Memorandum from Brendan Donnelly, Director
of the Federal Trust
THE REFORM
TREATY AND
CFSP
1. Under the Maastricht Treaty of 1992,
the European Union undertook to develop a Common Foreign and Security
Policy (CFSP). Fifteen years later, most of the Union's governments
and almost all external commentators have concluded that movement
towards the goal of a functioning CFSP, however defined and understood,
has been limited and patchy. The provisions of the Reform Treaty
on the external actions of the European Union are a conscious
attempt to inject new momentum and coherence into the operation
of the CFSP.
2. The Committee will recall that the ratification
of the Maastricht Treaty was a matter of considerable political
controversy in the United Kingdom, with those elements of the
text bearing on the CFSP figuring prominently in the public debate
at that time. To the extent that this controversy continues today,
it will inevitably colour judgements and perceptions of the clauses
in the Reform Treaty which bear upon the CFSP. Those who are hostile
to the concept of a Common Foreign and Security Policy will see
the proposals of the Reform Treaty on this topic in a very different
light to those who favour the Maastricht Treaty's aspiration to
establish the European Union as a more important actor on the
world stage. Indeed, public and political attitudes to the Reform
Treaty's proposals on CFSP can be regarded as a microcosm of public
and political attitudes towards the Reform Treaty in general.
Those content with the evolution of the European Union over the
past fifteen or twenty years will on the whole tend to regard
the Reform Treaty as a further step along a path which they are
happy to tread. Those generally hostile to this evolution will
find little in the Reform Treaty to bring to a halt or even to
reverse the tendencies within the Union which, rightly or wrongly,
cause them concern.
3. Before considering in more detail the
individual provisions of the Reform Treaty on CFSP, it is, however,
worthwhile drawing an important distinction between two areas
of the European Union's activities which enjoyed similar treatment
in the Maastricht Treaty, but which have since diverged in their
development. These two areas are the Common Foreign and Security
Policy itself and the European Union's policies on Justice and
Home Affairs (JHA), covering such questions as asylum, immigration,
crime prevention and the mutual recognition of civil judgements.
Under the Maastricht Treaty, both these areas were treated as
areas primarily of intergovernmental co-operation, with only a
limited role for the European Commission, the European Parliament
and the European Court of Justice. Since the Maastricht Treaty,
these European institutions have greatly gained in influence in
the sphere of JHA, a process carried further by the Reform Treaty.
No similar development, however, has occurred in the sphere of
the CFSP. For better or worse, the central institutions of the
European Union will continue for the foreseeable future to play
in the Common Foreign and Security Policy a much less influential
role than that which they play in JHA. For better or worse, the
Reform Treaty essentially takes as given the "intergovernmentalist"
framework of the CFSP and tries to make it work better. Whether
the governments of the European Union will always be content to
conduct their foreign and security policy on this intergovernmental
basis will, and can only be, a question for future decision-making.
It cannot be said, however, that any substantial movement away
from intergovernmentalism in European foreign-policy making seems
imminent or even foreseeable. Those whose general criticism of
the European Union's recent evolution is that it has moved since
the Maastricht Treaty in an excessively "integrative"
or "federalist" direction will find little comfort for
their critique in the provisions of the Reform Treaty on the CFSP.
THE HIGH
REPRESENTATIVE
4. Central to the proposals of the European
Constitutional Treaty on the Union's external policies was the
creation of the post of "European Foreign Minister"
in succession to the "High Representative". This post
and its extended responsibilities have been retained in the Reform
Treaty, although the title of "Foreign Minister" has
been abandoned in favour of retaining the existing title of "High
Representative". Some controversy has been occasioned, particularly
in the United Kingdom, by this change of nomenclature. The view
of this submission is that the title "Foreign Minister"
was always an over-generous, even misleading description of the
new post. The holder of this new post will be essentially a representative
and advocate of policies established by others, namely national
Foreign Ministers. He or she will not have the determinant role
in establishing these policies enjoyed by the British, Czech or
Italian Foreign Ministers when the formulation of British, Czech
or Italian foreign policy is at issue. At the present stage of
development for the Union's Common Foreign and Security Policy,
national governments are not sufficiently willing to pool their
national sovereignties in this area for the concept of a European
"foreign minister" to be a sustainable one.
5. If the proposed Reform Treaty comes into
force, the Union's High Representative will have significant new
powers, notably those of acting as chairman of the Foreign Affairs
Council, of making proposals to the Foreign Affairs Council and
of directing the Union's external action service. In some circumstances
the High Representative will also have the right to speak on behalf
of the European Union in international fora such as the United
Nations. These are significant administrative changes, which are
likely to help make more coherent and effective the external actions
of the European Union. The present rotating Presidency of the
Foreign Affairs Council has definitely militated against continuity
and focus in the Common Foreign and Security Policy But it cannot
be stressed too often that despite his or her simultaneous role
as a Vice-President of the European Commission, the High Representative
is very much the agent of the national foreign ministers. His
or her capacity to be a forceful representative of the European
Union on the world stage depends very largely on the willingness
of national foreign ministers to agree on worthwhile external
policies for the European Union. The presence or absence of political
commitment to the CFSP from national capitals over the next decade
will be at least as important in this connection as the personal
qualities and institutional competences of the High Representative.
6. It is after all the national foreign
ministers who will appoint, dismiss and instruct the High Representative.
In the great majority of cases, the High Representative's instructions
will be exclusively dependent upon unanimous agreement among the
national foreign ministers. The traditionally marginal roles of
the European Commission, Parliament and Court of Justice in CFSP
are reaffirmed by the Reform Treaty. Even where the High Representative
has made a specific proposal for the instructions he or she would
like to receive, these instructions require unanimity from the
foreign ministers, unless they have previously agreed unanimously
to adopt the Representative's proposals by Qualified Majority
Vote. Such a vote by Qualified Majority would in any case be tempered
in its effects by the right of any outvoted member of the Foreign
Affairs Council to appeal to the European Council, where decisions
can only by taken by unanimity. As will be discussed later in
this submission, the Reform Treaty does envisage some limited
extension of Qualified Majority Voting within the Foreign Affairs
Council, but unanimity will remain for the foreseeable future
the predominant form of decision-making within that body. The
point is well illustrated by the much-discussed possibility of
the High Representative's presenting to the UN's Security Council
an agreed EU position concerning a matter on the Security Council's
agenda. This has been seen by some as undermining the roles of
France and the United Kingdom as permanent members of the Security
Council. If, however, either France or the United Kingdom do not
wish the Union to be represented at the UN on any particular issue
by the High Representative, they will always be able to prevent
by their veto the adoption of a common European approach to the
topic in question. Without a common European approach, there would
be nothing for the High Representative to expound to the Security
Council.
7. An unhelpfully unresolved issue under
both the European Constitutional Treaty and the Reform Treaty
is the unclear allocation of representative responsibilities between
the High Representative and the President of the European Council.
It may be that practice will resolve these ambiguities, with perhaps
the President of the European Council acting as the negotiating
partner for heads of state and government from third countries,
and the High Representative negotiating with the relevant foreign
minister. This overlapping of responsibilities is a definite check
on the High Representative's freedom of manoeuvre, a check which
commentators will either welcome or regret depending upon their
starting-points. The Reform Treaty does not answer entirely the
question "Who speaks for Europe?"
THE EXTERNAL
ACTION SERVICE
8. The High Representative will be helped
in his increased responsibilities by a "European external
action service". This body is the natural administrative
expression of the European Union's desire to give greater force
and coherence to its external policies. Many details remain to
be agreed about the precise composition and working methods of
the action service, but its potential tasks include at least the
provision of personnel for Commission representations in third
countries; the better co-ordination of existing external policies
of the European Union, such as trade, development and environmental
policies; and the briefing and support of the High Representative.
The action service could also in the longer term provide the personnel
for groups of European Union countries which might wish to have
"joint embassies" in countries where the majority of
the diplomatic work conducted by national representatives is of
a routine and administrative nature. The countries of the Schengen
area for instance might well conclude that Schengen visas in certain
countries, from which little nationally sensitive political reporting
could anyway be expected, were better issued by a single authority
in that country rather than by separate national embassies. Any
such developments could naturally only proceed on a voluntary
basis, where groups of national governments saw a common interest
in pooling resources.
9. There seems little doubt that over the
longer term the existence of the "external action service",
which will carry out a number of the functions traditionally associated
with national diplomatic services, is likely to strengthen the
position of the High Representative. It may well enable the Representative
to make a more regular and cogent case for the European Union
to act in a unified fashion, action for which he or she will be
a prime implementer and advocate. Those who on the whole regard
more common external action by the European Union as a potentially
desirable development will naturally welcome such a likely outcome
of the external action service's activities. Those who are more
sceptical of an enhanced role for the European Union in this field
will be correspondingly suspicious of its likely activities.
QUALIFIED MAJORITY
VOTING
10. The Reform Treaty envisages some limited
use of Qualified Majority Voting within the CFSP. The appointment
of the High Representative will be by QMV, as will certain administrative
questions such as those relating to diplomatic and consular protection
measures, and urgent matters such as humanitarian aid. This submission
unequivocally welcomes this facilitation of decision-making. The
extent of the new sovereignty-pooling involved should not, however,
be exaggerated. Experience has shown that national ministers prefer,
even when majority voting is theoretically available as a decision-making
procedure to proceed by consensus, with the possibility of majority
voting acting essentially as a spur to compromise by minorities.
This phenomenon is likely to be particularly pronounced in the
predominantly intergovernmental area of the CFSP. It is difficult
to believe that a large member state such as the United Kingdom
in particular will often, if ever, find itself bound by majority
decisions which it finds seriously damaging or unacceptable to
itself.
STRUCTURED CO
-OPERATION
11. The Reform Treaty envisages the possibility
of what is called "structured co-operation" regarding
military matters between a sub-set of those EU member states enjoying
the highest degree of military capacity. This co-operation would
take place on an intergovernmental basis, and would be designed
to increase the military effectiveness of the member states and
their ability to work together on joint European military tasks.
Decisions on the membership of the subset would be taken by qualified
majority voting, a provision which has aroused some critical comment
in the United Kingdom. Given the universal recognition throughout
the European Union that "structured co-operation", however
it evolves, will have no credibility or even reality without the
full engagement in it of the United Kingdom, it strains the bounds
of credibility to imagine that the membership of this intergovernmental
sub-set would ever be one unacceptable to the United Kingdom.
It is worth recalling that participants in the sub-set have the
right to withdraw from it at any time, a right which would apply
to the United Kingdom as much as to any other member state. If
"structured co-operation" in fact proceeds beyond its
present largely aspirational nature, the United Kingdom will be
more fully associated with its genesis and evolution than has
been the case in any other area of the European Union's activities.
The likelihood that this sub-set of "structured co-operation"
might over time develop in a way inimical to the United Kingdom's
interests is remote in the extreme. The possibility that "structured
co-operation" will remain a name without substance is on
the other hand a much more pertinent one. It is a recurrent theme
of this submission that the Reform Treaty can typically only provide
a framework within which national governments may be encouraged
to take appropriate decisions. It cannot dispense national governments
from the sometimes painful necessity of taking and implementing
those decisions.
CONCLUSIONS
12. A number of factors combine to explain
why at present and probably for the foreseeable future the CFSP
will remain exceptional in its decision-making structures within
the European Union. Most large and small member states alike have
shown themselves reluctant to entrust the central institutions
of the European Union with similar competences under the CFSP
to those which they have happily given to Commission, Parliament
and Court of Justice in other areas of the Union's activities.
The desire of national governments to retain the large measure
of executive discretion which they all enjoy in their national
foreign policies may be one reason for this reluctance. Another
will certainly be the difficulty of constructing for the unpredictable
and episodic challenges of foreign policy the sort of long-term
legal and political structures appropriate to the internal market
or Justice and Home Affairs. Traditionally, British governments
of all political colours have usually proclaimed their preference
for intergovernmentalism in the European Union rather than continuing
integration through central structures. Under the Reform Treaty,
this preference is clearly respected and to a large extent shared
by most of its partners.
13. It is of course possible that in time
the European Union's governments will conclude that the intergovernmentalist
model for the CFSP is inherently defective and that only a more
institutionally integrated European foreign policy can meet their
shared and collective goals. The Reform Treaty does not preclude
such a possibility, but nor does it prescribe any such outcome.
In regard to the CFSP, as in regard to many other of its provisions,
the Reform Treaty takes as its underlying philosophy "the
art of the possible", rather than the creation of new possibilities.
The differing attitudes of commentators to the
desirability of creating or destroying such new possibilities
is one important reason why reactions to the Reform Treaty have
been so varied in this country and elsewhere.
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