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The role of law in Common Security and Defence Policy: functions, limitations and perceptions'

Koutrakos, P. (2011). The role of law in Common Security and Defence Policy: functions, limitations and perceptions'. In: Koutrakos, P. (Ed.), European Foreign Policy - Legal and Political Perspectives. (pp. 235-258). Cheltenham: Edward Elgar Publishing.


In an essay originally written in the early 1990s, Weiler wrote that, ‘[i]n some ways, Community law and the European Court were everything an international lawyer could dream about: the Court was creating a new order of international law in which norms were norms, sanctions were sanctions, courts were central and frequently used, and lawyers were important’.

This emphasis on law as a motor for integration has been apparent in the extraordinary process of group therapy which the European Union has undergone in the last nine years: the Laeken Declaration of the European Council in December 2001, the establishment of the European Convention, the process of the drafting of the Treaty Establishing a Constitution for Europe, the fateful story of its ratification, the Intergovernmental Conference which led to the signing of the Lisbon Treaty in December 2007, the tumultuous process of its ratification and its entry into force on 1 December 2009, all brought the law to the very centre of the debate about the Union’s direction. And as the process got longer and the road to the entry into force of the relevant legal arrangements revealed more roadblocks and turns than their drafters had envisaged, the debate became more heated and its subject-matter wider and more profound. The fate of the legal rules agreed upon first in the Constitutional Treaty and then in the Lisbon Treaty was associated with the very identity of the Union: law was seen as guaranteeing the effectiveness of the Union’s stature on the world scene. It is interesting in this context that, during the Russia–Georgia crisis in 2008, President Sarkozy of France, then holder of the rotating EU Presidency, wrote that, had the Lisbon Treaty entered into force,the Union would have had the appropriate institutions to deal with international crises. The Lisbon Treaty introduced a number of institutional innovations which provided a focal point for this debate about the role of legal rules in the EU’s foreign affairs. The appointment of the President of the European Council under Article 15(6) TEU, and the High Representative of the Union for Foreign Affairs and Security Policy under Article 18 TEU had been anticipated eagerly as boosting the ability of the Union to act on the international scene. Similarly, the establishment of the European External Action Service (EEAS) under Article 27(3) TEU had been viewed as enhancing the coherence of the EU’s foreign policies. The appointment of Herman van Rompuy, who had been the Prime Minister of Belgium for nine months, as the first President of the European Council, and Baroness Ashton, the Trade Commissioner for a year and a former head of a regional health authority in the United Kingdom, were subsequently viewed as distinctly underwhelming. As for the inter-institutional squabbles which marred the process of setting up the EEAS, they were not only unhelpful but also entirely typical of the internal conflicts which underpin the shaping of the Union’s external posture.

The analysis of the institutional innovations introduced by the Lisbon Treaty is beyond the scope of this chapter. Instead, the aim of this chapter is to focus on legal rules which govern the Common Security and Defence Policy, and examine the different functions which they may assume in areas which are at the core of national sovereignty. Therefore, the point of reference for this analysis is distinct from that of the quote which began this chapter: by focusing on the CSDP, one moves away from the tighter legal system set out in what used to be the Community legal order. However, it will become apparent that, whilst further away, the subject matter of this chapter is not entirely distinct from that legal order. The choice of topics it will discuss is highly selective, the aim being to highlight different functions that legal rules assume in the CSDP context. The analysis is structured as follows. First, the chapter will examine the mutual assistance clause introduced at Lisbon and will assess its limitations in terms of the legal duties it imposes on Member States. Second, it will outline the provisions on permanent structured cooperation and will comment on the issues which its application raises. Third, it will analyse the only provision of primary law on defence products, namely Article 346 of the Treaty on the Functioning of the European Union (TFEU), explain its evolving interpretation and set it out within the broader legal and political CSDP context.

Publication Type: Book Section
Additional Information: This material is copyrighted by Edward Elgar Publishing 2011. Any download is for personal use only.
Subjects: K Law > KZ Law of Nations
Departments: The City Law School > Academic Programmes
The City Law School > Institute for the Study of European Laws
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