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Some Legal Issues Concerning the EU-NATO Berlin Plus Agreement
Abstract
The 'Berlin Plus' agreement of 16 December 2002 now allows the EU to draw on some of NATO'smilitary assets in its own peacekeeping operations.The exact legal nature of the agreement, however, appears doubtful. Yet - given that political actors often resort to legal arguments in case of a dispute - the question of whether it is binding under international law is likely to be raised in the future. First, a short historical overview is given of the development of relations between the EU and NATO. In some respects, these are a mirror image of the co-operation NATO previously entertained with the Western European Union. However, since the French-British meeting of St-Mâlo these relations have assumed features of their own, for instance equal status for the EU. The text of the 'Berlin Plus' agreement is then tested against the constitutive characteristics of a treaty in international law. In conclusion, the 'Berlin Plus'is nothing but a non-binding agreement.The most important reason for this is that the EU manifestly lacked treaty-making competence, as the agreement was concluded by its High Representative for the Common Foreign and Security Policy, not by the statutory organ provided for in such cases in the Treaty on European Union. Nevertheless, as the parties proceed to implement the 'Berlin Plus' according to its stated terms, legally binding force may arise for some of its contents through estoppel.
... They further include consultation arrangements on the use of capabilities as well as on discussing further capability requirements. With the formalising of consultations and the use of capabilities, the Berlin Plus arrangements were thus perceived as a major breakthrough and 'landmark' for EU-NATO relations as they outline more concretely the principles for practical cooperation (CEU 2003;Reichard 2004. ...
... Apart from being resource driven and focusing on minimizing and pooling efforts, international security organizations like NATO and the EU through its CSDP are dependent on the purposive choices of their member states -and so is any cooperation between them. The case of EU-NATO cooperation in this specific regional context reflects much of the general debate about the relationship between these two organizations and their cooperation in operations more specifically (see Missiroli, 2002;Bilgin, 2003;Riggio, 2003;Reichard, 2004;Mace, 2004;Messervy-Whiting, 2005;Michel, 2007;Smith, 2011). A lot of this political debate is focused on aspects of duplication, competition and rivalry (e.g. ...
Following the end of the Second World War, the creation of regional organizations in Europe provided niche functions to help ensure regional stability through security and transition. Yet, as the Cold War ended and the Soviet Union dissolved, each of these organizations evolved to have a post-Cold War role in the region. Since then, the level of convergence of norms, interests and objectives between these main regional organizations has increased considerably. Is there a common agenda in Europe? Does Europe still need so many organizational elements to tackle the major challenges? This book examines the way the EU, NATO, OSCE, and Council of Europe relate to and interact with each other, identifying the areas of positive convergence and divergence as well as areas of negative cooperation and conflict. By tracing the institutional development and regional integration in Europe, the book questions to what degree do European organizations maintain separate identities and most importantly do these organizations still offer a unique and useful service to regional stability. In developing this argument, policy areas analysed include: " Security " Democracy promotion " Peace building " Human rights, minority rights, and group protection The unique combination of institutional and policy analysis make Cooperation or Conflict? an original and stimulating resource for scholars and practitioners interested in the ebbs and flows of Europe's institutional architecture. © David J. Galbreath and Carmen Gebhard 2010. All rights reserved.
... Apart from being resource driven and focusing on minimizing and pooling efforts, international security organizations like NATO and the EU through its CSDP are dependent on the purposive choices of their member states -and so is any cooperation between them. The case of EU-NATO cooperation in this specific regional context reflects much of the general debate about the relationship between these two organizations and their cooperation in operations more specifically (see Missiroli, 2002;Bilgin, 2003;Riggio, 2003;Reichard, 2004;Mace, 2004;Messervy-Whiting, 2005;Michel, 2007;Smith, 2011). A lot of this political debate is focused on aspects of duplication, competition and rivalry (e.g. ...
Maritime engagement in the Gulf of Aden is a puzzling case for anyone interested in the political and institutional problems underlying European Union–North Atlantic Treaty Organization (EU–NATO) cooperation. Although the EU’s operation NAVFOR ‘Atalanta’ and NATO’s ‘Ocean Shield’ operate in the same theatre and with similar mandates, there is no formal link between them. No joint planning has been envisaged, and no official task-sharing takes place. As this article aims to show, cooperation and coordination between EU and NATO forces at the operational and tactical levels have nevertheless worked surprisingly well. Two faces of EU–NATO cooperation become apparent: the political level is dominated by a permanent deadlock, while on the ground and at sea staff have developed a modus operandi that allows them to deliver fairly successfully in complementing yet detached operations. Based on 60 interviews with EU and NATO officials (2010–2013), this article illustrates how the operational and tactical levels have developed ways of coordinating efforts informally despite the lack of a formal framework. It aims to show to what extent and how they succeed at bypassing organizational boundaries and at overcoming political limitations. Although these practices are becoming increasingly institutionalized, it remains to be seen whether this will translate into formal changes.
... See http://www.nato.int/shape/news/2003/shape_eu/se030822a.htm for more details. SeeReichard (2004) for an examination of the legal dimensions of the agreement. ...
The increasing density of international regimes has contributed to the proliferation of overlap across agreements, conflicts among international obligations, and confusion regarding what international and bilateral obligations cover an issue. This symposium examines the consequences of the complex of overlapping, parallel and nested agreements for subsequent politics, thus the issue of overlap and complexity as an independent variable. Our central questions are: What insights can be gained by thinking about any single agreement as part of a larger complex of international rules and agreements? Does the existence of simultaneous and overlapping agreements alter either the strategies of players or the politics of the issue itself? Karen Alter and Sophie Meunier's introductory essay identifies the mechanisms through which nesting and overlap across agreements can influence politics, and identifies six modes through which overlap as an independent variable can manifest itself. Short contributions identify how the complex of international agreements affects politics in specific issue areas: refugee politics (by Alexander Betts), trade politics (by Christina Davis), human rights and trade (by Emilie Hafner-Burton), intellectual property politics (by Laurence Helfer), security politics (by Stephanie Hofmann), and election monitoring (by Judith Kelley). Daniel Drezner concludes by arguing that the complexity of rules may well benefit the powerful more than others.
p>W artykule poddano analizie rolę Unii Europejskiej (UE) i NATO w systemie bezpieczeństwa międzynarodowego. W oficjalnych dokumentach często pojawia się stwierdzenie, że UE i NATO to wyjątkowi partnerzy. Obie organizacje łączą wspólne wartości, a 22 państwa członkowskie NATO należą też do UE. Podkreśla się, że UE i NATO mogą, a nawet powinny wzajemnie się wspierać i uzupełniać w dziedzinie międzynarodowego pokoju i bezpieczeństwa. Niestety, współpraca pomiędzy nimi stanowi trudny i złożony problem.</p
This Master thesis explores the legal possibilities for a close cooperation between the United Kingdom (UK) and the European Union (EU) post-Brexit in the Common Security and Defence Policy (CSDP). The current situation of the UK will be compared with the situation after it has left the EU. Cooperation in crisis management is important for both as they share the same values and common threats, and they can complement each other in many ways. Efficiency and effectiveness of crisis management are one of the main conditions for successful operations which can be accomplished through cooperation. In addition, the UK functions as a bridge between the EU and NATO, which allows the two organizations to coordinate and adapt their policies to face their (mostly common) challenges more effectively. Through many different types of international agreements, a cooperation can be established which will be elaborated in this thesis. The most important is the association agreement that can create the right for the UK to influence the decision-shaping of an EU act by participating in the meetings of the European committees. The UK will have no veto right once it has left the Union, because the EU does not allow third states to have any decision-making power, because of its decision-making autonomy. I conclude however, that the UK can have a de facto veto since the EU struggles with a capability gap which. This gap will extend without the UK in the Union, as it is one of Europe’s biggest important military power.
The Union
3–6may conclude agreements
9,11with one or more States or international organisations
9in areas covered by this chapter.
10
As explored in Chapter 1, defence cooperation at EU level emerged not until late after the end of the Cold War. Yet the Common Security and Defence Policy, formally known before the Treaty of Lisbon as the European Security and Defence Policy (ESDP), ‘lifted off’1 in 1999 as an EU second pillar activity (CFSP).2 It was formally launched in June 1999 by the Cologne European Council.3 As such, CSDP constitutes a relatively ‘new step in the construction of the European Union’, adding to its political weight on the international stage.4 Although it has ‘exhibited the same characteristics that have shaped the development of CFSP’,5 CSDP is characterised by a stricter attribution of competences.6 This is because security matters, such as defence budgets and operational military decisions, are central to national sovereignty and, thus, exclusively determined by member states. Yet, in recent years, the EU has been under greater pressure to craft a defence identity. The political process of what now constitutes the CSDP grew out of the so-called European Security and Defence Identity (ESDI). This reach for an ‘identity’ was merely an attempt made in the beginning of the 1990s to shift responsibility and influence within NATO to the European members of the Alliance.7 Yet, against the intentions of those who might have wished for a robust European role in security, the wars in Bosnia (1995), Kosovo (1999) and, more recently, the civil war in Libya and the anti-government protests in Syria (2011)8 have confirmed both Europe’s lack of defence capability and the European military forces’ reliance upon existing NATO military assets and structures.9
Fifteen years ago, on 7 February 1992, the Member States of the European Economic Community (EEC) entered a new phase in the ongoing process of intensifying their political cooperation. In signing the Treaty on the European Union (TEU) they officially embraced the foreign and security cooperation as an inextricable component of what they referred to as ‘the Union’. From the entry into force of the Treaty on 1 November 1993 the Common Foreign and Security Policy (CFSP) was seen as one of the areas that served as the justification for the establishment of that Union.
The issue of the autonomy of the EU legal order from norms adopted by other international organisations has been raised primarily by the Court of Justice vis-à-vis the European Community of late. Notwithstanding the fact that the jurisdiction of the Court does not extend to Title V of the EU Treaty on the Common Foreign and Security Policy, it is nevertheless interesting to study the impact of a security organisation like NATO on the autonomy of the EU because of the blurred legal borders between policy areas and the need for coherence and effectiveness in the realm of EU external action. This chapter sheds light on NATO's influence on the development of the European Union's institutional design, policy-making and operational experience gathering in the field of the Common Security and Defence Policy. © 2013 T.M.C.ASSER PRESS, The Hague, The Netherlands, and the authors. All rights reserved.
The transatlantic security project — with its central focus on the North Atlantic Treaty Alliance (NATO) — was by many accounts a phenomenon that occurred because of the bipolarity of the international system during the Cold War. The main contention of this article is that the foundation of the transatlantic security project was built on a paradox. The transatlantic security project may have been the right response to the security challenges of the Cold War, but the project, as conceived originally, was not able to meet the new challenges brought by the fall of the Soviet Union. With the Cold War gone, the nature of the power relations between the main pillars of the transatlantic relationship, the US and the EU, started to change. Therefore, what best defines the idiosyncratic existence of the transatlantic space de notre jours? In order to answer this question, this article is structured as follows. First, I analyse the paradox of the transatlantic security project. I then explore the relationship between the newly created EU institutions and NATO. Third, I claim that the Clinton administration tried to solve the transatlantic paradox by taming European power, that is, by making efforts to tie the EU's security institutions into NATO. By contrast, the Bush II presidency has tried to divide European power. I conclude by arguing that references to the transatlantic relationship, as to a monolithic bloc — a way in which it was conceived and referred to during the Cold War — no longer reflect the new transatlantic reality. A new transatlantic security space has been emerging; a more fragmented space — a space invested with a new dynamic, in which actors' security and geo-political concerns have started to diverge.International Politics (2008) 45, 382–397. doi:10.1057/ip.2008.9
The North Atlantic Treaty Organization (NATO) and the European Union's (EU) European Security and Defense Policy (ESDP) both occupy the policy space of crisis management. This overlap has two effects. First, overlap has generated “chessboard politics” shaping member state strategies. Second, institutional overlap has generated a number of feedback effects. The prior existence of NATO shaped the conceptualization and organization of ESDP at its creation, and the existence of two alternative security institutions continues to influence the ways that the institutions evolve—how each institution defines security interests and how member states adjust the mandate of each institution to address changes in the security environment. Because both institutions are intergovernmentally organized and consensus-based, the actions and decisions of both institutions reflect the agreements of members. Chessboard politics and feedback effects are consequently interrelated—states strategize to affect outcomes in one venue or another, and decisions in one institution can affect decisions and behaviors in the other institution.
Die Gemeinsame Außen- und Sicherheitspolitik (GASP) sowie die Europäische Sicherheits- und Verteidigungspolitik (ESVP) gehören
inzwischen zum Besitzstand, zum acquis communautaire, der EU. Zwar weisen diese neuen Politikfelder europäischer Zusammenarbeit noch bei weitem nicht die Integrationsdichte auf,
die im gesamten Komplex der ersten Säule, d.h. der Binnenmarktverwirklichung mit ihren tiefgehenden Harmonisierungsmaßnahmen
inzwischen erreicht wurde; dafür stehen allein schon die spezifischen Entscheidungsregeln der so genannten 2. Säule des Unionsvertrags,
die im Intergouvernementalismus verbleiben und den Mitgliedstaaten eine herausgehobene Rolle im Vergleich zu den Gemeinschaftsorganen
Kommission und Parlament einräumen. Ohne jeden Zweifel jedoch weisen die sich mit „Lichtgeschwindigkeit“ (Javier Solana) einstellenden
Fortschritte die GASP und ESVP als das Zukunftsprojekt der EU aus, das dem Integrationsprozess nach der Verwirklichung des
Binnenmarktes, der Währungsunion und der Osterweiterung neue Horizonte für die „immer engere Union der Völker Europas“ (Art.
1 EUV) aufzeigt. Denn es geht nun darum, die EU zu einem auch in der Außen- und Sicherheitspolitik handlungsfähigen Akteur
auszubauen, der die grundlegenden Werte und die gemeinsamen Interessen wirkungsvoll vertreten sowie die Sicherheit und Unversehrtheit
der Union gewährleisten kann. Zudem versetzt nur eine glaubwürdige außen- und sicherheitspolitische Akteursqualität die EU
in die Lage, gleichberechtigt an der Seite der USA einen substantiellen Beitrag zum Aufbau einer gerechten und nachhaltigen
internationalen Friedensordnung sowie zur weltweiten Durchsetzung von Demokratie und Rechtstaatlichkeit zu leisten.
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