Europe Agreements. [FN510]. Asle Toje, The European Union as a Small Power 183 et seq. (Palgrave MacMillan, New York 2010).
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[FN511]. See B rzel & Risse, supra note 504, at 36. [FN512]. The EU explicitly recognizes the UN Security Council as primarily responsible for the maintenance of international peace and security. See Council of the European Union, Joint Statement on UN-EU Cooperation in Crisis Management (June 7, 2007); European Council, EU-UN Cooperation in Military Crisis Management Operations: Elements of Implementation of the EU-UN Joint Declaration, Annex II, ESDP Presidency Report, European Council (June 17-18, 2004); Council of the European Union, Joint Declaration on UN-EU Co-operation in Crisis Management, Doc. 12730/03 (Sept. 19, 2003), available at http://www.consilium.europa.eu/showPage.aspx?id=&lang=en. The two organisations have established a joint consultative mechanism (Steering Committee) to examine ways of enhancing mutual cooperation in planning, training, communication and the exchange of best practice. The two organizations agreed to develop mutually reinforcing approaches to conflict prevention and to ensure that the EU's evolving military and civilian capacities would provide real added value for UN crisis management. EUPOL Kinshasa served as a test operation demonstrating that the EU can contribute effectively to a UN peace-keeping operation. [FN513]. Thierry Tardy, EU-UN Cooperation in Peacekeeping: A Promising Relationship in a Constrained Environment, in The European Union and the United Nations 49, 51 (M. Ortega ed., 2005) (stating that the capacity of the EU for autonomous operations under the Common Security and Defence Policy (CSDP) has not distracted European contributions from UN peace-keeping because while some EU Member States may be reluctant to place their troops under UN command, they contribute 39% of the UN peace-keeping budget (compared to 22% of the United States) and 37.75% of the regular budget (compared to 27% of the United States)). [FN514]. European Security and Defence Assembly/Assembly of the Western European Union, The EU-NATO Berlin Plus Agreements, Assembly Fact Sheet No. 14 (Nov. 2009), http://www.europarl.europa.eu/meetdocs/2004_ 2009/documents/dv/berlinplus_/berlinplus_en.pdf (containing a series of arrangements for EU access to NATO assets and capabilities). [FN515]. John F. Murphy, The United States and the Rule of Law in International Affairs 74 (Cambridge Univ. Press 2004). [FN516]. Ware v. Hylton, 3 U.S. 199, 281 (1796). [FN517]. The Paquete Habana, 175 U.S. 677, 700 (1900). [FN518]. Id. [FN519]. Whitney v. Robinson, 124 U.S. 190, 194 (1888). [FN520]. See Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001) (stating that for a norm to constitute jus cogens state practice must be extensive and virtually uniform). [FN521]. Michael J. Garcia, Cong. Research Serv., RL32528, International Law and Agreements: Their Effect Upon U.S. Law 1 (2010). [FN522]. Id. at 3. [FN523]. Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 415 (2003). [FN524]. See Garcia, supra note 521, at 2-4. [FN525]. U.S. Const. art. VI.
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[FN526]. Medellin v. Texas, 552 U.S. 491, 504 (2008). [FN527]. Id. at 504-05. [FN528]. Garcia, supra note 521. [FN529]. Whitney, 124 U.S. at 194. [FN530]. Ware, 3 U.S. 199 at 237. [FN531]. Reid, 354 U.S. 1. [FN532]. Belmont, 301 U.S. 324. [FN533]. Guy W. Capps, Inc., 204 F.2d 655. [FN534]. See Martha Minow, The Controversial Status of International and Comparative Law in the United States, 52 Harv. Int'l L.J. 1 (2010). For a criticism on the question of sovereign immunity in U.S. courts see D. Doernberg, Sovereign Immunity on the Rule of Law 71 et seq. 200 (Carolina Academic Press 2005). [FN535]. Jutta Brunnee, The United States and International Environmental Law: Living with an Elephant, 15 Eur. J. Int'l L. 617 (2004). [FN536]. Murphy, supra note 515. [FN537]. Id. at 350. See Institute for Energy and Environmental Research and Lawyers Committee on Nuclear Policy, Rule of Power or Rule of Law? 29-41 (N. Deller, A. Makhijani & Y. Borroughs eds., 2002). [FN538]. Id. at 133. [FN539]. Id. at 221. [FN540]. See Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No. 99-433, 100 Stat. 992 (1986). [FN541]. Hillary Clinton, U.S. Sec'y of State, U.S. Dep't of State, Foreign Policy Address at the Council on Foreign Relations (July 15, 2009), available at http://www.state.gov/secretary/rm/2009a/july/126071.htm. [FN542]. President Obama Speech on Libya, Mar. 2011, White House, National Security Strategy of the United States of America 4 (2010), available at http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_ strategy.pdf. Former President Bush has admitted that he personally approved waterboarding as a policy of government. See G.W. Bush, Decision Points (Crown 2010). [FN543]. Clinton, supra note 541. [FN544]. Id. [FN545]. Id. [FN546]. Id. [FN547]. Id. [FN548]. Id.
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[FN549]. Id. [FN550]. Id. [FN551]. Id. [FN552]. Id. [FN553]. Id. [FN554]. White House, supra note 542. [FN555]. Id. [FN556]. See U.S. Dep't of Army, Rule of Law tp://www.au.af.mil/au/awc/awcgate/law/rule_of_law_hdbk.pdf. Handbook i (2008), available at ht-
[FN557]. Id. (quoting White House, National Security Strategy of the United States of America 3 (2002)). [FN558]. Barack Obama, President, Remarks at CIA Headquarters (Apr. 20, 2009), available at https://www.cia.gov/news-information/speeches-testimony/president-obama-at-cia.html. [FN559]. White House, National Security Strategy of the United States of America 22 (2010). [FN560]. U.S. Army Peacekeeping and Stability Operations Inst., Rule of Law Conference Report July 6-9 2004, at 1 (2004). It is worth recalling that in the report on the rule of law adopted by the conference sponsored by the United States Army Peacekeeping Stability Operations Institute, 6-9 July 2004, it is recognized that today, the United States role is changing from that of the dominant military power in the world to that to the biggest exporter of security in the world. As the United States becomes more involved in peace keeping and stability operations, the report underlines that in the pursuit of its new global responsibility, it is necessary for its leaders, both military and civilian, to have an understanding of the issues relating to the rule of law. Id. The report includes the following definitions of rule of law: the rule of law in the context of peace operations incorporates international and municipal legal obligations and standards applicable to all parties involved in the peace process. As a principle it includes the application of the charter of the United States, international humanitarian law, human rights law, military law, criminal law and procedure, and constitutional law. It also incorporates principles that govern civil and criminal accountability for management and conduct of peace operations (peace keepers). It also allows for follow-up mechanisms to ensure that complaints made against peace keepers are investigated, and were necessary, appropriate enforcement action is taken. The rule of law includes standards by which national institutions of the host country may be held accountable for the failure to comply with universal legal principles and rules. The rule of law is also the framework that governs the relationship between intervening forces and the local community; and the basis upon which the local population may be held accountable for their actions prior to, and following, the intervention. Id. at 2. [FN561]. Torsten Gersdorf, Comparison of the Security Strategies of the United States and the European Union: Is There a Common Approach in Combating Terrorism? 15 (2005), available at http://www.dtic.mil/cgi-bin/GetTRDoc? Location=U2&doc=GetTRDoc.pdf&AD=ADA437450. The EU concept of failed states is different from the U.S. concept of rogue states or the George W. Bush axis of evil. The EU recognizes that failed or failing states are a major source of instability, but it advocates the extension of the rule of law and better governance rather than regime change. The NSS argues that failing states threaten America's security, but does not outline how to keep those states from failing and how to rescue those that have. [FN562]. White House, supra note 559, at www.globalsecurity.org/military/library/policy/national/nss-020920.pdf. 1, available at http://
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[FN563]. Id. at introductory remarks by Pres. George W. Bush. [FN564]. Id. at 6. [FN565]. Council of the European Union, supra note 443, at 9. [FN566]. Id. at 11. [FN567]. Kari M tt l, The Security Strategies of the European Union and the United States as Global Actors: Shifts and Connections in Culture, Function and Power (March 1-5, 2005) (unpublished manuscript) (paper prepared for the ISA Annual Convention, Honolulu, HI). [FN568]. Robert Kagan, Of Paradise and Power: America and Europe in the New World Order (2003). [FN569]. Id. [FN570]. Id. [FN571]. Mary Elise Sarotte, Transatlantic Tensions and European Security (Inst. of European Studies, Univ. of California, Berkeley, Working Paper No. 060505, 2006). [FN572]. G. John Ikenberry, America's Liberal Grand Strategy: Democracy and National Security in the Post-War Era, in American Democracy Promotion: Impulses, Strategies, and Impacts 103, 103-04 (Michael Cox, G. John Ikenberry & Takashi Inoguchi eds., 2000). [FN573]. Immanuel Kant, Perpetual Peace (Bobbs-Merrill Co., Inc. 1957) (1795). [FN574]. Martin Konstantin K hring, Beyond Venus and Mars: Comparing Transatlantic Approaches to Democracy Promotion 6-7 (E.U. Diplomacy Papers, Working Paper No. 5/2007, 2007). [FN575]. Id. (quoting Michael Edward Brown, Sean M. Lynn-Jones & Steven E. Miller, Debating the Democratic Peace xiii (1996)). [FN576]. Francis Fukuyama, The End of History and the Last Man (1992). [FN577]. Samuel P. Huntington, The Third Wave: Democratization in the Late Twentieth Century (1991). [FN578]. Jeffrey Kopstein, The Transatlantic Divide over Democracy Promotion, 29 Wash. Q. 85, 93 (2006). [FN579]. Robert Cooper, The Breaking of Nations: Order and Chaos in the Twenty-first Century (2003). [FN580]. Robert Cooper, The Post-Modern State, in Re-Ordering the World 11, 17 (Mark Leonard ed., 2002). See generally, Robert Cooper, The Post-Modern State and the World Order (2000). [FN581]. K hring, supra note 574, at 14-23. Haizam Amirah-Fernandez & Irene Menendez, Reform in Comparative Perspective, U.S. and E.U. strategies for democracy promotion in MENA region after 9/11, 17 J. Contemp. Eur. Stud. 325 (2009). [FN582]. Helms-Burton Act, 22 U.S.C. 6021-6091 (1996). [FN583]. Gersdorf, supra note 561. [FN584]. Kopstein, supra note 578, at 85.
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[FN585]. Laurence Whitehead, Europe, Transatlantic Co-operation, and Democratization, Promoting Democracy and the Rule of Law: EU and US Strategies and Instruments 3 (2004). [FN586]. Thomas Carothers, Aiding Democracy Abroad: The Learning Curve 6 (1999). [FN587]. K hring, supra note 574. Richard Youngs, Democracy Promotion: The Case of European Union Strategy 49 (Centre for European Policy Studies, Working Paper No. 167, 2001). [FN588]. United States Institute of Peace, Guiding Principles for Stabilization and Reconstruction (2009), available at http:// www.usip.org/files/resources/guiding_principles_full.pdf. [FN589]. Herman van Rompuy, The Challenges for Europe in a Changing World 1-16 (E.U. Diplomacy Papers, Working Paper No. 3/2010, 2010). 72 U. Pitt. L. Rev. 229 END OF DOCUMENT
14 TOUROILR 1 14 Touro Int'l L. Rev. 1
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Article Touro International Law Review 2010 IS THE UNITARY EXECUTIVE THEORY SPREADING TO THE EUROPEAN UNION? A COMPARATIVE LOOK AT THE LISBON TREATY John J. Garman [FNa1] Copyright 2010 Touro International Law Review; John J. Garman The United States and the member-states of the European Union have decidedly different approaches when it comes to the allocation of executive power. The United States has placed, ever increasingly in the last eight years with the presidency of George W. Bush, more executive power in a sole individual, the President himself. In contrast, the European Union has traditionally refused to place the same level of authority in a sole individual, but in Committees and Commissions comprised of elected individuals or persons chosen by the member-states. The Lisbon Treaty, however, may be a first step down the road of a much stronger European Union unitary executive. This paper analyzes the different treatment of the executive in the two systems. Part I analyzes the evolution of power in the chief executive of the United States, in particular the rise of the unitary executive theory, while Part II lays out the political institutions at work in the European Union and its increasing acceptance of a stronger executive through the Lisbon Treaty. I. The United States and its Unitary Executive In recent years, the role of the President and the executive branch has expanded, making it potentially unrecognizable to the Framers of the Constitution. To some, this expansion places too much power in one person and is contrary to the Constitution's separation of powers. To others, known as unitary executive theorists, this expansion is a fulfillment of the proper presidential role contemplated and created by the Founders. [FN1] The unitary executive theory asserts that the President should have direct control over all federal officers exercising executive power, including disciplinary and removal powers. [FN2] This exists simply because the President is the head of the executive department. [FN3] Conversely, non-unitarians believe Congress may vest executive power in subordinate officers while simultaneously insulating these officers from the President's control. [FN4] The implications of this argument are compelling. Beginning with the New Deal, Congress greatly expanded its role in administrative agencies, which often vest executive power in independent agencies. [FN5] The main consequence of following a unitary executive theory is that if the President possesses all executive power, then agencies and other bodies or officers exercising discretionary executive power without presidential control or oversight are unconstitutional. [FN6] In other words, the President must have some control over this power as head of the executive department. Because our current government relies heavily on these administrative agencies, a declaration to this effect would be crippling. In stark contrast to the unitary executive system in America, the executives of the European Union operate a system with elected individuals working together to lead administrative agencies. The battle lines of the unitary executive argument focus on three issues for disagreement. The first, and
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arguably most significant disagreement, deals with the meaning of the Vesting Clause of Article II of the U.S. Constitution. [FN7] Article II's vesting clause states, The executive power shall be vested in a President of the United States of America. [FN8] Unitary executive theorists view Article II's vesting clause as a specific grant of power. [FN9] Their main textual illustration stems from the similarities between Article II's vesting clause and Article III's vesting clause that established the judicial branch. [FN10] These two constitutional clauses are essentially identical in language and structure. Because Article III's vesting clause is considered a power grant to the judiciary, [FN11] then, according to unitary executive theorists, so should Article II's vesting clause. [FN12] Also, contrast Article II with Article I's vesting clause, which employs the phrase herein granted when vesting power. [FN13] Article II's vesting clause does not include such language suggesting that the list of presidential power listed in Article II is non-exclusive. [FN14] The second topic for disagreement deals with the interplay between Congress and the President. The Constitution permits the President to appoint inferior officers while Congress can place the appointment of certain officers in people other than the President. [FN15] Article I, however, allows Congress [t]o make all laws which shall be necessary and proper for carrying into execution the powers conferred upon them in the Constitution. [FN16] Congress has broad power under the Necessary and Proper Clause and such power allows them to structure the executive department. [FN17] Based on this authority, Congress has, at times, created agencies and placed them outside of the reach of the executive department. Unitary executive theorists, however, believe the Necessary and Proper clause does not allow Congress to structure the executive department in such a way where the President has no control over the independent agencies. [FN18] Finally, the importance of Article II's Take Care Clause [FN19] is under debate. Unitary executive theorists believe Article II's vesting clause read in conjunction with the Take Care Clause establishes a hierarchical, unified executive department under the direct control of the President. [FN20] After all, the vesting clause mentions a President, not a group of executives. Thus, the President, so the argument goes, can direct, control, and supervise inferior officers or agencies who seek to exercise discretionary executive power. [FN21] On the other hand, Article II also includes a provision allowing the President to require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. [FN22] As opponents of the unitary executive theory point out, why would the framers place a provision allowing these opinions in writing if the Article II vesting clause already gave the President such power? [FN23] Surely a President who can direct and supervise inferior officers could request an opinion without an explicit declaration in the Constitution. Would the Opinions in Writing Clause not then suggest an inference against broad presidential power, or are we to assume that this clause just further explains what rights and powers the President has? Alexander Hamilton, co-author of The Federalist papers, was perhaps the strongest advocate for a strong unitary executive during the founding period. [FN24] He believed such an inference against a strong unitary executive was incorrect as he considered the Opinions Clause a mere redundancy in the plan, as the right for which it provides would result of itself from the office. [FN25] Hamilton also believed plurality in the executive would create a lack of accountability that would lead to buck passing. [FN26] According to Hamilton, [o]ne of the weightiest objections to a plurality in the executive is that it tends to conceal faults, and destroy responsibility. [FN27] Expanding on Hamilton's opposition to plurality in the executive, Professor Steven Calabresi, a leading supporter of the unitary executive theory, declared plurality makes it harder for citizens to expose wrongdoing within the executive department because each officer would blame a different person for alleged improper conduct. [FN28] The United States debated the idea of a plural executive, and this idea was staunchly rejected. [FN29] Eldrige Gerry favored annexing a council to the executive because he, along with other participants in the Constitutional Convention, was concerned that a single executive would trend towards monarchy, but that a plural executive would lack sufficient energy and authority. A unitary executive, on the other hand, would be jealously
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guarded and watched and thus more accountable for his actions. [FN30] Most of the early presidents had a similar view of accountability for the unitary executive. Andrew Jackson believed he had a responsibility to the American people as their only direct representative. [FN31] According to Jackson, this made him responsible and accountable to the American people for the entire executive department. Jackson was not the first president to assert such a claim. Washington and Jefferson also emphasized the president's independent electoral connection with the [American] people. [FN32] According to Jackson, because the President has a special duty to the entire population to ensure the execution of the laws, it is a necessary consequence that he should have a right to employ agents of his own choice to aid him in the performance of his duties, and to discharge them when he is no longer willing to be responsible for their acts. [FN33] Unitary executive theorists have three potential models regarding the scope of the President's power. [FN34] However, they readily admit the text of Article II and historical practice give little help in determining which unitary executive theory model is correct. [FN35] The strongest model of presidential power allows the President to take action in place of commissioners or officers, even if a federal statute purports to give the officer discretionary executive power. [FN36] According to this model, because the President has the power to execute the laws (and must take care that the laws are faithfully executed), the President can step into the shoes of any subordinate and directly exercise that subordinate's statutory power. [FN37] Several early Presidents seemed to have this idea in mind during their presidencies. George Washington made all major decisions and had his hand in most minor decisions during his administration. [FN38] The heads of department during the Adams administration were more properly considered presidential assistants. [FN39] James Monroe was determined that there be left no loose ends of administration unconnected with the departments and independent of presidential direction. [FN40] A second, slightly weaker form of the unitary executive theory states that while the President may not directly exercise the subordinate's power, he can nullify or veto any action by a subordinate with which he disagrees. [FN41] Although he cannot directly exercise the subordinate's power, he can force the officer to alter his actions by vetoing the original actions. Notwithstanding these first two models, the debate over the unitary executive theory in the Supreme Court has focused on whether the President has an unlimited removal power concerning executive officers, which is the third and weakest form. [FN42] When a subordinate acts in a way contrary to the President's wishes, the President can remove this officer. Under the removal theory, a subordinate's actions prior to removal remain valid even after the officer is removed from his duties. Only a legally appointed successor can revoke the original actions, not the President. [FN43] Chief Justice Taft in Myers v. United States, [FN44] acknowledged the presidential removal power claiming the president derived an unlimited presidential removal power over certain subordinate executive officials from, among other sources, the Article II vesting clause and the Take Care clause. [FN45] When making his decision, Taft also relied on the Decision of 1789, where the early Congress recognized a constitutional, not congressional, basis for the President's removal power. [FN46] The Decision of 1789 came out of discussion surrounding the bill creating the Department of Foreign Affairs. Language in an early draft of the bill suggested the power to remove was based on a congressional grant of power to the President. In other words, the President could only remove a subordinate officer if Congress gave him the power. He did not have the power on his own. A Representative later altered this language to erase the implication, and the bill was passed with the amended language. [FN47] This alteration essentially acknowledged that the President's removal power stemmed from the Constitution. Nonetheless, Supreme Court cases dealing with the President's removal power since then have been contradictory. In Humphrey's Executor v. United States, [FN48] the character of the office determined whether the President had an unlimited power to remove the officer in charge. More specifically, the President lacked
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an unlimited removal power when the independent agency was not purely executive. [FN49] Justice Rehnquist's majority opinion in Morrison v. Olson [FN50] dismisses the Humphrey's Executor characterbased determination and employs a balancing test- which allows congressional limits on the president's removal power when the limits do not unduly trammel[] on an executive authority or impermissibly burden[] the President's power to control or supervise independent officers. [FN51] Justice Scalia's dissent in Morrison follows the same route as Taft's did in Myers because he affirmed the President's unlimited removal power based on the power-granting reading of Article II's vesting clause. [FN52] In support of their view, non-unitarians read Article II's vesting clause as merely a designation of the presidential office and not an independent grant of power to the President. [FN53] Because Article II, Section 2 enumerates specific presidential powers, the non-unitarian reads the vesting clause as essentially meaningless. [FN54] Non-unitarians have a broader idea of congressional power and a functionalist theory of the executive power. Specifically, Congress's power under the Necessary and Proper clause to structure the executive department allows Congress to insulate subordinate officials from presidential control by creating independent agencies and officers. [FN55] Consequently, as long as Congress does not deprive the President of any of the five enumerated powers listed in Article II, they can divest the President of executive power. [FN56] Non-unitarians focus on two clauses in the Constitution in support of their argument--the Article II power allowing Congress to vest the appointment of inferior officers as department heads and the Article II executive power to obtain opinions in writing. [FN57] Specifically, non-unitarians claim the first clause would be meaningless if the department heads were completely subject to the President's preferences. [FN58] Non-unitarians question the need for the Opinions in Writings clause if Article II vests executive power to the President. Constitutional provisions are not likely to be redundant, as Hamilton and the unitary executive theorists claim. [FN59] Additionally, non-unitarians assert the Take Care Clause in the Constitution only requires the President to take care that the laws be faithfully executed. They claim that there is no provision stating who should execute the laws, only that the President must ensure that the laws are faithfully executed. [FN60] Perhaps the most compelling argument in favor of an anti-unitarian model comes from Professors Lawrence Lessig and Cass Sunstein. They believe the strong unitary executive theory is a creation of the twentieth century, not the eighteenth. [FN61] Prior to the twentieth century, Abraham Lincoln arguably yielded the most powerful executive: Commander-in-Chief. [FN62] Yet many scholars believe his increased power stemmed from the exigent circumstances surrounding the secession and the Civil War. [FN63] Although powerful, Presidents prior to the twentieth century did not exercise as much power as their twentieth century counterparts. [FN64] Americans in the twentieth century began to look to the President not simply as an administrator but rather as the focus of political leadership and the predominant voice in shaping public policy. [FN65] Presidents were well aware of this shift in American ideology and took an even larger role in the executive department. According to Lessig and Sunstein, these changed circumstances should be considered when determining the scope of executive power. [FN66] Plurality has crept into our government, at least in practice. The multitude of administrative agencies running daily government tasks multiplied exponentially during the New Deal era of the 1930s. George Washington claimed other executive officials existed only because it was impossible for one man to perform all the great business of the State, and thus the proper role for these officials was merely to assist the supreme Magistrate in discharging the duties of his trust. [FN67] While Washington was right about it being impossible for one man to perform all the business of the United States, the current role of many executive officials and now administrative officers is much more than mere assistance to the President. While all Presidents supported a strong unitary executive, [FN68] Franklin Delano Roosevelt was also a strong supporter of a pluralistic view of administration. [FN69] Roosevelt believed permanent officials were the ideal administrators because they were able to mediate between the technician, the politician, and the
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public. [FN70] During his presidency, Roosevelt believed his task as President was to employ pluralistic methods to make bureaucracy an instrument of democracy. [FN71] Nevertheless, Roosevelt chastised Congress for interfering with his executive power when the House Un-American Activities Committee tried to have him remove certain bureaucrats from federal employment. [FN72] In his attempt to reorganize the federal government, Roosevelt wanted all independent agencies consolidated into executive departments. [FN73] Richard Nixon also wanted independent agencies placed into a new executive agency. [FN74] Independent agencies were originally created to shield regulatory process from the partisanship of the executive branch. [FN75] Nixon argued the independent nature of the agencies made them not sufficiently accountable to either Congress or the executive branch. [FN76] For this reason, he called for presidential oversight into these agencies. While U.S. Presidents continued to claim dominance over the executive department, Congress did not stop in its attempts to influence the execution of the laws and limit presidential power. In addition to independent agencies, the use of legislative vetoes and independent prosecutors attempted to take power away from the President. President Truman began objecting to legislative vetoes when Congress interfered with his desire to reorganize the federal government. [FN77] Attempting to exert even more presidential power, Truman issued an executive order seizing steel mills after an impending steelworker strike threatened to affect production of steel used in combat against the Koreans. [FN78] Instead of citing statutory authority for his actions, Truman insisted he had constitutional authority by stating, Remembering that we do not have a parliamentary form of Government but rather a tripartite system which contemplates a vigorous executive, it seems plain that Clause I of Article II cannot be read as a mere restricted definition which would leave the Chief Executive without ready power to deal with emergencies. [FN79] The Supreme Court eventually ruled that President Truman's actions were erroneous. [FN80] With several concurrences in the opinion, much debate exists over how much the case limits executive power. Justice Jackson's concurring opinion, now regarded as controlling precedent employs a non-unitarian ideology by claiming the Article II vesting clause is simply a description of the office of President. [FN81] Justice Frankfurter, on the other hand, accepted the notion that long-established custom or usage could be a gloss on the executive power vested in the President. [FN82] Notwithstanding the uncertainty surrounding the actual holding of the Steel Seizure Case, leading unitarians believe the case is entirely consistent with their theory of the unitary executive. They believe Truman went too far under the facts of this case, but it does not change the fact that the Vesting Clause of Article II is a sweeping grant of power to the President, as the Truman Administration argued it was. [FN83] In an attempt to regain power they believe Congress has taken, Presidents after Truman continued to object to legislative vetoes. [FN84] While the legislative veto was eventually declared unconstitutional, the grounds for such a declaration came from a lack of congressional power in Article I and not infringement of executive power in Article II. [FN85] Even though it was not overturned on a unitary executive theory, the lack of a legislative veto increases the power of the executive. In addition, modern Presidents often exert control over independent agencies. The Brownlow Committee's proposal during the Roosevelt administration declared independent agencies to be a headless fourth branch of government, completely inconsistent with the separation of powers heralded in the constitution. [FN86] Because of their vast power for law execution and their lack of supervision by the executive or legislative branches, Roosevelt recommended incorporating the independent agencies into the executive department. [FN87] Also exerting power over independent agencies, John F. Kennedy's executive orders imposed ethical standards on independent agencies as well as executive departments. [FN88] Lyndon Johnson, in his first few meetings with the executive department as President, warned agency commissioners that he would intervene when he disagreed with their
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policies, regardless of their independent nature. [FN89] As mentioned earlier, Nixon also wanted to reorganize the government by placing independent agencies within the executive department. [FN90] After the Nixon Watergate scandal and his abuse of executive power, Congress again tried to place limits on the executive branch through the Ethics in Government Act. [FN91] This law allowed court-appointed independent prosecutions to investigate wrongdoing within the executive department. [FN92] While this step may have seemed necessary after the Nixon Watergate scandal, subsequent events in the Clinton administration, ending in his impeachment, caused the executive department and many of the American people in general to dislike independent prosecutors. [FN93] While the Supreme Court had upheld the constitutionality of independent counsels in Morrison , [FN94] the Ethics in Government Act, authorizing such counsel, was allowed to lapse in 1999 for lack of support from both political parties. [FN95] In a further attack against perceived legislative encroachment into the executive, former president George W. Bush insisted on unilateral president power to fire subordinate federal employees in the recently created Department of Homeland Security. [FN96] II. Historically, the President of the United States has exercised the executive power as outlined by the U.S. Constitution. [FN97] Thus, presidents have adhered to the unitary executive theory by maximizing the constitutional power he is entitled. [FN98] Calabresi, Colangelo and Yoo argue each president has subscribed to this unitary executive theory, making it a constitutionally permissible action. [FN99] However, the unitary executive theory is not prominent across the globe. [FN100] For example, the European Union (EU), made up of multiple sovereign nations, [FN101] has attempted to establish a supranational level of democracy. [FN102] Within the several institutions governing the EU, different levels and forms of democracy take hold. [FN103] However, with the implementation of the Treaty of Lisbon, a new post, President of The European Council [FN104], has been created that may rival that of the executive of the United States. Although the creation of President of The European Council is relatively new, the EU already has an executive arm despite being shared by several institutions. [FN105] This paper will further explore the institutions of the European Union in order to discover if the unitary executive theory is practiced in this relatively new government. As Henry Kissinger once pointed out, When you want to talk to Europe, whom do you call? [FN106] This dilemma represents the underlying dream for modern Europe: unification. From Napoleon to the central powers of World War I and the Axis powers of World War II, the European continent has seen its share of struggles for power by its rulers. Kissinger's comment finally seems to have an answer within the EU. The political institutions compromising both the European Union and the United States bare slight similarities and are, on the whole, entirely different, especially when examined in light of the unitary executive theory. The key institutions and their typical executive functions that this paper will analyze are the European Commission, European Council, European Parliament and the European Central Bank. A. European Union Executive Institutions In 1992 twelve independent countries (Belgium, Denmark, Germany, Greece, Spain, France, Ireland, Italy, Luxembourg, The Netherlands, Portugal, and the United Kingdom) signed the Treaty on European Union (often called the Maastricht Treaty) laying the foundation for a united Europe. [FN107] The Maastricht Treaty calls for the creation of a union to enhance further the democratic and efficient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them. [FN108] This treaty created the institutions we analyze here. [FN109]
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The European Parliament consists of 785 ministers (MEPs) elected directly by voters every five years from the EU member states. [FN110] Following elections, MEPs align themselves based on political parties as opposed to nationality. [FN111] Pursuant to the Treaty of Maastricht, the European Parliament will act jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions. [FN112] Because the EU Parliament maintains no practical veto power over the EU Council, any power that is exercised is essentially formalistic in nature. [FN113] The European Commission is the highest administrative body in the EU. [FN114] The Commission concentrates on the supranational functions and governing institutions of the EU. The Commission has the mission of promoting the general interest of the European Union. [FN115] Accordingly, the Commission achieves their mission by proposing laws, overseeing implementation of signed treaties, and carrying out policy. [FN116] The Council of the European Union represents the national governments of the various EU member states and, houses the closest semblance of a single executive. The Council represents the member states and one minister attends its meetings from each member state. [FN117] The ministers that attend a particular meeting vary by the Council's meeting agenda. [FN118] For example, if the Council's agenda calls for discussion of the agriculture policy, then each member state's agriculture minister or ranking member will attend the meeting. Presently, there are nine different Council configurations. [FN119] These configurations are as follows: (1) General Affairs and External Relations; (2) Economic and Financial Affairs; (3) Justice and Home Affairs; (4) Employment, Social Policy, Health and Consumer Affairs; (5) Competitiveness; (6) Transport, Telecommunications and Energy; (7) Agriculture and Fisheries; (8) Environment; and (9) Education, Youth and Culture. [FN120] Each minister in the Council is empowered to commit his or her respective government, but each minister is responsible to his or her own national parliament. [FN121] The presidents and prime ministers of the member states, along with the President of the European Commission, meet together at least four times a year with the European Council. [FN122] These meetings are designed to set overall policy for the EU as well as resolving disputes at the lower levels of the EU. [FN123] The Council's power stems from participating and overseeing each level of EU government. The President of the European Council may be the single executive counterpart to the President of the United States. Created by the Treaty of Lisbon, The President of the European Council eroded the sixmonth rotating presidency that had previously presided over the Council. [FN124] The European Council now elects the President by a qualified majority for a two and a half year term, renewable once. [FN125] However, the President may not hold national office when serving in this capacity and is only removable for serious misconduct or impediment. The Treaty of Lisbon, in amending the Treaty on the European Union, sets the authority and scope for the President. Primarily, the President is responsible for pushing forward the Council's work by gaining cohesion and consensus within it. [FN126] In addition, the President is required to work with the President of the Commission and to present a report to Parliament after each Council meeting. [FN127] The President also has the authority to convene a special meeting of the Council if the situation so requires and must be the face of the European Union on security and foreign policy issues. [FN128] The President's authority on security and foreign policy is deep. The President may convene a special meeting of the Council if international developments require the European Union to define the strategic lines of the Union's policy in the face of such developments. [FN129] Additionally, any proposed amendment to a treaty must be sent to the European Council. [FN130] There, the President has the power to convene a convention with the heads of governments of the member states before accepting the proposal. [FN131]
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Discussions regarding the powers of the President had large member states supporting it and small states opposing. [FN132] The larger states are also more likely to cede even more power regarding foreign policy to the Union, which leads directly to the President. [FN133] While the President does share some executive power with the President of the European Commission, the Treaty of Lisbon does not prohibit the powers or the presidencies to merge. [FN134] If each institution maintains its own separate president, some foreign policy issues, although few, fall under the control of the Commission. [FN135] However, because the Treaty of Lisbon does not prohibit the merger, a single president presiding over each institution would effectively establish a single executive perhaps leading to a more effective governing system. [FN136] Arguably the most difficult aspect in the EU is convincing individual sovereign states to believe it is in their best interest to act in betterment of the collective. A comparison of the EU's executive structure (the President of the European Council, the European Council itself, and the European Commission) to the United State's, is necessary to show what power the executive body of the EU has over the EU and its member states in light of the unitary executive theory. The examination includes the traditionally executive areas: appointment and removal powers, foreign policy, and control of independent agencies. B. Executive Functions Appointment and removal powers are key responsibilities of an executive. The U.S. Constitution provides the President with the authority to appoint officers with the advice and consent of the Senate, as well as appoint other inferior officers that Congress allows. [FN137] As stated above, under the unitary executive theory, the removal of both types of Article II officers rests exclusively with the President because the Constitution does not provide for removal save impeachment. The European Union provides various different avenues for appointments of its officers. For example, the appointment of Commissioners in the European Commission are appointed by the governments of the member states acting in common agreement with one another. [FN138] The European Council is composed of representatives of the member states. [FN139] Each government's minister whose area of responsibility corresponds with the Council's agenda attends the meeting. [FN140] Each government, therefore, controls the appointment of their respective ministers and, as such, each member may be removed or recalled according to the laws in the respective country. [FN141] The EU has, therefore, devolved its appointment and removal powers, not to one person, but to the member states. Because each member state appoints its commissioner based on a rotating schedule along with its respective ministers, no one individual with the EU has outright control over appointment or removal. This is in contrast to the United States. This is largely because the EU is a supranational organization and is unrealistically difficult to expect the sovereign states to forgo all power in appointing and recalling its ministers. In order for the EU to maintain its legitimacy as a supranational organization, the EU must allow certain powers to exist within its member states. This is in stark contrast to the power wielded by the President of the United States. The President of the United States, for example, does not work for individual members of the sovereign states, as does the President of the European Council. The power wielded by the President of the European Council is severely lacking to that of the United States. The level of foreign policy power an executive carries is paramount in determining if the unitary executive theory exists. The U.S. Constitution names the President as the Commander-in-Chief of the Armed Forces and calls for the President to receive ambassadors and other ministers. [FN142] Under the unitary executive theory, the President maintains broad control over the country's foreign policy and military. Congress, however, maintains very specific powers regarding U.S. foreign policy. Most notably, Congress maintains the power to declare war. [FN143] This separation of powers theoretically requires consensus of more
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than one branch of government in order to conduct foreign affairs. The unitary executive theory, however, allows for the President to direct the military, as the Commander-in-Chief of the Armed Forces. In contrast, the European Council is the only entity that creates foreign policy. [FN144] Neither the European Parliament nor the European Commission plays a significant role in creating and implementing the EU's common foreign and security policy. Evaluated under the unitary executive theory, the European Council is the closest entity to a unitary executive in comparison to the United States. The European Council has the sole role of creating and implementing the EU's foreign policy. [FN145] Being part of the executive of the EU, the Council most certainly exercises the largest swath of executive power where foreign and security policy is concerned. There still remains the glaring contrast to that of the executive in the U.S. Constitution. While in the United States, the President is the sole individual in charge of the armed forces. [FN146] In contrast, the EU does not maintain armed forces. The President of the U.S. receives ambassadors and other foreign ministers, [FN147] and the EU provides for the President of the European Council to represent its interests abroad [FN148] but no official head of state exists to receive such ambassadors. Moreover, the EU provides no entity authority to declare war or to raise and maintain an army or navy. Perhaps the most significant difference is that the EU is a supranational organization with a common economic goal and entirely lacking armed forces. However, the newly created post of President of the European Council may be headed to unify all of Europe with respect to foreign policy and defense. The unitary executive theorists believe independent governmental agencies are unconstitutional because those agencies, such as the Federal Election Commission, fall outside the scope of the executive's control over the agency. [FN149] As noted above, because these independent agencies either report to Congress or some other governmental entity, the unitary executive theorists believe these agencies as lacking constitutional authority. The executive branch is charged with the execution of the laws and as such any administrative agency aiding in the administration must be directly responsible to the Chief Executive in order to comply with the Constitution. [FN150] Some argue that the independent executive councils that have emerged have splintered the President's executive power, thus curtailing his powers as an executive. [FN151] However, in the European Union, independent agencies are responsible to all aspects of the Union, not just one entity. For example, the European Central Bank (ECB) acts similar to the Federal Reserve Bank in the United States. The ECB evolved from the European Monetary Institute after the Euro became the currency of EU's member states. [FN152] The ECB serves as the governing bank over the European System of Central Banks (ESCB). [FN153] More specifically, the ESCB seeks to carry out the following tasks: (1) to define and implement the monetary policy of the Community; (2) to conduct foreign exchange operations; (3) to hold and manage the official foreign reserve of the Member States; (4) to promote the operation of payment systems; and (5) to perform certain advisory functions. [FN154] The EU seeks to allow the ECB to have a degree of political freedom in order to act in the best interest of the EU's monetary policy. Because the preeminent goal of the EU is to create a common, viable economic market in the EU [FN155], the independence of the EU is perhaps an effective means to an end. Because the ECB maintains such a degree of independence, this seems to indicate a clear rejection of the unitary executive theory. The ECB creates and implements monetary policy without any consultation to the EU's or the member states governing bodies. [FN156] While each member state has a small degree of control, the power rests with the Executive Board of the ECB. [FN157] The only real power the EU maintains over the ECB is the appointment of the board's members. [FN158] The emphasis is placed on the bank's ability to be independent of any outside political or even economic pressures placed on it by the member
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states. For the unitary executive theory to apply, the EU executive must have some intimate amount of control over the agency in addition to mere appointment. As it stands, the ECB is all but entirely independent. IV. Conclusion The European Union lacks the power of a unitary executive as present in the United States. However, the Treaty of Lisbon has laid the foundational blocks for a change in democracy. The new post of President of the European Council and, the subsequent corresponding powers, gives the European Union a single face in international relations. The newly elected President, Herman Van Rompuy, is shouldered with similar duties and responsibilities to that of each head of the member states, but for the entire European Union. Policy areas typically reserved for other branches of the Union or to the member states have now shifted to that of the President. The creation of the President of the European Council has increased the single face executive in the Union. However, not all executive powers are under his umbrella of authority. Some of the powers, as documented above, are shared with the President of the Commission, whereas in the United States the President has no other executive branch authority with whom he must share authority. The Treaty of Lisbon does leave the door open to such control as seen in the United States. Will the European Union seize such an opportunity to have a complete single executive? Will the rest of the world respect the current President of the European Council as a foreign policy leader for all of Europe? Will President Barrack Obama expand on his predecessor's move to strengthen the executive branch? With the Treaty of Lisbon too new to see developments, time must be the ultimate judge.
[FNa1]. Professor of Law, Faulkner University, Thomas Goode Jones School of Law. LL.M. in European Business Law (with distinction) Universit de Droit, d'Economie et des Sciences d'Aix-Marseille (Aix-Marseille III). J.D. Vanderbilt University School of Law. [FN1]. Professor Steven Calabresi, with other constitutional scholars, wrote a series of articles where he details each President's efforts toward building a strong unitary executive. These articles serve as a basis for much of the background mentioned in this article. These articles include multiple examples of presidential support for the unitary executive theory. See generally Steven G. Calabresi & Christopher Yoo, The Unitary Executive During the First Half-Century, 47 CASE W. RES. L. REV. 1451 (1997) [hereinafter First HalfCentury]; Calabresi & Yoo, The Unitary Executive During the Second Half-Century, 26 HARV. J.L. & PUB. POL'Y 667 (2003) [hereinafter Second Half-Century]; Christopher Yoo, Steven G. Calabresi, & Laurence D. Nee, The Unitary Executive During the Third Half-Century, 1889-1945, 80 NOTRE DAME L. REV. 1 (2004) [hereinafter Third Half-Century]; Christopher S. Yoo, Steven G. Calabresi, & Anthony J. Colangelo, The Unitary Executive in the Modern Era, 1945-2004, 90 IOWA L. REV. 601 (2005) [hereinafter Modern Era]. [FN2]. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 HARV. L.REV. 1153, 1158 (1992) [hereinafter Structural Constitution]. [FN3]. Id. [FN4]. Id. [FN5]. Steven G. Calabresi, Some Normative Arguments for the Unitary Executive, 48 ARK. L. REV. 23, 31-33 (1995) [hereinafter Normative Arguments].
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[FN6]. Structural Constitution, supra note 2, at 1165-66. The word discretionary is very important. The Supreme Court in Kendall v. United States ex. rel Stokes held the President does not have the authority to deny or control the enforcement of a ministerial act. 37 U.S. (12 Pet.) 524, 610-14 (1838). See Decatur v. Paulding, 39 U.S. (14 Pet.) 497, 515-518 (1840). [FN7]. Structural Constitution, supra note 2, at 1158, 1165. [FN8]. U.S. CONST., art. II, 1. [FN9]. Steven G. Calabresi & Saikrishna B. Prakash, The President's Power to Execute the Laws, 104 YALE L.J. 541, 570 (1994) [hereinafter President's Power]. [FN10]. Article III's vesting clause is as follows: The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. U.S. CONST., art. III, 1. [FN11]. President's Power, supra note 9, at 571 [FN12]. Id.at 570. [FN13]. U.S. CONST., art. I, 1. [FN14]. President's Power, supra note 9, at 574. Professors Calabresi and Prakash list several other textual arguments concerning Article II's vesting clause, which they refer to as the Executive Power Clause. For more discussion on these arguments, see id. at 570-80. [FN15]. U.S. CONST., art. II, 2, cl. 2. ([The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.). [FN16]. U.S. CONST., art. I, 8, cl. 18. [FN17]. Structural Constitution, supra note 2, at 1168. [FN18]. Id. [FN19]. The President shall take care that the laws be faithfully executed . U.S. CONST., art. II, 3. [FN20]. Structural Constitution, supra note 2, at 1165. [FN21]. Id. at 1165. See also Gary Lawson, Changing Images of the State: The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1242 (1994). [FN22]. U.S. CONST., art. II, 2, cl. 1. [FN23]. Structural Constitution, supra note 2, at 1165. [FN24]. Prior to the appearance of the Constitution, I rarely met with an intelligent man from any of the States, who did not admit, as a result of experience, that the UNITY of the executive of this State was one of the best of the distinguishing features of our constitution. ALEXANDER HAMILTON, THE FEDERAL-
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IST No. 70, at 463 (Random House). [FN25]. Id. at 482. [FN26]. Normative Arguments, supra note 5, at 42. [FN27]. HAMILTON, supra note 24 AT 459. [FN28]. Normative Arguments, supra note 5, at 43-44. [FN29]. See Christopher R. Berry & Jacob E. Gersen, The Unbundled Executive, 75 U. CHI. L. REV. 1385, 1385. (2008) (citing Records of the Federal Convention, in PHILIP B. KRULAND & RALPH LERNER, THE FOUNDERS' CONSTITUTION 491-95 (3d ed., Chicago 1987)). [FN30]. Normative Arguments, supra note 5, at 44. [FN31]. First Half-Century, supra note 1, at 1451, 1528. [FN32]. Id. [FN33]. Id. at 1548 (citing Andrew Jackson, Protest (April 15, 1834) in A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENT 1298-99 (James D. Richardson, ed., 1897)). [FN34]. Structural Constitution, supra note 2, at 1167. [FN35]. Id. [FN36]. Id. at 1166. [FN37]. Lawson, supra note 21, at 1243. See also, Take Care Clause. [FN38]. First Half-Century, supra note 1, at 1478. [FN39]. Id. at 1495. [FN40]. Id. at 1515 (citing LEONARD WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY 74 (1948). [FN41]. Structural Constitution, supra note 2, at 1166. See also Lawson, supra note 21, at 1243. [FN42]. See Lawson, supra note 21, at 1244. [FN43]. Structural Constitution, supra note 2, at 1166. [FN44]. Myers v. United States, 272 U.S. 52 (1926). [FN45]. Structural Constitution, supra note 2, at 1167. See Myers, 272 U.S. at 176. The enumeration [of particular authorities in section 2 of Article II] ought therefore to be considered, as intended merely to specify the principal articles implied in the definition of executive power; leaving the rest to flow from the general grant of that power, interpreted in conformity with other parts of the Constitution, and with the principles of free government. Id. at 138. The general doctrine of our Constitution is that the executive power of the nation is vested in the President, subject only to the exceptions and qualifications, which are expressed in the instrument. Id. at 138-39.
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[FN46]. First Half-Century, supra note 1, at 1472 n.53. [FN47]. Id. [FN48]. Humphrey's Ex'r v. United States, 295 U.S. 602 (1935). [FN49]. In other words, when an agency was also quasi-legislative or quasi-judicial, the President had no unrestricted power to remove an officer of such agency. Id. at 627-31. [FN50]. Morrison v. Olson, 487 U.S. 654 (1988). [FN51]. Id. at 691-92. [FN52]. Id. 697-98 (Scalia, J., dissenting). [FN53]. Structural Constitution supra note 2, at 1168-69. [FN54]. Id. at 1177. [FN55]. Id. at 1168-70. [FN56]. Id. at 1170. When Congress does divest the executive power, the President's only defense is political--his veto power. Id. [FN57]. Id. at 1170. [FN58]. A. Michael Froomkin, Note: In Defense of Administrative Agency Autonomy, 96 YALE L. J. 787, 799 (1987). [FN59]. Id. at 800-01. [FN60]. Id. at 801. [FN61]. Lawrence Lessig & Cass R. Sunstein, The President and the Administration, 94 COLUM. L. REV. 1, 2 (1994). [FN62]. Second Half-Century, supra note 1, at 718. [FN63]. Id. [FN64]. Normative Arguments, supra note 5, at 30. [FN65]. Third Half-Century, supra note 1, at 9. [FN66]. Lessig & Sunstein, supra note 61, at 3. [FN67]. First Half-Century, supra note 1, at 1475-76. [FN68]. Professor Steven Calabresi, with other constitutional scholars, wrote a series of articles where he details each President's efforts toward building a strong unitary executive. These articles serve as a basis for much of the background mentioned in this article. These articles include multiple examples of presidential support for the unitary executive theory. See generally First Half-Century, supra note 1, at 1451; Second Half-Century, supra note 1, at 667; Third Half-Century, supra note 1; Modern Era, supra note 1, at 601.
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[FN69]. Third Half-Century, supra note 1, at 79. [FN70]. Id. [FN71]. Id. at 80 (citing GEORGE MCJIMSEY, THE PRESIDENCY OF FRANKLIN DELANO ROOSEVELT, 290-91 (2000)). The article notes FDR's administrative style remained susceptible to all of the classic vulnerability and complexities of pluralism. Mobilizing citizen constituencies often simply provided them with the opportunity to redirect government resources toward their own purposes. Id. at 80. [FN72]. Id. at 82. [FN73]. Id. at 100-01. [FN74]. Modern Era, supra note 1, at 662. [FN75]. Id. [FN76]. Id. (citing President's Advisory Council on Executive Organization, A New Regulatory Framework: Report on Selected Independent Regulatory Agencies 14 (1971)). [FN77]. Id. at 618. [FN78]. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). [FN79]. Modern Era, supra note 1, at 621 (citing Brief in Support of the Government). [FN80]. Youngstown, 343 U.S. at 612. [FN81]. Id. at 641. [FN82]. Modern aera, supra note 1, at 622. [FN83]. Id. See Youngstown, 343 U.S. at 593-614. [FN84]. See id. at 606-97 (giving examples of Presidents' refusal to recognize the legislative veto as constitutional). [FN85]. Modern Era, supra note 1. See INS v. Chadha, 462 U.S. 919 (1983). [FN86]. Third-Half Century, supra note 1, at 96. [FN87]. Id. at 97. [FN88]. Modern Era, supra note 1, at 643. [FN89]. Id. at 652. [FN90]. Id. at 662. [FN91]. Id. at 680. See also Ethics in Government Act, 5 U.S.C. 101-505 (2000). [FN92]. Modern Era, supra note 1, at 679. [FN93]. See id. at 717-21.
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[FN94]. Morrison v. Olson, 487 U.S. 654, 696-97 (1988). [FN95]. Modern Era, supra note 1, at 603-04, 719. [FN96]. Id. at 727. [FN97]. U.S. CONST. art. II, 1, cl. 1. [FN98]. See Modern Era, supra note 1. [FN99]. Id. [FN100]. In contrast to the expansion of political powers taken by the executives in the United States over the last half-century, Tibet's Dalai Lama is the head of state and has all executive power vested in him, and, he is probably the only ruler in the world who has voluntarily given up political power on his own initiative. See Tsering Kheyap, Homeless But Not Hopeless: How the Tibetan Constitution Governs a People in Exile, 36 HASTINGS CONST. L. Q. 353, 357 (2009). [FN101]. Duncan E. Alford, European Union Legal Materials: A Guide for Infrequent Users, 97 LAW LIBR. J. 49, 51 (2005). [FN102]. Theodora Kostakopoulou, Democracy-Talk in The European Union: The Need for a Reflexive Approach, 9 COLUM. J. EUR. L. 411 (2003). [FN103]. Id. [FN104]. Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon]. [FN105]. Alford, supra note 101, at 52. The supranational government system of the European Union has led many to speculate and craft their own theories as to which EU institution fits into the three branches of government found in the United States. (For example, Alford notes this when crafting a table comparing the different governments. Within the executive branch of the EU, Alford includes European Commission and its Directorates General, European Council, and the European Central Bank. This paper will specifically analyze the European Commission, European Council, European Parliament, and the European Central Bank in light of the unitary executive theory.) [FN106]. Peter E. Herzog, Treaty-Making Power of The European Community Thirty Years (Approximately) After the ERTA Case--And Where Does this Leave The United States?, 30 SYRACUSE J. INT'L L. & COM. 205 (2003). [FN107]. The Treaty on European Union, 1992 O.J. (C 191) 1, 31 I.L.M. 247. [Hereinafter EU Treaty]. [FN108]. Id. [FN109]. Id. [FN110]. Id. at 288. [FN111]. Thomas Lundmark, The Europeanization of America: What Every American Should Know About The European Union, 45 AM. J. COMP. L. 625, 630 (1997). [FN112]. EU Treaty, 31 I.L.M. at 296.
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[FN113]. Paul Spackman, Grant v. South-West Trains: Equality for Same-Sex Partners in The European Union, 12 AM. U.J. INT'L L. & POL'Y 1063, 1069-71 (1997). [FN114]. See George A. Bermann, Regulatory Cooperation Between the European Commission and U.S. Administrative Agencies, 9 Admin. L.J. Am. U. 933 (1996) (discussing the administrative control wielded by the European Commission). [FN115]. See Governance Statement of the European tp://ec.europa.eu/atwork/synthesis/doc/governance_statement_en.pdf. [FN116]. Id. [FN117]. Id. [FN118]. Id. [FN119]. Id. [FN120]. Id. [FN121]. Governance Statement of the European Commission, supra note 115. [FN122]. Id. [FN123]. Council of the European Union, The Council of the European Union, (2008), http://europa.eu/institutions/inst/council/index_en.htm [FN124]. Mattias Kumm, To Be A European Citizen? The Absence of Constitutional Patriotism and the Constitutional Treaty, 11 COLUM. J. EUR. L. 481, 503 (2005). [FN125]. Id. [FN126]. Treaty of Lisbon art. 1(16). [FN127]. Id. [FN128]. Id. [FN129]. Id. at art. 1(29). [FN130]. Id. at art. 1(56). [FN131]. Id. [FN132]. Roger J. Goebel, The European Union in Transition: The Treaty of Nice in Effect; Enlargement in Sight; A Constitution in Doubt, 27 FORDHAM INT'L L.J. 455 (2004). [FN133]. Eric Engle, I Am My Own Worst Enemy: Problems and Possibilities of European Foreign Policy Vis-A-Vis The United States, 18 ST. THOMAS L. REV. 737 (2006). [FN134]. Ingolf Pernice, The Treaty of Lisbon: Multilevel Constitutionalism in Action, 15 COLUM. J. EUR. L. 349 (2009). [FN135]. Id. Commission, available at ht-
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[FN136]. Id. [FN137]. U.S. CONST. art. II, 2, cl. 2. [FN138]. Damien Geradin, The Development of European Regulatory Agencies: What the EU Should Learn from American Experience, 11 COLUM. J. EUR. L. 1, 5-6 (2004-2005). [FN139]. Council of The European Union, supra note 123. [FN140]. Id. [FN141]. Id. [FN142]. U.S. CONST. art. II, 2, cl. 1; U.S. CONST. art. II, 3. [FN143]. U.S. CONST. I, 8, cl. 11. See also U.S. CONST. art. I, 8, cl. 3, 10, 12, 13, and 16. [FN144]. Treaty of Lisbon art. 1(16). [FN145]. Id. [FN146]. U.S. CONST. art. II, 2. [FN147]. Id. 3. [FN148]. Treaty of Lisbon art. 1(16). [FN149]. See Modern Era, supra note 1, at 628-29 (discussing President Eisenhower's quest to limit agencies' power outside of the executive). [FN150]. Id. See also Daniel P. Rathbun, Irrelevant Oversight: Presidential Administration From the Standpoint of Arbitrary and Capricious Review, 107 MICH. L. REV. 643, 649 (2009) (arguing the lack of textual support in constitution for administrative agencies cast their operations in a suspicious hue). [FN151]. See Saikrihma Bangalore Prakash, Imperial and Imperiled: The Curious State of the Executive, 50 WM. & MARY L. REV. 1021 (2008). [FN152]. Dr. Rosa Maria Lastra, The Division of Responsibilities Between the European Central Bank and the National Central Banks Within the European System of Central Banks, 6 COLUM. J. EUR. L. 167 (2000). [FN153]. Id. [FN154]. Id. at 170 (quoting ESCB Statute art. 3.1). [FN155]. Id. [FN156]. Id. [FN157]. Id. at 172-73. [FN158]. Stephen C. Sieberson, How the New European Union Constitution will Allocate Power Between the EU and Its Member States, 37 VAND. J. TRANSNAT'L L. 933 n.111 (2004). 14 Touro Int'l L. Rev. 1
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Columbia Journal of European Law Summer, 2009 Case Law ON THE BOUNDARIES BETWEEN THE EUROPEAN UNION'S FIRST PILLAR AND SECOND PILLAR: A COMMENT ON THE ECOWAS JUDGMENT OF THE EUROPEAN COURT OF JUSTICE [FNa1] Peter Van Elsuwege Copyright 2009 by European Legal Studies Center, Columbia University; Peter Van Elsuwege In its judgment in Commission v. Council (C-91/05), delivered on May 20, 2008, the European Court of Justice annulled Council Decision 2004/833/CFSP, Providing a European Union Contribution to the Economic Community of West African States (ECOWAS) in the Framework of the Moratorium on Small Arms and Light Weapons. Based on Article 47 EU, the Court concluded that the contested Decision, which pursues objectives not only falling within Common Foreign and Security Policy but also Community development cooperation policy, should have been adopted under the EC Treaty and not the EU Treaty. This judgment confirms the hierarchic relationship between the first Pillar and the second Pillar of the European Union. It is argued that the Court's interpretation of Article 47 EU significantly limits the scope for CFSP actions in practice and poses significant challenges for the objective of inter-Pillar coherence in the EU's external relations. I. II. III. INTRODUCTION GENERAL BACKGROUND OPINION OF ADVOCATE GENERAL MENGOZZI THE COURT'S JUDGMENT COMMENTS A. A Hierarchic Relationship Between the First Pillar and the Second Pillar B. The Choice of Legal Basis and the constitutional architecture of the pillars C. Article 47 EU and the Challenge of Inter-Pillar Coherence D. The ECOWAS Judgment in 531 532 534
IV. V.
535 536 536
539
542
544
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Light of the Lisbon Treaty VI. CONCLUSION 546
I. INTRODUCTION On May 20, 2008, the European Court of Justice (ECJ) took important steps toward clarifying the hazy boundaries between the European Community's external competences in the field of development cooperation (Title XX of the EC Treaty) and the European Union's competences in the framework of the Common Foreign and Security Policy (CFSP) (Title V EU). [FN1] The Court's judgment comes after a number of other inter-institutional conflicts on the relationship between first and third Pillar competences. [FN2] Case C-91/05, however, is the first example in which the Commission contested the legality of a CFSP Decision on the ground that the decision ought to have been adopted under Community competence. Despite the fact that the ECJ in principle does not have jurisdiction to rule on the legality of a measure falling within the CFSP, Articles 46(f) and 47 EU imply that the Court is entitled to supervise the borders between the intergovernmental Pillars and the European Community. [FN3] In accordance with its case law on acts adopted under the third Pillar, the ECJ confirmed the primacy of the EC Treaty even when a measure pursues different and non-incidental objectives falling respectively within the EC and EU Treaty provisions. II. GENERAL BACKGROUND In July 2002, the Council adopted a Joint Action designed to combat the proliferation of Small Arms and Light Weapons (SALW). [FN4] In order to implement that Joint Action, the Council later adopted Decision 2004/833/CFSP. [FN5] This decision provides a European Union financial contribution to the Economic Community of West African States (ECOWAS) which, among other things, would provide financial support and technical assistance to combat the accumulation and spread of SALW. Thereafter, the European Commission contested the legality of this Decision [FN6] on the grounds that this policy should not have been adopted under the CFSP provisions of the EU Treaty and should have instead been adopted under the framework of the Community's development cooperation policy--specifically, under the Cotonou Agreement. [FN7] The Commission's argument focuses on the interaction between the goals of decommissioning SALW and the objectives of development cooperation. The fact that the EC is not exclusively competent in the field of development aid [FN8] raises the question of to what extent the complementary character of the EC's development competence affects the application of Article 47 EU. The United Kingdom government's argument in this case was that, as a result of the concurrent competences in the sphere of development cooperation, the mere fact that the Community is competent to adopt a measure does not preclude the Union from adopting an act which has a similar content but pursues one of the aims of Article 11(1) EU. This line of reasoning is based upon the division of competences between the Community and the Member States. With regard to the EC's non-exclusive competence in the field of development aid, the ECJ confirmed that the Member States are entitled to enter into commitments themselves vis--vis non-Member States, either collectively or individually, or even jointly with the Community. [FN9] The fact that the EC's competence in development cooperation is not exclusive led the UK government to conclude that an action which would seemingly infringe on Article 47 EU is not pre-empted as long as the EU action is pursuing a CFSP objective. The Commission and the European Parliament, on the other hand, claimed that the Union does not enjoy the same complementary competence as the Member States do because, under their interpretation of Article 47 EU, the Union must respect all of the Community's competences regardless of their exclusive or non-exclusive nature. Under this view, a CFSP act which could have been properly adopted on the basis of the EC Treaty, shall be deemed to infringe upon Article 47 EU and should therefore be excluded.
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The crux of the matter is clearly the interpretation of Article 47 EU. According to the Court's settled case law, this provision aims to ensure that acts which according to the Council fall within the scope of the CFSP do not encroach upon the powers conferred by the EC Treaty on the Community. [FN10] In order to determine whether or not an encroachment of Community powers is at stake, the Court examines the aim and content of the contested Decision in the light of the contested Joint Action. In Commission v. Council (Environmental Penalties), the Court annulled Council Framework Decision 2003/80/JHA on the ground that the main purpose of this act was to protect the environment and that the measure should, therefore, have been properly adopted under the authority of Article 175 EC. [FN11] Similarly, in case C-440/05 (regarding ship-source pollution), the Court found that the Framework Decision in question, which was essentially aimed at improving maritime safety, was also an environmental protection measure that could have been adopted under Article 175 EC. [FN12] In light of this case law, the question at stake in the ECOWAS case was whether the campaign against SALW essentially aims at the protection of international peace and security, as claimed by the Council, or whether it forms an integral part of Community policy on development cooperation, as argued by the Commission. Significantly, the Commission acknowledged that certain aspects of the action may properly be covered by the CFSP whereas others fall within the scope of development aid. The essential criterion is the nature of the actions in question. Whereas political actions such as the deployment of military or police missions to disarm local militia fall into the realm of CFSP authority, technical and financial assistance belongs to the first Pillar. This overlap between first and second Pillar competences raises specific questions as to the structure of the Union and the relationship between the Pillars. Whereas the Commission and the European Parliament defended the view that Article 47 EU establishes a fixed boundary between the competences of the Community and those of the Union, the Council and the intervening governments of the Member States claimed that this provision aims to protect the balance of powers established by the Treaties. According to the latter view, a broad interpretation of the EC competences, one that embraces EC competences as having completely exclusive jurisdiction in their subject areas, has the potential to undermine the effet utile of the CFSP. III. OPINION OF ADVOCATE GENERAL MENGOZZI In response to the UK government's claims that Article 47 EU has no preemptive effect in the field of development cooperation, Advocate General Mengozzi focused his interpretation of Article 47 EU on the division of powers between the Community and the Member States (compare supra). In this respect, the Advocate General pointed at the specific formulation of Article 47 EU, which makes no gradation in the protection conferred on the powers of the EC Treaty. Article 47 EU, therefore, appears to rest on the presumption that all the competences conferred to the Community, irrespective of their nature (exclusive, shared, or concurrent), deserve to be protected against any encroachment on the part of the Union. [FN13] Accordingly, a distinction can be made between collective actions of the Member States and actions of the Union by virtue of Title V of the EU Treaty. Whereas the former are complementary to the EC's competences in the field of development cooperation, the latter have to respect the primacy of Community actions under the EC Treaty. The interpretation of Article 47 EU as a hierarchic delimitation rule between the EC and EU legal orders is based upon the wording of this provision [FN14] and derived from several other articles of the EU Treaty. [FN15] An ostensible infringement of Article 47 EU can only be discounted if an EU action exclusively or essentially pursues a CFSP objective under Title V of the EU Treaty. Measures connected with security may, however, fall within the scope of EC development aid provided that they can be linked with the social and economic development objectives of Article 177 EC. This does not mean that any measure fostering economic and social development of a developing country automatically falls within the ambit of Title XX EC. This would be inconsistent with the principle of conferral established by Article 5 EC. In order to find out whether a measure falls within the scope of the CFSP or the Community development policy--and thus to secure a balance between Article 47 EU and Article 5 EC--a judicial review of the content and purpose of that measure is necessary to determine its main aim. If a measure pursues two
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aims which are inextricably linked without one being incidental to the other, Article 47 EU implies that priority should be given to the Community legal base. The use of multiple legal bases, combining EC and EU Treaty provisions to promulgate the same action, appears impossible in view of the different procedural requirements for the adoption of first and second Pillar acts. In assessing the purpose and content of the contested Decision, the Advocate General concluded that the main aim was a security interest. According to the Advocate General, the mere statement in the preamble to Decision 2004/833/CFSP that the excessive and uncontrolled accumulation and spread of SALW reduces the prospects for sustainable development is insufficient for the Decision to be brought under the EC's development competence. [FN16] In the opinion of the Advocate General, the inclusion of financial and technical instruments does not automatically trigger the involvement of the Community. In order to come within the scope of Article 177 EC, the Decision must aim precisely at development. [FN17] Moreover, there is nothing in the EU Treaty that forbids the use of a financial instrument or technical assistance in the framework of the second Pillar. In light of his determination that the contested Decision essentially aims at strengthening regional and international security, the Advocate General urged that it could not have been adopted by the Community under Title XX of the EC Treaty and, therefore, that it does not infringe upon Article 47 EU. Even though the ECJ largely followed the reasoning of the Advocate General with regard to the interpretation of Article 47 EU, it nevertheless came to a different conclusion. IV. THE COURT'S JUDGMENT In line with its settled case law and the Opinion of Advocate General Mengozzi, the Court defines Article 47 EU as a watertight barrier between the EC and the EU protecting the competences of the Community against any encroachment by acts which are claimed by the Council to fall within the scope of the second (or third) Pillar. Hence, a measure having legal effects adopted under Title V (or VI) EU infringes Article 47 EU whenever it could have been adopted on the basis of the EC Treaty. The question of whether the EC Treaty provisions are affected relates to the very existence of a Community competence and does not depend on its exclusive or shared nature. [FN18] Based upon the clear linkage between stability and development, the Court observes that the campaign against the proliferation of SALW can be implemented both by the Union, under Title V EU, and by the Community, under its development policy. Significantly, after a detailed study of the aim and content of the contested decision, the Court concludes that the social and economic development objectives are not incidental to the objectives of preserving peace and strengthening international security. In the Community legal order, a measure pursuing several objectives which are not incidental to each other can, exceptionally, be founded on multiple legal bases. [FN19] Such a solution is, however, impossible in a case concerning the distribution of competences between the first and second Pillars. In contrast to the Advocate General, the Court's judgment does not elaborate upon the reasons for this a priori exclusion. It could be that the different procedural requirements laid down in the framework of Title V EU and in that of Title XX EC are at the base of this conclusion. Also in the context of the EC Treaty, recourse to a dual legal basis is precluded in case of procedural incompatibilities between the various Treaty provisions involved. [FN20] However, the absence of any reference to this case law is striking and appears to underline the division between the Community and the Union as two interconnected but nevertheless separate legal orders (compare infra). [FN21] Given the exclusion of cross-Pillar mixity, a solution for the legal basis question was identified in Article 47 EU. The Court held that this provision's rationale, that is, the protection of the acquis communautaire against any intergovernmental influences, implies that a measure which equally falls under the EU and EC Treaty objectives cannot be legally adopted on the basis of the EU Treaty. V. COMMENTS
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A. A Hierarchic Relationship Between the First Pillar and the Second Pillar The long-awaited judgment in the ECOWAS case sheds light on the structure of the EU and the interrelationship between the EC development policy and the Common Foreign and Security Policy of the EU. An overlap between both policies is already obvious from the wording of the relevant Treaty provisions. Article 177 EC lays down that Community policy in the field of development cooperation shall contribute to the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms, whereas Article 11(1) EU provides that [t]he Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be ... to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms. The decision to adopt an action on the basis of Article 177 EC or Article 11(1) EU is not without consequences. A Joint Action pursuing a CFSP objective is, in principle, adopted solely by the Council acting unanimously, whereas decisions based upon Article 177 EC are to be adopted in accordance to the so-called co-decision procedure requiring the involvement of the European Parliament and qualified majority voting in the Council. Moreover, the range of legal effects and the options for levels of judicial scrutiny are fundamentally different. The choice of the appropriate legal basis for the campaign against the proliferation of SALW has, in other words, far-reaching institutional consequences and is of a constitutional nature. [FN22] A broad interpretation of the CFSP raises concerns about a potential contamination of Community policies and vice versa. A close reading of the common provisions contained in Title I of the EU Treaty reveals that Community policies enjoy a certain priority over the other components of the Union. [FN23] Pursuant to Article 1(3) EU, the Union is founded on the European Communities and supplemented by second and third Pillar cooperation. Moreover, Article 2 EU establishes an obligation on the Union to maintain in full the acquis communautaire and build on it. With regard to the third Pillar, Article 29 EU further lays down that the objectives in the areas of freedom, security, and justice are to be pursued without prejudice to the powers of the European Community. Whereas no similar specific qualification is included with regard to the CFSP. Article 47 EU generally applies as the crucial provision in determining inter-Pillar relations. In its ECOWAS judgment, the ECJ explicitly acknowledged the interpretation of Article 47 EU as a delimitation rule protecting the acquis communautaire against any encroachment by the EU Treaty. Whenever an act can be adopted on the basis of the EC Treaty, it is impossible to adopt an act with a similar content on the basis of the EU Treaty, irrespective of the nature of the Community competences. The Court's judgment has two important implications. The first concerns the horizontal relationship between Community powers under the EC Treaty and Union powers under the Treaty on European Union. That relationship differs from the vertical division of competences between the Community and the Member States. The complementary nature of EC competences in the field of development cooperation implies that the Member States are not precluded from exercising their competence in this field collectively in the Council or outside it. [FN24] The situation is different with regard to acts of the Union. As a result of Article 47 EU, non-exclusive EC competences do preclude second Pillar decisions coming within their scope. This means that the Union possesses and exercises its own competences which are not merely equivalent to the collective exercise of the competences retained by the Member States. It also implies that the broad formulation of Article 11(1) EU has to be qualified. In light of Article 47 EU, the scope of the second Pillar is limited to those areas of foreign and security policy not falling within the scope of the EC Treaty provisions. The second implication of the ECOWAS judgment is closely linked to the conclusions of the Court of First Instance (CFI) and the ECJ in the anti-terrorist cases. Despite the fact that they reached different conclusions, the CFI and the ECJ both highlighted in the Kadi and Al Barakaat cases the coexistence of the Union and the Community as integrated but separate legal orders. [FN25] In contrast to the Commission's argument that the promotion of international security forms part of the general framework of the EC Treaty, these judgments explicitly acknowledged that the latter falls exclusively within the objectives of the Treaty on European Union. [FN26] The only explicit legal
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bridge between the two legal orders is in the area of economic sanctions as provided in Articles 60 and 301 EC. [FN27] Articles 60 and 301 EC are special provisions that expressly allow action by the Community to achieve a CFSP objective; but even in this case, two separate legal instruments are required, based on second and first Pillar provisions, respectively. The interpretation of Article 47 EU in the ECOWAS case confirms the distinction between the EU and EC legal orders. Depending upon its main objective, a legal act falls either within the scope of the CFSP or under the Community's external powers. When the act in question has a double dimension, one falling under EC competences and the other under the CFSP, and both dimensions are equally important, it becomes difficult to isolate the proper legal basis for the measure. In this case the primacy of the Community legal order--as derived from Article 47 EU--is crucial. Hence, the ECOWAS judgment implies that only acts exclusively or mainly pursuing the objectives of Article 11(1) EU can be legally adopted under the second Pillar. As soon as an act simultaneously pursues a Community objective which is not incidental to the CFSP purpose, Article 47 EU precludes the application of the Union legal basis. The main difficulty is in attempting to draw the demarcation between the EC and EU legal orders. Despite the Court's standard formulation that the choice of a legal basis must rest on objective factors which are amenable to judicial review, [FN28] an objective examination of the aim and content of a measure is not always an evident and straightforward exercise. This is clearly illustrated in the ECOWAS case where both the Advocate General and the ECJ followed the same reasoning as regards the interpretation of Article 47 EU but, nevertheless, reached different conclusions as far as the appropriate legal basis was concerned. Hence, there seems to be a need for clear delimitation rules in order to decide whether or not a measure falls within the scope of the EC and/or EU Treaty provisions. B. The Choice of Legal Basis and the constitutional architecture of the pillars [FN29] The choice of legal basis is of constitutional importance for the legal order of the European Community. [FN30] An appropriate internal legal basis provides the necessary competence for Community institutions, in line with Article 5 EC, and determines the procedures to be followed. Defining a legal basis when a measure pursues one welldefined objective is a fairly easy exercise. The choice of the proper legal basis becomes more complicated when a measure pursues multiple objectives. When such a multifaceted measure arises, the Court applies a so-called centre of gravity test. Based upon an examination of the aim and content of the measure in question, the leading objective dictates which single legal basis will be controlling, which is to say the dominant objective absorbs the possible other substantive legal bases which are pursuing objectives of a subsidiary or ancillary nature. This absorption doctrine is well-founded in the ECJ's case law regarding the conclusion of Community agreements [FN31] and applies mutatis mutandis also with regard to the determination of the appropriate legal basis in the Community's internal legal order. This is exactly the approach adopted by Advocate General Mengozzi in the ECOWAS case. Given the ancillary nature of the social and economic development objectives in relation to the main aim of strengthening regional and international security, the Advocate General concluded that Article 23 EU was the legal basis for the contested action. The Court, on the other hand, pointed to the inextricable link between the development and security aims of the measure in order to conclude that both objectives are pursued simultaneously. Remarkably, this conclusion was not only based solely upon an examination of the traditional aim and content of the contested decision, but also considered policy documents such as the European Consensus on Development, a Joint Statement by the Council and the representatives of the governments of the Member States meeting within the Council, the European Parliament and the European Commission. [FN32] The Court's conclusion in ECOWAS is also remarkable in comparison to another case concerning the EC's development cooperation policy. In this case--an action for annulment of a Commission decision approving a project relating to border security in the Philippines--the Court did not accept the argument that the project also contributed to the objective of institutional capacity building and, as such, to economic development cooperation. Both the Court and the Advocate General based their conclusion on an analysis of the contested decision to conclude that the Commission exceeded its implementing powers under Regulation (EC) 443/92 on financial and technical assistance to, and
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economic cooperation with, the developing countries in Asia and Latin America. [FN33] The main difference between both judgments is, in other words, the understanding of the objectives of the respective decisions. It seems obvious that the Court has a wide margin of discretion to apply the centre of gravity test unless the main objective of a measure is expressed unambiguously in the text of a legal act. In order to avoid inter-institutional competence battles in the future, a more explicit drafting of a measure's objectives is therefore recommendable. The finding in the ECOWAS case that no predominant purpose could be identified for the contested decision raised a specific problem. In the EC legal order, recourse to a dual legal basis is available in such a situation only on the condition that the procedures laid down for the respective legal bases are not incompatible and do not undermine the rights of the European Parliament. [FN34] A relevant illustration of this practice can be found in a recent dispute on the legal basis for a Council Decision granting a Community guarantee to the European Investment Bank (EIB) against losses under loans and loan guarantees for projects outside the Community. [FN35] This Decision was adopted on the single legal basis of Article 181a EC, dealing with economic, financial and technical cooperation with third countries. The European Parliament, however, argued that this measure needed Article 179 EC (development cooperation policy) as an additional legal basis because a majority of the third countries covered by the decision were considered developing countries. This dispute about the delimitation between areas falling under the Community's general economic, financial and technical cooperation with third countries, on the one hand, and its development policy on the other, resembles the issues at stake in the ECOWAS case. In both situations, the Court was called to clarify the relationship between overlapping competences. Moreover, after an analysis of the aim and content of the contested decisions the ECJ concluded that the measures at stake contained multiple components which are linked in such a way that it is not possible to identify a single leading objective. In the EIB case, recourse to a dual legal basis provided a rather simple solution to the definition of the appropriate legal basis. The Council acts by qualified majority both under the procedure referred to in Article 179 EC and under that laid down in Article 181a EC. The different legislative function of the European Parliament--co-decision under Article 179 EC and consultation under Article 181a EC--was not a problem either. The addition of Article 179 EC did not encroach upon the Parliament's rights but rather enhanced the democratic legitimacy of the adopted measures. As a result, the adoption of the contested decision on a dual legal basis turned out to be completely in line with the earlier case law of the ECJ. In case of procedural incompatibilities, additional elements need to be taken into account in order to decide the appropriate legal basis. In the context of the EC Treaty, preference is given to the legal basis which best protects the rights of the European Parliament. [FN36] For cross-Pillar situations, Article 47 EU provides the key point of reference. Its basic function is to protect the acquis communautaire against intergovernmental influences, which implies that priority should be given to the Community legal basis. Hence, the adoption of measures under a CFSP legal basis is restricted to situations where Community objective(s) and/or component(s) are absent or at least incidental to the CFSP objective. It is noteworthy that the ECJ in the ECOWAS case annulled the entire CFSP Decision even though it also contributed to CFSP objectives. Would a partial annulment--and a subsequent adoption of a parallel EC measure based on Article 179 EC--not have been a more appropriate alternative taking into account the balance of competences in cross-Pillar situations? [FN37] The EU's financial contribution to ECOWAS pursues simultaneously the inextricably linked objectives of development cooperation and international peace and security. Accordingly, a partial annulment and division of the contested Decision into its first- and second-Pillar elements, each requiring a specific legal basis, was out of question. If, however, a contested decision can be split in two clearly identifiable actions, the constitutional architecture of the Pillars seems to require that such a distinction must take place. [FN38] This point of view appears to be confirmed by Advocate General Bot in a case on the delimitation between first and third Pillar competences. [FN39] In this case, Ireland argues that the so-called Data Retention Directive [FN40] has been wrongfully adopted under Article 95 EC since its predominant objective is to facilitate the investigation, detention and prosecution of serious crimes, including terrorism. In applying the traditional centre of gravity test, the Advocate General introduced a clear distinction between measures coming under the Community Pillar and those which must be adopted by
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virtue of Title VI TEU. Whereas measures harmonizing the conditions for the retention of data by providers of communication services belong to the Community Pillar, the harmonization of conditions under which national lawenforcement authorities may access, use and exchange retained data belongs to the third Pillar. [FN41] This horizontal division between EC and EU areas of competence confirms the ECOWAS interpretation of Article 47 EU as a fixed boundary between the Pillars. It implies that measures predominantly falling under EC or EU competences need to be separated if possible. Advocate General Bot explicitly recognizes the drawbacks of this approach: I agree that it would be more satisfactory if the overall issue of data retention by the providers of electronic communication services and the detailed rules on their cooperation with the competent national lawenforcement authorities were the subject of a single measure which would ensure coherence between those two aspects. Although it is regrettable, the constitutional architecture consisting of three pillars nevertheless requires that the areas of action be split. The priority in this context is to guarantee legal certainty by clarifying as far as possible the respective boundaries between the spheres of action covered by the different pillars. [FN42] Given the Court's wide margin of appreciation in analyzing the aims and content of a given measure and, in particular, the broadly-worded goals of the CFSP and the respective EC external relations provisions, it is questionable whether a clear separation of the Pillars is feasible or even desirable. Any attempt to establish a fixed boundary between areas of activity such as development cooperation and CFSP is almost by definition an artificial endeavor. [FN43] Moreover, the concomitant inter-institutional conflicts risk undermining the Union's ability to respond flexibly and coherently to international crises. [FN44] C. Article 47 EU and the Challenge of Inter-Pillar Coherence The dual nature of the EU's external action, based upon a separation between an essentially intergovernmental CFSP and the supranational external competences of the EC, is a long-term bone of contention in the European integration process. [FN45] Subsequent Treaty amendments have been designed with the aim of enhancing the coherence between the Union's various external policy instruments. [FN46] Coherence in this context is not straightforward. The separation of powers can be categorized into two principal relationships: a horizontal division (between the EC and EU), and a vertical division (between the EC/EU and the Member States). [FN47] Moreover, such a division cannot be disconnected from the principle of consistency. Whereas the term consistency points at the absence of contradictions between the various external policies, coherence refers to the positive obligation of ensuring synergy between the different elements of the EU's external action. [FN48] The principles of consistency and coherence underpin the challenge of aligning the CFSP with the EC in order to assert the EU's identity on the international stage while simultaneously keeping both Pillars separated for internal procedural and constitutional reasons. In order to cope with the inherent complexities of the Pillar structure, Article 3 EU provides for a single institutional framework and imposes an obligation on the Council and the Commission to cooperate. Whereas this Article emphasizes that the aim of achieving consistency should be coupled with the need to respect and build upon the acquis communautaire, it does not clearly resolve the issue of hierarchy between the Pillars. [FN49] At this point, Article 47 EU comes into play, which, as the ECJ clearly spelled out in the ECOWAS case, guarantees the primacy of Community law over EU Treaty norms (compare supra). The question is, of course, whether and how this function of Article 47 EU contributes to the aim of consistency and coherence in the EU's external relations. The role of Article 47 EU is to protect the acquis communautaire and to prevent any intergovernmental contamination of the EC's supranational decision-making. However legitimate this task may be from a purely legal point of view, political reality implies that any attempt to separate the different aspects of foreign policy appears to be somewhat artificial. In order to overcome the dichotomy between the political and legal realities, a certain interaction between the CFSP and EC rules is needed. Support for such a pragmatic modus vivendi between the Pillars can implicitly be found in the ECOWAS judgment. Even though the Court annulled Council Decision 2004/833/CFSP on the ground that it infringes Article 47 EU, it did not actually decide on the legality of Joint Action 2002/589 CFSP.
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Whereas it might be argued that if the Court had to rule on the latter issue it would have reached the same conclusion due to the close connection of the aims and content of both instruments, [FN50] the continued de facto existence of Joint Action 2002/589 creates a bridge between a CFSP and EC norm. [FN51] The coupling of instruments from different Pillars is all but new. For instance, such coupling has provided a pragmatic solution for the export regime of dual-use goods in the 1990s. [FN52] This approach appears to be fully consistent with the idea of a constitutional structure of separated but nevertheless integrated Pillars. [FN53] The concern in such inter-Pillar situations is that the European Commission risks being reduced to a purely administrative organ implementing CFSP policy. This concern, which already existed at the time of the first common positions on Rwanda and Ukraine in 1994, [FN54] is clearly at the heart of the Commission's judicial action against Decision 2004/833/CFSP providing for an EU contribution to ECOWAS. Whereas a mere reference to parallel Community initiatives, pursuing a different objective, is not necessarily problematic, the Council potentially encroaches on Community competences and procedures once it instructs the Commission to act. [FN55] Such a subordination of Community action appeared in Article 3 of the contested Decision, which provided that [t]he Commission shall be entrusted with the financial implementation of this Decision. To that end, it shall conclude a financial agreement with ECOWAS on the conditions for use of the European Union contribution, which shall take the form of a grant. Ironically, this provision was designed to take into account the Community's competence to organize financial and economic assistance to development countries; instead, the provision triggered the inter-institutional conflict between the Commission and the Council. Despite the obvious interrelationship between the Pillars and the overlap between first and second Pillar competences, a genuine inter-Pillar approach combining multiple legal bases is impossible as the law of the European Union stands at present. [FN56] The only possible option seems to be the parallel application of CFSP and EC competences depending upon the specific objectives of the measures at stake. [FN57] The pitfalls of this approach, however, have become evident in the ECOWAS case. The ECJ's broad interpretation of EC objectives and/or components implies that CFSP actions can easily touch upon the Community's external competences and consequently infringe upon Article 47 EU. [FN58] In other words, the ease with which the Court may determine that a contested decision also pursues development objectives, which are non-incidental to CFSP objectives, clearly limits the scope for parallel CFSP actions in practice. D. The ECOWAS Judgment in Light of the Lisbon Treaty The constitutional structure of the EU, based upon a mechanism of three integrated but separate Pillars, inherently leads to complicated competence questions and inter-institutional conflicts. The deficiencies of this situation in terms of the efficiency and effectiveness of the EU's external relations are well known. It is, therefore, no coincidence that the constitutional revision process, which started with the Laeken Declaration of December 2001 and reached its provisional end with the signature of the Treaty of Lisbon six years later, essentially aims to have a better division and definition of competences as well as increased coherence and consistency in the field of external relations. [FN59] The question arises to what extent the findings of the ECJ in the ECOWAS case are relevant in light of the revised Treaty provisions. One of the most significant amendments of the Treaty of Lisbon is certainly the ascription of a single legal personality to the EU. [FN60] However, this formal abolition of the Pillar structure cannot hide the fact that the CFSP would remain separated from the other external policies of the Union. Also under the new Treaty structure, the CFSP would be subject to different decision-making procedures and essentially excluded from the jurisdiction of the ECJ. [FN61] Significantly, the provisions on the CFSP included in the revised Treaty on European Union (TEU) do not include any specific competences comparable to present Article 11(1) TEU. [FN62] Hence, the division between areas falling within the scope of the CFSP and the other specific areas of EU external action as defined in Title V of the Treaty on the Functioning of the Union (TFEU) would become a very difficult task.
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The current delimitation rules as clarified by the ECJ in the ECOWAS case have to be qualified in view of the new Article 40 TEU, which would replace present Article 47 EU. Whereas the current provisions provide for a clear subordination of the CFSP to the external competences of the EC, the revised Article 40 TEU proceeds from a more equal relationship. Under the proposed article, the implementation of the CFSP shall not affect the procedures and institutional powers necessary for the exercise of other Union competences; furthermore, the proposed article provides that the exercise of the latter is not to affect CFSP procedures and institutional powers. Thus, the drafting of Article 40 TEU has far-reaching implications for the delimitation of competences between different types of external action. The presumption in favor of using non-CFSP powers whenever possible, as derived from Article 47 EU in the ECOWAS case, would no longer be valid. The CFSP would be elevated to an equal level of protection. How would the question of finding an appropriate legal basis for measures pursing different objectives be solved under the new Treaty rules? Recourse to a dual legal basis would also be excluded under the Lisbon provisions due to procedural incompatibilities and the specificity of the CFSP. [FN63] Moreover, the traditional analysis of the aim and content of a measure to determine its appropriate legal basis appears impossible in the absence of any specific CFSP objectives. A potential solution could be to treat the CFSP as a lex generalis, which should be used only when action under a more specific provision (lex specialis) is not possible. [FN64] The problem is, however, that this option would reintroduce a hierarchic relationship difficult to reconcile with the clear language of the new Article 40 TEU. In addition, the rather broad definition of the Union's external competences in specific policy areas (commercial policy, development policy, economic, financial, and technical cooperation with third countries, and humanitarian aid) would potentially reduce the CFSP to a fairly restricted residual category of external relations competence. Hence, there seems to be no viable alternative for the traditional centre of gravity test. In the absence of specific CFSP objectives, the list of objectives covering the entire external range of action of the EU, laid down in Article 21(2) TEU, would become the point of reference. In fact, this list combines the CFSP aims of present Article 11(1) EU and the external policies of the EC (development cooperation, commercial policy, environmental policy, etc.) in an attempt to ensure more coherence in the EU's external relations. To determine the legal basis, however, a distinction between the high politics of the CFSP and the other external policy areas would continue to be necessary. [FN65] Depending upon the leading objective, CFSP rules and procedures may or may not need to be followed. Additionally, the question of whether or not legislative action is required would remain since Article 24(1) TEU explicitly excludes the adoption of legislative acts in the framework of the CFSP. [FN66] In any event, it seems obvious that the solution offered by the ECJ in the ECOWAS case to the problem of overlapping objectives--that is, giving priority to a non-CFSP legal basis whenever an act equally falls within a competence of the Community--will have be reconsidered under the Lisbon Treaty, if and when the treaty is implemented. Perhaps some inspiration can be found in the case law of the ECJ regarding the choice between incompatible legal bases in the Community legal order (compare supra). [FN67] Even though the result might be the same, [FN68] the preference for a non-CFSP legal basis would not be based on the a priori hierarchy laid down in Article 47 EU. VI. CONCLUSION The ECOWAS case clearly illustrates the complexities surrounding the division of competences belonging to the Community legislature and those assigned to the legislature of the Union. The constitutional architecture of the Pillars implies that whenever a measure can properly be adopted on the basis of the EC Treaty, recourse to a legal basis falling within the CFSP is excluded. The main difficulty is in determining the centre of gravity of a measure in the case of overlapping competences. In the absence of any suitable alternatives, the ECJ applies its standard analysis of the aims and content of a contested decision on an EU-wide basis. Accordingly, the ECJ operates as a true constitutional court of the EU regardless of the absence of any established jurisdiction in the field of CFSP. [FN69] The main drawback of this approach is the existence of a large grey zone of measures containing elements of both EC and EU policy objectives. Taking into account the broad interpretation of the EC's development cooperation competence, particularly in light of policy documents such as the European Consensus on Development, the limits of EC activities
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in this field are ill-defined. The problematic delimitation of EC competence on development cooperation and its almost natural overlap with other policy areas is not limited to the relationship between the first and the second Pillar. Also within the EC legal order, similar questions came to the ECJ in a case on the distinction between the scope of Article 179 EC (development cooperation) and 181a EC (economic, financial, and technical cooperation with third countries). [FN70] The main difference is that in the EC context recourse to a dual legal basis usually offers a practical solution for situations where no leading objective can be identified. Such a solution is not possible in cross-Pillar situations because--apart from the evident procedural complexities--Article 47 EU implies that priority is to be given to the Community legal order. In its ECOWAS judgment, the ECJ expressly confirmed the hierarchy between the Pillars and the crucial role of Article 47 EU in the EU's constitutional order. When a certain external action can be adopted under Community competences, it excludes the adoption of a CFSP legal basis. This effect is striking in comparison to the delimitation of competences between the EC and the Member States in the field of development cooperation. The parallel nature of the latter implies that even after the adoption of EC development actions, the Member States can decide to act autonomously or even collectively outside the framework of the EC as long as they comply with Community law. As a result of the Court's interpretation of Article 47 EU in the ECOWAS case, however, it is not possible for them to act on the basis of the CFSP. However absurd this may seem at first glance, [FN71] it underscores the fact that the CFSP entails more than just a collective exercise of Member State competences. The ECOWAS case strengthens the perception of the EU as a legal order of integrated but nonetheless separate Pillars. It is obvious that the legal distinction between different aspects of external action is difficult to square with the political necessity of a comprehensive and integrated foreign policy, covering elements of the EC, the EU, and the Member States' competences. Ensuring coherence and consistency among the various actors and instruments is, therefore, the key challenge for EU external relations in general. Article 47 EU aims to work toward this objective, articulated clearly in Article 3 EU, by creating watertight barriers between the Pillars. The Court's jurisdiction to check the horizontal division of competences is fundamental for guaranteeing legal certainty regarding the boundaries between the Pillars. The problem is, however, that no clear boundaries exist, which puts the Court up to a nearly impossible task. The conclusion may, therefore, well be--as Ramses Wessel already pointed out--that the Union's pillars are still separate, but inseparable. [FN72] The abolition of the Pillar structure in the Treaty of Lisbon will not automatically solve all boundary problems between the CFSP and the other types of external action. Given the different drafting of the new Article 40 TEU in comparison to Article 47 EU, formally abolishing the current hierarchy between the Pillars, the solution offered in the ECOWAS case will need some revision. The outcome, however, might be the same: that is, the legal impossibility of pursuing a truly integrated foreign policy without encountering serious inter-institutional conflicts. [FNa1]. Case note written by Peter Van Elsuwege, Assistant Professor. Ghent University (Jean Monnet Centre of Excellence). The author would like to thank Stanislas Adam for his comments on an earlier version of this text. [FN1]. Case C-91/05, Comm'n v. Council, 3 C.M.L.R. 5 (2008). [FN2]. See Case C-170/96, Comm'n v. Council, 1998 E.C.R. 1-2763 (concerning the airport transit visas); Case C176/03, Comm'n v. Council, 2005 E.C.R. 1-7879 (concerning environmental penalties); C-440/05, Comm'n v. Council, 2007 E.C.R. 1-9097 (concerning ship-source pollution). [FN3]. Treaty on European Union, arts. 46(f), 47, Dec. 24, 2002. 2002 O.J. (C 325) 5 [hereinafter EU Treaty]. [FN4]. Council Joint Action 2002/589/CESP, The European Union's Contribution to Combating the Destabilising Accumulation and Spread of Small Arms and Light Weapons and Repealing Joint Action 1999/34/CFSP, 2002 O.J.
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(L 191) 1. [FN5]. Council Decision 2004/833/CESP, Implementing Joint Action 2002/589/CFSP with a view to a European Union Contribution to ECOWAS in the Framework of the Moratorium on Small Arms and Light Weapons, 2004 O.J. (L 359) 65. [FN6]. In addition, the European Commission relied on Article 241 EC (concerning the plea of illegality) in order to also invoke the inapplicability of the underlying Joint Action, in particular Title II thereof. [FN7]. Partnership Agreement Between the Members of the African, Caribbean and Pacific Group of the One Part, and the European Community and its Member States, of the Other Part, June 23, 2000, 2000 O.J. (L 317) 3. This mixed agreement sets up the fight against the accumulation of SALW as a relevant criterion for the cooperation that it establishes. Id. art. 11(3). The ACP side of the Cotonou Agreement includes all of the member states of ECOWAS, which are all developing countries. [FN8]. Case C-316/91, Parliament v. Council, 1994 E.C.R. 1-625, 26. [FN9]. Id. 26 (emphasis added). [FN10]. Case C-170/96, Comm'n v. Council, 1998 E.C.R. 1-2673, 16; Case C-176/03. Comm'n v. Council, 2005 E.C.R. 1-7879, 39; Case C-440/05, Comm'n v. Council, 2007 E.C.R. 1-9097, 53. [FN11]. Case C-176/03, Comm'n v. Council, 2005 E.C.R. 1-7879. [FN12]. Council v. Comm'n, 2007 E.C.R. 1-9097, 69. [FN13]. Opinion of Advocate General Mengozzi, Case C-91/05, Comm'n v. Council, 2007 WL 2710698, 98. [FN14]. See id. 112. [FN15]. Article 1 EU states that the policies and forms of cooperation established by that Treaty supplement the European Communities; Article 2 EU includes the objective to maintain in full the acquis communautaire and build on it .... which is repeated in the first paragraph of Article 3 EU. With regard to the third Pillar, Article 29 EU further clarifies that its objectives are to be pursued without prejudice to the powers of the European Community. [FN16]. Op. Advoc. Gen., Comm'n v. Council, 2007 WL 2710698, 205. [FN17]. Id. 209. [FN18]. See Comm'n v. Council, 3 C.M.L.R. 5 (2008), 60-61. [FN19]. See, e.g., Case C-211/01, Comm'n v. Council, 2003 E.C.R. I-8913, 40; Case C-94/03, Comm'n v. Council, 2006 E.C.R. I-1, 36. [FN20]. Case C-300/89, Comm'n v. Council (Titanium Dioxide), 1991 E.C.R. I-2867, 17-21. [FN21]. Ronald Van Ooik, Cross-Pillar Litigation Before the ECJ: Demarcation of Community and Union Competences, 4 EUR. CONST. L. REV. 415 (2008). [FN22]. Opinion 2/2000, Cartagena Protocol, 2001 E.C.R. I-9713, 5. On the constitutional nature of the choice of the appropriate legal basis, see P. Koutrakos, Legal Basis and Delimitation of Competence in EU External Relations, in M. CREMONA & B. DE WITTE, EU FOREIGN RELATIONS LAW: CONSTITUTIONAL FUNDAMENTALS 171-98, (Oxford Hart 2008).
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[FN23]. M. Cremona, Defining Competence in EU External Relations: Lessons from the Treaty Reform Process, in A. DASHWOOD & M. MARESCEAU, LAW AND PRACTICE OF EU EXTERNAL RELATIONS, SALIENT FEATURES OF A CHANGING LANDSCAPE 34 (Cambridge 2008). [FN24]. Joined Cases C-181/91 & C-248/91, Parliament v. Council & Comm'n, 1993 E.C.R. I-3685, 16; Case C316/91, Parliament v. Council, 1994 E.C.R. I-625, 26. [FN25]. Case T-315/01, Kadi v. Council & Comm'n, 2005 E.C.R. II-3649, 120; Case T-306/01, Yusuf & Al Barakaat v. Council & Comm'n, 2005 E.C.R. II-3533, 156; Joined Cases C-402/05-P & C-415/05-P, Kadi & Al Barakaat v. Council & Comm'n, 3 C.M.L.R. 41 (2008), 202. [FN26]. Case T-315/01, Kadi v. Council & Commission, 2005 E.C.R. II-3649, 118; Case T-306/01, Yusuf & Al Barakaat v. Council Comm'n, 2005 E.C.R. II-3533, 154. [FN27]. Whereas the CFI acknowledged that in exceptional circumstances those provisions could be complemented by Article 308 EC to guarantee the consistency of external action, the ECJ qualified such an approach as an error of law. Neither the wording nor the structure of the EC Treaty allows for an extension of the bridge between the two pillars to other provisions of the EC Treaty. Compare Case T-315/01, Kadi v. Council & Comm'n, 2005 E.C.R. II3649, 128: with Joined Cases C-402/05 P & C-415/05 P, Kadi & Al Barakaat v. Council & Comm'n, 3 C.M.L.R. 41 (2008). 197. [FN28]. See, e.g., Case C-300/89, Comm'n v. Council, 1991 E.C.R. I-2867, 10; Case C-336/00, Republik sterreich & Martin Huber, 2002 E.C.R. I-7699, 30; Case C-176/03, Comm'n v. Council, 2005 E.C.R. 7879, 45; Case C440/05, Comm'n v. Council, 2007 E.C.R. 9097, 61. [FN29]. Expression borrowed from Joined Cases C-402/05 P & C-415/05 P. Kadi & Al Barakaat v. Council & Commission, 3 C.M.L.R. 41 (2008), 202. [FN30]. Opinion 2/2000, Cartagena Protocol, 2001 E.C.R. I-9713, 5. [FN31]. A good example of this practice can be found in Case C-268/94, Portugal v. Council, 1996 E.C.R. I-6177. For specific comments on this case, see S. Peers. Fragmentation or Evasion in the Community's Development Policy? The Impact of Portugal v. Council, in A. DASHWOOD & C. HILLION, THE GENERAL LAW OF EC EXTERNAL RELATIONS 100-12 (Sweet & Maxwell 2000). On the absorption doctrine in the EC's external relations practice, see M. Maresceau, Bilateral Agreements Concluded by the European Community, 309 THE HAGUE ACAD. OF INT'L L. RECUEIL DES COURS 125, 156-58 (2004). [FN32]. Joint Statement on European Union Development Policy: the European Consensus. 2006 O.J. (C 46) 1. The Court's openness to such non-binding policy documents is striking in view of the traditional formula that the choice of a legal basis is not dependent upon an institution's conviction as to the objective pursued but must be based on objective factors which are amenable to judicial review. See, e.g., Case 45/86, Comm'n v. Council, 1987 E.C.R. 1493. 11. [FN33]. Case C-403/05, Parliament v. Comm'n, 2007 E.C.R. I-9045, 64-68; Opinion of Advocate General Kokott, Case C-403/05, Parliament v. Comm'n, 2007 E.C.R. I-9045, 101-02. [FN34]. Case C-300/89, Comm'n v. Council, 1991 E.C.R. I-2867, 17-21; Case C-178/03, Comm'n v. Parliament & Council, 2006 E.C.R. I-107, 57. [FN35]. Case C-155/07, Comm'n v. Council, 1 C.M.L.R. 23 (2009). [FN36]. Case C-94/03, Comm'n v. Council, 2006 E.C.R. 1-1, 52; Case C-178/03, Comm'n v. European Parliament
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& Council, 2006 E.C.R. 1-107, 57. For comments on those cases, see Stanislas Adam. Le cumul des bases juridiques et les relations extrieures de la Communaut europenne: l'eau et le feu? Note sous CJCE, 94/03 et 178/031 , 1 REVUE DES AFFAIRES EUROPENNES 127, 127-36 (2006). [FN37]. In this respect, the practice of concluding cross-Pillar agreements on the basis of two separate decisions, one based on an EC Treaty provision and the other on the Treaty of the EU, provides an interesting point of reference. Whereas there are no examples of first Pillar-second Pillar mixed agreements, the agreement between the EU, the EC, and Switzerland concerning the latter's association with the implementation, application and development of the Schengen acquis has been adopted on the basis of two legal acts, combining first and third Pillar provisions. Council Decision 2004/849/EC. 2004 O.J. (L 368) 26; Council Decision 2004/860/EC, 2004 O.J. (L 368) 78. [FN38]. See Van Ooik, supra note 21, at 413. [FN39]. Opinion of Advocate General Bot, Case C-301/06, Ireland v. Parliament & Council, 2008 WL 4549034. [FN40]. Council Directive 2006/24/EC, On the Retention of Data Generated or Processed in Connection with the Provision of Publicly Available Communications Services or of Public Communications Networks as Amending Directive 2002/58/EC, 2006 O.J. (L 105) 54. [FN41]. Op. Advoc. Gen., Ireland v. Parliament & Council, 2008 WL 4549034, 106-07. [FN42]. Id. 108 (emphasis added). [FN43]. In this respect, it is noteworthy that the 2003 European Security Strategy expressly lays down that security is the first condition for development European Security Strategy: a Secure Europe in a Better World (Dec. 12, 2003), http://ue.eu.int/uedocs/cmsUpload/78367.pdf (last visited Feb. 24, 2009). The European Consensus on Development also notes that [w]ithout peace and security development and poverty eradication are not possible, and without development and poverty eradication no sustainable peace will occur. Joint Statement, supra note 32, at 7. [FN44]. A. Dashwood, Article 47 EU and the Relationship Between First and Second Pillar Competences, in A. DASHWOOD & M. MARESCEAU, LAW AND PRACTICE OF EU EXTERNAL RELATIONS, SALIENT FEATURES OF A CHANGING LANDSCAPE 97 (Cambridge 2008). [FN45]. Piet Eeckhout refers to this dualism as the sin of overall EU external action. See P. EECKHOUT, EXTERNAL RELATIONS OF THE EUROPEAN UNION 145 (Oxford Univ. Press 2004). [FN46]. See e.g. N. Neuhwahl, Foreign and Security Policy and the Implementation of the Requirement of Consistency under the Treaty on European Union, in D. O'KEEFE & P. TWOMEY, LEGAL ISSUES OF THE MAASTRICHT TREATY 224, 224-46 (1994); U. Schmalz, The Amsterdam Provisions on External Coherence: Bridging the Union's Foreign Policy Dualiasm, 3 EUR. FOREIGN AFF. REV. 421, 421-42 (1998); S. Duke, Consistency as an Issue in EU External Activities (IEPA Working Paper 6) (1999). [FN47]. See Cristophe Hillion, Tous pour un, un pour tous! Coherence in the External Relations of the European Union, in M. CREMONA & BRUNO DE WITTE, EU FOREIGN RELATIONS LAW: CONSTITUTIONAL FUNDAMENTALS 17 (Oxford Hart 2008); P. Gauttier, Horizontal Coherence and the External Competences of the European Union, 10 EUR. L. J. 1, 23 (2004). [FN48]. Id. [FN49]. EECKHOUT, supra note 45, at 153. [FN50]. Van Ooik, supra note 21, at 405.
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[FN51]. R. Wessel, Veiligheidsbeleid of toch ontwikkelingssamenwerking? De afbakening van de externe bevoegdheden tussen de EU, EG en de lidstaten, 10 NEDERLANDS TIJDSCHRIFT VOOR EUROPEES RECHT 292, 298 (2008). [FN52]. The ECJ later clarified that this matter falls within the scope of the EC Common Commercial Policy, which resulted in an abolition of the inter-pillar approach. See P. KOUTRAKOS, TRADE, FOREIGN POLICY AND DEFENCE IN EU CONSTITUTIONAL LAW: THE LEGAL REGULATION OF SANCTIONS, EXPORTS OF DUALUSE GOODS AND ARMAMENTS 113-30 (Oxford Hart 2001). [FN53]. C.W.A. Timmermans, The Uneasy Relationship between the Communities and the Second Pillar: Back to the plan Fouchet?, 1 LEGAL ISSUES OF EUR. INTEGRATION 69 (1996). [FN54]. SIMON J. NUTTEL, EUROPEAN FOREIGN POLICY 263-64 (Oxford 2000). [FN55]. R. Wessel, The Inside Looking Out: Consistency and Delimitation in EU External Relations, 37 COMMON MKT L. REV. 1155 (2000). [FN56]. Opinion of Advocate General Mengozzi, Comm'n v. Council, 2007 WL 2710698, 176. [FN57]. DASHWOOD, supra note 44, at 97. [FN58]. J. Heliskoski, Small Arms and Light Weapons within the Union's Pillar Structure: An Analysis of Article 47 of the EU Treaty, 6 EUR. L. REV. 908 (2008). [FN59]. Cremona, supra note 23, at 35. [FN60]. EU Treaty, art. 47. [FN61]. EU Treaty, art. 24(1). [FN62]. Article 24(1) EU bluntly states that [t]he Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security. including the progressive framing of a common defence policy that might lead to a common defence. [FN63]. Van Ooik, supra note 21, at 417. [FN64]. Cremona, supra note 23, at 46. [FN65]. Arguably, the objectives laid down in points (a) to (c) come within the scope of the CFSP. See also Dashwood, supra note 44, at 103. [FN66]. Tim Corthaut, An Effective Remedy for All? Paradoxes and Controversies in Respect of Judicial Protection in the Field of the CFSP under the European Constitution, 12 TILBURG FOREIGN L. REV. 119 (2005). [FN67]. R. VAN OOIK, DE KEUZE DER RECHTSGRONDSLAG VOOR BESLUITEN VAN DE EUROPESE UNIE 240-42 (Deventer Kluwer 1999). [FN68]. Given the limited role of the European Parliament in the CFSP and the fact that the ECJ considers the rights of participation enjoyed by the Parliament as a decisive criterion to decide on the appropriate legal basis in the EC legal order, a preference for the non-CFSP legal basis seems evident. [FN69]. D. Curtin & R. Wessel, Rechtseenheid van de Europese Unie? De rol van het Hof van Justitie als constitutionele rechter?, 10 S.E.W TIJDSCHRIFT VOOR EUROPEES EN ECONOMISCH RECHT 371-78 (2008).
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[FN70]. Comm'n v. Council, 1 C.M.L.R. 23 (2009). [FN71]. Ramses Wessel & Cristophe Hillion, Restraining External Competences of EU Member States under CFSP, in CREMONA & DE WITTE, supra note 47, at 116. [FN72]. Ramses Wessel, Constitutional Unity of the European Union: The Increasing Irrelevance of the Pillar Structure?, in P. KIIVER ET AL., EUROPEAN CONSTITUTIONALISM BEYOND THE EU CONSTITUTION (forthcoming). 15 Colum. J. Eur. L. 531 END OF DOCUMENT
14 JCSECL 265 14 J. Conflict & Security L. 265
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Journal of Conflict & Security Law Summer, 2009 Article THE EUROPEAN UNION AND CRISIS MANAGEMENT: WILL THE LISBON TREATY MAKE THE EU MORE EFFECTIVE? Steven Blockmans, Ramses A Wessel [FNa1] Copyright 2009 by Oxford University Press; Steven Blockmans, Ramses A Wessel Abstract The European Union's security and defence policy (ESDP) was invented 10 years ago and has been operational for more than five years. During this period the EU has launched over 20 ESDP missions allowing the organization to be engaged in international crisis management in various ways. The coming years will reveal whether the European Union is able to meet its ambitions to carry out a greater number of more complex ESDP missions in higher-risk theatres. While the EU has stepped up the plate to meet these challenges, the three case studies discussed in this article (EULEX Kosovo, EUPOL Afghanistan, EUFOR Tchad/RCA) reveal that the path paved with good intentions might in this case indeed lead to hell. Whereas the new Treaty of Lisbon introduces quite a few institutional changes to the current treaty regime of foreign affairs and security policy, it is questionable whether these innovations will significantly improve the decision-making and leadership on issues of ESDP and, consequently, the effectiveness of the Union as an international crisis manager. [M]ore than 20 civilian and military operations, are or have been deployed on almost every continent, from Europe to Asia, from the Middle East to Africa. Thousands of European men and women are engaged in these operations, ranging from military to police, from border guards to monitors, from judges to prosecutors, a wide range of people doing good for the stability of the world. This is the European way of doing things: a comprehensive approach to crisis prevention and crisis management; a large and diversified tool box; a rapid response capability; playing our role as a global actor. Obviously, if the Lisbon Treaty were to be ratified, and I hope it will be, we would be even more effective. Javier Solana, 18 February 2009 [FN1] 1. Introduction Most informed observers recognize that the word crisis' is over-used when it comes to the European Union (EU). [FN2] The story of European integration has been most frequently described in terms of a perpetual sense of division, diplomatic wrangling and failure to meet targets and deadlines. Similarly, the perceived failure of the EU to punch its weight in both global and regional geopolitics is often criticized. Both as a soft power and in its approach to harder security issues, the EU is often perceived by others as unstable, weak and ineffective. [FN3] While it is an undeniable fact that, in little more than 50 years, war between the European Member States themselves has become unthinkable, the Union's record in terms of crisis management abroad, especially in wars waged in its neighbourhood, is indeed mixed at best. The famous and ill-fated declaration of Luxembourg's former minister of foreign affairs Jacques Poos that
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Yugoslavia's violent implosion in 1991 heralded the hour of Europe may have been morally true, but it certainly was not politically. Neither the wars on the territory of the former Yugoslavia nor the recent conflicts in the EU's neighbourhood (the Caucasus, the Middle East) have posed an existential threat to (parts of) the Union. Is it perhaps for this reason that the Member States have almost always failed the test of unity in the EU's efforts to resolve conflicts on its borders? This contribution assesses the Lisbon Treaty's amendments in the field of the Union's foreign, security and defence policy and questions whether they sufficiently equip the EU with the legal and institutional framework to face the maturity test in crisis management that it is currently facing. To this end, some legal as well as semantic clarifications will be made (Section 2) before a critical overview is given of the legalinstitutional build-up and conduct of EU missions in the first five years since the European Security and Defence Policy (ESDP) was declared operational (Section 3). On the basis of an analysis of the operational shortcomings [FN4] that the EU faces in the formulation of a solid strategy, the translation of that vision into policy and the implementation thereof by way of the capabilities created (Section 4), the amendments introduced by the Lisbon Treaty will be assessed (Section 5) with an aim to answer the question of whether the new Common Security and Defence Policy (CSDP) will prepare the Union for bigger, more complex and longer-term operations in more dangerous theatres around the world (Section 6). 2. Some Preliminary Clarifications: The Lisbon Treaty and Crisis Management A. The Lisbon Treaty On 18 December 2007 the representatives of the 27 Member States of the EU signed the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community. [FN5] The Treaty of Lisbon has seven Articles only. Articles 1 and 2 list all amendments to, respectively, the current Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC); Articles 3-7 contain some final provisions on, inter alia, the duration of the treaty, the ratification procedure and the renumbering of articles. Thus, in contrast to the 2004 Treaty establishing a Constitution for Europe--which never came into force due to a negative outcome of referenda in France and The Netherlands--the Lisbon Treaty does not intend to replace the current treaties, but rather to amend them. After it comes into force, [FN6] we will have new, consolidated versions of both the EU Treaty and the EC Treaty (which will be renamed as the Treaty on the Function of the European Union--TFEU). The reason for the conclusion of the Lisbon Treaty can be found in its preamble: to complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action. The preamble of the Lisbon Treaty thus makes clear that strengthening the Union's role in the world is one of the reasons for its conclusion. Indeed, coherence of the EU's external action is currently seriously hampered by the institutional structure of the Union, in which external competences and procedures in all three pillars (the European Communities, the Common Foreign and Security Policy (CFSP) and the Police and Judicial Cooperation in Criminal Matters) are artificially kept apart. In that respect the dissolution of the pillar structure and the merger of the EU and the European Community (EC) potentially adds to the coherence of the Union's external action. The Lisbon Treaty not only integrates the EC [FN7] into the EU, but the new TEU also explicitly provides that The Union shall have legal personality (Art 7), thus making an end to the academic discussion on the legal status of the Union. [FN8] That there is still some uneasiness on the part of some Member States is reflected in Declaration No 24, attached to the Lisbon Final Act: The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to
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act beyond the competences conferred upon it by the Member States in the Treaties'. Like many Declarations, this one also states the obvious. After all, the principle of attributed (or conferred) powers forms a starting point in international institutional law and is even explicitly referred to in the new TEU, this time with no exception for the CFSP: Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States' (Art 5). [FN9] Similar careful considerations can be found in Declarations 13 and 14, which underline that the new changes do not affect the responsibilities of the Member States, as they currently exist and do not prejudice the specific character of the security and defence policy of the Member States'. It has been argued that, taken together, and apart from their declaratory nature, these Declarations may nevertheless prevent a communitarization of the Union's foreign, security and defence policy. [FN10] The new TEU contains all institutional provisions, whereas all policy areas (including the current EU Third Pillar on Police and Judicial Cooperation in Criminal Matters) will be part of the reformed EC Treaty, the new TFEU. It is therefore striking that the new Common Foreign, Security and Defence Policy will remain part of the TEU. Indeed, the current Second Pillar will be the only policy area that will continue to have a separate status in EU law and even within Title V on the General Provisions on the Union's External Action there is a separate section on Special Provisions on the Common Foreign and Security Policy. It has been argued that the Second Pillar thus de facto remains in place. [FN11] The reasons for this continued separation of foreign/security policy from other Union external policies (including trade and development) could already be found in the mandate for the Lisbon Intergovernmental Conference (IGC), in which Member States could not agree on a transfer of the CFSP provisions from the TEU to the TFEU. [FN12] From a legal-institutional point of view this does not make too much sense. After all, with the end of the separation between Union law and Community law possible fears of a further communitarization of CFSP are unfounded and even within the new TFEU specific provisions (including the role of the institutions, voting rules and available legal instruments) could have been inserted, as was done for other policy areas. B. Semantic Clarifications Another preliminary note relates to the term crisis management. In the international context, the word crisis' is widely understood as an acute situation in which armed force is (likely to be) used. The much broader conflict is intended to denote every national or international situation where there is a threat or breach to priority values, interests and goals. The concept of conflict prevention is thus to be understood as the adoption and implementation of measures that aim to impede the escalation of a non-violent dispute into a crisis. Crisis management then refers to the organization, regulation, procedural frameworks and arrangements to contain a crisis and shape its future course while resolution is sought. Conflict resolution refers to efforts to impose a (partial) settlement in the case of a crisis and consolidate the cessation of violence. Actions meant to address the root causes of crises that have been resolved are dubbed post-conflict reconstruction and rehabilitation measures' or, perhaps again confusingly, peace building. [FN13] While these narrow definitions are in tune with the firm terminological distinctions employed in Article 17(2) of the current TEU and Article 43(1) of the new TEU, the dividing lines between the different categories are often blurred in practice. For instance, the strategies and actions aimed at the stabilization of a country or a region, [FN14] adopted in the wake of a crisis, are intended to prevent the resurgence of armed violence in the short, medium and longer term. As such, these measures could fall within the realm of both peace building and (future) conflict prevention. The same holds true for the fuzzy concept of crisis management, as evidenced by the several guises under which the EU may act as a crisis manager: as a military force to keep or make the peace and to fend off threats to international peace and security posed by, for example, separatist groups, terrorist organizations or pirates; and in its civilian capacity by way of a wide vari-
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ety of ESDP operations: police missions, rule of law missions, civilian administration missions, civil protection missions, peace monitoring missions, support missions to EU Special Representatives, border assistance missions and security sector reform missions. [FN15] In the EU context, the notion of crisis management thus serves as a catch-all phrase for both military and civilian ESDP operations, whether they are deployed to prevent conflict from bursting into crisis, assist in enforcing the peace, keep the peace or build the peace. The finalit in the EU's terminological inflation of crisis management might well boil down to the external dimension of providing security, [FN16] in all its cross-pillar glory. [FN17] 3. Crouching Tiger, Hidden Dragon A. Paper Tiger The need to move beyond the paper security structures that were introduced in the Treaty of Maastricht during the 1991 IGC became painfully apparent with the violent disintegration of Yugoslavia at the end of that year and with the war in Bosnia and Herzegovina (1992-1995). In the absence of its own military capabilities under the newly launched CFSP, the EU could, however, avail itself of the Western European Union (WEU) to elaborate and implement decisions and actions of the Council that had defence implications. [FN18] The word defence had to be interpreted in the broad sense, as a common defence of the territory of the EU, similar to clauses laid down in Article 5 of the Washington Treaty (NATO) and Article V of the Modified Brussels Treaty (WEU), was excluded from the TEU. The term referred to military cooperation in actions out-of-area. Reviewing the significant changes that had taken place in the security situation in Europe after the outbreak of the Yugoslav crisis, the WEU Council of Ministers, at its 19 June 1992 meeting on the Petersberg (near Bonn), redefined its operational role so as to include the deployment of military units of WEU Member States for humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking to implement conflict prevention or crisis management measures taken within the framework of the OSCE or the UN. [FN19] While military units of the 10 WEU Member States, all also EU Member States, conducted operations in the Adriatic and on the Danube, they did not do so in support of the EU. [FN20] The only official request of the EU in the first half of the nineties to make use of WEU capabilities concerned the support for the EU administration of the Bosnian town of Mostar (1994). Unfortunately, this operation was generally perceived a failure, especially by the parties to the conflict. [FN21] With the crises in Albania (1997) and Kosovo (1999), the EU was further embarrassed at how little it could contribute to the management of crises at its doorstep. Frustration at such inadequacies--and calls for change by others--led France and the United Kingdom, the EU Member States that pack the most military punch, to prod their colleagues at the European Council's December 1999 summit at Helsinki in carrying forward work on the development of the Union's own military and civilian crisis management capabilities. [FN22] At Helsinki the European Council underlined its determination to develop an autonomous capacity to take decisions and, where NATO as a whole was not engaged, to launch and conduct EU-led military operations in response to international crises. [FN23] Since then, the EU has worked hard to close the infamous capabilities-expectations gap in the field of the European Security and Defence Policy. [FN24] In subsequent steps, the European Council agreed to the institution of new political and military bodies, structures and procedures to ensure political guidance and strategic direction; [FN25] the principles for consultation and cooperation with non-European allies and the UN, NATO and other international organizations; [FN26] measures to enhance the Union's military and civilian capabilities and timetables for carrying forward work in both domains; [FN27] and the adoption of an acquis scuritaire, [FN28] including a European Security Strategy (ESS), the EU's first comprehensive approach to
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security issues. [FN29] Thus, in a very short timeframe, the EU has developed what was needed to create an ability of its own to undertake the full range of the so-called Petersberg tasks', as incorporated in Article 17(2) TEU. [FN30] B. Hidden Dragon (i) First 5 years: age of innocence The most striking manifestation--and raison d' tre--of the ESDP is the EU's capacity to back its diplomatic efforts by force. Since the Treaty of Amsterdam became operational in 1999, Javier Solana, SecretaryGeneral and High Representative (SG/HR) of the CFSP, supported by his staff at the Council, has made the most of the cautious wording of his tasks in Article 26 TEU. In the Western Balkans, the testing ground par excellence for the CFSP and ESDP, the EU, by way of its SG/HR, was instrumental in brokering a peace deal between the government and the Albanian separatists in the Former Yugoslav Republic of Macedonia (FYROM) in 2001 and in hammering out the Belgrade Agreement (2002) to prevent the Federal Republic of Yugoslavia (FRY) from falling apart and having a knock-on effect on the precarious balance reached in Kosovo. [FN31] The question remained, however, whether such diplomatic constructs could sustain the disintegrative forces at work in the Western Balkans. While NATO continued to secure stability in FYROM [FN32] and peacekeeping in the FRY was unthinkable in the wake of Operation Allied Force, it became increasingly clear that the EU was in need of an operational success in the sphere of ESDP to bring much needed balance to its internationally perceived persona of an economic giant, political mouse and military worm. [FN33] On 1 January 2003, the EU launched the EU Police Mission in Bosnia and Herzegovina (EUPM) as its first-ever civilian crisis management operation within the framework of the ESDP. [FN34] On 31 March 2003, the EU finally deployed Operation Concordia, its inaugural military mission, to follow up on NATO's efforts to contribute to a stable and secure environment in FYROM. [FN35] Since 2003, the EU has affirmed its operational capability through the launching of more than 20 ESDP operations, [FN36] mainly in Africa [FN37] and in the Western Balkans, [FN38] but also in the EU's eastern neighbourhood, [FN39] the Middle East, [FN40] and Asia. [FN41] The EU has acted as a crisis manager in several guises: (a) as an honest broker of peace between the parties to a conflict (eg Aceh); (b) as an assistant to border management (eg Moldova/Ukraine); (c) as an adviser in justice reform (eg Georgia); (d) as a trainer of police and prison staff (eg Iraq); (e) as a security sector reformer (eg Guinea-Bissau); (f) as a security guarantor during elections (eg Democratic Republic of Congo); (g) as a peacekeeper on the invitation of a host country (eg FYROM); (h) as a regional arrangement operating under a mandate by the UN Security Council, to counter the threat to international peace and security (posed by, eg piracy and armed robberies against vulnerable vessels off the Somali coast) and to assist peacekeeping operations carried out by other international organisations (eg Chad and, indirectly, Darfur); and
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(i) as a component of an international transitional administration (eg Pillar IV in UNMIK). The EU has never acted in the capacity of enforcer of the peace (like NATO in Kosovo in 1999) nor in defence against an armed attack on its territory. While most of the early ESDP operations were fairly successful, largely thanks to the fact that they were usually short term and limited in both scope and size, they have also revealed shortfalls, bottlenecks as well as broader issues in crisis management. They range from growing pains', including the creation of the brand of EU crisis management as well as the planning and drawing up of appropriate mandates for ESDP missions, to more enduring challenges such as coherence between EU policies, institutions and instruments, coordination with other international organizations, notably NATO and the UN, and consistency of output. [FN42] Lessons learned from these ESDP operations should be taken to heart now that the EU is facing its maturity test as an international crisis manager. (ii) The next five years: a maturity test In spite of the growing pains in the development of ESDP, the EU has made significant strides in deploying crisis management operations. However, the issue of defining success of the ESDP is no longer measured in terms of merely launching missions, ensuring mission output and gathering operational experience. ESDP is past its age of innocence. The bar is set much higher now. Not only is greater intra- and interinstitutional coordination and cross-pillar coherence required by EU law and policy, [FN43] the Union is also expected to conduct several operations at the same time, [FN44] to carry them out in line with both human rights law and international humanitarian law, [FN45] to live up to its promises by accomplishing its tasks, to effect positive change on the ground and to show that it can take the lead among other international and institutional actors. These issues have become more pressing since the EU embarked on bigger and more difficult ESDP operations, for instance in the high-risk theatres of Kosovo, Afghanistan and Chad. [FN46] If such crises are managed badly, then the EU risks losing its recently found confidence and acquired image as a regional and global actor serving the interest of international peace and security, especially if an illprepared and/or under-equipped ESDP operation stumbles into another Srebrenica. In short, the EU is facing a big maturity test in ESDP. While the stakes are high for the EU, all three of the above-mentioned test cases' unfortunately got off to a bad start. [FN47] (a) EULEX KOSOVO. The biggest and most ambitious civilian ESDP operation to date, the rule of law mission in Kosovo (EULEX KOSOVO), was born in legal uncertainty after protracted international negotiations on the final status for Kosovo failed to culminate in the adoption of a new UN Security Council mandate for the mission in Kosovo. [FN48] Attempts to provide the ESDP mission with such a mandate had been blocked by Russia and China, which emphasized that any Chapter VII operation in Kosovo had to be conducted within the framework of UN Security Council Resolution 1244 (1999) and that this implied a complete respect for the territorial integrity of Serbia. From the beginning, the USA, UK and France have argued that the EU's non-military operation is authorized because Resolution 1244 leaves considerable freedom to UN members and relevant international organizations to establish a military presence in Kosovo and to the UN Secretary-General (UNSG) to establish an international civilian presence in Kosovo, with the assistance of relevant international organizations, in order to provide an interim administration. [FN49] Taking note of the EU's wish to intervene, the UNSG decided to restructure the international civilian presence by replacing certain elements of UNMIK by EULEX. [FN50] While this reconstruction of the international civilian presence was later endorsed in a statement of the President of the Security Council, [FN51] it by no means amounts to an official Security Council authorization of EULEX as such. From a UN legal perspective, therefore, the position of EULEX KOSOVO is rather fragile and redolent of constructive ambiguity. [FN52]
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The Council of the EU made use of the small window of opportunity between the re-election of the moderate and EU-minded Boris Tadic as President of Serbia on 3 February and the declaration of independence by the Parliamentary Assembly of Kosovo on 17 February 2008, to adopt two Joint Actions, one to create the EULEX mission [FN53] and the other to appoint Pieter Feith as EU Special Representative, [FN54] and to get the mission physically underway on 16 February 2008. [FN55] The adoption of the Joint Actions was therefore not yet marred by the divisions between Member States in reaction to the declaration of independence of Kosovo. Thanks to the agreement that the mission would only be staffed on a voluntary basis and the constructive abstention (Art 23(1) TEU) of Cyprus, Greece, Slovakia, Spain and Romania, the Member States that resisted the recognition of independence, it was possible to launch EULEX KOSOVO. While the emergence of EULEX from the ashes of two years of political wrangling over the final status of Kosovo was in itself quite an achievement of diplomatic skill and manoeuvring, the fact that the mission was born in such legal controversy has had a negative impact on its actual deployment and on its achievements so far. Spain decided to refrain from contributing personnel to the mission. [FN56] Much to the dismay of its Allied partners, Spain even decided to withdraw its military forces from NATO's military operation in (what it does not recognize as a sovereign and independent) Kosovo. [FN57] Moreover, Russia (at the UN level) and Serbia (at both the international and local levels) are blocking the transfer of powers from UNMIK to EULEX KOSOVO and the local authorities, and thereby made it impossible for the EU's mission to be fully deployed as planned, ie by 15 June 2008. [FN58] Of the 2000 law enforcement and justice experts initially envisaged for EULEX KOSOVO, not even 400 were on the ground by then. [FN59] While EULEX began operations on 8 December 2008, it only reached full operational capability on 6 April 2009, with the vast majority of its staff deployed. [FN60] Despite the challenges, the mission began to fulfil its mandate. Some of the early achievements include: (a) EULEX judges and prosecutors and their local counterparts having scheduled more than 80 hearings; (b) EULEX having completed the first trial at Mitrovica District Court since 19 February 2008; (c) EULEX having carried out 13 exhumations and identified the remains of 23 missing people, 18 of whom have been returned to their families; (d) the Mission having a 24/7 police and customs presence at gates 1 and 31; (e) the re-establishment of partial customs controls at the northern gates having resulted in a measurable increase in revenue collection and a considerable decrease in oil smuggling. [FN61] Nevertheless, the political and local opposition to EULEX KOSOVO continues to pose operational challenges for the mission, especially in the de facto separated ethnic Serbian northern Mitrovica and when trying to assure the rights of minority groups throughout the territory of Kosovo. [FN62] On orders from Serbia's government, the Kosovo Serbs, who represent some 5 per cent of the entire population, are refusing to cooperate with Kosovo's government and with EULEX. [FN63] Kosovo is, first of all, a European problem, and the EU has the primary responsibility and interest to stabilize the region. Regrettably, the EU's coherence problems and outright inability to agree on a common policy has not only weakened its role at the international level, it has also become a major obstacle to determined action within Kosovo itself, creating problems of inconsistency between policies (ESDP and enlargement) governed by different EU institutions (Council and Commission respectively). The five EU Member States that continue to withhold recognition of Kosovo in fact encourage those who refuse to offer EULEX KOSOVO any cooperation and, therefore, are impeding the mission's and the Commission's work.
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That stance also makes it infinitely more difficult for moderate forces in Serbia to adjust to the new situation in Kosovo. Arguably, only a unified EU position on the international status of Kosovo, combined with the knowledge that EU accession for Serbia is unthinkable as long as its conflict with Kosovo has not been fully resolved, may over time lead to a change of attitude on the part of both ordinary Serbs and their government. Both Serbia and Kosovo also need a clear European perspective and unhesitating help to meet the daunting challenges they are facing. At the moment, both are missing. [FN64] (b) EUPOL AFGHANISTAN. In the wider context of the international community's efforts to support Afghanistan in taking responsibility for law and order, the EU has launched a three-year civilian ESDP mission in mid-June 2007. [FN65] EUPOL AFGHANISTAN, which builds on the heavily criticized efforts of the German Police Project Office [FN66] and other international actions in the field of police and the rule of law, is supposed to monitor, mentor, advise and train at the level of the Afghan Ministry of Interior, regions and provinces. The mission is widely regarded as the Union's most visible contribution to the international efforts at stabilizing the country. It runs in parallel to NATO's first military mission outside Europe. At the time of writing, the NATO-led International Security Assistance Force (ISAF) was seen by many observers to be failing to such an extent that it risked fracturing the Atlantic Alliance itself. [FN67] US President Barack Obama's search for strengthened European engagement to fight Al Qaeda and the Taliban insurgency on the Afghan-Pakistani (AfPak) border and to rebuild Afghanistan increased the pressure on EU Member State governments to put the conflict's regional dimension higher up their foreign policy agendas and to step up their military, police and civilian contributions to match their vocal support for the US-led initiatives with troops and kit. Afghanistan thus represents a litmus test for the future of transatlantic relations and for the EU's credibility as a global security actor. [FN68] Most EU Member State governments, however, remained reluctant to commit significantly more combat troops to ISAF or to remove national restrictions on their deployment. [FN69] This was due to public reservations--if not outright opposition--in Member States to the war in Afghanistan, the deteriorating security situation and the remoteness of the theatre. Understandably, it makes it harder to argue the case for more military engagement in what seems to be an endless war far away in a country that has always ejected foreign occupiers. It was only after much cajoling and shaming by the USA and NATO that EU Member States, at NATO's 60th Anniversary Summit on 3-4 April 2009, committed 5000 new troops to the 26 000 already in place, but 3000 of them would be deployed only temporarily to provide security for the August 2009 elections. [FN70] Obama's calls for a more permanent European troop increase were thus politely brushed aside. By increasing US troops in Afghanistan to some 68 000 by the end of 2009, from 38 000 at the beginning of the year, the character of ISAF has been significantly Americanized. [FN71] When EU Ministers of Foreign Affairs in February 2009 promised to forge a common approach with the USA to building a stronger and safer Afghanistan, [FN72] they probably meant shifting the international focus from military solutions to a more comprehensive approach, covering wider security and development issues such as police and judicial training and reform, strengthening Afghanistan's governance and emboldening the counter-narcotics drive. Arguably, these are areas where the EU has more expertise and experience to play a key role. At the same time, this approach puts the onus on the EU to perform. Whereas the EU is already a leading aid donor to Afghanistan, [FN73] with police reform now higher up the Afghan security agenda, most expectations and attention will be centred on EUPOL AFGHANISTAN, the Union's highest-profile initiative. As Islam and Gross have noted: [w]hatever else the EU does, its efforts will be judged by the police mission's success or failure. ( ... ) The good news is that EUPOL is now widely recognised as an important component of the international drive for improved security in Afghanistan. The bad news is that its deficiencies mean Europe continues to punch below its weight in the country. [FN74] Launched in 2007, EUPOL aims to contribute to the establishment of sustainable and effective civil policing arrangements that will ensure appropriate interaction with the wider criminal justice system under
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Afghan ownership. The mission's tasks include working on an Afghan national police strategy, encouraging Interior Ministry reform and training at the level of the central Afghan administrations, regions, provinces and districts. [FN75] Nineteen EU Member States plus Canada, Croatia, New Zealand and Norway contribute to the mission. [FN76] EUPOL got off to a slow start. Of its initially envisaged 230 personnel, mainly police, law enforcement and justice experts, only around 170 had taken up their post by mid-2008, more than one year after its debut. [FN77] They were to be deployed at central, regional and provincial levels but the mission was so poorly prepared that barely three months after EUPOL's inception, its first police chief, Friedrich Eichele, quit owing to the lack of furniture, computers and--above all--cars, which meant that the initial staff could not leave Kabul and help the training in the provinces. [FN78] The decision taken by the Council of Ministers on 26 May 2008 to double the original number of experts working in the mission [FN79] was still being implemented in March 2009. [FN80] For all the EU's talk about engagement, Member States have been hard-pressed to muster around 400 of their more than 2 million police officers to send to Afghanistan to train a police force of 16 000, which in many provinces is corrupt and predatory. [FN81] Member State governments are thus seriously undermining EUPOL's credibility and effectiveness, [FN82] especially seeing that the EU's police and justice mission will remain dwarfed by the US police reform programme (CSTC-A), which has committed substantially more resources to police reform (some of which are British, Dutch and German!), sometimes adopting different standards and methods. [FN83] Apart from leveraging its contribution to Afghanistan to boost its visibility and credibility internationally, a key challenge for the Union will be one of coordination and cooperation among Member States and between the EC Delegation (European Commission) and the ESDP mission (Council Secretariat), so as to be able to speak with a single voice. Yet, EU Member States appear to be giving priority to upping their national profile in Afghanistan rather than to promoting collective efforts through their flagship mission. Mirroring former Balkans trouble-shooter Richard Holbrooke's appointment as US envoy for AfPak, several EU Member States (including the UK, France, Germany and Sweden) have also nominated their own AfPak envoys in addition to the EU Special Representative for Afghanistan, Ettore Francesco Sequi. [FN84] The creation of such parallel national positions complicates coordination efforts between the EUSR's office, the Commission Delegation, EUPOL AFGHANISTAN in an already crowded theatre. Arguably, setting up an EU contact group on Afghanistan could further confuse the situation, making it even less clear who speaks for Europe. [FN85] (c) EUFOR TCHAD/RCA. In Resolution 1778 of 25 September 2007, the UN Security Council approved the establishment of a UN Mission in the Central African Republic and in Chad (MINURCAT) and authorized the EU to deploy its forces in these countries for a period of one year from the time of its declaration of Initial Operating Capability. [FN86] However, the initial deployment of the one-year EU operation did not go ahead as planned. In spite of the urgent need to stabilize Chad's borders with Sudan and to protect refugees from Darfur, EU Member States squabbled for months over who should provide troops, helicopters and (medical) equipment, and who should pay the bills. The UK and Germany were unwilling to help with manpower or money because of other commitments, like the war in Afghanistan. Other countries were put off by the expected high maintenance costs of running helicopters, planes and medical aircraft in Chad's dusty environment. In an ironical twist of fate, EU Member States--which had heavily criticized Russia's deep incursion into Georgia during and after the five-day war in August 2008, accepted Moscow's offer to provide four Mi-8 MT utility helicopters (with full supporting equipment and up to 120 personnel) for its EUFOR operation. [FN87] But logistics and finances were not the only problems that beset the EU peacekeeping mission for Chad. Military chiefs also proved very cautious about casualties, partly because of the mistrust of Chadian rebels as to the political motives of the main troop-contributing nation and former colonial power, France. [FN88] When money, troops and equipment were finally found, the date scheduled for the launching of the EUFOR
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(28 January 2008) [FN89] was pushed further back owing to rebel attacks on N'Djamena, Chad's capital. [FN90] Even before Operation EUFOR TCHAD/RCA reached Initial Operating Capability on 15 March 2008, it suffered its first casualty. [FN91] Obviously, this forced the EU to rethink its strategy to secure commitments when troops are being put at risk. [FN92] EUFOR's mission, ultimately involving 3400 troops from 26 EU Member States and a number of third states--the most multinational operation the EU has ever carried out in Africa--ended on 15 March 2009 when UN peacekeepers (a large number of whom are exEUFOR personnel) took over. The establishment of EUFOR TCHAD/RCA formed part of a comprehensive package of enhanced EU commitment to a regional approach to resolve the crisis in Sudan's troubled Darfur region. [FN93] All EU instruments--diplomatic, political, military, humanitarian and financial--have been mobilized in support of this effort. EUFOR's activities included carrying out patrols to observe the security situation in its area of operation (eastern Chad and the north-east of the Central African Republic); protecting civilians in danger, in particular refugees and persons displaced by the fighting in Darfur; facilitating the delivery of humanitarian aid and the free movement of humanitarian personnel; protecting UN personnel, facilities, installations and equipment and ensuring the security and freedom of movement of its staff and UN and associated personnel. As such, these activities helped to speed up the establishment of UNAMID in Darfur, but it is highly questionable whether EUFOR had any impact at all on the efforts by the African Union (AU) (and the UN) into revitalizing the political process with a view to finding a lasting solution. [FN94] Given the situation on the ground, the vast area covered and the logistical difficulties, this operation proved a real challenge for the EU. Whereas the Ministers of Defence of the Member States, at their informal meeting in Prague on 12-13 March 2009, stated that the objectives of the EUFOR TCHAD/RCA had been fulfilled successfully, [FN95] the ESDP operation did not improve the security situation. [FN96] The expulsion of 13 humanitarian organizations from the Darfur region and the suspension of their relief efforts, as a consequence of the indictment by the International Criminal Court of the Sudanese President Omar alBashir, [FN97] led to a massive efflux of refugees into neighbouring Chad and a crisis of even greater dimensions. Arguably, EUFOR's mandate, like that of its successor MINURCAT, was too restricted as it was limited to reducing insecurity in camps for refugees and internally displaced persons and the surrounding areas and did not include, as it needed to, elements to eradicate the root causes of the conflict. [FN98] C. Challenges for EU Crisis Management in the Coming Years (i) Introduction The EU not only faces legal and political challenges in crisis management that force it to explain its interpretation of public international law and redefine its approach to both unlike-minded countries and powerful allies demanding a bigger input in operations elsewhere, it also has to ensure that internal political and administrative cohesion is maintained and that operational demands posed by big and increasingly hybrid missions in difficult and dangerous situations are met and are translated into successful action. Last but certainly not the least, shortcomings in both budget and capabilities will have to be addressed. [FN99] Needless to say, this is a huge test for the ESDP, the outcome of which will define not just the future of European crisis management, but indeed the very position of the EU on the international political scene. (ii) The internal vs external and soft vs hard divides in EU security policies A theme that is perhaps difficult to discern but that nevertheless emerges from the test cases' elaborated above is that the classic distinctions between internal and external security and hard and soft security no
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longer apply to the analytical framework in which the issues related to these concepts are approached. What we are observing is a merging of the concepts of internal and external security and a shifting emphasis between soft and hard security. The first point, that is, that the internal and external security concepts are both trans-boundary in nature, is illustrated by, for example, the need to (i) stabilize Kosovo and draw it closer to the EU so as to prevent refugees, illegal immigrants and organized crime from being imported into the Union; [FN100] and (ii) fight terrorist groups on the Afghan-Pakistani border in order to better protect the EU's internal security against terrorist attacks. The point can be made in other contexts too, as evidenced by the need to monitor the transit of natural gas to secure deliveries to the EU in the wake of the dispute between Russia and Ukraine in January 2009 over the payment of supplies. [FN101] While it is true that the European integration process has always been a trans-boundary security project, for the first 40 years of its existence the EC/EU promoted inter-state security through a system of crossborder networks. External security relations among Member States were turned into domestic EU policies and law. Now, in an era of trans-boundary threats and security challenges, the task of the Union is to defend and boost its security through similar networks beyond the internal-external divide. But the unhelpful distinction between internal securitarization of relations between EU Member States and an external Common Foreign and Security Policy, a distinction that originates in the tradition of territorial security and border defence, has been cemented into the EU's pillar structure: the Second Pillar (CFSP) has been set in contrast-politically as well as legally--to the internal security domains of the First Pillar (civil protection, energy, environment, health, etc.) and the Third Pillar (police, border control, etc.). However, the question is to what extent a practical and analytical line between external and internal security can be drawn for an entity set up with the aim of eroding borders to enhance inter-state security. The 2003 European Security Strategy (ESS) declares that internal and external aspects are indissolubly linked. [FN102] However, the implications of this merger for the EU's protection are hardly reflected in the creation and analysis of EU security institutions, law, policies and operational planning. It is widely acknowledged that there is great potential in a more efficient combination of the EU's cross-pillar security policies and capacities. [FN103] On the second point raised at the outset of this section, it is clear that, while a lot of (media) attention is devoted to the (problems involved with the) EU increasingly equipping itself for harder-type security missions in higher-risk theatres around the world, the kind of security challenges that it has to deal with more routinely on the European continent have a softer security character (eg illegal immigration, organized crime and the disruption of the flow of energy resources). Increasingly though, the distinction between the hard and the soft security nature of EU policies and operations is shifting. EULEX KOSOVO and EUPOL AFGHANISTAN are cases in point. As has already been mentioned in connection with the first point raised in this section, one consequence of this trend may be that the consistency in the implementation of different policies is undermined. Another consequence may be that the choice for the legal basis becomes more difficult. This is most strikingly visible in the EU's Border Assistance Missions (EUBAM) deployed in the EU's neighbourhood and the Security Sector Reform (SSR) missions elsewhere in the world. Whereas the legal basis for EUBAM Moldova/ Ukraine was assigned to the First Pillar, [FN104] EUBAM Rafah was based on the Second Pillar because of the especially dangerous environment of the Gaza Strip. [FN105] EUSEC RD CONGO, the Union's first SSR mission, was designed to provide advice and assistance to the Congolese authorities responsible for security, while also taking care to promote policies compatible with human rights and international humanitarian law, democratic standards and the principles of good governance, transparency and respect for the rule of law. [FN106] Consultations between the Council and the Commission on the planning of an integrated mission (including a military, a police and a justice component) failed as no compromise could be reached on how to delineate the line of command that could preserve the respective competences of the institutions.
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As a result, such an integrated mission was never set up. [FN107] It was only after a joint assessment mission to the DRC that the Council and the Commission presented a joint paper outlining the EU approach to SSR. In the end, the military and police component was entrusted to a Second Pillar mission, EUPOL RD CONGO, while the mandate for the justice component, EUSEC RD CONGO, was based on the First Pillar. [FN108] (iii) Coherence and consistency: decision-making and leadership As mentioned in the previous section, the finding that the classic distinctions between internal-external and soft-hard security policies are blurring has consequences for the attempts of the Union to achieve more coherence and consistency in policy-making and law-making in the European security field. The notion of coherence refers to the level of internal cohesion, ie the level of institutional coordination within the EU. As such, the principle carries a procedural obligation for the institutions to cooperate with each other. [FN109] The principle of consistency carries an obligation of result, namely, to ensure that no contradictions exist in the external projection of strategies and policies. Achieving more coherence and consistency in policymaking and law-making in the European security domain is not a new challenge but has been heightened. The recent enlargements with 10 states from Central and Eastern Europe, Malta and Cyprus have complicated decision-making on EU security policies. Again, Kosovo is a case in point. The Union's new geographical and geopolitical position has brought relations with third countries, especially those on its borders, into sharper focus and is forcing the EU to define its international role and responsibilities more clearly. Is the current legal framework still conducive to the achievement of consensus on any issue, let alone topics as sensitive as security policies, in an EU numbering 27 Member States (or more)? While the increases in the number of Member States do not seem to really matter in a veto system, as it only takes one state to block a proposal, [FN110] the chances of disagreement and delay do increase exponentially as the number of participants rises. With increasingly diverse interests and approaches to dealing with security issues, the last waves of enlargement have stretched the sense of solidarity and commonality to the maximum. The EU faces the challenge of ensuring that enlargement does not further disrupt internal cohesion and add to, instead of detract from, its ability to externally project security and stability. Leadership is needed to ensure that decisions on, for instance, counter-terrorism or launching ESDP missions are made swiftly and give clear direction to EU security actions in the operational phase. Without efficient decision-making and/ or clear leadership, efforts to converge security policies may be futile. Yet, leadership and decision-making within the expanded Union are potentially the hardest issues to resolve, with already extremely sensitive areas further complicated by enlargement. In particular, the rise in the number of small states spells greater opposition to large-state dominance. Leadership is required at three levels: (i) the political drive to crystallize the idea of a security policy; (ii) the institutional responsibility within EU structures; and (iii) the practical administration of EU policy. The lack of leadership at these levels makes it difficult to decide whether a crisis exists, to then determine the scale of the crisis and to achieve a consensus on the response. This failure was clearly illustrated by the arguments over the deployment of police in Afghanistan. [FN111] In the case of Chad, the leadership was disputed by the recipients of the EU's assistance--another problem that ought to be avoided. Annoyingly, talk of leadership immediately raises concerns about the emergence of directoires. [FN112] This form of enhanced cooperation consists of a small number of EU Member States, usually the largest and/or most powerful, constituting the core decision-making body. The primary concern is that such a move will marginalize other/smaller Member States. The enlargement of the EU with 12 new Member States has complicated the Union's political balance. The three biggest EU Member States--France, Germany and the UK--continue to be crucial to the EU's security policy formulation, as their efforts to spearhead a resolution
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of the nuclear dispute with Iran demonstrate. At the next level down, Italy and Spain have been joined by Poland and Romania as medium-sized Member States, demanding a seat at the top table. However, as the majority of new Member States can be classified as small states', their security sensitivities in decision-making processes have become an even greater issue. [FN113] Due to their markedly Atlanticist orientation, the new Member States have tipped the internal balance of the EU in that direction. But because there is no talk of a Central European bloc'--not on the issue of Euro-Atlantic relations, nor for that matter on any other important security policy, [FN114] they will not want any form of directoire to emerge for decision-making on security policies, regardless of what combination of large states that directoire may entail. This brings us back to the issue of unanimity-based decision-making procedures in the largely intergovernmental security policies of the EU, the outcome of which has been made more difficult by the eastern enlargement. The arguments in the European Convention on the Future of Europe and the pre-Lisbon IGC between medium-sized states, such as Poland and Spain, and the largest states, particularly Germany, over the number of weighted votes in the Council and a double-majority voting system, exemplify the sensitivities of the issue. This argument also illustrates how wary some of the new Member States are about being dominated by the older and larger Member States. The intergovernmental nature of decision-making does not foster a sense of commonality. Member States may wield (the threat of) their veto whenever they disapprove, when the position taken is contrary to their interests, when external pressure is exerted upon them or when domestic opposition pressurizes the government. However, the bottom line remains that the willingness of the Member States to act together through their Union is often missing. The actions of individual Member States in Afghanistan are the sad proof of this. While pragmatism about the fact that only a united EU can tackle most of the security challenges posed by a globalizing world should make the Member States mend their ways, it will depend on vision and political leadership whether they will. (iv) Subconclusion Whereas the EU includes the assertion of its own identity on the international scene and the promotion of peace, security and progress in Europe, its neighbourhood, as indeed the world, among its principal mission statements, [FN115] it has, so far, not excelled in projecting a picture of itself as a strong international security actor. Both as a soft power and in its approach to harder security issues, the EU is often perceived by others as unstable and weak. [FN116] The EU's image problem has been less related to its scale of efforts than to its inherent structural deficiencies and the Member States' unwillingness to follow up on their own initiatives to launch ESDP missions. That is not to say that the efforts developed by the EU could not be strengthened. It goes without saying that, for example, the extension of unconvincing (prospects of) benefits, the adoption of ineffective targeted sanctions and the formulation of weak mandates of ESDP missions should be prevented and amended where already in existence. It is a positive sign that, in the framework of the European Neighbourhood Policy (ENP), for instance, the Commission has indicated to stand ready to develop, together with the Council, further proposals in the field of conflict resolution, using both Community and non-Community instruments. [FN117] However, the real test of the EU's effectiveness will come at the level of cohesion among Member States. A Union that is divided, and where the biggest countries seek their own selfish interests in bilateral deals with powerful neighbouring states, while the smaller Member States stubbornly block common positions and joint actions to draw attention to their concerns, will achieve little but derision, both at home and abroad. An EU that unites around clearly defined objectives will stand a much better chance of playing a prominent role on the international scene. In the following section we will investigate to what extent the Lisbon Treaty will be able to counter these difficulties, with a focus on the two key areas: decision-making and leadership (Section 4.A) and consistency in external action (Section 4.B). In addition we will investigate whether some of the new competences in relation to defence policy will
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make the EU more effective in this field (Section 4.C). 4. EU Crisis Management after the Lisbon Treaty A. Decision-making and Leadership As we have seen, effective crisis management calls for effective decision-making. However, in terms of decision-making in CFSP/CSDP, the Lisbon Treaty will only introduce minor changes. The Council--in its configuration as Foreign Affairs Council [FN118]--will remain the key decision-making organ, but, unlike the other Council configurations, it shall not be chaired by Member State representatives, but by the HR (currently Javier Solana) (Art 18, para 3 new TEU). In the new Union qualified majority voting (QMV) is the rule, [FN119] except for CFSP, where unanimity continues to form the basis for decisions, except where the Treaties provide otherwise (Art 24, para 1 new TEU). In that respect it is interesting to point to the fact that apart from the already existing possibilities for QMV under CFSP, [FN120] it will become possible for the Council to decide on this basis on a proposal submitted by the HR (Art 31, para 2 new TEU). This proposal should, however, follow a specific request by the European Council, in which, of course, Member States can prevent this possibility. In addition QMV may be used for setting up, financing and administering a start-up fund to ensure rapid access to appropriations in the Union budget for urgent financing of CFSP initiatives (Art 41, para 3 new TEU). This start-up fund may be used for crisis management initiatives as well, which would potentially speed up the financing process of operations. [FN121] Overall, however, it is clear that it will continue to be difficult to force or stimulate Member States to do something they would not like to do. The key role of the Member States is maintained by the Lisbon Treaty, but with some interesting modifications. So far, most proposals in the area of CFSP have come from Member States, with a particularly active role of the Presidency. In that respect it is striking that the Member States are not mentioned in the new Art 22, para 2, which refers to joint proposals by the HR and the Commission only. However, this seems to be made up by Art 30, para 1, which lays down the more general rule that Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission's support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate. It is in particular this new role of the Commission that may trigger new possibilities for the EU in its external affairs, including international crisis management. Whereas the Commission so far has virtually refrained from making use of its competence to submit proposals on issues in the area of foreign, security or defence policy (Art 22 TEU), [FN122] the creation of the competence to submit joint proposals with the HR may enhance its commitment to this area. This is strengthened by the fact that the person holding the position of HR will at the same time be a member (and even a vice-president) of the Commission (Art 17, paras 4 and 5). This combination of the functions of HR and Vice-President of the Commission is, without doubt, one of the key innovations of the Lisbon Treaty. [FN123] The potential impact of this combination on the role of the EU in international affairs lies in the fact that there could be a more natural attuning of different external policies. In other words: the weekly (breakfast) meetings between the Commissioner for External Affairs and the HR can be replaced by a breakfast for one. At the same time, the continued separation between CFSP and other Union issues may very well lead to a need for different legal bases for decisions, and hence for the use of distinct CFSP and other Union instruments. This holds true not only for the outcome of the decision-making process, but also for the process itself, where both the relevant Commission DG and the CFSP section in the Council Secretariat continue to exist. Much will depend on the way in which the legal provisions will be used. Over the past 15 years, practice has revealed a process of institutional dynamics' in
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which a growing together of Community and CFSP decision-making and institutional involvement proved unavoidable. [FN124] Interestingly enough, the HR may continue its functions even in the case of all Commission members being forced to resign following a motion of censure from the European Parliament (EP) (Art 17, para 8 new TEU). With regard to the EP and its influence on the Union's role in the world, its position will not change substantially. Apart from the rule that the HR and the other members of the Commission shall be subject as a body to a vote of consent by the EP (Art 17, para 7), the task of consulting the EP regularly on CFSP issues moves from the Presidency to the HR (Art 36 new TEU). This shift is related to the creation of the position of a fixed Presidency of the European Council, which replaces the current system of rotating presidencies (Art 15, para 5 new TEU). One could argue that this is a further step in the ongoing Brusselization that one could witness in relation to CFSP over the past years, in line with the replacement of the Political Committee by the permanent Brussels-based Political and Security Committee (PSC) and the increased role of the Council Secretariat. [FN125] As legislative acts are excluded from the area of CFSP, the formal influence of the EP continues to stand in stark contrast to its competences in other policy areas. Indeed, whereas Article 16 (new) provides that the Council shall, jointly with the EP, exercise legislative and budgetary functions, Article 24 makes clear that CFSP is subject to specific rules and procedures' and that the adoption of legislative acts shall be excluded. This seriously limits the formal role of the EP in the CFSP decision-making process. One may argue that this at least supports the effectiveness of operations, but at the same time it continues the complexity in situations where (perhaps on the basis of a joint proposal by the Commission and the HR) decisions need to cover both CFSP and other Union issues. In those cases, the specific rules and procedures' in CFSP would necessarily result in two (or more) separate decisions on the basis of different legal bases, which again complicates the relationship with third states and other international organizations. [FN126] As the case studies revealed, the internal struggle for the correct legal basis may not be helpful in establishing strong external action. Although not termed legislative acts', the CFSP instruments are decisions', which--despite their non-legislative nature--continue to be binding on the Member States, or as phrased in Article 28: they shall commit the Member States in the positions they adopt and in the conduct of their activity. The familiar labels Joint Action and Common Position will disappear, although all three current forms of CFSP decision will reappear: the new CFSP decisions' may define (i) actions to be undertaken by the Union; (ii) positions to be taken by the Union; (iii) arrangements for the implementation of the decisions referred to in points (i) and (ii) (Art 25 new TEU). The somewhat unclear--and unnecessary--difference between Joint Actions and Common Positions thus comes to an end, which at least adds to a further streamlining of CFSP. The separation of the Common Foreign, Security and Defence Policy (CFSDP) from other Union policies is also reflected in the continued exclusion of the European Court of Justice in these matters. However, Art 24 new TEU provides that this is with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 of the Treaty on the Functioning of the European Union. Article 40, first of all, reflects the current preservation of the acquis communautaire clause and states that the implementation of CFSP shall not affect the other policy areas of the Union and vice versa (see Section 4.B below). Article 275 TFEU provides the other exception and allows for the Court to review the legality of decisions providing for restrictive measures against natural or legal persons (the famous sanctions against persons and groups on the anti-terrorism lists of the EU). In terms of leadership, however, something does seem to change. Most of the institutional changes in the Lisbon Treaty relate to the position of the High Representative for the CFSP, which will be renamed the High Representative of the Union for Foreign Affairs and Security Policy. This name change reflects the
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fact that it has become clear that the HR indeed represents the Union and not the (collective) Member States. His or her competences are clearly laid down in the Union treaty and form part of the institutional framework. Although the term Foreign Minister, which was used in the Constitutional Treaty, has been abandoned, the new provisions make clear that the HR will indeed be the prime representative of the Union in international affairs. Even the President of the European Council (note: not the European Union [FN127]) will exercise its external competences without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy (Art 15, para 6(d)). The HR is to be appointed by the European Council (with the agreement of the President of the Commission) by QMV. This again underlines his role as Union representative, who is competent to act even in the absence of consensus among the Member States. The HR is to conduct the Common Foreign, Security and Defence Policy; he shall contribute by his proposals to the development of that policy, and preside over the Foreign Affairs Council (Art 18 new TEU). In addition, his de facto membership of the European Council is codified in Article 15 new TEU (although strictly speaking it is stated that the HR only takes part in the work of the European Council). He is to assist the Council and the Commission in ensuring consistency between the different areas of the Union's external action (Art 21 new TEU) and together with the Council ensures compliance by the Member States with the CFSP obligations (Art 24, para 3 new TEU). All in all, the position of HR has been upgraded to allow for a stronger and more independent development and implementation of the Union's foreign, security and defence policy, which--potentially--allows for a more coherent and more effective role for the EU in international affairs. B. Continued Inconsistency in Crisis Management? As we have seen, the CFSDP will remain part of the Treaty on European Union (and not of the Treaty on the Functioning of the European Union) and will thus continue to have a separate status in EU law. At the same time the original CFSP tasks will be supplemented by a number of new purposes (below, in our italics), which occasionally go beyond CFSP stricto sensu. Article 21 of the new TEU thus seems to have integrated the CFSP policies into the more general external action policy objectives: The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; (c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders; (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; (e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade; (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development; (g) assist populations, countries and regions confronting natural or manmade disasters; and (h) promote an international system based on stronger multilateral cooperation and good global governance. On the basis of these principles and objectives, the European Council will identify the strategic interests and objectives of the Union, which will relate to both the common foreign and security policy and to other areas of the external action of the Union (Art 22 new TEU). In terms of consistency, this can only be ap-
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plauded. However, for parts falling under the CFSP, the HR of the Union for Foreign Affairs and Security Policy will be responsible for proposals for Council decisions, whereas for other areas of external action it will be the Commission. This reveals the continued need for separate procedures for foreign, security and defence policy. Nevertheless, as we have seen Article 22, paragraph 2 does allow for joint proposals, which would force the HR and the Commission to produce a consistent plan, thereby adhering to the demand that The Union shall ensure consistency between the different areas of its external action and between these and its other policies. (Art 21, para 3). [FN128] The fact that the HR will also be a member of the Commission will certainly be helpful, although policy preparation and implementation may still have to be done in distinct Council and Commission directorates. From the outset (the 1992 Maastricht Treaty), consistency problems were the obvious consequence of the choice for a pillar structure in which both the EU and the EC had separate external competences and decision-making procedures. The division between political (CFSP) and other/economic (EC) external relations was never easy to make, but at the same time the Union and the Community were forced to use different instruments and decision-making procedures, thereby challenging the Union's potential as a cohesive force in international relations. There are numerous examples in which the institutional separation between CFSP and EC led to problematic decision-making and unclear situations for third parties, as was also revealed by our own case studies. [FN129] Apart from the cases concerning the anti-terrorism measures against individuals, [FN130] the recent Economic Community of West African States (ECOWAS) judgment again revealed the difficulties in separating foreign and security policy from other external policies. The case provided the first opportunity for the Court of Justice to speak out on a legal base conflict between the first (EC) and second (CFSP) pillars, [FN131] and to shed some light on the distribution of competence between the EC and the EU qua CFSP. In the event, the Grand Chamber of the Court found, unexpectedly for some and notably for the Advocate-General, that by using a CFSP decision on the EU support to ECOWAS in the fight against the proliferation of small arms and light weapons (SALW), the Council had encroached upon EC competence in the field of development cooperation, thus violating the provisions of Article 47 TEU. [FN132] The Court preserved the acquis communautaire in the classic manner and argued that once foreign and security policy elements can be based on the European Community Treaty, they should not be based on CFSP. [FN133] Even more, the trend towards a more equal position of the CFSP [FN134] (with its provisional peak in the new Art 40 after Lisbon; infra) seems to have been halted now that it is being envisaged that parts of the foreign and security policy be based on Community law once the latter allows for it, or be dealt with by the Member States acting individually or collectively. And, in view of the (established) scope of development policy, this should not be too difficult. The wide interpretation of development policy may have an effect not only on the effet utile of CFSP, but also on the consistency of EU external relations in general as ECOWAS may have taught the Council to be more careful with references to Community measures or tasks in its CFSP (and Third Pillar) decisions. It may also have warned Member States that allowing the Union to act qua CFSP may be harmful in areas where they enjoy a shared competence and it may trigger the Commission to come up with additional claims in other borderline areas. ECOWAS may thus prevent the smooth operation of a system of external relations where cooperation is more important and rewarding in terms of output, than competence competition. This judgment, together with the continued separate legal regime for foreign, security and defence policy within the EU, makes it difficult to improve the Union's consistency in its external actions. Nevertheless, the Lisbon Treaty introduces a new delimitation provision in Article 40 new TEU, which not only underlines the need for a preservation of the acquis communautaire (as in current Art 47 TEU), but seems to add that the CFSP competences should also be respected: The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exer-
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cise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter (CFSP). Thus, this provision no longer subjects CFSP to any Community competence, but equally calls for all other policies not to affect CFSP. One could argue that this provision places CFSP on an equal footing with other Union policies and at least no longer puts other Union policies in a default setting. At the same time internal delimitation problems similar to those we saw in ECOWAS, may continue to hamper effective external action. Crisis management is not achieved only by using CFSP/ESDP measures. The classic example of a crosspillar policy--economic sanctions--returns in Article 215 of the new TFEU. As in the current Article 301 TEC, economic (and financial) sanctions may only be imposed after a CFSP decision to that end has been taken. An innovation can be found in the rule that the final legislation to that end can only be adopted by the Council (acting by a qualified majority) on a joint proposal by the HR and the Commission. The involvement of the HR in this procedure may guarantee an even better combination of political and economic questions. In addition, paragraph 2 makes clear that restrictive measures cannot be imposed only on states but also against natural or legal persons and groups or non-State entities'. Finally, the debate on the legal protection of individuals and groups on sanctions lists resulted in a new paragraph: 3. The acts referred to in this Article shall include necessary provisions on legal safeguards'. All in all, the Lisbon Treaty seems to offer a number of improvements that may compensate for the choice to separate the foreign, security and defence policy from other external policies (including trade and economic, social and environmental development). In that respect one can point to the broader objectives of the new CFSP and CSDP and the possibilities for the HR in his double-hatted function to combine security and military measures with the softer crisis-management measures that form part of other Union policies. C. New Competences in Defence Policy? (i) A collective defence obligation? As we have seen effective crisis management depends mainly on the potential of the EU to formulate and implement a security and defence policy. The Nice Treaty provided a basis for a European security and defence policy through a modification of Article 17 TEU. Whereas originally the implementation of EU decisions with defence implications was left to the WEU, the Nice Treaty deleted all references to the WEU. From that moment on the Union had been given the competence to operate within the full range of the Petersberg tasks: humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking (Art 17, para 2). In that respect it is odd that Article 17 still refers to the progressive framing of a common defence policy after that same policy has entered into force on the basis of the same article. Provisions like these reveal the fact that, although a final consensus was reached on a European security and defence policy, some member states are more eager to lay everything down in treaty arrangements than others. Nevertheless, one cannot overlook the gradual development from the first provision in the Maastricht Treaty (the eventual framing of a common defence policy, which might in time lead to a common defence), to the Amsterdam Treaty (the progressive framing of a common defence policy, which might lead to a common defence) and finally to Nice where all references to the WEU were deleted, thereby making the EU itself responsible for the elaboration and implementation of decisions and actions that have defence implications.
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The Lisbon Treaty can certainly be seen as a further step in this development. For the first time a special title is devoted to the Common Security and Defence Policy (Chapter 2, Section 2 of the new TEU). On the basis of Article 42 The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States. The Petersberg tasks have been extended to, inter alia, include: joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peacekeeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories. The references to joint disarmament operations', military advice and assistance tasks', post-conflict stabilisation and the fight against terrorism in Article 43, paragraph 1 are new and allow the Union to further develop its security and defence policy. Crisis management may also be needed in relation to an attack on the Union itself. However, with regard to the defence part of the new CSDP, the Treaty remains ambiguous. The current provision reappears in the new Treaty: The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. (Art 42, para 2 new TEU). Nevertheless, the Lisbon Treaty does offer reasons to conclude that something has changed. First of all--and despite the claim that a common defence is not yet included in CSDP--Article 42, paragraph 7 provides the following: If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States. Taking into account that according to the Helsinki (1999) and Laeken (2001) Declarations the development of military capabilities does not imply the creation of a European army, it is puzzling what it is the European Council will have to decide on. One may argue that we are not yet dealing with strict obligations for all Member States. This would be confirmed by the second part of paragraph 7, which states that Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation. While this would indeed allow the neutral states Austria, Finland, Ireland and Sweden not to participate, the collective defence obligation does not really differ from Article 5 of the NATO Treaty or Article V of the WEU Treaty. [FN135] What is different, however, is that both NATO and the WEU started their life as collective defence organizations and only started to get engaged in other security operations later. The EU seems to follow the reverse path, by concentrating on external crisis management before establishing a mechanism to defend its own Member States. Nevertheless, the feeling that something similar to a collective defence obligation has been created (although somewhat hidden in para 7 of Art 42) becomes stronger when the so-called solidarity clause is taken into account. [FN136] It is somewhat peculiar that this clause is separated from the collective defence clause and is included in the TFEU (Art 222) rather than together with the ESDP provisions in the TEU. The clause does not restrict common defence to armed aggression, but in fact extends the obligation to terrorist
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attacks: The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to: (a) prevent the terrorist threat in the territory of the Member States; - protect democratic institutions and the civilian population from any terrorist attack; - assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack; (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster. Paragraph 2 adds the following: Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council. Paragraph 3 refers to a coordinating role of the Council as well as the procedure: the arrangements for the implementation of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the HR. While the wording of the solidarity clause leaves room for both the Member States and the Council regarding the type and scope of their reaction, it may be seen as an innovation to the current legal regime, where no obligations for the Member States or competences of the Council form part of the treaties. However, after the Madrid terrorist attacks in March 2004, the European Council issued a Declaration on Solidarity Against Terrorism, [FN137] in which the solidarity clause was already incorporated, although the Declaration does not refer to a role for the Union as such, but to the Member States acting jointly. In addition, the Declaration leaves it to the Member States to choose the most appropriate means to comply with this solidarity commitment. (ii) A European army? As we have seen, some of the shortcomings in current EU crisis management seem to relate to the ad hoc implementation of ESDP. The Lisbon Treaty aims to counter this with the introduction of some form of institutionalization of procedures, formats and (civil and military) capabilities. First of all a new form of ad hoc flexibility is introduced by Article 44 new TEU: the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. This allows the Union to implement its new CSDP by subcontracting it to coalitions of the able and willing. An early example of this arrangement can be found in Operation Artemis, in which France took the initiative to form a group of EU Member States and other states to assist the UN operation MONUC in the Democratic Republic of Congo. A second form of institutionalization may be found in paragraph 6 of Article 42, which introduces the notion of permanent structured cooperation for those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions'. [FN138] The permanent structured cooperation is further elaborated by Article 46 and by a special Protocol. According to this Protocol the permanent structured cooperation can be seen as an institutionalized form of cooperation in the field of defence policy between able and willing Member States. In that sense it may be regarded as a special form of enhanced cooperation, although the
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term is not used. It shall be open to any Member State that undertakes to (Art 1): (a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and (b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 43 of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days. Obviously, no reference is made to the creation of a European army. Any explicit hints in that direction would have been unacceptable for certain Member States. Nevertheless, the tasks of the participating Member States come close to at least a harmonization of the different national defence policies. According to Article 2 of the Protocol, Member States undertake to: (a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities; (b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics; (c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures; (d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the Capability Development Mechanism; (e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency. Moreover, the Headline Goal 2010 includes the establishment of so-called battlegroups': force packages at high readiness as a response to a crisis either as a stand-alone force or as part of a larger operation enabling follow-on phases'. [FN139] On decision-making, the ambition of the EU is to be able to take the decision to launch an operation within five days of the approval of the so-called Crisis Management Concept by the Council. On the deployment of forces, the ambition is that the forces start implementing their mission on the ground, no later than 10 days after the EU decision to launch the operation. In December 2008, the Council adopted a Declaration on Strengthening Capabilities' in which a number of additional measures were agreed on to ensure that the Union will have sufficient military and civilian capabilities to enhance its contribution to international peace and security. [FN140] In practice all these efforts seem to come close to what could be called an army, irrespective of the fact that--for political reasons--the documents stressed that the concept would not amount to the creation of a European army. Interestingly enough this phrase does not return in the Lisbon Treaty. D. Effective Crisis Management without the Lisbon Treaty
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In the event of a further delay in the entry into force of the Lisbon Treaty, the EU will certainly not halt all developments in ESDP. Apart from the above-mentioned Headline Goal 2010, on 19 November 2007 the Council adopted a Civilian Headline Goal 2010, which aims at improving the EU's civilian capability to respond effectively to crisis management tasks. This, the CHG 2010 should help to ensure that the EU can conduct crisis management, in line with the European Security Strategy, by deploying civilian crisis management capabilities of high quality, with the support functions and equipment required in a short time-span and in sufficient quantity. To that end it has been decided that by the year 2010: Sufficient numbers of well-qualified personnel are available across the civilian ESDP priority areas and for mission support, to enable the EU to establish a coherent civilian presence on the ground where crisis situations require it to do so. ESDP capabilities such as planning and conduct capabilities, equipment, procedures, training and concepts are developed and strengthened according to need. One of the results will be that missions have adequate equipment and logistics and other enabling capabilities, including for effective procurement procedures. The EU is able to use all its available means, including civilian and military ESDP, European Community instruments and synergies with the third pillar, to respond coherently to the whole spectrum of crisis management tasks. The development of civilian capabilities is given increased political visibility at EU as well as at Member States' level. The EU strengthens its coordination and cooperation with external actors as appropriate. The CHG 2010 includes a procedural planning to gradually increase the capabilities of the Union and to make sure that lessens from earlier missions are taken into account. 5. Conclusion: An Effective Role for the EU in International Crisis Management? When we assume that the phrase improving the coherence of its action in the preamble of the Lisbon Treaty refers primarily to the Union's role in international affairs, it is indeed this aspect that needs to be assessed. The case studies of some key ESDP missions revealed that the classic distinctions between internalexternal and soft-hard security policies are blurring. Yet, the institutional structures do not (and will not) reflect this fact. The pillar structure introduced an inherent risk of inconsistency by dividing the Union's external relations over two different legal treaty regimes. In that respect the fact that the Common Foreign, Security and Defence Policy (the current Second Pillar) will continue to be in another treaty than all other Union policies should be seen as a missed opportunity. Both with regard to the decision-making procedures and the available instruments it will remain difficult to combine CFSP with other Union policies; which means that part of the Union's energy in international relations, including crisis management, will continue to be devoted to internal delimitation questions. [FN141] After all, as a result of the complete communitarization of the Third Pillar (Police and Judicial Cooperation in Criminal Matters), there will be a more uniform decision-making regime in the other parts of the Union: more impetus will be given to QMV and the application of the co-decision procedure with the EP. Apart from an adaptation of the so-called constructive abstention provision the unanimity principle for decision-making with regard to CFSP/ESDP has been maintained. This means that consensus building among 27 (or more) Member States should become easier in the field of internal security policies but remain elusive in the field of external security policies. On the other hand, the above analysis reveals that a number of things will change in the CFSDP and that the Lisbon Treaty can certainly be seen as yet another step in the ongoing integration process in this policy field. The upgraded role of the HR is certainly the most innovating aspect. Apart from his extensive role as the key representative of the Union in (all) international affairs, his function has the potential of bridging the currently existing divide between Community and CFSP external relations. The same holds true for the fu-
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ture European External Actions Service, although at this stage it is far from clear what its competences will entail. These consolidating developments are, however, conflicted by the choice to continue to divide the Union's external representation over different institutional actors. It is therefore debatable whether the Lisbon Treaty--if and when it enters into force--will repair two of the main current shortcomings in the realm of EU security policies: leadership and decision-making. The introduction of a High Representative of the Union for Foreign Affairs and Security Policy, while initially controversial, may improve leadership, especially when duly assisted by the European Commission, of which s/he will be one of the Vice-Presidents, and the European External Action Service. Then again, much will depend on the HR's rapport with the newly created President of the European Council, who will also be responsible for the external representation of the EU on issues concerning the CFSP. The delineation of responsibilities of both personalities is far from clear, at least on the basis of the text of the Lisbon Treaty. In addition, there are two other authorities responsible for representing the Union to the outside world: the rotating Presidency of the Council in configurations other than that of foreign affairs (Articles 16(9) new TEU and 236 TFEU) and the President of the Commission. Future practice will have to show how the new arrangements will work out. This being said, one may sincerely wonder whether the new arrangements will really contribute to enhancing the Union's visibility and to demonstrating greater unity to the outside world. As Kaddous pointed out: the task of external representation is shared by the High Representative, the President of the European Council and the Commission. Three entities? This comes out to at least three different phone numbers'. [FN142] As we have seen effective crisis management calls for effective leadership and the new provisions do not entail improvements as to consolidate the different views and opinions of the 27 EU Member States. The EU's potential in crisis management depends not only on the general institutional set-up, but also and more particularly on the provisions establishing a Common Security and Defence Policy. The special section in the new TEU devoted to this policy confirms its grown-up status. The Lisbon Treaty not only extends the possibility of the Union in this area (eg by extending the so-called Petersberg tasks), but also introduces something of a collective defence obligation, albeit perhaps in statu nascendi. Together with the European Defence Agency (which is already operational) and the possibility of Permanent Structured Cooperation, the new CSDP may allow the Union to further develop its presence as a military actor. The introduction of Permanent Structured Cooperation in the Lisbon Treaty (on the model of the Battlegroup concept) may allow for a more flexible and--the hope is--a more effective development of CFSP/ESDP in the future. The same applies to the so-called Group of the willing clause, on the basis of which the Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The modifications may prevent urgent EU action from being blocked by a small minority of Member States. But, taking into account the serious problems many of the crisis management missions were facing (related to weak mandates, unwillingness on the side of Member States to work on capabilities as well as differences of opinion on how to respond), it is questionable whether the institutional innovations will suffice to improve things considerably. Indeed, the legal competences and possibilities available so far can hardly be blamed for the modest role of the EU in international affairs. And--as the history of CFSP shows-not so much the political will of Member States, but rather the Union's own institutional dynamics will trigger the coming of age of the Union's international capacities. The rather autonomous processes based on the adopted Headline Goals' serve as clear examples. In that sense we have to agree with the observation that the Lisbon Treaty is also very much an enabling document in the sense that it provides for reforms, but with the details for their operationalization to be determined after the treaty is ratified. [FN143]
[FNa1]. S Blockmans is Senior Research Fellow in EU Law at the TMC Asser Institute, The Hague; RA Wessel is Professor of the Law of the European Union and other International Organizations, Centre for
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European Studies, University of Twente, The Netherlands. Both authors are board members of the new Centre for the Law of EU External Relations (CLEER) in The Hague (<www.cleer.eu>). [FN1]. Address by the EU High Representative for the Common Foreign and Security Policy, Javier Solana, to the European Parliament, Brussels, 18 February 2009, doc S045/09. [FN2]. See, eg M Leonard, Why Europe Will Run the 21st Century (Fourth Estate, London/New York 2005) 4. [FN3]. N Chaban, O Elgstrm and M Holland, The European Union as Others See It (2006) 11 EFA Rev, 245-262. For more recent figures and clues, see the ongoing survey coordinated by S Lucarelli, Research Report: the External Image of the European Union, GARNET Working Paper No 17 (GARNET, Dublin 2007). A first set of data drawn from the survey as published by L Fioramonti and S Lucarelli, How Do the Others See Us? European Political Identity and the External Image of the EU in F Cerutti and S Lucarelli (eds) The Search for a European Identity: Values, Policies and Legitimacy of the European Union (Routledge, London/New York 2008) 193-210. [FN4]. Measuring the success, failure and effectiveness of policy making and concrete actions targeted at creating stability and security on the European continent and farther afield is fraught with difficulties. It is near to impossible to determine to what extent single efforts and approaches have led to positive or negative results at a more general level. Nevertheless, a number of activities and approaches may be ascribed a positive (or negative) influence on developments that have the potential to undermine the stability and security of a situation. It is on the basis of such general perceptions that general conclusions can be drawn. [FN5]. Throughout this article, references to provisions of the Lisbon Treaty have been based on the consolidated versions of the TEU and the TFEU, as published in OJ 2008 C 115/1. [FN6]. On 12 June 2008 the Lisbon Treaty was rejected in an Irish referendum. A new referendum is foreseen in the Autumn of 2009 and it remains difficult to speculate on the outcome. At the moment of writing (early July 2009), also the Czech Republic, Germany and Poland have not yet submitted their instruments of ratification. See for the possible future scenarios regarding the CFSP/ESDP provisions in the Lisbon Treaty: R Whitman and A Juncos, The Lisbon Treaty and the Foreign, Security and Defence Policy: Reforms, Implementation and the Consequences of (non-)Ratification (2009) 14 EFA Rev 25-49. [FN7]. The European Atomic Energy Community (Euratom) will not be part of the new structure and will continue to be a separate international organization. See also Protocol 2 annexed to the Treaties. [FN8]. See on this discussion the many references in RA Wessel, The International Legal Status of the European Union (1997) 2 EFA Rev 109; as well as Revisiting the International Legal Status of the EU (2000) 5 EFA Rev 507. [FN9]. On the basis of Art 5 TEU, the principles of proportionality and subsidiarity also apply to all Union policy areas, although the Protocol on the Application of the Principles of Subsidiarity and Proportionality seems to focus on legislative acts' only and these acts cannot be used for CFSP matters. [FN10]. C Kaddous, Role and Position of the High Representative of the Union for Foreign Affairs and Security Policy under the Lisbon Treaty in S Griller and J Ziller (eds) The Lisbon Treaty: Constitutionalism without a Constitutional Treaty? (Springer, Vienna 2008) 205-221, 206. [FN11]. S Kurpas, The Treaty of Lisbon--How Much Constitution is Left?-- An Overview of the Main Challenges' (December 2007) 147 CEPS Policy Brief 2.
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[FN12]. In the words of Solana, the separation was important conceptually to the United Kingdom. See House of Commons, Foreign Affairs Committee, Foreign Policy Aspects of the Lisbon Treaty Third Report of Session 2007-2008 (London, January 2008). [FN13]. The conceptual clarifications mentioned in this section have been distilled from a wide variety of policy papers, legal documents, handbooks and academic texts. See, eg An Agenda for Peace, UN doc A/ 47/277-S/24111, 17 June 1992, paras 20-59; Supplement to An Agenda for Peace, UN doc A/ 50/60-S/1995/1, 3 January 1995, paras 23-80; Report of the Panel on United Nations Peace Operations, UN doc A/55/305-S/2000/809, 21 August 2000; NATO Handbook (NATO Office of Information and Press, Brussels 2001); European Council, A Secure Europe in a Better World - European Security Strategy, Brussels, 12 December 2003; the High Representative's Report on the Implementation of the European Security Strategy--Providing Security in a Changing World, doc 17104/08 (S407/08), 11 December 2008; OSCE Handbook (OSCE Secretariat, Vienna 2007); A Schmid, Thesaurus and Glossary of Early Warning and Conflict Prevention Terms (Erasmus University, Rotterdam 1998); and P van Tongeren, H van de Veen and J Verhoeven, Searching for Peace in Europe and Eurasia: An Overview of Conflict Prevention and Peacebuilding Activities (Lynne Rienner, Boulder 2002). [FN14]. The term stabilization is used here as a conceptual umbrella to cover all efforts geared towards removing the determinants of conflicts and crises. [FN15]. One should note that election-monitoring missions do not feature among this categorization of ESDP operations, because they are financed out of the Commission's budget. [FN16]. This point is derived from a Council official during the Jean Monnet Workshop on EU External Relations, jointly organized by Maastricht University and the TMC Asser Institute on 5 and 6 June 2008 at Kasteel Vaeshartelt, near Maastricht, as a precursor to the establishment of the Centre for the Law of EU External Relations (CLEER). [FN17]. See Sections 4 and 5. [FN18]. Article J.4(2) TEU. See also the document on the Relations between the Union and the WEU, adopted by the Council of the EU on 26 October 1993 and accepted by the WEU Council of Ministers on 22 November 1993, published in Bull EU 10-1993 and as document 1412 of the Assembly of the WEU, 8 April 1994. [FN19]. The WEU Declaration of 19 June 1992 is reproduced in C Hill and K Smith (eds) European Foreign Policy: Key Documents (Routledge, London 2000) 205-211. [FN20]. See W van Eekelen and S Blockmans, European Crisis Management avant la lettre in S Blockmans (ed) The European Union and Crisis Management: Policy and Legal Aspects (TMC Asser Press, The Hague 2008) 37-52 at 45. [FN21]. van Eekelen and Blockmans (n 20), 46-48. See also J Monar, Mostar: Three Lessons for the European Union (1997) 2 EFA Rev 1-5. [FN22]. See S Blockmans, A New Crisis Manager at the Horizon--The Case of the European Union (2000) 13 LJIL 255-263. As a result of a meeting between French President Jacques Chirac and British Prime Minister Tony Blair at Saint-Malo, a joint Franco-British declaration on European defence was issued on 4 December 1998, stating that [t]he Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them and a readiness to do so, in order to respond to international crises'. The joint declaration is reproduced in Hill and Smith (eds) (n 19) 243-244.
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[FN23]. See Bull EU 12-1999. The WEU Council facilitated this ambition by the EU by deciding to prepare the WEU legacy and the inclusion of those functions of the WEU, which will be deemed necessary by the EU to fulfil its new responsibilities in the area of crisis-management tasks. See WEU Ministerial Council, Luxembourg Declaration, 23 November 1999, para 4. For more details on the changing relationship between the two international organizations, see RA Wessel, The EU as a Black Widow: Devouring the WEU to Give Birth to a European Security and Defence Policy in V Kronenberger (ed) The European Union and the International Legal Order: Discord or Harmony? (TMC Asser Press, The Hague 2001) 405-434. [FN24]. See C Hill, The Capability-Expectations Gap, or Conceptualising Europe's International Role'(1993) 31 JCMS 305-328; and C Hill, Closing the Capabilities-Expectations Gap? in J Peterson and H Sjursen (eds) A Common Foreign Policy for Europe: Competing Visions of the CFSP (Routledge, London 1998) 18-38. [FN25]. See, eg, S Duke, Peculiarities in the Institutionalisation of CFSP and ESDP in Blockmans (ed) (n 20) 75-105. [FN26]. See J Wouters and T Ruys, UN-EU Cooperation in Crisis Management: Partnership or Rhetoric? in Blockmans (ed) (n 20) 215-232; M Reichard, The EU-NATO Berlin Plus Agreement: The Silent Eye in the Storm in Blockmans (ed) (n 20) 233-253; V De Graaf and A Verstichel, OSCE Crisis Management and OSCE-EU Relations', in Blockmans (ed) (n 20) 255-276; D Thym, Interregional cooperation in Crisis Management: EU Support for the AU, ASEAN and Other Regional Organisations in Blockmans (ed) (n 20) 277-290; and A Sari, The Conclusion of International Agreements by the European Union in the Context of the ESDP (2008) 57 ICLQ 53-86. [FN27]. See, eg G Lindstrom, Enter the EU Battlegroups, Chaillot Paper No 97 (EUISS, Paris 2007), in particular at 9-12; and J Schuyer, The Civilian Headline Goal 2008: Developing Civilian Crisis Management Capabilities for the EU in Blockmans (ed) (n 20) 135-142. [FN28]. See C Glire, EU Security and Defence: Core Documents 2007 (Vol VIII), Chaillot Paper No 112 (EUISS, Paris 2008). [FN29]. See, eg S Biscop, The European Security Strategy--A Global Agenda for Positive Power (Ashgate Publishing, Aldershot 2005). [FN30]. See more extensively, RA Wessel, The State of Affairs in European Security and Defence Policy: The Breakthrough in the Treaty of Nice (2003) 8 JCSL 265-288. [FN31]. See S Blockmans, Tough Love: The European Union's Relations with the Western Balkans (TMC Asser Press, The Hague 2007) 189-207. [FN32]. For months, Turkey delayed an agreement within the Atlantic Alliance on EU access to NATO assets and capabilities under the so-called Berlin Plus' arrangements so as to enable the EU to take over from NATO while using the latter's hardware. See W van Eekelen, From Words to Deeds: The Continuing Debate on European Security (CEPS/DCAF Brussels 2006) 67-68. [FN33]. See M Eyskens, Bron en horizon. Het avondland uit de impasse (Lannoo, Leuven 1985) 316. [FN34]. See Council Decision 2002/968/CFSP of 10 December 2002 concerning the implementation of Joint Action 2002/210/CFSP on the European Union Police Mission, OJ 2002 L 335/1. [FN35]. See Council Decision 2003/202/CFSP of 18 March 2003 relating to the launch of the EU military operation in the Former Yugoslav Republic of Macedonia, OJ 2003 L 76/43.
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[FN36]. For an up-to-date list, see the website of the Council of the EU, ESDP operations, at <http://www.consilium.europa.eu/cms3_fo/showPage.asp? id=268&lang=en&mode=g>. For the invisible crisis management operation in Georgia, ie the reinforced EUSR Support Team, comprising a Rule of Law follow-up to EUJUST THEMIS and a Border Support Team, entirely ensured through EC programmes, see F Hoffmeister, Inter-Pillar Coherence in the EU's Civilian Crisis Management in Blockmans (ed) (n 20) 157-180, at 166 fn 54. [FN37]. See, eg A Abass, EU CrisisManagement in Africa: Progress, Problems and Prospects' in Blockmans (ed) (n 20) 327-343. [FN38]. See, eg M Emerson and E Gross (eds) Evaluating the EU's Crisis Missions in the Balkans (CEPS, Brussels 2007). [FN39]. See Hoffmeister (n 36) 163-167 and 170-175. [FN40]. Hoffmeister (n 36). [FN41]. See S Baroowa, EU Crisis Management in Asia in Blockmans (ed) (n 20) 345-354. [FN42]. These issues are well documented. See, eg F Naert, ESDP in Practice: Increasingly Varied and Ambitious EU Security and Defence Operations' in M Trybus and N White (eds) European Security Law (OUP, Oxford 2007) 61-101; Emerson and Gross (eds) (n 38); and T Hadden (ed) A Responsibility to Assist: Human Rights Policy and Practice in European Union Crisis Management Operations (Hart Publishing, Oxford/Portland 2009). [FN43]. For academic analysis and references to relevant case-law of the ECJ, see P Koutrakos, Security and Defence Policy within the Context of EU External Relations: Issues of Coherence, Consistency and Effectiveness' in Trybus and White (eds) (n 42) 249-269; Hoffmeister, (n 36); S Vanhoonacker, The European Security and Defence Policy and Coherence Challenges in the Council in Blockmans (ed) (n 20) 145-156; K Raube, European Parliamentary Oversight of Crisis Management in Blockmans (ed) (n 20) 181-198; and V Kronenberger, Coherence and Consistency of the EU's Action in International Crisis Management: The Role of the European Court of Justice in Blockmans (ed) (n 20) 199-211. [FN44]. In its Declaration on Strengthening Capabilities of 11 December 2008, the Council mentioned the following ambitions: two major stabilisation and reconstruction operations, with a suitable civilian component, supported by up to 10,000 troops for at least two years; two rapid-response operations of limited duration using inter alia EU battle groups; an emergency operation for the evacuation of European nationals (in less than 10 days), bearing in mind the primary role of each Member State as regards its nationals and making use of the consular lead State concept; a maritime or air surveillance/interdiction mission; a civilian-military humanitarian assistance operation lasting up to 90 days; around a dozen ESDP civilian missions (inter alia police, rule-of-law, civilian administration, civil protection, security sector reform, and observation missions) of varying formats, including in rapid-response situations, together with a major mission (possibly up to 3,000 experts) which could last several years'. The Declaration is available on the website of the Council of the EU, among the reference documents about civilian crisis management, at <http://ue.eu.int/showPage.aspx?id=1378&lang=En>. [FN45]. See F Naert, Accountability for Violations of Human Rights Law by EU Forces' in Blockmans (ed) (n 20) 375-393; M Zwanenburg, Toward a More Mature ESDP: Responsibility for Violations of International Humanitarian Law by EU Crisis Management Operations', in Blockmans (ed) (n 20) 395-415; and Hadden (ed) (n 42).
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[FN46]. These ESDP missions will be taken as test cases. It is beyond the confines of this paper to explore other new or ongoing operations (eg Atalanta and Althea, respectively). [FN47]. In other cases, the Union failed to intervene at all (eg over the 23-day assault of Israel on Gaza at the beginning of 2009) or did not get any further than sending a toothless EU Monitoring Mission (eg in Georgia after its five-day war with Russia in August 2008--even if the EU, ie France as holder of the EU Presidency at the time, brokered an early ceasefire agreement and showed unity over the condemnation of Russia for its deep incursion into Georgia proper and some Member States, eg the Baltic states, pushed heavily for an EU peacekeeping mission). [FN48]. On the final status talks for Kosovo, the legal fallout of the decision of the USA, the majority of EU Member States (minus Cyprus, Greece, Slovakia, Spain and Romania), neighbouring states and other countries to recognize Kosovo as a sovereign state after it declared its independence from Serbia on 17 February 2008, see CJ Borgen, Kosovo's Declaration of Independence: Self-determination, Secession and Recognition (2008) 12 ASIL Insight, at <http://www.asil.org/insights/2008/02/insights080229.html>; M Weller, Negotiating the Final Status of Kosovo, Chaillot Paper No 114 (EUISS, Paris 2008); and J Ker-Lindsay, Kosovo: The Path to Contested Statehood in the Balkans (IB Tauris, London/New York 2009). [FN49]. See UNSC Res 1244 (1999) paras 7 and 9 (military presence) and 10 (civilian presence), respectively. [FN50]. In fact, the UNSG reported that he was simply informed of the European Commission's unwillingness to continue to finance UNMIK's Pillar IV. See UN doc S/2008/354, point 9. [FN51]. See S/PRST/2008/44, 26 November 2008. [FN52]. Editorial comments, And in the Meantime ... Kosovo ... (2009) 46 CML Rev 377-382 at 381. See also E Milano, Il Trasferimento di Funzioni da UNMIK a EULEX in Kosovo (2008) 91 Rivista di Diritto Internazionale 967-990. [FN53]. Council Joint Action 2008/124/CFSP of 4 February 2008 on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, OJ 2008 L 42/92. [FN54]. Council Joint Action 2008/123/CFSP of 4 February 2008 appointing a European Union Special Representative in Kosovo, OJ 2008 L 42/88. Feith is also the head of the International Civilian Office (ICO) in Kosovo. His mandate was extended by Council Joint Action 2009/317/CFSP of 16 February 2009, OJ 2009 L 46/69. [FN55]. As reported in R Goldirova, EU Kosovo Mission to Start Saturday Morning EU Observer 14 February 2008. [FN56]. As reported in Spain Holds Staff from EU Kosovo Mission BalkanInsight 31 March 2008. [FN57]. As reported by V Burnett, Spain's Retreat from Kosovo Raises Eyebrows' International Herald Tribune 24 March 2009. [FN58]. At the international level, Serbia--with strong support from Russia--is actively engaged in blocking Kosovo's accession to the UN and other global or regional organizations. [FN59]. See Summary of intervention of Javier Solana before the meeting of international organizations active on the ground in Kosovo, Council Press Release S 257/08, Brussels, 18 July 2008.
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[FN60]. See Yves de Kermabon's speech at inauguration of new EULEX Headquarters, Pristina, 6 April 2009, at <http://www.eulex-kosovo.eu/? id=8&n=84>: With about 3,000 staff, EULEX is bigger than the other 9 civilian operations put together that the EU is currently running throughout the world. This is a major investment on the part of the EU. It was made because the EU is committed to regional stability and to the region's future in the European Union. [FN61]. de Kermabon (n 60). [FN62]. See Report of the Secretary-General on the UN Interim Administration Mission in Kosovo, UN doc S/2009/149, 17 March 2009, paras 6-8. [FN63]. As reported by E Vucheva, Kosovo Not Yet Fully Independent, EU Envoy Says' EU Observer 11 February 2009. [FN64]. See M Ahtisaari, W Ischinger and A Rohan, The EU Is Coming Up Short in Kosovo Daily Star 18 February 2009; and in a more general sense Blockmans (n 20) 312-313: a so-called Helsinki moment should be created for the Western Balkans. This is a reference to the historic decision of the European Council gathered at Helsinki in December 1999 to grant candidate country status to Turkey. In a similar historic spirit, the European Council should use one of its forthcoming summits to review the achievements of the Western Balkans in satisfying the pre-accession criteria and grant candidate country status to Albania, Bosnia-Herzegovina, Montenegro, Serbia and Kosovo once all these countries have applied for membership. [FN65]. Council Joint Action 2007/369/CFSP of 30 May 2007 on establishment of the European Union Police Mission in Afghanistan (EUPOL AFGHANISTAN), OJ 2007 L 139/33 (as amended). On 23 March 2007, the UN Security Council adopted Resolution 1746 (2007) on the extension of UN Assistance Mission in Afghanistan's (UNAMA) mandate, which, inter alia, welcomes the decision by the EU to establish a police mission in the field of policing with linkages to the wider rule of law and counter-narcotics, to assist and enhance current efforts in the area of police reform at central and provincial levels. In a letter dated 16 May 2007 the government of Afghanistan invited the EU to launch an EU police mission in Afghanistan. [FN66]. As reported by J Dempsey, Germany Criticized for Its Training of Afghan Police International Herald Tribune 15 November 2006. [FN67]. See, eg M Williams, The Militia Mistake, Guardian 29 December 2008; J Blitz, NATO Summit Faces Afghan Test Financial Times 2 April 2009; T Shanker and S Erlanger, NATO Meeting to Highlight Strains on Afghanistan New York Times 3 April 2009; and D Korski, NATO: Keeping in Shape at 60 (2009) NATO Rev. [FN68]. See, eg S Islam and E Gross, Afghanistan: Europe's Credibility Test EPC Policy Brief March 2009; and E Gross, Security Sector Reform in Afghanistan: The EU's Contribution, Occasional Papers No 78 (EUISS, Paris 2009). [FN69]. In March 2009, the UK, the second-largest contributor to NATO forces with some 8300 soldiers, said it could not do more and was demanding fairer burden-sharing of responsibilities, particularly in more difficult areas such as the volatile southern province of Helmand. Germany had 3640 soldiers in the relatively calm North. France sent an additional 1200 troops in 2008, bringing its total to about 2800. Italy had 2350 soldiers, Poland about 1600, the Netherlands around 1800. National caveats' on when, where and how these troops could be deployed remained in place, despite complaints that these significantly limit ISAF's operational capability. For an audit of EU Member States' contributions to Afghanistan's reconstruction, see D Korski, Shaping Europe's Afghan Surge (April 2009) ECFR Policy Brief 16-19.
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[FN70]. As reported by S Erlanger and H Cooper, Europeans Offer Few New Troops for Afghanistan New York Times 5 April 2009. Twenty-five EU Member States are deploying troops to ISAF. Germany said it would send an additional 600 troops; Spain offered 600; the UK 900; Italy agreed to add 300 more soldiers; Poland wanted to send an extra 400. A further 1400-2000 soldiers would be sent to form embedded training teams' for the Afghan army and the police. [FN71]. See P Baker and T Shanker, Obama Sets New Afghan Strategy New York Times 27 March 2009. [FN72]. Council of the EU, Press Release 6729/09 (Presse 48) 23 February 2009, 7. [FN73]. The combined European Commission and Member State aid to the country for 2002-2006 totalled EUR 3.7 billion. An extra EUR 700 million was earmarked for 2007-2010 in three key priority areas (justice sector reform; rural development, including alternatives to poppy production; and health) and this amount was again topped up with an additional EUR 60 million (20 million for election monitoring in August 2009, 15 million for police training and 24 million for rural development) at the International Conference on Afghanistan in The Hague on 31 March. See European Commission, Press Release IP/09/500 30 March 2009. [FN74]. See Islam and Gross (n 68) 3. [FN75]. Council Joint Action 2007/369/CFSP (as amended), Articles 3 and 4. [FN76]. Factsheet on the EU Police Mission in Afghanistan (EUPOL AFGHANISTAN), March 2009. [FN77]. See EUPOL AFGHANISTAN Press Release 3/2008, EUPOL completes deployment in the South, 2 July 2008. [FN78]. As reported by J Dempsey, Europe Lagging in Effort to Train Afghan Police International Herald Tribune 28 May 2008. [FN79]. Council of Ministers, 26-27 May 2008, Press Release 9868/08 (Presse 141) 29. [FN80]. Council of Ministers, 16 March 2009, Press Release 7565/09 (Presse 63) 12. [FN81]. No fewer than 14 calls by the EU Council Secretariat for contributions to EUPOL have fallen on deaf ears. See Korski (n 69) 9. Islam and Gross note one key problem in this regard, namely, that European police experts are more attracted by EULEX KOSOVO than the high-risk operation in Afghanistan, prompting EU Ministers of Foreign Affairs to discuss the possibility of tripling the salaries for those prepared to go to Afghanistan. See Islam and Gross (n 68) 3. [FN82]. Especially those that have underperformed on military and civilian deployment: Austria, Estonia, Greece, Ireland, Latvia, Lithuania, Malta, Portugal, Romania and Slovenia. Austria, Belgium and Portugal do not even have an accredited resident ambassador in Kabul, a situation that undercuts their governments' proclamations of support for non-military purposes. See Korski (n 69) 3, 5. [FN83]. Korski (n 69) 9. [FN84]. Council Joint Action 2008/612/CFSP of 24 July 2008, OJ 2008 L 197/60; and Council Joint Action 2009/135/CFSP of 16 February 2009, OJ 2009 L 46/61. [FN85]. See Islam and Gross (n 68) 4; and C Donnelly, Europe: Scrambling to Get it Right on Afghanistan Inter Press Service 4 April 2009. [FN86]. Council Joint Action 2007/677/CFSP of 15 October 2007 on the European Union military operation
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in the Republic of Chad and in the Central African Republic, OJ 2007 L 279/21. [FN87]. On 5 November 2008, Javier Solana signed an agreement with the Russian Ambassador to the EU on the participation of the Russian Federation in the operation EUFOR TCHAD/RCA. See Council of the EU, Press Release No S357/08. [FN88]. As reported in Chad Rebels Warn EU Peace Force EU Observer 29 November 2007; and Charlemagne, Colonial Baggage The Economist 7 February 2008: A French national force, flying the tricolor, could not credibly pull off a mission sold as a humanitarian intervention, divorced from old-fashioned national interests. [ ... ] The Chad mission has proved a hard sell not because it is too ambitiously European, but because so many EU members suspect it of being a wheeze for advancing French interests. [ ... ] When columns of rebels attacked Chad's capital, the fear in Brussels was not that French troops might be overwhelmed, but that France would intervene so decisively on behalf of the sitting President, Idriss Dby, as to wreck EUFOR's claims to neutrality. [ ... ] Well over half of EUFOR's soldiers will be French, albeit sporting EU shoulder patches and taking orders from an Irish general, Pat Nash. The general told an Irish newspaper that his first challenge would be to disengage the [ ... ] mission from the French national presence in Chad. There would be much flying of European flags, he promised. [FN89]. Council Decision 2008/101/CFSP of 28 January 2008 on the launching of the European Union military operation in the Republic of Chad and in the Central African Republic (Operation EUFOR Tchad/ RCA), OJ 2008 L 34/39. [FN90]. EU Presidency Statement on the Republic of Chad, Brussels, 3 February 2008. [FN91]. See EUFOR TCHAD/RCA, Press Release, 10 March 2008. [FN92]. See A Mattelaer, The Strategic Planning of EU Military Operations-- The Case of EUFOR TCHAD/RCA IES Working Paper 5/2008. [FN93]. See European Commission, Commission to Boost Support for Refugees and Displaced People in Chad and the Central African Republic, Press Release IP/07/1425, 1 October 2007. [FN94]. It is thanks to the mediation of Qatar and Libya, the latter in its role as Chairman of the AU, that an initial accord was signed between Sudan and Chad with a view to a normalization of relations between the two countries. As reported on the website of the Qatari Ministry of Foreign Affairs, Sudan and Chad sign the Doha Accord, 3 May 2009, <http:// english.mofa.gov.qa/newsPage.cfm?newsid=6265>. [FN95]. As reported in the Press Release of the Czech EU Presidency, Informal meeting of EU defence ministers launched in Prague, 12 March 2009 at <http://www.eu2009.cz/en/news-and-documents/press-releases/informal-meeting-ofeudefence-ministers-lau nched-in-prague-12080/>. See also Javier Solana, EU High Representative for the CFSP, prepares the transition from EUFOR TCHAD/RCA to MINURCAT with the UN Special Representative Victor da Silva Angelo, Council Press Release No S039/09, 16 February 2009: With EUFOR, the European Union decisively contributed to increased security for the civilian populations and humanitarian workers in the region. [FN96]. For a critical review of EUFOR's mission, see the reading of MEP Geoffrey van Orden (member of the EP's defence subcommittee): There is an appalling humanitarian and security situation in Chad. The EU has not managed the right response. [ ... ] The Chad mission would have been more successful and would have had continuity had the UN taken a role from the beginning, instead of acceding to the EU's politically driven request for military involvement. In the same vain, Elise Ford, head of Oxfam International's Brussels office, said that [c]ivilians in eastern Chad need as much protection as they did when the EU force was
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first deployed a year ago. The underlying security situation has not significantly improved even if part of the population feels safer. [ ... ] Crimes still go unpunished and banditry is a reality that thousands civilians face every day. Sexual violence is increasing and armed groups are free to recruit child soldiers, while inter-ethnic clashes have caused further deaths, left many injured and displaced. As reported by V Pop, EU Mission in Chad Ends Amid Tensions' EU Observer 12 March 2009. [FN97]. On 4 March 2009, Pre-Trial Chamber I of the International Criminal Court issued the ICC's firstever arrest warrant for a sitting Head of State for war crimes and crimes against humanity. The ICC suspected al-Bashir of being criminally responsible, as an indirect (co-)perpetrator, for intentionally directing attacks against an important part of the civilian population of Darfur, murdering, exterminating, raping, torturing and forcibly transferring large numbers of civilians, and pillaging their property. See ICC Press Release No ICC-CPI-20090304-PR394, 4 March 2009. [FN98]. See ICG, Chad: Powder Keg in the East Africa Report No 149, 15 April 2009. Oxfam called on the EU to work with the AU to appoint a high-level envoy to re-establish direct talks between the government and the main rebel groups. See Pop, (n 96). [FN99]. For some out-of-the-box thinking on these issues, see A Bailes, The Conscription Debate That Europe Shies Away From (2009) 11 Europe's World 69-72. [FN100]. To a lesser extent, this also applies to providing security to refugees in Chad. [FN101]. For this Commission-driven initiative, see Press Release of 12 January 2009, ENERGY: Update on the deployment of EU monitor team in Ukraine at <http://www.delukr.ec.europa.eu/press_releases.html?y=2009&m=1>. [FN102]. ESS: A Secure Europe in a Better World--European Security Strategy, Brussels, 12 December 2003. In the light of all evolutions that have taken place since its adoption in 2003, in particular the experiences drawn from ESDP missions, the endorsement by the December 2008 European Council of the High Representative's Report on the Implementation of the European Security Strategy--Providing Security in a Changing World--should be welcomed with a view to complement the ESS and to improve its implementation. See European Council, Presidency Conclusions, doc 17271/08 (CONCL 5) 12 December 2008, point 30, with reference to the Report of the High Representative laid down in doc 17104/08 (S407/08) of 11 December 2008. The report was written in full association with the Commission and in close cooperation with the Member States and highlights; for instance, climate change and energy dependence as major security threats. [FN103]. See, eg S Duke and H Ojanen, Bridging Internal and External Security: Lessons from the European Security and Defence Policy (2006) 28 Journal of European Integration 477-494. [FN104]. EU BAM Fact Sheet, December 2007 at <http://www.eubam.org>. See Hoffmeister (n 36) 173. For a review of the mission, see X Kurowska and B Tallis, EU Border Assistance Mission: Beyond Border Monitoring? (2009) 14 EFA Rev 47-64. [FN105]. Council Joint Action 2005/889/CFSP of 12 December 2005, OJ 2005 L 327/28, Recital 13. Another reason for EUBAM Moldova/Ukraine to be legally based on the First Pillar is that the mission concentrates not only on security-related border and movement issues but also on customs and fiscal matters that are related to Community powers. [FN106]. Council Joint Action 2005/355/CFSP of 2 May 2005, OJ 2005 L 112/20.
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[FN107]. See G Grevi, Pioneering Foreign Policy: The EU Special Representatives' Chaillot Paper No 106 (EUISS, Paris 2007) 116-117. [FN108]. Council Joint Action 2007/405/CFSP of 12 June 2007 and Council Joint Action 2007/406/CFSP of 12 June 2007, OJ 2007 L 151/46 and /52, respectively. See Hoffmeister (n 36) 174. [FN109]. Article 3(2) TEU imposes this obligation on the Council and the Commission. Within the framework of the Second Pillar, it is upon the Council to ensure the unity, consistency and effectiveness of action by the Union (Article 13(3) TEU). [FN110]. See T Valek, New EU Members in Europe's Security Policy (2005) 18 Cambridge Review of International Affairs 217-228 at 217. [FN111]. The fault lines that opened up across Europe in 2003 over the war in Iraq were ominous signs for the development of a cohesive CFSP/ESDP and led to Rumsfeld's evocation of old and new Europe. See E Pond, The Dynamics of Alliance Diplomacy over Iraq EUI Working Papers, RSCA No 2004/26 (EUI Florence 2004). [FN112]. See, eg S Keukeleire, Directorates in the CFSP/CESDP of the European Union: A Plea for Restricted Crisis Management Group (2001) 6 EFA Rev 75-101; T Jger, Enhanced Cooperation in the Treaty of Nice and Flexibility in the Common Foreign and Security Policy (2002) 7 EFA Rev 297-316. [FN113]. See A Wivel, The Security Challenge of Small EU Member States: Interests, Identity and the Development of the EU as a Security Actor (2005) 43 JCMS 393-412. [FN114]. For an illustrative conceptualization and categorization of EU Member States' positions on Russiarelated topics, see M Leonard and N Popescu, A Power Audit of EU-Russia Relations' ECFR Policy Paper (ECFR, London 2007). [FN115]. See, eg the Preamble and Art 2 of the TEU; the 2003 ESS (n 5); and the 2004 Strategy Paper on the ENP: Communication from the Commission, European Neighbourhood Policy, Strategy Paper, COM (2004) 373 final. [FN116]. See, Chaban, Elgstrm and Holland (n 3); Lucarelli (n 3); and Fioramonti and Lucarelli (n 3). [FN117]. See Communication from the Commission, A Strong European Neighbourhood Policy, COM (2007) 774 final, Brussels, 5 December 2007 7. [FN118]. According to Art 16, para 6 new TEU, The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission. The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent. [FN119]. See also Art 16, para 4 new TEU: As from 1 November 2014, a qualified majority shall be defined as at least 55 per cent of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained. [FN120]. These exceptions return in Art 31, para 2 new TEU and are phrased as follows: - when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 22(1), - when adopting any decision
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implementing a decision defining a Union action or position, - when appointing a special representative in accordance with Article 33. [FN121]. See also The Lisbon Treaty and its Implications for CFSP/ESDP, Briefing Paper, European Parliament, DG for External Policies of the Union, Policy Department, February 2008, 3. Nevertheless, for some Member States, resort to the EU budget may remain attractive, even if this means delaying the EU's response. See Whitman and Juncos (n 6) at 39. [FN122]. See D Spence, The Commission and the Common Foreign and Security Policy in D Spence (ed) The European Commission (3rd edn, John Harper, London 2006). Spence quotes former Commissioner Chris Patten on this issue to provide the reason: Some of my staff [ ... ] would have preferred me to have a grab for foreign policy, trying to bring as much of it as possible into the orbit of the Commission. This always seemed to me to be wrong in principle and likely to be counterproductive in practice. Foreign policy should not in my view [ ... ] be treated on a par with the single market. It is inherently different (at 360). [FN123]. More extensively: C Kaddous (n 10) Cf also Whitman and Juncos (n 6) at 32; and J Paul, EU Foreign Policy after Lisbon: Will the New High Representative and the External Action Service Make a Difference? 2 Centre for Applied Policy Research (CAP) Policy Analysis. [FN124]. See also R Gosalbo Bono, Some Reflections on the CFSP Legal Order (2006) CML Rev 337-394, who even refers to progressive supranationalism in relation to the development of CFSP (at 349). More extensively and for further references: RA Wessel, The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation (2009) 1 European Constitutional Law Review 117-142. [FN125]. Cf S Duke and S Vanhoonacker, Administrative Governance in CFSP (2006) EFA Rev 163-182; and A Juncos and C Reynolds, The Political and Security Committee: Governing in the Shadow (2007) EFA Rev 127-147. [FN126]. See further on the complex division of external competences within the Union: C Hillion and RA Wessel, Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness' (2009) 46 CML Rev 551-586. [FN127]. This point is also stressed by the European Parliament in its Report on the impact of the Treaty of Lisbon on the development of the institutional balance of the EU (2008/2073(INI); the Dehaene Report), 17 March 2009, point 17. [FN128]. Cf also Art 30 new TEU, which refers to the High Representative with the Commission's support. [FN129]. More extensively and for further references: RA Wessel, The Inside Looking Out: Consistency and Delimitation in EU External Relations' (2000) 37 CMLRev 1135; as well as RA Wessel, Fragmentation in the Governance of EU External Relations: Legal Institutional Dilemmas and the New Constitution for Europe in JW de Zwaan et al, (eds) The European Union - An Ongoing Process of Integration, Liber Amicorum Fred Kellermann (TMC Asser Press, The Hague 2004) 123. [FN130]. See for instance Cases T-306/01, Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission; T-315/01, Yassin Abdullah Kadi v Council and Commission, 21 September 2005; T-47/03 Sison and T-327-03 Al-Aqsa, 11 July 2007; T-228/02, Organisation des Modjahedines du people d'Iran v Council, 12 December 2006 [update].
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[FN131]. The Court has in the past only been asked to test the compatibility of Third Pillar measures with Article 47 TEU: Case C-170/96 Commission v Council (Airport transit visa) [1998] ECR I-2763, paras 15-16; Case C-176/03 Commission v Council (Environmental penalties) [2005] ECR I-7879; Case C-440/05 Commission v Council (Ship Source Pollution) [2007] ECR I-1657; further, see: C Hillion and RA Wessel, Restraining External Competences of EU Member States under CFSP in M Cremona and B De Witte (eds) EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing, Oxford 2008) 79-121. [FN132]. See also F Hoffmeister, Entwicklungszusammenarbeit und andere Politikbereiche (2008) Europarecht Beiheft 2, 55-101. [FN133]. More extensively: C Hillion and RA Wessel, Competence Distribution in EU External Relations after ECOWAS: Clarification or Continued Fuzziness? (2009) CML Rev 551-586; as well as B Van Vooren, EC-EU External Competences after the Small Arms Judgment (2009) 1 EFA Rev 7-24; and his The Small Arms Judgment in an Age of Constitutional Turmoil (2009) 2 EFA Rev 231-248. [FN134]. Cf RA Wessel, The Dynamics of the European Union Legal Order: An Increasingly Coherent Framework of Action and Interpretation (2009) 1 European Constitutional Law Review 117-142. [FN135]. Art 5 of the North Atlantic Treaty reads: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. [ ... ] Art V of the modified Brussels Treaty (WEU) reads: If any of the High Contracting Parties should be the object of an armed attack in Europe, the other High Contracting Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power. [FN136]. The idea that the decision on a mutual defence commitment was deliberately taken is confirmed by the fact that this point was already subject to debate during the Convention on the Future of Europe, which prepared the 2004 Constitutional Treaty, It was acknowledged that the current formula in the TEU matches the guarantee of the Brussels Treaty and goes beyond it with a reference to NATO. See The Lisbon Treaty and Its Implications for CFSP/ESDP (n 121). [FN137]. Brussels European Council 25-26 March 2004, Presidency Conclusions. [FN138]. S Biscop, Permanent Structured Cooperation and the Future of the ESDP: Transformation and Integration (2008) European Foreign Affairs Review 431-448. [FN139]. Headline Goal 210, approved by the General Affairs and External Relations Council on 17 May 2004; endorsed by the European Council of 17 and 18 June 2004. [FN140]. Declaration on Strengthening Capabilities, Brussels, 11 December 2008. [FN141]. A slightly more positive conclusion on the contribution of the Lisbon Treaty to external consistency is drawn by J Wouters, D Coppens and B De Meester The European Union's External Relations after the Lisbon Treaty in Griller and Ziller (n 10) 143-203. [FN142]. Kaddous (n 10) 219. [FN143]. Whitman and Juncos (n 6) 45.
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14 J. Conflict & Security L. 265 END OF DOCUMENT
10 GERMANLJ 585 10 German L.J. 585
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German Law Journal May 1, 2009 Development *585 DELIMITATION OF EU-COMPETENCES UNDER THE FIRST AND SECOND PILLAR: A VIEW BETWEEN ECOWAS AND THE TREATY OF LISBON Dominik Eisenhut [FNa1] Copyright 2009 German Law Journal; Dominik Eisenhut A. Introduction Since the European Union (EU) agreed upon the extension of its activities to the fields of foreign, security, and criminal policy in the Maastricht Treaty, the question of the delimitation of those new areas of EU competence towards the classical policies under the Treaty of the European Community (TEC) has been present. The broad and rather vague scope of the Common Foreign and Security Policy (CFSP) in the socalled second pillar of the EU and the area of political cooperation covered by the third pillar [FN1] presents several uncertainties. One such uncertainty is the relationship between the supranational legal order under the TEC and the more intergovernmental and diplomacy-based cooperation under the Treaty on the European Union (TEU). Although the EU was organized within a single institutional structure, the substantial differences with regard to voting procedures, competences of the European Court of Justice (ECJ) and the role of the European Commission rendered a clear separation of competences under the different pillars compulsory: CFSP remains beyond the jurisdiction of the ECJ; the Commission and the European Parliament have only marginal rights of participation; and the legal obligations under the second pillar cannot claim supremacy over national law or direct effect. With regard to the question of separation of competences, Member States have, from the very beginning, been anxious to preserve the mere intergovernmentalism that governed the TEU in such sensitive political areas as security, foreign policy and police matters. They have opposed any attempt by the Commission or the ECJ to draw parallels between the hierarchically elevated and distinct EC law and the other EU policies, based on general principles of public international law. [FN2] However, over time the broad scope of the EU *586 intergovernmental pillars has created the questions as to which pillar is the right forum to adopt measures which contain elements of both regimes. [FN3] The ECJ had to decide on this very issue, first concerning the measures in the field of Justice and Home Affairs [FN4] and recently on the delimitation of EC development policy and CFSP. [FN5] Some areas of law have subsequently seen modifications of the Treaties in order to coincide competences under the different pillars. The most prominent example of this is the procedure for the adoption of sanctions by the EU, which requires a two-step approach as laid down in Article 301 TEC and Title V of the TEU. [FN6] The vast majority of possible overlaps, however, are still disputed. The dispute hinges, inter alia, around the interpretation of Article 47 of the EU Treaty. The uncertainty regarding this delimitation has proved to be a significant obstacle to establishing a coherent and effective EU policy approach in many areas of foreign, security and defence affairs. [FN7] As a result of the ECJ's judgment in Pupino, [FN8] the academic discussion of such delimitation questions has primarily focused on the possible spill-over of EC law particularities into the second and third pillars. It is submitted, however, that the opposite question is just as important, if not even more so, especially
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concerning the CFSP of the second pillar. Specifically, the question is to what extent does the EU legal order prevent Member States from extending measures adopted under the second or third pillar into areas of law covered by the provisions of the TEC? Member States seem to be more tempted to act under the intergovernmental regime of CFSP, and its subdivision of European Security and Defence Policy, rather than applying related legal bases of the TEC. This tendency has become a persistent bone of contention, especially regarding EU foreign relations law. A recent example in a different area of law is the establishment of the European Defence *587 Agency and its Code of Conduct on Defence Procurement. [FN9] Procurement and the facilitation of intra-Community trade--including in defence goods--clearly fall within the competences of the European Commission under the internal market provisions of the TEC. However, fearing the influence of the Commission and the ECJ in a politically sensitive area, the Member States nevertheless chose the second pillar in order to establish improved cooperation within the EU. [FN10] This article will argue that these tendencies are contradictory to EU law, which protects the acquis communautaire under the TEC from encroachments of any kind, and therefore also from the adoption of impairing decisions in the field of CFSP. The ECJ has made this very clear in its judgment in ECOWAS of May 2008. [FN11] This judgment will subsequently be analysed, following an overview of the current legal framework for the delimitation of EU competences and its interpretation in earlier judgments. The second part of this article will focus on the changes brought by the Lisbon Treaty of December 2007. Although the pillar structure of the EU will be demolished and terminological differences between supranational and intergovernmental policies will vanish, important differences between CFSP measures and other forms of action will remain valid under the new TEU and the Treaty on the Functioning of the European Union. [FN12] Unfortunately, the delimitation of these alternative legal bases will become even more obscure under the Lisbon Treaty than under the current legal order. This is because Article 47 TEU is going to be replaced by the more ambiguous Article 40 of the Lisbon Treaty. It is argued, however, that the prerogative of supranational EU law has to persist after the Lisbon Treaty has entered into force. *588 B. Current Delimitation of Competences under the First and Second Pillar of the Greek Temple I. Primary Law At first glance, the delimitation of first and second pillar measures appears to be very clear. The EU, based on the principle of conferred powers laid down in Article 5 TEC, can only act if certain competences are specifically attributed to it. The separation of CFSP and supranational measures should come by itself, depending on which conferred competence is used as a legal basis. If the competence attributed to the EU falls within Title V of the TEU, the measure has to be adopted within the intergovernmental framework of the TEU. Likewise, if the action is based on a TEC provision, one would think that the supranational EC law would apply. This separation is also reflected in Article 5 TEU, which clearly distinguishes between competences attributed to the EU under the TEU and the TEC, respectively. In practice, however, this distinction is far from being clear. First of all, the competences conferred to the EU in the field of foreign, security and defence policy in Articles 11 (1) and 17 (1) TEU are general in nature, covering all areas of foreign and security policy and all questions relating to the security of the Union, including the progressive framing of a common defence policy. This scope of authority is hardly suited to draw a clear line between CFSP measures and those based on the TEC. [FN13] In principle CFSP covers everything in the field of foreign relations. [FN14] At the same time, a vast range of EC policies contain elements of external action, such as trade, development or economic cooperation. [FN15] The same holds true in the area of defence policy, in which all industry-related aspects of this policy are principally
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covered by the internal market provisions of the TEC. [FN16] Consequently, a delimitation of competences merely according to the relevant legal bases seems futile. *589 The overlapping of certain objectives and legal bases is unavoidable as the [p]ractice has refused to be forced into the straightjacket of Treaty provisions. [FN17] As an alternative idea for determining the legal basis of a hybrid measure between the first and second pillars, one could argue for the drawing on multiple legal bases, in case the objectives of the measure are covered by different provisions. This solution, however, has to be rejected as well. As was mentioned earlier, the first and second pillars of the Union do not share the same legal nature. CFSP is organised strictly on an intergovernmental basis, with very limited majority voting, no power of initiative of the Commission and no direct effect or primacy. The EC legal order, on the other hand, transcends public international law and distributes powers differently: the European Parliament has a say and the ECJ surveys the correct application of EC law, just to name two important idiosyncrasies. This being said, it is clear that a certain measure with inter-pillar implications cannot be based on multiple provisions in both pillars. [FN18] This would lead to a mixture of legal regimes and make the applicable decision-making process and the legal nature of the adopted measure obscure, to say the least. Further, the adoption of such a measure would be impractical. Thus, there is no way around a delimitation of first and second pillar measures leading to a hierarchical relation between the two concurring legal regimes. The broad and imprecise scope of the CFSP makes it necessary to establish a clear boundary between Article 11 and 17 TEU on the one hand and the concurring legal bases in the TEC on the other. The basis for such delimitation is to be found in EU primary law itself. Article 47 of the TEU limits the effects of the TEU on the EC legal order insofar as nothing in this Treaty shall affect the Treaties establishing the European Communities. The provision clearly implies a priority of the TEC competences over the second and third pillar. Technically, the provision is necessary to abrogate the rule of lex posterior in public international law, which would let the more recent TEU prevail over the provisions of the TEC. [FN19] It is widely recognized that the pre-eminence laid down in Article 47 TEU does not only cover the TEC provisions themselves, but the acquis communautaire as a whole. [FN20] This is emphasized in Article 2 (1) indent 5 TEU, which obliges the EU to to maintain in full the acquis communautaire. *590 The primacy of the supranational regime of the TEC is further indicated in Article 3 TEU, which states that the EU should pursue its objectives respecting and building upon the acquis communautaire. [FN21] Moreover, Article 10 (2) TEC can be invoked in order to reason for the primacy of EC law. The provision obliges the Member States to abstain from any measure which could jeopardize the attainment of the objectives of this Treaty. Thus, if a measure could have been taken on the basis of the TEC, its adoption under CFSP provisions would harm the objects of the TEC and Member States would therefore infringe their obligations under this Treaty. Finally, Article 46 (f) TEU provides for the exceptional competence of the ECJ as far as the application of Article 47 TEU is concerned. Hence, the Court has the competence to police the boundaries between the different pillars of the EU. These legal provisions, seen in the abstract, seem to contain a concise framework for the delimitation of concurring competences under intergovernmental or supranational EU law. However, the actual choice of the right legal basis for the adoption of a measure with implications for both pillars has proven to be controversial and has required clarification by the ECJ. The case law of the Court in this matter will be examined subsequently. II. From Airport Transit Visa to ECOWAS: Delimitation of Competences by the European Court of Justice In 1998 the Court first decided a matter concerning the delimitation of first and third pillar measures.
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[FN22] The Commission had initiated proceedings under Article 230 TEC with the aim of reaching the annulment of Council Joint Action 96/197/JAI [FN23] on airport transit arrangements. In its view the arrangement ought to have been taken on the legal basis of former Article 100c TEC [FN24] under the EC's competence for the approximation of laws under Chapter 3 of the TEC as amended in Maastricht. Although the ECJ dismissed the claim of the Commission and decided in favour of the legality of the Joint Action, it nevertheless asserted its authority to review such intergovernmental measures under the third pillar on the basis of Article 46 (1)(f) TEU, as far as the interpretation of Article 47 TEC was concerned. With respect to the delimitation of first and third pillar measures, the court held that: *591 [i]n accordance with Article L [now Article 46] of the Treaty on European Union, the provisions of the EC Treaty concerning the powers of the Court of Justice and the exercise of those powers apply to Article M of the Treaty on European Union .... It is therefore the task of the Court to ensure that acts which, according to the Council, fall within the scope of ... the Treaty on European Union do not encroach upon the powers conferred by the EC Treaty on the Community. [FN25] In this regard the ECJ found that, despite its principal exclusion from CFSP and Justice and Home Affairs, it was competent to interpret measures adopted under the TEU as far as this was necessary to determine whether such a measure had to be adopted under TEC provisions instead. The reasoning of the ECJ was as brief as it was straightforward: because of the duty of the Court to protect the acquis communautaire, as required by Article 47 TEU, its competence under Article 46(1)(f) TEU extended to the examination of measures adopted under Title VI TEU. [FN26] This interpretation of the standard of review under Article 46(1)(f) and 47 TEU was upheld by the ECJ in a further judgment regarding the appropriate legal basis in the TEC or the provisions of the TEU concerning third pillar measures. [FN27] This time the Commission opposed a Framework Decision [FN28] adopted by the Council under Title VI of the TEU as a criminal law instrument by which Member States were compelled to adopt certain provisions regarding environmental crimes in their national criminal laws. The ECJ annulled the Framework Decision, stating that the measure could have been adopted under Article 175 TEC instead, which provides the legal basis for EC measures in the field of environmental policy. According to the ECJ, the concurrence of competences had to be decided in favour of the supranational legal order in light of Article 47 TEU. [FN29] Since the ruling of the ECJ in Environmental Crimes, [FN30] the primacy of TEC provisions over concurring *592 possible legal bases in the TEU can be perceived as established case law, at least relative to the delimitation of first and third pillar measures. [FN31] Until recently this case law on the delimitation of first and third pillar measures remained the only indication of the Court's opinion on corresponding questions regarding measures adopted in the field of foreign, security and defence policy. Only in 2005 did the European Commission initiate an annulment procedure regarding a measure under Title V of the TEU, based on an alleged infringement of Article 47 TEU. [FN32] 1. The Dispute in ECOWAS The contested Decision [FN33] implemented a CFSP Joint Action on combating the destabilizing accumulation and spread of small arms and light weapons. [FN34] It included the commitment of the EU to contribute to the efforts of the Economic Community of West African States (ECOWAS) to prevent the accumulation of such weapons. As for its legal basis, the Decision referred to the Joint Action in conjunction with Article 23(2) TEU, which provides for the implementation of Joint Actions in the field of foreign and security policy. The funding of these contributions was assured through the CFSP budget. At the adoption of the Decision, the Commission already opposed the Joint Action and the Decision of the Council and its financing under CSFP. [FN35] In its view the measure should have been taken on the
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basis of the TEC's Title XX on development cooperation instead. Moreover, according to the Commission, the EC was competent on the basis of Article 11(3) of the Cotonou-agreement, which specifically mentioned the struggle against the accumulation of small arms and light weapons as a relevant activity. [FN36] On this th basis funding would have been available under the 9 European Development Fund. The Commission held the view that the Joint Action fell within the competences of the Community and therefore, according to Article 47 TEU, ought to have been taken on the basis of these competences. Even though the actions in question concerned a field of *593 shared competences, the Commission argued that any competence attributable to the Community excluded action under the second pillar. [FN37] Based on this legal opinion, the Commission, supported by the European Parliament, brought an action for annulment under Article 230 TEC to the ECJ and claimed the annulations of both the Decision and the relevant parts of the Joint Action. The Council, supported by several Member States, asked the Court to dismiss the application as unfounded as far as the Decision was concerned. Regarding the Joint Action, it contended that the claim was inadmissible and requested, in the alternative, its rejection as unfounded. In its view, the EC was not competent for the action taken to combat the proliferation of small arms and light weapons. [FN38] Furthermore, with respect to the Joint Action, the action was seen to be inadmissible in the first place because it required the ruling on the legality of a measure falling within the CFSP, and therefore constituted an infringement of Article 46 TEU. [FN39] 2. The Judgment of the ECJ On the question of jurisdiction, the Court was very brief. It simply restated its reasoning in Airport Transit Visa and Environmental Crimes, arguing that it was competent to review measures under the second and third pillars insofar as this was necessary for it to protect the acquis communautaire. The Court held that this was envisaged in Article 46(f) TEU, and Article 47 TEU. [FN40] As to the question of an infringement of Article 47 TEU, it started out with an examination of the purpose and meaning of this provision in general. Going even further than the already far-reaching conclusions of the Advocate General in the case, [FN41] it held that: [i]n providing that nothing in the EU Treaty is to affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them, Article 47 EU aims, in accordance with the fifth indent of Article 2 EU and the first *594 paragraph of Article 3 EU, to maintain and build on the acquis communautaire. [FN42] The Court went on to deduce from this statement that: a measure having legal effects adopted under Title V of the EU Treaty affects the provisions of the EC Treaty within the meaning of Article 47 TEU whenever it could have been adopted on the basis of the EC Treaty. [FN43] It clearly rejected the view of the Council that this was not the case with regard to shared competences (as in the field of development policy) of the EC and the Member States, because the latter could have acted outside of the EU altogether instead of taking a measure under Title V of the TEU. It concluded that Article 47 TEU was infringed whenever a measure was taken under the CSFP provisions in an area in which the EC held competences, regardless of their shared or exclusive character. [FN44] Based on this finding, it contented itself to establish the competence of the EC for measures of combating the accumulation of small arms and light weapons on the basis of the Cotonou-agreement and EC development policy in general and held that this competence of the EC made an alternative CSFP measure illegal. It therefore annulled the Decision 2004/833/CFSP on the financial contributions to ECOWAS. [FN45]
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3. Analysis The findings of the ECJ are worth further consideration in several respects. First, the decision raises questions of coherence with regard to the relationship of competences under CFSP and the TEC. As illustrated above, the Court deemed every measure under CFSP invalid, which could have been taken on the basis of TEC competences. At the same time, in order to determine whether a certain measure that touches upon aspects of both CFSP and TEC provisions falls within the competences of the Community, the ECJ referred to the main purpose [FN46] of the measure. This necessarily implies that a measure that has its main purpose in the field of CFSP, but also contains elements referable to Community policies, could legally be taken under Title V of the TEU. This result, however, is hardly *595 compatible with the statement of the ECJ referred to above, according to which every measure which could be taken under the TEC had to be taken on the Community level. Otherwise such a measure would, in the view of the Court, infringe at least in part upon Article 47 TEU. An explanation for this inconsistency might be found by thinking of practical examples for the delimitation constructed by the ECJ. In practice, even if a measure is clearly based on foreign policy or security considerations and therefore adopted under Title V of the TEU, it will be very difficult to exclude the possibility that such a measure might touch upon supranational competences attributed to the Community in the TEC. A vast majority of CFSP measures will contain at least some element of commercial or development policies, humanitarian aid or other EC policies. It is therefore understandable that the ECJ wanted to preserve the legality of such CFSP measures and therefore referred to the main purpose of these measures in order to determine whether TEC competences are infringed. From a dogmatic point of view, however, the delimitation on the basis of an absolute prerogative of the TEC and, at the same time, the reference to the main purpose of a measure, remains inconsistent. Moreover, the facts in the ECOWAS case themselves show the difficulties in determining when the main purpose of a measure is related to foreign or security policy goals. The contested Decision on the contributions to ECOWAS was predominantly motivated by security considerations. Only parenthetically did it mention the importance of the reduction of light arms and small weapons for the development of the region. [FN47] Hence, one could easily argue (and the Advocate General in the case did indeed [FN48]) that the Decision had as its main purpose a CFSP goal and was therefore rightly adopted under Title V of the TEU. Secondly, it is remarkable that the ECJ refused to make any distinction between the different types of competences conferred on the EC, as far as the delimitation of first and second pillar measures are concerned. From this it follows that although Member States are able to act outside the EU altogether on their own or jointly in the field of shared competences, they would not be able to act within the framework of the CFSP. They either have to use the supranational Community framework of the EU or refrain from acting within the EU at all. At first sight, one might think that such a limitation of the possible action within the framework of the EU is against the idea of streamlining European foreign *596 policy through action under CFSP. The approach of the ECJ is nevertheless convincing. [FN49] It is in accordance with the obligation in Article 10(2) TEC, mentioned above. By giving preference to EC competences over concurring competences under the TEU, the EU legal order obliges Member States to use Community competences whenever possible. If they instead use provisions of the intergovernmental pillars, they disregard the institutional structure of the EU and thereby jeopardise the attainment of the objectives of the [EC] Treaty. [FN50] The exclusion of CFSP action in the field of EC competences in particular does not touch upon the principle of conferred powers. Member States are still free to act outside the EU. The exclusion of CFSP measures only limits the Council in its activities, which is not protected by the principle of conferred powers as contained in Article 5 TEC. The third observation is more of political than of legal nature. As will be demonstrated, the delimitation of CFSP and supranational competences of the EU will become even less clear under the Treaty of Lisbon.
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The very forceful argument for the primacy of the EC competences of the EU in ECOWAS could be interpreted as an early warning of the ECJ not to blur the boundaries between the different integrational layers of the EU. In a recent case, which was an appeal against the judgment of the Court of First Instance (CFI) in the Kadi case, the ECJ further elaborated on the delimitation of competences between the first and second pillars. [FN51] In its judgment, the Court quashed the decision of the CFI and, inter alia, emphasized the separation of supranational and intergovernmental competences. In the context of the question of the right legal basis for targeted sanctions against individuals, the ECJ stated that the legal basis for EC action under Article 308 TEC cannot be connected to CFSP policy objectives enshrined in Title V of the TEU. [FN52] Exemptions to this rule had to be explicitly contained in the treaties, as being the case in Article 301 TEC. In this context, the Court emphasized the coexistence of the Union and the Community as integrated but separate legal orders. And the constitutional architecture of the pillars ... constitute *597 considerations of an institutional kind militating against any extension of the bridge to articles of the EC Treaty other than those with which it explicitly creates a link. [FN53] Arguably, by this finding the ECJ aimed at preventing the multiplication of interlinkages between the supranational and intergovernmental of EU policies. Whereas in ECOWAS the ECJ primarily relied on the notion of primacy of the acquis communautaire and the possibility to include CFSP objectives in overriding EC measures, the finding in Kadi concerning the exclusion of CFSP objectives as legitimisation for supranational measures seems, at first sight, contradictory. However, what the ECJ wanted to say, in the view of the author, is that CFSP objectives may well be (subordinary) aims of the EC measures, but such measures must not be used to pursue CFSP aims in the first place. This understanding, it is submitted, is in accordance with Article 47 TEC and the rationale of the pillar architecture. The fear of a blurring of the boundaries between intergovernmental and supranational EU competences has been expressed earlier by Members of the Court. [FN54] It is this fear, in my view, that has, at least to some extent, motivated the ECJ to be as explicit with regard to the primacy of EC supranational competences over CFSP legal bases. This fear is now more valid than ever, particularly in the light of the new delimitation as provided in the Treaty of Lisbon. C. After Lisbon: New Escape Routes into Intergovernmentalism? Unlike the Constitutional Treaty of 2004, the Reform Treaty of Lisbon preserves the dualistic structure of EU primary law, based on a modified TEU and a new Treaty on the Functioning of the European Union (TFEU), which basically contains the provisions of the former TEC. Moreover, the separate procedures with regard to decisions taken under the TFEU on the one hand and the CFSP provisions of the TEU on the other hand remain in place. In the area of CFSP, the jurisdiction of the ECJ continues to be largely excluded, the role of the Commission and the European Parliament remain insignificant and the decision procedures still require unanimity. Furthermore, direct effect and primacy in the national legal order cannot be invoked with regard to acts in the framework of CFSP. To sum up, CFSP action continues to be qualitatively different from other legal measures of the EU. Therefore, it is submitted, the distinction between supranational TFEU law (the former Community competences, plus the former third pillar of the TEU) and intergovernmental cooperation in the field of CFSP remains valid, although the EU in the future disposes of a single legal personality. The abolition of the terminological distinction between EC and EU *598 law cannot conceal this ongoing dualism. [FN55] Therefore, the delimitation of CFSP and other EU competences will not cease to be of great importance under the new Treaty regime. It is argued that, due to the supersession of important provisions of the hitherto treaties, this distinction will become more opaque than before the reform of 2007.
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I. The New Legal Framework The most basic modification through the Reform Treaty regarding the delimitation of competences is the future equal footing of TEU and TFEU as the two sources of EU primary law. The policies under the TEU no longer supplement [FN56] the former EC competences, but reside on the same level. [FN57] In addition, the TEU no longer contains the requirement to maintain in full the acquis communautaire, as hitherto enshrined in Article 2 (1) TEU. Moreover, Article 47 TEU is replaced by the new Article 40 TEU, which provides for the mutual non-affection of the two treaties. [FN58] Like Article 47 TEU in its old version, the observance of Article 40 can be scrutinized by the ECJ. [FN59] Further, and also relevant in our context, the imperative of consistency will be contained in Article 21 (3) TEU. Finally, according to Article 7 of TFEU, it also explicitly covers the supranational policies of the EU. In relation to the competences of the EU under the CFSP, Article 24(1) and 42(1) TEU continue to capture all aspects of foreign and security policy and a vast range of defence-related matters. Despite the single legal framework of the EU, these competences remain outside the general provisions on competence in Articles 3 to 6 of the TFEU. Article 3(6) of TEU merely states that the EU shall pursue its objectives by appropriate means *599 commensurate with the competences which are conferred upon it in the Treaties. Hence, their placement into the systematic structure of the EU remains unclear. [FN60] For the most part, Article 40 TEU, as amended by the Treaty of Lisbon, raises questions with regard to the future delimitation of competences. Lacking a unidirectional statement for the primacy of supranational EU law over CFSP legal bases, the provision is likely to pose a threat to the integrity of the acquis communautaire. The inconclusive delimitation might seduce Member States to adopt measures based on CFSP provisions, which would usually fall within the supranational competences of the EU. Being largely independent from Commission, ECJ and European Parliament within this former second pillar, the escape into intergovernmentalism continues to be attractive in sensitive policy fields such as foreign, security and defence policies. [FN61] Article 40 TEU takes up the notion of the former Article 47 TEU in paragraph 1 and requests that the implementation of CFSP shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. However, a problem arises in the second paragraph, which reads as follows: Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter. By virtue of this second paragraph, the primacy given by the TEU in its old version to the supranational legal bases will not be replicated under the new treaties. [FN62] By the reversed obligation not to affect CFSP procedures and powers through measures based on the TFEU, the clear prerogative of the latter, as stated in Article 47 TEU, is abolished. Indeed, in theory, the two paragraphs make sense, as they aim to separate two distinct legal regimes. However, as has been shown above, the distinction of CFSP and supranational competences is not clear-cut. In future, delimitations of measures affecting both regimes *600 will face a double obligation not to affect CFSP provisions and the TFEU, an obligation which will prove to be untenable. Appropriately, the provision has been denoted as a hushed reverberant sound of the old Article 47 TEU. [FN63] The uncertainty regarding this question of delimitation is further increased by the deletion of the supplementary role of the TEU vis--vis the TFEU in the former version of Article 1(3) TEU, which is replaced by a passage in the amended version, stating the same legal value of the two treaties. To sum up, the new legal framework will make it easier for Member States to legitimise action under
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CFSP provisions that simultaneously affect the competences attributed to the EU on the supranational level in the TFEU. However, subsequently it will be argued that, notwithstanding the ambiguous wording in the consolidated treaties, the primacy of supranational law must prevail. The importance of the internal market, systematic considerations and the principle of consistency do not allow a blurring of the boundaries between CFSP and other EU policies. II. Preserving Primacy: The Case for Comprehensive Supremacy of Supranational Competences under the Treaty of Lisbon Alan Dashwood has argued that the legal point of view taken by the ECJ in ECOWAS will become undefendable under the new legal order established by the Treaty of Lisbon. In his view, the new Article 40 of TEU will abolish the primacy of Community competences over intergovernmental CFSP competences. [FN64] I do not share this view. If one regards the aim and purpose of Article 40 TEU and reads it in the context of the overall treaty structure, the rationale of the ECOWAS judgment will remain tenable under the new Treaty regime. The legal basis of CFSP or supranational provisions of EU primary law continues to be the starting point for the delimitation of competences under the consolidated treaties. It has been shown, however, that in most cases the choice of the appropriate legal basis is far from being clear. Unambiguous determinations are only possible relative to exclusive competences of the EU, for example in the field of commercial policy. [FN65] With respect to any other type of competences, a hierarchy of concerned legal bases has to be established. It is submitted that two main arguments make the case for a continuing primacy of supranational legal bases. *601 1. Systematic Considerations The first argument can be drawn from a cross-treaty interpretation of the TEU and the TFEU. This notion of comprehensive inter-treaty interpretation is also reflected in Article 31(3)(c) of the Vienna Convention on the Law of Treaties. From a systematic point of view, one recognizes an important difference between competences of the EU attributed under the TEU and the TFEU. The EU Treaty contains wide and rather imprecise competences for the EU in the field of foreign, security and defence policy, whereas the provisions of the TFEU on competence are of a much narrower and more concrete nature. Also, they are of a different legal quality than CFSP competences, having direct effect and primacy over national law. Therefore, it can be argued that the competences in the TFEU have to be perceived as leges speciales in relation to the general provisions in the TEU. [FN66] They then would have to be exclusively applied whenever a measure falls within their scope. 2. The Principle of Consistency Second, the principle of consistency, laid down in Articles 21(3) TEU and Article 7 TFEU, argues for the ongoing primacy of supranational legal bases in the EU's action. The disputed question under the current legal framework as to whether this principle, only contained in Article 3 of the TEU, is also valid for the policies pursued under the TEC will become obsolete under the new provisions of the Treaty of Lisbon. [FN67] The consolidated Treaty versions will contain a clear statement in favour of its comprehensive applicability. Firstly, Article 21 (3) paragraph 2 covers consistency with respect to external action of the EU: The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to
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that effect. Then, in Article 7, the TFEU extends the principle to all other areas of EU activity: The Union shall ensure consistency between its policies and activities, taking all of its objectives into account *602 and in accordance with the principle of conferral of powers. Read in combination, the two Articles establish an obligation to act consistently throughout the whole range of EU activities, regardless of whether the action was taken within the intergovernmental or the supranational framework of the EU. CFSP action must be consistent with, for example, development policy or the action of the Commission regarding the internal market, and vice versa. On first sight, this analysis may be perceived as putting the supranational and intergovernmental EU competences on the same level and therefore making the case for reciprocal and equitable observance. In the authors view, however, the principle of consistency supports the argument for an ongoing primacy of supranational competences. Consistency can be described as the requirement of coherent, unambiguous action of an entity, in this case the EU. [FN68] Expanding on its literal meaning, consistency in European law contains a positive obligation to adjust one's action to the actions of other actors within the same entity. The notion implies that consistent action achieves more than the freedom from contradictions. It requires that the EU's policy, viewed as a whole, engenders more than the sum of its parts. This notion is better expressed in other treaty languages, using the equivalent of the English word coherence (French: cohrence, German: Kohrenz). [FN69] Missiroli has expressed this to the point: Consistency in law means the absence of contradiction, coherence also implies positive connections: the former is about compatibility and making good sense, the latter more about synergy and making good sense. [FN70] On the basis of such a wide understanding of consistency, whenever an action touching upon different fields of competence is to be taken, the way in which the action brings about the largest added value for the EU as a whole should be considered. This maximum of positive effect is usually achieved if a measure can be taken on the basis of the supranational, i.e. TFEU, provisions of EU law. Here, the influence of the European Parliament, the Commission, and the ECJ is strongest. Legal acts based on Article 288 TFEU (which replaces the former Article 249 TEC) have direct effect and primacy over national *603 law. Therefore the interest of the EU as such is central and Member States are less influential than under the largely intergovernmental procedures of CFSP. This leads to the conclusion that consistency requires supranational action, wherever an applicable legal basis can be found. D. Conclusion Reaching out into fields traditionally at the core of national policy and perceived as expression of the Member States national sovereignty, the advancement of foreign, security and defence policy within the EU has created new challenges both to the Member States' national constitutional systems and to the acquis communautaire. The latter is now, in an increasing range of competences, faced with an alternative forum of action for the Member States, in which they are much more master of their own acts than under supranational TEC (and future TFEU) provisions. The appropriate delimitation of those CFSP competences and the classical supranational legal bases, however, substantially limits the possibility of Member States to use the intergovernmental forum of CFSP instead of TEC provisions. It has been shown that the delimitation of competences between the first and second pillars cannot simply be achieved by the choice of the right legal basis. Measures regularly cover aspects subject to competences under both pillars. As CFSP and TEC measures are fundamentally distinct in their legal quality, the evocation of multiple legal bases is not a way out of the delimitation problem. Instead, a clear delimitation
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can be drawn under the terms of Article 47 TEU, which gives primacy to the supranational legal bases of the TEC. Whenever a measure can be based on the supranational competences of the EU, the measure has to be based on these competences. The ECJ has made this very clear in its recent judgment in ECOWAS. The rationale behind its reasoning is the duty to protect the acquis communautaire, enshrined in the TEU and especially in Article 47 thereof. Furthermore, it was argued that the rationale of ECOWAS is still valid under the post-Lisbon Treaties. Although the new legal framework, and in particular Article 40 TEU, may make it more tempting for Member States than before to escape into intergovernmentalism, CFSP legal bases continue to be supplementary to legal bases in the TFEU. Despite the ambiguity of Article 40 of TEU, the principle of consistency and teleological considerations make the case for ongoing primacy of supranational competences.
[FNa1]. Assistant Lecturer, University of the Bundeswehr, Munich. The author wishes to thank Ajsela Siskovic for her valuable comments and Professor Dr. Daniel-Erasmus Khan for his support during the research for this article. Email: d.eisenhut@ucl.ac.uk. [FN1]. The third pillar today covers intergovernmental cooperation in the field of police and judicial cooperation in criminal matters (Title VI of the TEU). [FN2]. See Antonio Missiroli, European Security Policy: The Challenge of Coherence, 6 EUR. FOREIGN AFF. REV. 177 (2001); Alan Dashwood, External Relations Provisions of the Amsterdam Treaty, 35 COMMON MKT. L. REV. 1019 (1998). [FN3]. See Christian Timmermans, The Uneasy Relationship Between the Communities and the Second Union Pillar: Back to the Plan Fouchet?, 1 LEGAL ISSUES OF THE EUROPEAN INTEGRATION 61 (1996); EILEEN DENZA, THE INTERGOVERNMENTAL PILLARS OF THE EUROPEAN UNION 290 (2002). [FN4]. The former Title VI of the TEU contained provisions on Justice and Home Affairs. After the revision of the treaties at Nice in 2001, Title VI now deals with Police and Judicial Cooperation in Criminal Matters. [FN5]. See Case C-91/05, Commission v. Council, 2008 E.C.R I-3651 [hereinafter ECOWAS case]. [FN6]. See Pascal Gauttier, Horizontal Coherence and the External Competences of the European Union, 10 EUROPEAN LAW JOURNAL 23, 30 (2004). Other special provisions have been adopted in the field of financing second and third pillar measures, Treaty Establishing the European Community, art. 269 (2), Dec. 29, 2006, 2006 O.J. (C 321E) 179 [hereinafter TEC], and sanctions against Member States. See TEC art. 309; Treaty on European Union, art. 7, Dec. 29, 2006, 2006 O.J. (C 321E) 12-13 [hereinafter TEU]. [FN7]. See Panos Koutrakos, Constitutional Idiosyncrasies and Political Realities: The Emerging Security and Defence Policy of the European Union, 10 COLUM. J. EUR. L. 69 (2003) for the example of EU defence policy. [FN8]. Case C-105/03, Pupino, 2005 E.C.R. I-5285. [FN9]. Council Joint Action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency, 2004 O.J. (L 245) 17. See EU SECURITY AND DEFENCE - CORE DOCUMENTS 361 (2005) (Nicole Gnesotto ed., 2005) (reproducing a summary of the Code of Conduct, adopted in November 2005). [FN10]. For a thorough analysis see Martin Trybus, The New European Defence Agency: A Contribution to a Common European Security and Defence Policy and a Challenge to the Community acquis?, 43 COM-
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MON MKT. L. REV. 667 (2006) [FN11]. ECOWAS case, supra note 5. See also Joni Heliskoski, Small Arms and Light Weapons within the Union's pillar structure: An Analysis of Article 47 of the EU Treaty, 33 EUR. L. REV. 898 (2008); Ronald van Ooik, Cross-Pillar Litigation Before the ECJ: Demarcation of Community and Union Competences, 4 EUR. CONST. L. REV. 399 (2008) (providing an analysis of the case). [FN12]. See Panos Koutrakos, Primary Law and Policy in EU External Relations - Moving Away from the Big Picture, 33 EUR. L. REV. 666 (2008). [FN13]. See Ramses Wessel, The Inside Looking Out: Consistency and Delimitation in EC External Relations, 37 COMMON MKT. L. REV. 1135 (2000); Birgit Weidel, Regulation or Common Position - The Impact of the Pillar Structure on External Policy, in EXTERNAL ECONOMIC RELATIONS AND FOREIGN POLICY IN THE EUROPEAN UNION 50 (Stefan Griller & Birgit Weidel eds., 2002); cf. Alan Dashwood, The Law and Practice of CFSP Joint Actions, in EU FOREIGN RELATIONS LAW - THE CONSTITUTIONAL PRINCIPLES 71 (Marise Cremona & Bruno de Witte eds., 2008) (providing a different view). [FN14]. See PIET EECKHOUT, EXTERNAL RELATIONS OF THE EUROPEAN UNION 141 (2004) (explaining the scope of Article 11 TEU). [FN15]. See TEC arts. 133, 177, 181(a). [FN16]. At least in theory, the defence industrial policy of the Member States is subject to, e.g., EC procurement law, merger control, state aid and free movement of goods. Only exceptionally can the States invoke Article 296 TEC. See Panos Koutrakos, Security and Defence Policy within the Context of EU External Relations, in EUROPEAN SECURITY LAW 249 (Martin Trybus & Nigel White eds., 2007); Dominik Eisenhut, The Special Security Exemption of Article 296 EC: Time for a New Notion of Essential Security Interests?, 33 EUR. L. REV. 577 (2008) (providing an analysis of the role of EC law in this field). [FN17]. Ramses Wessel, Fragmentation in the Governance of EU External Relations: Legal Institutional Dilemmas and the new Constitution for Europe, in THE EUROPEAN UNION - AN ONGOING PROCESS OF INTEGRATION 123 (Jaap de Zwaan, Jan Jans & Frans Nelissen eds., 2004). [FN18]. See ECOWAS case, supra note 5, at paras. 76-78. [FN19]. See Vienna Convention on the Law of Treaties art. 30(3), May 23, 1969, 115 U.N.T.S. 331. [FN20]. DENZA, supra note 3, at 289; Hans Krck, Selbstndigkeit der Vertrge, in 6 KOMMENTAR IUM VERTRAG BER DIE EUROPISCHE UNION UND ZUR GRNDUNG DER EUROPISCHEN GEMEINSCHAFT (Hans von der Groeben & Jrgen Schwarze eds, 2003), margin number 7, with further references. [FN21]. See Timmermans, supra note 3, at 67. [FN22]. Case C-170/96, Commission v. Council, 1998 E.C.R. I-2763 [hereinafter Airport Transit Visa case]. [FN23]. EC Joint Action 96/197/JAI of 4 March 1996, 1996 O.J. (L 63) 8. [FN24]. Article 100 c of the TEC as amended by the Treaty of Maastricht concerned EC immigration policy and provided as follows: The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, shall determine the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States. [ ... ].
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[FN25]. Airport Transit Visa case, supra note 22, at paras. 15-16. [FN26]. Id. at para. 17; see also 1998 E.C.R. I-2763, para. 11 (statement of AG Fennelly) (I consider that the Court may interpret acts purporting to be adopted under Title VI of the Treaty on European Union, in order to determine whether or not they deal with matters which more properly fall within the Community sphere of competence as determined by Article M.). [FN27]. Case C-176/03, Commission v. Council, 2005 E.C.R. I-7879 [hereinafter Environmental Crimes case]. [FN28]. EC Framework Decision 2003/80/JHA of 27 January 2003 on the protection of the environment through criminal law, O.J. 2003 L 29/55. [FN29]. Airport Transit Visa case, supra note 22, at para. 53. [FN30]. Environmental Crimes case, supra note 27. [FN31]. See Case C-440/05, Commission v. Council, 2007 E.C.R. I-9097 (discussing criminal law-measures under Title VI TEU on the one hand and action under Title V TEC (Transport) on the other); see also Christoph Herrmann, Much Ado about Pluto? The Unity of the Legal Order of the European Union Revisited, 5 EUI WORKING PAPERS RSCAS 6 (2007); EECKHOUT, supra note 14, at 148. [FN32]. ECOWAS case, supra note 5, at para. 23. [FN33]. EC Decision 2004/833/CFSP of 2 December 2004, 2004 O.J. (L 359) 65. [FN34]. EC Joint Action 1999/34/CFSP of 17 December 1998, 1999 O.J. (L 9) 1. [FN35]. EC Council Document No. 15236/04 PESC 1039 of 25 November 2004. [FN36]. The Cotonou-agreement of 23 June 2000, 2000 O.J. (L 317) 1, replaced the former Lom agreements and is an instrument of EU development policy within the framework of its association policy under Art. 310 TEC, concerning states in Africa, the Caribbean and the Pacific. [FN37]. ECOWAS case, supra note 5, at para. 23. [FN38]. Id. at paras. 42-55. [FN39]. Id. at para. 30. [FN40]. Id. at paras. 31-34. [FN41]. Id. at paras. 98, 176 (Opinion of AG Mengozzi). [FN42]. Id. at para. 59. [FN43]. Id. at para. 60. [FN44]. Id. at para. 62. [FN45]. The Court did not annul the relevant Title II of Council Joint Action 2002/589/CFSP, because, as the Decision was illegal because of its own defects, this was not necessary in order to meet the Commission's aim. Id. at para. 111.
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[FN46]. Id. at para. 72. [FN47]. See Council Decision 2004/833/CFSP of 2 December 2004, 2004 O.J. (L 359) 65, Preamble para. (1). This is also expressed by Article 4(2) of the Decision, which establishes an obligation to monitor the consistency of the activities of the Union in the field of small arms and light weapons with regard to its development policies. This section demonstrates that development is only a secondary aim of the Decision, which primarily concerns security policy. [FN48]. See ECOWAS case, supra note 5, at paras. 177-195 (Opinion of AG Mengozzi). [FN49]. See Christophe Hillion & Ramses Wessel, Restraining External Competences of EU Member States under CFSP in EU FOREIGN RELATIONS LAW - THE CONSTITUTIONAL PRINCIPLES 116 (Marise Cremona & Bruno de Witte eds., 2008) (writing prior to the ECOWAS judgment). [FN50]. TEC art. 10(2). [FN51]. Joint Cases C-402/05 and C-415/05, Yassin Abdullah Kadi and Al Barakaat International Foundation, Judgment of 3 September 2008 [hereinafter Kadi case]. See Takis Tridimas & Jose Gutierrez-Fons, International Law and Economic Sanctions Against Terrorism: The Judiciary in Distress?, 32 FORDHAM INT'L L.J. 667 (2009) (analyzing the judgment of the ECJ in Kadi). [FN52]. Kadi case, supra note 51, at para. 197. This understanding of Article 308 is reflected in the corresponding provision of the consolidated TFEU, which, in Article 352 (4), expressly excludes the evocation of CFSP objective with regard to that legal basis. See Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, art. 352 (4), May 9, 2008, 2008 O.J. (C 115) 1, 196. [FN53]. Kadi case, supra note 51, at para. 202. [FN54]. Timmermans, supra note 3. [FN55]. See Editorial Comments, The CFSP under the EU Constitutional Treaty - Issues of Depillarisation, 42 COMMON MKT. L. REV. 325 (2005); KOUTRAKOS, supra note 12, at 669. It has already been tried to find new terminological differentiations between CFSP and supranational law, speaking of partial differentiation, Bruno de Witte, The Constitutional Law of External Relations, in A CONSTITUTION FOR THE EUROPEAN UNION 163 (Ingolf Pernice & Miguel Poiares Maduro eds., 2004), or structural differentiation. Alan Dashwood, The Relationship Between the Member States and the European Union / European Community, 41 COMMON MKT. L. REV. 355, 363 (2004). [FN56]. TEU Former art. 1(3). [FN57]. TEU art. 1(3) sentence 2 as amended in Lisbon: Those two Treaties shall have the same legal value. [FN58]. TEU art. 40 in its amended version reads as follows: The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 3 to 6 of the Treaty on the Functioning of the European Union. Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter. [FN59]. TEU art. 24 (1); TFEU art. 275.
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[FN60]. See Marise Cremona, A Constitutional Basis for Effective External Action? An Assessment of the Provisions on EU External Action in the Constitutional Treaty, EUI WORKING PAPER LAW No. 30, 17 (2006) (regarding the equivalent provisions of the Constitutional Treaty). [FN61]. See WESSEL supra note 17, at 133 for examples of PESCialisation of the TEC-policies within the current legal framework. [FN62]. See Michael Dougan, The Treaty of Lisbon 2007: Winning Minds, Not Hearts, 45 COMMON MKT. L. REV. 617, 626 (2008); but see PANOS KOUTRAKOS, EU INTERNATIONAL RELATIONS LAW 494 (2006) (contending that Article 40 contains the ratio of former TEU art. 47). [FN63]. Leiser Nachhall (Translation by the Author); see CHRISTOPH HERRMANN (together with STEFAN OHLER & RUDOLF STREINZ), DER VERTRAG VON LISSABON ZUR REFORM DER EU 117 (2008). [FN64]. Dashwood, supra note 13, at 77. [FN65]. See TFEU art. 3(1); see also Alan Dashwood, The Limits of European Community Powers, 21 EUR. L. REV. 113 (1996) (discussing the scope of exclusive competences). [FN66]. See HERRMANN, supra note 31, at 15. [FN67]. See Matthias Pechstein, Das Kohrenzgebot als entscheidende Integrationsnorm der Europischen Union, EUROPARECHT 247 (1995) and Peter-Christian Mller-Graff, Einheit und Kohrenz der Vertragsziele von EG und EU, EUROPARECHT Beiheft 2, 67 (1998) for the dispute regarding the current provisions. [FN68]. PECHSTEIN, supra note 67, at 251. [FN69]. See Gauttier, supra note 6; Christian Tietje, The Concept of Coherence in the Treaty on European Union and the Common Foreign and Security Policy, 2 EUR. FOREIGN AFF. REV. 211 (1997); see also KIRSTEN SIEMS, DAS KOHRENZGEBOT IN DER EUROPISCHEN UNION UND SEINE JUSTITIABILITT 21 (1999) (providing an in depth-analysis). [FN70]. Antonio Missiroli, Coherence, Effectiveness and Flexibility for CFSP/ESDP, in EUROPEAS FERNE STREITMACHT 124 (Erich Reiter, Reinhardt Rummel & Peter Schmidt eds., 2002). 10 German L.J. 585 END OF DOCUMENT
16 MISTJIL 691 16 Mich. St. J. Int'l L. 691
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Michigan State Journal of International Law 2008 Note A FOREIGN POLICY FOR EUROPE: INTEGRATION OR ILLUSION? Malgorzata Lawrynowicz Copyright (c) 2008 Michigan State University College of Law; Malgorzata Lawrynowicz I. Introduction A mere few decades ago, the concept of an organization of twenty-seven European countries, including France, Germany, and former Soviet-bloc states, seemed implausible, at best. Yet the current world order includes a European Union, capable of legislating and adjudicating on a variety of matters for its members, and binding them to its rulings and decisions. The EU has imposed its will on issues ranging from agriculture to fiscal policy. The key question that has remained unresolved throughout the Union's history is that of its foreign policy-making capabilities, currently within the framework of what is termed the Common Foreign and Security Policy (CFSP). While the EU has been able to oblige member states to adopt new farming practices or lower budget deficits, it has thus far been unable to articulate a European foreign policy, which its member states are compelled to follow. Inability has not been equivalent to unwillingness, however, and the lack of a unified foreign policy in the past is not dispositive of the future of CFSP. With each treaty, agreement, and amendment, the EU has been increasing its role as a unified whole on the world stage, slowly but surely. The lines between what falls within the community method and what remains at the intergovernmental level have been blurred, and foreign policy has not been left outside the haze. At the same time, member-state governments fear a loss of national sovereignty, and hit the brakes when it comes to integrating their positions on foreign policy issues. Although change and development has been embodied in each subsequent Union treaty, a reluctance to release foreign policy powers to a supranational body is also evident. The author therefore seeks to address the question of whether the European Union's Common Foreign and Security Policy powers permit the Union to participate as an entity in foreign relations, or whether any external relations powers are still based merely on cooperation between the member states. This brief note will first trace the history and development of foreign policy-making in the European Union and its predecessors, and demonstrate how this procedure has evolved and matured over time. Second, the recent failed attempt at a European Constitution, and the drafting of an amending treaty are examined for further evidence of the intent of the drafting parties, and as a demonstration of the advancement of integration of member states' foreign policies. Finally, this paper provides a brief assessment of how a more fully integrated foreign policy may affect the European Union's relations with other key global players, particularly the United States. European Security and Defense Policy (ESDP), although a related field, is outside the scope of this note, as is the foreign economic and trade policy of the Union. The legality of any EU action in foreign affairs under the United Nations Charter will also not be addressed; what is critical here is whether the Union's own legal structure precludes its participation in world politics, and whether such involvement is possible in the future.
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II. Initial Strides in European Foreign Policy-Making The current Common Foreign and Security Policy took root in 1992, with the Treaty on the European Union (TEU). The origins of political cooperation in the area of foreign policy among member states can be traced all the way back to 1969, however, when the heads of state and government of the six member countries (Belgium, France, Germany, Italy, Luxembourg, and the Netherlands) met together in The Hague. Through the Luxembourg Report of 1970, the member states of the European Economic Community (EEC) established what was called European Political Cooperation (EPC), intended to unify the Community politically, rather than economically. [FN1] EPC was dependent upon unanimous consent among the parties, and occurred outside the founding document of the European Community, the Treaty of Rome of 1957. [FN2] This reflected the member states' belief that foreign policy decisions fell within the purview of national governments, as part of the exercise of their sovereign powers; [FN3] they did, however, believe they could be more influential when viewed internationally as a bloc. [FN4] Unlike other European Community policies, European Political Cooperation lacked organizational structure and strict obligations, and was based instead on loose cooperation among the member states. [FN5] The system did achieve some marginal success on the international scene, including the issuance of policy declarations, agreement on common negotiating positions, organization of international conferences, and cooperation in several missions overseas. [FN6] It was not until 1986, with the Single European Act (SEA), that EPC was granted a legal basis upon which members could discuss common positions and agree to work together in some areas. [FN7] Title III, Article 30 of the SEA provided that the High Contracting Parties, being members of the European Communities, shall endeavour jointly to formulate and implement a European foreign policy, and further that the parties shall endeavour to avoid any action or position which impairs their effectiveness as a cohesive force. [FN8] The SEA also provided for regular meetings concerning European Political Cooperation between the foreign affairs ministers of the respective member states and a member of the Commission. [FN9] The SEA therefore provided a structure for European Political Cooperation, within which member states then negotiated foreign policy. [FN10] The Community President served as EC representative in all international relations, the Commission itself served as a participant in decision-making concerning political cooperation, and the Parliament was continually informed of related issues (though it did not play any formal part in the decision-making process). [FN11] In spite of the legal basis provided by the SEA, European Political Cooperation remained essentially at the intergovernmental level. [FN12] Although the Commission and the Parliament were associated with its affairs, none of the other institutions of the Community had any power in the decision-making process; further, the commitments made by member states to cooperate on foreign policy matters were effectively feeble, and the SEA seemed merely to provide a legal basis for the existing practice of individual foreign policies within a broader framework of diplomatic cooperation. [FN13] EPC was, however, the first significant step in the evolution of foreign policy-making within the European Community, and laid the foundation for future developments. The late 1980s and early 1990s brought a series of events in Europe triggering a need for expanding foreign policy cooperation among the member states. The member states' greatly divided responses to the fall of communism in Central and Eastern Europe, the reunification of Germany, and the Iraqi conflict of 1990-1991, reignited support for expanding cooperation on foreign policy matters. Rather than seeking closer cooperation within the existing Community structure, the member states chose to further develop the European Community into a European Union. [FN14] III. From EPC to CFSP: A New Structure with New Obligations? The turn of the decade, and the massive historical changes in Europe that came with it, impacted how member governments approached foreign policy in an exceptional way. The result was Common Foreign
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and Security Policy (CFSP), codified in the Treaty on the European Union (TEU), signed at Maastricht, the Netherlands, on February 7, 1992. The TEU, also referred to as the Maastricht Treaty, represents an unprecedented step toward the unification of member states on many key levels. The twelve members meeting at Maastricht [FN15] negotiated a pillar structure that lay the foundation for the present European Union, whereby decisions were to be made in three separate domains, known as pillars. The EEC, which now became simply the European Community (EC), was absorbed into the first pillar, along with the European Atomic Energy Community (Euratom), and the European Coal and Steel Community (ECSC). [FN16] This is the only one of the three pillars that existed at the supranational level, meaning that decision-making had been delegated by the member states to EU institutions; the institutions would then make policy from a level above that of member governments, to which the member states would be bound. Supranational decision-making is generally made with the use of the European Commission and the European Parliament, while intergovernmental cooperation is usually accomplished with the European Council. Decisions are made through the use of the community method, whereby EU institutions, representing the interests of the Union (and not the member states individually), adopt EU laws concerning topics within the first pillar. Implementation of legislation is accomplished through the use of Qualified Majority Voting (QMV), according to which each country is allotted a certain number of votes (based on population), and a certain minimum number of both votes and member states voting favorably is required for passage. The second pillar concerns CFSP, as well as European Security and Defense Policy (ESDP), while the third pillar covers issues falling under Justice and Home Affairs. Unlike the first pillar, decision-making in the second and third pillars was to remain with the European Council, meaning it was to be made on an intergovernmental basis only. Therefore, according to the TEU, CFSP is to remain within the decision-making powers of the Council, where unanimity is required, and each state can exercise veto power over a foreign policy proposal. Involvement of EU institutions, and the use of QMV, was not prescribed for CFSP within the Maastricht Treaty. The parties' preference for intergovernmental cooperation reflected the view that the Community required a system in which legislation could be enacted, enforced, and adjudicated, while foreign policy was rarely achieved through national legislation, and so a different system was required. [FN17] The Right Honourable Douglas Hurd, former Secretary of State for Foreign and Commonwealth Affairs of the UK, articulated the view of Maastricht negotiators on this point: [t]he key to successful and coherent foreign policy cooperation is persuading your partners of the force of your arguments, not resorting to the procedural means of a vote to overrule their point of view. [FN18] Thus an intergovernmental mechanism, through which foreign policy could be negotiated and coordinated, was created within the second pillar, ensuring that no member state would be forced to succumb to a foreign policy position it did not agree with. Although CFSP is confined to the intergovernmental second pillar of the EU structure, EU institutions were not left entirely out of the foreign policy decision-making process. Under the TEU, the Presidency is charged with representing the EU on CFSP matters, and is to be responsible for the implementation of common measures. [FN19] The Commission then shall be fully associated in CFSP assignments, while the Parliament must be consulted by the Presidency on the main aspects and the basic choices of CFSP, and its views must be duly taken into consideration. [FN20] Thus the EU President plays a significant role in CFSP: the position is responsible for representing the Union, implementing EU policies, and articulating EU positions at international organizations and conferences. [FN21] Meanwhile, the TEU provided the Commission with the right to propose positions and actions, increasing its CFSP role to more closely resemble its first pillar status. [FN22] This right to be fully associated with all aspects of EU foreign policy, and the right to propose policies, provided for increased recognition of the Commission's role within the second pillar; the Relex Group, made up of six Commissioners involved in external affairs, was established to meet regularly, as was a new Directorate-General dealing specifically with CFSP matters, and preparing the Commission for taking part in foreign policy cooperation. [FN23]
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Title V of the TEU set forth the objectives of CFSP, which include strengthen [ing] the security of the Union, preserv[ing] peace and strengthen[ing] international security, promot[ing] international cooperation, and develop [ing] and consolidat[ing] democracy and the rule of law. [FN24] These objectives can be accomplished by adopting two primary policy instruments: joint action[s] and common positions. [FN25] Common positions involve the establishment of consistent national positions and coordination at international organizations and conferences, while joint actions engage decision-making procedures and tend to require use of the Union's financial resources. [FN26] These mechanisms carry a significant amount of weight, heretofore unprecedented in the Union's history. CFSP common positions must be upheld at international conferences and in international organizations, and may lead to the implementation of joint actions, whereby the Council can supply various resources to accomplish its foreign policy objectives. [FN27] Further, the TEU grants the Council the financial means needed to carry out joint actions, which bestows upon it additional authority on the international scene. [FN28] In spite of the significant steps taken toward foreign policy coordination through the Maastricht Treaty's establishment of CFSP, foreign policy-making was still plagued with numerous obstructions to unification. EU bodies like the Commission and the Parliament have merely advisory roles in the process, while the European Court of Justice (ECJ) has no jurisdiction or authority to render binding decisions with regard to matters falling within the purview of the second pillar. [FN29] Without jurisdiction, the ECJ cannot make rulings advancing integration in the area, the way it has done in the economic domain. [FN30] Moreover, there is no mechanism through which member states can be sanctioned for not fulfilling their commitments, in spite of the many levels at which CFSP is evaluated. [FN31] These deficiencies within the pillar structure did not sound the death knell for the integration of member states' foreign policies, however. The ECJ's lack of jurisdiction over CFSP matters was most likely due to the political character of foreign policy-making, rather than a specific intent to limit the Court's powers. [FN32] Most fundamentally, the establishment of CFSP within the pillar structure of the European Union represented movement toward increased clarity in the foreign policy-making process, and an intent to continue increased coordination. [FN33] Title V set out an expanded framework covering a broader scope of issues. [FN34] More importantly, while EPC did not involve any of the Community institutions, and actions taken were based merely on cooperation of the member states, Title V seemed to lay the groundwork for independent action by the EU. [FN35] According to Professor Duquette, Title V represented not merely a movement toward closer cooperation on foreign policy matters, but indeed a shift toward Europeanization. [FN36] CFSP effectively provided member states with the means to speak with one voice on foreign policy matters. [FN37] Although the achievement of cooperation in this area may seem trivial to an outsider, CFSP constituted an unprecedented step toward the foreign policy integration of sovereign nations. Two subsequent treaties attempted to further streamline foreign policy-making, and address some of the CFSP concerns raised by member states. IV. CFSP Enhancement at the Close of the 20th Century A. The Treaty of Amsterdam Following the EU's fourth enlargement, to Austria, Finland, and Sweden, representatives of the member states met at Amsterdam to negotiate modifications and improvements to the Maastricht Treaty. The result was the Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (commonly referred to as the Amsterdam Treaty), signed by member states on October 2, 1997. Many of the changes brought about at Amsterdam came in response to concerns about the inconsistency
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of EU external relations policy-making. Although the Presidency had been integral in increasing the efficiency and cohesion of CFSP, [FN38] the semi-annual rotation had made ensuring consistency in foreign policy representation difficult, particularly with continued enlargements in sight. A related problem was the hesitancy of the larger member states to subordinate their foreign policies to that of a smaller member state, which happened to hold the Presidency at a given time. [FN39] Therefore, in an effort to provide the EU with a single voice on the world stage and to ensure cohesion of its external representation, the Amsterdam Treaty provided for the creation of a High Representative for common foreign and security policy. [FN40] The post of High Representative is filled by the Secretary-General of the Council; he is charged with assisting the Council on CFSP matters, particularly through contributing to the formulation, preparation and implementation of policy decisions, and even acting on behalf of the Council . . . through conducting political dialogue with third parties, where the Presidency has so requested. [FN41] The creation of such a position indicates a desire by member states to centralize EU foreign policy representation in one individual. Further, in addition to common positions and joint actions, the Amsterdam Treaty also provided for common strategies, which were to be implemented by the European Council in areas where the Member States have important interests in common. [FN42] The provision for common strategies was meant to improve EU's external relations consistency across the three pillars. [FN43] Concerns about the difficulties associated with foreign policy decision-making were also addressed. Under the former CFSP procedure, an initial unanimous decision of all the member states to act was required, and a second unanimous decision to define later decisions was also obliged. [FN44] Under the Amsterdam Treaty, these subsequent decisions could be taken by QMV; further, the Council was permitted to request, through the use of QMV, whether a matter should be passed on to the European Council for decision by unanimity. [FN45] The increased use of QMV, as opposed to continued requirements for unanimity, demonstrates a movement, however slight, away from the exclusive use of unanimity to accomplish foreign policy decision-making. The Amsterdam Treaty still left much to be desired in the CFSP arena, however. The role of the High Representative for CFSP remained somewhat abstract. The increased use of QMV had marginal effects, given that the member states maintained a certain internal schizophrenia, whereby a coordinated foreign policy seemed generally attractive, but there was a struggle to achieve specific policy positions, for which members might need to sacrifice their own external policy stances. [FN46] Further, if a Council member found that a decision passed by QMV would conflict with its important and stated reasons of national policy, a vote would not be taken. [FN47] Finally, the QMV provisions do not apply to any decisions that have military or defense implications, for which consensus is still required. [FN48] As such, the changes implemented by the Treaty of Amsterdam appeared to be largely on paper. The most significant impediment to progress in the foreign policy-making arena was the question of whether the EU had legal personality, which was left unresolved after Amsterdam. Although the European Community had been endowed with legal personality, the EU as a whole had received no such status, and thus the second pillar and CFSP were excluded. Legal personality is critical for EU foreign policy-making, as it provides the Union with treaty-making powers, without which the Union as a whole lacks standing on the international arena. [FN49] Article 24 of the Amsterdam Treaty specified that in signing agreements with other international organizations or states, the President may open negotiations, after receiving authorization from the Council, and with the assistance of the Commission. [FN50] However, the agreements were to be concluded by a unanimous Council, on the recommendation of the Presidency. [FN51] Article 24 thus represented a compromise, aimed at giving the Union more clout internationally, while appeasing those member states concerned about infringements on their sovereignty. [FN52] Amsterdam still left the EU devoid of a legal personality, though the will to assert its international presence was evident.
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B. The Treaty of Nice The heads of state and government of the respective member states of the EU met once again at the Nice Council and Intergovernmental Conference in 2000, at which the TEU (as amended by the Amsterdam Treaty) was further revised and modified. The result was the Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (commonly referred to as the Nice Treaty), signed February 21, 2001. The Nice Treaty further delineated when certain voting procedures applied. According to Article 24, unanimity in the Council is required when an agreement between member states concerns an issue that itself requires unanimity in adopting internal decisions. [FN53] However, joint actions and common positions could be acted on by qualified majority in the Council, rather than unanimity. [FN54] The article was again amended at Nice. In concluding international agreements, the Council was no longer required to do so unanimously in all situations, but rather only when the agreement concerned an issue for which unanimity is required for the adoption of internal decisions. [FN55] Thus the Council was endowed with the power to act on behalf of all of its members, even though they may not be in agreement. However small the step, the abolishment of the absolute unanimity requirement again represented a movement toward a more unified foreign policy. The Maastricht Treaty had established what was called enhanced cooperation, which permitted multispeed integration of EU countries: those member states who wished to align themselves more closely on certain matters were permitted to do so. However, enhanced cooperation, as created at Maastricht, applied only to matters falling within the Community pillar, and the Amsterdam Treaty expanded the right only to the third pillar. [FN56] A significant amendment instituted by the Treaty of Nice was therefore the addition of articles 27a through 27e, which provided for the use of enhanced cooperation in matters falling under the second pillar. Enhanced cooperation in CFSP seeks to safeguard[] the values and serv[e] the interests of the Union as a whole by asserting its identity as a coherent force on the international scene. [FN57] Joint actions and common positions are implicated in second pillar enhanced cooperation, although none dealing with military or defense matters. [FN58] The procedure provides a special role for the High Representative for CFSP, distinct from the powers of the Presidency and Commission, to keep the Parliament and Council fully informed of the implementation of enhanced cooperation in CFSP. [FN59] The system used for enhanced cooperation implementation also strays outside the boundaries of the second pillar. When member states wish to establish enhanced cooperation among themselves, they must notify the Council, which will then forward the request to the Parliament and the Commission; the former for information, while the latter is involved in the process by commenting on whether the proposal is consistent with Union policies. [FN60] Finally, in all actions taken with respect to decisions concerning participation in enhanced cooperation matters, the Council is to act by qualified majority, not unanimity. [FN61] The extension of Enhanced Political Cooperation to second pillar matters accordingly represented the cautious steps taken yet again in response to the wishes of some member states to press ahead with foreign policy integration. [FN62] It is true that enhanced cooperation in the second pillar did not approach that of the other two; the veto power, although dropped from the first and third pillars, remained in the second and threatened to quash any proposals. [FN63] However, these were again steps taken to further integrate the foreign policies of the member states through the mechanism of Enhanced Political Cooperation; though it had not caught up to the status of the other pillars, more than mere cooperation could be found in pillar two. At the turn of the century, foreign policy-making among the member states of the European Union had therefore evolved from mere attempts at political cooperation among six member states, to a system within which the executive and legislative institutions of the Union play a role in shaping its position on key issues faced by a community of fifteen member states, under the Consolidated Treaty on the European Union.
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[FN64] V. CFSP and Attempts at a Constitution for the European Union The European Union welcomed ten new members in 2004, and two more in 2007, all from Central and Eastern Europe. [FN65] The expansions have nearly doubled the Union's membership, creating vast new difficulties in policy-making; rather than accommodating the needs of 15 countries, the EU had to face the challenge of obliging 25, and later 27. The Common Foreign and Security Policy was not immune from the difficulties incidental to expansion; unanimous action would now require the concurrence of 27 members, rather than 15. Indeed, enlargement greatly increased the possibility that a decision could be vetoed by a single country, where unanimity is required. Anticipating these challenges, a Convention was appointed by the European Council, consisting of representatives from the governments and parliaments of the member states, as well as delegates from the Commission and the Parliament. [FN66] The Convention drafted a constitution, which was later examined and refined at an intergovernmental conference, and finally approved at a European Council meeting on June 18, 2004. [FN67] The implementation of The Draft Treaty on a Constitution for Europe was contingent on ratification by all (now 25) member states; nine of which chose to determine the Constitution's fate based on national referenda. [FN68] Failure to pass in both The Netherlands and France ultimately killed the prospect of realizing a European Constitution in its then-present form. Although the European Constitution was never ratified, and thus has no legal force, a consideration of the intentions of its drafters in the foreign policy-making area is necessary for a more complete examination of the progression of CFSP. Moreover, the Constitution is continually being revised in an effort to please the populations of the member states and establish a comprehensive document serving as a foundation for the Union's policies. At present, the Union is governed by the provisions set out in the Treaty on the European Union, as amended by the subsequent treaties signed at Amsterdam and Nice (collectively referred to as the Consolidated TEU). The Constitution would significantly overhaul the organization of the Union, including its pillar structure. Important for our purposes is the fact that the first pillar Community would no longer have a legal personality of its own, distinct from that of the EU as a whole. Supranational decision-making would be extended to the third pillar, and CFSP would no longer be classified as purely intergovernmental, as provisions concerning it were likewise integrated into the draft Constitution. [FN69] Article I-7 of the Constitution unequivocally states that [t]he Union shall have legal personality. [FN70] As such, the Union as a whole would be endowed with treaty-making power, a prerogative absent from the Consolidated TEU. The legal personality problem of the prior treaties is explicitly overcome in Article 303 of the 2004 Constitution, which states: [t]he Union may conclude agreements with one or more States or international organizations concerning CFSP matters. [FN71] This provision would indisputably establish legal personality for the EU in foreign policy-making, representing a significant progression toward the integration of member states on second pillar affairs. Moreover, since the pillar structure itself was eliminated, the legal personality of the Community alone would no longer exist, in favor of a legal personality for the Union as a whole. [FN72] This again represents an important step forward; under the Consolidated TEU, the Council was empowered to authorize the Presidency to open negotiations, or conclude agreements on his recommendation, but stopped short of granting legal personality to the entire Union. [FN73] The EU Constitution replaced much of the softer language of the Consolidated TEU with more concrete and comprehensive statements concerning foreign policy. In its opening provisions concerning CFSP, the Constitution states that the member states shall support the common foreign and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity. [FN74] Further, members are to refrain from
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any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. [FN75] Therefore, member states would be obligated to align their foreign policies with those of the Union; although these intentions existed prior to the drafting of the Constitution, the document represents the first attempt at codifying such strong language. Although the draft Constitution does not explicitly state that it has exclusive competence in the domain of CFSP, it does reinforce the established notion that the EU only has those powers it has specifically been granted. [FN76] The second significant change provided for in the proposed Constitution concerns the individual who is to head the Union's representation in foreign affairs. The Treaty of Amsterdam had established the post of High Representative for the Common Foreign and Security Policy, a role filled by the Secretary-General of the Council, and essentially involved in assisting the Council in CFSP matters. This post was replaced in the Constitution by a Union Minister for Foreign Affairs, combining the post of High Representative with that of External Relations Commissioner. The individual would be responsible for representing the EU in CFSP matters, conducting political relations with outside parties on behalf of the EU, and communicating the Union's position in international organizations and at international conferences. [FN77] In addition, the Union Minister would act as Vice-President of the Commission, responsible for managing EU foreign policy as it is covered by the jurisdiction of the Commission. [FN78] As such, he would need to ensure the EU's external action policies were consistent. [FN79] By endowing the Minister with powers in both areas, the drafters seem to have intended for him to improve coordination between the Council and the Commission in foreign policy-making. [FN80] However, the Union Minister would only act under Commission procedures when dealing with first pillar matters; with regard to CFSP affairs, he would be acting at the whim of the Council. [FN81] The next noteworthy development in the Constitution concerned the use of QMV in CFSP matters. Under the Consolidated TEU, unanimity was generally still required for votes on CFSP issues, although procedural questions could be resolved by QMV. The Constitution still requires the Council to act unanimously on CFSP matters. Where progress has been made, however, is in the fact that Article III-300 does not permit abstentions to impede foreign policy decision-making. Specifically, the Constitution states that the abstaining country would not be obliged to apply the European decision, but it must also refrain from any action likely to conflict with or impede Union action based on that decision. [FN82] To defeat a Union decision, abstaining countries must together constitute one-third of the member states, as well as one-third of the Union's population. [FN83] The changes taken with respect to voting would represent a momentous evolution in CFSP-making. Whereas a foreign policy decision may have been stalled in the Council under the Consolidated TEU due to the abstention of a couple of countries, this would no longer be the case if the Constitution were implemented. Moreover, defeat of a unanimously adopted policy would require what has effectively been termed a qualified abstention; at least one-third of member states that include at least one-third of the EU's population would need to abstain by making formal declarations. [FN84] In the case of abstentions, therefore, the Constitution seems to favor CFSP implementation, rather than political appeasement of each of its individual member states. Arguments may still be made that these progressions in CFSP-making are minor, and no significant steps have really been taken. Member states would continue to retain their veto power; to override a policy, a state need only veto a decision rather than abstaining from one. However, QMV was extended to several areas of substantive foreign policy-making by the Council. Article III-300 permits the Council to derogate from the unanimity requirement in several instances, including the adoption of a decision defining a Union action or position based on either a decision of the European Council or proposal from the Union Minister, or implementation of a decision defining the EU's action or position. [FN85] Moreover, the Constitution leaves room for the European Council to expand QMV to cover other matters in the future, if it chooses to do so. [FN86]
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The Constitution does not stray from the Consolidated TEU in one notable respect concerning QMV; the emergency brake, by which a Council member can prevent a vote from being taken by qualified majority if it declares that it will oppose adoption of a European decision for vital and stated reasons of national policy, is still in place. [FN87] However, one small change from the Consolidated TEU was envisioned. Under the treaties, a member of the Council need only declare that it cannot act for important and stated reasons of national policy, whereas the standard under the Constitution requires vital reasons. [FN88] This slight change in language may make little difference in practice, but what is clear is that the intent of the drafters was to continue to gradually press on with the use of QMV. [FN89] Had it been passed, the Constitution would have welcomed several key changes in European foreign policy-making. The Union as a whole would be endowed with legal personality, enabling it to negotiate treaties as an organization. A Union Minister for Foreign Affairs would be placed in charge of the EU's foreign policy structure, and would be provided with a solid budget for its implementation. Finally, the curbed use of unanimity and increased application of qualified majority voting on foreign policy matters would ease the passage of policies among the member states. Although the Constitution was never adopted, many of the changes are reflected in a subsequent attempt at change. More importantly, however, the intent to expand the Union's powers in the CFSP domain is still present. VI. Outlook and Opportunity: The Lisbon Treaty A final and most recent attempt at EU reform has been the Draft Treaty Amending the Treaty on European Union and the Treaty Establishing the European Community, more commonly referred to as the Lisbon Treaty, signed by the heads of state and government of the member countries on December 13, 2007. Unlike the draft Constitution, the Lisbon Treaty is not an attempt at creating an entirely new document, but rather provides amendments to the existing TEU structure. The leaders of EU countries do acknowledge, however, that the core provisions of the draft Constitution remain in place. [FN90] Several noteworthy advancements in CFSP are set forth in the Lisbon Treaty. With respect to foreign policy-making, the proposed amendments would carry out essentially the same reforms as those included in the draft Constitution. QMV is again extended to adoption of decisions from the European Council and the High Representative. [FN91] The emergency brake is preserved, and as such, a member state must have a vital national policy reason, rather than merely an important one, to refrain from acting. The qualified abstention requirement remains, again necessitating a one-third of member states with a one-third of the population to abstain in order for a policy to be overridden. The drafters once again sought to increase the powers presently held by the High Commissioner for CFSP; rather than being termed the Union Minister, as he was under the draft Constitution, the Lisbon Treaty would christen him or her the High Representative of the Union for Foreign Affairs and Security Policy, under a newly drafted Article 9e. The treaty maintains that the High Representative serve as a Vice-President of the Commission, to ensure the consistency of the Union's external action. [FN92] As was the case with the draft Constitution, the position again combines the current position of High Representative for CFSP with that of the External Relations Commissioner. What is evident from this expanded language is again a desire by the drafters to not merely ensure cooperation on foreign policy matters, but align them, through the use of a single representative to whom the world can look for the EU's position on any given CFSP issue. Although it is true that the High Representative would still only be able to implement decisions agreed to by the Council, the power to speak with one voice on behalf of 27 European countries should not be underestimated. Such a voice would likely be heard over and above those of foreign ministers from smaller and less influential EU member states.
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A notable change in the Lisbon Treaty from the Consolidated TEU is the financial power accorded to the High Representative. Under an amended Article 28, administrative expenditures associated with CFSP are to be taken out of the Union budget. [FN93] The High Representative would thus be backed by the EU budget, providing that individual with a great deal more financial clout. [FN94] Moreover, the Treaty provides that the Council must implement procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy. [FN95] The intention of the drafters seemed to be to ease the implementation of foreign policy by making requisite funding more accessible. Furthermore, tasks not charged to the Union's budget would be funded from a pool of member states' contributions, the decisions concerning which would be made by qualified majority, and not unanimity. [FN96] When a task cannot be charged to the Union budget, the Council shall authorize the High Representative to use the fund. [FN97] The High Representative is thus provided with access to finances he can use to implement the Union's policies, again increasing the position's authority on the world stage. The alterations introduced at Lisbon still fall short of granting the EU true foreign policy-making powers, however. According to one analyst, the giant leap has not been taken, as CFSP is still subject to the unanimity requirement for voting in most areas. [FN98] Thus the limited reach of qualified majority voting on some issues is not likely to have a significant impact on CFSP-making on the whole. Further, although the new High Representative has the power to implement foreign policy, he nevertheless has not been endowed with the power to make the foreign policy itself. [FN99] He is therefore still subject to the determinations of the Council, and under the new treaty, can still act only to carry out its decisions. The Lisbon Treaty, very recently signed by representatives from all of the member states, in many ways continues the foreign policy developments launched by the draft Constitution for the EU. It remains to be seen whether the changes will have any real impact on foreign policy-making in practice. VII. Foreign Policy Integration and Transatlantic Relations The degree to which foreign policy-making in the European Union is integrated can be a matter of critical importance to other major international players, particularly the United States. The U.S. has several key allies among EU member countries, the foreign policies of which could possibly be subsumed by a dominant EU policy. The last part of this note will seek to address the issue of whether the potential autonomy of a common foreign and security policy would contravene American interests within the European Union, and whether worries to this effect are well-founded. The ongoing war in Iraq and Western fears about terrorism present the principal current foreign policy framework within which the effect of a more integrated CFSP may be analyzed. Throughout the development of the Western world, the transatlantic relationship has been critical to the interests of Europe and the United States. The West shares a common ideology and politico-economic perspective; the interests of the two sides are thus more likely to converge on multiple policy levels. Any investigation of the developing relationship between the EU and the United States must take into account the fact that the latter remains the world's only nation-state with true superpower status. The possibility of a Union with a more unified foreign policy stance therefore has the potential to have a significant impact on this relationship. The terrorist attacks of September 11, 2001 awoke a need for action in response to global threats to security on both sides of the Atlantic, yet the responses were very different. While the United States preferred taking a hard line against terrorism, and acting unilaterally if need be, the Union as a whole seemed to prefer a more multilateral approach, partnered with a softer and more liberal method of dealing with se-
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curity matters. [FN100] This divergence is not dispositive, however; the spectrum of foreign policy responses of EU member states to 9/11 and the war in Iraq has been great, in spite of common values and common threats. Indeed, as one scholar put it, collective and individual responses to the Iraq war and the broader threats of terrorism and [Weapons of Mass Destruction] have revealed a Europe, not just in disagreement with the United States, but in disagreement with itself. [FN101] These differences have certainly taken a toll on a strengthened CFSP. At the start of the Iraq war, a statement issued by the Union asserted it would continue to contribute to the further strengthening of the international coalition against terrorism, declared its support for a central role for the United Nations, and stipulated it hoped to strengthen its own abilities in the context of the CFSP. [FN102] As such, the Union declared its preference for a multilateral approach, preferably through the UN, and definitely within the CFSP framework. However, with France firmly against participation in the Iraq war, and Britain sending in troops to aid the U.S. effort, it seemed any hope of meeting these goals, and particularly that of a unified EU position, had been scrapped. Instead, the message seemed to be that when it came to CFSP, it would work when all member states agreed on a position, and would fall apart when they did not. [FN103] In particular, France and Britain were not willing to permit others to decide their policy stances. [FN104] The sovereignty issue thus again reared its head; the member states' divergent views on Iraq left the world to conclude that this economic giant did indeed remain a foreign policy dwarf when put to the test. If ratified by all 27 member states of the Union, [FN105] the Lisbon Treaty has the potential to affect the vital relationship the Union has with the United States, as well as influencing future decisions concerning terrorism and conflicts like the ongoing war in Iraq. A more powerful High Representative on CFSP matters, with a budget to match, could certainly become an authoritative voice on the international scene; partnered with the expansion of QMV, there is the potential for him or her to assert EU foreign policy positions that all member states do not agree with. However, any such influences are merely speculative at this point, and will so remain until the new amending treaty has been implemented. The principal tool for foreign policy-making in the EU remains in the hands of the Council; the High Representative can only make a proposal after receiving a specific request from the Council, which will also vote on his proposed policy unanimously. [FN106] The Lisbon changes are thus not likely to have a significant impact on the current foreign policy stances of its more nationalistic member countries; indeed, decisions such as the British one to join the invasion of Iraq will still be possible in future. [FN107] VIII. Conclusion Approximately fifty years have passed since the first efforts at integration of foreign policies in the European Union were initiated, and as a sui generis regional organization, the EU has been paving its own way in the field. The EU has advanced in an unprecedented manner in the foreign policy-making arena, from mere attempts at political cooperation to a system within which foreign policy proposals are part of their own procedures within the EU institutions, and a high representative is appointed to represent the Union in the world. The speed with which such a structure has evolved, and the willingness of member states to move closer and closer together on these issues constitutes a novel occurrence in world affairs. Simultaneously, however, the question of foreign policy powers of the European Union presents a new and unusual predicament in international law. The possibility of a legal personality for the Union, enabling it to participate in international affairs as an entity, by signing treaties with other countries, is certainly an original one. However, many issues continue to hold the EU back from further significant progress in the field. Foreign-policy matters are still not justiciable in the European Court of Justice, nor would the most recent treaty make them so. Further, unanimous consent remains the rule on most issues, apart from a few limited areas. The High Representative's role in practice may be largely just that of a figurehead. Whether the
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amendments proposed by the Lisbon Treaty change the CFSP status quo remains to be seen. What is certain, however, is that the progression of foreign policy-making in the European Union has made significant advancements since its inception, and will continue to be a dominant issue with which the Union will be forced to struggle. [FN1]. Elizabeth Shaver Duquette, The European Union's Common Foreign and Security Policy: Emerging from the U.S. Shadow?, 7 U.C. Davis J. Int'l L. & Pol'y. 169, 171 (2001). Economic unification was the goal of the Treaty of Rome, and foreign policy-making was outside its scope; cooperation on issues of foreign policy was therefore left largely to intergovernmental decision-making. European Political Cooperation is not to be confused with Enhanced Political Cooperation, both of which are abbreviated EPC and both of which are discussed in this paper. To avoid confusion, only European Political Cooperation will be referred to as EPC. [FN2]. John Kavanagh, Attempting to Run Before Learning to Walk: Problems of the EU's Common Foreign and Security Policy, 20 B.C. Int'l & Comp. L. Rev. 353, 355 (1997). [FN3]. Ambassador Hugo Paemen, The European Union in International Affairs: Recent Developments, 22 Fordham Int'l L.J. S136, S143 (1999). [FN4]. Duquette, supra note 1, at 171. [FN5]. Kavanagh, supra note 2. [FN6]. Duquette, supra note 1, at 171. [FN7]. Dieter Kugelmann, The Maastricht Treaty and the Design of a European Federal State, 8 Temp. Int'l & Comp. L.J. 335, 338 (1994). [FN8]. Single European Act, tit. III, art 30(2)(a),(d), 1987 O.J. (L 169) (emphasis added). [FN9]. Id. art. 30(3)(a). [FN10]. Duquette, supra note 1, at 172. The primary goal of the Single European Act was the creation of a common market, which was accomplished by approximately the beginning of 1993. [FN11]. Kavanagh, supra note 2, at 356. [FN12]. Paemen, supra note 3. [FN13]. Duquette, supra note 1, at 172. [FN14]. Kugelmann, supra note 7. [FN15]. Britain, Denmark, Greece, Ireland, Portugal, and Spain had joined the original six founding member states as the organization expanded throughout the 1970s and 1980s. [FN16]. The EEC, ECSC, and Euratom, together called the European Communities were three organizations created in the 1950s, when the original six member states of the EEC decided to set up a joint decisionmaking procedure by combining their economic resources. The first pillar is thus also dubbed the Community Pillar. [FN17]. Douglas Hurd, Developing the Common Foreign and Security Policy, 70 Int'l Aff. 421, 422 (1994).
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[FN18]. Id. [FN19]. Treaty on European Union, tit. V, art. J.5(2), Feb. 2. 1992, 1992 O.J. (C 191) 59 [hereinafter TEU]. The Presidency was to be assisted by what was known as the Troika: the previous and next member states to hold the EU Presidency. The provision for use of the Troika was removed by the subsequent Amsterdam Treaty, in 1997. [FN20]. Id. arts. J.5(3), J.7. [FN21]. Michael E. Smith, Understanding Europe's New Common Foreign and Security Policy: A Primer for Outsiders (Inst. on Global Conflict and Cooperation, Policy Paper 52, 2000). The EU Presidency is currently a position rotating among the member states, held by each state for a period of six months. Although the Presidency plays a role in the CFSP process, no such position is envisioned in matters falling under the Community Pillar. [FN22]. Id. [FN23]. Helene Sjursen, The Common Foreign and Security Policy: an Emerging Voice in International Politics? 7 (Arena Working Papers WP 99/34, 1999), available at http://www.arena.uio.no/publications/wp99_34.htm (last visted Mar. 22, 2008). EU institutions are organized into departments known as Directorates-General, or DGs. Each DG is responsible for a particular policymaking area, such as External Relations, Health and Consumer Protection, Energy and Transport, or Competition (to name only a few). For a complete list of DGs and Services, see European Commission: Directorates-General and Services, EUROPA, available at http://ec.europa.eu/dgs_en.htm (last visited Mar. 21, 2008). [FN24]. TEU, supra note 19, art. J.1(2). [FN25]. Id. arts. J.3(1), J.2(2). [FN26]. Smith, supra note 21. [FN27]. Denis Chaibi, The Foreign Policy Thread in the European Labyrinth, 19 Conn. J. Int'l L. 359, 375-76 (2004). [FN28]. Id. [FN29]. Kugelmann, supra note 7, at 345. [FN30]. Smith, supra note 21. [FN31]. Id. [FN32]. Koen Laerts, The Constitution for Europe: Fiction or Reality?, 11 Colum. J. Eur. L. 465, 474 (2005) . [FN33]. Paemen, supra note 3. [FN34]. Duquette, supra note 1, at 173. [FN35]. Id. [FN36]. Id. at 173-74.
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[FN37]. Id. [FN38]. Sjursen, supra note 23. [FN39]. Id. [FN40]. Id. [FN41]. TEU, supra note 19, art. 26. [FN42]. Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, tit. V, art. 13(2), 1997 O.J. (C 340) [hereinafter Treaty of Amsterdam]. [FN43]. Smith, supra note 21. [FN44]. Id. [FN45]. Id. [FN46]. Paemen, supra note 3, at 144. [FN47]. Smith, supra note 21. As Smith points out, such statements could paralyze Union decision-making. [FN48]. Id. [FN49]. Duquette, supra note 1, at 187. [FN50]. Treaty of Amsterdam, supra note 42, art. J.14 (TEU Article 24(1)). [FN51]. Id. [FN52]. Duquette, supra note 1, at 187. [FN53]. Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, art. 24(2), Mar. 10, 2001, 2001 O.J. (C 80) [hereinafter Treaty of Nice]. [FN54]. Id. art. 24(3). [FN55]. Id. art. 24(1). [FN56]. Enhanced Cooperation, EUROPA -Glossary, europa.eu/scadplus/glossary/enhanced_cooperation_en.htm (last visited Feb. 27, 2008). [FN57]. Treaty of Nice, supra note 53, art. 27a(1). [FN58]. Id. art. 27b. [FN59]. Id. art. 27d. [FN60]. Id. art. 27c. [FN61]. Id. art. 27e. http://
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[FN62]. Ian Ward, The Challenges of European Union Foreign and Security Policy: Retrospective and Prospective, 13 Tul. J. Int'l & Comp. L. 5, 19 (2005). [FN63]. Mathias Jopp, CFSP Decision-Making and Procedures for Enhanced Cooperation, Seminar on Capacity and Actor building: Which Instruments and Institutions does the EU need to enhance its Capacity to act with regard to its Trade, economic Cooperation and foreign, Security and defence Policy? (Apr. 4-5, 2003), available at http://www.swp-berlin.org/common/get_document.php?asset_ id=703 (last visited Mar. 22, 2008). [FN64]. The term Consolidated Treaty on the European Union, or simply Consolidated TEU is used to refer to the Treaty on European Union (TEU) as drafted at Maastricht and amended by subsequent treaties, including those of Amsterdam and Nice. [FN65]. Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia joined in 2004, while Bulgaria and Romania became EU members in 2007. [FN66]. Peter E. Herzog, Treaty Establishing a Constitution for the European Union, 1-3 Smit & Herzog on the Law of the European Union 3.15 (Matthew Bender & Co., 2006). [FN67]. Id. [FN68]. Id. [FN69]. Laerts, supra note 32, at 473. [FN70]. Treaty Establishing a Constitution for Europe, art. I-7, Dec. 16, 2004, 2004 O.J. (C 310) 13 [hereinafter Draft Constitution]. [FN71]. Id. at art. III-303. [FN72]. James G. McLaren, Europe's Efforts to Develop an Autonomous Defense Capability, a Constitution for Europe, and the Implications for NATO, 11 Colum. J. Eur. L. 523, 537 (2005). [FN73]. Id. [FN74]. Draft Constitution, supra note 70, art. III-294(2). [FN75]. Id. [FN76]. Herzog, supra note 66. [FN77]. Draft Constitution, supra note 70, art. III-296(2). [FN78]. Herzog, supra note 66. [FN79]. Laerts, supra note 32, at 475. [FN80]. Herzog, supra note 66. [FN81]. McLaren, supra note 72, at 540-41. [FN82]. Draft Constitution, supra note 70, art. III-300(1). [FN83]. Id.
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[FN84]. McLaren, supra note 72, at 541. [FN85]. Draft Constitution, supra note 70, art. III-300(2)(a)-(c). [FN86]. Id. art. III-300(3). A decision to apply QMV in other situations than those listed in the Article would require a unanimous vote by the European Council. [FN87]. McLaren, supra note 72, at 541; see also Draft Constitution, supra note 70, art. III-300(2). [FN88]. McLaren, supra note 72, at 533. [FN89]. Id. [FN90]. Q&A: The Lisbon Treaty, news.bbc.co.uk/2/hi/europe/6901353.stm. BBC News, Dec. 13, 2007, http://
[FN91]. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, art. 34(b)(i), Dec. 3, 2007, 2007 O.J. (C 306) [hereinafter Lisbon Treaty]. [FN92]. Id. art 9e(4). [FN93]. Id. art 47(a). [FN94]. Steven Mulvey, A Close Look at the Reform Treaty, BBC News, Aug. 3, 2007, http://news.bbc.co.uk/2/hi/europe/6928737.stm. [FN95]. Lisbon Treaty, supra note 91, art 46(d)3. [FN96]. Id. [FN97]. Id. [FN98]. Paul Reynolds, How Spin Muddies EU Foreign Policy Debate, BBC News, Jun. 24, 2007, http://news.bbc.co.uk/2/hi/europe/6235152.stm. [FN99]. Id. [FN100]. Ward, supra note 62, at 37. [FN101]. Id. at 41, citing Richard Sinkin, The EU and US: From Cooperation to Rivalry, 26 Eur. Integration 93, 96 (2004). [FN102]. EU statement on Iraq, BBC News, Mar. 21, 2003, http:// news.bbc.co.uk/2/hi/europe/2871773.stm. [FN103]. Paul Reynolds, Analysis: Widespread Iraq fallout, BBC News, Mar. 18, 2003, http://news.bbc.co.uk/2/hi/middle_east/2862449.stm. [FN104]. Id. [FN105]. As of the date of the writing of this paper, only the parliaments of Hungary, Malta, and Slovenia have voted on the treaty's ratification. The legislatures of all three countries voted in favor of passage. [FN106]. Reynolds, supra note 98.
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[FN107]. Id. 16 Mich. St. J. Int'l L. 691 END OF DOCUMENT
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Columbia Journal of European Law Winter, 2005/2006 Essay/Book Review IS EUROPE AN AGING POWER WITH GLOBAL VISION? A TALE ON CONSTITUTIONALISM AND RESTORATION Achilles Skordas [FNa1] Copyright 2005 by European Legal Studies Center, Columbia University; Achilles Skordas Neil Walker, ed., Sovereignty in Transition, Hart Publishing, Oxford-Portland Oregon, 2003. Pp.xii, 556. Christian Joerges, Inger-Johanne Sand & Gunther Teubner, eds., Transnational Governance and Constitutionalism, Hart Publishing, Oxford and Portland, Oregon, 2004. Pp. xv, 386. America is therefore the land of the future, where, in the ages that lie before us, the burden of the World's History shall reveal itself.... It is a land of desire for all those who are weary of the historical lumber-room of old Europe. Napoleon is reported to have said: Cette vieille Europe m'ennuie. It is for America to abandon the ground on which hitherto the History of the World has developed itself. What has taken place in the New World up to the present time is only an echo of the Old Worldthe expression of a foreign Life.... Dismissing, then, the New World, and the dreams to which it may give rise, we pass over to the Old Worldthe scene of the World's History. Georg Wilhelm Friedrich Hegel [FN1] The rejection of the Constitutional Treaty in the French and Dutch referendums is a cause for reflection on the further development of European constitutionalism and on the prospects of European power. The two books under review facilitate this reflection in an exemplary manner, by analyzing the complex relationship among government, governance, and sovereignty. In light of the recent developments, the differing standpoints of the authors seem as interconnected through a common, even if sometimes almost invisible, thread: namely, that the institutional edifice of the political as evolutionary achievement of modernity (in the form of government or full sovereignty), cannot and should not be conceived as the location of a hierarchical society steering on a supranational level. An eventual failure of political integration should thus not be taken to mean the beginning of the end of the European integration project. On the contrary, it stresses the need to return to the origins and restore and complete the economic constitution that has been so successful in Europe for half a century. If the European Union gives up its pharaonic superpower ambitions, it can still be an idiosyncratic aging power with finesse, wisdom, vision, and a sense of History. The two books offer the reader the opportunity to imagine an alternative and more realistic future for Europe, than that of political constitutionalism that dominated public discourse in the last years. I. ON VISION, DECLINE, AND CONSTITUTIONALISM A. B. Europe in the Era of Globalization Constitutional Pluralism European Style 243 243 248
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C. II.
Origins and foundation
249 253 253 256 259 262 263
ADOPTING FUNCTIONAL GOVERNANCE A. B. C. From Government to Governance Legitimacy Case Studies
III.
ON GOVERNMENT AND SOVEREIGNTY A. International and Supranational Perspectives The Constitutional Practice in the EU-15 Sovereignty in the New CEE Members Sovereignty in America: A Possible Path for Europe?
B. C. D.
266 270 272
IV.
THE RESTORATION: WHAT MODEL FOR EUROPE? A. B. The EU as an Unconventional Power The Lisbon Agenda: Implementing the Economic Constitution State Sovereignty's Ambivalent Comeback 1. The Revision of the Growth and Stability Pact The Rejection of the Draft Services Directive Taxation
274 274 278
C.
280 280
2.
282
3. D. On foreign Policy 1.
284 285
EU as Global
285
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Peacekeeper 2. Integrative Neighbourhood Policies 286
V. VI.
ON EUROPEAN REGIONAL GOVERNANCE CONCLUSION
288 291
I. ON VISION, DECLINE, AND CONSTITUTIONALISM
A. Europe in the Era of Globalization The December 2004 Report of the United States National Intelligence Council's 2020 Project Mapping the Global Future under the headline Aging Powers, considers Europe as an aging power with strength. However, the Report raises serious doubts as to the capacity of the European Union to reform itself, although it recognizes its capacity to become, under conditions, a model for regional and global governance: By most measuresmarket size, single currency, highly skilled work force, stable democratic governments, unified trade bloc, and GDPan enlarged Europe will have the ability to increase its weight on the international scene.... The extent to which Europe enhances its clout on the world stage depends on its ability to achieve greater political cohesion .... Defense spending by individual European countries, including the UK, France and Germany is likely to fall further behind China and other countries over the next fifteen years. Collectively these countries will outspend all others except the US and possibly China .... While its military forces have little capacity for power projection, Europe's strength may be in providing, through its commitment to multilateralism, a model of global and regional governance to the rising powers, particularly if they are searching for a Western alternative to strong reliance on the United States. For example, an EU-China alliance, though still unlikely, is no longer unthinkable .... Either European countries adapt their work forces, reform their social welfare, education, and tax systems, and accommodate growing immigrant populations (chiefly from Muslim countries) or they face a period of protracted economic stasis that could threaten the huge successes made in creating a more United Europe. [FN2] And then, under the headline Could Europe Become a Superpower? the Report draws a rather pessimist picture of European economy and stresses the difficulties the Member States face by implementing economic reforms: Europe's future international role depends greatly on whether it undertakes major structural economic and social reforms to deal with its aging work-force problem .... The experts felt that the current welfare state is unsustainable and the lack of any economic revitalization could lead to the splintering or, at worst, disintegration of the European Union, undermining its ambitions to play a heavyweight international role. The experts believe that the EU's economic growth rate is dragged down by Germany and its restrictive labor laws. Structural reforms thereand in France and Italy to lesser extents remain key to whether the EU as a whole can break out of its slow-growth pattern. A total break from the post-World War II welfare state model may not be necessary .... Experts are dubious that the present political leadership is prepared to make even this partial break, believing a looming budgetary crisis in the next five years would be the more likely trigger for reform .... A federal Europe unlikely in the 2020 timeframeis not necessary to enable it to play a weightier international role so long as it can begin to mobilize resources and fuse divergent views into collective policy goals. Experts believe an economic leap forwardstirring renewed confidence and enthusiasm in the European projectcould trigger such enhanced international action. [FN3]
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Therefore, if Europe is indeed an aging power, this does not mean that it is deprived of the capacity to be a great power in the age of global society. [FN4] In 1917, Oswald Spengler, the philosopher of decline, formulated the ultimate strength of an aging civilization in this apocalyptic gothic parlance: At last, in the grey dawn of Civilization, the fire in the soul dies down. The dwindling powers rise to one more, half-successful, effort of creation, and produce the Classicism that is common to all dying Cultures. The soul thinks once again, and in Romanticism looks back piteously to its childhood; then finally, weary, reluctant, cold, it loses its desire to be, and, as in Imperial Rome, wishes itself out of the overlong daylight and back in the darkness of proto-mysticism, in the womb of the mother, in the grave. [FN5] But let us be more optimistic for a moment. Drawing on Wilhelm Grewe, Europe's influence on global society of the post-Westphalian system would find its expression in the ideas, vision, and culture, through which European peoples and elites conceptualize the world, just as it has happened with dominant powers throughout the history of modernity. [FN6] European conceptions on sovereignty, government, and governance are major elements of such a strategic vision. The two recent books by Neil Walker, ed., Sovereignty in Transition, and by Christian Joerges, Inger-Johanne Sand, and Gunter Teubner, eds., Transnational Governance and Constitutionalism, are representative of European-rooted worldviews that reinterpret the world of globalization through the lenses and the experience of the European integration process. For Christoph Mllers, the European Union ... arguably is the avant-garde of legal globalisation, [FN7] while Christian Joerges is more explicit: These developments, which were particularly visible in the 80s, were stimulated by the Europeanisation and globalisation processes, which have eroded the regulatory grip of the states on national societies while, at the same time, establishing modernised transnational regulatory schemes. The processes of deregulation and re-regulation in Europe had to involve national and European public and private actors; this is because they were intended to establish truly transnational governance structures. [FN8] The rejection of the project of a European Constitution through the referendums in France and the Netherlands [FN9] and the ensuing crisis opens a period of Restoration with major implications on the future of the Union in global society. In continental Europe, we usually define as the Restoration the period of constitutionalism between 1815-1830, when the Monarchy was restored after the end of the Napoleonic wars and the defeat of imperial-revolutionary France. The analogy is not taken here to mean simply the return to a previous state or situation. Rather, it indicates the consequences of a movement obstructing the full emergence and formation of a political polity. The French Revolution consolidated the constitution of the French nation into political representation through popular sovereignty and generated similar dynamics in other European territories and regions. Carl Schmitt described the counter-developments of the period of Restoration, when the ruling elites, in particularly in Germany, tried to revive the medieval concept of a constitutional Charta as an agreement-treaty between the ruler and the estates. The ensuing tension between the monarchical principle and the impossibility of recognizing the people as a source of legitimate political power, led to the fragmentation of the unity of political representation and to the provisional halt of an evolution towards the consolidation of polity and demos at the level of the nation-state. [FN10] The project of a Constitution for the European Union represents the effort of the European political elites to initiate a process towards the representation of the political unity, not in terms of a single European people, but at least in terms of a political Europe. The rejection of the project leads, at least for the time being, to the restoration of the economic constitution of the Union and to the consolidation of the functional polities at the expense of the political. In fact, the European political system had never reached the sort of unity that can be expressed through popular sovereignty. Thus, Restoration should be conceived as the end of a project and not as a real counter-revolution, and as theprovisional?victory of the existing structures of the Union. These structures are distinguished by the relative prevalence of a center of regular and well-structured economic rationality over a periphery of fragmented political communication. The evolution of the Union's legal structures and the rejection of the political Constitution can be interpreted and explained through recourse to the fundamental no-
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tions of sovereignty, government, and governance. The two books under review offer valuable guidance to this complex conceptual world and can explain why the government envisaged by the Constitutional Treaty failed so dramatically. Both books deal with modern challenges to traditional legal concepts related to government and governance. Sovereignty in Transition includes twenty-one contributions and is representative of the broad spectrum of ideas and theories that surround the discourse on sovereignty. The various perspectives are indicative of the pressure exercised upon this foundational concept of international and constitutional law in the age of globalization. Transnational Governance and Constitutionalism, with nineteen chapters including essays and comments, takes up a different paradigm, namely the various types of transnational governance and functional regimes that transcend state-centered government. Europe as a new type of government/governance is central in both books, explicitly in the first, more implicitly in the second. The books are very timely, in particular at the present moment of a major European political stalemate and soul searching. Now, more than ever, it is necessary to clarify concepts and choose among existing alternatives. In that sense, the contributions offer indispensable guidance in the effort to understand the European Union's realities. At the bottom line, two alternative concepts of constitutionalism appear in the above books, based on the government/governance distinction. This conceptual axis lies at the heart of all analyses and approaches. However, although it is not prima facie possible to clearly separate the two perspectives due to the complexities of the European system, there is a foundational decision concerning the relationship between the political and the economic in the Union. This issue should not be confused with the different possible forms the political system in the Union may assume, or with the structure or state of European economy. It rather refers to the arch, to the Grundnorm of the European system. This constituent decision is political and groundless in its essence, but the constituted entity can have either established fully operative political and economic systems, or be built upon an economic center and a political periphery. The European Union [EU] constitutionalism traditionally evolved through the implementation of the Treaties and the European Court of Justice [ECJ] jurisprudence on the lines of the latter alternative. The project of a European Constitutional Treaty can be conceived as an attempted smart coup d'tat by the European political elites to take control of the system and restructure it in the long-term along the lines of a pan-European sovereigntism. The argument that this was not the case and that the Constitutional Treaty was not really a constitution but just a treaty is self-defeating: then, why the noise? In fact, the intended effect of the adoption of the Constitution would be to limit the spontaneity of European governance and steer society towards allegedly more predictable lines under the guidance of a fully integrated, albeit democratically deficient, regional political system. The resulting turbulences and the turn to restoration do not testify to the breakdown of integration as such. Without prejudice to the individual preferences or motives of the voters of the referendums, or to the final outcome of the current deep antagonism on Europe's alternative futures, European governance needs now to strengthen its original internal market constitutionalism and take the Lisbon agenda seriously. [FN11] The new European governance's post or late-modern structures trigger thus a debate whose significance extends beyond the borders of the European Union. The question is whether terms such as transnational governance or constitutional pluralism can adequately explain the particularities of European integration, or even global societybuilding, and give hints for the management of problems in a rapidly synchronized world. Thus, the two books can be read as giving an excellent account, not only on the evolution of key legal concepts, but on what European legal scholars consider to be the future of Europe-style governance, or theory on governance. In the immediate aftermath of the referendums, they can be read in the horizon of a renewed and necessary debate on European constitutional-
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ismand the position one adopts on the essence of the political as an essential prerequisite to understand the particularities, strengths, and weaknesses of an allegedly aging power. The purpose of the present review is to contribute to the transatlantic dialogue by observing Europe's rapidly mutating socio-legal self-perceptions, but without undertaking a general study on constitutionalism. This review also does not seek to summarize the essays, but rather to read the contributions selectively, structuring the different positions around the key concepts of EU constitutionalism and its origins (in Part I), functional governance (Part II), and government and sovereignty (Part III). In Part IV, the authors turn us to the discussion of restoration and integration. Taking the opportunity from their paradigms, I will pick up the debate on the implementation of the economic constitution of the Union and the tasks lying ahead. The question is whether their standpoints can inspire a more specific description of the European Union in the contemporary world. At the bottom line, the position developed in this part of the review is that the optimal response of the European political elites to the current crisis would be to complete the establishment of the internal market, to pursue further neighborhood integration policies and peacekeeping tasks, and continue the enlargement of the Union. In Part V, the EU is described as a system of regional governance. The enhanced cooperation among Member States and the Bologna Process for a European Higher Education Area are examples for a more flexible and effective integration in comparison to a centrally planned process. A future beyond political constitutionalism may prove to be more realistic than the plans for the transformation of Europe into a traditional dominant power. B. Constitutional Pluralism European Style Already in the first report of Sovereignty in Transition, Neil Walker [FN12] describes the fundamental features of what he calls constitutional pluralism as a broad paradigm serving to understand the realities of the European Union: In the present chapter, the particular understanding of the world that provides the theoretical context for discussion of sovereignty is that of constitutional pluralism. Constitutional pluralism, which overlaps with at least some more general legal pluralisms, is a position which holds that states are no longer the sole locus of constitutional authority, but are now joined by other sites, or putative sites of constitutional authority, most prominently (though by no means exclusively) and most relevantly for present purposes those situated at the supra-state level, and that the relationship between state and non-state sites is better viewed as heterarchical rather than hierarchical. [FN13] He subsequently defines the notion of sovereignty in the framework of constitutional pluralism: Sovereignty may be defined as the discursive form in which a claim concerning the existence and character of a supreme ordering power for a particular polity is expressed, which supreme ordering power purports to establish and sustain the identity and status of the particular polity qua polity and to provide a continuing source and vehicle of ultimate authority for the juridical order of that polity. [FN14] He then proceeds to describe the four main characteristics of what he calls late (not post-) sovereignty: the continuity from older forms of sovereignty, the distinctiveness from them, the irreversibility of the evolution, excluding a return to the one-dimensional system of states, and the transformative potential of late sovereignty. [FN15] The core element of Walker's concept is that ultimate authority needs not to be defined in terms of territoriality any more: In the new post-Westphalian order ... with the emergence of functionally-limited polities which do not claim comprehensive jurisdiction over a particular territory it becomes possible to conceive of autonomy without territorial exclusivity to imagine ultimate authority, or sovereignty, in non-exclusive terms. Crucially, the development of functionally limited claims is self-reinforcing to the extent that it allows of the possibility of territorial overlap without subsumption. To be sure, the boundaries between different polities are still deeply contested.... Yet even so, the advent of functionally limited polities co-existent within the same ter-
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ritorial space means that the assertion of authority around a disputed boundary does not necessarily impugn the integrity of the other polity qua polity. So, for example, to the extent that the claim to sovereignty of the European Union over a range of competences previously within the exclusive jurisdiction of the fifteen member states is plausible and effective, this does not seriously question the continuing sovereignty of the fifteen member states as regards their remaining areas of territorial jurisdiction. [FN16] C. Origins and Foundation The next question concerns the origins of the European constitutional structure. As a particular European evolution, first comes the question of secularization of authority and then the issue of the origins of EU constitutionalism. At least since Carl Schmitt's famous Politische Theologie, published in 1922, legal theorists know well the subject God and sovereignty. Govert Buijs takes up this question [FN17] and reviews Schmitt's thesis through what he calls an archaeology of sovereignty, [FN18] dating back to the times of the Sumerian Kings, Rome, and the European Middle Age. The author reformulates Schmitt's analysis on the secularization of a theological concept by stating, Sovereignty is not in itself a secularized theological concept, but it is a political concept used specifically to carry out, to execute, the secularization of the political sphere. So I suggest tentatively that the development of a new concept was needed to articulate a new conception of political order. [FN19] Buijs explains that the sovereignty's formula rex est imperator in regno suo [FN20] testifies for the secularization of the sovereignty. For the author, it is the papacy's claim for plenitudo potestatis (fullness of power, both spiritually and temporally) that leads to the emperor and the king losing their universal claims. [FN21] The author describes this process in these terms: This loss of universality corresponds to the breaking down of the symbolism of the chain of being according to which the cosmos is one hierarchically ordered whole with one highest, divine centre .... The universality that can be articulated on the basis of a radical transcendence of God is not that of one cosmic hierarchy that binds God to the world but it is the universality of equidistance: all that exists has the same distance, or for that matter the same closeness, to the transcendent God. There is no omphalos, no privileged divine centre of the world. The world is not a hierarchy but a co-ordinative whole of many regna .... The sovereign is under God but at the same time there is no extra-political, independent representation of God left .... God is particularised. [FN22] Paradoxically, the theological origins of sovereignty demonstrate the heterarchical structure of global order. If the king is emperor in his own realm, he exercises jurisdiction over a territory and not absolute divine power shaped as universal order and reason. Moreover, and following the theory of sovereignty in one's own sphere this territorial jurisdiction is inherently limited: Christian theology has opened the door to constitutionalism. Extensive reference needs to be made in Hans Lindahl's contribution that can be described as a thorough reflection on representation of the polity, self-determination, and sovereignty. [FN23] The author examines how unity is generated from plurality and how it is represented. He formulates the initial problem as follows: Why this political unity and not another? At issue here is not simply opposing unity and plurality, as many contemporary interpretations of sovereignty would have us believe, but understanding the conditions under which political unity can and ought to be instituted, given a plurality of (competing) views of the good. [FN24] In the example of theories of deliberation, he asks how the basic problem-solving deliberative unit is constituted and states, Deliberation presupposes a prior act of inclusion and exclusion, which brings about the fundamental political distinction between citizen and alien. [FN25] He then rejects the opposition of command and deliberation and seeks to describe the necessary linkage between them: This insight has a far-reaching implication for the standard picture's opposition between a command and
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deliberation. Indeed, does not an immanent critique of social contract theory reveal that a command, defined as a claim about unity that escapes justification through deliberation between all those concerned, not only survives in the foundation of every polity, democratic or otherwise, but proves to be a necessary condition for its foundation? Is not a command ... a necessary condition for deliberation? Yet more sharply, if there is no deliberation without a prior command, is deliberation ever purely deliberation, even when the participants engage in it with a good will? [FN26] For the author, if the deliberative political unit is established by some sort of command in the above sense, then originalism reifying the people as a pre-legal unity can be discarded as metaphysics of presence. [FN27] With respect to the European integration, the author remarks that, although the Treaty of Rome spoke of the peoples of Europe, the plurality is represented by the reference to Europe, as an already existing community. He explains as follows the process of sovereign command that led to the establishment of the Union: [W]hile the six founding member states claimed to represent European unity, they had received no mandate from all possibly affected parties, whether states or individuals, to found a European Community. Bluntly, the founding states are the self-proclaimed representatives of European unity .... Accordingly, there is a core of irreducible groundlessness at the heart of the EU, a representational claim that cannot be justified in terms of deliberation between all those concerned .... The standard picture notwithstanding, a command ... proves to be a necessary condition for deliberation in the EU and, more generally, for the very possibility of European integration .... The Treaty brings about a normative closure by opting, amongst others, for a market economy: the common market, it is claimed, represents the common good. Thus, the founding act of the European polity is thoroughly ambiguous .... [FN28] [T]he impetus that is required to set something new on its way always involves a rupture, a breach, and, in this sense, an inevitable moment of violence. To seize and to commence are welded together into one and the same performative force. These two features, I would argue, determine the exercise of the constituting power as an act of sovereignty. My key contention is, therefore, that the standard picture's opposition between commands and deliberation systematically conceals the structure of the exercise of the pouvoir constituant as an act of seizing the initiative. In terms of the genesis of the European polity, the standard picture cannot even begn to make sense of the fact that the enactment of the Treaty of Rome and the ECJ's Van Gend en Loos and Costa v. ENEL rulings seize the political initiative and are, as such, acts of sovereignty. [FN29] In the light of this reasoning, Lindahl formulates the paradox of self-determination: Not only does this suggest ... that there is a core of irreducible groundlessness at the heart of every political community, but also that no polity is contemporaneous with its own genesis .... In particular, these features call attention to a peculiar ambiguity in the hyphen between self and determination. For if no polity, including the EU, is contemporaneous with its own genesis, does this not mean that there is no determination by a self that is not preceded and conditioned by the determination of a self? ... [T]he logic of political representation suggests that while every polity necessarily refers to its origin as its own, this origin remains forever alien to it. [FN30] The command theory has parallels in international law. According to the international jurisprudence and in application of the principle of uti possidetis, in the case of dissolution of a state or devolution of power, the right of self-determination is exercised within the frontiers of the former colonial administration, or within the former internal administration boundaries. [FN31] The polity is here constituted by a principle of international law and requires an act of recognition by the international community. This recognition is not just mature, or pre-mature, [FN32] but is in fact constitutive, even if provisional, of the polity itself. The question of recognition of the self-determination unit should not be confused with the recognition of a state: Bosnia-Herzegovina was recognized as a selfdetermination unit, i.e., as a polity that was entitled to decide on the establishment of a state, before the state had taken shape. Indeed, the eventual recognition of a state was dependant upon a previous decision of the polity itself that had to take place according to the further rules that the third states had recognized as valid. [FN33] Therefore,
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the breakdown, or the progressive breakdown, of a state leads to a constitutional moment: the international jurisprudence has seized the initiative and declared that, under these circumstances, a certain population is recognized as a decision-capable polity on a provisional basis. This polity can either decide to establish itself as a people with an independent state, or to dissolve itself into another polity within the borders of another state. In Lindahl's terms, the exercise of an alleged right to self-determination appears as xenonomous. However, the emergence of the self seems to be sparked by a clash between two poles: on the one hand, the pouvoir constituant as claimed by some pre-existing indigenous political organizational structure(s) expressing an alleged collective will, and on the other, international recognition: the failed vision of Greater Serbia, that ended up in the provisional and still inconclusive reality of rump Serbia and Montenegro, offers here a good example. In a provisional conclusion, the European integration process was initiated by the founding six members that appropriated the European identity, and organized the association following the principle of constitutional pluralism. This system can be analyzed through the distinction government/governance, which, in the era of globalization, has assumed a significance beyond the borders of the European Union. II. ADOPTING FUNCTIONAL GOVERNANCE In Transitional Governance and Constitutionalism, the authors describe the transition from government to governance, but look at the evolution from the standpoint of the latter. We can distinguish here three sets of questions: (A) the transition from government to governance and the respective versions of constitutionalism, (B) the legitimacy of governance, and (C) a number of case studies that deal with different fields of practice. A. From Government to Governance Erik Oddvar Eriksen and John Erik Fossum, [FN34] as well as Michelle Everson in a response, [FN35] examine the European Union's hesitation between government and governance, since a clear-cut distinction is very difficult to draw in practice: Government refers to the political organization of society, or in more narrow terms, to the institutional configuration of representative democracy and of the state. The state is a political institution and an organizational form, whose basic rationale is to establish and maintain order and security. [FN36] Governance is not political rule through responsible institutions, such as parliament and bureaucracywhich amounts to governmentbut innovative practices of networks, or horizontal forms of interaction. [FN37] And then: The term transnational governance is thus used to describe the emergence of new forms of legal and/or political collaboration of public and private actors at international and regional levels. Here, the terms governance and transnational, are conjoined to create a conceptual apparatus to caption the far more fluid postWestphalian world, a world where territoriality and functionality do not cohere .... Pluralism and disaggregation are seen as conducive to democracy in a multi-centred world of diverse non-governmental actors. [FN38] The authors argue that although the EU is often described in terms of transnational governance, [FN39] it can be considered as a government in the making in a system of deliberative transnationalism. [FN40] They consider that the Union has indeed elements of government, such as the comitology as a new political order, the European Parliament as government installer, the ECJ as a quasi-constitutional court, or the Charter of Fundamental Rights and the draft Constitutional Treaty. [FN41] Michelle Everson comments that indeed the EU is characterized by functional and normative disassociation. In
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the first case, and arguing with Luhmann's categories, European economic consolidation is accompanied by increased disjunction within an intermeshed triad of legal functions of expectation-building, conduct-control and conflict-resolution. The author comments that nation-state gathers the three functions under the umbrella of the national constitution, but that globalization and European integration have seen the three functions increasingly apportioned amongst different levels of government/governance within post-national, multi-level governance structures. For Everson, normative disassociation expresses the undermining of law's reflexive sovereignty, or, its dual legitimised genesis in, and concurrent legitimation of, the modern democratic constitutional state. [FN42] Everson characterizes the Eriksen/Fossum position in terms of modernity biting back (!) [FN43] The Teubner/Vesting and Sand/Fischer-Lescano contributions on transnational societal constitutionalism focus on the theoretical fundamentals of the overall project. In the systems theory approach, Teubner views societal constitutionalism in global society as an alternative to state-centered constitutionalism. [FN44] He formulates his core position as follows: If ... one abandons the state-centering of the constitution, then the real possibilities of constitutionalization without the state become visible .... The thesis is: the emergence of a multiplicity of civil constitutions. The constitution of world society does not come about exclusively in the representative institutions of international politics, nor can it take place in a unitary global constitution which overlies all areas of society, but, instead, emerges incrementally in the constitutionalisation of a multiplicity of autonomous sub-systems of world society. [FN45] Teubner does not consider constitutionalism as limited in norming state organization and human rights, but also as being relevant in other spheres of societal action and communication: Law-making also takes place outside the classical sources of international law, in agreements between global players, in private market regulation by multi-national concerns, internal regulations of international organisations, inter-organisational negotiating systems, world-wide standardisation processes that come about partly in markets, and partly in processes of negotiation among organisations. [FN46] The author uses the terms polycentric globalisation and creeping constitutionalisation. [FN47] The lex mercatoria is the archetypal model of global law without a State. [FN48] In this critique, Thomas Vesting distinguishes between the weak and the strong conception of societal constitutionalism. [FN49] He is open towards the former, which he understands as recourse of various global sectors to individual politico-institutional and legal elements of the various national constitutional orders. He is skeptical, however, to strong societal constitutionalism, if it should be compared to the rank it occupied in the nation-state context. [FN50] At the bottom line, he considers that the concept of the constitution is inherently related with the polity and the state and that, in global society, the term is confusing and vague and could only be maintained in the weak version. The author thus sees more appropriate to replace constitutional theory with legal theory. Inger-Johanne Sand follows a different systems-theoretical path. [FN51] Despite the author's distance from Teubner's societal constitutionalism, [FN52] the rationale is anchored in Luhmann's theoretical approach. For Sand, transnational governance supplements, rather than replaces, the concepts of government, nation-states, their sovereignty and institutions. Its conceptualization is a response to the need for a more comprehensive definition of governing. [FN53] Her main standpoint is very critical of the capacity of law and politics to deal with the complexity of functionally differentiated society: Law and politics are becoming overburdened both at national and at regional and international levels. Their instruments and institutions are not able to grasp and deal with vital parts of the dynamics of the systems of economy and science .... Societies which are dominated by complex technologies and other forms of specialised knowledge, have already aquired additional forms of public decision-making other than the political and legal forms. They do, however, lack some of the qualities of democratic participation, transparency, publi-
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city and accountability. Law and politics may, on the other hand, lack some of the necessary qualities of complexity. Part of the solution may lie in the more creative construction of structural couplings between these systems .... Thus, fragmentation, incoherence, pluralism and lack of co-ordination are probably unavoidable and should, as a consequence, be regarded as challenges. [FN54] Andreas Fischer-Lescano re-interprets Sand's position as constitutionalizing the politics of civil society, by working for a world societal law. [FN55] And then he further specifics his standpoint as follows: And the proposal of constitutionalisation of the politics of civil society then takes the decisive step as it also confronts the internet-community, the global networks in economics, science, health system, education and professions, with the imposition of a functional collectivity and imposes not only the duty to provide decision-making procedures but also collective legitimacy on them .... Global law will not, therefore, be repoliticised by traditional political institutions, eg, of quasi-parliamentarian nature, but within the various processes under which the law engages in structural coupling with highly specialized discourses. [FN56] B. Legitimacy Jens Steffek seeks the legitimacy grounds for functional governance. [FN57] He distinguishes legitimacy from mere acceptance, by stressing that international functional governance is a necessary arrangement that helps us solve political problems which can no longer be managed at the national level, but that this does not mean that it is normatively desirable. [FN58] Steffek seeks legitimacy beyond democracy, but also beyond mere functionalism. He assumes that functional international organisations can be supposed to rely on legitimating strategies that much more resemble those of bureaucracies than those of state governments. [FN59] His main standpoint is that effective functioning of international organizations or problem-solving capacity are not sufficient, and that rules and decisions are only regarded as legitimate when they are made in an appropriate fair way and when they are buttressed by reasons that can command assent. [FN60] He concludes as follows: The legitimacy basis of international institutions is not a static endowment which an organization might possess, but a discursive equilibrium that is always open to challenges .... Criteria such as procedural fairness and the rule of law beyond the state are empirical motives for citizens to support international governance and its organisations. Thus, there is something in between supranational democracy and functional output legitimacy. [FN61] In his response, Agustn Jos Menndez sharply criticizes this position and defends the standpoint that there is no legitimacy without politics. [FN62] He stresses that international governance cannot become legitimate unless it becomes participative. A nostalgic longing for functional international governance is the more obvious way of ignoring facts. [FN63] In that respect, there is an interesting exchange between Steffek and Menndez on the rationale of the Growth and Stability Pact. The former endorses the functional rationale pursued by the Commission and disapproves of the politicization of the excessive deficit question by the Council. [FN64] On the contrary, Menndez considers that the deficit problem cannot be managed by what he calls a technical judgment of the Commission, but that an overall assessment by the Council, as provided by the EC-Treaty, is necessary. [FN65] It was after the two contributions had been written that the European Court of Justice delivered its judgment on the legality of the Council's failure to take effective measures with respect to the deficits of Germany and France. The Court decided that the Council's conclusions adopted in respect of the French Republic and the Federal Republic of Germany respectively must consequently be annulled in so far as they contain a decision to hold the excessive deficit procedure in abeyance and a decision modifying the recommendations previously adopted by the Council under Article 104(7) EC-Treaty. [FN66] The Court also defined the essence of the political in the Council's competence with respect to deficit as follows: The objective of the excessive deficit procedure laid down in Article 104(2) to (13) EC-Treaty is to encourage and, if necessary, compel the Member State concerned to reduce a deficit which might be identified .... [FN67] As the Commission has pointed out, the responsibility for making the Member States
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observe budgetary discipline lies essentially with the Council. [FN68] Thus, the Court understands the political role of the Council as accessory to the economic rationale of the rules in question. However, the recent reform of the Growth and Stability Pact has strengthened the position of national decision-making. It is nonetheless questionable whether this is indeed supportive of the Union's power and of its economic constitution. [FN69] Alexia Herwig examines the risk assessment of genetically modified foodstuffs (GMOs) and bio-technology considering the role of science and public deliberation. [FN70] The crux of the controversy is, for the author: [W]hether the regulation of risk should be made more rational, effective, efficient and, in this way, transparent, or whether it should be more responsive to popular understandings of risk, and evaluations of costs and benefits. International risk regulation is thus often criticised as usurping democratic choices through undue reliance on science, and without itself being legitimate. [FN71] She also emphasizes the increased role of minority scientific opinions by risk regulation, in particular in the WTO Agreement on Sanitary and Phytosanitary Measures (SPS Agreement), because it fosters pubic deliberation: Because deliberation requires public justification and reason-giving, science undoubtedly has a pivotal role in making judgments more considered, and, in this sense, the SPS Agreement fosters deliberation. To the extent that minority scientific opinions have been recognised as constituting sufficient scientific evidence, regulatory diversity and joint deliberation about the best regulatory strategy are encouraged as WTO members may regulate risks whose existence has not been confirmed by all the members of the scientific community. In recognising minority scientific opinions as sufficient scientific evidence, the Appellate Body exhibits a sophisticated understanding of science as an evolutive process of discovery and validation. [FN72] The author makes a good point in that as the unequal distribution of wealth spoils' the fairness and justice of the social contract, so differences in scientific resources, differentiation of civil society and development affect the ability to participate in rational transnational discourses. [FN73] Thus, global society's asymmetrical structures raise a major question for theories of deliberative governance beyond the state. And then she touches the blind spot of scientific risk assessment: The contextualisation of science exposes a paradox: in order to be able to augment knowledge about risk and safety, scientific inquiry has to pay selective attention to a certain type of problem requiring it to ignore other lines of inquiry or harms. Which risks are well-researched may, however, also be the result of the availability of funds or research grants for certain types of problems. [FN74] She concludes that only truly open deliberative spheres can have any hope of producing legitimate outcomes. [FN75] Nanz responds to Herwig's concerns and doubts on the capacities of deliberative politics by supporting a Habermasian deliberative model. [FN76] Instead of deliberative spheres, she argues that the democratization of global governance arrangements will depend upon the creation of a transnational public sphere. [FN77] he further turns against functionalist-deliberative approaches in the following terms: Deliberation, understood as reasoning about how best to address a practical problem, is not intrinsically democratic: it can be conducted within (non-legitimised) cloistered bodies that make fateful choices, but are inattentive to the views or the interests of large numbers of affected parties without being connected to open public debate and practice. Unlike functionalists, who approach deliberation mainly from the empirical problem of successful norm implementation in a polity, Habermas views political deliberation from the normative perspective of the citizen. [FN78] Nanz concludes with the following concept of transnational democracy: With respect to democratisation, transnational civil society would have three particular tasks: to expose
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global rule-making to public scrutiny, to bring the concerns of citizens to the agenda of international organisations, and to empower the most disadvantaged groups of stakeholders to participate actively in political deliberation. [FN79] C. Case Studies Oren Perez's case-study [FN80] is representative of the idea of polycentric constitutionalism. The author argues that the trade-environment conflict cannot be resolved exclusively within the WTO framework or through any meta-universal principles, [FN81] but it requires polycentric solutions. He is critical of the practices and policies of the IMF that are due, in his diagnosis, to the Fund's weak cognitive apparatus and inappropriate knowledge-base, contributing to the unsatisfactory approaches towards environmental problems. [FN82] He proposes the inclusion of environmental themes and interests into the rationality of different systems and spheres of action that exercise competencies touching upon the trade-environment conflict, through the appropriate structural and organizational reform. His proposal to justify social or political goals by translating them into the language the respective constitutional system of transnational governance makes perfect sense [FN83] and is congruent with the theory of Fischer-Lescano and Teubner on auto-constitutional regimes. [FN84] Jochen von Bernstorff presents the main lines of the Internet regulatory system, [FN85] which is run by the Internet Corporation of Assigned Names and Numbers (ICANN), a private non-profit corporation operating under the law of the state of California. [FN86] The author describes the organizational structures and functions of the Internet system and identifies exclusion as the system's central problem, i.e., the question, who is allowed to participate in such a privately-run governance system. [FN87] Interestingly enough, von Bernstorff's argumentation in this part relies, as he stresses, on Lindahl's Sovereignty and Representation in the European Union, published in the above volume on Sovereignty in Transition. [FN88] In his comment, Karl-Heinz Ladeur proposes instead, albeit reluctantly, to strengthen the legitimacy of the system through some scheme combining private and public regulatory elements. [FN89] Craig Scott and Robert Wai examine, whether international human rights law can migrate to other transnational legal regimes, and, more specifically, into private litigation. [FN90] They studied the judicial practice related with the Cambior litigation (environmental damage in Guyana from a Canadian mining firm), the Nazi-era industry cases in the United States, and the South African essential medicines lawsuits. David Trubek stresses that the authors' intent was to show that: [I]f transnational agents could effectively introduce human rights norms into private law litigation, this might destabilise doctrinal categories and lead to new legal outcomes favourable to rights-protected interests. They suggest that, in this way, international human rights law might become an independent source of global law without a state along the lines developed by Gunther Teubner for lex mercatoria and other legal spheres. [FN91] The authors themselves concluded, nonetheless, in ambivalence with a rather pessimistic undertone: The foregoing discussion elides the fact that, by and large, the international human rights system, conventionally understood, has no regime of direct applicability of human rights norms to corporate actors. In the main, the invocation of international human rights law has been mediated by the vagaries of domestic-law reception. [FN92] However, they consider that the indirect applicability of international human rights law does provide a degree of formal opening that can energise the link between legal and other social processes. [FN93] Moreover: Something we can speak of as law exists as an object not just of inquiry but of (social) practice, and, as such, we can meaningfully talk about the migration of the legal to the social and similarly about the effect of operating within the social. [FN94] Then, in their final sentence, Scott and Wai take a further look into the realities of socio-legal processes:
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Here, we would note the non-nave perspective of many actors who view themselves as being part of a patient, and even subversive, order-building process that may eventually be recognised as the kind of constitutional field that, for example, EU treaty law has evolved into being and, as such, a field that will understand the migration of its norms as a necessary precept of its very constitutionality. [FN95] Harm Schepel examines the incoherent U.S. court practice with respect to the proliferation of private standard bodies. [FN96] He concludes with a glimpse of optimism: The normative argument here is not that long lists of procedural requirements established by private associations are necessarily sufficient to accept standards as legitimate. The argument is more limited: if we accept that standards bodies are, in principle, useful and legitimate loci for the social organisation of deliberation of complicated regulatory issues, legal policy should be directed at policing the quality of that deliberation. The legal imperative, then, is to resist the lazy impulse to turn private associations into public agencies and thus destroy their social autonomy, and, instead, promote the procedural integrity of autonomous private standardization .... If you look hard enough, you will find courts capable of recognising and validating private governance, of accepting as legitimate law norms generated in private associations outside the central political institutions of the constitution and beyond the nation state. However, tentatively and hesitantly, law can accept forms of deliberative, rather than constitutional, democracy as its normative foundation. It can, because it must. [FN97] Errol Meidinger proceeds to what he calls an alternative reading of Schepel's essay. [FN98] He considers the situation resulting from the U.S. practice as an expression not of chaos, but of coordination of legal systems on various levels. And then: In this reading, although the courts have not produced a logically unified system of rules for nongovernmental law-making systems, they have, in dealing with them, articulated and applied a limited number of principles which effectively structure the field. At the simplest level, three basic principles organise the decisions described in Schepel's paper: (1) expertise, (2) deliberation, and (3) market promotion .... Equally clearly, the set of principles described here may be seen as consistent with neo-liberal policy prescriptions. The point of the description, however, is not to promote neo-liberal policies, but, instead, to reflect how entrenched they appear to be in US law and possibly in the larger law-making arena. [FN99] The above chapters of Transnational Governance and Constitutionalism describe the fundamental elements of a system of transnational governance. The overall system appears fragmented along the border of functional regimes and the different lines of conflict among systemic-functional and deliberative approaches are visible. Here it is clear, how Europeanization offers a conceptual lens for locating an observation reference for the process of globalization. The mutation of government and sovereignty can affirm this provisional conclusion. III. ON GOVERNMENT AND SOVEREIGNTY In view of the reality of functional governance, we may assume that traditional concepts, such as government and sovereignty, would be in the defensive. In Sovereignty in Transition, the concept of sovereignty, though deeply contested, is being progressively transformed and does not indicate only the exclusionary function of state authority and jurisdiction vis--vis the external environment. Sovereignty is progressively internationalized, in the sense that within global society its function is becoming more that of linking, instead of separating, national and supranational authority levels. The present chapter is subdivided in four areas: (A) international and supranational perspectives; (B) the constitutional practice in the EU-15; (C) the notion of sovereignty in the new EU members; and (4) the notion of sovereignty in the U.S. constitutional tradition. A. International and Supranational Perspectives Bardo Fassbender takes up the subject of sovereignty from the standpoint of international law. [FN100] The au-
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thor admits that, other than the principle of sovereignty, the principle of equality of states was always more disputed in state practice as well as legal doctrine [FN101] and that it is the UN Charter that used the term sovereign equality. [FN102] He further defines sovereign equality and sovereign rights of states as follows: Sovereign equality is the legal authority and autonomy of a state as defined and guaranteed by the constitution of international community. It denotes the entitlement of a state, and the people constituting it, to autonomous development and self-responsibility within the limits set by international law. [FN103] And then: [T]he sovereign rights presently accorded to states by international constitutional law are, first, the legal protection of a state's autonomy as a space of self-determination and, secondly, rights ensuring a state's equal membership in the international community. None of these rights flow or derive from sovereignty, equality, or sovereign equality as legal concepts or super-norms. On the contrary, it is they, as rights defined by norms of the positive constitutional law of the international community, that make up what can be addressed as the sovereignty, equality, or sovereign equality of states. [FN104] The unavoidable circularity of the reasoning is apparent here, since sovereign rights do not derive from, but make up what is addressed as sovereignty. Fassbender's overall concept is based, in this as well as in other essays, on the theory that the UN Charter is the constitution of the international community. [FN105] Notwithstanding any reservations one might have with regard to this approach to international constitutionalism, the author makes a very sharp analysis of the legal nature of the principle of sovereign equality. Despite the fact that sovereignty is a foundational principle for the classical positivist theories of international law, he needs to address the generality and flexibility of the principle: In their mutual relations, states must treat each other as equals. The practical importance of that principle is, however, limited .... If such relations are maintained, a state may differentiate between states in the treatment it accords to them. In particular, states can, when entering into international treaties, agree on an unequal treatment of parties to the treaty .... In short, sovereign equality is not a rule of jus cogens ... from which no derogation could be permitted, notwithstanding its character as a fundamental principle of constitutional law of the international community. [FN106] The distinction between jus cogens and constitutional law of the international community (or international ordre public) is a very important one, because it indicates the nature of international constitutionalism. Fundamental or foundational principles of international law are capable of exceptions: in that sense, we might better speak of a category of structural principles of international law, [FN107] or general principles of international legal relations, [FN108] with constitutional character and strong future-oriented cognitive elements. [FN109] Nonetheless, it can be doubted, whether the sovereign equality of state is the foundational principle of international constitutionalism in the age of global society. [FN110] The supremacy doctrine and the direct effect of the EU law have given rise to extensive debate in the book. For Grinne de Brca, [FN111] the case-law of the ECJ gives justifications for a claim of sovereignty for the European Union. For the author, the above doctrines are based on the independent and original legal authority of the Union. De Brca is, however, skeptical on whether the Member States have transferred their sovereignty, or elements of it, to the EU, as well as whether the concept of functional sovereignty is a notion that accurately describes the foundational principle of the Union. [FN112] Jo Shaw deals with the changing concept of the polity in the European Union that has resulted from increased mobility originating either from the member states, or from third countries. [FN113] The progressive breakdown of the national demos can be seen in the concept of the European citizenship, in the demand of third country nationals to participate in local politics or acquire the citizenship of the Member State in which they are residents, but also in the rights and privileges recognized by Member States to their ethnic kin abroad. The author gives valuable insights
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into the negotiations for the recognition of electoral municipal rights for citizens of the Member States, [FN114] but also into the national debate of the Member States on the aliens' electoral rights. [FN115] Shaw's analysis demonstrates the mounting political contestation of the borders of polity and sovereignty and, as a consequence, the blurring of boundaries between the legal regulation of migration, national citizenship, and free movement of persons in the Union. In fact, the inside/outside distinction is loosened, both in the relationship of the nation-state to the outside world, as well as in the relationship of the Union to third states. Considering the famous Chinese Exclusion Case of the U.S. Supreme Court, the United States has been able to achieve the closure relatively early in its history, by recognizing federal authority (and sovereignty) in migration matters. [FN116] In the multilevel governance EU style, immigration policies and citizenship laws are focal points for the twilight struggle of national sovereignty against the phantom of supra-nationalism: In the horizon of global society, it looks as if the bond between territorial authority and communitarian identity loses its significance. Transnational migrant networks plus multiple citizenship systems delimitate a new space-in-emergence for the nurturing of identities that may radically modify the notion of the political and of the community, not only in Europe, but all over the globe. [FN117] However, the Netherlands, a country open to international law and traditionally tolerant to the diversity of immigrant cultures, comes progressively under the strain of rising fundamentalism, and becomes one of Europe's widening wounds. Perhaps it is worth thinking, whether a distinction between integration and voluntary segregation of ethnic and religious groups reveals the blind spot of Dutch policies. [FN118] The question is, whether British multiculturalism, Dutch soft segregationism, or French/Turkish secular fundamentalism, as expressed through the headscarf prohibition, [FN119] is best suited to deal with the integration of deeply antagonistic lifestyles in Europe Without Borders. B. The Constitutional Practice in the EU-15 The national reports on a number of Member States of the EU-15 reveal that the constitutional practice and academic debate on the concept of sovereignty have opened themselves up to the various legal challenges of the European integration. Jacques Ziller [FN120] describes the roots of French sovereignty in Bodin's Les six livres de la Rpublique and in the double emancipation of France from the Catholic Church and the medieval German Empire. [FN121] He also deals with the distinction national/popular sovereignty, as well as with the colonial history of the country as a key factor for the development of the above conceptualization. [FN122] The author identifies two axes around which the contemporary French debate on sovereignty is centered: judicial review of different aspects of the European integration process by the Constitutional Council, and the legal practice and political debate on the status of New Caledonia and French Polynesia. [FN123] The author concludes by welcoming the idea of shared sovereignty as a concept which helps to explain and to guide European integration as well as the evolution of state forms away from a unitary model in a growing number of national jurisdictions. [FN124] Miriam Aziz examines the legal situation in Germany, which is perhaps one of the most intriguing case-studies in the European Union. [FN125] This is because the Federal Republic had to face the challenges of limited sovereignty for half a century on four different levels: to prove that it is the legitimate successor of the German Reich in its 1937 borders, but without the historical burden of National-Socialism, to deal with the German Democratic Republic (GDR) not as separate state, but as a secessionist entity, to liberate itself from the tutelage of the Three Western Powers, and to integrate into the Western structures. [FN126] The success has been formidable, if one compares it with Japan's failure to come into terms with its Asian neighbors. [FN127] Aziz gives a good overview of the different aspects of the German discourse and practice on sovereignty, but should have dealt more extensively with the post-1945 legal situation, [FN128] in particular with regard to the legit-
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imate succession to the Reich. The relatively extensive chapter over the sovereignty doctrine of the GDR [FN129] is informative, but absent evidence to the contrary, does not seem to have had any impact on the further developments in the united Germany. Aziz presents the various aspects of jurisprudence of the Federal Constitutional Court with respect to the European integration and the different schools of thought, [FN130] as well as the citizenship doctrine of jus sanguinis. [FN131] However, the author should have also dealt with the International Military Operations Case of the same Court that marked the final emancipation of Germany from the constitutional-psychological burdens of World War II and the Cold War. [FN132] The German sovereigntism has managed to keep a low profile and establish itself as a successful fusion of the national with the supra- and international interests (constitutional protection of fundamental rights, principle of democracy, peacekeeping operations). However, the Maastricht Judgment of the Constitutional Court raises the broader question, whether further radical steps of federalization of Europe would be precluded. [FN133] Moreover, its recent judgment of July 18, 2005, invalidating the domestic European Arrest Warrant Act (Europisches Haftbefehlsgesetz) [FN134] only days after the London terrorist attacks of July 7, 2005, raises strong doubts, whether Europe can structure an effective anti-terrorism judicial cooperation system. The German constitutional jurisprudence could reinforce the voices that consider that the EU should deepen the economic dimension of integration, instead of wandering in the wilderness of an uncertain political integration process. A last remark on Aziz's essay: in footnotes 73 and 74 of the text, the author makes, en passant, an allusion to the hierarchical and conservative structure of the German academia in law and its close linkages with jurisprudence. In fact, this structure has been recently reaffirmed by a decision of the Federal Constitutional Court striking down a federal law that intended to abolish the Habilitation as a formal prerequisite for full professoral status. [FN135] Strict hierarchy in the scientific and research system of legal studies proved effective in maintaining a consistent theory edifice that greatly contributed to the success of the German unification process, when the circumstances so permitted in the period 1989-1990. However, it is debatable whether the same strategy will be equally successful in a heterarchical global academia, where innovation and spontaneity are in high demand. With a unique tradition in legal studies, philosophy and sociology, and with a dominant position in Europe, German academia is best placed to develop a European vision and doctrine on international law and international affairsif it manages to reform itself and escape state-centrism and sovereigntism. Marta Cartabia's report is very informative on the lively Italian discourse and practice. [FN136] After searching for the historical roots of the sovereignty doctrine since the time of monarchy, fascism and the first years of the republic, [FN137] the author looks at the so-called counter-limits doctrine of the Constitutional Court. [FN138] Cartabia formulates the doctrine as follows: According to the counter-limits doctrine, while Community measures prevail over every kind of national norm, they are not allowed to infringe fundamental values protected by the Constitution, including constitutional fundamental rights ... While membership of the European Union requires some limits to national sovereignty ... there should be some counter-limits, otherwise the limitation would turn into the extinction of national sovereignty. [FN139] She further points out that, although strong criticism has been voiced, the doctrine is on line with the requisite diversity in global society. As an example, despite the universality of fundamental rights, each national or regional society makes a different balancing of competing values. [FN140] Different legal theories are indicative of the openness of the Italian discourse toward European integration, such as the shared sovereignty theory, the Antisovereign theory that recognizes the enhanced role of economic decisionmaking processes, the network sovereignty doctrine, or the theory that addresses the conflict of globalization and democracy by proposing a representation of peoples through regional institutions. [FN141] The British discourse is presented in the essay of Kenneth Armstrong. [FN142] The U.K. case is of particular sig-
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nificance, due to the claim of unitary sovereignty, embodied, in the traditional view, to the Parliament, and to the complex relationship of the domestic law with the supranational EU law and the European Convention on Human Rights [ECHR]. Armstrong presents the alternative visions of British constitutionalism: the orthodox view of the sovereignty of the parliament, the common law approach that considers common law itself as an independent source of authority, the pluralist approaches that accept either the EU law at hierarchy's top, or a non-hierarchical relationship between the EU and the Member States, or various sites of authority, and the sceptical approaches questioning the functionality of the concept of sovereignty. The author explains that, despite the variety of theoretical approaches, the U.K. practice has given some practical solutions on the relationship between domestic law and EU/ECHR law, as incorporated through the European Community Act 1972 [ECA] and the Human Rights Act 1998 [HRA] respectively: Within the context of EU law, if interpretation cannot resolve the conflict the courts must ... suspend the operation of Acts of Parliament and give effect to EU law. Within the context of the HRA, where interpretation cannot resolve a conflict, then Parliamentary sovereignty is to be preserved through resort to the declaration of incompatibility. [FN143] A recent example of the British human rights jurisprudence is the Opinion of House of Lords in the case A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department, X (FC) and another (FC) (Appellants) v. Secretary of State for the Home Department, of December 16, 2004. [FN144] In this high-profile Opinion relating to the antiterrorist legislation adopted in the aftermath of September 11, 2001, the House of Lords reaffirmed its authority to control the compatibility of domestic legislation with international human rights standards as follows: There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Antiterrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. [FN145] Bruno de Witte's essay deals with what could be called Benelux sovereignty culture. [FN146] The author describes the diminishing significance of sovereignty in the constitutional and political debate in Belgium and The Netherlands, two countries open to internationalism. He stresses, however, the differences in the constitutional culture in the above countries. The Belgian constitution is more traditionalist. For instance, the jurisprudence of the Cour d'Arbitrage, Belgium's specialized constitutional court, is ambiguous with respect to the eventual primacy of EC law over constitutional law. [FN147] On the contrary, international law and EC law have a higher rank than constitutional law under the Dutch constitution [FN148] and even the term sovereignty is absent from the constitutional text. [FN149] For the author, this can be explained by the piecemeal transition of the Netherlands from monarchy to democracy, but also by the impact of radical Calvinism. In that respect, de Witte describes as follows the theory of sovereignty in one's own sphere, developed by Abraham Kuyper in 1880: Sovereignty in one's own sphere can be considered to be the calvinist equivalent of the catholic notion of subsidiarity; this doctrine held that the state, the church, the family, the school and other social institutions all had their own defined territory of action, and that the state should not unduly interfere with the partial sovereignties of the other social institutions, which were all expressions of the ultimate sovereignty of God. [FN150] It is not accidental that this sort of theological rationale goes hand-in-hand with the weakening or absence of the sovereignty principle and with the emergence of subsidiarity and functionalismfeatures not only of the Dutch constitution, but of European constitutionalism as such. De Kuyper's position reminds very strongly of systems' functionalism and of autopoiesis of spheres of communication. [FN151]
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C. Sovereignty in the New CEE Members The contributions of Cezary Mik [FN152] and Anneli Albi [FN153] describe an astonishingly different landscape at Europe's Eastern flank. Albi gives a panorama of the draft constitutional provisions in the new Central and Eastern European EU Member States and describes their retrospectively souverainist attitude. The author endorsed Miroslaw Wyrzykowski's correct diagnosis that sovereigntism is the response of the new members to the long period of Soviet domination, during which the claim for sovereignty has been considered as the realization of self-determination in the nationstate. [FN154] Albi explains the co-existence of the terms sovereignty and independence in the (draft) constitutional amendments as being derived from the historical experience of the Baltic States and Slovenia that have achieved statehood in the two stages of declaration of sovereignty (internal sovereignty) and declaration of independence (external sovereignty). [FN155] Moreover, the author affirms the absence of provisions on the transfer of powers to international organizations, the inclusion of safeguards for amending sovereignty provisions, and the pattern of considering the EU as an international organization. [FN156] Albi considers Poland as standing at the liberal end of the Eastern European constitutions. [FN157] However, Cezary Mik's analysis is anything but liberal and does not permit any innovative element to permeate the oldfashioned state sovereignty doctrine. Here are a few examples of the author's self-assured categorical assumptions, discarding any explanatory paradigm but his own: Sovereignty is associated exclusively with states. [FN158] Part of Community law doctrine derives from the far-reaching conclusions of the ECJ. Some authors argue that Member States share their sovereignty with the Community .... According to the second approach, the Member States lost part of their sovereignty in favour of the Community .... There is also a theory of soft sovereignty in the European Community which assumes that limitations of state sovereignty may result from the practice laid down in the founding treaties as constitutional treaties .... In my opinion, all these theories are wrong or premature. [FN159] Sovereign equality is not defined in international treaties or other international instruments. In fact, the expression itself is rather unfortunate. Some authors rightly observe that the term is wrongly formulated. It is not that equality is sovereign, but that the sovereignty of every State is equal. [FN160] On that latter issue, the reader is well-advised to take a fresh look in Bardo Fassbender's in-depth analysis. [FN161] And last but not least: Neither the EC Treaty nor the jurisprudence of the ECJ undermines the sovereignty of EU member states. They remain fully sovereign as they preserve their full and exclusive legal capacity. In this context, the concept of a transfer of sovereign powers from the States to the Community (or, indeed, the concept of shared sovereignty) is contrary to international law as well as to the current state of Community law. Moreover, the concept of divisible sovereignty, understood as sovereignty exercised by the Member States together is also unacceptable. [FN162] Who is the ultimate arbiter of the correctness or wrongfulness, of the acceptability or unacceptability of legal theories and perspectives, in particular when state practice is open to various interpretations, is not further clarified by the author. If Mik's contribution is indeed representative of the mainstream in Polish or Central and Eastern European academia, there exists a real East/West legal-cultural divide in the European Union. However, the significance of East Europe's sovereignty goes beyond the subtleties of legal theory. The challenge to the policies of the Franco-German axis in the time leading to the war against Iraq has shown the will of the new members to take the principle of equality of states within the Union seriously. In the so-called letter of the 8, [FN163] and in the Vilnius-10 letter, [FN164] the prospective new members declared the trans-Atlantic bond to be
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the fundamental pillar of their foreign policy agenda. The nervousness of the mainstream EU members, expressed through the depreciating remarks of President Chirac toward the CEE countries, in particular toward Bulgaria and Romania, added more fuel to the confrontation. [FN165] Equally important, was that France, in the words of its President, explicitly rejected, two years later, the model of what he called ultra-liberal, Anglo-saxon, Atlantic Europe. [FN166] This is a model, however, largely endorsed in the East. As the example of the flat tax policies shows, East European sovereigntism may, under conditions, lead to intensified competition within the Union. [FN167] The schism within Europe goes beyond foreign policy. D. Sovereignty in America: A Possible Path for Europe? Jeffrey Goldsworthy [FN168] opens his essay on sovereignty in the United States with the purpose of disproving the uniqueness of the EU debate. [FN169] Indeed, he manages to demonstrate the complexities and uncertainties of the American debate on this issue. The author presents the different areas of doctrinal fight on sovereignty since the time before the revolution. The transition from the Confederation to the 1788 Federal Constitution and then the Civil War has been important in marking the debate. Goldsworthy presents the different levels of the discourse: whether the national people, as holder of the sovereignty, pre-existed and created the thirteen states of the revolutionary period, or whether the peoples of the original states formed themselves into states when they ratified the federal Constitution, whether sovereignty is vested with the people of the United States, or with the separate peoples of the states, or whether it is vested with the collective peoples of the states, or is divided between the nation and the states. The author presents the ongoing debate on sovereignty, in the example of the eventual extra-constitutional amendment of the U.S. Constitution outside the Article V procedure. [FN170] In comparing the debate in the United States and Europe, Goldsworthy concludes that the most plausible theory denies that there is any single locus of sovereignty in the United States, because it is permanently divided among a variety of institutions at both national and state levels. [FN171] He considers that the situation in the European Union is different and finds more plausible to hold that the Member States or their peoples possess ultimate sovereignty. Indeed, that theory is more credible in Europe today than it was in the United States before the civil war. [FN172] At the same token, he considers as a common feature that in both cases, there is not a single locus for sovereignty and that the sui generis feature of the EU is that it is not governed by a single, unified legal system, but rather by many legal systems that are systematically inter-connected but not entirely harmonious. [FN173] However, he does not seem to recognize clearly that the European debate is unique in that it focuses more on functional/societal, than on political constitutionalism, due to the particular features of the European integration process. In conclusion, we may see that, although sovereignty may nurture locations of institutional resistance to globalization and supranationalization, the concept has already mutated. The polyvalence of its semantics enables the smooth transition from the national to the supranational and international. The multiple conceptual linkages progressively weaken the clarity of the distinctions inside-outside, national-supranational, or national-international. After visiting the origins of European constitutionalism, the government/governance dialectics and the mutations of sovereignty, it is time to return to the specifics of the current stage of the European integration project. In fact, it seems that Europe became anxious of its own uniqueness and loneliness, and sought to become a normal political associationand this has been a mistake. IV. THE RESTORATION: WHAT MODEL FOR EUROPE?
A. The EU as an Unconventional Power It has been argued that the European Constitutional Treaty would constitute a major leap toward the development
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of a European political identity and a major power status. Javier Solana, the EU High Representative for the Common Foreign and Security Policy, [FN174] and the French President Jacques Chirac, have been explicit in that respect. [FN175] Their standpoints are axed on the existence of a multipolar world, in which Europe as a global player of the classical kind, fully involved in an antagonism for influence or domination in world affairs, in particular with the United States, needs streamlined organizational structures. Commenting on the outcome of the French referendum, John Vinocur of the International Herald Tribune sharply formulates the reversal of the fortunes and the high risks the EU had undertaken in the last couple of years in its efforts to claim a superpower status: Europe's peace front of 2002, which turned resistance to the U.S. war in Iraq into a Genesis myth for a Europe defined in opposition to the United States, is in the process of self-delegitimization. [FN176] The major misunderstanding has consisted in considering the EU as a system of government, expecting it to evolve in the direction of sovereignty, instead of what is actually is, namely a system of governance, empowering a variety of actors, and not planners, within a functioning internal market. J.H.H. Weiler and J.P. Trachtman have been right to observe that, absent a European demos, empowering the European Parliament is no solution and could to the extent that it weakens the Council (the voice of the Member States) actually exacerbate the legitimacy problem of the Community. [FN177] The main issue that remains to be seen is what an alternative model for Europe the Restoration of the Economic brings with. Miguel Poiares Maduro and Ernst-Ulrich Petersmann offer the appropriate conceptual framework for addressing these issues. Of particular significance for assessing the lack of necessity of a European political Constitution is Maduro's excellent essay on what he calls contrapunctual law. [FN178] The author criticizes the narratives of ultimate authority residing on the EU legal order or on the constitutional legal orders of the Member States, as expressions of the traditional legal thinking building upon law hierarchies. He instead proposes a model of constitutional pluralism based upon the heterarchical paradigm of discursive relationship between national legal orders and EU law, which he calls contrapunctual law, drawing upon the musical method of harmonizing different melodies that are not in a hierarchical relationship. [FN179] As to the eventual conflicts, he stresses the following: Borrowing the language of systems theory, we may say that the problem of compatibility between different legal systems or sub-systems is presented as a problem of coordination whose only answer can be found in each system adapting its own set of perspectives to the possible contacts and collisions with other systems. [FN180] He further formulates a number of principles, such as pluralism, consistence and vertical and horizontal coherence, universalisability, institutional choice that could make this kind of harmonization possible, without recourse to a centralized/hierarchical solution of a super-constitutional court for Europe, proposed by J.H.H. Weiler. Maduro is thus skeptical with regard to the project of a European Constitution: The problem with the adoption by Europe of the constitutional model of the nation state is that it brings with it the conceptions of political authority and sovereignty inherent in that model. It reflects a particular model of constitutionalism, that of national constitutionalism, which is associated with a State and an ultimate sovereign authority. It reflects a form of constitutionalism that is not and ought not to be that of European constitutionalism. [FN181] Ernst-Ulrich Petersmann elaborated a concept capable of explaining the idiosyncratic strengths of an unconventional European power, stressing the significance of integration, human rights, and democratization. [FN182] He sharply criticized the much celebrated international law of cooperation for its ineffectiveness to ensure respect for human rights: The UN's international law of cooperation includes intergovernmental rights and obligations to mutually beneficial cooperation and protection of human rights across frontiers which enable a challenge to power-
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oriented concepts of state sovereignty ... as being inconsistent with universal human rights and popular sovereignty. UN practice ... tends to favour state sovereignty and has only rarely ... forced member governments to stop human rights violations. [FN183] He then makes a significant distinction between (transnational) integration law and law of cooperation, upon which he builds the advantages of the former with respect to the latter: Regional and worldwide integration law (such as EU and WTO law) differs from the intergovernmental international law of coexistence and international law of cooperation in its focus on reciprocal liberalisation of welfare-reducing market access barriers for the benefit of transnational movements of private persons and of goods, services, capital and payments demanded and supplied by individuals. Since protection and enjoyment of human rights depend on scarce economic resources and on individual access to foreign markets (e.g. for goods and services like food, medicines and information), the individual and social welfare gains made possible by integration law are of constitutional significance. The mutually beneficial, citizen-oriented legal structures of integration law have enabled legal guarantees of freedom, non-discrimination, rule of law and compulsory jurisdiction (e.g. in WTO, EU and NAFTA law) that go far beyond those of the power-oriented UN law .... European integration law protects fundamental rights in international economic relations no less than in political relations .... [FN184] After criticizing the UN Covenant on Economic, Social and Cultural Rights for failing to recognize property rights as human rights, he goes on to say: The comprehensive substantive fundamental rights in EU law compensate, to some extent, for the weak procedural democratic participation of EU citizens in EU institutions. [FN185] Petersmann's terminology is sometimes confusing, because he does not distinguish between the rule of law and the democratic principle. He thus characterizes the EU as an international democracy based on human rights, [FN186] despite the weakness of the democratic institutions on supranational level. Other aspects of his approach can be found in the famous, and sharp, exchange of views with Philip Alston in the 2002 issue of the European Journal of International Law. [FN187] Petersmann formulated there clearly the core point of his theory: European integration confirms the insight of functional theories', namely, that citizen-driven market integration can provide strong incentives for transforming market freedoms' into fundamental rights' whichif directly enforceable by producers, investors, workers, traders and consumers through courts (as in the EC)can reinforce and extend the protection of basic human rights (e.g. to liberty, property, food and health). Functional low policy economic integration may also contribute more effectively to democratic peace than may be possible in government-centered high policy organizations' (such as the UN) whose foreign policy and security objectives often meet with political resistance on grounds of national sovereignty. [FN188] He therefore proposes for the integration paradigm to become accepted on worldwide level. [FN189] Despite strong criticism, Petersmann's concept sounds convincing. In the European context, Article 6, pararaph 1 of the Treaty of the European Union, [FN190] together with a parallel system for the protection of fundamental rights, [FN191] complementary to that of the market freedoms and to the common currency, belongs to the constitutional moments of the Union. [FN192] EU constitutionalism of that form is compatible with supranational citizenship, as advocated by Weiler and Trachtman. The above authors rejected the idea that the emergence of a new European national identity and a uniform European people replacing nation-state identities is necessary or desirable. They propose the decoupling of nationality and citizenship and a conceptualization of the European demos on line with the European project of functional governance: Supranational citizenship, more deliberative, rational, transcendent, but perhaps with its own cooler erosis the civilizing force which is to help keep the hot-blooded Eros of the nation at bay. The European construct we have put forward, which allows for a European civic, value-driven demos co-existing side by side with a national organic-cultural one (for those nation-states that want it), could be seen as a deeply conservative construct. However, it is designed to re-establish a new framework for a new epoch in the life of the
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European nation-state, and, at the same time, give legitimacy to the normative claims of European constitutionalism ... Nationals of the Member States are European Citizens, not the other way around. Europe is not yet a demos in the organic national-cultural sense and need never become one .... [FN193] The substance of membership (and thus of the demos) is in a commitment to the shared values of the Union as expressed in its constituent documents, a commitment, inter alia, to the duties and rights of a civic society covering discrete areas of public life, a commitment to membership in a polity which privileges exactly the opposites of nationalismthose human features which transcend the differences of organic ethno-culturalism. [FN194] This concept of European citizenship can give also the criteria for the successful integration of aliens and the standard for naturalization. European immigration policy should focus not on the assimilation of immigrants into the organic-cultural nation-state, but to their integration within the broader and more flexible system of shared European values. How are we to (re)conceive of the European Union in the aftermath of the referenda of May 29 and June 1, 2005? Assuming that the Nice Treaty will be the normative basis of the EU's structure for the near future by default, the question is, whether one can describe the concrete constitutional form of the Union, as it could result from the combined ideas of redundancy of political constitution (Maduro), of democratic integration (Petersmann), and of sui generis citizenship (Weiler/Trachtman). It looks as if the centrepiece of the Union's action, as it is derived from its current constitutional structure as a space of economic integration, is the implementation of the Lisbon agenda, the increased empowerment of the individual through market freedoms and ECJ-activism, and the pursuance of a foreign policy tailored to the capacities of the Union and to its liberal democratic values. Main obstacle to that path may prove to be, paradoxically enough, the antiliberal bias triggered by the rejection of the Constitutional Treaty. This was an, admittedly unrealistic, effort to steer societal processes through political integration. Consequently, the Member States have reversed course on two of the Union's core values, the Growth and Stability Pact, and the freedom to provide services. B. The Lisbon Agenda: Implementing the Economic Constitution The Lisbon Agenda is the program for realizing Europe's economic constitution by 2010. [FN195] In a sense, it is an alternative project for the Union. The implementation of the Agenda should have been the focus of concerted action by the Member States and the Commission, which have, instead, opted to invest and practically spend all available political capital in the adoption of the questionable project of the Constitutional Treaty. The program agreed in Lisbon represents the implementation of the principles that have evolved through successive constitutional moments of the European integration process. Although it is not here the place to make a progress report on the Lisbon Agenda, it is necessary to review some of its principles and goals and see how they have been put into risk by, or even fallen victims to, the grand project of political constitutionalism. The Lisbon Presidency Conclusions recognized that the European Union [was] confronted with a quantum shift resulting from globalization and the challenges of a new knowledge-driven economy. [FN196] Therefore, the Union should set a clear strategic goal and agree a challenging programme for building knowledge infrastructures, enhancing innovation and economic reform, and modernizing social welfare and educational systems. [FN197] Then, the cornerstone of the strategy is for the Union to become, within the next decade, the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion. [FN198] The European Council hailed the achieved monetary stability of the Union and considered that enlargement would enhance rather than cause prejudice to employment: As a result of the stability-oriented monetary policy supported by sound fiscal policies in a context of wage moderation, inflation and interest rates are low, public sector deficits have been reduced remarkably and
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the EU's balance of payments is healthy .... The forthcoming enlargement will create new opportunities for growth and employment. [FN199] However, the Conclusions admitted that unemployment remained perhaps the most difficult part of the puzzle: More than 15 million Europeans are still out of work. The employment rate is too low and is characterized by insufficient participation in the labour market by women and older workers. Long-term structural unemployment and marked regional unemployment imbalances remain endemic in parts of the Union. The services sector is underdeveloped, particularly in the areas of telecommunications and the Internet. [FN200] The targets decided by the European Council in Lisbon are to be achieved primarily by completing the internal market, as is indicated, directly or indirectly. [FN201] Moreover, a major chapter of the Agenda is entitled economic reforms for a complete and fully operational internal market. This chapter states, inter alia, the following: An effective framework or ongoing review and improvement, based on the Internal Market Strategy ... is also essential if the full benefits of market liberalization are to be reaped. Moreover, fair and uniformly applied competition and state aid rules are essential for ensuring that businesses can thrive and operate effectively on a level playing field in the internal market. [FN202] Furthermore, the European Council decided to set out by the end of 2000 a strategy for the removal of barriers to services, speed up liberalization in areas such as gas, electricity, postal services and transport, as well as with regard to the use and management of airspace. [FN203] The Lisbon Conclusions called also the Commission and the Member States to further their efforts to promote competition and reduce the general level of state aids, shifting the emphasis from supporting individual companies or sectors towards tackling horizontal objectives of Community interest, such as employment, regional development, environment and training or research. [FN204] Other packages of measures include the accelerated completion of the internal market for financial services, as well as the fiscal consolidation, including the alleviation of the tax pressure on labour, in particularly on unskilled and low-paid. [FN205] C. State Sovereignty's Ambivalent Comeback The Luxembourg Presidency of the European Union in 2005 will be remembered not only for the rejection of the draft Constitution of the Union, but also for the decisions taken by the Brussels European Council of March 22 and 23 2005 that marked the weakening of the Union's economic constitution. Of particular significance is (1) the decision to revise the Growth and Stability Pact, and (2) to reject the so-called draft Bolkenstein Directive on services in its present form. However, (3) state sovereignty on economic issues is not necessarily identical with protectionism or with a breakdown of the internal market, as the flat tax movement exemplifies. 1. The Revision of the Growth and Stability Pact When the EU introduced the single currency, it also instituted the so-called Growth and Stability Pact that provided that Member States should avoid excessive government deficits (Art. 104, para. 1 EC Treaty). Excessive deficit exists if the ratio of government deficit to gross domestic product exceeds 3% or if the ratio of the government debt to GDP exceeds 60%. [FN206] In the Brussels Meeting of March 23, 2005, the European Council decided to reform the system. Temporary exceptions from the above reference values should be justified in the future not only in cases of a severe economic downturn, as until then, but also in case of a negative growth rate or of the accumulated loss of output during a pro-
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tracted period of very low growth relative to potential growth. [FN207] In that respect, all other relevant factors should be considered, such as: potential growth, prevailing cyclical conditions, the implementation of the Lisbon agenda and policies to foster research and development (medium-term economic position), fiscal consolidation efforts in good times', debt sustainability, public investment, overall quality of public finances (medium term budgetary position). Moreover, special consideration should be given to budgetary efforts towards increasing or maintaining at a high level financial contributions to fostering international solidarity and to achieving European policy goals, notably the unification of Europe. Systemic pension reforms need also be taken into account. [FN208] The re-nationalization trend is also visible in other parts of the Conclusions of March 23. Furthermore, the European Council re-affirms that a rules-based system is the best guarantee for commitments to be enforced and for all Member States to be treated equally, it continues as follows: However, in a European Union of 25 countries, characterized by considerable heterogeneity and diversity and given the experience of 5 years in EMU, an enriched framework with a stronger emphasis on the economic rationale of the rules would allow to better cater for differences in economic situations across the EU. The objective is therefore to enhance the economic underpinnings of the existing framework and thus strengthen credibility and enforcement. The aim is not to increase the rigidity or flexibility of current rules, but rather to make them more effective. [FN209] Nonetheless, the Council considered necessary to improve ownership by national policy makers and enhance the governance and national ownership of the fiscal framework. [FN210] The diversity of the Union is indeed its fundamental structural feature, but broadening the sovereign powers of Member States should not touch upon the core elements of the currency's regime. The immediate and somber response of the European Central Bank to the proposal for the flexibilization of the Pact was indicative of the risks of destabilization of the currency. [FN211] In fact, the revision of the Pact has taken place after France and Germany had violated its core principles and after the Court had ruled against the Council. [FN212] The revision pushes elements of the Union's consolidated economic aquis back to the political periphery, despite the verbal emphasis on the economic rationale of the new system. The truth is that the various factors and parameters will be weighed through decisions taken, in substance, according to political criteria of national decision-makers. 2. The Rejection of the Draft Services Directive The rejection of the draft services directive [FN213] is a good example of how the realization of the freedom to provide services in the internal market (Arts. 49-55 TEC) has been temporarily brought into a halt, although it constitutes one of the cornerstones of European governance. The services directive could have been the single most important integration step since the introduction of the Euro. Despite the existence of an internal market as a normative prescription, there are very serious obstacles to the provision of services across borders, as a recent report accompanying the draft directive stressed: Services amount for almost 70% of GNP and jobs in the EU, but the full economic potential of the service sectors is currently hampered by many Internal Market barriers. Examples of barriers to service provision are abundant. Service providers wishing to establish themselves in other Member States may face restrictive authorization schemes and other disproportionate, possibly even discriminatory, requirements. Similarly, crossborder provision of services is sometimes hindered by obligations and administrative burdens imposed by national and local regulations. [FN214] The centerpiece of the draft directive was the country of origin principle: According to this principle, service providers from a Member State would be subject to the rules and regulations of the state of origin and not of the state of the provision of services. [FN215] This principle would greatly facilitate the business activities of small and medium entrerprises. According to the above study, the proposed directive would have a significant effect on the
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European economy. Consumption would increase by 0.6%, or 37 bio Euros. Net employment might increase by up to 600,000 jobs across the Union. [FN216] A good example for the reasonableness of the directive is the sector of health services. In its case law, the ECJ has formulated the principles governing the provision of health services. In short, the fundamental principles of this jurisprudence the following: a) medical services fall within the scope of the freedom to provide services; b) the prior authorization as a condition for the reimbursement of medical expenses incurred in another Member State or the denial of the reimbursement constitutes a barrier to the freedom; c) the risk of seriously undermining the financial balance of the social security system may constitute a reason of public interest justifying a barrier of that kind, thus prior authorization to incur the cost of treatment provided in a hospital of another Member State may be considered reasonable and necessary; d) any administrative authorization scheme must be proportionate, and be based on objective, non-discriminatory criteria, known in advance; and e) refusal to grant authorization must be capable of being challenged in judicial or quasi-judicial proceedings. [FN217] The Explanatory Memorandum to the draft services directive is clear in that Art. 23 of the draft directive incorporates the principles of this jurisprudence with respect to the conditions for the granting of the authorization for the provision of medical services in the hospitals of another Member State. [FN218] Despite the well-founded justifications of the Commission's policy-makers, the European Council rejected the draft directive in its present form on March 23, 2005. The statement of the Presidency was drafted in an unusually strong language: The drafting of the directive's text will take into account the double imperative of the opening of the services market as well as respect for the European social model in accordance with the motto: Yes to the liberalisation of services, no to social dumping. Those who wish the services directive to be fashioned in such a way that employees lose all their rights, thereby bringing unhealthy pressure to bear on the level of salaries and diminishing employees' rights through the opening up of the markets, are sadly mistaken. [FN219] Although the European Council reiterated that the directive would not be withdrawn, because this would give the impression that the opening of services had vanished from the agenda, [FN220] its final orientation and form is not yet clear. The rejection of the draft services directive is a very serious setback for the EU. If the Council proves incapable to establish the internal market, then it is up to the Court to guarantee the realization of the freedom to provide services, as stipulated by the Treaties. 3. Taxation Nonetheless, the maintenance and exercise of sovereign powers is not necessarily inconsistent with the internal market. The largely deviating taxation systems in the EU Member States offer a good example of how diversity, instead of uniformity, in the legal infrastructure of the Union may enhance integration. The TEC (and the draft Constitution) provides for unanimity with respect to the harmonization of indirect taxes. Harmonization of indirect taxation is to be decided only exceptionally if it is necessary to ensure the establishment and the functioning of the internal market. [FN221] Though unanimity looks as a relict of state sovereignty, it can support the realization of internal market by enhancing competition, as the recent example of the flat tax systems have shown. Indeed, eastern European states have introduced flat tax systems on income, corporate profits, and value-added tax in the last decade. In 2004 Slovakia introduced a uniform flat tax of 19% and other eastern European countries, members and non-members of the EU, have introduced various kinds of flat taxes. The fundamental advantage of the system is that it simplifies bureaucracy and can enhance, under conditions, the competitiveness of national economies. [FN222] Though the flat tax movement markedly disturbed political and economic actors across some of the EU members, [FN223] the harmonization of taxation systems should not go beyond the necessary minimum for avoiding
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distortions in the internal market that are generated by excessive taxes or bureaucratic tax administration systems. Taxation pluralism should remain a pillar of state sovereignty in the EU, in the measure it brings forward the comparative advantages of different locations and territories of the Union. D. On Foreign Policy The restoration of the Union's economic constitution and the abandonment of great power ambitions by the EU by no means signify the end of the European foreign policy. On the contrary, it leads to a more focused foreign policy agenda that uses the Union's soft power [FN224] and its integration potential, but also the ideals of peace, democracy and the rule of law, to which the EU is committed. Thus, the EU has a comparative advantage on peacekeeping and on integrative neighbourhood policies. 1. EU as Global Peacekeeper In the last couple of years, the European Union has launched a number of successful peace-keeping operations of various kinds, including military operations with a limited mandate, within the framework of the European Security and Defence Policy (ESDP): (i) the military operation Concordia in Macedonia that ended in December 2003; [FN225] (ii) the police mission EUPOL Proxima in the same country; [FN226] (iii) under French leadership, the military operation Artemis in the Democratic Republic of Congo, in accordance with the mandate set out in the UN Security Council Resolution 1484/2003, that ended on September 1, 2003; [FN227] (iv) the police mission EUPOL Kinshasa in the same country in 2004; [FN228] (v) the police mission in Bosnia and Herzegovina, to ensure the follow-on to the United Nations International Police Task Force; [FN229] (vi) the military operation Althea in Bosnia and Herzegovina, as follow-up to NATO's S-FOR operation; operation Althea is carried out with recourse to NATO's common assets and capabilities, on a basis agreed by NATO, and under the Command of the Deputy Supreme Allied Commander in Europe (D-SACEUR); [FN230] (vii) the European Union Rule of Law Mission in Georgia (EUJUST THEMIS); [FN231] (viii) the European Union Integrated Rule of Law Mission for Iraq (EUJUST LEX); [FN232] (ix) the European Union mission to provide advice and assistance for security sector reform in the Democratic Republic of the Congo. [FN233] The successful implementation of peace-keeping missions with limited and well-defined targets is facilitated and supported, on a case-by-case basis, by the strengthened EU-NATO cooperation system, including the EU-NATO Declaration on the ESDP and the so-called Berlin Plus arrangements. [FN234] The EU missions are, depending on the circumstances, undertaken with purposes closely related with the nation- and state-building, the strengthening of democratic institutions, and the rule of law, or the stabilization and association process on the Balkans. Peacekeeping is the appropriate field of action for the ESDP. Together with other policy instruments not involving the use of force and including well-calibrated policies on economic sanctions in the framework of the CFSP, [FN235] it can optimize the role of the Union in world affairs, without overstraining the system beyond its capacities.
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Individual Member States should remain free to undertake major political or military initiatives, alone or in concert with third states, consistent with their national interests, for their defense or for the maintenance and restoration of world peace. The EU itself should not be expected to structure a comprehensive superpower-like foreign affairs and defense policy of its own. [FN236] 2. Integrative Neighbourhood Policies The EU has a particular foreign policy interest for peace and stability in its neighborhood and has developed various policy instruments to achieve that. In a broad categorization, we can speak about three main strategies, namely the enlargement process itself, the European Neighborhood Policy (ENP), [FN237] and the Stabilization and Association Process (SAP) for the Western Balkans. [FN238] Agreements concluded between the EU and the respective partners have a common element, in that they combine political with economic reform strategies, in order to maximize the net effect. The European Neighborhood Policy Strategy Paper formulates as follows this interconnection: The level of EU's ambition in developing links with each partner through the ENP will take into account the extent to which common values are effectively shared. The Action Plans will contain a number of priorities intended to strengthen commitment to these values. These include strengthening democracy and the rule of law, the reform of the judiciary and the fight against corruption and organized crime; respect for human rights and fundamental freedoms, including freedom of media and expression, rights of minorities and children, gender equality, trade union rights and other core labour standards, and fight against the practice of torture and prevention of ill-treatment .... The approach proposed by the ENP ... offers neighbouring countries the prospect of a stake in the EU Internal Market based on legislative and regulatory approximation, the participation in a number of EU programmes and improved interconnection and physical links to the EU .... The economic benefits from this process are expected to be substantial and to accrue both directly and indirectly .... By bringing the neighbouring countries closer to the EU economic model, also through the adoption of international best practices, the ENP and particularly the proposed extension of the internal market, will improve the investment climate in partner countries. It will provide a more transparent, stable and enabling environment for private sector-led growth. [FN239] By bringing the neighbouring countries closer to the EU economic model, integration becomes the primary mechanism for stability in Europe's Eastern and Southern periphery. [FN240] As experience has shown, political disputes could be easier to resolve or at least defuse, once the integration process has been put in motion. [FN241] The future foreign policy of the Union should be based largely on such policies of integration. To manage effectively the space of inherent instability, that includes the Balkans, Moldova, Ukraine, Belarus, and the Caucasus region, the Union should strengthen, not weaken, continue, and not interrupt the integrative neighborhood policies. The enlargement process may even become more feasible, once the Union definitively abandons the project of a political Constitution that would have maximized the pressure on all actors, to agree on high-profile politics. A Union based on the economic constitution and on legal pluralism would be much more flexible in admitting new members. An active enlargement process would be the catalyst for the economic and political transformation of candidates and new members, while states would maintain their independent course of action in areas such as culture, foreign policy, and in broad areas of economic policy. The maintenance of regional stability, the restoration of peace, and the EU's own security are among the main reasons justifying the continuation of enlargement towards Easternand Southeastern Europe. [FN242] The argument, that further enlargement would transform the EU into a second OSCE, is not convincing, because it neglects the fundamental difference between political deliberation and consensus politics, on the one hand, and largely self-sustained integration process, on the other.
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IV. ON EUROPEAN REGIONAL GOVERNANCE It is a mistake to evaluate the power and influence of Europe in terms of a mega-state. Instead, the EU should be conceptualized as a system of regional governance with an economic constitution at its core and deliberative politics at the system's broader periphery. The economic constitution of the Union has been built upon a functioning internal market and an economic and monetary union (Art. 2 of the TEC). This does not mean that it is restricted in enabling a number of profit-making activities alone. It means that the integration space is axed upon market freedoms, competition rules, common currency as a separate constitutional regime, the rule of law, supremacy and direct effect of EU/EC law, with the European Convention on Human Rights and democratic governance for member-states as supportive infrastructure of the overall system. These fundamental constitutional rules enable further decentralized order-building by state and non-state actors, and strengthen the capacities of a limited and focused foreign and security policy. The economic constitution of the Union enables individuals to establish transboundary networks, without regard to their legal form as private, public or private-public, or to the content and finality of the respective activities. The European Union does not constitutionalize neo-liberalism, but creates a system of regional governance by empowering autonomous societal self-organization across national borders. [FN243] At the same time, sovereignty remaining in the hands of the Member States, but exercised within a broader system of functional sovereignties, guarantees the requisite flexibility of the overall system of governance. Such a system permits diversity and experimentation, and enables harmonization, when necessary. The provisions of the EU Treaty on Enhanced Cooperation, and the Bologna Process for the creation of the European Higher Education Area (EHEA) by 2010, demonstrate how flexible legal strategies can strengthen and further develop the European integration project. Title VII TEU (Arts. 43-45) gives Member States the possibility to deepen their cooperation with the purpose of reinforcing the integration process, and make use of the institutions, procedures and mechanisms of the Treaty. Enhanced cooperation should respect the acquis communautaire and should not undermine the internal market. Enhanced cooperation may be undertaken only if the objectives of the cooperation cannot be achieved within a reasonable period of time. It should involve at least eight Member States and be open to all other members. In EU-25, enhanced cooperation increases the variety of possible integration paths and can enrich the reform capacity of the Union. Variable geometry is a desirable path for Europe to pursue, because it would increase the comparability among possible solutions to equivalent problem situations. Competition among alternative integration policies could be substituted, to some degree, to political negotiations for the lowest common denominator. Multiple centers of stronger integration could emerge and pull the overall system forward. The Bologna Process offers another model of effective regional governance structures and order-building through societal soft-law. The idea for the creation of EHEA was brought up by the Sorbonne Joint Declaration on harmonization of the architecture of the European higher education system of May 25, 1998, signed by the ministers of education of France, Italy, the United Kingdom, and Germany. The concept was introduced by the Bologna Declaration of June 19, 1999 and was further elaborated and implemented in the meetings of Prague (May 19, 2001), Berlin (September 19, 2003), and Bergen (May 19-20, 2005). [FN244] The number of the participants to the process has risen to forty-five states, including Russia and Ukraine. The particular features of the Bologna Process is that, although it practically encompasses the comprehensive space of the Council of Europe, it has been initiated through the experience of the core states of the European Union that are more experienced in the global dimensions of the educational and research system. The Bologna Declaration describes the objective of the process in terms of the soft power of the European space: We must in particular look at the objective of increasing the international competitiveness of the European system of higher education. The vitality and efficiency of any civilization can be measured by the appeal that
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its culture has for other countries. We need to ensure that the European higher education system acquires a world-wide degree of attraction equal to our extraordinary cultural and scientific traditions. [FN245] Moreover, the harmonization is neither imposed from the political instances upon the higher education system from the top down, nor the University systems are being privatized. On the contrary, the Prague Communiqu made clear that higher education should be considered a public good and is and will remain a public responsibility (regulations, etc.), and that students are full members of the higher education community. In the Bergen Ministerial Meeting, the national delegations were generally composed by representatives of the executive branch and of the academia. [FN246] The Bergen Communiqu makes clear that the University reform in Europe is a shared responsibility of social partners and of the academic community across Europe: We underline the central role of higher education institutions, their staff and students as partners in the Bologna Process. Their role in the implementation of the Process becomes all the more important now that the necessary legislative reforms are largely in place, and we encourage them to continue and intensify their efforts to establish the EHEA .... We welcome the support of organizations representing business and the social partners and look forward to intensified cooperation in reaching the goals of the Bologna Process. We further welcome the contributions of the international institutions and organizations that are partners to the Process. [FN247] More than twenty years ago, Gunther Teubner described the limits and function of what he called reflexive law. Teubner argued for a restricted role of law in the steering of societal processes and rejected direct interventionist strategies through which the political system would have imposed its decisions upon other social subsystems: Reflexive law, in other words, will neither authoritatively determine the social functions of other subsystems nor regulate their input and output performances, but will foster mechanisms that systematically further the development of reflexion structures within other subsystems .... The legal prerequisites for reflexion processes in, for example, the economy or in politics differ greatly from what will be required by the educational system. Thus, law must act at the subsystem-specific level to install, correct, and redefine democratic selfregulatory mechanisms .... Law realizes its own reflexive orientation insofar as it provides the structural premises for reflexive processes in other social subsystems. [FN248] Reflexive law corresponds to the rationale of a complex regional system, in which supranational governance structures endorse societal processes indirectly and correct imbalances obstructing the workability of the relevant subsystems. V. CONCLUSION In the light of post-referendums' European politics, the National Intelligence Council's Report Mapping the Global Future, together with the two books under review, offer a good view on the power reservoirs of the European Union. The EU is experiencing a deep political crisis at the moment and it will be an evidence of wisdom to overcome it smoothly. Europe is certainly not a rising star in the global political and economic arena, such as India or China, but, as an aging power with strength has accumulated enough experience to manage effectively its way in the age of globalization. It looks, nonetheless, as if, at a certain point of the post Cold War era, the European political leadership were led to misunderstand the nature of the European governance structures and consider a superpower project as realistic. The EU has an economic constitution and still needs to complete its internal market and enhance competition, so as to guarantee the prosperity of its peoples. On the international plane, the EU does not have hard power to impose solutions, though its core members can have a significant role in major political and military emergencies around the world. Acting as an entity, the Union can be a trusted peacekeeper far beyond its area. Furthermore, EU political and economic diplomacy should focus on its Eastern and South-eastern European rim and pursue integrative neighbourhood policies, including further enlargement. As a system of regional governance, the Union should pursue
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domestic policies that stress the autonomy of societal actors and systems, empower individual actors and networks, and encourage integration competition. If the Bologna Process is an example of soft policy-making, the enhanced cooperation may infuse the requisite variety in the European integration project. Unless a major catastrophe changes the coordinates of the global system, Europe has no reason to duplicate the political structures of the Member States on a supranational level.
[FNa1]. Reader in Law, University of Bristol. I thank Maria Panezi, I.L.M. Student, International Legal Studies, New York University, for her invaluable assistance. Responsibility for any errors rests solely with the author. A previous draft of Part IV was presented at the Woodrow Wilson International Centre for Scholars in Washington, D.C., on March 29, 2005. [FN1]. GEORG WILHELM FRIEDRICH HEGEL, THE PHILOSOPHY OF HISTORY (1830-1831) 86-87 (Dover Publications, New York, 1956) (1899). [FN2]. NATIONAL INTELLIGENCE COUNCIL, MAPPING THE GLOBAL FUTURE 56-57 (2004) available at http://www.foia.cia.gov/2020/2020.pdf (Washington, NIC 2004-13) (last visited June 13, 2004). [FN3]. See id. at 61. [FN4]. See NIKLAS LUHMANN, DIE GESELLSCHAFT DER GESELLSCHAFT 145-71 (Suhrkamp, Frankfurt/ Main, 1997) (discussing the concept of global society (Weltgesellschaft)). [FN5]. OSWALD SPENGLER, THE DECLINE OF THE WEST 75 (H. Stuart Hughes introd., Oxford University Press 1991). [FN6]. See WILHELM GREWE, THE EPOCHS OF INTERNATIONAL LAW 23 (Michael Byers trans., de Gruyter 2000). [FN7]. Christoph Mllers, Transnational Governance without a Public Law?, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 329, 335 (Christian Joerges, Inger-Johanne Sand, Gunther Teubner eds., Hart Publishing 2004). [FN8]. Christian Joerges, Constitutionalism and Transnational Governance: Exploring a Magic Triangle, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 339, 342 (Christian Joerges, Inger-Johanne Sand, Gunther Teubner eds., Hart Publishing 2004). [FN9]. INTERNATIONAL HERALD TRIBUNE, May 31, 2005 & June 2, 2005 respectively. [FN10]. CARL SCHMITT, VERFASSUNGSLEHRE 51-53 (Duncker und Humblot, Berlin 8th ed. 1993) (1928). [FN11]. See infra Part IV.B. [FN12]. Neil Walker, Late Sovereignty in the European Union, in SOVEREIGNTY IN TRANSITION 3 (Neil Walker ed., Hart Publishing 2003). [FN13]. See id. at 4 (emphasis added). [FN14]. See id. at 6. [FN15]. See id. at 19.
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[FN16]. See id. at 23-24. [FN17]. Govert Buijs, Que les Latins appellent maiestatem: An Exploration into the Theological Background of the Concept of Sovereignty, in SOVEREIGNTY IN TRANSITION 229 (Neil Walker ed., Hart Publishing 2003) [FN18]. See id. at 235. [FN19]. Id. [FN20]. Id. at 237. [FN21]. Id. at 253. [FN22]. Id. at 254-55. [FN23]. Hans Lindahl, Sovereignty and Representation in the European Union, in SOVEREIGNTY IN TRANSITION 87 (Neil Walker ed., Hart Publishing 2003). [FN24]. Id. at 88-89. [FN25]. Id. at 93-94. [FN26]. Id. at 95. [FN27]. Id. at 96-97. [FN28]. Id. at 103-04. [FN29]. Id. at 111-12. [FN30]. Id. at 113. [FN31]. See Frontier Dispute (Burkina Faso v. Mali), 1986 I.C.J. REP. 554, 20-26 (Judgment Dec. 22); Land, Island and Maritime Frontier Dispute (El Salvador v. Honduras), 1992 I.C.J. REP. 351, 40-42 (Judgment Sept. 11); Conference on Yugoslavia, Opinions no. 2-3, 31 I.L.M. 1497-1500 (ARBITRATION COMMISSION 1992) (where this principle has been applied in the situations of Latin America, Africa and the former Yugoslavia). [FN32]. See Stefan Oeter, Selbstbestimmungsrecht im Wandelberlegungen zur Debaue um Selbstbestimmung, Sezessionsrecht und vorzeitige Anerkennung, 52 ZARV 741 (1992). [FN33]. See Conference on Yugoslavia, Opinions no. 4, 31 I.L.M. 1501-02 (ARBITRATION COMMISSION 1992). [FN34]. Erik Oddvar Eriksen & John Erik Fossum, Europe at a Crossroads: Government or Transnational Governance?, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 115 (Christian Joerges, IngerJohanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN35]. Michelle Everson, Law and Non-Law in the Constitutionalization of Europe: Comments on Eriksen and Fossum, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 147 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds. Hart Publishing 2004). [FN36]. Eriksen & Fossum, supra note 34, at 118. [FN37]. Id. at 120.
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[FN38]. Id. at 121. [FN39]. Id. at 122. [FN40]. Id. at 125. [FN41]. Id. at 125. [FN42]. Everson, supra note 35, at 149. [FN43]. Id. at 151. [FN44]. Gunther Teubner, Societal Constitutionalism: Alternatives to State-Centered Constitutional Theory?, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 3 (Christian Joerges, Inger-Johanne Sand, Gunther Teubner eds. Hart Publishing 2004). [FN45]. Id. at 8. [FN46]. Id. at 16. [FN47]. Id. at 13. [FN48]. Gunther Teubner, Global Bukowina: Legal Pluralism in World Society, in GLOBAL LAW WITHOUT A STATE 3 (Gunther Teubner, ed., Dartmouth, Aldershot, 1997). [FN49]. Thomas Vesting, Constitutionalism or Legal Theory: Comments on Gunther Teubner, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM, 29 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds. Hart Publishing 2004). [FN50]. Id. at 31. [FN51]. Inger-Johanne Sand, Polycontexturality as an Alternative to Constitutionalism, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 41 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN52]. See Joerges, supra note 8, at 353-54. [FN53]. Sand, supra note 51, at 48. [FN54]. Id. at 64-65. [FN55]. Andreas Fischer-Lescano, Themis Sapiens: Comments on Inger-Johanne Sand, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 67 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN56]. Id. at 78-79. [FN57]. Jens Steffek, Sources of Legitimacy Beyond the State: A View from International Relations, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 81 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN58]. Id. at 85. [FN59]. Id. at 91.
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[FN60]. Id. at 98. [FN61]. Id. at 100-01. [FN62]. Agustn Jos Menndez, No Legitimacy without PoliticsComments on Jens Steffek, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 103(Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN63]. Id. at 109. [FN64]. Steffek, supra note 57, at 96-98. [FN65]. Menndez, supra note 62, at 110-13. [FN66]. Commission v. Council, Judgment of July 13, 2004, Case C-27/04, available at http://europa.eu.int/smartapi/cgi/sga_doc?smartapi!celexplus!prod! CELEXnumdoc&lg=en&numdoc=62004J0027 (last visited June 15, 2005). [FN67]. Id. 70. [FN68]. Id. 76. [FN69]. See infra Part IV.C.I. [FN70]. Alexia Herwig, Transnational Governance Regimes for Foods Derived from Bio-Technology and their Legitimacy, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 199 (Christian Joerges, IngerJohanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN71]. Id. at 209. [FN72]. Id. at 210. [FN73]. Id. at 216-17. [FN74]. Id. at 221 (emphasis added). [FN75]. Id. (emphasis added). [FN76]. Patrizia Nanz, Legitimation of Transnational Governance Regimes and Foodstuff Regulation at the WTO: Comments on Alexia Herwig, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 223 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN77]. Id. at 225. [FN78]. Id. at 227. [FN79]. Id. at 231. [FN80]. Oren Perez, The Many Faces of the Trade-Environment Conflict: Some Lessons for the Constitutionalization Project, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 233 (Christian Joerges, IngerJohanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN81]. Id. at 255.
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[FN82]. Id. at 252. [FN83]. Id. at 255 n.78. [FN84]. Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 MICH. J. INT'L L. 999 (2004). [FN85]. Jochen von Bernstorff, The Structural Limitations of Network Governance: ICANN as a Case in Point, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 257 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN86]. Id. at 262. [FN87]. Id. at 274-77. [FN88]. Id. at 274 n.47. [FN89]. Karl-Heinz Ladeur, ICANN and the Illusion of a Community-Based Internet: Comments on Jochen von Bernstorff, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 283 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN90]. Craig Scott & Robert Wai, Transnational Governance of Corporate Conduct through the Migration of Human Rights Norms: The Potential Contribution of Transnational Private Litigation, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 287 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN91]. David Trubek, Human Rights, Transnational Private Law Litigation and Corporate Accountability: Comments on Scott and Wai, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 321, 324 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN92]. Scott & Wai, supra note 90, at 316. [FN93]. Id. at 316. [FN94]. Id. at 318. [FN95]. Id. at 319. [FN96]. Harm Schepel, Constituting Private Governance Regimes: Standards Bodies in American Law, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 161 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004). [FN97]. Id. at 187-88. [FN98]. Errol Meidinger, Law and Constitutionalism in the Mirror of Non-Governmental Standards: Comments on Harm Schepel, in TRANSNATIONAL GOVERNANCE AND CONSTITUTIONALISM 189, 192 (Christian Joerges, Inger-Johanne Sand & Gunther Teubner eds., Hart Publishing 2004) [FN99]. Id. at 192-93. [FN100]. Bardo Fassbender, Sovereignty and Constitutionalism in International Law, in SOVEREIGNTY IN TRANSITION 115 (Neil Walker ed., Hart Publishing 2003)
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[FN101]. Id. at 120; see also MICHAEL BYERS/GEORG NOLTE (EDS.), UNITED STATES HEGEMONY AND THE FOUNDATIONS OF INTERNATIONAL LAW, (Cambridge University Press 2003); GERRY SIMPSON, GREAT POWERS AND OUTLAW STATESUNEQUAL SOVEREIGNS IN THE INTERNATIONAL LEGAL ORDER (Cambridge University Press 2004) (for a rich debate of the recent literature). [FN102]. Fassbender, supra note 100, at 127-28. [FN103]. Id. at 131. [FN104]. Id. at 132. [FN105]. Id. at 135; see also Bardo Fassbender, The United Nations Charter as Constitution of the International Community, 35 COLUM. J. TRANSNAT'L L. 529 (1998). [FN106]. Fassbender, note 100, at 136-37 (emphasis added) (noting other authors following a similar line of thought in footnote 92 of Fassbender's text). [FN107]. ULRICH FASTENRATH, LCKEN IM VLKERRECHT, 125 et seq. (Duncker und Humblot, Berlin 1991) (where the author translates the term Strukturprinzipien des Vlkerrechts, to general principles of international law). [FN108]. Hermann Moster, General Principles of Law, 2 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 513 (published under the auspices of the Max Planck Institute for Comparative Public Law and International Law dir. of Rudolf Bernhardt, Elsevier, Amsterdam and others, 1999). [FN109]. See NIKLAS LUHMANN, RECHTSSOZIOLOGIE 40-53, 333-43 (2d ed. Westdeutscher Verlag, Opladen, 1983) (discussing the distinction between normative and cognitive expectations and the particular features of global law). [FN110]. See also Achilles Skordas, Order-building in global society: from self-determination of peoples to selfdetermination of international regimes, in TRANSNATIONAL CONSTITUTIONALISM: PERSPECTIVES ON THE EUROPEAN AND INTERNATIONAL MODELS (Nicholas Tsagourias ed. forthcoming Cambridge University Press 2006) (for an alternative viewpoint on this subject). [FN111]. Grinne de Brca, Sovereignty and the Supremacy Doctrine of the European Court of Justice in SOVEREIGNTY IN TRANSITION 449 (Neil Walker ed., Hart Publishing 2003) [FN112]. Id. at 459-60. [FN113]. Jo Shaw, Sovereignty at the Boundaries of the Polity in SOVEREIGNTY IN TRANSITION 461 (Neil Walker ed., Hart Publishing 2003) [FN114]. Id. at 477-82. [FN115]. Id. at 482-94. [FN116]. Chae Chan Ping v. United States, 130 U.S. 581 (1889). [FN117]. See MATHIAS ALBERT, ZUR POLITIK DER WELTGESELLSCHAFT 83-202 (Velbrck Wissenschaft, Weilerswist 2002) (providing a sociological analysis of this subject). [FN118]. Peter van Krieken, The Netherlands and Non-integration, 40 Q. REFUGEE PROBLEMS 190 (2002).
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[FN119]. Leyla Sahin v. Turkey, Eur. Ct of H. R. (Grand Chamber), application no. 44774/98, Judgment of November 10, 2005, available at http:// echr.coe.int; see also Commission de rflexion sur l'application du principe du laicit dans la Rpublique, Rapport au Prsident de la Rpublique, Dec. 11, 2003, LE MONDE, Dec. 12, 2003; Editorial INT'L HERALD TRIBUNE, Dec. 19, 2003, at 8 (The decision of French President Chirac to ban conspicuous religious symbols, mainly headscarves, from schools, was characterized as secular fundamentalism); 2 BvR 1436/02 of September 24, 2003, available at http://www.bundesverfassungsgericht.de/cgi-bin/link.pl?entscheidungen (accessed on June 13, 2005) (Germany takes an intermediate position, in that the Federal Constitutional Court decided that, unless the Lnder decide otherwise, teachers are entitled to wear the headscarf.). [FN120]. Jacques Ziller, Sovereignty in France: Getting Rid of the Mal de Bodin, in SOVEREIGNTY IN TRANSITION 261 (Neil Walker ed., Hart Publishing 2003) [FN121]. Id. at 262-64; see also HENRY KISSINGER, DIPLOMACY 56 et seq. (Simon & Schuster, New York, 1994) (discussing the French origins of the related concept of raison-d' Etat, as applied by Cardinal Richelieu, and the marginalization of Germany as consequence of his policies during the Thiry-Years War (1618-1648)). [FN122]. Ziller, supra note 120, at 264-70. [FN123]. Id. at 270-77. [FN124]. Id. at 277. [FN125]. Miriam Aziz, Sovereignty ber Alles: (Re)Configuring the German Legal Order, in SOVEREIGNTY IN TRANSITION 279 (Neil Walker ed., Hart Publishing 2003). [FN126]. See The Reunification of Germany of the 51 ZARV 333-528 (1991) (on the legal aspects of the German question, with contributions of Jochen Abr. Frowein, Stefan Oeter, Thomas Giegerich, Torsten Stein and Gnter E. Wilms). [FN127]. See Francis Fukuyama, Re-Envisioning Asia, 84 FOREIGN AFF. 75 (2005). [FN128]. Aziz supra note 125, at 282-85. [FN129]. Id. at 297-303. [FN130]. Id. at 289-96. [FN131]. Id. at 285-89. [FN132]. Judgment of July 12, 1994, 106 INT'L L. REP. 319-52. [FN133]. Federal Constitutional Court (Judgment of October 12, 1993), 33 I.L.M. 388-444 (1994). [FN134]. See http://www.bverfg.de/entscheidungen/rs20050718_2bvr223604.html (last visited July 26, 2005); see also the press release in English language, available at http://www.bundesverfassungsgericht.de/cgi-bin/link.pl? entscheidungen (last visited July 26, 2005). [FN135]. Federal Constitutional Court, 2 BvF 2/02, (Judgment of July 27, 2004), available at http://www.bverfg.de/entscheidungen/fs20040727_ 2bvf000202.html (last visited June 15, 2005). [FN136]. Marta Cartabia, The Legacy of Sovereignty in Italian Constitutional Debate in SOVEREIGNTY IN TRANSITION 305 (Neil Walker ed., Hart Publishing 2003).
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[FN137]. Id. at 310-12. [FN138]. Id. at 315-19. [FN139]. Id. at 315. [FN140]. Id. at 318-19. [FN141]. Id. at 321-27. [FN142]. Kenneth Armstrong, United KingdomDivided on Sovereignty?, in SOVEREIGNTY IN TRANSITION 327 (Neil Walker ed., Hart Publishing 2003). [FN143]. Id. at 334. [FN144]. A and others (Appellants) v. Secretary of State for the Home Department, X and another v. Secretary of State for the Home Department[2004] UKHL56, available at http:// www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd041216/a&oth-1.htm (last visited June 15, 2005). [FN145]. Id. [FN146]. Bruno de Witte, Do Not Mention the Word: Sovereignty in Two Europhile Countries: Belgium and The Netherlands in SOVEREIGNTY IN TRANSITION 351 (Neil Walker ed., Hart Publishing 2003). [FN147]. Id. at 356-57. [FN148]. Id. at 362. [FN149]. Id. at 359. [FN150]. Id. at 360. [FN151]. See NIKLAS LUHMANN, LAW AS A SOCIAL SYSTEM ch. 2 (Klaus Ziegert trans. Oxford University Press 2004); see also GUNTER TEUBNER, RECHT ALS AUTOPOIETISCHES SYSTEM, (Suhrkamp. Frankfurt/ Main 1989) (discussing autopoiesis of law). [FN152]. Cezary Mik, State Sovereignty and European Integration: Public International Law, EU Law and Constitutional Law in the Polish Context, in SOVEREIGNTY IN TRANSITION 367 (Neil Walker ed., Hart Publishing 2003). [FN153]. Anneli Albi, Postmodern versus Retrospective Sovereignty: Two Different Discourses in the EU and the Candidate Countries?, in SOVEREIGNTY IN TRANSITION 401 (Neil Walker ed., Hart Publishing 2003). [FN154]. Id. at 416. [FN155]. Id. at 401-07. [FN156]. Id. at 407-15. [FN157]. Id. at 407. [FN158]. Mik, supra note 152, at 374. [FN159]. Id. at 389.
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[FN160]. Id. at 375. [FN161]. Fassbender supra note 100, at 124-31. [FN162]. Mik, supra note 152, at 392. [FN163]. Letter of the 8, WALL STREET J. (Eastern Edition), Jan. 30, 2003, at A14 (co-signed, inter alia, by the Czech President and the Prime Ministers of Hungary and Poland). [FN164]. Statement by the Foreign Ministers of Albania, Bulgaria, Croatia, Estonia, Latvia, Lithuania, Macedonia, Romania, Slovakia, and Slovenia, available at http://www.iraqwatch.org/government/Bulgaria/vilnius-020503.htm (last visited June 1, 2005); see also Quentin Peel, James Harding, Judy Dempsey, Gerard Baker & Robert Graham, The Plot that Split Old and New Europe, FINANCIAL TIMES, May 27, 2003 (analyzing the drafting history of these letters). [FN165]. N. Y. TIMES, Feb. 19, 2003, at 1 (noting that the French President derided these countries for being badly brought up and having missed an opportunity to keep quiet). [FN166]. Statement of President Chirac during a debate with the youth on TFI on the occasion of the referendum, available at http:// elysee.fr/elysee/root/bank/print/29361.htm (last visited May 30, 2005) (Alors, il y avait deux solutions: la solution du laisser-aller, un peu celle que nous avons jusqu'ici poursuivie, c'est--dire une solution conduisant une Europe pousse par le courant ultralibral et une Europe, disons, anglo-saxonne, atlantiste. Ce n' est pas celle que nous souhaiton.) (emphasis added). [FN167]. See infra Part IV.C.3. [FN168]. Jeffrey Goldsworthy, The Debate About Sovereignty in the United States: A Historical and Comparative Perspective, in SOVEREIGNTY IN TRANSITION 423 (Neil Walker ed., Hart Publishing 2003) [FN169]. Id. at 423. [FN170]. Id. at 430-32. [FN171]. Id. at 443. [FN172]. Id. at 444. [FN173]. Id. at 445. [FN174]. The case for Europe, INT'L HERALD TRIBUNE, May 28-29, 2005, at 6 (At the eve of the French referendum, J. Solana stated the following: The third reason for supporting Europe is global power .... But being a bystander, accepting the status-quo, is not the European way. Europe has to be engaged. And we have to act together, for what is each of us capable of achieving alone? We can already see the contours of a new international order where new powers s such as China, India and others will play leading roles. Unless we club together, future historians may conclude that, at the beginning of the 21st century, Europe's moment came and went). [FN175]. In the debate with the youth of April 14, 2005, President Chirac was even more explicit, in that the ratification of the European Constitution was necessary for France and for Europe to resist the pressure of other major powers, primarily of the United States: Deuximement, le monde volue vers de plus en plus de grandes puissances, les puissances actuelles comme les Etats-Unis d'Amrique mais aussi des puissances qui mergent et qui sont considrables: la Chine, l'Inde, demain le Brsil et l'Amrique du Sud. la Russie. Des grandes puissances qui, tout naturellement, ont l'intention ou la volont d'imposer leur volont .... Ces puissances, nous ne lutterons pas contre
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elles individuellement. La France n'en a pas la possibilit. Et si nous voulons, devant cette volution, avoir une rflexion et une raction, nous devons avoir une organisation. L'Europe doit tre forte et organise pour s' opposer cette volution, available at http:// elysee.fr/elysee/root/bank/print/29361.htm (last visited May 30, 2005) ((emphasis added)). [FN176]. John Vinocur, After French no vote, all bets are off on EU, INT'L HERALD TRIBUNE, May 31, 2005, at 2. [FN177]. J.H.H. Weiler & Joel P. Trachtman, European Constitutionalism and Its Discontents, Symposium: Institutions for International Economic Integration 17 NW. J. INT'L & BUS. 354, 379 (1996/1997). [FN178]. Miguel Poiares Maduro, Contrapunctual Law: Europe's Constitutional Pluralism in Action, in SOVEREIGNTY IN TRANSITION 501 (Neil Walker ed., Hart Publishing 2003). [FN179]. Id. at 523. [FN180]. Id. at 525. [FN181]. Id. at 536 (emphasis added). [FN182]. Ernst-Ulrich Petersmann, From State Sovereignty to the Sovereignty of Citizens' in the International Relations Law of the EU?, in SOVEREIGNTY IN TRANSITION 145 (Neil Walker ed., Hart Publishing 2003). [FN183]. Id. at 148. [FN184]. Id. at 149-50. [FN185]. Id. at 150. [FN186]. Id. [FN187]. Ernst-Ulrich Petersmann, Time for a United Nations Global Compact for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration, 13 EUR. J. INT'L L. 621 (2002); Philip Alston, Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann, 13 EUR. J. INT'L L. 815 (2002); Ernst-Ulrich Petersmann, Taking Human Dignity, Poverty and Empowerment of Individuals More Seriously: Rejoinder to Alston, 13 EUR. J. INT'L L. 845 (2002). [FN188]. Petersmann, supra note 187, at 629. [FN189]. Id. at 623. [FN190]. Treaty of the European Union art. 6, para. 1, Feb. 7, 1992, 1992 O.J. (C 191) 1, 31 I.L.M. 253 (Union Treaty or Maastricht Treaty). (The Union is founded on the principle of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the member states.). [FN191]. See the System of the Human Rights Protection of the Council of Europe, available at http://www.coe.int. [FN192]. Cf. Jo Shaw, Process and Constitutional Discourse in the European Union, 27 J. LAW & SOC'Y 4 (2000). [FN193]. Weiler & Trachtman, supra note 177, at 384. [FN194]. Id. at 381. [FN195]. Lisbon European Council, Presidency Conclusions, March 23-24, 2000, available at ht-
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tp://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/00100-rl.en0.htm (last visited June 2, 2005). See JULIO BAQUERO CRUZ, BETWEEN COMPETITION AND FREE MOVEMENT: THE ECONOMIC CONSTITUTIONAL LAW OF THE EUROPEAN COMMUNITY (Oxford, Hart Publishing 2002) (discussing the Union's economic constitution). [FN196]. Lisbon European Council, Presidency Conclusions, supra note 195. [FN197]. Id. [FN198]. Id. [FN199]. Id. [FN200]. Id. [FN201]. Id. (The shift to a digital, knowledge based economy, prompted by new goods and services, will be a powerful engine for growth, competitiveness and jobs ... fully integrated and liberalized telecommunications markets should be completed by the end of 2001.). [FN202]. Id. [FN203]. Id. 17. [FN204]. Id. [FN205]. Id. 20-23. [FN206]. Treaty Establishing the European Community, art. 104, 3, 2002 O.J. (C 325) 33, (The excessive deficit procedure is introduced, if a Member State does not fulfill the requirements under one or both of these criteria). [FN207]. Presidency Conclusions, European Council, Brussels, 23 March 2005, 7619/05, Concl. 1, Annex II, 3.2. [FN208]. Id. at 3.3., 3.4. [FN209]. Id. [FN210]. Id. [FN211]. Statement of the Governing Council of the ECB of March 21, 2005, available at http://www.ecb.int/press/pr/date/2005/html/pr050321.en.html (last visited June 15, 2005) (The Governing Council of the ECB is seriously concerned about the proposed changes to the Stability and Growth Pact. It must be avoided that changes in the corrective arm undermine confidence in the fiscal framework of the European Union and the sustainability of public finances in the euro area Member States. As regards the preventive arm of the Pact, the Governing Council also takes note of some proposed changes which are in line with its possible strengthening. - Sound fiscal policies and a monetary policy geared to price stability are fundamental for the success of Economic and Monetary Union. They are prerequisites for macroeconomic stability, growth and cohesion in the euro area. It is imperative that Member States, the European Commission and the Council of the European Union implement the revised framework in a rigorous and consistent manner conducive to prudent fiscal policies. More than ever, in the present circumstances, it is essential that all parties concerned fulfil their respective responsibilities. The public and the markets can trust that the Governing Council remains firmly committed to deliver on its mandate of maintaining price stability.). [FN212]. See supra Part II.B.
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[FN213]. See Proposal for a Directive of the European Parliament and of the Council on Services in the Internal Market [SEC(2004) 21]. COM(2004) 2 final 3, of 5.3.2004, 2004/0001 (COD). [FN214]. Economic Assessment of the Barriers to the Internal Market for ServicesFinal Report, Copenhagen Economics, (Jan. 7, 2005), available at http://europe.eu.int/comm/internal_market/services/does/services-dir/studies/2005-01-cph-study_en.pdf (last visited June 25, 2005). [FN215]. See arts. 16-19 of the proposal of a directive on services. [FN216]. Economic Assessment of the Barriers to the Internal Market for Services supra note 213, at 7-8; see also some examples the Directive would help to solve, available at http://europe.eu.int/comm/internal_ market/services/docs/services-dir/guides/examples-problems-solved_en.pdf (last visited June 7, 2005). [FN217]. See The Commission Staff Working Paper, Report on the Application of Internal Market Rules to Health ServicesImplementation by the Member States of the Court's Jurisprudence, SEC(2003) 900, 28.07.2003 (in particular Annex 1). [FN218]. Proposal for a Directive of the European Parliament and of the Council on services in the internal market, Explanatory Memorandum, at 14. [FN219]. Press release of March 23, 2005, www.eu2005.lu/en/actualites/communiques/2005/03/22conseurserv/index.html. [FN220]. Id. [FN221]. EC TREATY art. 93, art. 111-171 of the draft European Constitution. [FN222]. See, e.g., Andreas Tzortzis, Flat-tax movement stirs Europe, CHRISTIAN SCIENCE MONITOR, Mar. 8, 2005, available at http:// www.christiansciencemonitor.com/2005/0308/p01s03-woeu.htm (last visited June 5, 2005); The case for flat taxes, THE ECONOMIST, Apr. 16, 2005 (U.S. edition). [FN223]. THE TIMES (London), Mar. 19, 2005; see also DAILY TELEGRAPH (London), Mar. 16, 2005 (as reported, the French Finance Minister snorted that any state rich enough to allow itself the luxury of a flat tax clearly did not require further net transfers from Brussels). [FN224]. See JOSEPH NYE, SOFT POWERTHE MEANS TO SUCCESS IN WORLD POLITICS 75-83 (Public Affairs 2004) (discussing Europe's soft power). [FN225]. Council Joint Action 2003/92/CSFP Jan. 27, 2003, OJEU L 34/26, 11.02.2003; Council Decision 2003/202/CFSP Mar. 18, 2003, OJEU L 76/43, 22.03.2003; Council Decision 2003/563/CFSP July 29,2003, OJEU L 190/20, 30.07.2003. [FN226]. Council Joint Action 2003/681/CFSP Sept. 29, 2003, OJEU L 249/66, 01.10.2003; Council Joint Action 2004/789/CFSP of Nov. 22,2004, OJEU L 348/40, 24.11.2004. [FN227]. Council Joint Action 2003/423/CFSP June 5, 2003, OJEU L 143/50 of 11.06.2003. [FN228]. Council Joint Action 2004/847/CFSP Dec. 9, 2004, OJEU L 367/30, of 14.12.2004. [FN229]. Council Joint Action 2002/210 Mar. 11, 2002, OJEC L 70/1, 13.03.2002. [FN230]. Council Joint Action 2004/570/CSFP July 12, 2004, OJEU L 252/10, 28.07.2004, Arts. 2 and 3; Council available at http://
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Decision 2004/803/CFSP, Nov. 25 2004. [FN231]. Council Joint Action 2004/523/CFSP, OJEU L 228/21, 29.06.2004. [FN232]. Council Joint Action 2005/190/CFSP Mar. 7, 2005. [FN233]. Council Joint Action 2005/355/CFSP May 2, 2005, OJEU L 112/20, 03.05.2005. [FN234]. See the relevant texts, available at http:// ue.eu.int/showPage.asp? id=282&lang=en&mode=g (last visited June 8, 2005); see also the ESDP Presidency Report, endorsed by the European Council on December 17, 2004, available at http://ue.eu.int/uedocs/cmsUpload/ESDP%20Presidency%CC20Report%% 2017.12.04.pdf (discussing the practice of this cooperation). [FN235]. See COUNCIL OF THE EUROPEAN UNION, Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, 15579/03, PESC 757 FIN 568, (Dec. 3, 2003); see also European Sanctions Index, available at http:// europa.eu.int/comm/external_relations/cfsp/sanctions/index.htm (discussing the EU sanctions policies in general). [FN236]. See Panos Koutrakos, Constitutional Idiosyncrasies and Political Realities: The Emerging Security and Defense Policy in the European Union, 10 COLUM. J. EUR. L. 69, 96 (2003). [FN237]. Commission Communication, European Neighborhood PolicyStrategy Paper, COM (2004) 373 final, 12.05.2004 (The states concerned are Russia, the Western Newly Independent States Ukraine, Belarus and Moldova, the Southern Caucasus states Georgia, Armenia and Azerbaijan, and the states participating in the Barcelona process, namely Algeria, Egypt, Israel, Jordan, Lebanon, Morocco, Syria, Tunisia, as well as the Palestinian Authority.). [FN238]. Stabilization and Association Process available europe.eu.int/comm/external_relations/see/actions/index.htm (last visited June 8, 2005). [FN239]. European Neighborhood PolicyStrategy Paper, supra note 236, at 13-14. [FN240]. See The 2004 Regular Report on Turkey's progress towards accession, COM (2004) 656 final, SEC (2004) 1201, 06.10.2004, available at http://europe.eu.int/comm/enlargement/report_2004/pdf/rr_tr_2004_en.pdf (last visited June 13, 2005) (noting that Turkey has made a significant progress since 1999, when the European Council opened the perspective of the country joining the Union). [FN241]. A good example is the Greek-Turkish dtente since 1999. [FN242]. See INTERNATIONAL COMMISSION ON THE BALKANS REPORT, The Balkans in Europe's Future, (Apr. 2005), available at http://www.balkan-commission.org (last visited June 10, 2005); see also Achilles Skordas, Serbia, Montenegro and Kosovo: A Benelux in the Balkans?, available at http:// www.westernpolicy.org/Commentary/Commentary71.asp (last visited June 10, 2005); Achilles Skordas, Transnistria: Another Domino on Russia's Periphery? I YALE J. INT'L AFF. 33-46. [FN243]. See KARL-HEINZ LADEUR, NEGATIVE FREIHEITSRECHTE UND GESELLSCHAFTLICHE SELBSTORGANISATIONDIE ERZEUGUNG VON SOZIALKAPITAL DURCH INSTITUTIONEN (Mohr Siebeck, Tbingen 2000) (discussing the relationship between negative rights and social order-building in general). [FN244]. See The Bologna Declaration, available at http://www.bologna-bergen2005.no/ (last visited June 12, 2005). [FN245]. Id. [FN246]. The Bergen Ministerial Meeting, available at htat http://
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tp://www.bologna-bergen2005.no/Bergen/050519-20_Participants.pdf/ (last visited Nov. 18, 2005). [FN247]. The European Higher Education Area: Communique of the Conference of European Ministers Responsible for Higher Education, available at http:// www.euto.urv.es/eeuropeu/documentacio/BergenMaig05.pdf. [FN248]. Gunther Teubner, Substantive and Reflexive Elements in Modern Law, 17 LAW & SOC'Y REV. 239, 275 (1983). 12 Colum. J. Eur. L. 241 END OF DOCUMENT
15 JTLP 97 15 J. Transnat'l L. & Pol'y 97
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Journal of Transnational Law & Policy Fall, 2005 Article EUROPEAN ASYLUM LAW: RACE-TO-THE-BOTTOM HARMONIZATION? James D. Fry [FNa1] Copyright (c) 2005 Journal of Transnational Law and Policy; James D. Fry I. Introduction As European states have inched towards greater legal harmony in the past decade, asylum law has remained the least coordinated. For starters, asylum is still determined by EU member states' national laws, which vary significantly. [FN1] At least one group of scholars sees the development of asylum law as occurring on the bilateral level between states, not from the top down through broad European harmonization. [FN2] This is in stark contrast to the U.S. federal powers over asylum and immigration, [FN3] which derive from the implicit need to preserve sovereignty and arguably from Article I, Section 8, clause 4 of the U.S. Constitution. In fact, in Europe, cooperation seems preferred to harmonization, leaving much discretion to the member states. [FN4] If forced to choose one word to capture the essence of European asylum law, it would be cleaving, which simultaneously can mean to join together and to break apart. Such schizophrenia appears when reviewing asylum law and policy of the past decade, with little hope of meaningful harmonization in the near future, especially with the EU Constitution on the brink of rejection. [FN5] This article is divided into three sections. Section II traces the efforts to harmonize European asylum law to the present. Section III explores the reasons why it has been so hard to reach harmonization. Section IV addresses the popular idea that states are in a race to the bottom with asylum law, an idea this article rejects on account of faulty assumptions. Rather than linear, European asylum law's progress is cyclical, following a number of key indicators such as the business cycle, the waxing and waning of certain conflicts, and popular sentiments towards asylum in particular and immigration in general. Without federalization of the EU and asylum law, asylum law is doomed to a relatively fragmented existence. Rational choice theory, which suggests that politicians will make decisions that maximize their chances of re-election, serves as the framework for understanding the cyclical nature of asylum law in Europe. Indeed, this incentive to appease public concerns over immigration issues has been observed since the 1970s in Europe. [FN6] When selecting its asylum policy, governments of host states must consider the interests of four groups: the electorate, other host states, asylum seekers and the countries of origin for those seekers. [FN7] The interests of other host states and asylum seekers would likely push for greater harmonization in order to advance predictability and coherence throughout the system. However, these groups typically have few constituents in the electorate, thus severely limiting their influence on politicians. The electorate in general will carry the most influence with politicians, subjecting asylum policy to the public's whims, which are often cyclical, depending on numerous factors discussed in Section IV. Finally, it must be noted that it would be impossible to provide a comprehensive overview of European asylum law, as there is much soft law and convoluted debate. Instead, this article merely provides a critical analysis of some of the issues from, admittedly, the perspective of an outsider.
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II. A Brief History of Asylum Law Harmonization To begin, it is important to note that European asylum law is inextricably linked to the free movement of persons, [FN8] as third-country nationals can move freely within the Community once they have crossed external borders. [FN9] The European Community (EC) began to realize the free movement of persons in 1986 with the gradual removal of internal borders through the adoption of the Single European Act, and with it the coordination of policy regarding access and movement of these individuals. The European Council adopted the Palma Document in 1989, which aimed at harmonizing asylum law by calling for the creation of a convention to determine the state responsible for asylum applications and for rules to govern free movement of asylum seekers, among other things. [FN10] The idea of free movement was further developed through working groups that established the foundations for the Dublin and Schengen Conventions, [FN11] which, among other things, seek to limit asylum seekers to one request throughout the European Union. [FN12] The system started to work in 1995 under Chapter 7 of the Schengen Convention, which had many states that opted into it, and was incorporated into the EU system under the Schengen Protocol. It must be emphasized that these Conventions were not for harmonizing the rules for reviewing asylum applications, but instead for ensuring that only one state reviewed the application. [FN13] Meanwhile, the 1993 Treaty on European Union concluded in Maastricht provided the competency to the European Union to cooperate on asylum and immigration issues. [FN14] While the European Union dealt with asylum procedures and refugee status during this time, this soft law had little domestic impact because it was covered by the Co-operation in the Fields of Justice and Home Affairs (CJHA) provisions. The Treaty of Amsterdam shifted this competency from this third pillar to the first pillar of the European Communities, the European Community Treaty itself. [FN15] This change is significant because it dealt with the concerns expressed before the Amsterdam Treaty about the paucity of judicial protection for individual asylum seekers. [FN16] Moreover, the Amsterdam Treaty provided the EC with the ability to adopt binding measures on immigration and asylum. That said, the European Court of Justice (ECJ) is still limited by its inability to address internal borders if the issue deals with the maintenance of law and order or safeguarding security. [FN17] In addition, the Treaty Establishing the European Community (TEC) Article 68(1) limits the jurisdiction of the ECJ for preliminary rulings to national court decisions where there is no remedy under Community law. [FN18] While this provision limits the burden on the Court from asylum seekers, it places a significant barrier on these asylum seekers who typically do not have the finances to appeal a decision to the highest national courts. [FN19] Therefore, the Amsterdam Treaty does not go far enough in protecting asylum seekers. Regardless, the EC has used its competency found in TEC Article 63, to pass numerous directives, regulations and decisions in creating what has become known as the Common European Asylum System (CEAS). [FN20] This system started with a special European Council in Tampere in 1999, which had the aim to implement Title IV, by creating a common asylum policy. [FN21] The metaphor fortress Europe, which has been used to describe the restrictive access to the European Union given to third-country nationals, is supported by nine articles comprising Title IV. [FN22] Article 61 provides the tasks needed to establish progressively an area of freedom, security and justice through border control[] measures aimed at ensuring free movement of persons in accordance with Article 14 plus flanking measures in respect of external border controls, asylum, and immigration. [FN23] In line with this and other articles, the Tampere Council's goals were to partner with the countries of origin to make those states more attractive to their own people, establish a common European asylum system for procedure and recognition of asylum under the 1951 Geneva Convention, encourage fair treatment of third-country nationals, and efficiently manage migration flows. [FN24] CEAS has further developed through numerous directives and regulations: 2003 Dublin II Regulation (mirroring the Dublin Convention); 2000 and 2002 regulations on EURODAC; 2004 Qualification Directive; 2001 Directive on Temporary Protection; 2003 Reception Directive; and the 2000 and 2005
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Decisions on the European Refugee Fund. [FN25] However, as explained in Section III, these directives have not harmonized European asylum law or policy as the Tampere Council had hoped. Instead, these directives established a minimum standard of protection, which many think states are reluctant to go beyond. In this regard, European national asylum laws and policies may be seen as harmonizing through a race to the bottom, though Section IV refutes this assertion. In short, the main problem with all of the instruments mentioned above, and the general spirit of the asylum regulation regime in Europe after the Tampere Council, is that most are one-sided in trying to control asylum seekers, not in protecting them through the bestowal of rights and freedoms. [FN26] Admittedly, the Qualification Directive, the Directive on Temporary Protection, and the Reception Conditions Directive all protect asylum seekers to a certain degree. For example, Article 3 of the Dublin Regulation provides clear rights for EU member states, including the right to examine any asylum application regardless of whether an obligation to examine the application exists. [FN27] However, these are the states' rights, with the individual asylum seekers only having the right under Article 3(4) to be informed in writing of the application of these regulations. [FN28] Admittedly, Articles 13 and 18 of the Qualification Directive appear to grant individuals the right to refugee status when they meet the requirements in Chapters II and III of that Directive. [FN29] However, these instruments are still soft law. More than these protective measures, control measures have received stronger focus following the Amsterdam Treaty, [FN30] sometimes at the cost of conflicting with the 1951 Geneva Convention. [FN31] Such a focus on security likely has been influenced by post-9/11 and post-Madrid security concerns. [FN32] Indeed, all of the short-term measures proposed by the Action Plan of the Council and the Commission in implementing the Treaty Amsterdam, adopted in December 1998, deal with preventing third-country nationals from reaching the external borders of the European Union. [FN33] Primarily, these rules on visas harmonize the penalties on carriers of potential asylum seekers. [FN34] The longer-term measures focus merely on stemming system abuse by visa applicants and improving uniform visa security specifications. [FN35] Moreover, the Presidency Conclusions of the European Council concluded at a summit on asylum and immigration in Tampere in October 1999 that they must develop a common active policy on visas and false documents, including closer co-operation between EU consulates in third countries, and closer cooperation and mutual technical assistance between the member states' border control services. [FN36] Moreover, the Seville European Council made a common asylum policy a high priority, but this was primarily to allay security concerns, not to help in seekers' protection. [FN37] All of these points indicate that there is little discernable discussion about the favorable treatment of third-country nationals trying to enter the European Union. One somewhat positive development for asylum seekers is that the transfer system, established by the Dublin and Schengen Conventions, is in alleged disarray, with only one percent of successful transfers under the regime. [FN38] Indeed, member states view the system in such disarray that they are reluctant to request transfers. [FN39] However, such disarray can only be of marginal comfort to asylum seekers in search of real protection and fair treatment. The measure that would best protect them-a right to seek asylum-is noticeably missing in all the key binding instruments, [FN40] including the European Convention on Human Rights. [FN41] With immigration remaining a highly charged political topic, even in states such as the United Kingdom where asylum applications are markedly down, [FN42] it is unlikely that this focus on security and restriction will change in the near future. III. The Current Struggle to Harmonize The European Commission and Council would point to the CEAS as a harmonized system. However, as already mentioned, national laws on substantive and procedural components for asylum remain diverse despite efforts to harmonize asylum law. [FN43] Indeed, only the rules on entry are truly harmonized throughout the EC. [FN44] This is so despite Article 2 of the Treaty of the European Union's (TEU) object-
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ive to adopt appropriate measures to regulate asylum, and the Article 14 requirement to harmonize national visa and asylum law. [FN45] These broad goals aside, there are at least two policy reasons to harmonize asylum laws. First, under the principle of the free movement of persons, once an asylum seeker is in an EU member state, it is very difficult to control his or her movement. If there are substantial differences in the processing of asylum applications, then those states will be inundated with applications. Similarly, if there are substantial differences in the treatment of refugees once admitted, then those states will be inundated with refugees. Both types of states will have an incentive to worsen the situation and to discourage such inundation, leading potentially to a race to the bottom. Second, such differences could make it difficult to return or transfer these asylum seekers under the Dublin II Regulation. Under the Dublin system, the first state that deals with an asylum seeker retains responsibility for processing that application. [FN46] If a state is too liberal in letting seekers in, then it may face tremendous responsibilities in the future. Therefore, states have the incentive to become more restrictive at the beginning of the process. If states have different interpretations of such key terms such as refugee, or are otherwise disharmonized, the Dublin system will not work properly. [FN47] It should be noted that the provisions discussed in Section I have not expressly tried to harmonize asylum law. On the contrary, they have attempted to create the minimum safeguards for the procedures in processing applications, leaving the actual level of protection to be determined by the states. Such levels of protection vary. Indeed, Article 63(2)(a) of the TEC imposes obligations to adopt minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection. [FN48] The rest of Article 63 contains similar minimum standards language with regard to reception of asylum seekers in member states and on qualifications as refugees. [FN49] Such language falls short of a call for harmonization. Indeed, Article 63's measures are clearly not comprehensive for asylum. [FN50] For example, there is no mention of integration for asylum seekers. At a minimum, a comprehensive list of measures regarding asylum is needed. There are several factors affecting the cyclical nature of asylum law, which frustrate efforts to harmonize these laws. First, the start and end of certain conflicts significantly impacts the pressure within a state to tighten or loosen asylum policies. For example, the flare-up of civil war in Bosnia, coupled with Germany's restrictive asylum policy in 1993, led to the Netherlands' highest number of asylum applications since the Second World War. [FN51] As that conflict subsided, the number of asylum applications subsided as well. This same phenomenon was also observed in West Germany, [FN52] with a recent drop in asylum applications resulting from the removal of unpopular Afghan and Iraqi governments. [FN53] The clearest cyclical nature of asylum seeking has been in Austria, where there have been surges of applications following each conflict in Eastern Europe-for example, the 1956 Hungarian uprising, the 1968 suppression of the Prague Spring, and the 1981 establishment of martial law in Poland. [FN54] Similar cyclical interests in asylum have been observed with regard to the European business cycle, where governments severely restricted immigration controls, including asylum, in proportion to rising unemployment in the late 1970s. [FN55] Even without an economic downturn, the electorate may become more xenophobic as third-country nationals flow into a country. This has been the case with the United Kingdom, [FN56] and is feared to happen in Spain following its most recent amnesty to 700,000 illegal immigrants. [FN57] Moreover, scandals such as reports of bogus refugees, can inflame public opinion and stigmatize asylum seekers similar to what was observed in Germany in the early 1990s. [FN58] With regard to the business cycle, access to full rights can be expensive for a host state. As fiscal policy tightens with the downturn of the business cycle, pressure increases to cut benefits to the minimum standards under the European Convention on Human Rights. For example, this is what happened with the new government in Denmark. [FN59] While there is some talk of establishing better burden sharing between states of these expenses, such ideas have not yet been implemented.
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IV. The Race to the Bottom Fallacy Even though the provisions in Section II are not aimed at harmonizing asylum law, the minimum standards established by the instruments discussed in Section III above are believed to be leading to harmonization through state reluctance to venture beyond these minimums for fear of being inundated by asylum shoppers. [FN60] The directives and regulations try to create the minimum safeguards for processing an application for asylum, temporary protection, and recognition of refugee status. [FN61] The problem will be that states are often tempted to stay at the minimum level. Indeed, there is very little incentive to give more than the minimum for fear of becoming viewed as attractive to asylum seekers. Media campaigns help get the word out to migrant networks, which then spread the word to potential asylum seekers to seek refuge in other, more hospitable states. However, commentators who see a race to the bottom overlook the possibility, or even the reality, that states can at times desire the admission of asylum seekers and other immigrants. [FN62] Such desires reverse the incentive structure outlined above in Section III, and states at least stop trying to make their country seem inhospitable. At best, such desires make states seem welcoming to seekers. Criticsmay question why states would want to become inviting to asylum seekers. There are at least three reasons. First, it has been well documented that most of Europe's population is aging due to its generally low birthrate. [FN63] Second, these demographic concerns throughout Europe and the shortage of skills in key sectors lead all states within the European Union to need increased skilled and unskilled labor. [FN64] Such labor is needed if the European Union is to achieve the Lisbon strategy to make the European Union the most competitive economy of the world. [FN65] Finally, many states are sincerely concerned about the plight of asylum seekers. Admittedly such concerns occasionally may take a back-seat to the political reality of populist politics, but the states' obligations under the 1951 Geneva Convention still remain the underlying shaper of asylum policy. [FN66] Just as states might want to increase admission of asylum seekers and other immigrants, states' attitudes can quickly change under populist politics, leading governments to reverse course, making their states seem less hospitable. However, the underlying business and demographic interests, which are not likely to go away anytime soon, ensure that sentiments will shift back again as populist politics surrounding immigration subside. Such swings, between economic and political considerations, lead to a cyclical asylum policy not a linear race to the bottom. Moreover, as different states face different business cycles and varying political pressures with regard to asylum and immigration policies, it is highly unlikely that the sui generis asylum policies of the EU member states will synchronize without top-down unification of policy and law (perhaps through federalization of the EU and asylum law). The EU Constitution called for a common policy on asylum, immigration and external border control, based on solidarity between member states, which is fair towards third-country nationals. [FN67] However, as it recently has become clear that the Constitution is on its way to being rejected, [FN68] European asylum law appears doomed to an uncoordinated existence for a while longer. V. Conclusion As the number of EU member states increases from 15 to 25 to 27 and beyond, with the level of development of asylum laws and policies varying significantly between states, the need has never been greater for harmonization. Unfortunately, political compromise likely will tend to push the minimum standards lower. For the protection of asylum seekers, it would be best to harmonize these laws as opposed to leaving it to the member states to decide the level of protection. A drawback from this harmonization is that both a ceiling and floor will be established, limiting member states' ability to provide protection. Such an approach pits sovereignty against community values, leading to a narrower ceiling-floor gap, causing greater harmonization. That said, without greater harmonization, asylum seekers remain at risk of neglect and uncertain status.
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[FNa1]. Ph.D. Candidate (Geneva, HEI), LL.M. (Leiden), J.D. (Georgetown), M.I.A. (Columbia), B.A. (Brigham Young). The author wishes to thank Gregor Noll, Olivier de Schutter, Pieter Boeles, Rick Lawson and Herke Kranenborg for their invaluable comments. [FN1]. See Catherine Barnard, The Substantive Law of the EU: The Four Freedoms 432-33 (2004). [FN2]. See generally Rosemary Byrne, Gregor Noll & Jens Vedsted-Hansen, Understanding Refugee Law in an Enlarged European Union, 15 Eur. J. Int'l L. 355 (2004). [FN3]. See generally Eric Stein, Towards a European Foreign Policy?, The European Foreign Affairs System from the Perspective of the United States Constitution, in Integration Through Law 1, 1 (Mauro Cappelletti et al. eds., 1986). [FN4]. See Virginie Guiraudon, Before the EU Border: Remote Control of the Huddled Masses, in In Search of Europe's Borders 191, 196 (Kees Groenendijk et al. eds., 2003). [FN5]. See The European Union Constitution: Dead, but Not Yet Buried, The Economist, June 4, 2005, at 47. [FN6]. See Guiraudon, supra note 4, at 192-93. [FN7]. See Gregor Noll, Lecture at Leiden Univ. Honours Class: Whither Refugee Protection?: The Common European Asylum System (Apr. 25, 2005). [FN8]. See John Handoll, Free Movement of Persons in the EU 412 (1995). [FN9]. See Koen Lenaerts et al., Constitutional Law of the European Union 37 (2d ed. 2005). [FN10]. See Friedl Weiss & Frank Wooldridge, Free Movement of Persons Within the European Community 182 (2002). [FN11]. See Handoll, supra note 8, at 412. [FN12]. Belgium-France-Federal Republic of Germany-Luxembourg-Netherlands: Schengen Agreement on the Gradual Abolition of Checks at their Common Borders and the Convention Applying the Agreement, arts. 28-38, June 19, 1990, 30 I.L.M. 68, 95-100 [hereinafter Schengen Implementation Agreement]; Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities, June 15, 1990, 30 I.L.M. 427; Monica den Boer, Justice and Home Affairs: Cooperation Without Integration, in Policy-Making in the European Union 389, 400 (Helen Wallace & William Wallace eds., 3d ed. 1996). [FN13]. See U.K. Ass'n for European Law & Univ. Ass'n for Contemporary European Studies, Legal Issues of the Maastricht Treaty 272-73 (David O'Keeffe & Patrick M. Twomey eds., 1994). [FN14]. See Handoll, supra note 8, at 416-17. [FN15]. The Amsterdam Treaty also had an Asylum Protocol attached, which requires all EU member states to see one another as the same countries of origin, though providing a rebuttable presumption of this. However, the scope of that Protocol is severely limited. See TEC, infra note 17. [FN16]. See Lammy Betten & Nicholas Grief, EU Law and Human Rights 131 (1998). [FN17]. Consolidated Version of the Treaty on European Union and of the Treaty Establishing the European
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Community, art. 68, 2002 O.J. (C 325) 1, 61 [hereinafter TEC]; see also Betten & Grief, supra note 16, at 131. [FN18]. TEC, supra not [FN19]. 17. Weiss & Wooldridge, supra note 10, at 33. [FN20]. See Friedemann Kainer, The European Concept of Integration and the Area of Freedom, Security and Justice, in The Emerging Constitutional Law of the European Union 469, 480 (Adam Bodnar et al. eds., 2003). [FN21]. See Barnard, supra note 1, at 440 (noting that the implementation of Title IV was introduced by Amsterdam). [FN22]. See Kenneth A. Armstrong, Governance and the Single European Market, in The Evolution of EU Law 745, 752 (Paul Craig & Grainne de Burca eds., 1999). [FN23]. See also Barnard, supra note 1, at 439. [FN24]. See id. at 440-41. [FN25]. See Noll, supra note 7; see also Armstrong, supra note 22, at 754-75. [FN26]. See Weiss & Wooldridge, supra note 10, at 27. [FN27]. See Council Regulation 343/2003, art. 3(2), 2003 O.J. (L 50) 1, 3 (EC). [FN28]. Id. art. 3(4). [FN29]. See Council Directive 2004/83, arts. 13, 18, 2004 O.J. (L 304) 12 (EC). [FN30]. See Ryszard Cholewinski, No Right of Entry: The Legal Regime on Crossing the EU External Border, in In Search of Europe's Borders 105, 111 (Kees Groenendijk et al. eds., 2003). [FN31]. See Handoll, supra note 8, at 412. [FN32]. See Armstrong, supra note 22, at 754. [FN33]. See Cholewinski, supra note 30, at 111. [FN34]. See id.; see also Barnard, supra note 1, at 454. [FN35]. See Cholewinski, supra note 30, at 111. [FN36]. See id. at 111-12 (citing Tampere European Council: Presidency Conclusions, ober 16, 1999, Bull. EU 10-1999, 24, available at http:// europa.eu.int/abc/doc/off/bull/en/9910/i1007.htm). [FN37]. See Armstrong, supra note 22, at 754. [FN38]. See, e.g., Elspeth Guild, The Border Abroad-Visas and Border Controls, in In Search of Europe's Borders 87, 95 (Kees Groenendijk et al. eds., 2003). [FN39]. See, e.g., id.
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[FN40]. See, e.g., Schengen Implementation Agreement, supra note 12, art. 5; Cholewinski, supra note 30, at 111-12, 120. Please note the exception with Articles 13 and 18 of the Qualification Directive mentioned above. Council Directive, supra note 29. [FN41]. See generally Clare Ovey & Robin C.A. White, Jacobs and White: European Convention on Human Rights 82 (3d ed. 2002); but see Charter of Fundamental Rights (EC) No. 2000/C, art. 18, 2000 O.J. (C 364) 1, 12; Lenaerts et al., supra note 9, at 734. [FN42]. See From Flood to Trickle, The Economist, Sept. 4, 2004, at 55. [FN43]. See Steve Peers, EU Borders and Globalisation, in In Search of Europe's Borders 45, 66 (Kees Groenendijk et al. eds., 2003). [FN44]. See id. [FN45]. See Wolfgang Wei, Defining the EC Borders, in In Search of Europe's Borders 67 (Kees Groenendijk et al. eds., 2003) (citing Case C-387/97, Wijsenbeek, 1999 E.C.R. I-6207 at 6264, 40). [FN46]. See Council Regulation 343/2003, supra note 27, arts. 3, 5. [FN47]. See generally Noll, supra note 7. [FN48]. TEC, supra note 17, art. 63 [FN49]. Id. [FN50]. See Weiss & Wooldridge, supra note 10, at 30. [FN51]. See Kees Groenendijk, New Borders Behind Old Ones: Post-Schengen Controls Behind the Internal Borders and Inside the Netherlands and Germany, in In Search of Europe's Borders 131, 135 (Kees Groenendijk et al. eds. 2003). [FN52]. See Richard Davy, The Central European Dimension, in The Dynamics of European Integration 149 (William Wallace ed., 1990). [FN53]. See From Flood to Trickle, supra note 42. [FN54]. See Davy, supra note 52, at 14952. [FN55]. See Guiraudon, supra note 4, at 193. [FN56]. See From Flood to Trickle, supra note 42. [FN57]. See Let Them Stay, The Economist, May 14, 2005, at 56. [FN58]. See Guiraudon, supra note 4, at 194. [FN59]. See Noll, supra note 7. [FN60]. See Olivier de Schutter, Lecture at Leiden Univ. Honours Class: Towards a European Human Rights Policy (May 30, 2005). [FN61]. See Weiss & Wooldridge, supra note 10, at 172-74. Currently, there is only a draft directive on asylum procedures, so the minimum safeguards for processing applications still are not established.
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[FN62]. See de Schutter, supra note 60. [FN63]. See Barnard, supra note 1, at 441. [FN64]. See id.; see also Guiraudon, supra note 4, at 193. [FN65]. See Barnard, supra note 1, at 441. [FN66]. However, some commentators see the Spanish Protocol as a clear violation of the Geneva Convention in that it discriminatorily concluded that citizens of EU member states cannot be admitted to asylum procedures. See Noll, supra note 7; see also Deirdre M. Curtin & Ige F. Dekker, The EU as a Layered International Organization: Institutional Unity in Disguise, in The Evolution of EU Law 83, 127 (Paul Craig & Grainne de Burca eds., 1999) (suggesting that the Amsterdam Treaty is in violation of the Geneva Convention requirements for limiting the access of EU citizens to asylum procedures). [FN67]. Treaty Establishing a Constitution for Europe, art. III-257(2), Oct. 29, 2004, CIG 87/2/04; see also id. art. III-266. [FN68]. See The European Union Constitution: Dead, but not yet Buried, supra note 5. 15 J. Transnat'l L. & Pol'y 97 END OF DOCUMENT
10 UMIAICLR 13 10 U. Miami Int'l & Comp. L. Rev. 13
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University of Miami International and Comparative Law Review Fall, 2002 The University of Miami-University of Leipzig Bi-National Conference in Leipzig may 16-20, 2001 United States vs. European Union: Transatlantic Debate on Issues Close to Home II. European Security and Defense Policy: European Union vs. United States CRISIS OF TRANSATLANTIC RELATIONS: NATO AND THE FUTURE EUROPEAN SECURITY AND DEFENSE IDENTITY (ESDI) Mamedov Muschwig [FNa1] Copyright 2002 by University of Miami International and Comparative Law Review; Mamedov Muschwig Translated by Carmen Klein I. Introduction The 20th Century has been one of the bloodiest in history, because we have failed again and again to prevent conflicts. The Munich Convention of 1938 was presumably one of the most humiliating examples of this incapacity. In recent times, probably the civil war in Former Yugoslavia has been a further illustration of the failure of a diplomacy of deterrence. Further bloodshed was prevented only by a fast intervention of NATO. [FN1] It is fair to say that the 20th Century began on the day that Gavrilo Princip murdered the Austrian archduke Franz Ferdinand in Sarajevo and thereby triggered the beginning of the First World War. It is one of the great ironies of history that at the end of the same century in the same city the same nationalistic passions unleashed and caused the death of thousands of Bosnians who had been suffering already for a long time. However, there has also been a spectacular example of successful conflict prevention: the Cold War. Due to the equilibrium of terror, due to the reliability and credibility of NATO deterrence and due to the existence of nuclear weapons, East and West threateningly faced each other only for half a century. The Superpowers terminated their confrontation after the collapse of communism and the desegregation of the Soviet Unionwithout the use of a single bullet. One decade after the Wall's fall, the overall concept of the Cold War, the bipolarity of East and West, has not yet vanished from the transatlantic relations between Europe and the U.S. On one hand the past continues to have an effect on NATO's extension to the East, in particular with regard to the new members' motives for joining NATO. On the other hand, the past is but a memory as Russia is a member of the North Atlantic Cooperation Council. Being the most important institutional transatlantic pillar, NATO finds itself in an ambivalent situation: On the one hand it allies itself with the former satellites of the former Soviet Union, on the other hand it yields to Russia's vehement courting by gradually integrating Russia into the structure of the North Atlantic Alliance.
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However, the war in Chechnya imposed a burden on the relations between Russia and the Western Allies. NATO and the European Union continued their practical cooperation with Russia to a large extent and limited themselves to the verbal condemnation of the warfare as well as to the demand to search for a peaceful solution of the conflict. With regard to transatlantic relations, the Europeans were particularly concerned about the American plans of a National Missile Defense (NMD). Whereas the Americans reassured to make the decision on the missile defense system contingent on its feasibility and the costs as well as on its alliance and arms control compatibility. Presently, transatlantic relations are experiencing a renaissance, sincein light of the severe economic and financial crisis in Eastern Asia and Russia Europe stands as America's only sturdy economic and trade partner. America and Europe also depend on each other with respect to security policies. The Europeans could accomplish the military pacification of former Yugoslavia only in cooperation with the Americans. In addition, the war in Kosovo demonstrated again that Europe is only capable of limited action with regard to its foreign and security policies and that it is far from steadily speaking with one voice or even acting uniformly. Furthermore, Europe and America work on a large transatlantic economic trade area. By use of the common currency, the European Union will become an even more attractive partnerand simultaneously a stronger competitorfor the Americans. The prospect of extension to the east and the hope for Russia's economic and democratic development unify the Europeans and the Americans in their goals relating to Europe and their foreign policy. From the British-French Summit in Saint-Malo and the Cologne and Helsinki European Councils to the Feira European Council, an extremely positive and historically important development occurred with regard to the stabilization of the Common European Security and Defense Policy (CESDP). This development was sustained by the broad consent between the Member States to finally draw practical conclusions with respect to the security political dimension of the European integration after decades of defense policy abstinence. [FN2] My note scrutinizes the problems with reference to this subject. In the first section, I try to describe the prerequisites of a European Security and Defense Policy and I address the processes in the Balkans. In the second section, I try to illustrate the development of the ESDI with respect to the European Nice Council. In the third section, I discuss developments of the Common Foreign and Security Policy (CFSP) after Nice. II. Necessity for the European Security and Defense Identity (ESDI) In former times it was called burden sharing, today it is called European Security and Defense Identity (ESDI). The principle issue is adjusting the predominance of the United States in the area of military co-operation. There commences a hectic drive: No conference passes off without resolutions in favor of the stabilization of European defense. The deficits are specified more candidly than ever before: Strategic intelligence, strategic transportability and leadership skills are the three main objectives; numerous smaller ones could be added. At the same time the instruments are sharpened, new EU committees are created and the integration of the WEU and the European Union is considered. One should not fool himself: Instruments that could enable a purely European action are actually already sufficiently in existence. What is missing is the equipment within the specified areas. However, equipment is expensive. In 1999, the NATO Secretaries of Defense stated in their autumn conference communiqu that the rise of the gross national product in the alliance's member states does not result in an according increase of the defense budgets. This communiqu was composed for each secretary's business practice rather than for NATO's practice. NATO Secretary-General Lord Robertson put it this way:
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The security political prerequisites have to be formulated in such a way that the Ministers of Finance understand them. It is certainly correct to vividly pursue for the first time the approach to spend the money available in such an intelligent way as to obtain as much security in return as possible. This includes that material is procured in international cooperation to a larger extent than the past, as aspired in the case of the new transport aircraft. As a positive side effect this could lead to the development of joint task forces such as a European transport command. On the long-term basis, a European army could emerge from these forces, a second column after the Euro representing the vision of a European Federal State. [FN3] A. Historical Continuities: The Role of the United States in Europe Until the entry of the United States into World War I, European-American relations were characterized th by bilateral relations between the U.S. and respective European states. Only toward the end of the 19 Century did the Americans begin to focus more on Europe. During the First World War, the United States appeared for the first time as a European order-keeping power. The United States unassertively entered the war against Germany only as an associate power, not as an ally of Germany's war opponents. The participation of the Americans in the Second World War, however, was of a different quality. Without the U.S. involvement, the European continent could not have been relieved. After the war, the U.S. became the leading power of the West. Due to its economic and military potential as well as its economic interests and the precarious security situation in light of expansionistic efforts of the Soviet Union, the U.S. dominated transatlantic relations until the end of the Cold War. A Europe that represents common interests to the outward world exists only since 1945 and since the beginning of the Cold War. After the end of the Second World War it quickly became clear thatin the face of the expansive and aggressive foreign policy of the KremlinAmericans and Europeans could not drop back again into isolationist action patterns governed by competition amongst themselves. Yet the history of wars and disputes even before the First World War had already contributed to a consciousness of the need for a cooperative and peaceful organization and for a structural arrangement of the different national interests in Europe. In the years after 1945, the United States pushed for Western European integration, which thereby almost became a condition for the assistance provided by the Marshall Plan. [FN4] The American Foreign and European Policies were by far not only reactive, but conceived as a response to the threat to the western interests by the communist states in the world. The strategic adjustment of economic and military resources in the international area of conflict caused by the Cold War was also based on a dominant economic-political-ideological component. For Dean Acheson, George Marshall and other American foreign policy protagonists and planners, the establishment of a liberal market system represented an important objective of strategic postwar planning, whereas the efforts for entering the European markets resulted from this headline goal, which crucially determined the relation to the European unification efforts since 1945. [FN5] Only as a result of the role of the superpower, America, as the benevolent hegemon in Europe and by suspending the need for the European states to respectively influence economic advantages and military balance of power among themselves for their own benefit, economic revival, institutional and political integration and peace in Western Europe could be secured. [FN6] The entire American post Second-World-War policy towards the Soviet Unionfrom containment to dtentestood in the general context of aiming at the establishment of a liberal international economic system. Additionally, the security policy towards the Warsaw Pact had also a function relating to domestic affairs, namely to legitimize the financial and military resources necessary for the super-ordinate target of a liberal international economic system before Congress and the public. During the process of European integration, the Americans occasionally evinced ambivalent attitudes to-
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ward the establishment of a potential competitor in trade and international economy. At large, however, America supported the economic and political integration of Europe. The core of the European integration project was and is the historical reconciliation between France and Germany. From the Coal and Steel Community to the last preliminary stage, the entry into force of the Monetary Union on January 1, 1999, the development of European integration has always also contained an aspect of the political integration of Germany. The fall of the Berlin Wall in the year 1989 made it very quickly apparent that a comprehensive political, cultural and national security-oriented reorganization would have to take place on the European continent. Germany, its European partners and allies, and the Americans were aware of the fact that a reunification of the two German states could only be achieved with the cooperation of all parties directly involved and concerned as well as of the German partners. America played the central role in the diplomatic activities and negotiations concerning the German unification in the year 1990. In closest cooperation with Germany, the USA merged England and France into the process, calmed down Eastern neighboring countries such as Poland, and induced the Soviet Union by a diplomatic masterstroke to agree to the German unification and to the comprehensive retreat from Germany. In light of the dramatic political changes in Europe, the EEC and the USA adopted the Transatlantic Declaration in 1990. This document provided for regular consultations on all political levels as well as for biannual meetings among the American President, the Commission and the President of the European Council. The Transatlantic Declaration thereby caused an intensification of communication and a mutual insurance of common political values and objectives. It lacked, however, an important goal of many protagonists who wanted to see the transatlantic relations supported by common efforts and actions of practical policy. This weak point soon became obvious. Additionally, since the beginning of the nineties, the awareness that the pending world-political developments and global economic modifications would still require a closer and more intensive cooperation grew on both sides of the Atlantic. The first result of this recognition was the adoption of the New Transatlantic Agenda in Madrid in December 1995. Thus, a new qualitative phase of transatlantic cooperation was initiated, which in the view of the Europeansand particularly supported by Germanyshould result in a transatlantic free trade area (TAFTA). Europeans believe that TAFTA, in connection with a close coordination of concerns and contents of EU and U.S. foreign policy, is the politically necessary concretion of the transatlantic partnership for the diffusion of future problems. [FN7] B. Europe Economic Heavyweight, Political Lightweight? The initiation of this process will enable the European Union to take full responsibility for the entire spectrum of tasks of conflict prevention and crisis management. Why is this so important? During the last forty years the European Union became one of the world's most challenging, most complex and most progressive examples of regional integration. The European Union is now the largest trading block of the world and one of the most important protagonists within the full spectrum of global, financial and economic aspects. [FN8] Globalization and increasing interdependence signify that the rest of the world can no longer be viewed exclusively from the perspective of economic objectives. Globalization has brought about a whole number of transnational challenges, of which many were completely unknown a generation ago. The dangers of terrorism, international drug trafficking, money laundering, the spread of AIDS: all this confronts the European Union Member States with new globalized problems and new responsibilities. The tough development of the Common Foreign and Security Policy (CFSP) since the Treaty of Maastricht has only provided limited means as responses to these challenges.
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But a CFSP without tools is an empty shell. The European Union successfully uses its economic importance for the support of its political goals. It does this in the context of WTO negotiations, in supporting economic reconstruction or as a worldwide leader of development policy. One objection to the EU approach is that these economical instruments can still be further developed and more efficiently furnished; however, they nevertheless represent without doubt a strong point of the EU policies. What the European Union needs to do in order to assert its influence in the world is to supplement these instruments by adding a security capacity. With regard to the extension of the Union and in light of the new challenges of the next century, the European Union has to adjust to taking more responsibility for regional security. This applies in particular to the adjacent regions in which the Union is directly interested. How to explain the European Union's reluctance to take on a larger role in world politics, one that corresponds to its global importance? Why did the European Union fail so often during international crises? Why has the Common Foreign and Security Policy of the Union been criticized in the press as well as in scientific literature as representing a system of procedure as policy surrogate? How can it be that the Treaty of Maastricht so clearly defines the targets of the CFSP and yet it remains so unclear on how these goals should be reached? The simple response is that the requisite political will for the relevant steps is missing. Difficulties abound in attempting to put together a coherent European Foreign Policy for fifteen Member States, each with different traditions and interests with regard to foreign policy. Obviously, the Member States have common interests, which should also be jointly defended. Those interests do not only consist of the increase of the European gross domestic product, but also exist on a political level. In this area, the European Union has a common obligation to promote the proliferation of universally effective human rights, freedom and democracy. These are values which appeared to have almost been lost in the first half of this century, but whose vitality, however, remained unbroken in the second half of the 20th century. The implementation of these rights has contributed to the lasting success of the European Union. [FN9] Whenever necessary, the European Union must be prepared to use all legitimate means in order to project security and stability beyond its boundaries. In addition, the European Union has to be capable of representing the values of humanitarian solidarity and compliance with human rights where the life of entire peoples depends on auxiliary efforts, because they have been victimized by natural disasters or crises caused by human beings. [FN10] The fragmentation of decision-making processes with regard to foreign policy, both within Member States and among international institutions is virtually a prescription for lack of coherence. The solution to this problem is to begin efforts toward a joint strategy; the goal is a long-term concept. This is one way by which the influence and collective power of the EU can be mobilized in the name of common values. This does not mean that Member States should not have their national interests in mind, but that common interests can often better be realized by joint efforts. Compliance with human rights, also in the relations among states, will curb excessive nationalistic tendencies. Since the French Revolution, citizens who have lived in a constitutional state have not taken the law into their own hands. Instead, the defense of citizens' legitimate interests is guaranteed by the existence of a cohesive legal procedure. A similar development becomes visible in the relations among states, where multilateral diplomatic and legal mechanisms gradually replace the right of the individual state to use coercive force to implement its rights. Past experience contradicts the notion of a community of sovereign states where everyone has the individual right to defend his legitimate national interests within multilateral mechanisms like the UN. Instead, it appears there is a trend pointing towards a powerful international community. This development, however,
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depends on the organization of the community. Here, the future role of the United Nations is of special interest: the creation of international courts which can effectively punish crimes against humanity, the establishment of a system of preventive diplomacy and the implementation of striking sanctions against countries that have violated human rights show a development policy and a democratization of the political structures. Currently, the question of the striking power of UN missions leads to some particularly thorny problems. UN members finance large multilateral peace missions only reluctantly. Above all, the peacemaking missions of the international community are highly controversial, particularly if human lives are at stake. The notion of a right to humanitarian intervention, even of an obligation of such intervention, has become widely accepted worldwide, not only as a theoretical principle, but as a basis for actual local operations such as in Bosnia, Rwanda, East Timor and Somalia. However, in this area, there is still much to be done, as evidenced by the tragedies in Bosnia, Kambodscha and Rwanda. In order to avoid such events in the future, the international community has made an effort to decipher its operational potential and the effect thereof. So far, the European Union's appearance in the world arena has been characterized by a lack of striking power, coherence and reputation. As such, Europe may be characterized as an economic giant, a political dwarf and a military worm. Not once has the European Union succeeded in attaining the status of a superpower not in the Near East or in Africa, nor in Former Yugoslavia, and not even in Cyprus. In all these cases, Europe was helplessly stranded. [FN11] C. The Lessons Learned from the Balkans The European Union has much to contribute to the avoidance and termination of conflicts. It has the power and the influence, anddue to the UN Charterthe Union has the necessary action framework at its disposal. If the EU wants to do more than it has so far, then it needs a military division whose function would be the resolution of conflicts outside of the community. This institution would ultimately vest the EU with the necessary military power, if, in the case of a state of emergency, the United States in an exceptional event denied NATO permission to act. The closer a conflict occurs to the boundaries of the EU, the higher are the chances of an effective Common Foreign and Security Policy (CFSP). Of crucial importance for such a CFSP is a mechanism that creates consensus, provides for procedures to converge the different opinions of the individual Member States and which ultimately permits the 15, or soon 20, independent nations to articulate themselves as a unit and take action accordingly. In light of the contradictory opinions within most international organizations, a hard core of relatively wealthy nations would represent an inestimable advantage for effective decision making. In addition, they would signify a serious counterweight in relation to the otherwise undoubtedly dominant position of the United States. Much of what the EU has already achieved in the field of foreign policy is undermined by the constant complaints of some Members. Those critics desire the United States of Europe with their own Minister of Foreign Affairs, who would only be responsible to its directly elected president or prime minister. Therefore, a minority of those who would like to enforce such an integrated model of European unification seems to also have an interest in discrediting the achievements of the European Union and in repeatedly pointing to failures in the past and in the present. This negative propaganda becomes nowhere more obvious than in the devaluation of the European Union's missions in the Balkans and in the praise for the role of the Americans, whose failure was just as serious as ours. The fact is, however, that the contribution of EU members to conflict prevention in the Balkansmainly by way of development of the CFSPis without real alternative. In the face of the human lives which were sacrificed in the service of the UN, in light of the number of soldiers in the UN and NATO armed forces, the costs of humanitarian aid or negotiations and the use of resources, the European Union undertook huge, last-
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ing efforts. If the European Union regrets not being able to successfully restore peace in Former Yugoslavia as the United States of Europe, then it queries its own history and geography: In two World Wars, large EU Member States faced each other in the Balkans. Against this backdrop, sending their own troops into the crisis area was still considered inappropriate for Germany and Italy between 1991 and 1994. The fateful mistake by the European Union's diplomacy regarding the behavior of the EU towards Former Yugoslavia was made very early, namely on July, 13, 1991, when the unilateral Slovenian and Croatian Declarations of independence dated back only a few days. The remaining eleven Member States rejected a document prepared by the Dutch government, which suggested a study of whether there was an option to enable an agreement on border modifications between the Yugoslav republics. The fact that these internal boundaries were immediately accepted as internationally binding deprived many Serbs of the hope of rejoining Yugoslavia and ultimately proved to be a diplomatic disaster. [FN12] The second mistake was in the European Union imposing itself upon the parties as the only mediator within the Yugoslavian conflict, excluding the United Nations from the process and ultimately granting the UN a negotiation role only after ample resistance. [FN13] In many parts of the Brussels administration and in Washington the UN is still criticized today. Despite these mistakes, particularly after the Kosovo crisis, it became obvious that in order to meet its goals the EU would need both military and non-military means. Even though the military dimension is frequently of crucial importance, the non-military dimension also plays a central role. The character of conflicts has changed radically during this bloody century: While in World War I, 85 per cent of the victims were soldiers and only 15 per cent were civilians, this ratio has almost been inverted. With the interdependence of societies increasing, factors such as economic aids, the free flow of information and unconstrained communication gain more and more importance with regard to conflict management and conflict prevention. Therefore, the European Union must avail itself of the entire spectrum of instruments including military and non-military measures. The EU experience in the Balkans supports this view. Early efforts of the European Union to contain the conflict in Former Yugoslavia failed due to the lack of political will and courageous actions. Later contributions to the restoration of peace and to the reconstruction of those shattered states also did not have the desired effect. One part of the problem existed in the lack of reactivity, a circumstance which ultimately undermines the reliability of a protagonist. That is exactly what happened in October 1993 during the negotiations for joint EU action for humanitarian assistance to Bosnia and Herzegovina. The Council spent four months discussing whether the operation would be covered by the community budget or whether it should be covered by the national budgets of the Member States. In the meantime, winter ended and the population rejected the humanitarian assistance that was finally granted. Better results are necessary. The EU response in Kosovo has signaled new start, demonstrating that small, fast, appropriate operations are often more successful than large scale actions which ultimately arrive too late. Citizens correctly expect the European Union to take an active role in conflict prevention or that it at least is able to master the conflicts in its own backyard. [FN14] Thus, it is hardly amazing that Brussels is criticized, if the European Union is not capable of protecting fundamental human rights in the heart of Europe. Frankly, the mistakes are simply too expensive. If the European Union does not play a pro-active role in world politics, then it will face enormous costs resulting from refugee aid, mine clearance andafter the end of a conflict reconstruction assistance. This is without even mentioning the horrific losses of human lives
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and the welfare costs that accrue where the European Union has not acted or not acted in time. Instead of fighting the fires, the EU should rather focus on the causes of the fires. The European Union has to find ways to use its economic influence strategically in such a manner as to prevent the emergence of fires or to at least diffuse them immediately after having emerged. What Europe needs is not only to master crisis management, but likewise to formulate a policy of conflict prevention. To this end, the Member States have clearly detected the advantages of collective actionwherever it appears suitablein relation to unilateral measures. This is the existential purpose of the European Union. In cooperation with other states the costs and risks linked to an operation are by far smaller, and the collective power of the European Union is larger than the sum of its individual parts. III. The Development of the ESDI and Its Relation to NATO A. The Regulation of the CFSP by the Treaty of Amsterdam Articles 11 to 28 of the Treaty of Amsterdam Amending the Treaty on European Union [FN15] tie in with European Political Cooperation (EPC) within the field of Foreign and Security Policy. From the perspective of international law, this cooperation had been introduced as binding on the parties by the ratification of the Single European Act (SEA) of 1986. Likewise, Article 16 of the Treaty of Amsterdam requires mutual information and consultation among the Member States in the Council of Ministers on any matter of foreign and security policy of general interest in order to ensure that the Union's influence is exerted as effectively as possible by means of concerted and convergent action. [FN16] However, due to the fact that the Union is not a subject of international law, from a legal perspective the Member States remain the exclusive source of authority with regard to the Union's foreign and security policy. In the context of the CFSP the European Council occupies the leading function. On Common Foreign and Security Policy, the Council of the EU takes the decisions necessary for defining and implementing this policy, on the basis of general guidelines defined by the European Council. [FN17] The Presidency shall consult the European Parliament on the main aspects and the basic choices [FN18] of the Common Foreign and Security Policy. The European Parliament may ask questions of the Council or make recommendations to it. The Commission has to be fully integrated in the work on the CFSP. Generally, the measures on Common and Foreign Policy are not justiciable and thus can not be the basis for an action in a court of justice. If the Member States in the context of the CFSP fail to fulfill their membership obligations arising out of Art. 10 para. 2 EC Treaty, treaty violation proceedings pursuant to Art. 226 EC are possible. According to Article 13 paragraph 1, the European Council defines the principles of and general guidelines for the common foreign and security policy. Only on the basis of these general guidelines the Council of Ministers of the Union may become active regarding the CFSP, in particular adopting joint actions and common positions. [FN19] As specification of targets of foreign and security policy, the general guidelines of the European Council are mandatory for the Council of Ministers of the Union. Accordingly, the European Council has to grant the Council of the EU substantial leeway to specify the means of implementation. Under Article 13, paragraph 2, the European Council decides on common strategies to be implemented by the Union in areas where the Member States have important interests in common. Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States. While general guidelines defined by the European Council relating to the goals of the Common Foreign and Security Policy are mandatory so that the Council has to meet those guidelines in choosing appropriate means for adopting joint actions, the common strategies shall indicate not only their objectives and duration, but additionally the means to be made available to the Union. In principal, the community budget
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covers the expenses. Pursuant to Article 15, paragraph 1, the Council of Ministers of the Union can adopt common positions. Those positions define the approach of the Union to a particular matter of a geographical or thematic nature. [FN20] Common positions serve primarily to coordinate the foreign policies of the Member States. They are a means of implementing the common strategies adopted by the European Council. The common positions are adopted by the Member States in order to coordinate their actions in international organizations and at international conferences. There, the Presidency represents the common positions of the Union. If, as in the UN Security Council, only particular Member States are permanent members (so far only Great Britain and France), those states are under the obligation of appropriately representing the positions of the Union. Under Article 15, the Member States ensure that their national policies conform to the common positions. [FN21] Therefore, this means of action is partly only awarded a politically binding effect. As far as no common position has been accomplished, the Member States may take unilateral or bilateral measures of foreign and security policy. However, pursuant to Article 16, the Member States remain obligated to participate in the information and consultation in the Council of Ministers of the European Union in order to coordinate their procedures. While Article 30 of the SEA granted every Member State the right to query the concerted actions within the European Political Cooperation at any timeeven without a previous formal and joint avoidancethe EU Treaty designates a procedure and a legal basis for joint actions which are binding on the Member States with regard to their statements and their actions. Joint actions address specific situations where operational action by the Union is deemed to be required. [FN22] The Council of the EU bears the strategic responsibility during the implementation of joint actions. In case of a change in circumstances having a substantial effect on a question subject to joint action, the Council shall review the principles and objectives of that action and take the necessary decisions. [FN23] According to Article 14 paragraph 2, the joint action shall stand as long as the Council has not taken action. In all events, in cases of imperative need arising from changes in the situation and failing a Council decision, Member States may take the necessary measures as a matter of urgency having regard to the general objectives of the joint action. [FN24] If one of the Member States takes such measures, it shall inform the Council immediately. The Council can adapt necessary measures for an appropriate solution at time. In addition, if a Member State encounters any major difficulties in implementing a joint action, it shall refer them to the Council. According to Article 23, decisions on Common Foreign and Security Policy are taken by the Council acting unanimously. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority: (1) when adopting joint actions, common positions or taking any other decision on the basis of a common strategy; (2) when adopting any decision implementing a joint action or a common position. [FN25] The Council of the EU may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity. Only regarding procedural questions may a decision be taken by the majority of the members of the Council. In accordance with Article 23, abstaining in a vote where decision by unanimity is required does not prevent the adoption of a decision. However, a decision subject to one of the states abstaining is only binding on this state as long as it does not make a formal declaration to not be obligated to implement the decided measure.
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Paragraph 2 of Article 23 provides that the votes of the members of the Council shall be weighted in accordance with Article 205 paragraph 2 of the Treaty establishing the European Community. [FN26] To this end, Article 23, paragraph 2 provides for a quorum where the adoption of a decision requires at least 62 votes in favor, cast by at least 10 members of the European Union. It has to be noted that this paragraph categorically excludes majority decisions for adopting decisions having military or defense implications; here, the principle of strict unanimity applies already on the level of the Council of Ministers, not only on the highest level of the Heads of State or Government in the European Council. Article 24 authorizes the Council of the European Union to conclude an agreement with one or more States or international organizations in implementation of the Common Foreign and Security Policy. Such agreements shall be concluded by the Council acting unanimously on a recommendation from the Presidency. [FN27] However, the provisions of Articles 24 and 38 of the Treaty on the European Union and agreements concluded pursuant to these articles do not transfer or delegate competences of the Member States to the European Union. This explanation in accordance with the rules of international law counteracts on one hand the assertion of an implied conferment of legal personality to the EU. On the other hand, this explanation clarifies the intergovernmental proportions of allocation. The Council concludes the agreements in implementation of the Common Foreign and Security Policy only in representation of the Member Stateswhereas not for the European Union itself. The Presidency of the Council is integrated into a so-called TROIKA. With regard to the internal and external representation and the implementation of decisions the Presidency is assisted by the Secretary-General of the Council who is in the position of a High Representative for the CFSP. If necessary, support is also provided by the Member State that presides over the succeeding Council. In accordance with Article 18, paragraph 5, the Council can appoint a special representative with a mandate in relation to particular policy issues if the Council considers this necessary. In comparison to the old TROIKA the participation of the High Representative for the CFSP in the new TROIKA ensuresapart from the participation of the Commissionthe necessary working continuity. This working continuity, institutionalized in the person of the High Representative for the CFSP, is underpinned by the tasks that are assigned to him by Article 26. The High Representative contributes particularly to the formulation, preparation and implementation of political decisions [FN28] andif necessaryon request of the Presidency to conducting political dialogue with third parties. [FN29] The institution of a policy planning and early warning unit has not been included in the CFSP title of the EU Treaty. Last but not least in order to enable pragmatic modification adjustments apart from the formal procedure of a treaty revision, the institution of a policy planning and early warning unit has only been included in form of a declaration in the Final Act of the Treaty of Amsterdam. In light of the strictly intergovernmental character of the CFSP, references in the declaration as to foreign and security policy interests of the Union are to be understood as imperative to respect the national identities of the Member States and their position as exclusive body of authority within the area of CFSP. In contrast to the Treaty of Maastricht which alluded to an implementation of a common defense policy in the long runArticle 17 paragraph 1 now designates the gradual stipulation thereof. A common defense is however only possible inasmuch as the European Council decides to implement it and in so far as the Member States ratify this decision in accordance with their constitutional provision. [FN30] The Treaty of Amsterdam intensifies the possibilities for a recourse to the WEU, which had already been designed in the Treaty of Maastricht [FN31] as access to an operational capability. [FN32] Only in the
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mid-eighties began a phase of political revival of the WEU, which obtained the importance of a European pillar of NATO. The European Union can engage the WEU for the elaboration and implementation of its defense policy decisions and actions. The so-called Petersberg tasks that have been determined by the Council of Ministers of the WEU in 1992 represent the main focus of the Common Defense Policy. The Petersberg tasks, which have been incorporated into Article 17 paragraph 2 of the Treaty of Amsterdam, cover humanitarian functions and rescue missions, peacekeeping tasks as well as combat missions in crisis management including peace-building measures. [FN33] Article 17, paragraph 3 awards the European Council the authority of defining the general guidelines also regarding the WEU. Nevertheless, the WEU still remains a subject of international law on its own. In the context of the Common Defense Policy the European Union honors the existing obligations of those Member States which at the same time are contracting parties of NATO. B. Resolutions of Helsinki and Important Results for the Future ESDI Finland assumed the Presidency of the Council on July 1, 1999, and worked briskly on the tasks for further development of the CSFP assigned by the Cologne Summit. The Finnish Council Presidency was particularly suitable to mediate in relation to the doubts of the other states that are not bound by treaty and those that hold a neutral position. Furthermore, with the support of these states the Presidency succeeded in placing emphasis on the area of civil crisis management. The specifications for the benchmark figures that were agreed upon in Helsinki relating to military crisis management certainly derived from an intensive consultation process between the four large Member States France, Germany, Great Britain and Italy, as well as from the first meeting of the Secretaries of State and Defense in the context of the General Council. In Helsinki, the European Council emphasized its determination to develop an autonomous capacity to take decisions and, where NATO as a whole is not engaged, to launch and conduct EU-led military operations in response to international crises. [FN34] For this purpose, the European Council agreed upon a headline goal, according to which the Member States by voluntary cooperation have to become ready by the year 2003 to deploy within 60 days and sustain for at least 1 year military forces of up to 50,000-60,000 persons capable of the full range of Petersberg tasks. [FN35] Additionally, the European Council accepted the report of the Finnish Council Presidency regarding the military aspects of the CESDP. According to this report, collective capability goals in the fields of command and control, intelligence and strategic transport [FN36] have to be developed, because the survey and inspection of the European capabilities by the WEU discovered serious weaknesses particularly within these areas. [FN37] Furthermore, the Council decided that new political and military bodies will be established within the Council to enable the Union to take decisions on EU-led Petersberg operations and to ensure, under the authority of the Council, the necessary political control and strategic direction of such operations [FN38] and that [p]rinciples for cooperation with non-EU European NATO members (Turkey, Norway, Iceland, Poland, Hungary, Czech Republic) and other European partners in EU-led military crisis management will be agreed, without prejudice to the Union's decision-making autonomy. [FN39] Although the number of armed forces to be provided by the European Union appears not excessively high, the Member States still commit themselves to make more soldiers available than they have at their crisis management command at present. In addition, they will have to equip the twofold or threefold number of armed forces in downgraded standby level in order to enable a deployment of at least one year by rotation. It was stressed clearly that the armed forces available to the European Union are not linked to the creation of an integrated European Army. Hardly any one of the Member States was ready for such a project,
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and this would also have encountered a massive opposition on the side of the American allies. Moreover, the armed forces elements that are joined ad hoc in case of need shall be deployed exclusively for crisis management, while the collective defense remains reserved for NATO. This was one condition sine qua non not only to calm NATO but in particular also to obtain the consent for the entire project of the neutral Member States and the Member States not bound by treaty. [FN40] Helsinki was the beginning of a coherent and pragmatic European response. Insofar, the Commission as initiator of the Community Policy and as its manager pursued five targets: (1) To be actively involved in the design of policy within all pillars of the European Union; (2) To take on executive functions in those areas, where it possesses contractual authority; (3) To improve its ability for the fast implementation of decisions; (4) To increase the contribution of the Community policies within the area of conflict prevention and finally, (5) To ensure the industrial basis for a reliable security and defense policy. Where the Commission prepares suggestions for the Council in the context of the first pillar of the Treaty of Amsterdam, there is an intensive search for a Community interest. On the other hand, within the area of decision making of the CFSP practically no such preparatory phase exists. The Common Strategies, which were created as new instrument of the CFSP, represent an attempt to face this weakness. However, there is a long way to go in order to achieve a substantial harmonization between the perceptions of national and European interests. By nature, this is even more difficult to implement in crisis situations and in light of potential conflicts. Even if the parties correspond with regard to the assessment of a potential conflict, the problem still exists to decide as to when and how to intervene. Preventive diplomacy focuses all too often on situations, where a violent conflict is already probable or where its outbreak is imminent. Then, strategies to face the acute threat are contrived. Such strategies may contribute crucially to avert the outbreak of aggression at short notice. However, it is not likely that these reach the roots of the conflict. Long-term prevention, which aims at the structural causes of a conflict, can include for example measures for the promotion of democracy, good governance and human rights. This could be achieved for example by economic aids and the satisfaction of fundamental needs (health, welfare, lodging etc.). Further measures would concern the promotion of political and economic cooperation on a regional level as well as networking by trade and other forms of transnational exchange. This could include incentives for the reform of the juridical system and of the security forces or for the protection of the environment, in order to achieve a sustainable economic policy. [FN41] The Union has developed a whole arsenal of sanctions and restrictive measures. These measures reach from the restriction of visitations and diplomatic contacts to the suspension of assistance and trade privileges up to complete sanctions or embargoes that paralyze the trade, block the traffic and freeze capital investments as well as capital transfers. Finally, the support of human rights, democracy and a functioning juridical system has to be mentioned. The compliance with human rights forms one of the corner pillars of the European Union. It is expressly embodied in the contract. It can be seriously affirmed that the Common Foreign Policy is compatible with these targetsnot at all because human rights are a European discovery, or because the European Union requests a monopoly on their observance. Human rights are universal. The promotion of human rights and democratic values is a useful venture, both in economic and strategic respect. The political-economic nature of numerous fields of activity of the European Union explains how important Community Policies are as instruments of conflict prevention and how necessary it is to integrate them into broader strategies. Here, the Commission is needed. However, the goals and intentions of the EU in all these areas have to be clearly determined. The European Union needs clear targets for non-military actions, in order to complete those within the
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military area. Presently, a comprehensive inventory of the non-military instruments of the Member States and the European Union is created. It represents a first basis for the efforts within this important area. Within the area of humanitarian assistance the European Union has already joint capacities at its command: through ECHO exists a constant instrument of coordination for emergency assistance, disaster relief, as well as logistic support; Now, the European Union has to establish the equivalent for the area of emergency and rescue services: The basic operational readiness, the supply of logistics, search and rescue capacities, the security of the population, radiation protection. Specific objectives in each of these areas have to be defined. Just as this, the European Union has to determine the same numerical strength of civil and military police forces which it can mobilize for training and for relocation in the context of special missions. In Helsinki, the heads of government already agreed on a target passage for the relocation of troops. This has to be completed by an appropriate guideline for paramilitary and police forces; A further important area is mine clearing and deactivation of mines: Here, the European Union has to be capable of a rapid deployment of mine clearing operation commands, in order to grant assistance to mine victims as fast as possible. Furthermore, the research within the area of sensor and detector technology must be intensified. Perhaps that does not sound too exciting; however, if the European Union wants to fulfill the task that it is called upon, this is also an important target; In Kosovo the European Union has recognized that still more action is required in the area of conflict post-processing review and reconstruction. Additionally, the European Union must be able to coordinate and mobilize resources. This central function includes measures concerning demilitarization, the so-called micro disarmament, support of the organization of a civil society and the like; The promotion of human rights and democracy should likewise rely on clearly defined resources. In addition, the European Union needs observers, who watch over the compliance with human rights, selection observers, media advisors and experts of different fields of activity for the creation of institutions; Finally, the European Union should be clear as to its targets and have a conception of which type of assistance it can offer, if a conflict offers leeway for mediation, an arbitral tribunal, investigations or certain confidence-building measures. An effective European policy requires a strongly improved coordination. The Helsinki European Council identified this and assigned the next Presidency to resume the work within the area of the coordination of non-military crisis management in order to complete the military structures. Council and Commission have to cooperate closely in order to achieve a stronger coherence within those policy areas in which the European Union shares extensive responsibilities. A further large challenge in designing a reliable CSFP is its continuity. The Council Presidency of the European Union changes every six months and with it the responsibility to represent the Union in affairs of the CSFP. The appointment of Javier Solana as High Representative and his function to support the Presidency is thus crucial for the stabilization of the CSFP on the highest political level. The Commission inheres an important role and responsibility to jointly ensure a coherent external representation of the Community. Approximately 160 states are accredited to the EEC. In most of these states only the representations of the European Commission are a permanent component of the TROIKA. The 128 delegations of the Commission contribute to the profile of the European Union in many parts of the world where a coherent Union policy is expected and appreciated. Through the function they fulfill, the delegations receive a special status within the area of the diplomacy of the European Union.
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First of all, Helsinki signified the beginning of a new phase in the rapid development of a European Security and Defense Policy. However, further important decisions regarding the role of the European Union as well as of the Commission were still pending. Agreements had to be reached as to the participation in the design, adoption as well as implementation of decisions; this applied in particular to the European NATO members, that do not belong to the European Union, as well as to those states that are Member States of the EU but not of NATO, and in addition also to those states that support the policy of the union. Second, which ever decisions the European Union may take, it will always affect its NATO allies. The Union has to ensure that their concerns are fully and completely taken into consideration. The NATO allies do not raise so many reservations against the success of a CSDP, but rather against the risk of its failure. Therefore, it is in everyone's interest that the common policy actually functions. For this purpose the European Union has to develop to a certain extent a culture of cooperation and coordination, and this not only within the European Union, but jointly with its most important partners in the context of other larger international fora. Within those international organizations which are active in the area of conflict prevention and crisis management, the Union has to engage likewise with a substantial and purposeful policy: This concerns in particular the United Nations, the Organization for Security and Cooperation in Europe and the Council of Europe. For the Commission and the Member States of the European Union it was of vital interest to use in this manner their individual and collective resources for the defense of specifically European interests. [FN42] Third, due to its formal authority, its experience and its budget authorities the Commission played quite a role within the European security and defense policy. Fourth, the Community's contribution to the design of the basic framework conditions of the Security and Defense Policy (the Commission's role as an initiator of proposals in the areas of research policy, domestic market and sourcing, its role as catalyst on the way to a larger convergence of the defense industriesan almost essential basis for the CESDP) is of central importance. Beyond that, the contribution is of central importance to the arms markets, where the improvement of the competitive position of the European armaments industry is at stake; the same applies to the trade with armament goods. The Member States of the European Union import seven times more armament goods from the USA than they export. Each Member State has its own relevant import regulations. Here pooling appears inevitable and almost essential. Fifth, the stronger role of the Union in the area of conflict prevention indicates that it encourages the people and the societies they live in to take on reforms, and that it supports them in their efforts on the way to economic prosperity and good governance. Ultimately, the targets of the Union have to be clearly articulated and transferred resolutely. C. The ESDI in Relation to NATO The years since the unification of Germany and the political change in Eastern Europe are influenced by America's and Europe's search for new concepts with regard to foreign policy and for responses to international developments that increasingly appear too complex. America's alleged foreign policy disorientation is disapproved of in a dramatic way. A position statement issued by the Commission for America's National Interests criticized the unclear ad-hoc-policy of the Clinton administration and deduced from it a potential threat to fortune, the values and even the existence of America. [FN43] Within these and comparable American considerations Europe and the alliance with the European states always play an important role. As central concerns the political-military alliance with the European partners, the security of the partner countries and the preservation of the American leadershipalso in the military fieldare mentioned. However, the majority of the remaining targets and tasks, as for example the prevention of the proliferation of nuclear
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weapons, likewise requires a long term strategic cooperation with the European Union and with the European NATO partners. The United States government assigns European-American relations a central role in the foreign policy target catalog. The then national security advisor of the American president, Samuel R. Berger, identified six strategic targets [FN44] of American foreign policy in a speech in March 1997: 1. Work on an undivided, democratic and peaceful Europe; 2. Organization of a strong stable Asian-Pacific community; 3. Promotion of America as crucial power for the peace in the world; 4. Establishment of a stronghold against transnational security challenges; 5. Creation of jobs by establishing a more open commercial system; 6. Retention of a strong military, which avails of the necessary means for the fulfillment of the mentioned tasks. Despite theseonly at first sight unambiguousobjectives, America is still on the search for a foreign policy strategy that finds the correct balance between the poles of an inwardly oriented unilateralismthat sometimes shows isolationist tendenciesand a global power policy that is oriented towards national interests. [FN45] If the American-Europe Security Policy is regarded under the aspect of the superior foreign policy line of the Clinton Administration, i.e. the founding and expansion of an open world trade system constructed upon democracies that are oriented towards free markets, then it becomes clear that the United States will also in the future seek to play a leading role on the European continent. Contrariwise, the Europeans have realized at the latest since their failure in Bosnia and the example of the Kosovo conflict that they have to have a common interest in a continued presence and a long-term commitment of the United States on the European continent. The attempts of France to repel the American influence in Europe, which were also revealed by the specific role of the Frenchmen within the discussions on reforms and targets of NATO, are specifically problematic for the Germans who maintain with both, the Frenchmen and the Americans, particularly close relations and who consider a continued and strong commitment of the United States in Europe as condition sine qua non of their foreign policy. [FN46] The foreign and security political profile of the European Union does not correspond to that of a state. [FN47] The economic and bureaucratic complexity of integration of the European Union does not have a counterpart within the areas of foreign and security policies. The transatlantic relations are rather structured by a multiplicity of organizations and bilateral patterns of relations, whose core represents NATO. The attempt of the European states to speak with one voice and act jointly has a long history in the course of the integration process. The motives to build up a CFSP were and are still of various kind. The increasing self-confidence of the European NATO states in light of the increasing economic success of the European Union, the need to solve regional European problems themselves and to not only appear as junior partner of the superpower United States, special national interests outside of the NATO competences and not least the French efforts to obtain a leading role have frequently led to irritations between the transatlantic partners. In addition, during the Cold War the European NATO states preserved fears concerning bilateral agreements between the two su-
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perpowers, the US and the Soviet Union. Europe tried to face the structural dilemma of having to coordinate a multiplicity ofoften conflictingnational interests to represent a joint determined attitude towards the USA by founding a common foreign policy. Already in 1970, France understood the organization of an independent European identity with regard to foreign policy within the EPC as a conscious attempt of a delimitation toward the United States. A German thrust was required to inform the transatlantic partner USA promptly in each case about activities of the Community with regard to foreign policy. At first, the member states treated the question of the inclusion of the security and defense policy into the EPC extremely controversially and finally tacitly excluded it, in order not to touch on NATO competences and not to burden the transatlantic alliance. In the seventies and eighties, fears of the European NATO partners as to a bilateralism between the U.S. and the Soviet Union at expense of the Europeans as well as to the reliability of the American nuclear screen for Europe became audible. The transatlantic partnership was never free from cause of conflicts. Even on the acme of the Soviet threat towards Western Europe severe conflicts regarding the European and American foreign policy involvement in countries and regions like Palestine, Suez and Viet Nam characterized the relations between the U.S. and the European NATO states. [FN48] There were differences also concerning the deployment of intermediate range missiles (NATO's double decision). Quasi permanently, the allies discussed the question of the costs of the American troop deployment. All in all, however, the North Atlantic partnership proved as stable foundation and the most important pillar of the bipolar international structure. The disappearance of the danger of a nuclear world war between the superpowers and the fact that the possibility of a comprehensive conventional war between West and East Europe had become inconceivable in a period less than a decade havein connection with the increasingly social, economic and technical globalizationlet the classical security policy of the Cold War become void. The threat to the West derives no longer from an over-powerful opponent, but from a military, power-political vacuum and from a latent instability in Eastern Europe where at the same time the new democracies are still lacking economic stability. [FN49] The reorientation of NATO including the opening to the East and the cooperation with Russia shall aim at the creation of a security order that comprises Europe entirely, including Russia. In addition, it shall prevent the development of gray areas and dividing lines. This also includes the signing of the Founding Act and the installation of a Joint Council with Russia. At the same time the new NATO understands itself as an organization whose political readiness and military capacity for intervening shall give stability to the changed Europe. [FN50] In the context of the summit of th the 19 NATO states on the occasion of the 50 anniversary of the alliance's existence (April 23-25, 1999) in Washington, a summit communiqu and the new strategic concept were adopted. Contents and targets are the readiness of NATO to take on tasks within the range of crisis management and crisis prevention under UN and OSCE mandate. Further elements are, among others, the action plan for membership, an initiative for the stabilization of the alliance's interoperability as well as the revaluation of the role of the European Union within NATO by designing a European Security and Defense Identity. Europeans and Americans jointly promote the process of integration and opening of the West in relation to the new Eastern European democracies. This opening process is embedded into an overall approach that includes the NATO-Russia-Founding Act, the NATO-Ukraine-Charter as well as the Euro-Atlantic Partnership Council. Russia was offered disarmament negotiations, economic aid, acknowledgment as equal participant in the summit of the leading industrial nations and a politically, but not legally, binding agreement on the regulation of the relations with NATO. America and Europe adjust to new and different challenges in security policy matters. U.S. President Clinton signed a new directive for the atomic target planning of the United States in November 1997.
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[FN51] Accordingly, the U.S. should now be no more able to lead and win a comprehensive nuclear war, but should be capable of providing for a reliable deterrence of rogue states. At present, countries such as Iraq, Iran, the Sudan and Afghanistan fall within this category. The extension of NATO to the East has several coherent target dimensions, which also contain the security and promotion of the young Eastern European democracies. The NATO and European Union membership for Poland, the Czech Republic and Hungary shall provide the people not only with prosperity and security, but shall also lead to the organization of a civil society, stabilization of the free-market economy, democratization as well as the rule of law. [FN52] In December 1997, NATO agreed on a new command structure. France approved it likewise, even though under the reservation that Europe had to be represented more strongly in the command structure. According to Paris, the post of the Commander-in-Chief Allied Forces, Southern Europe (CINCSOUTH) in Naples, which is occupied by a U.S. general, shall be taken over by a European. However, this has so far been rejected by the Americans. Since France left the integrated command structure in the year 1966, there are frequent dissentions of the Frenchmen with the Americans. Above all, Paris has its own opinion on the role of the WEU as security political institution in Europe. The Frenchmen led a quasi-theological controversy about functions and orientation of the WEU in relation to NATO. [FN53] According to the representation of former Federal Minister of Foreign Affairs Klaus Kinkel, the Europeans see the WEU as an axis between the European Union and NATO, which shall enable a more efficient crisis management in Europe in the future. With regard to security policy there are a whole series of controversies as well concerning strategic as also personnel and tactic issues. They do not, however, touch on the alliance as such or on its core selfconception. The concerns towards a further European integration and towards the organization of a European security identity that had been brought forward in the beginning of the nineties by US President Bush and his Secretary of State, George Baker, have been replaced by a positive evaluation and according support in the meantime. [FN54] The Americans wish for a significantly stronger involvement of the Europeans in the field of security policy. In Europe, there is also criticism as to the American role and ideas concerning the form of future partnership. The critics find fault the different strategic security and foreign political target projections of the partners as well as the entirely different respective self-conception. The Americans are blamed for weakening NATO's independence and for trying to make it more and more subject to the American global power interests. [FN55] America's demands as global order authority and only military superpower implicate the provision and maintenance of military potentials that also have to be co-funded by Europe. Political involvements and strategies necessary for this have to be added; however, right now those appear hardly compatible with a Common European Foreign Policy. According to the decisions of Helsinki, there are several new military and political bodies that must be founded until the end of the year 2000. A standing Political and Security Committee (PSC) in Brussels which consists of national representatives (high government officials or diplomats), addresses all questions of the CFSP and acts under supervision of the Council in the case of military operations; A Military Committee (MC) consistent of military delegates of the Member States' Chiefs of Defense which convene in certain intervals on the level of the Chiefs of Staff, which advises the PSC in military questions and whose president (a four star general) participates in the council session if necessary; A European Military Staff (MS), which is primarily in charge of the situation assessment and strategic planning. [FN56]
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As the decisions regarding the structures were to be made only at the end of the year 2000 in Nice, it was agreed to create so-called interim bodies from March 2000 on, whereas the interim PSC first works under the direction of the Political Committee. The Council Secretariat is initially only compounded by a handful of military experts of the Member States who shall form the nucleus for the Council's later military staff consisting of approximately 150 military experts. The difficulty of the EU Member States to agree upon the final structure and function of these new bodies underlines the sensitivity of the issue. In an unspectacular way but with rapid speed, the Portuguese Presidency dedicated itself to the promotion of the Common European Security and Defense Policy (CESDP). After an open exchange of ideas in the General Council on January 24, where particularly the Nordic Member States, Germany, Luxemburg and the Netherlands demonstrated a clear interest in the composition of mechanisms of civil crisis management and also where the regional delimitation of possible military mission options to the European continent was addressed, the Council already created the interim bodies on February 14. Starting on March 1, these new bodies began to elaborate on the various aspects of the CESDP under close cooperation with the High Representative for the CFSP, Javier Solana, who was assigned to additionally occupy the office of the SecretaryGeneral of the WEU in November 1999. Substantial impulses for a concretion of the military dimension emanated from the informal meeting of the European Union Secretaries of Defense in Sintra (February 2000), as well as from a meeting of the Chiefs of Defense and the sessions of the Secretaries of State and Defense in the context of the General Council on March 20 and June 13. The extraordinary meeting of the European Council in Lisbon, to which the Portuguese Presidency had submitted a short interim report on the CESDP, primarily discussed aspects of the relations with NATO and with the European NATO members that are not members of the EU as well as the relations with the candidates for accession to the EU. [FN57] Whereas in particular Greece and France stressed the need for perpetuating the EU's autonomy as to the structure of these relations, Denmark, Finland, the Netherlands and Great Britain pushed for rights of participation of the other states within the CESDP as extensive as possible. On their summit in Mainz (June 9, 2000), Germany and France determined their proceeding within the development of the CESDP, stressed to the public the strong interest in the European Union as security political protagonist and opted with view to the central military weaknesses of the Europeans for the building of the airbus A 400M as military large capacity transport aircraft and for the development of an independent satellite tracking system. [FN58] Briefly before the summit in Feira, a council committee for civil crisis management took up its work. Originally, it seemed as if specifically this dimension of the CESDP became a domain of the Commission. Commissioner Christopher Patten had asserted according claims and had announced extensive activities. After all, a coordination mechanism for the cooperation with the Commission was created in the Council's General Secretariat. Additionally, the Council identified priorities as to civil crisis management (humanitarian assistance, stabilization of the rule of law, stabilization of civilian administrations, rescue services, disaster control) and had concrete targets for the crisis missions of police forces compiled. The Feira European Council (June 19-20, 2000) underscored the will of the European Union states to be able within the context of the voluntary cooperation to make 5000 police officers available for civil crisis management and to have 1000 policemen come into operation within 30 days until the year 2003 [FN59] (3300 policemen are presently already deployed in the mission in Albania and in Former Yugoslavia). Regarding the consultations with third states, there was an agreement that during the interim period that lasted until Nice there should be an intensified political dialog in form of special meetings with the six European NATO states that do not belong to the European Union. In this connection, as also with regard to the principles concerning the consultation and cooperation with NATO, the full autonomy of the European Union in the adoption of decisions was stressed and furthermore the principle of equality emphasized. Concretely, four ad-hoc working groups were suggested for the cooperation with NATO relating to the follow-
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ing sectors: safety standards applicable to classified documents, development of military ability targets, modalities of the access of the European Union to NATO resources, definition of permanent arrangements with NATO. Regarding the question of contract modifications due to the new political and military bodies the Portuguese Presidency recommended a further examination until the summit in Nice. The relation to NATO did not by any means develop in an unproblematic way. While the development of the ESDP has been supported on the official level in all NATO communiqus since the Washington Summit in 1999 under the condition that the principles of transparency, consultation and non-discrimination are taken into account by the NATO states, a skeptical attitude is widely spread in the NATO headquarters in Brussels. The joint exercise with the WEU (CMX/CRISEX 2000), [FN60] which tested the utilization of NATO means by the Europeans, has been sensed as a culture shock within parts of NATO. Likewise, the prospect of an integration of neutral states and states not bound by the pact into the cooperation between the European Union and NATO, does not invoke undivided acceptance. The EU's tendency towards representing an institutional carpenter's workshop is being criticized. Therefore, NATO officials and representatives of the U.S. administration measure the sincerity of the CESDP based on whether it really succeeds to establish military abilities and to achieve the headline goals until 2003. Particularly until spring 2000, the missing transparency as to the institutional development promoted within the European Union was criticized. Indeed, there was no institutionalized contact at least until the joint establishment of the ad-hoc bodies with NATO in the summer of 2000 except for the weekly informal breakfast meetings of the Secretary-Generals of both organizations. However, it has to be taken into consideration that since no later than spring 2000 a certain interconnection with NATO exists relating to personnel. Thus, most military delegates for example come from NATO and carry a double hat. Moreover, meetings with the Deputy NATO Commander-in-Chief are intended in the context of the interim military committee in order to elaborate on the headline goals and military capability targets. Furthermore, the interim committee maintains also a guideline task force in which NATO experts participate. Additionally, in analogy to the tradition of the past joint meetings of the Permanent Councils of NATO and WEU, a first session has taken place already in September 2000. The skepticism within NATO is partly reflected in the ambivalent attitude of the USA. On the highest political level the CESDP is supported; at the same time, however, Secretary of State Madeleine Albright made it clear already in October 1998 that the European processes may not lead to the decoupling of NATO, to duplicating lines of command or to the discrimination of European NATO partners that do not belong to the European Union. [FN61] The reason for these three imperatives are the American concerns relating to a loss of control and influence as well as fears regarding a possible consolidation of a EU core within NATO. [FN62] At large, the basic American attitude will also in the upcoming years rather be a Yes, but. Moreover, in the opinion of high NATO officials and American security experts there is still a period of five, if not ten, years needed until the CESDP will be fully operative. Therefore, a longer period of recurring turbulences and resentments in the transatlantic relation is yet to anticipate. Contrary to American fears, the CESDP could however rapidly become too dependent on NATO. On the one hand, for years the Union has to rely on the recourse to means and capabilities of NATO in order to implement complex military operations. Therefore, the resort option preferred by Great Britain, the Netherlands, Germany and Italy requires the organization of well functioning close political and military-operational relations with NATO. If NATO means are to be utilized, an additional consensus decision in the Atlantic Council is needed, which in the long run ensures the USA of a droit de regard with respect to European actions. On the other hand the incompatibility of the memberships of NATO and the European Union plays an important role. Since the WEU, whose functions are in the majority assumed by the
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European Union, granted large rights of participation to Turkey, Norway, Iceland, Poland, the Czech Republic and Hungary, the U.S. and the group of these six states expect the same of the European Union. The actual problem concentrates on Turkey, which postulates an inclusion in the EU decision-making process and thus mandates a revision of the political dialog offered by the European Union with regard to the defense sector. How serious threats of a Turkish blockade policy have to be taken in the Atlantic Council will depend on the further perspective of an accession to the European Union. Despite the dissatisfaction with the consultation arrangements of Feira, after some hesitation, Turkey did agree to the formation of the four adhoc groups in order not to endanger the unity of NATO and to live up to its own new status as a candidate for accession to the European Union. The attempt to urge for a partial membership in the CFSP pillar by reaching through the CESDP backdoor is certainly obvious. However, this weak point in the construction of the CESDP might still remain, as long as American policy does not exert pressure toward an opening of the CFSP pillar. By all means, crucial for the development of the CESDP is the constant effort for communication and reinsurance with the U.S. and on the other hand to design the dialog with the group of the six states in a way that a smooth utilization of NATO means is possible if necessary. IV. The Treaty of Nice: Results Concerning the CFSP When the results of Nice are presented, a double distinction should be made. On the one hand, it must be taken into consideration that CFSP issues were discussed only regarding Articles 23 and 24 of the Treaty of Amsterdam. Article 23, paragraph 2, which concerns the appointment of special representatives for the CFSP, was amended in order to designate the possibility of a decision made by a qualified majority with regard to a joint action and to the appointment of a special representative in accordance with Article 18. Article 24, which concerns the conclusion of international agreements within the area of the CFSP as well as Justice and Home Affairs, has been fundamentally replaced, in order to require the qualified majority of the Council for the implementation of a joint action or a common position. However, unanimity is required if the agreement covers the acceptance of internal decisions. This means that the new Treaty completely ignores the European Parliament at the time of the conclusion of agreements on the government level including CFSP. On the other hand, parallel discussions were led in the Council for General Affairs in order to prepare the Nice Summit. The report of the French Council Presidency contained guidelines regarding the necessity for modifications of the Treaties. The respective results were: Article 17 EU was amended, i.e. the reference to the ultimate integration of the WEU into the Union was deleted; Article 25 EU regarding the role of the Political and Security Committee now establishes the possibility for the Council to authorize this Committee to make relevant decisions concerning political monitoring and strategic management; A declaration on the European Security and Defense Policy within the appendix to the Final Act of the Intergovernmental Conference records that within the course of the year 2001 and at the latest during its meeting in Laeken/Brussels the European Council will take a decision on the basis of the existing treaty provisions in order to enable the Union to rapidly become operational. The entry into force of the Treaty of Nice is therefore no prerequisite for this. Furthermore, the Treaty of Nice extends the range of application of enhanced cooperation within the area of the CFSP (second pillar). This is a step forward in comparison to the past situation; however, a number of important problems remain unresolved. First, the range of application remains too limited, it will rest reduced to the implementation of joint measures and common positions and will not be expanded to the Security and Defense Policy. Second, the approval procedure represents a regress compared with the procedure
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pursuant to the first pillar, and most notably, a real democratic supervision in form of a consultation of the EP has not been designated. Third, the Council takes its decision on the basis of the vote of the qualified majority; each member state, however, has a veto right. In accordance with the request of the EP all but one references to the WTO in the modified Art. 17 EU were deleted. This article determines that the CFSP will also contain the gradual development of a Common Defense Policy. Nevertheless, all Council decisions taken since the entry into force of the Amsterdam Treaty (Cologne, Helsinki, Feira and Nice) refer to the military and civil instruments necessary for compliance with the Petersberg missions. Defense policy as such remains a national issue. The Petersberg missions (humanitarian and rescue actions, peacekeeping missions as well as missions of armed forces during crisis management including peace building measures) were included in Article 17, paragraph 2 of the Treaty of Amsterdam and become thereby part of the CFSP/CESDP. It had already been decided in Helsinki that the Member States which voluntarily cooperate in EU-led operations have to be able until 2003 to make available armed forces of up to 50,000-60,000 men within 60 days. Furthermore, it was determined that new political and military bodies are assembled within the Council so that in accordance with the decisions of Nice the following committees will be gradually constituted: (a) a permanent Political and Security Committee; (b) the Military Committee and (c) the Military Staff. The report of the Council Presidency adopted in Nice explains regarding the CESDP that the development of an autonomous ability of decision making and the preparation and implementation of EU-led military actions in response to international crises, where NATO does not intervene as a whole, will enable the EU to implement the entire spectrum of the Petersberg missions in accordance with the definition of the Treaty of Amsterdam and that this does not signify the organization of a European army. Thus, NATO remains the basis for the collective defense of its members. During the Feira European Council, four priority sectors were determined (law enforcement, stabilization of the rule of law, stabilization of civil administration and civil defense) within which the Union has to develop its abilities for crisis management by civil means both in the framework of UN and OSCE operations and within European Union initiatives. The adoption of the regulation creating a crisis reaction mechanism on February 26, 2001, has been a first and extremely important step forward. With this step, the civil capability of the European Union regarding a rapid and efficient intervention in crisis situations in third countries is to be strengthened. In addition, the mechanism will provide the necessary flexibility to mobilize rapidly available instruments of the Community. V. Conclusion In contrast to the EPC (European Political Cooperation) of the seventies and CFSP of the nineties, it now appears as if the involved Europeans for the first time meant what they said. It adds to the reliability that the old blockades cannot take place any longer. Only those are participating that are willing and able to put a strong foreign policy into practice and to place soldiers in the field. The rapid task force that is planned has the strength of a NATO corps50,000 to 60,000 men, including Air Forces and a naval component. The task force shall be established by the end of the year 2002, shall be operational in each case within two months and shall endure a mission of one year's length. The latter, however, requires that the suitable missions are found. This cannot and should not be the classic NATO case which Article V of the North Atlantic Treaty describes: common defense of an attack directed toward the territory of a NATO partner. There is no binding information as to the geographical range. In principle, the range is unlimited.
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However, the NATO-ESDI dividing lines are drawn, and the Europeans will be in extraordinary need of NATO help and American assistance in the areas of command, control, communication and information. Something similar applies to transportation by sea and air. This assistance, however, the U.S. will by no means grant unconditionally. [FN63] What the Europeans demand from themselves remains further limited. But one suspects that in the bitter reality the boundaries are flowing, that the ambition of the French and the British outreaches that of the Germans and that at this point intra-European conflicts might appear. The British want the European defense not to take place without them in the context of the euro corps composed of German, French, Belgian and Spanish units. They rather want to introduce their strategic leadership abilities and their special relation with the USA into Europe, particularly in the area of intelligence. France views the ESDI as a chance to pull the other Europeans into a Gaullist direction. The Germans want to save what there is still to be saved of the Political Union, and feel a strategic backlog. There is also a particular chance of conflicts with the Americans. In due form, they have given their blessing to the ESDI and have promised to grant assistance if necessary. However, the rudiment of a strategic dissent is already present. For such operations will arise from which the Americans stay away, be it because of their irrelevancethen it may be good , be it because of serious differencesthen it is dangerousor be it also, because the U.S. is otherwise engaged. In fact, the only remaining superpowerthe U.S.aims high, literally with rocket defense and metaphorically with a revolution of the military, the high-tech mega project of the battlefield that is completely controlled by intelligence and long-range weapons. However, at the same time the abilities of conventional warfare are decreasing, as pointed out in the latest report of the Center for Strategic and International Studies in Washington. The U.S. is a maritime world power, and commitments in the heart of far away continents are neither in their tradition nor in their national interest. First and last, it was this skeptical analysis of the strategic coherence which induced the British in 1998 to extend their unconditional NATO first concept, which traces back to the Second World War and the beginning of the Cold War. Europeans and Americans are to become indispensable partners for each other. However, this requires an equilibrium that so far has never existed. Because during the Cold Warand since then by no means lessNATO has been predominantly determined by American leadership, strategy and technical superiority. This imbalance, however, is based less on American hegemony attempts and more on European interests in strategic assistance. In the time of the Soviet threat the Europeans wanted under no circumstances to give the signal to the USA that they could master the situation alone if necessary. Since that time, the EuropeansFrance and the United Kingdom represent an exceptionhave comfortably installed themselves underneath this protective shield. Insufficient defense budgets, outdated equipment and old-fashioned armed forces structures have resulted from this situation. However, in the past also the Americans were not by any means unconditionally in favor of a strong European pillar. On the other hand, President John F. Kennedy had already required this four decades ago. Henry Kissinger wanted something similar in the year of Europe in 1973. Washington looked for strategic and material discharge. The motive was burden sharing, or load distribution. For the British government, the ESDI was not by any means only dictated by security interests. As Great Britain will still stay away for a couple of years from the core project of Europe, the common currency, it was in the British interest to demonstrate and bring in the country's strengths. The European partners spotted for their part the chance to use the pragmatic British concept of the ESDI to overcome the interwoven dis-
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order of the institutions, the incongruence of NATO and the European Union, the European Union and WEU. The ESDI will demand from both sides, Europeans and Americans, to make the effort that Lord Robertson has described: to ride two horses at the same time. This contradicts the laws of physics; however, not those of statesmanship. [FN64]
[FNa1]. (J.D.) University of Leipzig, Leipzig, Germany. [FN1]. See M. Eyskens, Konfliktverhinderung und europische Verteidigung Wie kann Europa Konflikte verhindern? The Philip Morris Institute for Public Policy Research, Nov. 1997. [FN2]. See M. Jopp, Gemeinsame Europische Sicherheits- und Verteidigungspolitik, Jahrbuch der Europischen Integration 243 (1999/2000). [FN3]. See C. Rolf, Europische Sicherheits- und Verteidigungsidentitt, Kommentar 2000, available at <http://www.soldat-und-technik.de/kommentar0001.htm>. [FN4]. See Ash & Garton, Europe's Endangered Liberal Order, 2 FOREIGN AFFAIRS 54 (1998). [FN5]. See B.C. Schwarz, Cold War Continuities: US Economics and Security Strategy Towards Europe 82-104 (Ted Galen Ed., London 1995). [FN6]. See B. C. Schwarz at 86. [FN7]. See W. Weidenfeld, Kulturbruch mit Amerika? Das Ende transatlantischer Selbstverstndlichkeit (Gtersloh 1996). [FN8]. See J. Solana, Die GESVP- Das Integrationsprojekt der nchsten Dekade, INTEGRATION 2 (1/2000). [FN9]. See C. Patten, Die Zukunft der ESVP und die Rolle der Europischen Kommission, INTEGRATION 8 (1/2000). [FN10]. See J. Solana at 2. [FN11]. See M. Eyskens at 27. [FN12]. See D. Owen, Eine wirksame GASP fr die Zukunft, The Philip Morris Institute for Public PolicyResearch, Wie kann Europa Konflikte verhindern? 33 (Nov. 1997). [FN13]. See D. Owen at 33. [FN14]. See C. Patten at 9. [FN15]. TREATY OF AMSTERDAM AMENDING THE TREATY ON EUROPEAN UNION, THE TREATIES ESTABLISHING THE EUROPEAN COMMUNITIES AND CERTAIN RELATED ACTS, Oct. 2, 1997, O.J. (C 340) 1 (1997) [hereinafter TREATY OF AMSTERDAM]. [FN16]. TREATY OF AMSTERDAM art. 16. [FN17]. Id. at art. 13 para. 3.
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[FN18]. Id. at art. 21. [FN19]. See C. Koenig, A. Haratsch, Europarecht, 3. AUFL. 297, (Tbingen 2000). [FN20]. TREATY OF AMSTERDAM art. 15 para. 1. [FN21]. Id. [FN22]. Id. at art. 14 para. 1. [FN23]. Id. at art. 14 para. 2. [FN24]. Id. at art. 14 para. 6. [FN25]. Id. at art. 23 (2). [FN26]. Id. [FN27]. Id. at art. 24. [FN28]. Id. at art. 26. [FN29]. Id. [FN30]. See C. Koenig, A. Haratsch at 304. [FN31]. TREATY ESTABLISHING THE EUROPEAN COMMUNITY, Nov. 10, 1997, O.J. (C 340) 3 (1997) [hereinafter EC TREATY]. [FN32]. Id. at art. 17 para. 1. [FN33]. Id. [FN34]. Presidential Conclusions, Helsinki European Council, 10 and 11 December 1999, para. 27. [FN35]. See id. at para. 28. [FN36]. Presidential Conclusions, Helsinki European Council, 10 and 11 December 1999, Annex I to Annex IV: Presidency Progress Report to the Helsinki European Council on Strengthening the Common European Policy on Security and Defence, Introduction. [FN37]. See id. [FN38]. Id. [FN39]. Id. [FN40]. See M. Jopp at 245. [FN41]. See C. Patten at 12. [FN42]. See C. Patten at 16. [FN43]. See A REPORT FROM THE COMMISSION ON AMERICA'S NATIONAL INTERESTS (Cambridge 1996).
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[FN44]. See Berger, Samuel R., Speech before the Centre for Strategic and International Studies, Washington (March 27, 1997) in: Amerikadienst, April 9, issued by: United States Information Service, Bonn 1997. [FN45]. See POSEN, BARRY, AND ROSS, COMPETING U.S. GRAND STRATEGIES 100-34 (Lieber, Robert J. Ed. 1997). [FN46]. See insofar Moisiv and Dominique, The Trouble with France, 3 Foreign Affairs , 94-104 (1998). [FN47]. See ALGIERI, FRANCO, DIE REFORM DER GASP- ANLEITUNG ZU BEGRENZTEM GEMEINSAMEN HANDELN 87-118 (Werner Hrsg., Gtersloh 1998). [FN48]. See KAHLER & MILES, REVISION UND VORAUSSCHAU: HISTORISCHE INTERPRETATION UND DIE ZUKUNFT DER TRANSATLANTISCHEN BEZIEHUNGEN 37 (Gtersloh 1995). [FN49]. See Link and Werner at 143. [FN50]. Feldmeyer & Karl, Die alte und die neue NATO, FAZ (May 6, 1998). [FN51]. See Wieland & Leo, Clintons neue Atomstrategie, FAZ (December 29, 1997). [FN52]. See Zoellick & Robert, NATO's Next Mission, 87-95 Weidenfeld, Werner (Hrsg), Creating Partnership - The Future of Transatlantic Relations. The Bellevue-Meetings II, (Gtersloh 1997). [FN53]. See Hoffmann & Stanley, The United States and Western Europe, 81 (Lieber). [FN54]. See Frankenberger & Klaus-Dieter, Zivilmacht oder Weltmacht, 8 FAZ (November 1997). [FN55]. See Schmidt & Hans-Joachim, Folgenreicher Stillstand, 10 FAZ (Juni. 1998). [FN56]. See Jopp at 245. [FN57]. Id. [FN58]. See Presseberichterstattung ber den deutsch-franzsischen Gipfel in Mainz in der Frankfurter Allgemeinen Zeitung und der Sddeutschen Zeitung vom 9.6.2000. [FN59]. See Presidential Conclusions, Feira European Council, 19-20 June 2000, para. 11. [FN60]. See Porto-Declaration, WEU Council of Ministers 15-16 May 2000, Porto, Atlantic Document Nr.111, 23.5.2000, para. 5. [FN61]. See Madeleine Albright, The Right Balance will secure NATO's Future, FINANCIAL TIMES (London), July 10, 1998. [FN62]. See Stanley R. Sloan, The United States and European Defence, Chaillot Papers 39, Institute for Security Studies, Western European Union, Paris, April 2000, at 14-19. [FN63]. See M.Strmer, ESDI ist ein Balanceakt tp://www.welt.de/daten/2000/02/05/0205au150577.htx. fr Europer und Amerikaner, at ht-
[FN64]. See M. Strmer, ESDI ist ein Balanceakt fr Europer und Amerikaner, at http://www.welt.de/daten/2000/02/05/0205au150577.htx. 10 U. Miami Int'l & Comp. L. Rev. 13
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31-MAY COLAW 9 31-MAY Colo. Law. 9
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Colorado Lawyer May, 2002 Article General Interest Article THE EUROPEAN UNION: A BRIEF INTRODUCTION Troy A. Eid [FNa1] Copyright (c) 2002 by Troy A. Eid This article gives a general overview of the legal framework, governance, and key institutions of the European Union. The article provides background and context for attorneys whose clients are considering business, trade, and investment decisions in both established and emerging European markets. A companion article, focusing on the legal and regulatory implications of conducting commercial transactions in Europe, will appear in the June 2002 issue of The Colorado Lawyer. The dramatic development of European law and institutions since the fall of the Soviet Empire and the reunification of Germany has generated scant attention in the mainstream U.S. media. Americans hear updates from the United Nations (UN) war-crimes trial of former Serbian leader Slobodan Milosevich or watch the made-for-TV violence of so-called anti-globalization protestors. However, few Americans know much about the European Union (EU or Union), let alone track its latest developments. In contrast, the word Brusselshead-quarters to the EU and shorthand for just about anything related to European politics and governanceis increasingly on the lips of Europeans. They pay their bills in Euros. Many do business in English, the unofficial language of the EU. They also look more to Brussels, and less to their national capitals, for the latest political and economic developments. Faced with this reality, and given the increased willingness of European allies to act independently of the United States, even on sensitive foreign policy matters, American citizens need to understand the tectonic political and institutional shifts that are taking place in Europe today. This is especially true for a growing number of U.S. attorneys and legal professionals, whose responsibilities for client service and the administration of justice may sometimes extend beyond America's shores. These lawyers must be well versed not only with European commercial law and legal practice, but also with the overarching political and policy decisions that are shaping the business and investment climate in those countries and within the EU itself. The unfolding geographical expansion of the EU eastward is a case in point. Since its inception in 1951, the EU has grown from six to fifteen nations, making it the world's largest commercial trading bloc (see Figure 1). Another thirteen comparatively less wealthy (and in some cases, poor) countries now seek to join the EU through a process known as enlargement, which would further expand the EU's scope. EU enlargement also will raise significant economic and political challenges for companies making business and investment decisions in these countries. Along with EU enlargement, the separate but largely mutually reinforcing expansion of the U.S.-commanded North Atlantic Treaty Organization (NATO) is a dominant force driving both political and economic liberalization in Central and Eastern Europe today. The pace with which these new European markets emerge, as well as their ultimate value, is directly tied to EU enlargement and NATO expansionand the powerful corporate lobbying that is
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helping to drive each. U.S. lawyers should be aware of these trends. Figure 1: Europe (2002) TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE This article briefly reviews the legal framework and key enabling institutions of the EU, including their origins, purpose, and functions, and some of the theories behind them. The purpose of this article is not to provide an exhaustive treatment of the subject, but to give Colorado lawyers just enough information to allow them to begin to develop the perspective necessary to offer appropriate legal advice to their U.S. and European business clients. A companion article in the June 2002 issue of The Colorado Lawyer will focus on some of the specific legal and regulatory issues that corporate attorneys may face in conducting business transactions in Europe. ORIGINS OF THE EU As World War II raged, an exiled Frenchman named Jean Monnet dreamed of a new Europe. Monnet, an international economist who spent the war in Washington, D.C., imagined a new European order in which each country delegated part of its national sovereignty to a set of shared institutions. Monnet argued in an influential Fortune magazine article in 1944 that such economic and political interdependence would lead to a more prosperous and peaceful Europe. When the war ended, Monnet found a receptive audience with two of Europe's rising political stars: French Foreign Minister Robert Schuman and Konrad Adenauer, the first chancellor of West Germany. The three men would go down in history as the founding fathers of the EU. Their legacy is a political and economic confederation that now unites fifteen European nations, 377 million people, and $8.4 trillion in combined annual gross domestic product. Schuman, who grew up in the mixed French-German region of Alsace-Lorraine, spoke German fluently and even served in the Kaiser's army during World War I. He methodically earned and kept Adenauer's confidence without getting too far ahead of his charismatic but volatile boss, French Resistance leader-turned-president, Charles De Gaulle. Schuman understood and perhaps shared De Gaulle's fervent belief that the French must never again play second fiddle to the Anglo-Saxonsthe British and Americansin shaping European politics and institutions. Instead, Schuman thought France's future lay squarely with Germany as the leaders of a new union of European states rooted in continental values and traditions. [FN1] The former mayor of Cologne, Adenauer had been a leading figure in Germany's doomed Weimar Republic, and had twice been imprisoned by the Nazis during the Third Reich. He saw the push for continental institutions as a bulwark against a fascist revival in Germany. Adenauer also believed a union of European states was the most likely means by which the allied Occupation Powersthe United States, Great Britain, and Francecould accept the early entry of a fully independent West Germany into the community of nations. [FN2] In their own ways and for their own reasons, the trio of Adenauer, Schuman, and Monnet pressed for the creation of what former British Prime Minister Winston Churchill in 1946 called a kind of United States of Europe. [FN3] France and West Germany took a defining first step in 1951, adopting Monnet's plan to beat swords into plowshares by pooling their respective coal and steel industries into a six-nation European Coal and Steel Community (ECSC). A subsequent push to create a continental European Army, strongly favored both by Adenauer and the United States, failed when the French National Assembly defeated it in 1954. Nevertheless, in 1957, the success of the ECSC led to the Treaty of Rome, establishing a six-nation zone of commercial cooperation known as the European Economic Community (EEC). By 1992, the EEC had become the EU, the world's largest trading and commercial bloc. The economic reality of
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the new Europe was symbolized a decade later, in January 2002, when all but three EU members converted to a single currency, the Euro, as part of a common monetary policy and central European banking system. Just a halfcentury from when it all began, the scope of today's EU has expanded beyond trade and finance to include historically domestic matters such as environmental protection, employment and workplace issues, law enforcement, and drug control. At the same time, the EU has taken an increasingly assertive stance on the world stage. The combined EU members recently surpassed the United States as the world's largest contributor of foreign aid to developing nations. Even the European Army concept has been dusted off and recast as a shared Common Foreign and Security Policy (CFSP), separate and distinct from NATO. The interplay between the CFSP and NATO, and their respective success in keeping the peace in Europe while encouraging democratic reform and economic liberalization, will continue to influence commercial opportunities in tomorrow's Europe, especially in the emerging markets of the former Eastern Bloc. Figure 2: The European Union Date of Entry Equivalent Into the EU U.S. Land Area Austria 1995 Slightly smaller than Maine Size of Maryland Twice the size of Massachusetts Slightly smaller than Montana Slightly less than twice size of Colorado Slightly smaller than Montana Slightly smaller than Alabama Size of West Virginia Slightly larger than Arizona Population Capital City Major Language(s) German
8.1 million
Vienna
Belgium
1957
10.2 million
Brussels
Flemish, French
Denmark
1973
5.3 million
Copenhagen
Danish
Finland
1995
5.2 million
Helsinki
Finnish, Swedish, Lapp French
France
1957
59.3 million
Paris
Germany
1957
82.3 million
Berlin
German
Greece
1981
10.6 million
Athens
Greek
Ireland
1973
3.8 million
Dublin
English, Gaelic
Italy
1957
57.6 million
Rome
Italian, German, French, Slovene
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Luxembourg
1957
Slightly less than size of Rhode Island Twice the size of New Jersey Slightly smaller than Indiana Slightly more than 2x size of Oregon Slightly larger than California Slightly less than size of Oregon
437,000
Luxembourg
Luxembourgian, German, French, English Dutch
Netherlands
1957
15.9 million
The Hague, Amsterdam Lisbon
Portugal
1986
10 million
Portuguese
Spain
1986
40 million
Madrid
Spanish, Catalan, Galician, Basque
Sweden
1995
8.9 million
Stockholm
Swedish, Finnish, Lapp English, Welsh, Scottish Gaelic
United Kingdom
1973
59.5 million
London
CIA World Factbook 2001, European Union: www.cia.gov and www.europa.eu.int.
DEFINING THE EU Many European opinion-makers still have a hard time agreeing on a mutually acceptable, all-inclusive definition of the Union, although they insist that it is uniquely complex and entirely without precedent. This is not exactly comforting to American lawyers, who are ordinarily accustomed to a bit more precision. Ultimately, however, the EU can be defined in more than one way, depending on the context in which it is used. EU as a Federation of European Nations One way to define the EU is geographically. What began in 1951 and was formalized by the Treaty of Rome in 1957 as a set of political and economic relationships among six nations (West Germany, France, Italy, and the Benelux countries of Belgium, Luxembourg, and the Netherlands) now stands at fifteen, including a reunified Germany ( see Figure 2). As discussed below, the EU expects to expand eastward in the years ahead as another thirteen nations, including Turkey and the former Eastern Bloc countries, seek to join the Union through EU enlargement. EU as a Legal and Institutional Framework Another way to define the EU is to focus on its purpose, structure, governance, and rules. According to this definition, the EU is a legal and institutional framework, anchored by a series of treaties starting in the 1950s and enforced through national and European courts of law. This framework defines and manages political and economic cooperation among its members. Today's EU is a geopolitical work-in-progress. It is bound by a patchwork of politics, laws, and institutions intended to foster what its founders called the four freedomsthe free movement of people,
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goods, capital, and servicesthrough various means, including the following: The European Single Market: A free trade zone (and preferential internal trading bloc) for goods and services. Monetary and Economic Union: Including a single currency monetary policy, the European Central Bank and its companion institutions, and coordinated national economic policies. European Citizenship: Based on uniform national laws, policies, and procedures concerning customs and duties, border crossings, passport controls, immigration, and asylum. The Acquis Communautaire: Loosely translated (although not literally) as what it means to be European. The Acquis refers to a growing body of more than 100,000 pages of minimum legal and regulatory standards called EU directives. These directives, or laws, are required of all EU members, promulgated by Brussels, and adopted separately by each EU member's national government. The directives increasingly cover historically domestic matters such as agriculture, environmental quality, civil and criminal justice, drug control, anti-trust and business regulation, labor and employment, and research and technology. Political Union: Includes a common foreign and defense policy, based on shared European norms, that attempts to supplement and perhaps reshape traditional notions of national security and international relations. EU as a Vehicle for Europeanization In terms of political and cultural philosophy, the EU aspires to be greater than the sum of it parts. In this context, Europe, the Union, or even the Acquis are sometimes used broadly to mean the ongoing process of Europeanization: the creation of a shared European identity that augments (and one day, some argue, might even transcend) nationalism. Viewed from this perspective, the EU strives to be an entirely new mechanism, developed as a direct response to the ravages of World War II, for major European nations to yield some of their sovereignty to a single political and economic union as a means of preventing future wars. Under this last definition, and in contrast to the UN (founded in 1944, the same year Monnet began sharing his dream), it is not enough for the same old European nation-states to develop shared political institutions for collective security. The traditional balance-of-powers arrangements had led repeatedly to wars that left much of Europe devastated. [FN4] Instead, the fundamental nature of those nation-states had to change. Therefore, today, the most zealous supporters of the EU assure others that they are Europeans first and Italians, Spaniards, or Germans second. Recently, while visiting the home of a senior Danish diplomat living in Brussels and serving on the staff of the European Commission (see below), this author experienced this attitude firsthand. The diplomat and his Danish wife were raising their young children to speak English and French, but not Danish. English and French are the languages of Europe, the diplomat stated. We are from Denmark but our children will be Europeans. He might have added German or Spanish to the list of languages, but the point was made: allegiance to Europe may someday, for some people, trump nationality. GOVERNMENT BY TREATY Whatever the contextual definition, the EU is the modern epitome of government by treaty. In some respects, its development runs exactly counter to the founding of the United States. The founders of this country, united by their victory in the War of Independence against King George III of England, set about drafting a series of organic legal documents by which to create and maintain a new federal government. Their first attempt at national unity, the 1777 Articles of Confederation, fell short and gave way to the U.S. Constitution in 1789. However, the larger point is that many basic federal powers barely existed in the early years of the United States, even after the Constitution was ratified. For example, there was no national banking system; virtually
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no federal transportation infrastructure or public works projects; and there was an ongoing, robust debate over whether the new nation should even have a standing army. The founders and their successors created these and other institutions virtually from scratch. In contrast, in post-World War II Europe, even the younger nations, such as Belgium (which gained independence from the Netherlands in 1830) or Germany (unified as the Second Reich in 1871) typically had deep ethnic and cultural roots. Some, like England, France, or Spain, had occupied much the same territory for centuries and had developed a rich national identity. Many had strong national governments. Not surprisingly, the process for merging these venerable nation-states into a unified federation, with its own inter-governmental and, in some cases, supranational institutions, has unfolded quite differently than the United States. Only recently, after more than fifty years of sustained cooperation, have Union members agreed to hold the first EU constitutional convention in 2004. The EU has evolved through a series of international treaties among its members, starting with the ECSC Treaty in 1951, noted above. Typically, treaties are negotiated at the ministerial level of each country, agreed to in the European Council (now comprising the fifteen European heads of state), and then submitted to each nation for ratification. Some EU member-nations, such as Ireland, put treaties to national referenda; others, such as Germany, do not. Still other European nations, such as Norway and Switzerland, have rejected EU membership. It also bears noting that EU treaties do not necessarily evolve progressively or sequentiallythat is, in a coherent and consistent direction. Instead, they are snapshots, reflecting national attitudes toward European unity at specific moments in time. At times, as when France rejected the proposed European Army in 1954, at least some aspects of a rejected treaty may later re-emerge through European policy decisions made by EU officials in Brussels. At other times, a given agreement expanding the powers of certain EU institutions (for example, the 1997 Treaty of Amsterdam, which strengthened the European Parliament) is effectively replaced by a later one, such as the December 2000 Treaty of Nice, which cut back the Parliament's authority. A quick look at a few of the major treaties guiding the EU's development attests to these trends. Treaty of Rome (1957) As described above, this landmark agreement among France, Germany, Italy, and the Benelux countries established the EEC. The EEC merged six separate national markets into a single market and abolished most trade quotas and duties. It also led to the adoption of the Common Agricultural Policy in 1962. [FN5] Additionally, the treaty created the European Court of Justice to interpret disputes over European law, as well as a European Parliamentary Assembly, with representatives seated by party, not nationality. Finally, the treaty established the European Atomic Energy Community (EURATOM) for peaceful uses of nuclear energy. The European Single Act (1987) The European Single Act, together with the 1992 Treaty of Maastricht (see below), established the phased-in process for full Economic and Monetary Union (EMU), including coordinated national economic policies; the creation of a centralized European banking structure and financial markets; harmonized trade duties and tariffs for EU members; and a European single currency, the Euro. On January 1, 1999, the Euro became the single currency for eleven EU member states tied to a common exchange system: Austria, Belgium, Finland, France, Germany, Italy, Ireland, Luxembourg, the Netherlands, Spain, and Portugal. Collectively, with Greece, these twelve nations are known as the Euro Zone, which accounts for roughly 20 percent of world trade and gross domestic product. In March 2002, after a short period of dual currency, the national notes and coins of each country in the Euro Zone were permanently withdrawn and replaced by the Euro. [FN6] Importantly, the EU members not in the Euro Zone (Denmark, Sweden, and the United Kingdom) still have the opportunity to link their national currencies to the
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Euro under an exchange rate mechanism. Treaty of Maastricht (1992) Besides continuing the EMU process, the Maastricht Treaty established the Three Pillars, an architecture for the future development of the EU: 1. Pillar One incorporates founding treaties and sets out institutional requirements for the EMU. It also empowers EU institutions to pass laws and regulations in various areas, including the environment, education, and research. Unlike Pillars Two and Three, Pillar One operates through EU supra-national institutions instead of through inter-governmental co-operation. 2. Pillar Two establishes the CFSP. This pillar is designed to enable the EU to take joint action in foreign and security affairs. 3. Pillar Three creates the Justice and Home Affairs policy, dealing with asylum, immigration, judicial cooperation, drug control and interdiction, and customs and police cooperation. [FN7] Treaty of Nice (2000) As discussed in the following section, the Nice Treaty made a number of substantial changes to the EU legislative process. It effectively diluted the power of the European Parliament (thereby overruling sub silentio portions of the 1997 Amsterdam Treaty); enhanced the power of the Council of Europe and the Council of Ministers; and generally made it more difficult to enact EU legislation. MAJOR EU INSTITUTIONS The treaty-based evolution of the EU has led to the creation of a number of European governing institutions, collectively known as Brussels, in much the same manner as the word Washington denotes federal authority in the American system regardless of where it might actually be located. Nonetheless, the basic theoretical assumptions behind these EU institutions differ substantially from the political philosophies that motivated the framers of the U.S. Constitution. James Madison and other architects of the U.S. Constitution were chiefly concerned about the corrupting aspects of power, particularly among factionswhat today are called special-interest groupswho seek to influence governmental decisions in favor of their own parochial interests. Men of factious tempers, of local prejudices, or of sinister designs, Madison warned, may by intrigue, by corruption or by other means ... betray the interests of the people. [FN8] Generally, the founders wanted to build governmental structures, rooted in the separation of powers, to protect the citizenry from unnecessary governmental intrusion into private affairs. Their response was to fragment and carefully circumscribe authority in two ways: 1) Horizontally across the federal government by dividing the federal power into legislative, executive, and judicial branches, each with specific lines of authority; and 2) Vertically through an architecture of federalism that placed certain powers at the federal level and others with the states. [FN9] Unlike America's founders, the creators of the EU have been chiefly concerned with achieving (or as Europeans often say, deepening) European integration among historically diverse nationalities and nation-states. Europeans place relatively greater emphasis on consensus decision-making. In many cases, such as setting agricultural policy, EU members often must act unanimously. Numerous other decisions require super-majorities to effect any meaning-
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ful policy change. In this sense, the architecture of the EU is anchored in the vertical separation of powers. There is a very real tension between the permanent EU institutions in Brussels and the national governments of each member country. The Union's heavy reliance on government-by-treaty reflects this basic reality: the EU is not being built from scratch, organically through a constitutional process, but remains very much a federation of sovereign and independent nations. Conversely, EU's founders have been far less concerned than James Madison, Alexander Hamilton, or John Jay (let alone Thomas Jefferson) with balancing power among or across the Union's governing institutions. Horizontal separation of powers is comparatively limited in today's Union; crisp distinctions between legislative, executive, and judicial power are often lacking. More strikingly, Europeans and Americans tend to have different perspectives on the relationship between governmental power and the protection of individual rights. Many Americans, liberal and conservative alike, eye Washington (and governmental power generally) with skepticism. Accordingly, there is a shared affinity across the American political spectrum for policing governmental decision-making through private political participation and activism. This stems, in part, from America's strong tradition of popular sovereignty, with government operating only with the consent of the governed. It is reflected in the central importance that Americans place in open government, which includes public meeting (or Sunshine) laws, freedom-of-information and public records disclosure requirements, and a growing body of laws regulating contributions to political candidates and issues. In contrast, many Europeans tend to perceive government more as a guarantor (and perhaps even a source) of individual rights and less as a threat to them. Perhaps this has something to do with European historythe ancient idea that power flowed by divine right to kings, who then delegated it to government, and then incrementally to the citizenry. Alternatively, perhaps Europeans are more accustomed to centralized government as a result of Europe's early and protracted experience with cradle-to-grave social welfare systems. [FN10] Whatever the reasons, such European attitudes toward government have several implications that are reflected in the governing structures of the EU. First, Europeans are generally far more willing to defer to governmental decision-making, particularly by experts and other political elites. For instance, members of the European Parliament, the only popularly elected legislative body in the EU, are prohibited from introducing legislation. Instead, only the European Commission, the Brussels-based EU policy body, is allowed to initiative new laws. Parliament's power is ordinarily limited to amending legislation, and even then only on certain issues. Second, Europeans often tolerate (and sometimes even expect) substantially more governmental involvement in private decision-making than do Americans. This reflects the comparatively limited, and less autonomous, influence of the private sector throughout Europe in making government decisions. Policing of governmental decision-making is itself often viewed as a governmental function. The EU relies largely on an Ombudsman's Office and a Court of Auditors to ensure public accountability and to combat corruption and cronyism, as opposed to facilitating Americanstyle private oversight. Unlike the U.S. federal government and most states, the EU lacks both open meetings laws and a comprehensive freedom of information act; the regulation of lobbying and campaign finance is still in its infancy. Many, if not most, of the EU's key decisions take place at the prime minister or ministerial level among EU members, behind closed doors and with no minutes kept. This is aggravated by the fact that many national newspapers and media outlets in Europe are aligned with individual political parties and may gain favored access to certain officials. Even the European equivalent of the U.S. non-profit sector (so-called Non-Governmental Organizations or NGOs) are often partly or entirely government-funded. With this background in mind, Europeans frequently use this catch-phrase to explain the EU decision-making process: The Commission proposes, the Parliament advises, the Council decides, and the Court of Justice rules.
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This expression, while admittedly an oversimplification, nonetheless captures the essence of EU governance. European Council The European Council is the EU's chief political body. It is composed of the fifteen elected heads of state, and most of its decisions require unanimity. [FN11] The presidency of the European Council rotates every six months among these prime ministers and their respective countries, who are responsible for hosting at least one summit meeting during their term. Besides setting the EU's agenda and overseeing its activities, the European Council resolves appeals from the Council of Ministers. Council of Ministers The Council of Ministers (Council) (not to be confused with the European Council) acts as the primary executive and legislative branch of the EU. It has the power to enact all EU laws (directives), sometimes jointly with the elected European Parliament, sometimes not, depending on the issue. These directives are then submitted to the national parliaments of each EU member country for consideration, but typically must be adopted without any amendments by those parliaments. The Council consists of fifteen ministerial (cabinet-level) officials, one from each member country, plus the president of the European Commission. The Council presidency rotates every six months. The Council is sub-divided into twenty-five different working groups focusing on such matters as foreign affairs, economy and finance, agriculture, transportation, and environmental quality. The Council makes most of its decisions by qualified majority voting (see Figure 3). [FN12] Figure 3: Qualified Majority Voting by The Council EU Member Austria Belgium Denmark Finland France Germany Greece Ireland Italy Number Weighted Votes/Member 4 5 3 3 10 10 5 3 10
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Luxembourg Netherlands Portugal Spain Sweden United Kingdom TOTAL
2 5 5 8 4 10 87 (62 for Qualified Majority)
Serving the European Union: A Citizen's Guide (Brussels, 2000) at 13.
European Commission Known as the guardian of the treaties, the European Commission (EC) initiates all EU directives and is responsible for the day-to-day administration of the Union. Synonymous in the popular media with the word Brussels, the EC consists of twenty commissioners. France, Germany, Italy, Spain, and the United Kingdom each have two commissioners; the other members have one each. All commissioners serve five-year terms and are responsible for specific subject matters. Commissioners are expected to take a European perspective, rather than represent their national constituencies. Accordingly, the EU levies taxes on member nations and is directly responsible for paying the commissioners, as well as more than 17,000 permanent staff. Because documents must be translated into many different languages, a substantial portion of this staff is involved with translation services. European Parliament The European Parliament consists of 626 members who are popularly elected in their home countries to five-year terms, but who are seated by political party, not nationality. In contrast to European commissioners, members of Parliament are each paid by their home countries. This results in wide salary and staffing disparities among members serving in the same chamber and seated by political party. Parliament is not a comprehensive law-making body like the U.S. Congress. Instead, its primary legislative responsibilities are confined to three procedural powers in shaping legislation: 1. The Consultation Procedure: Parliament may give advisory opinions to the Council on certain proposed laws. 2. The Cooperation Procedure: Parliament is permitted to amend certain types of legislation. 3. The Co-decision Procedure: A process that is used for shared decision-making with the Council on selected issues. Additionally, Parliament is responsible for approving (but not writing) the EU's annual budget, except for the politically charged arena of agricultural programs, which are budgeted directly by the Council. Parliament also must
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formally approve the entry of new nations in the Union, although the actual negotiations on EU accession are conducted at the Council level. Finally, Parliament has the power to force the resignation of the entire EC. This power has never been used, although Parliament did play an informal role in forcing the resignation in the late 1990s of then-Commission-President Jacque Santer and some other commissioners and staff in a corruption scandal. Voting in the European Parliament is conducted by national weighted representation (see Figure 4). The vote weighting is vaguely reminiscent of the Electoral College provisions in U.S. presidential voting, as well as representation in the U.S. Senate, in that it is designed to reduce the impact of more-populous EU member states. [FN13] The authority of the European Parliament grew more or less steadily, albeit slowly, from its EEC predecessor until the Treaty of Nice in 2000. Under that treaty, all legislation requiring co-decision by the Council and Parliament must receive: (1) qualified majority approval (62/87 votes) in the Council; (2) support from a majority of EU member nations (8/15); and (3) approval from member nations representing at least 62 percent of the EU's total population. Several issues are likely to affect the European Parliament's authority in the future. The first is the increased assertiveness of the most populous EU members, especially Germany and France, to demand a greater share of the weighted votes in Parliament. Second, current EU member nations, both large and small, are mindful of how the process of EU enlargement may impact parliamentary voting. It is widely expected that at least twelve new nations from Central and Eastern Europe will enter into the EU within the coming decade or so. [FN14] Finally, there is a nascent grassroots movement within some EU member countries to democratize the EU. This might be achieved partly by expanding the European Parliament's power, as well as by opening up its decision-making to greater public and private scrutiny. European Court Of Auditors As noted above, the European Court of Auditors is responsible for overseeing the other EU institutions to ensure efficiency and help prevent corruption. It comprises fifteen members, one from each EU member nation. The Court of Auditors reviews budgets and expenditures and conducts both spot and periodic audits. It also provides annual statements of assurance to the Council and European Parliament, attesting to the legal and regular operations of each European entity. A separate EU Ombudsman's Office handles complaints from private citizens. European Court System The EU's court system consists of two courts. The highest appellate court is the Court of Justice of the European Communities (European Court of Justice), which hears direct actions from the EC, other European institutions, or any EU member state. Unlike the U.S. Supreme Court, the European Court of Justice may hear appeals from private parties and organizations only on points of European law. The court consists of fifteen judges (one chosen by each EU member state) and nine advocates general, all serving renewable six-year terms. Jurisdiction is limited to matters of EU, as opposed to national, law. This means that the European Court of Justice is not an appellate court from the decisions of national courts. However, national courts are bound to apply the European Court's interpretations of EU directives. Figure 4: Weighted Voting in the European Parliament EU Member Country Austria Number of Representatives 21
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Belgium Denmark Finland France Germany Greece Ireland Italy Luxembourg Netherlands Portugal Spain Sweden United Kingdom TOTAL Lobbying the EU, unplublished presentation by White & Case, Brussels Office, March 2001.
25 16 16 87 99 25 15 87 6 31 25 64 22 87 626
A separate intermediary court, the European Court of First Instance, has jurisdiction over all actions brought by individuals, organizations, and corporations against decisions of EU institutions. The Court of First Instance consists of fifteen judges (one from each country), each serving renewable six-year terms. Judgments of the Court of First Instance are subject to appeal to the Court of Justice, but only on points of law. Other Institutions The EU has a number of other key institutions, particularly in the Pillar One areas of trade, commerce, finance, and investment. These include the European Central Bank and European Investment Bank, the latter of which finances EU-sponsored development projects. Additionally, the EU has numerous consultative bodies within Pillar Three (Justice and Home Affairs) designed to provide expert advice to the Council and the EC. The best known of these groups are the European Economic and Social Committee, which is intended to bring the EU institutional ma-
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chinery closer to the people, and the EU Committee of the Regions. The latter committee, established by the Treaty on European Union in 1993, purports to be the Guardian of Subsidiarity, the principle, reminiscent of federalism in the United States, that EU laws and regulations should be implemented nationally at the lowest level of government possible. The Committee on the Regions consists of 222 members from various regional, provincial, and municipal governments. Each EU member nation is represented, voting is weighted by country, and members serve four-year terms. The committee issues non-binding opinions on matters relating to social and economic policy and EU institutional reform. Given the differing underlying assumptions behind the key EU institutions, European law-making differs substantially from that in the United States. The absence of a well-regulating lobbying system, coupled with comparatively restricted personal access to the legislative process itself, can present significant challenges. U.S. companies and their attorneys and agents seeking to influence EU decisions sometimes complain that they are not afforded the same quality of access to policy-makers (let alone ministers or heads of state) as are their European competitors. Moreover, decisions must be influenced at various levels and sometimes in many places: at the various EU institutions in Brussels and elsewhere; in the home capitals of each EU member country; and within both national and European trade associations, labor unions, and NGOs, which can be much more closely connected to government and are sometimes state-funded. Despite these shortcomings, EU supporters often boast that Europe works. They argue that Europe's consensusdriven model, while not perfect, tends toward more widely accepted policies than in the U.S. Congress. They also assert that many, if not most, EU directives are passed by each EU member's national parliament, sometimes with little or no national debate. It is not clear whether this is actually true in practice. From the standpoint of Europeans, it may well workfor them. What is clear is that American lawyers who approach the EU legislative process without knowledgeable and politically connected European partners will probably remain at a serious competitive disadvantage vis vis the home team. EU ENLARGEMENT The term enlargement refers to the process whereby new member states join the EU. Since its inception, there have been four EU enlargement waves (to use the expression favored by Europeans): 1) 1951: France, Germany, Italy, and the Benelux countries; 2) 1973: Denmark, Ireland, and the United Kingdom; 3) 1986: Spain and Portugal; and 4) 1995: Austria, Finland, and Sweden. Today, twelve nations from Central and Eastern Europe, as well as Turkeya founding member of the NATO allianceaspire to join the EU (see Figure 5). Negotiations with Turkey were suspended in 1987, but commenced in 1998 with the other twelve EU candidate members. Moreover, the EU engaged in a de facto enlargement process when the five Lnder (states) of the former German Democratic Republic entered the EU as part of reunified Germany in 1990. Enlargement is a sensitive and somewhat unpredictable process, driven by collective EU interests as well as the specific concerns of individual members. In at least one case, the 1973 accession of the United Kingdom into the EEC, the U.S. government pressured its European allies to admit a particular member. [FN15] However, Brussels has set forth three basic criteria for EU accession: 1) Political: Stability of institutions guaranteeing democracy, the rule of law, human rights (defined, among other ways, to include a prohibition on capital punishment), and respect for protection of political minorities;
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2) Economic: Existence of a functioning market economy, as well as the capacity to cope with competitive pressures and market forces within the EU; and 3) Acquis Communautaire: Ability to take on the obligations of EU membership, including adherence to the aims of political, economic, and monetary union, as well as all EU directives. The ongoing negotiations between the EU and twelve candidate nations present many challenges, but perhaps none greater than what is sometimes referred to as the Enlargement Paradox. The dilemma is this: although the EU's total population could rise by more than 25 percent by incorporating these twelve nations as new members, the EU's combined gross domestic product would grow by less than 5 percent (see Figure 6). To facilitate the current wave of enlargement, the European Council has pledged 21 billion Euros (EUR 21 billion, or roughly $22 billion in U.S. dollars) in pre-accession aid to the twelve Central and Eastern European countries through 2006. This assistance package underscores the basic fact that whatever the long-term benefits of enlarging the EU, accession is undeniably costly in the short run. Enlargement also raises a host of non-financial challenges for current EU members. Looming large in the minds of many European commentators is the impact of the next enlargement wave on the continued viability of several existing EU institutions. For instance, can the consensus-driven decision-making process of today's fifteen-member Council really function if the EU grows to twenty-seven or more members? What happens if the Central and Eastern and European countries vote as a bloc to thwart the desires of the most affluent members, such as Germany, France, and the United Kingdom, that are now footing the bill for much of the enlargement process? Are today's relatively less-affluent EU members, such as Greece, willing to forgo much of the subsidies they currently receive from the EU? How will the EU accession of Poland, one of the most attractive low-wage labor markets in Europe, if not the world, affect employment in other European countries? Drink a glass of wine with even the most enthusiastic EU official and many more likely scenarios might well be discussed. On the other hand, the eastward expansion of the EU presents potentially breathtaking new business opportunities. The comparatively lower labor costs throughout Central and Eastern Europe, coupled with the geographical proximity of that labor pool, is especially attractive. Much of Western Europe has a relatively older workforce, coupled with an extensive government-controlled pension system, as well as some of the world's lowest birth rates. EU enlargement can be a valuable tool in helping to provide skilled employees to support the graying economies of current EU nations. At the same time, enlargement would bring more than 100 million new consumers to the European economy. Figure 5: Aspiring EU Members Application For EU Accession Bulgaria 1995 Equivalent U.S. Land Area Population Capital City Major Language(s)
Slightly larger than the size of Tennessee
7.8 million
Sofia
Bulgarian, Turk Roma, Macedonia, Armenian, Tatar, Gagauz, Circassian
Cyprus
1990
0.6 times the size of Connecticut
758,000
Nicosia Greek, Turkish, (divided between English Greeks, Turkish Cypriots)
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Czech Republic Estonia
1995
Size of South Carolina Size of Vermont, New Hampshire combined Slightly smaller than Indiana Slightly larger than West Virginia Slightly larger than West Virginia 2x size of Washington, D.C. Slightly smaller than New Mexico Slightly smaller than Oregon 2x size of New Hampshire Slightly smaller than New Jersey Slightly larger than Texas
10.3 million
Prague
Czech, Roma
1995
1.4 million
Tallin
Estonian, Russian, Finnish, Ukrainian
Hungary
1994
10.1 million
Budapest
Hungarian, Roma
Latvia
1995
2.4 million
Riga
Lettish, Lithuanian, Russian
Lithuania
1995
3.6 million
Vilnius
Lithuanian, Russian, Polish
Malta
1990
392,000
Valletta
Maltese
Poland
1994
38.6 million
Warsaw
Polish
Romania
1995
22.4 million
Bucharest
Romanian, Hungarian, Roma Slovak, Hungarian, Roma Slovenian, SerboCroatian
Slovakia
1995
5.4 million
Bratislava
Slovenia
1996
1.9 million
Ljubljana
Turkey
1987
66.7 million
Ankara
Turkish, Kurdish, Armenian, Arabic, Greek
CIA World Factbook 2001, European Union: www.cia.gov and www.europa.eu.int.
Finally, there is the very real value of the enlargement process itself. Enlargement demands that each candidate country undertake specific economic and political reforms as demanded by the Aquis. These include safeguarding private property and contract rights; maintaining transparent legal and judicial institutions and processes; privatizing state-owned industries; and providing non-discriminatory access to various market sectors and segments. Con-
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sequently, many corporations from both Europe and the United States, and the lawyers who represent them, are actively involved in at least some aspect of the enlargement process. They work to build political support in the candidate countries. They lobby the capitals of the current EU members, who must ultimately approve any enlargement decisions. Moreover, they seek to influence the career EU professionals in Brussels, who help set and guide the pace of the actual enlargement negotiations. NATO AND EUROPEAN SECURITY POLICY The speed with which the enlarged European market emerges, and the potential value of that market, also depends on the extent of continued U.S. political and military involvement in many of those same countries, especially through NATO. NATO, like the EU, is expanding eastward. The two processesEU enlargement and NATO expansionare separate, but in many respects mutually reinforcing. Like EU enlargement, countries that wish to join NATO must meet several basic criteria designed to strengthen democratic institutions, the rule of law, and the transition to a private market economy. Such NATO-driven reforms directly affect the commercial and investment conditions in each country. Figure 6: The EU Enlargement Paradox Population (millions) EU-15 EU Applicant-12 (excluding Turkey) Top Applicant 373.9 106.2 GDP GDP/Person Farm Workers As % Labor Force 4% 20%
$8.4 trillion $347 billion
$22,351 $3,270
Poland, 38.7
Poland, $136 billion Malta, $3 billion
Cyprus, $13,636
Poland, 27%
Bottom Applicant
Malta, 0.4
Bulgaria, $1,227
Malta, 3%
The Economist (Oct. 21, 1999) at 19.
Nevertheless, there is at least one important difference: NATO is a military, as well as a political, alliance. NATO is currently Europe's chief protection against violent political upheaval, such as the Bosnian, Kosovo, and Macedonian crises of the past decade. As keeper of the peace in Europe, NATO's military decisions have farreaching implications on the business and investment climate in the less politically stable countries of Europe, nations that in some cases are also EU enlargement candidates or who border those candidates. Because such undeniably political factors will ultimately determine the business potential of tomorrow's European market, U.S. attorneys should understand the critical role that EU enlargement and NATO expansion is playing in shaping the new European economy. At the very least, this means learning about NATO's mission and Cold War roots, its current role, and the possible directions the alliance may take in the coming years. The NATO Alliance Created in 1949 by the North Atlantic Treaty (also known as the Washington Treaty), NATO was conceived as a
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political and military umbrella for Western Europe, and as a collective security alliance against the growing military might of the Soviet Union. NATO's historical mission was to promote peaceful and friendly relations throughout the North Atlantic area, through political and military means, and to deter and defend against any form of aggression against the territory of any NATO member state. [FN16] One of NATO's first Secretaries-General, Lord Is-may of the United Kingdom, put NATO's purpose more succinctly. He said the alliance served to keep the Americans in, the Russians out and the Germans down. [FN17] By definition, NATO's role changed when the Soviet Empire fell. The reassessment process formally began in 1991 with the Rome Declaration. NATO members launched a comprehensive process to include Central and Eastern European nationsincluding the Baltic states; former members of the Warsaw Pact; and former Soviet republicsinto various relationships with the NATO alliance. This process paved the way for the admission into NATO in 1999 of three members of the former Warsaw Pact: Poland, Hungary, and the Czech Republic. NATO further broadened its mission and scope with the 1994 Partnership for Peace, entering into political and security relationships with twenty-seven nations. Significantly, NATO partners may provide armed forces to the alliance for peacekeeping and other military operations. At the same time, NATO works to train and modernize its partners' armed forces in order to encourage democratic institutions and strengthen political stability in those countries. In 1997, NATO expanded yet again by initiating the Euro-Atlantic Partnership Council. The Council's goal was to extend NATO's military and political relationships to forty-four nations, including the Mediterranean Dialogue Countries (Egypt, Israel, Jordan, Mauritania, Morocco, and Tunisia). Of the nineteen current NATO members, eleven also are members of the EU. On the other hand, Canada, the Czech Republic, Hungary, Iceland, Norway, Poland, Turkey, and the United States belong to NATO but are not members of the EU. The Czech Republic, Poland, and Hungary are current EU enlargement candidates. Norway rejected EU membership in a national referendum in 1994. Iceland, part of Denmark until 1944, has not sought EU membership (Iceland, incidentally, is the only NATO member without armed forces, but does provide limited medical support and personnel.) Finally, Austria, Finland, Ireland, and Sweden belong to the EU but not to NATO, although all four nations are NATO partners. Bosnia NATO's post-Cold War role was initially forged during the Bosnian crisis. The Bosnian commitment unfolded slowly, and not without considerable public debate over the future of NATO, both in Europe and the United States. In 1992, NATO initiated military operations, including peacekeeping roles, in support of United Nations missions in the former Yugoslavia. NATO naval assets enforced the UN-imposed embargo and sanctions in the Adriatic against the Serbs. During these operations, 74,000 ships were challenged; 6,000 ships inspected; 1,400 ships diverted; and six ships attempted unsuccessfully to run the blockade. NATO air forces also enforced a no-fly zone over BosniaHerzegovina, again under conditions laid down by the UN. These pilots and aviators provided close air support to the UN Protection Force (UNPROFOR) on the ground. Then, for the first time in NATO's history, the alliance conducted air strikes to relieve Sarajevo and other threatened areas denominated by the UN as Safe Areas. By December 1995, 200 NATO aircraft flew daily from bases in Italy and aircraft carriers in the Adriatic for a total of 100,000 sorties. The result was a December 1995 cease-fire in Bosnia-Herzegovina that led to the U.S.-brokered Bosnian Peace Agreement, also known as the Dayton Accords. As part of the Dayton Accords, a NATO-led multinational peacekeeping force (IFOR) of about 60,000 troops enforced the Agreement. Following the peaceful conduct of September 1996 elections in Bosnia, NATO created the Bosnian Stabilization Force (SFOR), pursuant to UN Security Council Resolution 1088. SFOR is a 31,000-troop force charged with deterring or preventing a resumption of hostilities or new threats to peace, assisting refugees, local policing, and apprehending and detaining persons indicted for
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war crimes by the UN Criminal Tribunal for the Former Yugoslaviamissions that continue today. Kosovo In 1999, NATO commenced operations in another part of the former Yugoslavia: Kosovo. In contrast to the Bosnian crisis, however, NATO military intervention was almost immediate. NATO air forces bombed Serbia, mostly Belgrade, for seventy-eight days, prompting Serbian President Slobodan Milosevic to abandon atrocities against ethnic Albanians. U.S. pilots flew 80 percent of Kosovo sorties; Europeans made up bulk of ground forces. NATO deployed 60,000 European ground troops (KFOR), which secured the area and helped most refugees return to Kosovo. [FN18] September 11 Attacks Recently, NATO invoked the Article V provisions of the North Atlantic Treaty following the September 11, 2001, terrorist attacks against the United States. Article V provides that an attack on one NATO member will be treated as aggression against the rest. [FN19] Late in 2001, NATO-commanded forces were deployed both to Afghanistan and to support aerial reconnaissance missions over the United States. NATO Expansion Just as EU expansion raises a host of political considerations, so too does NATO expansion. NATO's decision to admit the Czech Republic, Hungary, and Poland to the alliance in 1999 raised sharp objections from Russia. Today, the so-called Vilnius 10 nations, named for a 2000 NATO meeting in Vilnius, Lithuania, are seeking to join NATO. The entry of these countries (Albania, Bulgaria, Croatia, Estonia, Latvia, Lithuania, Macedonia, Romania, Slovakia, and Slovenia) raises a number of thorny questions for the alliance. The proposed entry of one or more of the former Baltic states, Estonia, Latvia, and Lithuania, is just one current case in point. The three nations border on the Russian enclave of Kaliningrad, which prior to World War II was called Knigsberg and belonged to East Prussia. The Soviet Union seized the three Baltic nations as a result of Stalin's secret 1939 pact with Hitler; they were absorbed into the Soviet Empire and remained there until its collapse. At the 1943 Teheran Summit, Stalin told Roosevelt and Churchill that he intended to claim Knigsberg after the war because he needed an ice-free port on the Baltic Sea. The United States and Great Britain acquiesced to Stalin's demand. [FN20] Knigsberg was renamed Kaliningrad and has been part of the Soviet Union, and now Russia, ever since. The addition of the three Baltic nations into NATO would mean that Kaliningrad, a relatively tiny Russian enclave, would be entirely surrounded by NATO territorya situation that Russia has repeatedly said is unacceptable. An overarching challenge to NATO expansion is the lack of sufficient NATO resources. The current NATO Secretary-General, Lord Robertson of the United Kingdom, says the defense budgets of eleven current NATO member countries are currently inadequate to meet their NATO commitments. [FN21] Efforts to increase allies' contributions to NATO by raising their defense budgets have been largely unsuccessful (see Figure 7). The reluctance of NATO members to meet their current alliance contributions raises an especially sensitive question: Will Europe's stand-alone defense activities come at the expense of EU members' NATO contributions? This question can be explored more fully by examining Europeans' current programs and collective aspirations on foreign and military affairs. European Foreign and Security Policy
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From the inception of the EU until the 1992 Maastricht Treaty, the very expression common foreign policy remained taboo. [FN22] The decisions of the U.S.-commanded NATO were largely synonymous with European foreign policy and military doctrine during this period. There were some notable exceptions; for example, the joint British-French intervention in the Egyptian Suez Crisis of 1956 (which the Eisenhower Administration opposed) or France's push under De Gaulle to acquire a self-sufficient nuclear deterrent. Nonetheless, a more comprehensive CFSP, embracing both collective security matters and foreign policy, emerged only after the end of the Cold War and reunification of Germany, and accelerated in the mid-1990s after the Bosnian crisis. The 1997 Amsterdam Treaty outlines the basic processes for developing and implementing the CFSP. Under Article 18 of that treaty, the EU's Council has operational responsibility for the CFSP and may resolve matters by reinforced qualified majority voting, which requires sixty-two votes in favor cast by at least ten member states. However, any member state may appeal a decision reached by a qualified majority to the Council (the national prime ministers), which still requires unanimity. [FN23] CFSP Instruments The Amsterdam Treaty also specifies several common strategies of the CFSP aimed at influencing foreign and security policy, including the following: 1. Foreign Aid: The EU currently provides more than 50 percent of world humanitarian aid and more than 50 percent of international development aid. This includes one-third of world aid to the Middle East and 50 percent for the Palestinian territories; nearly 60 percent of world aid to Russia and former Soviet republics; and 40 percent of reconstruction funds for Bosnia and Herzegovina. 2. Common Foreign Policy Positions: Between 1994 and 1998, the EU's Council adopted sixty-six common positions on matters such as human rights policy. 3. Joint Actions: Between 1994 and 1998, the EU's Council adopted eighty-one joint actions. These ranged from concerns about the former Yugoslavia or Albania to the non-proliferation of various weapons. Figure 7: Defense Expenditures of NATO Members as a Percentage of Gross National Product 1980-1984 Belgium Denmark France Germany Greece Italy Luxembourg 3.3 2.4 4.1 3.4 5.4 2.1 1.1 1997 (est.) 1.6 1.7 3.0 1.6 4.6 1.9 0.8
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Netherlands Norway Portugal Spain Turkey United Kingdom Total NATO/Europe Canada United States Total NATO/North America Total NATO The NATO Handbook (Brussels, Nov. 1999) at 212.
3.1 2.7 3.0 2.4 4.0 5.2 3.6 2.1 5.8 5.4 4.6
1.9 2.2 2.6 1.4 4.3 2.8 2.2 1.3 3.6 3.4 2.8
4. Declarations: These policy statements may stand alone or accompany joint actions or common positions. In 1994, the number of declarations was 110; in 1998, it was 163. 5. Political Dialogue Meetings: The EU's Council may enter into various negotiations and contacts between the EU and third countries. Petersburg Tasks One of the more dynamic and potentially significant instruments of the CFSP concerns the so-called Petersburg declaration tasks. Meeting in 1992 in St. Petersburg, Russia, the then-EU heads of state agreed to a conceptual framework for joint military and paramilitary action among EU members on humanitarian and rescue missions, peacekeeping operations, and combat-force tasks in crisis management. Seven years later, as a result of the Kosovo conflict, the Council declared that to fulfill Petersburg tasks, the European Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises without prejudice to actions by NATO. [FN24] Importantly, the Council also made clear that some Petersburg tasks might be implemented by constabulary or police forces in addition to, or in lieu of, military combat forces. This stemmed from the EU's experience in postcombat stabilization missions in Bosnia and Kosovo where traditional military peacekeeping was arguably neces-
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sary, but not sufficient. Accordingly, the Policy Unit of the General-Secretariat of the EU's Council is currently discussing various police missions short of military action, ranging from military police, to police with military authority, to civil police recruited from EU member countries. The Policy Unit's goal is for the EU to support a 1,000-officer police deployment within thirty days anywhere in Europe, and possibly elsewhere. The staff of the Policy Unit envisions these police as double-hattedthat is, serving in the EU when called upon, and centrally certified by an EU Police Academy, but remaining in their home-country police forces for regular duties. The Policy Unit also is considering assigning judges and magistrates to similar double-hatted missions. [FN25] However, no final decisions have been made. European Defense Force The CFSP continues to advance the concept of a European Defense Force (EDF). The French and British jointly proposed the EDF in 1998 to implement CSFP missions requiring combat forces. The Policy Unit envisions the EDF as a standing military force, separate from the US-commanded NATO, of 60,000 available troops for any mission. To operate indefinitely, on three rotations, experts suggest that at least 180,000 troops would be required. Significantly, the EDF would also have its own airlift capacity separate and apart from NATO, which currently relies almost entirely on the United States for such capabilities. According to the Policy Unit, lift capacity would require an estimated 200 Airbus heavy-lift aircraft. [FN26] There is a question as to how the EDF would interact with NATO. The discussion is still unfolding. One idea, put forward informally last year by the Germans, British, and Dutch, is for NATO to have a sort of right of first refusal for any proposed EDF mission. The U.S. Joint Chiefs of Staff could veto any EDF deployment. If the chiefs concurred, the EDF could then deploy troops outside of the NATO command structure. A different vision, set forth by the French, would enable the EDF to act alone, with or without U.S. approval. [FN27] Discussion over the role of the EDF and its relationship with NATO has triggered intense debate in both Europe and the United States. There is a twinge of irony in the current ambivalence many U.S. political leaders have shown toward the EDF, given how hard the United States pushed the Europeans in 1954 to create their own army, only to be rebuffed by France. [FN28] On the other hand, times have changed, and Europeans have been demonstrably unwilling to increase their national defense budgets to support NATO. Would EU members fund a stand-alone EDF in addition to NATO? Will they push to make EDF forces double-hatted as NATO forces and, if so, could the U.S.-commanded NATO survive under those circumstances? Could the EDF become a way to increase Europeans' defense expenditures, either within or outside NATO? These questions are made more urgent by the reported difficulty of incorporating many European NATO members' relatively less sophisticated technological capabilities into modern combat situations such as Afghanistan and the war against terrorism. They present a continuing challenge. CONCLUSION The growth of the EU presents not only serious challenges for U.S. lawyers and their corporate clients, but also potentially historic business opportunities in both established and emerging markets. The end of the Cold War and reunification of Germany, combined with Europe's assertiveness on regional defense and security matters following the Bosnia crisis, has fueled a rapid movement toward more centralized EU institutions and laws. Where this drive toward deeper European integration will lead even ten years from now is difficult to predict. From the standpoint of U.S. corporations and their investors, Europe's push toward centralized governmental de-
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cision-making and uniform legal and regulatory standards might on balance be positive, especially in the long term. At the most basic level, it is undeniably more convenient for Americans to travel in Europe this year, without having to keep track of fifteen different national currencies, than it was last year. If this simple analogy holds, European integration might lead to greater consistency in the application of commercial law as well, making business transactions more predictable and less costly. Also, these potential benefits might move eastward, into some of the world's most attractive high-growth markets, as the next wave of EU enlargement becomes reality. On the other hand, Americans should be justifiably skeptical of the EU's centralizing tendencies, just as Americans keep a watchful eye on Washington and what it represents. As long as the EU knocks down commercial and investment barriers within Europe and between EU members and the rest of the world, so much the better. However, if the EU somehow degenerates into a Fortress Europe, in which non-European businesses face de facto or de jure obstacles that European corporations do not, the damage to trans-Atlantic relations could be severe. Certainly, the best way to avoid such temptations, however remote their actual likelihood now appears, is to promote more Sunshine review and oversight in European governance. This includes developing a legislative process that provides meaningful citizen and private sector participation that is reasonably open and accessible to Americans and Europeans alike, and which is informed by well-regulated lobbying that creates a level playing field for all. It also means securing the promised benefits of the new Europe further eastward, through the EU and NATO, strengthening democracy, the rule of law, and economic opportunity for tens of millions of men and women, and enriching both Europe and the United States in the process. The challenges that Americans face in dealing with Europe are new, but the basic question that must be answered is not. In 1949, the U.S. State Department directed George F. Kennan, then a highly respected diplomat assigned to the Policy Planning Staff of the State Department, to prepare a White Paper on how U.S. policy should guide the future development of Europe. In his 1968 Pulitzer Prize-winning book, Memoirs, Kennan recalls how he wrestled with this expansive topic. [FN29] He had already worked extensively with top American leaders such as General George C. Marshall, architect of the Marshall Plan. In the early years of the Cold War, Kennan consulted with Americans and Europeans alike to distill the scope of his inquiry to a single sentence: The question before us was, in essence, this: In what geographic area and in what framework of membership did we wish to see the movement toward European unification proceed, over the long term, and how far did we really wish it to go? [FN30] Today, the United States faces new challenges and opportunities in the trans-Atlantic relationship. However, the question Kennan posed remains the same.
[FNa1]. Troy A. Eid is Executive Director, Colorado Department of Personnel and Administration, and Governor Bill Owens' former Chief Legal Counsel(303) 866-6559; troy.eid@state.co.us. Eid was awarded an American Marshall Memorial Fellowship from the German Marshall Fund of the United States (GMF) in 2001 and named to the U.S./Spain Young Leaders Program earlier this year. The author thanks GMF's Craig Kennedy, Ellen Pope, and Julianne Smith for enabling the visits to Washington, D.C. and seven European nations that made this article possible. The author also appreciates the help of Mara Fernandez-Shaw, Fundacin Jos Ortega y Gasset, and Antonio Garrigues Walker, President of the Fundacin and the U.S.-Spain Council. Thanks also to Allison Eid, Heinrich Kreft, and Mara Warren for their assistance in preparing this article. [FN1]. For more on the unlikely forces that drew De Gaulle and Adenauer together, see Smyser, From Yalta to Berlin: The Cold War Struggle Over Germany (New York, NY: St. Martin's Griffin, 1999) at 193-96. [FN2]. By early 1944, the leaders of the Big Three (United States, Great Britain, and Soviet Union) were planning for a post-war Germany, but had radically differing visions. With President Franklin D. Roosevelt's support, U.S.
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Treasury Secretary Henry J. Morgenthau initially proposed turning Germany into an agricultural nation that could never again make war on its neighbors. However, this vision for a neutral and largely defenseless Germany quickly gave way to the realities of the Cold War. Soviet premier Joseph Stalin had no intention of withdrawing his troops from Eastern Europe, including what would become East Germany. Accordingly, the Occupation Powers faced a dilemma: the need to defend West Germany against the Soviet Bloc without resurrecting the German militarism that had sparked three major wars since 1871. The initial solution was to create a European Army, formally known as the European Defense Community (EDC). Adenauer himself strongly backed the proposed EDC. Despite strong U.S. support, the French National Assembly defeated the EDC in 1954. The following year, the U.S.-commanded NATO and its European component, the Western European Union, admitted West Germany as a member, thereby ensuring West Germany's status as a nuclear front-line state as the Cold War unfolded. See Smyser, supra, note 1 at 11, 23, 89-96, and 127-30. [FN3]. Quoted in Jay, ed., The Oxford Dictionary of Political Quotations (Oxford, England: University Press, 1997) at 92, n.11 (speech in Zurich, Switzerland, Sept. 19, 1946). [FN4]. EU architects have often cited the death toll from World War II to make the case for a new European order based on political and economic interdependence. Under Adolf Hitler's bloody reign, Germany lost 3.3 million military and 3.8 million civilians. In Great Britain, 326,000 military and 62,000 civilians perished. The French lost 340,000 military and at least 470,000 civilians. Approximately 236,000 civilians died in the Netherlands, and in Poland, where the war began, 850,000 military and 6 million civilians were killed. The list goes on. These numbers only partially reflect the 6 million Jews and others from throughout Nazi-occupied Europe who were exterminated during the Holocaust. [FN5]. The Common Agricultural Policy was designed to stimulate agricultural production and subsidize farm income through harmonized price and other farm-support programs. The EU is currently the world's largest importer and second-largest exporter of agricultural products. Agricultural sector spending, largely on price supports and subsidies, still accounts for nearly one-half of the EU's more than $100 billion annual budget. Under pressure from the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO), the EU has begun reducing agricultural subsidies from 60 percent of the EU budget in 1980s. Trade disputes between Europe and other nations over agricultural-related issues, such as current EU restrictions on the import of genetically modified corn, continue to play a major role in WTO negotiations. [FN6]. The seven Euro-denominated notes and eight Euro-denominated coins have a common EU design on one side, and a national design on the other. [FN7]. A subsequent agreement, the Amsterdam Treaty (1997), moved some of these tasks into Pillar One. [FN8]. Madison, The Federalist No. 10, in Cooke, ed., The Federalist (Wesleyan University, 1960) at 62. For a general discussion of the Framers' concerns with limiting the power of political factions, see Eid and Kolbe, The New Anti-Federalism: The Constitutionality of State-Imposed Limits on Congressional Terms of Office, 69 University of Denver L.Rev. 1, 12 (1992). [FN9]. See, e.g., Madison, The Federalist No. 48, supra, note 8 at 332-38 (separation of powers among the three branches of the federal government is an essential protection against the tyrannical concentration of all the powers of government in the same hands); and Madison, The Federalist No. 39, id. at 252-57 (distinction between a federal government with power balanced between federal and state authority, as opposed to a national government where citizens are directly subject to federal power). [FN10]. See generally Manchester, The Arms of Krupp: 1587-1968 (New York, NY: Little, Brown & Co., 1968) at 148-56 (discussing the rise of socialism in late 19th-century Europe).
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[FN11]. General information on the key European institutions for this section of the article is excerpted from Serving the European Union: A Citizens' Handbook, published by the European Union (Brussels, 1999), as well as from two meetings with attorneys from the Brussels office of the international law firm of White & Case. These meetings were held in Brussels on March 18, 2001, and San Francisco, CA, at a seminar of the German Marshall Fund of the United States on February 8, 2002. [FN12]. The relative weight of each vote per individual country is entirely unscientific, but political, reflecting various treaty-based compromises. For instance, the votes for Germany and the United Kingdom are weighted exactly the same, despite their differences in population. In general, the smallest countries, such as Luxembourg, receive more heavily weighted votes than do the larger countries. Vote weighting is a topic of enduring controversy at the Council level and in most EU institutions, and is likely to become even more contentious as additional nations join the Union in the future. [FN13]. Nevertheless, unlike the U.S. Constitution, the weighted voting in the European Parliament has evolved over time through various treaties and is determined according to various political considerations, as opposed to a consistent formula. [FN14]. The Economist (Oct. 21, 1999) at 19. [FN15]. Kennan, Memoirs: 1925-50 (New York: NY: Pantheon Books, 1967) at 455. [FN16]. See North Atlantic Treaty, Articles 4, 51 in The NATO Handbook, App. A (Brussels, Nov. 1999). The following section cites force statistics on Bosnia and Kosovo from the Handbook. [FN17]. Smyser supra, note 1 at 135. [FN18]. More recently, in March 2001, NATO authorized limited military support for the border defense of Macedonia. [FN19]. The NATO Handbook, supra, note 16. [FN20]. Smyser supra, note 1 at 8. [FN21]. Meeting with Lord Robertson at NATO headquarters, Brussels, March 17, 2001. [FN22]. The Common Foreign and Security Policy (CFSP), General-Secretariat of the European Council (Luxembourg, 2001) at 3. [FN23]. Id. The CFSP assumed a heightened profile in 1999 when the heads of state named Javier Solana Madariaga, a former Secretary-General of NATO, as Secretary-General of the EU. In this capacity, Solana also serves as the High Representative of the CFSP, as provided in Article 26 of the Amsterdam Treaty. [FN24]. CFSP, supra, note 22 at 19. [FN25]. Staff briefing by the Crisis Planning Cell of the Policy Unit Staff, EU General-Secretariat, Brussels, March 17, 2001. [FN26]. Id. [FN27]. Id. [FN28]. See note 2, supra.
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[FN29]. Kennan, supra, note 15 at 451. [FN30]. Id. at 452. 31-MAY Colo. Law. 9 END OF DOCUMENT
6 UMIAYBIL 1 6 U. Miami Y.B. Int'l L. 1
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University of Miami Yearbook of International Law 1997-1998 BUILDING A BRIDGE FOR DEFENSE: THE EUROPEAN UNION'S COMMON FOREIGN AND SECURITY POLICY Cheryl Swack Copyright (c) 1997-1998 University of Miami Yearbook of International Law; Cheryl Swack I. INTRODUCTION II. THE CREATION OF THE NATO ALLIANCE III. THE NATO TREATY IV. THE BEGINNINGS OF THE WEU AS THE DEFENSIVE COMPONENT OF THE EU V. THE WEU TREATY VI. REACTIVATING THE WEU UNDER THE MAASTRICHT TREATY VII. THE DUAL ROLES OF THE WEU AND NATO IN EUROPEAN DEFENSE VIII. FURTHER DECLARATIONS DEFINING THE ROLE OF THE WEU IX. THE WEU'S INVOLVEMENT IN PEACEKEEPING OPERATIONS IN EUROPE X. CONCLUSION The objective vis--vis Political Union should be to demonstrate more visibly that WEU is an integral part of the European integration process. The objective vis--vis the [NATO] Alliance should be to achieve a strong, new transatlantic partnership by strengthening the European component, contributing to the [NATO] Alliance's evolution . . . [FN1] I. INTRODUCTION The act of defending one's state or region is generally seen as an inherent and autonomous right legitimated in international law under Article 51 of the United Nations Charter. [FN2] The concept of international self-defense, as a right to protect one's territory against an armed attack attempted by another state, initially developed from two independent sources: first, Hugo Grotius' natural law doctrine of self-defense, states that preservation of the self [is to be] regarded as a natural right of the state . . . that could not be ab-
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rogated or limited by positive law; [FN3] and second, positive law is of minor importance to power, which means that: self-defense could not be governed by law when a grave threat to the power of a state [or region] or to its way of life was perceived by that state [or region]. [FN4] Even though self-defense is now governed by Article 51 of the United Nations Charter, international lawyers and legal scholars still subscribe to the concept of self-defense as an autonomous, nonderogable right that 'exists' independently of legal rules. [FN5] Thus, under international law, states and regions consider self-defense to be the only ground for the unilateral use of force. [FN6] Then, once a state or region makes a decision to defend itself, this decision exerts great leverage over that particular state or region's law-shaping procedures, influencing expectations as to the acceptability of future actions [advocating] use of force. [FN7] Common defense plans had been discussed since the inception of the idea to unite Western Europe. Nonetheless, Western Europe's quest to find a legal framework for managing its security issues has been difficult and drawn-out. The European Economic Community (EEC), established by the TREATY OF ROME on March 25, 1957, [FN8] had been intentionally created and strictly maintained as an economic association among member nations. However, the TREATY OF ROME does permit an individual member state to take necessary measures to protect its security interests, [FN9] to adopt necessary measures in the event of substantial internal disturbances, of serious international tension or in the event of war, [FN10] and to have access to the European Court of Justice. [FN11] All these provisions permit members to remain as sovereign nations. By the beginning of the 1980's, the EEC began to discuss the advantages of community-wide political cooperation. These discussions resulted in the signing of the Single European Act, [FN12] giving the EEC a legal basis for political cooperation. European Political Cooperation, codified in Article 30 of SEA, permits member states to jointly formulate and implement a European foreign policy, [FN13] by consult[ing] each other, develop [ing] common objectives, determin[ing] common positions, refrain[ing] from impeding the formation of a consensus and refrain[ing] from impeding the joint action this could produce. [FN14] Furthermore, the SEA foresaw cooperation on security matters by providing, in Article 30(6)(a), that the EEC's member states are ready to coordinate their positions more closely on the political and economic aspects of security. [FN15] According to Article 30, achieving closer cooperation in the field of security . . . [would mean working] within the framework of [either] the WEU or the [NATO] Alliance [as hereinafter defined]. [FN16] This article will discuss the creation of the North Atlantic Treaty Organization (NATO) and its role in the defense of the North Atlantic region, especially that of its member states in western, and now central, Europe. [FN17] Next, the article discusses the formation of the Western European Union (WEU) as the European Union's (EU) common foreign and security pillar. Finally, the article compares and contrasts the similarities and differences between NATO and the WEU, discussing each organization's function in protecting Europe's borders from outside invasion. II. THE CREATION OF THE NATO ALLIANCE The idea of creating a military alliance to defend Western Europe against the impending threat of an invasion by the Soviet Union grew out of the wreckage of World War II, after the Soviets began to annex Eastern and parts of Central Europe into its sphere of power by use of force. Besides fearing a communist invasion, Western Europe still felt threatened by the memory of a rearmed Germany. [FN18] Against this setting of increasing insecurity, the United Kingdom and France signed the Treaty of Alliance and Mutual Assistance on March 4, 1947 [FN19] in Dunkirk, France, in which the parties assented to cooperate militarily with each other in the event Germany disregard[ed] the restrictions placed upon it after [World War II], [FN20] and attacked either party. By the late 1940's, the United States began urging Western Europe to unite and thereby remedy its postwar economic and military weaknesses. After signing the Treaty of Dunkirk, British Foreign Secretary Ernest Bevin initiated the enlargement of the scope of European military cooperation by signing the Treaty of
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Brussels. [FN21] The United Kingdom, France, and the Benelux countries [FN22] first negotiated the Brussels Pact, [FN23] the precursor to both NATO and WEU, to defend themselves against an armed attack in Europe. [FN24] However, the Brussels Pact, unlike the Treaty of Dunkirk, aimed to defend against the Soviet Union, as well as Germany. [FN25] The Brussels Pact, compatible with Article 51 of the U.N. Charter, [FN26] had been primarily conceived as a military alliance, although its complete title also included the words Collaboration in Economic, Social and Cultural Matters. [FN27] The purpose of the Brussels Pact, as written in Article 1, had been to uphold the principles of democracy, personal freedom and political liberty, the constitutional traditions and the rule of law within its member states. [FN28] Under Article 5, the Brussels Pact authorized automatic military and other assistance against an armed attack by any source whatsoever. [FN29] Additionally, the Brussels Pact provided its members with a forum to discuss far-reaching defense issues constituting a threat to peace, in whatever area this threat should arise. [FN30] On September 28, 1948, the ministers of defense and the chiefs of staff of the five BRUSSELS PACT nations formed a joint military organization for common defense called Uniforce, under the control of Britain's Field Marshall Montgomery, with headquarters in Fontainbleau, France. Then, on April 8, 1949, these defense ministers and chiefs of staff, under full authority from their respective governments, agreed upon a plan to deflect Soviet military aggression. [FN31] Both the United States and Canada were in attendance of the consummation of this plan, but only as observers. However, Uniforce only existed on paper since postwar Europe had little manpower or armaments. After evaluating their available resources, the BRUSSELS PACT nations, plus Denmark, Norway and Italy, found it necessary to turn to the United States for assistance [FN32] due to the fact that Uniforce had huge gaps in both manpower and matriel which only a military alliance with the United States could fill. In addition, Western Europe needed manpower to create a defensive military machine capable of stopping a Soviet invasion while providing psychological security. In essence, Western Europe saw the placement of American nuclear and conventional forces in its territory as vital to its security. Meanwhile, the United States Senate was keenly interested in the BRUSSELS PACT and passed the VANDENBERG RESOLUTION on June 11, 1948. [FN33] The Resolution contained a three-part plan designed to both advise President Harry S. Truman and facilitate his participation in working toward international peace under the auspices of the United Nations. The plan provided first, for the progressive development of regional and other collective arrangements for individual and collective self-defense in accordance with . . . the [U.N.] Charter; [FN34] second, that the United States should, by constitutional processes, associate with other regional alliances based on continuous and effective self-help and mutual aid, [which could] affect its national security; [FN35] and third, that the United States should try to maintain the peace by making clear its determination to exercise the right of individual or collective self-defense under Article 51 [of the U.N. Charter] should any armed attack occur affecting its national security. [FN36] By passing the Resolution, the United States determined that an integrated defense alliance protecting the North American region had become desirable and necessary. [FN37] By December, 1948, the United States, Canada, and the BRUSSELS PACT nations began negotiating an integrated regional defense alliance which would subsequently become NATO. As a result of the negotiations, the foreign ministers of twelve nations signed the North Atlantic Treaty on April 4, 1949 in Washington, D.C. [FN38] Then in 1951, all military responsibilities exercised by the BRUSSELS PACT transferred over to the NATO alliance. [FN39] The NATO Treaty, establishing NATO as a military alliance for collective defense, is legally anchored in Art. 51 of the U.N. Charter. [FN40] As set out in the Treaty, NATO's role is to maintain security, peace and freedom by creating a peacetime alliance for mutual self-defense against armed attacks in either Western Europe or North America. NATO, according to the NATO Treaty's preamble, had been specifically designed to deter aggression by first, safeguard[ing]
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the freedom, common heritage and civilization [FN41] of the populace; and second, unit[ing] [the parties'] efforts for collective defense and for the preservation of peace and security. [FN42] Therefore, in order for NATO to effectively provide collective defense for its signatories, all member states must agree that an armed attack against one or more parties is an attack against them all. [FN43] The NATO alliance is not a supranational organization; [FN44] rather, it is based on voluntary military cooperation among independent sovereign nations. NATO has no independent policy-making capacity and can only act by the unanimous consent of all its member states, even though each member state's delegates only represent their own state's particular point of view. Conversely, this allows each member state to know the positions of its allies. If common ground cannot be reached on a decision facing the member states, those members who cannot agree are free to pursue individual courses of action. In such cases, NATO's solidarity is not necessarily threatened because members are encouraged to consult with one another to guarantee both permanent dialogue and mutual understanding of their respective national policies. Thus, major policy differences between member states can be settled to protect NATO's common security interests and [to] preserve [its] political solidarity. [FN45] III. THE NATO TREATY The NATO Treaty contains fourteen provisions, designed to promote stability and well-being in the North Atlantic area. [FN46] Article 1 of the NATO Treaty declares NATO's fidelity to the U.N. Charter by settling any international disturbances according to its dictates, and refrain[ing] in [its] international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations. [FN47] Next, Article 2 recognizes that parties must actively pursue peace, even when there is no war, by strengthening their free institutions, by bringing about a better understanding [FN48] and by encourag[ing] economic collaboration [FN49] between member and nonmember states. The core of the Treaty, Articles 3, 4, and 5, addresses mutual aid among member states. [FN50] Article 3, which applies during peacetime to alert NATO's defense forces to the possibility of an armed attack, provides that parties, separately and jointly, by means of . . . self-help and mutual aid, will maintain and develop their individual and collective capacity to resist armed attack. [FN51] If an aggressor, whether or not a member state, threatens a member state but stops short of an armed attack, Article 4 provides for consultation among the aggressor and member states when the territorial integrity, political independence or security of any of the Parties is threatened. [FN52] Article 5 comes into play if an armed attack occurs, even though it does not guarantee armed protection in the event that a member state is attacked. Each member state individually decides how to assist the attacked party by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including use of armed force. [FN53] NATO also responds, under Article 6, to armed attacks, [as defined in Article 5] on the territory of any of the Parties in Europe or North America . . . or on the vessels or aircraft in this area of any of the parties. [FN54] Sovereign equality and individual decision [FN55] are also at the center of NATO's representation and membership provisions. Article 9, which establish [es] a council, on which each of [the members] shall be represented to consider matters concerning the implementation of this Treaty, [FN56] structures NATO as an integrated military command organization and a mechanism for collective decision-making. [FN57] Also, under Article 10, [t]he parties may, by unanimous agreement, invite any other European state in a position to [both] further the principles of this Treaty and to contribute to the security of the North Atlantic area to accede to this Treaty. [FN58] The Treaty then protects member states from any unwanted additions by requiring that each new member be unanimously voted into NATO. In sum, NATO is designed to maintain the peace and security of the North Atlantic region, and Europe
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in particular, by protecting it from armed attacks and revolutions. Therefore, by the terms of its provisions, the NATO Treaty represents an advance intent [by member states] to resist military attack. [FN59] To be able to deter aggression, member states, who had demobilized their armies and reduced operations of other military-related organizations after World War II, needed to be rearmed. [FN60] Therefore, in order to preserve peace and stability in the North Atlantic area, NATO, and the United States in particular, rearmed and reindustrialized member states whose territories and economies had been extensively damaged by the Germans in World War II. In this way, NATO, the key element of European defense since its formation, has grown into a powerful and technologically advanced defensive military alliance. [FN61] IV. THE BEGINNINGS OF THE WEU AS THE DEFENSIVE COMPONENT OF THE EU During this time, in May, 1948, Western Europe began economically integrating itself into the EEC at the Congress of Europe held in The Hague, Netherlands. [FN62] In the area of security, Western European nations thought that despite NATO's benefits, it did not contribute to the nascent idea of European solidarity. So, in 1952, France initiated an integrated Western European defense alliance with the member states of the European Coal and Steel Community and the United Kingdom called the European Defence Community (EDC). By May 1953, the EDC Treaty had been signed in Paris, even though it had been universally reproached for lack[ing] democratic safeguards. [FN63] In late 1952, a second treaty, the European Political Community Treaty (EPC) had been created by the ministers of ECSC nations. The merger of the parties' armed forces never took place due to the United Kingdom's lack of commitment and France's unwillingness to give up command over its military. [FN64] The EDC and EPC's failure to produce an integrated security alliance among its members led to the formation of an alternative alliance. [FN65] In response to the failure of both the EDC and the EPC, British Foreign Secretary Sir Anthony Eden assembled a conference in London from September 28 to October 30, 1954 among Belgium, Canada, the Federal Republic of Germany (FRD), France, Italy, Luxembourg, the Netherlands, the United Kingdom and the United States; this conference resulted in large scale revisions to the Brussels Pact. [FN66] The conference produced the Paris Agreements, [FN67] signed on October 23, 1954, which modified the Brussels Pact by establishing the WEU, with Italy and, most notably, the FRD joining as members. V. THE WEU TREATY Besides creating a defensive military alliance comprised only of European nations, the WEU Treaty initially provided for close economic, social and cultural cooperation among its members. [FN68] According to Article 1, the parties will so organise and co-ordinate their economic activities as to produce the best possible results, [FN69] while providing that this cooperation shall not involve any duplication of, or prejudice to, the work of other economic organisations in which the [parties] are or may be represented. [FN70] However, because of Western Europe's growing participation in the EEC and its wider, more extensive scope of economic activities, the WEU, in 1970, had to abandon its role in the economic, social and cultural integration of Europe to concentrate solely on European defense. [FN71] The WEU protects its members against attacks from nations outside the alliance, as well as securing internal stability through its parties' commitment to form a cohesive Western European defensive organization. Regardless of the source of attack, Article V of the WEU Treaty, provides: If any of the ... Parties should be the object of an armed attack in Europe, the other ... Parties will, in accordance with the provisions of Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power. [FN72] In comparison with NATO, which is authorized to take whatever action it deems necessary in the event of an armed attack, the WEU commitment to assist the party that is the object of an armed attack is [both]
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automatic and obligatory. [FN73] Additionally, under Article VII of the WEU Treaty, parties are forbidden to take part in any defensive military alliance directed against any other member of the WEU. [FN74] Article VIII provides parties with a forum for consultation by requesting that the Council ... be immediately convened in order to permit them to consult with regard to any situation which may arise. [FN75] This means that the mere presence of a situation possibly causing a threat to the peace may result in consultations, if any party so requests. Also, Article VIII protects beyond the boundaries of its member states since consultations could take place on actions out of [the WEU's geographical] area. [FN76] Next, Article VIII provides that [t]he Council shall decide by unanimous vote questions for which no other voting procedure has been or may be agreed. [FN77] Article X stresses the importance of peacefully settling disputes with nations inside and outside the alliance, [FN78] and discusses the International Court of Justice's role in resolving disputes. [FN79] In Article XII, members may cease being a party to the WEU only after fifty years of membership, whereas the NATO alliance may last indefinitely. [FN80] Lastly, the WEU Treaty is then completed by four implementing protocols and their respective annexes. [FN81] VI. REACTIVATING THE WEU UNDER THE MAASTRICHT TREATY For the next thirty years the WEU did not have the opportunity to fully develop into a defensive organization due to NATO's superior ability in managing Western Europe's security issues. Nevertheless, the WEU did play two minor roles; it helped solve a French/German territory dispute over the Saar region by giving it back to the FRD, and when French president Charles DeGaulle opposed the United Kingdom's attempt to join the EEC because of its close alliance with the United States, the WEU served as the sole consultative forum, serving the EEC and the United Kingdom. However, from 1973 until its rehabilitation in the 1980's, the WEU entered its somnolent years [FN82] and ceased functioning. Then in February, 1984, French foreign minister Claude Cheysson, at French President Franois Mitterand's suggestion, distributed a memorandum recommending that the WEU be reactivated. In response, two meetings took place with the hope of reviving the WEU as a strong European arm of NATO. [FN83] The first meeting of the WEU Ministerial Council in eleven years convened, in Paris, France on June 12, 1984, and subsequently voted to reanimate the WEU. [FN84] Then, at the second meeting in Rome, Italy from October 26 to 27, 1984, the Council formally reactivated the WEU in the Rome Declaration seeking to make better use of the WEU framework in order to increase cooperation between Member States in the field of security policy to encourage consensus. [FN85] Under Article 8 of the Rome Declaration, members are encouraged to coordinate their views on the specific conditions of security in Europe, particularly on matters of defence, arms control and disarmament. [FN86] Article 8 also allows members to also consider the implications for Europe of crises in other regions of the world. [FN87] The first meeting of the reactivated WEU took place in Bonn, FRD on April 22 to 23, 1985, where members in the Bonn Communiqu reaffirmed their commitment to the proposals set out in the Rome Declaration. [FN88] Then in 1986, the EEC signed the SEA, affirming a legal basis for integrated political cooperation. Thereafter, on October 26 to 27, 1987, defense ministers from the WEU member states convened in The Hague, Netherlands, to adopt the Platform on European Security Interests, [FN89] declaring the WEU as the provider of a strong European defense identity. [FN90] The SEA had envisioned future security cooperation within the EEC, [invoking] the cooperation of each Member State in handling security issues required a legal foundation. [FN91] After months of apprehension, the EEC signed the Treaty on European Union in Maastricht on February 7, 1992, thereby establishing the European Union (EU). [FN92] The EU is not a new legal entity; rather, [it] is founded on
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three existing communities which remain legal entities in their own right and continue to fulfill their different responsibilities. [FN93] The Maastricht Treaty is composed of three separate, but linked communities or pillars: the first pillar providing for an economic and monetary union, the second pillar outlining a common foreign and security policy, and the third pillar detailing cooperation in the areas of justice and home affairs. Title V of the Maastricht Treaty regulates and gives legal effect to the second pillar by providing that a common foreign and security policy is hereby established. [FN94] In creating the second pillar, the EU's primary purpose had been to assert its identity on the international scene, in particular through the implementation of a common foreign and defence policy, which might in time lead to a common defence. [FN95] Under the wording of this provision, it is understood that the EU's common foreign and security policy does not yet incorporate defense issues. Procedurally, the common foreign and security policy is to be debated in the Council, [FN96] the Commission is to perform any associated work, [FN97] while the European Parliament may question, consult and make suggestions to the Council. [FN98] Under Article C, both the Commission and the Council are also jointly responsible for ensuring the consistency of all foreign policy measures taken by the [EU] in the context of its . . . security . . . policy. [FN99] However, the European Court of Justice has not been given jurisdiction over the EU's second pillar. [FN100] Article J.1, under Title V, sets out the objectives of the common foreign and security policy: (1) to safeguard the common values, fundamental interests and independence of the Union; (2) to strengthen the security of the Union and its Member States in all ways; (3) to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter; (4) to promote international cooperation; and (5) to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms. [FN101] Article J.1(4) also declares that Member States shall support the Union's external and security policy actively and unreservedly in a spirit of . . . solidarity, [FN102] and shall refrain from any action contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations. [FN103] Members are thus required to actively and unreservedly [FN104] maintain the EU's security and defense policies, while avoiding participation in any activity contrary to its interests. Article J.2(1) creates a consultative forum for matters concerning the common foreign and security policy to ensure that [members']combined influence is exerted as effectively as possible by means of concerted and convergent action. [FN105] Next, Article J.2 grants the Council the power to define a common position, [FN106] after which Member States shall ensure that their national policies conform to the common positions. [FN107] Lastly, Article J.2 requires members to coordinate [FN108] and uphold [the EU's] common positions [in] international organizations and at international conferences, [FN109] regardless of whether or not they are participants. [FN110] In accordance with Article J.2's provisions, Article J.3(4) then provides that [j]oint actions shall commit the Member States in the positions they adopt and in the conduct of their activity. [FN111] Therefore, if the Council votes unanimously on the necessity of a joint military action, the decision is binding on member states. [FN112] Despite the provisions set out in Title V, an effective security policy could not be created without any means for implementation. [FN113] According to Article 30 of the SEA, if the EEC could achieve closer cooperation in the field of security, [FN114] either NATO or the WEU would be chosen to carry out the EU's common foreign and security policy. Which defensive alliance did the EU select to implement its second pillar? The EU, in Article J.4(2), chose the WEU to elaborate and implement decisions and actions of the Union which have defence implications. [FN115] However, Article J.4, which considers the WEU to
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be an integral part of the Union, [FN116] does not suggest it is a member of the EU; unless circumstances change, the WEU will continue to be a legally independent international organization. [FN117] The Maastricht Treaty also avoids including language naming the WEU as a common military force; instead, the WEU's role is simply to formulate policy, which must then be submitted for approval to the Council. [FN118] VII. THE DUAL ROLES OF THE WEU AND NATO IN EUROPEAN DEFENSE The decision to select the WEU over NATO involved a careful compromise between those favoring the established military strength of the Atlantic alliance and those emphasizing the necessity of a Europe-only defense organization. Ultimately, the EU selected the WEU because NATO, whose membership includes both the United States and Canada, doesn't . . . allow Europe exclusively to make its own decisions. [FN119] In spite of this selection, careful consideration is granted to NATO in Article J.4(4), which provides: the policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework. (emphasis added). [FN120] Article J.4(4) assumes agreement between policy and implementation decisions made by NATO and the WEU. This means that the obligations of Member States under [NATO] will not conflict with their obligations under the [EU's] common foreign and security policy. [FN121] In addition to Title V, the common foreign and security policy consists of two declarations, concurrently signed with and annexed to the Maastricht Treaty, which further the WEU's responsibilities. First, in Article 2 of the Declaration of the role of WEU and its relations with the European Union and with the Atlantic Alliance, [FN122] the Council approved a two-part vision of the WEU's role within the EU: the WEU will become the defense unit of the EU; and, as such, the WEU will be the European pillar [FN123] of NATO. In other words, the WEU will now be the defense bridge [FN124] between the EU and NATO. To carry out this policy, the WEU will formulate [a] common European defence policy and carry forward its concrete implementation through the further development of its own operational role. [FN125] Furthermore, the WEU will be pursuing both its and NATO's common interests by introducing joint positions . . . into the process of consultation in [NATO] which will remain the essential forum for consultation among its members. [FN126] Lastly, the Declaration of the role gives the WEU authority to formulate common European defence policy and carry forward its concrete implementation through further development of its own operational role. [FN127] Because the Declaration of the role's goal is to develop the WEU as the defence component of the [EU], [FN128] its goal is to be ready, at the Council's request, to elaborate and implement decisions and actions of the Union which have defence implications. [FN129] Second, the WEU adopted the Declaration on relations between WEU and the other European States. [FN130] This Declaration on relations invites non-member European States to join the WEU, either as a full member or an observer. NATO members who had not joined the WEU could also be admitted as associate members. [FN131] VIII. FURTHER DECLARATIONS DEFINING THE ROLE OF THE WEU Since the Maastricht Treaty and Declarations established the common foreign and security policy, the EU has adopted, among many, two declarations which specifically enlarge the scope of the WEU's activities. First, the EU adopted the Petersberg Declaration on June 19, 1992 during a meeting of the WEU Council of
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Ministers of Foreign Affairs and Defence in Bonn, Germany. [FN132] The Petersberg Declaration, in part one, points out that as the WEU develops its Maastricht Treaty, it will be able to assist the U.N. and the OSCE in implementing conflict-prevention and crisis-management measures, including peacekeeping activities. [FN133] This would require the WEU to have a stronger operational role. Part two, in Article 4, then sanctions the use of WEU military units for humanitarian and rescue tasks [and] peace-keeping tasks. [FN134] The military units will be taken from the forces of WEU member states, including forces with NATO missions, while the planning and execution of these tasks will . . . ensure the collective defence of the Allies. [FN135] In other words, armed forces from WEU member states will be acting under the authority of the WEU when performing these tasks. However, participation in specific operations will remain a sovereign decision of member States in accordance with national constitutions. [FN136] Lastly, the third part of the Petersberg Declaration presents two new forms of WEU membership: associate membership and observership. The rights and duties [FN137] of both new forms of membership are enumerated in the Petersberg Declaration. Second, the Kirchberg Declaration, [FN138] adopted on May 9, 1994, grew out of the WEU's ministerial meeting on June 19, 1992 in Bonn, Germany, which included representatives from Bulgaria, Czechoslovakia, Estonia, Hungary, Latvia, Lithuania, Poland and Romania. The WEU defense ministers and the Eastern European countries in attendance agreed on certain measures designed to benefit both sides. The meeting established two levels of consultation, both called the WEU Forum on Consultation: an annual meeting between the foreign and defense ministers and a bi-annual meeting between the WEU Permanent Council and the ambassadors of the states represented at the meeting. Also, a Counsellors' Group had been created, convening three to four times yearly to plan for Forum on Consultation meetings and to hold detailed exchanges of views. [FN139] By establishing both Forums on Consultation, the WEU has obtained closer ties with the former communist countries without necessarily providing them with full membership opportunities. [FN140] The Kirchberg Declaration, named after the Kirchberg Building in Luxembourg, introduced associate partnerships, a new form of membership specifically created for the former communist countries. Associate partners do not have the rights and duties based on Article V of the Brussels [Pact] and cannot veto any Council decision, but some influence on the decision-making process is to be expected. [FN141] However, associate partners may affiliate themselves with decisions made by member states concerning missions such as humanitarian and rescue tasks, peacekeeping tasks, tasks of combat forces in crisis management including peacekeeping. [FN142] When the WEU decides that an associate partner [joins] such WEU operation by committing forces, [it] will have the same obligations as other participants, as well as the right of involvement in the command structures and in the Council's subsequent decision-making process. [FN143] Nevertheless, associate partners are required to attend and participate in bi-weekly meetings of the Council, but they are proscribed from block[ing] a decision that is the subject of consensus among the member states. [FN144] In response to the WEU's invitation, Bulgaria, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia, and the Czech Republic have become associate partners. [FN145] IX. THE WEU'S INVOLVEMENT IN PEACEKEEPING OPERATIONS IN EUROPE After taking charge of the EU's common foreign and security policy, the WEU began its new role by declaring its willingness to help ensure effective implementation of [U.N.] Security Council resolutions relating to the conflict in the former Yugoslavia. [FN146] On July 10, 1992, in cooperation with and under the supervision of NATO, the WEU began sending naval forces to the Adriatic Sea to monitor an embargo against Montenegro and Serbia. By June 8, 1993, NATO and the WEU established a joint naval operation in the Adriatic Sea called Operation Sharp Guard, to enforce compliance with U.N. Security Council sanctions raised against Montenegro and Serbia. [FN147] The WEU is involved in two other operations in the former
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Yugoslavia, which also help enforce U.N. Security Council sanctions. First, in Operation Danube, under the auspices of the OSCE, the WEU provides logistical support by enforcing an embargo against the former Yugoslavia. [FN148] For this operation, the WEU has been able to maintain close cooperation with the riparian states of Bulgaria, Romania and Hungary, who are its associate partners, through the organization of a police and customs operation. [FN149] Second, the WEU has been helping the EU administer the town of Mostar by creating a Unified Police Force, manned jointly by Croats and Muslims of Bosnia-Herzegovian and police officers sent out by WEU countries. [FN150] X. CONCLUSION What is the EU's future agenda for the WEU? According to a 1996 European Parliament resolution discussing relations between the EU, WEU and NATO, the next step is to pave the way for full integration of the WEU into the EU after the expiry of the WEU Treaty. [FN151] Merging the WEU into the EU implies the end of an independent WEU, with the EU taking over control of all collective defense matters and tasks. Nonetheless, numerous obstacles will need to be eliminated before integration will be feasible. Integration problems will probably arise from those EU members, such as Ireland and Denmark, who, as WEU observers, may need to become full members. Integration problems may also surface from the fact that states now acceding to the EU must accept the Maastricht Treaty's common foreign and security policy provisions. In other words, the concept of acquis communautaire, [FN152] which means that states acceding to the EU accede to the entire Union, including all laws and provisions of the Union, and are not free to pick and choose which aspects they wish to adhere to and which they wish to ignore, [FN153] now extends to all three pillars of the Maastricht Treaty. Most importantly, the WEU will need to become a fully operational military alliance as quickly as possible to attain its goal of providing a common foreign and security policy for the EU. [FN154] Since the tearing down of the Berlin Wall and the subsequent collapse of communism in both the Soviet Union and its Eastern European allies, the threat of a communist invasion, NATO's raison d'tre, no longer exists. Is NATO still a viable alliance now that Europe is no longer threatened by its principal adversary, the Soviet Union? Despite the fact that the Cold War has ended, it is reasonable to keep in place a strong multinational security alliance which is equipped to respond to future security challenges. NATO's consultative machinery, provided for in Article 5 of the Treaty, fosters cooperation among member states, creating a necessary forum for solving international security issues as they arise. [FN155] In fact, the United States has been the most adamant voice among member states for not only keeping NATO alive, but also for expanding its membership to include the former Soviet Union's Eastern European allies. The United States' interest in retaining the NATO alliance is to keep its European allies and preserve its power and influence over Europe, whereas the Eastern Europeans view NATO membership as beneficial in two ways: first, they fear that Russia may attempt to regain its lost territory and status, and desire the military security NATO could provide; and second, NATO membership is a probable 'in' to later inclusion in the West European economic system. [FN156] The language of Article 10 of the Treaty, which refers to any European state, does not by its terms limit membership only to Western Europe. Therefore, according to Article 10, if an Eastern European state wishes to join NATO, it must simply be able to further the Treaty's principles, and contribute to the security of the North Atlantic region. [FN157] [FN1]. EXTRAORDINARY MEETING OF THE COUNCIL OF MINISTERS: PARIS, 22 FEBRUARY 1991, reprinted in THE CHANGING FUNCTIONS OF THE WESTERN EUROPEAN UNION (WEU): INTRODUCTION AND BASIC DOCUMENTS, at 106 (Arie Bloed & Ramses A. Wessel eds., 1994) [hereinafter CHANGING FUNCTIONS].
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[FN2]. Oscar Schachter, Self-Defense and the Rule of Law, 83 AM. J. INT'L L. 259, 259 (1989); United Nations Charter art. 51 [hereinafter U.N. CHARTER] (Nothing in the present Charter shall impair the inherent right of individual . . . self-defense if an armed attack occurs against a Member of the United Nations . . .). [FN3]. Schachter, supra note 2, at 259. (Article 51 of the U.N. Charter reflects Grotius' natural law doctrine by characterizing self-defense as an inherent right); see HUGO GROTIUS, DE JURE BELLI AC PACIS, bk. II, ch. I, pt. III, at 172 (Carnegie Endowment trans. 1925) (1646) (the right of self-defense . . . has its origin directly, and chiefly, in the fact that nature commits to each his own protection.). [FN4]. Shachter, supra note 2, at 260; see Dean Acheson, Remarks, 57 ASIL PROC. 13, 14 (1963) (Law simply does not deal with such questions of ultimate power . . . The survival of states is not a matter of law.); cf. HERSCH LAUTERPACHT, THE FUNCTION OF THE LAW IN THE INTERNATIONAL COMMUNITY 180 (1933) (Such a claim is self-contradictory inasmuch as it purports to be based on legal right and at the same time, it dissociates itself from regulation and evaluation of the law.). [FN5]. Schachter, supra note 2, at 260. [FN6]. Id. at 265 (This definition of self-defense is realistic since first, legal prohibitions against use of force, like those found in the U.N. Charter or other collective security alliances, have not eradicated international aggression; and second, the right of collective self-defense recognizes that the victims of an attack may need military aid from other states.). [FN7]. Id. at 266. [FN8]. Treaty Establishing the European Community, Mar. 25, 1957, 298 U.N.T.S. 11 [hereinafter TREATY OF ROME]. [FN9]. Article 223(1) provides: (a) No Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential elements of its security; (b) Any Member State may take the measure it considers necessary for the protection of the essential interests of its security, and which are connected with the production of or trade in arms, ammunitions and war materials; such measures shall not, however, prejudice the conditions of competition in the common market in respect of products not intended for specifically military purposes. Id. [FN10]. Heinrich Kirschner, Symposium on U.S.-E.C. Legal Relations: The Framework of the European Union Under the Treaty of Maastricht, 13 J.L.&COM. 233, 241(1994); see TREATY OF ROME, supra note 8, at art. 224. [FN11]. See id. at art. 225. [FN12]. Single European Act, June 29, 1987, O.J. (L 169/1) (1987), [1987] 2 C.M.L.R. 741 [hereinafter SEA]. [FN13]. Id. at art. 30. [FN14]. Kirschner, supra note 10, at 241. [FN15]. SEA, supra note 12, at art. 30(6)(a); see G. Porter Elliot, Neutrality, the Acquis Communautaire and the European Union's Search for a Common Foreign and Security Policy under Title V of the Maastricht Treaty: The Accession of Austria, Finland and Sweden, 25 GA. J. INT'L & COMP. L. 601, 614 n.58 (1996) (construing Jonathan Faull, Lecture at the Brussels Seminar on Law and Institutions of the
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European Community, Institut d'tudes Europennes (July 5, 1994)). Several polls have been taken to see the percentage of Europeans favoring a common security policy. In 1987, less than half of the EEC favored a common security policy. By 1989, 36% of those polled wanted a common security policy, whereas 30% spoke out against the idea. After the Gulf War, in 1990, 61% of the EEC citizens polled favored a common security plan while 29% voiced opposition. By 1993, 77% believed the EEC should pursue a common security policy, compared to only 13% opposed to the idea. [FN16]. SEA, supra note 12, at art. 30(6)(c). [FN17]. As of 1999, Poland and Hungary became the first of the former Soviet-bloc nations to gain admittance into NATO. [FN18]. See Elliot, supra note 15, at 613 (Germany has the capacity to do great harm in Europe and an historic propensity to do so.). [FN19]. TREATY OF ALLIANCE AND MUTUAL ASSISTANCE, Mar. 4, 1947, 9 U.N.T.S. 187 [hereinafter Treaty of Dunkirk]. [FN20]. 3 History of the WEU: 3.1 Origins tp://www.helsinki.fi/valttdk/hayrinen/weu.html>. 2 (visited Dec. 21, 1996) < ht-
[FN21]. TREATY OF BRUSSELS, Mar. 17, 1948, 19 U.N.T.S. 51 [hereinafter the BRUSSELS PACT]. [FN22]. The Benelux countries are Belgium, the Netherlands, and Luxembourg. [FN23]. BRUSSELS PACT, supra note 21. [FN24]. MARINA SALVIN, 451 INTERNATIONAL CONCILIATION: THE NORTH ATLANTIC PACT 393 (1949) (quoting BRUSSELS PACT, supra note 7, at art. 4); see id. (President Truman, addressing Congress after the signing of the BRUSSELS PACT on Mar. 17, 1948, said, the determination of the free countries of Europe to protect themselves will be matched by an equal determination on our part to help them do so.). [FN25]. BRUSSELS PACT, supra note 21, at preamble (the preamble pledges to take such steps as may be held necessary in the event of renewal by Germany of a policy of aggression). [FN26]. U.N. CHARTER, supra note 2, at art. 51. [FN27]. SALVIN, supra note 24, at 393. [FN28]. BRUSSELS PACT, supra note 21, at 153. [FN29]. Id. art. 4 (if any Member State became the recipient of an armed attack, the parties would, in accordance with Article 51 of the Charter of the United Nations, afford the Party so attacked all the military and other aid and assistance in their power). [FN30]. Salvin, supra note 24, at 393. [FN31]. Id. at 394 (Uniforce charted lines of defense, calculated each country's contribution to the army and airforce, and coordinated arms production). [FN32]. Id. at 395.
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[FN33]. S. Res. 239, 80th Cong., 2d Sess. (1948) (enacted) [hereinafter the Resolution]. [FN34]. Id. [FN35]. Id. [FN36]. SALVIN, supra note 24, at 396 (quoting the Resolution, supra note 33). [FN37]. Id. [FN38]. North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243 [hereinafter NATO Treaty] (The twelve original signatories are Belgium, Canada, Denmark, France, Iceland, Italy, Luxembourg, the Netherlands, Norway, Portugal, the United Kingdom, and the United States. Turkey and Greece joined NATO in 1952, the Federal Republic of Germany joined in 1955, and Spain joined in 1982.). [FN39]. See The European Security and Defence Identity: March 1996: The Western European Union 2 (visited Jan. 11, 1997) <http:// www.nato.int/docu/facts/fs3.htm>. [FN40]. Shashi Tharoor, The Changing Face of Peace-keeping and Peace Enforcement, 19 FORDHAM INT'L L.J. 408 (1995). [FN41]. SALVIN, supra note 24, at 403 (quoting NATO Treaty, supra note 38, at preamble). [FN42]. Id. [FN43]. Art. 5 of the NATO Treaty provides: The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all; and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defense recognized by Article 51 of the [U.N. Charter], will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area. NATO Treaty, supra note 38, at art. 5. [FN44]. Id. [FN45]. How Does the NATO www.nato.int/welcome/nt-p08.htm>. Alliance Work? (visited Dec. 21, 1996) <http://
[FN46]. NATO Treaty, supra note 38, at preamble. [FN47]. Id. at art. 1. [FN48]. Id. at art. 2. [FN49]. Id. [FN50]. See SALVIN, supra note 24, at 404 (mutual aid is defined as each party's contribution of such aid as it reasonably can, consistent with due regard to the requirements of economic health (quoting Report of the Secretary of State to the President, Apr. 7, 1949, Dep't of State, Bulletin 532 (Apr. 24, 1949))); see also Vaughn A. Carney, On the Elimination of the NATO Entitlement, 13 J. INT'L L. BUS. 487 (NATO commitments cost the United States almost half of its defense budget, or $160 billion per year, whereas Great Britain, France and Germany each spend approximately $28 billion per year on defense.).
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[FN51]. NATO Treaty, supra note 38, at art. 3. [FN52]. Id. at art. 4. [FN53]. Id. at art. 5. [FN54]. Id. at art. 6. [FN55]. SALVIN, supra note 24, at 402. [FN56]. NATO Treaty, supra note 38, at art. 9; Hon. John P. Flaherty & Maureen E. Lally-Green, The European Union: Where is it Now?, 34 DUQ. L. REV. 923, 931 (1996). [FN57]. Id. [FN58]. NATO Treaty, supra note 38, at art. 10. [FN59]. SALVIN, supra note 24, at 416. [FN60]. See Origins of the Alliance (visited Jan. 11, 1997) <http:// www.nato.int/welcome/int-p15.htm> (after World War II, the Soviet Union maintained its armed forces at full strength, breaching its duty to demobilize under the U.N. Charter). [FN61]. See 1994 Summit of the Council on Security and Cooperation in Europe, 1994 DEP'T OF STATE DISPATCH (Dec. 12, 1994) (While in Budapest, Hungary in 1994, President Bill Clinton stated, NATO remains the bedrock of security in Europe.). [FN62]. CHANGING FUNCTIONS, supra note 1, at xiv. For the three treaties leading to the Treaty of Paris and the creation of the EEC, see Treaty Instituting the Benelux Union, Feb. 3, 1958, 381 U.N.T.S. 260; Treaty Establishing the Coal & Steel Community, Apr. 18, 1951, 261 U.N.T.S. 140 [hereinafter ECSC]; and Treaty Establishing the Atomic Energy Community, Mar. 25, 1957, 298 U.N.T.S. 167 [hereinafter Eurotom]. [FN63]. Flaherty & Lally-Green, supra note 56, at 933. [FN64]. History of the WEU, supra note 20, at 5; CHANGING FUNCTIONS, supra note 1, at xiv; see Flaherty & Lally-Green, supra note 56, at 933 (parties to the EPC argued that without the United Kingdom as a member, the EPC would allow a rearmed Germany to be free of political control). [FN65]. Both the EDC and EPC treaties failed when tensions loosened after the death of Stalin and the end of the Korean War. See Id. [FN66]. See CHANGING FUNCTIONS, supra note 1, at xiv (Brussels Pact nations invited both Italy and the FRD to become parties to the treaty at this conference, setting the stage for the FRD's postwar reemergence as a participant in Western Europe's continuing integration). [FN67]. Treaty of Economic, Social and Cultural Collaboration and Collective Self-Defence, Oct. 23, 1954, 211 U.N.T.S. 342 [hereinafter WEU Treaty] (signed by Belgium, France, FRD, Italy, Luxembourg, the Netherlands and the United Kingdom). [FN68]. See CHANGING FUNCTIONS, supra note 1, at xv (as stated in the preamble, the WEU Treaty's stated purpose had been to promote unity and to encourage the integration of Europe).
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[FN69]. WEU Treaty, supra note 67, at art. I [FN70]. Id. [FN71]. The WEU officially ended its economic, social and cultural activities when the United Kingdom began membership negotiations with the EEC in 1970. See CHANGING FUNCTIONS, supra note 1, at xv. [FN72]. WEU Treaty, supra note 67, at art. V. [FN73]. 3 History of the WEU, 3.2 Establishment <http://www.helsinki.fi/valttdk/hayrinen/weu.html>. 3 (visited Dec. 21, 1996)
[FN74]. WEU Treaty, supra note 67, at art. VII (None of the High Contracting Parties will conclude any alliance or participate in any coalition directed against any other of the High Contracting Parties.). [FN75]. WEU Treaty, supra note 67, at art. VII (The main organ of the WEU, the Council, consider[s] matters concerning the execution of [the WEU] Treaty, its Protocols and their Annexes.). [FN76]. Id. at art. VIII (the Council shall be convened ... to consult ... in whatever area this threat should arise); see CHANGING FUNCTIONS, supra note 1, at xvi. [FN77]. WEU Treaty, supra note 67, at art. VIII. [FN78]. Id. at art. X (parties must endeavor to settle disputes only by peaceful means). [FN79]. Id. (The High Contracting Parties will ... settle all disputes falling within the scope of Article 36, paragraph 2, of the Statute of the International Court of Justice, by referring them to the Court, however, the High Contracting Parties will submit to conciliation all disputes outside the scope of Article 36, paragraph 2, of the Statute of the International Court of Justice.). [FN80]. Because the WEU Treaty simply modified the Brussels Pact, signed in 1948, the first possible opportunity to denounce the WEU would be in 1998. However, if the WEU Treaty, signed in 1954, is seen as creating a separate organization, parties could not denounce their membership until 2004. To denounce membership in the WEU, a party must give notice to the Belgian government one year in advance. See id. at xvii; SALVIN, supra note 24, at 402; Jane's Defence Weekly: Interview with Sir Dudley Smith, President of the Assembly of the WEU 10 (visited Jan. 11, 1997) <http:// www.thomson.com/janes/960327.html> (the Brussels Pact of 1948, valid for fifty years, means the WEU could be renewed or disbanded in 1998). [FN81]. See Protocol Modifying and Completing the Brussels Treaty (Oct. 23, 1954); Protocol No. II on Forces of Western European Union (Oct. 23, 1954); Protocol No. III on the Control of Armaments (Oct. 23, 1954); and Protocol No. IV on the Agency of Western European Union for the Control of Armaments (Oct. 23, 1954), reprinted in CHANGING FUNCTIONS, supra note 1, at 1-38. [FN82]. 3 Origins: 3.4 The Quiet Years: 1955-1984 13 (visited Dec. 21, 1996) <http://www.helsinki.fi/valttdk/hayrinen/weu.html>; see id. at 14 (Between 1973 and its reactivation, no ministerial meetings took place. Between 1974 and 1977, German Foreign Minister Walter Scheel stated that all WEU meetings should be canceled altogether.). [FN83]. See 3 Origins: 3.5 The Reactivation 4 (visited tp://www.helsinki.fi/valttdk/hayrinen/weu.html>; see also id. at 1, 2, 3. Dec. 21, 1996) < ht-
[FN84]. The Council, the main governing body of the WEU, is based on Article VIII of the WEU Treaty.
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The Councils job is to consider matters concerning the execution of this Treaty and of its Protocols and their Annexes. The Council's decisions are made by unanimous vote, and, while the WEU Treaty is legally binding under international law, the decisions of the Council are binding in a political sense only. See CHANGING FUNCTIONS, supra note 1, at xix-xx. [FN85]. Id. at xix; see CHANGING FUNCTIONS, supra note 1, at xviii (The WEU had been reactivated for three reasons: first, in 1981, France and the FRD, by establishing the failed Genscher-Colombo initiative to place security and defence issues under the umbrella of the EPC to strengthen the European pillar of NATO, necessarily put the WEU back on their agendas, since the FRD wished to change those provisions of the WEU Treaty which discriminated against its armaments industry; second, Europe began to reconsider the NATO alliance after the United States first planned, in 1979, to deploy American missiles in Europe, thereafter attempting to deploy a nuclear missile system in outer space called the Strategic Defense Initiative or Star Wars over the European landmass; and third, Europe needed a separate defensive alliance to achieve a true security political dimension.). [FN86]. 3 Origins: 3.5 The Reactivation, supra note 82, at 6. [FN87]. Id. [FN88]. See id. at 8. [FN89]. Id. at 17. [FN90]. Id. [FN91]. Elliot, supra note 15, at 614. [FN92]. TREATY ON EUROPEAN UNION, Feb. 7, 1992 O.J. (c) 224) 1 (1992), [1992] 1 C.M.L.R. 573 (1992) [hereinafter Maastricht Treaty] (the Maastricht Treaty went into force on November 1, 1993); see id. at tit. 1, art. A ([b]y this Treaty, the High Contracting Parties establish themselves a European Union). [FN93]. Kirschner, supra note 10, at 242. [FN94]. Maastricht Treaty, supra note 92, at art. J. [FN95]. Id. at art. B. [FN96]. Id. at art. J.8. [FN97]. Id. at art. J.9. [FN98]. Id. at art. J.7. [FN99]. Dr. Hans-Joachim Glaesner, Formulation of Objectives and Decision-Making Procedure in the European Union, 18 FORDHAM INT'L L.J. 765, 766 (1995); see Maastricht Treaty, supra note 92, at art. C. The Union shall in particular ensure the consistency of its external activities as a whole in the context of its . . . security . . . polic[y]. The Council and the Commission shall be responsible for ensuring such consistency. They shall ensure the implementation of these policies, each in accordance with its respective powers. See also Kirschner, supra note 10, at 243 (Article 228a of the Treaty of Rome, as amended by the Maastricht Treaty, is designed to guarantee consistency between the common positions or joint actions adopted in the field of the common foreign or security policy and the measures of the EC concerning economic relations with third countries.).
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[FN100]. The EU cannot make its decisions binding with regards to the second pillar of The Maastricht Treaty. While the European Court of Justice has jurisdiction to enforce decisions made by the Communities in the first pillar, its jurisdiction does not extend to decisions involving matters in the second pillar. See Dieter Kugelmann, The Maastricht Treaty and the Design of a European Federal State, 8 TEMP. INT'L & COMP. L.J. 335, 345 (1994) (construing Maastricht Treaty, supra note 92, at art. L); see also Kirschner, supra note 10, at 243. [FN101]. Maastricht Treaty, supra note 92, at art. J.1. [FN102]. Id. [FN103]. Id. [FN104]. Elliot, supra note 15, at 345. [FN105]. Maastricht Treaty, supra note 92, at art. J.2. [FN106]. Id.; I.A.1-2 EUROPEAN UNION LAW GUIDE: I. TREATIES & BASIC DOCUMENTS 9 (Philip Raworth ed., 1994) [hereinafter LAW GUIDE]. See Maastricht Treaty, supra note 92, at art. J.8(2) (The Council shall take the decisions necessary for defining and implementing the common foreign and security policy ... It shall ensure the unity, consistency and effectiveness of action by the Union.). [FN107]. Id. [FN108]. Maastricht Treaty, supra note 92, at art. J.2. [FN109]. Id. [FN110]. Id. [FN111]. Id. at art. J.3(4). [FN112]. See Glaesner, supra note 99, at 780; see also Council Decision of 6 Dec. 1993, art. 17, 1993 O.J. (L 304) 1. The Council is authorized to make all common foreign and security policy decisions regarding common positions and joint action under Articles J.2(2), J.8(2) and J.3(1). However, these decisions do not have the proper form to be granted binding legal effect under Article 189 of the Treaty of Rome, which only gives Community issues binding effect. Decisions formulated under the second pillar of the Maastricht Treaty are treated differently, falling under Article 17 of the Council's Rules of Procedure of 6 Dec. 1993. Because these decisions cannot be given binding effect under Article 189, Article J.2 imposes a duty on member states to ensure that their national policies conform with the common positions [of the Community.] [FN113]. Elliot, supra note 15, at 615. [FN114]. Maastricht Treaty, supra note 92, at art. J.4(2); see Maxine Mead, Book Note, 19 MD. J. INT'L & TRADE 325 (1995) (reviewing TED GALEN CARPENTER, BEYOND NATO: STAYING OUT OF EUROPE'S WARS (1994)) (the EU adopted the WEU as its defense component); see also Elliot, supra note 15, at 615-16. Another contender for the position had been the Conference on Security and Cooperation in Europe, now the Organization for Security and Cooperation in Europe (OSCE). Created by the Helsinki Act, the EU did not choose the OSCE because of its cumbersome voting system: all fifty-four members, who have an equal vote (i.e., San Marino and Malta can together outvote France), must reach a consensus before any action can be taken.
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[FN115]. Id. [FN116]. Maastricht Treaty, supra note 92, at art. J.4; CHANGING FUNCTIONS, supra note 1, at xxv; see Elliot, supra note 15, at 617 n.84 (On March 7, 1991, while speaking at the International Institute for Strategic Studies in London, former Commission President Jacques Delors said, If we are to create a European Union, a lengthy process must be set in motion to allow integration of the WEU . . . into the Community. (quoting Europe Documents, No. 1699, at 7 (Mar. 13, 1991)). [FN117]. Id. [FN118]. See Maastricht Treaty, supra note 92, at art.J.4(1) (The common foreign and security policy shall include all questions related to the security of the Union, including the eventual framing of a common defence policy, which might in time lead to a common defence.) (italics added); cf. Stuart E. Eizenstat, U.S. Relations with the European Union and the Changing Europe, 9 EMORY INT'L L. REV. 1, 16 (1995) (The EU could enunciate a [defense] plan, but does not have sufficient capabilities or military cohesion to effectuate it.). [FN119]. Elliot, supra note 15, at 617; Carney, supra note 50, at 489 (because the United States is NATO's largest contributor, [s]upreme [c]ommand of NATO forces would . . . remain with the U.S. military.). [FN120]. Maastricht Treaty, supra note 92, at art. J.4(4); cf. id. at art. J.4(5) (two or more member states are permitted to pursue closer cooperation within the framework of the WEU or NATO, if plans are compatible with the common security and defense policy established within that framework.). [FN121]. LAW GUIDE, supra note 106, at 9; see The European Security and Defence Identity: NATO-WEU Cooperation 1 (visited Jan. 11, 1997) <http:// www.nato.int/docu/facts/fs3.htm>. The Council of the WEU first formally met with NATO at NATO Headquarters on May 21, 1992 to discuss the relationship between both alliances and ways of strengthening practical cooperation as well as establishing closer working ties between them. The Secretary General of the WEU now regularly attends NATO's ministerial meetings, and NATO's secretary general regularly attends those of the WEU. [FN122]. Declaration on the role of WEU and its relations with the European Union and with the Atlantic Alliance, Dec. 10, 1991, reprinted in CHANGING FUNCTIONS, supra note 1, at 131 [hereinafter Maastricht Declaration 1]. [FN123]. CHANGING FUNCTIONS, supra note 1, at xxiv; Maastricht Declaration 1, supra note 122, at art 2. [FN124]. LAW GUIDE, supra note 106, at 9; see The European Security and Defence Identity: NATO's European Pillar 1 (visited Jan. 11, 1997) <http:// www.nato.int/docu/facts/fs3.htm> (NATO has declared that it stand[s] ready to make collective assets of the Alliance available, on the basis of consultations in the North Atlantic Council, for WEU operations undertaken by the European Allies in pursuit of their common Foreign and Security Policy.). [FN125]. Maastricht Declaration 1, supra note 122, at art. 2. [FN126]. Id. at art. B.4; see The European Security and Defence Identity: NATO's European Pillar, supra note 39, at 2 (To further cooperation with the WEU, NATO has endorsed creating Combined Joint Task Forces (CJTFs), whose function is to [develop] separable but not separate military capabilities for use by both [alliances].). [FN127]. Maastricht Declaration 1, supra note 122, at art. 2.
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[FN128]. Id. at art. A.3; see The European Security and Defence Identity: Common European Defence Policy 3 (visited Jan. 11, 1997) <http:// www.nato.int/docu/facts/fs3.htm>. At the NATO meeting in Noordwijk, Netherlands in May of 1995, NATO ministers took note of the initiative of Italy, Spain and France to create both a land force (EUROFOR) and a naval force (EUROMARFOR). Membership in these forces is open to all WEU parties, and the forces would be answerable to the WEU. These forces could then be employed within NATO's framework. [FN129]. Id. [FN130]. Declaration on relations between WEU and the other European States, Dec. 10, 1991, reprinted in CHANGING FUNCTIONS, supra note 1, at 135 [hereinafter Maastricht Declaration 2]. [FN131]. See CHANGING FUNCTIONS, supra note 1, at xxv; see also WEU Treaty, supra note 67, at art. XI (The High Contracting Parties may, by agreement, invite any other State to accede to the present Treaty on conditions to be agreed upon between them and the State so invited.); see generally EC: Europe Documents: No. 1781--WEU Ministerial Council, 19 June in Petersberg (Bonn), Reuter Textline Agence Europe, June 23, 1992, available in LEXIS, Eurcom Library, TxTec File (EU members invited to join WEU). [FN132]. See generally Germany: WEU Meeting of 19 June Opens Up Concrete Prospects in Direction of Common Defense Policy, Reuters Textline Agence Europe, June 20, 1992, available in LEXIS, Eurcom Library, TxTec File. [FN133]. Petersberg Declaration, June 19, 1992, reprinted in CHANGING FUNCTIONS, supra note 1, at 137. [FN134]. Id. at 142; see Portugal: WEU Council in Lisbon Decides to Strengthen Operational Capabilities, Reuter Textline Agence Europe, May 16, 1995, available in LEXIS, Eurcom Library, TxTec File (Eurofor and Euromarfor will be declared forces available to WEU . . .). [FN135]. Petersberg Declaration, supra note 133, at 142 (arts. 5 and 6); see British Presidency of the Western European Union: WEU's Operational Role 4 (visited Jan. 11, 1997) <http:// tlingit.elmail.co.uk2000/weu/briefingnote.html>. [FN136]. Petersberg Declaration, supra note 133, at 142 (arts. 2 and 3); see Germany: Van Eekelen Welcomes Constitutional Court's Decision on PeaceKeeping Operations, Reuter Textline Agence Europe, July 15, 1994, available in LEXIS, Eurcom Library, TxTec File (Petersberg Declaration also states that participation in specific operations will remain a sovereign decision of WEU Member States in accordance with their national constitutions). [FN137]. See Petersberg Declaration, supra note 133, at 144-46 (art. B). [FN138]. Kirchberg Declaration, May 9, 1994, reprinted in CHANGING FUNCTIONS, supra note 1, at 191. [FN139]. CHANGING FUNCTIONS, supra note 1, at xxvii (the WEU Forum on Consultation can be thought of as the counterpart of NATO's Partnership for Peace). [FN140]. See Kirchberg Declaration, supra note 138, at 199 (status as an associate partner does not entail any changes to the WEU Treaty). [FN141]. Id.
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[FN142]. Id. at 199-200 (art. 2); see Luxembourg: Status of Associate Partner Does Not Compete with NATO's PFP-WEU Council President, Reuter Textline Agence Europe, May 11, 1994, available in LEXIS, Eurcom Library, TxTec File (associate partners' role in peacekeeping missions would not interfere with NATO's Partnership for Peace missions). [FN143]. Kirchberg Declaration, supra note 138, at 200 (art. 2). [FN144]. Id. at 199 (art. 1). [FN145]. See id. at 199; see also Eastern Europe: Kirchberg Declaration 9 May 1994, Reuter Textline SCAD, Sept. 30, 1994, available in LEXIS, Eurcom Library, TxTec File (nine Eastern European countries become associate partners of the WEU: Bulgaria, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia & Czech Republic); Quarterly Report: Magreb No. 19 (Part 4 of 5), 1995 Janet Matthews Information Servs.-Quest Economics Database, MEED Quarterly Report-Magreb, Sept. 1995, LEXIS, Eurcom Library, TxTec File (because of the success of the Kirchberg Declaration, the WEU would like to develop and expand its dialogue on security issues to Egypt and other non-WEU member Mediterranean states). [FN146]. CHANGING FUNCTIONS, supra note 1, at xxviii. [FN147]. British Presidency, supra note 135, at 5. [FN148]. The WEU and the www.nato.int/ifor/weu/weuphoto.htm>. Yugoslav Conflict (visited Dec. 22, 1996) <http://
[FN149]. Id. (Operation Danube's Coordination and Support Center is located in Calafat, Romania. A total of 300 police and customs officers and 11 boats actively patrol the Danube). [FN150]. Id. [FN151]. CHANGING FUNCTIONS, supra note 1, at xxix. [FN152]. See Maastricht Treaty, supra note 92, at art. B (One of the EU's objectives is to maintain in full the acquis communautaire and build on it with a view to considering . . . to what extent the policies and forms of cooperation introduced by this Treaty need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.); see also id. at art. C (The Union shall be served by a single constitutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.); id. at art. O (Article O has been interpreted as extending acquis communautaire to the EU as a whole). [FN153]. Elliot, supra note 15, at 604; see id. at 619 (In the Commission's 1992 report, Europe and the Challenge of Enlargement, it expressly expanded the definition of acquis communautaire to include the contents, principles and political objectives of the . . . Maastricht Treaty.); see also id. at 620 (Former Commission President Jacques Delors said, new members will have to accept the acquis communautaire . . . the whole Union Treaty and nothing but the Union Treaty.). [FN154]. See The WEU and the European Common Foreign and Security Policy 1 2 ( v i s i t e d J a n u a r y 1 1 , 1 9 9 7 ) <http:// sunsite.sut.ac.jp/arch/academic/history/marshall/military/a-weu/051093>. While speaking at the Institut Royal Superieur de Defense in Brussels, Belgium on Oct. 5, 1993, Sir Dudley Smith, President of the WEU Assembly said, I believe that we are still some way from fully implementing a common European foreign and security policy, let alone the 'eventual framing' of a common European defence policy with all that that implies.
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[FN155]. See generally Geoffrey Smith, Global Paradigms: The Impact of Cultures on Trade and Diplomacy: The Political and Security Dimensions: The Classical Paradigm Revisited: Trans-Atlantic Relations in Turmoil: NATO and the Future of Europe, 3 TULSA J. COMP. & INT'L L. 115 (1995). [FN156]. Mead, supra note 114, at 325. [FN157]. NATO Treaty, supra note 38, at art. 10 (a European state must fulfill both factors to be considered for NATO membership). 6 U. Miami Y.B. Int'l L. 1 END OF DOCUMENT
11 AMUJILP 767 11 Am. U. J. Int'l L. & Pol'y 767
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American University Journal of International Law and Policy 1996 POLITICS OVERRIDES LEGAL PRINCIPLES: TRAGIC CONSEQUENCES OF THE DIPLOMATIC INTERVENTION IN BOSNIA-HERZEGOVINA (1991-1992) Michael Barutciski [FNa] Copyright (c) 1996 Washington College of Law of The American University; Michael Barutciski Many commentators have suggested that the international community could have played a more positive role regarding the crisis in Bosnia- Herzegovina if it had enforced well-established legal principles and decisions made by the United Nations Security Council. [FN1] This commentary on the importance of law should have been considered from the beginning of the crisis when the international community made critical decisions concerning the recognition of independence. These decisions had grave consequences for the protection of civilian populations. Unfortunately, the real problems in Bosnia-Herzegovina were ignored despite the relevance of the legal opinion written by the Arbitration Commission [FN2] composed of the European Community's finest jurists. Legal principles were pushed aside in favor of political interests, resulting in international policy that does not reconcile with international law. I. CONSTITUTIONAL CRISIS IN BOSNIA-HERZEGOVINA A. Three Constituent Nations Three constituent nations existed in the former Yugoslav Republic of Bosnia-Herzegovina: Croats, Serbs and Muslims. According to 1981 census figures, the population of the Republic was composed as follows: 18.3% Croat, 32% Serb, 39.5% Muslim. [FN3] The remainder of the population included various minorities and people who identified themselves as Yugoslavs. [FN4] The term from which the translation nation is obtained, narod, is used in the 1974 Constitution [FN5] in a way that most resembles the German Volk in that it refers to a people defined by common cultural and historical ties. One should not confuse it with citizenship. There has been confusion, nevertheless, in the way the international news media has used the terms Muslim and Bosnian. Muslims were recognized de facto as a distinct nation in the 1971 census and de jure in the 1974 Constitution. [FN6] With their own recent and growing nationalist sentiment, [FN7] Muslims resented being referred to as Serbs or Croats who had simply converted to Islam under the Ottoman rule in order to enjoy privileges over the Christian populations. [FN8] The problem was that they lacked a national name. [FN9] The attempt to introduce the term Yugoslav did not accommodate their desire to have their own distinct culture recognized. Although they have become largely secular, the explicit religious origins of their identity have made it difficult to define their nationhood. [FN10] The term Bosnian could not be used since it suggested that they were somehow more indigenous than the majority of the inhabitants of Bosnia-Herzegovina who belong to the Serb and Croat nations and who have been present on the territory for as long as the Muslims themselves. [FN11] Eventually, the term Muslim (with a capital M in the local language) was officially adopted. [FN12] As peculiar as this may seem to readers who are accustomed to the notion that the term Muslim refers
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to a follower of the Islamic faith, one should understand that this is how the 1974 Constitution attempted to deal with the profound desire on the part of some inhabitants of Bosnia-Herzegovina to have their nationhood recognized and distinguished from the other two nations sharing the same territory. The constitutional terms designating nationhood have to be retained in order to grasp correctly the nationalist dimension of the conflict in Bosnia- Herzegovina, and in order to avoid the confusion and imprecision resulting from the use of the term Bosnian by many commentators. [FN13] B. Parliamentary Impasse Even though it is arguably the main cause of the present armed conflict, there has been almost no discussion of the constitutional crisis in Bosnia-Herzegovina. The first free elections in the former Yugoslav Republic of Bosnia-Herzegovina's short history [FN14] occurred in 1990 and resulted in the nationalist parties of the three constituent nations taking 86% of the vote in proportions generally reflecting their percentages of the population. [FN15] Though the nationalist parties agreed that the multinational Communists should be removed from power, the deep divisions created by the organization of parties along national lines should not be underestimated. [FN16] The three nationalist parties agreed to share various functions at the Republican level and agreed to continue with the principle of consensus when working on important constitutional matters. [FN17] This was in accordance with the 1974 Constitution which provided for the equality of the three constituent nations. [FN18] A limited veto power for each nation was crucial since a combination of any two nations automatically produced a majority in the event of a vote. Only strict adherence to the consensus principle could guarantee that the rights of the three nations would not be threatened. At the local level, however, the party that represented the majority group in each particular ops tina (sub-Republican administrative unit) seized absolute control. [FN19] Following the 1990 elections, the parliament of Bosnia-Herzegovina did not adopt a single law. The tensions in the parliament finally exploded when the Muslim and Croat parties agreed in October 1991 to adopt a platform on the future sovereignty of Bosnia-Herzegovina that was to be confirmed by referendum. [FN20] According to this document, Bosnia-Herzegovina would remain in a new Yugoslav community only if it included both Croatia and Serbia. Since this was an unlikely development given the fighting between Croats and Serbs in Croatia following its declaration of independence from Yugoslavia, the Serbs interpreted this gesture as the beginning of Bosnia-Herzegovina's formal separation from the Yugoslav federation, in which they felt secure. The Serbs consequently left the parliament and created their own assembly near the capital city, Sarajevo (Pale). [FN21] During autumn 1991, so-called Serb autonomous provinces appeared throughout Bosnia-Herzegovina. [FN22] The creation of several Croat autonomous regions immediately followed. [FN23] By the end of 1991, the parliament of Bosnia-Herzegovina found itself in an impasse since it had to enact a new constitution in order for the Republic to become independent. To do this legally, the three nation consensus principle dictated that the parliament needed the participation of the Serb parliament members. Although no longer formally participating in the parliament's activities, the Serbs made it clear through unofficial channels that they had no intention of cooperating unless a political solution could be achieved that would sufficiently protect their rights. In the event that such a solution was not possible, the Serbs made no secret of their preparations for an armed conflict. [FN24] Equally worrisome was the huge presence in Bosnia-Herzegovina of the Yugoslav People's Army (JNA) which was legally stationed in the Republic since it was still part of the Yugoslav federation. [FN25] At that stage, however, the JNA was clearly supporting the Serb nationalist cause and had no intention of allowing territory where its military material and installations were concentrated to leave Yugoslavia. [FN26]
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II. INTERNATIONAL INTERVENTION A. Pursuit of Independence Despite the fact that the parliament no longer contained the elected representatives of one of the constituent nations, President Izetbegovic decided to seek international recognition for the independence of Bosnia-Herzegovina. The European Community (EC) created an Arbitration Commission that consisted of the presidents of five EC constitutional courts in order to deal with legal problems regarding the former Yugoslavia. [FN27] The Commission received notification on December 20, 1991 so that it could examine the request. [FN28] The fact that the EC was even considering the recognition of Bosnia-Herzegovina's independence under these circumstances worried key actors in the international community's preventive diplomatic efforts. [FN29] It is important to understand the EC's position in order to grasp the relationship between preventive diplomacy and state self-interest regarding the crisis in the former Yugoslavia. The German Government, under pressure from German public opinion which was sympathetic to Croatian and Slovenian independence, presented an ultimatum to EC Member States at a meeting on December 16, 1991: if the EC did not recognize the independence of Croatia and Slovenia, Germany would proceed by itself in recognizing these two states even though this was contrary to the common European foreign policy provision agreed to in the Maastricht Treaty that had just been signed several days earlier. [FN30] EC Member States reached a compromise solution whereby any Republic from the former Yugoslavia could apply for recognition of independence. The formal recognition of independence was to take place on January 15, 1992. The one month delay would allow the Arbitration Commission to advise the EC whether the applicants satisfied an extensive list of basic criteria relating to the rule of law, democracy and human rights. [FN31] While the Arbitration Commission's opinions were not legally binding, what fundamentally undermined its role was that, in the end, the German government decided not to wait for the issuance of advisory opinions but proceeded to recognize Croatia and Slovenia on December 23, 1991. [FN32] Furthermore, even though the Arbitration Commission stated on January 11, 1992 that Croatia did not completely fulfill all the criteria, [FN33] the other EC Member States proceeded to recognize both Croatia and Slovenia on January 15, 1992, as planned. [FN34] In order to accommodate Germany's new political demands [FN35] and pressure from public opinion, the Member States openly discarded the EC's top jurists. [FN36] Unfortunately, this set the tone for the EC's handling of the particularly explosive situation in Bosnia-Herzegovina, in spite of the many warnings against premature recognition. On January 11, 1992, the Arbitration Commission examined President Izetbegovic's request and issued an advisory opinion on Bosnia- Herzegovina's independence. [FN37] The Arbitration Commission rejected the request, noting that the Serbian members of the Presidency did not associate themselves with the various independence declarations and undertakings. [FN38] Referring to the wishes of the Serbs to remain in a Yugoslav federation as established by a plebiscite and a Serb Assembly resolution, the Arbitration Commission declared that the will of the peoples of Bosnia-Herzegovina to constitute the Socialist Republic of Bosnia-Herzegovina (SRBH) as a sovereign and independent State cannot be held to have been fully established. [FN39] It concluded that its position was reviewable if appropriate guarantees were provided by the Republic applying for recognition, possibly by means of a referendum of all the citizens of the SRBH without distinction, carried out under international supervision. [FN40] The limited explicit basis for the Arbitration Commission's short advisory opinion requires considerable efforts in order to understand the reasoning. One element that seems certain, however, is that the Arbitration Commission rightly focused on the fact that the Presidency was not representing the interests of all three
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constituent nations of Bosnia- Herzegovina. Consequently, it had to refuse the request and thereby recognize that President Izetbegovic had exceeded his constitutional powers by seeking independence without the approval of the Serbs. The only way the Arbitration Commission could change its opinion would be if the Serb nation somehow indicated that it was favorable to independence: a referendum with Serb participation would manifest this, and implicit in the reasoning is the requirement for the Serbs to vote in favor of independence given the constitutional guarantee of equality between all three nations. Any other interpretation would ignore Bosnia- Herzegovina's consensus principle and would allow a majority to determine the fate of a protected minority. [FN41] The Muslim and Croat parliament members decided to proceed with a referendum on independence even though the Serbs vowed to boycott it. [FN42] The Muslim nationalist party campaigned for a unitary, democratic and independent Bosnia-Herzegovina, while the Croat nationalist party backed the project of separation from Yugoslavia, yet remained ambiguous regarding the unity of Bosnia-Herzegovina since the Croats were interested in establishing closer ties with Croatia. [FN43] The results were made public on March 1, 1992: those Muslims and Croats who participated voted overwhelmingly for independence, while the Serbs effectively boycotted the referendum. [FN44] With the Muslims and the Croats explicitly violating the principle of consensus by holding a referendum without Serb participation (and in which a total of 37% of the population did not participate), the referendum failed to fulfill the Arbitration Commission's requirement that all the citizens of Bosnia-Herzegovina be consulted. Even if one of the constituent nations chose not to participate, the constitutional arrangement prohibited the other two nations from carrying out constitutional changes affecting the recalcitrant nation. According to its policy on Bosnia-Herzegovina, the EC was prepared to recognize independence if the three constituent nations could achieve an agreement. [FN45] The EC therefore organized negotiations among the three sides so that Bosnia-Herzegovina could become a political union divided into three ethnic regions. It had been clear for many months that no agreement among the three nationalist parties could occur legally and legitimately that did not involve a substantial transfer of power from the centralized government to the representatives of the three constituent nations. Moreover, none of the parties would accept any form of domination by another party. [FN46] The Muslims and the Croats feared the aggressive Serb nationalism promoted by Serbia's President Milosevic who believed the Yugoslav federation no longer served Serb interests; the Muslims and the Serbs also feared the Croat nationalist party which was under the influence of Croatia's President Tudjman who presented himself as a democrat in the West while adopting reactionnary positions in order to achieve his separatist dream; the Serbs and the Croats equally feared the ambiguous Muslim nationalist party which combined nationalism with radical Islamic tendencies. [FN47] Whereas the Serbs unleashed a furious propaganda campaign designed to eliminate the dangerous cosmopolitanism (especially in Sarajevo and the major towns) which they considered undesirable in the national territories emerging from the former Yugoslavia, [FN48] the Muslim-controlled Presidency presented itself as having pluralist intentions and favoring multinational coexistence. Of course, the true intentions of the Muslim leadership could be suspect given that the more numerous Muslims had everything to gain from maintaining a unitary Republic in which they could exert the most influence. [FN49] One should not forget that the Muslims were the first to form a party along nationalist lines in 1990 [FN50] and had established ties with the Islamic world that were bound to appear threatening to the Christian Serbs and Croats, given the history of various civilizations clashing in the Balkans. [FN51] So it is not surprising that the EC held negotiations among the three constituent nations in order to divide the territory of Bosnia-Herzegovina in a manner that would be acceptable to the nationalist leaders. Indeed, all three sides finally reached such an agreement in Lisbon on February 23, 1992 when they signed a document dividing Bosnia-Herzegovina into three national regions (the cantonization of the Republic).
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[FN52] B. Preventive Recognition It is a grave mistake to believe that the actors at this stage were only former Yugoslavs. The emerging conflict had captured the attention of various interests around the world. Of particular importance is the solidarity that countries with strong Islamic populations expressed toward Bosnia-Herzegovina. [FN53] Turkey, Iran and Saudi Arabia have all figured prominently in President Izetbegovic's attempt to gain international sympathy for his cause. [FN54] Yet it is the United States that most directly managed to influence the outcome of the EC's negotiation efforts in an attempt to improve and fortify its relations in the Islamic world. [FN55] Contrary to popular belief, the United States did play a pivotal role before the outbreak of hostilities in Bosnia-Herzegovina. [FN56] In fact, the United States Ambassador to Yugoslavia at the time has since suggested in an interview that he encouraged President Izetbegovic to publicly renounce the Lisbon (territorial partition/cantonization) agreement soon after having signed it. [FN57] This occurred because the United States government had decided that it would support President Izetbegovic's drive for independence even without the existence of an agreement among the three constituent nations. [FN58] Consequently, after returning to Sarajevo, the emboldened President Izetbegovic appeased his own party's hard-liners by announcing that the Lisbon partition maps were unacceptable and indicated his intention to pursue full independence despite objections from the Serbs. [FN59] United States intervention raised tensions in an already explosive situation and complicated the EC's preventive diplomatic efforts. On March 13, 1992, the United Nations (UN) military force sent to the former Yugoslavia set up its headquarters in Sarajevo. [FN60] Although the United Nations Protection Force's (UNPROFOR) mandate concerned only Croatia, [FN61] the UN Secretary General ordered it to establish its headquarters in Bosnia-Herzegovina in the hope that such a presence would help to calm the situation. [FN62] The three hundred UN personnel who arrived were well short of the large preventive UN peacekeeping force secretly requested by President Izetbegovic. [FN63] Fighting broke out in various parts of Bosnia-Herzegovina one week later as it became clear that President Izetbegovic was not going to respect the principle of consensus in his drive for independence. [FN64] Reports indicate Serb paramilitary forces began almost immediately to engage in a campaign of ruthless ethnic cleansing on territories coveted by the Serb leadership. [FN65] Acting as President Izetbegovic's new ally, the United States government [FN66] convinced the EC states to recognize the Republic on April 6, 1992, by agreeing to recognize Croatia and Slovenia along with Bosnia-Herzegovina the following day. [FN67] Those involved used the expression preventive recognition in order to justify this admittedly dangerous gamble given that the Serbs had often repeated their intention to resort to the use of force should recognition precede a political agreement. [FN68] Thus, the international community proceeded to recognize the independence of a state that had ceased to exist in any meaningful way. [FN69] The constitutional crisis left a parliament that no longer represented the three constituent nations and a government that no longer functioned legally. [FN70] Furthermore, a majority of putative citizens denied the authority of the Muslim-controlled Presidency, while violent militia units from the various constituent nations were seizing the territory. [FN71] International law generally recognizes that the elements which constitute a state include the existence of a defined population, a distinct territory and an effective government. [FN72] The case of BosniaHerzegovina represents a striking example of disregard for established legal principles since the international community recognized an independent state where an illegitimate government [FN73] never controlled a significant part of the population or territory which it claimed. [FN74] Legal commentators have failed to
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comment on the fact that the UN later admitted this state as a member, even though the state was never in a position to assume the obligations contained in the UN Charter. [FN75] This example of premature recognition does, nevertheless, confirm the importance and relevance of the present criteria regarding statehood and international recognition. In the context of the brutal disintegration of the former Yugoslavia, the recognition of BosniaHerzegovina's independence without respect for international legal principles (and internal constitutional guarantees) only encouraged the various parties to seek their goals by the use of force. [FN76] The victims of these ruthless military solutions would be the inhabitants of Bosnia-Herzegovina who found themselves in the wrong national territory (1.4 million people or 1/3 of the total population) [FN77] and who would become the objects of forced population shifts. [FN78] Far from preventing an explosive situation, selfinterested members of the international community aggravated a situation that any informed observer should have known would assure that these population shifts would be of the most violent kind: By denying that partition of Bosnia could take place when in fact it was inevitable, the international community ensured that it would be accomplished in the worst possible way. The map of Bosnia was redrawn in blood on the ground, rather than around a table. [FN79] III. UPROOTED SECURITY FOR BOSNIA-HERZEGOVINA It is important to understand that the deep tensions resulting from the constitutional crisis made coexistence and the survival of a multinational territory virtually impossible: [FN80] Moreover, it is difficult to imagine a long-term settlement of the current conflict in what used to be Yugoslavia that will not involve some major, permanent, shift of populations . . . . What is noteworthy about each of these (possible outcomes to the war) is that they would all involve some blend of the movement of borders and people with the ultimate result being that the remaining entities would more approximate a one state/one nation norm - or in Bosnia, a one canton/one nation norm than did their predecessor republics in communist Yugoslavia. Such a movement of borders and people would be scarcely the first time governments in the Balkans or elsewhere opted to solve the security problems posed by the inter-ethnic rivalries of a larger multi-national entity by attempting to better approximate a one nation/one state model . . . . In all three of these scenarios, Croatia, Serbia including the Vojvodina, and parts of Bosnia would all emerge from the civil war more nearly ethnically homogeneous than each has been in the past. Unfortunately, the transition implied by any of these outcomes will involve huge human costs. [FN81] The attempt to maintain the unity of Bosnia-Herzegovina was terribly unrealistic and inappropriate. [FN82] In other words, this was not the time to experiment with notions of multiethnicity and multinationalism. [FN83] While it is unlikely that an early partitioning of Bosnia-Herzegovina before the outbreak of hostilities would have completely avoided the displacement of civilian populations, an early partitioning may have limited the human costs by creating an atmosphere in which population shifts could occur in a more orderly and secure manner and in which displacement would not be intimately tied to military objectives. Population shifts during an ongoing civil war inevitably result in terrible human suffering. As soon as the armed conflict in Bosnia- Herzegovina began, it should not be surprising that only an individual's national group offered security and protection from violence. Thus, the logic of ethnic cleansing took over as people no longer trusted their neighbors and sought to live uniquely among their own ethnic national group: Never say ethnic cleansing is just racial hatred run wild, just Balkan madness. For there is a deep logic to it. By 1990, this part of Yugoslavia was a Hobbesian world. No one in these villages could be sure who would protect them. If they were Serbs and someone attacked them and they went to the
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Croatian police, would the Croats protect them? If they were Croats, in a Serbian village, could they be protected against a night- time attack from a Serbian paramilitary team, usually led by a former policeman? This is how ethnic cleansing began to acquire its logic. If you can't trust your neighbours, drive them out. If you can't live among them, live only among your own. This alone appeared to offer people security. This only gave respite from the fear which leaped like a brush-fire from house to house. [FN84] Although valuing ethnicity in this context does not amount to valuing ethnic cleansing, one cannot ignore that the separation of warring nationalities that have previously coexisted together in the same territory is perhaps the only form of trustworthy security: Nobody in the West wants to appear to be condoning ethnic cleansing, but every day, every hour, civilians are fleeing war zones, or being driven hence by men with guns, into the relative safety of their own ethnic enclaves. Ethnic apartheid may be an abomination, but for the more than two million refugees who have fled or been driven from their homes, apartheid is the only guarantee of safety they are prepared to trust. [FN85] Prevention of the outbreak of hostilities could have avoided the situation in which the belligerents perceived ethnic cleansing as logical. Yet, in this regard one must concede that considerable international efforts at preventive diplomacy existed and that these efforts did in fact address the central issue of the dispute. Nevertheless, influential members of the international community decided to promote their own interests even though these interests were contrary to the preventive diplomatic efforts that were showing some signs of success. Furthermore, when the predictable refugee flows began crossing international borders, these same states concentrated on developing mechanisms that would help avoid legal obligations toward involuntary migrants, while insisting that their contribution to refugee protection would focus on concepts such as preventive protection. On a more cynical level, the case of Bosnia-Herzegovina suggests that powerful and affluent states in the UN are not firmly committed to preventive diplomatic activity, despite all the rhetoric of the early 1990s. [FN86] When Serb nationalists challenged secessionist aspirations in Croatia and Slovenia during 1991 by claiming to be defending a multinational Yugoslav federation, the international community saw through the Serb propaganda and denounced the transparent Serb hegemonic intentions. When Muslim nationalists in Bosnia-Herzegovina suddenly began to promote a newly independent multinational state, the international community naively accepted this rhetoric while the Muslim leaders pursued their own hegemonic interests. It is striking how the idea of a multinational Bosnia-Herzegovina gained the widespread approval of an international community that readily accepted the dissolution of the multinational former Yugoslavia. The numerous commentators and observers who insist on the preservation of Bosnia-Herzegovina's territorial integrity, while invoking international principles, do not understand that the recognition of this state had nothing to do with respect for international law. Even after three years of fighting between the three consitutent nations, the international news media continues to portray the Muslim-controlled government in Sarajevo as a legitimate representative of a Bosnia-Herzegovina that is genuinely committed to multinational coexistence. [FN87] The myth of an existing and genuine multinational government based in Sarajevo has only served to obscure the real political actors in this conflict. [FN88] It is time to recognize that the international community inappropriately involved itself in a dirty civil war that, not surprisingly, included atrocities and political manipulation. [FN89] Positive contributions to ending the armed conflict must acknowledge that while a multinational state with Croats, Serbs and Muslims living harmoniously together would have been an inspirational example of coexistence, the reality is that these warring nations have to be separated. [FN90] The tragic consequences of the international community's diplomatic intervention have only worsened the fate of the violently uprooted inhabitants of Bosnia-Herzegovina.
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[FNa]. Atle Grahl-Madsen Fellow in Law, Centre for Refugee Studies, York University. B.A. (McGill University, 1989), LL.B. (Universit de Montral, 1992), LL.M. (Osgoode Hall Law School, 1995). The author is grateful to the Centre for Refugee Studies for its support. Special thanks are due to family members and friends. [FN1]. See Amiral Antoine Sanguinetti, L'oubli choquant du droit international: Faux- fuyants europens en Bosnie, Le monde diplomatique, Jan. 1995, at 3 (noting that the international community was unwilling to militarily enforce Security Council resolutions). [FN2]. Conference on Yugoslavia Arbitration Commission Opinion No. 4, 31 I.L.M. 1501 (1992). [FN3]. Paul Garde, Vie et mort de la yougoslavie 116 (1992). [FN4]. Id. The figures for the uncompleted 1991 census were established in the context of ethnic-nationalist tensions and state dissolution: 17.3% Croats, 31.4% Serbs, 43.7% Muslims and 5.5% Yugoslavs. For statistics on the region's population during the last two centuries, see, e.g., Georges Castellan, Histoire des balkans 316 (1991) (citing statistics for religious population in former Yugoslavia in 1807-1808); Ivo Banac, The National Question in Yugoslavia 361 (1984) (citing statistics for religious population in former Yugoslavia in 1910); Xavier Bougarel, Bosnie- Herzgovine: anatomie d'une poudrire, Hrodote, no. 67, 1992, at 89 (organizing statistics reflecting the religious and ethnic populations in the former Yugoslavia between 1879 and 1991). In general, it appears the Serb population has slowly decreased over the last two centuries, while the Muslim population has slowly been increasing in number. See also Lenard J. Cohen, Broken Bonds: Yugoslavia's Disintegration and Balkan Politics in Transition 139 (1995) (noting figures on the composition of the region's population in 1991). [FN5]. See generally Constitution of Bosnia-Herzegovina. [FN6]. Id. The Communist Party actually began recognizing a distinct Muslim nation in the late 1960s: An official of the Central Committee of the Bosnian Communist Party officially proclaimed in 1968 that Muslims, as our socialist praxis demonstrates, are a distinct nation.' Le Monde, March 29, 1969, at III, cited in Alexandre Popovic, Les musulmans yougoslaves 25 (1990) (hereinafter Popovic). See Misha Glenny, The Fall of Yugoslavia 141 (1993): In the 1960s, young Moslem graduates and professionals were able to articulate the needs and requirements of their community as a distinct entity within Yugoslavia for the first time The student unrest which swept Europe in 1960 found a powerful resonance in Sarajevo, where for the first time young Moslems were able to force concessions from the Party which grudgingly admitted that their people fulfilled the requirements of a Yugoslav nation. [FN7]. The following historical account provides insight on t he recent nature of this nationalist sentiment among Muslims: (D)espite its total mastery of the Bosnian Muslim community (following the First World War), the JMO (Yugoslav Muslim Organization) could not present itself as the representative of a formed national group, the notion of a separate Bosnian Muslim nationhood being unacceptable not only to the Serbs and Croats but to the Muslim leaders themselves. Banac, supra note 4, at 371. [FN8]. See Daniel Vernet & Jean-Marc Gonin, Le rve sacrifi: Chroniques des guerres yougoslaves 98 (1994) ((T)he Ottoman Empire granted privileges to those who embraced the Prophet's religion: fiscal advantages, positions in the administration, and even titles of nobility. This allowed Bosnian Muslims to comprise the the Bosnian elite right through today.).
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[FN9]. See Jesmo li Srbi ili Hrvati? (Are We Serbs or Croats?), Pravda, Dec. 30, 1920, at 1, cited in Banac, supra note 4, at 374 n.33 (observing the Bosnian failure to produce a new hybrid nationality). [FN10]. See Mark Pinson, The Muslims of Bosnia-Herzegovina Under Austro-Hungarian Rule, 1878-1918, in The Muslims of Bosnia-Herzegovina 89 (Mark Pinson ed., 1993) (discussing the substitution among Bosnian Muslims of religion for national identity). [FN11]. The Austro-Hungarian Empire failed in trying to create a specific Bosnian nationhood (encompassing Muslims, Serbs and Croats) when they controlled the region following the Treaty of Berlin (1878) until the First World War. Id. at 88. Ever since the Ottoman Empire left the region in 1878, the growing nationalism among Serbs and Croats has placed the issue of nationhood at the forefront of political tensions in Bosnia-Herzegovina. A multinational Bosnian identity has never officially emerged, despite the region's distinctive character: The Austro-Hungarian Civilian Administration of Bosnia-Herzegovina has decided to promote a specific Bosnian national conscience; it thought it could rally the Muslims from whom faith in the Koran had encaptured all memory of the historical background. This attempt turned out to be artificial and in vain. The more the conflicts of nationality multiplied in the Habsburg Empire and in the Balkans, the more Bosnia-Herzegovina strengthened the double equation, Catholic equals Croat, Orthodox equals Serb, while the Muslims formed a separate core for which national identity remained problematic. Castellan, supra note 4, at 350. See Banac, supra note 4, at 360 (noting attempts to foster a separate Bosnian nationhood); Pinson, supra note 10, at 103 (discussing Austrian attempts to introduce an official Bosnian identity). [FN12]. When referring to followers of the Islamic faith, local languages use a small m. Glenny, supra note 6, at 141. Theoretically, people in Bosnia-Herzegovina could therefore declare themselves as Muslim atheists, Muslim catholics, etc. [FN13]. Muslims have often been designated as Bosnians who are defending Bosnia against Serb or Croat attacks. This, in turn, has led to the erroneous suggestion that the conflict in Bosnia-Herzegovina is purely an example of foreign aggression. One year after the outbreak of hostilities, the United States Secretary of State was playing an active role at international negotiations on the crisis, unaware that the Serbs were as Bosnian as the Muslims: David Owen is astonished by a reproach from Warren Christopher: The Serbian invasion is the fault of the Europeans. You should have prevented the Serbs from entering Bosnia. He understands that the Secretary of State does not know that 1,300,000 Serbs live in Bosnia. Take a look at the map, the Euorpean mediator tells him, the Serbs live here. Vernet & Gonin, supra note 8, at 163. [FN14]. Tito's Communists created the former Yugoslav Republic of Bosnia-Herzegovina when they decided at the end of the Second World War to join two distinct geographic regions in order to form one of the constituent Republics of the new Communist Yugoslavia. [FN15]. See Garde, supra note 3, at 292 (showing that the makeup of the body included: SDA (Muslim): 86 parliamentary seats; SDS (Serb): 72; HDZ (Croat): 44; Communists (multinational): 20; Markovic's Reformist Party (multinational): 13). [FN16]. Glenny, supra note 6, at 147. Driving across Bosnia in 1990 just prior to the elections afforded me a brief glimpse into the republic's miserable future. One village drowning in a sea of green crescents, which proclaimed the (Moslem)
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Party of Democratic Action (SDA), would give way to another, where the s ahovnica (denoting the Croatian Democratic Union) was sovereign, or where every wall was covered with the four Cs and the acronym SDS (the Serbian Democratic Party). In some villages, the western half was green while the eastern half was red, white and blue (Serbian) while in many towns it was easy to identify the predominantly Croat, Serb or Moslem districts. Many doomed settlements were a jumble of all three. Id. [FN17]. The leader of the Muslim nationalist party, Alija Izetbegovic, became the President of the Republic's Presidency, while Momcilo Krajisnik (Serb) became the parliamentary President and Jure Pelivan (Croat) became the Prime Minister. Garde, supra note 3, at 292-93. [FN18]. Constitution of Bosnia-Herzogovina, arts. 1, 2, 3. [FN19]. See Glenny, supra note 6, at 153 ( (T) he local (Bihac) SDA leadership had begun a purge of Serb officials who controlled many state enterprises. This was the normal practice throughout BiH. The dominant party in the region would undertake a purge of the administration although it was never as severe as the HDZ purge of Serbs in Croatia.). See also Robert M. Hayden, Constitutional Nationalism in the Formerly Yugoslav Republics, 51 Slavic Rev. 654, 661 (1992) (noting the victorious part of the majority ethnic group took absolute control over local government, purging all not of their nation). [FN20]. Mihailo Crnobrnja, Le drame yougoslave 176-77 (1994). [FN21]. See Glenny, supra note 6, at 165 (noting that Serbian MPs had walked out of the parliament and formed their own nearby). [FN22]. Bougarel, supra note 4, at 144. [FN23]. Id. [FN24]. Glenny, supra note 6, at 151. In August (1991), . . . the (Yugoslav) federal Prime Minister . . . leaked a tape conversation between President Milosevic (of Serbia) and General Nikola Uzelac, who ran the Banja Luka corps of the JNA (Yugoslav People's Army) . . . . During this conversation, Milosevic ordered Uzelac to release weapons to the leader of the SDS (Serb nationalist party in Bosnia-Herzegovina), Radovan Karadzic. Id. [FN25]. See id. (noting President Izetbegovic's concern over the presence of the JNA in Bosnia). [FN26]. Jean-Arnault Derens, La Bosnie-Herzgovine, in La fragmentation de la yougoslavie 42 (Catherine Samary ed., 1992); Glenny, supra note 6, at 151-152. [FN27]. Alain Pellet, Note sur la commission d'arbitrage de la confrence europenne pour la paix en yougoslavie, 37 Annuaire francais de droit international 329, 332 (1991). [FN28]. Marc Weller, The International Response to the Dissolution of the Socialist Federal Republic of Yugoslavia, 86 Am. J. Int'l L. and Pol'y 569, 587 (1992). [FN29]. As a senior European diplomat who served as the assistant to Lord Carrington (Chairperson of the EC's Peace Conference on Yugoslavia) has stated: The decision to ask Bosnia-Herzegovina if it wanted independence, was, according to Carrington, a tragic error.' Henry Wynaendts, L'engrenage - Chroniques yougoslaves 154 (1993). See Report of the Secretary General Pursuant to Security Council Resolution 721, UN Doc. 23280-21 (Dec. 1991) (relaying fear that early, selective recognition could widen the present con-
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flict and fuel an explosive situation . . . .). [FN30]. Vernet & Gonin, supra note 8, at 78-85; Wynaendts, supra note 29 at 151. [FN31]. European Community: Declaration on Yugoslavia and on the Guidelines on the Recogniztion of New States (December 16, 1991), in 31 I.L.M. 1485, 1486 (1992). The Community and its member States agree to recognize the independence of all the Yugoslav Republics fulfilling all the conditions set out below. The implementation of this decision will take place on January 15, 1992 . . . The applications of those Republics which reply positively will be submitted through the Chair of the Conference to the Arbitration Commission for advice before the implementation date. Id. [FN32]. Vernet & Gonin, supra note 8, at 86; Glenny, supra note 6, at 163-164. [FN33]. Conference on Yugoslavia Arbitration Commission, Opinion No 5, in 31 I.L.M. 1503, 1505 (1992). Notably, the human rights legislation did not accord sufficient autonomy to the Serb inhabitants who were supposed to be protected by provisions relating to an agreed special status. [FN34]. Vernet & Gonin, supra note 8, at 86. [FN35]. Id. at 22. See Glenny, supra note 6, at 191-192 (relating the difficulty that the United Kingdom had in accepting Germany's decision). According to one senior Foreign Office (FO) official, the British government had still not decided two days before the official recognition date, 15 January, whether to accept the German position or not. There were two lines of thinking inside the FO. The first, centered on the Embassy in Belgrade, argued flatly against recognition. The second, known as the Brussels lobby, maintained that because Germany had afforded Britain so many concessions at Maastricht then it would be churlish to oppose Germany's main foreign policy concern of the early 1990s, particularly as Britain's interest in Yugoslavia was limited. Id. [FN36]. See Vernet & Gonin, supra note 8, at 35 (describing Chancellor Kohl's decision to capitulate to German public pressure and recognize Croatia although he acknowledged that it would not solve anything). [FN37]. Conference on Yugoslavia Arbitration Commission, Opinion No. 4, in 31 I.L.M. 1501 (1992). [FN38]. Id. at 1503. [FN39]. Id. [FN40]. Id. (emphasis added). [FN41]. Regrettably, it appears some commentators have not actually read the opinion. Several authors have described the opinion in a manner suggesting that the Arbitration Commission was not particularly troubled about the legitimacy of the request for recognition and that a referendum with a simple majority would suffice for independence to be recognized. See James B. Steinberg, International Involvement in the Yugoslavia Conflict, in Enforcing Restraint: Collective Intervention in Internal Conflicts 41 (Lori Fisler Damrosch ed., 1993) (suggesting that EC criteria had been met); Crnobrbja, supra note 20, at 147 (suggesting a simple majority would suffice for independence to be recognized). [FN42]. Florence Hartmann, Le Parlement de Bosnie-Herzgovine a dcid d'organiser un rfrendum sur l'indpendence, Le Monde, Jan. 28, 1992, at 3.
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[FN43]. Wynaendts, supra note 29, at 153. The group within the Croat nationalist party which received the backing of the government of Croatia (Mate Boban's group) created their own state in western Herzegovina several months later. In the meantime, however, an objective need existed for the Croats to ally with the Muslims in order to separate from Yugoslavia, which at that point was clearly Serb-controlled. Nevertheless, this did not prevent the Croats from organizing their own military units which were not under the Muslim president's command. The more moderate group of the Croat nationalist party (Stjepan Kljuic's group) which favoured the unity of Bosnia- Herzegovina was removed from the party's leadership several weeks before the referendum. [FN44]. Tim Judah & James Bone, Sarajevo Erupts After Vote for Independence, London Times, Mar. 3, 1992, at 1. [FN45]. Vernet & Gonin, supra note 8, at 95. [FN46]. See Tihomar Loza, Separation Anxiety, in Yugofax, Breakdown: War & Reconstruction in Yugolslavia 29 (1992) (asserting that despite the efforts of progressive individuals who wanted to maintain a multinational Bosnia-Herzegovina, the nationalist tensions cannot be ignored along with the fact that no significant pluralist political force emerged). This mutual distrust naturally helps the chauvinist forces stay in power. But even a unified opposition would be at a disadvantage against the three national parties, with their fantastic amounts of arms and money, network of clerical support, and likely backing from abroad. The established parties can pretty well smash all anti-nationalist movements. This was proved during the tense days of the barricades following the independence referendum. What the Serbian Democratic Party (SDS) accomplished on its own in Sarajevo on March 2 and achieved with the help of the Muslim Party for Democratic Action (SDA) on March 3 proves that the war . . . can be started whenever the leaders deem it necessary. Id. [FN47]. For an example of the Muslim nationalist party's religious component, see President Izetbegovic's Islamska Deklaracija (Islamic Declaration), published in Sarajevo by the Mala Muslimanska Biblioteka in 1990. This politicized Islamic text written in 1970 and widely distributed during the 1990 elections, includes the following phrases: Our goal: Islamization of Muslims . . . .; There can be no peace or coexistence between Islamic faith and non-Islamic institutions . . . .; The Islamic movement must and can take power as soon as it is morally and numerically strong enough, not only to destroy the non-Islamic power, but to build up a new Islamic one. (Author's own translation). For an attempt at presenting Izetbegovic's Islamic Declaration in a most favorable light that ignores the context of the rising Islamic activism in the Arab world during the 1960s and 1970s, see Ivo Banac, Bosnian Muslims: From Religious Community to Socialist Nationhood and Postcommunist Statehood, 1918-1992, in The Muslims of Bosnia-Herzegovina 147-148 (Mark Pinson ed., 1993). Izetbegovic's lifelong Islamic activism has resulted in his imprisonment on two separate occasions: first in 1946 for the creation of the journal Mudzahid and then in 1983 following the well-known Sarajevo Trial which represented the culmination of an abusive crackdown on certain Muslim nationalist excesses. See, e.g., Vernet & Gonin, supra note 8, at 180; Garde, supra note 3, at 293; Popovic, supra note 6, at 35-40, 66. [FN48]. See For Sarajevo 65 (Ammiel Alcalay ed., 1993) (describing posters warning against the ever present threat of Islamic daggers and phrases such as: Podijelimo se s to je prije moguce! (Separate yourselves as soon as possible!)). [FN49]. Although the following passage regards the historical dominance of Serbs in multinational Yugoslavia, it can just as easily apply to the position of Muslims in multinational Bosnia-Herzegovina: (T)he ruling elite indulges in overbearing violations of national equality in favor of one - usually the most numerous - constituent nationality (hegemonism), promotes supranational ideologies (often ersatz
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nationalism), or suggests, at least, the benefits of union, sometimes implying that the national criteria are an inferior means of political organization. Banac, supra note 4, at 30. [FN50]. Glenny, supra note 6, at 149 (Alija Izetbegovic and the Moslem leadership also bear a historical responsibility for the breakdown of the consensus between the three Bosnian communities, for they were the first to organize a political party, the SDA, along nationalist lines on 26 May 1990.). [FN51]. See Jacques Merlino, Les verits yougoslaves ne sont pas toutes bonnes dire 151 (1993) (relaying that following his trip to Tehran in 1991, President Izetbegovic attended the Istanbul meeting of the Organization of the Islamic Conference in August 1991 and that by November 1991, the Turkish government was proposing to form and train an army in Bosnia-Herzegovina that would be loyal to President Izetbegovic); Vernet & Gonin, supra note 8, at 101 (recounting a chance encounter between French diplomats and Izetbegovic in Iran during the spring of 1991). [FN52]. See Derens, supra note 26 (reporting the division of Bosnia-Herzegovina into three national regions in an effort to reach an agreement among nationalist leaders). Although the details and viability of this option remain unclear, it is important to retain that agreement among the three parties is central to any solution. [FN53]. See #Etienne Copeaux & Stphane Yerasimos, Le Bosnie vue du Bosphore, Hrodote, no. 67, 1992, at 151-159 (examining the shift in regional powers due to the collapse of the former Soviet Union and Yugoslavia, particularly with regard to increased Islamic presence). [FN54]. Paul-Marie de la Gorce, Les risques d'extension du conflit en Bosnie, Le monde diplomatique, Jan. 1993, at 9. See Paul-Marie de la Gorce, La crise yougoslave prise en main par Washington, Le monde diplomatique, Apr. 1994, at 11 (noting the Islamic world's interest in the Bosnian conflict). [FN55]. As (President) Turgut Ozal said during a trip to Washington in May 1992, the fluid situation in the Balkans has presented Turkey with a once-in-a-lifetime opportunity for Turkey to restore its economic, diplomatic and cultural influence among Moslem vestiges of the Ottoman empire' . . . While showing the appropriate diplomatic interest in countries like Poland, Czechoslovakia, Hungary and Romania, Washington has developed its relations with Sofia, Tirana and (tacitly) with Skopje with an unparalleled zeal since the collapse of communism in the three republics. The central focus of US policy is Turkey, which Washington recognizes as a major regional power with considerable potential for expansion. Glenny, supra note 6, at 240-41. The extraordinary developments in Albania since the fall of communism should be kept in mind since they contribute to Balkan tensions and reflect the recent geo-political developments in the region. From a strictly secular and anti-capitalist isolated totalitarian state, Albania now has strong ties with the US--including a reorganized Army assisted by the Pentagon--and is a member of the Organization of the Islamic Conference. See Second Phase of Army Restructure Completed, Balkan News, Oct. 24, 1993, at 5 (discussing the potential significance for democracy and Albanian independence in light of Abania's efforts to restructure its army); Albania Should Probably Rethink its Position, Balkan News, Nov. 7, 1993, at 4 (outlining Albania's new ties with the US). [FN56]. See David Gompert, How to Defeat Serbia, 73 Foreign Aff., July/Aug. 1994, at 32 (providing a commentary by the former Senior Director for Europe and Eurasia on the Bush administration's National Security Council Staff in which the suggestion that the US was not interested or lacked solid information on the situation in Bosnia-Herzegovina is dismissed as simply not true). Contrary to a widely held view, the Bush administration was well aware of the dangers in Yugoslavia prior to the crisis. It simply knew of no way to prevent a violent disintegration. National Security Advisor Brent Scowcroft and Deputy Secretary of State Lawrence Eagleburger, among others, under-
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stood Yugoslavia and its volcanic nature. Id. at 32. [FN57]. David Binder, U.S. Policymakers on Bosnia Admit Errors in Opposing Partition in 1992, N.Y. Times, Aug. 29, 1993, at 10. Immediately after Mr. Izetbegovic returned from Lisbon, (Ambassador) Zimmermann called on him in Sarajevo. The Bosnian leader complained bitterly that the European Community and Bosnian Serbs and Croats had pressured him to accept partition. He didn't like it,' Mr. Zimmermann recalled. I told him, if he didn't like it, why sign it?' In retrospect, Mr. Zimmermann said in a recent interview, the Lisbon agreement wasn't bad at all.' But after talking to the Ambassador, Mr. Izetbegovic publicly renounced the Lisbon agreement. Ambassador Zimmermann has claimed in a letter published in the N.Y. Times that he was misinterpreted. Letter from Ambassador Zimmerman, N.Y. Times, Sept. 30, 1993, at A24. [FN58]. Binder, supra note 57, at 10. The Bush Administration pushed ahead with its plan for recognition. The policy was to encourage Izetbegovic to break with the partition plan, said a high-ranking State Department official who asked not to be identified. It was not committed to paper. We let it be known we would support his Government in the United Nations if they got into trouble. But there were no guarantees, because (Secretary of State) Baker didn't believe it would happen. Id. [FN59]. Glenny, supra note 6, at 166-167; Vernet & Gonin, supra note 8, at 96; Crnobrnja, supra note 20, at 177-178. See Bougarel, supra note 4, at 145 (diagramming the Muslim nationalist party's cantonization proposal). In a similar manner, further negotiations and one more agreement reached in the following weeks ultimately collapsed. These were not the first occasions in which President Izetbegovic had backed down from agreements concerning future constitutional arrangements for Bosnia-Herzegovina. In fact, he has acknowledged in a conversation with Adil Zulfikarpasic (who was the co-founder along with Izetbegovic of the first Muslim nationalist party in 1990 but later left the party in order to become leader of the opposition Muslim Bosnian Organization) his reputation for untrustworthiness among the Serbs that resulted from his repudiation of a well-known statement he made in 1991 showing support for transforming Yugoslavia into a confederation in order to avoid conflict among the consitutent Republics. What is less well-known outside Bosnia-Herzegovina is that Muslim nationalists denounced him as a sell-out and a Serb following this statement. Consequently, he quickly renounced his support for a confederation and embarked on an independence trajectory increasingly influenced by the clerical and anti-Serb elements of his party. By refusing to sign a historic agreement (Istorijskog sporazuma) negotiated between Zulfikarpasic and the leaders of the Serb nationalist party in July 1991, President Izetbegovic undermined any real chance for the continuation of multinational coexistence in Bosnia-Herzegovina. The local population approved of this agreement which had the crucial approval of Serbia's President Milosevic and had temporarily calmed Serb insecurities and paranoid fears of subjugation. Nonetheless, President Izetbegovic refused to sign the historic agreement even though he had admitted that Zulfikarpasic was negotiating on his behalf. See Milovan Djilas, Bos njak Adil Zulfikarpasic 203-230 (1995) (relating an interview between Milovan Djilas and Adil Zulfikarpasic on the situation in Bosnia- Herzogovina). [FN60]. Lewis MacKenzie, Peacekeeper - The Road To Sarajevo 118 (1993). [FN61]. U.N. SCOR, 3,049th mtg., Annex U.N. Doc. S/23280 (1991) reprinted in 31 I.L.M. 1427, 1442. UNPROFOR's military command advised against the establishment of the headquarters in Sarajevo since it would be located too far from the troops in Croatia.
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[FN62]. Lewis Mackenzie, World Focus on Bosnia: Tragic Errors, Maclean's, Dec. 12, 1994, at 35. [FN63]. Id. [FN64]. Glenny, supra note 6, at 167. The Serbs were not the only ones who resorted to aggressive and bellicose statements. Prior to the armed conflict, one of the most influential members of the Muslim nationalist party, Omer Behmen, did not hide that his party was arming the Muslim inhabitants of Bosnia-Herzegovina and spoke admiringly of two Muslim paramilitary organizations: the Green Berets and the Patriotic League. Milovan Djilas, Bosn jak Adil Zulfiskarpasic 203-30 (1995), reprinted in Dialogue, 1995, at 53. Another popular member of the Muslim nationalist party with strong ties in the Arab world is Foreign Affairs Minister Haris Silajdzic (who later became Prime Minister after the war started), who warned that if the Yugoslav People's Army did not leave Bosnia-Herzegovina following the independence referendum, it would be thrown out. Vernet & Gonin, supra note 8, at 181. [FN65]. Amnesty International, Report on Bosnia-Herzegovina: Gross Abuses Of Basic Human Rights 7 (Oct. 1992). [FN66]. Vernet & Gonin, supra note 8, at 96-97. [FN67]. Binder, supra note 57, at 10; John Palmer, US Forces Early Move on Bosnia, Guardian, Mar. 10, 1992, at 8. There are, of course, many simple and unconvincing explanations as to why the US was so interested in having Bosnia-Herzegovina recognized, especially after having encouraged the EC to assume leadership in the Yugoslav crisis and having opposed Croatian recognition. When a two-thirds majority of Bosnians - made up of Muslims and Croats, with Bosnia's Serbs boycotting - voted for independence, the United States pressured the EC to recognize Bosnia in exchange for United States recognition of Slovenia and Croatia. Recognition of Bosnia did not precipitate the use of force by the Bosnian Serbs any more than it deterred it. Very simply, Bosnian Muslims would not stay in a Yugoslavia dominated by Serbia, and Bosnian Serbs would not stay in a Bosnia dominated by Muslims. In any case, there was no legal basis for the United States to recognize Croatia but not Bosnia-Herzegovina. Gompert, supra note 56, at 36-37. See Steinberg, supra note 41, at 41-42 (providing a naive explanation for the US position). [FN68]. Crnobrnja, supra note 20, at 211. [FN69]. Muhamed Filipovic, Conditions et circonstances du maintien de la paix en Bosnie-Herzgovine, in La fragmentation de la yougoslavie 43 (Catherine Samary ed., 1992) (providing a description written by one of the leaders of the main Muslim opposition party (Muslim Bosnian Organization) just before the outbreak of hostilities in which the chaos regarding the control of governmental institutions is described). [FN70]. Glenny, supra note 6, at 177. None of these people (members of the Presidency) had a constitutional mandate - parliament had been dissolved illegally before it had agreed to grant the Presidency emergency powers. The government still existed but . . . the cabinet wielded no authority. Its members were window-dressing, fashioned to give the impression of legality where none existed. Id. [FN71]. Jean-Franois Kahn, Bosnie: L'histoire d'une manipulation, L'venement du jeudi, Aug. 24-30, 1995, at 11. [FN72]. John Dugard, Recognition and the United Nations 7 (1987).
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[FN73]. Although one should note that international law does not require that a government hold power in conformity with internal constitutional provisions. The applicable principle is non-interference in the internal matters of a state. [FN74]. Criteria for recognizing a state include whether it has effective control over a defined territory and population, an organized governmental administration and the capacity to act effectively to conduct foreign relations and to fulfill international obligations . . . International law does not require recognition of a state, even when these conditions are met. Thomas Buergenthal & Harold G. Maier, Public International Law in a Nutshell S 8-4 (2d ed. 1990). [FN75]. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. U.N. Charter art. 4 (emphasis added). Despite these clear requirements, the UN Security Council recommended to the General Assembly that the UN admit Bosnia-Herzegovina as a member. S.C. Res. 755, U.N. SCOR, 47th Sess., 3079th mtg., U.N. Doc. S/RES/755 (1992). The General Assembly admitted Bosnia-Herzegovina as a UN member state on May 22, 1992 by its Resolution 237(XLVI). G.A. Res. 237, U.N. GAOR, 47th Sess., Supp. No. 49A, U.N. Doc. 46/237 (1992). [FN76]. It is unfortunate that it has taken some influential newspapers several years before they started publishing articles acknowledging the controversial conditions under which the international community recognized Bosnia-Herzegovina's independence: On such treacherous ground, prudence is a virtue. The consent of all three Bosnian nations was clearly a precondition for independence without war. But distracted by other matters then viewed as more pressing, the United States and Europe tried to will Bosnia into being as an independent state without the consent of its Serbs. Roger Cohen, Bosnia - Where Facts Strangle Principles, N.Y. Times, Aug. 14, 1994, at E3. [FN77]. Michel Roux, propos de la purification ethnique en Bosnie-Herzgovine, Hrodite, no. 67, at 58 (1992). [FN78]. The observations of the former special envoy of the UN High Commissioner for Refugees in the former Yugoslavia shed some perspective on this situation. In Bosnia, as early as April 1992, it became obvious to UNHCR that one of the basic characteristics of the conflict was that civilian displacement was not a consequence, but an objective of the war (a finding that we reported early on). Jos-Maria Mendiluce, War and Disaster in the Former Yugoslavia: The Limits of Humanitarian Action, in U.S. Committee for Refugees, World Refugee Survey 1994, at 13. [FN79]. Robert M. Hayden, U.S. Efforts to Resolve Balkan Crisis Have Only Added to Muslims' Losses, Sun-Sentinel, Feb. 9, 1994, at 19. [FN80]. Kahn, supra note 71, at 11-12. This became evident after the nationalist and chauvinist actors brushed aside the only progressive political forces in Bosnia-Herzegovina. [FN81]. William Zimmerman, Migration and Security in Yugoslavia, in International Migration and Security 79-80 (Myron Weiner ed., 1993). [FN82]. That's why borders, and the movements of individuals and groups across borders, are bitterly disputed as soon as imperial rule recedes and nations begin the process of liberation. And, once again, to re-
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verse this process or to repress its effects would require massive coercion on a global scale. There is no easy way to avoid the country (and the proliferation of countries) as we currently know it. Hence the theory of justice must allow for the territorial state, specifying the rights of its inhabitants and recognizing the collective right of admission and refusal. Michael Walzer, Spheres of Justice 44 (1983). [FN83]. Globalism in a post-imperial age only permits a post-nationalist consciousness for those cosmopolitans who are lucky enough to live in the wealthy West . . . . It is only too apparent that cosmopolitanism is the privilege of those who can take a secure nation state for granted . . . . At the very least, cosmopolitan disdain and astonishment at the ferocity with which people will fight to win a nation state of their own is displaced. They are, after all, only fighting for a privilege cosmopolitans have long taken for granted. Michael Ignatieff, Blood & Belonging: Journeys into the New Nationalism 9 (1993). [FN84]. Id. at 26. The following account, given by a BBC Correspondent, is also useful in understanding how ethnic cleansing tragically became the norm: I took a short walk with a local Serb policeman to discuss the situation with him. He confirmed the countless observations which I had made when talking to local fighters of all nationalities - he was not a man of evil. On the contrary, he explained how he found it very difficult to shoot at the other side of his village, because he knew everybody who lived there. But the war had somehow arrived and he had to defend his home. The man was confused and upset by the events but he now perceived the Green Berets and the Ustashas to be a real threat to his family. Glenny, supra note 6, at 173-74. [FN85]. Ignatieff, supra note 83, at 26. See Aleksa Djilas, Fear Thy Neighbor: The Breakup of Yugoslavia, in Nationalism and Nationalities in the New Europe 99 (Charles A. Kupchan ed., 1995) (pointing out that since Bosnia's Parliament, courts, press, and police had no authority as impartial institutions, affiliation with one's national group emerged as the only source of protection, whether of one's human rights or physical security). [FN86]. See Boutros Boutros-Ghali, Preventive Diplomacy, An Agenda for Peace 13-19 (1992) (documenting diplomatic precautions and actions necessary to avoid political conflict); Prevention, The State of the World's Refugees 121-137 (1993) (outlining early political steps for the prevention of national conflicts which might generate refugees). [FN87]. Some observers who had initially believed in the sincerity of President Izetbegovic's commitment to multinationalism changed their opinion soon after the outbreak of hostilities: Let's not kid ourselves either about the nature of the (Muslim-controlled) Bosnian government . . . . It is only to the outside world that the Bosnian government maintains the fiction of its multiethnic' character, for the obvious reason that a multiethnic state is more likely to get international aid. George Kenney, A Forced Peace Is Worth Trying, L.A. Times, Feb. 6, 1994, at M5. See Rmy Ourdan, La fin du rve bosniaque - Les dirigeants musulmans donnent le coup de grce l'espoir d'un tat multiethnique, Le Monde, Sept. 28, 1994, at 1 (discussing the implementation of Islamic rules in government-controlled areas). Surprisingly, some observers continued after several years to believe the pluralist declarations of Bosnia-Herzegovina's Muslim-controlled government. Unfortunately, the international news media rarely questioned the statements made by frequently interviewed representatives such as the Foreign Affairs Minister Muhamed Sacirbey who claimed to be protecting an ideal of multinational tolerance. The fact that Sacirbey, an American citizen, is the son of an Islamic activist (Nezid Sacirbegovic, recently appointed as an Ambassador for Bosnia-Herzegovina) who left Yugoslavia after being convicted together with Izetbegovic in 1946, makes him an unconvincing spokesman for genuine multinational coexistence in Bosnia-Herzegovina. See also Vernet & Gonin, supra note 8, at 181
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(describing Sacirbey's problematic background). Surely, Sacirbey's support for the Parliament's vote to assure that only a Muslim (and member of Izetbegovic's party) can become President as long as a state of war exists indicates an agenda carefully hidden from the outside world: But earlier this month the Parliament, which is controlled by the governing party, changed the Constitution, taking over from the Executive Council the power to replace members of the presidency who are unable to continue in their posts. Parliament also determined that while the war lasts, the council president, currently Mr. Izetbegovic, must be a Muslim and a party member. Mike O'Conner, Split Divides President and Premier In Bosnia, N.Y. Times, Aug. 16, 1995, at A8. [FN88]. The myth of a genuinely multinational political force in Bosnia-Herzegovina has received considerable academic support. John V.A. Fine, The Medieval And Ottoman Roots of Modern Bosnian Society, in The Muslims of Bosnia-Herzegovina 2, 21 (Mark Pinson ed., 1993). One third of the Territorial Defense Forces of Sarajevo, including its second in command, is Serb. Thus Serbs (and Croats too) are on both sides. And both Croats and Serb chauvinists want to depict the conflict as an ethnic war - to justify their states' territorial expansion, to demean the Bosnian cause by making it seem as if it too were just one more narrow ethnic one, and also to label it ethnic Muslim to stir fears of the Turkish past and of Muslim fundamentalism . . . the Bosnian cause is not simply a Muslim cause but a cause that includes all three nationalities, and it includes Bosnia's Serbs and Croats along with Muslims. Yugoslavs of all ethnic groups should see that the true interest of their respective nationalities is represented by the Bosnian cause, that rises above the divisive chauvinism. The cause of Serbs and Croats is not represented by the ethnic militias running around Bosnia and Herzegovina claiming to speak for their respective peoples. The true Serbian cause is that of the Bosnians. Id. (emphasis added). While the suggestion that chauvinist Serbs and Croats have tried to manipulate public opinion against the Muslims is correct, a detailed examination of the nationalist tensions should make it clear that very few non-Muslims would willingly participate in the armed forces under President Izetbegovic's command). Indeed, observers believe that the recognized government's army included 13% Serbs at the beginning of the conflict and that this number dropped to around 3-6% after several months of fighting (this percentage includes Serb males used for forced labor). Cohen, supra note 4, at 322. [FN89]. So the West and Bosnian Muslims would have to admit they were wrong to try to force their new Bosnia down the throats of Bosnian Serb Christians. If admitting errors to gain peace damages the credibility of Western diplomats and politicians, that seems a bearable price for ending a war that should never have started. A.M. Rosenthal, Bombs for Bosnia, N.Y. Times, July 21, 1995, at A25. [FN90]. Of course it would be preferable to have a pluralistic, multi-ethnic Bosnian society and state, where everyone lives together. But the parties had that once. It was called Yugoslavia, and the Serbs, Muslims and Croats all helped to rip that state apart. That is why the only way to stabilize things now is to divide Bosnia among them . . . . Neither the (US) Administration nor the Congress wants to recognize what the Europeans already have - that the ideal multi-ethnic, democratic Bosnia, if it were ever possible, cannot be achieved now. The only way to achieve it would be to force the Serbs, Muslims and Croats to live together under one roof, which they demonstrably do not want to do. None of the parties right now are fighting to live together. They are each fighting for ethnic survival or independence. We can lament the idea of a multi-ethnic, pluralistic Bosnia but we cannot build it from the raw material at hand. The only sane thing left is to stop the killing and build the least bad peace around the Bosnia we have, which is one in which Serbs, Croats and Muslims live apart until they can learn again to live together. Thomas L. Friedman, Fire, Ready, Aim, N.Y. Times, July 30, 1995, at 15.
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11 Am. U. J. Int'l L. & Pol'y 767 END OF DOCUMENT
94 CLMLR 331 94 Colum. L. Rev. 331
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Columbia Law Review March, 1994 TAKING SUBSIDIARITY SERIOUSLY: FEDERALISM IN THE EUROPEAN COMMUNITY AND THE UNITED STATES George A. Bermann [FNa1] Copyright (c) 1994 by the Directors of The Columbia Law Review Association, Inc.; George A. Bermann Table of Contents
Introduction I. Subsidiarity and the European Community A. Toward Clarity about Subsidiarity 1. Self-determination and Accountability 2. Political Liberty 3. Flexibility 4. Preservation of Identities 5. Diversity 6. Respect for Internal Divisions of Component States B. Subsidiarity and the European Community Treaties C. Subsidiarity and the Evolution of Community Federalism 1. The Court of Justice and its Supranationalist Creation 2. New Elements in Community Federalism a. Widening the Community Terrain
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i. The Enumeration of Community Powers ii. Preemption of Member State Law iii. The Elasticity of Community Powers b. The Community's New Institutional Dynamics c. The Maastricht Environment II. Putting Subsidiarity into Practice A. The European Council Guidelines B. Subsidiarity in the Community Tradition C. Subsidiarity as a Mode of Legislative Analysis 1. Institutional Aspects of Subsidiarity 2. Distinguishing Policy Measures and Harmonization Measures 3. Subsidiarity and Proportionality D. Subsidiarity and the Court of Justice 1. Subsidiarity as a Procedural and Substantive Norm 2. The Strength of the Political Safeguards of Subsidiarity 3. Subsidiarity and the Direct Effect of the EC Treaty III. Subsidiarity and U.S. Federalism A. Subsidiarity in the U.S. Institutional Context B. Congress and Subsidiarity C. Constitutional Constraints D. Subsidiarity and the Judicial Function
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1. Subsidiarity as an Enforceable Legislative Norm 2. Preemption and Frustration of Congressional Purpose E. Subsidiarity and the Agencies 1. Subsidiarity as a Legislative Command to the Agencies 2. Agency Authority to Preempt State Law 3. Agency Self-Limitation 4. Presidential Restraints on Federal Regulation a. Executive Order 12,291 and Proportionality b. Executive Order 12,372 and Federalism c. Executive Order 12,612 and Subsidiarity. d. The Executive Orders in Practice e. Clinton Executive Order 12,866 on Regulatory Review F. Conclusion IV. EC Subsidiarity and U.S. Federalism A. The U.S. and EC Settings B. Subsidiarity and U.S. Federalism Revisited C. The Political Safeguards of Federalism and Commandeering in the Community D. Conclusion
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Introduction For a principle that has dominated discussions of European federalism for over five years, subsidiarity has received surprisingly poor academic mention. Subsidiarity has been criticized as inelegant . .
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.Eurospeak, [FN1] the epitome of confusion, [FN2] and simple gobbledegook. [FN3] It has been described by some as nothing new [FN4] and by others as quite novel and actually quite dangerous. [FN5] The President of the Commission of the European Communities, said to be an enthusiast of subsidiarity, finds it used at times as an alibi, [FN6] and more specifically as a fig leaf . . . to conceal an unwillingness to honour the commitments which have already been endorsed. [FN7] Despite subsidiarity's apparent difficulties, the drafters of the Maastricht Treaty on European Union (TEU) nevertheless chose to make the principle a central tenet of the Community's latest constitutional reform. [FN8] As set out in the TEU, subsidiarity enjoins the institutions of the Community to act in areas of concurrent competence only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States. [FN9] According to the principle, the Community institutions should refrain from acting, even when constitutionally permitted to do so, if their objectives could effectively be served by action taken at or below the Member State level. The drafters' apparent purpose was to reassure Member State populations, and subcommunities within those populations, that the Community's seemingly inexorable march toward greater legal and political integration would not needlessly trample their legitimate claims to democratic self-governance and cultural diversity. In this Article, I seek to understand the apparent contradiction between subsidiarity's high claims and its relatively low esteem. The Article consists of four parts. Part I offers a largely historical explanation for the importance that Community leaders have apparently ceded to subsidiarity, while Part II confronts the realities of making subsidiarity in Europe more than a purely rhetorical device. In Part III, I conduct a search for subsidiarity as a principle and practice of U.S. federalism, in the belief that the exercise may instruct us about the utility for the Community of an instrument as seemingly problematic as subsidiarity, as well as about the relationship between subsidiarity and federalism more generally. Part IV sets out the results of this comparison. My overall reasoning and conclusions are as follows. In the first place, it seems clear that making subsidiarity into a meaningful and manageable instrument of political control will not in any event be an easy task. Therefore, before requiring that the political branches practice subsidiarity, or that the Court of Justice possibly police their performance in doing so, one must first mount a strong case for the principle itself. Subsidiarity, in other words, must not only mean something; it must matter. Part I of this Article accordingly seeks to define the subsidiarity principle and to show why it has assumed such singular significance in the Community's present constitutional situation. In my view, the principle of subsidiarity is not only a plausible response to the federalism patterns that have developed in the Community over the past thirty-five years, but a compelling one. I also conclude that, while elusive and sometimes deeply confusing, subsidiarity is a meaningful and useful notion. However, I maintain that in order for subsidiarity to achieve its purposenamely to redress what is claimed to be a serious and growing power imbalance within the Community's divided-power system [FN10]it will have to be practiced as well as preached. If political participants conclude that other players succeed in paying pure lip service to subsidiarity, they will be tempted to do likewise; in that event, subsidiarity, far from reassuring Member States, will only erode whatever confidence they have in the Community and its institutions. To be taken seriously, subsidiarity must direct a genuine legislative inquiry into the consequences of the Community's refraining from taking a measure that it may legitimately take, in deference to the Member States' capacity to accomplish the same objectives. Moreover, even if they conduct a credible subsidiarity inquiry, the Community institutions may have difficulty demonstrating that they have practiced subsidiarity in fact. This is the case in part because one's judgment about whether a measure comports with the principle of subsidiarity is a profoundly political one, in the sense that it depends intimately on one's assessment of the measure's merits; it is also the case, however, because the practice of subsidiarity entails predicting the consequences, in terms of the attainment of Community objectives, of allowing the Member States to act. It is fully an exercise in speculation as well as judgment. Part II thus addresses the extremely difficult analytic aspects associated with putting subsidiarity into practice. In this Part, I first examine what practicing subsidiarity might entail for the political branches, drawing as much as pos-
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sible from the guidelines announced at the European Council's 1992 Edinburgh Summit, [FN11] but also heavily amplifying them. I compare the principle of subsidiarity in this regard with the fundamental Community principle of proportionality, [FN12] concluding that the two bear a much more awkward relationship to each other than is commonly supposed, and that resolving their tensions raises an even more decidedly political question than either principle raises alone. Subsidiarity accordingly presents the Community with a special challenge. By its nature the principle is one that the Community institutions may plausibly be said to violate every time they determine whether or not to act. My basic view is that the Community should respond to this challenge by recasting subsidiarity from a jurisdictional principle (that is, a principle describing the allocation of substantive authority between the Community and the Member States) into an essentially procedural one (that is, a principle directing the legislative institutions of the Community to engage in a particular inquiry before concluding that action at the Community rather than Member State level is warranted). The same considerations I have just described also suggest that the Court of Justice [FN13] should consider subsidiarity to be a justiciable issue, but that the nature of the review and the degree of judicial scrutiny entailed should reflect subsidiarity's highly problematic character. The Court should insist that, before adopting a measure, the Community institutions inquire meaningfully into the capacity of the Member States to attain the objectives that the measure is intended to achieve and explain why they conclude that action at the Community level is necessary. In ensuring that the institutions ask and answer the right questions before acting, the Court in effect enforces a procedural mandate, something it is well equipped to do. The Court is not, however, especially well equipped to make the substantive judgment as to whether the institutions correctly identified and assessed the consequences of Community inaction; at the very most it can determine whether the institutions' decision to act, based on the information available to them, was egregiously mistaken. Although the Court's level of scrutiny should therefore be plainly and unapologetically deferential, its willingness to entertain the question of subsidiarity would significantly reinforce its essential procedural demand that the political branches themselves take subsidiarity seriously. Finally, I suggest that the Court of Justice may actually have before it an even more difficult task than deciding whether and how to police the institutions' respect for the principle of subsidiarity; the Court may have to examine the impact of its own case law on the balance between the Community and the Member States and, more specifically, square the principle of subsidiarity with its far-reaching jurisprudence on the direct effect [FN14] of the Community treaties. Although subsidiarity has not figured as a term in United States constitutionalism, it plainly touches on issues of enduring concern to the federalism balance in this country as well. Part III of this Article analyzes critically the attempts that have been made in the United States to confine legally the exercise by the federal government of powers that are, jurisdictionally speaking, its to exercise, so as to allow state and local governments to act where they can satisfactorily do so. The inquiry is necessarily a far-ranging one, covering sources of authority as diverse as the Tenth Amendment and various Executive Orders addressed to the federal agencies, and drawing upon both statements of principle and patterns of practice. My conclusion, upon examining these sources, as well as the general drift of reform, is that while there are growing misgivings in the United States about leaving the state of federalism entirely to an unstructured political process, no real attempt has been made to ensure respect for subsidiarity as such, either as a jurisdictional or a procedural principle. The federal political process is still relied upon to guarantee that due attention will be paid to the values of localism. I nevertheless conclude in Part IV that the U.S. experience should not cause the Europeans to shy away from taking subsidiarity seriously. After surveying certain obvious differences in the settings of U.S. and EC federalism, I weigh the importance in regard to subsidiarity of the Community's distinctive institutional arrangements. I find that, although the Council of Ministers of the Community [FN15] represents the Member States as such, it offers even weaker assurances than Congress that policy choices on matters of predominantly local concern will be left in the
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hands of the states and their political subcommunities; I further find that none of the other Community institutions affords substantial assurances of that sort either. Moreover, I observe that while the Community is heavily dependent on the Member States for its resources, it also systematically lays claim to the States' own resources in precisely those ways that would be frowned upon as commandeering under emerging U.S. Supreme Court doctrine. [FN16] For both of these reasons, subsidiarity should be taken especially seriously in Europe. Judging by the U.S. experience, even a proceduralized requirement of subsidiarity will be difficult to police effectively; determining whether Member State measures can adequately accomplish Community objectives will prove to be a delicate and irreducibly political exercise, much as the parallel exercise in the United States has been. Nevertheless, the Court of Justice will substantially enhance the legitimacy of the Community's limitations on State sovereignty if it requires the institutions to make the relevant legislative analyses before taking action in areas of shared competence. The Court will thereby help the Community to take subsidiarity seriously, while at the same time respecting the proper institutional balance between itself and the Community's political branches. I. Subsidiarity and the European Community The notion that action should be taken at the lowest level of government at which particular objectives can adequately be achieved can be applied in any polity in which governmental authority is lodged at different vertical levels. In a federal system (or a system developing along federal lines) the power-sharing at issue will commonly be between the central government and the constituent states. [FN17] In the European comunity context, this essentially means Brussels and the Member States, respectively. Advocates of subsidiarity in the European Community trace the concept to twentieth-century Catholic social philosophy, citing a 1931 Papal Encyclical of Pius XI entitled Quadragesimo anno. [FN18] According to that document, subsidiarity requires that s maller social units . . . not be deprived of the possibility and the means for realizing that of which they are capable and l arger units . . . restrict their activities to spheres which surpass the powers and abilities of the smaller units. [FN19] For reasons that will become clear in the next section, Community leaders were content to distill from the ecclesiastical literature on subsidiarity a very rudimentary but quite suggestive concept. Though solemn in tone, and certainly solemn in origin, subsidiarity nevertheless speaks in unmistakably political terms. In this Part, I seek a better understanding of the concept of subsidiarity, first and briefly as a purely analytic matter, and then much more extendedly as a response to the European Community's distinctive legal and political evolution. A. Toward Clarity about Subsidiarity Subsidiarity expresses a preference for governance at the most local level consistent with achieving government's stated purposes. Although the virtues of local governance are sometimes treated as self-evident, they actually depend on our willingness to draw connections between local governance and certain more fundamental values. It is important to identify these values, both because subsidiarity should not be viewed in isolation from themas if an end in itselfand because intelligent application of the subsidiarity principle on any given occasion may require knowing precisely what values are at stake. 1. Self-Determination and Accountability. Individuals are generally thought to have a greater opportunity to shape the rules governing their personal and business affairs when those rules are made at levels of government at which they are more effectively represented. The opportunity to participate increases the likelihood that the law and policy that result will reflect the interests of the population concerned and will, on that account, enhance the individual's sense of dignity and autonomy within the larger community. In both respects, self-determination advances essentially democratic values. [FN20]
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Just as localism tends to enhance a community's self-determination in the initial making of policy, it also enhances its self-determination in the reaction to policy once made and implemented. A community is simply better able to express its dissatisfaction with government when government is continuously dependent on that community for support. [FN21] In other words, heightened political accountability of government to a community is an important dimension of that community's self-determination. 2. Political Liberty. Subsidiarity may also advance democratic values through its tendency toward the fragmentation of power. Although James Madison forcefully underscored the advantages of larger units of government in limiting the political power of factions, or dominant local interests, [FN22] the framers of the U.S. Constitution acted on the basic belief that individual freedom would be advanced by preventing the undue concentration of power in the same governing hands. [FN23] To the extent that subsidiarity promotes the diffusion of authority among different levels of government within the European Community, it can serve as a similar check against political oppression and tyranny and, like self-determination, also promote individual freedom. [FN24] 3. Flexibility. Much as it may help to promote individual self-determination, subsidiarity permits a community to reflect more closely the unique combination of circumstancesphysical, economic, social, moral, and culturalthat obtain at any given moment. It may also enable the community to respond appropriately to the changes of circumstances that occur within it from time to time. By enhancing the law's responsiveness to the population it serves, subsidiarity affords a flexibility that advances democracy at the same time as it produces good government. 4. Preservation of Identities. One result of organizing power in ways that promote self-determination and responsiveness is that local populations can better preserve their sense of social and cultural identity. The law is of course not the only or even the main determinant of identity, but it can be an important instrument in strengthening or diluting the specificity of a community's distinctive combination of forms and values. [FN25] 5. Diversity. At the same time as it affords local populations the benefits of self-determination and responsiveness, and thereby encourages the survival of social and cultural identities, subsidiarity also fosters diversity within the larger polity. Social and cultural diversity may be valued in its own right, [FN26] but it may also be considered conducive to social, cultural and political experimentation, and therefore instrumentally advantageous as well. [FN27] 6. Respect for Internal Divisions of Component States. A further virtue of subsidiarityone with particular resonance in the Communityis its tendency to preserve the formal allocations of power internal to the Member States themselves. The transfer of normative powers to the Community has unquestionably disturbed the preestablished federalism balance within the Federal Republic of Germany and may have similar effects in other Member States. As representatives of the German Lnder have argued, [FN28] governance of certain matters that under the German Constitution are theirs to govern has effectively been transferred to the Community, a level at which the Member States' own distinctive subcommunities are not efficiently represented politically. It stands to reason that, by reducing Community intervention to the necessary minimum, subsidiarity tends to slow down this erosion of the power of the Member States' own component parts. [FN29] This last consideration underscores the special relationship that exists between subsidiarity and federalism. Each of these valuesself-determination and accountability, political liberty, flexibility, preservation of identities, diversity, and respect for internal divisions of component stateshas figured importantly in the rhetoric of subsidiarity in the Community, [FN30] sometimes in conjunction with still other values. [FN31] More often, however, the term subsidiarity is invoked in the interest of some vague sense of localism, and without any clear indication of the positive values meant to be served. It is true that discussions of subsidiarity have tended to proceed without close regard to localism's costs either, and that these costs are also real. [FN32] Aside from the risk that Madison associated with the dominance of local factions, [FN33] the principal risk of subsidiarity in the Community context is its possible impairment of a common internal market and, more generally, its interference with the efficient attainment of
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the Community's substantive policy goals. Though largely sympathetic to subsidiarity, I endeavor to bring this risk, where relevant, into consideration. The evolution of Community federalism traced in the next two sections shows, however, that it is the putative virtues of subsidiarity, and not its possible drawbacks, that are animating the subsidiarity debate. This Article accordingly gives them more focused attention. B. Subsidiarity and the European Community Treaties Given subsidiarity's linkage to the positive values set out in the previous section, it is not surprising that the European Parliament was the first of the Community institutions to introduce the principle prominently into debates over European federalism. [FN34] The Draft Treaty on European Union, which the Parliament produced and overwhelmingly endorsed in 1984 as a blueprint for Community reform, featured subsidiarity as a general constitutional rule. In all matters falling within the concurrent competences of the prospective European Union and the Member States, the Union was only to carry out those tasks which may be undertaken more effectively in common than by the Member States acting separately. [FN35] The Draft Treaty proved much too ambitious in its federal designs to suit the Member States, and the Luxembourg intergovernmental conference that was convened in the mid-eighties to draft amendments to the Community treaties ultimately settled on a more modest document, the 1986 Single European Act (SEA). [FN36] The SEA expressly embraced the principle of subsidiarity, though in one domain onlyenvironmental protection, one of the new competences that the SEA conferred on the Community. [FN37] While it did not pass unnoticed, this limited appearance of subsidiarity took backstage to other more conspicuous features of the SEA, most notably the decision to permit the Member States to adopt Community legislation in the Council of Ministers by qualified majority voting rather than by unanimity, where such legislation was deemed necessary to create a barrier-free internal market by the end of 1992. It was easy to dismiss the SEA's limited recognition of subsidiarity as peculiar to the politically sensitive environmental agenda and, even then, as purely hortatory in nature. If the SEA did not itself spotlight the principle of subsidiarity, it nevertheless created the conditions that would soon make subsidiarity one of the Community's most prominent concerns. Under the system of qualified majority voting, a Commission proposal could ripen into Council legislation over the opposition of several Member States. [FN38] This change made it easier for the Council to pass legislation, which in turn made the Commission bolder in its legislative initiatives and more determined in advancing them. The Member States were left in need of new instruments for controlling the Community institutions, especially since the SEA had also extended the Community's sphere of action to new areas (worker health and safety, research and technology, and regional development, as well as environmental protection). Expectations were that the next few years would bring still further treaty amendments, and still new legislative competences for the Community, among them the creation of an economic and monetary union. [FN39] It is no coincidence then that the 1992 Maastricht Treaty on European Union (TEU)which emerged from two 1990 intergovernmental conferences, one on economic and monetary union and the other on European political unionput subsidiarity in plain view, making it a central principle of Community law. Article A of the TEU proclaims that in the new European Union, decisions are [to be] taken as closely as possible to the citizen. [FN40] Article B of the TEU requires the Community institutions, in pursuing their objectives under the TEU, to respect . . . the principle of subsidiarity, a principle spelled out as such in a new Article 3b added to the EC Treaty: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. [FN41] As if to emphasize the connection between subsidiarity and the expansion of the Community's powers, the drafters of the TEU put language into virtually every new treaty chapter underscoring their intention that the Member
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States continue to exercise primary responsibility in these new Community spheres. This is the case with education, [FN42] vocational training, [FN43] culture, [FN44] health, [FN45] consumer protection, [FN46] and industrial competitiveness, [FN47] each of which the TEU brings within the sphere of Community action. The drafters took similar precautions with matters that the TEU does not make into Community competences as such, but nevertheless expressly subjects to Community coordination. I refer here chiefly to the TEU's separate title on cooperation in the fields of justice and home affairs [FN48] and to the separate Agre ement on Social Policy, [FN49] which was in fact concluded outside the EC Treaty framework and only among the eleven Member States other than the UK. Both texts contain language highly suggestive of subsidiarity. [FN50] Viewed as a whole, the Maastricht Treaty thus reflects a strong linkage between the expansion of Community competences and the necessity of self-restraint in their exercise. Some observers have doubted that the drafters of the Maastricht Treaty could possibly have taken the principle of subsidiarity seriously if they coupled it with so significant an extension of Community powers. A recent study by leading European economists concludes that the drafters erred not only in making macroeconomic policy and social policy matters of Community concern, but also in failing to reduce the scale of Community involvement in existing competences, such as agricultural policy, labor and capital mobility, regional development, and much of environmental regulation. [FN51] By contrast, I see no contradiction, either logically or politically, between extending the field in which the institutions may take action and requiring them to practice self-restraint in doing so. The major difficulty with my position is that it positively requires taking subsidiarity seriously. C. Subsidiarity and the Evolution of Community Federalism What accounts for the urgency with which subsidiarity has been pressed upon the European Community? The answer to this question lies in the magnitude of constitutional change that the Community has experienced over its brief history. [FN52] Certain elements of what Joseph Weiler calls the transformation of Europe [FN53] were immediately apparent at the time they occurred, chiefly because they took the form of explicit doctrinal pronouncements by the Court of Justice and because they differed markedly from conventional assumptions about the relationship between domestic and international law. Other aspects of the transformation were less conspicuous. But the cumulative effect was to alter profoundly the balance of power between the Community and the Member States, and eventually generate pressures for a doctrine like subsidiarity. The Court of justice and its Supranationalist Creation. The Court's fundamental doctrines concerning the relationship between Community law and the law of the Member Statesnotably the doctrines of direct applicability, direct effect, and supremacy, expounded by the Court in a series of rulings of the early 1960s [FN54]are by now well known. [FN55] While this section does not dwell on these doctrines, it examines their role in escalating the rhetoric of subsidiarity. The principle of direct applicability posits that the adoption of legal norms by the Community institutions is sufficient to integrate them in to the legal orders of the Member States as well. In other words, whatever a State's ordinary treatment of international agreements might be, Community enactments do not need to be transposed, incorporated, or otherwise formally received into a Member State's law in order to become law within that State. [FN56] The direct effects doctrine makes the further claim that Community law norms, if expressed clearly and unconditionally enough, confer on private parties rights that are legally enforceable against the Member States and that the institutions of those States, administrative and judicial alike, are required to protect. Put differently, a directly effective Community norm imposes obligations on the governments of the Member States in favor of private parties, which the latter may invoke directly, if need be, in national courts. Lastly, the principle of supremacy mandates that Member State officials give precedence to Community law over national law in the event of a conflict between them. That the drafters failed to include an express Supremacy Clause
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in the EEC Treaty did not prevent the Court of Justice from inferring one, basing it on the necessity that the Community possess legal unity and that Community law be effective throughout the territory of the Member States. [FN57] In fact, the original Treaties contained no very clear or general statement of any of these three basic doctrines of the Court. The doctrines of direct applicability, direct effect, and supremacy are by their nature expansive of Community law in relation to national law, and were readily seen as such, particularly as against the background of traditional attitudes toward the force and effect of international law in the national legal orders. Their claims have accordingly been described as supranationalist. [FN58] Moreover, these doctrines not only describe legal relationships, but actually demand Member State action. Direct applicability, direct effect, and supremacy essentially require, respectively, that national institutions recognize Community measures as law, effectuate those measures at the request of private parties wherever appropriate, and prefer claims based on Community law to those based on Member State law whenever a choice must be made. At least as significant as the Court's early espousal of direct applicability, direct effect and supremacy, and the absence of a clearly and generally stated basis for them in the original Treaty texts, has been the Court's subsequent elaboration of these concepts. From the highly generalized notion of direct effect, for example, the Court eventually drewmore or less explicitly the following specific corollaries: (a) The Court of Justice establishes the general criteria for determining whether or not a Community measure has direct effect in the national legal orders. [FN59] (b) The Court of Justice, applying these criteria, ultimately decides whether a particular Community measure does or does not have direct effect in the national legal orders. [FN60] (c) The Court of justice establishes the general test for determining whether a Member State, through its agencies or its courts, has given sufficient direct effect to a Community measure by making adequate remedies available to individuals for violation of the rights they derive from Community law. [FN61] (d) If need be, the Court of Justice ultimately decides whether under these criteria a Member State has given adequate effect to Community law in a given case. [FN62] (e) If a Member State court is uncertain whether a Community measure is directly effective, or whether the State has given the measure adequate direct effect, it must seek a preliminary ruling from the Court of Justice on that question and respect the ruling it receives. [FN63] (f) Not only are regulations of the Council and Commission (which EC Treaty Article 189 describes as directly applicable [FN64]) capable of having direct effect, but so are: (i) Treaty articles (which the Treaty does not describe in those terms [FN65]), (ii) Council and Commission directives (which Article 189 actually implies are not directly applicable and which, by definition, would seem to require further Member State implementation [FN66]), and (iii) Council and Commission decisions (which the Treaty simply calls binding [FN67]). Even a directive which has not been fully implemented by a Member State on a timely basis is capable of having direct effect in favor of private parties as of the deadline by which the State should have implemented it. [FN68] (g) Private parties are entitled to assert the rights that Community law measures confer upon them, not only against Member States (via a so-called vertical direct effect), but also against other private parties (via a horizontal direct effect), whenever those measures are relevant in otherwise purely private litigation taking place in national courts. [FN69] An exception to the principle of horizontal direct effect only arises in the case of a directive which a Member State has failed to implement by the prescribed deadline; even then, however, a national court is required to interpret national law, whenever it can possibly do so, in such a way as to give horizontal direct effect to unimplemented directives. [FN70]
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(h) If a Member State fails to implement Community law adequately, a person to whom that failure causes injury is entitled, as a matter of Community law, to recover damages from the State in the courts of that State for the relevant losses. [FN71] The Court of Justice has likewise given a maximalist reading to the principle of supremacy, interpreting it in an equally uncompromising spirit. Thus, the Court eventually arrived, in supremacy's name, at the following specific propositions: (a) In the event of conflict, Community law measures prevail over national measures irrespective of the sequence in which they were enacted. [FN72] (b) For supremacy purposes, Community law measures include not only the Treaties, but also secondary legislation and individual decisions issued by the Council and Commission. [FN73] They also include general principles of law, which it is the province of the Court of Justice itself to identify, as well as Court of Justice rulings in individual cases. [FN74] (c) Again for supremacy purposes, national measures are deemed to include not only primary and secondary legislation and administrative acts, but also national constitutional provisions. [FN75] (d) National courts may not examine the validity of Community measures under national law, not even when the claim is that they violate the fundamental civil, political, and human rights enshrined in the national Constitution. [FN76] (e) If a national court believes that a Community measure violates a higher legal norm of the Community (such as the Treaty or a general principle of law recognized by the Court of Justice, including human rights), it may only refer the question of the measure's validity to the Court of Justice for a preliminary ruling, and then follow that ruling. It may not on its own refuse to give effect to the Community measure. [FN77] (f) Although national law may generally deny courts the right to review the legality of certain legal instruments (for example, statutes enacted by the national legislature), the courts must nevertheless entertain legal challenges to the application of those acts where the challenge is based on Community law. [FN78] (g) National courts are required to give immediate effect to Community measures that have direct effect, and they may not postpone doing so on account of special procedures or traditions that they would ordinarily have to follow before denying effect to otherwise analogous national law. [FN79] (h) National courts must make available to litigants who assert individual claims based on Community law all the legal remedies, including forms of provisional relief, that they ordinarily make available to litigants asserting other legal claims, and those remedies must in any event afford a minimally effective means of asserting those claims. [FN80] The Court of Justice has thus taken virtually every opportunity that presented itself to enhance the normative supremacy and effectiveness of Community law in the national legal orders. The same reasoning that brought the Court to its supranationalist doctrines appears to have caused the Court to apply them expansively. The Court's purpose, as it quite candidly conceded, [FN81] was to establish all those constitutional premises that it considered necessary in order for Community policy, once made by the Community institutions, to be fully effective in the Member States. Whatever one may think of the Court's pronouncements as readings of the EC Treaty or as federalist policy, they do in fact unmistakably strengthen the force and effect of Community law. It is difficult to find a clearer example of instrumentalist judicial decision-making. If the Member States largely accepted the Court's supranationalist claims, this is because they originally retained
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ultimate control over the Community's legislative process. [FN82] The framers of the EC Treaty had entrusted the Community's legislative powers chiefly to a Council of Ministers in which representatives of the Member States could unapologetically express and vote the political interests of the States they represented. [FN83] Moreover, by virtue of a combination of Treaty provisions [FN84] and legislative tradition, [FN85] the determined opposition of any one Member State to a measure would cause the measure to fail. Thus, while advocates of European integration drew satisfaction from the normative aspects of Community federalism (notably direct applicability, direct effect, and supremacy), advocates of Member State sovereignty took comfort in the special composition and voting procedures of the Council of Ministers. In fact the Court's heightening of the normative stakes of Community action probably caused the States to guard their political prerogatives all the more jealously. 2. New Elements in Community Federalism. - While the Court's federalist doctrines, on the one hand, and the States' preponderance in the Community legislative process, on the other, had produced something of a balance of power, other forces were working to disturb that balance. I have already referred to changes in the legislative process of the Communitynotably the shift away from unanimous and toward qualified majority votingthat lessened the States' opportunities to prevent legislation from being adopted over their objections. I describe the political significance of majority voting in greater detail later in this section. [FN86] However, even before the shift to majority voting, further doctrinal developmentsdevelopments that were less visible than the doctrines of direct applicability, direct effect, and supremacy, but were likewise attributable to the Courthad effectively enlarged the arena of Community action. These forces together heightened the political vulnerability of the Member States vis--vis the Community and thus helped generate the impetus for subsidiarity. a. Widening the Community Terrain. The Court's early preoccupation with the relationship between Community and Member State norms tended to obscure other less obvious and more gradual jurisprudential developments in European federalism, all of which had the effect of expanding the Community's legislative presence. These developments pertained to (1) the enumeration of powers conferred on the Community by the Member States, (2) the extent to which the powers conferred on the Community belonged to it exclusively, and (3) the breadth or narrowness with which grants of power to the Community were to be construed. It is curious but not surprising that questions such as these, which had long dominated U.S. federalism debates familiar both to the Community's founders and the Court of Justice, took an apparent back seat in the Community context to the doctrines of direct applicability, direct effect, and supremacy. The architects of the Community, cognizant of the fact that the Community itself was the product of a treaty, and that the Member States were all mature nation-states in their own right, accepted an international law paradigm as the right one for their purposes. Within such a paradigm, questions of the direct applicability, direct effect, and supremacy of Community law understandably loomed large. The framers of a federal constitution generally work in a different paradigm. They ask blunt questions about allocations of power, including questions about the enumeration of federal powers, preemption of state law and implied powers. Precisely because the EC Treaty as such was conceived as an international agreement, and only later came to be viewed as a constitutional document, its answers to these central federalism questions proved largely inadequate. The Treaty spoke very imprecisely about the enumeration problem, very puzzlingly about implied powers, and not at all about preemption. As and when the Court of Justice faced these questions, as its own supranationalist jurisprudence ensured it one day would, it brought to bear much the same teleological method of interpretation that it had initially employed in establishing the direct applicability, direct effect, and supremacy doctrines. i. The Enumeration of Community Powers. Difficult as it may now be to believe, the founders of the Community appear to have expected the Community institutions to intervene only in very specific ways in the Member State economies. Leaving aside certain spheres that they intended the Community to govern comprehensively (e.g., external commercial relations, interstate tariffs and customs, regulation of agricultural markets, and competition policy), their understanding was that the institutions would legislate only on the matters specifically identified in the Community treaties, [FN87] and in doing so would be bound by the precise substantive and procedural conditions set out in the relevant Treaty article. [FN88]
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Nevertheless, the EC Treaty contained the seeds of an expansive legislative practice. Legislation on the elimination of non-tariff barriers to the free movement of goods provides a good illustration. The relevant Treaty provisions (Articles 30 through 37) basically require the Member States to refrain from enacting or maintaining unjustifiable trade-impeding restrictions. By attributing direct effect to these provisions, the Court enabledin fact directednational courts to deny legal effect to Member State measures containing such restrictions. The negation of impermissible restraints on interstate trade of course powerfully echoes the Supreme Court's dormant commerce clause jurisprudence. [FN89] At the same time, however, the Treaty also authorized the Commission and Council to enact positive legislation to facilitate the removal of non-tariff barriers to trade. This affirmative authority derived chiefly from EC Treaty Article 100: The Council shall . . . issue directives for the approximation of such provisions laid down by law, regulations or administrative action in Member States as directly affect the establishment or functioning of the common market. Article 100 required such harmonizing directives to be adopted by the Council of Ministers unanimously, if at all, thus enabling even a single Member State to block a harmonization measure or cause it to be weakened. [FN90] The claim that Article 100 established federal legislative jurisdiction over interstate commerce is actually an understatement. The theory behind the harmonization of Member State laws is that even rules purporting to regulate exclusively intrastate trade may nevertheless operate to make the common market less common and, to that extent, impede interstate commerce. [FN91] Rather than rely exclusively on the Court to root out offensive State measures on a case by case basis (or to prompt national courts to do so on their own), the Council of Ministers could bring about a regulatory rapprochement of Member State rules by directing the States to modify their laws governing the domestic market in prescribed ways. Events proved that the Council would in fact use its positive harmonization powers liberally to impose certain regulatory minima or maxima on the States on a wide variety of subjects. [FN92] As a result, once national legislation was modified to bring it into conformity with the relevant Community directive, that legislation reflected policy that had been made in Brussels, and did so even as applied to purely intrastate matters. A constitution that allows federal authorities to prescribe state policy over purely intrastate trade, on the theory that national disparities may distort patterns of interstate trade, cannot seriously be regarded as enumerating the Community's legislative powers. [FN93] Even a subject plainly reserved as such to the States (e.g., health, education, or public safety) is transformed into a Community matter to whatever extent the federal political branches find that the cross-border mobility of goods (or, by parallel reasoning, workers, services, or capital) would be advanced by bringing the various national rules on the subject into closer alignment with each other. The theory, as one eminent expert pointed out, left no nucleus of sovereignty that the Member States could invoke, as such, against the Community. [FN94] A piece of Community legislation that brings the point home particularly forcefully is the 1985 Council Directive on Products Liability. [FN95] The directive purported to harmonize the different products liability regimes of the Member States chiefly in order to create more uniform regulatory conditions for business and thereby promote the establishment or functioning of the common market. [FN96] The Council thereby legislated on the subjects of civil liability and consumer protection, matters thought to lie well within the Member States' reserved powers. By this pattern of reasoning, Member State policies on virtually any subject could be harmonized, if need be even as applied to purely local transactions, on the theory that one or more of the factors of production would thereby be caused to move more freely across state borders. [FN97] ii. Preemption of Member State Law. Since the treaty drafters were not as attentive to the demarcation of federal and state powers as they might have been had they been drafting a modern federal constitution, it is not surprising that they also did not explicitly address the question of preemption. [FN98] This too is not because the drafters were unaware that the grant to the Community of legislative power over a certain subject might have the effect of removing altogether state power to legislate on that subject. Even aside from the American experience, which was well known, the German Basic Law, itself less than ten years old at the time the EC Treaty was signed, had designated
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certain subjects as within the exclusive domain of the federal government of Germany and others as within the concurrent jurisdiction of the federal government and the states. [FN99] Preemption, however, is a quintessential federalism issue, and it did not fit into the framers' original international law paradigm. The very idea of preemption, in the sense of occupying the field to the exclusion of the States, posed a very basic threat to notions of state sovereignty. The fact remains, however, that at least some of the Community's objectives simply could not be satisfactorily achieved unless the Community's power to act was exclusive. Thus, the Court of Justice readily concluded that an external tariff or commercial policy by its nature would not be truly common, as planned, [FN100] unless it were exclusively federal, at least once the transitional period had ended. [FN101] The case for preemption in these fields was so strong, it was treated as constitutional (in that the States were precluded from acting, irrespective of whether the Community institutions had by then taken any action at all), [FN102] and not merely legislative (that is, foreclosing Member State action only insofar as specific Community legislation so stated or implied). Although the Treaty likewise denominates the Community's agricultural policy as common, the case for constitutional preemption in that area was weaker. It was not reasonable to treat the States as having abandoned regulation of all agricultural sectors merely because they conferred power on the Council and Commission to enact comprehensive rules for the organization of the various markets as, and when, those institutions might choose to do so. The prevailing view, accordingly, is that once the Community adopts a common agricultural policy for a given market, the States lose their authority to regulate that market, [FN103] but that until such time, they may continue to regulate it, provided of course they do not otherwise infringe upon the free movement of goods or other basic principles of the EC Treaty. [FN104] In most other areas, [FN105] neither the language of the Treaty nor the specific nature of the sector addressed in a given section of the Treaty clearly signals the framers' intention. Under these circumstances, preemption can realistically only be what it has become in the United States, that is, essentially a question of statutory interpretation. [FN106] The Court of Justice's emerging doctrine of legislative preemption has been described adequately elsewhere. [FN107] Suffice it to say that the Court commonly finds that, in enacting a piece of legislation, the Council or Commission meant to regulate a matter comprehensively and to preclude the States from addressing it. [FN108] Sometimes the Court has done so on a very meager showing of implied preclusion, that is, without much evidence that the Council had produced a comprehensive regulatory scheme whose purposes would be thwarted by continuing Member State interventions. [FN109] The Court's hospitality to preemption claims may not always have been welcome in Member State circles, but it is surely not illogical. At least until the Single European Act, the bulk of the Community's legislative initiatives were predicated on the creation of a common market in which the factors of production move freely across state borders; they were not predicated on the necessity of prescribing one or another policy in a substantive field falling specifically within the Community's sphere of competence. Legislative preemption by definition favors the establishment of a harmonious regulatory environment throughout the territory of the Member States and therefore indirectly the commonness of the common market. In fact, the Court of Justice eventually ruled that, once the Community adopts a harmonization measure that specifically enough addresses a given public interestsuch as environmental or consumer protectionthe States may no longer invoke that interest to justify restrictions on trade under Article 36 and other EC Treaty exceptions to the principles of free movement. [FN110] Curiously, the case for legislative preemption is actually weaker when the Community pursues social and political objectives in their own right, as legitimate matters of Community concern. (This is, of course, more likely to be the case after the Single European Act and the Maastricht Treaty on European Union.) In order for the Community to improve labor standards, or raise the level of environmental or consumer protection, for example, its regulatory demands need not be preemptive, though the Community may of course have reasons for choosing to occupy one or another specific field. On the contrary, the Community might fully satisfy its regulatory objectives by establishing a
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minimum level of protection that is mandatory on the States, while leaving the States free to adopt a higher or broader level of protection. [FN111] In the event the States do so, the Community simply needs to ensure that the added protection does not come at a price that is excessive either in terms of the Community's other policy objectives or in terms of its core commitment to the free movement of goods, persons, services, or capital. The Court's preemption jurisprudence is thus somewhat paradoxical. The Treaty's initial failure to provide the Community institutions with an independent policy basis for legislating on a large number of subject matters caused the institutions to approach those matters indirectly, through harmonization measures ostensibly designed to reduce or eliminate regulatory differences and thereby facilitate the internal market. Thus, although the Member States were not ready to cede prescriptive jurisdiction over these subjects to the Community, they nevertheless found the Community asserting a common market interest in them and advancing an even stronger claim to have its legislation interpreted as preemptive. It is thus no coincidence that the Single European Act, with its deliberate extension of Community competence to new substantive areas, also brought express language of non-preemption into the Treaty for the first time. Unsurprisingly, the SEA's new provisions on the environment included language of this sort, [FN112] as did its provisions on worker health and safety; [FN113] these are subjects over which certain Member States in negotiating the SEA had insisted on the right to maintain or enact standards more protective than those that the Community might adopt. By the same token, the Maastricht Treaty on European Union should have attached comparable non-preemption language to its provisions enlarging the Community's competences (to include, for example, consumer protection), or should possibly have raised non-preemption to the level of a general Community law presumption. That the TEU did not do so is probably due to the fact that it did, through its own Article B and the new Article 3b that it added to the EC Treaty, [FN114] make subsidiarity a general principle of Community law. Under subsidiarity, arguably, the institutions should not preempt (or be deemed to have preempted) Member State action over a subject unless they must do so in order to achieve the Community's objectives. [FN115] iii. The Elasticity of Community Powers. Unlike preemption, the question of implied powers was addressed directly by the Treaty and in early decisions of the Court of Justice. Based on the implied powers language of Article 235, [FN116] the Court might have been expected to permit the Community institutions to exercise powers not expressly granted them only when the exercise of such powers was shown to be necessary for achieving a stated Community purpose. This would have been consistent not only with the Article's wording, but more generally with the notion that the EC Treaty had effected a carefully limited transfer of sovereignty from the Member States to the Community. In scrutinizing the institutions' every claim to authority not expressly vested in them by the Treaty, the Court might actually have underscored that the Community was to be a polity of limited powerslimited not only because the States made only a partial transfer of sovereignty, but also because that transfer took the form of carefully crafted treaty provisions, each with its own very precise combination of substantive and procedural conditions. However, a judicial policy of this sort would have disserved an objective that was ultimately dearer to the Court, namely maximizing the effectiveness of Community law within the Community's emerging political and economic system. The instrumentalist reasoning that drove the Court's more patently federalist doctrines of direct applicability, direct effect, and supremacy also militated in favor of a liberal understanding of implied powers. In point of fact, while the Court commonly examines whether the EC Treaty independently gives the Community sufficient powers for achieving a stated objective for which the institutions are claiming implied powers under Article 235, it rarely considers whether the powers claimed are in fact ones that are strictly necessary. [FN117] What is more, the Court frequently finesses altogether the question of whether the textual conditions for implied powers under Article 235 are met, and instead gives the express powers of the institutions under the Treaty a sufficiently broad and liberal reading to meet the Community's needs. [FN118] A generous interpretation of the institutions' express powers (or, if one prefers, a readiness to infer powers from express treaty provisions) can obviate the need for recourse to Article 235 as an independent basis for implied powers. It is also a less conspicuous way to resolve jurisdictional doubts in favor of the Community.
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b. The Community's New Institutional Dynamics. The previous section shows that the Community is the product of a succession of distinct constitutional developments. Because the Community grew out of an international agreement that at the time was of less than certain legal force and effect in the Member States, the Court of Justice understandably saw laying the normative foundations of legal integration as a matter of first priority. The result, as we have seen, [FN119] was a powerful doctrinal edifice based on the direct applicability, but even more so on the direct effect and supremacy of Community law. Intrinsically expansive of Community authority, these principles went on to receive a maximalist construction, thus hastening the EC Treaty's transformation from an international treaty into a political constitution. [FN120] Furthermore, the Member States accepted this massive dose of supranationalism because the Community's political processes still allowed them to safeguard their vital interests. [FN121] This balance may have seemed sufficiently stable to permit the Court to address the next generation of more squarely constitutional questions in ways that likewise favored the Community's assertions. The result was a further legal empowerment of the Community through a relaxed attitude toward enumeration, a receptiveness to Community preemption, and a generosity toward implied powers. [FN122] The Single European Act (SEA), however, began to loosen the Member States' grip on the Community legislative process. Along with the apparent demise of the Luxembourg Accord, [FN123] the advent in the SEA of qualified majority voting in the Council of Ministers [FN124] threatened to deprive Member States of the political and legislative leverage to which they had become accustomed. It is interesting that the impact of qualified majority voting on the Community's federalism balance did not come in for very close examination at the time. Most likely this is because the Commission believed, and very largely succeeded in convincing the Member States, that completion of the internal market by the end of 1992 was the Community's paramount objective and that substituting qualified majority voting for unanimous voting in the Council was vital to achieving it. [FN125] The 1992 Program in fact offered the Member States and most of their constituencies a goal around which they rallied with an enthusiasm and a degree of consensus that they had not exhibited since the 1950s. This is not to suggest that the Member States were insensitive to the change in equilibrium. Even under the SEA, they reserved unanimous voting for the matters about which they felt most keenly. [FN126] The SEA also made provision for a new derogation procedure allowing Member States to escape the effects of harmonizing legislation adopted by a qualified majority under Article 100a, [FN127] if they could show the necessary hardship and the Commission could be convinced of it. [FN128] In addition, as noted, the language of non-preemption and subsidiarity made its first, though still quite limited, appearance on the face of the Treaty through the SEA. [FN129] This too was a sure sign of misgivings, at least in some quarters. Nevertheless, the Member States had made easier passage of single market legislation their top political priority and accepted voting by qualified majority as a sure and reasonably safe means to that end. The intergovernmental conferences on economic and monetary union (EMU) and on political union that opened in Rome in 1990 proceeded in a climate of basic satisfaction with the Community's progress toward 1992. With the recently adopted European Social Charter [FN130] and the detailed Delors Plan on Economic and Monetary Union [FN131] before them, the Member State representatives were virtually certain to propose extensive Treaty amendments allowing the Community to move aggressively on the social policy front and on economic and monetary union; only the exact terms and modalities needed to be debated and eventually resolved, as in the end they were at Maastricht. At the same time, a large number of other subjectshealth, consumer protection, education, culture, tourism, energy, immigration, anti-drug and anti-terrorism programs, among otherswere being pressed upon the negotiators as natural new chapters in an amended Treaty. [FN132] In addition, the completion of the internal market, called for by the SEA, was clearly unfinished business and would still remain so at the end of 1992. The possibilities for harmonizing new and existing regulatory measures in the interest of a more complete internal market were, and are of course, endless. All told, the prospects for legislative activism in the post-1992 Community were grand. The conferees at Rome and Maastricht understandably devoted much of their time to discussing the procedures
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by which decisions affecting economic union, social policy, and the Community's new competences would be made, which of course also helps explain the enormous bulk of the Maastricht Treaty and its protocols. But though special voting precautions would be taken on the politically most sensitive issues, a broad retreat from qualified majority voting was never in the picture. Thus, whatever the eventual outcome on the many difficult points dividing them, the Member States were poised for a quantum widening of the Community terrain without any significant narrowing of the decisional rules. In fact, the Maastricht Treaty provides still wider scope for qualified majority voting in the Council at the expense of unanimous voting, [FN133] while at the same time expanding the use of parliamentary cooperation in the legislative process of the Community and introducing a system of parliamentary co-decision in selected areas. [FN134] c. The Maastricht Environment. If further inducements toward subsidiarity were needed, the political and economic climate in which the Member State conferees were gathering in 1990 to discuss further European union supplied them. For the first time since the Europessimism of the 1970s and very early 1980s, the Member States governments found themselves in deep anxiety over the condition of their economies and doubtful of the Community's capacity to rescue them from it. In fact, in many circles the Community enterprise itself provided a focus for the kind of scapegoating that national economic downturns can so easily provoke. [FN135] In addition to an obstinate economic recession, the Member States also faced the prospect of a significant enlargement of the Community. Although the most imminent widening stood to bring relatively prosperous StatesAustria, Finland, Norway, Sweden, and Switzerlandinto the Community, the very increase in membership suggested that political agreement on common solutions would in the future only become more difficult to produce. In fact, however, the crumbling of states to the East (and the resulting integration into the Community of the impoverished former East Germany) reminded the Member States that the Community's manifest destiny did not lie only in the direction of the EFTA countries. The upheavals in Central and Eastern Europe augured not only another quantum enlargement of the Community, but eventually a very different mix of Members as well. At a constitutional moment like thiswith the supranationalist stakes long since established, the terrain for Community action widened and still widening, and the rules of decision-making relaxedsubsidiarity was at its most beguiling. Other factorsthe influx of immigrants, the loss of confidence in an effective common European foreign policy, and regional demands within the Member States themselvesonly heightened the subsidiarity impulse. But, although it is the constitution-makers' task to shape political impulses like subsidiarity into workable and durable instruments, the established instruments of federalism all missed the point. The principle of subsidiarity does not, for example, seek to challenge the direct applicability, direct effect, or supremacy of Community law, or any of the prerogatives of the Court of Justice. It does not quarrel with the notion of implied powers [FN136] or with Community preemption, [FN137] provided the use is fair. Since subsidiarity deals with the exercise of legislative self-restraint within the constitutional sphere of federal power, enumerating federal powers as such does not help; the Maastricht Treaty predictably reaffirmed the enumeration principle, requiring the Community to act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. [FN138] Subsidiarity asks a quite different question, namely whether the powers that do fall within the Community sphere should in fact be exercised. By the same token, expressly reserving to the States all powers not delegated to the federal government, as does the U.S. Tenth Amendment, [FN139] simply begs the question. Subsidiarity challenges none of these notions, but it is not satisfied by any of them either. It starts off precisely where the conventional tools of constitutional federalism leave off and where legislative politics is ordinarily thought to begin. II. Putting Subsidiary into Practice Subsidiarity may function in at least four different ways. Its first and, I would suggest, most important function is legislative. Arguably, each participant in the legislative process of the Communitythe Commission in proposing
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(and in some cases issuing) a rule, the Parliament and other bodies [FN140] in expressing an opinion on a proposed rule, and the Council in adopting a rulecan determine whether the measure comports with the principle of subsidiarity before, respectively, proposing, commenting on, or adopting it. [FN141] It can likewise disfavor, oppose, or reject the measure, as the case may be, if the measure fails to do so. Second, any legislative doctrine can also perform an interpretive function. If the Council or Commission may be presumed to observe the principle of subsidiarity in adopting legislation, then those who are called on to interpret that legislationincluding the Court of Justice but more commonly the various Member State officials who administer and enforce itshould, in case of doubt favor the interpretation that most respects that principle. Third, compliance with the principle of subsidiarity may be regarded as an element of the legality of Community action. Thus, any measure infringing upon the principle would be invalid on that ground alone. However, even if subsidiarity is justiciable, its enforcement is reserved to the Community judiciary, [FN142] since Member State courts cannot themselves rule on the validity of a Community measure. [FN143] Finally, the principle of subsidiarity can perform a confidence-building function by reassuring the constituent states, and notably the regions and other subcommunities within the states, that their distinctiveness will be respected at the European Community level. [FN144] As shown by the evolution of Community federalism traced in Part I of this Article, subsidiarity is in fact playing, or being asked to play, this role today. Of course, absent some evidence that subsidiarity actually exerts legislative, interpretive, or adjudicatory influence, it cannot credibly perform its confidence-building function either. On the other hand, if subsidiarity does manage to perform this function, it can enhance the legitimacy of all European Community measures and of the Community itself. The difficulty of operationalizing subsidiarity does not in the least lessen its importance. If, as seems evident, subsidiarity addresses issues that are ordinarily relegated to the political realm, then subsidiarity's central function must be its legislative one. This means in turn that each participant in the Community's legislative process should, on the occasion assigned to it by that process, determine whether the measure under consideration meets the test of subsidiarity, and act on the measure accordingly. What I call the legislative function of subsidiarity in fact figures prominently in the official subsidiarity guidelines adopted by the European Council [FN145] at its Edinburgh Summit in December 1992. [FN146] A. The European Council Guidelines The European Council at Edinburgh set for itself the task, among others, [FN147] of clarifying how subsidiarity would be secured within the Community system. Evoking subsidiarity's legislative function, the Council affirmed that the principle was binding on all of the Community's political institutions, though not meant to alter their respective functions or to affect the institutional balance between them. [FN148] With respect to its adjudicatory function, the Council specified that subsidiarity was not intended to have direct effect in national courts, [FN149] but that it furnished a proper ground for a direct challenge to Community measures in the Court of Justice. [FN150] Finally, the European Council sought by the tenor of its remarks on subsidiarity to reassure the Member States and their various subcommunities that the post-1992 Community would genuinely respect their separate interests and capacities. This seemed especially necessary in light of the Danes' rejection by referendum of the Maastricht Treaty [FN151] and the closeness of the French vote, [FN152] and in anticipation of political and judicial challenges in the UK [FN153] and Germany. [FN154] The Council thus conspicuously sought to exploit subsidiarity's confidence-building function. In order to achieve this purpose, however, the Edinburgh Summit had to demonstrate that the concept of subsidiarity has meaning and that its meaning is intelligible. The European Council thus defined subsidiarity as permitting the Community to act only if its objectives cannot be sufficiently achieved by Member State action and can . . . be better achieved by action on the part of the Community. [FN155] According to the European Counciland this is strictly a matter of definitionsubsidiarity does not ask questions about the intensity or nature of the Community's action. [FN156] Such questions are addressed instead by the principle of proportionality, long since established by
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the Court of Justice [FN157] and recently affirmed by the Maastricht Treaty. [FN158] As presented by the European Council, the principle of proportionality bars the Community from selecting a measure that imposes burdens disproportionate to the objective sought to be served. [FN159] I shall argue in section C below that, although the European Council's distinction between subsidiarity and proportionality is analytically useful in defining the relevant questions for the political branches and in channeling the Court of Justice's interventions, it is also inherently and deeply problematic. [FN160] Turning to the subsidiarity principle proper, the European Council set out in its Edinburgh Conclusions a number of so-called subsidiarity guidelines, [FN161] each of which, for different reasons, is disappointing in its usefulness to the institutions. The first guideline counsels the institutions to consider whether the problem addressed by a proposed Community measure has transnational aspects which cannot be satisfactorily regulated by action by Member States. [FN162] Unfortunately, problems that are truly transnational in character, and readily identifiable as such, are not the ones over which the institutions are likely to entertain serious subsidiarity doubts. With respect to such problems, the institutions might well wonder to what extent and in what form to intervene, but these questions, as the European Council itself insists, go to the issue of proportionality, not subsidiarity. [FN163] The second guideline calls attention to whether a failure by the Community to act would conflict with the requirements of the Treaty (such as the need to correct distortion of competition, or avoid disguised restrictions on trade, or strengthen economic and social cohesion) or would otherwise significantly damage Member States' interests. [FN164] In a sense this guideline also addresses the easy cases, since the Commission and Council presumably will act whenever they deem it necessary to correct distortions of competition or avoid restrictions on trade, or to accomplish some other compelling Community objective. In other words, this guideline indicates where subsidiarity should stop, but not where it should start. Unlike the European Council's first two guidelines, its third one addresses the hard cases. Unfortunately, however, it does so in an entirely conclusory fashion. This guideline requires the Council of Ministers, before acting, to find that the Community measure that is contemplated would produce clear benefits by reason of its scale or effects compared with action at the level of the Member States. [FN165] This simply restates the principle of subsidiarity, [FN166] though it perhaps has the merit of specifying that the comparative advantage of Community over Member State action must be clear; in other words, the proposed measure must be markedly superior to the Member State alternative, and not merely as good or slightly better. The Council also states that subsidiarity must be substantiated by qualitative or, wherever possible, quantitative indicators, [FN167] which expresses a slightly different theme, namely that the subsidiarity principle imposes something in the nature of a burden of proof. The Council says nothing more about how such a burden might be met, except to dispel the idea that presenting a single position of the Member States on a given matter vis--vis third countries by itself justifies internal Community action on the matter. [FN168] In my view, none of these admonitions meaningfully advances the political decision whether a proposed measure meets the test of subsidiarity. In section C below, [FN169] I suggest that determining whether the Community's objectives can or cannot be sufficiently achieved by Member State action requires a substantially more searching inquiry than those implied by the Edinburgh guidelines' shortcut formulations. Although the Edinburgh exercise underscored in reassuringly simple summit language the European Council's attachment to the subsidiarity principle, it left the operational aspects of the principle largely unexplored. B. Subsidiarity in the Community Tradition Equally problematic, particularly from a confidence-building point of view, was the European Council's attempt to depict subsidiarity both as comfortably within the Community tradition and at the same time reflective of a new sensitivity to localism. In aid of the first proposition, the European Council asserted that the principle of attribution
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of powers has always dictated that national powers are the rule and the Community's the exception. [FN170] As might be expectedand as this Article's earlier discussion of enumeration, preemption, and implied powers shows [FN171]matters are not quite so simple. In this section, I take up the question of subsidiarity's novelty in the Community context. The claim that the Community practiced subsidiarity well before the Maastricht Treaty proclaimed it to be a general Community law principle is not entirely without substance. From the outset, the EC Treaty suggested that Member State laws should be harmonized only to the extent required for the proper functioning of the common market. [FN172] The legal form that the Treaty drafters initially envisioned as the main harmonization instrument was the directive, which itself reflects subsidiarity thinking. [FN173] The use of directives, as compared to regulations, presupposes that the Member States can safely be relied upon to select the appropriate form and methods for implementing Community policy. [FN174]. In the final analysis, of course, it is impossible to tell from the form of a Community measure whether its content is respectful of subsidiarity. The Council may easily enact legislation that, while taking the form of a directive, dictates policy on matters that the States acting alone could have done a perfectly good job of regulating, in breach of the subsidiarity principle. Conversely, the Council may adopt a regulation (i.e., a directly applicable instrument) and still take all due account of the States' willingness and capacity to act on the matter at hand. More indicative of subsidiarity than the institutions' choice of legislative form is their choice of legislative approach. In fact, the Commission and Council commonly use legislative instruments that are specifically designed to avoid unnecessary Community interventions. One such instrument is the mutual recognition of national standards. If the Community can afford to achieve its objectives by ensuring that the regulatory regime of each Member State meets certain minimum Community criteria, then it can leave the Member State regimes in place, and simply require each to give full faith and credit to the certifications made by the others. The Community thereby advances the free movement principle, without displacing Member State law or exacting an unnecessary degree of uniformity. While the Council may of course fail on any given occasion to show adequate self-restraint in defining the minimum criteria, the technique of mutual recognition acknowledges in principle the States' capacity to regulate their economies separately, and still not jeopardize the Community's essential regulatory goals. [FN175] A second legislative techniqueor set of techniquesredolent of subsidiarity is the Council of Ministers' new approach to technical harmonization, first announced in those terms in 1985. [FN176] The Council sought through this approach to streamline the harmonization process, chiefly by limiting the quantity and detail of issues that any given directive needed to address. The mutual recognition of standards mentioned above plainly serves the same goal. But the new approach counselled in more general terms against the adoption of detailed and comprehensive directives, urging the Community instead to limit harmonization to those aspects of a regulatory problem deemed to be essential, and to leave aside all others. Whether the issues left over are eventually regulated separately by the Member States or by private or government-supported standards bodies, or left unregulated altogether, is presumably not a matter of Community concern, provided the essentials contained in the directive are respected and significant barriers to intra-Community trade are not reintroduced. [FN177] The Council's chief purpose in adopting a more streamlined approach to harmonization may have been to lighten its legislative burden, particularly with the 1992 single market program on the horizon; but this preference necessarily also conveyed a sense of confidence in the States' ability to address matters within their legislative sphere without causing undue detriment to Community policy. Similarly suggestive of subsidiarity is the Council of Ministers' practice of using legislative language that expressly allows the Member States to adopt a still higher level of protection should they so choose. [FN178] This is not to say that the use of non-preemption language guarantees subsidiarity; even a non-preemptive Community measure may not have been necessary for achieving the objective sought, or if necessary, might have been made less farreaching. Nevertheless, the practice of expressly allowing more protective Member State legislation shows a healthy appreciation for the States' capacity to govern a matter that the Community could constitutionally regulate, and it
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should remove any doubt about their entitlement in principle to do so. [FN179] Under the definitions adopted by the European Council at Edinburgh, [FN180] these three instrumentsthe preference for directives, [FN181] the new approach to harmonization [FN182] and express legislative non-preemption [FN183]more closely serve the purposes of proportionality than subsidiarity. Nevertheless, each of them received the Council's specific endorsement at Edinburgh. The Council also urged the Community institutions, in the interest of proportionality, to favor interventions that facilitate and coordinate Member State actions rather than compel them, whenever the institutions could still thereby achieve their purposes. [FN184] Since the distinction between whether the Community should act in place of the States and how far it should go in doing so is artificial at best, the Council's injunctions about proportionality can scarcely help but serve subsidiarity's purposes as well. The foregoing discussion shows that while the rhetoric of subsidiarity is unprecedented in the Community, the practice of subsidiarity is not. It is nevertheless difficult to tell just how deliberately and systematically the institutions have practiced subsidiarity in their conduct of policy analysis or in their design of legislation. Rightly or wrongly, it remains a widely-held impression that the Community commonly legislates on matters bearing a tenuous or strained connection with the internal market, that it often acts not because acting has been shown to be necessary but simply because it might be useful, and that even when it legislates on a proper subject, it often does so in unnecessary detail and in search of unnecessarily standardized results. [FN185] Even if this impression is no longer accurate (if it ever was), it is nevertheless a fact of which the architects of European integration need to be aware. One way for the Community to acknowledge that it may not always have practiced subsidiarity as seriously as it might have would be to reconsider existing legislation from a subsidiarity point of view. Interestingly, although the subsidiarity provision of the Maastricht Treaty requires only prospective application of the principle, [FN186] the consensus in political and academic quarters alike is that the institutions should also reexamine legislation already on the books, [FN187] as they have in fact begun to do. [FN188] It is unlikely that at the time they enacted such legislation, the institutions asked the precise questions that subsidiarity now seems to require. It is also possible that existing legislation was adopted in accordance with the principle of subsidiarity, but that circumstances have since changed in ways which suggest that the legislation be repealed or amended, [FN189] or that the institutions simply erred in their judgment that they needed to act in place of the States. Another way in which the Community might hasten the process of eliminating unnecessary legislation is by providing for its automatic expiration after a certain period, unless specifically renewed. [FN190] Such so-called sunset provisions are not, however, in the tradition of European legislative practice. The Commission's willingness to reexamine existing legislation under a subsidiarity principle not recognized or enforced when the legislation was passed has obvious political advantages. It demonstrates with some clarity that subsidiarity has meaning and will make a difference. If subsidiarity is the promise on the basis of which the States and their various subcommunities are supposed to accept the accretions in Community power under Maastricht, and to continue on the path toward European political union, this is an important showing indeed. But the principle of subsidiarity may demand retroactive application for consistency's sake too. The Community may find it awkward to enforce existing legislation when analogous proposals for future legislation are being amended, withdrawn or defeated (or new legislation possibly even invalidated) on subsidiarity grounds. [FN191] During ratification of the Maastricht Treaty, the Commission reexamined the legislative proposals then pending before the Council and Parliament, and began the much more daunting task of reviewing existing legislation for its continuing conformity with subsidiarity. [FN192] The Commission quite properly also reconsidered legislative initiatives that were still in the planning stage. [FN193] Indications are that the reassessment produced results. By the time of the Edinburgh Summit, the Commission had decided to withdraw three proposed directives [FN194] and to revise six more; [FN195] it also announced its intention to consider withdrawing or revising a number of others. [FN196] Finally, certain initiatives still in the planning stage were abandoned, ostensibly on subsidiarity grounds. [FN197] The Commission subsequently withdrew a still much larger number of pending legislative proposals.
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[FN198] The Commission, with the European Council's obvious blessing, evidently proceeded in the sensible belief that, particularly in matters of politics, actions speak louder than words. In November 1993, at the request of the European Council at Edinburgh, the Commission produced a report on the Adaptation of Community Legislation to the Subsidiarity Principle (Adaptation Report). [FN199] The report identified the existing Community legislation in all areas that the Commission had determined to revise, either in the interest of subsidiarity or proportionality. [FN200] Revision would take one of three forms: recasting, simplification, or repeal. Recasting means reordering in a more consistent and coherent fashion; simplification refers to the elimination of unnecessary detail; and repeal consists of eliminating legislation that is no longer needed. [FN201] While promising that the process would not degenerate into a free-for-all, in which . . . various parties . . . propose the revision or repeal of legislation for reasons of expediency, [FN202] the Commission cited hundreds of enactments that it would seek to recast, [FN203] simplify, [FN204] or repeal [FN205] in the near term. The sheer number of changes projected in the Adaptation Report is of course very impressive. However, the report's clear emphasis on recasting and simplification suggests that the operation may end up streamlining many specific Community enactments, and thus pruning the corpus of EC legislation, but still failing to return very many matters to governance by the Member States. In this respect, the Adaptation Report only points up the importance of asking and answering the right questions in subsidiarity's name. It is to this aspect of the problem that I now turn. C. Subsidiarity as a Mode of Legislative Analysis Having examined how the Community has defined the principle of subsidiarity and thus far sought to implement it, I now look more closely at what it will mean in the future to treat subsidiarity essentially as a legislative precept. This entails, first, clarifying the nature of the legislative inquiry and its institutional implications. I trace these aspects of subsidiarity in the first part of this section. However, understanding the legislative practice of subsidiarity also entails acknowledging the complex analytic and policy questions that application of the principle will inevitably raise. In the second and third parts of this section, I attempt to show that taking subsidiarity seriously as a legislative norm requires confronting both the difficult distinction between policy measures and harmonization measures and the necessity of making conscious tradeoffs between subsidiarity and other legislative principles, notably proportionality, that are also deemed to be fundamental in the Community legal order. 1. Institutional Aspects of Subsidiarity. The burden of respecting subsidiarity in the exercise of Community power would seem to lie initially with the Commission, which enjoys a virtual monopoly over conceiving and drafting legislative proposals. The European Council at Edinburgh suggested that the Commission should consult with the Member States at an early stage on the subsidiarity aspects of a proposal, and include in the explanatory memorandum accompanying any proposal made to the Council of Ministers a statement justif[ying the] initiative with regard to the principle of subsidiarity. [FN206] One can readily imagine a reasoned Commission forecast of (1) the actions, if any, that the Member States could plausibly be expected to take to accomplish the purposes underlying the proposed Community measure, (2) the respective likelihood of those actions occurring, (3) the probable consequences of the actions, and (4) a comparison of their probable effectiveness with that of the Community measure under consideration. Presumably, consideration would also be given to leaving the matter unregulated at all levels of government. A subsidiarity impact analysis, to coin a not altogether original description of such reasoning, might cause the Commission to conclude either that no alternative measures the Member States could reasonably be expected to take would adequately serve the Community's purposes and that the Commission proposal should go forward, or that adequate Member State alternatives in fact exist and that the Commission proposal should not proceed. [FN207] The analysis might of course produce much less conclusive results. In any event, the Commission's impact analysis could constitute the record on which the other institutions (notably the European Parliament, the Economic and Social Committee and the Council of Ministers) base their own initial assessments of any Commission proposal. On the oth-
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er hand, the Commission's analysis obviously should not in any way limit those institutions' right to make their own factual inquiries, perform their own political and economic analyses, and reach their own ultimate conclusions. The Commission took its November l993 Adaptation Report [FN208] as a further occasion to describe the type of analysis that subsidiarity entails. While depicting subsidiarity more as a state of mind than a set of procedural rules, [FN209] the Commission nevertheless affirmed that subsidiarity required it to answer in the form of an explanatory memorandum a prescribed set of questions before proposing a new measure within the Community's and Member States' shared competence. Among the issues to be addressed in any such justification are: (a) What are the aims of the proposed action in terms of the Community's obligations? . . . (c) What is the Community dimension of the problem (in other words, how many Member States are involved and what solution has been applied to date)? (d) What is the most effective solution, given the means available to the Community and to Member States? (e) What is the specific added value of the proposed Community action and the cost of failing to act? [FN210] The Commission also undertook to publish its explanatory memoranda in the Official Journal together with the proposals to which they relate, thus enabling interested parties to comment on the subsidiarity aspects of the proposals before their adoption. [FN211] According to the Commission, these procedureswhich it had already begun to followhad caused it to put forward fewer legislative proposals in 1993 than in prior years. [FN212] Although the Commission is the right body to make the initial investigative and analytic investment into the subsidiarity aspects of legislation, the European Council at Edinburgh nevertheless placed greater emphasis on the Council of Ministers' role in guaranteeing subsidiarity, presumably because of its greater decisional authority as an institution. The examination of the compliance of a measure, with the provisions of Article 3b [i.e. subsidiarity] . . . should become an integral part of the overall examination of any Commission proposal and be based on the substance of the proposal . . . . This examination includes the Council's own evaluation of whether the Commission proposal is totally or partially in conformity with the provisions of Article 3b (taking as a starting point for the examination the Commission's recital and explanatory memorandum) and whether any change in the proposal envisaged by the Council is in conformity with those provisions. The Council decision on the subsidiarity aspects shall be taken at the same time as the decision on substance and according to the voting requirements set out in the Treaty. [FN213] Since the Council is itself composed of Member State representatives, the Member State governments are themselves primarily responsible for making subsidiarity work. [FN214] However, the Edinburgh Conclusions also specifically urged the Council's various working groups and its Committee of Permanent Representatives to include subsidiarity considerations in their own reports on any Commission proposal, and asked that the Council report to the European Parliament (in those cases in which the Parliament has a distinct legislative voice) on whether the Commission proposal does or does not comport with the principle of subsidiarity, and why. [FN215] Although the European Council said nothing at Edinburgh about how subsidiarity should specifically figure into Parliament's legislative opinions under the parliamentary consultation, cooperation, and co-decision procedures, [FN216] it seems evident that Parliament also should evaluate the proposals before it from a subsidiarity point of view, and do so with full freedom of inquiry and judgment. [FN217] Subsidiarity thus essentially describes a method of policy analysis that each participant in the Community's legislative process should follow in deciding whether to propose, endorse, or enact a given measure. [FN218] The European Council's apparent emphasis at Edinburgh on the Council of Ministers is accordingly misleading. As the Community's legislative processes become more varied and complex, with different institutions playing different roles (proposing, voicing opinions on, suggesting amendments to, requiring or performing second readings of, and fi-
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nally adopting measures), [FN219] each of the institutions will inevitably be drawn into incorporating the reasoning of subsidiarity into its decisional processes. The European Council's request at Edinburgh that the Commission review all proposed and existing legislation in preparation for the European Council's December 1993 Brussels Summit reflects partial recognition of this fact. [FN220] 2. Distinguishing Policy Measures and Harmonization Measures. My discussion of subsidiarity as a set of procedural instructions to the institutions has thus far proceeded as if all Community legislation were basically alike. In formulating more precisely the legislative inquiry that subsidiarity entails, it is actually crucial to distinguish between legislation that aims at establishing substantive regulatory policy, on the one hand, and legislation that aims at promoting the establishment and functioning of the internal market, on the other. However awkward, this is a distinction that the structure of the EC Treaty imposes on us. Much Community legislation falls squarely within substantive policy arease.g., environmental protection, occupational safety, research and technological development, and the newer program areas provided for by the Maastricht Treaty [FN221]for which the Treaty expressly confers legislative competence on the Community institutions. The operation of subsidiarity in the analysis of what we may thus conveniently characterize as policy measures is not particularly difficult to describe. Essentially, subsidiarity entails defining as precisely as possible the objectives meant to be accomplished, and comparing the Community measure proposed to the measures that could be taken independently by the Member Statesor to no governmental intervention at allin terms of its effectiveness in achieving those objectives. Subsidiarity operates rather differently for what may be called harmonization measures, by which I mean measures whose stated rationale is to reduce or eliminate non-tariff barriers to trade resulting from regulatory action that the Member States have otherwise properly taken on matters within their jurisdiction. In this case, the proverbial Community measure is not a piece of legislation that advances a particular policy for which the Community bears legislative responsibility under the Treaty, but rather a directive requiring the harmonization of Member State policies on matters for which the Member States remain at least nominally responsible. In order to respect subsidiarity in the adoption of harmonization measures,the Community presumably should intervene only where necessary for the internal market to work effectively, and even then only to the extent necessary. [FN222] Pursuing subsidiarity in the design of harmonization measures can, however, be highly problematic, not only in practice but also in theory. Generally speaking, the regulatory environment can always be made more uniform. If one were to consult common market criteria alone, disregarding other values such as diversity among the goods and services available in the market, one would opt for maximum regulatory uniformity. Accordingly, the only way to make room for subsidiarity in designing harmonization measures is consciously to curtail them so that they are not enacted unless they make significant and justifiable internal market gains, and so that they in any event go no further than reasonably necessary in order to achieve those gains. Such a harmonization strategy would in effect advance subsidiarity at the same time as it advances proportionality, as if conflating the two. In theory, the Community institutions would seek to reduce or eliminate disparities among Member State regulations only to the extent that those disparities substantially impede the free movement of one or more of the factors of production (thereby impairing the commonness of the market) and the gains in market integration outweigh the specific loss of Member State autonomy that results. Determinations of this sort are of course profoundly political in that they entail judgments about how much each incremental gain in economic integration is worth in costs to certain other values, notably the values (for example, diversity) underlying subsidiarity itself. [FN223] One supposes that the Commission and Council were in the habit of asking themselves precisely these questions long before they talked about subsidiarity, which may help explain why subsidiarity already had a familiar ring to it when it was first proclaimed in the Maastricht Treaty to be a fundamental Community law principle. Still, if subsidiarity is to be taken seriously in the years ahead, and to be applied to harmonization measures as well as policy measures, these questions will have to be asked more explicitly and systematically than ever before. It should now be clear why the practice of subsidiarity in the adoption of policy measures can by contrast be relatively straightforward. When the Community legislates directly on subjects falling within its sphere under the Treat-
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ies, subsidiarity requires it to ascertain that the Member States, left to their own devices, could not do an adequate job of furthering the Community's basic policy objectives. This too is obviously a political call, but in a quite different sense. As applied to these measures, subsidiarity does not require deciding how much each incremental gain in market integration is worth in terms of sacrifice to the political autonomy of the Member States and their various subcommunities. It does not pit two opposing valuesintegration and localismagainst one another, but demands, in the acknowledged interest of one of themnamely localismthat Member State action be preferred if it would effectively accomplish the Community's purposes. The somewhat greater ease of applying subsidiarity to policy measures than to harmonization measures may help explain why subsidiarity figures so much more prominently in connection with the former (notably environmental and consumer protection, social policy, and economic and monetary union) than with the latter. Notwithstanding my claim that subsidiarity is analytically more manageable when the Community makes policy directly than when it makes policy indirectly, the analysis can in either case be exceedingly complex. Let us take the seemingly simpler case of policy measures. Comparing the efficacy of a Community proposal, on the one hand, with action that might be taken separately or jointly by the Member States, on the other, sounds deceptively easy, familiar as we now are with the practice and theory of cost-benefit analysis. Assessments of comparative utility are difficult to conduct under ordinary circumstances, but they are substantially more difficult to conduct when one of the measures to be comparedin this case action at the Member State levelmay itself be entirely hypothetical. In order to practice subsidiarity, the institutions need to forecast a whole range of actions or inactions in which the Member States might engage in relation to a given Community goal, if the Community institutions allowed them to, and make a utility assessment of each. Moreover, each Member State option has to be discounted for the possibility that not all of the Member States may take the action contemplated on a timely or adequate basis or indeed at all. [FN224] It is only after some generalized assessment of Member State potential emerges from this enormously contingent and variable analysis that its overall adequacy in achieving Community objectives can then be compared with that of the proposed Community measure, as the principle of subsidiarity requires. [FN225] Subsidiarity plainly calls for predictions and therefore for the exercise of judgment on matters that may be at best the subject of ignorance and conjecture, and at worst the subject of bitter dispute. The fact that subsidiarity calls for judgments that are invariably political and often immensely speculative is not, however, an argument against requiring the institutions to observe it. Neither is the fact that the analysis may rarely yield obvious results. As I argue in greater detail in a later section on the Court of Justice, [FN226] the essential question is whether such a requirement will help the institutions to reach politically sound decisions, while avoiding the imposition on them of undue procedural costs. 3. Subsidiary and Proportionality. As noted earlier, [FN227] the European Council at Edinburgh underscored the close affinity between the Community law principles of subsidiarity and proportionality. It regarded the former as dealing with the question whether the Community should take action, and the latter as dealing with the Community's choice of means when it does act. In this section, I argue that the relationship between the two concepts is not as simple as the European Council suggests. I shall attempt to show that proportionality does not simply pick up where subsidiarity leaves off, and that this in turn has serious implications for the political branches and the Court of Justice alike. The doctrine of proportionality, which the Court of Justice largely derived from continental principles of constitutional and administrative law, [FN228] is said to require that every Community measure satisfy three related criteria. First, the measure must bear a reasonable relationship to the objectivepresumably a legitimate onethat the measure is intended to serve. [FN229] This may be regarded as the doctrine's rationality component. Second, the costs of the measure must not manifestly outweigh its benefits. [FN230] This may in turn be regarded as the doctrine's utility component. Finally, the measure chosen must represent the solution, among the various alternatives that were available for achieving the prescribed objective, that is least burdensome. [FN231] This requirement to use the least restrictive or least drastic means is one that the Court of Justice has typically justified in terms of min-
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imizing the burdens imposed by the Community on the private sector, but it can readily be used to minimize the Community's intrusions on the Member States and their subcommunities as well. Each of the three elements of proportionality has at least some resonance among levels of judicial scrutiny recognized in U.S. constitutional review. Proportionality in fact has chiefly been regarded in the European Community, and in European public law more generally, as a principle of judicial review. Within the Community, it is the Court of Justice that has developed and enforced the notion that Community measures must bear a reasonable relation to the end sought to be achieved, must produce a net benefit, and must represent the least burdensome means available, and that they will in principle be annulled if they fail to do so. [FN232] This is not to say that the political branchesnotably the Commission, Parliament, and Councildo not consider proportionality in making their legislative judgments; it is to be hoped and possibly even assumed that they do, as an integral part of their deliberative processes. Nevertheless, the Maastricht Treaty [FN233] and, even more explicitly, the guidelines of the 1992 Edinburgh Council [FN234] have the distinct merit of clarifying that proportionality is not only a judicial doctrine for the Court of Justice to apply in reviewing the legality of Community action, but also a legislative doctrine for the political branches to follow in their policymaking. Because the Community institutions are thus duty bound to observe both proportionality and subsidiarity as general principles of decision-making, they have an interest in knowing whether and to what extent the two are consistent. The Maastricht Treaty suggests that they are of a piece. [FN235] The Edinburgh guidelines go further, implying that once subsidiarity determines that the Community should take action, proportionality then dictates the action it should take. [FN236] The suggestion is that the two naturally function in concert, even in logical sequence. These assumptions about subsidiarity's natural relationship with proportionality bear closer scrutiny. It seems reasonably clear that a measure may satisfy the first two criteria of proportionality and nevertheless run afoul of subsidiarity. In other words, a Community measure, while reasonably related to its stated purpose and productive of net benefits, may nevertheless not have been necessary, in the sense that action taken at the Member State level, or perhaps non-regulation altogether, would have been quite effective in achieving the Community's goals. The relationship between subsidiarity and the least drastic means aspect of proportionality is thus potentially problematic. Suppose, for example, that the least burdensome approach to accomplishing a given objective would be through Community action rather than through some alternative action at or below the Member State level. In this event, subsidiarity and proportionality would in a sense work at cross-purposes, with subsidiarity dictating a disproportionate remedy (assuming the objective could be achieved at or below the Member State level) and proportionality in turn dictating a remedy that fails the test of subsidiarity. It is difficult to say, as an abstract matter, whether proportionality or subsidiarity should carry the day. One way of dealing with this tension would be for the institutions to take the European Council rigorously at its word and not entertain the proportionality question until the subsidiarity question is settled. Under this strategy, the Community institutions would refrain from adopting any measure whenever their objectives could adequately be met through action taken at or below the Member State level. The fact that a Community-level measure might impose fewer burdens, and thus constitute a less drastic means to the same end, might never enter into consideration. Such a solution may justly be criticized as sacrificing proportionality on the altar of subsidiarity and, in the process, forsaking many of the efficiency advantages of Community-level action. An obvious alternative would be to posit that subsidiarity requires resort to Member State (or more local) action over Community action only when it would be just as effective. If action at or below the Member State level would impose greater burdens than Community action, and to that extent fail the test of proportionality, then by definition it is not equally effective. By this reasoning, strictly applied, subsidiarity would simply not require that the Community refrain from acting, and proportionality considerations alone would in effect have dictated the result. Of course, if subsidiarity never deters the Community in such situations from taking the action that proportionality favors, it is then the principle of subsidiarity that will find itself systematically sacrificed.
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It thus seems clear that at least under some circumstances subsidiarity and proportionality, strictly applied, will point in opposite directions. Realistically, the political branches of the Community have a means of escape from the apparent dilemma. They can relax the proportionality test so as to accept Member State action in lieu of Community action, even if the former is more burdensome, provided it is not manifestly so (i.e., does not impose unreasonably excessive additional burdens); this opens up the possibility of scoring large subsidiarity gains for a small proportionality price. Conversely, they can relax the subsidiarity test; if the proportionality advantages of Community action over Member State action are substantial enough, subsidiarity's preference for localism arguably should not be allowed to stand in the way. What I am here describing, and what seems to me to make a good deal of sense if both subsidiarity and proportionality are to be taken seriously, is of course the possibility of making different tradeoffs between the two. Analysis and reflection may show that a Member State course of action does far more harm from a proportionality point of view than it does good from a subsidiarity point of view or, conversely, that a Community measure does far more harm from a subsidiarity point of view than it does good from a proportionality point of view. Only some kind of comparative impairment analysis will reveal how much is being paid in proportionality terms for subsidiarity gains, or vice versa. Resolving the tension between subsidiarity and proportionality, when the two are in competition with each other and when each may plausibly be applied to the matter at hand, can only be described as an acutely political judgment to be made by the political institutions themselves. They are the ones best situated to determine whether, in light of all the interests at stake in the matter at hand, it is more important to promote the values of localism or to deploy the least drastic means. D. Subsidiarity and the Court of Justice My discussion of subsidiarity thus far has proceeded with its implications for judicial review still very largely in the background. Given subsidiarity's fundamentally political character, this is appropriate. In fact, the drafters at Maastricht sidestepped the question of whether and to what extent the principle of subsidiarity would be justiciable. [FN237] When the European Council finally addressed the question at Edinburgh in 1992, it displayed deep ambivalence, declaring, on the one hand, that subsidiarity cannot be regarded as having direct effect, but, on the other, that compliance with it by the Community institutions is subject to control by the Court of justice. [FN238] Under this view, while individual litigants in national courts might not be permitted to invoke the principle of subsidiarity to avoid the application of otherwise valid Community measures, legal challenges to Community measures could be brought on subsidiarity grounds directly in the Court of Justice. Because standing to sue in the Court of Justice is highly restrictive, [FN239] and because the statute of limitations on such actions is in any event extremely short, [FN240] the Council's solution appears to make the principle of subsidiarity justiciable without at the same time opening the floodgates. The fact remains, however, that even under the Court of Justice's strict standing and limitations rules, every Community measure would be subject to attack in the Court of Justice on subsidiarity grounds by a Community institution or by one or more of the Member States politically opposed to it. [FN241] 1. Subsidiarity as a Procedural and Substantive Norm. Assuming justiciability, the principal question ofjudicial review is whether the Court of Justice should treat subsidiarity primarily as a substantive or a procedural requirement. I suggest that casting subsidiarity in procedural rather than substantive terms will best allow the Court of Justice to promote respect for the values of localism without enmeshing itself in profoundly political judgments that it is ill-equipped to make and ultimately not responsible for making. The same characteristics that make the inquiry difficult for the political branches to conductnamely, uncertainty about how much localism really matters on a given issue, the heavy reliance on prediction and the probabilities of competing scenarios, the possibility of discretionary tradeoffs between subsidiarity and proportionality, and the sheer exercise of political judgment entailedmake the inquiry even more problematic for the Court. Even without inserting itself unduly into those matters, however, the Court can seek to verify whether the institutions themselves examined the possibility of alternative remedies at or below the Member State level. That very inquiry should encourage the political institutions to structure their discus-
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sion and focus their debate on the most central legislative task, namely identifying the measures, if any, that will appropriately address the problems worth addressing, and suggesting the level of government at which (and ultimately the form in which) those measures should be taken. This in turn should promote a realistic assessment by the political branches of the costs and benefits of Community action and inaction alike. Moreover, a decisional process which demonstrates that the institutions genuinely considered the available Member State alternatives before resolving to act is likely to win measurably greater trust and thus enjoy greater support among the Member States and European public opinion than one that does not. What little evidence we have suggests that the institutions can meaningfully address the questions that subsidiarity raises, [FN242] and that addressing those questions influences outcomes. [FN243] The efficacy of a procedural review of this sort should not, of course, be exaggerated, particularly since there are limits to the resources that the Court of Justice can or should expend in verifying whether the political branches actually inquired into subsidiarity and whether the inquiry was a genuine one. Determining the minimal adequacy of a subsidiarity impact analysis is inherently problematic, but the Court's performance in enforcing the rather elusive proportionality principle [FN244] suggests that it may be capable of drawing the necessary lines. The Court should not attempt to police closely the performance of such analyses; one can hope that the mere prospect of the Court policing their performance will cause the political branches to perform the required examinations more seriously. If the values that the subsidiarity inquiry can be expected to serveself-determination and accountability, personal liberty, flexibility, preservation of local identities, diversity, and respect for the internal divisions of component statesare important enough (as I believe they are), and if the costs of the inquiry are not too great (as I believe they are not), then the Court of Justice should require that it be made. It is easy in conceiving of subsidiarity as a procedural principle to envisage the Community institutions satisfying themselves that Community action is necessary and then proceeding to act. However, in order to assess fully the merits of subsidiarity, it is also important to contemplate the situation in which the institutions ultimately refrain from action because they conclude that the Member States, left to their own devices, can effectively accomplish the Community's purposes, and to assess the risks of the institutions acting on that belief. [FN245] More specifically, the institutions may decline to act, but later be shown to have erred in their judgments about the Member States' willingness or capacity to address the problem at hand. The Member States may turn out not to have acted as expected, or their actions may turn out not to have produced the desired consequences. In theory, at least, the institutions' subsidiarity analyses should furnish a basis for the Commission to compare what actually happened in the wake of the Community's decision not to act with what the institutions thought would happen. If the Commission decides that the Community should intervene after all, it may even find that the existing record assists it in determining the specific measures to propose. Permitting judicial challenges to Community measures on substantive subsidiarity grounds would certainly raise at least as many difficulties as permitting them on procedural grounds. It is clear that the Court should not in any event conduct a de novo inquiry into the comparative efficacy of Community and Member State action in achieving the Community's objectives. The Court should not even conduct a de novo review of the existing legislative record. As we have seen, the probabilities to be assigned to the various Member State alternatives, the assessment of their utility in achieving Community goals, and a comparison with them of the Community measure in question are matters of political judgment, precisely the kind on which the Court should show the utmost deference to the political branches. The case for deference becomes positively overwhelming when it appears that the institutions may also have had to balance subsidiarity and proportionality considerationseach with its own separate complexitiesagainst one other. [FN246] Imagine for example a situation in which the Council of Ministers, facing a problem within the Community's sphere of competence, determines upon study that each plausible option at the Member State level presents certain inconveniences and disadvantages significant enough to justify the Community acting in their stead. A considered judgment that the Member State alternatives are deficient, and that Community action is therefore necessary, will
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hardly be easy to refute. To refute it might require gauging everything from the technical and policy bases of the institutions' assumptions to the inherent logic and persuasiveness of their analysis, not to mention the importance of vindicating the subsidiarity principle (and thereby the values of localism) on the particular issue at hand. If, as I urge, subsidiarity is in fact taken seriously as a tool of legislative analysis, the Council's conclusion that Member State action would not adequately achieve Community goals should scarcely ever be so conclusory or unconvincing as to invite disbelief by the Court. It has been argued that if the prospect of successfully challenging a Community measure on subsidiarity grounds is indeed so slim, then the subsidiarity principle may just as well be considered categorically nonjusticiable, and the Court spared the agony of dealing with it. [FN247] The German Constitutional Court has in effect determined that the largely comparable provisions on federal subsidiarity in the German Constitution [FN248] are nonjusticiable, with the result that the necessity for federal government legislation in areas of concurrent competence is essentially a political question to be decided by the political branches without judicial interference. [FN249] But deference to the political branches on subsidiarity does not require that the principle be made wholly nonjusticiable, any more than deference on proportionality requires that result. The mere possibility that the Court will find the Community to have egregiously overstated the risks of leaving a matter in Member State hands, [FN250] and will annul its exercise of power, should induce the Community's political branches to exercise sound judgment in this respect. [FN251] Treating subsidiarity as a justiciable principle, whether procedural or substantive, will admittedly require the Court of Justice to play a role to which it is not accustomed, namely restraining Community action in the interests of localism. [FN252] Nevertheless, the Court has shown itself to be capable of reviewing the legality of Community measures by reference to other constitutional values that could equally be described as vague but not intelligible, [FN253] and for which precise criteria of judgment do not exist. One could cite the Court's jurisprudence on fundamental rights, [FN254] though that is a somewhat different case, since courts tend to regard protecting such rights as their special calling. The Court of Justice's proportionality jurisprudencemarked by a high degree of deference to the political branches, but also by an occasional annulment of one of their decisionsprovides a closer analogy. [FN255] The fact remains that the Community simply cannot afford to ignore the political impulses that fueled the demand for subsidiarity in connection with the Treaty on European Union and that the Community's prospective enlargements will only heighten. In this context, the Court of Justice has a crucial symbolic and educationalalbeit operationally limitedrole to play. 2. The Strength of the Political Safeguards of Subsidiarity. The decision whether to assign the judiciary a role in policing legislative respect for subsidiarity, and if so what role, is evidently a highly problematic one. In Part III of this Article, I examine prevailing attitudes toward the problem in the United States. A factor that has seemingly influenced the outcome in the United States is the strength of the theory that the structure and composition of the federal government itself furnish adequate political safeguards for federalism. As we shall see, [FN256] confidence in the adequacy of these safeguards has come under increasing pressure in the United States, with the result that the Supreme Court has only recently shown a revived interest in judicially enforcing the Tenth Amendment. It may therefore be useful in confronting the uneasy prospect of making subsidiarity justiciable in the Community to try to assess the political safeguards of federalism in the EC institutional setting. [FN257] My conclusion is that, whatever the strengths of the theory of political safeguards in the United States, the theory fits the Community rather poorly. Superficially, the Council of Ministers exhibits precisely the kind of structure that should enable it to safeguard the political interests of the States. [FN258] Each Member State is separately represented in the Council by the government minister responsible for the field in which the Council is considering action. The minister's acknowledged responsibility is to look after the State's interests in the matter before the Council and to cast a vote accordingly. The fact that a minister represents the interests of a Member State does not, however, mean that he or she will necessarily vote in a manner consistent with the principle of subsidiarity or the purposes underlying it, that is, the notion that policymaking discretion should be left in the most local hands possible. The more common assumption is
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that Member State representatives will vote in the Council in accordance with their State's economic and political advantage as they see it in the context of the issue at hand. [FN259] A particular policy may be so economically or politically favorable to a Member State that it wins the State's support in the Council, despite the fact that the policy's underlying objective could adequately be accomplished by action taken at or below the Member State level. In this respect, subnational regions may be among those most disadvantaged by the transfer of national regulatory authority to the Community institutions. [FN260] Even if authority over a matter could perfectly well be left in Member State hands, a State may support action at the Community level simply in order not to be seen as voting on subsidiarity grounds against a measure that it basically favors. A State may also support the adoption of a Community measure precisely to avoid suffering the competitive disadvantages that would result from taking an equally appropriate measure on its own or in the company of a minority of States. Shifting decisional authority to Brussels may even enable a national government to escape political responsibility for a necessary but highly unpopular measure; political accountability will certainly not thereby be served. Under each of these hypotheses, a representative's vote in the Council, though in a sense dictated by the Member State's interest, will fail to reflect the various political advantages of localismself-determination and accountability, personal liberty, flexibility, preservation of identities, diversity and respect for internal divisions of component Statesthat are associated with subsidiarity. [FN261] Moreover, the intergovernmental flavor of Council decisionmaking, even under qualified majority voting, should never be underestimated. Wherever a Member State's narrow political interests in a given matter may lie, its representative may readily decide that the overriding interest of another State (or, to put the matter more squarely, the desirability of serving another State's interests in exchange for its political favor on some other issue) requires that he or she vote otherwise. In a decisional setting so clearly marked by interstate political negotiation, the abstract advantages of reserving political choice to local communities may well be overlooked. For all these reasons, a Member State's representative in the Council of Ministers may simply not cast his or her vote in keeping with the notion that power should be exercised at the lowest political level at which the objective of the exercise can be accomplished, and possibly not even in keeping with the political interests of the populations and subpopulations within his or her State. The weakness of the Council in terms of domestic political accountability has in fact become a preoccupation in certain Member States, particularly as the Community's powers of governance have grown. Denmark, for example, has pioneered techniques of national parliamentary oversight of the Government's voting patterns in the Council of Ministers. [FN262] The French Constitution was amended in 1992 in contemplation of the Maastricht Treaty to ensure that the French Parliament would be consulted on the exercise of legislative powers by the Council. [FN263] As a federal state itself, Germany recently amended its Constitution to guarantee that the Lnder would actually have a decisive role in at least some of the votes that Germany casts in the Council; [FN264] and the German Constitutional Court's recent affirmance of the constitutionality of the Maastricht Treaty seems to be conditional on the Lnder having effective opportunities to participate in Council decision-making. [FN265] These various strategies for heightening the responsiveness and accountability of Member State representatives in the Council, however, are still poorly developed [FN266] and have yet to prove their efficacy. [FN267] The claim that the structure and composition of the Community institutions guarantee respect for subsidiarity is not much stronger in the case of the Commission or the European Parliament. The Commission, whose role in drafting and proposing Community legislation is paramount, does not even purport to act in the interests of the States, much less in the interest of the political autonomy of their subcommunities. Commissioners are in fact expressly barred by the Treaty from doing so. [FN268] In short, the Commission may choose to design legislation in the spirit of subsidiarity, but nothing in its structure or composition so dictates. The European Parliament offers greater institutional promise in this respect. Its members are popularly elected by territorially-defined constituencies from among the Member States. As such, they are or should be in closer touch with the local populations and their aspirations for self-governance. Judging by the broad subsidiarity language that Parliament included in its 1984 Draft Treaty on European Union, [FN269] subsidiarity indeed has some resonance in
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that institution. On the other hand, seats in the European Parliament have chiefly attracted persons in search of a platform for the advancement of more or less well-defined political views or philosophies rather than the representation of local interests as such. [FN270] Significantly, parliamentarians sit, and vote, according to broad cross-national party affiliations, not according to national or subnational geographic criteria. The notion that a politically neutral value [FN271] like subsidiarity would play a determining role in the votes cast by members of Parliament elected and organized in this fashion is not a very realistic one. Finally, Parliament's legislative functions are still quite limited. On some subjects, its voice is consultative or advisory only; on others its opposition to a bill simply requires that the Council pass the measure by unanimity rather than qualified majority, or forces a second reading. [FN272] Only under the Maastricht Treaty, and even then only on matters that are expressly made subject to parliamentary codecision, [FN273] does Parliament enjoy something in the nature of a legislative veto. All in all, the institutional support for a theory of political safeguards of subsidiarity in the European Community is not very impressive. [FN274] Despite appearances, neither the Council of Ministers nor the Parliament is structured to ensure that political decisions on any given issue are made at the lowest level of government possible; the Commission is certainly not so structured. Arguably, the real institutional safeguard of subsidiarity in the Community is that, in most areas, the implementation of Community policy ultimately lies in the hands of Member State and local officials. [FN275] Thus, states and localities have it within their power to influence the ways in which, and the efficacy with which, Community policy is actually administered. Unless the Community acquires much greater fiscal independence from the Member States than it now has, which is not in the offing, this situation is unlikely to change. The argument that the decentralized administration of Community law favors subsidiarity is, however, deeply flawed. Besides confusing the notions of making and executing policy, the argument only suggests that States and localities may weaken the enforcement of policies made at an inappropriately high level of government, not that they will do so, and certainly not that they will do so with any consistency. In fact, the wholesale reliance on Member State resources for the implementation of Community policy may raise more subsidiarity doubts than it allays. As we shall see in Part III, [FN276] the U.S. Supreme Court has come to view federalism as being ultimately impaired when the public cannot hold its elected officials politically responsible for the policy decisions they carry out, or even determine the priorities according to which public resources are spent. Yet this is precisely the situation in the Community law system: Member State officials regularly implement policies they had little or no role in making. 3. Subsidiarity and the Direct Effect of the EC Treaty. Most discussions of subsidiarityand this Article thus far is no exceptiontreat the Court of Justice's interest in the principle as limited to deciding whether and to what extent to police the political institutions' respect for subsidiarity. My view on this question is clear; I believe the Court should treat the principle as a legally enforceable procedural mandate to the institutions, while at the same time paying pronounced deference to their judgments on the substance of the matter. But the Court should not consider that it discharges its responsibilities with respect to subsidiarity simply by conducting this limited monitoring of the Community's political branches. The demand for subsidiarity among Europeans has been fueled not only by the perception of legislative excess on the part of the Commission and Council, but also by the perception, at least among those aware of the Court of justice's role in legal integration, of judicial excess on the Court's own part. [FN277] The question, put bluntly, is whether the Court of justice, through its own understandably vigorous demands for legal integration over the years, has contributed to a sense of erosion of local political autonomy, and possibly violated the principle of subsidiarity itself. This question is worth raising if only because the Court may have difficulty pressing subsidiarity on the political branches, either as a procedural or a substantive requirement, unless it shows a willingness to examine its own jurisprudence from a subsidiarity point of view. Consider, for example, the question of the direct effect of Article 30 of the EC Treaty concerning the free movement of goods. Surely when the Court rules that a Member State may not, in conformity with the principle of free movement, regulate the intrastate marketing of a particular good in the interest of consumer or environmental protection, public health, public morality and the like, it is itself in effect taking action at the Community level and preventing action at the Member State level, al-
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beit in the name of the Treaty. But for the fact that the intervention is judicial rather than legislative, and is alleged to flow directly from the Treaty rather than from a grant of authority by the Treaty, the conditions for application of the principle of subsidiarity would seem to be present. If the Court of justice were determined to play by the rules of subsidiarity in its own direct effects jurisprudence, would its case law be different than it has been up until now? Arguably, some of that case law would be due for rethinking, and some of it has in fact been rethought. In Procureur du Roi v. Dassonville, for example, the Court held that [a]ll trading rules enacted by member-States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions. [FN278] Although it addresses the limits on intervention by the Court, rather than the Council or Commission, this principle poses an obvious threat to subsidiarity. The Court of justice later modified its position in the Cassis de Dijon case, indicating a willingness to accept certain trade obstacles resulting from disparities among national marketing rules insofar as the latter are necessary in order to satisfy the mandatory requirements of Member States, [FN279] and also respect the Court's own overriding principle of proportionality. From a subsidiarity point of view, this was a positive doctrinal development. It would certainly seem to be in keeping with subsidiarity and proportionality alike for the Court to ask itself more regularly whether the incremental gains in free movement that result from the Court's rejection of a particular Member State marketing rule are substantial enough to justify the Member State's loss of freedom to govern subjects that lie squarely within its sphere of competence. Comparing the gains in economic integration with the loss of Member State autonomy is an inescapably difficult and once again deeply political operation, but it is also a good way for the Court of justice to demonstrate its own belief that subsidiarity matters. The Court may find analogous ways to introduce such thinking into its case law regarding free movement of the various factors of production and the other directly effective provisions of the EC Treaty and the Community's secondary legislation. Some of the Court's more recent rulings suggest that it is indeed prepared to accept certain bona fide national marketing rules, despite their possibly disparate impact on non-nationals, when those rules seek to protect important non-economic interests of a local character and do not unreasonably burden interstate commerce in doing So. [FN280] The Court has actually gone further than that to curb the erosion of Member State authority, in particular under Article 30. In its recent ruling in Criminal Proceedings against Keck and Mithouard, [FN281] the Court cast into doubt the very premises of Cassis de Dijon; it held in general terms that the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements is not such as to hinder directly or indirectly, actually or potentially, trade between Member States within the meaning of the Dassonville judgment provided that those provisions apply to all affected traders operating within the national territory and provided that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States. [FN282] According to the Court, when these conditions are met, the application of national law to the sale of products from another Member State is not by nature such as to prevent their access to the market or to impede access any more than it impedes the access of domestic products and therefore fall[s] outside the scope of Article 30. [FN283] Whatever may have been the Court's purposes in retreating from well-established Article 30 case law, the Keck ruling demonstrates the Court's willingness to leave Member States the kind of regulatory scope that the principle of subsidiarity requires of the Community's political branches. [FN284] My suggestion does not of course entail reopening the doctrines of direct applicability, direct effect, or supremacy. Nor does it require reexamining the Court's positions on enumeration, preemption, or implied powers, though doing so would not necessarily shake the legal foundations of the Community. My suggestion is two-fold: first, that the Court acknowledge more frankly than it has in the past that its judicial rulings (particularly on the direct effect of treaty and legislative norms) can have as erosive an effect on the right of Member State populations to govern matters of local concern as does the passage of unnecessary or unduly intrusive Community legislation; and, second, that
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the Court pay more attention in particular cases to whether the exercise of regulatory authority by a Member State or its subcommunities sufficiently impairs cross-border mobility to justify suppression of the relevant measure in the interest of the common market. Unless the Court of Justice gives evidence that it takes both subsidiarity and proportionality seriously in its own conduct of business, it may not readily persuade the political institutions to do the same. It may thus have difficulty helping to quiet the political fears that fueled the impulse toward subsidiarity in the first place. III. Subsidiarity and U.S. Federalism Parts I and II of this Article explored the meaning and possible utility of subsidiarity in the European Community. They clearly sought to take subsidiarity seriously. In assessing the doctrine's potential for safeguarding the Community's federalist balance, the architects of Community reform might, however, have been expected to look, as they so often have, to the United States. [FN285] They had done so on a variety of critical federalism issuesthe interstate commerce clause, the enumeration of federal powers, implied powers, and the doctrine of preemption, to name only the most salient examples. It is reasonable to suppose, given subsidiarity's evident conceptual and operational difficulties, that those architects might also have inquired into the role, if any, that the notion of subsidiarity plays in the workings of U.S. federalism and into its efficacy in that setting. I conclude, however, that not only would the Europeans not have found subsidiarity in the lexicon of U.S. constitutional law, but they would not have found it to be a central feature of U.S. constitutional practice. In other words, the U.S. system offers few political or legal guarantees that the federal government will act only when persuaded that the states cannot or will not do so on their own. U.S. experience accordingly lends little support to the claim that acknowledgment of a principle of subsidiarity is essential to sustaining the balance of power in a federal system. This in turn raises the question whether and on what basis the European Community architects can plausibly hope to make subsidiarity the Community's constitutional centerpiece, when a federal system that they so often consult for guidance on matters of federalism appears to give that notion so little recognition. I argue that the Community has good reason to rely on subsidiarity, not only despite the claim that the concept has been oversold in Europe, but also despite the claim that other federal systems (like the American) appear to do very nicely without it. A. Subsidiarity in the U.S. Institutional Context Subsidiarity is a term at least as alien to contemporary U.S. constitutional discourse as it was to the Europeans prior to the late-1980s. The United States is generally understood to exemplify a federal system of government: that is, a system in which political authority is constitutionally divided between a central government and the governments of the constituent states, and in which persons are concurrently subject to the authority of both governments, each acting within its own constitutional sphere. [FN286] Thus, the term federalism suggests a state of affairs in which political authority is both in law and in fact allocated between two or more levels of government. However, although federalism conveys a general sense of a vertical distribution, or balance, of power, it is not generally understood as expressing a preference for any particular distribution of that power, much less dictating any particular inquiry into the implications of specific governmental action for that distribution. In this respect, federalism and subsidiarity, though of course closely related, are quite different. To inquire into the role of subsidiarity in U.S. federalism is to ask whether the federal government's exercise of legislative or regulatory authority over a field lying within the constitutional limits of federal jurisdiction is limited in any significant way out of respect for the states' capacity to accomplish the federal government's general objectives within that field. [FN287] The traditional response to this question has been that whether and to what extent federal legislative or regulatory authorities refrain from exercising powers that are properly theirs to exercise under our Constitution is a political question for the political branches to resolve. A powerful school of thought, associated with
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Herbert Wechsler, claims that restraints on intervention by the federal government flow chiefly from the sheer existence of the states and from their political power to influence the action of the national authority. [FN288] Recent years, however, have witnessed growing concern over the impact of federal legislation and regulation on the fabric of U.S. federalism. Some commentators have taken to complaining of the uncritical acceptance in many quarters of the notion that the federal government is the best level of government at which to establish regulatory programs. [FN289] These commentators have made the same kinds of claims that now seem to animate the advocates of subsidiarity in Europe, and they cite many of the virtues attributed to localism in that setting: the enhancement of liberty that accompanies the diffusion of power, the advantages of tailoring the law to local needs, the opportunity for heightened public participation, greater diversity, and enhanced political accountability. [FN290] Occasionally commentators advance a regulatory philosophy that encapsulates subsidiarity itself, advocating a presumption in favor of state or local regulation, rebuttable only by a showing that federal law is needed to avoid intolerable burdens on interstate commerce or to meet some other compelling national need. [FN291] Other commentators, less committed to the deregulatory policies of the Reagan and Bush administrations, express the problem differently. Richard Pierce has framed the tension in terms highly resonant of the European debate: H ow are we to allocate regulatory power in a way that will permit the nation to preserve both the values of a national market and at the same time the values of decentralized, government decisionmaking ? [FN292] Unlike the European Community, where constitutional reform has been a conscious preoccupation for at least a decade, the institutional framework within which federalism is discussed in the United States today is not itself a subject of current debate. The written Constitution is not at present being reformed, nor are the basic institutions being reconstituted. Understandably, in such a setting commentators tend to eschew normative abstractions like subsidiarity, and instead ask themselves how precisely the existing institutions can modify their modes of operation to produce a more desirable federalism balance. [FN293] In doing so, they may revisit and occasionally reassess the claims that are traditionally made in support of federalism, [FN294] but they rarely advocate whole new federalism doctrines as such. This section accordingly looks for the theory or practice of subsidiarity within the framework or, to be more exact, within the interstices of existing U.S. institutions. To discover whether subsidiarity, or a similar notion, plays a role in the conduct of U.S. federalism, one has in any event to transcend labels and look for equivalent thinking under any other name by which it might pass. [FN295] In this Part of the Article, I make that inquiry. I conclude first that, like its foreign-sounding name, subsidiarity is foreign to the law and practice of federal legislation. The working assumption in the United States seems in fact to be that Congress, by virtue of its composition and mode of operation, will not act with needless disregard for the states' interest in regulatory autonomy. The courts accordingly have declined to enforce against Congress a specific legislative precept such as subsidiarity even though there is little evidence to suggest that Congress systematically follows any such precept of its own accord. The situation is at least partially different when we turn to the exercise of authority by the federal agencies. On the one hand, just as Congress does not manifest a strong commitment to subsidiarity, it also has not exerted pressure on the agencies to act in ways that demonstrate a high degree of respect for the states' own capacity to govern. The courts likewise have shown substantial deference to the agencies' judgments that action within the outer limits of their statutory jurisdictionoften fully preemptive actionwould be useful; the agencies do not have to demonstrate positively that the action is necessary or even that they think it is. The Executive, on the other hand, has attempted to introduce into the regulatory process certain considerations that bear directly on federalism and that at least in part reflect subsidiarity. Thus, a series of executive orders calls upon the federal agencies not only to minimize the regulatory burdens imposed on the private sector, but also to refrain from regulating at all if action at the state or local level would satisfactorily accomplish the federal government's objectives. These executive orders evoke, respectively, the Community law notions of proportionality and subsidiarity their effectiveness with respect to subsidiarity; in particular is, however, very doubtful.
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B. Congress and Subsidiarity The claim that the United States secures its federalism through the political process itself ordinarily brings the institution of Congress first to mind. This is the case in part because we tend to assign to Congress primary responsibility for allocating regulatory power between state and federal officials in areas of concurrent competence. [FN296] However, it is also the case because Congress is composed of persons elected to office by state and local constituencies, that is, persons who may be thought unlikely to support federal legislation unless they genuinely believe that such legislation is necessary to achieve a purpose lying within the federal legislative sphere. Again, Herbert Wechsler forcefully argued that the fact that the national political authorities are selected by the people of the states, and function by reference to the political interests dominant in the states, naturally restrains their interventionist impulses. This is said to be the case particularly for Congress [FN297] and even more particularly for the Senate. [FN298] The states' interest in preserving a healthy measure of autonomy in matters of shared federal and state competence is thereby assumed naturally to enter into and influence the federal legislative process in ways that guarantee due regard for the policy prerogatives of the states. [FN299] Implicit in this analysis is the assumption that Congress actually determines, during the process of deliberating over proposed legislation, whether federal action is in fact needed for achieving its purposes. It is reasonable to assume that Congress routinely considers the warrant for federal action, in the general sense of satisfying itself that it has a constitutional basis for acting and that the action taken will serve a useful and legitimate purpose. Some scholars go further, however, maintaining as a description of political reality that proponents of federal legislation bear the burden of persuasion that action at the federal rather than the state level is required. [FN300] The truth of this proposition has never to my knowledge been demonstrated. Congress' criteria for assessing the necessity for federal intervention do not in fact seem to be especially well-defined, and it is certainly far from clear that these criteria entail a prior assessment of the states' own ability, acting alone or in concert, to achieve the objectives that Congress has. [FN301] Members of Congress, desiring political credit for the passage of legislation, may vigorously sponsor initiatives in Congress that could just as easily be undertaken at the state level; their task then is to produce a sufficient legislative coalition in support of their measures. Whether other members of Congress join that coalition depends in turn on factors that may have little to do with the interest of their states in self-governance as such. The interests of dominant social and economic groups within the states are probably a much more significant decisional factor. [FN302] While the sponsor of federal legislation may well seek to persuade colleagues that the states in fact lack the capacity or will to solve a given problem, his or her primary task is to demonstrate that the problem exists and deserves to be addressed. Certainly Congress as an institution does not systematically evaluate the capacity or will of the states to deal with particular problems before seeking to address them at the federal level. [FN303] Admittedly, an attachment to subsidiarity on the part of Congressabove and beyond the natural impulses to localism that have been ascribed to those who sit in the House and Senatewould be difficult to document even if it existed. Legislative power in Congress is heavily dispersed among committees and subcommittees of both houses. Favorable reporting of a bill from a subcommittee to a committee, and eventually to the full house, depends on a wide variety of political and personal considerations. It is simply not possible to generalize about the modes of reasoning or analysis that subcommittees and committees employ in policymaking. Moreover, debate in the full house is highly unstructured, and not tailored to ensure that any one considerationleast of all an abstraction like subsidiarityis kept firmly in view. Nevertheless, one can readily imagine ways in which the federal legislative process might be structured to promote consideration of federalism issues, and even subsidiarity, as a regular feature of that process. For example, the Rules of the House or Senate could require the committee report on a bill to assess the states' capacity to deal with the problem that the bill addresses and to demonstrate the need for federal intervention in their place. [FN304] Alternately, a standing body within the House and Senate (or a body outside them but nevertheless within Congress)
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might be asked to review bills, at some point prior to a final vote, specifically from a subsidiary point of view. [FN305] The fact that such mechanisms do not exist is not itself surprising, given U.S. congressional traditions, but their absence is not without significance. In the absence of any institutional mechanism of federalism review within Congress itself, advocates of greater state autonomy in political affairs strive to have their message heard by the committees and subcommittees that entertain specific bills considered to have significant federalism implications. [FN306] They may testify at committee hearings or, failing that, submit written communications. Some lobbying groups have a standing commitment to localism; these include umbrella organizations like the National Conference of State Legislatures, [FN307] the National Governors' Association, and the National League of Cities (to name a group having a local rather than a state orientation), [FN308] as well as individual state and local governments themselves. [FN309] They may be joined in lobbying by other groups whose interest in pending legislation lies elsewhere but for which the federalism card may nevertheless be a useful argument. One source of support that may be particularly relevant to mounting a political claim based on subsidiarity is state and local officialdom itself. For example, state highway officials, opposed to the conditioning of federal highway aid on a state's conformity to federal standards on the control of drunken driving, can provide key Senators and Representatives (perhaps most readily those of their own states) with material demonstrating the State Highway Department's successes in controlling drunken driving or their fresh and promising initiatives in that direction. The National Association of State Highway Officials may orchestrate the lobbying effort by disseminating information about proposed legislation, by pooling information about the records and initiatives of other states, by fashioning arguments, and by targeting those state highway officials who have particular access to a key member of Congress. [FN310] Still, at the end of the day, those who would complain about the federalism implications of a bill enjoy no greater or different opportunities to influence its fate than those adversely affected by the bill's other aspects. It is sometimes suggested that Congress mandatorily consult the governors, state legislative leaders, or certain national organizations of state and local governments before enacting legislation having significant federalism implications. [FN311] However, such proposals run up against the rather durable notion that the U.S. legislative process, in principle at least, has no privileged outside participants. [FN312] Whatever the mix of causes, state and local governments have taken to complaining loudly about the burdens and intrusiveness of federal legislation. Their specific grievances are taken up more closely in a later section of this Article dealing with the agencies rather than Congress. [FN313] Suffice it to say that while the complaints that state and local governments direct to Congress pertain chiefly to the fiscal and administrative burdens of federal mandates (and the lack of federal fiscal support in meeting them), [FN314] they also concern Congress' prescription of policy in areas of traditional state and local governance and, more generally, congressional erosion of state and local government authority. [FN315] This of course is not to say that Congress shows no respect for subsidiarity in its exercise of federal legislative power. Congress may show deference of this sort in a variety of ways. It may choose upon consideration not to legislate, or to legislate on certain aspects of a problem but not on others. When it does legislate, it may set standards that are general and possibly even vague, thus leaving states considerable interpretive freedom. Congress may in any event set standards that are minimal or expressly non-preemptive, thus explicitly allowing the states latitude to enact a higher level of protection. Whatever the degree of precision or strictness of the standards that it ultimately adopts, Congress can, and very often does, leave the states conditionally free to select the means they prefer to implement them. [FN316] Though the term is of course never used, subsidiarity may also be built directly into the structure of federal legislation. Many statutes specifically allow the states to enact their own regulatory programs, provided they meet certain minimum federal criteria. The federal government may then intervene only if a state program fails by a certain date to meet those criteria or if a state has chosen not to enact any program at all. There are numerous variations on this
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theme, particularly in Congress' exercise of the power to regulate interstate commerce. The Clean Water Act, for example, calls upon the states to establish their own water quality standards, subject to EPA guidance and review in their drafting. [FN317] If the EPA recommends changes in a state's standards, and the state fails to comply, the EPA may itself proceed to promulgate and implement water quality standards for the state. [FN318] The Occupational Safety and Health Act entitles states to avoid the application of OSHA regulations on a given workplace health and safety issue by submitting a plan for adequately developing and enforcing state standards on that issue. [FN319] The Resource Conservation and Recovery Act authorizes the EPA to issue permits allowing private parties to dispose of hazardous wastes, but allows a state at any time to supplant the federal program with a program of its own, provided it meets certain substantive and procedural requirements. [FN320] The examples could be multiplied. [FN321] Federal enactments under the Spending Clause may also reflect a principle of subsidiarity. The Aid to Families with Dependent Children (AFDC) program, established by the Social Security Act of 1935, [FN322] illustrates this possibility. Under the statutory scheme, the federal government makes matching grants available to any state having an AFDC program conforming to federal requirements. Those requirements are far-reaching; for example, state programs must provide aid up to the age of eighteen for children who are deprived of parental support due to a parent's death, continued absence from the home, or physical or mental incapacity. [FN323] Federal law also requires participating states to observe specific income-calculation rules, to afford aid applicants prescribed procedural rights, and to impose certain behavioral requirements on aid recipients. [FN324] On the other hand, the states remain largely free in other important respects. They may not only prescribe additional procedural rules, but may actually set their own standards of need, grant-calculation procedures, and scales of aid. [FN325] The discretion thereby left to the states is considerable. [FN326] In principle, a state may decline to establish a public assistance program meeting federal standards, or to establish any such program at all. The Social Security Act provides no federal sanctions in those circumstances, nor does it authorize the federal government to furnish public assistance directly in a state's place. Although, for obvious reasons, no state has deliberately foregone the opportunity to establish an AFDC program qualifying it for receipt of matching funds, [FN327] federal law permits the states to do so. A legislative scheme of this sort evidences the principle of subsidiarity at work. Due to their element of choice, legislative frameworks of the kind I have described are commonly said to exemplify cooperative federalism. [FN328] Because they prescribe federal standards, but leave to the states the power, consistent with those standards, to select the means for enforcing them and to conduct the enforcement, these frameworks sometimes are also described as exercises in partial preemption. [FN329] Whatever the favored term, such formulas contain an ingredient of subsidiarity. Naturally, however, legislation of this kind reserves standard-setting powers to the states only within the specific limits that Congress sees fit to allow. This serves as an important reminder that subsidiarity ultimately depends as much on statutory content as on statutory structure. A decision by Congress to refrain from legislating exhaustively on a given matter may of course be influenced by a variety of factorstechnical, economic, and political in every sense of the wordand thus not be dictated by consideration of federal-state relations alone. It is therefore difficult, even when Congress demonstrates restraintfor example by curtailing the scope of legislation, by establishing vague or general statutory standards, by inviting more stringent state regulation, by leaving enforcement discretion to the states, or by giving them a cooperative federalism choice between federal and state regulationto know its precise mix of reasons for doing so. Those who would assess the condition of federalism in the United States must thus reckon with the confusion of purposes that often animates Congress. The fact that it is difficult under these circumstances to demonstrate that Congress has acted out of solicitude for state and local autonomycombined with the fact that Congress' perceived failures of solicitude tend by contrast to be apparentsuggests that only a more conspicuous inquiry by Congress into the need for federal legislation will reassure those who feel that the political balance has been fundamentally disturbed. The problem with treating federalism, under any formula, as a purely prudential consideration [FN330] is that it fails to provide such reassurance.
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C. Constitutional Constraints The previous section suggests that while Congress has means of integrating federalism considerations like subsidiarity into the federal legislative process, it has only slightly developed them. The fact that Congress has left the legislative process unstructured does not, however, mean that the legislation resulting from the process is not itself subject to higher federalism principles, principles that the federal courts could conceivably enforce in challenges to the legislation's constitutionality. In this section, I trace the chief textual bases for permitting judicial review of Congress' decision to exercise the legislative power that it shares constitutionally with the states. In other words, I examine the claim that subsidiarity may be judicially enforceable against Congress. I conclude that the Supreme Court has denied itself a role in enforcing subsidiarity that one of these basesthe Commerce Clausearguably invites it to play, while giving the other of these basesthe Tenth Amendmenta succession of meanings that avoid precisely the federalism question that subsidiarity raises. 0ne possible avenue for constitutionally curtailing Congress' exercise of power under the Interstate Commerce Clausein the interest of subsidiarity or, more generally, of federalismis through narrow construction of that Clause itself. However, this avenue has long since been closed. Almost as if in direct denial of the claim that the exercise of the Commerce Power is subject to a judicially enforceable principle of subsidiarity, the Supreme Court 170 years ago wrote that the power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution. [FN331] The Court has maintained this view fairly consistently ever since. [FN332] The task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow. The court must defer to a congressional finding that a regulated activity affects interstate commerce, if there is any rational basis for such a finding. This established, the only remaining question for judicial inquiry is whether the means chosen by [Congress is] reasonably adapted to the end permitted by the Constitution. . . . Judicial review in this area is influenced above all by the fact that the Commerce Clause is a grant of plenary authority to Congress. [FN333] The Tenth Amendment furnishes a second constitutional basis on which the federal courts could conceivably police congressional interference with state sovereignty through legislation enacted under the Commerce Clause. In 1976, the Supreme Court in fact ruled in National League of Cities v. Usery, [FN334] that federal legislative power under the Commerce Clause does not extend so far as to displace the states' authority to structure employment relations in areas of traditional governmental functions. [FN335] But the cases that followed National League of Cities suggested that the area sheltered from federal governance by the Tenth Amendment was ultimately a narrow one, limited to matters inextricably linked to the concept of state sovereignty itself. [FN336] If the Tenth Amendment limited Congress' use of the commerce power only when Congress sought to regulate a state in its capacity as a sovereign, [FN337] then on most mattersespecially the regulation of private activityit would still leave Congress complete freedom of choice in allocating regulatory responsibilities between federal and state authorities. Congress found its legislative freedom reinforced when National League of Cities, which had been decided by a 5-4 majority, was overruled by the same margin nine years later in Garcia v. San Antonio Metropolitan Transit Authority. [FN338] There, the Court rejected the category of traditional governmental functions as an unworkable one. While affirming that the states in the U.S. constitutional system possess a core of sovereignty, the Court held that that core is guaranteed not by a set of independently prescribed and judicially enforceable limits on the exercise of federal legislative power, but instead by the structure and functioning of the federal government itself, and notably by the role of the states in the federal system. [FN339] Under Garcia, Congress enjoys virtually unreviewable discretion to allocate responsibilities in areas of concurrent state and federal competence. [FN340] Though recent Supreme Court opinions suggest that Garcia's insulation of federal statutes from Tenth Amendment scrutiny is no longer airtight, they still do not allow a great deal of scope for subsidiarity as an instrument of
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constitutional review. In Gregory v. Ashcroft, [FN341] Justice O'Connor, speaking for a majority of the Court, found in the Tenth Amendment a rule of statutory interpretation (a plain statement rule) according to which the courts should not lightly assume that Congress intends to override the states' substantial sovereign powers under our constitutional scheme. [FN342] Like any canon of construction, however, the rule concedes Congress' right to indicate otherwise. Moreover, that case, like both National League of Cities and Garcia, dealt only with the application of general federal legislation to the functioning of state and local government itself, and more particularly to the legal conditions of government employment. [FN343] Justice O'Connor's majority opinion in the still later case of New York v. United States [FN344] has potentially more far-reaching Tenth Amendment consequences. It appears to reopen the door to the direct constitutional challenge of federal legislation on Tenth Amendment grounds. [FN345] Moreover, rather than merely protecting states and localities from federal regulation of their operations (as National League of Cities had sought to do), the Court announced a rule forbidding Congress, as a general matter, to compel the states to enact and enforce federal regulatory programs. A rule protecting the states from having to govern according to Congress' instructions was described as necessary to ensure that the allocation of a community's resources is made by persons who are politically accountable to that community, and that the states do not come to be treated as mere political subdivisions of the United States. [FN346] However, the Court ultimately condemned only what it called federal commandeer ing of a state regulatory apparatus, that is to say, laws requiring that states spend their administrative resources on implementing policies dictated by the federal government. [FN347] The decision in New York v. United States may thus impose new and important Tenth Amendment limits on Congress' exercise of federal legislative power. [FN348] The support that the Court has thereby lent to federalism is not without consequences for subsidiarity. If Congress may not enact regulatory programs, or delegate the power to enact them to the federal agencies, unless it is prepared to bear the full cost of implementing those programs in the event the states ultimately choose not to participate, the net effect may well be less federal intervention even where it would otherwise be constitutionally permissible. Subsidiarity would to that extent be indirectly advanced. That possibility notwithstanding, the Court in New York v. United States nevertheless broadly conceded Congress' power under the Commerce Clause to offer States the choice of regulating an activity according to federal standards or having state law pre-empted by federal regulation. [FN349] The Court went on to say that No matter how powerful the federal interest involved, the Constitution simply does not give Congress the authority to require the States to regulate. The Constitution instead gives Congress the authority to regulate matters directly and to pre-empt contrary state regulation. Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents. [FN350] .... The Constitution permits both the Federal Government and the States to enact legislation regarding the disposal of low level radioactive waste. The Constitution enables the Federal Government to pre-empt state regulation contrary to federal interests, and it permits the Federal Government to hold out incentives to the States as a means of encouraging them to adopt suggested regulatory schemes. It does not, however, authorize Congress simply to direct the States to provide for the disposal of the radioactive waste generated within their borders. [FN351] Federalism and Tenth Amendment debates in the Supreme Court may be far from over. But even those Justices most receptive to a Tenth Amendment review of federal legislation seem to acknowledge that it is not Congress' decision to regulate interstate commerce, but only its coercion of the states in the enforcement of federal law, that poses a problem under that Amendment. In sum, neither National League of Cities (prior to its overruling by Garcia) nor New York v. United States is directly responsive to subsidiarity as the Europeans conceive of it. Subsidiarity is not served by carving out a privileged zone of traditional governmental functions, as under National League of Cities, and sheltering it from federal gov-
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ernance; subsidiarity calls for the practice of legislative self-restraint across the full range of substantive lawmaking power. Nor is subsidiarity secured by the New York v. United States remedy of offer[ing] States the choice of regulating [an] activity according to federal standards or having state law pre-empted by federal regulation. [FN352] It seeks to preserve the states' authority to prescribe rules of law and not merely to decide whether to lend their resources to the administration of federal law. The language of the Tenth Amendment contributes to its awkwardness as an anchor for subsidiarity. The Amendment provides that [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. [FN353] Language that limits the federal government to the powers conferred upon it by the Constitution, leaving all others to be exercised by the states, basically expresses a principle of enumeration of powers. [FN354] It is quite difficult to see how a principle of enumeration of federal powers can even begin to address the political allocation of power where power is constitutionally shared. Yet that is precisely subsidiarity's province. We thus find that, although federalism lies at the heart of the United States constitutional system, neither the text of the Constitution nor the Court's federalism jurisprudence offers very strong legal guarantees that a proper political balance between the federal government and the states will be maintained. [FN355] The Tenth Amendment, whose breadth lends it only a superficial resemblance to the principle of subsidiarity, simply cannot be read as subsidiarity's U.S. counterpart. The Supreme Court's position in Garcianamely, that the legislative process itself may and must be relied upon to safeguard the basic autonomy of the statesremains essentially intact. Even the prohibition on commandeering announced by the Court in New York v. United States, while giving new life to the Tenth Amendment as a constitutional instrument, targets only a very specific form of federal imposition on the states. If the courts mean to enforce a principle of power-sharing having a scope of application as broad as subsidiarity, they must do so on essentially nonconstitutional grounds. D. Subsidiarity and the Judicial Function I have thus far argued that subsidiarity, as understood by the Europeans, is not a judicially enforceable constitutional norm in the United States, but rather a value whose fortunes are essentially left to the political forces. However, even without the benefit of a constitutional doctrine bearing its name, the federal courts could move Congress in the direction of subsidiarity. They could do so most directly by enforcing statutory language that is itself suggestive of subsidiarity. Perhaps even more effectively, they could interpret the doctrine of federal preemption and the doctrine of frustration of congressional purpose to advance the goals of subsidiarity indirectly. 1. Subsidiarity as an Enforceable Legislative Norm. The federal courts may readily enforce subsidiarity once Congress enacts legislation either explicitly or implicitly endorsing it. In principle, the courts should be as prepared to give effect to subsidiarity as to any other value that Congress effectively incorporates into federal legislation. Acting in this mode, their commitment to subsidiarity would be largely derivative of Congress', but would be important nonetheless. We have seen, for example, that Congress sometimes safeguards the states' rights to establish standards governing private conduct within their borders, while reserving the federal government's right to displace them with national standards if they fail to meet statutorily prescribed criteria. [FN356] Such forms of cooperative federalism are precisely the kinds of subsidiarity-inspired statutory arrangements that the courts, in appropriate cases, can and will enforce in favor of the states, without further resort to the subsidiarity principle itself. [FN357] Yet even under these schemes, the courts ultimately can protect the policymaking freedom of the states only to the extent that federal statutory and regulatory standards allow. 2. Preemption and Frustration of Congressional Purpose. Federal preemption is one way in which Congress shows its preference for federal over state regulation of a given matter. When Congress preempts a matter totallyin the sense of occupying the fieldit forecloses state regulation of it altogether. If Congress always acted in keeping
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with subsidiarity, it would preempt state law, and certainly preempt it totally, only when convinced that the states lack the capacity to regulate the field effectively. It is of course difficult to know just how closely Congress explores the state-level options before deciding to preempt. For its part, the Supreme Court has consistently held that the question whether a certain state action is preempted by federal law is one of congressional intent; [FN358] The purpose of Congress is the ultimate touchstone. [FN359] Thus, Congress itself determines whether and to what extent the states have a continuing governance role in fields of concurrent jurisdiction, and the courts approach this determination basically as a matter of statutory interpretation. [FN360] This is neither surprising nor at all inconsistent with the earlier discussion of the Commerce Clause and the Tenth Amendment. [FN361] It is when Congress fails to deal explicitly with the preemption question that the courts regain the opportunity to shape the federal-state balance and, more specifically, to advance the purposes of subsidiarity. The Court has described the judicial task in such situations as one of analyzing the general objectives and structure of the federal legislation and determining whether they fairly accommodate a continuing regulatory role for the states. [FN362] Though each case turns on its own facts, the cases as a whole suggest that Congress is not deemed to have occupied the field unless it has so pervasively regulated it, or has such a predominant interest in it, as to imply the exclusion of any further action by the states. [FN363] In other words, while ultimately a matter of congressional intent, preemption of a field is not to be lightly inferred. [FN364] Since a presumption against preemption preserves the states' rights to regulate a matter within their legislative sphere, it points in the same general direction as subsidiarity. On the other hand, the presumption being a relatively mild one, the support that it gives subsidiarity is correspondingly mild. [FN365] Even if state measures are not altogether preempted (because Congress is not found to have occupied the field), a particular state measure may nevertheless so significantly frustrate the policies underlying federal law as to render it incompatible with federal law and thus invalid under the Supremacy Clause. A state measure will accordingly be invalidated if it is found to have a significant negative impact on the full achievement of congressional purposes. [FN366] Determining whether a particular state measure, although not in direct conflict with federal law, nevertheless frustrates congressional purposes to such an extent has been termed a basically political call, a call that Congress itself for one reason or another may have failed to make. [FN367] Due to the ad hoc nature of these decisions, and the political character of the criteria on which they turn, it is difficult to tell as a general matter how much political latitude they leave to the states. One general conclusion that has been drawn from the cases, however, is that state law measures in areas of state jurisdiction are commonly allowed to stand even though the federal government is already involved in regulating the field and the state measure conflicts with the goals of the federal regulation. [FN368] Like a mild presumption against preemption, a mild reluctance to conclude that state law impermissibly frustrates achievement of congressional purposes enlarges, but only moderately, the states' freedom to make policy within their constitutional sphere. [FN369] The relationship between preemption and frustration of congressional purpose, on the one hand, and subsidiarity, on the other, is however a very imperfect one. judicial policies on preemption and frustration of congressional purpose determine how much policymaking freedom the states enjoy in governing a matter only after Congress has acted in relation to it; they do not determine the federal government's initial warrant to act. Subsidiarity operates very differently. It determines whether the states should be left free to regulate a matter in the first place, and it is the state's capacity to achieve the underlying objectives that determines whether and how far the federal government itself may pursue them at all. There is a significant difference between leaving room for the states to act even after the federal government has acted and questioning whether the federal government has sufficient warrant to intervene in the first place. The former places the allocation of regulatory authority between the federal government and the states squarely within Congress' unguided discretion; the latter obviously does not. The distinction also shapes the institutional role of the courts in policing the balance of legislative power. The doctrines of preemption and frustration of congressional pur-
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pose assume that the judicial function is to decide whether federal legislation has occupied the field, and they merely guide the courts in making that determination. The drafters of the Maastricht Treaty, however, were looking for tools of statutory limitation, not statutory construction. They therefore addressed the political branches directly, enjoining them to exercise self-restraint as subsidiarity defines it. At the same time, they left open the possibility that the Court of justice would treat subsidiarity as a justiciable principle, [FN370] and thus position itself to police the political branches directly. E. Subsidiarity and the Agencies The discussion thus far has revolved primarily around the traditional claim that institutional arrangements at the federal level in the United States guarantee due consideration for state interests, including the states' own capacity to accomplish the federal government's policy objectives. Such claims are most convincingly advanced with reference to Congress. The exercise of regulatory authority by the federal agencies, however, presents a rather different picture. The states are most definitely not represented as such in the composition of the agencies, nor do they represent in any meaningful sense the constituencies from which agency policymakers are drawn. If the federal agencies show institutional sensitivity to state interests, it must be for different reasons. [FN371] 1. Subsidiarity as a Legislative Command to the Agencies.Just as Congress has it within its power to legislate directly in the language or spirit of subsidiarity, it can also employ the language or spirit of subsidiarity in its delegations of legislative power to the agencies. If Congress does so clearly and concretely, it in effect makes subsidiarity one of the defining limitations on the powers conferred and a condition that the courts can conceivably enforce. Once again, there is little evidence that Congress regularly directs the agencies in terms expressly suggestive of subsidiarity. Congress seldom provides that, before issuing regulations, an agency must first satisfy itself that regulatory action at the state level would not adequately meet Congress' or the agency's purposes. On the other hand, we have seen examples of federal statutes that safeguard the states' right to regulate private activity, subject to displacement by federal regulation should they fail to meet certain minimum congressional criteria. [FN372] I depicted legislation of this kind as expressing subsidiarity by conditionally reserving standard-setting powers to the states. Almost invariably, Congress delegates to some federal agencythe EPA for examplekey responsibilities for managing such statutory schemes of cooperative federalism. The agency typically issues regulations defining the basic statutory criteria; it reviews state standards or plans, if any, to see whether they satisfy those criteria; and it promulgates and enforces its own standards if a state elects not to establish a program or fails to establish an adequate one. It seems plain that subsidiarity is thereby made operationally part of the agency's statutory mandate. The measure of standard-setting discretion that such schemes leave to the states ultimately depends of course on the rigor and precision of the minimum federal criteria. In Hodel v. Virginia Surface Mining & Reclamation Ass'n, [FN373] for example, the plaintiffs complained that the Surface Mining Control and Reclamation Act permitted the Secretary of the Interior to promulgate federal surface mining standards that would leave the states no policymaking option other than to choose between enforcing the standards themselves and passing enforcement responsibilities on to the federal government. [FN374] The Court nevertheless rejected the claim that the statute thereby unconstitutionally deprived the states of their regulatory authority: A wealth of precedent attests to congressional authority to displace or pre-empt state laws regulating private activity affecting interstate commerce when these laws conflict with federal law. Moreover, it is clear that the Commerce Clause empowers Congress to prohibit alland not just inconsistentstate regulation of such activities. Although such congressional enactments obviously curtail or prohibit the States' prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result. [FN375]
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This is a good reminder that, even under cooperative forms of federalism, the states enjoy policymaking freedom only within the limits that the competent federal agency chooses to establish. 2. Agency Authority to Preempt State Law. In section D, [FN376] I suggested that when Congress fails to deal explicitly with the issue of statutory preemption, the courts can indirectly advance the purposes of subsidiarity by erecting interpretive barriers to preemption. An analogous situation arises when Congress delegates regulatory authority to an agency without indicating whether the agency has the power to preempt state law. The extent of an agency's power is once again a matter of statutory interpretation, and whether the agency has exercised its power is a matter of agency intent. [FN377] The reported tendency of the courts is to allow agency preemption not only when Congress so states, but also when doing so will produce clear benefits, for example by eliminating state regulatory barriers to interstate trade, and when the effects of preemption are not unduly broad. [FN378] If the reviewing court's role is basically to ensure that an agency's decision to occupy the field is a rational one, [FN379] then the agencies enjoy considerable latitude in deciding whether to do so. [FN380] Like Congress itself, the agencies may implicitly preempt state law; the indicia of implied preemption do not differ markedly from those applicable to Congressional action. [FN381] As I suggested in discussing statutory preemption, the doctrines of preemption and subsidiarity have different functions and different stakes. But if federal agencies are shown substantial deference when they leave no room for state regulation (i.e., when they preempt), they are also bound to be shown substantial deference when they do no more than decide that some federal agency action is warranted (i.e., when they simply legislate). The prospects of a subsidiarity review of such action are accordingly not very great. 3. Agency Self-Limitation. Just as Congress may exercise legislative restraint though not required by the Constitution to do so, so the agencies may show regulatory restraint though not required by Congress to do so. Presumably they often do so, because of federalism concerns, a scarcity of agency resources, agency preferences in regulatory policy, or, more likely, some combination of these factors. Moreover, the exercise of federal regulatory power is distributed over a multitude of different agencies, each staffed and organized differently and operating under different procedures and different statutory mandates. No administrative law scholar to my knowledge claims to know what mode of reasoning and analysis on federalism issues is standard among agency regulators. A vast amount of agency- and program-specific research would be needed before one could begin to describe a general working philosophy of regulatory federalism at the federal agency level. Nevertheless, a large and influential body of opinion claims that federal agencies consistently err on the side of regulatory excess. [FN382] Of course, not all forms of regulatory excess entail a disrespect for principles of federalism. An example is the allegedly heavy and unjustified burden of regulation on the private sector. Nevertheless, state and local governments do figure among the chief critics of federal regulatory excess, complaining about the implementation costs associated with state-administered federal programs, [FN383] paperwork requirements and other red tape, [FN384] burdensome conditions on their entitlement to federal grants in aid, [FN385] unfunded mandates, [FN386] and a variety of more specific practices deemed objectionable. [FN387] A particularly salient grievance of state and local governments over the recent past is the sharp decline in the availability of federal aid to help those governments to discharge their responsibilities. [FN388] The principle of subsidiarity is in fact poorly adapted to the particular challenges to federal regulation now being mounted in state and local governmental circles in the United States. Subsidiarity expresses an elementary and abstract principle of regulatory power-sharing, one designed to reassure a polity experiencing sudden and dramatic centralization in the exercise of regulatory power. By contrast, regulatory patterns in the United States, although always subject to change, are well established, and a strong federal regulatory presence in the lives of Americans is not in itself something new. In some respects, state and local officials actually prefer a strong federal presence. What they often seek is not so much a broad federal regulatory retreat of the sort conjured by subsidiarity as a series of specific operational remedies in the workings of federalism: greater flexibility in the administration of federal programs, less red tape, fewer conditions on federal grants in aid, few if any unfunded mandates, and much more generous federal financial support to state and local governments. Thus, although the leading organizations of state
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and local government are almost certainly sympathetic to subsidiarity as a general proposition, [FN389] they have shown greater interest in targeting particular federal legislative and regulatory practices than in re-delineating federal and state spheres of authority as such. [FN390] State and local governments claim, among other things, that they have insufficient access to regulatory decisionmaking and thus insufficient opportunities to combat the practices to which they more specifically object. Their advocates accordingly have advanced a variety of institutional reforms that would enable them to be more effectively heard in the regulatory process. For example, presidential policy at one time dictated that the federal departments and agencies consult with representatives of the chief executives of state and local government before developing or implementing programs directly affecting the conduct of state and local affairs. [FN391] The practice was never vigorously pursued, [FN392] and the order mandating it was subsequently rescinded. The rescission evidently grew not out of disenchantment with the concept, but rather out of a belief that the Executive's more general regulatory relief initiatives of the late 1970s and early 1980s [FN393] had for all practical purposes eclipsed it. Despite occasional urgings [FN394] and legislative initiatives [FN395] to this effect, no consultation requirement of this sort has since been reinstituted. State and local governments accordingly must still depend on their own initiatives for access to the federal regulatory process. [FN396] A different but not inconsistent suggestion is that federal agencies be required by law to consider, among other factors, the effect of proposed rules on state and local governments, and where possible to select among regulatory alternatives the one that imposes the fewest burdens on those governments. Legislation currently before Congress would couple such an obligation with the requirement that every agency notice of proposed or final rule-making be accompanied by an intergovernmental impact assessment. That assessment would estimate the rule's effect on the expenditure of state and local government resources and identify viable alternatives capable of accomplishing the same purposes while imposing fewer fiscal burdens on state and local governments. [FN397] Significantly, such proposals ordinarily lay emphasis on the direct compliance costs that federal agency rules would impose on state and local governments; [FN398] they generally leave aside, however, the less easily quantifiable federalism losses that federal agency rules can produce, namely the diminution in political authority of the states and local subdivisions and the concomitant losses in political accountability. 4. Presidential Restraints on Federal Regulation. The perception of regulatory excess on the part of agencies has created a new set of opportunities for the U.S. Presidency. Although the Presidency is traditionally linked in political and symbolic terms to centralism rather than localism, over recent decades it has become more closely associated than any other branch of the federal government with the notion of regulatory federalism. The tendency began under the Nixon, [FN399] Ford [FN400] and Carter administrations, [FN401] with their emphases on governmental efficiency, anti-inflation, cost-benefit analysis, and zero-base budgeting. Under the Reagan and Bush administrations, the tendency took a slightly different direction, toward returning powers previously exercised at the federal level to the states, to local governments, and to the private sector. More specifically, a series of executive orders instructed the federal agencies to channel their regulatory interventions in such a way as to show greater respect for certain economic and political values, among them federalism. [FN402] Though not articulated in terms of any single overarching norm, the executive orders in question strongly evoke the European Community legal principles of proportionality and subsidiarity. Significantly, the proportionality aspects of the orders have consistently overshadowed their subsidiarity aspects. President Clinton's September 1993 Executive Order on regulatory planning and review, [FN403] which largely replaces its predecessors, continues that emphasis. a. Executive Order 12,291 and Proportionality. Perhaps the best known of these instruments is Executive Order 12,291, issued under the Reagan administration. [FN404] Although it has since been repealed, many of its features are carried forward in the 1993 Executive Order of President Clinton that replaces it. Executive Order 12,291 called upon the executive branch agencies, when promulgating new regulations, reviewing existing regulations, and developing legislative proposals concerning regulation, to observe certain general regulatory principles. [FN405] Besides ensuring that they had adequate information justifying the need for a proposed measure and assessing its
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consequences, [FN406] and that they set regulatory objectives so as to maximize the net benefits to society [FN407] and reflect overall regulatory priorities, [FN408] the agencies were also required to satisfy themselves that the action's potential benefits to society . . . out-weigh ed . . . the potential costs to society, [FN409] and that the action chosen entailed, as compared to alternative ways of achieving regulatory objectives, the least net cost to society. [FN410] Where a proposed rule was a major one, as defined in the Executive Order, [FN411] the agency was required to perform a Regulatory Impact Analysis, which described the rule's costs and benefits (monetary and non-monetary alike), determined its net benefits, and identified alternative approaches that could substantially achieve the same regulatory goal at lower cost, estimating their respective costs and benefits and giving any legal reason why they could not be adopted. [FN412] When required by the Executive Order to conduct a regulatory impact analysis, an agency was also required to submit the analysis to the Director of the Executive Branch's Office of Management and Budget (OMB) for review according to a prescribed timetable. [FN413] The OMB Director had, within further time limits, the right to demand a consultation with the agency and to require the agency to refrain from publishing the analysis or the proposed or final rule until OMB had completed its review and the agency had considered and responded to OMB's views. [FN414] The agency was required to include OMB's views on a proposed rule, and the agency's own response to those views, in the rule-making file. [FN415] The Executive Order also required agencies to review all existing rules under the Order's standards and, in the case of major rules, to conduct regulatory impact analyses. The OMB Director could actually designate specific existing rules for review and set a schedule for such review or for the conduct of an impact analysis. [FN416] In requiring that executive agency measures survive cost-benefit scrutiny and constitute the least drastic means, the Executive Order imposed all the essential aspects of the European legal doctrine of proportionality. In further requiring that agencies actually perform cost-benefit analyses and assess and compare regulatory alternatives, the Order also imposed on the agencies significant procedural obligations. The obligations were greatest in the case of major rules, which became subject to formal regulatory impact analyses and OMB review. But, although far-reaching in its substantive and procedural demands, Executive Order 12,291 did not establish any significant system of sanctions. An agency's failure to respect the standards set out in the Order or to conduct the analyses required of it did not, in the words of the Order, create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers or any person. [FN417] A failure thus did not constitute grounds for judicial review of the resulting rule. Even the OMB, and indirectly the President, lacked formal sanctions against the agencies for their failure to respect the terms of the Order, although their political leverage over the agencies is of course vast. [FN418] The Order itself provided that n othing in it shall be construed as displacing the agencies' responsibilities delegated by law. [FN419] Still, Executive Order l2,291 was not chiefly concerned with federalism; regulatory rationality was its focus. Even viewed from a constitutional perspective, the Order's separation of powers implications have far overshadowed its federalism implications. [FN420] Nevertheless, any instrument that requires greater discipline by the federal government in its regulatory initiatives indirectly promotes localism, for it leaves the field correspondingly more open to regulation (or non-regulation) by state and local government. Whether and to what extent state and local officials seize the opportunity to regulate depends, of course, on the economic and political criteria by which they, as decision-makers, approach the regulatory process at their levels. But the choice remains theirs. b. Executive Order l2,372 and Federalism. An executive order that more directly expresses the federalism dimension of agency regulation, but still stops well short of prescribing subsidiarity, is Executive Order 12,372, also issued under the Reagan administration. [FN421] This Order, which remains unrepealed, attempts, in its words, to foster an intergovernmental partnership and a strengthened federalism. [FN422] However, its scope of application is narrow; it addresses only the question of whether and to what extent federal agencies should rely on state and local governments to review proposed federal assistance programs and to coordinate them. The Order requires federal agencies to provide opportunities for consultation with state and local officials whose governments would contribute
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funds or would otherwise be directly affected by the proposed federal funding. It also requires agencies to utilize any available procedures under state law for reviewing and coordinating federal assistance programs. The states are encouraged to substitute their own plans for federally required state plans whenever State planning and budgeting systems are sufficient, and they are entitled to simplify the ordinary federal requirements for state plan submissions. [FN423] Finally, federal agencies must attempt to accommodate concerns that state and local officials express about proposed federal assistance and, when they cannot accommodate those concerns, must explain why. [FN424] However, although Executive Order 12,372 clearly has the flavor of subsidiarity, it relates solely to the federal government's programs of financial assistance and, even then, to their administrative aspects only. c. Executive Order 12,612 and Subsidiarity. It is President Bush's Executive Order 12,612, [FN425] entitled Federalism, that most directly addresses the issue of subsidiarity. Although President Clinton's 1993 Executive Order does not by its terms repeal this Order, it does not in any real sense reaffirm it either. Moreover, because Executive Order 12,612 [FN426] was consistently viewed in practice as subordinate to Executive Order 12,291 and practically subsumed under it, as we shall see, the latter's repeal casts doubt on Executive Order 12,612's continuing validity. The Order's close affinity to subsidiarity nevertheless justifies its examination in this Article. According to its preamble, Executive Order 12,612 is designed to restore the division of governmental responsibilities between the national government and the States . . . and to ensure that the principles of federalism established by the Framers guide the Executive departments and agencies in the formulation and implementation of policies. [FN427] It applies to all policies having federalism implications, which are defined as measures that have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.[FN428] Section 2 of the Order recites the fundamental principles that should guide the agencies in formulating or implementing policies having federalism implications. In doing so, it links federalism to political liberty, [FN429] self-determination, [FN430] and diversity [FN431] values also claimed to support the principle of subsidiarity in the European Communitywhile specifically reaffirming the Tenth Amendment and the enumeration of powers. [FN432] The Order expresses with particular clarity a preference for local governance: In most areas of governmental concern, the States uniquely possess the constitutional authority, the resources, and the competence to discern the sentiments of the people and to govern accordingly. [FN433] Thus, i n the absence of clear constitutional or statutory authority, the presumption of sovereignty should rest with the individual States. [FN434] Executive Order 12,612 draws a distinction between problems of national scope and problems that are merely common to the States. [FN435] While the former presumably justify federal action, the latter do not, because individual States, acting individually or together, can effectively deal with them. [FN436] In other words, even when constitutionally and statutorily empowered to accomplish a particular objective, federal authorities are urged to do so only if the states, acting alone or collectively, cannot effectively accomplish the objective themselves. The Order further directs federal authorities to closely examine the constitutional and statutory authority supporting any Federal action that would limit the policymaking discretion of the States, and should carefully assess the necessity for any such action [FN437] and to e ncourage the States to develop their own policies to achieve program objectives. [FN438] Finally, the Order requires the agencies to r efrain, to the maximum extent possible, from establishing uniform, national standards for programs and, when possible, defer to the States to establish standards. [FN439] The elements of subsidiarity are pervasive in this Order. Like Executive Order 12,291, Executive Order 12,612 also imposes procedural obligations on the executive branch agencies. For each proposal having sufficient federalism implications, [FN440] an agency must prepare a Federalism Assessment, which basically certifies that the agency evaluated the proposal in terms of the criteria set out in the Executive Order. Moreover, the Assessment must specifically identify (1) any aspect of the proposal that is inconsistent with those criteria, (2) the costs or burdens that it would impose on the states, and (3) the effect on state sovereignty, including the states' ability to perform their traditional governmental functions. [FN441] The Federalism Assessment must accompany any submission relating to the policy that the agency makes to OMB under Executive
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Order 12,291, and the agency head must in any event take the Assessment into account when deciding whether or how to adopt and implement the policy. [FN442] Again like Executive Order 12,291, Executive Order 12,612 claims to leave ultimate responsibility for regulatory decisions in the agencies' own hands, and OMB accordingly may not as such prevent an agency from adopting a rule or regulation. Nor is an agency's violation of the Executive Order subject to judicial review. The Order, by its terms, is intended only to improve the internal management of the Executive branch and not to create any right or benefit . . . enforceable at law. [FN443] d. The Executive Orders in Practice. The Executive Orders mandate legislative analyses that, despite their scientific ring, are highly subjective. [FN444] The agencies have vast discretion in collecting and evaluating data, in identifying and weighing relevant arguments, and in balancing arguments against one another. The resources for conducting such analyses being limited, the agencies naturally concentrate those resources on the proposals about which they care the most or about which they entertain the greatest technical or political doubts. In the end, the analyses call heavily for the raw exercise of judgment. Much the same can be said of OMB's review of agency analyses, except that the political component in OMB's review is probably even more pronounced. The political proximity of OMB to the Office of the President means, among other things, that the values and interests identified by the President as particularly worth advancing in regulatory decision-making are likely to be given the greatest consideration in OMB's review. Like the analyses themselves, the reviews can also be conducted with a greater or lesser degree of scrutiny. Precisely because the exercises themselves are so highly political, it is difficult to assess them objectively. Moreover, the only comprehensive data we have on them come from OMB itself. [FN445] Relying on those data, most commentators conclude that the requirement of regulatory impact analyses under Executive Order 12,291 has had significant results, particularly regarding those policies of greatest concern to the President and his key constituencies. [FN446] Gauging the efficacy of Executive Order 12,612 is considerably more difficult, since OMB has no separate data on the Federalism Assessments required by that Order or on their effects upon agency rule-making patterns. [FN447] In the only published critique of Executive Order 12,612, the U.S. Advisory Commission on Intergovernmental Relations judged the program rather harshly. The Commission concluded that agencies varied widely in their apparent compliance with the Order's requirement of a Federalism Assessment, and that some failed utterly to implement it. With respect to the assessments themselves, the Commission found many to be shallow and conclusory, as if performed pro forma. [FN448] As required by Executive Order 12,498, each regulatory initiative included in the annual U.S. Government Regulatory Program must now contain a section heading captioned Need for Federal Solution. [FN449] This is an apparent response to Executive Order 12,612's requirement that agencies demonstrate the need for federal, as opposed to state and local, government action. Typical statements of need include the following: Tort liability and workers' compensation requirements, which vary considerably from State to State, only serve as partial incentives to provide the necessary safety and health training for supervisory personnel. [FN450] In the absence of national . . . standards for direct dischargers, permitting authorities develop limitations for discharging facilities on a case-by-case basis. [FN451] This rulemaking will provide the necessary criteria for personal fall-protection equipment (which currently do not exist) and will negate the need for these criteria to be repeated numerous times throughout the general-industry standards when such equipment is required. [FN452] In fact, the overwhelming majority of agency statements of Need for Federal Solution make no reference whatsoever to the efficacy or potential efficacy of options implemented at the state and local government levels; they do not even acknowledge that such options might exist. [FN453] Impact analyses of any sort run the risk that they will be conducted cursorily and yield routine results, and Federalism Assessments have evidently proven to be no exception. As for OMB's performance, the Advisory Commission found that it had devoted too few resources to overseeing the agencies' compliance with the Order and that it in any case lacked effective sanctions against non-complying
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agencies. In the Commission's overall judgment, Executive Order 12,612 failed to produce the significant changes in federal agency decision-making expected by most state and local government officials. [FN454] That the Executive Order has a highly checkered implementation record does not of course mean that it is conceptually flawed or even that it did no good. At least some agency officials claim that the Order caused them to focus on federalism issues when they otherwise might not have done so. [FN455] The Order thus may well have raised federal regulators' consciousness of the desirability of allowing the states to address problems that lie within their jurisdiction and that they have the capacity to solve satisfactorily. The Advisory Commission appears to believe that more determined supervision by OMB of the agencies' performance under the Order might have made a significant difference. However, it did not, and perhaps could not, substantiate that claim. Clinton Executive Order 12,866 on Regulatory Review. Each new President in recent times has treated the executive order as a means of expressing his own preoccupations in the area of regulatory policy, and President Clinton is no exception. A new Executive Order 12,866 on Regulatory Planning and Review [FN456] echoes many of the themes of the orders that preceded it. [FN457] One of these themes, though by no means the most salient among them, is federalism. [FN458] In this connection, the Order for the first time not only requires that OMB meet regularly with state and local government representatives to facilitate regulatory review, [FN459] but also requires agencies themselves to seek the involvement of state and local governments before proposing new rules likely to impose burdens on them. [FN460] Significantly, however, the Order emphasizes the financial and administrative impact of federal regulation on state and local governments, [FN461] and not the adverse effect of such regulations on those governments' policymaking freedom. [FN462] In other words, subsidiarity does not figure significantly as a principle of governance in the new presidential framework of regulatory review. Executive Order 12,612, which had largely embodied the subsidiarity idea, is neither repealed nor affirmed. That Executive Order 12,866 is plainly comprehensive and expressly repealed the most significant executive orders that preceded it, [FN463] while ignoring both Executive Order 12,612 and its content, is only further evidence that Executive Order 12,612 has not played a major role up to now in U.S. regulatory review. It signals that subsidiarity may not play much of a role in regularity review under the Clinton administration either. F. Conclusion. Despite its evident preoccupation with federalism, the United States has shown rather little use for a specific doctrine of subsidiarity. [FN464] Apart from Executive Order 12,612 and the surrounding rhetoric, the United States has not made subsidiarity the measure of federalism. Looking for subsidiarity in the interstices of U.S. federalism is thus more than a little frustrating. To the extent that the Supreme Court has placed the Tenth Amendment at the service of federalism, it has thought in terms of a categorical core of State sovereignty that Congress may not invade. That core has been defined as the states' right to organize themselves freely in the performance of their functions, [FN465] or as their right not to be conscripted in the enforcement of federal law. [FN466] But never has it been translated into an express and judicially enforceable statement of preference for state over federal action in areas of concurrent jurisdiction. A strong body of opinion would continue to deny the Tenth Amendment judicial sanction altogether, on the theory that, by its composition and its procedures, Congress naturally protects the states anyway, and that if it does not, the states have only themselves to blame. One can speculate over the sincerity of this faith in the political process; it is equally possible, however, that the dogma simply masks a collective unwillingness to incur the institutional and conceptual costs of taking subsidiarity seriously. Though not itself legally constrained by a principle of subsidiarity, Congress has it well within its power to structure its own practices so as to lay greater emphasis on the capacity of the states to meet Congress' objectives. Thus far it has not done so. Congress can also restrain the exercise of authority by federal agencies through a statutory requirement of subsidiarity. The fact is, however, that congressional enactments only occasionally contain language requiring the agencies to conduct their regulation in conformity with anything like subsidiarity. This may be due to
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Congress' own sense of freedom from any such constraint, and possibly also to its habit of passing legislation that, for all its conditions and limitations, nevertheless places the emphasis on enabling the agencies to solve freely a problem that Congress may have managed to identify in only the most general of terms. Finally, judicial policies toward federal preemption at both the legislative and agency levels, while unquestionably reasonable, furnish subsidiarity with only weak support at best. Preemption doctrines by their nature are incapable of more. The Presidency of the United States, on the other hand, has attempted to fill the breach with respect to subsidiarity at the federal agency level. Executive orders now seek to channel the exercise of federal regulatory discretion in ways that uncannily track what the Europeans call proportionality and subsidiarity. However the effort, at least with respect to enforcement of Executive Order 12,612 on Federalism, appears to have been half-hearted, as if in recognition that a bare and abstract principle of subsidiarity is not a finely-enough tuned corrective to the complex problems of contemporary U.S. federalism. Executive Order 12,612 itself thus seems never to have been vigorously enforced and it is unclear whether it has even survived President Clinton's reform of the regulatory review process. This is not to suggest that organizations that speak for the interests of state and local government as such in the United States have never subscribed to a general principle of federalism along the lines of subsidiarity; in fact they have, especially recently. [FN467] Even in those quarters, however, the notion that the purposes of federalism will be served by systematically favoring state over federal initiatives still tends to take a back seat to more pragmatic concerns over such issues as the fiscal and administrative costs of federal regulation to state and local governments. [FN468] IV. EC Subsidiarity and U.S. Federalism The elevation of subsidiary to a first principle of Community constitutional law contrasts sharply with the apparent indifference to subsidiarity both as an abstract tenet and a working instrument of U.S. federalism. There is, of course, no necessity that the constitutional design of the emerging European Union mirror either the normative or the operational features of the United States. The point of the comparison is plainly enough not to have the United States join the subsidiarity band-wagonfar from it; it is, rather, to ask whether the tepid embrace of subsidiarity in U.S. federalism signals that subsidiarity has indeed been oversold in the Community, and if not, why not. If subsidiarity is not equal to federalism's task in the United States, it is certainly fair to ask why it should be considered fit for those purposes in Europe. The comparison, in short, may help us assess the virtues of subsidiarity for the Community and, in the process, may allow us to better understand the respective natures of EC and U.S. federalism. I approach this task by first seeking to explain why the United States, although it takes federalism seriously, behaves as if it can afford to take subsidiarity rather lightly. The comparison with the United States helps clarify the basic distinction, already sketched in Part III, between the concepts of subsidiarity and federalism. Reexamining institutional relationships within the Community in light of the United States situation and experience, I conclude that the Community does not have the same luxury of indifference toward subsidiarity. The comparison also reinforces my conclusions that the political institutions of the Community should rigorously practice the principle of subsidiarity, much as I envisioned them doing in Part II of this Article, however difficult that may be, and that the Court of Justice should undertake the delicate policing functions that I also described there. A. The U.S. and EC Settings Any comparison between the United States and the Community today must of course acknowledge the fundamental difference between, on the one hand, maintaining a semblance of balance in the power relations between the federal government and the states in a system designed along federal lines from its very beginning, and, on the other hand, consciously imposing a new multi-layered legal system on a continent historically dominated by sovereign Nation-States, themselves mostly unitary in structure. The mere fact that the United States has endured as a federal sys-
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tem over as long a period as it has, on the basis of a largely stable set of federalism ground rules, has afforded it a sense of both continuity and security. That sense of continuity and security in turn helps to explain the reluctance to designate any single legislative principle, be it subsidiarity or anything else, as the watchword of federalism, or to ask the judiciary to enforce that principle against the political branches. The escalating debates over regulatory federalism in the United States tell us that at least some participants in the U.S. political process, and some observers, consider this sense of continuity and security to be basically false. Their claim, in sum, is that while the United States has maintained its fidelity to federalism in form, it has abandoned it in substance. It is of course possible to define federalism in purely formal terms, and the more strictly one does so, the more continuity one tends to see. Most would agree, however, that at some point a formally federal system may experience so great a distortion in the balance of power that it ceases to be genuinely federal. Measuring federalism substantively, however, is a very difficult thing to do, if only because we lack accepted criteria for doing so. It is interesting that, while critics in the United States commonly allege and deplore a growing imbalance of power between the federal government and the states, to the detriment of the states, the means of redress that they most vigorously advance are ones that sidestep the central issue raised by subsidiarity. We have seen that the most common prescriptions include a reduction in the detail of federal legislation and regulation, an increase in flexibility in the choice of means by which state and local governments carry out federal policies, an abandonment of particularly objectionable federal legislative techniques, and, above all, the provision of full federal funding to the states for implementing programs that are essentially imposed on them from above. It is tempting to explain away the difference between the debates in the United States and Europe in terms of a supposed American penchant for the pragmatic and particularized and an aversion to the abstract. The fact is that, quite apart from any such real or imagined differences in approach, the advocates of federalism in the United States may simply be more concerned with the specifics of the relationship between the federal government and the states than with the relative scale on which those governments exercise political power. This in turn may reflect an assumption that, while certain patterns or techniques of federal governance are especially objectionable to state and local governments, and should be avoided, the American system of federalism nevertheless tolerates, and has survived, a wide range of differences in the distribution of policymaking authority between the federal government and the states. A further factor shaping the qualitative difference between U.S. and EC federalism relates to the political and cultural stakes in the integration process. While regional differences in the United States are not to be underestimated, it is idle to suppose that geography as such plays nearly as big a role in federalism debates in the United States today as it does in Europe. In Europe, geography still brings along with it differences in culture, language, and social and political values that are far more pronounced than the generally prevailing differences in the United States. These differences obtain not only among Member States, but also among regions within them. Because the reservation of political authority to more local units, at the expense of the federal government, brings greater opportunities for the assertion of distinctive cultural, linguistic, and social and political values, subsidiarity is a particularly apt instrument for a polity determined not merely to maintain a decent equilibrium in power between the federal government and the states, but to minimize the loss of political autonomy at the more local levels. B. Subsidiarity and Federalism Revisited For these and doubtless other reasons, U.S. federalism places greater emphasis on the presence of an overall balance of power between the federal government and the states than on respect for any single rule for allocating competences among the different levels of government. Federal and state-level decision-making each have at least some natural advantages that nearly all would concede and that Congress and the federal agencies have often sought to combine in creative ways. Beneath the well-worn generalities about the virtues of centralism and localism lies a recognition that the choice of the governmental level at which a given problem is best addressed, or a given policy best established, should in principle turn on a number of different considerations. The European Community doctrine of
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subsidiarity certainly points to one such considerationthe relative capacities of federal and state government to deal effectively or adequately with the problem or policy at hand. We have of course seen that the notion of dealing effectively or adequately with an issue depends entirely on the criteria by which we measure effectiveness or adequacy, [FN469] and the way in which those criteria are applied. Nevertheless, subsidiarity does usefully focus our attention on the sufficiency of the means that are available at the different levels of government. However, one may, in assigning political authority in a democratic society, legitimately ask other, perhaps more focused, questions. One may ask, for example, whose interests are likely to be affected by a given policy, and seek to vest the power to establish that policy in the body that most effectively represents those interests. It is likewise fitting, in a market that would be common, to inquire into the importance on any given issue of having a common regulatory standard, and to set that value off against the value of allowing standards on that particular issue to be set locally. (Some matters may strike us as of naturally local interest; others may not, but a wide disparity in local needs or conditions might nevertheless argue in favor of local governance.) Economists remind us to look also at the risk that communities may regulate in ways that impose costs unfairly on neighboring communities or on their populations, that they will engage in destructive competition in an effort to attract and keep industry, or that they may fail to capture important economies of scale. [FN470] Conversely, governance at the state or local level may be a way to ensure, if we deem it appropriate to do so, that communities bear the burdens of remedying a problem that they may have had a unique hand in causing. Even an essentially non-economic factor like diversity, often assumed invariably to favor localism, may be reexamined in the context of the problem at hand to see how much it really matters in a particular setting. As the range of considerations deemed relevant to the allocation of power among levels of government widens, the number of criteria and the incidence of conflict among them inevitably increase. It is no wonder that discussions of federalism in the United States so rarely produce general outcome-decisive formulas. [FN471] Subsidiarity, on the other hand, entails approaching federalism with the distinctive attitude that federal action should be taken in areas of shared competence only if the goal in question cannot adequately be achieved by action at the state level or below. Unless the term adequately is, as seems quite possible, simply a cover for something else (including the specific factors I have mentioned above, but possibly others as well), the choice between state and federal action under the principle of subsidiarity could turn on some diffuse assessment of whether action at the state level will satisfactorily meet the purposes that seem chiefly to underlie a proposed course of action. In other words, subsidiarity could displace a variety of specific considerations that are actually highly pertinent to choosing the most appropriate level of government for action. In a seasoned federalism like that of the United States, accustomed to taking this variety of considerations into account, the notion of subsidiarity may, in the end, have a somewhat hollow, even foolish, ring to it. The analytic difference between subsidiarity and federalism can perhaps best be appreciated by returning to the problem of squaring subsidiarity with federal regulation of interstate commerce. If, due to subsidiarity, we foreclose federal regulation of an activity on the ground that the states can adequately regulate it, while wholly disregarding the indirect effects of disparate state regulations on the functioning of a common market, we run the risk of causing substantial harm to interstate commerce. Prevailing attitudes toward federalism in the United States avert this risk because they allow the political branches, if they choose to do so, to entertain the tradeoff squarely. The Office of Management and Budget summarizes the exercise as deciding whether the burdens on interstate commerce arising from divergent State and local regulations are so great that they outweigh the advantages of diversity and local political choice. [FN472] The difference between subsidiarity, as the Community understands it, and federalism, as commonly understood in this country, is therefore not simply one of emphasis. As expressed in the Maastricht Treaty, subsidiarity states a generic preference for state over federal action when either would in some generalized sense do. Put differently, subsidiarity systematically places the burden of proof on the proponents of Community action. [FN473] How strong this preference for state action turns out to be will ultimately depend on what it takes and, especially, how much it takes to establish the states' inadequacy in this regard. My purpose in contrasting the notion of subsidiarity with federalism
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is not to discredit it, but merely to highlight its evident bias. It is to show that an equation of subsidiarity with federalism (an equation that Executive Order 12,612 in the United States, for example, explicitly invites us to draw) is misleading and possibly false. C. The Political Safeguards of Federalism and Commandeering in the Community Any comparison between the United States and the European Community with respect to subsidiarity must of course also consider the institutional arrangements within those communities. As we have seen in an earlier part, [FN474] the theory that governmental structures at the federal level adequately safeguard federalism translates much less well to the European Community context than one might suppose. The Council of Ministers seems initially the perfect example of a lawmaking institution whose composition and selection (to borrow Wechsler's term) [FN475] give effect to the constituent states' interests in self-governance. Nevertheless, I have sought to show why, notwithstanding its structure and mode of operation, the Council has failed of late to reassure its national and local constituencies that it is adequately looking after their distinct interests, much less protecting their distinctive qualities. [FN476] In fact, the basic notion that the Council of Ministers directly represents the peoples of Europe has never been seriously advanced, even by the Community's strongest advocates. The Council's unique structure thus forces recognition of the distinction between representing the states and representing the people that Congress (at least since the direct election of U.S. Senators) has managed to obscure. The Council represents, and claims to represent, only the states themselves; even then, as we have seen, [FN477] the states' interests on any given legislative occasion may have little to do with the aspirations of its subcommunities and its population for self-governance and all else that the subsidiarity concept evokes. The Council simply has sufficient incentives and opportunitiesincluding a strong sense of Community mission and a relative insulation from the ordinary national mechanisms of accountability, to name just twoto offset any natural calling to protect the Member States' interests and to help preserve their identities and the identities of their various subcommunities. As for the Commission, its structure and composition offer even less by way of protection of the states and their subcommunities' decisional autonomy. [FN478] In the absence of a chief executive elected popularly by a Community-wide constituency, the Community's greatest institutional hope for securing the virtues of subsidiarity may be the European Parliament. But that body's own structural features, [FN479] coupled with its curtailed decisional powers, [FN480] mean that it too offers only tenuous support for the notion that the Community institutions inherently safeguard subsidiarity. The fact is that, under any theory that looks to the political process at the federal level to safeguard federalism, a democratic deficit necessarily implies a federalism deficit as well. The direct institutional relations between the Community and the Member States also differ substantially from those that obtain in U.S. federalism, and they too argue in favor of taking subsidiarity especially seriously. From its beginnings, the Community has relied pervasively on the Member State legislatures, executives, and courts for the enforcement of Community law, [FN481] and this is unlikely to change in the near future. One consequence of this arrangementand there are of course others [FN482]is that the resources of all the branches of government in the Member States, and thus the resources of their populations, are harnessed, albeit nonexclusively, to the implementation of policy that has effectively been made in Brussels, at an altogether different level of government. Moreover, as we have seen, the makers of that policy are neither politically accountable in any verifiable way to the people of those states, nor necessarily even politically representative of them. This accountability deficit is all the more pronounced where the Member States are themselves divided among culturally or linguistically distinctive subcommunities that are even further removed from the Community decisional process than the national constituencies that the Member States purport to represent. What we observe in the workings of the Community is thus the very pattern of intergovernmental relationsspecifically, commandeering of Member State apparatus and resources in the service of federally-established
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policiesthat has generated constitutional disquiet in the United States in recent years. [FN483] To the extent that a disjunction between the freedom to make policy and the burdens of implementing it compromises democratic values, the European Community finds itself in a very precarious situation indeed. Subsidiarity has a special calling in the Community precisely because it may help reduce the field over which this unavoidable disjunction occurs. D. Conclusion The European Community (or more broadly after Maastricht, the European Union) [FN484] is basically a young federal system still in search of enduring constitutional foundations. Memories easily reach back to a period when the Community did not exist, or existed but was barely taken seriously as a legal and political force on a landscape of traditional nation-state sovereignty. Precisely because the Community institutions have come so far so fast in securing their place in European governance, they have awakened intense fears in the Member States, their subcommunities, and their populations over a loss of control of their political future. In Part I of this Article, I sought to demonstrate that the Community institutions have very largely behaved, at least since 1985, as if the mere prospect of strengthening the commonness of the internal market justified establishing Community-wide standards in business and trade even in otherwise purely intrastate situations. I also sought to show how, despite the impressive arsenal of doctrinal limits on Community action, a political decision to regulate a matter on a Community-wide basis was unlikely to be questioned by the Court of Justice. More recently, the institutions have shown their readiness to regulate in essentially non-economic spheres as well. Traditionally they have offered an economic (typically an internal market) rationale for doing so, bolstered by reference to the doctrine of implied powers. More commonly today, they invoke an express grant of authority in the Treaty to regulate noneconomic mattersinitially certain aspects of social policy and workers' rights, later environmental protection and worker safety, and since the entry into force of the Maastricht Treaty, still others. Once again, the Court of Justice has shown little enthusiasm, and rightly so, for restraining the exercise of political judgment by the institutions. It has preferred to question an institution's choice of treaty article (and therefore voting procedures) on which to base its interventions, rather than to question the scope or substance of the interventions themselves. The conditions in the Community are thus decidedly ripe for the kind of federal legislative self-discipline that subsidiarity implies. To maintain that subsidiarity fits the European Community at its present juncture is not to ignore its shortcomings. [FN485] As I have argued in Part II, subsidiarity is immensely difficult to operationalize, particularly if the legislative process is at the same time to pay due regard to proportionality as a governing value; a realistic view of the interplay between subsidiarity and proportionality suggests that tradeoffs of an irreducibly political character will be involved. This in turn means that, justiciable though it may be, subsidiarity will not easily be judicially enforced. As I sought to show in Part III, subsidiarity even on its own terms seems quite crude, certainly as compared to prevailing attitudes toward federalism in the United States. A salient feature of United States federalism is its capacity to accommodate a wide assortment of considerations in the decision to allocate political responsibility over a given issue to a certain level of government. Another feature is its close attention to the operational aspects of federalism, be they unfunded mandates, red tape, or statutory forms of cooperative federalism designed to allocate decisional authority in very precise ways between the federal government and the states. As against this combination of breadth in identifying the factors relevant to federalism, on the one hand, and attentiveness to specificity in the workings of federalism, on the other, the European Community's absorption with subsidiarity may appear to be immature. However, for a polity that is still seeking to establish its basic federal-state equilibrium, rather than merely to preserve it, the search for a guiding principle of regulatory federalism, and the designation of subsidiarity as that principle, are entirely appropriate. [FNa1]. Charles Keller Beekman Professor of Law, Columbia University School of Law. The research assistance of Hoyt P. Webb, J.D./M.B.A. 1933, Columbia University, is gratefully acknowledged.
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[FN1]. Graham P. Smith, Subsidiarity and Article 9, 1992 Int'l Merger Law: Events and Commentary (no. 24); see also Lord Mackenzie-Stuart, A Formula for Failure, The Times (London), Dec. 11, 1992, at 18 (Lord Mackenzie-Stuart was President of the Court of Justice of the European Communities from 1984 to 1988). Subsidiarity has been called by one European academic basically an empty shell devoid of concrete substance. Guenther F. Schaefer, Institutional Choices: The Rise and Fall of Subsidiarity, 23 Futures 681, 688 (1991). Others agree. See Daniela Obradovic, Community Law and the Doctrine of Divisible Sovereignty, 1 Legal Issues of Eur. Integration 1, 14-17 (1993). [FN2]. Editorial Comment, Subsidiarity: Furthering the Confusion, 5 Europe 2000Executive Review (June 1992); see also Andrew Adonis & Andrew Tyrie, Subsidiarity: No Panacea (1992) (arguing that subsidiarity is fundamentally incapable of playing the role Maastricht's authors envision); Les Metcalfe, Redesigning Europe, Paper Delivered at Third Biennial International Conference of the European Community Studies Association, Washington, D.C. (May 27-29, 1993) (on file with the Columbia Law Review) (the meaning of subsidiarity varies with the model of public management employed). For a somewhat more favorable description, see Dominik Lasok, Subsidiarity and the Occupied Field, 142 New L.J. 1228, 1228 (1992) (subsidiarity isvague but not unintelligible). For other basically positive assessments of subsidiarity, see generally Deborah Z. Cass, The Word That Saves Maastricht? The Principle of Subsidiarity and the Division of Powers Within the European Community, 29 Common Mkt.L.Rev. 1107 (1992); Ulrich Everling, Reflections on the Structure of the European Union, 29 Common Mkt.L.Rev. 1053, 1071 (1992). For a general discussion of the concept, see Chantal Million-Delsol, Le Principe de Subsidiarit (1993). [FN3]. According to one British columnist, former Prime Minister Thatcher described the term subsidiarity as gobbledegook. Philip Howard, The Times (London), Oct. 15, 1992, at 16; see also Mackenzie-Stuart, supra note 1 (similarly describing the term). [FN4]. See Reinhard Rack, Social Legislation in the European Community and in the Member StatesA Case of Subsidiarity?, Paper Delivered at Symposium on Subsidiarity and Harmonization: Defining European Federalism, Rutgers (Camden) School of Law (Mar. 26, 1993) (on file with the Columbia Law Review). [FN5]. See A.G. Toth, The Principle of Subsidiarity in the Maastricht Treaty, 29 Common Mkt.L.Rev. 1079, 1105 (1992). According to Toth, the principle of subsidiarity is not only not part of pre-Maastricht Community law but [also] totally alien to and contradicts the logic, structure and wording of the founding Treaties and the jurisprudence of the European Court of Justice. Id. at 1079. [FN6]. Jacques Delors, The Principle of Subsidiarity: Contribution to the Debate, in Subsidiarity: The Challenge of Change 7, 16 (Proceedings of Colloquium organized by European Institute of Public Administration, Mar. 21-22, 1991). [FN7]. Id. at 13; see also Jean-Louis Dewost, EC Model at the Crossroads: The EC Perspective on Subsidiarity 8 (Salzburg Seminar on Perspectives on Federalism, Salzburg, Austria, May 28, 1993) (describing subsidiarity as a doctrine that might lead to curtailment of the powers of the European Commission and reversion to more intergovernmental action). In its latest communication on subsidiarity, the Commission called attention to this risk and stated its determination to avoid it. Thus, subsidiarity cannot be used as a pretext for challenging measures in areas such as the internal market where the Community has a clearly defined and undeniable obligation to act, and debate should not be reopened . . . on the fundamental principles of Community policies, or on particular points of an instrument considered essential by one or other Member State. Commission Report to the European Council on the Adaptation of Community Legislation to the Subsidiarity Principle, COM(93)545 final at 2, 6. In general, this Report seems to illustrate the significant difficulties involved in implementing subsidiarity, especially in so far as revisions of existing legislation are concerned. Id. at 5-8.
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[FN8]. According to Article A of the Treaty on European Union [TEU], the European Communities, including the EEC, constitute a European Union. This new stage in the process of creating an ever closer union among the peoples of Europe, id., entails, in addition to the Communities, certain forms of intergovernmental cooperation, notably in justice and home affairs, TEU, tit. VI, and foreign and security policy, TEU, tit. V. Moreover, Article G of the TEU amends the Treaty Establishing the European Economic Community in order to rename the European Economic Community (EEC) the European Community (EC). For simplicity's sake, I refer throughout this article to the EC Treaty. Technically speaking, that Treaty was known as the EEC Treaty (Treaty Establishing the European Economic Community) up until the entry into force of the TEU. [FN9]. TEU art. G(5), adding a new Article 3b to the Treaty Establishing the European Economic Community [EC Treaty]. See infra note 41 and accompanying text. [FN10]. The term divided-power system comes from Eric Stein, On Divided-Power Systems: Adventures in Comparative Law, 1983/1 Legal Issues of Eur. Integration 27 (1983). See also Koen Lenaerts, Constitutionalism and the Many Faces of Federalism, 38 Am.J.Comp.L. 205, 263 (1990) (Federalism is present whenever a divided sovereign is guaranteed by a national or supranational constitution and umpired by the supreme court of the common legal order.). [FN11]. See European Council in Edinburgh, Conclusions of the Presidency, Dec. 12-13, 1992 (summarizing results of the Edinburgh Summit) [hereinafter Edinburgh Conclusions]. See generally European Community: Cheery Faces, The Economist, Dec. 19, 1992, at 48. [FN12]. The principle of proportionality holds that the individual should not have his freedom of action limited beyond the degree necessary for the public interest. Case 11/70, Internationale Handelsgesellschaft GmbH v. Einfhrund Vorratsstelle fr Getreide und Futtermittel, 1970 E.C.R. 1125, 1127, [1972] 10 C.M.L.R. 255, 256. See generally Derrick Wyatt & Alan Dashwood, European Community Law 89-91 (3d ed. 1993). [FN13]. The Court of Justice of the European Communities is responsible for ensur[ing] that in the interpretation and application of [the EC treaty] the law is observed. EC Treaty art. 164. Upon request from Member State courts, it may render preliminary rulings on the validity and interpretation of community acts. The court also hears original actions against both the Member States and the Community institutions themselves for alleged breaches of Community law. On the Court, see generally George A. Bermann et al., Cases and Materials on European Community Law 69-72, 96-165 (1993); Ulrich Everling, The Court of Justice as a Decisionmaking Authority, 82 Mich.L.Rev. 1294 (1984). See infra note 142. [FN14]. Under the principle of direct effect, national courts may be bound to recognize and enforce the rights or obligations placed on individuals by Community law. The Court of Justice established the principle in Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1, 12, [1963] 2 C.M.L.R. 105, 117. See infra notes 57-71 and accompanying text. [FN15]. The Council of Ministers is the Community's chief legislative body. It consists of representatives of each of the twelve Member States. Representatives vote in the Council in the name of the Member State that they represent. Action on some issues requires unanimity among the twelve ministers. Action on other issues requires an absolute majority vote, i.e., support by seven Member States. A third, and rapidly growing, category of issues requires qualified majority voting. On the workings of qualified majority voting, see infra note 38. [FN16]. See infra Part III.C. [FN17]. The allocation of governmental authority within each Member State may, of course, also be subjected to a principle of subsidiarity. This possibility is most obvious in a Member State such as Germany, which itself is organized as a federal system, or in such prospective Member States as Austria or Switzerland. Some EC Member States,
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notably Belgium, Italy, Spain, and the UK, have regional subdivisions which, while falling short of constituent states as such, can and sometimes do advance subsidiarity-based claims. Finally, every State, even the most unitary, exhibits power-sharing between central and a variety of different levels of more local authority. The German Constitution (Grundgesetz or Basic Law) provides that, in areas of shared competence, the federal government may legislate only if necessary, that is, if the states cannot effectively achieve the goal sought. Article 72(2) provides: The Federation shall have the right to legislate on [matters within the concurrent legislative powers of the Federation and the Lnder (states)] to the extent that a need for regulation by federal law exists because: 1. a matter cannot be effectively regulated by the legislation of individual Lnder, or 2. the regulation of a matter by a Land law might prejudice the interests of other Lnder or of the entire community, or 3. the maintenance of legal or economic unity, especially the maintenance of uniformity of living conditions beyond the territory of a Land necessitates such regulation. Grundgesetz [Constitution] art. 72 (Germany). See generally Nicholas Emiliou, Subsidiarity: An Effective Barrier Against the Enterprises of Ambition?, 17 Eur.L.Rev. 383, 388-90 (1992). [FN18]. [I]t is a fixed and unchangeable principle . . . that just as it is wrong to take away from individuals what they can accomplish by their own ability and effort and entrust it to a community, so it is an injury and at the same time both a serious evil and a disturbance of right order to assign a larger and higher society what can be performed successfully by smaller and lower communities. The reason is that all social activity, of its very power and nature, should supply help [subsidium] to the members of the social body, but may never destroy or absorb them. . . . Let those in power, therefore, be convinced that the more faithfully this principle of subsidiarity function is followed and a graded hierarchical order exists among the various associations, the greater also will be both social authority and social efficiency, and the happier and more prosperous too will be the condition of the commonwealth. Joseph Komonchak, Subsidiarity in the Church: The State of the Question, 48 The Jurist 298, 299 (1988) (quoting Pius XI, Quadregismo Anno 79 (1931)). [FN19]. Franz-Xaver Kaufmann, The Principle of Subsidiarity Viewed by the Sociology of Organizations, 48 The Jurist 275, 280 (1988); see also Thomas J. Green, Subsidiarity During the Code Revision Process: Some Initial Reflections, 48 The Jurist 771, 798-99 (1988) (quoting Cardinal Dpfner's statement at the 1969 synod to the effect that subsidiarity signifies that the higher instances and organisms must respect the capacities, competences and tasks of individuals and communities, in theory and in practice [so that] . . . a healthy and vigorous life, adapted to different situations, can develop). [FN20]. The European Council, meeting at Edinburgh in 1992, emphasized that subsidiarity brings decision-making as closely . . . as possible to the citizen. Edinburgh Conclusions, supra note 11, Annex 1 to Part A, at 2. On the linkage between subsidiarity and self-determination, see Delors, supra note 6, at 8-9. Joseph Weiler in effect described the relationship of subsidiarity to democracy and control when he wrote: [T]he European electorate (in most Member States) only grudgingly accepts the notion that crucial areas of public life should be governed by a decisional process in which their national voice becomes a minority which can be overridden by a majority of representatives from other European countries. . . . [T]here is, arguably, [not yet a consensus] that the boundaries within which a minority will accept as democratically legitimate a majority decision are now European instead of national. J.H.H. Weiler, The Transformation of Europe, 100 Yale L.J. 2403, 2472-73 (1991) [hereinafter Weiler, Transformation]. See also Alain G. Gagnon, The Political Uses of Federalism, in Comparative Federalism and Federation 15 (M. Burgess & A. Gagnon eds., 1993) [hereinafter Comparative Federalism] (arguing that federalism serves as a shield for minority groups and provides a means for the expression of innovative democratic practices). The constitu-
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tional principle of democracy played a major role in the constitutional challenge in Germany to that country's ratification of the Maastricht Treaty on European Union. In its October 1993 ruling, the German Constitutional Court held that the German Parliament could not constitutionally ratify a treaty that deprived the German people of their right to democratic participation, but that ratification of the Maastricht Treaty did not entail such a deprivation. See Judgment of Oct. 12, 1993, Bundesverfassungsgericht [Constitutional Court] 2 BVerfG 2134/92, 2 BVerfG 2159/92 (Germany) [hereinafter German Constitutional Court Maastricht Decision]; see also Michael Burgess & Franz Gress, The Quest for a Federal Future: German Unity and European Unrest, in Comparative Federalism, supra, at 168. [FN21]. See Centre for Economic Policy Research, Making Sense of Subsidiarity: How Much Centralization for Europe? 41-42 (1993) [hereinafter Making Sense]. [FN22]. Among the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. . . . To secure the public good and private rights against the danger of . . . faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. The Federalist No. 10, at 16, 19-20 (James Madison) (Roy P. Fairfield ed., 1981). See also Cass R. Sunstein, After the Rights Revolution: Reconceiving the Regulatory State 14-15 (1990) (discussing Madison's view of republican government). [FN23]. This belief is manifested both in the doctrine of separation of powers and in the general reservation of governmental action to the states. See generally The Federalist Nos. 45, 46 (James Madison). [FN24]. See Emiliou, supra note 17, at 385-86. [FN25]. The European Council, meeting at Edinburgh in 1992, asserted that subsidiarity contributes to . . . respect for the national identities of Member States, at the same time as it safeguards their powers. See Edinburgh Conclusions, supra note 11, at 2. For a discussion of the relation between federalism and the preservation of cultural identities, see Daniel J. Elazar, Exploring Federalism 6, 33, 99 (1987); Sunstein, supra note 22, at 35. [FN26]. See Jacques Santer, Some Reflections on the Principle of Subsidiarity, in Subsidiarity: The Challenge of Change, supra note 6, at 19, 30 (claiming that extraordinary and rich diversity . . . is Europe's greatest asset). [FN27]. See Klaus Gretschmann, The Subsidiarity Principle: Who Is to Do What in an Integrated Europe?, in Subsidiarity: The Challenge of Change, supra note 6, at 45, 50-51 (European diversity represents a playground for experiments.). The theme of states as laboratories for social and economic experimentation is not exclusively European. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting) ([A] single courageous State may . . . serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.). [FN28]. See Bruno De Witte, Community Law and National Constitutional Values, 1991/2 Legal Issues of Eur. Integration 1, 13-14 (1991); Editorial Comments, The Subsidiarity Principle, 27 Common Mkt.L.Rev. 181, 182 (1990); Marc Wilke & Helen Wallace, Subsidiarity: Approaches to Power-Sharing in the European Community 3-4 (Royal Institute of International Affairs, Discussion Paper No. 27, 1990). In fact the notion of subsidiarity surfaced specifically in the 1988 discussions in Bonn between Commission President Delors and the Minister-Presidents of the German Lnder. See Delors, supra note 6, at 9. For a discussion of constitutional amendments introduced in Germany to strengthen the voice of the Lnder in Germany's participation in Community decision-making, see infra note 264 and accompanying text. In its October 1993 decision upholding the constitutionality of the German law ratifying the Maastricht Treaty
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(as well as the laws amending the German Basic Law to permit the ratification), the German Constitutional Court declined to decide whether the Treaty violated the basic constitutional principle of federalism. That particular claim was deemed inadmissible. However, the Court ruled that the constitutional principle of democratic legitimacy requires that the Member States retain a certain minimum of sovereign legislative power: As long as the peoples of the Member States remain the source of democratic legitimacy acting through the intermediary of the national parliamentas is the case at presentthe principle of democracy places limits on the expansion of competences of the European Communities . . . . The States must have areas of their own competence that are sufficiently large, in which the people of each State can express and organize themselves within the framework of a process of defining their political will, legitimated and directed by that people in such a way as to give legal expression to that which unites them, at least relatively homogeneously, on the spiritual, social and political level. It follows from this that the Member State legislature must reserve powers and competences of some substantial importance. German Constitutional Court Maastricht Decision, supra note 20, at 46-47. The Court concluded under the circumstances thatthe grant of powers and competences to the European Union provided for by the Treaty on European Union still leaves Bundestag sufficient powers and competences of a substantial political weight. Id. at 76. [FN29]. On the other hand, the dispersion of power within a federally-organized Member State may in some respects reduce that State's effectiveness as a governmental mechanism, at least insofar as the attainment of Community objectives is concerned. This may, paradoxically, give the Community institutions greater cause to doubt the efficacy of Member State action as compared to Community action in attaining those objectives and thus, in keeping with the principle of subsidiarity, cause them to take action themselves. On the importance of the subsidiarity principle to a prospective federal Member State, such as Austria, see Rack, supra note 4. [FN30]. See, e.g., European Council in Brussels, Declaration on the Entry into Force of the Treaty on European Union (Oct. 29, 1993), DOC/93/8. [FN31]. For example, subsidiarity is sometimes assumed to favor the politics of deregulation, in that the less Brussels regulates, the less regulation there is likely to be. See Henning Christophersen, Subsidiarity and Economic Monetary Union, in Subsidiarity: The Challenge of Change, supra note 6, at 65, 66. This assumes, however, that Member States will not use subsidiarity as a rationale for national intervention. [FN32]. See Making Sense, supra note 21, at 36-39; A.E. Dick Howard, The Values of Federalism, 1 New Eur.L.Rev. 143, 156-60 (1993) (discussing negative experiences of federalism in the United States). [FN33]. See supra note 22. The Madisonian risk is not as significant in the European Community as it was in America in the 1780s. The Member States are, for the most part, large polities. Moreover, they are mature polities, and those among them that contain cultural minorities at risk of oppressionBelgium, Italy, Spain, and the UK, for examplehave developed internal regional policies to cope with that risk. [FN34]. The European Parliament, as described in Article 137 of the EEC Treaty, consists of representatives of the peoples of the States brought together in the Community. In other words, it represents the people of Europe, rather than either the Community interest itself or the interests of the Member States as such. Except where the Treaty indicates otherwise, the Parliament's legislative role within the Community is basically a consultative one only. Since 1987, its legislative role has been enhanced, notably through introduction of a parliamentary cooperation procedure and a parliamentary co-decision procedure. See infra note 134 and accompanying text. The term subsidiarity had figured into the Commission's 1975 Report on European Union. See Bull.Eur. Communities Comm'n Supp. 5/75, at 10-11. For discussion of its significance in that context, see Toth, supra note 5, at
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1088-89; see also Cass, supra note 2, at 1112-16 (tracking the early development of subsidiarity in the Community). [FN35]. Draft Treaty Establishing the European Union, art. 12(2), 1984 O.J. (C 77) 33, 38. The Draft Treaty suggested that Union action would be appropriate for tasks whose execution requires action by the Union because their dimension or effects extend beyond national frontiers. Id. As early as 1982, the European Parliament had formally declared that [t] he principle of subsidiarity [was] one of the essential principles of the union. Resolution on the European Parliament's Position Concerning the Reform of the Treaties and the Achievement of European Union, 1982 O.J. (C 238) 26. [FN36]. Single European Act [SEA], I Treaties Establishing the European Communities 1005 (Office for Official Publications of the European Communities, 1987); see also Jean De Ruyt, L'Acte Unique Europen 25-65 (1989); Don't Take Europa to Brussels, They Cry, The Economist, Nov. 8, 1986, at 55 (SEA Treaty confers no significant new powers on the Commission, with even majority voting provision easily subjected to minority blocking and veto). [FN37]. The Community shall take action relating to the environment to the extent to which the objectives [assigned to it] can be attained better at [the] Community level than at the level of the individual Member States. EC Treaty art. 130r(4) (as amended 1987). [FN38]. Under qualified majority voting, the Member States have differing numbers of votes depending very crudely on their relative populations. Luxembourg has two votes; France, Germany, Italy, and the UK have ten apiece; the others have numbers in between. The current total votes in the Council under qualified majority voting is 76, and 54 affirmative votes are required for action. All of a state's votes are cast as a bloc. [FN39]. See Report of the Committee for the Study of Economic and Monetary Union [hereinafter the Delors Committee Report] Bull.Eur. Communities Comm'n, Sept. 1989 at 8, which outlined the essentials of an economic and monetary union and expressly called for application of the principle of subsidiarity to legislation in that area. [FN40]. TEU, art. A. [FN41]. EC Treaty art. 3b (as amended 1992). The final paragraph of the new Article 3b reads: Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty. Id. This paragraph expresses what is commonly known as the principle of proportionality. See infra notes 157-160 and accompanying text. [FN42]. The TEU (amending EC Treaty art. 126) guarantees that the Community, while contributing to educational quality, will fully respect[] the responsibility of the Member States for the content of teaching and the organization of education systems and their cultural and linguistic diversity. EC Treaty art. 126(1) (as amended 1992). [FN43]. The TEU (amending EC Treaty art. 127) guarantees that the Community, while supporting and supplementing the Member States' vocational training policies, will fully respect[] the responsibility of the Member States for the content and organization of vocational training. EC Treaty art. 127(1) (as amended 1992). [FN44]. The TEU binds the Community to respect the Member States' national and regional diversity even while bringing the common cultural heritage to the fore. EC Treaty art. 128(1) (as amended 1992). [FN45]. The TEU (amending EC Treaty art. 129) emphasizes that the Community's legislative role in the field of health is confined to encouraging cooperation between the Member States and, if necessary, lending support to their action. EC Treaty art. 129(1) (as amended 1992). [FN46]. The TEU (amending EC Treaty art. 129a) similarly limits the Community to taking such consumer protection action as supports and supplements the policy pursued by the Member States. EC Treaty art. 129a (1)(b) (as amended 1992).
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[FN47]. The TEU (amending EC Treaty art. 130) simply calls on the Commission to promote coordination among the Member States in their industrial policies and otherwise to take specific measures in support of action taken in the Member States to foster industrial competitiveness. EC Treaty art. 130g (as amended 1992). The SEA, in adding EC Treaty Article 130g on research and technological development, had similarly confined the Community to complementing the activities carried out in the Member States. [FN48]. The TEU, art. K.3(2)(b), invites the Council, on the initiative of a Member State (or in some cases the Commission) to adopt joint action on asylum, border controls, immigration policy, control of drug trafficking and addiction, anti-terrorism activities, international crime prevention, and judicial cooperation in civil and criminal matters, but only in so far as the objectives of the Union can be attained better by joint action than by the Member States acting individually on account of the scale or effects of the action envisaged. Id. [FN49]. Article 1 of the Agreement on Social Policy, annexed to the Protocol on Social Policy (which is itself attached to the TEU), requires the Community and the States to implement measures which take account of the diverse forms of national practices. More to the point, Article 2 of the Agreement describes the Community's role as support[ing] and complement[ing] the activities of the Member States in fields covered by the term social policy (worker health and safety, working conditions, worker consultation, equality of men and women in access to and conditions of employment, and expansion of the labor market). TEU, Protocol on Social Policy, Agreement on Social Policy, arts. 1, 2, Bull.Eur. Communities Comm'n Supp., 1992. The 1989 Social Charter, whose program the Protocol and Agreement on Social Policy seek to implement, itself incorporates subsidiarity. According to paragraph 27 of the Charter: It is more particularly the responsibility of the Member States, in accordance with national practices . . . to guarantee the fundamental social rights in this Charter and to implement the [necessary] social measures. European Community Charter of the Fundamental Social Rights of Workers, 27 (Office for Official Publications of the European Community, 1989). The Preamble of the Charter specifically reaffirms the principle of subsidiarity: [B]y virtue of the principle of subsidiarity, responsibility for the initiatives to be taken with regard to the implementation of these social rights lies with the Member States or their constituent parts and, within the limits of its powers, with the European Community. Id. [FN50]. See supra notes 48-49. [FN51]. See Making Sense, supra note 21. The authors of the report were understandably most dubious about the Community's involvement in social policy. The Social Chapter of the Maastricht Treaty is . . . in direct contradiction with the subsidiarity principle that the same Treaty espouses. Id. at 114. See also Figuring Out Subsidiarity, The Economist, Nov. 27, 1993, at 58. [FN52]. I date the existence of the Community from January 1, 1958, when the EEC Treaty came into effect. See Multilateral Treaties: Index and Current Status 215 (M.J. Bowman & D.J. Harris eds., 1984). In fact, the Treaty Establishing the European Coal and Steel Community (ECSC) came into effect in 1952. See id. at 168. [FN53]. See Weiler, Transformation, supra note 20, at 2405. [FN54]. See generally Jacques H.J. Bourgeois, Effects of International Agreements in European Community Law: Are the Dice Cast?, 82 Mich.L.Rev. 1250 (1984) (examining the influence of doctrine regarding relations between Community and Member State law on that regarding relations between international and Community law). For analysis of direct applicability and direct effect, see John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 Am.J. Int'l L. 310 (1992) (examining the direct applicability of international treaties in national legal systems). On the doctrine of supremacy, see Antonio La Pergola & Patrick Del Duca, Community Law, International Law and the Italian Constitution, 79 Am.J. Int'l L. 578 (1985) (analysis and comparison of the interpretations of the Court of justice of the European Communities and their application by the Italian Constitutional Court). [FN55]. See, e.g., Lenaerts, supra note 10, at 208-13; Eric Stein, Lawyers, Judges, and the Making of a Transnational
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Constitution, 75 Am.J. Int'l L. 1, 9-10 (1981). [FN56]. The Court of justice has in fact ruled that a Member State acts illegally when it incorporates directly applicable Community law in such a way as to conceal its Community origins and character. See T.C. Hartley, The Foundations of European Community Law 197-98 (2d ed. 1988) (citing Case 34/73, Fratelli Variola S.p.A. v. Amministrazione Italiana delle Finanze, 1973 E.C.R. 981, [1974 Transfer Binder] Common Mkt.Rep. (CCH) 8226). [FN57]. The Court justified all three doctrines in terms of their effet utile. Unless Community law were directly applicable, directly effective, and supreme, the Community might fail to accomplish its purposes effectively. See infra notes 59, 72. [FN58]. See Robert O. Keohane & Stanley Hoffmann, Conclusions: Community Politics and Institutional Change. in The Dynamics of European Integration 276, 278-82 (William Wallace ed., 1990). [FN59]. See Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1, 13, [1963] 2 C.M.L.R. 105, 130-31. [FN60]. See Case 41/74, Van Duyn v. Home Office, 1974 E.C.R. 1337, 1342 [1975] 1 C.M.L.R. 1, 16. [FN61]. See Case 8/81, Becker v. Finanzamt Mnster-Innenstadt, 1982 E.C.R. 53, 65-66 [1982] 1 C.M.L.R. 499,512. [FN62]. The Court, it should be made clear, does not actually pass on the validity of any particular Member State measure and certainly never invalidates a Member State measure as such. However, it may determine whether the type of remedy available in the Member States is adequate for Community law purposes. [FN63]. See Case 9/70, Franz Grad v. Finanzamt Traunstein, 1970 E.C.R. 825, [1971] 1 C.M.L.R. 1 (upholding direct applicability of EC law regarding tariff); see also Case 41/74, Yvonne van Duyn v. Home Office, 1974 E.C.R. 1337 (directing member state to protect EC laws on freedom of movement for workers); Case 20/70, Transports Lesage & Cie v. Hauptzollamt Freibrug, 1970 E.C.R. 861 (directing member states to allow its nationals to invoke rights protected by EC turnover tax). [FN64]. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. EC Treaty art. 189. [FN65]. Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty . . . . They shall facilitate the achievement of the Community's tasks. Id. art. 5. [FN66]. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. Id. art. 189; see also Case 9/70, Grad v. Finanzamt Traunstein, 1970 E.C.R. 825, 833, [1971 ] 1 C.M.L.R. 1, 22. [FN67]. A decision shall be binding in its entirety upon those to whom it is addressed. EC Treaty art. 189. [FN68]. See Case 8/81, Becker v. Finanzamt Mnster-Innenstadt, 1982 E.C.R. 53, 63, [1982] 1 C.M.L.R. 499, 512. [FN69]. See Case 43/75, Defrenne v. Socit Anonyme Belge de Navigation Arienne Sabena, 1976 E.C.R. 455, 465, 2 C.M.L.R. 98, 129 [1976]. The Court in Defrenne specifically noted the applicability of Article 119 to establishments or services, whether private or public. Id. at 40. [FN70]. See Case C-106/89, Marleasing SA v. La Comercial Internacional de Alimentacon SA, 1990 E.C.R. I-4135, 4160, [1992] 1 C.M.L.R. 305 322.
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[FN71]. See Case C-6, 9/90, Francovich v. Italy, 1991 E.C.R. (Nov. 19,1991), 2 C.M.L.R. 66, 113-14 (1993). [FN72]. See Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. (II), 1978 E.C.R. 629, 634, [1978] 3 C.M.L.R. 263, 284 (holding EC law invalidates contrary national law); see also Case 6/64, Costa v. Ente Nazionale Per L'Energia Elettrica (ENEL), 1964 E.C.R. 585, 593-94, [1964] 1 C.M.L.R. 425, 436 (Treaty law cannot be overridden by national constitutional or statutory law). [FN73]. See Case 87/75, Conceria Daniele Bresciani v. Amministrazione Italiana delle Finanze, 1976 E.C.R. 129,142, [1976] 2 C.M.L.R. 62, 79. [FN74]. See Case 4/73, Nold v. Commission, 1974 E.C.R. 491, 502, [1974] 2 C.M.L.R. 338, 354-55. [FN75]. See Case 11/70, Internationale Handelsgesellschaft v. Einfhr-und Vorratsstelle fr Getreide und Futtermittel, 1970 E.C.R. 1125, 1131, [1972] 10 C.M.L.R. 255, 282. [FN76]. See id. [FN77]. See Case 314/85, Firma Foto-Frost v. Hauptzollamt Lbeck-Ost, 1987 E.C.R. 4225, 4231 [1988] 3 C.M.L.R. 57, 79. [FN78]. See Case 213/89, Regina v. Secretary of State for Transport ex Parte Factortame Ltd., 1990 E.C.R. I-2433, 2475, [1990] 3 C.M.L.R. 1. [FN79]. See Case 314/85, Firma Foto-Frost, 1987 E.C.R. 4225; see also Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal S.p.A. (II), 1978 E.C.R. 629, 639-40, [1978] 3 C.M.L.R. 263, 284. [FN80]. See Case 213/89, Factortame [1990]; Case 222/86, UNECTEF v. Heylens, 1987 E.C.R. 4097, 4117, [1989] 1 C.M.L.R. 901, 913. See generally Koen Lenaerts, Some Thoughts About the Interaction Between Judges and Politicians, 1992 U.Chi. Legal F. 93, 99-104. [FN81]. See generally Lenaerts, supra note 80, at 98-99 (citing, in particular, Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1, [1963] 2 C.M.L.R. 105)). [FN82]. See Joseph Weiler, The Community System: The Dual Character of Supranationalism, 1 Y.B.Eur.L. 267, 286-88 (1982) (The Court's reasoning that supremacy was enshrined in the Treaty was contested by the governments of Member States. . . . Acceptance of this view amounts in effect to a quiet revolution in the legal order of the Member States.). The challenges that Member State courts mounted to the Court's claims focused on very particular issues. Thus, for example, the German and Italian Constitutional Courts have not yet categorically abandoned the right to test Community measures by fundamental rights provisions of the national constitutions. [FN83]. See EC Treaty art. 146. [FN84]. The Council's use of its most wide-ranging powers (notably harmonization and implied powers) originally required a unanimous vote, rather than either a simple or qualified majority of votes. The Single European Act introduced the possibility of harmonization by qualified majority vote under Article 100a. See EC Treaty art. 100a (as amended 1987). [FN85]. In 1966, the then six Member State governments issued a statement known as the Luxembourg Accord, dealing with the situation in which a State believes that Community action about to be taken by majority vote would impair its vital interests. Though the Accord was somewhat ambiguous, it was commonly invoked until the 1980s as the basis for a single Member State political veto. On the Luxembourg Accord and its apparent demise, see Bermann et al., supra note 13, at 54-55.
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[FN86]. See infra notes 123-128 and accompanying text. [FN87]. In its seminal Van Gend en Loos judgment, Case 26/62, Van Gend en Loos v. Nederlandse Administratie der Belastingen, 1963 E.C.R. 1, 12, [1963] 2 C.M.L.R. 105, 129, the Court described the States as having ceded sovereignty albeit in limited fields. Id. [FN88]. See generally Auke Haagsma, The European Community's Environmental Policy: A Case-Study in Federalism, 12 Fordham Int'l L.J. 311, 354-56 (1989); Lenaerts, supra note 80, at 123-25; see also Dewost, supra note 7, at 2. [FN89]. Unlike the United States Supreme Court, however, the Court of Justice does not normally rule directly on the validity of Member State laws. However, it may and often does clearly indicate as a matter of law that State measures of a certain kind or description run afoul of the EC Treaty. See supra note 62. [FN90]. The 1986 Single European Act (SEA) was later to relax the procedural rules for harmonization, by introducing qualified majority voting in the Council and permitting the use of regulations as well as directives. See infra notes 123-128 and accompanying text. Specifically, the SEA added Article 100a to the EC Treaty: The Council shall, acting by a qualified majority . . . adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. EC Treaty art. 100a (as amended 1987). The introduction of qualified majority voting paved the way for easier passage of legislation because it allowed certain combinations of States to legislate over the others' objections and encouraged the Commission to formulate legislative proposals that fell short of universal acceptance. [FN91]. See, e.g., Eurononsense, The Economist, Dec. 26, 1992, at 70 (descriptions of several intrastate regulations that suppress interstate commerce); see also David T. Keeling, The Free Movement of Goods in EEC Law: Basic Principles and Recent Developments in the Case Law of the Court of Justice of the European Communities, 26 Int'l Law. 467, 469, 471, 475 (1992); see generally Eric Stein et al., European Trade, 1992: Fortress or Partnership?, 83 Am. Soc'y Int'l L.Proc. 332, 333 (1989). [FN92]. See Pollution Directive Annulled, The Times (London), Aug. 21, 1991, at 31 (transcript of Case 300/89, Commission v. Council 1991 E.C.R. I-2867, 3 C.M.L.R. 359 (1993)); see, e.g., Council Directive 92/42, 1992 O.J. (L 167) 17 (on efficiency requirements for new hot-water boilers fired with liquid or gaseous fuels); Council Directive 93/15, 1993 O.J. (L 121) 20 (on the harmonization of the provisions relating to the placing on the market and supervision of explosives for civil uses). [FN93]. An analogous observation could be, and has been, made about Congress' exercise of prescriptive jurisdiction under the Commerce Clause. [FN94]. Lenaerts, supra note 10, at 220. As another commentator has noted: There is no residue of powers reserved to Member States. . . . [Moreover], since Community legislation always prevails over national law, Community legislation, once adopted, can be amended only by the Community. So every piece of Community legislation creates pro tanto an area of exclusive Community legislative power. This is [especially] important . . . because the treaties give the Community such wide (non-exclusive) legislative powers. John Temple Lang, The Development of European Community Constitutional Law, 25 Int'l Law. 455, 460 (1991). [FN95]. Council Directive of July 25, 1985 on the Approximation of the Laws, Regulations and Administrative Provisions of the Member States Concerning Liability for Defective Products, Council Directive 85/374, 1985 O.J. (L 210) 29. [FN96]. EC Treaty art. 100.
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[FN97]. For a cogent description of this process of expansion of Community legislative power, see Weiler, supra note 20, at 2438-41. Weiler designates as absorption the process by which the Community legislative authorities, in exercising substantive legislative powers bestowed on the Community, impinge on areas of Member State jurisdiction outside the Community's explicit competences. Id. at 2438; see also Everling, supra note 2, at 1066-69. [FN98]. I am using the term preemption here narrowly to denote a decision by federal authorities to occupy a field to the exclusion of the states. [FN99]. The Grundgesetz went so far as to distinguish between powers that were permanently concurrent and others that were concurrent only until the federal government took action of some kind, at which time the matter passed into that government's exclusive domain. See Grundgesetz [Constitution] art. 72 (Germany). [FN100]. [T]he activities of the Community shall include . . . the establishment of a common customs tariff and of a common commercial policy towards third countries. EC Treaty art. 3(b). [FN101]. See Case 38/75, Nederlandse Spoorwegen v. Inspecteur der Invoerrechten en Accijnzen, 1975 E.C.R. 1439, 1449. [FN102]. See Weiler, Transformation, supra note 20, at 2416-17 (using the term exclusive to denote competences reserved to the Community ab initio). [FN103]. See Case 29/87, Dansk Denkavit v. Tuchtgerecht, Danish Ministry of Agriculture, 1988 E.C.R. 2965, 2988, [1990] 1 C.M.L.R. 203, 214; Case 255/86, Commission v. Belgium, 1988 E.C.R. 693, 708 [1989] 3 C.M.L.R. 91, 101; Case 130/85, Re Wulro BV v. Tuchtgerecht Van de Stichting Scharreleiren-Controle, 1986 E.C.R. 2035, 2044, [1988] 1 C.M.L.R. 496, 503; see also G. Federico Mancini, The Making of a Constitution for Europe, 26 Common Mkt.L.Rev. 595, 603-04 (1989). [FN104]. See Weiler, Transformation, supra note 20, at 2417. Weiler confines use of the term preemption to matters not reserved to the Community ab initio. [FN105]. The one other area in which the Court addressed preemption in constitutional terms is competition policy. Here the Court concluded that while the States had to refrain from regulating business in terms of its anticompetitive effects on interstate Community trade, they could continue to regulate purely intrastate trade. See Case 14/68, Wilhelm v. Bundeskartellamt, 1969 E.C.R. 1, 9-10, [1969] 1 C.M.L.R. 100, 118-20. [FN106]. See infra notes 358-361 and accompanying text. [FN107]. See generally Eugene Cross, Pre-Emption of Member State Law in the European Economic Community: A Framework for Analysis, 30 Common Mkt.L.Rev. 447 (1992); M. Waelbroeck, The Emergent Doctrine of Community Pre-Emption: Consent and Re-Delegation, in 2 Courts and Free Markets 548 (Terence Sandalow & Eric Stein eds., 1982). [FN108]. See, e.g., Case 111/76, Officier van Justitie v. Beert van den Hazel, 1977 E.C.R. 901, 909, [1980] 3 C.M.L.R. 12, 23; Case 148/78, Pubblico Ministero v. Ratti, 1979 E.C.R. 1629, 1636-37, [1980] 1 C.M.L.R. 96, 110-11. [FN109]. See generally Renaud Dehousse & Joseph H.H. Weiler, The Legal Dimension, in The Dynamics of European Integration, supra note 58, at 242, 255; Lenaerts, supra note 10, at 224-30. [FN110]. See, e.g., Case 28/84, Commission v. Germany, 1985 E.C.R. 3097, 3106-07, [1985-86 Transfer Binder] Common Mkt.Rep. (CCH) 14,251 (1985); Case 120/78, Rewe-Zentrale AG v. Bundesmonopolverwaltung fr Branntwein (Cassis de Dijon), 1979 E.C.R. 649, 656-58, [1979] 3 C.M.L.R. 494.
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[FN111]. See, e.g., Case 53/86, Officer van Justitie v. L. Romkes, 1987 E.C.R. 2691, 2696, 2702, [1988] 3 C.M.L.R. 126 (regarding fishing regulations); Case 4/75, Rewe Zentralfinanz GmbH v. Landwirtschaftskammer, 1975 E.C.R. 843, 847, [1977] 1 C.M.L.R. 599 (regarding produce sanitation measures). [FN112]. See EC Treaty art. 130t (as amended 1987) (The protective measures adopted in common pursuant to Article 130S [on the environment] shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with this Treaty.). [FN113]. See EC Treaty art. 118a(3) (as amended 1987) (The provisions adopted pursuant to this Article shall not prevent any Member State from maintaining or introducing more stringent measures for the protection of working conditions compatible with this Treaty.). [FN114]. See supra note 41 and accompanying text. [FN115]. A presumption of non-preemption is actually more closely akin to the principle of proportionality than the principle of subsidiarity, see infra notes 157-161 and accompanying text, but it is certainly consistent with both. [FN116]. EC Treaty article 235 states: If action by the Community should prove necessary to attain, in the course of the operation of the common market, one of the objectives of the Community and this Treaty has not provided the necessary powers, the Council shall, acting unanimously on a proposal from the Commission and after consulting the European Parliament, take the appropriate measures. EC Treaty art. 235. [FN117]. See generally Haagsma, supra note 88, at 327. [FN118]. See, e.g., Case 8/55, Fdration Charbonnire de Belgique v. High Authority of the European Coal and Steel Community (Fdchar), 1954-1956 E.C.R. 245, 259 (finding that the High Commission had the authority necessary to establish new pricing schedules for Belgian coal). [FN119]. See supra notes 56-81 and accompanying text. [FN120]. Joseph Weiler's use of the term transformation is particularly apt in this context. See Weiler, Transformation, supra note 20, at 2405-07. [FN121]. See supra notes 82-85 and accompanying text. [FN122]. See supra notes 87-118 and accompanying text. [FN123]. See supra note 85 and accompanying text. [FN124]. See supra note 38 and accompanying text. [FN125]. See generally Metcalfe, supra note 2, at 8-10. [FN126]. The SEA, for example, left unchanged the rule of unanimity for harmonization of indirect taxation. [FN127]. See supra note 84 and accompanying text. [FN128]. See EC Treaty art. 100a(4) (as amended 1987). The provision reads: If, after the adoption of a harmonization measure by the Council acting by a qualified majority, a Member State deems it necessary to apply national provisions on grounds of major needs . . . it shall notify the Commission of these provisions.
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The Commission shall confirm the provisions involved after having verified that they are not a means of arbitrary discrimination or a disguised restriction on trade between Member States. Id. [FN129]. See supra notes 37, 112, 113. [FN130]. See supra note 49. [FN131]. See supra note 39. [FN132]. On the expansion of Community competences, see Renaud Dehousse, Integration v. Regulation? On the Dynamics of Regulation in the European Community, 30 J. Common Mkt.Stud. 383, 384-86 (1992). [FN133]. The Maastricht Treaty, for example, brings environmental and consumer protection, public health, education and social policy under the regime of qualified majority voting. See EC Treaty arts. 118a(2), 126, 129, 129a, 130s (as amended 1992); Agreement on Social Policy, supra note 49. [FN134]. Parliamentary cooperation, first introduced into the Community under the SEA, gives Parliament the right to propose amendments to legislation provisionally adopted by the Council (in the form of a common position). See supra note 34 and accompanying text. It is recodified under the TEU as EC Treaty art. 189c. EC Treaty art. 189b, added by the TEU, provides for a further legislative process called parliamentary codecision. Parliamentary co-decision is a new and complex legislative procedure whose essential purpose is to give Parliament a kind of legislative veto power. An increase in the European Parliament's legislative powers was among the most prominent agenda items of the Rome intergovernmental conference on political union, just as it had been for the 1985 Luxembourg intergovernmental conference that produced the Single European Act. [FN135]. See Roland Gribben, Walters Accepts Some Blame for Mild Recession, The Daily Telegraph (London), Sept. 28, 1990, at 23; see also Enrique Tessieri, Industry Pride Sinks to an All-Time Low, Fin. Times, Dec. 18, 1989, at 16. [FN136]. The TEU art. F(3) actually provides: The Union shall provide itself with the means necessary to attain its objectives and carry through its policies. The European Council, meeting at Edinburgh, stated that the Community's use of Article 235 powers was itself, however, also subject to the principle of subsidiarity. See Edinburgh Conclusions, supra note 11, at 4. [FN137]. Virtually all official definitions of subsidiarity stress that it applies only in areas of concurrent Member State and Community competence. See supra notes 9, 35, 41 and accompanying text. [FN138]. TEU art. G(5). [FN139]. The Tenth Amendment to the U.S. Constitution reads: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. U.S. Const. amend. X. [FN140]. These would include various management, regulatory and advisory committees attached to the Council, as well as the Economic and Social Committee. [FN141]. See generally The Principle of Subsidiarity: Communication of the Commission to the Council and the European Parliament, SEC (92) 1990 final, at 13, IV (Oct. 27, 1992). [FN142]. The Court of justice of the European Communities is the Community's principal judicial institution. See supra note 13. The only other Community court is a Court of First Instance (CFI), created in 1988 to exercise judicial
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power over a limited category of cases in first instance, chiefly over staff and competition law cases. The CFI's jurisdiction was extended by the Council in June 1993 to cover all other direct actions (except antidumping cases) brought by natural or legal persons. See Extending the Jurisdiction of the Court of First Instance, 18 Eur.L.Rev. 270 (1993). It still lacks jurisdiction over actions brought by Member States or by the EC institutions, and it cannot entertain preliminary references. [FN143]. See Case 314/85, Firma Foto-Frost v. Hauptzollamt Lbeck-Ost, 1987 E.C.R. 4199, 4220, [1988] 3 C.M.L.R. 57, 71. [FN144]. See supra notes 25-29 and accompanying text. [FN145]. The European Council (as contrasted with the Council of Ministers of the Community) consists of the heads of state or of government of the Member States when meeting as an intergovernmental political grouping rather than as the Community's chief legislative organ. Its meetings, held at least twice a year, are commonly characterized as summits. On the European Council generally, see Bermann et al., supra note 13, at 12-13, 55-57. [FN146]. Two months earlier, the European Council had resolved at its Birmingham Summit that [a]ction at the Community level should happen only when proper and necessary, and that recognition of a principle of subsidiarity is essential if the Community is to develop with the support of its citizens. European Council in Birmingham, Conclusions of the Presidency, Oct. 16, 1992, Europe: Agence Internationale d'Information pour la Presse, Oct. 18, 1992, at 3. The European Council announced at Birmingham its intention to issue guidelines at the Edinburgh Summit on the practice of subsidiarity. See id. [FN147]. Among the European Council's most pressing tasks at Edinburgh was agreeing upon modifications to the Maastricht Treaty or its protocols that would cause the Danish electorate to support ratification of the Treaty in a second referendum following its rejection of the Treaty in a first referendum. [FN148]. See Edinburgh Conclusions, supra note 11, at 3. [FN149]. See id. at 4. The absence of direct effect means that individual litigants do not have the right to invoke the principle of subsidiarity in national court to avoid the application of an otherwise relevant Community law measure on the ground that it violates that principle. See infra notes 238-241 and accompanying text. [FN150]. See Edinburgh Conclusions, supra note 11, at 4. A direct challenge to a Community measure may be brought in the Court of Justice under EC Treaty Article 173. Article 173 contemplates legal challenges to binding acts of the institutions and confers standing for this purpose on the Member States and the institutions, as well as on private parties seeking to challenge decisions addressed to them or otherwise of direct and individual concern to them. Such actions must in principle be brought within two months of publication of the measure challenged. [FN151]. Danish voters voted to reject the Maastricht treaty by a vote of 50.7% to 49.3% in June 1992. See Craig R. Whitney, With Denmark, European Ministers Play for Time, N.Y. Times, June 5, 1992, at A9. [FN152]. French approval of the Treaty in September 1992 was achieved with a slim 51% majority. See Alan Riding, French Approve Unity Treaty, but Slim Margin Leaves Doubts, N.Y. Times, Sept. 21, 1992, at Al. [FN153]. See The Road Ahead for Maastricht, The Economist, July 31, 1993, at 42; see also The Maastricht Mire, The Economist, Mar. 13, 1993, at 20; Vote on Maastricht, The Economist, Oct. 31, 1992, at 16. [FN154]. A German poll in late September 1992 reported that only one voter in three would support the Maastricht treaty, and almost three-quarters object to giving up the rock-hard deutschmark in favor of a new and untested Eurocurrency. Andrew Phillips, Europe in Crisis, Maclean's, Oct. 5, 1992, at 34. Constitutional challenges brought against the Maastricht Treaty were rejected by the German Constitutional Court on October 12, 1993. See German
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Constitutional Court Maastricht Decision, supra note 20; see also Last Harrumph for Maastricht, The Economist, Oct. 16, 1993, at 52. [FN155]. Edinburgh Conclusions, supra note 11, at 6. [FN156]. Id. at 1. [FN157]. See, e.g., Case 11/70, Internationale Handelsgesellschaft mbH v. Einfhr-und Vorratstelle fr Getreide under Futtermittel, 1970 E.C.R. 1125, 1130, 1972 C.M.L.R. 255. [FN158]. Article 3b, which the Maastricht Treaty adds to the EC Treaty, recognizes in its final paragraph the principle of proportionality: Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty. EC Treaty art. 3b (as amended 1992). The Maastricht Treaty and the European Council alike thus treat subsidiarity and proportionality as separate though related concepts. More recently, the Commission suggested that subsidiarity is the broader concept, consisting of two branches, one being the showing of a need-for-action and the other being the requirement of proportionality proper. See infra note 200. [FN159]. Any burdens, whether financial or administrative, falling upon the Community, national governments, local authorities, economic operators and citizens, should be minimized and should be proportionate to the objective to be achieved. Edinburgh Conclusions, supra note 20, at 8. The term proportionality also figures in United States constitutional and administrative law. The principle, according to Sunstein, requires that [s]tatutes should be construed so that the aggregate social benefits are proportionate to the aggregate social costs. Sunstein, supra note 22, at 181. [FN160]. See infra notes 227-236 and accompanying text. [FN161]. See Edinburgh Conclusions, supra note 11, at 8. [FN162]. Id. at 7. [FN163]. See id. at 2. [FN164]. Id. at 7. [FN165]. Id. [FN166]. The European Council also reiterated the principle of subsidiarity by urging that the Community only take action involving harmonization of national legislation, norms or standards where this is necessary to achieve the objectives of the Treaty. Id. at 7. [FN167]. Id. [FN168]. Id. [FN169]. See infra notes 206-236 and accompanying text. [FN170]. Edinburgh Conclusions, supra note 11, at 2. On the Commission's claim that subsidiarity has always been part of the Community treaty structure, see Gretschmann, supra note 27, at 45, 53-57; Daniel G. Partan, Subsidiarity in EC Environmental Regulation, paper delivered at Symposium on Subsidiarity and Harmonization: Defining European Federalism, supra note 4 (on file with the Columbia Law Review). [FN171]. See supra notes 87-118 and accompanying text.
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[FN172]. EC Treaty art. 3(h). [FN173]. Article 189 of the EC Treaty reads: A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. Regulations by contrast are defined in Article 189 as binding in [their] entirety and directly applicable in all Member States. EC Treaty art. 189. [FN174]. Id. However, EC Treaty Article 100a, added by the 1986 Single European Act, deliberately invited harmonization through means other than directives, notably through directly applicable regulations. It authorized the use of measures, not merely directives, as under the original harmonization provision, Article 100. See EC Treaty art. 100 (as in effect in 1985). [FN175]. For an example of Community legislation employing the technique of mutual recognition of national standards, see Council Directive 75/363 In Respect of Activities of Doctors, 1975 O.J. (L 167) 14. [FN176]. Council Resolution of May 7, 1985 on a New Approach to Technical Harmonization and Standards, 1985 O.J. (C 136) 1. [FN177]. The idea is that once the Commission certifies a national standard as meeting a directive's minimum standards, all other Member States would be required to treat goods manufactured under those standards as in conformity with the directive. See, for example, Council Directive 88/378 on the Safety of Toys, 1988 O.J. (L 187) 1. [FN178]. For an example of such permissive language, see Article 5 of Council Directive 75/129 on the Approximation of the Laws of the Member States Relating to Collective Redundancies, 1975 O.J. (L 48) 29 (This Directive shall not affect the right of Member States to apply or to introduce laws, regulations or administrative provisions which are more favorable to workers.). For further examples, see Articles 9, 10, 13, and 15 of Council Directive 85/374 Concerning Liability for Defective Products, 1985 O.J. (L 210) 29. [FN179]. Non-preemption does not, of course, leave Member States entirely free in their protective efforts. Even if not preempted as such, Member State legislation may not contravene any Community law principles, such as free movement or non-discrimination based on nationality. [FN180]. See supra notes 156-159 and accompanying text. [FN181]. At the Edinburgh Summit, the Council urged that: The Community should legislate only to the extent necessary. Other things being equal, directives should be preferred to regulations and framework directives to detailed measures. Non-binding measures such as recommendations should be preferred where appropriate. Consideration should also be given where appropriate to the use of voluntary codes of conduct. Edinburgh Conclusions, supra note 11, at 9. [FN182]. Reinforcing the new approach to harmonization, the Council insisted that: Community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measure and observing the requirements of the Treaty. While respecting Community law, care should be taken to respect well established national arrangements and the organization and working of Member States' legal systems. Where appropriate and subject to the need for proper enforcement, Community measures should provide Member States with alternative ways to achieve the objectives of the measures. Id. at 8. [FN183]. With regard to express legislative non-preemption, the Council announced that: Where it is necessary to set standards at Community level, consideration should be given to setting min-
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imum standards, with freedom for Member States to set higher national standards, not only in the areas where the treaty so requires (118a, 130t) but also in other areas where this would not conflict with the objectives of the proposed measure or with the Treaty. Id. [FN184]. Where appropriate under the Treaty, and provided this is sufficient to achieve its objectives, preference in choosing the type of Community action should be given to encouraging cooperation between Member States, [to] coordinating national action or to complementing, supplementing or supporting such action. Id. at 9. The Council also urged, by way of proportionality, that Community legislation target particular States and omit others, where appropriate: Where difficulties are localised and only certain Member States are affected, any necessary Community action should not be extended to other Member States unless this is necessary to achieve an objective of the Treaty. Id. [FN185]. See David Buchan, Biotech Groups Find Bright New World Slow to DawnEurope's Patent Legislation and Regulations Have Caused Frustration in the Sector, Fin. Times, Apr. 27, 1992, at 2; see also Charles Batchelor, Owners Driven Up the Wall, Fin. Times, Dec. 15, 1992, at 10; Roland Gribben, CBI Calls for Speed in Paper Mountain War red tape Government Urged to Act on De-Regulation, The Daily Telegraph (London), June 7, 1993, at 29. [FN186]. Article 3b of the EC Treaty allows the Community to act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States. EC Treaty art. 3b (emphasis added). [FN187]. See generally Alistair Alcock, Subsidiarity and Adverse Possession, 142 New L.J. 1386 (1992). Following the 1992 European Council meeting at Edinburgh, France and the United Kingdom drew up a list of specific Community legislation in forcemostly on environmental protection, consumer protection and social affairsthat they believed needed to be repealed or amended in light of the subsidiarity principle. These included, for example, directives on the safety of drinking and bathing water, driving speed limits, blood alcohol tests for drunken driving, pharmaceutical pricing, indirect taxation of securities, and the protection of wild birds. See Brian Love, Britain and France Team Up to Seek Repeal of EC Laws, Reuters News ServiceWestern Europe, June 29, 1993, available in LEXIS, Reuters Textline. On the Commission's November 1993 report to the European Council proposing the repeal of certain legislation in the interest of subsidiarity, see infra notes 199-205. [FN188]. See infra notes 192-198 and accompanying text. [FN189]. The Edinburgh European Council concluded that subsidiarity allows Community action to be expanded where circumstances so require, and conversely, to be restricted or discontinued where it is no longer justified. Edinburgh Conclusions, supra note 11, at 4. [FN190]. See Joseph F. Zimmerman, Federal Preemption: The Silent Revolution 160 (1991) (The solution [to the problem of shifting the burden of reviewing and adjusting statutes] is the incorporation of a sunset provision in each preemptive statute.). An advantage of such a mechanism is that it addresses the problem of legislative entrenchment. Particularly in a system of super-majority voting, it may be difficult to amass the political support needed to pass new legislation that positively repeals existing legislation. Automatic expiry of legislation would place the burden of collecting super-majority support on those who would have legislation continue in force beyond its term. [FN191]. Alcock claims that the Commission will find it difficult to maintain enforcement actions against Member States under Article 169 of the EC Treaty for their failure to implement Community rules that, under the principle of subsidiarity, should never have been adopted. See Alcock, supra note 187, at 1386. [FN192]. See Edinburgh Conclusions, supra note 11, at 1.
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[FN193]. See id. One legislative project that France and the United Kingdom have jointly urged the Commission to abandon on subsidiarity grounds is a directive establishing Community-wide hygiene standards for zoos. See Love, supra note 187. [FN194]. The proposals withdrawn concerned: 1) compulsory labeling of the nutritional value of foodstuffs, 2) radio frequencies for land-based telecommunications with aircraft, and 3) radio frequencies for remote-processing in road transport. See Edinburgh Conclusions, supra note 11, at 2. [FN195]. Revisions will be made to proposals on 1) public takeover bids, 2) a common definition of a Community shipowner, 3) comparative advertising, 4) shoe labeling, 5) liability of suppliers of services, and 6) protection of persons regarding data processed digitally. In each case, the Commission plans to further reduce the proposal to general principles and to allow the Member States to provide greater detail. See id. at 8. [FN196]. These proposals dealt with a wide range of matters, including animal conditions in zoos, indirect taxation of securities transactions and capital accumulation, value added taxation of ships' supplies, the temporary importation of motor vehicles, and classification of documents of Community institutions. See id. [FN197]. Among initiatives dropped were those relating: to 1) harmonization of vehicle number plates, 2) the regulation of gambling, and 3) harmonization of technical standards for diet foods, second-hand machinery, and theme park equipment. See id. [FN198]. See Commission Withdraws Superfluous Proposals, Reuters News ServiceWestern Europe, July 29, 1993, available in LEXIS, Reuters Textline. At the European Council's June 1993 summit in Copenhagen (its first summit meeting following the Edinburgh Summit of December 1992), the heads of state and government noted with satisfaction that the Commission is now submitting proposals only when it considers that they fulfil the subsidiarity criteria, and welcomed in general the substantial reduction in the volume of Community legislation foreseen in the Commission's legislative programme for 1993 compared to earlier years. European Council in Copenhagen, Conclusions of the Presidency, June 21-22, 1993, available in LEXIS, Reuters Textline, European Commission Press Releases, June 22, 1993 15. At Copenhagen, the European Council concluded that the Commission and the Council alike are now applying the principles, guidelines, and procedures on subsidiarity decided at Edinburgh as an integral part of the decision making procedure and urged the European Parliament to do likewise. Id. [FN199]. Commission of the European Communities, Report to the European Council on the Adaptation of Community Legislation to the Subsidiarity Principle, COM(93)545 final (Nov. 24, 1993) [hereinafter Adaptation Report]. The European Council commented favorably on the report and urged early Commission action pursuant to it. European Council in Brussels, Conclusions of the Presidency, Dec. 10-11, 1993, at 22-23. The Council, Commission, and Parliament had previously agreed that the Commission should prepare an annual report for the Parliament and the Council on compliance with the principle of subsidiarity, and that the report should occasion a public debate in the Parliament, with the participation of the other two institutions. See Interinstitutional Agremeent on Procedures for Implementing the Principle of Subsidiarity, Doc. 9510/93 (Luxembourg, Oct. 25, 1993) (Annex) [hereinafter Interinstitutional Agreement]. See infra notes 206, 213, 217. [FN200]. In fact, the Report restates somewhat the relationship between the subsidiarity and proportionality principles set out by the European Council at Edinburgh. See supra notes 155-169 and accompanying text. According to the Commission, subsidiarity is the larger concept, having two distinct branches. One branchthe one by now more closely identified with subsidiarityis the need-for-action test; the other is proportionality. Adaptation Report, supra note 199, at 5. Under this analysis, proportionality is merely a species of subsidiarity. [FN201]. See Adaptation Report, supra note 199, at 6. The goal of simplification is to be advanced through wider use of certain legislative techniquesnotably the new approach to harmonization and the mutual recognition of certificatesdescribed above. See id. at 13-14; supra notes 174-177 and accompanying text.
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[FN202]. Adaptation Report, supra note 199, at 7. [FN203]. Notably, the Community customs code is slated to be recast, as are directives and regulations on rights of residence of Community nationals, pharmaceutical products, competition policy, and trade mechanisms for agricultural products (e.g., production licenses, refunds, levies, guarantees). Id. at 10-12. [FN204]. The Commission is exploring simplification in many important fields: technical standards (particularly in relation to foodstuffs and machinery), professional qualifications, the environment, animal welfare, and social policy (i.e., workers' rights). Areas in which the Commission is also exploring possibilities for simplification are indirect taxation, company law, agricultural markets, transport, fisheries, energy, and consumer protection. See id. at 12-22. [FN205]. According to the Commission, the recasting and simplification of legislation will inevitably entail the repeal in whole or in part of existing legislation. See id. at 23. However, the Commission has identified areas in which legislation might be repealed outright because it no longer appears justifiable in terms of subsidiarity. See id. at 23-24. [FN206]. Edinburgh Conclusions, supra note 11, at 10. Since the Edinburgh Summit, Commision proposals for legislation have been required to be accompanied by an explanation of why measures at the EC level are necessary. See Upsizing: The Difficulty of Growing Bigger Gracefully, The Economist, July 3, 1993, at 18-19. The Community institutions formally agreed at Luxembourg in October 1993 that [i]n exercising its right of initiative, the Commission shall take into account the principle of subsidiarity and show that it has been observed and that the explanatory memorandum for any Commission proposal shall include a justification of the proposal under the principle of subsidiarity. Interinstitutional Agreement, supra note 199. [FN207]. President Delors has instructed civil servants of the Community not to propose measures that would be incompatible with the principle of subsidiarity. See Dictionary Time, The Economist, Dec. 9, 1989, at 52. Following the Edinburgh Summit, the Assembly of Regions of Europe drew up a detailed questionnaire on subsidiarity for any body proposing Community action to complete and to attach to any such proposal, accompanied by an explanatory memorandum. The questionnaire covers the following issues: 1. The basis of competence in the Treaty on European Union: (a) The planned measure is based on which article? (b) Does the article contain conditions limiting recourse to Community competence? 2. The objectives sought by the Treaty: (a) What concrete objectives are sought by the planned action? (b) What reasons justify the need to take action? (c) Is the action related to any previous Community action? 3. The need for the Community action in question: (a) Which Member States are concerned by the problem? Does the problem appear the same way everywhere? (b) Which Member States have dealt with this problem to date? How did the states in question solve the problem? (c) Are there alternative solutions at lower echelons at Community level? If yes, what are they? (d) Why can't the objectives in question be attained at Member State level? (e) What would be the disadvantages and costs if the Community failed to intervene? (f) What arguments can be used to prove that EC goals would be more easily attained by the measure in question than by measures at Member State level? 4. Implementing Community action: (a) Would coordination between Member States or Community support for national measures be enough to attain the objectives? If no, why not? (b) Has the Community already made a recommendation that has not been followed by the Member States? (c) Is mutual recognition of different regulations possible? If no, why not? (d) Is complete harmonisation necessary or is it enough to enact minimum provisions? (e) Would it be sufficient to adopt a regulatory framework? If no, why not? (f) Is a uniform and directly applicable regulation (order) necessary or would the adoption of a directive be sufficient? (g) Would a regulation of limited duration suffice?
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5. Extending Community actions: (a) Is the adoption of implementing regulations necessary? If necessary, at what level will they be adopted? (b) If implementation of Community action is limited to Community level, on an exceptional basis, why is implementation at Member State or regional level insufficient? (c) If verification of implementation is incumbent upon the Community, why can this responsibility not be carried out by the Member States? (d) Who controls the attainment of the objectives of Community actions and on what criteria? EC: SubsidiarityPossible Reassignment of Powers to States and Regions, available in LEXIS, Reuters Textline, Agence Europe, Mar. 3, 1993. [FN208]. See Adaptation Report, supra note 199. [FN209]. Id. at 2. [FN210]. Id. at 3. [FN211]. See id. at 3-4. [FN212]. See id. at 4. The Commission specifically undertook in its November 1993 Adaptation Report to notify the Council and Parliament, and through the Official Journal all interested parties, of its reasons for not pursuing proposals initially included in its legislative program for a given year. See id. [FN213]. Edinburgh Conclusions, supra note 11, at 11. The last quoted sentence is meant to ensure that the Council considers subsidiarity as an integral part of its legislative inquiry and legislative judgment. The European Council underscored the point by urging the Council of Ministers not to create a system of preliminary or parallel decisionmaking on the subsidiarity issue. Id. The Interinstitutional Agreement signed at Luxembourg in October 1993 requires the Council, in exercising its legislative powers under the EC Treaty, to demonstrate its observance of the principle of subsidiarity. More specifically, it requires the Council to justify in terms of subsidiarity any amendment that it makes to a Commission proposal if the amendment entails more extensive or intensive intervention by the Community. See Interinstitutional Agreement, supra note 199. The October 1993 ruling of the German Constitutional Court upholding the constitutionality of Germany's ratification of the Maastricht Treaty placed considerable emphasis on subsidiarity as a check on the Community's exercise of powers. It also underscored the Council's special obligation in this regard: If the Community legislator wants to exercise a legislative competence attributed to it, it must first satisfy itselfand clearly establish in conformity with Article 190 of the EEC Treaty [requiring a statement of reasons]that the objectives of the action envisaged cannot be adequately accomplished at the national level through action of the Member States. German Constitutional Court Maastricht Decision, supra note 20, at 82. According to the Court, the extent to which the principle of subsidiarity will prevent the erosion of the competence of the Member States . . . depends . . . above all on the practice of the Council, which is the Community's veritable legislature. Id. at 83. [FN214]. For an admonition by the German Constitutional Court to the German government to use its influence in the Council in favor of subsidiarity, and to the German Parliament to pressure the government to do so, see German Constitutional Court Maastricht Decision, supra note 20, at 83. [FN215]. See Edinburgh Conclusions, supra note 11, at 12. [FN216]. See supra note 134 and accompanying text. [FN217]. In November 1992, the major parties in the European Parliament adopted a joint resolution to the effect that a measure's respect for subsidiarity should be determined through consultation among the political organs of the
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Community and not through judicial review in the Court of Justice. See Parliament Wants a Say in Checking Up on Subsidiarity, European Report No. 1814 (Nov. 21, 1992). See generally Panayotis Roumeliotis, The Subsidiarity Principle: The View of the European Parliament, in Subsidiarity: The Challenge of Change, supra note 6, at 31. In the Interinstitutional Agreement signed at Luxembourg in October 1993, see supra note 199, the institutions required Parliament to demonstrate its observance of the principle of subsidiarity and, more particularly, to justify in terms of that principle any amendment to a Commission proposal that would produce more significant intervention by the Community. See Interinstitutional Agreement, supra note 199, at II(3), III(2). [FN218]. Representatives of the Benelux countries described subsidiarity as foremost a state of mind made up of moderation in the exercise of power and reciprocal trust in the elaboration and execution of Community decisions and legislation. Birmingham Summit: Memorandum by the Benelux Countries, Europe, Agence Internationale d'Information pour la Presse, Oct. 12-13, 1992, at 5. [FN219]. See supra note 134 and accompanying text. [FN220]. See supra note 187 and accompanying text. [FN221]. See supra notes 42-49 and accompanying text. [FN222]. Questions about the extent of Community intervention may more properly be considered questions of proportionality than subsidiarity. See supra notes 156-159 and accompanying text. The new approach to technical harmonization, discussed supra notes 176-177 and accompanying text, was thus at least as much an instrument of proportionality as subsidiarity. For a discussion of the interrelationship between subsidiarity and proportionality, see infra notes 227-236 and accompanying text. [FN223]. See supra notes 20-29 and accompanying text. [FN224]. Non-implementation of Community directives by the Member States has been a longstanding problem in the Community. [FN225]. It is obvious that terms like adequacy (or efficacy, sufficiency or necessity), in which the definition of subsidiarity is invariably couched, tend to mask the elements of subjectivity and judgment entailed in a decision by the Community to take action in place of the Member States. As with . . . other reform initiatives [like decentralization, delegation and deregulation], real difficulties arise in interpreting and applying the general principle in practice. The definition [of subsidiarity] begs the important questions about what is appropriate and what is unnecessary. Metcalfe, supra note 2, at 14-15. [FN226]. See infra notes 237-255 and accompanying text. [FN227]. See supra notes 155-159 and accompanying text. [FN228]. See Jochen Abr. Frowein, The European Community and the Requirement of a Republican Form of Government, 82 Mich.L.Rev. 1311, 1322 (1984) (view of the doctrine of proportionality as having been influenced by German constitutional practice); see also Stein, supra note 55, at 14 & n.48 (general principles of Community law [including proportionality] were derived from the general principles of law in force in the Member States). [FN229]. See, e.g., Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Series A, No. 6), 1 Eur.H.R.Rep. 252, 254, 293 (1968); see also Philis v. Greece (series A, No. 209), 13 Eur.H.R.Rep. 741, 765 (1991). [FN230]. See Case C-331/88, Regina v. Minister of Agriculture, Fisheries and Food, ex parte Fdration Europenne de la Sant Animale (FEDESA), [1991] 1 C.M.L.R. 507, 532-33.
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[FN231]. See Case 31/59, Acciaieria e Tubificio di Brescia v. High Authority of the European Coal and Steel Community, 1960 E.C.R. 71; see also Case 255/84, Nachi Fujikoshi Corp. v. Council, 1987 E.C.R. 1861, 1871-72, 1893-95, [1989] 2 C.M.L.R. 76, 105. [FN232]. See, e.g., Case 11/70, Internationale Handelsgesellschaft GmbH v. Einfhr-und Vorratsstelle fr Getreide und Futtermittel, 1970 E.C.R. 1125, 1135-38 [1972] 10 C.M.L.R. 255, 284-87. [FN233]. See supra notes 41, 158. [FN234]. According to the European Council at Edinburgh, Article 3b of the Maastricht Treaty incorporates the principle of proportionality, defined as requiring that the means to be employed by the Community should be proportional to the objective pursued. Edinburgh Conclusions, supra note 11, at 2. The Edinburgh guidelines specific to proportionality include the following: ii) Any burdens, whether financial or administrative, falling upon the Community, national governments, local authorities, economic operators and citizens, should be minimised and should be porportionate to the objective to be achieved. iii) Community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measure and observing the requirements of the Treaty. While respecting Community law, care should be taken to respect well established national arrangements and the organisation and working of Member States' legal systems. Where appropriate and subject to the need for proper enforcement, Community measures should provide Member States with alternative ways to achieve the objectives of the measures. iv) Where it is necessary to set standards at Community level, consideration should be given to setting minimum standards, with freedom for Member States to set higher national standards . . . where this would not conflict with the objectives of the proposed measure or with the Treaty. v) The form of action should be as simple as possible, consistent with satisfactory achievement of the objective of the measure and the need for effective enforcement. The Community should legislate only to the extent necessary. Other things being equal, directives should be preferred to regulations and framework directives to detailed measures. Non-binding measures such as recommendations should be preferred where appropriate. Consideration should also be given where appropriate to the use of voluntary codes of conduct. vi) Where appropriate under the Treaty, and provided this is sufficient to achieve its objectives, preference in choosing the type of Community action should be given to encouraging cooperation between Member States, coordinating national action or to complementing, supplementing or supporting such action. vii) Where difficulties are localized and only certain Member States are affected, any necessary Community action should not be extended to other Member States unless this is necessary to achieve an objective of the Treaty. Id. at 8-9. [FN235]. See supra notes 155-159, 234 and accompanying text. [FN236]. See Edinburgh Conclusions, supra note 11, at 8-9. [FN237]. The European Parliament, and more particularly its Committee on Institutional Affairs chaired by Giscard d'Estaing, concluded that the Court of Justice should consider the principle of subsidiarity to be justiciable. See European Parliament Committee on Institutional Affairs, Interim Report on the Principle of Subsidiarity, Eur.Parl.Doc. A3-163/90 (June 22, 1990), discussed in Cass, supra note 2, at 1133; European Parliament Committee on Institutional Affairs, Report on the Principle of Subsidiarity, Eur.Parl.Doc. A3-267/90. Some academic comment-
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ators agree. See, e.g., Lenaerts, supra note 80, at 133; Reimut Jochimsen, Subsidiarity in the Area of Economic and Monetary Union, in Subsidiarity: The Challenge of Change, supra note 6, at 73, 76. Others, including a former president of the Court of Justice, consider the principle of subsidiarity to be nonjusticiable. See, e.g., Lord Mackenzie-Stuart, Assessment of the Views Expressed and Introduction to a Panel Discussion, in Subsidiarity: The Challenge of Change, supra note 6, at 37, 41. For a similar expression of views, see Gretschmann, supra note 27, at 58-59. [FN238]. Edinburgh Conclusions, supra note 11, at 4; see also supra notes 149-150 and accompanying text. The institutions were equally tentative on the subject in the interinstitutional agreement they signed at Luxembourg in October 1993. See Interinstitutional Agreement, supra note 199. They agreed that compliance with the subsidiarity principle shall be reviewed under the normal Community process, in accordance with the rules laid down by the Treaties. Id. at III(1). ln its recent ruling affirming the constitutionality of Germany's ratification of the Maastricht Treaty, the German Constitutional Court likewise assumed that the Court of Justice would enforce the principle of subsidiarity and suggested that subsidiarity's success in preserving the authority of the Member States would very largely depend on the Court of Justice's subsidiarity case law. See German Constitutional Court Maastricht Decision, supra note 20, at 82-83. [FN239]. See supra note 150. [FN240]. See supra note 150. [FN241]. The notion that subsidiarity might be enforceable by the Court of Justice in direct actions challenging Community measures but not enforceable via direct effect in national courts is an awkward and unprecedented one. Even critics of subsidiarity assume that, under Maastricht, challenges to such measures on subsidiarity grounds will be the proper subject of preliminary references to the Court of Justice and preliminary rulings by the Court. See, e.g., Toth, supra note 5, at 1101-02. [FN242]. Once subsidiarity gained political prominence during the discussions leading up to the latest reform of the Community treaties, it apparently began to influence the institutions' legislative action. Anticipating the future, the principle has already made its appearance in the preparation of new policy programmes and legislation in the Community . . . [T]here is scarcely a proposal by the Commission or other groups . . . which is not tested against the principle of subsidiarity. P.J.C. Kapteyn, Community Law and the Principle of Subsidiarity, Revue des Affaires Europennes 35, 35 (1991). [FN243]. See supra notes 192-198 and accompanying text. [FN244]. See Case 47/86, Roquette Frres SA v. Office National Interprofessionnel des Crales, 1987 E.C.R. 2889; see also Case 122/78, S.A. Buitoni v. Fonds d'Orientation et de Rgularisation des Marchs Agricoles, 1978 E.C.R. 677. [FN245]. For example, the Commission recently observed that the existing differences among national laws governing the illegal possession and use of drugs, though real, were grossly exaggerated and overestimated: The national laws of the Twelve are consistent with regard to drug trafficking, which is prohibited in all of the Member States. A few minor differences exist with regard to the possession of drugs: in Spain, Italy and the Netherlands [for example], this is tolerated for strictly personal use as part of policy to reintegrate drug addicts. The Commission thus concluded that There is . . . no need for harmonization of the national laws [on the subject], this being governed by the principle of subsidiarity. National Implementing Measures; Removal of Tax Frontiers; Narcotic Drugs and Psychotropic Substances; Do National Laws on Drugs Differ? (Commission of the European Communities INFO-92) (July 13, 1993).
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[FN246]. See the discussion of subsidiarity and proportionality, supra notes 227-236 and accompanying text. [FN247]. See, e.g., Kapteyn, supra note 242, at 51-42. [FN248]. See Grundgesetz [Constitution], art. 72 (Germany). [FN249]. The German Constitutional Court has ruled that [t]he question whether there exists a necessity for federal legislation is a question of due judgment on the part of the federal legislature, which is by its very nature nonjusticiable and therefore fundamentally removed from examination by the Court. Judgment of Apr. 22, 1953, 2 BVerfGE 213, 224; see also Judgment of July 15, 1969, 26 BVerfGE 338, 382-83; Judgment of Nov. 22, 1983, 65 BVerfGE 283, 289; Judgment of Oct. 9, 1984, 67 BVerfGE 299, 327; Judgment of June 8, 1988, 78 BVerfGE 249, 270; see generally Emiliou, supra note 17, at 404; Everling, supra note 2, at 1070-71; Eric J. Finseth, Subsidiarity and the Future of European Federalism (Feb. 12, 1993) (unpublished manuscript, on file with the Columbia Law Review). [FN250]. I do not deal here with the opposite situation, in which the institutions allow the states to act in aid of a Community objective when the institutions could have achieved that objective more effectively themselves. See George A. Bermann, Subsidiarity and the European Community, 17 Hastings Int'l & Comp.L.Rev. 97, 107-08 (1993) . [FN251]. See Emiliou, supra note 17. Emiliou urges the Court to restrict itself to a marginal review of subsidiarity, that is review for a patent error or . . . a misuse of powers. Id. at 405 (footnotes omitted). For a parallel argument in favor of marginal judicial review of Congress' respect for the Tenth Amendment, see Richard B. Stewart, Pyramids of Sacrifice? Problems of Federalism in Mandating State Implementation of National Environmental Policy, 86 Yale L.J. 1196, 1271-72 (1977). [FN252]. Weiler observes that, while the Court not infrequently has struck down measures of the Council or Commission, [it has never] in its entire history . . . struck down a Council or Commission measure on grounds of Community lack of competence. See Weiler, Transformation, supra note 20, at 2447. [FN253]. See supra note 2 and accompanying text. [FN254]. See generally Bermann et al., supra note 13, at 129-49; Koen Lenaerts, Fundamental Rights to be Included in a Community Catalogue, 16 Eur.L.Rev. 367, 372 (1991) (citing cases). [FN255]. See supra note 244 and accompanying text. [FN256]. See infra notes 334-351 and accompanying text. [FN257]. For an interesting comparative discussion of the United States and European Community with respect to the political safeguards of federalism, see Lenaerts, supra note 10, at 258-62. Lenaerts cites the political reality that decision-making within the American Union is organically independent from the States, whereas in the European Community the Member States themselves play the double role of participants in the Community decision-making and of antipodes to the legal order of the Community as such. Id. at 262. [FN258]. See supra note 15. On the central role of the Member States in the Community system, see Dehousse, supra note 132, at 390-92. Furthermore, the Community has many fewer financial resources in relation to the Member States than the federal government in the United States has in relation to the American States. The relative lack of Community resources naturally limits the Community's activities, notably its ability to implement Community law and policy without the aid of the Member States. See id. at 388-89. [FN259]. See, e.g., Gretschmann, supra note 27, at 45, 57.
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[FN260]. [T]he regions now increasingly see Europe as a threat to their autonomy. They try to devise methods for participating more effectively in the Community decision making process, but the central State apparatus is reluctant to give up its privileged position in this respect. De Witte, supra note 28, at 13 (citing Germany, Belgium, Spain, Italy and prospective Member States like Austria and Switzerland). [FN261]. See generally Making Sense, supra note 21, at 53. [FN262]. The Danish government, as part of Denmark's constitutional monarchy, is answerable generally to its national parliament, the Folketing. Because Danish governments are typically minority governments, dependent on the cooperation of rival parties, it is often necessary to put politically volatile issues to the Folketing for approval before taking action. [FN263]. A new Article 88-4 was added to the French Constitution in June 1992. It provides: The Government shall submit to the National Assembly and to the Senate all proposals for Community measures that contain provisions on subjects ordinarily governed by the [French] Parliament no later than the time when those proposals are presented for consideration to the Council of Ministers of the Communities. [FN264]. As replaced in 1992, Article 23 of the German Basic Law provides in part: (1) For the realization of a united Europe, the Federal Republic of Germany may participate in the development of a European Union which is bound by the principles of democracy, legality, social responsibility and federalism and by the principle of subsidiarity, and which guarantees a protection of fundamental rights that is essentially comparable to this Basic Law. The Federation may for this purpose transfer sovereign rights through legislation enacted with the approval of the Bundesrat . . . . (2) The Bundestag and, through the Bundesrat, the States shall participate in matters of the European Union. The Federal Government must inform the Bundestag and the Bundesrat fully and at the earliest possible point in time. .... (4) The Bundesrat shall be given a part in the formation of the political will of the Federation, to the extent that it would have to participate in a corresponding domestic law measure or to the extent that the States would enjoy internal competence. (5) Insofar as a matter of exclusive federal jurisdiction may affect the interests of the States, or insofar as the Federation otherwise has legislative competence, the Federal Government shall take account of the positions of the Bundesrat. When, in the core of the matter, the legislative competences of the States, the organization of their agencies, or State administrative procedures are affected, the point of view of the Bundesrat shall to that extent be given dominant consideration in the formation of the political will of the Federation . . . . (6) Whenever the exclusive legislative competences of the States are affected in their core, the exercise of the rights which the Federal Republic enjoys as a Member State of the European Union should be entrusted by the Federation to a representative of the States named by the Bundesrat. These rights shall be exercised with the participation and in concertation with the Federal Government. The national political responsibility of the Federation will thereby be safeguarded. Grundgesetz [Constitution] art. 23 (Germany). Even prior to the constitutional amendment, the Federal Government of Germany followed the practice of consulting the German States before voting in the Council on legislation of interest to them. For a current example of such consultation in practice, see EC Paves the Way for Single Market in Medicines, Reuters News ServiceWestern Europe (June 14, 1993) available in LEXIS, Reuters Textline (reporting Germany's delay of the Council's vote on the creation of a Community-wide medicines evaluation agency in order
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first to consult the German Lnder on the subject). [FN265]. German Constitutional Court Maastricht Decision, supra note 20. [FN266]. See generally De Witte, supra note 28, at 8 (While governments have been able to compensate some of the powers they lost by their participation in the Community decision-making process through the Council, national parliaments appear as the net losers in the new institutional equilibrium.); see also The European Community: Upsizing: The Difficulty of Growing Bigger Gracefully, The Economist, July 3, 1993, at 18-19 (describing national parliamentary scrutiny of proposed EC laws as traditionally cursory). The European Council urged at its Lisbon Summit of June 1992 that the dialogue between the national parliaments and the European Parliament be strengthened. See European Council in Lisbon, Conclusions of the Presidency, June 26-27, 1992. [FN267]. See Dehousse & Weiler, supra note 109, at 294. On the need for more creative use of networks between Member State constituencies and the Community institutions, see generally Metcalfe, supra note 2. On the increasing burdens on the Commission in particular, and on the Commission's management deficit, see Les Metcalfe, After 1992: Can the Commission Manage Europe?, 51 Aust.J.Pub.Admin. 117 (1992). [FN268]. See EC Treaty art. 157. [FN269]. See supra note 35 and accompanying text. [FN270]. See Alberta M. Sbragia, The European Community: A Balancing Act, 23 Publius 23, 33 (1993); Alberta M. Sbragia, From Nation State to Member State: The Evolution of the European Community (Oct. 1993) (unpublished manuscript, on file with the Columbia Law Review). [FN271]. Subsidiarity is assumed to be neutral from a policy point of view. It is obviously not neutral from a federalism point of view. [FN272]. I refer to the so-called parliamentary cooperation procedure. See supra note 134. [FN273]. See supra note 134. [FN274]. See Haagsma, supra note 88, at 358-59. [FN275]. T. Koopmans, Federalism: The Wrong Debate, 29 Common Mkt.L.Rev. 1047, 1048 (1992). This reliance is due at least in part to the Community's severely limited resources in comparison with those of the Member States. See supra note 258. [FN276]. See infra notes 346-350 and accompanying text. [FN277]. See generally Dehousse & Weiler, supra note 109, at 247. [FN278]. Case 8/74, Procureur du Roi v. Dassonville, 1974 E.C.R. 837, 852, [1974] 2 C.M.L.R. 436, 453-54. [FN279]. See Case 120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung fr Branntwein (Cassis de Dijon), 1979 E.C.R. 649, [1979] 3 C.M.L.R. 494. [FN280]. See, e.g., Case 302/86, Commission v. Denmark, 1988 E.C.R. 4607, [1989] C.M.L.R. 619; Case 286/81, Criminal proceedings against Oosthoek's Uitgeversmaatschappij BV, 1982 E.C.R. 4575, [1983] 3 C.M.L.R. 428. [FN281]. Cases C-267, 268/91, 1993 E.C.R. (Nov. 24, 1993). [FN282]. Id. at 16.
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[FN283]. Id. 17. [FN284]. For a similar retreat by the Court of justice, see the Court's recent preliminary ruling in Stoke-on-Trent City Council v. B & Q PLC, 1992 E.C.R. (Dec. 16, 1992), [1993] 1 C.M.L.R. 426, holding, in apparent contradiction of its earlier ruling in Torfaen Borough Council v. B & Q PLC, 1989 E.C.R. 3851, [1990] 1 C.M.L.R. 337, that Article 30 . . . does not apply to national legislation prohibiting retailers from opening their premises on Sundays. In Torfaen, the Court had made the exemption of Sunday trading laws from Article 30 conditional on a showing of proportionality, meaning that the restrictive effects [of the laws] on Community trade . . . do not exceed the effects intrinsic to rules of that kind. Id. at 3889. Upon receipt of the Court's preliminary ruling in Stoke-on-Trent, the House of Lords immediately dismissed a company's appeal from a lower court injunction barring it from operating on Sunday. Stoke-on-Trent City Council v. B & Q PLC, [1993] 2 C.M.L.R. 509 (H.L. 1993). [FN285]. See Koopmans, supra note 275, at 1047. [FN286]. Daniel Elazar has written that [a]s a political principle, federalism has to do with the constitutional diffusion of power so that the constituting elements in a federal arrangement share in the processes of common policy making and administration by right, while the activities of the common government are conducted in such a way as to maintain their respective integrities. Federal systems do this by constitutionally distributing power among general and constituent governing bodies in a manner designed to protect the existence and authority of all. Elazar, supra note 25, at 5-6; see also Walter Hartwell Bennett, American Theories of Federalism (1964); Edward McWhinney, Comparative Federalism: States' Rights and National Power (2d ed. 1965). [FN287]. The Office of Management and Budget (OMB), discussed extensively in later sections of this Article in connection with executive review of federal agency regulations, was essentially framing the subsidiarity idea when it reported that [w]hether something could be regulated by the Federal government under the Constitution is a different matter than whether the Federal government should step in. OMB, Regulatory Program of the United States Government, 1988-1989, at 21 [hereinafter OMB, Regulatory Program, 1988-1989]. [FN288]. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum.L.Rev. 543, 544 (1954). Wechsler expressed confidence that U.S. political safeguards would allow Americans to achieve a unity sufficient to resist their common perils and advance their common welfare, without undue sacrifice of their diversities and the creative energies to which diversity gives rise. Id. at 543. Wechsler's theory in turn borrowed from the Federalist Papers, notably those of Madison. Madison wrote that each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments and that Congress would be disinclined to invade the rights of the individual States, or the prerogatives of their governments. The Federalist No. 45, at 327, 332 (James Madison) (B. Wright ed., 1961). [FN289]. C. Boyden Gray, Regulation and Federalism, 1 Yale J. on Reg. 93, 93 (1983); see also Daniel J. Elazar, American Federalism: A View from the States 255-56 (3d ed. 1984). See generally U.S. Advisory Comm'n on Intergovernmental Relations, Federal Regulation of State and Local Governments: The Mixed Record of the 1980s (1993) [hereinafter ACIR, Mixed Record]. The U.S. Advisory Commission on Intergovernmental Relations (ACIR) was created by Congress in 1959 as an independent, bipartisan commission to monitor the operation of the American federal system and to recommend improvements in the working relationships among federal, state, and local governments. Twenty of its 26 members are appointed by the President. (The 20 include three private citizens and three federal executive officials named directly by the President, as well as four governors, three state legislators, four mayors and three elected county officials named by the President from slates nominated by the National Governors' Association, the National Conference of State Legislatures, the National League of Cities, the U.S. Conference of Mayors, and the National Association of Counties.) The remaining six members are three U.S. Senators chosen by the President of the
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Senate and three Representatives chosen by the Speaker of the House. The ACIR recently issued the following statement: The Commission finds that increasing federal regulation of state and local governments, the lack of adequate constitutional protection for state and local authority in the decisions of the federal courts, and the increasingly crowded policy agenda of the federal government have contributed to a serious and growing imbalance in the federal system. Id. at 5; see also U.S. Advisory Comm'n on Intergovernmental Relations, Hearings on Constitutional Reform of Federalism: Statements by State and Local Government Association Representatives (1989) [hereinafter ACIR, Hearings]. The National Conference of State Legislatures has issued a formal statement on the growing imbalance within the federal system, urging a number of strategies for reform, including strengthening fiscal impact assessment requirements, avoiding unfunded federal mandates, limiting grant conditions, and requiring express statutory statements of intent to preempt State law before Congress is assumed to have preempted State law or authorized agencies to do so. National Conference of State Legislatures, Official Policy on Federalism (on file with the Columbia Law Review). [FN290]. See, e.g., Akhil Reed Amar, Some New World Lessons for the Old World, 58 U.Chi.L.Rev. 483, 498 (1991); Michael W. McConnell, Federalism: Evaluating the Founders' Design, 54 U.Chi.L.Rev. 1484, 1493-1500 (1987); Deborah Jones Merritt, The Guarantee Clause and State Autonomy: Federalism for a Third Century, 88 Colum.L.Rev. 1, 3-10 (1988). On the Supreme Court, Justice O'Connor has been an ardent advocate of greater political autonomy for the states. See infra notes 340-346 and accompanying text. [FN291]. Gray, supra note 289, cites as other possible grounds for rebuttal of the Presumption: 1) the need for federal accommodation of competing state interests, 2) the need to avoid socially harmful competition between states, and 3) superior technical expertise at the federal level. [FN292]. Richard J. Pierce, Jr., Regulation, Deregulation, Federalism, and Administrative Law: Agency Power to Preempt State Regulation, 46 U. Pitt. L.Rev. 607, 612 (1985); see also Alice M. Rivlin, Reviving the American Dream: The Economy, the States and the Federal Government 82-84 (1992). [FN293]. See, e.g., Pierce, supra note 292, at 610-11. [FN294]. See, e.g., Mark Tushnet, Federalism and the Traditions of American Political Theory, 19 Ga.L.Rev. 981 (1985). [FN295]. Justice Antonin Scalia has concluded that to the extent that subsidiarity has any parallel in U.S. federalism, that parallel lies in the law governing federal preemption of state law. See Antonin Scalia, Subsidiarity l'Amricaine: C'est Dire Preemption, in Maastricht, Subsidiarity and Italian-EC Relations 4, 4 (The Mentor Group, The Forum for U.S.-EC Legal-Economic Affairs, Venice, 1992). [FN296]. See Pierce, supra note 292, at 662-63. Pierce believes however that Congress needs substantial assistance from federal agencies in determining how to allocate state and federal powers in areas of shared competence. See id. at 663-65. [FN297]. Wechsler argues: To the extent that federalist values have real significance they must give rise to local sensitivity to central intervention; to the extent that such a local sensitivity exists, it cannot fail to find reflection in the Congress. Wechsler, supra note 288, at 547. (Wechsler considered it in fact remarkable that Congress functions as well as it does given its intrinsic sensitivity to any insular opinion that is dominant in a substantial number of the states. Id.) Compared to Congress, the President is much less subject to state and local political influences, if only because he or she represents the full national constituency. Wechsler nevertheless argues that numerous factorsincluding the states' then considerable degree of freedom to prescribe the methods for choosing electors of the President and Vice-Presidentmake the Presidency more sensitive to state and local interests than we might ordinarily expect the
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federal chief executive to be. See id. at 552. [FN298]. [T]he Senate cannot fail to function as the guardian of state interests as such . . . . [Its composition] is intrinsically calculated to prevent intrusion from the center on subjects that dominant state interests wish preserved for state control. Id. at 548. Originally Senators were chosen by the state legislatures. The Seventeenth Amendment substituted direct popular election of Senators. Even the House of Representatives, Wechsler argues, cannot escape the effects of state political influences. He cites in particular the extent of state control over voter qualifications and districting. See id. at 548-50. [FN299]. Wechsler argues that the Supreme Court would find itself on weakest ground when it opposes its interpretation of the Constitution to that of Congress in the interest of the states, whose representatives control the legislative process and, by hypothesis, have broadly acquiesced in sanctioning the challenged Act of Congress. Id. at 559. For a recasting of Wechsler's arguments in terms of a theory of political accountability, see D. Bruce La Pierre, Political Accountability in the National Political ProcessThe Alternative to Judicial Review of Federalism Issues, 80 Nw.U.L.Rev. 577, 581-82 (1985). Wechsler's theory, particularly the notion that the political safeguards of federalism are inherent in the structure of the federal government and thus automatically protective of the states, has been widely criticized. See, e.g., Carol F. Lee, The Political Safeguards of Federalism? Congressional Responses to Supreme Court Decisions on State and Local Liability, 20 Urb. Law. 301, 333 (1988); Lewis B. Kaden, Politics, Money and State Sovereignty, 79 Colum.L.Rev. 847, 897 (1979) (The core of the federal conception is less an immutable structure . . . than a political process); Andrzej Rapaczynski, From Sovereignty to Process: The Jurisprudence of Federalism after Garcia, 1985 Sup.Ct.Rev. 341, 419 (1985) (One of the positive effects of Garcia was to put to rest the old ideas of state sovereignty.). See also infra notes 339-340 and accompanying text. Lee argues that in order to ensure that Congress takes due account of the values of federalism, state and local governments must make active efforts to protect their own interests through lobbying and other activities, and that even then success is not assured. Lee, supra, at 335. [FN300]. See Wechsler, supra note 288, at 545. Wechsler writes: National action has thus always been regarded as exceptional in our polity, an intrusion to be justified by some necessity, the special rather than the ordinary case. . . . National power may be quite unquestioned in a given situation; those who would advocate its exercise must none the less answer the preliminary question why the matter should not be left to the states. Id. at 544-45. He continues: As a state legislature views the common law as something to be left alone unless a need for change has been established, so Congress has traditionally viewed the governance of matters by the states. Id. at 545; see also Gregory v. Ashcroft, 111 S.Ct. 2395, 2400 (1991) ( Congress may legislate in areas traditionally regulated by the States. This is an extraordinary power in a federalist system. It is a power that we must assume Congress does not exercise lightly.). [FN301]. Committee reports favoring passage of federal legislation appear to differ widely in the extent to which they consider the efficacy of state law remedies. In rejecting a constitutional challenge to the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq. (1988), the Supreme Court noted that committees of both Houses of Congress had explained that inadequacies in existing state laws and the need for uniform minimum nationwide standards made federal regulations imperative. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 280 (1981). On the other hand, the Court found determinative what appear to be only conclusory statements about the need for federal as opposed to state action in the legislative history of the Public Utility Regulatory Policies Act of 1978 (PURPA), whose constitutionality was likewise challenged on Commerce Clause and Tenth Amendment grounds. Committees in both Houses of Congress noted the magnitude of the Nation's energy problems and the need to alleviate those problems by promoting energy conservation and more efficient use of energy resources. . . . Congress naturally concluded that the energy problem was nationwide in scope, and that these developments demonstrated the need to establish federal standards. . . .
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Federal Energy Reg. Comm'n v. Mississippi, 456 U.S. 742, 756-57 (1982) (footnotes omitted). [FN302]. See Lee, supra note 299, at 338-39; see also Zo Baird, State Empowerment after Garcia, 18 Urb. Law. 491, 505-06 (1986). Baird suggests that [t]he structural interests of the states . . . are quite separate and distinct from the substantive policy interests of the people of the various states which are reflected in Congress. Id. at 504. [FN303]. See generally Zimmerman, supra note 190 at 150-52. The National Governors' Association (NGA) has recommended that Congress make a specific determination of the compelling need for federal action before enacting legislation and that it actively involve the States before doing so. See NGA, Permanent Policy on Federalism, 1.6.1 (1993). More specifically, the NGA has recommended the following with respect to federal preemption of State law: There should be highly compelling reasons to justify federal actions that require changes in policies adopted by state and local officials, who are accountable to the same voters and whose performance is reviewed by them at least as often as the performance of Congress and the President. In cases where Congress determines that federal preemption of state laws is in the national interest, the federal statute should accommodate state actions taken before its enactment. Provision[s] should be made to permit states that have developed stricter standards to continue to enforce them and to permit states that have developed substantially similar standards to continue to adhere to them without change. Id. 1.7. [FN304]. The National Conference of State Legislatures has formally urged that Members of Congress should expand formal and informal communications with their state legislatures in order to defend federal legislation that diminishes state powers and to explore less intrusive means of achieving national goals. National Conference of State Legislatures, supra note 289. [FN305]. Cf. Zimmerman, supra note 190, at 152 (recommending subcommittee level preemption review and federalism assessment in each House of Congress, or, alternatively, establishment of a joint preemption-review committee). The state and Local Government Cost Estimate Act of 1981, 2 U.S.C. 653 1988, requires the Congressional Budget Office (CBO) to prepare estimates (or fiscal notes) of the anticipated costs imposed on state and local governments by all significant bills that have been reported favorably by a Senate or House committee to the whole Senate or House. See id. 653(a) (2). The CBO is required to provide the estimate prior to floor consideration of the bill, and the estimate is ordinarily included in the committee's report. See id. 653(a). Significant bills are those likely to result in an annual cost to State and local governments of $200 million or more, or to have exceptional fiscal consequences for a geographic region or a particular level of government. Id. 653(c). The CBO's performance under the Act, which concerns itself only with direct implementation and compliance costs to state and local governments (and not with the intangible costs associated with their diminished political autonomy), has received mixed reviews. Cost estimates are described as often incomplete and too conservative, and performed hurriedly on an ad hoc basis. See ACIR, Mixed Record, supra note 289, at 3. Between 1983 and 1988, the CBO performed 3554 cost estimates on 2821 bills. See id. at 62. The ACIR now recommends that these fiscal impact analyses be conducted on bills before the stage of final committee action. See id. at 4. A large number of bills currently pending in the House or Senate would expand the CBO's cost-estimating responsibilities, or would impose cost estimate responsibilities on other bodies, such as the General Accounting Office or the Office of Management and Budget. See infra note 386. One such bill is the Fiscal Accountability and Intergovernmental Reform Act, H.R. 1295, 103d Cong., 1st Sess. (1993), introduced by Representative Moran. [FN306]. On the lobbying techniques of state and local governments, see generally Elazar, supra note 289, at 174-78. Lee notes that [i]n conducting [its] business, Congress will consider the special needs and responsibilities of state and local governments only if they join the multitude of lobbying groups, use their institutional resources to promote their own interests, andin shortplay the congressional game with skill and sustained attention. Lee, supra note 299, at 340.
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[FN307]. For a good example of testimony before Congress in opposition to federal legislation, organized by and on behalf of the National Conference of State Legislatures, see Product Liability Reform Act: Hearings on S. 1400 Before the Subcomm. on the Consumer of the Senate Comm. on Commerce, Science, and Transportation, 101st Cong., 2d Sess. 116 (1990) (statement of Michael Box, Alabama House of Representatives). Mr. Box testified against the enactment of federal products liability legislation (The Product Liability Reform Act, S. 1400), concluding that [t]his is a matter that should and will be resolved in the state legislatures. Id. [FN308]. The Council of State Governments is an organization that is devoted to the institutional interests of state governments but does not engage in legislative lobbying as such. [FN309]. Some state and local governments have proven themselves formidable lobbyists and indefatigable litigants. Merritt, supra note 290, at 5. The U.S. Advisory Commission on Intergovernmental Relations has recommended that state and local governments identify those bills pending in the Congress . . . that may have significant effects on state and local governments, . . . press the committees and subcommittees of Congress responsible for the identified bills, early and often, to consider the effects on state and local governments, . . . [and] provide . . . the committees, subcommittees and the Congressional Budget Office with relevant fiscal and other information that should be taken into account . . . . ACIR, Mixed Record, supra note 289, at 4. [FN310]. On the access of state administrative officials to members of Congress, see Elazar, supra note 289, at 178-80. [FN311]. See Zimmerman, supra note 190, at 158-59. [FN312]. An innovative means recently developed by the states to heighten the accountability of Congress is the summoning of U.S. Senators and Representatives before joint sessions of their home state legislatures to explain their votes in Congress on controversial federal legislation, notably legislation imposing so-called unfunded mandates on the states. See infra note 386; see, e.g., Act No. 92-643 of the Alabama House of Representatives, House joint Resolution Inviting the Alabama Delegation of the United States Congress to Address a Joint Session of the Legislature regarding Unfunded Federal Mandates. See generally William Claiborne, States Demand an Explanation: Federal Lawmakers Summoned to Justify Unfunded Mandates, Wash. Post, July 5, 1993, at A17. [FN313]. See infra text accompanying notes 382-88. [FN314]. See ACIR, Regulatory Federalism: Policy, Process, Impact and Reform 180-86 (1984) [hereinafter ACIR, Regulatory Federalism] (citing in particular two National Governors' Association reports, Federal Roadblocks to Efficient State Government (1976) and Eliminating Roadblocks to Efficient State Government (1981)); see also ACIR, Mixed Record, supra note 289, at 55 ([T]he 1980s was a decade of continued legislative activity in regulatory federalism. This sustained level of regulatory activism appears all the more significant given the efforts devoted to regulatory relief during the decade and the overall reduction in legislative outputs.). [FN315]. For a general discussion of the erosive effects of federal over-involvement in matters of traditional state and local concern, see Jon Felde, Civic Impairment: A Hidden Cost of Preemption and Mandates, Paper Delivered at the 1991 Annual Meeting of the American Political Science Association, Washington D.C. (Aug. 29-Sept. 1, 1991) (on file with the Columbia Law Review). See generally Rivlin, supra note 292, at 82-109. The U.S. Advisory Commission on Intergovernmental Relations recently cited several pieces of legislation as noted more for their intrusiveness than their expense. ACIR, Mixed Record, supra note 289, at 46. These include laws requiring states to allow longer and heavier trucks on interstate highways, to raise the minimum drinking age to 21, and to abolish mandatory retirement age policies. See id. In an earlier publication, the ACIR described as authority costs those costs that undermine the political autonomy of state and local governments. See ACIR, Regu-
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latory Federalism, supra note 314, at 312. In August 1988 the National Governors' Association (NGA) adopted a detailed policy on federalism, one provision of which reads as follows: Federal Forbearance. Not all problems require a uniform solution. Priorities and preferences may vary from state to state. The lack of universal action or uniform solutions does not in and of itself provide a sufficient rationale for federal action. Instead, we recommend that the development of future federal programs be guided first by four fundamental principles: Federal action should be taken where constitutional authority for action is clear and certain. Federal action should be limited to problems that are national in scope, problems where the national interest requires a universal or uniform solution, not merely problems that are common to all of the states. Federal action should be sensitive to states' individual abilities to bring a unique blend of resources and approaches to common problems. Unless the national interest is at risk, federal action should not preempt additional state action. Policy on Federalism of the National Governors' Association, reprinted in ACIR, Hearings supra note 289, at 42. In 1993, the NGA essentially reaffirmed these and related guidelines in the form of a Permanent Policy. [FN316]. For a catalogue of federal statutes that have deliberately extended regulatory relief to the statesin the form of exemptions, a relaxation of standards, increased flexibility in implementation, and the simplification of procedures. See ACIR, Mixed Record, supra note 289, at 49-51. [FN317]. 33 U.S.C. 1313(c) (1988). [FN318]. See id.; Arkansas v. Oklahoma, 112 S.Ct. 1046, 1054-55 (1992). [FN319]. See 29 U.S.C. 667(b) (1988). About half the states have received approval of their own state plans under this provision. See, e.g., Gade v. National Solid Wastes Management Ass'n, 112 S.Ct. 2374, 2382 (1992). [FN320]. See 42 U.S.C. 6926(b) (1988); United States Dep't of Energy v. Ohio, 112 S.Ct. 1627, 1631 (1992). According to one authority, [p]artial federal preemption has forced state legislatures to amend statutes to bring them into conformity with federal standards or lose responsibility for the partially preempted function and possibly federal grants-in-aid. Zimmerman, supra note 190, at 8. [FN321]. See, e.g., the Alaska National Interest Lands Conservation Act, 16 U.S.C. 3101-3233 (1988). The Act declares that subsistence fishing and hunting shall be given priority over other types of fishing and hunting in rural parts of Alaska, and directs the Secretary of the Interior to implement this policy. Federal regulation, however, must be suspended if the State of Alaska enacts laws which are consistent with, and which provide for the definition, preference, and participation specified in . . . this title. Id. 3115(d). The Secretary of the Interior has statutory responsibility for monitoring the State's performance. See id. 3116. For judicial interpretation of the statute, see Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir.1988), cert. denied, 491 U.S. 905 (1989). [FN322]. 49 Stat. 627 (codified as amended at 42 U.S.C. 601-606 (1988)). [FN323]. See 42 U.S.C. 606(a), 607 (1988). [FN324]. See id. 602, 606, 612 (1988). [FN325]. See id. 602(a)(7), 603 (1988); King v. Smith, 392 U.S. 309, 318-19 (1968). [FN326]. See U.S. Advisory Comm'n on Intergovernmental Relations, Statutory and Administrative Controls Associ-
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ated with Federal Grants for Public Assistance 27-59 (1964) [hereinafter ACIR, Federal Grants]; Note, The Evolution of a Federal Family Law Policy Under Title IV-A of the Social Security Act: The Aid to Families with Dependent Children Program, 36 Cath.U.L.Rev. 197, 200 (1986). [FN327]. See ACIR, Federal Grants, supra note 326, at 6. The State of Wisconsin, however, recently announced its intention to withdraw entirely from the federal welfare program over the next five years and install its own state public assistance system. See Jason DeParle, Wisconsin Pledges to Take Own Path on Welfare by '99, N.Y. Times. Dec. 14, 1993, at A1. [FN328]. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 289 (1981). On the term cooperative federalism, see Zimmerman, supra note 190, at 147 (The theory of cooperative federalism is . . . a relatively simple one, suggesting that each plane [of government] cooperate freely with the other to promote the common good.). [FN329]. ACIR, Regulatory Federalism, supra note 314, at 34-37. [FN330]. For an excellent argument in favor of treating the states' autonomy of process as a prudential principle of federalism, see H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va.L.Rev. 633 (1993). [FN331]. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824). [FN332]. Although there is broad support today for an expansive reading of the federal Commerce Clause power, there was no such understanding in the early New Deal era. See, e.g., Hammer v. Dagenhart, 247 U.S. 251 (1918) (holding manufacture does not fall under the Commerce Clause as production of goods is not commerce); see also Carter v. Carter Coal Co., 298 U.S. 238 (1936) (holding unconstitutional federal regulation of coal production as the tax imposed by the federal government is actually a penalty and thus a misuse of its taxing power); United States v. E.C. Knight Co., 156 U.S. 1 (1895) (holding unconstitutional US attempt to prevent a sugar monopoly by thwarting an intrastate contract of one large sugar manufacturer as the contract was totally under state law). Federal courts, by way of exception, have occasionally held that Congress exceeds its powers under the Commerce Clause by making conduct a federal crime without asserting any rational nexus between that conduct and interstate commerce. See, e.g., United States v. Lopez, No. 92-5641, 62 U.S. L.W. 2173 (5th Cir. Sept. 15, 1993) (1990 Gun-Free School Zones Act unconstitutional in absence of interstate commerce nexus to ban on firearms in school zones, where interstate commerce is not made an element of the offense and Congress fails to find an effect on interstate commerce); United States v. Cortner, No. 3-93-00009, 62 U.S. L.W. 1067 (M.D.Tenn. Oct. 19, 1993) (federal hijacking statute unconstitutional because it fails to assert any nexus between the criminal act and interstate commerce, especially as applied to a purely intrastate car theft). [FN333]. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276 (1981) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 262 (1964), and citing N.L.R.B. v. Jones & Laughlin Steel, 313 U.S. 416 (1947) and Wickard v. Filburn, 317 U.S. 111 (1942), and United States v. Darby, 312 U.S. 100 (1941)). The Court in Hodel rejected the argument that existing legislation rendered unnecessary Congress' use of the Commerce Power to enact new legislation: Appellees' essential challenge to the means selected by the Act is that they are redundant or unnecessary . . . . The short answer to this argument is that the effectiveness of existing laws in dealing with a problem identified by Congress is ordinarily a matter committed to legislative judgment. Id. at 283. Justice Powell's concurring opinion in the Hodel case is especially revealing: The Surface Mining Act mandates an extraordinarily intrusive program of federal regulation and control of land use and land reclamation, activities normally left to state and local governments. But the decisions of this Court over many years make clear that, under the Commerce Clause, Congress has the power to enact this legislation.
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Id. 305 (Powell, J., dissenting). [FN334]. 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). [FN335]. Id. at 852. [FN336]. See, e.g., Federal Energy Reg. Comm'n v. Mississippi, 456 U.S. 742 (1982); Hodel, 452 U.S. 264. The Court in Hodel identified four conditions as necessary under National League of Cities for state and local government immunity from federal regulation pursuant to the Commerce Clause: (1) the federal law must regulate the states as states; (2) it must address matters that indisputably engage state sovereignty; (3) state compliance must directly impair the states' ability to organize themselves to carry out traditional governmental functions; and (4) the federal government must lack a sufficient interest in the matter to justify state submission. See id. at 287-88. [FN337]. See Pierce, supra note 292, at 642-43. [FN338]. 469 U.S. 528 (1985); see also South Carolina v. Baker, 485 U.S. 505 (1988). [FN339]. The Court stated: [T]he Framers chose to rely on a federal system in which special restraints on federal power over the States inhered principally in the workings of the National Government itself, rather than in discrete limitations on the objects of federal authority. State sovereign interests, then, are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power. Garcia, 469 U.S. at 552. In response to Garcia, and on the recommendation of the Council on State Government's (CSG) Intergovernmental Affairs Committee, the Executive Committee of the CSG adopted a resolution in favor of adding the following language to the Tenth Amendment: Whether a power is one reserved to the states or to the people, shall be a matter to be decided by the Courts. Intergovernmental Affairs Committee of the Council of State Governments' Resolution to the Court of State Governments, Executive Committee on Restoring Balance in the Federal System (Sept. 23, 1989) (on file with Columbia Law Review). [FN340]. The majority in Garcia doubt[ed] that courts ultimately can identify principled constitutional limitations on the scope of Congress' Commerce Clause powers over the States merely by relying on a priori definitions of state sovereignty. Garcia, 469 U.S. at 548. Justice Powell wrote a vigorous dissent, accusing the majority of taking an unrealistically positive view of the political process and its capacity to sustain the values of federalism. He cited specifically the progressive weakening of local political parties, the growth in importance of national media, and the power of permanent congressional staff in developing and drafting federal law. See id. at 565 n.9, 576 (Powell, J., dissenting). However, it is Justice O'Connor's dissent in Garcia that is most sympathetic to the idea of enforcing subsidiarity through the Tenth Amendment: The true essence of federalism is that the States as States have legitimate interests which the National Government is bound to respect even though its laws are supreme . . . . .... . . . Just as surely as the Framers envisioned a National Government capable of solving national problems, they also envisioned a republic whose vitality was assured by the diffusion of power not only among the branches of the Federal Government, but also between the Federal Government and the States . . . . .... . . . The Framers' comments indicate that the sphere of state activity was to be a significant one . . . . The
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States were to retain authority over those local concerns of greatest relevance and importance to the people. Id. at 581-82 (O'Connor, J., dissenting). [FN341]. 111 S.Ct. 2395 (1991). [FN342]. Id. at 2401. Justice O'Connor writes: [I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress' Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise. Id. at 2403. [FN343]. Ashcroft involved the application of the Federal Age Discrimination in Employment Act of 1967, Pub.L. No. 90-202, 81 Stat. 608 (codified as amended at 29 U.S.C. 621-634 (1988)), to appointed state judges. Justice O'Connor's opinion nevertheless contains a general encomium to federalism: This federalist structure of joint sovereigns preserves to the people numerous advantages. It assures a decentralized government that will be more sensitive to the diverse needs of a heterogeneous society; it increases opportunity for citizen involvement in democratic process; it allows for more innovation and experimentation in government; and it makes government more responsive by putting the States in competition for a mobile citizenry. Perhaps the principal benefit of the federalist system is a check on abuses of government power. . . . Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Ashcroft, 111 S.Ct. at 2399-40 (citations omitted). [FN344]. 112 S.Ct. 2408 (1992). [FN345]. See id. at 2428-29. In New York v. United States, the Court invalidated a provision of the Low-Level Radioactive Waste Policy Amendments Act of 1985, 5(d)(2)(C), Pub.L. No. 99-240, 99 Stat. 1842 (codified at 42 U.S.C. 202le(d)(2)(C) (1988)), because it required the states, as a matter of federal law, to choose between either accepting ownership of radioactive waste generated within their borders or regulate pursuant to federal standards. See 112 S.Ct. at 2428-29. The Court's rationale for reopening the door to Tenth Amendment challenges was that entertaining them is no different than determining whether Congress acted within the scope of its enumerated powers: Whether one views [the provision invalidated] as lying outside Congress' enumerated powers, or as infringing upon the core of state sovereignty reserved by the Tenth Amendment, the provision is inconsistent with the federal structure of our Government established by the Constitution. Id. at 2429. Justice White, in a partial dissent, criticized the majority for not following the Garcia case. See id. at 2443 (White, J., dissenting). [FN346]. Id. at 2434. For an able critique of Justice O'Connor's claim to historical support for an autonomy of process principle in favor of the States, which nonetheless praises the principle as a prudential doctrine, see Powell, supra note 330. For the claim that Justice O'Connor is correct as to the federal government's commandeering of state legislatures, but not of state administrative agencies (and courts), see Saikrishna Prakash, Field Office Federalism, 79 Va.L.Rev. 1957 (1993). See also Richard E. Levy, New York v. United States: An Essay on the Uses and Misuses of Precedent, History and Policy in Determining the Scope of Federal Power, 41 Kan.L.Rev. 493 (1993); Ann Althouse, Variations on a Theory of Normative Federalism; A Supreme Court Dialogue, 42 Duke L.J. 979 (1993); H. Jefferson Powell, The Oldest Question of Constitutional Law, 79 Va.L.Rev. 633 (1993). [FN347]. 112 S.Ct. at 2420. For a subsequent application of the rule stated in New York v. United States, see Board
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of Natural Resources v. Brown, 992 F.2d 937 (9th Cir.1993). [FN348]. See supra note 346. [FN349]. 112 S.Ct. at 2424. [FN350]. Id. at 2429. [FN351]. Id. at 2435. Justice White, in a partial dissent, underscored Congress' full liberty, even under the majority opinion, to regulate the disposal of radioactive waste directly under the Commerce Clause: Congress has the power pursuant to the Commerce Clause to regulate directly the producers of the waste. Thus, as I read it, Congress could amend the statute to say that if a State fails to meet the [deadline for adequate waste disposal] . . . no low-level radioactive waste may be shipped out of the State. . . . Id. at 2445 (White, J., dissenting). [FN352]. Id. at 2424. [FN353]. U.S. Const. amend. X. [FN354]. The Supreme Court has described the Tenth Amendment as a tautology. New York v. United States, 112 S.Ct. at 2418 (citing United States v. Darby, 312 U.S. 100, 124 (1941) (The Tenth Amendment states but a truism that all is retained which has not been surrendered.)). [FN355]. Although the Constitution's Guarantee Clause has come into consideration recently as a source of federalism constraints on Congress, the Clause has been thought to protect at most the states' autonomy in defining the franchise for state office, organizing the machinery of state government, establishing state personnel policies, and allocating state regulatory and enforcement resources, but not to protect states from federal laws governing private conduct in areas traditionally regulated by the states. See Merritt, supra note 290, at 70 ([T]he protection afforded states by the guarantee clause does not prevent Congress from preempting areas of substantive state law. The guarantee clause grants states a measure of autonomy over their governmental processes; it does not promise them sovereignty over any aspect of private behavior.). [FN356]. See supra notes 317-329 and accompanying text. [FN357]. See, e.g., Kenaitze Indian Tribe v. Alaska, 860 F.2d 312 (9th Cir.1988), cert. denied, 491 U.S. 905 (1989) (holding that where a state exercises its power to regulate pursuant to a federal statute, the state must use such power in a manner that is consistent with congressional intent). [FN358]. Gade v. National Solid Wastes Management Ass'n, 112 S.Ct. 2374, 2381 (1992) (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985)); Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137-38 (1990) (also quoting Allis-Chalmers Corp. v. Lueck). [FN359]. Allis-Chalmers Corp. v. Lueck, 471 U.S. at 208 (quoting Malone v. White Motor Corp., 435 U.S. 497, 504 (1978)). [FN360]. See, e.g., Pierce, supra note 292, at 629-31, citing Jones v. Rath Packing Co., 430 U.S. 519 (1977); Northern Natural Gas Co. v. State Corp. Comm'n, 372 U.S. 84 (1963); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); see also William Cohen, Congressional Power to Define State Power to Regulate Commerce: Consent and Preemption, in 2 Courts and Free Markets 523, 525 (Terrance Sandalow & Eric Stein eds., 1982) (arguing that Congress may occupy the field, even to the extent of regulating matters of peculiarly local concern that nevertheless affect interstate commerce. [T]he issue, in preemption cases, simply stated, is not what Congress has the power to do, but what Congress has done. Id. at 537).
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[FN361]. See supra notes 331-340 and accompanying text. [FN362]. [Since] Congress rarely addresses issues of preemption of state law explicitly or in detail . . . the Court usually must determine congressional intent based on its analysis of the general purposes of the federal statute and the relationship between those general purposes and the state action at issue. Pierce, supra note 292, at 629; see, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987). [FN363]. See, e.g., Hillsborough County, Fla. v. Automated Medical Labs., 471 U.S. 707, 713 (1985); see also id. at 715 (public health and safety is not a field in which a dominant federal interest will lightly be assumed). [FN364]. See Wisconsin Pub. Intervenor v. Mortier, 111 S.Ct. 2476, 2481-82 (1991); Sunstein, supra note 22, at 164, 225-26. [FN365]. See generally Scalia, supra note 295, at 4. Legislation has been introduced in the Senate that would markedly strengthen the presumption against preemption. The legislationThe Preemption Clarification and Information Actwould provide that [n]o statute, or rule promulgated under such statute, shall preempt, in whole or in part, any state or local government law, ordinance, or regulation, unless the statute explicitly states that such preemption is intended or unless there is a direct conflict between such statute and state or local law, ordinance, or regulation, so the two cannot be reconciled or consistently stand together. S. 480, 103d Cong., 1st Sess. (1993), introduced by Senators Levin and Durenberger; see also H.R. 2327, 103d Cong., 1st Sess. (1993). [FN366]. See, e.g., Pierce, supra note 292, at 630 (citing Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)); see also Hines v. Davidowitz, 312 U.S. 52, 67(1941). [FN367]. See Cohen, supra note 360, at 541; Roger C. Cramton, Pennsylvania v. Nelson: A Case Study in Federal Preemption, 26 U.Chi.L.Rev. 85, 87-88(1958). According to Cohen, the outcome seldom turns on the technical mesh between state and federal law or the consequences of overlap, but rather on the wisdom of the respective rules, the desirability (in light of the interests affected) of having the matter regulated at the one level or the other, and the relative advantages of having a uniform federal rule (or at least a rule fixed by an authority having a national perspective) or one that varies locally. See Cohen, supra note 360. These are precisely the kinds of factors that Congress would in principle consult if it were facing the question. [FN368]. See, e.g., Pierce, supra note 292, at 631-36 (citing Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984); Arkansas Elec. Power Coop. Corp. v. Arkansas Pub. Serv. Comm'n, 461 U.S. 375 (1983); Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190 (1983)). [FN369]. For a legislative proposal in Congress that would allow federal preemption of state law on the basis of inconsistency between the two only when there is a direct conflict between [them], so the two cannot be reconciled or consistently stand together, see The Preemption Clarification and Information Act, S. 480, supra note 365; H.R. 2327, supra note 365. [FN370]. See supra note 237. As noted, the Maastricht Treaty does not declare subsidiarity to be a justiciable principle. But the European Council, expounding the subsidiarity doctrine after Maastricht, assumed that it would be justiciable, at least in direct actions in the Court of justice. See supra notes 238-241 and accompanying text. [FN371]. Partly at the urging of the National Governors' Association, however, federal agencies are increasingly structuring their rulemaking procedures in such a way that state and local governments are effectively heard in the development of federal regulationsnot only on the question of the necessity for federal action, but also on the administrative and financial costs that federal action imposes on the lower levels of government. See OMB, Annual Regulatory Program of the United States Government, 1987-1988, at 27 [hereinafter OMB, Regulatory Program,
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1987-1988]. [FN372]. See supra notes 317-329 and accompanying text. [FN373]. 452 U.S. 264 (1981). [FN374]. The Court itself depicted the choice as follows: [T]he States are not compelled to enforce the . . . standards, to expend any state funds, or to participate in the federal regulatory program in any manner whatsoever. If a State does not wish to submit a proposed permanent program that complies with the Act and implementing regulations, the full regulatory burden will be borne by the Federal Government. Id. at 288. On this basis, the Court concluded that the Act did not commandeer[] the legislative processes of the States. Id. [FN375]. Id. at 290. [FN376]. See supra notes 356-57 and accompanying text. [FN377]. See Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 699 (1984); Fidelity Fed.Sav. & Loan Ass'n v. De la Cuesta, 458 U.S. 141, 153-54 (1982); Ray v. Atlantic Richfield Co., 435 U.S. 151, 163-66, 170 (1978); United States v. Shimer, 367 U.S. 374, 381-83 (1961). [FN378]. Early support for this view may be found in Paul R. Verkuil, Preemption of State Law by the Federal Trade Commission, 1976 Duke L.J. 225; see also Arkansas Elec. Power Coop. Corp. v. Arkansas Pub.Serv.Comm'n, 461 U.S. 375 (1983); American Optometric Ass'n v. FTC, 626 F.2d 896 (D.C. Cir.1980). [FN379]. See, e.g., Katherine Gibbs School, Inc. v. FTC, 612 F.2d 658 (2d Cir.1979). [FN380]. See generally Pierce, supra note 292, at 640. To compensate for this latitude, Pierce specifically recommends that reviewing courts not only ensure that the states have adequate notice and opportunity to be heard before a preemptive rule is adopted, and that the preemptive effect of the rule is no broader than necessary, but also that the agency's conclusion that the state regulation has the potential to create substantial disproportionate interstate spillovers is supported by substantial evidence and an adequate statement of reasons. Id. at 665. For an example of judicial support of an agency decision to preempt state law under a statute that does not expressly empower the agency to do so, see Capital Cities Cable v. Crisp, 467 U.S. 691 (1984). See generally Zimmerman, supra note 190, at 81 (concluding the Supreme Court has permitted Congress broad discretion to preempt traditional state and local government functions, regardless of explicit statutory preemption provisions). Nonetheless, there is evidence that the courts may in fact require agencies to give an adequate statement of reasons before preempting state law. A court of appeals recently ruled that the Environmental Protection Agency failed to provide an adequately reasoned basis for departing from its past policies when it amended its National Contingency Plan for hazardous waste disposal to exclude the states from exercising any enforcement or remedy-selection authority under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). See Ohio v. Environmental Protection Agency, 997 F.2d 1520, 1524 (D.C.Cir.1993). The U.S. Advisory Commission on Intergovernmental Relations has formally recommended that the standards for agency preemption of state law be tightened: (3) The executive branch [shall] not preempt by administrative rulemaking unless Congress has expressly authorized such action and established clear guidelines for doing so, and unless the administrative agency taking such action clearly expresses its intent to preempt. (4) The federal courts [shall] not confirm the validity of statutory and administrative preemptions unless accompanied by a clear statement of intent to preempt and unless the extent of preemption is no greater than
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necessary to give effect to that intent. . . . ACIR Recommendations (March 1988), quoted in ACIR, Mixed Record, supra note 289, at 115; see also U.S. Advisory Comm'n on Intergovernmental Relations, Federal Statutory Preemption of State and Local Authority: History, Inventory, and Issues (Recommendations 1 through 3) 2, 11-13, 40-41 (1992). On partial preemption in particular, see Zimmerman, supra note 190, at 91-100 (defining and discussing several types of partial preemption). As noted above, legislation pending before Congress would require an express statement of intent by Congress to preempt state law before a court could interpret a federal statute or regulation as in fact preemptive. See S. 480, supra note 365; H.R. 2327, supra note 365. [FN381]. See supra notes 362-365. For an example, see Hillsborough County, Fla. v. Automated Medical Labs., Inc., 471 U.S. 707, 714, 716 (1985) (agency preemption may be inferred from the pervasiveness of the agency's regulations or from the dominance of the federal interest in the area). [FN382]. See Thomas O. McGarity, Regulatory Analysis and Regulatory Reform, 65 Tex.L.Rev. 1243 (1987); see also Robert E. Litan & William D. Nordhaus, Reforming Federal Regulation 59 (1983); Michael Fix & George C. Eads, The Prospects for Regulatory Reform: The Legacy of Reagan's First Term, 2 Yale J. on Reg. 293 (1985). [FN383]. For a recent analysis of the direct implementation and compliance costs to state and local governments generated by federal regulations, see ACIR, Mixed Record, supra note 289, at 59-68. The U.S. Advisory Commission on Intergovernmental Relations places a conservative estimate of such costs at between $2.2 billion and $3.6 billion for 1990, and at between $9 billion and $12 billion total for the years 1983 to 1990. [FN384]. See generally Gary Lee, Costly Federal Mandates Spur Protest: States, Counties Seek Relief from Programs Imposed Without Funding, Wash. Post, Oct. 27, 1993, at A3; see also Sending a Message to Washington, 40 Nat'l J. 2369, 2369 (1986). [FN385]. See generally Rochelle L. Stanfield, What Has 500 Parts, Costs $83 Billion and Is Condemned by Almost Everybody?, The Nat'l J., Jan. 3, 1981, at 4, 7; see also States and Cities Pay a High Price for Their Federal Aid, Heritage Found. Rep., July 15, 1986. [FN386]. The term unfunded mandates refers to requirements imposed on state and local governments by federal law without coverage or reimbursement of the compliance costs. For a discussion of this phenomenon, see Zimmerman, supra note 190, at 152-58 (discussing the financial impact on state and local governments of federal mandates). Unfunded mandates have recently been said to have reached such proportions as to constitute an overextension of the constitutionally delegated powers of the Congress and the Executive, an abridgment of the authority of citizens in their state and local communities to govern their own affairs, and an impairment of the ability of citizens to hold their elected federal officials accountable for the public costs of their decisions. ACIR, Mixed Record, supra note 289, at 4. The U.S. Advisory Commission on Intergovernmental Relations has advocated a moratorium on the imposition of unfunded or underfunded mandates for at least two years while Congress and the Executive Branch conduct a thorough review of them. See id. The National Governors' Association's Permanent Policy on Federalism, reaffirmed and modified in 1993, specifically calls[s] on members of Congress to oppose, and the President to veto, legislation that imposes further mandates without also providing adequate funding to cover the costs of implementation. NGA, supra note 303, 1.4.4. Meanwhile, the National Conference of State Legislatures publishes a Hall of the States Mandates Monitor, or Mandate Watch List, which tracks the progress of bills in Congress that would impose unfunded mandates on state and local governments. Congress, as of this writing, is considering some twenty separate bills that seek to remedy the problem of unfunded mandates. The National Conference of State Legislatures has compiled and maintains a comprehensive inventory of such bills (Comparative Analysis of Mandate Relief Bills in the 103d Congress). Among the mechanisms that these various bills would introduce are: requirement of a General Accounting Office economic impact statement on all bills or resolutions repor-
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ted by any committee (S. 81, H.R. 1088); provision for judicial review of federal agency compliance with regulatory flexibility analyses (S. 490, H.R. 830); improved or additional Congressional Budget Office estimates of state and local government compliance costs (S. 563, S. 648, S. 993, H.R. 886, H.R. 894, H.R. 1006, H.R. 1295); requirement of an OMB report in conjunction with the President's budget proposal estimating the compliance costs to state and local governments of intergovernmental regulations for the coming two fiscal years (S. 1188); guarantee of appropriations to states to cover direct costs of federal mandates (S. 648, S. 993, S. 1188, H.R. 140, H.R. 369, H.R. 410, H.R. 894, H.R.J.Res. 254); a total prohibition on future unfunded federal mandates (H.R.Con.Res. 51); a requirement that no federal statute or rule issued under it shall preempt state or local law unless the federal statute explicitly states an intent to preempt or the conflict between the statute and state or local law is direct (S. 480, H.R. 2327); and imposition of an agency-by-agency ceiling on the costs of regulation (S. 13). [FN387]. The U.S. Advisory Commission on Intergovernmental Relations has identified four regulatory techniques as especially onerous on states and local governments: (a) partial preemption (setting minimum national standards for the regulation of private activity, with implementation by the states permitted only to the extent that they meet those standards); (b) direct orders (legal requirements imposed directly on State and local governments, enforceable through direct civil or criminal penalties); (c) crossover sanctions (loss of financial assistance to certain State and local programs due to noncompliance with Federal requirements applicable to unrelated programs); and (d) crosscutting requirements (the application of general federal legal requirements across the board to federal grants in order to advance national social or economic goals unrelated to the grants). ACIR, Mixed Record, supra note 289, at 7. A non-programmatic objection voiced by state and local governments concerns the decline in federal funding in support of state administrative operations. See id. at 24. [FN388]. See Rivlin, supra note 292, at 122-25; John Kincaid, Developments in Federal-State Relations, 1990-91, in 29 The Book of the States 600, 602-07 (1992); John Kincaid, Book Review, 46 Nat'l Tax J. 245, 246-47 (1993) (reviewing Rivlin, supra note 292); see also David S. Broder, Frayed Federalism, Wash. Post, Aug. 15, 1993, at C7 (remarking that [d]uring much of the past decade, the pattern of behavior in a national capital beset by rising deficits was to load more duties onto the states and localitiesand send less money to pay for them). [FN389]. The U.S. Advisory Commission on Intergovernmental Relations formulated recommendations as early as 1984 that closely track the principles of subsidiarity and proportionality, respectively: [F]ederal intergovernmental regulation is warranted only when a clear and convincing case has demonstrated both the necessity of [federal] intervention and a marked inability of state and local governments to address the regulatory problem involved. In making this determination, the Commission strongly believes that . . . the federal government[] [must consider its] responsibility to maintain the viability of the federal system and to respect the institutional integrity of states and their localities. If, according to this test, the federal government's involvement in a regulatory program is appropriate, the Commission further recommends that the federal government choose the least intrusive means of intergovernmental regulation consistent with the national interest, allowing state and local governments the maximum degree of flexibility permissible. ACIR, Regulatory Federalism, supra note 314, at 259 (Recommendation A.1). [FN390]. Daniel Elazar believes that the United States has come to terms with its somewhat chaotic existing system of intergovernmental sharing. Elazar, supra note 289, at 232. Accordingly, debate is less often over federalism as such than over devising the best ways to organize specific federal-state cooperative activities. See id. at 232-37. For a catalogue of leading strategies for reorganizing federal-state cooperation in the United States, see National Confer-
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ence of State Legislatures, Official Policy on Federalism, supra note 289. [FN391]. See Bureau of the Budget, Circular A-85 (June 28, 1967). Circular A-85 was based on a 1966 memorandum of President Johnson to the Director of the Bureau of the Budget (predecessor of the Office of Management and Budget) and to the heads of agencies. The memorandum on Consultation with Heads of State and Local Governments in Development of Federal Rules, Regulations, Standards, Procedures and Guidelines (Nov. 11, 1966) is discussed in Elazar, supra note 289, at 168, and in ACIR, Regulatory Federalism, supra note 314, at 209-10. Circular A-85 established procedures by which proposed agency rules having an intergovernmental impact were mandatorily submitted early in the process to the appropriate national association of state and local officials for review and comment. The circular made the U.S. Advisory Commission on Intergovernmental Relations responsible for seeing to it that agency proposals reached the appropriate bodies for review and that their reviews in turn reached the agencies. Executive Order 12,612, discussed infra notes 425-443 and accompanying text, requires executive branch agencies to consult with appropriate state officials and with organizations representing the states before imposing national standards in a regulatory area ordinarily subject to regulation by the states. [FN392]. For a discussion of Circular A-85 and criticism of its effectiveness, see ACIR, Regulatory Federalism, supra note 314, at 209-10. [FN393]. Circular A-85 was officially rescinded in 1978 with President Carter's issuance of a more general policy in the form of Executive Order 12,044. See infra note 401. In a memorandum to the heads of executive agencies accompanying Executive Order 12,044, President Carter recommended that certain national organizations representing state and local governments systematically review the semi-annual regulatory agendas that the Executive Order required the agencies to publish. The Order also required the agencies to communicate their concerns over the intergovernmental effects of a proposal to the responsible agency. Once in receipt of such a communication, the agency was required to develop a plan for consultation with state and local governments. See Memorandum from the President to Heads of Executive Departments and Agencies (Mar. 23, 1978), discussed in ACIR, Regulatory Federalism, supra note 314, at 211-12. Executive Order 12,044 was in turn replaced by President Reagan's Executive Order 12,291. See infra notes 404-420 and accompanying text. [FN394]. See ACIR, Regulatory Federalism, supra note 314, at 211-14, 282, 286-87, 302-05, 310-12. [FN395]. See, e.g., The Regulatory Reform Act of 1982, S. 1080, 97th Congress, 1st Sess. (1981). Had this bill been passed, section 3 would have amended the Administrative Procedure Act (APA) to require agencies engaged in rulemaking to request comments from state and local governments on the cost to those governments of any proposed rule. According to the Senate Report, the bill would have require[d] special efforts by federal agencies to identify and analyze [these burdens] in order to better understand the effect of federal regulations on State and local governments. S.Rep. No. 305, 97th Cong., 1st Sess. 23 (1981). For major rules, as defined in the bill, section 4 of the Act would have made the burdens on state and local government an integral part of a statutorily required regulatory analysis. See id. at 55, 127. The APA would also have been amended to require that agencies include in their statement of basis and purpose of a rule both an analysis of the alternative measures suggested by public comments received and a response to comments by state and local governments on the burdens likely to be imposed on them. See id. at 29. The Senate Report makes it clear that state and local regulatory mechanisms are among the alternatives that an agency would have to consider in its rulemaking. See id. at 50. S. 1080, section 8, would also have expressly amended the Federal Advisory Committee Act (FACA) to permit state and local officials and their representatives to meet with federal regulators without becoming subject to the requirements of FACA. See S. 1080, supra, 8. [FN396]. The U.S. Advisory Commission on Intergovernmental Relations accordingly has urged state and local governments to take precisely this initiative by press[ing] for early access to the administrative rulemaking process.
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ACIR, Mixed Record, supra note 289, at 4 (Recommendation 2(a)(v)). Organizations such as the National Conference of State Legislatures and the National Governors' Association are active in bringing their federalism concerns over proposed regulations to the attention of federal agency regulators. See, e.g., Letter from William T. Pound, Executive Director, National Conference of State Legislatures, to Mark Ragen, Assistant Secretary for Children and Families, U.S. Department of Health and Human Services (Aug. 5, 1991) (on file with the Columbia Law Review) (opposing proposed regulations on federal aid for child care on the ground that they establish standards that are too rigid and impose both unfunded mandates and excessive administrative burdens on the states). The letter cites Executive Order 12,612, discussed infra notes 425-443 and accompanying text, in support of its claim that provisions of the proposed rule do not give sufficient credence to the states, and limits [the] states' ability to decide the level of importance of health and safety regulations and parental choice. Letter, supra, at 3. For a similar statement of position by the National Conference of State Legislatures (NCSL), in the form of an Official Policy, rather than congressional testimony, see NCSL, Official Policy on Child Support Enforcement, objecting to treating a weakness [in the enforcement of parental support obligations) by removing it to the federal government and funding, creating, and training a new bureaucracy at the national level. The Conference urges that federal efforts be directed to helping states do a better job, chiefly through cooperation, training and financial aid. See id. at 3. Agencies may of course systematically consult with their state and local government counterparts on a voluntary basis. In 1985, for example, the Environmental Protection Agency created a state-EPA consultation committee consisting of environmental officials from seventeen states. The committee was to meet four times a year. See ACIR, Mixed Record, supra note 289, at 37. [FN397]. See The Fiscal Accountability and Intergovernmental Reform Act, H.R. 1295, supra note 305, 202-203. [FN398]. See id. 203. [FN399]. President Nixon's Quality of Life Review was the first systematic attempt by the Presidency to establish regulatory oversight of the agencies. It required the interagency exchange of information and views prior to an agency's adoption of any proposed or final rule on the environment, consumer protection or public health and safety. The process, coordinated by the Office of Management and Budget (OMB), sought to eliminate regulatory overlap and to resolve interagency disputes. See Morton Rosenberg, Regulatory Management at OMB, in Congressional Res. Serv., Library of Congress, prepared for the Senate Comm. on Governmental Affairs, 99th Cong., 2d Sess. (1986). [FN400]. President Ford's Executive Order 11,821, 3 C.F.R. 926 (1971-1975), extended the regulatory review process to all executive agencies, but focused on the inflationary impact of federal rules. Prior to proposing major rules (as defined in the Order), agencies were required to prepare and submit to the Council on Wage and Price Stability (COWPS) an Inflationary Impact Statement. COWPS had no power to require changes to the proposed rules and OMB's powers were strictly managerial. [FN401]. President Carter's Executive Order 12,044, 3 C.F.R. 154 (1979), required executive agencies to conduct a regulatory analysis of all significant rules before issuing them in proposal form. The analysis was meant to assess the rules' impact in terms of costs and benefits and to demonstrate the agencies' consideration of regulatory alternatives. The agencies also were required to prepare semi-annual agendas of their proposed rulemakings. The Regulatory Council (the heads of all executive agencies and departments and, on a voluntary basis, the independent regulatory agencies) collected and disseminated information about the agencies' proposals and constructed a semi-annual Regulatory Calendar whose purpose was to help coordinate regulation among the agencies. In addition, a Regulatory Analysis Review Group (RARG), consisting of representatives from the major regulatory agencies, chaired by the Chair of the Council of Economic Advisers, selected 10 to 20 proposed rules per year, chosen on account of their substantial economic impact, for independent review and comment prior to adoption. OMB's role was to provide guidance to the agencies on the conduct of regulatory analyses.
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[FN402]. The principal Executive Orders12,291, 12,372, and 12,612are taken up below. See notes 404-455 and accompanying text. [FN403]. See infra note 456 and accompanying text. [FN404]. Exec. Order No. 12,291, 3 C.F.R. 127 (1981). [FN405]. Id. 2. [FN406]. See id. 2(a). [FN407]. See id. 2(c). [FN408]. See id. 2(e). [FN409]. Id. 2(b). [FN410]. Id. 2(d). [FN411]. See id. 1(b). [FN412]. See id. 3(d)(1)-(4). [FN413]. See id. 3(e). [FN414]. See id. 3(f)(1). [FN415]. See id. 3(f)(2). [FN416]. See id. 3(i). [FN417]. Id. 9. [FN418]. Among the OMB's sources of leverage are its control over agency budgets and staffing levels, its right to disapprove an agency's programs of information collection, and its power to clear agency requests for new legislation. Moreover, OMB's power under Executive Order 12,291 to delay the proposal or adoption of rules (conceivably indefinitely) pending its own review was itself a significant sanction over an agency eager to finish a piece of regulatory business. See Joseph Cooper & William F. West, Presidential Power and Republican Government: The Theory and Practice of OMB Review of Agency Rules, 50 J.Pol. 864, 874, 876 (1988). [FN419]. Exec. Order No. 12,291, supra note 404. Subsequently, Executive Order 12,498 measurably strengthened Executive Order 12,291 in its restraint of the agencies by requiring them to prepare annual agendas of their ongoing and projected rulemaking activities for the year, to demonstrate their conformity with the administration's regulatory principles and, most important, to secure OMB approval of any agenda item before undertaking rulemaking activities with respect to it. See Exec. Order No. 12,498, 50 Fed.Reg. 1036 (1985). Executive Order 12,498 was designed to identify unnecessary federal interventions at an early enough stage to avoid the investment of resources normally made, and the raised expectations normally created, by the time a proposed rule has already been formulated. The Order thus sought to avert regulatory faits accomplis. See OMB, Regulatory Program, 1987-1988, supra note 371, at xiii. Executive Order 12,498 in effect gave OMB a veto over the agency's individual regulatory agenda items, which is more than Executive Order 12,291 gave OMB over proposed or final rules. A regulatory action omitted from the approved Regulatory Program, or materially different from the one described in the Program, could not (subject to certain narrow exceptions) be undertaken without OMB's express approval. As in the case of other Executive Orders that empower OMB, disputes between
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OMB and an executive agency could be brought to the President for resolution. Executive Order 12,498 was, along with Executive Order 12,291, repealed in September 1993 by President Clinton, and replaced with a new comprehensive Executive Order on regulatory planning and review, No. 12,866. See infra note 456. [FN420]. See generally Cooper & West, supra note 418. [FN421]. Exec. Order No. 12,372, 3 C.F.R. 197 (1982 Comp.). [FN422]. Id. preamble. [FN423]. See id. 2(d). [FN424]. See id. 2(c). [FN425]. Exec. Order No. 12,612, 3 C.F.R. 252 (1987). The Order grew out of a recommendation by a federal interagency task force (The Working Group on Federalism) created in 1985 by President Reagan's Domestic Policy Council. [FN426]. See infra notes 447-454 and accompanying text. [FN427]. Exec. Order No. 12,612, supra note 425, preamble. The Office of Management and Budget, which has chief responsibility for implementing Executive Order 12,612, expressed the idea behind the Order as follows: Government works best when decisionmaking responsibilities are placed at the lowest possible level. Important decisions affecting people should be made by those closest to the problem. Moreover, responsiveness to local preferences and conditions is best assured by providing local institutions with authority and responsibility for action. OMB, Regulatory Program 1988-1989, supra note 287, at 26. More specifically, OMB cites a tendency of [the] Federal government . . . to ignore or disregard State law in the accomplishment of a Federal objective. Id. at 30. [FN428]. Exec. Order No. 12,612, supra note 425, 1(a). States is defined as States of the United States of America, individually or collectively, and, where relevant, . . . State governments, including units of local government and other political subdivisions established by the States. Id. 1(b). [FN429]. See id. 2(a). Federalism is claimed to promote political liberty by limiting the size and scope of the national government. [FN430]. The people of the States are claimed by the Order to be basically free to define the moral, political, and legal character of their lives. Id. 2(d). Federal authorities are accordingly urged to encourage individuals, families, neighborhoods, local governments, and private associations to achieve their personal, social and economic objectives through cooperative effort. Id. 2(h). [FN431]. The nature of our constitutional system encourages a healthy diversity in the public policies adopted by the people of the several States according to their own conditions, needs, and desires [and leaves] individual States and communities . . . free to experiment with a variety of approaches to public issues. Id. 2(f). [FN432]. See id. 2(b), (c), (g). For the text of the Tenth Amendment, see supra note 139. [FN433]. Id. 2(e). [FN434]. Id. 2(i). Moreover, [u]ncertainties regarding the legitimate authority of the national government should be resolved against regulation at the national level. Id.
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[FN435]. Id. 3(b)(1). [FN436]. Id. [FN437]. Id. 3(a). The Order adds that, where practicable, the States should be consulted before any such action is taken, presumably in part to help in assessing the necessity of federal action. When action within the federal sphere would limit the policymaking discretion of the States, it should be undertaken only if national activity is necessitated by the presence of a problem of national scope. Id. 3(b). [FN438]. Id. 3(d)(1). The Order also addresses state administration of federal law. Federal authorities are told to grant the States the maximum administrative discretion possible. Id. 3(c). [FN439]. Id. 3(d)(2). When national standards are nonetheless required, agencies are told to consult with appropriate state officials in developing them. Id. 3(d)(3). Executive Order 12,612 does not by its terms address the question of federal agency preemption of state law. It is clear from the tenor of the Order, however, that agency preemption is disfavored. This particular point was actually made explicit in a Report by the Presidential Task Force on Regulatory Relief (Aug. 11, 1983), setting out ten general guidelines to the agencies for implementing Executive Order 12,291. According to one of the guidelines, [f]ederal regulations should not preempt State laws or regulations, except to guarantee rights of national citizenship or to avoid significant burdens on interstate commerce. The Report is discussed in OMB, Regulatory Program, 1987-1988, supra note 371, at 16-23. [FN440]. Exec. Order No. 12,612, supra note 425, 6(b). Each executive department and agency is supposed to appoint an official responsible for ensuring implementation of the Executive Order and, more particularly, for determining which proposed policies have sufficient federalism implications to warrant preparation of a Federalism Assessment. See id. 6(a), 6(b). [FN441]. See id. 6(c). The reference to traditional state governmental functions is an allusion to National League of Cities v. Usery, 426 U.S. 833 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). See supra notes 334-340 and accompanying text. [FN442]. See Exec. Order No. 12,612, supra note 425, 6(b), 6(c). [FN443]. Id. 8. [FN444]. Cost-benefit analysis is not an exact science; instead, its conclusions typically rest on a variety of more or less discretionary judgments. Cooper & West, supra note 418, at 878. [FN445]. Since 1981, OMB has published annual reports listing every agency rule returned by OMB to an agency for further consideration, or modified or withdrawn as a result of OMB review under Executive Order 12,291. OMB has also, pursuant to Executive Order 12,498, supra note 419, published an Annual Regulatory Program of the United States Government, beginning with the year April 1, 1985-March 31, 1986. OMB reported in its 1986-1987 Program that, of the rules reviewed in that period, OMB approved 68.3%. 22.9% were modified by the agency following OMB review, 2.8% were withdrawn by the agency, and 1.4% were simply returned to the agency for reconsideration as inconsistent with the Administration's regulatory policy. (The remaining 4.5% were either found to be exempt from review or returned to the agency on formal grounds.) As of the end of 1986, OMB had reviewed a total of 5,900 proposed rules and 8,200 final rules under Executive Order 12,291. See OMB, Regulatory Program, 1987-1988, supra note 371. OMB also interprets the apparent decline since 1981 in the number of rules proposed annually, and the reduction in their scope and ambitiousness, as evidence of OMB influence. (OMB reported that in 1986 the number of pages in the Federal Register declined to the lowest level since 1974). See id. at 626-27. Overall, OMB claims that Executive
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Order 12,291 has held the number of new rules to the minimum necessary, . . . revised ill-conceived ones, . . . and imposed long needed discipline on the rulemaking process. Hearings before the Governmental Affairs Subcommittee, 1986, at 227. For further favorable evaluation by OMB of its own review efforts, see OMB, Regulatory Program, 1987-88, supra note 371, at xlix. [FN446]. As Cooper and West note: In general, E.O. 12291 has been an effective means of identifying, evaluating, and influencing those agency policies most important to the president and his key constituencies. It is true, of course, that oversight has not been comprehensive, given the small size of [the OMB] staff . . . and the large number of rules submitted for review each year. . . . Yet the Reagan order has evoked a diffuse but effective set of mechanisms for bringing especially significant and/or politically troublesome rules to the attention of administration officials . . . . Typically OMB has been able to achieve its key policy goals through a combination of pressure and delay. Cooper & West, supra note 418, at 77. Cooper and West thus conclude that the OMB statistics show the Executive Orders, particularly 12,291, to have been very effective. They cite the significant number of rules disapproved by OMB and modified accordingly, the importance of those particular rules, and the trend over time toward greater rates of disapproval and modification. They also argue, but of course cannot easily prove, that the Orders have an effect by way of anticipation. In other words, the agencies arguably formulate and adopt rules with the prospect of OMB review and objections in mind. See id. at 875-76. A report by Congress' Legislative Research Service concludes as follows: Taken together, Executive Orders 12291 and 12498 provide the President, through OMB, with a formidable apparatus to significantly influence, if not effectively control, regulatory decisionmaking of covered agencies at all stages of the rule formulation and development process. Rosenberg, supra note 399, at 210. The U.S. Advisory Commission on Intergovernmental Relations is much less positive in its assessment of the Orders. President Reagan's election, the creation of the Presidential Task Force on Regulatory Relief, and the new rulemaking procedures associated with Executive Order 12291 did not alter the fundamental dynamics of the policymaking process. ACIR, Mixed Record, supra note 289, at 27. [FN447]. OMB also has issued no guidelines to the agencies concerning their performance of Federalism Assessments. [FN448]. [T]he executive order requirements are commonly given perfunctory treatment by federal regulatory agencies. ACIR, Mixed Record, supra note 289, at 35. [FN449]. The other regular section headings for each initiative in the annual regulatory program are Problem to Be Solved, Approach, Changes in Policy and Timing, Currently Projected Costs and Benefits, Next Steps, and Agency Contact. [FN450]. Executive Office of the President, Regulatory Program of the United States Government 1992-1993, at 344. [FN451]. Id. at 608. [FN452]. Id. at 372. [FN453]. An example of a Federalism Assessment that is silent about regulatory alternatives at the state and local level is the following: The problem of head injuries due to vehicle interior contacts is fairly large. Injury reductions are possible if structures capable of cushioning head impacts in crashes are developed. A variety of factors, including the belief that certain modifications may not have consumer appeal, prevent manufacturers from readily making safety improvements without Federal regulation. Id. at 385. [FN454]. ACIR, Mixed Record, supra note 289, at 2.
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[FN455]. See id. at 33 (the Order changed the nature of internal debate). [FN456]. Exec. Order No. 12,866, 58 Fed.Reg. 51,735 (1993). For an informal account of the new Order, see John F. Cooney, Regulatory Review in the Clinton Administration, Admin. L. News, Fall 1993, at 1. [FN457]. The heart of the Order, as of its predecessors, is the mandatory conduct of agency cost-benefit analyses, OMB review of such analyses, the mandatory preference for the least burdensome regulatory alternatives (assuming some form of regulation is in fact necessary), and an agency-by-agency regulatory agenda. Newer elements in the Order include the requirement of openness and accessibility in the regulatory review process, the creation of opportunities for consultation in the planning mechanism, a systematic review of existing regulations, and the commitment of principal oversight authority to the Vice President. See Exec. Order No. 12,866, supra note 456. [FN458]. The American people deserve . . . regulatory approaches that respect the role of State [and] local . . . governments. Id. preamble. [FN459]. See id. 4 (e) (requiring quarterly meetings to identify both existing and proposed regulations that may uniquely or significantly affect those governmental entities). State and local governments are also specifically encouraged to assist OMB in identifying existing regulations that impose significant or unique burdens on them and that may no longer be justified. See id. 5(b). [FN460]. See id. 6 (a)(1). [FN461]. Section 1 (b)(9) reads: Wherever feasible, agencies shall seek views of appropriate State, local, and tribal officials before imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal regulations on State, local, and tribal governments, including specifically the availability of resources to carry out those mandates, and seek to minimize those burdens that uniquely or significantly affect such governmental entities, consistent with achieving regulatory objectives. Id. 1(b)(9). [FN462]. However, section 6 (a)(3)(B)(ii) requires agencies to provide OMB, in the case of all significant proposed rules, with an assessment of how the proposal avoids undue interference with State, local, and tribal governments in the exercise of their governmental functions. Id. 6(a)(3)(B)(ii). It remains to be seen not only how serious this assessment will have to be, but also whether the notion of undue interference will include erosion of state and local government policymaking freedom. [FN463]. See Exec. Order No. 12,291, supra note 404; Exec. Order No. 12,498, supra note 419. [FN464]. Justice Antonin Scalia has observed that subsidiarity is not a principle of law in the United States, but at most a desideratum of policy. (Emphasis omitted). He finds that, even as a mere aspiration rather than a legal rule, subsidiarity deserve[s] a place alongside such other unquestionably true and indubitably unhelpful propositions as do good and avoid evil and buy low and sell high. Scalia, supra note 295. [FN465]. See National League of Cities v. Usery, 426 U.S. 833, 852 (1976), overruled by Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). [FN466]. See New York v. United States, 112 S.Ct. 2408, 2428 (1992). [FN467]. See supra notes 315, 382-398 and accompanying text. [FN468]. See supra notes 383-398 and accompanying text. See generally Zimmerman, supra note 190, at 15-16 (comparing states' favorable response to Reagan-era shift away from federal regulation to states' fiscal objections to
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the same). [FN469]. See supra note 225. [FN470]. See generally Edmund W. Kitch, Regulation and the American Common Market in Regulation, Federalism and Interstate Commerce 9, 12-13 (A. Dan Tarlock ed., 1981). For an extended discussion of a federalism formula based on the spillover effects of state regulation on other states, see Pierce, supra note 292, at 646-61. OMB acknowledges that severe negative spillover from state regulation of an exclusively local problem may justify federal intervention: At the same time, Federal regulation may be justified, even when the object of regulation is exclusively local, if the benefits of regulation are primarily local but the costs fall disproportionately on citizens of other States. In such cases States have incentives to be too restrictive. OMB, Regulatory Program, 1988-1989, supra note 287, at 21. [FN471]. For an attempt to consider the full range of relevant considerations, and still develop presumptions in favor of either state or federal regulation according to the type of regulation involved, see Susan Bartlett Foote, Beyond the Politics of Federalism: An Alternative Model, 1 Yale J. on Reg. 217 (1984). [FN472]. OMB, Regulatory Program, 1988-1989, supra note 287, at 21. According to OMB, however, a mere linkage to interstate commerce is insufficient to overcome the preference for state action: It is not a sufficient case for Federal regulation that the object of regulation is part of interstate commerce. Id. [FN473]. See Making Sense, supra note 21, at 2-6. [FN474]. See supra notes 256-274 and accompanying text. [FN475]. Wechsler, supra note 288, at 451. [T]he national political process in the United Statesand especially the role of the state in the composition and selection of the central governmentis intrinsically well adapted to retarding or restraining new intrusions by the center on the domain of the states. See id. at 543. [FN476]. See supra notes 262-267 and accompanying text. [FN477]. See supra notes 259-261 and accompanying text. [FN478]. See supra note 268 and accompanying text. [FN479]. See supra notes 269-271 and accompanying text. [FN480]. See supra notes 272-273 and accompanying text. [FN481]. See supra note 275 and accompanying text. [FN482]. Another such result is that the efficacy of Community law in Europe continues to depend on the efficacy of Member State administrations and courts. [FN483]. See supra notes 345-351 and accompanying text. For a comparison between the attitudes toward commandeering in the United States and the Community, see James E. Pfander, Permissible Directives in Europe and Unlawful Conscriptions in the United States (forthcoming 1994). Pfander predicts increasing disquiet in Europe over the use of directives as a source of unfunded mandates. See id. at 81. [FN484]. See supra note 8. [FN485]. See Koopmans, supra note 275, at 1050 (arguing that the important thing is probably not to abolish States
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or to replace old States by new States, but to devise levels of coordinate government). 94 Colum. L. Rev. 331 END OF DOCUMENT

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J.C. & S.L. 2009, 14(2), 265-308 (Cite as: )

2012 Thomson Reuters.

J.C. & S.L. 2009, 14(2), 265-308 (Cite as: )

2012 Thomson Reuters.

J.C. & S.L. 2009, 14(2), 265-308 (Cite as: )

2012 Thomson Reuters.

J.C. & S.L. 2009, 14(2), 265-308 (Cite as: )

2012 Thomson Reuters.

J.C. & S.L. 2009, 14(2), 265-308 (Cite as: )

2012 Thomson Reuters.