The European Union and Crisis Management: Policy and Legal Aspects

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ISBN: 9789067042864 | 9067042862
Cover: Hardcover
Copyright: 12/8/2008

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In the wake of the Balkan wars, the EU has worked hard to close the so-called 'capabilities-expectations gap' in the European Security and Defence Policy (ESDP). With the institution of new political and military structures and procedures, the agreement on principles for consultation and cooperation with other international organizations, the adoption of an acquis sècuritaire, and the launching of twenty ESDP operations, the EU has affirmed its operational capacity in ESDP. The proliferation of the EU's institutional and operational mechanisms to manage crises on its doorstep and farther afield has led to a whole series of new legal and policy questions, which were addressed at the 37th edition of the T.M.C. Asser Institute's Colloquium on European Law in 2007. The contributions by leading academics and practitioners to the Asser Colloquium have been expanded and updated in the light of the Lisbon Treaty and are now available in this unique compilation.

Preface	p. V
Summary of contents	p. XI
Acknowledgements	p. XXI
List of abbreviations	p. XXIII
An introduction to the role of the European Union in crisis management	p. 1
Baptism by fire	p. 1
Age of innocence	p. 3
Maturity test	p. 5
Terminological confusion	p. 8
The academic contribution: this volume	p. 11
A history foretold
Foreign policy and defence cooperation in the European Union: legal foundations	p. 17
Introduction	p. 17
The fifties and sixties: the European Defence Community and other developments	p. 18
The seventies and eighties: European Political Cooperation and other developments	p. 20
Single European Act	p. 22
Treaty of Maastricht	p. 22
Treaty of Amsterdam	p. 25
Treaty of Nice	p. 27
Treaty of Lisbon	p. 28
Introduction	p. 28
General	p. 29
CFSP and CSDP	p. 29
Introduction	p. 29
Institutional innovations	p. 30
Common Foreign and Security Policy	p. 31
Common Security and Defence Policy	p. 32
Concluding remarks	p. 34
Final remarks	p. 34
European crisis management avant la lettre	p. 37
Pre-history of European military integration	p. 37
First operational steps through the WEU	p. 40
Renewed cooperation	p. 40
Middle East	p. 40
The WEU and the emergence of the EU's Common Foreign and Security Policy	p. 41
Managing crises in the Balkans	p. 44
The hour of Europe?	p. 44
EU Administration of Mostar	p. 46
Multinational Advisory Police Element in Albania	p. 48
General security surveillance mission in Kosovo	p. 49
De-mining Assistance Mission in Croatia	p. 50
An appraisal	p. 50
Willing and able?
The ABC of the European Union Security Strategy: ambition, benchmark, culture	p. 55
Introduction	p. 55
Global ambition and mission statement	p. 56
Benchmark and reference framework	p. 58
Strategic culture	p. 61
A mixed performance	p. 65
Global crisis management and the elaboration of a military strategy	p. 65
Permanent prevention and conditionality	p. 68
Strategic partners for a united Europe	p. 70
Implementation before revision	p. 71
Conclusion	p. 72
Peculiarities in the institutionalisation of CFSP and ESDP	p. 75
Introduction	p. 75
The institutional origins of CFSP crisis management	p. 76
The institutionalisation of EU crisis management	p. 77
The political level of EU crisis management	p. 77
Policy making bodies	p. 77
The Political and Security Committee	p. 79
The EU Special Representatives and Personal Representatives	p. 81
The Policy Unit and the Situation Centre	p. 82
The military dimensions of EU crisis management	p. 83
EU Military Committee and EU Military Staff	p. 83
The European Defence Agency	p. 85
Civilian crisis management	p. 88
Achievements and challenges	p. 92
Further institutionalisation of EU crisis management	p. 95
The question of competences and crisis management	p. 99
The Lisbon Treaty, foreign policy and crisis management	p. 99
Conclusions	p. 104
Assessing the Union's military capabilities: ESDP and the European crisis of liberal internationalism	p. 107
Introduction	p. 107
Europe's liberal strategic framework	p. 110
European liberalism and its limits	p. 113
Soft power illusions	p. 122
Conclusion: a 'force' for good?	p. 130
The Civilian Headline Goal 2008: developing civilian crisis management capabilities for the EU	p. 135
Introduction	p. 135
Background	p. 135
Capability planning	p. 136
Quality improvement and training	p. 138
Development of new concepts and capabilities	p. 138
Coordination with other actors	p. 139
Coordination with the EU military side	p. 140
Cooperation with the European Commission	p. 140
Involvement of IOs, non-EU states and NGOs	p. 141
The impact of the CHG 2008 in Member States	p. 141
Coherence and consistency
The European Security and Defence Policy and coherence challenges in the Council	p. 145
Defining 'coherence'	p. 145
The Council and ESDP	p. 147
Managing coherence at the European level	p. 148
Managing coherence at the domestic level	p. 153
Concluding remarks	p. 155
Inter-pillar coherence in the European Union's civilian crisis management	p. 157
Introduction	p. 157
General legal framework on inter-Pillar relations	p. 157
The delimitation of powers between the Pillars (Article 47 TEU)	p. 158
The duty not to affect the EC Treaty	p. 158
The jurisdiction of the European Court of Justice	p. 159
The duty to ensure consistency of the Union's external activities as a whole (Article 3(2) TEU)	p. 160
The division of competences in civilian aspects of crisis management	p. 161
Police missions	p. 163
Rule of law missions	p. 164
Civilian administration missions	p. 166
Civil protection	p. 168
Monitoring missions	p. 169
Support to EU Special Representatives	p. 170
Other types of civilian crisis management missions	p. 173
Border assistance missions	p. 173
Security sector reform missions	p. 174
Coherence in EU policies involving civilian aspects of crisis management	p. 175
The full association of the Commission in policy shaping	p. 176
The provision of complementary Community action	p. 176
Cooperation in the implementation of cross-Pillar action	p. 177
Unified representation in multilateral fora	p. 178
Conclusion	p. 179
European Parliamentary oversight of crisis management	p. 181
Introduction	p. 181
Democratic control of and coherence in CFSP/ESDP	p. 183
The need for democratic control	p. 183
The need for coherence	p. 185
The democratic deficit of CFSP/ESDP	p. 185
Incomplete functions of Parliament: control, consultation and accountability	p. 185
Budgetary power, inter-institutional arrangements and 'voice'	p. 187
Overcoming limited functions through institutional change?	p. 191
The need for an effective, efficient, coherent and democratic EU foreign policy	p. 191
Parliamentary control	p. 192
Constitutional adaptations	p. 193
Promoting further coherence in CFSP/ESDP: the contribution of the European Parliament	p. 195
The EP's reports on the European Security Strategy	p. 195
The EP's annual criticism of CFSP/ESDP	p. 196
Advocating coherence and control	p. 197
Conclusion	p. 197
Coherence and consistency of the EU's action in international crisis management: the role of the European Court of Justice	p. 199
Introduction	p. 199
The Small Arms case: drawing the line between CFSP and Community development cooperation	p. 202
A call for coordination and for ensuring consistency of EU external relations?	p. 207
Conclusion	p. 209
Effective multilateralism?
UN-EU cooperation in crisis management: partnership or rhetoric?	p. 215
Introduction	p. 215
Development of UN-EU cooperation in crisis management	p. 217
The first drive for intensified cooperation	p. 217
Test cases: Bosnia-Herzegovina and the DRC	p. 218
The Joint Declaration and 'Elements of Implementation'	p. 220
Learning by doing	p. 222
Prospects and pitfalls of UN-EU operation	p. 225
Constructive elements	p. 225
Cooperation on the EU's terms?	p. 227
Concluding remarks: an informal partnership	p. 231
The EU-NATO 'Berlin Plus' Agreement: the silent eye of the storm	p. 233
Introduction	p. 233
Content of 'Berlin Plus'	p. 234
Legal nature of 'Berlin Plus'	p. 237
Is 'Berlin Plus' an international treaty?	p. 239
Subjects of international law	p. 240
Form	p. 242
Consent to be bound	p. 242
Treaty-making power	p. 245
Is'Berlin Plus' a non-binding agreement?	p. 248
Characteristics	p. 248
EU-NATO Declaration of 2002	p. 250
Importance of 'Berlin Plus'- Present and future	p. 251
OSCE crisis management and OSCE-EU relations	p. 255
Introduction	p. 255
OSCE crisis management	p. 256
Introduction	p. 256
OSCE decision-making bodies, operational structures and institutions	p. 257
OSCE crisis management mechanisms	p. 263
OSCE-EU relations	p. 264
The crisis of the OSCE	p. 269
Introduction	p. 269
Crisis in the OSCE: symptoms and causes	p. 270
The Russian Federation	p. 271
The United States of America	p. 273
The European Union	p. 274
Concluding remarks	p. 275
Interregional cooperation in crisis management: EU support for the AU, ASEAN and other regional organisations	p. 277
Introduction	p. 277
Interregional cooperation	p. 278
The wider context of security policy	p. 281
Diplomatic partnership	p. 281
Development-security nexus	p. 282
Operational overlaps	p. 282
Financial assistance	p. 283
Aceh Monitoring Mission	p. 284
EU Support to the African Mission in Sudan (AMIS II)	p. 286
Outlook	p. 289
EU agreements with third countries: constitutional reservations by Member States	p. 291
Introduction	p. 291
The content of Article 24(5) TEU	p. 294
The position of Member States in relation to Article 24(5) TEU	p. 296
Agreements affected by Article 24(5) TEU	p. 299
Consequences of the provisional application of EU agreements	p. 303
Conclusion	p. 306
Learning by doing
EU crisis management in the Western Balkans	p. 311
Introduction	p. 311
The Western Balkans: European crisis management between stabilisation and integration	p. 312
Introduction	p. 312
Changing conceptions of ESDP in the Western Balkans and beyond	p. 314
Crisis management in FYROM: from stabilisation to accession	p. 314
Crisis management in Bosnia: civil-military coordination in the context of contested statehood	p. 315
Learning by doing for EU crisis management - Key lessons and their enduring relevance	p. 317
Not just crisis management - The challenge of defining, branding and practising 'European crisis management'	p. 317
Mission design and mandates: what is appropriate, what is effective?	p. 318
The challenge of coherence and of successfully coordinating EU instruments	p. 320
The challenge of coordination: effective multilateralism? EU-NATO and EU-UN relations	p. 322
The enduring capability (and personality) gap	p. 324
Defining 'success': what makes a mission a success (or failure)? Applying lessons learned to Kosovo	p. 324
Concluding remarks	p. 325
EU crisis management in Africa: progress, problems and prospects	p. 327
Introduction	p. 327
European crisis management in Africa: a brief historical overview	p. 330
The EC and Africa 1960-1990: the 'no management' period	p. 330
The start of EU management of African crises: the 1990s and beyond	p. 331
EU legal frameworks and institutional structures for managing African crises	p. 332
EU management of African crises: of species and types	p. 334
Conflict prevention and capacity building	p. 334
The EU's direct military involvement in Africa: Operation Artemis, the Darfur crisis and the Chad debacle: between missed opportunities and idle interventions	p. 336
Lessons learnt from EU management of African crises	p. 339
The EU, Africa and the Joint Strategy: from Lisbon to where?	p. 340
Concluding remarks	p. 342
EU crisis management in Asia	p. 345
Introduction: ESDP as an instrument of EU crisis management	p. 345
The Aceh Monitoring Mission: a test case for EU-Asia cooperation in civilian crisis management	p. 346
The EU's strategy and approach towards Asia and Asian security	p. 349
Potential and parameters of EU crisis management in Asia	p. 349
EU and the ARF	p. 350
The EU and the Human Security Dimension in Asia	p. 351
The EU, India and China: challenges and opportunities	p. 351
Conclusion	p. 353
The nexus between EU crisis management and counter-terrorism	p. 355
Introduction	p. 355
ESDP dimension	p. 358
Crisis management	p. 360
Initiatives	p. 364
Security sector reform	p. 367
Capacity building	p. 369
Conclusion	p. 371
Accountability of EU forces under international law
Accountability for violations of human rights law by EU forces	p. 375
Introduction	p. 375
Basic premises about the ESDP and the status of the EU	p. 376
The scope of the ESDP	p. 376
The legal framework in ESDP operations	p. 377
The EU's international legal personality	p. 378
The EU's international obligations	p. 379
Command, control and responsibility in ESDP operations	p. 379
The applicability of human rights in ESDP operations	p. 383
Extraterritorial scope of application of human rights	p. 383
Derogation and its extraterritorial application	p. 384
Human rights and international humanitarian law	p. 385
The impact of Security Council Resolutions	p. 386
The EU's human rights obligations under EU law	p. 387
The EU's human rights obligations under (other) international law	p. 390
Accountability for human rights violations by EU-led forces	p. 390
Conclusions and final reflections	p. 392
Toward a more mature ESDP: responsibility for violations of international humanitarian law by EU crisis management operations	p. 395
Introduction	p. 395
EU crisis management operations as part of ESDP	p. 396
EU legal personality	p. 398
EU obligations under international humanitarian law	p. 400
Attribution to the EU	p. 403
Attribution to and responsibility of troop-contributing states or Member States	p. 406
A state is responsible for its own conduct in relation to the conduct of an international organisation	p. 407
A state is responsible for an internationally wrongful act of an international organisation	p. 410
Specific aspects of the ESDP and IHL: do they lead to different conclusions?	p. 412
Specific aspects of the ESDP	p. 412
Specific aspects of IHL	p. 412
Conclusion	p. 414
List of Contributors	p. 417
Index	p. 421
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The European Union and Crisis Management: Policy and Legal Aspects

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