The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy – EU Treaty Imperatives and Rule of Law Conditionality in the Foreign Trade and Development Nexus

Abstract

This article demonstrates that Arts. 21 and 3 (5) of the Treaty on European Union (TEU) as well as Arts. 205, 207 (1), 208 (1), 209 (2) of the Treaty on the Functioning of the European Union (TFEU), legally oblige the European Union (EU) to promote the rule of law in its foreign trade and development policy. Furthermore, it is shown that, in the context of such promotion, the EU applies not a rudimentary but a sophisticated concept of the rule of law – quite similar to the concept of the rule of law that has developed within the Union. To fulfill the legal obligation to promote the rule of law abroad, the EU employs, as a key instrument, the legal mechanism of conditionality, not only through autonomous instruments but also in its contractual international relationships (carrot-and-stick policy). The EU’s foreign policy in the trade and development nexus, in particular when it comes to the promotion of the rule of law, can, therefore, be considered a process, to a large extent, determined and organized the of law. 73 The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy A. Introduction – A Legal Perspective The EU pursues a policy of promoting the rule of law. This applies not only within the EU – regarding its own Member States1 and in the course of EU accession procedures2 – but also with respect to legal orders beyond the EU’s own (future) territory and jurisdiction. For this policy of promoting the rule of law aboard, the EU employs a variety of instruments.3 However, as the globally leading entity in development cooperation4 and one of the world’s largest trading powers,5 the EU is particularly well-positioned to pursue the policy of exporting values, such as the rule of law, 1 See L. Pech & K. L. Scheppele, ‘Illiberalism Within: Rule of Law Backsliding in the EU’, in K. Armstrong (ed), Cambridge Yearbook of European Legal Studies (2017), 3; see also the contributions of L. W. Gormley, P. Wennerås, M. Broberg, L. Besselink, F. Amtenbrink, R. Repasi, O. Stefan, A. von Bogdandy, C. Antpöhler, M. Ioannidis & J. W. Müller, in A. Jakab & D. Kochenov (eds), The Enforcement of EU Law and Values (2017); see also C. Closa & D. Kochenov, ‘Reinforcement of the Rule of Law Oversight in the European Union: Key Options’, in W. Schroeder (ed), Strengthening the Rule of Law in Europe (2016), 173; [Schroeder (ed), Rule of Law in Europe], E. Crabit & N. Bel, ‘The EU Rule of Law Framework’, in ibid., 197. 2 F. Emmert & S. Petrovic, ‘The Past, Present, and Future of EU Enlargement’, 37 Fordham International Law Journal (2014) 5, 1349, 1349-1355; H. de Waele, Legal Dynamics of EU External Relations (2017), 157-162. 3 See extensively, though with a particular focus on human rights, V. Haász, J. Jaraczewski & K. Podstawa, ‘The FRAME Toolbox for the EU Fundamental and Human Rights Policies’, European Commission, GA No. 320000 (2017); see also M. Cremona, ‘Values in EU Foreign Policy’, in M. Evans & P. Koutrakos (eds), Beyond the Established Legal Orders (2011), 275, 292-307 [Cremona, Values in EU Foreign Policy]; A. Kumin, ‘Global Activities and Current Initiatives in the Union to Strengthen the Rule of Law – A State of Play’, in Schroeder (ed), Rule of Law in Europe, supra note 1, 207; L. Pech, ‘Rule of Law as a Guiding Principle of the European Union’s External Action’, CLEER Working Papers (2012/3), 14-20 [Pech, Rule of Law]. 4 European Commission, Press Release, EU Official Development Assistance Reaches Highest Level Ever, IP/18/3002 (10 April 2018), available at http://europa.eu/rapid/press-release_ IP-18-3002_en.htm (last visited 13 December 2018); see also OECD, Development Aid Stable in 2017 With More Sent to Poorest Countries (9 April 2018), available at http:// www.oecd.org/development/financing-sustainable-development/development-financedata/ODA-2017-detailed-summary.pdf (last visited 13 December 2018). 5 The EU-28 accounts for around 15 % of the world’s trade in goods. In 2016 the EU-28 had the highest level of trade in goods (imports and exports) exceeding those of the US or China, see Eurostat, International Trade in Goods (2017), 1, available at http://ec.europa. eu/eurostat/statistics-explained/pdfscache/1188.pdf (last visited 13 December 2018). 74 GoJIL 9 (2018) 1, Special Ed. Holterhus, 71-108 through the medium of its foreign trade and development policies.6 A clear indication of such policy conception can be observed in the EU’s recent 2017 New European Consensus on Development which states: “The EU and its Member States will promote the universal values of democracy, good governance, the rule of law and human rights for all, because they are preconditions for sustainable development and stability, across the full range of partnerships and instruments in all situations and in all countries, including through development action.”7 It is this rule of law promotion policy, in the so-called foreign trade and development nexus, that shall form the general backdrop of this article – with the ‘foreign trade and development nexus’ in this context to be understood as the entirety of the EU’s international action (uni-, biand multilateral) in the closely interlinked and mutually reinforcing fields of trade liberalization and development cooperation (after all, many of the EU’s trade activities are not only conducted for the economic benefit of the Union but also for the development benefit of the respective partner States).8 In light of the specific topic of this GoJIL Special Issue, the article will approach the above-described general field of EU rule of law promotion in the foreign trade and development nexus from a particular analytical perspective – namely a legal perspective.9 With this perspective, the article focuses not 6 See J. Larik, ‘Much More Than Tarde: The Common Commercial Policy in a Global Context’, in M. Evans & P. Koutrakos (eds), Beyond the Established Legal Orders (2011), 13, 25-34 [Larik, Much More Than Tarde]. 7 European Commission, Proposal for a New European Consensus on Development – Our World, our Dignity, our Future (22 November 2016), COM(2016) 740 final/2, para. 49. The “New European Consensus on Development” is a non-legally binding joint statement of the Council, The European Commission, the European Parliament as well as the EU Member States, constituting a comprehensive common framework for European development cooperation, applying to the entirety of the EU’s institutions and all EU Member States. 8 See Larik, ‘Much More Than Tarde’, supra note 6, 25-34; on development cooperation see generally P. Dann, The Law of Development Cooperation: A Comparative Analysis of the World Bank, the EU and Germany (2013). 9 For a related approach see e.g. J. Larik, ‘Entrenching Global Governance: The EU’s Constitutional Objectives Caught Between a Sanguine World View and a Daunting Reality’, in B. van Vooren, S. Blockmans & J. Wouters (eds), The EU’s Role in Global Governance: The Legal Dimension (2013), 7 [Larik, Entrenching Global Governance]. 75 The Legal Dimensions of Rule of Law Promotion in EU Foreign Policy only on understanding which positive legal norms impel and drive the EU to promote the rule of law abroad, but also on exploring what legal instruments and mechanisms employed by the EU govern and organize the actual promotion and transfer processes. Consequently, the assessment aims to emphasize the law’s relevance in what often rather seems to consist of a sequence of decisions and aspirations in a predominantly socio-political sphere.10 With the aim of contributing to a better understanding of what might, therefore, be described as the law behind rule of law transfers, the article will proceed in two steps. First, the article will deal with the EU’s internal legal imperatives with respect to the promotion of the rule of law in the EU’s foreign policy (B.). Within this part, it will be assessed why a certain detachment of foreign policies from legal determination and control, typically to be observed in western constitutional democracies, does not hold true for the EU (I.), to what extent the EU is actually legally obliged to promote the rule of law in foreign policy With this article’s specific focus on the assessment of these legal dimensions of the EU’s rule of law promotion, other issues, notwithstanding how related they may appear, shall not be discussed. In particular, such issues would not include the legitimacy (‘legal imperialism’), overall effectiveness, or coherence of the EU’s approach. See on these issues e.g. R. Brooks, ‘The New Imperialism: Violence, Norms and the “Rule of Law”, 101 Mich. L. Rev. (2003) 7, 2275; A. Zimelis, ‘Conditionality and the E-ACP Partnership: A Misguided Approach to Development?’, 46 Australian Journal of Political Science (2011) 3, 389; R. Kleinfeld, Advancing the Rule of Law Abroad: Next Generation Reform (2012); A. Sepos, ‘Imperial power Europe? The EU’s relations with the ACP countries’, 6 Journal of Political Power (2013) 2, 261; L. Pech, ‘Promoting the Rule of Law Abroad: On the EU’s Limited Contribution to the Shaping of an International Understanding of the Rule of Law’, in D. Kochenov & F. Amtenbrink, The European Union’s Shaping of the International Legal Order (2014), 108, 119-128 [Pech, Promoting the Rule of Law Abroad]; L. Bartels, ‘The Application of Human Rights Conditionality in the EU’s Bilateral Trade Agreements and other Trade Agreements with Third Countries’ (2008), European Parliament, Policy Department External Policies [Bartels, Human Rights in EU Trade Agreements]; J.D. Saltnes, ‘The EU’s Human Rights Policy, Unpacking the literature on the EU’s implementation of aid conditionality’, ARENA Working Paper No. 2, (03/2013). 10 For a perspective rather emphasizing the political (science) and sociological dimension of rule of law promotion, see e.g. A. Magen & L. Morlino, ‘Hybrid Regimes, the Rule of Law, and External Influence on Domestic Change’, in A. Magen & L. Morlino (eds), International Actors, Democratizatio