Kitabı oku: «A Citizen’s Guide to the Rule of Law», sayfa 4

Reviving the relationship: the EU enlargement strategy

As an economic and political powerhouse, the EU is an important actor on the international stage. It has the ability to actively influence developments in other countries, not only in terms of politics and economics but also with respect to the rule of law. It even considers as part of its mission the promotion of the rule of law globally—not only because EU operatives sincerely believe the rule of law is a good thing to have, but because the EU thrives in an environment governed by the rule of law. European companies, for example, prefer investing in countries in which a legal safety net guarantees their investments. The EU thus has an interest in making sure courts are independent and legal rules are followed when signing trade agreements with particular countries.

But unlike, say, the World Trade Organisation or the World Bank, the EU is not just a community of interests. For the EU, it’s not just about markets, tariffs, and economic deals. The EU is a self-proclaimed community of values. It sees itself as a strong normative and transformative force in the world. It sets the rules and actively promotes them. Its engagement with any country—be it political, social, or economic—always carries the hope for change along these lines. If the EU had its way, its engagement with other countries should lead to more liberal democratic regimes, open societies, prosperous market economies, and, in general, geopolitical stability and security. Of course, those targeted with this modern ‘civilising mission’ might not see it that way, either because they belong to corrupt elites threatened by such interference, or, for those who don’t, because they feel that change in their country should happen bottom-up, through their own efforts, not in the gift of former colonising countries.

On the importance of being lawful

European Neighbourhood Policy

…means what it says on the tin. The EU framework for agreements with its so-called neighbours. We say so-called because we have heard grumblings in those partner countries: „Why should I be known as an EU ‘neighbour’? Why not other way around: it is not the EU who is a neighbour for me?“ In truth the term refers specifically to those among the countries on the EU periphery that have no perspective of ever becoming members.

Historically, the rule of law played an important part in the EU’s foreign policy. It features prominently in a 2003 report following the Iraq war and laying out for the first time ever what would be called the “European Security Strategy” and in various political and legal instruments within the “European Neighbourhood Policy” or the “Stabilisation and Accession” policy towards the Western Balkans. It has also been at the core of various EU missions carried out under the so-called “Common Security and Defence Policy” in countries like Georgia.2

But designating the promotion of this mysterious idea called “rule of law” as a goal and actually achieving this goal are two quite different things. We may be really committed to turning this book into a documentary starring Idris Elba, but that doesn’t mean that the movie will ever be made, nor that Idris will agree to star in it.3 To convince him—or any movie producer—we need to offer something in return, a goodie.

Stabilisation and Accession Policy

…is the EU’s policy towards the Western Balkans, involving free trade and domestic reform, in the hope of eventual EU membership.

For Western Balkans countries, future membership has been that goodie, with all the economic, social, and political benefits it entails. Conversely, the EU has an interest in what it calls stabilizing countries at its borders, for geopolitical and economic purposes. This may or may not mean bringing them into the club, but clearly the EU’s influence in particular countries is strongest when accession is on the table. Conditions for entry, like “respect for the rule of law” look like a win-win-situation. That is if everyone understands what this means!

To be sure, the EU can also exert influence in a situation in which a country really craves the EU’s approval even short of membership. Already in the early 1990s, the EU made the rule of law and minority rights a precondition for the international recognition of the Yugoslav successor republics as independent states.4 The newly independent states wanted to be recognised by the EU, so they agreed to include the rule of law and minority protection in their new constitutional frameworks.

Moving on, the EU insisted on the rule of law as part of its Eastern and South Eastern enlargement strategy. The Copenhagen criteria—first formulated in 1993 as a set of conditions future member states would have to fulfil before joining in additional to the economic ones—stipulated the rule of law amongst the most important accession criteria. References to the rule of law remained a constant topic of engagement in the enlargement debates. Basically, wherever you look, there’s the rule of law. But remember: the rule of law never stands alone within the EU context.5 Rather, it has become something of an “umbrella-principle”,6 “usually accompanied by the principles of democracy and respect for fundamental rights.”7

The EU Enlargement Strategy, published in February 2018, is but the latest restatement.8 It is nevertheless a special document, as it takes a critical look not only at the developments in the Western Balkans region, but also at those within the European Union. As such, it gives us a nice overview of the EU’s own assessment of the enlargement process in general—and its rule of law dimension in particular.

So, let us see what the Brussels bureaucrats think went wrong and how they think the future process should look.

Recognise the problem and commit to solving it

The Enlargement Strategy uses some rather undiplomatic language to diagnose the state of play in the Western Balkans. It supports the contention that the rule of law needs to be “strengthened significantly”9 by outlining the current situation as follows:

Today, the countries in the region show clear elements of state capture, including links with organised crime and corruption at all levels of government and administration, as well as a strong entanglement of public and private interests. All this feeds a sentiment of impunity and inequality. There is also extensive political inference in and control of the media. A visibly empowered and independent judiciary and accountable governments and administrations are essential for bringing about the lasting societal change that is needed.10

While the Enlargement Strategy refrains from naming names—presumably due to the diplomatic character of the publication—it speaks out for, among other things, a broader concept of the rule of law to address these problems. Most importantly, apart from the usual legal arguments, the strategy argues for social change with respect to the rule of law. As the document says: “Strengthening the rule of law is not only an institutional issue. It requires societal transformation.”11 That is why the rule of law is designated as one of the EU’s “flagship initiatives” within the new enlargement framework—something of a priority list for future engagement.

So far so good. The EU recognises the importance of spelling out the deeper challenges around the rule of law, sees the problems in the region, and acknowledges that something has to be done. And it outlines steps that seem to follow a deep concept for the rule of law for which we have advocated in chapter two. Can we all go home now and leave it to Brussels?

Well, of course not! The document is good, but neither innovative nor revolutionary. Worst of all, its success is by no means guaranteed, as it provides ample opportunities for backsliding into the usual technocratic avenues of years past. It’s Brussels-speak, pure and simple.

Don’t get us wrong, there are some promising bits in the document. The rule of law “flagship initiative”, for example. In fact, the report promises an “analysis of legislation and practice in this field, leading to the establishment of detailed action plans prioritising key issues, and close monitoring of implementation and delivery of concrete results”. Furthermore, more “detailed rule of law assessments

Cheers!

It’s odd that the Enlargement Strategy uses such strong language, especially for Brussels bureaucrats. Usually, they seem to have perfected the art of talking without saying much of significance. This is not the case here. Their analysis is, as you well know, spot-on. Not to play the “we told you so” card, but academics and policy analysts have been pointing out these problems for years. So, yes, we told them so and it’s nice to see the EU finally agrees with us. To be fair, behind closed doors, they have agreed with us for a long time. But these concerns have been reflected poorly in official documents and they have seemed quite absent in the actual policies pursued.

should be undertaken and advisory missions extended to the whole Western Balkans”. Monitoring and implementation should be enhanced through “more systematic, case-based peer-reviews organised by the Commission with the participation of Member State experts” as well as closer monitoring of trials. Finally, the EU commits to addressing rule of law issues rather early in the accession process and recommends “that greater use is made of the leverage provided in the negotiating framework”.12

These are all genuinely positive aspects of the EU’s new strategy and they are more than welcome when dealing with the rule of law challenges at hand. We shall return to some of the points later on, when we present our “living list” of rule of law assessment. But we would just like to caution you not to take this document at face value. There’s a lot that could go wrong and vigilance is best.

For example, if you read the document closely, you realise: the EU falls short of actually providing a comprehensive assessment of the situation and putting forward clearly defined rule of law targets that would actually enable true transformative change within societies. Granted, such assessment may follow as part of the detailed action plan. But it shows that the ideal contained in the document and the pragmatics of achieving it have not yet been fully established. This is a shortcoming, but also an opportunity for all of us to actually influence the EU by suggesting what direction to take.

There is another problem with the strategy, which you may have detected as well: where are we, the citizens, in all of this? Civil society actors are mentioned elsewhere in the document, but they are conspicuously absent within the rule of law sections. Yet if the rule of law depends on each and every one of us, shouldn’t we, the citizens, be empowered as its guardians?

The EU does lists legalistic benchmarks such as “independence, quality and efficiency of the judicial sector”,13 the enforcement of verdicts, corruption, problems with public procurement and organised crime in this section, as well as challenges to fundamental rights (freedom of expression, independence of media), problems with the functioning of democratic institutions and the need for public administration reform. All of this is good to have a look at, no question. But it again distorts the true meaning of the rule of law as a “deep concept”, despite the noble goals of societal change with which we started.

Unfortunately, even the EU’s latest pronouncements offer little clarity on this issue. In February 2020, the EU commission presented an updated document under the rather similar name “Enhancing the accession process—A credible EU perspective for the Western Balkans”, in which it “sets out the Commission’s concrete proposals for strengthening the whole accession process”.14 Put forward to resolve some of the reservations coming from member states such as France or the Netherlands concerning the entire accession process (but in particular the granting of candidacy status to North Macedonia and Albania), the Commission reiterates the fundamentals-first approach, meaning that negotiations on fundamental issues “will be opened first and closed last” in the accession process. Apart from the functioning of democratic institutions and economic reforms, this concerns the rule of law chapters, where “a roadmap” will “constitute the opening benchmark” with “interim benchmarks” to be set.15 The Progress Reports published in October 2020 speak the same language as the ones before, with their institutional focus and benchmarks and checklists. We find ourselves right back where we began: with bureaucrats and legal professionals and their benchmarks and checklists. Wasn’t this where our problems emerged?

Why elites don’t like the rule of law

The problem in front of us is, once again, quite simple. The EU acknowledges that to be sustainable the rule of law has to be transformative, to reach all the corners of society, from the governors to the governed. But how can we achieve that? How can we create conditions that lead to the implementation of the rule of law and, at least as importantly, that prevent any type of backsliding?

For years now, the EU has had one answer: talk to the people in charge. Negotiate with them; convince them to make the necessary reforms.

But what if they refuse? Let us be honest, why should Western Balkan leaders, dependent on their political and business networks to stay in power, establish systems of control that curtail their freedom to govern as they wish? There are few examples in history of people giving up power voluntarily. One such example is George Washington. Having led the Continental Army to victory against the British, the General was an obvious choice for President once the new country established its constitution. Yet, after eight years in office, he decided to step down—well before the two-term limit had been imposed. Rejecting continued power was an act so characteristic of Washington’s personality that even his rival, King George III, showed great respect for it when the General left public office once before, at the end of the Revolutionary war.

“The greatest man in the world”

As the revolutionary war was drawing to a close, King George III commissioned a portrait by Benjamin West, a British North American artist. In one of the sessions, the king asked West what General Washington would do after the war ended. “Your majesty, I believe he will return to his farm”, replied the painter. “If he does that”, said the king, “he would be the greatest man in the world.”

But it’s not just the wish to cling to power that prevents politicians from pursuing reforms. Like all change, reforms always create winners and losers. The consequences of reforms are never ubiquitously positive. Healthcare for all, for example, produces costs for healthcare companies. New environmental regulations create costs for carbon-emitting industries. And liberalising the market and providing the opportunity for customers to shop on Christmas day means that the workers are robbed of time with their families—actually, some of us may prefer that, so that’s maybe not a good example of negative consequences.

But the point stands: all changes in regulation create winners and losers; some benefit, others don’t. Of course, situations in which everybody wins do exist, but they are quite rare as one will always find someone unhappy with change—even if it’s the concept of change itself to which they object. Opposition, even opposition to something the majority deems to be progress, is legitimate in a democratic society. Yet too often, people opposed to change are vilified, without examining their reasons.

As a case in point, when Bosnia and Herzegovina’s parliament debated the Stabilisation and Association Agreement (SAA) with the European Union—the passing of which is a precondition for a country starting its path towards EU membership—some parliamentarians rose in opposition. They thought that the domestic agricultural industry would be unable to cope with EU competitors and rejected the market liberalisation the agreement foresaw in this area. While they may have rejected the SAA for other reasons as well, they stood up for the losers of progress. The goal of EU membership is to foster democracy, yet when those parliamentarians rose to express the concerns of their constituents, they were deemed un-European. Here and elsewhere, the process of EU accession seems to close the space for public debate, as opponents especially usually find themselves heavily criticised by the elites in power. Wouldn’t it be better to admit that not all reforms are beneficial to all, and that negative consequences need to be addressed?

With rule of law reforms, the losers often happen to be the ones currently in charge. In the context of state institutions captured by political elites and run in their interests, prevalent corruption, and entangled political and business networks, the rule of law directly targets the ruling elite’s power structure. That’s the reason why these elites are not necessarily willing to commit to sustainable rule of law reforms. If we want the EU’s rule of law promotion to prevail, we need to recognise this aspect of human nature.

The question before us is thus: how can the EU deal with this kind of reluctance and resistance?

The EU’s main instrument within the enlargement process has been what we usually call “conditionality”. The basic idea is that reforms are a necessary condition for a country to join the EU. Because the countries want to join the EU, they accept to pursue certain reforms.

Unfortunately, in practice, it’s not quite as simple as that.16 Conditionality only works if the elites are genuinely willing to play along. As we have seen, more often than not, they aren’t. This puts the EU in a particular situation, in which it must make reforms attractive to an unwilling elite, in order to retain a working relationship with them. The old tension between pragmatism and idealism emerges, which is so very hard to address.

To make things harder, the EU’s integration process is focused on governments and states cooperating and talking to each other in a particular, technocratic language. The EU engages with institutions and bureaucrats rather than populations and citizens. Yet in doing so, it fails to realise the potential that lies in taking its case directly to the people and seeking to promote its values beyond the political sphere. Is it simply incapable of such engagement even if this is precisely what is needed for reforms to be sustainable?!

There is but one clear path. Yes, the EU must pressure domestic elites to adopt reforms, but the same kind of pressure must be exerted by us, the people, within the accession countries and beyond, so as to make reforms possible in the short term and sustainable in the long term. Within the domain of the rule of law, this book outlines a possible strategy on how to do it.

Before that, however, we need to talk about the elephant in the room: the hypocrisy of the EU’s rule of law promotion.

“Do as I say, not as I do”—Intra-EU problems with the rule of law
A gospel with no sinners

Sometimes, an institution becomes hostage to its own purpose of creation. It fails to see the change of times because its institutional DNA negates the possibility for change to occur at all. What ought not to be, cannot be.

In the bag

Credentialism is a mindset and a practice that emerged in Europe in the late 19th century which meant that people would rely on earned credentials earned through bureaucratized, institutional channels to lock in privileges for the rest of their life…. even when they were not longer up to scratch (think of your grandfather still driving a car). Rites of passage for those who aspired socially privileged positions allowed existing elites to set themselves up as gatekeepers for these privileges.

This is what happened with the EU and the rule of law. The EU always understood itself as the “gold standard” in terms of the rule of law. It assumed that none of its members could break the rule of law because they have had to abide by the rule of law to be anointed as members even though, until the Copenhagen criteria we introduced earlier, this condition was not made explicit. Once a state joined the Union, its credentials had been duly established and no further inquiry was necessary. Moreover, because every state is equal in the Union, to check if the other states followed the rules would actually seem quite impolite. Like asking dinner guests whether they washed their hands after they return from the bathroom. You just don’t do that; instead, you trust in the decency of your guests and assume all’s well.

That’s what the EU did as well. It was set up as a particular kind of cathedral, in which the priests proclaimed the rule of law as gospel. But they lacked the authority to hear confessions, for the simple reason that there were no sinners among the congregation—because there simply could not be. And in the unlikely event that sins were undeniably committed, each member of the congregation would have their own ways of atoning, because that, too, was part of the gospel. In the end, the priests would offer absolution, because no one could be kicked out of the cathedral.

For a long time, this system worked quite well. When, for example, Silvio Berlusconi cajoled and coerced the Italian parliament to amend the immunity laws to protect him from standing trial in a number of alleged corruption cases, the Italian Constitutional Court struck down the respective decisions and allowed the cases to be heard.17 Later on, the Court also struck down a new law that “allowed for trials of cabinet ministers to be suspended on the grounds their official duties prevented them from defending themselves properly”.18 Italy’s internal checks and balance mechanisms thus worked as the founders of the European Union intended. And so, the larger creation myth of the EU’s rule of law cathedral remained intact.