An article by Prof. Dr. Thomas Giegerich
My “State of the European Union” overview briefly touches a small selection of the many legal and political issues that will keep the EU, Member States and the German Council presidency busy in the next months. In alphabetical order, these are: asylum reform after the Moria fire, Belarus after the rigged presidential elections, the Brexit and its uncertainties, the Multiannual Financial Framework not yet adopted, Russia after the Nawalny poisoning, transatlantic relations on the eve of the Presidential elections in the US, and the never-ending story of Turkey’s accession to the EU.
Asylum reform has long been overdue: Everyone knows that the Dublin system of entry-State responsibility for the processing of asylum applications which disadvantages the Mediterranean Members is unsustainable and that European solidarity would require a fair burden-sharing including redistribution of applicants among Member States. Everyone has also known for years that the living conditions at Moria and other Greek camps are inhuman, and thus incompatible with both Art. 4 of the EU Charter of Fundamental Rights and Art. 3 of the European Convention on Human Rights. The Commission announced new asylum reform proposals long ago, but has not yet delivered. Stay tuned to see if Europe opts for humanity or remains satisfied with hypocrisy in asylum matters.
In Belarus attempts to continue a Soviet-style system have reached a dead end when President Lukashenko claimed to have won the presidential election with 80% of the vote. Belarus violated its obligation under Art. 25 of the International Covenant on Civil and Political Rights to conduct genuine, free and fair presidential elections. Police brutality against peaceful demonstrators is incompatible with the right of peaceful assembly enshrined in Art. 21 of that Covenant. The Organization for Security and Cooperation in Europe is the proper forum to promote a dialogue between the Lukashenko regime and the opposition. The EU can support efforts to organise new presidential elections under strict international supervision. It can impose targeted sanctions against those responsible for the ever more violent crackdown, provided that the Council reaches a unanimous decision, as set forth in Art. 215 (2) TFEU read together with Art. 31 TEU. Concerning Belarus, keep your fingers crossed that there will be no bloodshed.
The Brexit has kept us busy for years. The Withdrawal Agreement (Official Journal 2020 L 29, p. 7 ff.) has introduced a transition period in which Union law continues to apply to and in the UK, but that will definitely terminate at the end of this year (Art. 126). One of the main concerns was to ensure that the border between the Republic of Ireland and the UK region of Northern Ireland remains open (see the Protocol on Ireland/Northern Ireland in the Annex to the Withdrawal Agreement). This is important for maintaining peace between the pro-Irish Catholics and the pro-UK Protestants in Northern Ireland. Efforts to hammer out a treaty on the future relations between the UK and the EU which maintains free trade came to a standstill last week when the UK Government introduced a Bill in Parliament that would renege on their commitments concerning Northern Ireland under the Withdrawal Agreement. As the Northern Ireland Secretary stated in Parliament: “[Y]es, this does break international law in a very specific and limited way.” If the UK Government does not come to their senses very soon, the treaty on future relations will not enter into force before the end of the transition period and the relations between the EU and the UK will be downgraded to WTO level. This will impede the free movement of goods and services and cause great harm on both sides of the Channel, but more in the UK whose trade with the EU amounts to almost half of its overall foreign trade . Stay tuned to see if British pragmatism ultimately prevails.
Another uncertainty concerns the extent of the collateral damage which Brexit has caused in terms of UK personnel in EU institutions. When UK membership terminated on 1 February 2020, the mandates of UK representatives in the EU institutions, in particular the Council, the Commission, the European Parliament and the CJEU ended (see 8th recital of the Preamble and Art. 7 (1) of the Withdrawal Agreement). Currently a case is pending in the General Court concerning the question whether this also applies to the Advocate-General from the UK (Eleanor Sharpston) whose six-year term of office would have run until 6 October 2021 but whom the Governments of the Member States by common accord (Art. 253 TFEU) replaced last week by Athanasios Rantos for the rest of the term, perhaps in violation of primary Union law (see, e.g., Dimitry Kochenov and Graham Butler, It’s Urgent, Verfassungsblog of 3 September 2020, and id., It’s Urgent II, Verfassungsblog of 11 September 2020). Ms. Sharpston instituted proceedings in the General Court (Case T-550/2) but failed to obtain an interim injunction in her favour. Her main action for annulment pursuant to Art. 263 TFEU against the Council and the Governments of the Member States is still pending. There will also probably be complaints about the illegal composition of the bench in future cases in which Advocate-General Rantos is involved. Stay tuned on how the CJEU deals with that matter which is of primary importance for the rule of law at EU level.
The next seven-year Multiannual Financial Framework (MFF) is currently being negotiated between the Council and the European Parliament. To be passed, unanimity in the Council and the consent of the majority of the component Members of the European Parliament is required according to Art. 312 TFEU. What makes matters more difficult than usual is the rule of law conditionality regime to be introduced this time. It means that EU funds will no longer be allocated to Member States that violate core elements of the rule of law such as the independence of the judiciary. This currently concerns primarily Hungary and Poland. While the European Council on 21 July 2020 agreed that a regime of conditionality would be introduced, the MFF requires the consent of the Hungarian and Polish Governments. Stay tuned to see if a rule of law conditionality accepted by them is worth the paper on which it is written.
The use weapons of mass destruction against opposition members and other unpopular people has become a habit in contemporary Russia. Alexej Nawalny is only the latest victim. The German Government has referred the matter to the Organisation for the Prohibition of Chemical Weapons. There may be new sanctions against Russia by the EU. I wonder whether the time has come for all or some EU Member States jointly to institute an inter-State application against Russia in the European Court of Human Rights pursuant to Art. 33 ECHR. The question is whether that would help improving the human rights situation in Russia or simply be a symbolic act for maintaining human rights credibility in the Council of Europe? Stay tuned on developments, not least on whether the North Stream II natural gas pipeline from Russia to Germany which is disliked by other EU Member States will be completed after all.
Stay also tuned on the promise the Commission President made in her State of the Union Address to the European Parliament last week to draft a proposal for a “European Magnitsky Act”. Such an act would make it easier to impose sanctions like asset freezes and travel bans on people suspected of human rights abuses. It would in particular do away with the necessity of a preceding unanimous Council decision under the Common Foreign and Security Policy chapter of the TEU. Sergey Magnitsky was a lawyer who had investigated a large-scale tax fraud as an example of high-level corruption in Russia. He died in pre-trial detention. In August 2019 a Chamber of the European Court of Human Rights unanimously decided that Russia had violated Magnitsky’s rights enshrined in Art. 2 and Art. 3 ECHR because he had been mistreated by prison guards and because Russian authorities had failed to protect his right to life and to effectively investigate the circumstances of his death (Magnitskiy and Others v. Russia, applications nos. 32631/09 and 53799/12). In 2012 the US enacted the first Magnitsky Act in the world (Sergei Magnitsky Rule of Law Accountability Act of 2012, Pub. L. 112-208, title IV, Dec. 14, 2012, 126 Stat. 1502 [22 U.S.C. 5811 note]) that was extended in scope in 2016 and provides for the imposition of sanctions on human rights violators worldwide (Global Magnitsky Human Rights Accountability Act, Pub. L. 114-328, div. A, title XII, subtitle F [Sec. 1261 et seq.], Dec. 23, 2016, 130 Stat. 2533 [22 U.S.C. 2656 note]). Other countries have meanwhile put into force their own Magnitsky Acts. The EU is still missing in that international association of human rights defenders.
The future of transatlantic relations has never been more dependent on the outcome of the US presidential elections than this year. If the incumbent “stable genius” wins, the US will continue to move down the slippery slope from a reliable partner to an unreliable adversary. The European Union will be compelled to upgrade its common security and defence policy and finally establish a common defence. Pursuant to Art. 42 (2) TEU, that would require a unanimous decision by the European Council and ratification by the Member States in accordance with their respective constitutional requirements. Stay tuned on whether the EU will ultimately grow up in matters of foreign and security policy. The EU can any longer afford to maintain unanimity as the standard of decision-making in the Common Foreign and Security Policy. Art. 31 (3) TEU allows the transition to qualified majority voting by way of a unanimous decision of the European Council. It is about time that the European Council made this decision in order to avoid veto games. However, Art. 31 (4) TEU excludes transition to majority vote regarding decisions having military or defence implications; that could only be accomplished by amending the TEU.
Relations between the European Union and Turkey are at the crossroads, as the Josep Borrell, High Representative of the Union for Foreign Affairs and Security Policy, stated last week. He had in mind two problems, one concerning the internal situation in Turkey and the other Turkey’s recent rather aggressive exploration of natural gas reserves in the Eastern Mediterranean. After the failed military coup of 2016, a massive crackdown against hundreds of thousands of perceived supporters of that coup has taken place. Elementary human rights standards and rule of law precepts have been violated, not to speak of the human rights of the Kurdish minority. There would be more than enough reasons to lodge an inter-State application against Turkey pursuant to Art. 33 ECHR. But the same question arises as in the case of Russia: Would that help in promoting human rights in Turkey or simply soothe Europe’s conscience? It will in any event take a long time to restore confidence in Turkey as regards human rights and the rule of law, and before that happens, Turkey cannot become an EU Member, in view of the precepts of Art. 49 (1) read together with Art. 2 TEU.
Concerning the exploration of natural gas reserves in the Eastern Mediterranean, there is an old dispute between Turkey and Greece regarding the breadth of the territorial sea of the Greek islands situated close to the Turkish coast and the question whether these islands are entitled to a continental shelf of their own. While Greece is a party to the UN Convention on the Law of the Sea, Turkey isn’t, but the Convention for the most part codifies rules of customary international law. As far as Cyprus is concerned, the matter is even more difficult: Turkey does not recognise the statehood of Cyprus. It has rather kept a third of the island under military occupation for decades and established the Turkish Republic of Northern Cyprus which no other State than Turkey has recognised. For Turkey, the southern part of Cyprus, not being a State, has no territorial sea or continental shelf of its own.
On that basis, Turkey claims vast areas of continental shelf for itself which the rest of the world would attribute to Cyprus or Greece and it sent a survey vessel into these areas to explore natural gas reserves, with a naval escort. Greece sent its own warships in order to defend its claims, leading to a brief military confrontation. Meanwhile the NATO alliance, of which both Greece and Turkey are members, has become involved to deescalate the situation. From an international law perspective, Greece and Turkey are under an obligation to settle their dispute by peaceful means, in accordance with Art. 2 (3) and Art. 33 of the UN Charter. Since the delimitation of the maritime zones of States with adjacent or opposite coasts is a question of international law, the method of choice would be judicial or arbitral proceedings, if the parties are unable to settle their dispute by negotiations, as in the case at hand. Turkey has so far not been ready to submit to arbitration or judicial settlement. The parties to an international dispute are also obliged to “refrain from any action which may aggravate the situation so as to endanger the maintenance of international peace and security” (Principle 2 of the ‘Friendly Relations Declaration’ [UN General Assembly Resolution 2625 (XXV)] of 1970). Sending a survey vessel with a naval escort to disputed maritime areas is obviously incompatible with this obligation. Fortunately, Turkey has now withdrawn that vessel.
Dispute settlement on the delimitation of maritime areas with Cyprus is impossible before Turkey recognises Cyprus as a State. That it will have to do anyhow before it can accede to the EU because Turkey’s accession is subject to a Cypriot veto in accordance with Art. 49 (2) TEU.
There are of course lots of other political and legal challenges the EU is facing in the coming months, of which I can enumerate but a few:
- the extension of EU competences in order to establish a European Health Union which has become an urgent matter in the Corona pandemic
- the reconstruction of the economy in the EU after the pandemic with the NextGenerationEU programme worth 750 billion Euros
- the future of the Schengen area of free movement in view of the border closings during the pandemic
- relations with the People’s Republic of China which the Commission President has called a negotiating partner, an economic competitor and a systemic rival; the EU is currently trying to square the circle of negotiating an EU-China Comprehensive Investment Agreement while raising its voice on the crackdown against the democracy movement in Hong Kong and the massive human rights violations committed against the Uighur minority in Xinjiang
- the accession negotiations with candidate countries in the Western Balkans
- the European Green Deal to transform Europe into the first carbon-neutral continent
- fighting hate speech and hate crimes, no matter whether racist or homophobe, in all Member States
We are thus truly living in interesting times, the challenges for Europe are many, and the state of the European Union is far from perfect. But obviously, Europe can meet those challenges much better if European States join forces in the institutional framework of an effective European Union.