Governmentality in EU External Trade and Environment Policy

Between Rights and Market

Jessica Lawrence

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351602631
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Governmentality and EU External Trade and Environment Policy applies theories drawn from Foucauldian governmentality studies to investigate the ideological and political roots of the European Union (EU)'s external trade and environmental policy and their effects on the transnational legal landscape. The EU's desire to spread environmental norms abroad is viewed in the book as a significant feature of contemporary EU trade policy. The EU's activities in this area have not been uncontroversial for other transnational legal actors. States, individuals, and organizations have challenged the EU's various trade and environment policies, arguing that they are coercive, unfair, over-reaching, or inefficient. Meanwhile, these policies have also raised a number of questions from the perspective of legality and political theory.

This book considers what the practice of EU external trade and environment policy, and international resistance to it, tells us about the way the EU perceives the role and limits of transnational government, the means and ends of politics, and the drivers of human and institutional behavior. Jessica Lawrence examines the legal and political discourse of the EU and those affected by its policies. By studying legal cases, statements by officials, legislative texts, press releases, and other representative documents the book identifies the rationalities, technologies, and subjectivities that underlie contemporary EU activity in this area. The overall effect paints a more complicated and nuanced picture of the EU's vision of itself and its goals; one that ultimately seeks to provide a better understanding of the functioning of power in this area.

1
Introduction

The evangelical EU and the EU’s external trade/environment agenda

The preamble of the Treaty on European Union (TEU)—one of the two constitutional documents of European Union (EU)¹ law—begins with a provocative definition of the relationship between Europe and the world. As the TEU would have it, the European project “Draw[s] inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, and the rule of law.”²

This casual preambular equation of European values and universal values is supplemented by a substantive provision, sometimes known as the TEU’s “missionary principle,”³ that obligates the EU to spread these European/universal values and interests beyond its borders:

In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and development of international law, including respect for the principles of the United Nations Charter.⁴

In this way, the TEU enshrines in European constitutional law the idea of an evangelical EU:⁵ it encourages Europeans to think of “their” values as “universal,” and legally obligates the EU to “uphold and promote” them in the wider world.⁶

The 2001 Laeken Declaration on the Future of the European Union, which launched the EU’s Constitutional Convention in a moment of expansive Europeanism, discussed this evangelical activity in the context of the post-Cold War international constellation, elaborating in stirring language on the EU’s “new role in a globalised world”:

What is Europe’s role in this changed world? Does Europe not, now that it is finally unified, have a leading role to play in a new world order, that of a power able both to play a stabilizing role worldwide and to point the way ahead for many countries and peoples? Europe as the continent of humane values, the Magna Carta, the Bill of Rights, the French Revolution and the fall of the Berlin Wall; the continent of liberty, solidarity and above all diversity, meaning respect for others’ languages, cultures and traditions …

Now that the Cold War is over and we are living in a globalised, yet also highly fragmented world, Europe needs to shoulder its responsibilities in the governance of globalisation. The role it has to play is that of a power resolutely doing battle against all violence, all terror, and fanaticism, but which also does not turn a blind eye to the world’s heartrending injustices. In short, a power wanting to change the course of world affairs in such a way as to benefit not just the rich countries but also the poorest. A power seeking to set globalisation within a moral framework, in other words to anchor it in solidarity and sustainable development.⁷

One might well look askance at this starry-eyed vision both in light of its historical cherry-picking (was the Europe not also the continent of World Wars, the holocaust, colonialism, and so on?) and the EU’s subsequent performance (the treatment of Greece and other shakeups in the wake of the 2008 financial crisis, the failure of humanitarian values in the face of migrant deaths in the Mediterranean and the refugee crisis caused by the Syrian conflict, the drama of Brexit, etc.). One-sided as it may be, however, it is against this background, and with continued belief in its evangelical mission, that the EU has engaged in a wide range of activities designed to spread “European/universal” values and interests abroad. Indeed, its efforts in this area have been so extensive that it has been dubbed, following Ian Manners, “Normative Power Europe.”⁸ From democracy-promotion, to regional integration support, to human rights activism, to technical assistance, the EU’s normative mission stretches around the “wider world.”

Two thematic areas that have been particularly prominent in the EU’s evangelical activity (and which will be the subject of the remainder of this book) are the promotion of liberalized international economic relations, and the protection of the global environment. Or, in the words of the TEU, upholding and promoting “free and fair trade” and the “sustainable development of the Earth.”⁹

The EU has long been a strong supporter of liberalized international economic policy. Indeed, the European Union itself is in part justified on these foundations. International trade negotiations are one of the EU’s most important manifestations as a global actor, and trade has shaped its internal policy, as well. The need for common external representation in economic negotiations made trade one of the first areas to be promoted to the supranational level of EU government, both internally and externally. In the years since its founding, the EU has negotiated large numbers of bilateral, regional and multilateral economic agreements with countries around the world, both on its own and in the context of multilateral fora like the WTO. The EU continues to extend its economic reach to this day, promoting the expansion of bilateral and multilateral trade agreements under the aegis of the “Trade for All” strategy.¹⁰

The EU’s activities in support of liberalized international commercial relations have had significant impact. The size of Europe’s market and the volume of its cross-border trade make it an extremely important actor from the perspective of the international economy. Its status as one of the world’s largest traders makes the EU an attractive partner for preferential trade agreements, an indispensable member of multilateral agreements, and a strong influence on global production patterns. In addition, because of the strength of its markets and the size of its economy, the EU’s internal regulatory structure influences the production decisions of companies around the globe—a state of affairs that Anu Bradford has dubbed “the Brussels effect,” paying homage to the better-known “California effect.”¹¹ Given its strength and commitment in this area, some have begun to speak of the EU, following Chad Damro, in terms of “market power Europe.”¹²

In addition to its important place in the constellation of international trade, over the past several decades the EU has also emerged as a global leader in international environmental regulation. The management of issues as diverse as climate change, biodiversity, and forestry have been influenced by EU efforts to promote its environmental norms abroad. Whether by engaging in multilateral negotiations with third states, toughening internal environmental rules, or participating in voluntary partnerships or technology transfer agreements, the EU has made a clear mark on the international environmental scene.

Europe’s leadership on global environmental issues has prompted some to see promoting environmental norms as an integral part of the EU’s foreign policy identity.¹³ Its central role in promoting sustainable development at the UN, its prominence in the international climate change regime, and its defense of biotechnology regulation, among many other activities, all lend support to the idea that the EU is an agenda-setter in global environmental politics. Given its notable attachment to these global environmental goals, some scholars have gone so far as to argue that the EU should be understood not merely as a normative power, but as a “green normative power.”¹⁴

This discussion of “market Europe” versus “green Europe” parallels the ongoing debate about what kind of power the EU is and/or should be. Is the EU “just” a market, from which Europeans (and the rest of the world) should expect deregulation, pro-business policies, and a privileging of the economic over all else? Or is the EU something more—a polity that protects the rights and values of its citizens?

Whether one sees the EU as a “market power” or a “green normative power” (or as something else entirely), trade and environment are both “values and interests” high on the EU’s evangelical agenda. Moreover, in recent years the EU has attempted to integrate these concerns with one another, analyzing them through the broader lens of “sustainable development”. Recognizing the importance of the interface between trade and environmental concerns, the EU today has explicitly legislated for the integration of environmental values into the EU’s policies in general (via Article 11 TFEU¹⁵), and its trade policies in particular (via Article 207(1) TFEU¹⁶). As a result, the promotion of trade, the environment, and “sustainable development” are a constitutionally mandated part of the EU’s external relations policy. The European Commission’s current “Trade for All” strategy, reflecting these commitments, names “A Trade and Investment Policy Based on Values” as one of the five key pillars of EU policy in this area.¹⁷

These evangelical economic policies designed to do environmental work outside of the EU’s borders are the subject of this book. The chapters that follow will refer to this category of measures as the EU’s external trade/environment agenda. This phrase denotes a specific set of practices: measures employed by the EU that seek, through the vehicle of economic policy, to export European environmental norms to the “wider world.” This category captures those instances in which the EU uses (or claims to use) its economic power as leverage to influence environmental policies and practices—of governments, organizations, businesses, and individuals—in third states. The EU’s external trade/environment agenda, in other words, consists of all of those instances in which the EU attempts to do environmental work outside its borders using economic tools.¹⁸

This focus on the EU’s external trade/environment agenda entails several limiting components. First, it refers only to activities taken by the EU as an actor—not by the Member States separately, or by individuals and groups within the EU. This is not to imply that these other actors do not engage in such activities, or to underplay the complexity of EU policy-making. Rather, the purpose is to focus attention on the EU’s behavior in this area, and the way that its behavior reflects a particular rationalization of EU power and authority.

Second, the EU’s external trade/environment agenda refers only the use of economic policy mechanisms (such as trade agreements, import regulations, tariffs, and so on) to do environmental work. Measures that seek to protect extraterritorial environmental interests by other means do not fall within this definition. While this may seem a simple point, it hides a more complex issue: that the separation of the “economic” and the “non-economic” is, of course, artificial and malleable. Nevertheless, the economic/non-economic dichotomy plays an important role in the construction of the EU’s trade/environment agenda. Indeed, the indeterminacy of the distinction is part of what makes it a powerful discursive tool, as it can be deployed, for example, to depoliticize policies that are deemed to be “economic” and subject them to distinct institutional techniques.

Third, this investigation into the EU’s external trade/environment agenda reads the term “measures” broadly (within the restricted focus on economic tools) as encompassing a wide swath of EU activity, from the promulgation of Regulations to the commissioning of expert reports. In doing so, it holds to the belief that legal and political activity work through a greater range of avenues than courtrooms and legislative chambers.

Fourth, the EU’s external trade/environment agenda covers only those policies that fall under the “evangelical” umbrella; that is, those that seek to affect policy, or to effect environmental or social change in third states, non-EU regions, or at the global level. This excludes policies designed exclusively to improve the environment within EU borders, to promote “greener” behavior among European companies, or to promote eco-friendly values among EU nationals.

Fifth and finally, speaking of the EU’s external trade/environment agenda does not entail any claim regarding the effectiveness of its measures. The point is not whether or not the EU is “successful” or not in generating social or behavioral change outside of its borders; the point is that it attempts to do so.

The EU’s external trade/environment agenda encompasses a wide variety of policy measures. These include things like trade and investment agreements with sustainable development provisions, environmental agreements that include trade bans, import restrictions and “green” tariffs and taxes on environmentally damaging products, market access conditions based on environmental criteria, environmental impact assessment rules, environmental benchmarks and best practices standards, and many other tools and techniques. Though they differ with respect to their enforce...

Table of contents

• Cover
• Title
• Copyright
• Table of Contents
• Acknowledgments
• List of Abbreviations
• 1 Introduction: the evangelical EU and the EU’s external trade/environment agenda
• 2 Setting the stage: Foucault, governmentality, and the EU’s external trade/environment agenda
• 3 Rights and market: rationalities of government and the EU’s external trade/environment agenda
• 4 Government and governance: technologies of government and the EU’s external trade/environment agenda
• 5 Citizens and stakeholders: subjectivities and the EU’s external trade/environment agenda
• 6 Conclusion: governmentality and the EU’s external trade/environment agenda
• Index