The Judicial Dimension of the European Neighbourhood Policy. EU Diplomacy Paper 08/2013, November 2013

In this paper, the expression “neighbourhood policy” of the European Union (EU) is understood in a broad way which includes the members of the European Free Trade Association (EFTA) contracting parties to the European Economic Area (EEA), the EFTA State Switzerland, candidate states, the countries of the European Neighbour-hood Policy (ENP), and Russia. The European Court of Justice (ECJ) is the centre of gravity in the judicial dimension of this policy. The innermost circle of integration after the EU itself comprises the EFTA States who are party to the European Economic Area. With the EFTA Court, they have their own common court. The existence of two courts – the ECJ and the EFTA Court – raises the question of homogeneity of the case law. The EEA homogeneity rules resemble the ones of the Lugano Convention. The EFTA Court is basically obliged to follow or take into account relevant ECJ case law. But even if the ECJ has gone first, there may be constellations where the EFTA Court comes to the conclusion that it must go its own way. Such constellations may be given if there is new scientific evidence, if the ECJ has left certain questions open, where there is relevant case law of the European Court of Human Rights or where, in light of the specific circumstances of the case, there is room for “creative homogeneity”. However, in the majority of its cases the EFTA Court is faced with novel legal questions. In such cases, the ECJ, its Advocates General and the Court of First Instance make reference to the EFTA Court’s case law. The question may be posed whether the EEA could serve as a model for other regional associations. For the ENP states, candidate States and Russia this is hard to imagine. Their courts will to varying degrees look to the ECJ when giving interpretation to the relevant agreements. The Swiss Government is – at least for the time being – unwilling to make a second attempt to join the EEA. The European Commission has therefore proposed to the Swiss to dock their sectoral agreements with the EU to the institutions of the EFTA pillar, the EFTA Surveillance Authority (ESA) and the EFTA Court. Switzerland would then negotiate the right to nominate a member of the ESA College and of the EFTA Court. The Swiss Government has, however, opted for another model. Swiss courts would continue to look to the ECJ, as they did in the past, and conflicts should also in the future be resolved by diplomatic means. But the ECJ would play a decisive role in dispute settlement. It would, upon unilateral request of one side, give an “authoritative” interpretation of EU law as incorporated into the relevant bilateral agreement. In a “Non-Paper” which was drafted by the chief negotiators, the interpretations of the ECJ are even characterised as binding. The decision-making power would, however, remain with the Joint Committees where Switzerland could say no. The Swiss Government assumes that after a negative decision by the ECJ it would be able to negotiate a compromise solution with the Commission without the ECJ being able to express itself on the outcome. The Government has therefore not tried to emphasise that the ECJ would not be a foreign court. Whether the ECJ would accept its intended role, is an open question. And if it would, the Swiss Government would have to explain to its voters that Switzerland retains the freedom to disregard such a binding decision and that for this reason the ECJ is not only no foreign court, but no adjudicating court at all.

Climate Conundrums at High Altitude. EU Diplomacy Paper 01/2014, January 2014

The European Union (EU) was the frontrunner for the establishment of the world’s first multinational emissions trading scheme (ETS). Committed to combating climate change, the EU sought to overcome the multilateral paralysis within the International Civil Aviation Organization (ICAO) to mitigate aviation emissions. Unsuccessful in pushing for a global market-based measure (MBM) within the organisation, the EU was ready for take-off to include the sector in the EU emissions trading system (EU ETS). The geographical scope, however, including all flights from and to Europe in their entire trajectory, caused frictions with the international community about sovereignty issues. Ultimately, Climate Commissioner Connie Hedegaard announced a ‘stop-the-clock’ for international flights, a temporary derogation until the 2013 ICAO Assembly in order to find a global agreement. The ’stop-the-clock’ initiative provides ample opportunity to analyse EU leadership in curbing aviation emissions based on an analytical framework specifying different types of leadership. Its shows the global challenge to the EU’s claim of structural leadership on various levels in and beyond ICAO. The paper aims to analyse to what extent the EU is a global leader in mitigating aviation emissions and to identify the kind of EU leadership according to a threefold analytical framework. In addition, it will factor in the 'stop-the-clock' initiative and to what extent it altered the perception of EU leadership in the field. The paper comes to the conclusion that EU leadership in mitigating aviation emissions is not stalling. On the contrary, the EU, by pursuing the extension of the EU ETS, has put aviation emissions on everybody’s radar – and thus showed idea-based leadership. Proving the scheme’s feasibility further underlined EU leadership, in the form of directional leadership. The 'stop-the-clock' decision, however, already indicated what was later on confirmed in the 38th ICAO Assembly: Unilateral structural leadership of the EU in the field of aviation emissions is not credible at the moment.

To Be or Not to Be a Normative Power: The EU’s Promotion of Human Rights and Democracy in Russia. Bruges Regional Integration & Global Governance Papers 2/2013

The ‘Normative Power Europe’ debate has been a leitmotif in the academic discourse for over a decade. Far from being obsolete, the topic is as relevant as when the term was first coined by Ian Manners in 2002.1 ‘To be or not to be a normative power’ is certainly one of the existential dilemmas in the foreign policy of the European Union. This paper, however, intends to move beyond the black-and-white debate on whether the European Union is a normative power and to make it more nuanced by examining the factors that make it such. Contrary to the conventional perception that the European Union is a necessarily ‘benign’ force in the world, it assumes that it has aspirations to be a viable international actor. Consequently, it pursues different types of foreign policy behaviour with a varying degree of normativity in them. The paper addresses the question of under what conditions the European Union is a ‘normative power’. The findings of the study demonstrate that the ‘normative power’ of the European Union is conditioned upon internal and external elements, engaged in a complex interaction with a decisive role played by the often neglected external elements.

The European Union and the Arms Trade Treaty: An Analysis of the EU’s Effectiveness in Multilateral Security Governance. Bruges Regional Integration & Global Governance Papers 3/2013

This paper examines the participation of the European Union (EU) in the multilateral negotiations of the UN Arms Trade Treaty (ATT). Given the EU’s declared commitment to effective multilateralism and dedication to act as a global security provider, the paper analyses to what extent the EU can be seen as an effective actor in supporting and promoting the ATT. It is argued that overall the EU was an effective player during the multilateral negotiations on the ATT, but the degree of its effectiveness varied along different dimensions. The EU was relatively successful in the achievement of its goals and in maintaining external cohesion during the negotiations, but it scored relatively low in its efforts to commit other major players to sign up to the ATT. The high level of institutional cooperation and the convergence of EU member states’ interests facilitated the EU’s effectiveness in the ATT negotiations, whereas the international context proved to be the major constraining factor.

Making Autonomies Matter: Sub-State Actor Accommodation in the Nordic Council and the Nordic Council of Ministers - An Analysis of the Institutional Framework for Accommodating the Faroe Islands, Greenland and Åland within ‘Norden’. EDAP Paper 03/2014

Sovereign powers are not absolute but exercised in varying areas and to varying degrees by sub-state, state and supra-state entities. The upward dispersion of power to international organisations carries implications for the sub-state level, while sub-state governance poses demands as to the conduct of governance at the international level. It is well recognised that sub-state entities, such as federal states and autonomies, may have the (restricted) capacity to enter into international relations. But what capacities do international organisations have to accommodate autonomies in their institutional frameworks? This paper shall present a case study of one such framework, namely Nordic co-operation and the accommodation of the Nordic autonomies, the Faroe Islands, Greenland and Åland, within its institutional framework. Within ‘Norden’, the position of autonomies has been scrutinised and adapted on several occasions, in the late 1960s, early 1980s and in the mid-2000s. The accommodation of the autonomies has been discussed in light of evident implications of statehood and international legal personality and the institutional arrangements eventually carved serve well to illustrate the challenges and opportunities international organisations face in the attempt to accommodate multi-level systems.

Shifting Between Hegemony and Dominance? A Neo-Gramscian Analysis of the EU as a Structural Foreign Policy Actor: The Singular Case of the Cariforum-EU Economic Partnership Agreement. Bruges Regional Integration & Global Governance Paper 01/2014

The groundbreaking scope of the Economic Partnership Agreement (EPA) between the European Union (EU) and Cariforum (CF) irrefutably marks a substantive shift in trade relations between the regions and also has far-reaching implications across several sectors and levels. Supplementing the framework of analysis of Structural Foreign Policy (SFP) with neo-Gramscian theory allows for a thorough investigation into the details of structural embeddedness based on the EU's historic directionality towards the Caribbean region; notably, encouraging integration into the global capitalist economy by adapting to and adopting the ideals of neoliberal economics. Whilst the Caribbean – as the first and only signatory of a ‘full’ EPA – may be considered the case par excellence of the success of the EPAs, this paper demonstrates that there is no cause-effect relationship between the singular case of the ‘full’ CF-EU EPA and the success of the EPA policy towards the ACP in general. The research detailed throughout this paper responds to two SFP-based questions: (1) To what extent is the EPA a SFP tool aimed at influencing and shaping the structures in the Caribbean? (2) To what extent is the internalisation of this process reflective of the EU as a hegemonic SFP actor vis-à-vis the Caribbean? This paper affirms both the role of the EU as a hegemonic SFP actor and the EPA as a hegemonic SFP tool. Research into the negotiation, agreement and controversy that surrounds every stage of the EPA confirmed that through modern diplomacy and an evolution in relations, consensus is at the fore of contemporary EU-Caribbean relations. Whilst at once dealing with the singular case of the Caribbean, the author offers a nuanced approach beyond 'EU navel-gazing' by incorporating an ‘outside-in’ perspective, which thereafter could be applied to EU-ACP relations and the North-South dialogue in general.

Migration in the Central Mediterranean. Jean Monnet Occasional Papers 02/2013

In the last decade irregular immigration has emerged as a “security” challenge (in the language of International Relations military “threat”) in the Mediterranean region particularly in the central, sub-region1. The designation of this issue as a “security challenge” or “threat” is itself controversial and will be discussed further down. This paper focuses on the situation in the central Mediterranean involving mainly four countries namely Italy, Libya, Malta and Tunisia all of which have long standing historic links and bilateral relations and participate in the so called “5+5” Dialogue in the Western Mediterranean. Two of these Central Mediterranean countries (Italy, Malta) are EU member states and Tunisia has a long standing relationship with the EU [Association Agreement, Barcelona Process (EMP), Neighbourhood Policy (ENP), Union for the Mediterranean (UfM)] while Libya so far has no formal relations at all with the EU. This paper analyses some of the aspects of migration in the central Mediterranean focusing on the link between the domestic and international politics of the issue in Italy and Malta and contrasting the different approaches taken. For example, although Italy and Malta both resort to self-help and both try to involve the EU in helping them tackle the problem, they do this in a markedly different way: Italy uses the EU as a supplement to its independent and bilateral efforts while Malta looks to the EU as the major solution to the problem. Lacking the power and influence to deal with the issue, Malta tends to see the problem as primarily a multilateral issue or one that can only be tackled in concert with stronger powers in the region preferably within an EU context. On the other hand, Italy has been keen in involving the EU but decided to go it alone when this option turned out to be a dead end. In this paper I also try to show the extent (or limitations) to which multilateral initiatives such as the “5+5” and Euro operation really play a decisive role in incentivizing or facilitating inter-state cooperation or joint solutions. This paper also refers to the EU acquis, the notion of solidarity (norms) and the extent to which it is implemented as well as a number of connected issues. The subjects of this paper, the Mediterranean Boat People, have been referred to by various names in the literature, all of which may be more or less deficient in actually defining them all. They have been referred to as “illegal” or “irregular” immigrants, “refugees” in search of international protection, “migrants at sea” and “boat people”. The use of “boat people” dispenses with the need of having to define the various categories of migrants involved and is thus preferred in this paper.

First Anniversary of the Vilnius Summit: Or, how Tolstoy might have portrayed the legacies of Yanukovich and Putin. CEPS Essay No. 18/25 November 2014

Taking inspiration from both Tolstoy’s epic novel War and Peace and the Bible, Michael Emerson reflects in this CEPS Essay on the tumultuous year that has passed since President Yanukovich reneged on signing Ukraine’s Association Agreement with the EU, and on President Putin’s decision to intervene in Ukraine, tearing up all norms of international relations and public morality and inducing the sanctions that now inflict grave economic damage on Russia itself.

Conflicting Role Conceptions: In Search of the European Union's Added Value for its Southern Neighbors. Bruges Regional Integration & Global Governance Paper 04/2014

Many scholars have analyzed the role of the European Union (EU) in its southern neighborhood by looking at the EU’s policy documents and strategies. As such, it is often argued that the EU is at best a useful partner in democratic reform and at worst an unsuccessful ‘normative power’. However, very few studies have analyzed the EU’s role from the recipients’ point of view: the southern neighboring countries themselves. This paper adopts an ‘outside-in approach’ and explores what the southern neighborhood countries believe the EU should be or do. On the basis of a set of 15 interviews with diplomats from the region and an analysis of 50 newspaper articles from the region on the EU’s relations with its southern neighborhood, this paper seeks to reveal the EU’s real ’added value’ for its southern Mediterranean partners. To what extent does the EU’s own perceived role in its southern neighborhood match the role conception of those countries? Based on the three case studies of Algeria, Jordan and Egypt, the paper finds that there is a clear divergence in role conceptions between the EU and its southern partners. While the EU sees itself as a ‘force for good’ and promoter of norms and democracy in the southern Mediterranean region, the three countries primarily believe that the EU perceives itself foremost as a provider of security and stability in the region, while they primarily expect it to act as a reliable partner for economic cooperation.

From Subsidiarity to Better EU Governance: A Practical Reform Agenda for the EU. CEPS Essay No. 10, 8 April 2014

On 23 January 2014, a group of 73 member states’ officials and representatives from the European institutions and academia gathered at Clingendael Park in The Hague for a day-long seminar co-organised by the Netherlands Institute of International Relations and CEPS for the Ministry of Foreign Affairs of the Netherlands. The seminar’s aim was to discuss whether subsidiarity can offer a way forward that reconciles the need for better EU governance with concerns about legitimacy. This paper is based on subsidiarity literature, on preparatory talks with officials from member states and EU institutions and on the discussions in the seminar in The Hague. In particular, the paper explores the political and practical relevance of some of the ideas currently being considered to solidify the principle of subsidiarity in day-to-day decision-making. It maps the current political contours of subsidiarity as they appear in speeches and policy papers and presents some of the main ideas in the current debate on deepening subsidiarity.

Nothing personal: The age of ego-diplomacy. EuropEos Commentary No. 7, 17 March 2011

A new EuropEos Commentary laments the decline of diplomacy and the rise of ‘summits’ in recent history as the predominant way of conducting international relations. World leaders are urged to pay more attention to the sound and unimpeded analysis of their ambassadors and professional diplomatic corps whenever possible.