Magoosh GRE

THE LISBON TREATY

| March 28, 2015

Introduction

The Lisbon Treaty, born from the chaos of the heated second Irish referendum and the Czech Republic’s constitutional court stalemate on ratification (Mathijsen: 2010), went into force on 1st December 2009 and promised a more united and stable future for European Union foreign policy than its conception would suggest. The preamble to the Treaty set out the aims for the amending legislation: “to complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action.” (Lisbon Treaty Preamble: 2009). The changes implemented by the Lisbon Treaty were groundbreaking but the changes in the foreign policy realm are still relatively untried and untested: firstly Herman van Rompuy only took up the Presidency of the European Council on 1st January 2010, secondly the European External Action Service (EEAS) only came into being on December 1st of 2010 and finally Lady Ashton, the EU Foreign and Security chief, has been heavily involved in the creation of the EU’s first diplomatic corps and deflecting stinging criticisms which have to some extent obscured her “quiet diplomacy” (Lyon: 2010).

Despite the relative infancy of these developments in foreign policy, Europe is so far presenting far from cohesive foreign policy to the world following the Lisbon Treaty and discord and disunity have prevailed from the Gulf of Mexico to Kosovo. This essay will address the problem of a lack of cohesiveness by looking at three key areas in which the Lisbon Treaty broke new ground: the High Representative, the diplomatic corps (European External Action Service or EEAS), the new framework abolishing the three-pillar structure together with the new rules on voting procedures in respect of the retention of unanimity for Common Foreign and Security Policy (CSFP) decisions. In each of these areas this essay will attempt to analyse the latest developments and attempt to gauge the impact of the Lisbon Treaty in its’ infancy with a special emphasis on Kosovo.

Lisbon Treaty reforms
The High Representative of the Union for Foreign Affairs and Security Policy is one of the most significant developments of the Treaty of Lisbon (Article 18 – TEU-L) and replaces, in the words of Professor Whitman and his evidence to the Foreign Affairs Committee, “…the Presidency as the key animating force of the CSFP”. The House of Commons Foreign Affairs Committee singled out this new post as being the single most important foreign policy aspect of the Lisbon Treaty:

“The creation of the new High Representative post has arisen not only from the wish to achieve greater coherence between “Community” and intergovernmental policy areas, but also as a consequence of the abolition of the six-monthly rotating Presidency. Professor Whitman suggested that, by taking over some functions from the Presidency, the new post might eliminate ‘the uncertainties that come with the old system of rotation’” (Foreign Policy Aspects of the Lisbon Treaty: 3rd report of session 2007/2008 p.55).

This new post has been described as “double-hatted” (Foreign Affairs Committee: 2007/2008, Kaddous: 2008, Muller-Graff: 2008). The High Representative brings together the responsibilities of the Commissioner for External Relations (Commission) and the Common Security and Foreign Policy portfolio (Council), representing an inroad into “community” elements which were formerly under the exclusive auspices of the Commission. Graham Avery, in giving evidence to the Foreign Affairs Committee in 2007, argued strongly that the Council and the Commission, when dealing formerly with enlargement and neighbourhood policy: “get along well in general, but there is a certain rivalry, competition and overlap, and it would be far more effective to combine the energy and talents in what I would call a joined-up approach to foreign policy.” (Foreign Policy Aspects of the Lisbon Treaty 3rd report p.55). Thus the joined-up post of High Representative under Article 18 covers a lot of ground under the central pillars of development aid and crisis management: routine policies towards third countries such as enlargement, neighbourhood relations, trade and humanitarian aid as well as security challenges (Vogel: 2010).

The post incorporates many responsibilities yet under Article 21(3) of the TEU it has been pointed out by both Kaddous (2008) and the Institute for Security Studies (2010) that the tasks of ensuring consistency in CSFP will be shared out between the High Representative, the new European Council President and this is almost certainly, in the opinion of Kaddous, a recipe for disaster in the absence of cooperation and bilateralism. Kaddous goes on to observe that “much will depend on the personality of the high representative” (2008: p.219). Both Grunstein (2009) and Howorth (2009) also observe that a key limitation on the impact of the Treaty in respect of foreign policy will be the personal character of the High Representative. So who is the High Representative?
Lady Ashton was sworn in as the first High Representative under the Lisbon Treaty on 19th November 2009. Article 17(7) of the Treaty of Lisbon states that a vote of consent is required from the European Parliament as well as the European Council’s, acting by a qualified majority with the agreement of the President and the Commission, approval of the appointment: she was swept in unanimously. Her first year in this post, however, has been dogged by whispering campaigns by those who have seen her as inexperienced and not vocal enough in what is unquestionably a vital role in the European Union’s foreign policy. Rod Liddle, writing in the Spectator in November of 2009, encapsulates the criticism which has handicapped her first year:

“without the remotest experience in trade matters she was appointed EU trade commissioner. Never elected by anyone, anywhere, totally unqualified for almost every job she has done, she has risen to her current position presumably through a combination of down-the-line Stalinist political correctness and the fact that she has the charisma of a caravan site on the Isle of Sheppey. Quite incredible, really.” (Liddle: 2009)

Certainly her style has been one of “quiet diplomacy” although some have interpreted this harshly as “silence” (Lyon: 2010 on Guardian News Website). Lyon emphasizes the first three major disasters in her term in 2010: the disaster in Haiti, the oil spill off the Gulf of Mexico and Israel boarding ships destined for Palestine. Lady Ashton came under striking criticism from centre-right and green politicians within the European Parliament for not visiting Haiti during the disaster and this suggests that her efforts at unity and cohesiveness of foreign policy are facing difficulties with a multitude of voices emerging. Kaddous (2008) argues that the key questions of “unity and coherence” are most usefully examined in terms of the credibility of the European Union on the international stage. At a time when the EU has been grappling with their bail-out fund in the wake of the Greek economic crisis, it is arguable that the credibility of the EU is at the lowest ebb in its history. Peter Spiegel in the Financial Times observes that the crises of credibility are all linked as the:

“…manifestation of the divisions that have bedevilled Europe ever since the debt crisis broke out last year, pitting northern countries against southerners and officials in Brussels against those in national capitals” (FT website).

Within this climate of crisis and the possibility of having to bail-out Portugal and Spain (Mallet & Wise: 2010 FT) in the meantime, Lady Ashton clearly has a very difficult job and any analysis must bear this in mind. Despite these difficulties there have been signs that she is beginning to assert herself: she has secured key aspects, including budgetary increases, of the development policy at the expense of the European Commission (Traynor: March 2010). Traynor also points out that the development fund has been the subject of furious turf wars between EU capitals and Brussells, another factor which could be said to be undermining any attempts at a cohesive foreign policy.

In her defence, Lady Ashton’s character has been unfairly pilloried by those within Brussels with vested interests and those out-with Brussells who had originally saw British interest in Europe being represented by Tony Blair. She has also spent a large amount of time setting up the civil service team. Despite this her record in the largest problems so far, in Haiti, the Gulf of Mexico oil spill and Israeli searches of Palestinian ships, has been unimpressive and Haiti in particular hints at a lack of cohesiveness in foreign policy as different elements of the European Union, here the Parliament, vent their frustrations at a lack of direction and leadership at a crucial time. Article 21 of the post Lisbon Treaty on the European Union makes a declaration which strikes to the heart of the problem in Haiti:

“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” (Article 21 TEU0-L).

Her own agenda, however, available from the website of the European External Action Service (2011) reveals that between January 20th and 22nd, for example, she travelled to Iran as the representative of the E3+3 to have talks on their programme of nuclear weapons. Her other agenda items appear to be either meetings with heads of States or meetings of the Foreign Affairs Council of which she retains the chair (Kaddous: 2008). The sanctions imposed on Iran in September of 2010 were the most far-reaching ever agreed (Traynor: June 2010) and included blacklisting and freezing assets of the Iranian Revolutionary Guards. This was done with the express agreement of the foreign ministries within the European Union. With regards to Iran she has made some inroads and developments here suggest that the criticism aimed at her for her non-appearance in Haiti is perhaps unfair.

The Diplomatic Corps
The European External Action Service has escaped the attention of most people but will prove to be vital and came into being on 1st December 2010. The precise nature of the service, its staff, funding and offices have been in genesis for about a year under the guidance of the High Representative. Indeed the Article itself sets out the complementary role which this European civil service is to have on the High Representative:

“In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of Member States” (TEU-L Article 27(3)).

In assessing the High Representative it is clear that Lady Ashton can only now seriously be described as having the full support network which was always supposed to be beneath her in pursuing CFSP goals. An important point which needs to be stressed is that the Treaty states that both the EEAS and the High Representative are not aimed at reducing the ability of Member States’ to conduct their own foreign policy under Article 24 of TEU-L however their competence “in matters of common foreign and security policy shall cover all areas of foreign policy” (Mathijsen: 2010).

There have already been severe criticisms however, mostly emanating from the European Parliament and Non Government Organisations: “Senior members of the European parliament complain that the new diplomatic service, numbering in total up to 8,000 people, is modelled on the French system, with a powerful secretary-general under Ashton overseeing the entire new body called the European External Action Service (EEAS).” (Traynor: 2010) It has been pointed out that there are two possible extremes for the service: either a minimalist model which would be a “virtual EEAS” providing only coordination by a small staff under the High Representative or a maximalist model which incorporate all of the foreign policy units and would boast great size and specialisation (Wouters, Coppens and De Meester: 2008).
The concerns, as highlighted by the Poverty Matters blog on the Guardian website, are chiefly centred around the areas of development where the EEAS will have strategic direction for EU aid to developing countries while the European Commission for development will still have the final say over the budget (Vegra: 2010). The concern, as the article notes, is that the EEAS will subsume the commissions remit in this area and lead to the assertion of EU strategy goals at the cost of international development. Aid commitments have been swept aside to some extent by the financial crisis which again demonstrates the difficulty in eliciting whether a cohesive foreign policy will develop. What is clear is that 2011 could potentially become a battleground in the context of development between the development Commissioner and the High Representative who could potentially be committed to different goals. The article concludes that:
“There is also the question of internal politics. Piebalgs and his team still theoretically have the final say on any development policy aspect of the EU’s external action. Yet, the EEAS is now in charge of mapping out the way the EU deals with the world. If there are internal disputes over EU strategy towards a particular country, or even a particular region, it’s not clear whose decision would be final.” (Vegra: 2010)
This suggests that 2011 could well prove to be a very difficult time as both the Commission and the EEAS could come into conflict over differing goals. The eradication of poverty is now the undisputed goal of the development policy within the EU while international development under the Commission has focussed on sub-saharan Africa. The reality of achieving a cohesive foreign policy in respect of development is that there will need to be an unprecedented level of cooperation between the Commission and EEAS for there to be unity whereas in the past development cooperation procedure was governed by Commission initiated legislation (Smith: 2002, Bonaglia, Goldstein, Petito: 2006) and this is one more instance of the Commission becoming increasingly sidelined. Examples of the EEAS work around the world is firstly the Balkans, where a 1900-strong justice and police force have been despatched to help guarantee the rule of law. Secondly the resolution of the Arab-Israeli conflict. Thirdly cooperation with the United Nations and finally military, political or civilian missions in countries such as Afghanistan (EEAS website: 2011). Despite these stated aims however, in terms of development it is arguable that there is no cohesive foreign policy but in fact the ingredients for an internal conflict based on differing aims.

Unanimity and legal personality
The Treaty of Lisbon has made the three-pillar structure of the European Union which had survived for so long extinct, endowing the European Union with a single legal personality under Article 47(de Schoutheete and Andoura: 2007). This drive to simplify the pillar structure led to the creation of different competencies: Common Foreign and Security policy coming under a shared competence in light of its’ complementary nature under Article 24. The Article itself sets out the requirements in voting:

“The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including progressive framing of a common defence policy that might lead to a common defence. The Common foreign and Security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise”.

So policy changes in this area must be made unanimously which is, on one view, an obstacle to a cohesive CFSP. Under the Lisbon Treaty (Article 31(1) of TEU-L) unanimity is preserved. The Franco-German initiative to propose QMV as the general rule in the lead up to Lisbon ultimately ran aground (Kaddous: 2008). One glance at Kosovo and we can see that disagreements between Member States can be disastrous when it comes to Foreign Policy. The failure to recognise Kosovo as an Independent State exposed great fault lines between the 27 EU member states and highlighted the flaws of unanimity. Both the US, then under George Bush, and Russia, under Vladimir Putin, rode over European concerns to contrastingly applaud and condemn the declaration of independence which stemmed from Kosovo’s Parliament (BBC: 2008). This less than satisfactory outcome to the Kosovo problems was exacerbated by the need to get a unanimous vote from the Member States. If the vote was held on Qualified Majority Voting, for example, the EU could have come to a position as quickly as both Russia and the United States were seen to do. The present position under the Lisbon Treaty is little better as the disagreement between Member States deepens. A breakaway quintet of nations, the UK, Germany France, Italy and joined by the US have exposed even deeper fault lines in policy in this area as Spain assumed the presidency last year (Bancroft: 2008) and now holds the rotating presidency in Belgium and Hungary. The actual president was referred to as the “president-in-office” and assisted by what Smith (2002) referred to as the “troika”: current, preceding and successor presidencies. Spain, in February 2008, opposed the aggressive stance of the quintet of nations and advocated continued talks to help the situation. Such a situation produced a stalemate within the European Union and showed that one Member State could block the entire process. The Lisbon Treaty has downgraded the rotating presidency and the country holding this temporary 6-month post no longer serves as the European Council President which has been elevated to a permanent post. The American Institute for Contemporary German Studies observes:

“The hope is that the Lisbon Treaty will lead to a more effective, unified partner better able to handle crises. For example, the EU’s handling of the Georgia crisis in August 2008 could have been far different had the six-month rotating presidency been held by a country other than France. It is this inconsistency in leadership that the U.S. hopes the Lisbon Treaty will mitigate.” (AICGS: 2010)

Herman van Rompuy, the first President of the European Council under the Lisbon Treaty, has been in his new position for over a year. Significantly, the role lasts for 2 ½ years and drastically erodes the power of the country holding the rotating presidency. This will also stop countries pursuing a mandate of their own interests as France has done in the past under Agricultural policy. The adoption of a permanent President has not assuaged the situation in Kosovo however, and it is clear that the International Court of Justice’s ruling will not affect the standoff which threatens to engulf the EU:

“With the EU still divided, Russia and China vehemently opposed to independence and Serbia now taking its case to the UN general assembly, the dispute is far from resolved. Having witnessed a spike in tensions prior to the ICJ’s ruling, the international community will continue to have a key role in maintaining peace and stability throughout Kosovo – one that demands strict adherence to the requirements of status neutrality.” (Bancroft: 2010)

Clearly the EU’s approach, defined by soft power and encapsulated in multilateral dialogue with an aim to achieving a peaceful resolution, is looking redundant in the face of nations such as Kosovo declaring independence. The breakaway quintet seems far more likely to use the apparatus of the United Nations than they do to turn to the European Union. As Bancroft points out in an earlier article from July 2010, the problem lies with the stance of Spain, Greece, Romania, Slovakia and Cyprus who are all opposed to recognition of Kosovo as an independent nation. The hollow assertions by the European Union that there is a common stance towards Kosovo ignores the blindingly obvious as Bancroft (2010) points out:

“Early this month, the European parliament adopted a resolution (by 455 votes to 150) that called upon the remaining five EU member states to recognise Kosovo’s independence. A similar resolution passed in February 2009 with 424 votes in favour and 133 against (with 24 abstentions) failed to sway the five EU member states in question, and it seems unlikely that the latest resolution will have any tangible impact. Cyprus, for one, has previously gone as far as to declare that they would not recognise Kosovo’s independence, even if Serbia ultimately did.”
These ructions have come under the Lisbon Treaty and serve to undermine any claims it makes that a more cohesive foreign policy is possible with the High Representative, the diplomatic staff and the new presidency. Even without the rotating presidency grave fault lines remain and the appeals to the International Community show that the fragmented approach of the European Union will not garner support but undermine it.

Conclusion
In conclusion the Lisbon Treaty has not marked a more cohesive point in the foreign policy of the European Union. If anything the EU remains divided on key issues such as the independence of Kosovo and no changes to the Treaty on European Union will change anything. The deep fault lines are consolidated by the adoption of unanimity which renders the majority of meetings on Kosovo pointless as there is no prospect of being able to negotiate along such evenly divided lines. The High Representative, Lady Ashton, as created by Article 18, has proved so far to be a disappointment in major international crises such as the oil spill in the Gulf of Mexico, Israeli boarding of Palestinian ships and most importantly regarding the natural disaster in Haiti where her silence was interpreted by a resurgent European Parliament as being indicative of a very poor start to the implementation of the Lisbon Treaty. In her defence she has not been in her role for long and has been involved in the creation of a huge diplomatic mission, the first of its kind, for over a year and perhaps 2011 will be the time to judge her. Regarding the European External Action Service: this entity was created only on the 1st of December after a year of turf wars in Brussells. Using the example of development policy this essay has demonstrated that there is a potentiall collision course with the European Commission on Development issues and conflicting aims and objectives. The foreign policy of the EU under the Lisbon Treaty is still in its infancy but despite efforts to simplify it, it is incoherent and lacking in cohesion.

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