Abstract:
The European Union ("EU") implements a Common Foreign
and Security Policy. This paper argues EU Foreign policy is
incohesive, but growing more cohesive. The EU poses no threat
to U.S. interests; however, poses only limited opportunities
for U.S. foreign policy because the U.S. has relentlessly
pursued a short-sighted and self-destructive foreign policy
since 2002. The paper elaborates this thesis by considering
institutional actors and historical experiences. Thus, it
provides an overview of the institutional structure of the EU
Common Foreign and Security Policy, as well as an overview of
historic experiences of EC foreign policy.
II. INTRODUCTION
Slowly yet inexorably Europe is unifying.
The core members of Europe have a single currency, common
customs, and common border controls. Europe also has the
rudiments of foreign policy and defense institutions. Do these
facts present an opportunity or a challenge to the United
States? This paper argues that (1) Europe has the rudimentary
institutions and processes in place to develop a common
foreign and security policy ("CFSP"), and (2) that fact does
not present a challenge to the United States, but rather an
opportunity. This is because (a) Europe and the United States
share a common ideology and liberalism, predicated on
individual freedom and government by rule of law and free
trade, and (b) even if there were no common ideology, Europe
and America are economically dependent on each other. Rather
than a challenge, Europe represents an opportunity, because it
supports the same core values as the United States and is an
important commercial partner. However, understanding the
possibilities and limits of the opportunity Europe represents
requires a capacity to think in a detached and objective
manner.
*738
III. THE TELEOLOGY OF THE EU
In order to understand the European Union
and its foreign policy, we must look at it not in terms of its
constituent elements, but rather from the perspective of the
Union as a whole, its origins, purposes, and evolution. This
dynamic and holistic perspective is the only one that can hope
to encompass all of the various processes and the only one
that can have explanatory and predictive power. An atomistic
view would only be a partial view because it would ignore the
synergies which the Union brings to its people. A static view
would similarly be blind - by only looking at ouisia (being)
it ignores becoming.
The institutions of the European Union are
famously deficient in popular input. Some, while acknowledging
the problem of democratic deficit and national diversity,
nevertheless argue that Europe can and should aim to become a
superpower,
1
either to oppose the United States or to oppose terrorism.
2
Such a goal is at present unrealistic because European foreign
policy is incohesive
3
and ineffective. This can be seen perhaps most clearly in the
crisis involving Yugoslavia, particularly in the recognition
of successor states to the Yugoslavian state.
4
As we will see, however, pursuant to the functional method, EU
foreign policy is growing more cohesive.
Some argue that EU foreign policy is
incoherent because European foreign policy expectations exceed
European military abilities.
5
Others
*739
admit incoherence and argue Europe
needs a coherent foreign policy to create a common European
identity.
6
Both views confuse effects and causes. European foreign policy
is incoherent in direct proportion to the extent of Europe's
internal political divisions. The result of political
incoherence is that little or no effective military means are
available to Europe. If there were a coherent political will,
the means to implement that will would be found. Likewise, a
coherent foreign policy can exist only if there is a common
identity. Without a common identity, a coherent foreign policy
is not possible. Common identity may be based on language,
race, religion, ideology or something else entirely. But the
sense of common interest among the people of Europe - which
does exist - is a necessary precondition to a common foreign
policy.
A coherent foreign policy must align
expectations with abilities to express a common political will
arising out of a common identity. A common European foreign
policy is necessary to express the need for peace,
7
to secure the collective interests of all Europeans and
because, without a common foreign policy, Europe will remain
divided and irrelevant, watching the world go by rather than
helping to shape it.
8
We examine European foreign policy to
understand the opportunities and challenges it presents and
also to determine how best to shape it to help solve the
manifold problems facing the world today. To that end, we look
at the institutions and instruments of European foreign policy
and then at the historic experiences and contemporary issues
to see how Europe's foreign policy has interacted with that of
the United States.
*740
IV. ECONOMIC CONSTRAINTS OF CFSP
A. Bretton Woods 9
The post war world cannot be understood
without at least a basic grasp of the key role the Bretton
Woods institutions have played in it. In the wake of the
largest mass slaughter of persons in history, the leaders of
the western world realized the war was caused by poverty and,
more specifically, by hyperinflation.
10
Thus, financial stability and economic interdependence came to
be seen correctly as keys to preventing war.
11
Consequently, institutions such as the International Bank for
Reconstruction and Development and the International Monetary
Fund were established to prevent hyperinflation and fund
reconstruction of the ruins that were Europe.
12
A key element of the Bretton Woods system was the gold
standard: U.S. dollars were pegged to gold, and European
currencies to the dollar.
13
This policy became unsustainable because of the war in
Vietnam. The U.S. went off the gold standard,
14
the chaos of free floating currencies
15
ensued and was followed shortly thereafter by "stagflation."
16
From 1973 (at latest) to 1979 (at earliest), western economies
were characterized by high rates of inflation, high rates of
unemployment and low growth rates. As a result Europe began
its search
*741
for monetary union.
17
The result of this was the Euro, which has, since its
introduction, "succeeded in gaining the confidence of
financial markets and, to a limited extent, establishing
itself as [the world's second largest]
18
international reserve currency"
19
though not without political problems.
20
The creation of a second global reserve currency is one of the
most important achievements of European foreign policy.
B. Free Trade
A stable currency system is the benchmark
of the post-war liberal world order.
21
Currency stability is a necessary precondition for the other
key feature of the post-war liberal world - free trade. Trade
is seen, correctly, as a positive sum game, encouraging
prosperity and thereby peace by separating trade and
territory.
22
Though one can take a pessimistic zero sum view of Europe and
equate advances in European integration with a decline in U.S.
power, such a view is erroneous. In an interdependent world,
the United States and EU are partners. When one trading
partner's economy improves, the well-being of the other
partner improves too. Populist calls for national economies
are unrealistic and underproductive. Protectionism is a failed
trading policy that leads not just to economic failure, but
even to war. The EU has grown into an economic and political
partner of the United States.
23
Mutual dependence explains why the transatlantic partnership
will, despite stress, endure. Indeed, "the European model . .
. is a whole - monetarist, federal, Atlanticist - and it is
impossible to accept one part of it without being forced to
accept the others, nor to reject one part without renouncing
the others."
24
A socialist, isolated, autarchic Europe, though possible in
theory, is, in practice, an underperformer, and has been
clearly rejected since 1989 throughout Europe.
*742
V. EUROPEAN FOREIGN POLICY INSTITUTIONS
To expect Europe to become a military power
capable of either competing with or significantly aiding the
United States is unrealistic at present. However, a less
ambitious and more realistic common foreign policy is
certainly attainable. To see how a common foreign policy can
be implemented, we now look at the institutions which shape
and implement European foreign policy.
European foreign policy is created and
implemented under the rubric of the CFSP.
25
The CFSP is not equivalent to the foreign policy of a state.
26
Some argue this means Europe has no foreign policy.
27
That position goes too far and does not understand the
functionalist method. Europe does not have a foreign policy in
the sense of a centrally coordinated and hierarchically
determined diplomatic and military apparatus. Rather, it has
objectives which it seeks to attain by coordinating the
foreign policies of the Member States. The objectives of the
CFSP are found in TEU Article 11. They are:
-to safeguard the
common values, fundamental interests, independence and integrity
of the Union in conformity with the principles of the United
Nations Charter,
-to strengthen the security of the Union in
all ways,
-to preserve peace and
strengthen international security, in accordance with the
principles of the United Nations Charter, as well as the
principles of the Helsinki Final Act and the objectives of the
Paris Charter, including those on external borders,
-to promote international
cooperation,
-to develop and consolidate
democracy and the rule of law, and respect for human rights
and fundamental freedoms.
28
The CFSP is an objective to be attained by
the coordination and harmonization of the foreign policies of
the Member States, a hybrid approach that is neither federal
nor national.
*743 What emerges is a paradox: a
state-inspired model of foreign policy expressed pursuant to
multifarious procedures and carried out by States eager to
emphasize its limits. In legal terms, this paradox is bound to
give rise to acts whose significance and repercussions cannot
be easily defined by our traditional legal vocabulary.
29
As elsewhere in EU law, the CFSP is sui
generis and an example of the functionalist method that slowly
but inexorably drives European integration ahead. To focus not
on the dynamic of the CFSP, but rather to look at the CFSP
statically, as if it were unchanging, really misses the point.
A. Creating the CFSP
We can best understand the policies
formulated by the EU as a hierarchy. At the top of the
hierarchy are the most general policies with the broadest
coverage: the general guidelines, which outline aspiring goals
and objectives of the CFSP. At a somewhat less abstract level,
the common strategies elaborate general frameworks within
which the EU plans to attain its goals. At the concrete level
of implementation, the EU undertakes joint actions
(operations) and the Member States adopt common positions.
These policies, the decision makers that reach them, and the
actors that implement them, are represented below:
30
a1.
For Verena Brand, German environmental lawyer and friend.
1.
Mark
C. Anderson, A Tougher Row To Hoe: The European Union's
Ascension as a Global Superpower Analyzed Through the American
Federal Experience, 29 Syracuse J. Int'l L. & Com. 83,
118-19 (2001).
2.
Ian
Ward, The Challenges of European Union Foreign and Security
Policy: Retrospective and Prospective, 13 Tul. J. Int'l &
Comp. L. 5, 37 (2005).
According to Romano Prodi, one
of the essential goals of the European Union is to create a
superpower on the European continent that stands equal to the
United States. To a certain extent the challenge carries an
antagonistic edge. Samuel Huntington famously described a
prospective "clash of civilizations," between the "west" and
"Islam." More recently, it has been posited that there might be
an equally vital "clash" within western "civilization," between
the 'soft' power of Europe and the 'hard' power of the United
States, the multilateralism of the former and the unilateralism
of the latter.
Id.
3.
Ian
Ward, The Challenges of European Union Foreign and Security
Policy: Retrospective and Prospective, 13 Tul. J. Int'l &
Comp. L. 5, 46 (2005). Ward correctly points out that "a
coherent European foreign policy remains more of an aspiration
than a current reality." Id.
4.
Sergio
Baches Opi & Ryan Floyd, A Shaky Pillar of Global Stability:
The Evolution of the European Union's Common Foreign and
Security Policy, 9 Colum. J. Eur. L. 299, 304-07 (2003).
5.
Elizabeth Shaver Duquette, The European Union's Common Foreign and
Security Policy: Emerging From the U.S. Shadow?, 7 U.C. Davis J.
Int'l L. & Pol'y 169, 191 (2001).
For the situation to improve, it
was suggested that capabilities increase or expectations lower.
In other words, the Union would either have to revamp its
decision making process and build an effective military force
and command structure, or it would have to scale back its
foreign policy goals and revise the image it portrays to third
countries.
Id
6.
See Opi & Floyd, supra note 4, at 299.
7.
Donato
F. Navarrete & Rosa Maria F. Egea, The Common Foreign and
Security Policy of the European Union: A Historical Perspective,
7 Colum. J. Eur. L. 41, 41 (2001).
European history has taught us
two lessons. The first is that the unification of Europe has not
been achieved by armed force despite the various attempts to do
so over the last two centuries (e.g., Napoleon, Hitler, etc).
The second, which also serves to explain the failure of these
attempts, is that the countries of Europe have used every means
possible to prevent the emergence of a preeminent power among
them which could threaten their security. The corollary of these
two ideas is clear: European unification must be achieved
through the independence and freedom of its people or be
condemned to failure.
Id.
8.
Anderson, supra note 1, at 83-84. "In fact, the EU could very well
languish indefinitely as 'an economic giant with the political
influence of a pygmy' if the Member States, through their
leadership, do not take concrete steps to address them." Id.
9.
The Bretton Woods Project works as a networker,
information-provider, media informant, and watchdog to scrutinise
and influence the World Bank and International Monetary Fund
("IMF"). Through briefings, reports, and the bimonthly digest
Bretton Woods Update, it monitors projects, policy reforms, and
the overall management of the Bretton Woods institutions with
special emphasis on environmental and social concerns. Bretton
Woods Project, http://www.brettonwoodsproject.org/project/index.shtml
(404? Link to Archive at:
Apr. 6, 2006).
10.
But see Timothy
A. Canova, Financial Liberalization, International Monetary
Dis/order, and the Neoliberal State, 15 Am. U. Int'l L. Rev.
1279, 1297 (2000) (arguing that German hyperinflation had
ended by 1924 and that the forty percent rate of unemployment in
the early 1930s was due to excessive deflationary policies).
However, the point holds: the hyperinflation caused the overly
deflationary policies resulting in unemployment and then war. Id.
11.
Padideh Ala'i, Free Trade or Sustainable Development? An Analysis
of the WTO Appellate Body's Shift to a More Balanced Approach to
Trade Liberalization, 14 Am. U. Int'l L. Rev. 1129, 1133 n.10
(1999).
12.
Id.
13.
Amy
Youngblood Avitable, Saving the World One Currency at a Time:
Implementing the Tobin Tax, 80 Wash. U. L.Q. 391, 391 n.4
(2002).
14.
See, e.g., Kenneth
W. Dam, From the Gold Clause Cases to the Gold Commission: A
Half Century of American Monetary Law, 50 U. Chi. L. Rev. 504,
526-27 (1983).
15.
See generally Geoffrey G.B. Brow, The Tobin Tax: Turning Soros
into Plowshares?, 9 Transnat'l L. & Contemp. Probs. 345, 353
(1999).
16.
Ryan
D. Frei, Reforming U.S. Immigration Policy in an Era of Latin
American Immigration: The Logic Inherent in Accommodating the
Inevitable, 39 U. Rich. L. Rev. 1355, 1372 (2005).
17.
Alan
W. Cafruny, A Ruined Fortress? Europe and American Economic
Hegemony, 19 Conn. J. Int'l L. 329, 330 (2004).
18.
Ronald
A. Brand, The European Union's New Role in International Private
Litigation, 2 Loy. U. Chi. Int'l L. Rev. 277, 277 (2005).
19.
Cafruny, supra note 17, at 329.
20.
Id. at 331.
21.
Joel
L. Silverman, The "Giant Sucking Sound" Revisited: A Blueprint
to Prevent Pollution Havens by Extending NAFTA's Unheralded
"Eco-Dumping" Provisions to the New World Trade Organization, 24
Ga. J. Int'l & Comp. L. 347, 369 (1994).
22.
See Eric
Allen Engle, The Transformation of the International Legal
System: The Post-Westphalian Legal Order, 23 Quinnipiac L. Rev.
23, 41 (2004).
23.
See Cafruny supra note 17, at 333.
24.
Id.
25.
See Mamedov
Muschwig, Crisis of Transatlantic Relations: NATO and the Future
European Security and Defense Identity (ESDI), 10 U. Miami Int'l
& Comp. L. Rev. 13, 19 (2002).
26.
Id. at 37.
27.
Eric
Stein, European Foreign Affairs System and the Single European
Act of 1986, 23 Int'l L. 977, 992 (1989).
28.
Consolidated Version of the Treaty on European Union, art. 11, 2002
O.J. (C 325) 5, available at http://europa.eu.int/eur-lex/lex/en/treaties/dat/12002M/htm/C_2002325EN.000501.html
[hereinafter TEU].
29.
Panos
Koutrakos, Constitutional Idiosyncrasies and Political
Realities: The Emerging Security and Defense Policy of the
European Union, 10 Colum. J. Eur. L. 69, 80 (2003) (citation
omitted).
30.
EU, Common Foreign and Security Policy (CFSP) Financing (2006),
available at http://europa.eu.int/comm/external_relations/cfsp/fin/index.htm
(404? Link to Archive at:
Apr. 6, 2006).
31.
EU, Common Foreign & Security Policy (CFSP) - Financing -
Ongoing Joint Actions - Conflict Prevention and Crisis management
(2006), available at http://europa.eu.int/comm/external_relations/cfsp/fin/pja.htm
(404? Link to Archive at:
Apr. 6, 2006).
32.
Denis
Chaibi, The Foreign Policy Thread in the European Labyrinth, 19
Conn. J. Int'l L. 359, 360 (2004).
33.
Id. at 84.
34.
TEU, supra note 28, art. 5.
35.
European Community Treaty (Treaty of Rome), Art. 281 & 300.
36.
Chaibi, supra note 32, at 384.
37.
Id. at 385.
38.
Koutrakos, supra note 29, at 84.
39.
Chaibi, supra note 32, at 367.
40.
Donato
F. Navarrete & Rosa Maria F. Egea, The Common Foreign and
Security Policy of the European Union: A Historical Perspective,
7 Colum. J. Eur. L. 41, 54 (2001).
41.
John
J. Kavanagh, Attempting to Run Before Learning to Walk: Problems
of the EU's Common Foreign and Security Policy, 20 B.C. Int'l
& Comp. L. Rev. 353, 356-57 (1997).
42.
Opi & Floyd, supra note 4, at 320.
[I]it is worth noting that
Article 11 of the Treaty of Amsterdam begins by referring to the
"Union," and not to the "Union and the Member States" as in the
former Article J.I of the TEU, as the entity in charge of
defining and implementing a CFSP.... [T]his difference reflects
the trend of Member States to start ceding sovereignty... to the
EU.
Id.
43.
TEU, supra note 28, art. 18, para. 1.
44.
Id. at para. 2.
45.
Id. at, art. 4.
46.
Id. at art. 13, para. 3. "The Council shall take the decisions
necessary for defining and implementing the common foreign and
security policy on the basis of the general guidelines defined by
the European Council." Id.
47.
Id. at para. 1.
48.
Id. at art. 13, para. 2.
49.
Id.
50.
Id. at, art. 14, para. 1.
51.
Id. at para. 3.
52.
Id. at art. 23, para. 1.
53.
Id.
54.
Id. at art. 27a, para. 1.
55.
Id. at art. 27b.
56.
Id. at, art. 44a.
57.
Id. at art. 23, para. 2.
58.
Id.
59.
Id.
If a member of the Council
declares that, for important and stated reasons of national
policy, it intends to oppose the adoption of a decision to be
taken by qualified majority, a vote shall not be taken. The
Council may, acting by a qualified majority, request that the
matter be referred to the European Council for decision by
unanimity.
Id.
60.
Adrian
Toschev & Gregory Cheikhameguyaz, The European Union and the
Final Status for Kosovo, 80 Chi.-Kent L. Rev. 273, 285
(2005).
61.
TEU, supra note 28, art. 22, para. 1.
62.
Toschev & Cheikhameguyaz, supra note 60, at 285.
63.
Opi & Floyd, supra note 4, at 311.
64.
TEU, supra note 28, art. 21.
65.
Opi & Floyd, supra note 4, at 311.
66.
Cafruny, supra note 17, at 331-32.
67.
Navarrete & Egea, supra note 7, at 55.
68.
Opi & Floyd, supra note 4, at 322.
Article 28 of the TEU (as
amended by the Treaty of Amsterdam) provides as a general
principle that all operating expenses of the CFSP shall be
directly charged to the EC budget, except for expenditures
arising from defense operations and cases where the Council
unanimously decides otherwise. In those cases in which
expenditure is not charged to the EC budget, it shall be charged
to the Member States in accordance with the gross national
scale, unless the Council unanimously decides otherwise.
Finally, as per expenditure arising from operations having
military or defense implications, those Member States which have
opted-out in accordance with Article 23(1) of the TEU, are not
obliged to contribute to the financing thereof.
Id.
69.
Chaibi, supra note 32, at 390.
Since the CFSP budget is
established following the budgetary procedure laid down for the
Community budget, the European Parliament has found a way to
influence a CFSP from which it is institutionally excluded. This
is even more important when the initially forecasted CFSP budget
is insufficient. The reinforcement of CFSP appropriations is
then executed through either a transfer of appropriations or a
supplementary and/or amended budget. In both cases, there is a
need for a proposal from the Commission, and the European
Parliament has the last word.
Id.
70.
Duquette, supra note 5, at 188.
71.
Kavanagh, supra note 41, at 366.
72.
TEU, supra note 28, art. 22, para. 1.
73.
Muschwig, supra note 25, at 37.
74.
Chaibi, supra note 32, at 381.
75.
See Duquette, supra note 5, at 191.
76.
William Bradford, The Western European Union, Yugoslavia, and the
(Dis)Integration of the EU, The New Sick Man of Europe, 24 B.C.
Int'l & Comp. L. Rev. 13, 15-16 (2000).
77.
Chaibi, supra note 32, at 381.
78.
TEU, supra note 28, art. 17, para. 1.
79.
Navarrete & Egea, supra note 7, at 60.
80.
TEU, supra note 28, art. 17, para. 1.
81.
Duquette, supra note 5, at 179.
82.
Navarrete & Egea, supra note 7, at 60.
83.
Opi & Floyd, supra note 4, at 328.
84.
Id. at 327.
85.
EU Force Takes over Peace Role, The Guardian, March 31, 2003,
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Apr. 6, 2006).
86.
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87.
Ward, supra note 2, at 11.
88.
Id.
89.
Chaibi, supra note 32, at 372.
90.
Ward, supra note 2, at 11.
91.
Id. at 10.
92.
Chaibi, supra note 32, at 374.
93.
Id. at 379.
94.
Id.
95.
Id.
96.
Id.
97.
Id. at 380.
98.
Stein, supra note 27, at 985-86.
99.
A Community Within the Community: Prospects for Foreign Policy
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1073 (1990).
100.
Bradford, supra note 76, at 27.
101.
Opi & Floyd, supra note 4, at 318.
102.
Id. at 319.
103.
Id.
104.
Id. at 325.
105.
Bradford, supra note 76, at 53.
106.
Id. at 14.
107.
Cf, Opi & Floyd, supra note 4, at 304-05 (stating that the
dissolution of Yugoslavia "highlighted areas needing improvement
and sparked the creation of the CFSP").
108.
Muschwig, supra note 25, at 19-20.
109.
Id. at 20.
110.
Ward, supra note 2, at 40-41.
111.
Muschwig, supra note 25, at 39. "Europeans and Americans jointly
promote the process of integration and opening of the West in
relation to the new Eastern European democracies." Id.
112.
Opi & Floyd, supra note 4, at 299.
113.
Ward, supra note 2, at 47.
114.
See Sophie Robin-Olivier, Citizens and Noncitizens in Europe:
European Union Measures Against Terrorism After September 11, 25
B.C. Third World L.J. 197, 207-08 (2005).
115.
Christina Schweiss, Sharing Hegemony: The Future of Transatlantic
Security, 38 Cooperation & Conflict 211, 211 (2003).
116.
Robert Kagan, Paradise and Power: America and Europe in the New
World Order 100 (Vintage Books 2004) (2003).
117.
Jan Wouters & Frederik Naert, The European Union and
'September 11', 13 Ind. Int'l & Comp. L. Rev. 719, 769 (2003).
118.
TEU, supra note 28, art. 17, para. 2. EU Treaty includes in
security and foreign policy "humanitarian and rescue tasks,
peacekeeping tasks and tasks of combat forces in crisis
management, including peacemaking." Id.
119.
Cafruny, supra note 17, at 329.
120.
Daniel
I. Fisher, "Super Jumbo" Problem: Boeing, Airbus, and the Battle
for the Geopolitical Future, 35 Vand. J. Transnat'l L. 865,
869 (2002).
121.
Cafruny, supra note 17, at 329.
122.
Chaibi, supra note 32, at 359.
123.
Cafruny, supra note 17, at 329.
124.
Fisher, supra note 120, at 869.
125.
Chaibi, supra note 32, at 359.
126.
Cafruny, supra note 17, at 329.
127.
Muschwig, supra note 25, at 21.
128.
Ward, supra note 2, at 52.
129.
Kevin
J. Fandl, Terrorism, Development & Trade: Winning the War on
Terror Without the War, 19 Am. U. Int'l L. Rev. 587, 630
(2004).
130.
Ward, supra note 2, at 38.
131.
Id.
132.
Id. at 53.
133.
Koutrakos, supra note 29, at 95.