The Routledge Handbook of European Security Law and Policy

E. Conde, Zhaklin V. Yaneva, Marzia Scopelliti, E. Conde, Zhaklin V. Yaneva, Marzia Scopelliti

• Publisher: Routledge
• Year: 2019
• ISBN:
  9780429880056
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Handbook of European Security Law and Policy offers a holistic discussion of the contemporary challenges to the security of the European Union and emphasizes the complexity of dealing with these through legislation and policy.

Considering security from a human perspective, the book opens with a general introduction to the key issues in European Security Law and Policy before delving into three main areas. Institutions, policies and mechanisms used by Security, Defence Policy and Internal Affairs form the conceptual framework of the book; at the same time, an extensive analysis of the risks and challenges facing the EU, including threats to human rights and sustainability, as well as the European Union's legal and political response to these challenges, is provided.

This Handbook is essential reading for scholars and students of European law, security law, EU law and interdisciplinary legal and political studies.

PART I

EU Security

Interplay between the foreign security policy
and the internal security policy

1

THE EUROPEAN AGENDA
ON SECURITY

Kåre Dahl Martinsen

Introduction

Different analyses of European security draw different conclusions depending on their focus. If attention is given to the EU, the communiques issued, institutional innovations agreed and money spent, the conclusion has tended to be optimistic. This applies to many security scholars writing around the turn of the millennium. Some concluded that EU members had now reached a level of integration where national interests yielded to a common European security identity.¹ Common to these analyses was the claim that the foundations for a united response to the security threats confronting the Union were close to becoming a reality. Yet there was no real sense of urgency since the threats were few. None of them required a co-ordinated military response involving several countries or large numbers of troops on the ground. At regular intervals, the EU made plans for military capacities capable of prolonged battle deployments, only to be delayed, watered down or shelved.² This rarely caused much concern since diplomacy and soft power were seen as having the future on their side.³ NATO’s emphasis on military deterrence was regarded as a remnant from the Cold War.⁴ US complaints about European burden shedding were nothing new and, perhaps for that reason, were not perceived as pressing; besides, allied participation in US-led wars in Afghanistan and (for some) in Iraq softened the pressure coming from Washington. Only the Baltic countries and Poland pointed to Russia as a threat; in the eyes of many Western security scholars this seemed more based on history than reality. Besides, whatever real threat there may have been diminished as Russia was being integrated with the West; EU exports quadrupled from 2000 to 2008.⁵ Much in the same vein, China was primarily framed as a lucrative market. Few doubted that the country was on a Westernizing trajectory; joining the World Trade Organization in 2001 was taken as a clear sign that the rulers in Beijing had opted for a Western capitalist model.⁶

Today that optimism is gone. Russia has changed international borders by force and is engaged in active warfare against Ukraine. Its armed forces are a key vehicle for exerting Russian influence not only in Europe, but also in Africa and the Middle East. Russia’s state-sponsored hacking and disinformation have scored notable victories on both sides of the Atlantic. China is no longer just an economic opportunity, but a political opponent. Investments, take-overs, and trade agreements are tools used to gain influence and dilute any criticism of Chinese infringements of human rights or international law. Like Russia, China openly frames itself as a superior alternative to the Western political and economic model, and both nations work to weaken Western cohesion.⁷

Co-ordination on how to respond to Russia – both across the Atlantic and within the EU – has largely been successful. Finding a common policy on China is more difficult. One reason is certainly President Trump’s lack of enthusiasm for any multilateral solution combined with his disdain for the EU. The US decision to pull out of the Intermediate-Range Nuclear Forces Treaty (INF) has strained trans-Atlantic relations further. Before discussing the potential repercussions of that move, the threats posed by Russia and China will be surveyed. My focus will be restricted to the EU and NATO; they are the only organizations with the capacities and resources to counter Russia and China. The Organization for Security and Co-operation in Europe (OSCE) and the European Council do not, and will not be included. Key topics like cybersecurity, energy supplies, or the development of EU defense policy are dealt with in detail by other authors; here they are included only to illustrate their impact on European security autonomy. Finally, of all the European countries, France and Germany will be referred to repeatedly over the next pages. The reason is not their much acclaimed joint role as the EU’s political and economic locomotive. As will be shown, on security issues there is little coordination and even less harmony.

Russia and the new Cold War

Russia emerges on the European security agenda under three different headings: the Nord Stream gas pipeline, the war in Ukraine, and political disruption. These all inter-relate, but since the war is the event that led the EU to revise its relationship with Russia, this is where I will start.

In late 2013 the Ukrainian president Viktor Yanukovych unexpectedly announced his rejection of an EU association agreement awaiting his signature, and preferred instead a lucrative Russian offer made at the last minute. His decision would have cemented the country into the Eurasian Economic Union, a Russian dominated block. The democratically motivated economic reforms agreed with the EU would have been halted. His decision triggered mass protests in the larger cities with calls for a continued rapprochement with the West. The President and his entourage fled to Russia in late February 2014. Russian forces occupied Crimea a few days later. Then in July the same year, Russian forces invaded the Donbass region in Eastern Ukraine. Russian reasons for intervening militarily are complex and many, but a few are worth mentioning: without Ukraine, the Eurasian Economic Union would not only lack a geographical bridge to the EU but economic links would be severed.⁸ No less important was the unwelcome contrast a democratic Ukraine made to Putin’s model of autocracy.⁹

EU’s response to Russia’s actions was sanctions. The start was somewhat wavering. The snapshot of a civil servant leaving Downing Street with a memo stressing the need to shield the City of London from any economic punishment placed on Russia expressed a mood not exclusively British.¹⁰ Gradually EU members closed ranks around a set of sanctions that were subsequently expanded and prolonged. This was done in tandem with the US sending a strong message of Western cohesion. Nevertheless, there were some significant differences: the US measures lacked the European specificity. Intended or not, without clear dos and don’ts, foreign investors shied away from the Russian market fearing they could be subject to US punitive measures.¹¹

The question of whether the sanctions have been successful is difficult to answer. Russia has not withdrawn from Eastern Ukraine and Crimea. However, the sanctions have probably played a role in deterring Russia from taking the war further into Ukraine; the rhetoric used by Putin in 2014 when he referred to the Ukrainian Black Sea Coast as part of Novorossiya and ipso facto Russia, has been abandoned.¹² The economic impact of the sanctions is difficult to measure because the downturn in Russian economic growth started the year before the sanctions were imposed. An analysis published by the Bank of Finland’s research institute concludes that the impact has been ‘relatively limited on the aggregate level,’ but grave for companies and individuals directly targeted.¹³ The EU has not issued an assessment of the sanctions’ impact; the closest it has come is a 2018 briefing on the use of sanctions as a foreign and security instrument. It is admitted that sanctions rarely achieve their goals; yet it is asserted that an absence of change is not tantamount to failure.¹⁴ According to the report, sanctions are the expression of a joint EU commitment to uphold a set of values: remaining silent would have been ‘morally unacceptable.’¹⁵ That is laudable, yet this seems to imply that the need to convince EU citizens of a determination to act may have played a stronger role than hitherto acknowledged. The report contains nothing on what more the Union could do to force Russia to commit to a cease-fire.

European willingness to uphold the sanctions has so far remained intact. That has not prevented some politicians from arguing for their removal. Populist parties such as the German AfD (Alternative für Deutschland) or Marine le Pen’s Front National/Rassemblement nationale have pointed to the lack of result, arguing that they affect their countries unduly hard.¹⁶ It should be added that whenever these politicians are elected into office, their objections tend to be muted. Examples are the Austrian vice-chancellor Heinz-Christian Strache from the right-wing FPÖ (Freiheitliche Partei Österreichs) and the Italian prime minister Matteo Salvini who pleaded in favor of ending the sanctions, but who refrained from opposing the EU after making the transition from parliament to government.¹⁷

The sanctions regime was combined with negotiations to end the war. Convening in early 2015, the leaders of Ukraine and Russia met with the French president and the German chancellor in the Belarusian capital Minsk to agree on a cease-fire. The negotiations were undertaken at Chancellor Merkel’s initiative and she soon assumed a leading role. It is notable that the EU was not one of the parties, possibly reflecting Russian opposition against including the organization identified by the Kremlin as the main instigator of Ukraine’s westward turn. The parties agreed on a set of measures, including a cease-fire and the removal of heavy weaponry from the war zone. Fighting has abated in some parts of Eastern Ukraine only to reignite in others; the war has been transformed into a low-intensity, frozen conflict with the number of victims exceeding 10,000.¹⁸ Apart from the provision made in the agreement that the parties are to convene regularly, none of the other agreed targets have been fully met.¹⁹ Monitoring compliance, or the lack of it to be more precise, has been delegated to the OSCE. This is similar to what was done in Georgia from 1992 to 2008. This means that the EU is not directly involved in the peace efforts. Nikolaus von Twickel, a former member of OSCE’s monitoring team, has concluded that the agreements ‘all suffer from a lack of clarity and lack of political will to implement them.’²⁰ Despite OSCE’s dismal record and Russian sabotaging of the organization’s monitoring work in Eastern Ukraine, Germany proposed sending OSCE to monitor the conflict in the Sea of Azov only to be rebutted by Russia.²¹

Soon after the outbreak of hostilities in 2014, US politicians started questioning whether Ukraine should be permitted to buy US weapons. A bi-partisan Congress passed the Ukraine Freedom Support Act in 2014, allocating $350 million in security assistance. The sum was intended to include US-made weapons. If carried through, Moscow would certainly have taken it as proof that the West was behind the war. To avert escalating tensions, President Obama vetoed including weapons. Three years later, the restrictions were lifted when the Trump administration permitted the export of anti-tank missiles to Ukraine.²² Since then, Western military experts have traveled...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• Acknowledgements
• Introduction
• Part I EU security: interplay between the foreign security policy and the internal security policy
• Part II Risks and challenges facing the EU
• Part III Combatting threats from the human side?
• Index