The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism. CEPS Paperbacks. November 2013

This study examines the protection of fundamental rights, democracy and rule of law in the European Union, and the challenges that arise in reflecting on ways to strengthen EU competences in these contested terrains. It provides a ‘state of play’ and critical account of EU-level policy and legal mechanisms assessing the relationship between rule of law, democracy and fundamental rights in the member states of the Union. The cross-cutting challenges affecting their uses, effective implementation and practical operability constitute a central point of the analysis. The study argues that the relationship between rule of law, democracy and fundamental rights is co-constitutive. Any future rule of law-related policy discussion in the EU should start from an understanding of the triangular relationship between these dimensions from the perspective of ‘democratic rule of law with fundamental rights’, i.e. the legally based rule of a democratic state that delivers fundamental rights. The three criteria are inherently and indivisibly interconnected, and interdependent on each of the others, and they cannot be separated without inflicting profound damage to the whole and changing its essential shape and configuration.

Egypt and the EU: where next? CEPS Commentary, 4 November 2013

EU diplomats are still struggling to keep abreast of events in Egypt. A reconstruction of the police state – bankrolled by Saudi Arabia, Kuwait and the UAE – is the exact opposite of what the EU tried to achieve under the Presidency of Mohamed Morsi, namely long-term stability based on respect for democracy and the rule of law. It is therefore perhaps surprising that the EU has so far not imposed any sanctions against members of the military regime led by General al-Sisi. Instead, it is trying to build an inclusive political dialogue to restore a democratic process. Is this what the EU should do? The answer is, quite plainly, ‘Yes’– at least for the moment.

Bringing South Caucasus Closer to Europe: Achievements and Challenges in ENP Implantation. Natolin Research Paper 03/March 2011

While the initial Commission Communication on Wider Europe (March 2003) did not include Armenia, Georgia and Azerbaijan in the forthcoming policy for the EU’s new neighbourhood, the Southern Caucasus region has now gained considerable attention in the framework of the ENP and beyond, not least because of security considerations. The ENP undoubtedly represents a step forward in the EU’s policy towards Armenia, Azerbaijan and Georgia, yet its implementation highlights major differences between the three countries and important weaknesses in all three of them. The Eastern Partnership addresses some of these weaknesses and it also significantly strengthens the EU’s offer to South Caucasus countries, which is now fully in line with the perspectives proposed to the Western NIS. The paper highlights five main conclusions and recommendations: • Political, economic, social and diplomatic developments in the South Caucasus in the 2000's highlight both diverging trends and the persistence of tensions between the three countries. They also have different aspirations vis-à-vis the EU and different records in ENP implementation. The EU should therefore mainly rely upon an individual approach towards each country. • While bilateral relations should form the basis of the EU's approach, most of the challenges faced by Georgia, Armenia and Azerbaijan are not confined to national borders and require regional solutions. This applies primarily, but not exclusively, to the unresolved conflicts. The EU should promote targeted regional cooperation including, inter alia, confidence-building measures to address indirectly the protracted conflicts and measures supporting drivers of change, which play a critical role in the confidence-building process; • Under the ENP, especially since the opening of negotiations for association agreements and with the perspective of DCFTA, trade-related issues, market and regulatory reform have become prominent in the EU's relations with all three Caucasus countries. At the same time, the priorities identified when the ENP was launched, i.e. good governance and the rule of law, still correspond to major challenges in the South Caucasus. The EU should more clearly prioritise good governance and the rule of law as the basis of both the ENP and successful reforms; • In all partner countries (but even more so in the South Caucasus), ENP implementation has been adversely affected by poor administrative capacities and weak institutional coordination. The EU should increasingly focus on institutional reform/capacity building in its support to partner countries and ensure that the link between the ENP and domestic reform processes is strengthened; • In the South Caucasus the EU has recently concentrated on a few assistance tools such as budget support, Twinning and TAIEX. While these instruments undoubtedly bring an added value, they should be better combined with tools allowing for greater flexibility and targeting non-governmental actors, e.g. EIDHR/NSA.

Citizenship Deprivation: A Normative Analysis. Liberty and Security in Europe No. 82, 19 March 2015

Most critical analyses assess citizenship-deprivation policies against international human rights and domestic rule of law standards, such as prevention of statelessness, non-arbitrariness with regard to justifications and judicial remedies, or non-discrimination between different categories of citizens. This report considers instead from a political theory perspective how deprivation policies reflect specific conceptions of political community. We distinguish four normative conceptions of the grounds of membership in a political community that apply to decisions on acquisition and loss of citizenship status: i) a ‘State discretion’ view, according to which governments should be as free as possible in pursuing State interests when determining citizenship status; ii) an ‘individual choice’ view, according to which individuals should be as free as possible in choosing their citizenship status; iii) an ‘ascriptive community’ view, according to which both State and individual choices should be minimised through automatic determination of membership based on objective criteria such as the circumstances of birth; and iv) a ‘genuine link’ view, according to which the ties of individuals to particular States determine their claims to inclusion and against deprivation while providing at the same time objections against including individuals without genuine links. We argue that most citizenship laws combine these four normative views in different ways, but that from a democratic perspective the ‘genuine link’ view is normatively preferable to the others. The report subsequently examines five general grounds for citizenship withdrawal – threats to public security, non-compliance with citizenship duties, flawed acquisition, derivative loss and loss of genuine links – and considers how the four normative views apply to withdrawal provision motivated by these concerns. The final section of the report examines whether EU citizenship provides additional reasons for protection against Member States’ powers of citizenship deprivation. We suggest that, in addition to fundamental rights protection through EU law and protection of free movement rights, three further arguments could be invoked: toleration of dual citizenship in a political union, prevention of unequal conditions for loss among EU citizens, and the salience of genuine links to the EU itself rather than merely to one of its Member States.

The EU, China and Southeast Asia: Divergent Views of Dealing with Human Security. Jean Monnet/Robert Schuman Paper Series Vol. 14 No. 8, May 2014

Introduction. This chapter takes a closer look at the European Union (EU), China, and the Association of Southeast Asian Nations (ASEAN)’s respective approaches to dealing with non-traditional security (NTS) challenges by investigating their policies toward Burma/Myanmar—a source country of numerous such challenges. It argues that, although all, as members of the ASEAN Regional Forum (ARF), see the need for multilateral solutions to fight organized crime, provide disaster relief, combat terrorism, prevent drug trafficking, etc., they differ with respect to the steps to be taken to protect human security in Asia-Pacific. China, initially hesitant to join the ARF for fear that other members might try to contain it, has come to value the principal forum for NTS challenges in the Asia-Pacific region since, like many ASEAN countries, it is a big proponent of non-interventionism, non-use of force, consensus decision-making, that is, the confidence-building mechanisms commonly referred to as the ‘ASEAN way’.2 The EU, as a strong proponent of human rights and the rule of law, repeatedly, has criticized ARF members for allowing sovereignty-related norms to get in the way of the protection of human rights, but it has refrained from assuming the role of norm exporter. As will be seen in the case of Burma/Myanmar, the EU does make its opinions heard and, when necessary, will take unilateral steps not supported by the ASEAN members of the ARF but, cognizant of the history of the region, for the most part, settles for supporting economic development and aiding in capacity-building, understanding that it would be counter-productive to exert pressure on reluctant ARF members to modify the non-interference norm. The chapter then speculates about the ‘ASEAN way’s’ longevity, arguing that, increasingly, there are internal and external dynamics that seem to indicate that the ‘ASEAN way,’ at least in its current form, may not be here to stay. The conclusion looks at what might be in store for Burma/Myanmar in the years to come.

Can the new refugee relocation system work? Perils in the Dublin logic and flawed reception conditions in the EU. CEPS Policy Brief No. 332, October 2015 Thursday, 1 October 2015

This Policy Brief argues that the newly adopted EU temporary relocation (quota) system constitutes a welcome yet timid step forward in addressing a number of central controversies of the current refugee debate in Europe. Two main challenges affect the effective operability of the new EU relocation model. First, EU member states’ asylum systems show profound (on-the-ground) weaknesses in reception conditions and judicial/administrative capacities. These prevent a fair and humane processing of asylum applications. EU states are not implementing the common standards enshrined in the EU reception conditions Directive 2013/33. Second, the new relocation system constitutes a move away from the much-criticised Dublin system, but it is still anchored to its premises. The Dublin system is driven by an unfair and unsustainable rule according to which the first EU state of entry is responsible for assessing asylum applications. It does not properly consider the personal, private and family circumstances or the preferences of asylum-seekers. Policy Recommendations In order to respond to these challenges, the Policy Brief offers the following policy recommendations: The EU should strengthen and better enforce member states’ reception capacities, abolish the current Dublin system rule of allocation of responsibility and expand the new relocation distribution criteria to include in the assessment (as far as possible) asylum-seekers’ preferences and personal/family links to EU member states. EU member countries should give priority to boosting their current and forward-looking administrative and judicial capacities to deal and welcome asylum applications. The EU should establish a permanent common European border and asylum service focused on ensuring the highest standards through stable operational support, institutional solidarity across all EU external borders and the practical implementation of new distribution relocation criteria.

EU-Iran Relations after the Nuclear Deal.

The signing of the Joint Comprehensive Plan of Action between Iran and global powers in July 2015 was a major turning point in the emerging strategic landscape of the Middle East. The ‘nuclear deal’ led to the lifting by the EU and the US of nuclear-related sanctions, and is now operational. Other sanctions remain in place, however. Nevertheless, unhindered by US competition, European trade delegations have entered into a latter-day gold rush, led by the promise of the biggest untapped market in the world. As such, the EU has both an opportunity and a responsibility to help Iran reintegrate properly into the international system. But, in the face of an opaque clerical regime that relies on internal repression and military business conglomerates, Europe stands to lose if it continues to pursue its uncalculated and uncoordinated approach towards the Islamic Republic. This report offers recommendations to guide the EU towards a comprehensive EU strategy for relations with Iran. It maintains that there is no other option but to keep universal values and the rule of law at the core of the emerging bilateral relationship. In fact, the protection of the economic rights of European traders and investors allows the EU to push for wider reforms and the normalisation of relations.

A constitution for Erdoğan. Consequences of the political conflict in Turkey. OSW COMMENTARY No. 213, 2016-06-01

Since mid-2015 Turkey has been affected by a deep internal crisis, caused by rising political polarisation, increased levels of terrorist threat (posed by the Kurds and Islamic radicals) and the revived conflict with the Kurdistan Workers’ Party (PKK). As a consequence of this crisis, over 350,000 residents of south-eastern Turkey have been forced to leave their homes. At the same time, due to the migration crisis and despite mutual distrust in relations between Turkey and the EU, cooperation between Ankara and Brussels has been intensifying. Turkey’s ongoing destabilisation does not challenge the status of the ruling Justice and Development Party (AKP), which is de facto controlled by President Recep Tayyip Erdoğan; paradoxically, it strengthens the party. The internal crisis which the authorities have been deliberately fuelling is an element of a plan to rubber-stamp political change by introducing a presidential system of government. This is happening amid a thorough reconstruction of the socio-political order which has been underway for over a decade. In the upcoming months it is expected to result in the constitution being changed and, as a consequence, the institutionalisation of Erdoğan’s autocratic rule.

In a state of necessity. How has Orban changed Hungary. OSW Point of View Number 41, April 2014

Viktor Orban’s sweeping victory in the 2010 election ensured his party, Fidesz, a constitutional two-thirds majority in parliament. The party took over the rule of the country from the discredited political left when Hungary was plunged in political and economic crisis. Claiming that the circumstances were unusual and that it had a strong electoral mandate, Fidesz introduced radical changes in the country and thus challenged the previous economic and political order. These changes have led to an unprecedented concentration of power and provoked a discussion on the limits of democracy and the rule of law in the European Union. The state’s economic role has strengthened. The Orban government has been unable to overcome economic stagnation but it has managed to stabilise Hungary’s budget situation, which needs to deal with the high debt. Hungary’s relations with most partners in the EU and NATO have cooled due to controversial moves made by its government. As regards foreign policy and economic co-operation, Orban has granted high priority to the ‘Eastern opening’, where Russia has assumed the leading role.

The EU-Ukraine Action Plan on Visa Liberalisation: an assessment of Ukraine's readiness. OSW Commentary No. 45, 2011-01-17

The Action Plan on visas adopted during the recent EU-Ukraine summit is a success for Ukraine. It is the first time that Kyiv has succeeded in obtaining a definition of the conditions and criteria whose fulfilment will enable Ukraine to apply for the lifting of EU visas for its citizens. Ukraine's strong point has been its political will; the lifting of this visa regime has been a priority for all Ukrainian governments since 2005. Since Viktor Yanukovych became president, Ukraine has adopted or prepared key legal acts that brought it nearer to European standards in the area of border and migration management. One of Kyiv's strengths is also its relatively well reformed and efficiently managed border service. Moreover, illegal transit migration via Ukraine is decreasing, and fewer Ukrainians are trying to enter or stay in the EU illegally. Also, Kyiv has efficiently implemented the EU-Ukraine readmission agreement. The hardest task for Ukraine will be to meet the EU’s expectations concerning values, the condition of Ukrainian democracy, and the rule of law. Corruption remains the main barrier to Ukraine's development and modernisation; the courts are weak and the judicial system inefficient. The main undertaking of the new migration service that is being formed at the moment will be to create a civil system of registration, monitoring and regulating the stays of foreign nationals. This may prove difficult, as the supervisory authority (the Ministry of the Interior) remains an unreformed, police-type bureaucratic institution. Ukraine is lagging behind countries such as Russia, Belarus and Moldova when it comes to the introduction of biometric documents. Another problem is the lack of an electronic information system on foreign nationals, visas and border crossings which would be accessible to all the relevant services and institutions. For these reasons, the complete abolition of visas seems to be a longterm perspective, especially considering that many EU countries, which themselves are faced with the problem of migrants’ integration, are rather sceptical about the further liberalisation of movement of people with their eastern neighbours. In the immediate future, if Ukraine meets some of the requirements set by the EU, it will be able to seek the extension of the visa facilitations that have been in operation since 2008.