The External Dimension of Justice and Home Affairs

A Different Security Agenda for the European Union?

Sarah Wolff, Nicole Wichmann, Gregory Mounier

• Publisher: Taylor & Francis
• Year: 2013
• eBook ISBN: 9781317989455
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

This book proposes to cast some theoretical and empirical light upon the external dimension of Justice and Home Affairs (JHA) which has become a priority in the European Union (EU)'s external relations. Counter-terrorism, visa policy, drug trafficking, organized crime or border controls have indeed become daily business in EU's relations with the rest of the world.

The external dimension of JHA is a persistent policy objective of the EU and its member states, as the 1999 Tampere summit conclusions, the 2000 Coreper report, the 2005 Strategy for the External Dimension of JHA, and the integration of JHA chapters under the European Neighbourhood Policy testify.

With an interdisciplinary ambition in mind, this book reflects an attempt to draw together theoretical and empirical insights on the external dimension written by academic scholars that take an interest in questions of JHA and European Foreign Policy (EFP). It does so from an issue-oriented perspective (civilian crisis management, the European Neighbourhood Policy, counter-terrorism policy, visa policy, passenger name record) but also from a geographical perspective with in-depth analysis of the situation in the Western Balkans, Georgia, transatlantic relations and of the Mediterranean neighbourhood.

This book was published as a special issue of the Journal of European Integration.

The Justice and Home Affairs Policy Universe: Some Directions for Further Research

KAREN E. SMITH

Department of International Relations, London School of Economics, London, UK

The articles grouped together in this special issue are all based on papers that were presented at a workshop at the London School of Economics in October 2007. The workshop was organized by the enterprising and enthusiastic editors of this special issue, and all the papers presented at the workshop were by young scholars working in the area that they have termed ‘the external dimension of Justice and Home Affairs’. The workshop was sponsored by the Challenge and EU-Consent research programmes, which are funded by the European Commission under the Sixth Framework Research Programme. Challenge is a research project that looks at issues of internal and external security, and the implications for liberty within the EU; EU-Consent is a network of excellence focusing on issues of deepening and widening within the EU, and has a working group on the link between internal and external security.¹ Both programmes strongly support the work of young scholars, by funding their participation in workshops and conferences, and encouraging them to publish the results of their research.

The subject matter of this special issue is an increasingly popular one; academic interest in the European Union’s involvement in ‘Justice and Home Affairs’ (JHA) has intensified over the past decade and, as JHA issues have been incorporated in its external relations/foreign policy, academic attention has naturally gravitated towards this ‘external dimension’ as well. Arguably, young scholars have contributed much to this trend, as can be seen also in their intensive and active involvement in networks such as Challenge and EU-Consent.

Justice and Home Affairs is generally held to encompass a wide variety of issues, including immigration and asylum policy, the fight against terrorism and organized crime, and judicial and police cooperation within the EU. These were the issues that originally fell within the purview of the Maastricht Treaty’s ‘third pillar’.² That pillar soon became a very busy one, with numerous meetings at all levels — resulting in what Monica den Boer and William Wallace (2000, 503) termed an ‘intense transgovernmental network’.

Such intense activity continues. Each year the Council and/or Commission churn out a bewildering number of ambitious ‘strategies’, ‘comprehensive plans’, ‘global approaches’, ‘action plans’, and ‘action-oriented plans’ on various aspects of JHA — all listing measures to be taken in the short and medium term within the EU and outside it; implementing them all is much more of a problem. An increasing amount of money has been devoted to cooperating with third countries on JHA issues: for example, the Commission claimed that between 2000 and 2006, some €934 million from the EC budget and the European Development Fund was programmed for third countries (excluding the Central and East European countries) in the migration field alone (European Commission 2002, 47, 51). JHA issues, such as the fight against international terrorism, organized crime and illegal immigration, are discussed increasingly in the EU’s dialogues with third countries and regional organisations; clauses on cooperation in such matters are being included in the EU’s agreements with third countries; and sectoral agreements on JHA issues — including readmission agreements — are being negotiated with a growing number of third countries. Clearly, then, there is much activity for academics to analyse.

However, it is no longer a straightforward matter to pin down what JHA or its ‘external dimension’ means. Justice and Home Affairs is a term that dates from the Maastricht Treaty and denoted the third pillar: the remit of that pillar was set out in the treaty, as were the decision-making procedures and roles of the EU institutions. However, over time, the third pillar has essentially disappeared: the Amsterdam Treaty made provision for moving many JHA issues, particularly those regarding immigration and asylum policy, into the European Community pillar, meaning that those issues would henceforth be decided on according to EC procedures (and, therefore, would be subject to different decision-making and integrative dynamics). The Lisbon Treaty — if ever ratified — would complete this shift (though throughout this process, various opt-outs have been allowed for some member states, notably the UK, and special procedures, some temporary, some not, have still applied to decision-making on JHA issues). As a result, ‘JHA’ or ‘third pillar’, indicating a coherent set of issues and procedures, is no longer an accurate label. Likewise, the ‘external dimension of JHA’ is becoming less and less useful as a descriptive term. Arguably, in fact, it was never appropriately an exclusive label anyway, given that some ‘JHA issues’, such as terrorism, have long been dealt with by foreign ministers in the ‘second pillar’ (first European Political Cooperation, then the Common Foreign and Security Policy).³

So it may be more useful to consider JHA to be a ‘policy universe’ — comprising issues that are dealt with at the EU level under a variety of different institutional set-ups (first pillar, second pillar, and remnants of the third pillar) — and across all of them. Those issues can be summarized as immigration and asylum policy, and combating crime (including terrorism, drug-trafficking, currency forgery and so on). They have an ‘internal dimension’, involving cooperation, coordination and policy-making, which principally relates to within the EU’s borders, and an ‘external dimension’, involving the incorporation of JHA issues in relations with countries outside the EU’s borders — though that ‘internal–external’ distinction can be quite blurry at times.⁴

The creation and evolution of this policy universe raises numerous questions for research and four broad sets of questions are noted here.

1. Why has this policy universe grown so much? What and who are the ‘driving forces’ (Monar 2001) behind its creation and evolution? Why do the member states cooperate at the EU level (and why within the EU context, and not — or alongside — other institutions such as the Council of Europe, Organization for Security and Cooperation in Europe (OSCE) or UN)? This set of questions is obviously related to larger research questions regarding why states cooperate and what drives integration and cooperation.

2. Why and how has the JHA policy universe developed in the way that it has? Why have the member states agreed to ‘communitarize’ such a large part of it? How are JHA issues incorporated within the larger EU structure, and how do institutions that act principally within the JHA policy universe interact, cooperate, or do bureaucratic battle with other institutions across the EU? This set of questions refers to larger questions of institutional design and evolution, and the dynamics of bureaucratic politics within the EU.

3. What does the JHA policy universe produce and why? What are the institutions and member states agreeing to do together? Who seems to predominate within the policy-making process — from agenda setting to decision-making and implementation? What are the respective roles, powers and influence of ‘supranational’ actors such as the European Commission, European Court of Justice and European Parliament, and the member states? How much influence do outsiders (third countries, the UN, and so on) have on EU agenda setting, decision-making and implementation? Does a ‘logic of interests’, or a ‘logic of diversity’, or a ‘logic of appropriateness’ best describe the nature of the policy-making process? Finally, what is the nature of the output produced by the JHA policy universe: is it ‘civilian’, ‘normative’, inclusive, exclusive, hegemonic?

4. What is the impact of the policy universe on outsiders? Does the EU successfully export its norms and policy preferences to third countries? What are the limits to EU influence?

The articles in this special issue address several of these broad questions. The emergence and evolution of the ‘external dimension of JHA’ is covered in the introductory article by the three editors of this special issue, Sarah Wolff, Nicole Wichmann and Gregory Mounier. They argue in favour of using ‘new institutionalism’ to try to explain the development of this dimension, but also draw attention to the need to explain those external policies that have been agreed in this area.

Two of the articles also address the evolution of institutions in this field, and their fit — uneasy at times — with other EU institutions. Gregory Mounier notes similarities and overlaps between civilian crisis management and the external dimension of JHA, and draws attention to the ‘cross-pillar’ nature of both areas. In a similar vein, Patryk Pawlak is interested in the development of cross-pillar coordination and cooperation, and the challenges that arise for policy-making because of the continued existence of separate pillars.

Most of the remaining authors deal in some manner with the way in which the EU tries to export its JHA norms and preferences, or the degree of the EU’s influence in so doing. Sandra Lavenex and Nichole Wichmann investigate how the EU tries to export its JHA norms and policies, and find that although the EU tries to engage with outsiders in a ‘network’ mode of governance, it often ends up resorting to a hierarchical mode of governance or policy transfer. Network governance depends on the existence of compatible administrative structures and expertise in partner countries — not easy to find. Yet Lavenex and Wichmann also point to the limits of hierarchical policy transfer: the EU has a restricted capacity to offer incentives to third countries to adopt its norms, and negative conditionality (sticks rather than carrots) is rarely resorted to or successful.

Florian Trauner also notes the limits to a strategy of policy transfer based on conditionality. He focuses on the EU’s ability to influence the Western Balkan countries into adopting the JHA acquis, and argues that EU influence exercised via membership conditionality has been limited due to the uncertainties of the accession process. However, he finds that the EU has instead been able to exercise much influence through ‘policy conditionality’ — offering ‘visa facilitation’ in exchange for the conclusion of readmission agreements. When a concrete incentive can be put on the table, the EU is more effective at reaching its objectives.

In another exploration of the limits of EU influence, Lili Di Puppo examines EU relations with Georgia. She notes that the EU has lacked strategic vision and policy coherence: its vision (criminal justice reform should come first) does not coincide with the Georgian government’s priorities (which wants first and foremost to establish a state monopoly on violence and its territorial integrity). The EU viewed Georgia as both a partner, with whom it can cooperate on certain issues, but also as a threat or source of various problems for the EU’s internal security. The EU’s extreme reluctance to confront Russia in its neighbourhood has meant that the EU has no vision of how to resolve Georgia’s territorial disputes.

Sarah Wolff writes of the evolution of counter-terrorism cooperation between the EU and Mediterranean partners and discovers that even though EU-level action has been increasing, most cooperation with the Mediterranean countries is still driven by individual member states. Their bilateral concerns, interests and relations predominate.

Finally, in an interesting twist, Javier Argomaniz looks at how the US is driving EU policy-making. Much work on ‘the external dimension of JHA’ has focused on the extent to which the EU influences outsiders and, above all, neighbours (both membership candidates and countries in the European Neighbourhood Policy). Argomaniz’s article instead highlights the extent to which the EU has been influenced by the USA on the issue of ‘passenger name records’ — a case of the US quite successfully exporting its own norms and preferences to the EU.

The articles here thus contribute to the general academic debate about why and how the JHA policy universe has evolved, and what it does. Certain themes appear throughout many of the articles: the challenges of ensuring internal coordination and coherence in policy-making — challenges that have not diminished with successive treaty changes; the limits to the export or transfer of EU norms and policies to third countries; and the dominant role played by the member states — who can easily bypass EU-level mechanisms in favour of their own policies. Incentives are difficult to offer, yet when they can be tied to policies of conditionality, the EU can influence other countries. EU policy may be quite narrow in scope vis-à-vis particular countries (such as Georgia) because wider concerns (such as relations with Russia) play a more important role. And, yet, even as it tries to export its own norms to neighbours and beyond, the EU proves extraordinarily susceptible to US influence. Such themes should be familiar to observers of EU policy-making in general, and especially to those researching EU foreign policy-making. The cases discussed in the articles here provide further evidence of the extent to which the EU still struggles to engage in strategic, coherent and effective policy-making — and so should certainly be of interest to those scholars interested in other areas of the EU’s foreign relations.

As no special issue can cover all possible avenues of investigation, this one leaves some open questions, including why the member states have chosen to cooperate at the EU level on the issues and in the way that they have, or — perhaps more importantly — what they still insist on keeping out of the EU’s grasp, and why. The role of the member states in general, and particular member states such as the UK, France or Germany, in driving the agenda or limiting the EU’s remit, is not covered extensively in this special issue, with the exception of Wolff’s article. The European Commission’s powers, and the evolution of its influence, in the JHA policy universe is another issue that is not discussed at length in the articles published here.

The special issue does point to further avenues to explore, issues that merit further research. The implications of the Amsterdam Treaty and Lisbon Treaty (if ratified … or if some of the provisions in it are implemented nonetheless) need to be investigated in more depth. What impact do these institutional changes have on the actors involved in policy-making (such as the Council of Justice and Home Affairs ministers)? Are institutional changes leading to changes in the mode of decision-making? Does the increased use of the ‘Community method’ have an impact on member state preferences, the mode of interaction within the Council, and the output thereby produced?

How have treaty changes affected cross-pillar cooperation and coordination? Will it continue to be difficult? What forms of bureaucratic politics have been spawned by treaty changes? What is the perspective on cross-pillar coordination in the JHA policy universe from the point of view of the foreign policy pillar? What is the impact of the de facto extension of the ‘Petersberg tasks’ (tasks which European security and defence forces can undertake) to include the combating of terrorism in third countries?

The relative importance of the JHA policy universe in EU policy-making in general — and in its relations with other actors (states, international organizations and so on) — could also bear further investigation. How much money, diplomatic resources, European Security and Defence Policy (ESDP) mission mandates and so on does the EU devote to this policy universe in comparison to other areas, and is this proportion changing over time? In a similar vein, is there a danger of ‘overstretch’, or a ‘capabilities–expectations gap’ (Hill 1993), here too — just as we have seen in EU foreign relations?

In addition, as several of the articles here have suggested, we still need to learn much more about the EU’s impact on outsiders. Evidently, it has little influence on the US (in fact, the direction of influence appears to be rather from west to east in that case), but its influence (and limits to that influence) on other outsiders, both within and beyond the neighbourhood, is still not well known.

Given the extent of the evolution of the JHA policy universe — and the extent to which the ‘JHA agenda’ has infiltrated the Community and Common Foreign and Security Policy (CFSP) pillars — it is particularly important to guard against the creation of a ‘mini-community’ of scholars interested only in the JHA policy universe. The boundaries of this universe are fuzzy and ever changing, hence, academic research cannot by definition be conducted within carefully delineated borders. This is an area of research that obviously cries out for cooperation among security experts, foreign policy experts, development policy experts, immigration policy experts, lawyers, integration theorists and so on. As is obvious from the articles published in this special issue, the issues and questions raised, and lessons drawn, by scholars who have been following closely the JHA policy universe are of interest to a wider audience.

Notes

1. Challenge is led by Professor Didier Bigo of Sciences Po, France; EU-Consent by Professor Wolfgang Wessels, University of Cologne, Germany. See the websites: www.libertysecurity.org and www.eu-consent.net.

2. The Maastricht Treaty listed nine issues under the JHA pillar: asylum policy; rules governing the crossing by persons of the external...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• 1. The Justice and Home Affairs Policy Universe: Some Directions for Further Research
• 2. The External Dimension of Justice and Home Affairs: A Different Security Agenda for the EU?
• 3. The External Dimension of the Area of Freedom, Security and Justice: Hijacker or Hostage of Cross-pillarization?
• 4. Civilian Crisis Management and the External Dimension of JHA: Inceptive, Functional and Institutional Similarities
• 5. Deconstructing the EU’s Routes of Influence in Justice and Home Affairs in the Western Balkans
• 6. The External Governance of EU Internal Security
• 7. The Externalization of JHA Policies in Georgia: Partner or Hotbed of Threats?
• 8. When the EU is the ‘Norm-taker’: The Passenger Name Records Agreement and the EU’s Internalization of US Border Security Norms
• 9. The Mediterranean Dimension of EU Counter-terrorism
• Index