EU Foreign Relations Law as a Field of Scholarship

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a "new legal order" distinct from international law—and it is concerned with the European Union as a global actor, a "strange animal" in that the EU is neither a state nor a classical international organization. This essay argues that in the emerging field of comparative foreign relations law, the law of EU external relations will be both a supporting pillar and important driver: A pillar, because, next to U.S. foreign relations law, it is one of the most vibrant scholarly discourses on the subject; and a driver, because it continues to be a fascinating comparator for national—especially federal—systems of foreign relations law that questions many of the assumptions underlying nation-based concepts and blurs the lines between national and international law.Global Challenges (FGGA

No mixed feelings: The post-Lisbon Common Commercial Policy in Daiichi Sankyo and Commission v. Council (Conditional Access Convention)

Double case note on the scope of the EU's Common Commercial Policy and the future of "mixed agreements" based on the two ECJ Grand Chamber Judgements Case C-414/11, Daiichi Sankyo Co. Ltd and Sanofi-Aventis Deutschland GmbH v. DEMO Anonimos Viomichaniki kai Emporiki Etairia Farmakon, Judgment of the Court (Grand Chamber) of 18 July 2013, EU:C:2013:520, and Case C-137/12, European Commission v. Council of the European Union (European Convention on the legal protection of services based on, or consisting of, conditional access), Judgment of the Court (Grand Chamber) of 22 October 2013, EU:C:2013:675.Case C-414/11, Daiichi Sankyo Co. Ltd and Sanofi-Aventis Deutschland GmbH v. DEMO Anonimos Viomichaniki kai Emporiki Etairia Farmakon, Judgment of the Court (Grand Chamber) of 18 July 2013, EU:C:2013:520, and Case C-137/12, European Commission v. Council of the European Union (European Convention on the legal protection of services based on, or consisting of, conditional access), Judgment of the Court (Grand Chamber) of 22 October 2013, EU:C:2013:675.Global Challenges (FGGA

Good global governance through trade: constitutional moorings

Ensuring good global governance through trade is not just a powerful idea, or a ‘global strategy’; it is also firmly anchored in the highest laws of the European Union. Promoting good global governance through trade policy brings together two of the hallmarks of the EU as an international actor. On the one hand, it concerns the area of the EU’s most obvious asset, its economic clout. On the other hand, this relates to the idea of the EU not only as a ‘civilian power’, but as a ‘normative power’ which shapes the world around it by harnessing its economic strength according to a larger vision and based on values which go beyond the strictly economic realm. In order to capture the constitutional moorings of the mandate to pursue ‘good global governance’ through trade and to elucidate its implications, the present chapter shines the spotlights on this issue through three different lenses: historical, comparative and legal-institutional. First, it retraces the evolution of this idea and its progressive codification in the course of time. Second, it puts the EU’s constitutional ‘conscience’ as a trade power into a comparative context. Against this double backdrop, the chapter then turns to the legal significance of such norms, addressing what they can – and cannot – achieve as norms of EU constitutional law.Global Challenges (FGGA

The EU's Global Strategy in the Age of Brexit and 'America First'

In June 2016, the European Union launched its new ‘Global Strategy for Foreign and Security Policy’. In less unusual times, it would have been received as merely the latest iteration of the main tenets and ambitions of EU external action, this time with an enhanced dose of pragmatism to respond to a more challenging international environment. However, with the contours of ‘Brexit’ becoming clearer and the start of the Trump Presidency in the United States, the EU’s Global Strategy has acquired a whole new level of significance. This paper argues that while meant to express a largely uncontroversial consensus, it now needs to be recontextualized as a distinctive vision in the face of trends of anti-globalism and Euroscepticism. This concerns in particular its emphasis on rules-based global governance. Challenged by both President Trump ‘America First’ policy and the British government’s course for a ‘hard Brexit’, the Global Strategy represents a blueprint and rallying point for a continued pursuit of a liberal world order based on the rule of law.Global Challenges (FGGA

Boosting the Reach and Resilience of International Justice Institutions

RECOMMENDATION: Increase the universal acceptance of international justice institutions, in particular the International Court of Justice (ICJ) and the International Criminal Court (ICC). Moreover, increase their enforcement powers, preserve their independence, and enhance their resilience against political pressures.Global Challenges (FGGA

Constitutional “World Views”, Global Governance and International Relations Theory

This paper addresses the constitutional entrenchment of foreign policy preferences, or “world views”, from the vantage point of International Relations theory. Empirically, norms that sketch out certain visions of global governance have become a popular feature of constitutional design. The paper expounds both their potential, as well as pitfalls to avoid, with a particular focus on Constructivist scholarship. In terms of their merits, they can serve as evidence of a “normative basis” for foreign policy and as parameters for legitimacy. Furthermore, they represent both evidence of, and fuel for, processes of socialization in foreign policy. However, Constructivists tempted to draw on such constitutional worldviews should heed three main caveats. Firstly, while the constitution is supreme in the legal realm, it is only one of many possible expressions of normative preferences from a political science perspective. Secondly, they should avoid confusion between domestic constitutional standards and universal ones. Thirdly, they should be aware of the problematic of the “dead hand of the past”, i.e., while constitutional entrenchment may lend norms particular gravitas, it also makes them prone to become out-dated. By staying clear of these pitfalls, Constructivist theorists can embrace contemporary constitutions in their quest to elucidate which principles and ideas shape the international order and its maturing legal framework.Global Challenges (FGGA

Critiquing the Transatlantic Trade and Investment Partnership (TTIP): Systemic Consequences for Global Governance and the Rule of Law

Considering the implications of the Transatlantic Trade and Investment Partnership (TTIP) for the architecture of global (economic) governance, including the international rule of law, the article addresses some of the most pertinent systemic consequences TTIP is likely to produce, based on the shape the agreement is currently taking. The article’s main arguments are that despite representing innovation and added value in some areas, TTIP may produce negative consequences in at least three respects. Firstly, it will cater to an imbalance in terms of access to justice in the area of investment protection; secondly, by providing a way out for the World Trade Organization's (WTO) two most active litigants, it can contribute to the de-judicialization of international trade law; and thirdly, it creates potential for a fierce backlash from the rest of the world as regards the global promotion of an overtly transatlantic regulatory and normative agenda.Global Challenges (FGGA

Kennedy’s ‘Two pillars’ revisited: does the ESDP make the EU and the USA equal partners in NATO?

This essay takes President John F. Kennedy’s visionary ‘Declaration of Interdependence’ of 1962, in which he called for a concrete transatlantic partnership on equal footing as the benchmark to assess today’s relationship between the USA and the European Union in defence matters. The central question is: can the European Union with its emerging security and defence policy be seen as one of the two supporting pillars of NATO next to the USA? To this end, the general security strategies, the institutional frameworks and capabilities, as well as the defence industries of both sides are compared. The result is that, although the strategies and initiatives taken by the EU point towards a more equitable partnership, the current state of capabilities and defence industries make it impossible to conclude that NATO rests on two equal pillars. Nevertheless, in view of the history of European integration and in anticipation of the fresh impetus to be given by the Obama administration, the author closes by suggesting a less static image of the transatlantic partnership, namely that of an ever-changing, yet ever-closer partnership.Global Challenges (FGGA

Prêt-à-ratifier: the CETA Decision of the French Conseil constitutionnel of 31 July 2017

This case note analyses the French Conseil constitutionnel's CETA decision of 31 July 2017 (ECLI:FR:CC:2017:2017.749.DC). The Conseil was the first national court to reach a substantive judgment on whether CETA was compatible with an EU Member State’s constitution, concluding that there was nothing in CETA that was at odds with French constitutional law. Given that CETA will also be subject to ex ante review at the European Court of Justice requested by Belgium, the Conseil constitutionnel’s decision is another milestone in the judicial saga surrounding CETA, but not the end of the road. The note argues that the Conseil employed a dynamic and cooperative interpretation of sovereignty and showed a strong attitude of deference both to France’s political branches and to the EU in terms of international treaty-making. There are, however, some aspects where the decision would have benefited from greater clarity. Nonetheless, instead of undermining France’s constitutional order, the Conseil confirmed the fundamental commitment of France to European integration and international cooperation. More particularly, it refrained from unduly interfering with the ability of the EU and its Member States to continue operating as a collective international actor.Conseil constitutionnel 31 July 2017, Décision n° 2017-749 DC, Accord économique et commercial global entre le Canada, d’une part, et l ’Union européenne et ses États membres, d 'autre part, ECLI:FR:CC:2017:2017.749.DCGlobal Challenges (FGGA

EU Foreign Relations Law as a Field of Scholarship

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a "new legal order" distinct from international law—and it is concerned with the European Union as a global actor, a "strange animal" in that the EU is neither a state nor a classical international organization. This essay argues that in the emerging field of comparative foreign relations law, the law of EU external relations will be both a supporting pillar and important driver: A pillar, because, next to U.S. foreign relations law, it is one of the most vibrant scholarly discourses on the subject; and a driver, because it continues to be a fascinating comparator for national—especially federal—systems of foreign relations law that questions many of the assumptions underlying nation-based concepts and blurs the lines between national and international law.Global Challenges (FGGA