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The EU’s Foreign, Security and Defence Policy Fifteen Years after Maastricht: A Constitutional Momentum?

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Abstract

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.

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This book takes a fresh look at the external relations of the European Union (EU) and in particular the Common Foreign and Security Policy (CFSP). Rather than focusing exclusively on the competence aspects of the institutions and actors, the book makes the case that the CFSP can be understood as a system of governance, which produces effects beyond the traditional tools associated with foreign policy. The theoretical approach draws on insights from new institutionalism, constructivism and the institutional theory of law and emphasises how the institutionalised forms of cooperation in the external sphere contribute to a social reality in which the 'added value' of the CFSP can be seen. Paul James Cardwell takes the Euro-Mediterranean Partnership (EuroMed) as a case study. Not initially a CFSP project, EuroMed has become the frame for EU foreign policy in the region as an emerging system of governance in which the EU institutions play a central role. Having recently been relaunched as the Barcelona Process: Union for the Mediterranean, it is a topical subject. With the increasing importance of migration on the EU's agenda, the book looks at the relationship between migration, EuroMed and the CFSP and argues that the legal effects of the CFSP can be felt beyond the Treaty-based instruments. EU External Relations and Systems of Governance will be of interest to students and scholars of Law, Politics and European studies researching in the dynamic fields of EU external relations and foreign policy, as well as policy-makers and non-governmental organisations striving to better understand how the EU and its systems of governance operate.
Article
Full-text available
This book takes a fresh look at the external relations of the European Union (EU) and in particular the Common Foreign and Security Policy (CFSP). Rather than focusing exclusively on the competence aspects of the institutions and actors, the book makes the case that the CFSP can be understood as a system of governance, which produces effects beyond the traditional tools associated with foreign policy. The theoretical approach draws on insights from new institutionalism, constructivism and the institutional theory of law and emphasises how the institutionalised forms of cooperation in the external sphere contribute to a social reality in which the ‘added value’of the CFSP can be seen. Paul James Cardwell takes the Euro-Mediterranean Partnership (EuroMed) as a case study. Not initially a CFSP project, EuroMed has become the frame for EU foreign policy in the region as an emerging system of governance in which the EU institutions play a central role. Having recently been relaunched as the Barcelona Process: Union for the Mediterranean, it is a topical subject. With the increasing importance of migration on the EU’s agenda, the book looks at the relationship between migration, EuroMed and the CFSP and argues that the legal effects of the CFSP can be felt beyond the Treaty-based instruments. EU External Relations and Systems of Governance will be of interest to students and scholars of Law, Politics and European studies researching in the dynamic fields of EU external relations and foreign policy, as well as policy-makers and non-governmental organisations striving to better understand the EU and its systems of governance.
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The entry into force of the Lisbon Treaty on 1 December 2009 is generally believed not to have had a large impact on the Union’s Common Foreign and Security Policy. In fact, most commentators would argue that the ‘second pillar’ remained in place. The place of the common foreign and security policy (CFSP) as the only policy area in a separate treaty (the Treaty on European Union (TEU)), even distinct from all other rules on external relations (in the Treaty on the Functioning of the European Union (TFEU)), indeed supports this view. In addition, the treaty itself makes quite clear that “The common foreign and security policy is subject to specific rules and procedures” (Art. 24.1 TEU).
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This contribution analyses the provisions on the Common Security and Defence Policy (CSDP) in the Treaty establishing a Constitution for Europe (EU Constitution), focusing on elements that constitute a further development of the present acquis in this field. It successively addresses the adoption and status of the EU Constitution and the place of the CSDP therein, the objectives, scope and missions of the CSDP, the actors, decision-making, instruments and implementation, capabilities and permanent structured cooperation, financing, enhanced cooperation and cooperation with third States and other international organisation and concludes with some final remarks. The author argues that the commitment to a common defence as a future objective, the mutual defence clause, even with its caveats, the explicitly broader definition of the EU’s crisis management missions, the possibility of enhanced cooperation on defence and of entrusting the execution of a mission to a group of Member States, the commitment to improve capabilities, the permanent structured cooperation and the creation of the function of the Union Minister for Foreign Affairs are significant positive developments in the EU Constitution regarding the CSDP. However, he submits that the CSDP still faces several major challenges, in particular some of the provisions concerned are rather ambiguous, a reference to cooperation with NATO is lacking, Member States will have to live up to their commitments and it remains to be seen whether the EU Constitution will enter into force.
Article
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.
Article
The Dutch have been counted among the staunchest supporters of European integration ever since the parliamentary ratification of the European Community for Coal and Steel in late 1951. The major political parties—the Christian Democrats (CDA) and its forerunners, the Labor Party (PvdA), and the liberal parties VVD and D66—supported all important European treaties of the past decades. Only the smaller orthodox-Calvinist parties, some smaller left-wing parties, and, more recently, the List Pim Fortuyn (LPF) have opposed these treaties in parliament. This overwhelmingly large support in the Second Chamber of the Dutch parliament included the Treaty of Rome of 2004—the treaty establishing a constitution for Europe. One hundred twenty-eight out of 150 members of parliament favored the ratification of the European Constitution
Community Dimensions of the Second Pillar The European Union after Amsterdam: A Legal Analysis The Hague: Kluwer Law International at 187: “[...] the second pillar concerns only politics and not legislation This view also seems to be widely held by political scientists. See for for instance
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For an evaluation of the external relations under the new Constitution, see in general Thym, D.: ‘Reforming Europe’s Common Foreign and Security PolicyThe Draft Constitutional Treaty: External Relations and External Action
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Judgments can be found at
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The European Union after Amsterdam: A Legal Analysis The Hague: Kluwer Law International 179-193 at 187: “[...] the second pillar concerns only politics and not legislation This view also seems to be widely held by political scientists. See for for instance
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Köln: Carl Heymanns Verlag 1994, who himself also concluded: „Die vorstehenden Ausführungen bestätigen zunächst die überwiegend vertretene Ansicht, daß bei den Vereinbarungen der Politischen Zusammenarbeit mangels Rechtsbindungswillens keine rechtlichen Normen begründet worden sind“ (p. 169)
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For an evaluation of the external relations under the new Constitution, see in general Thym, D.: ‘Reforming Europe’s Common Foreign and Security Policy
Deventer: Kluwer, 1998 at 193 and 194: “Decisions on Common Positions or Joint Actions are first and foremost political obligations
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The European Union as an Actor in International Relations
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