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Satow's Diplomatic Practice, 6th Edition edited by Roberts, Sir Ivor [OLD EDITION]

Book VI International Organizations, 27 The European Union—II External Relations

Ivor Roberts

From: Satow's Diplomatic Practice (6th Edition)

Edited By: Sir Ivor Roberts KCMG

A newer edition of Satow's Diplomatic Practice is available. Latest edition (7 ed.)
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From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 20 November 2019

Subject(s):
Diplomatic relations — Consulates — Tariffs — Diplomatic protection

(p. 399) 27  The European Union—II External Relations

27.1  Most of this book describes the diplomatic practice of States in conducting their relations with other States either bilaterally or within a multilateral framework. The independent conduct of foreign relations—through diplomacy among other means—is a key element of becoming, and being accepted as an independent sovereign State. To a limited extent, however, international organizations may also be actors in the field and may carry out some of the functions which flow from acceptance as a sovereign State—making formal statements and representations on international matters affecting their areas of competence, concluding treaties and international agreements, becoming observers at and (in a very few cases) members of other international organizations, making international claims, and accepting international responsibility for their own actions. The European Community and now the European Union have over the last 50 years gradually acquired wider powers to act in these ways than any other international organization. Their powers however are not those of a sovereign State. The areas where they may act and the methods through which they conduct international relations are limited by the powers conferred on them by successive treaties, and also by the determination on the part of Member States of the European Union that the Union should not encroach into their own sovereign independence or itself evolve into a form of federal State—a ‘United States of Europe’.

(p. 400) Historical Development of European Community External Powers

27.2  The Treaty of Rome which in 1957 established the European Economic Community (EEC) of six Member States gave the new organization legal personality (later held to imply international legal personality as well as legal personality within the legal systems of the Member States) and express powers to conclude international agreements falling within the common commercial policy. This was a logical corollary of the intention to establish a customs union among the Member States with no customs duties imposed on movement of goods across internal borders and a common external customs tariff to be levied on goods entering the common customs area. If Member States had remained free to conclude individual commercial agreements with non-member States on tariffs and quotas this would have undermined the concept of a uniform régime under which goods from outside the Community could enter at any port in any Member State and then circulate freely within the common market. The EEC Treaty provided that the European Commission would negotiate international commercial agreements on behalf of the Community under negotiating directives (known as mandates) drawn up by the Council of Ministers, and the Council would then approve and conclude the agreements. If any question was raised as to compatibility of a proposed agreement with Community rules, the matter could be decided on application to the European Court of Justice before the agreement entered into force. These powers and procedures gave the Commission a powerful role in the conduct of the Community’s commercial relations with the rest of the world and many agreements were drawn up on trade matters, tariffs, quotas, rules for exports, and imports between the EEC and non-member States. These agreements were binding both on the EEC and on the Member States and some of their provisions—if they were clear and unconditional—could be enforced in national courts by individuals for whose benefit they had been drawn up.

27.3  The EEC was also given under its original Treaty an express general power to conclude with a non-member State or an international organization ‘agreements establishing an association involving reciprocal rights and obligations, common action and special procedures’. This power to conclude ‘association agreements’ was at first aimed at agreements with States which had before independence been dependent territories of one of the Member States and were therefore thought to be entitled to protective or preferential treatment, since their traditional exports to their mother country would otherwise have been severely disrupted by the new common external tariff. Later, association agreements came to be used more (p. 401) extensively and in particular for arrangements with States such as Greece and Turkey which aspired to become candidates for membership of the Community. These agreements covered a much wider area than trade and commerce—including, for example, provisions for financial and technical assistance and for cooperation in a wide range of issues. Under this power there have been concluded successive Conventions with countries in Africa, the Caribbean, and the Pacific (the ACP) which in exchange for trade preferences and financial support now require acceptance of Community standards in such matters as competitive tendering, democracy, and human rights.1

27.4  The EEC Treaty further provided for the Community to establish relations with the United Nations and its Specialized Agencies, with the Council of Europe, and with the Organisation for European Economic Cooperation (later the Organisation for Economic Cooperation and Development) and the Community became an observer in all of these bodies (and also in other international organizations whose activities lay within its own areas of competence). In the United Nations General Assembly the Community was entitled to speak in debates but not to vote.2 The Commission argued that it had the right to speak at international conferences and meetings on matters within its competence, but practice on this was not consistent in all organizations. The Community however also had power under its Treaty to establish appropriate relations with the organs of the General Agreement on Tariffs and Trade (GATT) and although the terms of the GATT of 1948 did not permit the Community to become a member, it came in practice to be treated as if it were and the European Commission under its exclusive powers under the EEC Treaty acted as spokesman and negotiator for the Community as a whole (though of course it was authorized and ultimately controlled by the Council of Ministers in Brussels). The Commission by practice presented positions in international fora on behalf of the Community on legal matters, brought claims, and intervened for this purpose in legal proceedings in national as well as international courts.

27.5  As the EEC drew up more and more internal legislation—some of it in areas such as the environment for which there was at the outset no express provision—it came to be accepted that these internal rules implied a competence for the Community to negotiate and conclude external agreements which might affect them, since otherwise the effectiveness and coherence of the internal legal order would be put at risk. The principle of implied external treaty-making powers—known as the AETR (or in English ERTA) principle from the case in which it was (p. 402) first confirmed and described by the European Court of Justice3—gradually widened the areas in which the Community had the sole and exclusive power (that is, excluding the Member States from concurrent power) to negotiate and conclude external agreements. It is however a complex principle, and the areas covered constantly expand as the Community adopts new internal rules which give rise to parallel external powers for it to negotiate and conclude treaties. Implied powers give rise to numerous arguments and to European Court litigation within the Community and it is even more difficult for countries outside who seek only to know with whom they should negotiate or to whom they should complain about a breach of treaty obligations. Successive revisions of the Treaties have transformed a number of these implied powers—for example on the environment and development—into express external powers which has assisted clarity. But the AETR principle—with all its difficulties and ambiguities—remains of central importance to external action by the Community.4 This was clearly shown in 2002 when the European Court on the basis of the AETR principle held in a number of joined cases that the Member States were in breach of Community law by maintaining in force and re-negotiating bilateral air services agreements with countries all over the world which contained provisions which ‘affected’ Community rules on freedom of establishment as well as rules on detailed aspects of aviation.5 Member States, many of whom wanted to preserve their capacity to conclude third country agreements, had in the course of building an internal market in air services agreed Community directives which established internal Community provisions on fares and access to routes.

27.6  It can be seen that the Community was given no general power to conduct external or foreign relations. It was increasingly regarded as anomalous that the Community had great difficulty in formulating a coherent approach to situations which straddled commercial and political aspects. There had been since 1970 a system known then as European Political Cooperation (EPC) under which foreign ministers of the Member States and their senior diplomats consulted and built consensus where unanimity existed on political matters of common concern such as the Middle East conflict or the negotiations with the Communist bloc in the framework of the Conference on Security and Cooperation in Europe (p. 403) (CSCE). EPC was kept firmly out of the sphere of intra-Community relations and outside the Community legal order and was ‘conducted by diplomatists for diplomatists, employing informal and highly flexible procedures’.6 But in reality international relations could not thus be clearly partitioned—as Lord Carrington said in 1981 when speaking as British Foreign Secretary in New York: ‘Over the years the realisation has grown that economic policy and foreign policy are Siamese twins’.7

27.7  Two examples of the difficulties at this period may be given. The prolonged negotiations for the 1982 Law of the Sea Convention straddled areas such as conservation of marine resources where the Community had competence and other areas (such as demarcation of territorial waters and piracy) remaining within the competence of Member States, so that this would be for the Community a ‘mixed agreement’ which the Community would be entitled to sign along with the Member States. Other States at the Conference however not unreasonably sought precision as to where the Community had competence and made it a condition of permitting the Community to become a Contracting Party to the Convention that they should be provided with a Declaration setting out the exact position. The Community had to accept this requirement—but formulating the text of the Declaration involved applying the AETR principle (described above) to long lists of legislation on, for example, environmental protection and marine pollution, was controversial among Member States, and the Declaration was soon out-of-date as further legislation was adopted.8 It was also of limited assistance to non-member States as it did not indicate clearly the implications of the list on power to conclude the Convention or responsibility for giving effect to its provisions. The imposition of punitive sanctions for political reasons was another matter where the Community had limited (and hotly disputed) competence. So when in 1980 Community foreign ministers sought to impose economic sanctions on Iran in response to its complicity in the detention by militant students of United States hostages in the US embassy in Tehran—widely perceived as a flagrant breach of the most fundamental rules of diplomatic law—it was necessary for all nine Member States of the then Community each to legislate at national level. Lord Carrington as Foreign Secretary agreed at a meeting in (p. 404) Naples with his European ministerial colleagues that sanctions would be imposed retroactively to the date of the seizure of the US embassy, but the UK House of Commons refused to authorize this retroactivity (which would have damaged British commercial firms with existing supply contracts) so that sanctions were ultimately not imposed throughout the Community on a uniform basis.9

Establishment of the European Union and the Three-pillar Structure

27.8  The Single European Act, drawn up in 1986 to amend the European Community Treaties, for the first time placed the informal structures of European Political Cooperation on a treaty basis. The commitments were only ‘soft law’—that is purely procedural in nature—and the Community institutions were almost entirely excluded. It was the High Contracting Parties (the Member States) who had to ‘endeavour jointly to formulate and implement a European foreign policy’. A distinction emerged between ‘external policies’—governed by the Community rules and procedures outlined above—and ‘foreign policies’ to be formulated by national foreign ministers on an intergovernmental basis and creating obligations under public international law. There was no jurisdiction for the European Court of Justice over EPC. The habits of consultation and cooperation on foreign policy issues continued to intensify among foreign ministers, officials, and diplomats. Common positions began to be implemented in diplomatic démarches, coordinated action in international conferences and on sensitive matters such as recognition of newly emerged States, and the sending of observer missions into difficult situations such as South Africa during the approach to the first multi-racial elections in the early 1990s.

27.9  The Treaty on European Union (TEU) signed at Maastricht in February 1992—entering into force on 1 November 1993—established the European Union under a ‘three-pillar structure’ which despite sustained attempts to demolish and replace it remains in force 15 years later. Under the TEU

The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organize, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples.

(p. 405) The central pillar of the Union was formed by the Communities (the European Atomic Energy Agency (Euratom) and the European Coal and Steel Community (ECSC) as well as the European Economic Community, now the European Community). These three international organizations (now two since the ECSC lapsed) are described in Chapter 26, paragraph 26.6 above. The ‘supplementary forms of cooperation’ are intergovernmental and generally more political in character. The obligations which may be created under their procedures are legally binding under public international law only and not capable of being enforced by individuals before national courts. The Second Pillar is the Common Foreign and Security Policy (CFSP) and the third was originally Cooperation in Justice and Home Affairs—now titled Police and Judicial Cooperation in Criminal Matters—also described in Chapter 26. There are certain over-arching provisions which set out Union objectives common to all three pillars. The Union is required to ensure consistency in its external activities—and the Council and European Commission are charged with this responsibility.10 In practice this has not proved straightforward because of institutional and personal differences, as well as genuine difficulties in fitting policy objectives neatly into the different pillars.

27.10  Under the Second Pillar the newly established CFSP was given specific objectives which include safeguarding the common values, fundamental interests, and independence of the Union, preserving peace and strengthening international security, promoting democracy, the rule of law, and respect for human rights. The Council of Ministers of the European Union (‘the Council’) was given powers to adopt instruments—common positions and joint actions—binding on the Member States under international law.11 The CFSP would include all questions relating to the security of the Union including the eventual framing of a common defence policy. The European Council—which consists of the heads of state or of government of all the Member States—was given the supervisory role of defining principles and guidelines for the CFSP. Obligations were placed on the Member States. They were required to support the Union’s external and security policy actively, to refrain from any action which is contrary to the interests of the Union, and to inform and consult one another within the Council on any matter of foreign and security policy of general interest. Diplomatic and consular missions of the Member States were required to cooperate in (p. 406) non-member States to ensure implementation of Council common positions and other instruments—this was already happening to an increasing extent but became a formal obligation.12 Coordinated action by the Member States in international organizations was another requirement.

27.11  The Common Foreign and Security Policy of the Union must be contrasted with the foreign policy of a sovereign State which, at least in theory, is unconstrained in its objectives, can call on such of its resources as it chooses, has in many cases extensive diplomatic and specialist expertise at its disposal to assist it in formulating its policy, and has automatic entitlements to act at an international level—such as participating in multilateral treaties and joining international organizations which are often not open to the European Community or the European Union. It is a ‘common foreign policy’ and not a ‘single foreign policy’ so that it extends only as far as the Member States can agree commitments or guidelines in the European Council or in the Council of Ministers. But increasingly, Member States have endeavoured to reach common positions on key issues, and there have been only a few cases—notably the recognition of the ‘former Yugoslav Republic of Macedonia’ and the advisability of military action against Iraq in 2003—where there was open disagreement among Member States over policy. On other occasions, however, there have been more subtle differences in what Member States were ready to say or do. Although the commitments in Council instruments may be legally binding they are not in practice enforceable against Member States in the absence of any jurisdiction for the European Court, and they are not ‘exclusive’ in the sense of precluding Member States from parallel or more extensive action, even if Member States must ensure that their national policies conform to any common position agreed. It is for these reasons that the Member States retain ultimate independence in the conduct of their international relations and so remain fully sovereign.

27.12  The Treaty of Amsterdam which on its entry into force in 1999 amended the Treaty on European Union did not alter the essential structure of the Union, but it did make important improvements to the CFSP.13 In particular it made available a wider range of legal instruments and defined them more precisely, it provided that in the absence of agreement to the contrary, joint actions agreed within the Council would be financed through the budget of the European Union (p. 407) (an issue where lack of a fall-back position had previously led to failures in some critical cases) and there were consolidated and clearer provisions on voting (with qualified majority voting permitted for implementing decisions and where there is ‘constructive abstention’ by a Member State). The Council was given new powers to appoint a special representative with a mandate for a particular issue or country, and to conclude international agreements. Such agreements concluded by the Council would assume practical importance when the Union later decided to send police and military missions to undertake some of the peacekeeping and crisis management tasks for which it had powers under the security and defence provisions of the new TEU. A High Representative for the Common Foreign and Security Policy would be head of a new Policy Planning and Early Warning Unit in the General Secretariat of the Council. This Unit would enlarge the powers and resources of the team of seconded officials from prior and succeeding presidencies who already provided additional support for the current presidency and would provide independent analysis of events and policy options such as are normally available to ministers from their own ministries of foreign affairs and from embassies overseas. The first High Representative appointed was Javier Solana, a former foreign minister of Spain and secretary-general of NATO who brought political weight as well as negotiating ability to his multiple roles of advising and influencing the Council of Ministers, contributing to the preparation and implementation of foreign policy decisions and acting as representative of the Union in negotiations with non-member countries.

Cooperation among EU Embassies and Consulates Abroad

27.13  Article 20 of the Treaty on European Union, as amended, provides that

The diplomatic and consular missions of the Member States and the Commission Delegations in third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented.

Since neither the EU nor the EC is a State, neither is entitled to maintain diplomatic relations in the full sense or to send diplomatic missions to non-member States. The European Commission maintains delegations in a very large number of other States, and by courtesy these are often styled diplomatic missions, but the range of diplomatic and consular functions which they are entitled to perform is confined—like their treaty-making powers—to such functions as flow from the powers conferred by Treaty on the Community or the Union. Most of these functions relate to trade and aid, and in developing countries these can be key interests. States seeking to negotiate membership of the (p. 408) European Union are given extensive assistance with the accession process by the Commission delegations. Furthermore, as Community competence has expanded, so has the range of functions which may be performed by the Commission delegations. By contrast, non-member States accredit ambassadors to the European Union, and these ambassadors and their staff are entitled to exercise all normal diplomatic functions described in Chapter 6 above. How precisely they carry out these functions in Brussels—and in particular whether they seek information from or negotiate with the European Commission, with the presidency, or with the representations of the Member States—will depend on the question of where competence on the particular matter rests.

27.14  Informal cooperation among overseas diplomatic and consular missions of the Member States has grown in parallel with European Political Cooperation and CFSP policies. In foreign capitals policy may be governed by the terms of a Council common position relating to the particular State as well as by more general instruments on, for example, the supply of small arms to areas of conflict or improving standards of governance. In international conferences, collective action will be determined by the terms of a negotiating mandate or sometimes a joint action agreed by the Council of Ministers and specific to the particular conference. In major capitals there are regular meetings, coordination of diplomatic activities such as reporting and negotiating with the host government, and sharing of responsibilities, for example for the preparation of a report on human rights practices. Information and instructions of general interest are circulated to the capitals of all Member States and to the Policy Planning and Early Warning Unit of the Council Secretariat in Brussels under the COREU14 telegraphic network. In practice, the European Commission will also be involved in this cooperation.

27.15  As already explained in Chapter 16, paragraph 16.7 above, it is now standard practice following a breach in relations or withdrawal of a diplomatic mission in a non-member State for the protection of interests of one EU Member State to be entrusted to another. Only where all Member States are implicated in the political reason for the breach will a non-member State be invited to act as protecting Power. When the United Kingdom in 1998 withdrew its mission from Serbia in advance of airstrikes by NATO aimed at securing the withdrawal of Serb military and security forces from Kosovo, other Member States were regarded as vulnerable to retaliation because of their involvement or support and so Brazil was asked to provide emergency assistance to British nationals.15

(p. 409) 27.16  Although Article 6 of the Vienna Convention on Diplomatic Relations permits two or more States to accredit a single ambassador to another State, little use has been made of this possibility by EU Member States. France in particular would be required to amend its Constitution before protection of French interests abroad could be undertaken other than by a French citizen. There has however been a significant rise among Member States in what is termed co-location of diplomatic and consular missions.16 These are not in any sense joint or EU missions but involve the sharing of premises and support facilities among some or all of the EU missions in a particular capital so as to save costs and enhance security. Sometimes there is a pooling of other functions, but more usually the arrangements do not involve the sharing of archives or communications. Most advanced is a scheme in Abuja, Nigeria, in which almost all Member States participate.

Diplomatic and Consular Protection of European Union Citizens

27.17  It was stressed in Chapters 19 and 20 above that the right to diplomatic and consular protection by a State is available only to nationals of that State, and a receiving or defendant State may reject representations if made by another State on behalf of a person who is not its national. Under the European Community Treaty however a new status of European Union citizen was created, to which were attached certain privileges, and in particular

Every citizen of the Union shall in the territory of a third country in which the Member State of which he is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the national of that State. Member States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.

Under the rules agreed, protection may cover assistance in cases of death, serious accident or illness, arrest or detention and most of the functions described in Chapters 19 and 20 above, although more delicate matters such as complaints of ill-treatment or requests for pardon or repatriation are normally taken up in liaison with the State of which the EU citizen is a national.17 Non-member States cannot be obliged to accept representations by a State on behalf of a non-national, (p. 410) but in practice there appears to have been no public objection. This may however be due to limited knowledge among travellers of the right to assistance from embassies and consulates of other Member States, together with the practice of associating the State of nationality when making politically sensitive representations.

Representation of the Union

27.18  Reference has already been made to the role of the European Commission in negotiating on behalf of the Community on matters where it enjoys exclusive competence, particularly on trade, and to the coordination among embassies of Member States in international organizations, conferences, and foreign capitals. The Treaty on European Union also provides for the representation of the European Union. This is carried out by the presidency currently in office, assisted by the High Representative for the CFSP. The European Commission is to be ‘fully associated’ and the next following State to hold the rotating presidency may assist. The usual arrangement is for the Union to be represented by a ‘Troika’ of the presidency, the High Representative, and the Commissioner for External Affairs, but there is flexibility on this and the extent of Community competence over the subject matter of negotiation will be relevant. The Union may appoint a Special Representative for a particular task—for example in 1997 Niels Eriksson was a Special Representative with the task of overseeing assistance to the Palestinian authority in its efforts to counter terrorism. The sustained efforts from 2003 on behalf of the Union to persuade Iran to abandon its programme of enrichment of uranium so as to counter international suspicions that the objective of this was to develop nuclear weapons were led unusually by the foreign ministers of France, Germany, and the United Kingdom who made several joint personal visits to Tehran.

International Organizations

27.19  As explained in paragraphs 27.2 and 27.4 above, the Community was from the outset given legal personality and treaty-making capacity, and in GATT it was treated as though it were a party, with the Commission speaking and negotiating on behalf of the Community. Most international organizations however were based on treaties pre-dating the formation of the Community and which permitted only States to become members. The Community began to be admitted as a full member of international organizations only when a new organization was being created or the constitution of an existing organization was—for unrelated reasons—being revised, and where the competence of the Community extended (p. 411) to the area of activity of the particular organization. The process began with acceptance of the Community as a member of commodity organizations such as the International Wheat Council in 1971 and the International Tin Council in 1956. Later, in 1991, the Community became a member of the Food and Agricultural Organization when its Constitution was revised. The new Constitution of the FAO permitted accession by a regional economic integration organization on condition that a majority of its members were UN members and had transferred ‘competence over a range of matters within the purview of the Organization, including the authority to make decisions binding on Member States in respect of those matters’. A Declaration of Competence by the acceding organization was required and there were elaborate rules to preclude double voting by the Community and its Member States. In 1994 the Community at last became a full member of the new World Trade Organization and acceded to the revised GATT—though only after the question whether it had exclusive competence to do so or whether the Member States should also become parties was resolved by the European Court of Justice.18

27.20  In organizations where the Community is not a member—whose activities often straddle areas of exclusive Community competence, areas of shared competence between the Community and the Member States (such as development), and areas of Member State competence—the Community (through the European Commission) and its Member States endeavour to speak and vote in accordance with the division of competence between them. Where there is shared competence, a pragmatic approach is taken. The Member States may permit the Commission to act as spokesman as a matter of convenience. The practices of different organizations vary and so long as there is no double voting by the Community and its Member States, other Member States are to an increasing extent flexible and permit the matter to be determined by intra-Community procedures (or sometimes wrangles). Describing the EU as a ‘multilayered’ international actor highlights, without elucidating, the complexities.19

27.21  Where there is no Community competence over the subject matter of negotiations, the obligations of Member States are governed by Article 19 of the Treaty on European Union which requires them to coordinate their positions and to (p. 412) uphold common positions in international organizations and at international conferences. Member States not participating are entitled to be kept informed on any matter of common interest. There is special provision regarding the UN Security Council in the following terms:

Member States which are also members of the United Nations Security Council will concert and keep the other Member States fully informed. Member States which are permanent members of the Security Council will, in the execution of their functions, ensure the defence of the positions and interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.

France and the United Kingdom exercise their Charter responsibilities as permanent members and at the same time reflect Article 19, but they are not mandated by the European Union on individual issues. Frequently there will be two or more other Member States who are elected Members of the Security Council to whom Article 19 also applies. If the Security Council is meeting in a public session open to all members of the United Nations, it is usual for the presidency to represent the Union. The general practice in all international organizations where exclusive Community competence does not apply (so that the European Commission is not entitled to act as spokesman and negotiator) is that the presidency coordinates and takes the lead in presenting common positions of the Union, but that other Member States may also speak provided that the substance of their intervention conforms to the agreed common position. If the Member State holding the presidency is not represented in that organization, it will fall to the State next in line to hold the presidency, and represented, to arrange coordination and to speak for the Union.

Political Sanctions and Cross-pillar Action

27.22  Reference was made above to the requirement in the TEU that the Union should ensure the consistency and the continuity of its activities and the responsibility of the Council and the Commission to cooperate to this end. It is not legally permissible to draw up instruments based both on powers in the First Pillar and powers in the Second (CFSP) Pillar—not only are the institutional procedures for adoption distinct but the instruments themselves differ in their legal effects. In some contexts however the Council may adopt related instruments under the First and the Second Pillars which are intended to operate as a consistent whole. One example of this results from common strategies—a form of Second Pillar instrument introduced by the Treaty of Amsterdam. Common strategies are themselves decided by the European Council in areas where the Member States have important interests in common, and they specify for these areas objectives (p. 413) and means to be made available by the Council and the Member States.20 They lack however the precision of formal legal instruments so that implementing instruments must be adopted either by the Council—which may act under any one of the three pillars—by the Member States at national level, or by the Commission. Policies regarding particular countries such as Iran, China, and Afghanistan or particular topics such as improving observance of human rights or responding to a natural disaster may also involve adoption by the institutions of inter-related instruments based on Community and on intergovernmental powers.21

27.23  The classic example of cross-pillar action which has assumed considerable importance is the imposition by the Union of political sanctions against non-member countries. Before the TEU, as was explained in paragraph 27.7 above, sanctions were at first imposed through national legislation by Member States following a political agreement and later by Community legislation under powers intended to implement the common commercial policy.22 The TEU by contrast provided a clear system under which the political decision would be taken by the Council under Second Pillar (CFSP) powers but implemented under specific First Pillar powers or by Member States (depending on competence for the specific sanction). Article 301 of the EC Treaty provides

Where it is provided, in a common position or in a joint action adopted according to the provisions of the Treaty on European Union relating to the common foreign and security policy, for action by the Community to interrupt or to reduce, in part or completely, economic relations with one or more third countries, the Council shall take the necessary urgent measures. The Council shall act by qualified majority on a proposal from the Commission.

There is parallel power in Article 60 of the EC Treaty for the Council to take urgent measures to block movements of capital and payments—used to freeze the bank accounts of persons or entities suspected of involvement in terrorism. In this case because of the need for urgency Member States may take unilateral measures to freeze the assets of suspects on the condition of informing the Commission before they enter into force. Community powers may now also be (p. 414) used to block exports of dual-use goods (items such as water cannon which may be used for either military or civilian purposes), but because the Community lacks competence over trade in arms, arms embargoes must be enforced through national measures.

27.24  Sanctions are now usually applied by the EU to give effect to Security Council (SC) resolutions, but this is not a pre-requisite, and EU sanctions may also go beyond what is required by the terms of the SC resolution. Sanctions against Libya imposed by the Security Council were for example implemented by the EU in a strengthened form at the instance of the United Kingdom and France whose nationals had been victims of specific Libyan acts of aircraft sabotage. In either of these cases, however, the sanctions are not permitted to override or violate existing obligations of the Community or of the Member States under international law23 unless specifically authorized by a relevant resolution of the SC. The modern approach to sanctions often involves applying them not to particular non-member countries and their nationals but to named individuals—either thought responsible for the situation in a particular country or involved in terrorist activities. This ‘smart sanctions’ approach has given rise to constitutional difficulties for the Union in part because express powers for this method of imposing sanctions were not provided in amendments to the Treaties and in part because the procedures can result in individuals being deprived of their financial assets without a proper chance to hear and respond to the case against them. The European Court of Justice in the Kadi case24 held that although UN Security Council resolutions have primacy over European Union laws as well as over national laws, the Council implementing instruments could be reviewed by the Court to ensure compliance with fundamental human rights—in particular the right to be heard and to effective judicial review. The UN obligations would remain valid under international law—but it could follow that the Member States, through complying with EU requirements, find themselves in breach of the requirements imposed by the UN. Efforts however continue to reform both the system of UN sanctions and the ways in which they are given effect at the level of the Union and its Member States.

Security and Defence

27.25  In its early years, the Community was rigorously excluded even from discussion of matters relating to security and defence. Production of or trade in arms was (p. 415) ring-fenced from Community rules, and collective defence of the territories of the Member States was the responsibility of NATO. Ireland continued to attach importance to its neutral status, and the enlargement of the Union brought in three other neutral Powers—Austria, Sweden, and Finland. Denmark though a member of NATO has also been reluctant to accept the involvement of the EU in defence. Successive revisions of the Treaties envisaged ‘the progressive framing of a common defence policy’ while acknowledging the special position of the neutral Member States. For a time the Union borrowed the resources of the Western European Union (WEU) for limited activities (such as the policing of the embargo on supply of arms to the Federal Republic of Yugoslavia in the early 1990s). But this arrangement was never really satisfactory because of institutional difficulties and different memberships of the two organizations. The TEU made provision for what are called ‘the Petersberg tasks’ which include humanitarian and rescue tasks, peacekeeping tasks, and tasks of combat forces in crisis management including peace-making, all aimed at external conflict resolution. They provide an additional tool to make the Common Foreign and Security Policy more effective.25 These do not involve territorial defence of the Member States which, for those who are members, is a task for NATO.

27.26  In 1998, in the Declaration of St Malo, France and the UK—the two key Member States in military matters by reason of their permanent membership of the UN Security Council as well as their nuclear capability—determined that ‘the Union must have the capacity for autonomous action, backed up by credible military forces, the means to use them, and a readiness to do so’. Since then the Union has gradually built up military planning resources and set goals for the capabilities which Member States should provide. It no longer relies on WEU. The EU will launch and conduct military operations only where NATO as a whole is not engaged. This was formalized in the revision of the TEU in 2000 by the Treaty of Nice. The Union has an understanding with NATO, the so-called Berlin plus arrangements, under which approval can be given for the Union to draw on certain NATO assets to conduct operations. Or the Union can act autonomously, using only capabilities provided by its Member States. The Treaty revision also formally established a new Political and Security Committee of the Council in order to monitor areas covered by the CFSP and to assist the Council in defining policies and assuming political and strategic control of crisis management operations.26 In 2003 the European Council on the initiative of the High Representative adopted a European Security Strategy which drew some inspiration from the (p. 416) US Security Strategy but contained important differences. The European Security Strategy identified the key threats to the Union as terrorism, proliferation of weapons of mass destruction, regional conflicts, state failure, and organized crime. The Strategy also laid emphasis on ‘an international order based on effective multilateralism’ and on the primary role of the UN Security Council for maintenance of peace and security.27 Technical military capacity was strengthened by the establishment in 2004 by Council Joint Action28 of a European Defence Agency which will enhance cooperation and integration among Member States in the development of and trade in military equipment— so resulting in greater capability for the same expenditure.

27.27  In subsequent years the EU has developed its military planning capacity and has launched numerous crisis control missions both military and civilian in character in countries ranging from Macedonia and Bosnia to the Democratic Republic of Congo, Indonesia, Afghanistan, Georgia, and Iraq. Although their purposes varied, all had the consent of the country where they were deployed, were relatively low-key, invariably involved a range of policy aspects—from military, policing, support for better governance, enforcement of the rule of law, and institution-building—were usually mandated by a Security Council resolution, and were on the whole successful. Jurisdiction over personnel provided by the Member States as well as their privileges and immunities were regulated under status of forces agreements in each case concluded by the Council on behalf of the European Union. Article 24 of the TEU as amended by the Treaties of Amsterdam and Nice confers express power on the Council to conclude international agreements within the framework of the CFSP, although there remains an element of doubt whether the EU as yet enjoys full international legal personality so as to eliminate potential responsibility of contributing Member States should liability for damage arise (and the early practice has been for claims to be settled directly between the claimant State and the Member State whose forces were directly involved). At the outset these agreements conferred on all EU personnel a very high degree of diplomatic immunity and privilege going well beyond what is normally accorded to visiting forces under modern practice and difficult to justify on functional grounds. Subsequently however the Council adopted a model Status of Forces Agreement (SOFA) and a model Status of Missions Agreement (SOMA) for civilian crisis management operations, both (p. 417) in somewhat more limited terms, and these have been used as the basis for negotiations with third countries.29

Constitutional Change

27.28  Following the adoption of the Treaty of Nice in 2000, the European Council at Laeken in 2001 set in motion a process which was originally intended to look at ways of bringing the Union closer to its peoples, to clarify the definitions and the division of competences within the European Union, and to simplify its structures. There followed a Convention on the Future of Europe which proposed radical change in the form of a draft Constitution, the adoption in 2004 by the heads of state and of government of a Treaty establishing a Constitution for Europe and its rejection in 2005 by the voters in France and the Netherlands. In 2007 the heads of state and government in Lisbon adopted a Reform Treaty30 containing most of the institutional changes in the earlier Treaty but without many of the features which had been criticized as threatening the sovereign independence of the Member States. The principal changes in the Treaty of Lisbon are described in Chapter 26, paragraph 26.21 above. Its entry into force would also make substantial changes to the system of external relations described in this chapter. The most significant are the following:

1. The European Union would be granted express legal personality, which would subsume the legal personality of the European Community. The Union would ‘replace and succeed the European Community’. Although the First and Second Pillars would no longer be formally distinct, the common foreign and security policy would be ‘subject to specific rules and procedures’.

2. A new post of High Representative of the European Union for Foreign Affairs and Security Policy would take over the external relations functions of the existing High Representative but also those of the European Commissioner for External Affairs. This is intended to give consistency and a higher profile to the external representation of the Union—but it is not clear where his loyalties would lie in case of institutional conflict between the European Commission and the Council.

(p. 418) 3. A new External Action Service would be built up on the basis of the existing Commission Delegations, strengthened by secondments from the Council Secretariat and from national ministries of foreign affairs. The service would work in cooperation with the diplomatic services of the Member States. It is likely that to some extent this can be done under existing Treaty powers.

4. There would be an expansion of the competence granted under the common commercial policy to include explicit mention of trade in services, commercial aspects of intellectual property, and foreign direct investment. Ireland rejected the Lisbon Treaty in a referendum, the German Federal Constitutional Court insisted on further German legislation before ratification, while Poland and the Czech Republic withheld ratification pending the outcome of a second Irish referendum in October 2009.

Footnotes:

Succeeding the Conventions signed in Yaoundé and in Lomé, currently in force is the 2000 Cotonou Partnership Agreement, OJ 2000 L317/3, amended in 2005.

GA resolution 3208 (XXIX) of 11 October 1974.

Case 22/70, Commission v Council [1970] ECR 263. The dispute concerned whether the Commission on behalf of the Community, or the Member States should conduct negotiations for a new European Road Transport Agreement (ERTA) after the Community had adopted internal rules harmonizing social matters such as drivers’ hours.

Case C-476/98, Commission v Germany (Open Skies) [2002] ECR I-9855 and linked cases.

S J Nuttall, ‘European Political Cooperation and the Single European Act’ (1985) YEL 203.

(1980) 57 International Affairs 1 at 3.

Annex IX to the UN Convention on the Law of the Sea, Cmnd 8941, permits participation by international organizations to which Member States ‘have transferred competence over matters governed by this Convention, including the competence to enter into treaties in respect of those matters’. Article 5 of Annex IX requires the accession instrument of an international organization to contain a declaration specifying these matters. The Member States of the organization are presumed to have competence over all other matters. Changes to the distribution of competence must be notified to the depositary.

S J Nuttall, ‘Interaction between European Political Cooperation and the European Community’ (1985) YEL 211; E Denza, The Intergovernmental Pillars of the European Union (2002) 41.

10  For a full account of the distinctions between the Community and the intergovernmental methods see E Denza, The Intergovernmental Pillars of the European Union (2002) Introduction and ch 1. See also K-D Borchardt, The ABC of Community Law (2000) in European Documentation Series, esp. 5–29.

12  See D McGoldrick, International Relations Law of the European Union, ch 8 ‘From European political cooperation to a common foreign and security policy’.

13  B Soetendorp, Foreign Policy in the European Union contains in ch 5 ‘The common foreign policy decision régime’, a straightforward account of the institutional structure of CFSP. See also R A Wessel, The European Union’s Foreign and Security—A Legal Institutional Perspective (Kluwer, 1999); P Koutrakos, EU International Relations Law (Oxford: OUP, 2006) ch 11.

14  Correspondence européenne.

15  The Times, 13 October 1998.

16  The framework was set out in a Memorandum of Understanding of 1996 signed by all Member States.

17  The framework was set out in a Decision of the Representatives of the Governments of the Member States meeting within the Council of 19 December 1995, OJ L314/73, 28.12.95, and was supplemented by a further decision on detailed implementing measures.

20  Common strategies were adopted for Russia and the Ukraine in 1999 and for the Mediterranean in 2000—following which the instrument fell into disuse, possibly because it opened the way to implementing decisions taken by qualified majority voting or because the approach was too broad brush. See P Koutrakos, EU International Relations Law (Oxford: Oxford University Press, 2006) 394–9.

21  Many examples are described in U Khaliq, Ethical Dimensions of the Foreign Policy of the European Union (Cambridge: Cambridge University Press, 2008).

22  Article 113 (later Article 133) EC. The powers were limited to trade in goods and their use for a political objective (for example against Argentina following its invasion of the Falkland Islands) was disputed within the Council.

23  Case C-162/96, Racke GmbH & Co v Hauptzollamt Mainz [1998] ECR I-3655.

24  Joined Cases C-402/05 and C-415/05, Kadi and Al Barakaat International Foundation v Council of the EU and Commission of the EC. Judgment of 3 September 2008 not yet reported.

25  For a comprehensive account of methods used by the EU to this end, see W Kronenberger and J Wouters (eds), The European Union and Conflict Prevention (Asser Press, 2004).

26  Article 25 TEU, as revised by the Treaty of Nice.

27  P Koutrakos, EU International Relations Law, ch 13 at 461–2.

28  2004/551/CFSP, OJ L245/17, 12.7.2004.

29  See Chapter 21 above. For a comprehensive account see A Sari, ‘Status of Forces and Status of Mission Agreements under the ESDP: The EU’s Evolving Practice’ (2008) EJIL 69 and ‘The Conclusion of International Agreements by the European Union in the context of the ESDP’ (2008) ICLQ 55.

30  [2007] OJ C306/1.