APPOLLONIANS
AND
DIONYSIANS
IN
EUROPEAN
INTEGRATION
MA Thesis in European Studies
Graduate School for Humanities
Universiteit van Amsterdam
Author : O.F.J. van Krugten
Student number : 10780890
Main Supervisor : Ms. Prof. Dr. L.A. Bialasiewicz
Second Supervisor : Mr. Dr. J.B.M.M.Y. Shahin
June, 2018
Analysing the incomplete status of
European integration in the context of the
2015 Migrant Crisis
—
the
ACKNOWLEDGEMENTS
—
I would like to thank Leila Bodeaux, Styne Hyldekjaer, Vincent Piket and Sofiane Ouaret for allowing me insight into EU daily practice, Florian Trauner for a rather enjoyable conversation, and above all Luiza Bialasiewicz for her ceaseless guidance and words of encouragement.
the
PREFACE
—
If, during my BA European Studies and MA Governing Europe, any characteristic of the European Union (EU) has been elucidated it is that throughout the Anthropocene no such brilliant diplomatic amalgamation of nation-states has been attempted, let alone succeeded. On the other hand, the still-yet-to-be-defined nature of said cooperation allows for endless debate on the EU’s function and functioning; hence it comes as no surprise that Euroscepticism predates the EU. Scepticism of intra-European cooperation rears its head, most notably, when the EU is faced with crises; exemplary for which are the 2009 Greek government-debt crisis and the 2015 Migrant Crisis. EU decision-making in times of crisis 1
demonstrates a subcutaneous disunity among Member States c.q. their solidarity is far from unconditional. Consequently, it is during crises that the existing union on the European continent is tested most.
For my BA thesis I researched the EU’s Common Fisheries Policy (CFP), which seems a far cry from the subject matter at hand here, though it had a surprisingly similar scope. In short, through CFP subsidies the EU encourages fishermen to improve their fishing methods and techniques. Some Member States, such as The Netherlands, substantially subsidized fishermen who innovated; other Member
I feel it is necessary to point out that I find the terminology ‘Migrant Crisis’ problematic when
1
referring to the humanitarian catastrophes which occurred as a result of unregulated and irregular migration towards the EU. Much rather I would like to speak of ‘Political Crisis emanating from the EU’s inability to effectively and unifiedly address said humanitarian crises’. For stylistic reasons I chose to stick to ‘Migrant Crisis’.
States, such as France, did not. Electric Pulse Fishing (EPF) has become the standard for fishermen, scientists and politicians in countries that invested in innovation; even environmentalists were on board. Not having subsidized its fishing fleet as much as The Netherlands, France opposed EPF reasoning that Dutch fisherman had an unfair competition advantage (Bolongaro 2018). When it came to a vote in the European Parliament (EP) on implementing the now-test-and-tried EPF across the EU fishing fleet, both The Netherland and France utilized their lobby apparatuses to make sure of a favourable outcome. On 16 January 2018 the EP voted to henceforth prohibit the use of towed gear and all static nets (EP 2018a). However trivial the previous may seem, my imagination was sparked. If a Member State can either take a disproportionate lead in applying EU policy —the Dutch Case— or can utilize its lobby in order to alter the outcome of a voting applicable to the EU as a whole —the French case; what more can be established by Member States acting within the boundaries set by the EU on the basis of individuality? During the 2015 Migrant Crisis political individuality was a characteristic widely showcased by Member States. Hence, in this thesis I will analyse EU migration and asylum policy in the context of the 2015 Migrant Crisis.
the
INDEX
—
the ACRONYMS & ABBREVIATIONS 2
the LIST OF TABLES 4
the INTRODUCTION 5
the FIRST CHAPTER –The Incomplete Status of European Integration 8
the SECOND CHAPTER –Internal EU Migration and Asylum Policy 23
the THIRD CHAPTER – External EU Migration and Asylum Policy 37
the FOURTH CHAPTER –The 2015 EU Migrant Crisis 54
the CONCLUSION 67
the BIBLIOGRAPHY 73
the
ACRONYMS & ABBREVIATIONS
—
AAM :
Associated African States and Madagascar ACP : African, Caribbean and PacificAMIF : Asylum, Migration and Integration Fund AVR : Assisted Voluntary Returns
CEAS : Common European Asylum System CFP : Common Fisheries Policy
CFREU : Charter of Fundamental Rights of the European Union CFSP : Common Foreign and Security Policy
CSDP : Common Security and Defence Policy
DG MHA: Directorate-General for Migration and Home Affairs EASO : European Asylum Support Office
ECom : Commission of the European Union ECou : Council of the European Union ECB : European Central Bank
ECDPM : European Centre for Development Policy Management ECHR : European Convention on Human Rights
ECJ : European Court of Justice
ECSC : European Coal and Steel Community EDF : European Development Fund
EEA : European Economic Area
EEAS : European External Action Service EFSF : European Financial Stability Facility EI : European Integration
EIF : European Integration Fund
EMAP : European Migration and Asylum Pact EMU : European Economic Monetary Union EP : Parliament of the European Union
(R)EPA : (Regional) Economic Partnership Agreements EPF : Electric Pulse Fishing
ERF : European Refugee Fund ESM : European Stability Mechanism
ETFA : European Emergency Trust Fund for Africa EU : European Union
EUMP : EU Mobility Partnerships Eurodac : European Dactyloscopy
FRONTEX : European Agency for the Management of External Borders (Frontières
extérieures)
GAM(M) : Global Approach to Migration (and Mobility) GATT : General Agreement on Tariffs and Trade
HFSF : Hellenic Financial Stability Fund
HR/VR : High Representative and Vice Presidency of the Commission IOM : International Organization for Migration
LDC : Least Developed Countries MPF : Mobility Partnership Facility MPI : Migration Policy Institute NPE : Normative Power Europe OCA : Optimum Currency Area
OCT : Overseas Countries and Territories ODI : Oversees Development Institute RF : Refugee Fund
SIS : Schengen Information System UK : United Kingdom
UN : United Nations
UNPFA : United Nations Population Fund
UNHCR : United Nations High Commissioner for Refugees US : United States of America
the
LIST OF TABLES
—
Table 1 : EU enlargement rounds, respective decade and typification 16
Table 2 : Internal EU policy or (policy) instruments and respective 23 year of signing
Table 3 : External EU policy or (policy) instruments and respective 38 year of signing
Table 4 : GAMM framework and respective year of signing 44
Table 5 : State of implementation of the Valletta Action Plan up to 46 December 2016 (Genetzke 2016)
Table 6 : Total number of persons arriving to the EU and to Greece, 51 Italy and Spain (2014 - 2018) (UNHCR 2018)
Table 7 : Summaries of EU policy or instruments as provided in this 52 chapter and respective year of signing
Table 8 : Recognition rate per country on international and national 58 grounds; recognition rate on international grounds only; the
recognition rate adjusted for all composition effects (Leerskes 2015); first time applicants per Member State (Eurostat 2018d). Year presented: 2014
the
INTRODUCTION
—
[…] we are on a rising slope of a mountain pass we have never climbed before and so have no inkling of what sort of a view will open up once we reach the top. We are not sure where the twisting gore will lead us; one thing we are sure of is that we cannot settle and rest here, on a steeply rising path (Bauman 2004, 140).
I feel that the previous, uttered by sociologist and philosopher Zygmund Bauman, is a cunning premonition and an encouragement. What he states is concerned with the ever-progressing process of European Integration (EI); what he states concerns me. Indeed, the path of EI is long, unpredictable and unbeaten; in this master thesis I will shed light on just a small length of it. I will do so by analysing the EU’s efforts in the policy fields addressing asylum and migration. 1
Until 2014, asylum applications to the EU hovered between an average of twenty to thirty-thousand per month, spiking to one hundred and eighty-thousand in October 2015 (Eurostat 2018a), resulting in a political crisis in the EU. Consequently, Hungary closed its border with Croatia in order to keep displaced persons to seek refuge in their country, Slovenia tightened its borders, the Swiss threatened to close theirs; all the while Italy, Spain and Greece were left having to deal with the lion’s share of the direct consequences of incoming migrant flows, individually. Refuting the previous, the number of asylum applications has dropped substantially as soon as EU Member States took collective action.
Political individuality put aside, the humanitarian crisis resulting from migration flows from Africa and the Middle East towards the EU has been tackled effectively by the –
Immigrating are those who travel away from their country of origin, they are then migrating into another
1
country. For stylistic reasons I will henceforth use ‘migration’ to indicate those traveling into the EU. Semantically, I do thus not discriminate between the reason for migrating, i.e. fleeing harm, the pursuit of economic prosperity etcetera.
financial– efforts of the EU as a whole. Emanating from the debate on said crisis, a EP vote ruled in favour of increasing funds for migration-related issues to the tune of seven hundred and twenty-eight million euro on 28 November 2017 (EP 2018b). On 5 April 2017 the EP pledged close to four billion euros to be made available additionally to address the direct effects of incoming migration (EP 2017a), i.e. establishing refugee camps, Frontex’ Triton etcetera. To involve a greater cross-section of EU society in addressing migration, the EP established the European Fund for Sustainable Development on 6 July 2017, which aims to: ‘mobilise forty-four billion euro in private sector investment in Africa and the EU neighbourhood’ (EP 2017b). The previous votes of the EP are among the key EU decisions that have led to a significant decrease of persons applying for asylum in the EU, i.e. twenty-seven thousand persons applied for asylum in December 2017 (Eurostat 2018a).
It seems to me that through joint EU effort crises can be dealt with accordingly. I, though, argue that such crises would have a lesser place of existence in a more political and economic unifiedly functioning EU. As mentioned above, I will substantiate this argument by theoretically analysing EU migration and asylum policy. I will do so based on the hypothesis that the process of EI is unfinished, which I will elaborate in the first chapter. Ultimately, I strive to answer the research question noted below.
To what extent is EU asylum and migration policy hindered by the incomplete status of EI?
To conduct this analysis one needs to familiarize one’s self with leading historical and current academic and political voices in the field of EU migration and asylum policy. What is more, one needs to demarcate the policy area one is to research. In my case this encompasses defining ‘migration’ and ‘EU migration and asylum policy’.
‘Migration’
According to the United Nations Population Fund (UNPFA), migration is an: ‘important force in development and a high-priority issue for both developing and developed countries. The majority of migrants cross borders in search of better economic and social opportunities. Others are forced to flee crises […]’ (UNPFA 2018).
In the case of the migration flows towards the EU the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) speak of ‘Mixed Migration’. Both organizations discriminate between migrants and refugees, the former feel that they will have better and/or more economic opportunities in the EU; their journeys are governed by the IOM. The latter are cared for by the UNHCR, they have been displaced by crises in their own countries and seek asylum in the EU, to which they have the right on the basis of the United Nations’ (UN) 1951 Convention Relating to the Status of Refugees.
‘EU migration and asylum policy’
As is discriminated between migrant according to motivation, EU migration policy can be subdivided according to orientation, c.q. policy is either oriented inwards or outwards. I will thus separately analyse and discuss internal and external EU migration and asylum policy.
Internationally, policy on migration was established at the 1951 Geneva Convention, which was signed and ratified by all six founding members of the European Coal and Steel Community (ECSC). From then on the paths towards the Common European Asylum System (CEAS) and the European Migration and Asylum Pact (EMAP) were commenced as part of EI; culminating in the now-applicable Dublin III Regulation. These schemes are part of internal EU policy on migration and asylum. EU external migration and asylum policy was initially institutionalized through the implementation of the European Development Fund (EDF) at the 1957 Treaty of Rome. For the first time Member States noted their specific intention to: ‘lead [non-European countries and territories] to the economic, social and cultural development to which they aspire’ (article 131). Through the EDF the Member States have since maintained a unified stance on aid and development policy with non-EU countries.
During an interview with Mr. Trauner, Research Professor at the Institute for European Studies in Brussels, on the matter of internal and external EU policy he stated that in order to properly and efficiently face crises occurring outside the EU, properly and efficiently functioning internal EU politics are most important (personal communication 2 February 2018). As noted above, I will elaborate the hypothesis that the process of EI is incomplete. In the second chapter I will chronologically summarize internal EU migration and asylum policy. In the third chapter I will analyse external migration and asylum policy in the same fashion. Combined the first three chapters function as the theoretical foundation on which I will ultimately build my analysis of EU migration and asylum policy in the context of the 2015 Migrant Crisis. The fourth and final chapter is dedicated to the analysis of the 2015 Migrant Crisis in the light of some of the findings from the earlier three chapters.
the
FIRST CHAPTER
—
The incomplete status of European integration
Professor Florian Trauner mentioned that the EU’s interior functioning is of paramount importance to the proper and efficient functioning of any external EU policies (personal commutation 2 February 2018).2 As we are researching EU immigration and asylum policy, and more specifically as we are seeking to demarcate some of the ways in which EU migration policy is hindered by the incomplete status of EI; it is important to elucidate the hypothesis that the process of EI is incomplete. In this chapter I will, therefore, look into the most common theoretical conceptions of EI where after I will contextualize the hypothesis by using the 2009 Greek government-debt crisis as an example.
Why does EI come to transpire?
Substantial amounts of research and analysis have been dedicated to attempt defining the process of inter-Member State institutional integration into what is now the EU.3 EI is the umbrella term for all such processes. Below, I will list the most common theories and descriptions of what EI encompasses and thus how they depict the EU as a whole. The best developed and, popularly, best perceived narratives concerning the beginnings of the EU focus on the intentions for intra-European integration, namely: the EU as a safeguard against another (World) war; the EU as a normative power (NPE); or the EU’s geopolitical and expansionist considerations.
The narrative depicting the EU as a safeguard against war is used on the EU’s website, which, about its own beginnings, states:
The European Union is set up with the aim of ending the frequent and bloody wars between neighbours, which culminated in the Second
All notes I took during my interviews in Brussels and over the phone are included as appendices.
2
I rely on Douglass North’s definitions of institutions, namely: ‘the humanly devised constraints that
3
World War. As of 1950, the European Coal and Steel Community begins to unite European countries economically and politically in order to secure lasting peace (EU 2018a).
This account defines EI first and foremost as a necessary measure to safeguard the continent from the repetition of the atrocities of the Second World War, while at the same time providing the conditions for long-term EI. This and similar rationalisations of EI were later coined ‘peace through European integration’ narratives (Smisman 2010, 46), on which I will elaborate below. As mentioned before, the no-war-evermore-narrative has since been popularly adapted in EU society (Idem), though it has never been without academic criticism, most notable of which is economic historian Alan Milward’s. In The
European Rescue of the Nation State, Milward (1992) challenges this common narrative
by suggesting that the six founding members of the EU (then: ECSC) were concerned much more with economics then previously suggested. Milward points out that:
[…] a strong common identity of thought between Spaak, Schuman, Adenauer, de Gasperi and Monnet. It is to be found in their
understanding of the search for security by the western European population by 1945 and the very wide interpretation they, like the population, gave to it (Idem, 337).
In other words, in the very beginning of the European project it was widely understood that much more was needed to secure Europe than is prescribed in a narrow conceptualization of safety, i.e. cooperation in the fields of military defence and physical protection. A wider perception of peace offers an insight into the founding fathers’ considerations, namely that Western Europe’s peace and security was best served by deep and wide integration across a great many different fields of expertise, though all contributing to the construction of a European Welfare State (Idem, 1992). Therefore, Milward argues: ‘It is no paradox that the arch-saint of integrated Europe was also the founding father of French national planning, nor that Adenauer can now be seen as the father of German reunification’ (Idem, 344).
NPE, which has its root in Francis Duchêne’s (1972) ‘idée force’ and Johan Galtung’s (1973) ‘ideological power’, encompasses all narratives suggesting the EU’s: ‘ability to shape conceptions of ‘normal’ in international relations’ (Whitman 2011; Manners 2002) and that therefore: ‘the EU should be studied according to ‘what it is’ rather than ‘what it does or says’ (Milward 1992, 252). I will further elaborate NPE in the second chapter. Professor Stijn Smismans, Jean Monnet Chair in European Law and Governance, analysed various ‘peace through EI’ narratives to determine what the EU is. He (2010) demarked four such narratives, which are often linked to a tradition of supporting fundamental rights presumed inherent to the European project:
(1) the legal narrative: fundamental rights are principles of Community Law and therefore of the EU as a whole; (2) the
constitutionalizing narrative: explicit inclusion of fundamental rights as foundational principles in the constitutional texts of the EU and the strategic use of constitutional references by the political institutions to increase support for European polity-building; (3) the fundamental social rights narrative: building a single market was for may accompanied by progress in Europe’s social dimension; (4) and the external relations narrative: in 1991, the Commission initiated EU policy on development, democracy & human rights in external relations (Idem, 47-54).
Smismans challenges the historical and factual accuracy of the narratives noted above. He states, for instance, that fundamental rights were not at all represented in the initial outline of the 1957 Rome Treaty; (Western) European countries have a problematic history filled with war and bloodshed, on the continent and beyond; and that, objectively speaking, determining any EU ‘common values’ is troublesome (Idem). In the second chapter I will discuss how human rights did come to spearhead EU policy. Both the narrative depicting the EU as a safeguard against another (world) war as well as the NPE narrative can therefore be interpreted as ‘foundational myths’ (Idem).
A third narrative concerned with the initial intentions for EI focusses on EU geopolitical and expansionist considerations. Authors such as Syp Wynia (2014) and Anet Bleich (2018) have suggested that the EU was part of quintessentially American (US) foreign policy, just as the Marshall Plan was, to stabilize the continent; secure a capitalist stronghold; and create a buffer zone to fend off Communism encroaching for the East. Anna Michalski (2014) labels this as a natural solution to the unnatural division of Europe caused by the Cold War. This Pax-Americana-narrative is sustained by Milward’s (1992) analysis of Jean Monnet’s memoirs, which bears no evidence of Monnet having taken up the cause of Western European integration before 1948, which was the exact time that he realized that it was a central objective of the US administration (Idem). Coinciding with the build-up to the fall of the Berlin Wall, the influence of and involvement of the US in EI quickly diminished. Henry Kissinger (in office 1973 - 1977) 4
was the first Secretary of State to openly deviate from the US’s previous profound preference for European unity as a buffer to Communism (Bleich 2018, 174). By then the EU (then: European Economic Community (EEC)) had developed a considerable economic and political pull, which appealed neighbouring countries to establish a suitable relationship with the EU (Michalski 2014). Vice versa, said success had significant impact on EU inter-Member State politics, its institutional structure, and mixture of policy field attended to (Idem). Facilitating the flourishing of foundational myths, a more self-characterizing approach to EI, and a self-definitional acquis communaitaire
Of course, geopolitics still make up a viable part of EU policy; exemplary hereof is the Stabilization and
4
(henceforth: Acquis), its economic and political success swiftly elevated the EU to a sizable geopolitical player.
Andrew Moravcsik (2013), leading scholar in the field of EI, argues that economic reasons for EI always come first, geopolitical reasons come second. He states that: ‘major integration decision are better explained with more narrowly focused theories of economic interest, bargaining, and institutional choice drawn from the general literature on international cooperation’ (Idem, 19). Exemplary for his line of reasoning are inter-Member State differences and similarities in, respectively, geopolitical and economic policy fields. All Member States pleaded for the creation of a EU Welfare State, this economic measure was deemed necessary to establish and maintain peace on the European continent (Milward 1992). Member governments diverged on the matter of their geopolitical allegiance to the US, i.e. in The Netherlands it was, at times, hard to even question McCarthyism while Charles de Gaulle objected to too much US influence (Bleich 2018, 39 and 79). These differences resulted in diverging policy on the matter of, for example, the 1973 Yom Kippur War; the ensuing oil crisis; and considerations leading to the EU accession of Greece, Portugal and Spain (Idem). The previous sustains Moravcsik’s argument that, in EI, economic reasons bear more influence in major integration consideration than geopolitical reasons do; therefore EU economic policy is more acuminate than its geopolitical counterpart. Capturing his line of argument in the theory of liberal intergovernmentalism, Moravcsik established a convincingly comprehensive depiction of EI, one which can hardly be avoided.
To conclude: why did EI come to transpire? The dominant interpretations of why EI came to transpire, as discussed above, depict it did so because the European nation-state could be saved through EI; because the Member States share and defend some form of fundamental rights; or since the EU would prove to be suitable buffer to counter the Communist threat. An amalgamation of these, presumably, is the real reason for EI. Notwithstanding the previous, it must be noted that economic gain was at the forefront of it all.
How does EI come to transpire?
Now is clear why EI comes to transpire, we can dedicate ourselves to determine how it does so. I will shed light on four classic theories demarking the process of EI, EU Treaties, and the role that EU expansion has within EI.
From its initiation onward, perceptions of the foundational intentions for European unification have changed over time and have even been mystified -–as described above. Therefore, a plethora of approaches to the process of EI exist, mostly determined by Member States’ individual preferences. For instance, Joseph Luns and Max van der Stoel, respectfully the Dutch Minister of Foreign Affairs and his Deputy Foreign Minister in the 1960s, pleaded for a ‘union of six’, which was to be politically supranationally integrated and would have strong military ties to the US (Bleich 2018, 79). In the same period
Charles de Gaulle vetoed the United Kingdom’s (UK) accession to the EU (then: EEC) and supported the idea of l’Europe des parties, an intergovernmental cooperation of nation-states (Ibidem). Theorizing such forms of EI is useful since theory can help explanation or understand, describe and analyse, or serve as critique through normative intervention (Wiener and Diez 2009, 18-19). Besides supranationalism and intergovernmentalism, I chose to shed light on the theories of federalism, and neofunctionalism because they are among the classics of EI theory and therefore have a benchmark-status. What is more, I chose said theories given their relevance to the policy field I will research in the following chapters; the same applies to the theory of multilevel governance as well the principle of ‘Failing forward’ on which I will elaborate below. I will try and test the relevance of and ability to theoretically conceptualize the incomplete status of EI of the theories and the principle of failing forward; as well as the ways in which they make insightful how the EU migration policy is hindered by the assumed incomplete status of EI.
Federalism has been defined as: ‘[…] a form of government in which there is a division of powers between two levels of government of equal status’ (Law 2013, 105). In other words, states partaking in a federation willingly share —or: pool— sovereignty amongst themselves by demarcating exactly which competences belong in the national and which in the federal realm. In the scope of historical EI, the period following the 1992 Maastricht Treaty has been labelled as a period of ‘Federalisation’, i.e. in this period Member States yielded an increasing amount of competences to centralised EU rule (Kelemen 2007). Contradictory to federalism, the theory of supranationalism depicts inter-state cooperation as a top-down process. Essential to the functioning of such a system is authority, c.q. sovereignty, being yielded to a super-state entity (Sweet and Sandholtz 1988). In the context of the EU this is often done on matters that transcend borders (environmental issues); when policy requires a unified stance (foreign policy); or to safeguard EU democracy (The European Parliament (EP)). Without decisive intervention in interstate bargaining by official supranational bodies, these negotiations would remain mired at a lowest common denominator of states’ or group interests (Moravcsik 2013). Contrary to supranationalism intergovernmentalism sees international cooperation as horizontal integration; the main actors, independent states, choose to cooperate and keep control over said cooperation, maintaining their sovereignty at all times. Intergovernmental bargaining, therefore, focusses on issue specific distribution of power, which reflects the nature and intensity of state preferences (Idem). Supranationalism and intergovernmentalism, thus, agree on the matter of institutionalism, i.e. embedding authority in a dedicated institution, which is done so throughout EI. Neofunctionalism, coined by Ernst Haas (1958), depicts the EU’s regional integration as a result of functional, political and cultivated spillover. Haas sees rationally operating countries as the main integratory actors, individually choosing to cooperate regionally (Risse 2004). According to neofunctionalist theory, ultimately, spillover on various level
of cooperation will lead to a form of super-national decision-making within a given geographical area. Spillover comes to transpire when 'dissonances' in EI exists, these occur when the process of integration is not complete yet (Niemann and Ioannou 2015). On the basis of the previous Haas defines EI as a process: 'whereby political actors in several, distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states’ (1958, 16).
Conceived by Liesbet Hooghe and Gary Marks, the theory of multilevel governance was specifically intended to define the process of governance in the EU. It depicts EI as an amalgamation of multilevel interaction and cooperation between states (Hooghe and Marks 2003). The process of EI, therefore, comes to transpire on more levels than the states’, c.q: through a: ‘large number of functionally specialized, intersecting, and flexible jurisdictions’ (Idem, 233). Hooge and Marks, thus, argue that EI and EU policymaking contributes to a dispersion of authority and influence amongst national, EU and subnational governmental actor (Bevir and Phillips 2017; Bolleyer et al., 2014; Hooghe and Marks, 2008; Kohler-Koch and Rittberger, 2009; Marks et al., 1996). Ultimately, the 5
theory of multilevel governance interlinks with the theory of supranationalism, through a five-step process:
(i) Governmental leaders face functional pressures from the changing scale of collective problems. Where the problems are transnational in scope, the most effective level of decision-making is similarly transnational. (ii) Post-WWII states have taken on a much broader range of policies related to economic growth and welfare. And achieving national policy goals frequently requires transnational cooperation. (iii) Governmental leaders benefit from shifting decision-making to the supranational level. Not only does it allow them to deliver policy outcomes voters desire, but it also allows them to shift blame onto Brussels for unpopular decisions and insulate decision-making from domestic pressures after they leave office. (iv) State executives have limited control over the activities and make-up of supranational institutions like the Commission and European Court of Justice. Combined with the extension of qualified majority voting in the Council, individual governments are frequently unable to
determine outcomes. (v) European integration occurred at a time when the pressures of superpower rivalry encouraged, rather than
discouraged, reducing barriers to trade across Western Europe. Given these factors, member states came to share domestic interest
The network theory adds to this debate governance by not only public but also by private actors; a network
5
thus includes: ‘all public and private actors involved in the design and implementation of policy in a particular policy sector' (Bevir and Phillips 2017, 670).
representation and policy influence with supranational and subnational public (Bevir and Phillips 2017, 688-689).
From the provided summaries of EI theory, common grounds can be demarked namely: EI is subject to a perpetual supranational v. intergovernmental dichotomy. Moreover, the variety of such theories defining EI demonstrates the lack of a political and academic unified stance on the matter of EI, this sustains the incomplete-status-argument made by academics such as German social theorist Jürgen Habermas (1996a, 1996b, 1999) and Wim van Meurs c.s. (2018). They argue that the process of EI is incomplete and therefore the EU as a whole remains still-yet-to-be-defined. The post-Maastricht Treaty period of ‘Federalisation’ can be labelled as another facet of this undefinable status (Kelemen 2007).
As mentioned above, by the time the Berlin Wall fell, the EU (then: EEC) had developed a considerable economic and political pull, which on the one hand ‘forced’ neighbouring countries to establish a suitable relationship with the EU, on the other hand it forced the EU to define itself (Michalski 2014). Consequently, EI has always been tightly linked to the question of EU enlargement as well as it has always had a strong introspective element. Therefore EI can to an extent, despite its incomplete status, be traced and defined by looking into a number of Treaties which contribute to EI and constitute the EU. Below I will chronologically interpret six thereof.
- 1951 Treaty of Paris establishing the ECSC: the founding member States created ‘interdependence in coal and steel so that one country could no longer mobilise its armed forces without others knowing’ (EU 2018b). Said treaty laid the political foundation of intra-European unity.
- 1957 Treaty of Rome: Member States set up the EEC and the European Atomic Energy Community (Idem) As mentioned above, the EEC started appealing to neighbouring countries economically, swiftly after its inception.
- The 1986 Single European Act’s spearhead was the added assent of the EP on the matter of EU enlargement. On the one hand this resounded the 1960’s cry for democracy (Bleich 2018; Angelis and Karamouzi 2016), on the other hand the idea of democracy was encouraged by the collapse of the Warsaw Pact and the unravelling of the Cold War framework (Tulli 2015). It must be noted that, at the time, all existing Member States, as well as those aspiring to be, shared economic, social and political values, therefore EU agreement and accession was not perceived as an obstacle (Michalski 2014).6
- 1992 Maastricht Treaty on European unification, which established the EU and introduced: ‘the co-decision procedure, giving Parliament more say in
This conviction, though, can as sich be perceived as problematic, as the Greek Junta did not end until 1976;
6
general Franco’s reign ended in 1975; and Portugal only knew democracy after the Carnation Revolution of 1974. For a discussion hereof see Emma de Angelis and Eirini Karamouzi (2016), who have written about enlargement and the historical origins of the EU's democratic identity.
making’ as well as: ‘New forms of cooperation between EU governments – for example on defence and justice and home affairs’ (EU 2018b). Moreover, the EU demarked ‘liberty, democracy, respect for human rights and fundamental freedoms and the rule of law’ as being its core commonly shared values (Council of the European Communities 1992, article 6).
- 1997 Amsterdam Treaty, in which the existing Member States, introspectively, agreed on the possibility to suspend the voting rights of a Member State found to be in serious and persistent breach of the aforementioned core principles (Michalski 2014).
- Unratified 2004 Constitutional Treaty which aimed to formulate a comprehensive
single constitution for the EU, but also included the possibility of a Member State withdrawing from the EU.
Political and economic reasons for EI can be distinguished in the above; one can also identify a move away from intergovernmental towards more supranational-oriented integration. This move corresponds with the political and academic debate concerning the incomplete-status-argument. In broad terms the development revolves around the question whether Member States should remain autonomous, or if they should yield ever-more sovereignty to the EU. In other words, EI is subject to a perpetual supranational v. intergovernmental dichotomy. In a EU-wide context the move towards supranationalism was made palpable by the 1960s’ cri de coeur for more democracy, preferably in its most direct form, disemboguing in the 1979 institution of the elected EP. The supranational tendency peaked at the 2004 Constitutional Treaty, which was perceived as an important step towards a supranational EU, while at the same time being thoroughly rooted in the principles of conferral, subsidiarity, and proportionality (EU 2004, 20). Further elucidating the supranational v. intergovernmental dichotomy; I would like to discuss the role of Member governments in EU decision-making.
Notwithstanding the influence internal Member State politics can have on EU decision-making in the context of EI intergovernmental bargaining can be overstated. What Paul Pierson (1996) coined ‘gaps’ in Member States’ influence on EU-decision-making are also constituted by:
(a) Governmental incumbents often apply a high discount rate to the consequences of their decisions. They do so to maximize their own interests, which are likely to centre as much or more on short-term electoral consequences as on the long-term implications for national sovereignty. (b) Gaps occur because of unintended consequences. Decision-makers operate with limited information in highly complex and interdependent environments where feedback loops and
interaction effects of various kinds are ubiquitous. (c) Policy
can ben immobilized by the dead weight of past initiatives, i.e. EU Treaties. (d) Historical evolution of policy increases the cost of exercising previously available options. Social actors respond to government actions. These responses will include the making of long-term commitments which increase the costs involved in any major policy reversal (Idem, 4-5).
The previous fills the gaps left by theoretically depicting Member Government in a less-influential, more nuanced fashion; with the empowerment of other, third-party, actors. In this way Pierson sheds light on the complex and entangled EU decision-making as part of the process of EI. This line of reasoning is sustained by Jan Palmowski who suggests that: ‘The enmeshing of national and supra- as well as international spheres means that the contemporary state cannot be analysed with the same tools and assumptions about political sovereignty as its nineteenth-century predecessors’ (2011, 631). This is made insightful by, among others, the fact that post-Maastricht Treaty, ECou, EP and ECom identified managing public opinion as a central purpose of treaty reform (Bevir and Phillips 2017, 700). An example of enmeshing is the reciprocal ‘Hothouse effect’ (De Bruin 2015) that exists between Member States’ national politics and their EU-wide counterparts, which is effectuated through the process EI. In light of the previous it seems to me that it is important to note the role of national (historic) self-images in the perception of EI (Ragnar de Roode 2012). In sum, though Member governments may, theoretically, partly be excused for their ambiguous bargaining role, in practice they remain the central actors in a dynamic of piecemeal retroactive integration; policy failure; followed by further piecemeal integration. The previous is constituted by the principle of ‘Failing forward’, which I shall elucidate below.
Above I have made insightful the benefits of EI, similarly, EU
expansion, c.q. geographical integration on the European continent, has clear benefits, among which are: a larger market; increase in decision-making effectiveness; and sharing common policies (Sedelmeier 2000). The EU enlargement rounds are listed in table 1.
Richard von Weizsäcker c.s. suggested that initially EI did not intend the EU to have to support such quantities of Member States (currently 28). He therefore argued that its institutional framework and decision-making processes had to be adjusted to either qualified majority or unanimity, depending on the issue at hand (1999, 12). Though
New Member States Decade Typification
Greece, Spain, Portugal 1980s Southern Enlargement
Austria, Finland, Sweden 1990s EFTA Enlargement
Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Bulgaria, Romania, Croatia
2000s Eastern Enlargement
necessary, these adjustments were merely technicalities, imperative to implement cooperation between states which shared economic, social and political values, c.q. the EU’s acquis (Michalski 2014). Opening up EU expansion towards the East, the fall of the Wall forced Member States to redefine their fundamental values, which aspiring government have to implement in full, to facilitate the smooth accession of former Communist states (Whitman 2011). These fundamental standards were captured in the 1993 Copenhagen Criteria, which encompass: ‘political, economic criteria and the regulation of administrative and institutional capacity to effectively implement the Acquis’ (EP 2018c). The EU could invigorate their values by making claim to its NPE which is the EU’s ability to shape conceptions of ‘normal’ in international relations’ (Manners 2002, 239). What is more, Diez and Pace, state that through NPE the EU: ‘is not simply able to shape conceptions of what is seen as normal; its effectiveness rather relies on the extent to which other actors accept the role that EU actors themselves project for themselves into international politics’ (2011, 223). In other words, applicants states perceive the EU as a benchmark for democracy to live up to (De Angelis and Karamouzi 2016).
In other words, because of NPE the EU can impose its Acquis on would-be Member States as well as influence the broader international political playing field. Börzel and Lebanidze (2017) have coined this: ‘The transformative power of Europe’; it is also known as the EU’s soft or civilian power (Sedelmeier 2014). According to Manners civilian power contains three dimensions: (a) multilateralism: diplomatic cooperation to solve international problems; (b) non-military: centrality of economic power; and (c) international law: legally-binding supranational institutions (2002, 253). Thus, the EU capitalizes on its economic and political privilege by establishing NPE in its international interactions, whereby it becomes a political system sui generis (Levenex et al. 2009, 793).
The 2009 Greek government-debt crisis
Now that the theory of EI has been discussed, we can carry on to elaborate on the practice of EI. This chapter is dedicated to elucidate the assumption that the process of EI is 7
incomplete, I will contextualize said incomplete status by looking into the 2009 Greek government-debt crisis below. The foundations for the 2009 Greek government-debt crisis were, arguably, laid at the 1992 implementation of the (European Economic Monetary Union ) EMU. From its inception and ratification at the 1992 Treaty of Maastricht, the EMU was applicable to all EU Member States. The three levels of EMU cooperation are:
1. liberalizing the movement of capital;
2. establishing the European Monetary Institute, succeeded by the European Central Bank (ECB);
This section builds on three unpublished essays (Van Krugten 2018a; 2018b; 2018c).
3. introduce the euro as common currency (EU 1992).
Though only nineteen out of the –still– twenty-eight Member States have reached –or: have been willing to reach– the third level of EMU cooperation; the EMU, ultimately, encompasses a harmonized inter-Member State system of monetary policy with the euro as its official currency.
To facilitate the smooth transition into the EMU, both in the 1992 Maastricht Treaty and subsequent 1997 Stability and Growth Pact agreed was on the necessity of a ‘high degree of sustainable convergence’ (EU 1992, 41) for Member States and those aspiring to accession. In theory, this precautionary measure can avert the consequences of an asymmetric shock, i.e. an international finical or economic crisis, though at least three institutional EMU peculiarities contradict that. (i) To ensure of unitary cooperation and observations of the rules set, EMU Members agreed to oversight and regulation by national institutions (Jones et al 2016, 1018). Apart from not tolerating supranational EMU oversight, (ii) Member States were unwilling to financially support EI as was agreed that the –already modest– EU budget was not to be increased (Idem, 1017). (iii) The EMU was implemented with the decision distinctly not to pool Member States’ debt. Another unfortunate characteristic of the EMU is the lack of flexibility –both on the labour market as well as wage inflexibility– in and between Member States (De Grauwe 2013a). The drawbacks of these inflexibilities are emphasized by the ECB’s single monetary policy covering the diverse nature of all Member States’ national entities, social partners and economic (f)actors. Discussing the one-size fits-all approach of ECB policy Otmar Issing, Member of the Executive Board of the ECB, stated: ‘To the question whether a single one-size monetary policy could fit all parties involved […] my answer was: One size must fit all.’ and: Today […] I am more confident in saying: One size does fit all’ (ECB 2005). On the basis of o.a. the EU’s inflexibility and its one-size-must-fit-all monetary approach Robert Mundell, recipient of the 1999 Nobel Memorial Prize in Economic Sciences in for his pioneering work in monetary dynamics, determined the EMU not to be an Optimum Currency Area (OCA) (1961). Thus, the consequences 8
of these measures, c.q. leaving vulnerable Member States susceptible to asymmetric shocks, were known when the EMU was initiated. For example, the European Commission (1977; 1993) and Kennen (1969) anticipated the shortcomings of the EMU and even then-European Commission president Romano Prodi stated: ‘I am sure the euro will oblige us to introduce a new set of economic policy instruments. It is politically impossible to propose that now. But some day there will be a crisis and new instruments will be created’ (Barber and Norman 2001).
An economic and monetary union, according to Paul de Grauwe (2013a), leading European political economist, can suffer from a number of auto-deficiencies. De Grauwe
It must be pointed out that, according to De Grauwe (2013), the EMU can, by means of EI, become an OCA
8
because the gains of the EMU move in step with EI. Therefore the benefits will outweigh the costs of the EMU, which will eventually prove to be an OCA.
distinguishes between member states of an economic and monetary union and non-member states; non-member states’ monetary and budgetary policies are limited compared to those of their non-member counterparts. He argues so because authority over the ‘normal’ monetary procedures of either devaluating a currency in times of economic bust; or coinage in times of boom, is transferred from member governments to an external entity, i.e. a central bank (Idem). What is more, in a monetary union a member state’s fiscal policy is limited, according to the rules set by the central bank.
Besides these limitations, common to any economic and monetary union, the EMU has an additional constraint, unique in its kind. Coined a ‘deadly embrace’ by De Grauwe (Idem, 53), this constraint encompasses the outflow of investments from debt-stricken countries towards their more fortunate EMU counterparts. ‘When the banks collapse, governments that do not want to let down the banks are threatened with insolvency. If one of the two falls off the cliff the other one is pulled down also’ (Idem, 3), thereby threatening the EMU as a whole due to its interdependent and interconnected nature. Said threat is amplified by the EMU’s decision to distinctly not pool Member States’ debt. In practice the previous means that, consequential of an asymmetric shock a debt-stricken EMU Member State will be caught in a monetary limbo as it can no longer pay its debts, is therein not supported by the EMU, cannot default, and sees pre-crisis investments in its economy being diverged outwards. Ensuing form the 2008 financial crisis, EMU interstate and interbank lending became either heavily problematized or were impossible at all, consequentially the dynamic De Grauwe described came to transpire, resulting in the 2009 Greek government-debt crisis. 9
As mentioned in the footnote below, a Greek bailout-out was inevitable. About this inevitability, Jones c.s. suggest that: ‘Governments refuse to agree to domestically unpopular reforms until they are convinced by further eruptions of the crisis that it is absolutely necessary to do so’ (2016, 1016). Herein, Germany, as the EMU’s biggest economy, had a leading role. Bernhard and Leblang (2016) have noted that Angela Merkel’s government stalled German contributions to said EMU bailout procedures, fearful of short-term political costs. Recognizing that a Greek default would have: ‘entailed the prospect of a massive inflow of migrants from Southern Europe into Germany […] and, in turn, could have cost Merkel’s coalition electoral support’ Germany eventually followed suit (Idem, 907). EMU’s Troika –encompassing representatives from ECom, ECB and the International Monetary Fund– brokered the bailouts with the Greek government. The resulting Hellenic Financial Stability Fund (HFSF) included a number of conditions, listed by former Greek Minister of Finance, Yanis Varoufakis (2017), in his autobiography:
It must be noted that, given the interdependent nature of the EU, EMU economies and the international
9
appreciation thereof the Greek economy had to be bailed out, as kicking a Member State out of the EU/EMU is no functional nor legal possibility. Paul de Grauwe, therefore, argues that the ECB should function as a ‘lender of last resort’; thereby: ‘creating confidence, such a commitment will ensure that the ECB does not have to intervene in the government bond markets most of the time’ (2013b, 530).
- Troika was to approve all board members of the HFSF;
- Troika was to approve the Greek tax department’s head person; - Troika was to approve all Greek privatizations.
The enumeration noted above shows that with the Greek parliament’s autonomy in its monetary and fiscal matters, a substantial part of the Greek sovereignty was effectively signed off to Troika’s supervision. Concerning the EMU, Member States were reluctant to integrate further than they, in 1992, deemed necessary. Witnesses thereof are the following measures: (a) EMU Members agreed to oversight and regulation by national institutions, not supranational regulation thereof (Jones et al 2016, 1018). (b) Member States were unwilling to commit to EI financially as it was agreed that the EU budget was
not to be increased (Idem, 1017). (c) The EMU was implemented with the decision
distinctly not to pool Member States’ debt. Exemplary of this attitude is the postponing by Angela Merkel’s government of German contributions to EU bailout procedures in fear of short-term political costs (Bernhard and Leblang 2016). Only when bailout schemes proved inevitable, furthering EI was agreed upon; it came to transpire in the form of the temporary 2010 European Financial Stability Facility (EFSF), followed by the permanent 2011 European Stability Mechanism (ESM) (Gocaj and Meunier 2013). Jones (2016), therefore, characterized the 1992 EMU as a ‘lowest common denominator solution’, consequential, he argues, of intergovernmental bargaining. Leading in Jones’ line of reasoning is the principle of ‘Failing forward’, on which I will elaborate in the following paragraph. EI, therefore has had a number of implications to the 2009 Greek government-debt crisis, the most profound of which are:
- without its own budget; intra-EMU debt burdening; and supranational oversight of monetary integration the EMU cannot institutionalise effectively; in times of crises Member States are left to fend individually. Therefore, the EMU has practically been stripped of its governing role (Maïr and Thomassen, 2010) - When bailout schemes proved inevitable to both the EMU and the Greek
Government, the latter’s autonomy in its monetary and fiscal matters was effectively side-lined. Therefore, due to the HSFS’s conditions, the Greek government was robbed of is representing role (Idem).
‘Failing forward’
Deriving from EMU Member States’ reluctance to integrate further than they deemed necessary it can be argued that a dichotomy exists within EI between, on the one hand, what is assumed economically, socially and, ultimately, politically acceptable for a given individual EU Member States; and, on the other hand, what is so in context of the EU as a whole. Facilitating this dynamic is the principle of ‘Failing forward’, which ultimately sustains EI, but with every advance made it causes EU decision-making to become ever-more entangled and opaque. Below I will conceptualise the principle of ‘Failing forward’.
Jones et al. state that: ‘Governments refuse to agree to domestically unpopular reforms until they are convinced by further eruptions of the crisis that it is absolutely necessary to do so […] ’ (2016, 1016). This line of reasoning is further sustained by what Bernhard and Leblang (2016) noted about the German government’ reluctance to commit to the EMU bailouts. Combining Haas’ neofunctionalism, which includes rational-choice susceptible to third-party influence, with government-led decision-making applicable in Moravcsik’s intergovernmentalism; Jones (2016) completes the reasoning that Member Sate-specific politics can have a profound influence on EI and therefore on EU policy. We, can therefore conclude that: the intergovernmental bargaining, c.q. EI that lead to the implementation of the EMU, being susceptible to Member State’s internal politics, causes incomplete decision-making; and that, therefore, the EMU is a lowest common denominator solution. Jones c.s. explains as follows:
[…] national leaders are reluctant to delegate authority or undertake other necessary reforms in the (for them) present and would rather leave that task to their successors. Putting off more comprehensive reforms may ultimately prove more costly, because incomplete institutions are self-undermining: They stimulate further functional spillovers that perpetuate the cycle of crises (2016, 1017).
Demarcating exactly what the principle of failing forward encompasses, Jones notes a characteristic –and observable– dynamic thereof, namely:
(a) member governments introduce incomplete governance structures as a result of lowest common denominator bargains, (b) at least some national leaders involved in these bargains indicate that they believe the incomplete governance structures are likely to prove inadequate, (c) the incomplete governance structures generate functional
spillovers that help spark future crises, (d) and the cycle repeats itself (Ibidem).
In sum, on the one hand EI becomes ever more entangled and opaque due to the principle of ‘Failing forward’, which encompasses a dynamic of piecemeal retroactive integration; policy failures; followed by further piecemeal integration (Jones et al. 2016; Van Krugten 2018a). On the other hand, I argue that despite its entangling nature, the principle of ‘Failing forward’ has contributed to the continuation of EI (Idem; idem).
Concluding remarks
Professor Trauner suggested during our interview (personal communication 2 February 2018), that the EU’s interior functioning is of paramount importance to properly and efficiently functioning external EU policy. In this first chapter, I have elucidated, therefore, the hypothesis that the process of EI is incomplete by looking into the theories on the subject matter. Thereafter I contextualized the incomplete status of EI by using the
example of the 2009 Greek government-debt crisis. I paid special attention to the principle of ‘Failing forward’.
Both ‘Failing forward’ as well as above noted the characteristics of the theory of multilevel governance can be distinguished in the overview of the 2009 Greek government-debt crisis. What is more, the intergovernmental v. supranational dichotomy; NPE; and the EU’s political and economic pull can be extracted from the provided overview. A mixture of multilevel governance, failing forward and ongoing intergovernmental v. supranational quarrelling, I argue, in part constitutes the incomplete status of EI. In the following chapters I will set myself to chronologically summarise and analyse internal and the external EU migration and asylum policy. On the basis of the principle of ‘Failing forward’, presented in this chapter, I argue that the EI constituting said EU policy is susceptible to internal politics of EU Member States. Therefore decision-making on the subject matter is ever-more entangled and opaque. In a letter to the American concert pianist and professor Joseph Bloch Friedrich Engels penned the following quote, which I have come to gather is rather applicable to the subject matter:
Denn was jeder einzelne will, wird von jedem anderen
verhindert, und was herauskommt, ist etwas, das keiner gewollt hat (Engels 1890).
the
SECOND CHAPTER
—
Internal EU Migration and Asylum Policy
In this chapter I will summarize internal EU migration and asylum policy. Both the 10
summaries provided below as well as those provided in the following chapter will help us contextualize the full scope EU migration and asylum policy. Combined the first three chapters function as the theoretical foundation on which I will ultimately build my analysis of EU migration and asylum policy in the context of the 2015 Migrant Crisis. Hence, I will summarize and analyse the EU programmes and (policy) instruments listed in table 2.
The distinction between ‘internal’ and ‘external’ EU migration and asylum policy is mine. With ‘internal’
10
policy I mean policy which is primarily focussed on attending to arrivals within the EU’s geographic boundaries. ‘External’ policy is mostly intended for and executed outside the geographic boundaries of the EU.
EU policy or (policy) instruments Year
European Convention on Human Rights 1950
UN Convention Relating to the Status of Refugees 1951
Schengen Agreement 1985
Dublin I Regulation 1990
Tampere Programme 1999
Dublin II Regulation 2003
The Hague Programme 2004
Stockholm Programme 2010
European Asylum Support Office 2011
1950
As noted in the first chapter, the 1957 Treaty of Rome does not specifically mention (fundamental) human rights; yet it can be argued that, by then, EU Member States had already outlined their intentions in that field in the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (better known as the European Convention on Human Rights or: ECHR). The ECHR, therefore, can be regarded as the 11
start of human rights history in Europe. The rights of the moving and migrating within EU territories, though, were only guaranteed later, in the Piermont case, in which the European Court of Human Rights (ECHR) (1995) ruled, on the basis of ECHR Article 11, that EU Member States had to guarantee a subject from another Member State his/her rights as is if he/she was one of their own, i.e. EU nationals cannot be considered aliens on EU territory. The ECHR guarantees fundamental human rights such as a fair trial, liberty, security and privacy; it does not however guarantee the rights of migrants or refugees –though it can adjudicate rights of EU residents.The history of guaranteeing the legal rights of refugees began with the signing of the 1951 Geneva UN Convention Relating to the Status of Refugees, which: ‘as a post-Second World War instrument, was originally limited in scope to persons fleeing events occurring before 1 January 1951 and within Europe. The 1967 Protocol removed these limitations and thus gave the Convention universal coverage’ (UN 2010, 2). It can thus be argued that international policy on refugees and migration started out as an answer to displacement problematics among European states; the European-made blueprint was quickly adapted universally. As of then: ‘The Convention [became] a status and rights-based instrument and is underpinned by a number of fundamental principles, most notably non-discrimination, non-penalization and non-refoulement (Idem, 3). To conclude, though not specifically mentioned in its constitutional documents, both the rights of refugees and migrants have been considered and addressed by the EU and its Member States since the initiation of the European project. This can be argued so because the 1950 ECHR and the 1951 Geneva Convention, respectively, guaranteed fundamental human rights and the legal rights of refugees. It must be noted, though, that these initial considerations were limited to migration and seeking asylum within the geographical boundaries of the European continent.
Human rights quintessentially EU ?
– se non è vero, è molto ben trovato
Notwithstanding the previous and as noted in the first chapter, demarcating human rights as EU ‘common values’ is troublesome, given many Member States’ history filled with war and bloodshed, on the continent and beyond. Therefore, narratives claiming human
Established by the Council of Europe, the ECHR is a European affair and is thus presided over by the
11
European Court of Human Rights. Embedded in the 2009 Lisbon Treaty, the Charter of Fundamental Rights of the European Union (CFREU) is a EU competence, interpreted by the ECJ.
rights to be quintessentially EU can be interpreted as ‘foundational myths’ (Smismans 2010). To understand how human rights did come to spearhead EU policy –which was preceded by the above mentioned ECHR and the Geneva Convention– one needs to trace the legal roots of the European project. Done so was by Professor Joseph Weiler. Weiler (1991) argues that during the EU’s ‘Foundational Period’ (1958 – 1970s), the EU established –or: constitutionalized– its legal order as an autonomous entity, directly applicable to its Member States. The European Court of Justice (ECJ) did so by embedding important precedents in a number of its rulings, thereby establishing legal doctrines which have proven to be instrumental to the process of EI. Below I will elaborate on four such doctrines.
Important to the effective process of EI is, first and foremost, (a) the doctrine of ‘Supremacy’. Embedded in the ECJ’s 1963 Van Gend and Loos ruling, said doctrine established the ECJ’s Kompetenz-Kompetenz, i.e. norms only become applicable in Community law if so determined by the ECJ (Idem). (b) The doctrine of ‘Direct Effect’, which determines that:
Community legal norms that are clear, precise, and self-sufficient […] must be regarded as the law of the land in the sphere of application of Community law. Direct effect (a rule of construction in result) applies to all actions producing legal effects in the Community: the Treaty itself and secondary legislation (Weiler 1991, 2413).
The importance of direct effect lies in the accountability of Member States, which now, when in breach of Community law and obligations cannot: ‘shift the locus of dispute to the interstate or Community plane’ (Idem, 2414). However audacious the steps taken by the ECJ may be, the resulting doctrines of ‘Supremacy’ and ‘Direct Effect’ will generally not be instrumental to effective EU decision-making, concerning both internal policy-making and external treaty-policy-making. In other words: ‘The full realization of many [EU] internal policies clearly depended on the ability of the Community to negotiate and conclude international treaties with third parties’ (Idem, 2416). The doctrine of ‘Implied Powers’, therefore, determines that EU treaties do not necessarily explicitly have to mention specific competences, but that the implication of competences provided in a given doctrine suffice (Idem, 2416). Apart from providing EU institutions with the decisive legal power they necessitate when independently operating in international politics, the doctrine of implied powers also determined what where distinctly not to be EU competences. The ECJ did so through the doctrines of ‘Exclusivity’ and ‘Pre-emption’ both of which are complementary to ‘Implied Power’ (Idem, 2416).
About the reception of these measure in the Member States Weiler notes that: ‘The success of the [ECJ]’s bold moves with regard to the doctrines of direct effect, supremacy, implied powers, […] would depend on their reception by the highest constitutional courts in the different Member States’ (Idem, 2417). Of importance here is
the notion that for Member States to accept the supremacy of EU law guarantees had to be made on fundamental rights and freedoms. As an assurance that at this supreme law itself would not violate rights (Idem), hence the doctrine of (d) ‘Human Rights’ was adapted.12 The doctrine encompasses the ECJ review of EU measures for any violation of fundamental human rights (Idem, 2417). The ECJ thus acts as a ‘ruler of last resort’; guaranteeing Member States’ good conduct concerning the agreed upon CFREU.
On the basis of Weiler’s analysis, the institutionalization of the discussed legal doctrines during the foundational period of the EU can be regarded as an extraordinary accomplishment of the EU/ECJ; moreover it is a major step in the process of EI. Facilitating the effective conduct of the EU and its institutions, the ECJ broadened the legal foothold of EI by embedding important precedents in a number of its rulings. Hence, it can be argued that human rights became spearhead EU policy as a prerequisite for political acceptance of the aforementioned doctrines by the Member States
1985
Signed in the eponymous town in Luxembourg, the 1985 Schengen Agreement marked the beginning of intra-EU travel rid from the obstruction of physical borders. The six original signatories, thereby, established de facto and de jure free movement of persons throughout the Schengen Area (Haahr and Walters 2004, 93). Moving in step with the 13
abolishment of internal borders, the Schengen Agreement can be designated as a move towards common EU foreign and security policy. The Schengen Agreement has a number of institutional implications:
- cooperation on immigration policy was to be strengthened between Member States (Ibidem);
- a phenomenon known as ‘asylum shopping’ was to be fought back, c.q. multiple applications in multiple Member States was to be made impossible (Ibidem);
- combatting illegal immigration, the costs of border protecting were to be financed by countries losing an external border after the implementation of the Schengen Convention, i.e. The Netherlands, which is surrounded by Schengen Member States (Dinan 2005, 63);
- reinforcing police and judicial cooperation and exchange of information between Member States (Haahr and Walters 2004, 94). These initiatives were, at first, reluctantly received because of the perceived implication of invading state sovereignty (Idem, 564);
The Member States’ initial reluctance to the above mentioned doctrines is closely related to the
12
supranational v. intergovernmental dichotomy.
The movement of persons is one of the ‘Four Freedoms’ of the EU’s single market, the others are goods,
13
