By Prof. Dr. Thomas Giegerich, LL.M.*
- 9th November 1989: The Opening of the Berlin Wall Initiates the EU
On the occasion of the 65th anniversary of the Europa-Institut, we are organizing a conference on “The European Union as a Global Actor“ which starts on November 9th, 2016. Nov. 9th is a fateful day for Germany indeed. On four different occasions in the last 100 years, this country sent contradictory signals to Europe and the world on this very day:
On Nov. 9th, 1918, Germany signed the armistice agreement terminating the hostilities of World War I, and on the same day, the republic was proclaimed in Berlin. Not all agreed that this was a positive signal. On Nov. 9th, 1923, Adolf Hitler – one of the discontents – staged a coup d’état in Munich to destroy the German Republic. Although the coup was unsuccessful, it gave a negative signal in anticipation of the coming catastrophe. On Nov. 9th, 1938, an anti-Jewish pogrom was staged by the Hitler dictatorship, resulting in widespread death and destruction throughout the whole of Germany and Austria. That sent a very negative signal of racist lawlessness to the world, presaging the Holocaust.
Finally, on Nov. 9th, 1989, the Berlin Wall was opened and the Communist dictatorship in East Germany crumbled. The Iron Curtain was dismantled and Germany and Europe were reunited under the banner of freedom, democracy, human rights and the rule of law. This very positive signal closely relates to the topic of our conference. Nov 9th, 1989, paved the way for the creation of the EU as it is today and provided that Union with the opportunity to become a global actor. Whether and to what extent the Union has effectively seized this opportunity will be examined at our conference.
The first panel deals with the “European Neighbourhood and Enlargement Policy“, the second panel with the “European Migration Policy“, the third panel with the “Human Rights Protection in Europe“, the fourth panel with “Climate Change and Environmental Protection – Energy, Climate and Natural Resources“ and the fifth panel with “EU Trade Policy”.
- What Does It Take the EU to Be a Global Actor?
Reflecting briefly on the general theme of our symposium, I will try to answer the question what it takes the EU to be a global actor. Art. 3 (5) TEU actually mandates the Union to function as a global actor, charging it with making the world a better place. Sentence 1 of the provision contains the egoistic version of that mandate, ordering the Union to “uphold and promote its values and interests and contribute to the protection of its citizens.“ Sentence 2 of the provision, on the other hand, sets forth the altruistic version of the Union’s global mission: “It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.“ Art. 21 (1) subparagraph 1 TEU reaffirms and extends that mandate: ”The Union’s action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.“
While this sounds magnificent, the truth of the matter is that the EU can only be a global actor, if it is both willing and able to act effectively on the international scene. According to the principle of conferral, which is a fundamental rule of the EU constitution, this primarily depends on whether the Treaties have conferred the necessary competences upon the Union. Whenever the Union wants to act either inwards or outwards, it must establish a sufficient treaty basis of authority for its action. There are numerous such bases for external action of the EU, both in the TFEU and in the TEU. The TEU bases pertain to the Union’s external action in the area of the intergovernmental Common Foreign and Security Policy, and the TFEU bases to the Union’s external action in the area of all the other policies which are structured in the form of supranational integration. Art. 40 TEU erects an impermeable wall of separation between the CFSP and supranational integration.
Apart from the necessary treaty basis, the Union’s ability to act effectively depends to a large extent on the availability of a suitable decision-making procedure that procedure being predetermined by the pertinent treaty basis. Any procedure which requires unanimity of the European Council or Council is problematic because it gives every single Member State the possibility of blockading or blackmailing all the others. Since the unanimity rule pervades the CFSP, the EU has not yet shed the image of being an economic giant but a political dwarf. In the CFSP area, the Union has largely been unable to establish itself as a veritable global power. The mission of Art. 3 (5) TEU thus remains for the most part unaccomplished.
With regard to the policies in the area of supranational integration, the decision-making procedure is much more suitable for effective action because it mostly allows the Council to adopt decisions by a qualified majority. This also applies to decisions concerning external action in those policy areas. Accordingly, the EU is able to act effectively with regard to, e.g., foreign commerce. The Treaty of Lisbon has considerably extended the Union’s competences with regard to foreign commerce and also expressly made clear that these are exclusive.
But is the Union also willing to become an effective global actor? Apparently not – trade agreements are in practice still concluded in the form of mixed agreements because the Member States have insisted on remaining present on the international scene alongside the Union. This has led to the politically disastrous manoeuvres concerning the Comprehensive Economic and Trade Agreement with Canada (CETA), in which the regional parliament of Wallonia almost hamstrung the entire Union and turned it from a trade giant into a dwarf – there too! The craze for mixed trade agreements has opened the door to other veto players on the national level, including the German Federal Constitutional Court and now perhaps also the German Federal Council (the second chamber of the German legislature). On 30 October 2016, the Council unanimously adopted decisions on the signing of CETA on behalf of the Union and the provisional application of those parts of that agreement which fall within the competence of the Union, pending ratification. That was only possible because Canada was ready to agree on a Joint Interpretative Instrument to be annexed to CETA as an instrument in the sense of Art. 31 of the Vienna Convention on the Law of Treaties.
There is a way out of this dilemma: Mixed agreements should only be concluded where inevitable. And inevitable they are only if essential provisions, whose inclusion in the agreements is absolutely necessary, regulate issues which have remained in the exclusive competence of the Member States. If all the essential provisions of an agreement are covered by the exclusive and/or shared competences of the Union, that agreement can and should be concluded only by the EU. As a matter of fact, however, almost all agreements of the EU are turned into mixed agreements by either adding unnecessary provisions that fall within the exclusive competence of Member States or by not using available shared competences of the Union. This longstanding practice has led us into the interdependence trap of multilevel government with regard to EU external action.
The same holds true for association agreements which have also traditionally been concluded in the form of mixed agreements. This had never been a problem until the Association Agreement with Ukraine was voted down in a consultative referendum in the Netherlands earlier this year in which only a little over 30 per cent of the Dutch electorate participated. The EU and Member States are now eagerly trying to find a solution along the lines of CETA, i.e. in the form of an interpretive declaration annexed to the agreement clarifying that the concerns of the Dutch voters are unfounded. One should remember that the Ukraine has become and still is the victim of a foreign military aggression exactly because of that association agreement, and now anti-EU populists in the Netherlands have almost killed it with their referendum. This is simply irresponsible.
To those who say that these troubles are the price we have to pay for our democratic system of government my answer is: No, it is the price we have to pay for a dysfunctional decision-making procedure in the EU. In my eyes it is obviously undemocratic that a regional parliament representing less than one per cent of the citizens of the Union has a veto over the foreign trade agreements of the EU. It is just as undemocratic that roughly 19 per cent of the Dutch electorate, also constituting less than 1 per cent of the citizens of the Union, have a veto over the association agreements of the EU which are an important instrument of political and economic stabilization in our neighbourhood. If democracy means majority rule, it means one thing above all: That the majority must be able to rule without being vetoed by very small minorities.
To those who say that the participation of national parliaments or national electorates in the decision-making on whether agreements should be concluded by the EU enhances the legitimacy of EU external action my answer is: Think again and remember that the input legitimacy has to be distinguished from the output legitimacy of decisions. In a democracy, the input legitimacy of an authority increases if its decisions are approved by the parliament and is at its peak if they are approved directly by electorate. The output legitimacy of an authority increases with the simplicity of its decision-making process, because it will then be able to make many decisions and accomplish much. While the unanimous approval of an EU agreement by the parliaments and/or electorate of all the Member States thus undoubtedly enhance the input legitimacy of that agreement, it makes the conclusion of such agreements so difficult that it considerably decreases the output legitimacy of the EU with regard to external relations.
Unfortunately, anti-EU sentiment is currently growing in many if not all EU Member States. We will probably see more political manoeuvres of the aforementioned Wallonian and Dutch kind in the future. If we are unable to overcome the craze for unanimity in decisions concerning EU external action even where the Treaties do not require it, the Union will be made internationally irrelevant. Such a development would certainly serve the interests of neither the Union nor its Member States. Recent events in the wider world should teach us a lesson how necessary European unity is inwards and outwards. Or else our children and grandchildren will ask us one day why we gambled away the opportunity, which the fall of the Iron Curtain gave to Europe.
- The European System of Human Rights Protection – A Tale of Two (or More) Cities
Since 1945, human rights have been considered as foundational values of the global order as a whole. The first paragraph of the preamble of the Universal Declaration of Human Rights correctly underlines that the “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”. These global precepts have been transformed into treaty commitment by enshrining them in the European Convention on Human Rights. Following up on the ECHR which binds all EU Member States (though not yet the Union as such), Art. 6 TEU and the Charter of Fundamental Rights of the EU make fundamental rights the cornerstone of each and every Union policy.
It is therefore no coincidence that human rights run like a thread through all the panel topics. They obviously play an important role in the European neighbourhood and enlargement policy as well as the European migration policy. But they are also present in the EU trade policy, and even climate change and environmental protection indicate human rights problems whose importance is growing. Pollution and extreme weather phenomena such as droughts, flooding and heavy storms, whose frequency is increasing due to the climate change, take lives and destroy livelihoods. They also produce refugees. Even those who would not accept that a third-generation human right of peoples to a healthy environment has already become part of the international lex lata can hardly deny that pollution and climate change can lead to violations of first-generation civil and political rights as well as second-generation economic and social rights. In a number of cases, the European Court of Human Rights has made clear that pollution in the form of toxic or noise emissions can violate the right to respect for private life and trigger the protective duty of the state. Moreover, international humanitarian law has come to recognize that the protection of the natural environment and of works and installations containing dangerous forces is of the utmost importance even in armed conflicts and that not even military necessity can justify exceptions.
There are two sides to the protection of human rights “in Europe”, a Council of Europe and European Convention on Human Rights side and an EU side. Accordingly, the European system of human rights protection is at first glance a tale of two cities, Strasbourg (the seat of the European Court of Human Rights) and Luxembourg (the seat of the Court of Justice of the EU). Being German, however, I cannot but include a third city, Karlsruhe, the seat of the Federal Constitutional Court, and, being European, many more cities where we find other constitutional courts or supreme courts.
We have so far primarily been interested in the question of hierarchy of these courts: Who is supreme in cases of conflict, whose fiat prevails? Not unlike Lessing’s “Parable of the Three Rings”, I have always thought that this approach is false. While the competition between these judicial powers cannot be doubted, it is peaceful, not militant. None of the aforementioned three courts should content itself with the belief that its own decisions constitute binding authority to which the others simply surrender, or conversely, that it can get away with disregarding the others’ decisions. Rather, each of them should always remember that judicial authority is never more than persuasive. The judiciary has aptly been called the least dangerous branch of government because it “has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society … It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” What Alexander Hamilton explained with regard to the relationship of the judiciary to the political branches of government also applies with regard to the relationship of courts of different levels of government to one another. They should accordingly each try to develop the most convincing and practical solution to whatever human rights problem the cases pending before them involve. They should read and cite each other, engaging in fruitful discussion and cooperation and be ready to learn from one another in critical respect.
For the maintenance of the rule of law in Europe can only be successful, if it is conceived as a common endeavour and joint responsibility of the international court in Strasbourg, the supranational court in Luxembourg and the many national courts across the whole continent. It is the national courts which bear the main responsibility. Increased awareness of these interdependencies is gaining importance at a time, when nationalism, including its racist isotope xenophobia, religious intolerance and authoritarianism are again on the rise in Europe and elsewhere. We have to face the fact that our self-evident truths of liberty, equality and fraternity are today more contested than they have ever been after the dismantling of the iron curtain. I am worried about the attacks by religious extremists like the IS and other such groups, but I am much more worried about the attacks by home-grown political forces like Pegida and similar movements in other EU Member States. The human rights institutions and the private human rights defenders need to close ranks to meet this renewed challenge. Human dignity is and must remain inviolable in the EU and in the wider world.
The EU’s predecessors, primarily the European Economic Community, were founded in the 1950s by European states that were “resolved … to preserve and strengthen peace and liberty”, pooling their resources for that purpose in an institutional framework. The “liberty”-component of that integration goal was later more precisely defined by the guarantees of the Charter of Fundamental Rights of the EU of 1999/2007 whose Art. 1 protects human dignity. We have come a long way in ensuring respect and protection for human dignity in Europe and beyond in the last sixty years, but that task is never finished and will accompany us throughout the 21st century as a joint obligation of state and non-state actors. The European Union, its Member States and we, the citizens of the Union need to join forces and act globally as well as locally to fulfil that obligation. Of all these actors, the EU would make the greatest impact on the global level, if only it was willing to exercise the power it could muster. This brings us back to the question what it takes the EU to be an effective global actor …
*Chair of European Law, Public International Law and Public Law, Jean Monnet Chair for European Law and European Integration and Director, Europa-Institut. The speech was given at the conference „Connect Back – Alumni4Europe: The European Union as a Global Actor“, which took place on 9-12 November 2016 at the Europa-Institut.
 Art. 3 (6), Art. 5 (1), (2) TEU.
 The TEU or the TFEU (Art. 1 (3) TEU).
 Art. 24 (1) subparagraph 2 sentence 2, Art. 31 (1) TEU. See also the exceptions in Art. 31 (2) – (4) TEU which have not played any role yet.
 Giegerich, Wege zu einer vertieften Gemeinsamen Außen- und Sicherheitspolitik: Reparatur von Defiziten als “kleine Lösung”, in: Kadelbach (ed.), Die Europäische Union am Scheideweg: mehr oder weniger Europa?, 2015, p. 135 et seq.
 As defined in Art. 16 (4), (5) TEU in conjunction with the Protocol (No. 36) on Transitional Provisions and the Protocol No. 9.
 Art. 207 TFEU.
 Art. 207 (1) TFEU, as amended by the Treaty of Lisbon.
 Art. 3 (1) lit. e TFEU.
 The Commission has requested an opinion of the CJEU pursuant to Art. 218 (11) TFEU as to whether the Union has the power to conclude trade agreements without the participation of all the member states. That request was made with regard to the Free Trade Agreement the EU plans to conclude with Singapore (Opinion 2/15, pending). The opinion of the CJEU will also have consequences for CETA.
 Judgment of 13 October 2016 (2 BvR 1368/16 et al.) in which the court rejected requests for a preliminary injunction that would have prevented the German representative in the Council from consenting to the signature, conclusion and provisional application of CETA (but subjected that consent to certain conditions).
 The relevant documents are available at http://ec.europa.eu/trade/policy/in-focus/ceta/index_en.htm (accessed on 13 November 2016).
 Of 23 May 1969, UNTS vol. 1155, p. 331.
 The interdependence trap was researched by Fritz W. Scharpf regarding the German multilevel system of government and later also regarding the EU system (Scharpf, Die Politikverflechtungs-Falle: Europäische Integration und deutscher Föderalismus im Vergleich. In: Politische Vierteljahresschrift 26 , 323-356).
 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part of 27 April 2014, OJ L 161, p. 3 (not yet in force).
 See van Elsuwege, What will happen if the Dutch vote ‚No‘ in the Referendum on the EU Ukraine Association Agreement?, 10.2.2016, http://verfassungsblog.de/what-will-happen-if-the-dutch-vote-no-in-the-referendum-on-the-eu-ukraine-association-agreement/ (last accessed on 11 November 2016).
 “Government by the people“ in the words used bv Abraham Lincoln in his Gettysburg Address of 19 November 1863 (Selected Speeches and Writings of Abraham Lincoln, Vintage Books, 1992, p. 405).
 “Government for the people“ (Gettysburg Address, supra note 16).
 UNGA Res. 217A (III) of 10 December 1948.
 See Art. 8 and Art. 49 read together with Art. 2 TEU.
 See Art. 67 (2), (3), Art. 78 (1) TFEU in conjunction with the Geneva Convention of 1951 and Protocol of 1967 relating to the status of refugees as well as the ECHR.
 Art. 205 and Art. 207 TFEU read together with Art. 21 TEU.
 Epiney, ‘Réfugiés écologiques’ et droit international, in: Tomuschat et al. (eds.), The Right to Life, 2010, p. 371 et seq.
 But see the express provision of Art. 24 of the African (Banjul) Charter of Human and Peoples’ Rights of 26 June 1981 setting forth a right of peoples to a general satisfactory environment favourable to their development (available at http://www.achpr.org/instruments/achpr/ [accessed on 14 November 2016]). See Roht-Arriaza/Aminzadeh, Solidarity Rights (Development, Peace, Environment, Humanitarian Assistance), in: Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law (OUP online edition), margin notes 12 et seq.
 Such as the right to life (Art. 6 ICCPR), the right not to be subjected to inhuman treatment (Art. 7 ICCPR) and the freedom to choose one’s residence (Art. 12 ICCPR).
 Such as the right to the enjoyment of the highest attainable standard of health (Art. 12 ICESCR).
 Art. 8 ECHR.
 Grabenwarter, European Convention on Human Rights – Commentary, 2014, Art. 8 margin notes 18, 79.
 Art. 55, 56 of Protocol I Additional to the Geneva Conventions of 1977; Art. 15 of Protocol II Additional to the Geneva Conventions of 1977.
 The Federalist No. 78 (Alexander Hamilton), quoted from The Federalist (Modern Library College Edition).
 See the reaffirmation of the principle of subsidiarity which Art. 1 of Protocol No. 15 amending the ECHR of 24 June 2013 (not yet in force) will add to the preamble of the ECHR. According to that principle, the High Contracting Parties have the primary responsibility to secure the rights and freedoms defined in the ECHR and Protocols thereto, subject to the supervisory jurisdiction of the ECtHR.
 See paragraph 8 of the preamble of the TFEU which already appeared in the preamble of the Treaty establishing the European Economic Community of 27 March 1957.