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European Union Contested: Foreign Policy In A New Global Context
 3030332373,  9783030332372,  9783030332389

Table of contents :
Acknowledgements......Page 6
Contents......Page 8
Editors and Contributors......Page 10
Abbreviations......Page 12
1 EU Foreign Policy and Norm Contestation in an Eroding Western and Intra-EU Liberal Order......Page 14
Contestation of the EU’s Foreign Policy Norms and Values......Page 18
Modes of Contestation of the EU’s Foreign Policy Norms and Values......Page 20
Outcomes of the EU’s Contested Foreign Policy Norms and Values......Page 24
References......Page 26
2 The EU and Controlling the Use of the Death Penalty: An Organising Principle for Which Fundamental Norm?......Page 29
The European Union and the Abolition of the Death Penalty......Page 30
A Decade-Long Transition from Arbitration to Justification......Page 36
Hard Contestation and Increased Legitimacy......Page 40
Conclusion......Page 42
References......Page 43
3 Common but Differentiated Responsibility in International Climate Negotiations: The EU and Its Contesters......Page 46
Common but Differentiated Responsibility and Its Contesters......Page 48
What Is Contested?......Page 49
Analyzing Contestation: Methodology......Page 51
Who Contests?......Page 52
Contesting CBDR Through Deliberation......Page 54
Common but Differentiated: Dynamic Interpretation Versus no Reinterpretation......Page 55
Whose Responsibilities?......Page 57
Bifurcation and Respective Obligations......Page 59
Outcome: The EU Building Bridges Between Contesters?......Page 61
Conclusions......Page 62
References......Page 64
4 China Contestation of the EU’s Promotion of the Responsibility to Protect: Between Solidarists and Sovereignists......Page 66
The Tension Between the Norm of Sovereignty and the Principle of Humanitarian Intervention in European and Chinese Perspective: The Responsibility to Protect......Page 68
Mode of Contesting the Responsibility to Protect: The Crisis in Darfur, Libya and Syria......Page 73
Outcomes of an Intensive Norm Contestation: Towards a Responsible Protection?......Page 80
Conclusions......Page 82
References......Page 83
5 India’s ‘Silent Contestation’ of the EU’s Perspective on Local Ownership......Page 86
Whose Peace? Locating Local Ownership Within a Larger Framework of International Norms on Security Governance......Page 87
Deliberation, Justification, ‘Silent Contestation’, and Questions Over Contestatory Practice......Page 92
Outcome: Rethinking Legitimacy of Local Ownership?......Page 96
Conclusions......Page 97
References......Page 98
6 Good Natural Resource Governance: How Does the EU Deal with the Contestation of Transparency Standards?......Page 105
Transparency as an Organizing Principle of Good Natural Resource Governance......Page 106
Transparency Contested from Different Sides......Page 113
Outcome of the Norm Contestation Process: Transparency Withstands......Page 115
Conclusion......Page 118
References......Page 119
7 The European Union and the International Criminal Court: Contested Abroad, Consensual at Home?......Page 123
The ICC and Norm Contestation......Page 124
Bilateral Immunity Agreements and International Criminal Justice......Page 126
Sitting Heads of State, Between Justice and Sovereignty......Page 127
The Crime of Aggression and the UNSC......Page 128
The EU and International Criminal Justice......Page 130
The EU and BIAs......Page 131
The EU and the Immunity of Sitting Heads of State......Page 133
The EU and the Crime of Aggression......Page 134
Patterns of EU Behaviour Towards Norm Contestation on the ICC......Page 135
Conclusion......Page 137
References......Page 139
8 The European Union and Lethal Autonomous Weapons Systems: United in Diversity?......Page 142
Deliberating the Emerging Norm on LAWS......Page 144
Contesting the Norm on Human Control: A European Insight......Page 149
The EU and the Side Effects of Contesting LAWS’ Human Control......Page 154
Conclusions......Page 156
References......Page 157
9 Norm Contestation in Modern Trade Agreements: Was the Transatlantic Trade and Investment Partnership a “One-off”?......Page 162
The Trade Norms of the EU......Page 164
TTIP Opponents and Supporters......Page 166
A Hard and Consistent Contestation Strategy......Page 168
The Impact on Legitimacy......Page 172
Conclusion......Page 176
References......Page 177
10 Military Capacity Building as EU’s New Security and Development Strategy: The New Rules for Peace Promotion?......Page 181
Contesting the Military Capacity-Development Nexus......Page 183
How Is the New Approach to Security-Development Nexus Contested?......Page 185
Overlapping Contestations and EU’s Legitimacy......Page 191
Conclusion......Page 193
Bibliography......Page 195
11 When Contestation Is the Norm: The Position of Populist Parties in the European Parliament Towards Conflicts in Europe’s Neighbourhood......Page 198
Consensus as an Organising Principle in the European Parliament......Page 200
Populist Parties as Contesters in the European Parliament......Page 201
Data and Methods......Page 204
The Modes of Contestation of EU Foreign Policy by Populist Parties......Page 205
The Ukrainian Crisis......Page 206
The Syrian Crisis......Page 210
What Are the Prospects for Populist Challenges to the Legitimacy of EU Foreign Policy?......Page 213
Conclusion......Page 214
References......Page 215

Citation preview

Norm Research in International Relations Series Editor: Antje Wiener

Elisabeth Johansson-Nogués Martijn C. Vlaskamp Esther Barbé Editors

European Union Contested Foreign Policy in a New Global Context

Norm Research in International Relations Series Editor Antje Wiener, Institut für Politikwissenschaft, University of Hamburg, Hamburg, Germany

This book series offers an outlet for interdisciplinary research on norms in the context of international relations and global governance. It features scientific and scholarly studies which examine the way norms are created and re-created through interactions between actors at the international level, taking into account the reflexive nature of governance relationships and their impact on state behaviour through the re-constitution of norms. Norms in international relations are defined as ideas of varying degrees of abstraction and specification that concern fundamental values, organising principles or standardised procedures. They resonate across states and global actors in the form of official policies, laws, treaties and agreements, while their meaning may be stable or contested. Norm Research in International Relations (NRIR) welcomes proposals for research monographs, edited volumes and handbooks from a variety of disciplines that seek to advance theories and applied research in international relations and to arrive at a better understanding of the role and impact of norms. Relevant topics include, but are not limited to, issues of international justice, research on contestation, human rights, international treaties in areas such as energy, environment or security, and constructivist norm research in international relations theory, recognition theory and international law.

More information about this series at http://www.springer.com/series/15646

Elisabeth Johansson-Nogués Martijn C. Vlaskamp Esther Barbé •



Editors

European Union Contested Foreign Policy in a New Global Context

123

Editors Elisabeth Johansson-Nogués IBEI Barcelona, Spain

Martijn C. Vlaskamp IBEI Barcelona, Spain

Esther Barbé IBEI Barcelona, Spain

ISSN 2522-8676 ISSN 2522-8684 (electronic) Norm Research in International Relations ISBN 978-3-030-33237-2 ISBN 978-3-030-33238-9 (eBook) https://doi.org/10.1007/978-3-030-33238-9 © Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Acknowledgements

The European Union Contested: foreign policy in a new global context is a collective output from the European Foreign Policy Observatory, based at the Institut Barcelona d’Estudis Internacionals (IBEI). The Observatory was established as a research group in 2001 with the aim to foment debate and increase knowledge about the EU’s foreign policy in all its dimension. The Observatory, recognized as a consolidated research group since 2003, is currently receiving funding from the Agency for Management of University Research Grants (AGAUR) of the Catalan Government (2017-SGR-693). This book falls within the EU-NormCon national grant research project (Normative contestation in Europe: Implications for the EU in a changing global order) funded by the National R+D Plan of the Spanish Ministry of Economy and Competitiveness (CSO2016-79205-P). Our aim was to write this book, not just for scholars and practitioners, but also for graduate students and advanced undergraduates interested in EU’s foreign policy and in norm research. Our intention is that the template we offer for evaluating and explaining the effects of contesting the European Union’s foreign policy norms and fundamental values can serve as a basis for others to conduct further in-depth case studies. The more we learn about the EU’s role in the changing international order, the more we develop a concrete basis for understanding what the EU is as an international actor and where its foreign policy is heading in the next coming decade. Excerpts of the book have been presented in different workshops and conferences. A first draft of the book was presented in a workshop on the European Union contested hosted by the Institut Barcelona d’Estudis Internacionals (IBEI) on May 2019. We sincerely thank Pol Morillas, Patrick Müller, and Madeleine Hosli for their insightful comments and feedback. Versions of various chapters were also presented during the International Studies Association Annual Convention in Toronto on March 2019, during the 2nd NORTIA Network Conference in Poznan on June 2019, and on a panel on the EU foreign policy at the 26th International Conference of Europeanists in Madrid on June 2019. We thank Niklas Bremberg who accepted to be our panel discussant at the ISA Convention in Toronto.

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Acknowledgements

We could not have finished this volume without the help of many academic colleagues. We owe a special thank you to Diego Badell, Adrià Rivera, and Dominique Schmid for their invaluable help with the different technical aspects related to the book. We are also grateful to the entire Springer editorial and production staff. Without their encouragement and kind cooperation, this book would not have been possible.

Contents

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EU Foreign Policy and Norm Contestation in an Eroding Western and Intra-EU Liberal Order . . . . . . . . . . . . . . . . . . . . . . . Elisabeth Johansson-Nogués, Martijn C. Vlaskamp and Esther Barbé

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The EU and Controlling the Use of the Death Penalty: An Organising Principle for Which Fundamental Norm? . . . . . . . . Robert Kissack

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Common but Differentiated Responsibility in International Climate Negotiations: The EU and Its Contesters . . . . . . . . . . . . . . Franziska Petri and Katja Biedenkopf

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China Contestation of the EU’s Promotion of the Responsibility to Protect: Between Solidarists and Sovereignists . . . . . . . . . . . . . . Lluc López i Vidal

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India’s ‘Silent Contestation’ of the EU’s Perspective on Local Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lara Klossek

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Good Natural Resource Governance: How Does the EU Deal with the Contestation of Transparency Standards? . . . . . . . . . . . . . Martijn C. Vlaskamp

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The European Union and the International Criminal Court: Contested Abroad, Consensual at Home? . . . . . . . . . . . . . . . . . . . . 113 Gemma Collantes-Celador and Oriol Costa

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The European Union and Lethal Autonomous Weapons Systems: United in Diversity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 Esther Barbé and Diego Badell

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Contents

Norm Contestation in Modern Trade Agreements: Was the Transatlantic Trade and Investment Partnership a “One-off”? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Leif Johan Eliasson and Patricia Garcia-Duran

10 Military Capacity Building as EU’s New Security and Development Strategy: The New Rules for Peace Promotion? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 Marta Iñiguez de Heredia 11 When Contestation Is the Norm: The Position of Populist Parties in the European Parliament Towards Conflicts in Europe’s Neighbourhood . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Milan van Berlo and Michal Natorski

Editors and Contributors

About the Editors Elisabeth Johansson-Nogués is Associate Professor and Coordinator of the Research Master’s in International Studies at the Institut Barcelona d’Estudis Internacionals (IBEI) in Spain. She is a member of the Observatory of European Foreign Policy, Barcelona, Spain. Her research interests include the EU’s foreign, security and defence policy, the EU’s relation with Eastern Europe and the Arab World, international security, multilateralism, and regionalism. Her publications have appeared in Security Dialogue, Cooperation and Conflict, International Affairs, Mediterranean Politics, and elsewhere. Martijn C. Vlaskamp is Beatriu de Pinós Fellow at the Institut Barcelona d’Estudis Internacionals (IBEI). Prior to that, he was a Marie Skłodowska-Curie Global Fellow at Yale University and IBEI. Martijn is a member of the Observatory of European Foreign Policy in Barcelona. His research interests include the prevention and termination of armed conflicts, with a special emphasis on the role of natural resources. Martijn’s work has been published in Cooperation and Conflict, West European Politics, and other peer-reviewed journals. Esther Barbé is Professor of International Relations at the Universitat Autónoma de Barcelona (UAB) and Senior Research Associate at the Institut Barcelona d’Estudis Internacionals (IBEI). Since 2001, she has directed the Observatory of European Foreign Policy. Her research focuses on Mediterranean security, Spanish Foreign Policy, EU Foreign Policy, and emerging powers and multilateralism.

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Editors and Contributors

Contributors Diego Badell Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain Esther Barbé Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain; Universitat Autònoma de Barcelona (UAB), Barcelona, Spain Katja Biedenkopf Leuven International and European Studies, KU Leuven, Leuven, Belgium Gemma Collantes-Celador Cranfield University at the Defence Academy of the United Kingdom, Shrivenham, UK Oriol Costa Universitat Autònoma de Barcelona (UAB), Barcelona, Spain Leif Johan Eliasson East Stroudsburg University, East Stroudsburg, Pennsylvania, USA Patricia Garcia-Duran University of Barcelona, Barcelona, Spain Marta Iñiguez de Heredia Universidad Autónoma de Madrid, Madrid, Spain Elisabeth Johansson-Nogués Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain Robert Kissack Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain Lara Klossek Universitat Autònoma de Barcelona (UAB), Bellaterra, Spain Lluc López i Vidal Universitat Oberta de Catalunya, Barcelona, Spain Michal Natorski Maastricht Graduate School of Governance, UNU-MERIT, Maastricht University, Maastricht, The Netherlands Franziska Petri Leuven International and European Studies, Leuven Centre for Global Governance Studies, KU Leuven, Leuven, Belgium Milan van Berlo Faculty of Governance and Global Affairs, Leiden University, The Hague, The Netherlands Martijn C. Vlaskamp Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain

Abbreviations

AI ALDE APF ASP AU BEUC BIAs BRICS CBDR CBSP CEO CETA CFSP CICC CJEU COJUR COP CSDP CSO ECOWAS EDD EDF EEAS EEC EFD EFDD EITI ENF EPP

Artificial Intelligence Alliance of Liberals and Democrats for Europe African Peace Facility Assemblies of State Parties African Union European Consumer Agency Bilateral Immunity Agreements Brazil, Russia, India, China and South Africa Common but Differentiated Responsibility Capacity Building for Security and Development Corporate Europe Observatory EU-Canada Comprehensive Economic Trade Agreement Common Foreign and Security Policy Coalition for the International Criminal Court Court of Justice of the European Union Council’s Public International Law Working Group United Nations Framework Convention on Climate Change Conference of the Parties Common Security and Defence Policy Civil Society Organization Economic Community of West African States Europe of Democracies and Diversities European Defence Fund European External Action Service European Economic Community Europe of Freedom and Democracy Europe of Freedom and Direct Democracy Extractive Industry Transparency Initiative Europe of Nations and Freedom European People’s Party

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ESDP ESS EUGS FDI FTA GHGs GUE-NGL HRC IBSA ICC ICISS ICJ ICRC ICS IcSP IFO IHL ISDS LAWS NATO NDG OAS OECD R2P SDG SEC TACD TTIP UEN UNCCW UNCHR UNFCCC UNGA UNSC

Abbreviations

European Security and Defence Policy European Security Strategy European Union Global Strategy Foreign Direct Investment Free Trade Area Growing Emissions of Greenhouse Gases European United Left–Nordic Green Left UN Human Rights Council India, Brazil and South Africa International Criminal Court International Commission on Intervention and State Sovereignty International Court of Justice International Committee for the Red Cross International Court System Instrument Contributing to Stability and Peace International Financial Organization International Humanitarian Law Investor-State Dispute Settlement Lethal Autonomous Weapons System North Atlantic Treaty Organization Nationally Determined Contributions Organization of American States Organization for Economic Cooperation and Development Responsibility to Protect Sustainable Development Goals US Securities and Exchange Commission Transatlantic Consumer Dialogue Transatlantic Trade and Investment Partnership Union for a Europe of Nations UN Convention on Certain Conventional Weapons United Nations Commission on Human Rights United Nations Framework Convention on Climate Change United Nations General Assembly United Nations Security Council

Chapter 1

EU Foreign Policy and Norm Contestation in an Eroding Western and Intra-EU Liberal Order Elisabeth Johansson-Nogués, Martijn C. Vlaskamp and Esther Barbé

The idea that the European Union is being increasingly contested, whether globally or at home, is a notion frequently expressed by high-level EU representatives as well as in contemporary academia. For example, the President of the European Council, Donald Tusk, stated in a letter to European leaders that to his mind “[t]he challenges currently facing the European Union are more dangerous than ever before in the time since the signature of the Treaty of Rome” (European Council, 2017). The perception that the EU is being contested by a diverse set of actors and factors, and hence in peril, is also expressed in the opening paragraph of the European Union Global Strategy (EUGS, 2016) which holds that “we live in times of existential crisis, within and beyond the European Union. Our Union is under threat. Our European project, which has brought unprecedented peace, prosperity and democracy, is being questioned”. Academic analyses, for their part, indicate that such challenges to European integration stem from a number of diverse but interlinked global and intra-EU crises that, combined, amount to the current ‘perfect storm’ affecting the EU and its foreign, security and defense policy (Barbé & Morillas, 2019; Dinan, Nugent, & Paterson, 2017; Johansson-Nogués, 2018; Müller, 2016; Rosamond, 2019; Youngs, 2018). At the global level, contestation over the EU’s foreign policy inserts itself into the dynamics of a Western-led liberal world order that is steadily eroding (Acharya, 2017; Buzan & Lawson, 2015; Ikenberry, 2013). A growing number of greater and smaller states are vying for more leeway to act out their own communitarian principles on and approaches to sovereignty, security and economic development. Emerging powers have been at the forefront of the quest to modify or undo the constraints of the multilateral order in the last decade. More recently, the USA—the very architect of the current global order—has seemingly joined the ranks of challengers by withdrawing from multilateral agreements or from financial commitments. This, some observers say, can directly be attributed to US President Donald Trump’s pursuit of an E. Johansson-Nogués (B) · M. C. Vlaskamp · E. Barbé Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_1

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‘America-first’ policy, while others see the current contestation as the culmination of longer-standing US ambivalence over multilateralism (Newman, Thakur, & Tirman, 2006). As a consequence, the EU finds itself ever more alone, even within the Global North, as the self-proclaimed protector of a rule-based order and global governance institutions, as well as the contested defender of cosmopolitan ideals (Manners, 2008; Sjursen, 2015). In the view of High Representative for Foreign Affairs and Security Policy/Vice-President of the European Commission (HRVP) Federica Mogherini [t]he fundamental rules of international relations are being systematically questioned, and this is bad news. Too many leaders only speak the language of power politics and confrontation. International law and multilateral agreements are perceived more and more as an obstacle for the powerful than a guarantee for all (EEAS, 2019).

We argue here that neither the dynamics, nor most of the currently contested global issues (e.g., sovereignty, human rights, climate change, humanitarian intervention, natural resource management) are new, but rather part of longer-term processes of contestation. The novelty of the current situation is that the actors contesting the international order are new, either acting alone or joining ranks with longstanding contesters. The influx of actors, and the greater plurality of contesters of status quo, has infused new urgency into the debates and contributed to the polarization of positions in recent years. At the European level, a similar battle over norms, values and institutions, with potential consequences for the EU’s foreign policy, has been unleashed. The most vocal critics of the EU as an international actor have been anti-globalization movements, developmental non-governmental organizations (NGOs), or populist political parties at either extreme of the left-right political spectrum (Costa, 2018). The eurozone and the refugee crises have seemingly contributed to further politicization and eroded shared beliefs and solidarity among EU member states. The victory of ‘Leave’ in the UK’s 2016 referendum on EU membership demonstrated that the concept of an ‘ever closer Union’ was not irreversible and further emboldened critics. Populist parties have expanded their power in almost all EU member states and are, at the time of writing, governing in a number of them (e.g., Hungary, Italy and Poland). In other countries, populist parties are the largest opposition parties in parliament (e.g., Germany, the Netherlands and Sweden). As a result of the current contestation, it has been argued that mainstream politicians increasingly display “fear of their own populations,” which in turn prevents Europe from playing “the role of defending those values that Europe prizes” (Waever, 2018: 84). The politicization has multiple loci, as it cuts across different political levels (domestic, European, global), and at times foments new intergovernmental, transnational or public–private normative alliances. The perception is that at the heart of the contention are “differing conceptions of community” (Bornschier, 2010: 419–420). There are those who are in favor of universal values and/or strong, pro-active EU actions in the international arena (e.g., open trade system, development cooperation, humanitarian law, transnational justice), while yet others seek increased devolution of power and foreign policy initiative from EU institutions back to national capitals. Observers have deemed this

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tension to be about pro- and anti-European integration or, differently stated, an integration–demarcation cleavage in the EU (Grande & Kriesi, 2015: 191). Scholars also point to that even those EU policies which hitherto have enjoyed broad intraEU “permissive consensus” (Marks & Hooghe, 2004), such as the foreign, security and defense policy, are now becoming objects of politicization or “constraining dissensus” (ibid.; Angelucci & Isernia, 2019; Barbé & Morillas, 2019; Hegeman & Scheneckener, 2019). It is perhaps at the intra-EU level that the present volume detects most novelties in the dynamics of contestation, in the form of new actors, new ‘glocal’ alliances among intra-EU and extra-EU actors and even politicization of hitherto apparently deeply internalized foreign policy norms. The current perfect storm of crises and contestation affecting the European Union has received due attention in the scholarly literature. This edited volume, however, explores a much narrower and specific set of contestatory practices, which have yet to receive systematic scrutiny. We are interested in how the EU is being put to the test in terms of the norms and fundamental values which guides its foreign policy. It is an important issue within the broader debates of the European crises, as such norm contestation may have deeper structural and longer-term effects on the EU’s external action and its resilience as an international actor. European Union contested: foreign policy in a new global context, based on exploratory research work, provides a comprehensive overview of a number of the most important current challenges articulated against EU foreign policy norms, whether at the global, glocal or intra-EU level. Our analysis, in part, draws inspiration from the norm contestation literature. In this volume, we define norms as socio-political expressions of inter-subjective standards of appropriate behavior (Finnemore & Sikkink, 1998).1 Norm contestation, in turn, is a social practice whereby actors discursively express disapproval of such norms with the aim to establish the latter’s nascent or continued legitimacy (Tully, 2002). We are particularly attentive to this link between contested norms and legitimacy. Inherent to the norm contestation process is the idea that as standards of appropriate behavior in determined political, social and cultural settings are being challenged, reinterpreted and transformed, the validity of norms is weakened or strengthened (Badescu & Weiss, 2010; Deitelhoff & Zimmermann, 2013; Krook & True, 2012; Sandholtz & Stiles, 2008; Wiener, 2008, 2014). The specific dual objective of the current volume is to map out new and old profiles of norm contestation of the EU’s foreign policy and to test the ability of the EU to withstand challenges to the norms and fundamental values that guide its behavior in a shifting global and intra-EU context. First, the mapping exercise consists of exploring empirical cases and reveals different types of contestation. In order to test for the EU’s foreign policy’s ability to withstand these contestations (i.e., its resilience), we look at the specific modes of contestation and how they affect the legitimacy of the foreign policy norm. Some of the norm contestations relate to norms the EU promotes or defends externally (e.g., abolition of the death penalty, climate change or sustainable peace). Other cases of contestation reflect on how various new or 1 However,

we leave it up to each of the contributors to pursue their own ontological and epistemological take on norms.

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longstanding EU foreign policy norms have drawn polemics internally (e.g., free trade, transnational justice, development cooperation). Second, the testing exercise involves unpacking and systematizing the modes of norm contestation in discourse and practice—i.e., deliberation, arbitration, contention and justification—and point to the scope conditions (soft/hard) that lead to differentiated outcomes. The findings will be applied toward determining the strengthened or weakened legitimacy of the EU’s foreign policy norms. We will return to this in the corresponding section below. The case selection for European Union contested: foreign policy in a new global context was made based on the perceived relative importance to the EU of the foreign policy norm or fundamental value in question, in combination with the existence of contestation of said norms and values at the global, glocal or intra-EU level. We look at a varied range of norms, from norms with universal reach (e.g., human rights or good governance) to ‘localized’ norms (e.g., actor-specific norms, whether in the EU or ICC). The cases cover emerging norms as well as norms beyond the tipping point and even deeply internalized norms (e.g., EU free trade). Finally, in our research endeavor we include cases of norm contestation spanning relatively longer time periods, as well as of relatively newer occurrence, to control for the effects of spurious politicization of topics. The book encompasses three parts and is structured in the following manner. The first part explores contestation by state and non-state actors of foreign policy norms defended by the EU at the global level. In Chap. 2, Robert Kissack analyzes the debates at the United Nations about the abolition of the death penalty, which for a long time has been one of the most visible policy objectives promoted by the EU. Climate is another key area for the EU at the global stage; in Chap. 3 Franziska Petri and Katja Biedenkopf revisit the polemics surrounding the common but differentiated responsibility for climate mitigation measures in the 2015 Paris Agreement. In Chap. 4, Lluc López i Vidal looks at one of the most controversial global debates in the past decades, concerning the issue of Responsibility to Protect (R2P). R2P and humanitarian intervention are issues which have enjoyed strong backing from the EU and its member states, while China’s reservations against R2P have grown over time. Ever since the emergence of the Common Security and Defense Policy, the EU has also shown a decided interest in related areas of international peace and security, such as conflict prevention and peacebuilding (Barbé & Johansson-Nogués, 2001, 2010; Gross & Juncos, 2010; Natorski, 2011). In Chap. 5, Lara Klossek discusses the differentiated understandings between India and the EU of peacebuilding and local ownership in post-conflict reconstruction. In the second part of the book, we move to a level of analysis which is affected by both global and intra-EU contestatory dynamics at once, i.e., the glocal level. In Chap. 6, Martijn C. Vlaskamp explains the norm of transparency for global natural resource governance, which is defended by the EU, but contested by resource-rich countries, China and the US extractive industry; how this global norm contestation prompts or influences intra-EU contesters; and how it is used as a way to motivate or justify actions. In Chap. 7, Gemma Collantes-Celador and Oriol Costa look at the EU’s fragmented defense of the International Criminal Court (ICC) in terms of a range of norms related to international justice, such as war crimes, crimes

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against humanity, genocide and others. While the EU has most frequently joined ranks with the global supporters of the ICC as the place to persecute international crimes, intra-EU contestation has also surged, with individual member states aligning with extra-EU actors on key issues such as the definitions of crimes, ICC jurisdiction and ‘triggers’ for investigations, as well as the ‘admissibility’ of cases in light of domestic criminal investigations. Chapter 8, authored by Esther Barbé and Diego Badell, scrutinizes the global and intra-EU contestation surrounding the emergent norm in international humanitarian law in terms of Lethal Autonomous Weapons Systems. Here, the EU helped forge a middle ground among global norm contesters in the form of ambiguously worded ‘sufficient’ human control over such weapons systems. Simultaneously, contestations ensued within the EU, where contestatory practices ranged from those EU actors who advocated for a ban in the spirit of the Union’s Treaty obligation to promote peace (Article 3, TEU) and those who perceived the matter to be about safeguarding national prerogatives in an expanding area of commercial importance to EU military industries (e.g., artificial intelligence, robotics). The third and final part of this edited volume examines norm contestation within the EU, where protagonists span EU institutions, member states and intra-EU nonstate actors. Chapter 9, by Leif Johan Eliasson and Patricia Garcia-Duran, deals with the unexpected intra-EU norm contestation that was produced in the context of the 2013–2016 Transatlantic Trade and Investment Partnership negotiations. While the EU is a global champion of an open trade regime for most goods and services, EU civil society actors took the Union to task over a range of issues related to free trade, such as regulatory convergence, investment protection and transparency. Chapter 10 returns to the issue of peacebuilding, but this time from an intra-EU standpoint. Marta Iñiguez de Heredia discusses the controversies which have arisen with the 2016 Capacity Building for Security and Development (CBSD) initiative as a consequence of the shifting logic of standards of appropriateness between security and development in the EU’s foreign policy. The CBSD initiative, which allows the European Union to grant non-lethal military support to third countries, has been interpreted by one set of EU actors as fully in line with the Treaty of the European Union, while other EU actors beg to differ. Finally, Milan van Berlo and Michal Natorski in Chap. 11 explore the ever-polarized European Parliament, where mainstream parties are being challenged by left-wing and right-wing populist parties on the longstanding norm of consensus as an organizing principle of EU foreign policy.

Contestation of the EU’s Foreign Policy Norms and Values The authors of this volume identify a set of differentiated understandings of norms at the core of the current internal and global contestation of the EU as an international actor and its foreign policy. To assist the analyses of the case studies, we the editors asked the contributors to reflect on their different norm contestation debates with reference to the norm classification scheme proposed by Wiener (2014). To guide

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empirical research on norms, she distinguishes among three different types of norms according to their degree of specification, generalization and moral reach. The first type—fundamental norms (or type-1 norms)—are broad, all-encompassing, takenfor-granted norms that enjoy wide social and moral recognition (e.g., human rights, the rule of law, democracy, sovereignty). Such norms are usually deemed to be the pillars of global governance and expressed in the form of international law, principles or practices incorporated into international regimes, treaties or international organizations. The second type—organizing principles (or type-2 norms)—provide greater specification and regulation of the different fundamental norms they are connected to (e.g., refraining from the threat or use of force against the territorial integrity of a state, as per UN Charter, can be classified as a type-2 norm to the type-1 norm of sovereignty). Finally, the standardized procedures, or type-3 norms, refer to norms with low moral content, while filled with detailed, even technical, prescriptions for how governments, organizations or individuals should implement fundamental norms at the micro-level of the international society (e.g., host government consent to international interventions in the domestic sphere). According to Wiener’s (2016) classification scheme, the type-1 through type-3 norms are connected through a hierarchical structure she labels “normative grid”. 2 The findings of case studies of the contributors can be summarized as that most contestation occurs around the type-2 norm level. However, and despite the fact that the authors find Wiener’s normative grid to be a useful heuristic and methodological tool for exploring norm contestation, the chapters’ empirical findings also point to dynamics that do not easily fit into the grid’s conceptually neat packaging. Authors in the volume draw attention to the fact that contestation is rarely bounded at the type-2 level. Contestatory practices frequently spill over and become overt or covert contestations of their respective fundamental norms or standardized procedures, or of adjacent type-1, type-2 or type-3 norms. Barbé and Badell (this volume) and Eliasson and Garcia-Duran (this volume) describe how contestation over the organizing principles of human control of lethal automated weapons systems and of free trade, respectively, mostly stemmed from certain intra-EU actors’ fear over elements related to the standardized procedures. Van Berlo and Natorski (this volume) also put forward the thesis that norm contestation between populists and mainstream parties in the European Parliament can be located primarily at the level of the organizing principle (consensus-style decision making). However, they argue that the implicit, but ultimate, goal of the populist contestation is to challenge the fundamental norm of further, or sustained, European integration. In yet further cases collected in this volume, the contestation appears to straddle various levels of the normative grid at once because the actors disagree on the actual locus of contestation. Klossek (this volume), for example, finds asymmetry in how India and the EU perceive the concept of local ownership of peace processes. For the EU, local ownership is a type-3 norm linked to peacebuilding as an organizing principle. India, highly skeptical of the Western liberal peacebuilding approach, places local ownership alongside peacebuilding, and 2 In

the vertical dimension of the grid, Wiener (2016) also furthermore explores and theorizes on the norms’ moral reach (wide, medium, narrow) and degree of contestation (high, medium, low).

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the ensuing contestation where India is concerned is located between these two type2 norms. In her chapter, Iñiguez de Heredia (this volume) argues that the character of the intra-EU contestation over whether to grant financial assistance to support military capacity in third states makes it difficult to classify the contestation according to the normative grid. Her case is equally a debate about the shifting logic of the organizing principle (security-development nexus) as over the fundamental values of the EU’s foreign, security and defense policy: sustainable peace and sustainable development. Finally, in a set of cases examined in this book, contestation spills outside of the hierarchically organized normative grid. For example, Kissack (this volume) shows in his chapter on the death penalty that both supporters and opponents coincide on the abolition of the death penalty as an organizing principle. However, the contestation is about the question of which fundamental norm the death penalty relates to, whether the right to life—as defended by the EU—or sovereignty. Similarly, in the case of China’s contestation of Responsibility to Protect, as discussed by López i Vidal (this volume), tensions are clear between the Chinese preference to see R2P as an organizing principle linked to the fundamental norm sovereignty, while EU links it to the fundamental norm of civilian protection or immunity. The cumulative findings of the volume show that in any given norm contestation scenario, there are debates over the boundaries of norms (where a type-1 norm ends and a type-2 begins), their significance (internal hierarchy) and their relative placement (within the normative grid and/or straddling various grids). Norm contestation, in our understanding as cross-cutting different levels of the normative grid or spilling over between various normative grids, is in part a natural effect of the embeddedness of norms in a co-constituted structure of “meanings-in-use” (Milliken, 1999, p. 231). Norms, even if seemingly fixed and stable in their meaning, are dependent on the interpretation of meanings given to them by the agent and their spatial-temporal context (Krook & True, 2012; Dietelhoff & Zimmermann, 2013). Since inter-subjective meanings-in-use and understanding of norms are naturally varied in a culturally diverse and fluid context, such as the current international system, contestation cannot be expected to be symmetric nor neatly and easily fitted into one of the boxes in the normative grid. This disagreement of which normative grid is referred to, or what norm-type level is being contested, has major implications for norms and their legitimacy, not only for the contesters’ mismatched expectations but also for norm performative practices in and beyond the political community, as we will come back to below.

Modes of Contestation of the EU’s Foreign Policy Norms and Values Wiener (2014, 2017) distinguishes between four different modes of contestation: arbitration, deliberation, justification and contention. Arbitration is the legal mode

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of contestation where contestation centers around raising issues related to courtrelated processes and to formal legal codes. Deliberation refers to a political mode of contestation, involving “addressing rules and regulations with regard to transnational regimes according to semi-formal soft institutional codes” (ibid. p.2). Justification is the moral mode of contestation which involves questioning principles of justice. Finally, contention is the societal practice of contestation which allows actors to critically revisit societal rules, regulations or procedures by engaging with multiple codes in non-formal environments. We find these categorizations heuristically useful as they represent the four main modes of argumentation in International Relations (legal, political, moral and social contestation). However, Wiener’s (2014, 2017) original definitions tie these categories to different institutionalized scenarios, such as courts (arbitration), international organizations and regimes (deliberation), social protest (contention) and epistemic communities (justification). We have here opted to de-couple the mode of contestation from a specific institutionalized setting, as our empirical data support the idea that the modes, in different combinations, might be simultaneously present in one and the same global, glocal and/or intra-EU contestation scenario. It is our understanding that whether the contestation takes place in a courtroom, inside the meeting rooms of an international organization or as expressed by social protest in the street, the argumentation from the participants may run the gamut of legal to political, moral and social without much distinction. Another reason for our decoupling of mode and institutionalized settings is that the contestatory practices scrutinized in this edited volume may spread across multiple competent forums, depending on the norm type or complexity, as well as the temporal duration of norm contestation. A norm contestation may, in other words, begin in several forums at once (e.g., regime or epistemic community) and/or spread to other relevant contestation theaters over time as pertinent to norm contents (e.g., legal or social; see Kissack; Collantes-Celador and Costa; Barbé and Badell, this volume). European Union contested: foreign policy in a new global context will rather focus on the intensity of the mode(s) of contestation (arbitration, deliberation, contention and justification) to flesh out the specific scope conditions for when the modes of contestation may have a bearing on the legitimacy of the norms and fundamental values that guide EU foreign policy. The chapters in this volume explore the intensity of contestation as a continuum ranging from soft to hard contestation. Our findings point to that contestation, whether through deliberation, contention or justification, can be considered in terms of intensity as ranging between ‘soft,’ such as discourses and practices which question the interpretations of different normative meanings-inuse (cf. Zürn, Binder, & Ecker-Ehrhardt, 2012; Wiener, 2014), to harder forms of contestation related to norm compliance (norm antipreneurship or veto-players, cf. Bloomfield & Scott, 2017). The authors in this book see different patterns in the global, glocal and intra-EU mode of contestation. On the global level, a recurring theme among the chapters is that the mode of norm contestation spans the four different modalities (arbitration, deliberation, justification and contention). Legal and political tactics of international actors, as well as nationally derived moral and societal arguments, frequently flow together in ‘thick’ norm contestation contexts, as shown by Kissack (this volume)

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in his chapter on the death penalty. He also finds that international debates over the death penalty tend toward the ‘hard’ end of contestation. Some of the findings also point to the fact that modes can operate to a large extent sequentially and across forums, which was the case of the debates on the death penalty as well as China and India’s respective contestations (Kissack; López i Vidal; Klossek, this volume). In the case of China’s view on R2P, the contestation became increasingly harder over time. In contrast, in the case of India’s contestation on the norms of peacebuilding and local ownership, the process has grown softer over time. Klossek (this volume) argues that in essence, the Indian contestation of one of the norms defended by EU today amounts to a ‘silent contestation.’ In their chapter, Petri and Biedenkopf (this volume) find that the predominant mode of contestation in the context of the 2015 Paris climate negotiations was deliberation, but that positions of developing countries during the negotiation rounds in different sub-areas ranged between soft and hard. At the glocal level, the chapters in this volume find that the mode of norm contestation most frequently employed was deliberation and justification. Vlaskamp (this volume) shows that the hard(er) contestation by external actors on the global scale through the justificatory mode of contestation can contribute to soft contestation on the EU level. Domestic EU actors may use external processes as a motivation to push for internal changes. Collantes-Celador and Costa (this volume) find that both deliberative and justificatory modes of contestation have been present in the case of the ICC. In their chapter, they also point out that the location appears to be a determining factor for whether contestation takes on a soft or hard format. They show that France and the UK often do not voice very strong opposition to the EU’s common positions internally. However, when they are wearing their P5-hat at the UN, their contestation hardens as they want to allocate much more power to the UNSC to decide certain determined issues. Barbé and Badell (this volume) argue that the contestation over human control of autonomous weapons was both deliberative and justificatory. The emergent norms faced stages of harder contestation, in the forms of threat of deadlock, but most of the contestation throughout the process, they find, falls toward the softer end of the spectrum. At the EU level, norm contestation spans the three modes of contention, deliberation and justification. Eliasson and Garcia-Duran (this volume), for example, discuss how some civil society organizations opted for soft deliberations and participated in advisory groups to the European Commission, while at the same time using harder forms of contention by campaigning against TTIP to create public pressure. The same civil society organizations also used justificatory modes of contestation in its harder forms, as they argued that the provisions of TTIP were a threat to organizing principles of food quality in the EU. Iñiguez-Heredia (this volume) highlights how the contestation in terms of the Capacity Building for Security and Development initiative, through which the EU may grant non-lethal military support to third countries, has come in the form of deliberation and contention. Contesting actors have used deliberative practices as well as social arguments to resist the transformation of the security-development nexus and laxer regulations surrounding the use of EU development aid. She notes that soft contestation at the level of the organizing principle has simultaneously implied a hard contestation on the fundamental norms of

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promoting sustainable development, peace and the rule of law. Finally, van Berlo and Natorski (this volume) identify justification and contention as the main modes of contestation by populist parties in the European Parliament. They point out that European populist parties employed a mix of softer and harder forms of contestation whether through vociferous rhetoric in parliamentary debates on the crises in Ukraine and Syria or by not participating in joint motions on these conflicts. We posit here that the intensity of the mode of contestation in our case studies, rather than the mode per se, is important for determining the effect of contestation on norm legitimacy. We have seen that the soft/hard distinction allows us to highlight important differences in contestation. First, contestation toward the softer end of the spectrum is indicative of the everyday reality of multiple dissonant meanings-in-use in culturally diverse and fluid normative contexts. The contestation aims not to find a single, inter-subjectively held ‘gold standard’ of appropriateness equally applicable to all, but more to regulate the varied meanings-in-use. The very nature of norms is that their boundaries are flexible and ill-defined, and many different meanings-in-use can usually coexist over time without friction. Contestation toward the softer end of the spectrum comes about when an actor objects to the boundaries of a norm being pushed in a way that is perceived to be in contravention of the broad spirit of the norm. Soft contestation is thus more a meanings-in-use contestation, strictly speaking, than a norm contestation. Several chapters in this book find that soft contestation occurs in cases where norms do not impose debilitating restrictions on norm-takers, and hence most contesters feel no urgency in overturning or modifying the fundamental norm or its attendant type-2 or type-3 norms. Moreover, our findings in terms of soft contestation also suggest that contesters usually stay within the limits set by the specific context, in terms of power asymmetries (see below), institutional designs and shared fundamental values. Instead of acting like a bull at the gate, most soft norm contesters take these factors into account and opt therefore for slow, but continuous, contestation to avoid overly intensive confrontations. If we turn our attention to contestation toward the harder end of the spectrum, we argue that harder forms of contestation are indicative of when meanings-in-use are not easily reconcilable as they might become logical opposites and practices can come to be interpreted as in breach of the spirit of the norm. Harder contestation thus frequently leads to alternative norms being proposed, deliberative forums shifted to reframe the debate, or the emergence of discourses and practices to prevent the effective implementation of the norm. Harder forms of contestation are thus much more properly termed norm contestation. The authors in the current volume which find harder norm contestation in their case studies note that such contestation arises in cases where the norm is perceived by the contesting actor to be restrictive (e.g., climate change, ICC, consensus-style decision making) or too intrusive into a domestic context (e.g., regulation of death penalty or R2P), or creates fear that the implications of a current norm could lead to loss of control of related type-1, type-2 or type-3 norms (e.g., free trade or security/development). Hard contestation also appears more likely to drive shifts in contestation scenarios, as the contester tries to find a forum in which contestation might win most followers or where power constellations are more favorable to the contester’s norm interpretation.

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Outcomes of the EU’s Contested Foreign Policy Norms and Values The contributors of the present volume reflect on a wide-ranging set of topics related to norm contestation of EU foreign policy. While all chapters in this volume describe how the EU’s foreign policy is challenged on multiple levels in terms of its normative content, we do not find evidence to support the claim that this equates to a significant or short-term decline in the legitimacy of the EU foreign policy norms, as we will elaborate on continuation. First, power asymmetry is palpable and present in virtually all the ten case studies presented in this volume. Norm contestation in the literature is frequently depicted as a politically and normatively desirable act of direct engagement between culturally diverse stakeholders to determine the validity of norm. Wiener (2014, p. 46), for example, holds that contestation is a profoundly cosmopolitan, democratic and plural practice as it entails “the freedom to engage with others in dialogue about the norms, principles and rules of governance within a political order.” Contestation understood in this way reflects the central assumption of a broader scholarship that, in principle, the norms, rules and principles inherent to governance ought to be contestable at any time by those governed by them (Dahl, 1971; Habermas, 1991; Tully, 2002). However, this presumes equality of voice opportunity and access to norm contestation forums which most of our contributors do not encounter in their individual case studies. Rather, the cases in European Union contested: foreign policy in a global context describe how actors who are structurally more powerful in the system, like the EU, have the ability to discursively produce the ‘standards’ of a norm or the luxury to simply ignore the dissonant perspectives that inform norm contestation practices from smaller actors. An insight shared across postcolonial, critical, feminist and/or post-structural literature is that the structurally powerful possess a certain ability to determine the normativity that ultimately enhances or reduces the legitimacy of a norm (e.g., Cox, 1999; Epstein, 2012; Foucault, 1994). Examples of this are the EU’s capacity to ‘lead from behind’ in areas where it has contributed to setting the parameters for debates, such as in the contexts of the death penalty, climate change or lethal autonomous weapons (Kissack; Petri and Biedenkopf; Barbé and Badell, this volume). The EU’s structural power is naturally enhanced when there is intra-EU political will to close ranks in defense of the norms and fundamental values which underpin the EU’s foreign policy. For example, in the case of the contestation of transparency in the USA, in Vlaskamp’s (this volume) chapter, member states stepped up to the plate and took a more prominent role to protect this norm. Collantes-Celador and Costa (this volume) argue that the EU became firmer in its defense of the ICC when fundamental norms were at stake, while it was more divided when organizing principles or standardized procedures were. Examples from cases of intra-EU contestation between different EU institutions and European activists or political parties also reproduce power asymmetries. Eliasson and Garcia-Duran (this volume) found that the European Commission was able to reduce opposition to the TTIP by reframing the rhetoric related to free trade. In the case of the mainstream political parties

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in the European Parliament, they have been able to neutralize contesting voices of populists without ceding much normative terrain (van Berlo and Natorski, this volume). Populist contestations of EU foreign and security policy therefore appear to potentially have a greater media impact than actual political (or moral) influence in the European Parliament. As a consequence of the EU’s—or certain EU actors’— structurally more influential position, only a few chapters in the volume actually detect significant challenges against the legitimacy of the EU’s foreign norms and fundamental values whether at the global, glocal or intra-EU levels. However, some contributors to the volume do note that there is an inherent medium- to longer-term risk of the legitimacy of the EU’s foreign policy norms being undermined if it takes it structural influence for granted. This is especially true on occasions when norm contestation is voiced by other structurally important actors. The EU’s failure to register China’s reservations about Responsibility to Protect (López i Vidal, this volume), India’s differentiated meanings-in-use on peacebuilding and local ownership (Klossek, this volume) or the USA’s common front between political leaders and economic actors on transparency (Vlaskamp, this volume), raises serious questions of the legitimacy and the global reach of such EU foreign policy norms over time. Critical, feminist and postcolonial theories also alert us to the fact that influential actors are in a position to preserve their normative legitimacy through co-opting weaker actors (‘corporatism’) (Cox, 1999; Foucault, 1994). The EU can opt for either accommodation of the concerns of contesters to preserve a norm or entrench itself in the status quo (Barbé et al., 2016; Ikenberry, 2011). In a number of chapters in this volume, the EU has chosen the former approach, which strengthened the EU’s foreign policy norm’s legitimacy. For example, Petri and Biedenkopf (this volume) find that the EU’s compromise-oriented strategy “to build further common ground on reaching a new climate consensus on the road to the Paris climate deal […] has positively affected the EU’s perceived legitimacy in the global effort to combat climate change.” In the case of the TTIP, the Commission decided to accommodate the rhetoric by civil society actors. This has caused Eliasson and Garcia-Duran (this volume) to conclude that the result of the norm contestation was “more internal legitimacy of EU trade policy (seen as closer to citizens), without hampering the ability to pursue the norm of open trade system through the principle of bilateral agreements.” In other words, in some cases contestation even strengthened the legitimacy of the norm, as the EU was able to address some of the concerns of the contesters. In sum, the norms that guide the EU’s foreign policy seem to be more resilient to external and internal norm contestations than is sometimes expected from alarmist reports on the dire straits of European integration in the age of an eroding Western and intra-EU liberal order. However, we are aware of the fact that norm contestation processes and their link to legitimacy ideally should be analyzed in longer time frames. We grant that most of our case studies are examples of norm contestation which have taken place in the past five to ten years. Even in the cases of longerstanding contestation reported on in the volume such as, for example, the abolition of capital punishment or the debates surrounding R2P (Kissack; López i Vidal, this

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volume), we also observe that norm contestation processes to effect changed standards of appropriateness and related practices usually are inconclusive and take time. More research analyzing norm contestation is therefore needed. Acknowledgements Elisabeth Johansson-Nogués wishes to acknowledge VISIONS (Visions and practices of geopolitics in the European Union and its neighborhood) funded by the National R + D Plan of the Spanish Ministry of Science, Innovation and Universities (CSO2017-82622-P). Martijn C. Vlaskamp thanks the Beatriu de Pinós postdoctoral program of the Government of Catalonia’s Secretariat for Universities and Research (Ministry of Economy and Knowledge) for funding (Grant number: 2017-BP-152). Esther Barbé is grateful to the Catalan Agency for Management of University and Research Grants (AGAUR) for funds making this research possible (2017 SGR 693).

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Elisabeth Johansson-Nogués is Associate Professor and Coordinator of the Research Master’s in International Studies at the Institut Barcelona d’Estudis Internacionals (IBEI) in Spain. She is a member of the Observatory of European Foreign Policy, Barcelona, Spain. Her research interests include the EU’s foreign, security and defence policy, the EU’s relations with Eastern Europe and the Arab World, international security, multilateralism and regionalism. Her publications have appeared in Security Dialogue, Cooperation and Conflict, International Affairs, Mediterranean Politics, and elsewhere. Martijn C. Vlaskamp is Beatriu de Pinós Fellow at the Institut Barcelona d’Estudis Internacionals (IBEI). Prior to that, he was a Marie Skłodowska-Curie Global Fellow at Yale University and IBEI. Martijn is a member of the Observatory of European Foreign Policy in Barcelona. His research interests include the prevention and termination of armed conflicts, with a special emphasis on the role of natural resources. Martijn’s work has been published in Cooperation and Conflict, West European Politics, and other peer-reviewed journals. Esther Barbé is Professor of International Relations at the Universitat Autónoma de Barcelona (UAB) and Senior Research Associate at the Institut Barcelona d’Estudis Internacionals (IBEI). Since 2001, she has directed the Observatory of European Foreign Policy. Her research focuses on Mediterranean security, Spanish foreign policy, EU foreign policy, emerging powers and multilateralism.

Chapter 2

The EU and Controlling the Use of the Death Penalty: An Organising Principle for Which Fundamental Norm? Robert Kissack

This chapter discusses the EU’s role in the global campaign to control the use of the death penalty over the last two decades. It draws on the theoretical insight of Wiener’s Theory of Contestation to understand the evolving positions of states in favour of ending the use of the death penalty (abolitionists), which the European Union has actively supported, and those in favour of maintaining it (retentionists). The timeframe for the analysis is 2007 to 2018, spanning the period the use of the death penalty has been discussed, and resolutions drafted in the United Nations General Assembly (UNGA) Third Committee (Social, Humanitarian and Cultural Issues) in the place of the UNGA Sixth Committee (Legal), where it had hitherto been discussed. The switch to the Third Committee is significant because it implies treating it as a human rights issue and as a consequence greatly enhances the scope of scrutiny into domestic practices of member state by the UN. Retentionist states that sought to protect their national sovereignty from (perceived) Western interference in their domestic legal systems through the vehicle of the UN galvanised opposition to controlling the use of the death penalty by arguing that international law permitted its use provided certain internationally agreed standards of due process were respected. The chapter asks the following questions: which modes of contestation were used by the EU and against the EU in debates regarding controlling the use of the death penalty, and how successful were they? To answer these questions, a qualitative approach was taken analysing the discourse and argumentation of diplomats from primary sources in the form of the records of proceedings, official documents and reports of the UNGA of eight resolutions regarding a moratorium on the use of the death penalty (2007, 2008, 2010, 2012, 2014, 2016 and 2018). The contents of three High Level Panels debating the use of the death penalty in UN Human Rights Council (HRC) (2013, 2014 and 2017) were also used, and additional information from the office of the United Nations Commissioner for Human Rights (UNCHR). The chapter R. Kissack (B) Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_2

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puts forward the claim that both supporters and opponents of the resolutions accepted that controlling the use of the death penalty is what Wiener refers to as an organising principle (or type-2 norm) for a higher-order normative objective. Contestation took place over which fundamental norm it belongs to, either the international human rights regime and the right to life or the non-intervention in the domestic affairs of sovereign states. As will be shown, there are very credible reasons to associate it with both but that reconciling them with each other is difficult. The chapter proceeds in three stages. The first part elaborates on the EU’s promotion of the death penalty in the UN system and the location of the moratorium on the use of the death penalty at the nexus of two fundamental norms, drawing on UN archival records to substantiate its claims. The second part applies an analysis of contestation inspired by Wiener (2014) to the case and finding evidence of all four modes (arbitration, contention, justification and deliberation) across the UNGA Third Committee and the HRC. The third section discusses the outcome of contestation, advancing the argument that although abolitionists and retentionists draw on competing for fundamental norms to defend their respective positions, over the period from 2007 to 2018 a process of change is observed, with the control of the use of the death penalty gaining acceptance as principally an organising principle of the fundamental human rights norm of the right to life. Evidence to support this claim is provided by a detailed textual analysis of official documentation. The evidence points to hard contestation having taken place and a case can be made in favour of the EU strengthening the legitimacy of the norm. As is discussed in more detail, one issue that remains unresolved is how to explain the inclusion in 2016 and 2018 of amendments that support the retentionist position.

The European Union and the Abolition of the Death Penalty To what extent should the international community of states set conditions on when, how and for what crimes the death penalty may be used? Does the use of the death penalty violate the fundamental human right of the right to life? The normative positions on controlling the application of capital punishment range from abolition to retention, with a spectrum of opinions on the middle including those wishing to restrict the use of the death penalty to a very few possible cases (for example treason) and those having effectively stopped executions but do not want to, or are not ready to, take the formal legal step of removing the death penalty from the statute. The intermediary positions are significant because the historical trend in many states is that parliaments take the decision to abolish the death penalty while a majority of citizens still support its use (McGann & Sandholtz, 2012, p. 276). This chapter moves beyond moral arguments and frames the discussions as contestation over the appropriateness of seeking to control the use of the death penalty among sovereign states. Specifically, it asks to what extent is controlling the use of the death penalty is an organising principle of the right to life or for the non-intervention in the domestic affairs of sovereign states, both of which are fundamental norms

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of the international society of states. Three positions on this issue are identifiable. The first is the abolitionist assertion that international human rights law is growing in significance and should take precedent over a traditional, static interpretation of non-intervention. The second is the retentionist position that accepts human rights law, but says that such law should be created by consensus and there is currently no consensus on international control, and in its absence, the international community should not intervene in domestic practice. The third position recognises controlling the use of the death penalty as a legitimate organising principle for both norms and must weigh up when and where each one is relevant. The right to life is stated in Article 3 of the Universal Declaration of Human Rights, which despite being a non-binding UNGA resolution is a foundational text of the international human rights regime. In a world where states are thought of as the most important actors, the ‘idea of human rights puts individuals rather than states and their interests at the centre of organising global cooperation’, and for this reason, ‘human rights norms and institutions [have] the potential of fundamentally transforming the international system’ (Schmitz & Sikkink, 2002, p. 526). Repeatedly, in both the HRC and the UNGA Third Committee, the argument is made that capital punishment is a violation of the most basic human right of all—the right to life. While there is no dispute from retention-seeking states that the right to life exists, they contest whether the use of the death penalty contravenes it. The counterargument is the death penalty is only applied in the very worst crimes, such as murder, where the right to life of the victim of the crime has already been violated. Such a position is reinforced by the argument that a state is responsible for the safety of its citizens, and this is achieved through deterring violent crimes. Retentionist states also accept that there are limits to its use (such as for minors, pregnant women) as set out in the International Covenant on Civil and Political Rights (ICCPR) Article 6 and argue that provided safeguards are adhered to the death penalty is legal. Abolitionist states expound the view that the right to life is a universal norm that cannot be violated under any circumstances and that in the interim controls on its use should be transparently implemented and progressively tightened. Contestation about furthering the right to life hinges on the different views about the universality of the right within a national population (are perpetrators of heinous crimes excluded?), whether a hierarchy of rights-holders exists (should the violation of a victim’s right to life be addressed first?) and to what extent, there is consensus about limiting the application of the death penalty (regarding age, mental health and the nature of the crime committed). Contestation about controlling the use of the death penalty in national law and practice is about the organising principle the fundamental right to life. Article 2(7) of the United Nations Charter is frequently evoked to reject unwanted interference into the national affairs of sovereign states. It states that ‘[n]othing contained in the present Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state’. Nonintervention in domestic affairs is therefore a fundamental norm of the United Nations and is accordingly granted to its members. The connection between sovereignty and non-intervention can be traced back to the nineteenth century, when ‘theorists of this period were able to recognise sovereignty as an attribute of all states, and the

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exchange of recognition of sovereignty as a basic rule of coexistence within the states system. They were also able to work out such corollary principles as the rule of non-intervention’ (Bull, 1977/2002, p. 35). Unlike in the HRC, where the human rights approach to considering the death penalty is obvious, in the UNGA, the choice of which Committee the death penalty is discussed is a point of contention. Prior to 2007, the use of the death penalty was treated as a legal issue and accordingly discussed in the Sixth Committee, where national practices were reviewed but there was a unanimous acceptance that it was not prohibited in international law. In 1994, the Italian government presented a resolution to the Third Committee of the UN General Assembly calling for the abolition of the death penalty. Although it attracted 49 co-sponsoring states, the resolution failed to gain a majority and some EU member states regarded it as too premature an effort (neither the UK nor Netherlands supported it).1 In 1997, the Italian government succeeded in passing a resolution on the same issue in the UN Commission on Human Rights (UNCHR), in large part due to Western European and Other Group (WEOG), Eastern Europe and Latin American states occupying 26 of the 53 seats. In 1998, Italy steered another resolution through the Committee; in 1999, the Finnish Presidency presented one in the name of EU member states (Bantekas & Hodgkinson, 2000, p. 23; Smith, 2006, p. 160), and further, resolutions were adopted in subsequent years. In 2005, at the 60th session of the UN General Assembly, the decision was taken to replace the UNCHR with the HRC. A number of reforms were made, related to the distribution of seats between regions (allocating more to Asian and African states), the selection of states to serve on the Council and an upgrade in its status. Despite achieving higher levels of voting cohesion between EU member states in the HRC than in the UNCHR, the EU repeated found itself in the minority because of the rebalancing of region constituencies (Gowan & Brantner, 2008; Kissack, 2010, 2012; Macaj, 2012; Smith, 2010). Faced with difficulties in the HRC, EU member states made a surprising strategic decision. Beginning in 2006, the EU started to galvanise consensus among states to table a resolution on the death penalty in the UNGA Third Committee. It was an unlikely place to seek support for the issue, but nevertheless, Finland presented to the UNGA a statement with 87 co-signatories tabling the issue on the agenda. The following year, Portugal (holding the EU Presidency) was instrumental in the drafting of a resolution calling for a moratorium on the use of the death penalty that was passed by 104 votes to 57 with 29 abstentions in the UNGA Third Committee. The shift from abolition to a moratorium was a very significant concession that nearly broke EU unity but in the intervening years, the HRC in Geneva and the UN Secretary General have periodically reviewed the use of the death penalty and noted a trend towards its removal from the legal statute of an increasing number of states in Africa and a reduction of its use in states across Asia. 1 The

UK position was that although the death penalty was not handed down any longer, it did not regard itself as an abolitionist state because capital punishment remained on the statute for certain military offences. For the NL, there was ‘the belief that the draft resolution and general strategy would only serve to harden the position of retentionist countries’ (Bantekas & Hodgkinson, 2000, p. 28).

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Today, the promotion of human rights figures prominently in EU foreign policy. The abolition of the death penalty is therefore a major objective of the EU and it claims to be ‘the leading institutional actor in the fight against the death penalty worldwide’ (EEAS, 2013: 2). Nevertheless, seven of the ten most populous countries in the world retain capital punishment2 and in the biennial UNGA votes on this issue, the number of states supporting a moratorium has plateaued at around 120 or two-thirds of the UN membership. What position do the 70+ states in this sizable minority take on the use of the death penalty, and how do they justify its use? While the EU was never the only actor advocating stricter control on the use of the death penalty, and it is important to note that the 2007 resolution was co-authored by nine other states (two from each UN region), opponents frequently lambasted the EU’s role as an example of neo-colonialism. Yet as this chapter demonstrates, their resistance to controlling the application of capital punishment was not a rejection of human rights per se, but rather a rejection of the framing of the death penalty as exclusively a human rights issue. Instead, the repeated arguments of around 30 vocal opponents centre on the legality of the death penalty in international law, their abidance to internationally agreed norms controlling its application and the principle of non-intervention in the domestic affairs of sovereign states. Given that the moratorium on the use of the death penalty is an organising principle that intersects two fundamental norms which are both ‘notable for their wide moral and ethical reach’ and has a ‘quasi-constitutional quality in their global reach’ (Wiener, 2017, pp. 117–119), this case is significant more widely as an example of what happens when equally credible claims clash. In fact, something quite different has taken place. While positions in the UNGA remained entrenched, discussions about capital punishment in the HRC began to increase the number of conditions placed on its use. Specifically, High Level Panel debates (in 2014, 2015 and 2017) brought campaigners, NGO experts and UN staff (including the findings of Special Rapporteurs for extrajudicial killings and torture and other forms of inhumane treatment) face to face with abolitionist and retentionist states. Often parliamentarians from states that had recently legislated against capital punishment also spoke, bringing micro-level actors (those responsible for implementing norms) in contract with government diplomats arguing about sovereignty and the right to life. Within the scope of this analysis of the UN system, these debates come closest to the ideal of normative contestation because they are open to widest range of actors involved in the issue of capital punishment. Within the accepted political space of the HRC, where the death penalty is exclusively treated as a human rights issue, contestation focuses on whether executions violate the right to life, may be considered inhumane, or amount to extrajudicial killing (when due process is ignored or legal protections are violated), as some abolitionists assert. Retentionist states’ contestation must be located within the fundamental normative framework of the international human rights regime and not draw on counter claims centred on state sovereignty and non-intervention. The visibility of the EU arguing in favour of increased control of the use of the death penalty through it being re-framed as a human rights issue has reduced over 2 Only

Brazil (5th), Russia (9th) and Mexico (10th) do not use capital punishment.

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time from its initially high level. There is a strategic benefit to this, since the EU’s proximity to the resolution fuelled resentment from African and Asian states keen to frame the issue as European neo-colonialism (Kissack, 2010; UN, 2007b, p. 23). In the biennial revisions of the resolution starting in 2010, various Latin American states have led drafting efforts, although this did not stop retentionist states occasionally milking the rhetoric of imperialism. This was also during the period of Catherine Ashton as High Representative for the CFSP, who chose to make the promotion of human rights ‘the silver thread running through European foreign policy’ (EU, 2011). The abolition of the death penalty belonged in this foreign policy narrative, and in 2013, the European Council issued EU Guidelines on the Death Penalty to improve the effectiveness of collective European action through diplomatic channels, demarches, conditionality and funding initiatives to raise awareness in third countries (EEAS, 2013). For the EU during this time, the biennial votes in the UNGA were merely one of many policies in operation to promote this end, with emphasis too on bilateral communications through demarches and other channels to encourage abolitionist trends and to urge against retentionist backsliding. The arrival of the Juncker Commission in 2014 and the replacement of Catherine Ashton by Federica Mogherini saw a reshaping of European foreign policy, articulated in the 2016 European Union Global Strategy (EU, 2016). EU’s external action shifted to become focused on promoting the security of European citizens, through stabilising the Eastern and Southern borders, tackling terrorism, addressing transnational migratory movements and increasing the resilience of European societies (Wagner & Anholt, 2016). While the EU is still using the 2013 guidelines to reduce the use of the death penalty globally, DG International Cooperation and Development has taken the responsibility for them (EU n.d.). The EEAS still takes a strong abolitionist position on the annual World Day Against The Death Penalty (10 October) and works with the Council of Europe to enforce the Second Protocol of the European Declaration on Human Rights that prohibits the use of the death penalty in Europe as a whole.3 The EU’s promotional diplomacy is not the only thing to have changed since the first UNGA resolution in 2007. States that were once ardent supporters of abolition and members of the original ten co-authoring states, such as the Philippines and Brazil, have elected Presidents intent on re-introducing capital punishment and speak of its virtues. These are but two examples of a global trend in the rise of populist and nationalist movements that typically articulate tougher sentencing and threaten to undermine national executive support for established foreign policy positions

3 Manners’

(2002) article on Normative Power Europe made the claim that the EU has taken the initiative from the Council of Europe on the abolition of the death penalty through internationalising the issue when issuing demarches in support of death-row detainees in the USA. There was a longer history behind this, with Germany taking the USA to the ICJ in March 1999 to appeal against the execution of a German national in the state of Arizona, on the basis of a violation of the 1963 Vienna Convention on Consular Relations. See Quigley (2018, pp. 108–110).

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built using considerable amounts of diplomatic capital.4 Nevertheless, the 60–70 states that do not vote in favour of the UNGA resolutions can be divided into four groups. Firstly, there is a sizable minority of states that abstain rather than vote for or against the resolution. The usual reasons explaining abstentions hold in this case as others: no clear national position, insufficient information from the national capital for the ambassador to vote or a conflict of interests between national and international constituencies. There are also reasons that are specific to the death penalty, such as ongoing domestic reviews into the use of the death penalty or a genuine confliction between the international human rights regime and the norm of non-intervention into the domestic affairs of sovereign states. Secondly, there is a small group of OECD states that have not yet committed to abolish the death penalty—the USA, Japan and South Korea (although the latter is a de facto abolitionist according to Amnesty International as it has not executed a prisoner since 1997). These states generally keep a low profile among the retentionist group, first and foremost for wanting to avoid being associating with the majority of them.5 Thirdly, there are the staunchly retentionist states that continue to use the death penalty, including China, Egypt, India, Iran, Iraq, Malaysia, North Korea, Pakistan, Singapore, Syria, Saudi Arabia, Sudan, Zimbabwe and Yemen, as well as all of the Caribbean states except Haiti. In total, there are around 30 countries which repeatedly protest that the UN has no authority to control the use of the death penalty by its members. The retentionist group is not homogeneous, however, and the remaining states constitute the fourth group that do not execute but as a matter of principle reject control because it is seen as a violation of national sovereignty (such as Botswana, Papua New Guinea and Venezuela). These states hold a particularly strong position in debates—they cannot be accused of defending the use of the death penalty out of national self-interest, and often use the rhetorical devise of reminding Europeans that the last execution in their territory was during the colonial era, or that the death penalty remains in national law because it existed at the time of independence (Barbados noting that the ‘inclusion of the death penalty in its penal code has been inherited from one of the main cosponsors of the draft’ (UN, 2008b, p. 16). In summary, the majority of states opposed to controlling the use of the death penalty are in Asia and the Caribbean, as well as a number from Africa and the very few OECD members previously mentioned. As such, within the UN, the WEOG group, the Eastern Europe Group, and Central and South American states from the Latin American and Caribbean Group (GRULAC) are near unanimous in treating the death penalty as a right to life issue, while members of the Africa and Asia regions are divided.

4 In 2016, the Philippines abstained in the UNGA vote on moratorium on the use of the death penalty

resolution after previously voting in favour and defending the resolution among the most hostile regional group—Asia. 5 In 2008, 58 retentionist states co-signed a letter to the UN Secretary General ‘to place on record that they are in persistent objection to any attempt to impose a moratorium on the use of the death penalty’, Japan was among the list of states (UN 2008d). Although subsequent letters have been written in 2009, 2011, 2013, 2015 and 2017, Japan has never been included again.

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A Decade-Long Transition from Arbitration to Justification Different actors involved in the contestation of norms have different opportunities to make their positions known. While Wiener is concerned with discrepancies between stakeholders at local levels and elites at the international level, this research focuses primarily on diplomatic encounters at the UN and the modes of contestation they employ. This section is based on detailed textual analysis of UN documents in the UNGA and HRC, pertinent to controlling the use of the death penalty. The overall finding is that a slowly increasing majority of states accept controlling the use of the death penalty as an organising principle of the international human rights regime, while a minority of states situate it as an organising principle of the norm of non-intervention in the domestic affairs of sovereign states. Thus, abolitionists and retentionists are not at opposing ends of a uni-directional, linear progression towards human rights promotion, first-generation norm diffusion literature such as Finnemore and Sikkink (1998) proposed. Instead, here we find both sides drawing on alternative fundamental norms to ground their contestation. This raises an important question for the theory of contestation: can an organising principle have a constitutive role operationalising two different fundamental norms? The diplomats’ interventions studied here represent only one actor among the many involved in contesting capital punishment, which also include national judiciaries, police forces, parliamentarians, civil society groups and citizens involved in crime as perpetrators or victims. Some representatives of these voices were heard in the HRC High Level Panels but given the normative bias towards locating the control of the death penalty in the international human rights regime, the voices spoke from the perspective of the sanctity of the right to life. In the UNGA and HRC, the majority of actors involved are national diplomats and legal experts representing member states in the UN system. The modes of contestation used are specific to the social institutions in which they meet and the practices they engage in that constitute the act of diplomacy in the UN. As the editors set out in the introduction (Johansson-Nogués, Vlaskamp and Barbé, present volume), there are four possible modes of contestation: arbitration, deliberation, contention and justification, and all four are used in death penalty debates in the HRC and UNGA. As will be shown, different modes were employed at different times, varying according to the forum, and across time. While arbitration and deliberation were initially found, contention and justification were employed later. Arbitration as legal contestation was the initial response by retentionist states against efforts to control the use of the death penalty. Diplomats protested against including the death penalty on the agenda of the UNGA Third Committee in the place of the Sixth Committee, citing two powerful legal arguments. Firstly, the use of the death penalty cannot violate human rights because it is permitted in international law in the UDHR and the ICCPR. Secondly, the use of the death penalty is not a human rights issue, but a criminal justice issue. While both these arguments reinforce the situation ex anti that the death penalty was not a human rights issue, the two arguments are inconsistent with each other because second is an outright rejection

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of the link between the death penalty and human rights, while the first acknowledges the connection but says that it is not important. Examples of the first argument are numerous. In 2007, Singapore stated ‘that penalty could not be a violation of human rights, as it was not forbidden under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights’ (UN, 2007a, p. 10), and it repeated the argument a year later in the plenary at the time of the final vote to reminded delegates again that Article 6 of the ICCPR permitted its use under certain circumstances. The rules that permit capital punishment were defended again in 2010 by Jamaica, which ‘refuted the implication that the death penalty was, per se, contrary to international law’ (UN, 2010, p. 14), as part of the general point that the Third Committee should not be discussing this issue because no violation occurs. Turning to the second argument, in 2007, the representative of Sudan said he ‘could never have imagined that the [Third] Committee would consider a draft resolution which was counter to the Charter and not directly related to human rights’ (UN, 2007a, p. 17). Libya said that there ‘was no link between that [death] penalty and human rights’ (UN, 2007a, p. 18). The same arguments are repeated in 2008, with the Iranian delegate stating the ‘abolition of the death penalty was not a matter of human rights’ (UN, 2008b, p. 13), among many voices expressing similar positions. Botswana, for example, was clear ‘the death penalty was a criminal justice matter’ (UN, 2008b, p. 20). This line of argument remains popular with retentionist states; for example, in 2012, the Sudanese representative stated ‘those that have co-sponsored the text have not succeeded in making it a human rights issue’ (UN, 2012a, p. 6), and in 2014, the Botswanan representative states ‘the draft resolution makes an unjustified linkage between the death penalty and human rights. The death penalty was a criminal justice issue, not a matter of human rights’ (UN 2014a, p. 10). In parallel to arbitration, retentionist states also employed the mode of deliberation by contesting the political nature of the abolitionist effort. Their argument was that placing the death penalty on the agenda of the Third Committee when ‘there was no international consensus on the matter of the death penalty’ (UN, 2008a, p. 19) constituted the politicization of the issue. This refers to forcing a minority of states to defend their national positions publicly under the supposition that they are ‘deviant’ with the majority’s ‘correct’ position, and is regarded as using the UN to promote a particular interest, rather than the common interest. The singling out of the EU as the leader of the initiative, although inaccurate because ten states co-authored the original resolution, was a powerful rhetorical tool as it both framed the debate within the neo-colonialism discourse and implied that states from the Global South supporting the resolution were not properly independent. In declaring victory, the sponsors of the draft resolution have claimed proof that the values of the European Union (EU) are increasingly universal values. […] The reality is that for many delegations this is a criminal justice issue and not a purely human rights issue, as the European Union and its allies assert. (UN, 2007c, p. 15)

These arguments contending that the Third Committee was the wrong venue to hold a discussion about the death penalty were the bulwark of retentionist opposition

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in 2007 and 2008. In the subsequent years they still retained some utility, but were used alongside other modes of contestation. Contention occurs when the societal grounds for the norm are contested. In this case, claims that different societies have legitimate reasons to retain the use of the death penalty are called upon to permit retention. Building on the arbitration mode emphasising legality, societal contention stresses a plurality of legitimate reasons for executions. We observe more contention from retentionists than abolitionists, an example of which was presented by Singapore in 2007 when it claimed that ‘all rules were not suitable for application in all places in all times’ (UN, 2007a, p. 18). Remarkably, similar was a statement by Egypt five years later, contending that ‘all rules were not suitable for application in all societies at all times’, (UN, 2012a, p. 11). This strongly supports sovereigntist arguments, as articulated by Benin saying that ‘states could develop their own legal statues only in accordance with international law’ (UN, 2014a, p. 9). Thus, while contention draws on legal arguments, the strategy of retentionists was to emphasise their national systems were socially appropriate. In 2008, Egypt’s intervention in the UNGA plenary reminded delegates that in Islamic jurisprudence the death penalty is restricted to the most serious crimes. It may be imposed only within the application of the due process of law in order to ensure that the punishment is compatible with the legal and religious regulations and that no one is arbitrarily deprived of the right to life. (UN, 2008c, p. 27)

Societal cohesion and the protection of community is the second example of contention. Singapore, as one of the retentionist vanguards, proposed that ‘the state had the responsibility to protect its citizens’ (UN, 2014a, p. 9) and Nigeria introduced this theme when it addressed the General Assembly plenary in 2007, saying that the ‘death penalty is retained on our statute books in order to serve the purpose of our internal security and as a deterrent to criminals who would not balk at threatening and taking the lives of innocent people, including civilians’ (UN, 2007b, p. 16). Iran echoed this point, justifying capital punishment on its legal statute as crime prevention and the ‘best punitive measure to ensure the safety, security and well-being of their citizens’ (UN, 2016a, p. 7). The fourth mode of contestation is the making of moral arguments: justification. This mode is most apparent in recent years, during which a common moral standard has crystalised within debates, accepting that the right to life and freedom from inhumane treatment cannot be outrightly rejected, even by appealing to a different fundamental norm. The previous modes of contestation have edged closer to justification—moving from outright rejection of common ground towards a shared normative reference. Undoubtedly, this common reference developed through the High Level Panel discussions in the HRC, where arguments about non-intervention and infringements on state sovereignty carry far less weight. Indeed, during the years of the Obama Presidency, the USA abstained from voting on capital punishment issues in the HRC while voting against them in the UNGA. While we cannot extrapolate from America to all retentionist states, it is nevertheless indicative of a differentiated approach between the two institutions. Specifically, the content of three HRC High

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Level Panels debating the use of the death penalty in 2013, 2014 and 2017 was analysed alongside references to the UNGA debates. These panels were organised by the UNCHR and included guests from regional organisations, national governments and civil society organisations, as well as UN Special Rapporteurs on extrajudicial killing and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment. The panels were explicitly abolitionist and normatively grounded in the assertion that capital punishment violated the right to life. Retentionists were, therefore, on the defensive and evidence of justification should be acknowledged as being in a non-neutral setting. The UN High Commissioner for Human Rights submits annual reports to the HRC on developments regarding the use of the death penalty on a yearly basis. Contained within them are detailed records on changes in law and practice at a national and regional level that have taken place in the preceding year with regard to capital punishment (UN, 2012b, pp. 3–5; UN, 2013, pp. 3–4; UN, 2014b, pp. 3–5; UN, 2016d, pp. 3–5; inter alia). The objective is to demonstrate the breadth of states from different regions that come to the same conclusions in their national judicial systems. To this end, the contention identified above in which national diversity was defended was challenged by empirical evidence to support the universalist position. Global consensus from the bottom-up is both more credible when arguing that there is a movement towards a common understanding, as well as rejecting the claim that a progressive human rights agenda is European in origin and inherently colonialist. Epistemic communities have long been noted for their ability to provide knowledge to international negotiators that are regarded as unbiased by national interests (Haas, 1993) and in this case, served to justify abolitionist arguments. In the 2013 HRC report on the use of the death penalty, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment concluded that ‘states cannot guarantee that there is a no pain-free manner of execution’ (UN, 2013, p. 14). The Rapporteur addressed the 2017 High Level Panel to remind participants that it is ‘almost impossible to carry out the death penalty without violating the prohibition of torture and other cruel, inhuman and degrading treatments or punishments’ (UN, 2017, p. 6). The Special Rapporteur for extrajudicial, summary or arbitrary executions noted in her report to the UNGA in 2016 that ‘international law can no longer be seen as retentionist’ (UN, 2016c, §39), and the HRC High Level Panel concluded that while ‘international law did not explicitly equate the death penalty with torture, it did view it as incompatible with the right to life’ (UN, 2017, p. 3). What evidence is there that the contestation process has yielded results? Returning to the UNGA, in the plenary debate of the 2016 Moratorium resolution, the representative of Papua New Guinea, a staunch retentionist, stated ‘my delegation recognises that the core issue addressed in this resolution is the right to life. However, other highly important elements including issues of sovereignty and national criminal justice systems, are also associated and require careful and proper consideration’. (UN, 2016b, p. 30; emphasis added). The distinction between a ‘core issue’ and ‘associated issues’ represents a major concession from retentionists, compared to their arguments a decade earlier.

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The contestation seen in the first years of this case is clearly an example of hard contestation. The objective of retentionists was to prevent the death penalty from becoming associated with human rights and to retain the control of the use of the death penalty as an organising principle of the norm of non-intervention. In the latter years, the position of retentionists was moderated by the concession to accept that there was a human rights dimension (as evidenced by the statement made by Papua New Guinea in 2016). It would therefore appear that the EU (and the numerous states taking the same position) had overcome the challenge and prevailed. However, we must also consider the successful inclusion of an amendment championed by retentionists to include a reference to the importance of state sovereignty in the text. This strategy was unsuccessful between 2007 and 2014, but in 2016 the first paragraph of the resolution was amended, saying it ‘[r]eaffirms the sovereign right of all countries to develop their own legal systems, including determining appropriate legal penalties, in accordance with their international law obligations’ (UN, 2016e). The vote to accept the amendment in the Third Committee was close (76 in favour to 72 against with 26 abstentions), but its passing could be considered as a victory for the retentionist goal of reflecting within the resolution text the alternative fundamental norm of non-intervention in state sovereignty. The same amendment was passed in 2018 (UN, 2018), suggesting that it was not an isolated or chance occurrence. It is therefore credible to argue that hard contestation was successful in recent years, and that the EU’s norm preference has been damaged. How can the two findings be reconciled? One convincing answer is to turn back to Wiener, and the observation that retentionists and abolitionists have shifted their positions with regard to accepting the normative claims made by each other. Instead of rejecting each one outright, retentionists accept the human rights dimension is legitimate, while abolitionists have chosen not to live with the amended resolution. The control of the use of the death penalty has been accepted as an organising principle of both fundamental norms.

Hard Contestation and Increased Legitimacy The central issue to consider when assessing the outcome of the contestation process is whether the legitimacy of the norm promoted by the EU has been strengthened or weakened, and by extension, what impact that has had for EU foreign policy legitimacy. Given the size of the collation of states seeking to make control of the use of the death penalty, an organising principle of the fundamental norm of the right to life, we purposefully refrain from labelling it the EU’s norm. It should also be remembered that the common theoretical framework of this book is intended to look at the impact of the contestation process on the EU and its foreign policy norm, and that this is a departure from the ambition of Wiener which is to look at the legitimacy of a norm at the global level as the contestation process proceeds. In this volume, it would be argued that the rebuttal of a hard contestation challenge by actors unhappy with a norm promoted by EU foreign policy that is rebuffed would increase

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the legitimacy of the EU and its norm. For Wiener, the process of contestation is sufficient to increase the legitimacy of the norm, regardless of the winners and losers after the outcome. This section will discuss the outcome from both perspectives because the critical defining aspect of this case is that the organising principle (type2 norm) could legitimately be connected to the two fundamental norms discussed. The empirical investigation identified all four modes of contestation in operation, with arbitration (legality) and deliberation (politicisation) during the initial years after the 2007 UNGA resolution. Contention (societal relevance) was used less in the early years but remained an important mode through the period of the study, while justification (morality of the death penalty) became more prominent towards the end and drew on arguments at the HRC. In terms of hard or soft contestation, it must be considered ‘hard’ because throughout retentionists were asserting the claim that an alternative fundamental norm was being too readily ignored that had equal significance (non-intervention in the domestic affairs of sovereign states) and that it should displace the EU’s foreign policy position that the death penalty was a HR issue. To assess the legitimacy of the norm in the face of hard contestation, we must consider whether the norm remains robust or was damaged by contestation— from the perspective of the EU’s foreign policy goals. Unfortunately, the answer is inconclusive. On the one hand, the resolutions accrued growing numbers of votes in the UNGA, and as retentionist states conceded control was a human rights issue, we could consider this enhancing the robustness of the norm. On the other hand, the substance of the resolution was weakened by the inclusion of a reference to sovereignty and thus suggestive of damaging it. One way forward towards greater clarity is to examine how the EU has adapted its policy position on the death penalty over the period of the study. Although the EU remains strongly committed to controlling the use of the death penalty globally, it has become less prominent as a signature for EU foreign policy, becoming instead an essential component of international cooperation and as such part of the wider human rights dialogue between the EU and third states. While, on the one hand, this may appear to be a demotion of the death penalty to simply another part of the general human rights commitments the EU expects of states, on the other hand, the normalisation of the death penalty within human rights dialogues reflects the trend identified in the UN system. While the outcome shows consistency between the EU and the UN, the appointment of a new High Representative for the CFSP in 2014 and the accompanying shift in focus from global human rights promotion to the prioritisation of threats to European security and internal cohesion is the primary cause of the reduced prominence. What is certain is that the international normative environment did not constrain the refocused policy. Reducing the conspicuousness of advocating death penalty abolition in EU foreign policy gave attention to other states and regional organisations that also work towards the same goal and allowed them more visibility. As noted, in the initial years of UNGA resolutions, the retentionists labelled them ‘EU’ as a way to discredit the action in the eyes of African and Asian states. In summary, the EU has normalised the control of the death penalty in its foreign policy by integrating it into human rights dialogue alongside other issues. This is consistent with internationally observed normative trend of broader acceptance of

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controlling the death penalty being an organising principle of the right to life. It is not possible to say that the changing approach was a direct response to the evolving position in the UN, as highly plausible internal reasons for the change are also identifiable. Wiener’s prioritisation of the process of contestation over the relative positions and aggregated outcome of the positions of the contesting parties would interpret the findings differently. The retentionist states that succeeded in placing their amendment in the resolution saw this as important, but nevertheless voted against the resolution overall. Conversely, abolitionist states—including Slovakia speaking for EU member states and 29 other states intervening individually or on behalf of others—‘disassociated’ themselves from the amended paragraph (UN, 2016a, pp. 5–6) and yet accepted begrudgingly its inclusion and voted in favour of the resolution as in previous years. As recognised by Singapore in the UNGA plenary debate: ‘In particular, I appreciate the decision of the sponsors to not reopen the amendment contained in paragraph 1 of the resolution. I know that this was not an easy decision for the sponsors, and I thank them for adopting an open- minded approach’ (UN, 2016b p. 33). In the resolution text from 2016 and 2018, we see a text that overwhelmingly locates control of the death penalty with the fundamental norm of the right to life, while including too an acknowledgement that the fundamental norm of non-intervention cannot be ignored. As such, the resolution recognised that it is the organising principle of two fundamental norms, not one. The legitimacy of the norm is increased because the dispute over the type-2 norm has been resolved. By looking at the process as well as the aggregated outcome rather than just from the EU’s perspective, a firmer conclusion in terms of increased legitimacy is reached.

Conclusion The European Union is deeply involved in the process of controlling the application of capital punishment in third states on the grounds that executions contravene the right to life and right to freedom from torture and other cruel, inhuman or degrading treatment. For the EU, controlling the use of the death penalty is an organising principle of the fundamental norm of the right to life, the most essential human right. Many other states in the UN system are in agreement. However, the issue of control is also applicable to the fundamental norm of non-intervention in the domestic affairs of sovereign states, albeit inverted to prevent control being exercised. Determining which fundamental norm has primacy can only be done through contesting the issue within the institutional setting of the UN system, and specifically the UNGA and the HRC. By using the framework of the book, a number of important factors explaining the process of change over time were identified. Firstly, the four modes of contestation mapped the different strategies used by retentionists and abolitionists alike, as well as giving insight into why some were preferred to others at certain times. At all times, contestation was hard because retentionist states sought to reconfirm the primacy of a legalist view of the death penalty instead of a human rights one. Secondly, it

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extricated the different behaviour of states in the UNGA and the HRC, bringing to the fore that in the latter the norm of non-intervention carries far less authority than the former. Over time, the control of the use of the death penalty has been more firmly established as an organising norm of the international human rights regime and in particular the right to life than one of the non-intervention in sovereign states, although in the 2016 and 2018 resolutions a new dynamic has been noted in which recognition of state sovereignty has been (controversially) incorporated. The EU contributed significantly to this outcome over the period of the study, but the work of other actors should neither be overlooked nor undervalued. The extent to which the legitimacy of the abolitionist norm has been strengthened over the last decade of contestation is a matter for debate. Using the common framework that places emphasis on the EU as the recipient of the contestation challenge yielded mixed conclusions. The incremental growth in support for the resolution and the concessions made by leading retentionist states that the human rights dimension is the most important surely point towards a robust norm in the face of hard contestation and a consolidation of its legitimacy. Yet the concessions made in 2016 and again in 2018 show that a narrow majority of states are in favour of recognising the importance of state sovereignty and by extension the belief that human rights are not universal, but specific to each country. Retentionists regard this as a victory, a weakening of the normative basis and damaging its legitimacy. The conclusion is unsurprising because of the fact that in this case, controlling the use of the death penalty implicates two fundamental norms that are in themselves difficult to reconcile. Returning to the work of Wiener that inspired the project, a clearer answer was revealed, noting that the resolution text of the last two sessions has found a compromise that allows one organising principle to belong to two fundamental norms and that as a type-2 norm it increases its legitimacy through the process of contestation.

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Wiener, A. (2014). ‘A theory of contestation’. Springer Briefs in Political Science. Wiener, A. (2017). A Theory of Contestation: A Concise Summary of Its Arguments and Concepts. Polity, 49(1), 109–125.

Robert Kissack is Associate Professor of International Relations, and Head of Studies, at the Institut Barcelona d’Estudis Internacionals (IBEI). He received his Ph.D. from the London School of Economics in 2006. He published the first single-authored monograph on the EU in the multilateral system in 2010, Pursuing Effective Multilateralism: The European Union, International Organizations and the Politics of Decision Making (Palgrave), and has written over 15 articles and book chapters on the subject of the EU and international organizations.

Chapter 3

Common but Differentiated Responsibility in International Climate Negotiations: The EU and Its Contesters Franziska Petri and Katja Biedenkopf

In the negotiations of a follow-up agreement to the United Nations Framework Convention on Climate Change’s (UNFCCC) Kyoto Protocol, the European Union (EU) was a vocal proponent of revisiting the ways in which the organizing principle of Common but Differentiated Responsibility (CBDR) was enshrined. In the negotiation process that culminated in the adoption of the 2015 Paris Agreement, the EU advocated for an adjustment of the agreement to the new realities of climate change and pushed for an international agreement “applicable to all Parties” (Council of the European Union, 2015b). The reinterpretation of CBDR was deemed necessary to ensure the fundamental norm of equity and to take on the daunting challenge of climate change. The fundamental norm of equity among countries has been one of the triggers and drivers of most international environmental and climate agreements. It is a crucial underlying value in those policy areas, since environmental and climate agreements predominantly address problems that result from rich countries’ consumption and production behavior and disproportionally impact on low-income countries. International agreements seek to redress this imbalance and aim to establish equity among those who cause the problem and those who suffer from it (Sands & Peel, 2012, p. 233). Equity among countries is thus a core element of the UNFCCC and the protocols and agreements adopted on its basis. The EU is at the forefront of addressing climate change internally and externally, with, on the one hand, promoting relatively ambitious climate targets in its internal legislation and, on the other hand, promoting ambitious global action on climate change in bilateral relations as well as in the UN framework. As such, the EU has F. Petri (B) Leuven International and European Studies, Leuven Centre for Global Governance Studies, KU Leuven, Leuven, Belgium e-mail: [email protected] K. Biedenkopf Leuven International and European Studies, KU Leuven, Leuven, Belgium © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_3

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become an active and central negotiator within the UNFCCC realm. Promoting equity and fairness has been woven into its negotiating position, while the EU also pushes for its own interests. In the pursuit of the goal of stabilizing atmospheric greenhouse gas (GHG) concentrations at a level that would prevent dangerous anthropogenic interference with the climate system in a fair and just manner, the EU promoted an interpretation of CBDR that requires all Parties to contribute, yet in a differentiated manner. The EU’s position advocating an inclusive agreement without a clear-cut bifurcation in two groups of countries was contested by a number of countries from the so-called non-Annex I group, but also Annex I Parties advocated slightly different interpretations. Annex I included all industrialized countries that were part of the Organization for Economic Cooperation and Development (OECD) in 1992 (Depledge, 2009, pp. 274–276). The negotiations eventually resulted in a shift in interpretation with the 2015 Paris Agreement enshrining a different CBDR approach than the 1997 Kyoto Protocol: Differentiations are still upheld, for example, with developed countries providing support to developing countries and developed countries taking the lead in climate mitigation efforts. Still, the previously strict bifurcation of GHG reduction commitments was weakened, and instead, new and more balanced mechanisms were introduced, like the Nationally Determined Contributions (NDCs) that are prepared and submitted by “all parties” or “each party” (UNFCCC, 2015). The EU’s active norm entrepreneurship contributed to this shift, but the EU also had to make concessions to the contesters of its interpretation of CBDR. This chapter analyzes the ways in which the EU promoted its distinct interpretation of the organizing principle of CBDR and how other Parties to the UNFCCC contested the EU’s interpretation during the four-year climate negotiations that culminated in the adoption of the Paris Agreement. As such, the chapter aims at answering three research questions: How has CBDR been contested during the climate negotiations? How was this contestation translated into the Paris Agreement on climate change? and How has this contestation affected the legitimacy of the EU as an actor in climate governance generally and in the specific case of its understanding of CBDR? To that end, we performed a qualitative content analysis (Mayring, 2014) of the Earth Negotiations Bulletins (ENB) on the climate negotiation meetings between 2011 and 2015, thereby identifying not only the main contesters of the EU’s norm understanding but also the main themes of contestation over time. The next section first describes the elements at the core of the contestation of the Kyoto-era CBDR interpretation and then identifies the main contesters. The third section zooms into the contestation process by focusing on deliberation in the different UNFCCC Conferences of the Parties (COPs). This is followed by some reflections on the outcomes of the contestation process and the EU’s role as global norm promoter. The concluding section places our findings in a broader perspective.

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Common but Differentiated Responsibility and Its Contesters Equity is a fundamental norm in international climate relations and beyond. The 1992 UNFCCC is no exception. It seeks to address the problem of climate change that is caused by growing GHG concentrations in the atmosphere. For most of the twentieth century, industrialized Western countries emitted the bulk of global GHGs with low-income countries contributing little to creating the problem. Yet, climate change affects all countries and low-income countries generally have fewer means to adapt to the consequences of the climatic change that we cannot avoid anymore. Equity among countries is thus a core element of the UNFCCC and the protocols and agreements adopted on its basis. The UNFCCC pursues the objective of stabilizing “greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system” (Article 2, UNFCCC). Based on the fundamental norm of equity, the Convention further established that Parties should protect the climate system “in accordance with their common but differentiated responsibilities and respective capabilities” and that “developed country Parties should take the lead” (Article 3.1, UNFCCC). This key organizing principle was codified in the 1997 Kyoto Protocol by determining that so-called Annex I countries had to commit to greenhouse gas reductions while non-Annex I countries remained without binding climate mitigation obligations. Annex I countries include all industrialized countries that were part of the Organization for Economic Cooperation and Development (OECD) in 1992 and countries that were considered economies in transition at the time. Non-Annex I countries are all other UNFCCC members (Depledge, 2009, pp. 274–276). In the early 1990s, this bifurcation of countries into two groups reflected what was considered as fair and just at the time and in accordance with the polluter pays principle: Those who produce pollution should bear the costs of managing it to prevent further damage to human health or the environment (Sands & Peel, 2012, pp. 228–232). While all Parties to the UNFCCC principally concur that a fair and just climate agreement should be based on common but differentiated responsibilities, their interpretation of what this entails vary widely (Rajamani, 2013). The manifestation of CBDR in the standardized procedures of the international climate regime has shifted in 2015 as a result of the contestation dynamics and adjustment to changed realities. Countries’ interpretation of CBDR is a partial reflection of their status as Annex I or non-Annex I country. Those without binding commitments under the Kyoto Protocol sought to preserve the status quo to the extent possible, while Annex I countries fought an uphill battle to break with established path dependencies (Castro, Hörnlein, & Michaelowa, 2014). The EU belongs to the latter group. The EU is at the forefront of addressing climate change internally and externally. While its policy measures still require further strengthening in terms of ambition, they are more advanced than many other countries’ efforts. The EU has become an active and central negotiator within the UNFCCC realm (Oberthür & Groen, 2018; Torney & Cross, 2018; Walker & Biedenkopf, 2018). Promoting equity and fairness

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has been woven into its negotiating position, while the EU also pushes for its own interests (van Schaik & Schunz, 2012). In the pursuit of the goal of stabilizing atmospheric GHG concentrations at a level that would prevent dangerous anthropogenic interference with the climate system in a fair and just manner, the EU promoted an interpretation of CBDR that requires all Parties to contribute, yet in a differentiated manner. While Wiener (2014, pp. 68–70) briefly sketches the case of climate governance to illustrate norm contestation with regard to CBDR, she does not analyze the details of the dynamics among contesters and the contestation modes. Wiener conceives CBDR as an organizing principle aimed to achieve the fundamental norm of sustainability (without defining sustainability or explaining its link with CBDR). We instead shed light on the contestation dynamics surrounding CBDR as an organizing principle based on the fundamental norm of equity. We concur with Wiener that while the organizing principle per se has been recognized, its interpretation has remained a contentious issue (Wiener, 2014, p. 69). Our empirical analysis delves into the details of the contestation process that unfolded between 2011, when Parties to the UNFCCC adopted the Durban Platform for Enhanced Action that launched the negotiation process aiming to develop “a protocol, another legal instrument or an agreed outcome with legal force”, and the eventual adoption of the Paris Agreement in 2015. The next section delves into the details of what exactly is contested in the case of CBDR, followed by a discussion of our methodological approach and our results on the main CBDR contesting actors in the 2011–2015 climate negotiation process.

What Is Contested? The norm of equity in international law provides the basis for the organizing principle of CBDR (Sands & Peel, 2012, p. 233). Climate change is a global issue. Regardless of where greenhouse gases are emitted, they accumulate in the atmosphere and affect the entire globe. Yet, not all countries are equally affected by climate change nor do all countries emit the same amounts of GHGs. Some are more vulnerable and more frequently and severely affected by phenomena such as droughts, weather extremes, rising sea levels and desertification. Many countries that have not emitted many greenhouse gases are disproportionately affected by the consequences of climate change, while rich industrialized countries have historically emitted many more GHGs than poorer countries. Moreover, countries’ capacity to mitigate and adapt to climate change differs widely. Those inequalities in terms of climate change effects and GHG emissions while sharing the same atmosphere make equity and fairness a crucial norm underlying the negotiation of a global climate agreement (Kverndokk & Rose, 2008). The recognition of the norm of equity was the basis for the acknowledgement of the organizing principle of Common but Differentiated Responsibility in the UN Framework Convention on Climate Change (Voigt, 2014). Developing countries, with China at the forefront, pushed for CBDR as an organizing principle leading

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to its first mentioning as official international principle in the 1992 Rio Declaration and the UNFCCC (Pauw, Bauer, Richerzhagen, Brandi, & Schmole, 2014, pp. 3–5). Principle 7 of the Rio Declaration states: [s]tates shall co-operate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. In view of the different contributions to global environmental degradation, states have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

During the negotiations of the Kyoto Protocol in the mid-1990s, CBDR helped designing international rules and the architecture of the international agreement. The Kyoto Protocol institutionalized a bifurcation that created obligations for only a few industrialized countries. Most countries are non-Annex I countries, including China, India, Brazil, and a number of others that had become major GHG emitters by the 2010s. CBDR was a highly contentious issue in the negotiations of a follow-up agreement to the Kyoto Protocol. Realities had changed and no longer matched the bifurcation into Annex I and non-Annex I countries: China overtook the USA as the world’s single largest emitter of carbon dioxide (CO2 ) in 2006. Any international agreement that does not include mitigation measures by China would not address the global problem of climate change. Similar developments can be noted for a range of other countries such as Brazil, South Africa, Korea, and India. Those changes in the realities of GHG emitters resulted in a changed interpretation of the organizing principle of CBDR within the UNFCCC negotiation process. The standardized procedures enshrined in the Paris Agreement reflect this new interpretation. Yet, CBDR was and remains contested. The Kyoto-era standardized procedure of bifurcating countries into Annex I and non-Annex I created incentives for a large number of countries to advocate for the status quo since this structure created few obligations for them and placed the burden on the Annex I countries. Breaking the mold of such path dependencies is challenging (Castro et al., 2014). Nonetheless, a clear shift can be noted when comparing the structure of the Kyoto Protocol to the Paris Agreement’s structure. While the fundamental norm of equity and the objective of stabilizing GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system have not changed, the interpretation of the organizing principle of CBDR has (Brunnée & Streck, 2013). This has led to different standardized procedures (Falkner, 2016; Voigt & Ferreira, 2016). The EU and other actors advocated for a departure from the previous bifurcated structure (Parties with and Parties without GHG emissions reduction obligations) that stemmed from the 1990s. This responded to developments that had occurred meanwhile. The rise of emerging economies like China and India expanded the group of large GHG emitters. The EU and others correspondingly changed their interpretation of how responsibilities should be defined (Council of the European Union, 2015b). While the EU pushed for a Paris Agreement that includes commitments by all Parties, it also advocated for differentiation with regard to countries’ capabilities

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and responsibilities. India, China, and many other countries that previously had no binding climate mitigation obligation, however, strove to maintain previous structures to the extent possible and emphasized the leading role that industrialized countries should play in terms of ambition levels and efforts. The following section presents the methodology that we used for the empirical analysis in more detail.

Analyzing Contestation: Methodology In order to analyze and understand the contestation of CBDR during climate negotiations, we performed a qualitative content analysis of the UNFCCC climate negotiation meetings between 2011 and 2015. Our data source were the Earth Negotiations Bulletins (ENB), which are independent detailed reports of all UNFCCC Conferences of the Parties (COPs) and intersessional meetings between the annual COPs provided by the International Institute for Sustainable Development (IISD, 2019). The ENB includes concise standardized summaries of statements made by Parties during the plenary meetings. Since full transcripts of the debates are not available, the ENB is a suitable alternative data source, since it is the most complete and frequent reporting of the UNFCCC negotiations. Furthermore, its standardized reporting format aims to guarantee political independence and consistency over time, thereby enabling comparability of coding results. Of course, changes in authors and editors over time could have left a certain imprint and led to a limited degree of variation in the reporting. All COP reports and summaries (12 documents per COP, 72 documents in total, ranging between 2 and 47 pages) for the years 2011–2015 were coded inductively, using the qualitative data analysis software NVivo (Jackson & Bazeley, 2019). To analyze the ENB data, we applied qualitative content analysis, a procedure to systematically analyze data in an intersubjectively verifiable way. We applied the inductive category formation procedure (Mayring, 2014, pp. 79-87). Using this data reduction technique, we analyzed the documents in three steps: First, out of the entirety of documents all references and statements referring to CBDR, the Convention principles, the Annex I/non-Annex I structure as well as differentiation of commitments and obligations were identified and coded with NVivo. We thus extracted the text segments of relevance to our analysis from other, non-CBDR-related contents. Second, all text segments were coded according to the statement’s originator, namely specific states and/or negotiating groups. Through this step, 88 state actors and 15 negotiating groups were identified. We coded the EU and its Member States as a single actor for the purpose of this analysis. Third, we identified different discussion topics within the extracted statements pertaining to CBDR and differentiated obligations. We further differentiated and captured those discussion topics in thematic categories and subcategories. To that end, we proceeded in two coding rounds: A preliminary coding served to revise and further specify the categories. These categories were then applied in

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one complete second round, coding all text fragments. The resulting main thematic categories were: (1) the understandings of CBDR as a principle of the Convention (pro/contra “dynamic understanding”, strict stance against referencing to CBDR, strict stance for (strengthened) CBDR in future agreement); (2) the position on bifurcation (continued separate rules vs. common framework, no longer separation); (3) the equality of obligations (various arguments pro/contra similar obligations for developing and developed countries); and (4) a number of remaining categories with themes repeatedly emphasized that did not fit into these three categories, like the repeated emphasis of “historical responsibility” by various actors, concepts like “the right to develop”, “global solidarity”, “fairness”, and “equity”.

Who Contests? We identified several groups of contesters who challenged the EU in particular ways and promoted specific interpretations of the CBDR principle in the UNFCCC negotiations leading to the adoption of the Paris Agreement. Our analysis of the ENB reporting of the Conferences of Parties between 2011 and 2015 shows that the top 10 contesters were China with 58 statements pertaining to CBDR, India (45 CBDRrelated statements), the EU and the USA (both 40 CBDR-related statements), Bolivia (34 CBDR-related statements), Brazil (26 CBDR-related statements), Australia and South Africa (both 24 CBDR-related statements), Switzerland and Malaysia (both 23 CBDR-related statements), Venezuela and Saudi Arabia (both 22 CBDR-related statements), Argentina (18 CBDR-related statements), and Egypt (16 CBDR-related statements) (see also Fig. 1).1 For the purpose of our study, all statements by the EU were coded collectively as one actor, including: statements by EU officials (e.g., Commissioner for Climate Action), EU Member State officials who explicitly spoke “on behalf of the EU” (e.g., by the country holding the Council Presidency) and EU Member State officials who spoke on behalf of their own country. The subsumption of EU-level and Member State-level statements to represent the EU as a single actor is motivated by the fact that the EU and its Member States speak with a unified voice in climate negotiations. The Council Presidency and the European Commission generally speak on behalf of the EU and its Member States in plenary sessions. The negotiations are prepared 1 In

order to make the comparison of arguments more clear, the climate groupings were excluded, despite them also ranking high in this top 10 ranking [including the Like-Minded Developing Countries (LMDCs) (36 CBDR-related statements), African Group (34 CBDR-related statements), G77-China (25 CBDR-related statements)], since each of the above groupings combine a wide number of diverse actors (e.g., the G77-China grouping includes 134 Members) and partly also overlap with some of the top 10 states in the list (e.g., China).

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16

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MOST VOCAL ACTORS ON CBDR (TOP 14)

Fig. 1 Most vocal actors on CBDR during the 2011–2015 climate negotiations (top 14 out of 88). Annex I countries: green, non-Annex I countries: blue

through a complex process in which the EU develops its unified position that it then jointly pursues in the UNFCCC negotiation sessions (Delreux, 2014, 2018; Walker & Biedenkopf, 2018). Since the focus of this chapter is on the external contestation of EU foreign policy, subsuming the EU and its Member States as one single actor in the climate negotiations most accurately describes the EU’s negotiating behavior. The top 10, and effectively top 14, most vocal actors on CBDR represent more than half of all statements made by the overall 88 actors that we identified.2 As such, our mapping exercise and analysis thus captures a large share of the CBDRrelated statements. Only four of the 14 most vocal actors are Annex I countries, namely the EU, USA, Australia, and Switzerland. Together, they account for 127 of the total 415 coded statements by the most vocal actors in the CDBR debate. This demonstrates that, while developing countries were in a clear majority of the ten most vocal non-Annex I countries, developed countries were significantly involved in the debate, despite their minority in numbers. Moreover, eight out of the 14 most vocal actors, namely China, India, the EU, USA, Brazil, Australia, South Africa, and Saudi Arabia, are among the top 20 CO2 emitters worldwide (Global Carbon Atlas, 2017). Accordingly, these actors played a particularly important role within the climate negotiations due to their issue-specific power. These actors, both developing and developed countries, also had much to lose or gain, depending on the negotiations’ outcome under the new Paris climate deal. As a first conclusion based on the identification of the most vocal actors in the CBDR-related negotiations, it becomes evident that the EU and its Member States 2 While

the total number of coded statements (“codings”) was 709, there is some overlap in the coding of statements for individual actors and climate groupings (see previous footnote). All in all, the graph shows a number of 415 codings, which accounts for more than half of total codings.

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played a central role and strongly voiced its position during the climate negotiations on the CBDR, as it is located in the top 5 of the most vocal actors. While the next section pays particular attention to the EU’s interpretation of CBDR, it also analyzes its positioning in relation to the other 13 actors specifically, since it not only interacts with developing countries that are expected to significantly contest the EU’s interpretation, but with other high-income countries that have a shared interest with the EU.

Contesting CBDR Through Deliberation Engaging in a dialogue about the norms that underpin international climate negotiations and how those norms should be (re)interpreted in light of changing circumstances is a crucial element of the dynamics and continuously evolving nature of climate negotiations. For this reason, contestation as the discursive expression of disapproval with existing interpretations of norms is an inherent part of the climate negotiation process. This section focuses on the manner in which CBDR was contested during the 2011–2015 climate negotiation process, namely through deliberation as a political contestation process (Wiener, 2014, see also Johansson-Nogués, Vlaskamp and Barbé, this volume). Deliberation is the core mode of contestation in the case of climate negotiations. This results from the nature of the case, which is the process that led to reaching agreement on a new international treaty. All Parties needed to consent to the Paris Agreement since majority voting does not apply in such cases. Consensus among and action by (almost) every country is necessary since climate change is a truly global problem. Regardless of where GHGs are emitted, they affect the atmosphere in the same way with repercussions for the entire globe. For this reason, reaching a nearly universal agreement is crucial. Deliberation seems the most suitable mode for achieving this since the use of imposition of climate mitigation measures on certain countries is highly unrealistic. Our empirical analysis delves into the details of the contestation process that unfolded between 2011 and the eventual adoption of the Paris Agreement in 2015. In 2011, Parties to the UNFCCC adopted the Durban Platform for Enhanced Action that launched the negotiation process aiming to develop “a protocol, another legal instrument or an agreed outcome with legal force” (United Nations Framework Convention on Climate Change (UNFCCC), 2012, p. 2). This period is marked by intense deliberation during the various UNFCCC meetings among various contesters of the previous interpretation of the organizing principle of CBDR as enshrined in the Kyoto Protocol. This section presents the results of our qualitative analysis of ENB reporting of the UNFCCC COPs to identify and understand the main points of contention in the debate surrounding the organizing principle of CBDR and the operating procedures differentiating among Parties’ commitments and obligations. The following subsections focus on the various facets and angles from which CBDR was contested: First,

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the proposals for the (re)interpretation of CBDR are discussed. Second, we focus on the sharing of responsibilities in the new climate agreement. Third, we outline the concrete proposals on (abandoning) bifurcation and related obligations for Parties. For each of these contestation topics, we present an illustration of main arguments by the various contesters of the EU’s position.

Common but Differentiated: Dynamic Interpretation Versus no Reinterpretation This section portrays the debate on the role of Common but Differentiated Responsibility itself in negotiating the Paris Agreement. All developing countries of the most vocal 14 actors in the climate negotiations stressed the importance of reflecting CBDR in the new climate deal during all five COPs that we analyzed (105 codings). Developing countries explicitly reaffirmed the importance of CBDR, as, for example, in 2012 China, supported by Egypt, stated during COP 18 in Doha that CBDR was “a basic principle of international climate change negotiations” (ENB 557). The tension on reflecting the organizing principle of CBDR in the Paris Agreement was particularly raised during COPs 20 and 21, where developing countries called for explicit references to the CBDR in the new climate deal. One example is Bolivia’s call, speaking on behalf of the G77/China, to place the Paris Agreement “under the Convention and its principles”, specifically referring to CBDR (ENB 610), and India’s call, together with China, Brazil, Venezuela, and other developing countries, for a clear reference to the Paris Agreement working “in accordance with” the principle of CBDR (ENB 619). During COP 21, several developing country heads of state stressed the importance of CBDR: Then-Brazilian President Rousseff emphasized CBDR as “the cornerstone of the Paris agreement”, Egyptian President El Sisi stressed the need for the new agreement to “be based on the principle of CBDR”, and Malaysian representatives called for “the principles of equity and CBDR” to be “preserved in all their facets and forms” (ENB 653). In contrast, developed countries—including the European Union and its Member States—referred to the explicit principle of CBDR comparatively less frequently, but rather affirmed the general importance of “differentiation” (16 codings), thereby incentivizing a broader discussion on the interpretation of the Convention principles, including but not exclusively focused on CBDR (24 codings). During COP 17, the EU, for example, stated that it was an essential component of the negotiation process to address the principle of CBDR “in a contemporary and dynamic manner” (ENB 531). These calls were joined by other developed countries like Australia during COP 17, encouraging a “dynamic interpretation of the Convention principles” (ENB 559), and the USA during COP 20, calling for dealing with the principle in an “appropriate way” (ENB 617). In sum, developed countries quite coherently called for new dynamic interpretations of the CBDR organizing principle, thereby not neglecting the need to differentiate according to various national circumstances and capabilities

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(and also not neglecting a particular role of developing countries), but calling for an evolving understanding of the formerly strict concept of CBDR. The EU’s position on finding new, dynamic interpretations of CBDR thus was generally located within the mainstream of developed country narratives. At the same time, there were also instances of developed countries taking a more critical stance on CBDR, as, for example, during COP 18 in Doha, when Switzerland called for Parties “to apply the Convention principles in a manner that ‘empowers us to do more and not as an excuse to do nothing’” (ENB 561) and when the USA openly “opposed the referencing of equity and the CBDR principle”, arguing that the principles should not “affect the mandate” of the Durban platform (ENB 567). The EU was thus not situated on one of the extremes of the spectrum of CBDR interpretations. It rather can be situated in a less fundamental and extreme position as some of the other developed countries. The number of developing country statements rejecting the very idea of rethinking or reinterpreting CBDR is considerable and can be traced through all five COPs analyzed (71 codings). This position was quite consensual among non-Annex I countries as demonstrated by the Democratic Republic of the Congo speaking on behalf of eighteen other countries (including India, China, Egypt, Saudi Arabia, Bolivia, Argentina, Venezuela, and Malaysia) as well as China speaking on behalf of the BASIC group during COP 18 in 2012 emphasizing that the Ad Hoc Working Group on the Durban Platform for Enhanced Action that prepared the Paris Agreement was “not a venue to ‘renegotiate, rewrite, or reinterpret’ the Convention principles” (ENB 558). Similarly, during COP 19, Venezuela stressed that the Convention’s principles, rules and annexes were “not up for negotiation” (ENB 593). During COP 20, Brazil and China openly opposed the “introduction of new concepts”, while stressing that “diverting from the principles and provisions of the Convention make progress difficult” (ENB 613). The most drastic example for the rejection of a dynamic interpretation of CBDR is Saudi Arabia’s statement on behalf of the Like-Minded Developing Countries (LMDC) group, describing “other parties’ comments on the evolution of CBDR … as ‘illegal’” (ENB 619). In sum, when looking at the 2015 Paris Agreement itself, it becomes evident that the emphasis of developing countries to reflect the CBDR principle in the agreement’s text was partially successful. The explicit reference to the principles of equity and CBDR can be found not only in the Agreement’s preamble, but also in Article 2 as well as Articles 4(3) and (19). At the same time, in all four instances the addition “in the light of different national circumstances” can also be found in the agreement text, which can be considered as a reflection of the developed countries’ emphasis on including different national circumstances in the agreement and avoiding a split into two groups of countries. Overall, the Paris Agreement requires all Parties to submit Nationally Determined Contributions (NDCs), engage in climate action and ratchet up their climate ambition in a five-year cycle. In this regard, the EU’s objective of an agreement applicable to all Parties is reflected in the Paris Agreement (United Nations Framework Convention on Climate Change (UNFCCC), 2015). The ultimate agreement thus accommodates multiple Parties’ positions and constitutes a compromise among them.

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Whose Responsibilities? Zooming deeper into the various components and implications of CBDR as a contested organizing principle in the UN climate negotiations, the questions of who is responsible for causing climate change and who is responsible for addressing it took a central role in the debates. These questions go beyond a mere reference to the CBDR principle and their answers fundamentally shape the modalities of the operating procedures that are based on the respective interpretation of CBDR. In this context, one key topic is the historic responsibility of developed countries for climate change. There are only two instances in the ENB reporting, in which references to historic responsibilities can be found in developed country statements, which contrasts with the multiple references by developing countries. Both of them can be found in COP 21. One of them is the statement by then-US President Obama recognizing “the role of his country in creating climate change” (ENB 653). The other one, reflecting the EU’s position, is the statement of German Chancellor Merkel, recognizing developed countries’ “responsibility for past emissions” (ENB 653). Somewhat unsurprisingly, developing countries referred to historic responsibility much more often (36 codings): As such, there are various explicit references by the top 10 developing country contesters in the dataset emphasizing the “historic responsibility of developed countries” (e.g., Egypt, ENB 557; China, ENB 558; Saudi Arabia, ENB 584; Venezuela and Malaysia, ENB 589; Malaysia, ENB 656). In this context, the proposal by Brazil to develop “a reference methodology on historical responsibilities”, supported by multiple developing countries (including Venezuela, India, China, Bolivia, and Saudi Arabia) and opposed by numerous developed countries (including the USA, EU, Australia, and Switzerland), is a noteworthy example (COP 13, ENB 584). Bolivia’s proposal of an “indexed global carbon budget” built on, among other factors, Parties’ historical responsibilities takes a similar stance (COP 14, ENB 612). The interpretation of responsibility as including historic responsibility has implications for the calibration of the operating procedures pertaining to the level and ambition of climate action by developing and developed countries. Depending on who is responsible for causing a deteriorating global climate, different countries are required to act. In the case of developing countries, the references to historical responsibilities were often used as a narrative not only to call for more ambitious action from Annex I countries—very concretely in terms of providing more climate financing and technical support—but also to legitimize less ambitious climate action from their side, frequently referring to their right to development. Multiple references illustrate this connection, for example, China, speaking on behalf of the BASIC group during COP 18, urged “developed countries to raise their level of ambition in line with science and their historical responsibility” (ENB 567). This is of course not to say that developed countries did not also make this connection. There are multiple statements in which not only the EU but also other developed countries emphasized the role of major economies (e.g., EU, ENB 524; USA, ENB 527; Australia, ENB

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617), stressing the need for developed countries to provide support and to “continue to lead” on ambitious climate action (Australia, ENB 663). However, there are crucial nuances in the ways in which the two blocs emphasized this responsibility to act: On the one hand, developed countries increasingly emphasized that to effectively combat climate change in a context of changed realities, not only historical responsibilities but rather a broader range of indicators should weigh in. As the EU put it during COP 19, it was necessary to consider “past, current and future emissions, and different capabilities” (ENB 589; similar Switzerland, ibid.). As such, the EU’s interpretation explicitly outlined a responsibility to act for more than just developed countries, thereby arguing for broader participation in ambitious climate efforts (“all parties”) as well as more support from developing countries in sharing the burden of financial (and other) support to least-developed countries. Regarding the latter argument, during COP 20, new language on financial support by “all parties in a position to do so” (or in other versions, “willing to do so”) was discussed, which was supported by developed country actors, including the EU, the USA, and Australia (ENB 612, 613, 617, 656, 661), during COPs 20 and 21. These proposals were however strictly rejected by the majority of developing countries. As China put it during COP 20: “Only developed countries have the responsibility to provide support to developing countries, and cautioned against introducing new principles” (ENB 612). Furthermore, during COPs 20 and 21, several developing countries openly opposed and called for deletion of the new references to “parties in a position to do so” (e.g., China, Brazil, South Africa, Venezuela, ENB 619; China and India, ENB 656; Saudi Arabia, ENB 661; China, India and Malaysia, ENB 661; China and India, ENB 663). They called instead for references to developed countries only (India and China, ENB 619). While there is no specific reference to historic responsibilities of developed countries, the Paris Agreement’s preamble explicitly refers to “developed country Parties taking the lead” (United Nations Framework Convention on Climate Change (UNFCCC), 2015, p. 2). Regarding the question of developing countries taking up responsibilities as well (such as in the form of financial support to other developing countries), Article 9 of the Paris Agreement constitutes a compromise: While not referring to “countries in a position to do so”, Paragraph 2 still encourages “other parties” than developed countries to (continue to) provide support “voluntarily” (United Nations Framework Convention on Climate Change (UNFCCC), 2015, p. 13). As such, the Paris Agreement still lacks explicit references to developing countries’ responsibilities for their “past, current and future emissions”, as expressed by the EU (ENB 589), but the final text represents a compromise between strict language on developed countries’ responsibilities, as demanded by non-Annex I countries, and more responsibilities for developing countries, as advocated by Annex I countries.

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Bifurcation and Respective Obligations In addition to the deliberative contestation on how the concepts of “common but differentiated” and “responsibility” should be interpreted in the new Paris climate deal, questions regarding the previously bifurcated structure into Annex I and nonAnnex I countries and the corresponding asymmetric obligations and commitments by Parties were highly contested topics. The obvious divide between arguments in this debate was between the goal of Annex I countries to dissolve the strict separation of commitments and obligations into Annex I and non-Annex I countries, and the goal of developing countries to maintain the separation. In particular, those countries like China and India that under 2015 emission figures would qualify for more ambitious commitments argued for a continued separation. The debate was however more nuanced than such a blackand-white portrayal. Developed countries did not in principle demand equal rules for both developed and developing countries in the full sense of the word. They rather called for common frameworks and rules while still stressing that support should be provided and flexibility should apply to take various national circumstances into account. The EU voiced its position on this issue not as strong as other developed countries that positioned themselves in the debate on bifurcation. The EU’s opposition to continued bifurcation can mostly be found in calls for “the need for progress towards legally-binding commitments by all by 2015” (COP 18, ENB 557, emphasis added) and statements like the one by then-EU Commissioner for Climate Action Hedegaard: “[w]e are crossing the bridge from the old climate system to the new system” (COP 18, ENB 567). Furthermore, there are several instances in which the EU, together with Switzerland and the USA, specifically opposed “language applying only to developed countries” (ENB 617, emphasis added) and called for “common framework[s]” in matters like transparency and reporting (ENB 526, 656). This argument is shared by a number of other developed countries calling for “common” frameworks and rules (e.g., Australia “common legal framework”, ENB 559). Still, other developed actors were comparatively more vocal and explicit in calling for “a new climate agreement that is legally-binding, ambitious and based on the same obligations and rules for all parties” (Switzerland, ENB 653, emphasis added). On the legal bifurcation, one statement by then-US Special Envoy for Climate Change Stern during COP 19 is particular illustrative. He criticized “holding on to past differentiations” and stressed the evolving character of these categories (ENB 593). Furthermore, several relevant statements by other developed country actors on the issue of bifurcation can be found during COP 20 in particular: Australia openly opposed a “bifurcated approach” (ENB611), Switzerland opposed “a division between Annex I and non-Annex I countries” (ENB 613), the USA stressed that an “annex-based differentiation” would not represent a “path to a new agreement” (ENB 614), and the USA, together with Australia and Switzerland opposed “creating binary divisions on commitments” (ENB 619). In this debate, the EU was not only less vocal than other actors but seemingly also less strict in calling for ending

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bifurcation. This becomes particular apparent when looking at the exemplary statements by developed countries on opposing further divisions, where all other three main developed actors in the dataset spoke with a unified voice. Unsurprisingly, the views on bifurcation were considerably different among the group of non-Annex I countries in our dataset with more than 60 codings on this aspect. China, India, and Brazil were the most vocal among the contesters. These three countries are the ones ranking highest in the top 20 GHG emitters. As such, China was particularly vocal on keeping “developed and developing countries mitigation efforts […] separate” (COP 17, ENB 526) or stressing that “differentiation should remain valid” (COP 19, 594), which it asked to be translated into specific differentiation in obligations and treaty wording (e.g., “commitments” vs. “contributions”). Similarly, there were multiple statements in which India promoted a “differentiated” perspective on actions under the Convention (e.g., COP 18, ENB 559; COP 19, ENB 590), stressing the importance of CBDR, and noting that “there will always be differences” (COP 20, ENB 619). Saudi Arabia was another vocal actor emphasizing “the need for continued differentiation between developed and developing country mitigation commitments” (COP 19, ENB 584) or even describing the “updated annexes or elimination of differentiation as ‘illegal’” (COP 20, ENB 613). Similarly, Brazil, during COP 19, stressed that “the Annexes arrangement under the Convention [were] legally binding and not under negotiation” (ENB 529). Developing countries cautioned against more burdensome obligations, like, for example, Bolivia expressing concern that “requirements being imposed on developed and developing countries [were] too similar” (COP 17, ENB 526), instead promoting more obligations and more financial commitments from Annex I countries toward developing countries. The various points of contestation in the debate on bifurcation and respective obligations can be found in the final text of the Paris Agreement. It does not contain explicit references to Annex I and non-Annex I countries. Nonetheless, differentiation of obligations for developing and developed Parties are still upheld—even if it is not as strict as previous treaties (e.g., no language on developed countries solely being responsible for taking ambitious action, as demanded by some developing countries). There are several examples in the Paris Agreement, such as Article 13 on the transparency framework and reporting requirements (UNFCCC, 2015, pp. 16–18), establishing common accounting mechanisms. A balance of obligations for developed and developing countries becomes apparent in those rules. While there are multiple references to developed countries taking the lead and support to be provided to developing countries, many of the Agreement’s provisions explicitly ask for “all” and “each” Party/Parties to act (e.g., Articles 3 and 4). In sum, the result of the deliberative contestatory process is a common framework, within which all Parties act, that however still displays elements of differentiation or a much-weakened bifurcation. As such, demands from both sides were met in the final Paris Agreement. Developed countries achieved the establishment of a common framework for all Parties, including some more balance in obligations. At the same time, developing countries upheld differentiation in obligations, even though now the language of Annex I and non-Annex I groups no longer is used. For example,

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Article 9 of the Paris Agreement states that: “Developed countries Parties shall provide financial resources to developing country Parties (…)” versus “Other Parties are encouraged to provide or continue to provide such support voluntarily” (United Nations Framework Convention on Climate Change (UNFCCC), 2015, pp. 13–14, emphases added). This shows that the hardline developed countries were not successful in fully dissolving binary divisions in the 2015 Agreement. Seen from this perspective, the EU’s position calling for a common framework for all, yet being less vocal or explicit on entirely dissolving bifurcation, could be considered a middle ground between the two sides of actors of contestation. Our analysis sheds light on various elements of contestation in the deliberative discourse during the 2011–2015 COPs on one of the key and most contested organizing principles of international climate action, CBDR, and the EU’s role within this process. As such, the inductive coding of how various international actors positioned themselves in the debates on the (re)interpretation of the CBDR organizing principle has enabled us to identify the most vocal actors and the key narratives and contestation topics within the discourse on CBDR. The contestation of the EU’s interpretation of CBDR represents a case of hard contestation (Johansson-Nogués, Vlaskamp and Barbé, this volume), since it was neither diffuse nor did it take silent forms. The deliberative contestatory process consisted of direct and clearly conflicting positions taken by the various contesters. As our analysis has shown, developing countries voiced strong verbal protests against a reinterpretation of CBDR. In a number of cases, they directly opposed the EU’s proposals for dynamic interpretations of CBDR with very critical and strong moral arguments. The most vivid example to illustrate this argument is Saudi Arabia’s statement on behalf of the LMDC group, describing “other parties’ comments on the evolution of CBDR … as ‘illegal’” (ENB 619).

Outcome: The EU Building Bridges Between Contesters? The EU is at the forefront of addressing climate change internally and externally with, on the one hand, promoting relatively ambitious climate targets in its internal legislation and, on the other, promoting ambitious global climate action in bilateral relations as well as in the UN framework (Kilian & Elgström, 2010). The EU has been considered as one of the driving forces in the negotiations that led to the adoption of the 2015 Paris Agreement (Biedenkopf & Walker, 2016; Oberthür & Groen, 2018; Parker, Karlsson, & Hjerpe, 2017). While the EU clearly joined the camp of proponents of a reinterpretation of CBDR so as to reflect the changed realities of climate change, it positioned itself in a more accommodating role than some of the other developed countries that defended a harder stance on abolishing bifurcation. The EU attempted to take on the role of a bridge builder by reaching out to highly climate vulnerable countries (Biedenkopf & Walker, 2016) but also by being less vocal and tough in the deliberative process of the negotiations, as shown by our analysis. When confronted with hard contestation as exercised by a number of developing countries,

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the EU engaged in some reconciliatory efforts and attempts to build bridges between the hard stances. External contestation of EU climate leadership is however not a new phenomenon. The EU was harshly criticized for its failure to lead during the 2009 Copenhagen climate summit. One of the key points of criticism was the lack of search for balance, inclusiveness and understanding toward developing countries (Bäckstrand & Elgström, 2013; Groen & Niemann, 2013; Schunz, 2015; Torney, 2015). As such, the EU’s engagement in the negotiations of the 2015 Paris Agreement and of the reinterpretation of the organizing principle of Common but Differentiated Responsibility provided for a particularly relevant test case to assess the EU’s authority and legitimacy in the global effort to combat climate change. The EU’s attempts at building bridges arguably positively affected its legitimacy in climate governance. Our analysis of the deliberative discourse on CBDR shows that the EU took two broad stances: On the one hand, it aligned itself with the mainstream developed countries’ calls for more dynamic CBDR interpretations, advocating for a common framework including all Parties. These views were shared by other vocal developed country actors like the USA, Australia, and Switzerland. On the other hand, there were also instances in which the EU seemed to have deliberatively chosen not to align itself with the more hardline positions (e.g., repeated calls for ending binary divisions by other developed countries) and instead chose more balanced language, thereby promoting more of a middle-ground stance. This comparatively compromise-oriented position can be interpreted as one of the EU’s strategies to build further common ground on reaching a new climate consensus on the road to Paris. As such, the choice for a firm, yet at the same time compromise-building approach to promote its own interpretation of CBDR, despite being faced with hard contestation by developing countries, arguably had a positive effect on the EU’s perceived legitimacy in the global climate negotiations. As such, the EU seemingly was willing enough and able to deal with the hard external contestation. This led not only to a strengthening of its own legitimacy as an actor in climate politics but also to a strengthening of CBDR as an organizing principle codified in the 2015 Paris Agreement.

Conclusions This chapter analyzed the contestation through deliberation of the organizing principle of Common but Differentiated Responsibility (CBDR) in the four-year negotiation process that culminated in the adoption of the 2015 Paris Agreement. Our analysis of various statements pertaining to Parties’ CBDR interpretations and of contestation patterns within the deliberative discourse on CBDR in the UNFCCC negotiations revealed that the EU pursued a firm, yet compromise-building approach to promote its own interpretation of CBDR. Faced with hard contestation by developing countries, the EU engaged in a less hardline discourse than some of the other developed countries.

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This in-depth case study of the deliberative mode of contestation identified the main actors who contested interpretations of CBDR and the topics of contestation that shaped the debate, with a focus on the EU’s position and discourse. Among the 14 most vocal actors in the debate on how to (re)interpret CBDR in the Paris Agreement were four developed country actors (Annex I countries) that were confronted with a majority of ten developing country actors (non-Annex I countries). As such, a divided actor constellation of two opposing camps became apparent. On the one hand, developing countries, and in particular high-emission non-Annex I countries like China, India, and Brazil pursued a strong interest in a strict interpretation of CBDR, calling for continued bifurcation and continued asymmetrical responsibility structures. On the other, developed countries pursued their interests in more dynamic interpretations of CBDR, to be translated into a common climate action framework that is inclusive toward all Parties. They particularly stressed that those countries in a position to engage in ambitious action and that had become major GHG emitters should adjust to changed realities by taking on more responsibilities. In these debates, the EU took two broad stances. First, it often aligned itself with the mainstream developed countries, most prominently the USA, Australia, and Switzerland, in promoting dynamic CBDR interpretations. Second, there were also instances in which the EU took less hardline positions (e.g., less vocal on opposing binary divisions) compared to other developed country Parties, thereby differentiating itself from them and instead promoting more middle-ground stances. This relatively compromise-oriented position can be interpreted as one of the EU’s strategies to build further common ground on reaching a new climate consensus on the road to the Paris Agreement. Such a compromise-building argument can also be found in calls for a balanced approach in the Council Conclusions on Climate Diplomacy of July 2015 (Council of the European Union, 2015a). In conclusion, the EU sought to promote its own (re)interpretation of CBDR and to build a compromise understanding of what the principle of Common but Differentiated Responsibility should mean in future climate governance, despite hard contestation expressed by developing countries. Its bridge-building positioning positively affected the EU’s perceived legitimacy in the global effort to combat climate change. The deliberative process resulted in a reinterpretation of the organizing principle of CBDR and its underlying fundamental norm of equity in the 2015 Paris Agreement that reflects a compromise between the two opposing camps. Acknowledgement The research benefitted from funding from the University of Leuven Special Research Fund: C1 Project CONNECTIVITY

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Schunz, S. (2015). The European Union’s climate change diplomacy. In J. A. Koops & G. Macaj (Eds.), The European Union as a diplomatic actor (pp. 178–200). London: Palgrave Macmillan. Torney, D. (2015). European climate leadership in question: Policies toward China and India. Cambridge, MA: MIT Press. Torney, D., & Cross, M. A. K. D. (2018). Environmental and climate diplomacy: Building coalitions through persuasion. In C. Adelle, K. Biedenkopf, & D. Torney (Eds.), European Union external environmental policy, rules, regulation and governance beyond borders. Cham, Switzerland: Palgrave Macmillan. United Nations Framework Convention on Climate Change (UNFCCC). (2012). Report of the Conference of the Parties on its Seventeenth Session, held in Durban from 28 November to 11 December 2011. Decisions Adopted by the Conference of the Parties. FCCC/CP/2011/9/Add.1. Available at: http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf#page=2. Last accessed on 28 June 2019. United Nations Framework Convention on Climate Change (UNFCCC). (2015). Paris Agreement. Available at: https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement. Last accessed on 28 June 2019. van Schaik, L., & Schunz, S. (2012). Explaining EU activism and impact in global climate politics: Is the Union a norm- or interest-driven actor? Journal of Common Market Studies, 50(1), 169–186. Voigt, C. (2014). Equity in the 2015 climate agreement. Lessons from differential treatment in multilateral environmental agreements. Climate Law, 4(1–2), 50–69. Voigt, C., & Ferreira, F. (2016). Differentiation in the Paris agreement. Climate Law, 6(1–2), 58–74. Walker, H., & Biedenkopf, K. (2018). The historical evolution of EU Climate leadership and four scenarios for its future. In S. Minas & V. Ntousas (Eds.), EU climate diplomacy: Politics, law and negotiations. London: Routledge. Wiener, A. (2014). A theory of contestation. Heidelberg: Springer.

Franziska Petri is a Ph.D. candidate at the Leuven International and European Studies (LINES) and at the Leuven Centre for Global Governance Studies, KU Leuven. She is a doctoral researcher at the interdisciplinary research programme CONNECTIVITY at KU Leuven. Her research focuses on European Union foreign policy and international norm contestation, with a particular focus on the USA, the EU, and core values and principles of international relations. Katja Biedenkopf is an Associate Professor at the Leuven International and European Studies (LINES), KU Leuven. Her academic research focuses on the external effects of European Union environmental and climate policy, climate diplomacy, and climate/environmental policy in the USA, China, South Korea, and South Africa. Previously, she was Assistant Professor at the University of Amsterdam and a postdoctoral researcher at the Free University Berlin. Her research has been published in journals including Global Environmental Politics and Environmental Politics.

Chapter 4

China Contestation of the EU’s Promotion of the Responsibility to Protect: Between Solidarists and Sovereignists Lluc López i Vidal

The EU has found itself at the centre of a set of intense norm contestation processes in recent years. Across the spectrum, the liberal order based on democracy, the rule of law, free trade and the protection of human rights supported by Western countries is being challenged by some forces that have articulated a new illiberal order characterised by authoritarian regimes, parallel institutions and specific value systems that propose alternatives views on this Western-led order (Boyle, 2016). China represents one of the alternatives to the Western-centred liberal order that questions some core principles such as the principle of humanitarian intervention or, more recently, the “Responsibility to Protect” (R2P). The Rise of China as a global power has posed several challenges to the status quo powers and, as such, the EU is highly concerned with the role China is playing reinterpreting the international liberal order. The EU and China represent two international actors with clearly differentiated identities, perceptions and ideas about the rules which should guide the international system. As stated by former European Commission President José Manuel Barroso in 2007, “We are one of the most important, if not the most important, normative powers in the world” (Barroso, in Manners, 2008). Therefore, in its own view as a normative power (Whitman, 2011), the EU has supported not only the solidarist principles that the Union deems appropriate and convenient (March & Olsen, 2011), but also the principle of intervention in cases of humanitarian crisis. By challenging the principle of sovereignty, the EU is challenging the Westphalian order (Kagan, 2003). In the area of humanitarian intervention to protect civilian population from violence inflicted by their government, the EU and its member states have frequently defended the right and necessity of the international community to intervene in order to stop large-

L. López i Vidal (B) Universitat Oberta de Catalunya, Barcelona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_4

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scale atrocities, humanitarian crises and genocide. As for China, it has continuously refused to apply the right to intervention as a general practice and has only in some cases accepted intervention under the United Nations (UN) umbrella or backed by regional organisations. This rejection has been evident in cases such as Darfur or the crisis of Syria, where Beijing has used its veto right against some Western proposals to impose sanctions on the Assad regime. In other cases, such as in Libya, China has supported the view that the international community has a responsibility to protect civilians in armed conflicts in the name of humanitarianism. However, as referred by some experts, humanitarianism for China is something good, interventionism is a bad practice and, hence, humanitarian intervention is the “tantamount to marrying evil to good” (Thakur, 2006). The result of these two alternatives and competing Weltanschauungen is a deep and ongoing normative contestation about the importance of humanitarian intervention and its relationship with the principle of sovereignty. From the crisis in Kurdistan (1991) to the conflict in Yemen (2019), the principle of non-intervention has been contested by some Western countries in what has been described as the “most important shift in our conception of sovereignty since the Treaty of Westphalia” (Slaughter, 2006). Accordingly, the EU has taken the lead in the promotion of the principle of the R2P through international human rights law, international humanitarian law and international criminal law. As stated in the Global Security Strategy 2016, in order to accomplish the aforementioned goal, the EU will support the UN Human Rights Council, the International Criminal Court and the International Court of Justice. The topic of this chapter is China’s contestation of norms defended by the EU such as the principle of humanitarian intervention and the R2P. The analysis will focus on what has the Chinese contestation of the norm been and how has this contestations affected the legitimacy of the values inherent to R2P that the EU defends. This chapter will explore the Chinese and the EU stance on these type-1 and type-2 norms and discuss their reaction to a set of concrete humanitarian crises situations (Darfur, Libya and Syria). It will compare and contrast Chinese views with the EU and its member states and explain how China’s norm contestation has influenced the Union’s approach to humanitarian crises and the current multilateral order. The research method of this chapter is based on an analysis of the most relevant primary sources such as official documents, speeches and declarations. We will also make use of material from interviews with Chinese and Spanish China scholars in 2019. Finally, we will also rely on the literature on China and the R2P, both from Western and non-Western scholars in academic journals.

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The Tension Between the Norm of Sovereignty and the Principle of Humanitarian Intervention in European and Chinese Perspective: The Responsibility to Protect Sovereignty has been the cornerstone of the Westphalian system as a fundamental norm that embodies the idea that each state not only has authority over specific territories and population, but all countries are formally equal in rights and duties. The principle has also been crystallised in the UN Charter, whereby all members shall refrain from the use of force against the territorial integrity or political independence of any state, as well as interference in matters of domestic jurisdiction. As a corollary, the use of force in the hands of the Security Council can only be exercised by member states calling upon the right of self-defence and collective self-defence invoked in article 51 of the UN Charter. Moreover, the Charter also states in its preamble and in articles 1.3, 13.1, 55 and 76 the promotion and protection of human rights and fundamental freedoms as one of the defining objectives of the organisation. Therefore, this goal could be implemented by the Security Council of the UN in accordance with Chapter VI on peaceful means such as diplomatic negotiation, mediation, conciliation, arbitration or judicial settlement; Chapter VII on the use of force, or Chapter VIII on regional agreements. Despite such inherent principles, during the Cold War the fundamental norm of sovereignty was at odds with the norm of human rights. The bipolar context prevented further action by the Security Council to approve military interventions to protect human rights, and it was only first employed in Northern Iraq (1991), Somalia (1992), Bosnia and Herzegovina (1993), Haiti (1995) and Liberia (1997). Great powers’ priority was order rather than the enforcement of human rights (Bellamy & Wheeler, 2017). Nevertheless, once the Cold War ended, the tension between the principle of sovereignty and the universal protection of human rights notably heightened. In addition to the end of the ideological conflict, the proliferation of intrastate armed conflicts of the 1990s and the need to tackle those domestic problems accounts for the tension between both principles (Barbé, 2013). As a sight of this growing role of the UN, the Security Council approved between 1990 and 1993 more than 250 resolutions, a notable amount if we compare it with the period 1980–1989, when only 184 resolutions were passed. Among them, in cases such as Somalia, Liberia, Rwanda, Haiti or Sierra Leona, some resolutions incorporated, for the first time, justifications for humanitarian intervention (ibid.). The original idea of humanitarian intervention can be traced back to the concept of Human Security developed by the 1994 UN Development Program (UNDP) Report.1 The introduction of this norm changed the way of conceptualising security by emphasising other forms different from the notion of national security, nonintervention or territorial integrity. The 1994 UNDP Report defined security in a 1 Economists Mahbub ul Haq and Amartya Sen, from Pakistan and India respectively, conceptualised

the concept of human security. They both challenged the traditional relationship between development and economic growth, adding other variables such as poverty, political freedom, health care or education.

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broader sense including non-military threats in other areas such as economy, food, health, environmental, personal, political or community security. In addition to its multidimensional nature, human security represents, from the beginning, an attempt to put the individual at the very centre of security to expand the variety of challenges that can be identified to threaten individual safety and its well-being (Acharya, 2001). Notwithstanding the previous NATO’s intervention in Kosovo (1990), following a military campaign against Milosevic without a UN Security Council resolution, arose many legal and political doubts among observers on the conditions upon which humanitarian intervention can be justifiable. With this concern in mind, in September 1999, Kofi Annan’s speech to the General Assembly of the UN claimed the need to embrace the norm of humanitarian intervention under some circumstances to protect civilians at risk of genocide or mass killings (Annual Report to General Assembly, 1999). In February 2001, a group of experts invited by the government of Canada decided to debate about the scope of humanitarian intervention in the International Commission on Intervention and State Sovereignty (ICISS) in London, co-chaired by former Australian Foreign Minister, Gareth Evans, Mohammad Sahoun, an Algerian Diplomat and Canadian political scientist Michael Ignatieff. In an effort to avoid the word “intervention”, they suggested using the expression R2P to express the need of sovereign states to only protect their own people at risk, but also to intervene in those countries which are unable or unwilling to protect its population. As pointed out by Bellamy and Wheeler (2017), the final report produced by a group of experts and entitled Responsibility to Protect was an attempt to change the focus away from the right of intervention towards a new approach based on the protection of the victims. Barbé (2013) even goes further and affirms that the R2P became a normative framework to overcome the contradiction between the established norm of sovereignty and the emerging norm: humanitarian intervention. How can the international community, taking into account Chapters VI, VII and VIII of the UN Charter, respond to the first signs of atrocities or violation of human rights in cases where governments do not want or are not able to prevent such violations? In those cases, the principle of non-intervention yields to a subsidiary responsibility to protect population from harm, and it comprises the responsibility to prevent, to rebuild and to react (Bellamy & Wheeler, 2017). As stated in the Report, the foundations of the military intervention for human protection should be extraordinary and exceptional and based on large-scale loss of life (i.e. genocide) or ethnic cleansing. In addition to this, the ICISS has argued that military action needs to be justified by certain principles such as the just cause, right intention, last resort, proportionality, reasonability and the right authority, such as the authorisation of the Security Council. After the report at the ICISS, and the posterior debates within the UN between solidarists (led by Western countries) and sovereignists (led by China, Russia and Brazil), the norm of the R2P was formally adopted at the 2005 UN World Summit and its Outcome Document was finally adopted as a General Assembly Resolution. Ever

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since the Summit,2 R2P has been considered a new organising principle based on the moral obligation of sovereign states along with the UN to protect the individuals in four cases: genocide, war crimes, ethnic cleansing and crimes against humanity. Only one year after the 2005 World Summit document was approved, the Security Council Resolution (2006) on protection of civilians in armed conflict reaffirmed the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity (UN Security Council resolution 1674, 2006a). Moreover, Secretary-General Ban Ki-moon designated Edward Luck as his Special Adviser to promote the principle. The doctrine of the R2P began to take shape as a consequence of the need for consensus on two fundamental and apparently contesting principles: non-interference and the protection of civilians. Since the purpose of the concept is to become universal, UN General Secretary Kofi Annan presented in 2009 a strategy to apply the principle based on three tenets: the sovereign responsibility of states to protect, the international community responsibility to encourage states to protect by assisting them in the prevention those crimes and finally the international community’s responsibility to respond to any threat in a timely and decisive manner. If and when measures contemplated in Chapters VI and VIII are deemed inadequate, the use of force may be invoked. What is the EU’s position vis-à-vis the R2P, and which are its motivations and interests? The EU has supported not only universal values such as peace, human rights, democracy and the rule of law but also the principle of intervention in cases of humanitarian crisis, fragile states or situations where civilians are at risk of genocide or mass killing. The term R2P started to be employed by the EU after the World Summit in the Document Consensus on Development (5 November 2005) and on the EU Consensus on Humanitarian Aid. In both documents, and challenging the Westphalian norm of sovereignty, Europe is trying to adopt the principle of the R2P people from violations of humanitarian law and atrocities. As stated by Ambassador Joanne Adamson acting as Deputy Head of Delegation at the UN General Assembly “[T]he R2P has been made an integral part of the Global Strategy for the EU’s foreign and security policy” (European Union Statement, 2018). For this purpose, the EU stands for a strengthened role for regional organisations in accordance with the principle of multilateralism. As a supporter of this principle, it has found some allies in the international community to further develop the concept such as the members of the African Union (AU), the Economic Community of West African States (ECOWAS) or the Organization of American States (OAS). In this regard, the EU acknowledges the existence of not only legal arguments but also moral justifications supporting the R2P. As stated by EU ambassador to the UN at the General Assembly in June 2018: “[w]e encourage States to voice their support to the principle of the Responsibility to Protect [and], we would welcome the inclusion of the Responsibility to Protect as a formal item in the agenda of the General Assembly’s coming sessions.” (European Union Statement, 2018). Unsurprisingly, since the Global Summit of 2005, the EU has advocated for a broad interpretation of 2 After

the report at the 2005 UN World Summit, the concept has been further developed by the 1674 (2006) and 1894 (2009) Resolution by the UN Security Council.

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the R2P to include not only preventive and assistance measures, but also the right to intervene in some specific cases. However, beyond this rhetoric on the R2P, a more nuanced picture of all official documents and the corpus of the European security policy shows that, as in other aspects of the foreign policy, there is no consensus within the EU regarding priorities and instruments when mass atrocities are taking place. While the European Parliament, and in general, civil society are some of the most active supporters of the R2P, its members states are divided over the third pillar, that is, coercive measures. Although all member states support the protection from atrocities in a general sense (Dembinksi & Rienold, 2011), three different stances on the topic coexist in the EU. A first group of countries with a clear record of colonial history openly support military intervention as embedded in the principle. The French White Paper on Defence and National Security of 2008 and 2013 indicates that in situations of humanitarian crisis, France will military intervene through multilateral initiatives and avoiding unilateralist missions (Mallet, 2008). In his position, however, the lack of legitimate invocation of R2P does not impede justifying military intervention. As pointed out by French Foreign Minister Bernard Kouchner, regarding the floods in Myanmar and the need to intervene under the norm of R2P: “Aid might have to be imposed if the military regime refused to cooperate” (Dembinksi & Rienold, 2011). In a similar vein, the UK equally claims a right to military intervention in some humanitarian crisis based on the use of strictly necessary and proportionate force as a last resort (House of Commons Foreign Affairs Committee, 2018). However, it does so justifying international interventions without UN Security Council approval such as in Kosovo (1999) or Sierra Leone (2000). Beyond its rhetoric of humanitarianism, the British National Security Strategy of the UK (2008) states that the R2P can be observed as a political instrument to military intervene without the authorisation of the Security Council, and, at the same time, without constraining its freedom of movement on the Council (Brockmeier, Kurtz, & Junk, 2013). Like France, the UK shows a particular disposition to interact in international crisis as a pragmatic way to maximise its national interests and keep its zone of influence. There is a second group of members states led by Germany are cautious of being entangled in conflicts, and a third one which is critical about the application of the R2P norm, e.g. Italy or Spain. Those heterogeneous groups support the first and second pillars of R2P (prevention and rebuilding) observing the fight against the root causes of conflicts along with local authorities a key instrument in tackling problems related to atrocities. They, however, remain vigilant regarding the third pillar of military intervention for fear of its use of the R2P principle to justify regime change. Consequently, consensus on how to implement measures to protect populations is still absent, and debates among members with different views are intense. For Smith (2018), this is as much the result of different national interest competing in different global scenarios, as of the effect of a lack of institutional mechanisms to prioritise atrocity prevention in European foreign policy. However, and despite said lack of consensus about a common position on the R2P and how to implement it, most European governments, the European Parliament and European civil societies

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have stirred the global debate over the need to protect. As pointed out by Brockmeier et al. (2013), the EU is the only actor of the current century to unambiguously support the idea and be “at the forefront of the global debate over R2P”. China, on its hand, has been an advocate of the principles of sovereignty and non-interference since the very creation of the People’s Republic of China (1949), and ever since, it remains reluctant to be enmeshed in domestic crisis, emphasising its desire for neutrality through its abstentionist stance.3 Xi Jinping has stated that the two principles have become a basic norm governing state-to-state relations, a particular vision of its “Asians for Asians” (Panda, 2014). In 2014, Foreign Ministry spokeswoman Hua Chunying similarly declared that “the principles [of sovereignty and non-interference] have withstood tests, been accepted by an increasing number of countries, become the tenets governing international relations and played an important role in safeguarding world peace and development”(ibidem). In the post-Cold War period, China’s strong commitment to the norm of sovereignty4 has not been replaced by any other norm. Instead, Beijing has gradually adapted its foreign policy to the new international environment. In its new role as a “responsible stakeholder”,5 China has been actively involved in multilateral structures, where Beijing can use its influence not to refuse the rules of the international system, but to reshape them to better serve its interests (Ikenberry, 2008). A good example of the Rise of China has been its participation in several UN peacekeeping missions in conflicts of intrastate nature such as Cambodia (1992), Liberia (2003), Côte d’Ivoire (2004), Lebanon (2006) or South Sudan (2011). These peacekeeping operations are seen by China as, on the one hand, a way to project an image of respect towards the liberal order while signalling its peaceful rise before the international community. On the other hand, China observes this a form of norm contestation between the sovereignty and the principles of human rights. China’s flexibility regarding the first principle is rooted in the idea that participation and dialogue, as opposed to disengagement, will help Beijing to shape UN peacekeeping strategy and make it suitable with its foreign policy preferences (Huang, 2017). As a consequence of Beijing’s proactive attitude during the post-Cold War and coinciding with a more active Security Council towards crisis management, China 3 Both fundamental norms were enshrined by Mao Zedong’s view of its “Five Principle of Peaceful

Coexistence” (1954), in particular, the mutual respect for sovereignty and territorial integrity, nonaggression, and non-interference in other’s internal affairs, equality and mutual benefit and peaceful coexistence. 4 Three main variables can explain China’s strong commitment to both principles. The first one is related to the so-called century of humiliation, a period of Western intervention that affected China’s integrity and independence since 1839 until the end of the Japanese invasion of China (1945). The second motivation is associated with the ideological dimension of China’s Foreign Policy such as Beijing’s anti-imperialist sentiment or the non-alignment movement. Finally, the support to integrity is related to security concerns during the early stages of the Cold War. As stated by Zhong (2014, p. 91), China estimated there was a high risk of intervention by the USA, and as a consequence, Beijing opted for a defensive principle of non-interference. Considering the proxy wars of the Soviet Union and the UN, China was distrustful of any intervention in domestic affairs. 5 Stated at the Remarks to National Committee on U.S.-China Relations. https://2001-2009.state. gov/s/d/former/zoellick/rem/53682.htm.

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has become one of the most diligent contributors to peacekeeping operations. Beijing has not only implemented traditional non-military operations, but it has also accepted the use of force when there is an explicit Security Council authorisation and local consent is guaranteed, such as in Somalia, Congo or East Timor (Zhong, 2014). In 2019, China was already the major troop contributor and the second largest financial contributor and has dispatched a total of approximately 35,000 troops and 2,700 police to peacekeeping operations. Since the early stage of preparation at the 2005 UN World Summit on R2P, the Chinese government has been very attentive to the conceptualisation of the norm to prevent a fully-fledged right to intervention by Western powers. According to the Chinese authorities, the R2P is acceptable to accomplish the first pillar—protection responsibilities of any state—and the second—assistance to those states—but they remain very critical towards the possibility to use military force. In addition, during the ICISS, some specialists suggested the need to specify which mechanism should function in cases where the Security Council was deadlocked. China perceived this approach as a “free hand” to Western intervention anywhere at any time. In some areas of the world, powers are following a competitive humanitarian intervention strategy, in other words a competition among powers to intervene in those countries they attempt to exercise influence. As a consequence, China has shown its reluctance to operate without the UN authorisation. The Chinese government finally endorsed the 2005 Summit Outcome Document and the Security Council Resolution 1674 (2004) on protection of civilians in armed conflicts, and although it accepted a new conceptualisation of the norm of sovereignty, the final document was a soft version of its previous draft. On the one hand, China and Russia’s criticism led to a removal of the criteria for military intervention without UN Security Council authorisation. On the other hand, China has accomplished its goal to remove the broad concept of “large-scale loss of life” from the previous document and, instead, a narrow typology of violence limited to four cases has been accepted: genocide, war crimes, crimes against humanity and ethnic cleansing (Garwood-Gowers, 2016). This intense activity by China trying to reduce the relationship between interventionism and R2P has limited the EU’s ability to influence normative structures.

Mode of Contesting the Responsibility to Protect: The Crisis in Darfur, Libya and Syria As it has been outlined in the introduction of this book, norm contestation involves a vast array of practices of disapproval of fundamental norms, their organising principles or standardised procedures (Wiener, 2014; Johansson-Nogués, Vlaskamp, & Barbé, this volume). In this section, our focus is placed on determining what specific modes of norm contestation the EU experiences vis-à-vis China in three different

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cases: Darfur, Libya and Syria. It is our goal to discuss which of the four sorts— arbitration, deliberation, contention or justification—we observe in contesting the R2P. First, the crisis in Darfur in 20036 broke out after the decision of the government of General Omar Bashir to bomb the rebels and to start a campaign of ethnic cleansing against the non-Arabs. As reported by the UN Human Rights Council, more than 400 villages were destroyed, hundreds of thousands of civilians were killed, two million people were internally displaced, and another 250,000 had to flee abroad, primarily to Chad. As stated by the High Commissioner of the UN Bertrand Ramcharan in May 2004: “It is clear that there is a reign of terror in Darfur.” (United Nations Human Rights Office, 2004). The UN declared it a massive human rights violation that was preventing the security and human dignity of people living in Darfur. At the same time, Western countries denounced the situation in Darfur as a clear example of genocide, claiming for urgent humanitarian assistance and requesting the AU to protect civilians. After the failure of the deployment of 300 peacekeepers to Sudan, with the permission of the Republic of Sudan in September 2004, the Security Council issued Resolution 1564 denouncing the lack of commitment of the Sudanese government and urging all member states to support the AU. At the end of 2004, the need for European and Chinese involvement in the conflict was evident. The original motivations for both actors to be enmeshed in a conflict regarding a region which is distant from the EU and from China’s borders were varied. First, several European countries and China had an economic interest in a country that was experiencing an oil boom. Both Brussels and Beijing considered Sudan a crucial element in their African strategy as they were looking to diversify energy flows and reduce their oil dependence on Russia and the Middle East, respectively. Both were also engaged in its efforts to enhance trade, investment and aid packages in a resource-rich continent. Second, the conflict occurred in a region that has been under the influence of European countries—France and the UK—as well as the USA. Therefore, for China the attempt to become an actor in the conflict enabled Beijing to be enmeshed in the traditional great powers’ politics. Moreover, for the EU, it was an opportunity to move beyond its traditional role as a financial aid provider and be able to dispatch European forces and become a security provider of the UN/AU’s peacekeeping operations. Finally, the crisis in Darfur enables both actors to formulate normative competition on discourses about the R2P, presenting an opportunity to shape the concept itself. In the first phase of the conflict, the EU and China both supported the AU intervention in Darfur to provide the required humanitarian assistance. For Europe, the AU was promoting article 2 of its Charter which declares the promotion to the universal values and principles of democracy and respect for human rights, and accordingly, it followed the approach of sending peacekeeping operations. However, for China, the 6 The

crisis started between some semi-nomadic groups and pro-Sudanese government Arabic groups in a region comprised of 6 million people and divided into 100 ethnic groups. In February 2003, The Sudan Liberation Movement and the Justice and Equality Movement accused Khartoum of marginalising the less developed region of Darfur, especially after the growing revenues during the oil boom in Sudan, and demanded power-sharing in the government of the nation.

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peacekeeping operations met two of the underlying conditions that justify the R2P: it was undertaken by a regional organisation with the consent of the Sudanese government, and it did not imply the use of force. As stated by Zhong (2014), Chinese strategy followed the idea of “African solutions to African problems”. In 2004, after several Security Council Resolutions urging for a peaceful solution in Darfur and for protection to civilians and ceasing the violations of human right, the situation reached an impasse (African Union, 1998). When the crisis was discussed again at the Security Council, the EU advocated for further economic considered going beyond crisis management measures and financial support to the AU while also sanctions to put pressure on Sudan. The representative of UK at the 5040 Security Council Meeting went even further and stated: “[i]t is therefore right and entirely consistent with the facts on the ground that the Security Council should again address this issue under Chapter VII of the Charter.” (Security Council Meeting, 2004). The final decision to exert sanctions against Sudan was less coercive than it was expected by the USA and UK position but more than China’s traditional noninterference strategy. The Chinese delegation at the meeting criticised the measures and declared: “China’s position against sanctions remains unchanged. It has been our consistent view that instead of helping to solve complicated problems, sanctions may make them even more complicated” (Security Council, 2004). Although the final Resolution excluded any wording referring to Chapter VII, Beijing abstained arguing that the threat of sanctions would not change the situation. As one official interviewed argued, in Darfur, “we [China] supported humanitarian intervention, but not military intervention. China is more willing to provide humanitarian assistance”.7 Once the conflict worsened from 2004 to 2006, and after several attempts at a ceasefire, the Security Council began to discuss how to put an end to the violence and which measure to adopt against Sudan, as suggested by the USA and the EU. However, a full economic embargo was gradually discarded by the EU member states due to the high economic costs it could inflict upon European oil companies. It was China’s view that imposing economic sanctions would not adequately settle the dispute and would ultimately increase civilian suffering. Beijing interpreted the norm of intervention not as a mechanism to defend political rights, but as a tool to fight against social and economic problems. The Chinese delegation to the Security Council declared: “[w]e must provide emergency humanitarian relief and funding to remove the genuine obstacles to humanitarian assistance” (Security Council, 2006b). Chinese diplomats affirmed that the essence of the crisis in Darfur was development, and it could only be solved through a trilateral mechanism comprising the UN, the AU and the Sudanese government. The following Security Council Resolutions did not, eventually, incorporate the humanitarian intervention as suggested by the USA and the EU, and were only able to freeze assets of the Sudanese political elite and implement an arms embargo. The difficulty of member states with different interests in Africa reaching an agreement about humanitarian intervention limited the use of the R2P to the deployment of a peacekeeping mission (EUFOR) commanded by France. Under harsh criticism 7 Interview

in Shanghai, February 2019.

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for its role in Darfur and amid an international calling for a boycott of what was considered “Beijing Genocide Olympics 2008”, China started to soften its noninterference principle, and contested the norm of intervention embracing the idea of more traditional forms of peacekeeping. In the Security Council, China supported 12 out of 21 resolutions on Darfur (2004–2007), expressed reservations regarding 3 more resolutions and abstained in 6 occasions. Following a pure form of norm contestation by deliberation, China insisted on Sudanese sovereignty, while at the same time promoted the traditional rebuilding capacity of the UN, opposing to broad interpretations of the norm of intervention. Second, in the context of the Arab Spring of 2011, the Libyan conflict was one of the first crucial tests in which great powers had to debate on the advantage of applying the principle of the R2P. Once the situation in Libya escalated, the Security Council accused Gaddafi of crimes against humanity and under leadership of the Lebanese, British and French delegations, the Council unanimously passed Resolution 1970 on 22 February 2011, condemning the violence against civilians and deploring the systematic violation of human rights by the Libyan government, clearly using the language employed in the 2001 Report on R2P. On March 2011, after the Libyan government ignored the resolution, the Council adopted Resolution 1973 in compliance with Chapter VII of the UN Charter and, among other sanctions, imposed a no-fly zone over Libya, an arms embargo and authorised “all necessary means to protect civilians and civilian-populated areas”.8 The Resolution was adopted without any veto and with some abstentions from China, Russia, India and surprisingly, Germany. European members condemned the regime and supported the rebels, while its newly created European External Action Service (EEAS) called for an explicit military action headed by the UK and France. As pointed out by Zhong (2014), the crisis in Libya was a window of opportunity for the EU to promote the normative power of its foreign policy. However, Angela Merkel’s government coalition refused to take part in any eventual military operation as risks of a large-scale loss of life were too high, and there was a real threat of conflict spillover on to neighbouring countries. Thus, Germany pushed for ceasefire negotiations with German Foreign Minister Guido Westerwelle stated that Berlin supported the content of Resolution 1973, but affirmed the German fear that: “military intervention is to take part in a civil war that could go on for a long time. We will not send troops to Libya” (Security Council, 2011). The German criticism on military actions fuelled, once again, the disunity of the European foreign policy. Despite EU consensus in some areas of the Libyan intervention, the European stance towards the Libyan crisis turned to be incoherent, divided and inefficient, harming the EU’s external authority and credibility (Fabrinni, 2014; Koenig, 2011; Miskimmon, 2012). As regards China, its decisión to support Resolution 1970 was in line with its commitment to respect the fundamental norm of non-interference and to promote the concept of the R2P population from mass atrocity by enhancing prevention and 8 The

final document specified the exclusions of “any foreign occupation force of any form on any part of Libyan territory”, an idea that was welcomed by the Chinese Foreign Ministry. https:// undocs.org/en/S/RES/1973(2011).

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assistance. In addition to this, China expected some regional support for the military intervention, apart from the Western alliance. As China’s Ambassador to the UN Li Baodong is quoted saying that China supported the 22-member Arab League and the AU on the establishment of a no-fly zone over Libya although he regretted the failure to include Beijing’s demands not to use force (Ministry of Foreign Affairs of China, 2004). China’s acceptance of Resolution 1970 was not indicative of the acceptance any norm, but “merely a concept [R2P] in need to clarification” (Shesterinina, 2016). However, when the Resolution 1973 draft was discussed among UN members, the inclusion of the words “all necessary measures” triggered China’s veto, since it enables other countries to bomb Libya without the authorisation of the Security Council. Unexpectedly, China decided to abstain from Resolution 1973, generating confusion among governments, practitioners and observers of China’s foreign policy. The abstention of China in Resolution 1973 followed the idea that the R2P norm is not an organising principle, but a concept still contested. In spite of China’s narrow interpretation of the concept, the obvious violation of human rights by Gaddafi was a special and exceptional case to be solved by the international community. In addition to this, when the war broke out in February 2011, there were around 36,000 Chinese working in Libya, 75 companies were operating, most of them oil (around 3% of China’s crude oil imports). After Chinese companies were attacked, President Hu Jintao ordered the largest evacuation operation in the history of the country and sent a frigate and four military aeroplanes to the area (Zhong, 2014). The outcome of Resolution 1973 is well known. The adding of the expression “to take all necessary measures to protect civilians” produced confusion among EU member states and increased their reservations about military intervention. The lack of a common European position on how to intervene and the lack of any European command structure capacity put the EU in an uneasy situation (Dembinksi & Rienold, 2011, p. 21) fretted that such European disunity over a vital conflict in a neighbouring country portended the “disintegration of Europe as a political actor”. Once it was clear that the EU would only play a role as a provider of humanitarian assistance, EU member states began to discuss how to integrate the military intervention in Libya into the NATO command. After several weeks of deliberation, President Nicolas Sarkozy and Prime Minister David Cameron suggested establishing a no-fly zone to prevent Gaddafi’s bombing of innocent population. In spite of the initial refusal by the some European countries led by German to establish the no-fly zone, the support of the Arab League to the Anglo-French initiative finally enable France, the UK and the USA to take over the military operations in the no-fly zone through its NATO framework. In Spring 2011, NATO aircrafts began to strike Libya. Although EU member states supported the R2P human rights and individual freedoms, as stated by Debinski and Reinold (2011), they disagreed on how it would impact on the European security culture, eventually disputing “the exact meaning of the norm”. The reaction of China was a hard condemnation of the military campaign, and Beijing criticised Western countries for their intentions. For some observers, Western media manipulated information about Libya using images on TV to justify “humanitarian intervention”. Chinese disappointment on the use of the R2P projected the idea

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that the norms were “old wine [humanitarian intervention] in a new bottle” [R2P] (Liu & Zhang, 2014, p. 409). Moreover, the sense of deception and betrayal by Western powers after the war in Libya has been considered by Chinese officials as one of the significant failures in Chinese foreign policy, a mistake from which Beijing has learned some lessons (Liu & Zhang, 2014, p. 418). The first lesson was the confirmation that beyond the rhetoric of the liberal nature of the EU, Western countries do not solely intervene for humanitarian reasons, but a mix of national interests and normative motivations. NATO campaign in Libya was confirmation that the EU could intervene in the name of R2P to follow its own political agenda. The second lesson from Libya relates to the consideration that given the absence of an impartial mechanism to decide when the right to protect is permissible (Bellamy, 517), there is a high risk of potential misuse of the concept by Western countries. The strategy of contesting norms by deliberation within the UN had proved inefficient. As one Chinese official interview pointed out: “[t]he abuse of unilateral intervention can lead to a perversion of the concept. The best way for protection is rather a prevention, not intervention à la carte.”9 After the results of its norm contestation strategy in Libya, the Chinese government assumed a more confronting strategy vis-à-vis the use of the concept R2P. The government affirmed that would evaluate every case in depth before resorting to Chapter VII of the Charter of the UN. In principle, this means that China will not intervene in a country if Beijing is not certain that intervention would ameliorate the crisis situation. Third, the conflict in Syria began as a contagion effect of the Arab Spring protests that took place across North Africa and the Middle East, where hundreds of thousands of people demonstrated against several oppressive regimes in 2010–2011.10 According to the UN Human Rights Council, the regime of Bashar al-Assad committed war crimes and crimes against humanity, such as the use of chemical weapons against civilians, the bombardment of populated neighbourhoods and villages, as well as arbitrary executions and enforced disappearances.11 Once the Security Council started to discuss the Syrian crisis in April 2011, the European member states of the Council, with the support of the USA, acted with a single voice stressing the responsibility to avoid any violence or aggression, and urging for an intervention to stop the massacre. In October 2011 France, UK, Germany and

9 Interview

in Shanghai, February 2019.

10 In Syria, the protests started when opposing groups to President Bashar al-Assad called for the end

of the regime and the celebration of elections. The government in Damascus was rapidly supported by Russia, Iran and Hezbollah, while the rebels were backed by a US-led coalition of countries comprised by France, UK, the Netherlands, Australia, Belgium, among others. Although it is not the place to describe the complex conflict in Syria, it is worth mentioning that the war has caused about 500.000 deaths, six million internally displaced refugees, almost 6 million Syrians refugees and 13.1 million people in need of humanitarian assistance. 11 The Resolution 21/26 had the negative vote of Russia, China and Cuba. https://documents-ddsny.un.org/doc/RESOLUTION/GEN/G12/176/37/PDF/G1217637.pdf?OpenElement.

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Portugal presented a draft resolution at the Security Council condemning the systematic human rights violations and considering to take measures such as sanctions and arms embargo (Security Council Meeting, 2011). Since then, the EU has approved more than 20 sanctions of different nature such as financial sanctions, embargo on oil or the prohibition to enter Europe for some members of the government. As a reaction of the humanitarian catastrophe in Syria, the EU has allocated more than e10 billion in humanitarian aid and has also promised almost e5 more billion between 2018 and 2020 on key sectors such as food, health, shelter and emergency household items, water, sanitation or hygiene (European Commission, 2016). After the negative vote of Russia and China under the justification that it was part of a regime change strategy, the Council refused the proposed draft. In the aftermath of what China considered “the lessons from Libya”, Beijing has been reluctant to any humanitarian intervention under the principle of R2P beyond the scope of the UN Security Council. At the beginning of the crisis, Beijing expressed its concern about the situation in Syria and promoted a peaceful solution through dialogue, counterterrorism measures and a reconstruction plan as three key points for solving the Syrian issue. As stated by the Chinese Foreign Minister in November 2011 “[d]ialogue and negotiation are the only way out for solving the Syrian issue” (Ministry of Foreign Affairs, 2018). However, it has firmly opposed to any military involvement in regime change under the third pillar and has maintained its commitment to safeguard the norm of sovereignty, independence and territorial integrity of Syria. In addition to the lessons learnt from the Libya experience, China’s reluctance to apply the concept of the R2P can be explained by the different interests, and motivations of its China strategy towards the Syrian government. First, China has an interest to counter Western power projections in the Middle East in order to increase its own leverage in the region. As pointed out by Ramani (2016), Xi Jinping’s position of avoiding any military campaign in the Syrian conflict has strengthened its alliance with both Iran and Saudi Arabia, effectively enhancing its global reach. Second, China is fighting against terrorist groups in Syria which have connections to the Uighur Muslim movements in the Chinese Northwest region of Xinjiang. For Beijing, the separatist movement of the Uighurs poses a clear threat to Chinese integrity and sovereignty. Finally, China perceives Syria as a relevant component in its Belt and Road Initiative, an ambitious plan proposed by President Xi Jinping to connect the Eurasian continent through a series of infrastructure, trade and investment projects that link China and some 65 other countries and which represents over 30% of global GDP, 62% of population and 75% of oil reserves (World Bank, 2018). Syria is located in the middle of this hub, and therefore, China has an interest in the reconstruction once the war is over, and the construction of new infrastructures linking both continents. As we have seen in those three cases, China has been contesting the R2P norm to varying degrees. In Darfur, China pursued an indirect contestation of European’s efforts to impose sanctions against the Sudanese government, abstaining but not vetoing UN resolutions regarding economic and financial sanctions. Both parties even went further and backed the AU’s determination to take the lead in solving the

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problem. In Libya, Chinese contestation of the EU’s originally followed the principle of non-intervention and claimed for a peaceful solution and political dialogue. However, as the conflict escalated, China softened its norm contestation intensity and voted in favour of Resolution 1970 accepting the imposition of sanctions on Gaddafi. Finally, in Syria, China’s protests or vetoes against European attempts to pass a resolution to intervene against Damascus signalled a harder contestation from Beijing on the R2P. Without sufficient power to defend it at the Security Council, the EU was unable to secure the norm, thus hurting its legitimacy.

Outcomes of an Intensive Norm Contestation: Towards a Responsible Protection? In this last section, we address a final set of questions related to the results of the intensive norm contestation described in this chapter. Firstly, what has been the outcome of the Chinese contestation of the EU-backed version of the R2P in terms of concrete proposals? Secondly, how does the norm contestation influence the ultimate authority and legitimacy of “global Europe’s” norm promotion and/or defence? To put it differently, has the contention between the EU and China on the principle of the R2P eroded Europe’s capacity to shape global norms? Regarding the first question, Chinese experience first in Darfur and later in Libya and Syria created an increasing interest among public opinion, think tanks and officials to debate about the content and scope of the R2P. As a result, the Chinese government and scholarly community have been trying to develop a concept according to China’s view of minimal use of force, respect for sovereignty and a case-by-case model. As an official claimed in an interview: “[w]e still need a consensus on intervention since in some cases [military] intervention creates a bigger problem”. The Chinese version is known as Responsible Protection and reflects the fundamental norm of sovereignty and the responsibility to protect the population from atrocities. The concept was coined by Ruan Zonge, Vice-President of the China Institute of International Studies (CIIS), a think tank closely related to the Chinese Ministry of Foreign Affairs in a document entitled “Responsible Protection: Building a Safer World”. The document was the result of a CISS international conference with representatives of the BRICS countries, including Brazil and Russia. In his speech, Ruan warned about the “new interventionism” which the concept of Responsibility to Protect represented after the experience in Libya and Syria, and claimed for a new interpretation of the norm. Although accepting the individual and collective responsibility to prevent atrocities, it limited the third pillar on military intervention only to cases where there is a consensus within the framework of the UN. The document identifies the motivations and interests of interventions and introduces some “mechanisms of supervision, outcome evaluation and post factum accountability” for future (military) interventions. Secondly, according to Zonge (XX), the object of the Responsible Protection must be clear and must follow purely

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civilian protection goals. Finally, beyond stressing the last resort cause and limiting the use to the right authority (the UN Security Council), the concept also advocates not for interventionism but for the reconstruction of the state in conflict. Chinese view departs from any attempt to regime change and unilateral intervention and instead introduces the concept of Responsibility to Rebuild already presented in the ICISS. As stressed by Garwood-Gowers (2016, p. 19), the reference to reconstruction initiatives is related to the “implicit criticism of the destabilising effects of previous Western-led military campaigns” in Darfur, Libya and Syria. For China, one of the critical aspects of the concept is to avoid defending civil and political rights—which are culture-depending—but socioeconomic rights. Therefore, the best way to help developing countries in their own economic and social development is by providing them with financial and technical support. Regarding the second question, the European attempt to promote the principle of the R2P as an overcoming of the principle of sovereignty has lost his initial momentum. In the first two cases analysed—Darfur and Libya—the application of the principle of protection incorporated the third pillar of military intervention defended by the EU. In Darfur, following a soft contestation by deliberation, China cautiously refused to adopt economic sanctions to end suffering to civilians. In Beijing’s view, sanctions further complicated existing crisis. As a consequence, the Chinese position was to foster development—first pillar—and focus on multilateral mechanism comprising the UN, the AU or the Sudanese government. In addition to this, China promoted the traditional rebuilding capacity of the UN—second pillar—opposing to broad interpretations of the norm—third pillar. Chinese soft contestation did not have a significant impact on the legitimacy of the EU’s interpretation of the norm. On the contrary, it was reinforced by an international media campaign supporting the intervention. As stated by Zhong (2014), the legitimacy and prestige of the EU and its member states were boosted. In Libya, China went a step forward and after a complex process of norm contestation by deliberation, Beijing abstained from Resolution 1973 and allowed Western countries to adopt military actions in the face of threats by Gaddafi to massacre civilians in Benghazi. After the military campaign operated by the NATO, Chinese fear of abusing the R2P norm was finally confirmed. As stated by Kurtz and Rotmann (2016), the result of norm abuse in Libya was not the undermining of the principle of the R2P, but rather an intense UN debate on how to avoid Western interventionism. For China, beyond the humanitarian rhetoric of the EU, Western countries intervene following not only normative motivations but also according to their national interests and their desire for specific regime changes. The EU’s attempt to implement non-consensual military measures under R2P’s third pillar has to be contested. Lastly, after the “lessons learnt in Libya”, the Chinese authorities assumed a more confrontational strategy vis-à-vis the use of the concept R2P in Syria. On the occasion of the European bid to intervene and stop the massacre, Beijing has been reluctant to any humanitarian intervention under the principle of the R2P and beyond the scope of the UN Security Council. Moreover, it has strongly opposed to any military involvement in regime change under the third pillar and has insisted on its commitment to the norm of sovereignty, independence and territorial integrity of

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Syria. In other words, China has deemed the EU’s position as neo-colonial and with an inherent desire for regime change. The outcome of Chinese’ hard norm contestation of R2P has been an EU retrenchment reflecting a return to more sovereigntists’ positions, and a focus on conflict prevention and peace-building. The emergence of new manners of reinterpreting the R2P such as the Responsible Protection, despite not having a negative impact on the overall EU foreign policy legitimacy, has indeed affected the way the EU conceptualises the norm.

Conclusions As it has been outlined throughout this chapter, in order to transcend the apparent contradiction between the fundamental norm of sovereignty and the protection of human rights, the UN has embraced the norm of humanitarian intervention under some circumstances to protect civilians at risk of genocide or mass killing. In the post-Cold War period, and after some intense debate about the possibility and limits of military intervention in 2005, the UN has embraced the concept of R2P, as a guiding principle in humanitarian intervention. The EU, according to its role of normative power with a capacity to shape principles and the rules of the game, has supported the principle in instances of severe crisis, fragile states or where civilians are at risk of genocide or mass killing. China has insisted on sovereignty and non-intervention as fundamental norms not only for China’s Foreign Policy but for its view on the international system. However, in its expanding role as a rising power, Beijing has occasionally supported humanitarian intervention and the principle of R2P. As a consequence of its involvement in the multilateral system, and more specifically the UN system, Beijing seems to have decided not to refrain from playing a bigger role in the international system but to reshape the rules of said system to serve its interests. Through the analysis of three cases—Darfur, Libya and Syria—the chapter has mapped out the different ways in which China has contested EU’ norms. In the case of Darfur, China’s opposition to the United Nations pro-Western proposal of military intervention followed a soft contestation by deliberation strategy. China deemed that imposing economic sanctions would not solve the problem and interpreted the norm of intervention not as a mechanism to defend political rights, but as a tool to counter social and economic problems. The decisive Security Council Resolution in Darfur did not incorporate humanitarian intervention as claimed by the USA and the European Union, and the principle of R2P was limited to the peacekeeping mission. The Libyan conflict was one of the first tests in which the EU and China have debated on the advantage of applying the principle. The Security Council adopted the Resolution 1973, thereby imposing a no-fly zone over Libya, an arms embargo and authorising military intervention. The abstention of China in Resolution 1973 was motivated by its willingness to protect its citizens and companies in Libya. The sense of deception, betrayal by Western powers and failure of Chinese foreign policy proved that its contestation by deliberation was inefficient.

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Finally, the war in Syria has been identified in the literature as the “the lessons learnt from Libya”, and since the beginning of the conflict, Beijing has been reluctant to any humanitarian intervention under the principle of the Responsibility to Protect. As an alternative, Chinese academia and government have developed the concept of Responsible Protection, a catchword that reflects the fundamental norm of sovereignty and the responsibility to protect the population from atrocities, avoiding new forms of interventionism. As the Rise of China is increasingly affecting the global governance, China’s traditional principle of neutrality and its reluctance to any intervention has been replaced by a new strategy of norm contestation towards the EU operating within the liberal order, not against it. Defending the principle of integrity but at the same time engaging in limited forms or intervention and contesting, China has affected the manner Europe promotes the organising principle of R2P. Even though Chinese contestation has not eroded EU’s foreign policy ability to defend its norms, its promotion of its Responsible Protection has potentially weakened EU’s internal resolve to defend the norm.

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Thakur, R. (2006). The United Nations, peace and security. From collective security to the responsibility to protect. New York: Cambridge University Press. United Nations Human Rights Office. (2004). Press Release. Retrieved from https://www.un.org/ press/en/2004/afr921.doc.htm. Whitman, R. (2011). Normative power Europe. Empirical and theoretical perspectives. New York: Palgrave McMillan. Wiener, A. (2014). A Theory of Contestation. London: Springer. World Bank. (2018). Belt and road initiative. Retrieved from https://www.worldbank.org/en/topic/ regional-integration/brief/belt-and-road-initiative. Zhong, Z. (2014). Ideational divergences between European Union and China: cases of international interventions. Doctoral Dissertation. Luis Guido Carli University and Université Libre de Bruxelles.

Lluc López i Vidal is Associate Professor of International Relations at the Universitat Oberta de Catalunya (UOC) and Adjunct Professor of International Relations at Universitat Autònoma de Barcelona (UAB) and at the Universitat Pompeu Fabra (UPF), Department of Political Science and Administration. He is currently the director of the Master’s in International Cooperation of Development and Humanitarian Aid of the UOC-Red Cross. His research focuses on security in East Asia, Regionalism and Chinese and Japanese politics.

Chapter 5

India’s ‘Silent Contestation’ of the EU’s Perspective on Local Ownership Lara Klossek

Peacebuilding has become a central activity to the international community’s pursuit of sustainable peace. The rising number of violent conflicts over the last decades and the increasing complexity of conflict scenarios have contributed to this development (Strand, Rustad, Urdal & Nygård, 2019). With conflict centres remaining in many parts of the world, such as Somalia, Afghanistan, Yemen or South Sudan, it is likely that the urge for the international community to engage in peacebuilding activities will not end any time soon. Given the weakening of a shared understanding over the right tools to address conflicts and a diversification of actors, we can thereby see an increasing contestation over the norms guiding peacebuilding endeavours. One of these contested norms is the norm of local ownership, i.e. the importance to include the ‘local’ into peacebuilding processes to achieve sustainable peace. The European Union has enthusiastically embraced this norm but has been challenged by other countries and the literature in regard to its inability to successfully implement it (Bojicic-Dzelilovic & Martin, 2018; Dursun-Ozkanca & Vandemoortele, 2012; Ejdus, 2017; Mac Ginty, 2018). The ‘new’ actors on the scene such as the BRICS and other countries from the global south have argued that the European Union and other traditional donors are not moving beyond their liberal peacebuilding approaches, which are often tied to a heavy external intervention in the sovereignty of the host state and hence in their eyes fail to ensure local participation (De Carvalho & De Coning, 2013). At the same time, these new donors have claimed for themselves that their south— south partnerships are more successful in engaging the local population on a horizontal level (Brasilia Declaration, 2010; United Nations, 2018a). India has been particularly vocal in criticising external footprints of traditional donors such as the European Union (United Nations, 2014a). Looking more closely at their discourse

L. Klossek (B) Universitat Autònoma de Barcelona (UAB), Bellaterra, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_5

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at the UN level, it becomes evident that the contestation is thereby not only over the implementation of the norm but also over its content. While previous applications of the norm contestation framework in the field of security have substantively dealt with the organising principle of Responsibility to Protect (R2P), local ownership has not received the same interest (see for instance Glanville, 2015; Hofmann, 2015; Welsh, 2013). The chapter, therefore, sets out to explore why and how India is contesting the EU on local ownership, and how far this is impacting the legitimacy of European Union’s principles and norms. The chapter is based on a document analysis of UN speeches by India and the European Union (125 UN speeches) from 2011 to 2019, other speeches available online that deal with the topic of local ownership and peacebuilding, as well as policy documents which outline India and the European Union’s peacebuilding strategies. The chapter unfolds as follows. The first section gives a background of the norm under contestation and how it emerged in the international system. It further discusses how the European Union understands the norm, and how India, as the contester of the norm, interprets its meaning. Thereafter, the chapter discusses which modes India chooses to express their contestation and how this affects the European Union. Finally, the conclusion gives preliminary findings and offers some theoretical considerations regarding the norm contestation framework.

Whose Peace? Locating Local Ownership Within a Larger Framework of International Norms on Security Governance As local ownership does not stand as an independent principle, it is important to locate it within the larger framework of norms shaping security governance and the ideas on ‘sustainable peace’. This also helps to identify where to place local ownership in Wiener’s (2014) categorisation of different norm types (see also Johansson-Nogués, Vlaskamp and Barbé, this volume). Peace is a fundamental norm laid down in many international treaties. The UN Charter, for instance, names ‘maintaining peace and security’ as one of its founding principles (see article 1 UN Charter). The goal to maintain peace in the international system is therefore largely undisputed. This unanimity over the fundamental norm of peace is not achieved when it comes to questions of implementation. Since the first (ad-hoc) peacekeeping mission in 1948, a range of different tools emerged. Simultaneously, the norms that guide the international striving for peace have been shifting. Most importantly—with the end of the Cold War—there has been a transformation of the conduct of peacekeeping, which moved beyond maintaining order and settling territorial conflicts between states. Traditional peacekeeping, which had been based on the norms of non-intervention, impartiality and non-use of force, was put aside in favour of more ambitious mandates, which include institutional reforms and involvement in state designs, including liberal ideas and putting ‘human security’ at the centre of peacekeeping (Seaman, 2014). Aside

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from a ‘negative peace’ or the aim to stabilise a conflict situation, the international community now strives for a more sustainable peace, addressing the root causes of conflicts and engaging increasingly in post-conflict scenarios. This thinking was later folded into the nascent peacebuilding concept. Formally, peacebuilding was introduced with Boutros Boutros-Ghali’s ambitious Agenda for Peace in 1992, which acknowledged that—aside from conflict settlement—restoration of core governmental functions as well as economic revitalisation are crucial to achieve peace in the long run (United Nations, 1992, 2000, 2009). While traditional peacekeeping had encompassed a relatively clear toolbox and was characterised by a small number of mandate tasks, peacebuilding has materialised as a far blurrier concept. At the UN level, it was presented as an entirely new norm in its own right. In practice, however, there are a number of overlaps with post-Cold War peacekeeping and peacemaking (Edgar, 2019). The outcome is that there is less intersubjective understanding among countries, as to which activities in security governance they would categorise as peacebuilding, and in whose responsibility these activities should fall. One commonality is that everyone seems to embrace the idea of local ownership as a pre-requisite for the sustainability of peacebuilding endeavours. The popularity of this idea is today reflected in its extensive use as a catchphrase among policy makers. All major international organisations, such as the UN, EU, AU, OECD and other aid agencies have endorsed the principle in the discourse and in their policy documents (Ejdus & Juncos, 2018; OECD, 2005, 2008, 2011). The term became popular in the 1990s in the development cooperation discourse and ‘the language of ownership’ as Chesterman (2007) coined it was first used in a document by the Development Assistance Committee of the Organisation for Economic Cooperation and Development (OECD-DAC) in 1995 (Reich, 2006). The reason it emerged is shaped by a critique of existing programmes of, i.e., IMF and World Bank, and at the same time, a recognition on behalf of the donors and multilateral agencies that sustainable development has to be ‘locally owned’ (Development Assistance Committee, 1996; Richmond, 2012). In broad terms, local ownership refers to the importance of peacebuilding efforts to be designed in a manner that the domestic actors have control over the design and implementation of the peace process (Donais, 2009). Beyond this minimal convergence over the understanding of local ownership, other aspects remain open to interpretation (ibid.). This is reinforced through its connection with a number of other notions, such as ‘local capacity building’, ‘localisation’ and so forth (Ryerson et al., 2018). The major debates among policy makers, as well as academics, are thereby who constitutes ‘the local’, how ownership should be implemented into peacebuilding projects (top-down, bottom-up or middle-ground) and who should decide over the effectiveness of its implementation (Tartir & Ejdus, 2018). The European Union sees itself as a ‘force for peace and human development’ and literature has recognised this role of the EU as a peace project (EEAS, 2017a; Tocci, 2007). Following a growing US retrenchment in security governance, which materialised, for instance, in form of Trump’s attempt to cut down on the US’ financial contribution to peacekeeping or the decision to withdraw all troops from Afghanistan, the EU has further aimed at stepping up its role as a global security provider (EEAS,

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2017b; Gibbons-Neff & Barns, 2019; Williams, 2018). Thereby, the European Union has voiced the importance of long-term peacebuilding and the need to link humanitarian, development and peacebuilding activities (Tardy, 2017). For the European Union, the peacebuilding principle encompasses a broad range of activities such as conflict prevention and conflict mitigation (De Coning & Call, 2017). In the EU’s own words, expressed both in the 2016 EU Global Strategy as well as in later EU speeches, the integrated approach: [p]rovides the framework for a more holistic engagement in external conflicts and crisis to promote human security. It involves conflict resolution and mediation and stresses the importance of local ownership, inclusiveness and the sustainability of actions by engaging with national and local authorities, communities and civil society. (United Nations, 2018b)

The European Union’s vision and understanding of peacebuilding is thereby influenced and largely consistent with that of the other OECD countries. Underlying the EU’s peacebuilding activities is at its core the norm of ‘liberal peace’, characterised by the idea that market democracies will be the only guarantors for sustainable peace (Adhikari, 2018; Donais, 2009). This convergence with the OECD-DAC community of Northern donors has also united the European Union in its discourse on local ownership, which is considered to be driven by a liberal peace agenda (Rayroux & Wilén, 2014). Local ownership has entered the EU policy discussion in the late 1990s (Ejdus, 2018). On the one hand side, local ownership was seen as an ideal fit for the European Union’s normative framework and one policy document even named it as inherent to the European’s approach to international relations (ibid.). On the other hand side, it is a way for the European Union to counter the accusations of having neo-colonial or neo-imperial ambitions shaping their peacebuilding agendas (Rayroux & Wilén, 2014). The EU has shown a lot of confidence that it has successfully mainstreamed local ownership in their peacebuilding approach and stressed that it is the base for all their ten currently operating civilian missions (EEAS, 2018). The scholarly literature has, however, been far less convinced of this achievement. Case-studies of the failure of implementing ownership in the CSDP missions, ranging from Bosnia, to Kosovo, Afghanistan to Somalia or Mali and so forth (Dursun-Ozkanca & Vandemoortele, 2012). These case studies, have named the European Union’s approach to local ownership as overly technical, directed only to the governmental elites in a top-down manner and are doubtful in regard to the EU’s success to refrain from imposing their own vision of a sustainable peace (Bojicic-Dzelilovic & Martin, 2018; Ejdus, 2017; Mac Ginty, 2018). Following the so-called ‘local turn’ in the peacekeeping literature, the European Union, in recent years, has tried to include other stakeholders than just government elites into their peacebuilding projects, particularly when it comes to aid grants from the European Commission, and it shifted some focus towards women and youth, as well as other marginalised groups (Bojicic-Dzelilovic & Martin, 2018; Mac Ginty & Richmond, 2013). Furthermore, the EU has tried to systematically include civil society in their peacebuilding projects. In that regard, the European Commission has, for instance, developed specific Country Roadmaps for Engagement with Civil Society (European Commission, 2017a). This shift from government support towards

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a bottom-up approach is tied to the EU’s understanding that a strong civil society is able to hold the government accountable and can thus reinforce democracy (EUGS, 2016). The European Union’s support for ownership of civil society could then be understood as an element of its democracy promotion efforts (Pierobon, 2017). Ownership in the European—and more broadly in an OECD context—is therefore strongly tied to the type 1 norm ‘democracy’. This is reflected in the use of the expression ‘democratic ownership’ in policy documents (OECD, 2007). Given the EU’s systematic effort to include local ownership in their peacebuilding approaches, the large amount of funds dedicated to its programmes, and its embeddedness in policy documents and practice, from a theoretical point of view, one could think of local ownership as a ‘standardised procedure’ (type 3) in the EU’s peacebuilding projects. India understands itself as an inherently peaceful and tolerant society that can accommodate an array of different interests and can, therefore, serve as a paragon for other countries, and models its stance in global security governance (Hayes, 2016; United Nations, 2012). This confidence is mainly shaped by India’s record as a major contributor of ‘boots on the ground’ to UN peacekeeping missions (United Nations, 2017). As a major troop contributor, India has been very vocal at the UN, which has not been entirely uncritical about the inclusion of peacebuilding tasks in the mandates of peacekeeper. India acknowledges that peacekeepers are ‘early peacebuilders’. But the Indian government argues that the integration of peacekeeping and peacebuilding should only take place to the extent that is required to build sustainable peace and furthermore ‘that humanitarian and development actors and other peacebuilders and peacekeepers all have different tasks and priorities’ (United Nations, 2015a). Recognising a strong connection between socioeconomic grievances as barriers to sustainable peace, Delhi considers many peacebuilding tasks to fall within the category of development cooperation, rather than in the mandate responsibility of the peacekeeper. India has consequently refrained from distinguishing in their discourse or policy documents peacebuilding from its other development cooperation programmes (Singh, 2017). A state official has even pointed out that a distinction is nothing more than ‘academic hair splitting’ (ibid., p. 88). For Delhi, peacebuilding, therefore, includes an even broader range of activities, such as studentships and technical training, humanitarian relief, grants, lines of credits, loans and so forth (Mawdsley, 2012). Furthermore, unlike ‘traditional’ donors such as the European Union, India does not differentiate between conflict-affected, post-conflict and stable developing countries when it comes to decisions over development cooperation (Mullen, 2017). Overall, India has attempted to position its development cooperation as different from that of Northern donors—claiming to meet with their partners on an eye-toeye-level rather than in a typical donor–receiver relationship and laying its focus on fostering economic growth with a strong focus on engaging the private sector, rather than poverty reduction (Mawdsley & Roychoudhury, 2016). In order to keep their flexibility in regard to delineating their development cooperation, India has preferred to stay largely outside of the OECD-DAC structures and has, at the same time,

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attempted to shift the discourse on international development cooperation. The conference on aid effectiveness in Busan, has thereby been pointed out as a turning point. India and other emerging countries have successfully shifted the focus away from poverty reduction and good governance, towards a stronger stress on development (ibid., 2014, 2018, 2019). The literature has even spoken about the ‘southernisation’ of development (ibid., 2018). With India and other emerging powers’ increasing projection of normative power in the international system, it is important to analyse their stance on local ownership. In the Indian scenario, the support for local ownership is largely shaped by its own historical experience as a colony characterised by the intervention and imposition of an outside power. This led to a stress on state sovereignty in India’s international position, which today is still reflected in India’s reluctance of having the international community intervene in a country’s internal conflicts. An example is India’s position on the Kashmir issue, which India understands as a bilateral one that does not require an outside mediation. Consequently, India considers the UN mission in Kashmir (UNMOGIP) obsolete (Miglani, 2014). Similarly, they have refrained from supporting interventions on humanitarian grounds, such as 2011 in Libya (Bloomfield, 2015; United Nations, 2011a). The meaning of local ownership for India is therefore mainly shaped in its negativity or opposition: non-intervention, no outside imposition and a refusal to engage in ‘liberal peacebuilding’ projects or in Delhi’s words: ‘the external footprint should be light to avoid any outcomes of neo-colonialism or humanitarian intervention’ (United Nations, 2014a). The belief is further that the primary responsibility for maintaining peace is with the host government, which means that the majority of India’s activity is directed towards capacity-building of the government (United Nations, 2014b). Local ownership is thus connected to type 1 norms, such as non-intervention and sovereignty. While in the case of the European Commission, local ownership at least in theory, is referring to the civil society and their participation in peacebuilding and the idea that stabilisation is only possible in a democratic and inclusive environment, for Delhi local ownership means to respect the state sovereignty and to support the host government in their aim to stabilise and rebuild the country (United Nations, 2011b). In other words, local ownership and ‘national ownership’ overlap in an Indian discourse. This division between traditional donors and emerging donors over ownership also came to the fore during the conference in Busan, where countries positioned themselves as either supporting a reading of ownership as ‘country ownership’ or ‘democratic ownership’ (Carothers, 2015). India’s reading of ownership as ‘state ownership’ is thus reflective of its reluctance to engage in democracy promotion and its skepticism towards liberal peacebuilding approaches. For the Indian government, local ownership in Wiener’s categorisation of international norms then has to be understood as an alternative to liberal peacebuilding and thus as an ‘organising principle’ (type 2).

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Deliberation, Justification, ‘Silent Contestation’, and Questions Over Contestatory Practice India’s contestation of the EU’s understanding of local ownership is primarily restricted to the discourse and takes place at the UN level. Its preferred mode of contestation is of political one and can be considered, what (Wiener, 2014; see also Johansson-Nogués, Vlaskamp and Barbé, this volume) termed ‘deliberation’. India thus addresses “rules and regulations with regard to transnational regimes according to semi-formal soft institutional codes” (Wiener, 2014, p. 2). It should, however, be noted that the term ‘deliberation’ is somewhat misleading in an Indian context, as one of the major contestations of the Indian side has been the structure of the UN system itself. Delhi has argued that the limitations of the membership in the UN Security Council and the decision-making processes are precisely not deliberative— in the sense that it does not give an equal voice to each member state—and endangers the legitimacy of the UN’s actorness as the ‘custodian of global peace, security and development’ (UN, 2015a). This criticism of the structures of the UN systems and the power of the UNSC are the starting point for most of India’s contestations in security governance. It applies, for instance, in the area of peacekeeping where India has continuously pointed towards Article 44 of the UN charter that would allow for consultations with the troop-contributing countries in terms of mandate formulation (United Nations, 2014c). It is also named as a reason for India’s resistance to recognise the International Criminal Court (ICC) (Linton, 2018). It is, therefore, important to keep in mind questions of access (or lack thereof) to contestation (Wiener, 2017). Particularly, since many scholars have predicted that a continuing denial of a voice for India in international fora will make India less willing to enter into negotiations over international norms in the form of deliberation at the UN level and will push them towards contestation outside of these structures (Lettinga & Van Troost, 2015). Finally, before diving into a discussion of Delhi’s contestation of the European Union, it is necessary to point out that in their narrative of contestation, it often does not distinguish between the European Union, Europe or NATO, but refer to these actors with the umbrella term: the ‘West’. As discussed above, India and the European Union have both recognised the value of local ownership for their peacebuilding and development projects, but they have distinct interpretations over its meaning. India’s interpretation of local ownership as ‘national ownership’ is in itself constructed as a contestation of the meaning of the norm as promoted by the European Union, by building upon the argument that the West has not moved away from imposing their standardised liberal models of peace in the host societies. Ambassador Asoke Kumar Mukerji, former permanent representative of India to the UN has argued that ‘[p]eacebuilding needs to integrate indigenous and informal justice mechanisms into judicial reforms, instead of viewing them as incompatible with western liberal values’ (United Nations, 2014a). Many statements by Indian policy makers, such as that of Ambassador Hardeep Singh Puri, reflect on this contestation of a liberal peace agenda, which ignores the local conflict environments: ‘[n]ational ownership is the key determinant of success in

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peacebuilding. The international community can encourage, motivate and facilitate. It cannot solve those problems which require national will and national ownership’ (United Nations, 2011c). Attached to this debate is a feeling that the West is behaving in a teacher-like role vis-à-vis the developing world. Addressing this issue, India’s former Minister of External Affairs Mr. S. M. Krishna has stressed the importance of avoiding these top-down approaches: Prime Minister Indira Gandhi once said that ‘a nation’s strength ultimately consists in what it can do on its own, and not in what it can borrow from others’. The international community can encourage, motivate and facilitate (…) The new orthodoxy of talking down rather than listening, must be avoided at all costs. (United Nations, 2011d)

The Indian government’s support for ownership as an opposition to outside intervention also stretches into the area of human rights, which is often associated as a component of the liberal peace agenda. In Myanmar, for instance, where the persecution of Rohingya Muslims in Rakhine state by security forces and Buddhist militias, has led to a humanitarian crisis. Delhi took the position that ‘every state has the right to organise its internal affairs, including in the field of human rights’ (United Nations 2015b). Consequently, it considered technical assistance, cooperation and a strong partnership with the Myanmar government as the only way to stabilise the country and opposed any unilateral actions (United Nations, 2015b; Viraj, 2018; Yhome, 2018). The European Union on the contrary, which emphasises a value-based humanrights focused diplomacy, decided to issue travel bans and freeze assets of members of the Myanmar military (European Council, 2018). The Indian government also projects its own role or identity as an international actor in peacebuilding or development cooperation as distinct from the European Union (Richmond & Tellidis, 2014). It claims for itself that its development cooperation ‘ensures that all plans and programmes are implemented under national ownership and through national institutions’, are free of conditionalities and that it meets with the host country on an eye-to-eye-level rather than in a typical donor–recipient relationship (Ministry of External Affairs (India), 2017). This also explains why Delhi has refrained from using terms such as ‘developing aid’ and has instead stressed the ‘cooperative’ character of the interaction. Building on a discourse of south–south cooperation and the understanding that India’s own success story of poverty alleviation and economic development will be valuable for other developing countries, India perceives its own development cooperation projects as truly ‘locally owned’. This narrative of a ‘southern’ alternative to peacebuilding and development cooperation, which is characterized by ‘[p]rinciples of respect for national sovereignty, national ownership and independence, equality, non-conditionality, non-interference in domestic affairs and mutual benefit’ is also uniting India with other developing and emerging countries, as reflected in the narratives that are guiding the IBSA or the Non-Alignment Movement (Brasilia Declaration, 2010; United Nations, 2018a). A similar rhetoric is also intrinsic to India’s engagement with Africa, where Prime Minister Modi at the last India-Africa Forum Summit in 2015 had stressed on their commonalities in regard to their historical past as ‘great civilisations’, but also ‘former colonies’ and their partnership being based on ‘emotional bonds’ and ‘solidarity’,

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rather than ‘economic considerations’ (Prime Minister’s Office, 2015). Political contestation in the form of deliberation is complemented here by moral contestation or justification (Wiener, 2014, p. 2). Following the Indian argumentation, peacebuilding activities by traditional donors are almost always bound to fail in terms of understanding the local population and to move away from a top-down approach, as they do not have the same affinity or closeness with the countries in which they operate. As Mawdsley (2012, p. 266), in her analysis of southern development actors put it: ‘[b]y making these assertions of subaltern expertise, and grounding development assistance in shared experiences and challenges, the Southern donors construct a distinct position for themselves in the foreign aid arena from those of the North.’ Contestation of the EU’s understanding of local ownership is, therefore, materialising in terms of a clear association with the developing world in their own respective fora, rather than working together with the Western donors as represented in the OECD-DAC. This also includes the creation of new fora that operates parallel to the ones associated with the Western liberal order, such as the New Development Bank (NDB) founded by the BRICS (Ollapally, 2018). In terms of India’s success to implement this alternative to liberal peace and Western aid practices in form of a ‘truly locally’ owned ‘southern’ model of cooperation, the literature has shown a mixed picture. Some of the literature has concluded that India does not move beyond implementing liberal peace ‘with a southern twist’ and consequently will face the same local resentments (Kenkel, 2016, p. 381; Mukherjee, 2015). This applies particularly to India’s engagement in its own neighbourhood but has also been discussed in regard to its inability to sensitively deal with its own internal conflicts in the North East and Kashmir (Malone, Mohan, & Raghavan, 2015; Pogodda, Mac Ginty, & Richmond, 2014). An example is Delhi’s involvement in the peace process in Nepal in the aftermath of the Nepalese civil war. Delhi had successfully been lobbying at the UN for a limited UN mission without provisions for humanitarian assistance and reconstruction (Suhrke, 2011). Later, Delhi had used this as a narrative to portray itself as the protector of ‘Nepalese ownership’ in the peacebuilding process (Ghimire, 2018; Richmond & Tellidis, 2014). At the same time, it has actively tried to shape and mediate the peace process and had used its influence in its direct neighbourhood (Martin, 2012). Other scholars have been more positive about India’s success to provide an alternative to liberal peacebuilding models which ignore local pre-conditions (Chanana, 2010). In Afghanistan, it has, for instance, been noted that India—with its ‘non-invasive character’—managed to establish itself as the most popular foreign actor in the country (Destradi, 2014; Mishra 2018). India’s engagement has also been highlighted for introducing the policy of ‘Afghanization’, which refers to Delhi’s practice of giving direct payments to the Afghan government for capacity-building projects, which are free of any conditionalities (Peral, 2012). This practice has deepened the relations of India with the central government and other local authorities (Kavalski, 2015). Afghanistan also serves as an example, where India and the European Union’s discourse on local ownership has been an essential part of their peacebuilding and

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development cooperation initiatives, with both actors declaring that their engagement is focusing on ‘Afghanistan’s priorities’, and a peace process that is ‘Afghanled, Afghan-owned broad-based and inclusive’ (Bose, 2019; EEAS, 2019; Indian Embassy Kabul, n.d.). As discussed above, there is thus convergence in terms of recognising the importance of local ownership as a goal for their engagement with Afghanistan. There is also substantial convergence in terms of priority areas for India and the European Union, such as training of security forces, capacity building and infrastructure projects (Sachdeva, 2016). This convergence has however not translated into a meaningful cooperation between the largest international, respectively, largest regional donor in Afghanistan, and Brussels and Delhi have operated largely in isolation (Joshi, 2017; Mohan, Kumar, & Xavier, 2016; Mullen, 2017). Many explanations for this lack of cooperation build upon the argument that the Indian government does not perceive the European Union as a credible actor in security and is unimpressed with its track record in Afghanistan, thereby contesting the actorness of the EU itself (Howorth, 2016; Sachdeva, 2014). This might serve as an explanation for India’s reluctance to join the EU’s CSDP missions, even though Brussels has shown a keen interest to get Delhi on board (EEAS, 2016; Joshi, 2017). Additionally, three other explanations can be put forward. First of all, while both actors might agree on the importance of security sector reform and, in particular, to train the security forces in Afghanistan, India is traditionally very cautious about joining force with the EU, as it associates its practices with the imposition of Western norms and principles of security governance and a poor understanding of local structures (Adhikari, 2018). In an assessment of the state of police reform, Ambassador Asoke Kumar Mukerji, former Permanent Representative of India to the UN, had repeatedly pointed out that ‘[g]iven the scarcity of resources, the priorities should be ensuring impartiality in recruitment and vetting and training new recruitments rather than seeking to make cultural change a central aspect of police reform’ and further that the ‘[f]ocus on the political dimension of police reform will only be controversial and perhaps counter-productive’ (United Nations, 2014d, 2015a). This statement aligns India with other emerging countries’ preference for a pragmatic approach to security sector reform, which focuses less on liberal notions of transparency, accountability and democratic control. While the EU is not openly acknowledging Delhi’s contestation regarding over-ambitious security sector reform ideas, its peacebuilding practices have often automatically adapted to ground realities in a manner that its ambitious agenda driven by liberal values and the idea to change security culture had to make space to a security-focused government-led process (Sedra, 2013). Secondly, India’s understanding of local ownership as state ownership has led them to engage almost exclusively with state-led agencies rather than civil society organisations (CSOs), which the European Union is strongly promoting in their own approach (Mawdsley & Roychoudhury, 2016). This also has to do with the idea among some of the governmental elites in India, that CSOs are being instrumentalised to promote the agenda of their donors. A shut-down of foreign-funded non-governmental organisations and CSOs in India, in recent years, is an expression of these accusations (Brechenmacher & Carothers, 2018). Lastly, India has established itself as popular actor in Afghanistan, and constructed its role as a southern

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donor whose engagement is characterised by mutual cooperation and a respect for state ownership as an alternative to traditional peacebuilding (Sinha, 2017). Cooperation with the European Union in that sense might hamper this self-proclaimed image. Aside from a first path of politically criticising the Western failure of implementing the local ownership principle in their peacebuilding practices (deliberation) and a moral contestation in terms of questioning the ability of traditional donors to comprehend the needs of the global south, Delhi has therefore chosen a third path of ‘silent contestation’ or actively choosing to refrain from cooperation with the traditional donor countries. In many conflict scenarios, India and the EU have therefore talked at cross purposes and operated in parallel. Contestation, in this case, becomes visible without even encountering each other. Furthermore, the outlined case of Afghanistan and the actors entering a direct confrontation or example of ‘silent contestation’ support the argument of Wiener (2004, 2014, 2018), that even seemingly universally shared norms, which have found many advocates at the international level, remain contested at the implementation stage. Looking at the major characteristics of India’s contestation vis-à-vis the European understanding of local ownership, as outlined in the section above, the chapter argues that India’s contestation remained ‘soft’ (see Johansson-Nogués, Vlaskamp and Barbé, this volume). This categorisation is justified in several ways. First of all, India does not contest the norm itself, but rather its meaning-in-use. Secondly, India often voices contestation in fora where the European Union is either not present, i.e. during BRICS summits or if present—such as in the UN—has restricted its verbal attacks in most cases. Thirdly, India’s ‘silent contestation’ at the implementation stage of the norm has meant that instead of articulating a direct critique, India has simply ignored the EU’s efforts on local ownership.

Outcome: Rethinking Legitimacy of Local Ownership? Being challenged on having neo-colonial or neo-imperial ambitions shaping their peacebuilding agendas and undergoing a learning process in terms of effectiveness of liberal peacebuilding approaches, the EU has over the last decade increasingly stressed the importance of local ownership (Rayroux & Wilén, 2014). One could thus argue that the persistent critique of India and other developing countries has at least partially contributed to putting local ownership on the agenda in the first place. During the institutionalisation process of the norm and after it made its way into the policy discussions, the EU has however developed and maintained its own distinct understanding of the principle. In this understanding of local ownership—especially in the reading of the Commission—the main goal is to include as many society groups into peacebuilding and state-building interventions (Vogel, 2016). External contestation over the content of the principle, such as the one put forward by India, has thereby not impacted or fuelled the discussion over its legitimacy in the EU context.

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For the European Union, it has been easy to ignore India’s critique as they have alternative channels available for implementing their understanding of local ownership without having to consider external contestation, such as their own CSDP missions. Similarly, in development cooperation, they have played a leading role in defining local ownership in their club of like-minded Northern donors within the OECD-DAC context. This common understanding of local ownership in the OECD-DAC context has also helped to foster the EU’s belief in local ownership as a universally accepted standardised procedure (type 3 norm) for peacebuilding projects. With a growing influence of emerging countries in peacebuilding and developing cooperation (material, as well as normative) and a changing international system, it is, however, questionable if the EU will be able to maintain the legitimacy of local ownership solely internally. The EU has always put an emphasis on multilateral solutions, and in the Global Strategy, pledged to ‘[p]ursue a multi-lateral approach engaging all those players present in a conflict and necessary for its resolution’ (EUGS, 2016 p. 19). Entering into a dialogue with India and other emerging countries over the interpretations of international norms in the field would be necessary to live up to this self-proclaimed goal and increase legitimacy of the EU’s foreign policy norms, such as local ownership. Shared meaning over norms can potentially be reached through more open deliberation among the different players present in conflict scenarios (Hansen-Magnusson, Vetterlein, & Wiener, 2018). This would create the ‘conditions for sustainable normativity’ at the meso-level (organising principle) and enable actors at the implementation stage of norms to go beyond the formulation of a common goal (Hansen-Magnusson, Vetterlein, & Wiener, 2018, p. 9).

Conclusions The discussion has shown that divergent histories, as well as legal and political contexts, have shaped the emergence of local ownership in India and the EU’s discourse, whereby both actors have settled for their own interpretation in terms of its meaning and degree of institutionalisation (organising principle and alternative to liberal peace vs. standardised procedure). India’s preferred modes of contestation: deliberation, justification and ‘silent contestation’—and the EU’s availability of alternative channels for its peacebuilding activities—have thereby led to a minimum of exchange and constructive debate over the meaning of local ownership. On the contrary, local ownership seems to be exploited by policy makers as a ‘rhetorical cover’ to claim what they are not. Brussels is using it to counter accusations of imposing liberal models of peace to local contexts and Delhi is claiming it for constructing their development cooperation as an alternative to northern donors (Chandler, 2011, p.87). Together with the fact that robust empirical research has shown that, in practice, international actors have struggled to implemented local ownership, this raises serious questions over the legitimacy and global character of this norm (Lemay-Hérbert & Kappler, 2016).

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Regarding the literature on local ownership, there has been a great effort to critically distinguish between international and local actors and their divergent understandings of local ownership and the success of its implementation (Rayroux and Wilén, 2014). Most of these studies have thereby focused on the European Union and have overlooked other international actors active in peacebuilding. This Eurocentrism of the literature creates the impression that the principle of local ownership has originated among the ‘Western’ donor community. While this might hold true for the standing term ‘local ownership’, it seems quite far-fetched to claim that prior to the 1990s, no country had aimed to conduct peacebuilding in a way that is sensitive to the local pre-conditions and had argued that conflict resolution must be locally owned. As norms and principles are difficult to operationalise, a lot of the existing literature bases their analysis on an assessment of policy documents. This makes the European Union an easier case to study than a country like India, which has not produced many policy documents that would outline their approach to peacebuilding or peacekeeping. The above-discussed example of India’s discourse and contribution serves as a reminder that these claims of the principle being intersubjectively held among the international community, emerged in the ‘Western’ donor community and then was made popular among ‘the Rest’ are flawed. Here, the framework of norm contestation proves as a great analytical tool to unravel these tendencies.

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Tartir, A., & Ejdus, F. (2018). Effective? Locally owned? Beyond the technocratic perspective on the European Union Police Mission for the Palestinian Territories. Contemporary Security Policy, 39(1), 142–165. https://doi.org/10.1080/13523260.2017.1407486. Tocci, N. (2007). The EU and conflict resolution. Promoting peace in the backyard. London: Routledge. United Nations. (1992). An agenda for peace: Preventive diplomacy, peacemaking and peacekeeping: Report of the Secretary-General. Retrieved from https://www.un.org/ruleoflaw/blog/ document/an-agenda-for-peace-preventive-diplomacy-peacemaking-and-peace-keeping-reportof-the-secretary-general. United Nations. (2000). Report of the Panel on United Nations Peace Operations (Brahimi report). Retrieved from http://www.un.org/en/ga/search/view_doc.asp?symbol=A/55/305. United Nations. (2009). Report of the Secretary-General on peacebuilding in the immediate aftermath of conflict. Retrieved from http://www.un.org/ga/search/view_doc.asp?symbol=A/63/881. United Nations. (2011a, January 21). Statement by Mr. H.S. Puri, (S/PV.6472), New York. Retrieved from https://www.pminewyork.gov.in/pdf/uploadpdf/30646ind1813.pdf. United Nations. (2011b, October 31). Statement by MOS Shri E. Ahamed at UNSC on “Post-Conflict Peace-building”. Retrieved from https://www.mea.gov.in/in-focus-article.htm?6857/Statement+ by+MOS+Shri+E+Ahamed+at+UNSC+on+PostConflict+Peacebuilding. United Nations. (2011c, March 23). Statement by Mr. H.S. Puri, (S/PV.6503), New York. Retrieved from https://www.pminewyork.gov.in/pdf/uploadpdf/82276ind1841.pdf. United Nations. (2011d, February 11). Statement by Mr. S.M. Krishna. Retrieved from https://www. pminewyork.gov.in/pdf/uploadpdf/28613ind1820.pdf. United Nations. (2012, October 1). Statement by Mrs Sushma Swaraj, at the General Debate of the 67th United Nations General Assembly, New York. Retrieved from https://fsi.mea. gov.in/Speeches-Statements.htm?dtl/20641/Statement+by+External+Affairs+Minister+at+the+ General+Debate+of+the+67th+session+of+the+United+Nations+General+Assembly. United Nations, (2014a, March 26). Statement by Mr. Asoke K. Mukerji. Retrieved from https://www.pminewyork.gov.in/statementgeneral?id= eyJpdiI6Ijk3cW9DTWU2ZWFTZWlrSDRaSTBZU3c9PSIsInZhbHVlIjoidExiQzFhSm9wT2Q wWXVqVlE1dEsyUT09IiwibWFjIjoiYTQ0MmRjYTVjOWIxODYyMzYyYzNiZjMwYTdkN zJmNDVjYjI5MDNkMjgwODAxZjNmZTcwYjY2NTg0NzljNjU5ZCJ9. United Nations. (2014b, November 24). Statement by Mr Bhagwant Singh Bishnoi, (A/C.3/69/SR.51), New York. Retrieved from https://www.pminewyork.gov.in/pdf/uploadpdf/ 65049dpr_24nov2014.pdf. United Nations. (2014c, June 11). Statement by Mr. Mukerji, (S/PV.71), New York. Retrieved from https://www.pminewyork.gov.in/statementsecurity?id= eyJpdiI6InFcL2NpRDFHekxCZ2RqaG9RMFRJVTR3PT0iLCJ2YWx1ZSI6IjhGeFZvM3I5eV BUZkczUUw0dGxTVWc9PSIsIm1hYyI6ImYwY2EzNDA5MGVhNTE1MTQ4M2YxOTA4M Tc0ZDAyNGE2YTFkNTI3ZjQyNWE5M2E4MzVlMjgzNmM0ODY0YTRhMTEifQ==. United Nations. (2014d, April 28). Statement by Mr Mukerji, (S/PV.7161), New York. United Nations. (2015a, April 16). Statement by Mr. Mukerji, (A/64/PV.85), New York. Retrieved from https://www.pminewyork.gov.in/pdf/uploadpdf/31103pr_16apr.pdf. United Nations. (2015b, November 18). Statement by Mr. M. Joshi, (A/C.3/70/SR.49), New York. United Nations. (2017, July 5). Statement by Mr. Kumar, (A/C.5/71/SR.34), New York. United Nations. (2018a). Baku Declaration of the 18th Midterm Ministerial Meeting of the Baku Declaration of the 18th Midterm Ministerial Meeting of the Non-Aligned Movement Baku, Republic of Azerbaijan. Retrieved from https://www.un.org/unispal/wp-content/uploads/2018/07/A.72. 897.pdf. United Nations. (2018b, April 24). Statement by Mr Mimica, (A/72/PV.83), New York. Viraj, S. (2018, June 1). India boosts relations with Myanmar, where Chiense influence is growing. The International Institute for Strategic Studies. Retrieved from https://www.iiss.org/blogs/ analysis/2018/05/india-myanmar-china-relations.

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Vogel, B. (2016). Civil society capture: Top-down interventions from below? Journal of Intervention and Statebuilding, 10(4), 472–489. https://doi.org/10.1080/17502977.2016.1192786. Welsh, J. M. (2013). Norm contestation and the responsibility to protect. Global Responsibility to Protect, 5(4), 365–396. https://doi.org/10.1163/1875984X-00504002. Wiener, A. (2004). Contested compliance: Interventions on the normative structure of world politics. European Journal of International Relations, 10(2), 189–234. https://doi.org/10.1177/ 1354066104042934. Wiener, A. (2014). A theory of norm contestation. Heidelberg, Germany: Springer. Wiener, A. (2017). A reply to my critics. Polity, 49(1), 165–184. https://doi.org/10.1086/690101. Wiener, A. (2018). Contestation and constitution of norms in global international relations. Cambridge: Cambridge University Press. https://doi.org/10.1017/9781316718599. Williams. P. D. (2018, October 23). In US failure to pay peacekeeping bills, larger UN financing questions raised. The Global Observatory. Retrieved from https://theglobalobservatory.org/2018/ 10/in-us-failure-pay-peacekeeping-bills-larger-financing-questions-raised/. Yhome, K. (2018). Why UN’s report and sanctions are unlikely to change Myanmar. Observer Research Foundation. Retrieved from https://www.orfonline.org/research/43678-why-unsreport-and-sanctions-are-unlikely-to-change-myanmar/.

Lara Klossek is a Ph.D. candidate at the Universitat Autònoma de Barcelona (UAB) and researcher at the Institut Barcelona d’Estudis Internacionals (IBEI). Her Ph.D. is conducted within the framework of the Marie Sklodowska-Curie European Training Network ‘Global India’. Her thesis examines India and the European Union’s approaches to global governance in peace and security, with a particular focus on peacekeeping. This corresponds with her research interests in India and the EU’s foreign policy, security, peacekeeping, and IR theory.

Chapter 6

Good Natural Resource Governance: How Does the EU Deal with the Contestation of Transparency Standards? Martijn C. Vlaskamp

Since the 2000s, the organizing principle (type-2 norm) of “transparency” has been propagated by NGOs and Western states as a way to promote the fundamental norm of good governance (type-1 norm) in countries rich in natural resources in the Global South. Providing openly accessible information about the payments from extractive companies to the authorities in these countries is seen as an effective way to address corruption and cronyism. After an initially more cautious approach, the European Union eventually embraced this norm and has situated itself in the vanguard of its promotion. In terms of standardized procedures (type-3 norms), the EU promotes both global and European measures to shed light on the governance of natural resources. Globally, the EU supports the Extractive Industry Transparency Initiative (EITI), which is a scheme for countries to improve their natural resource governance. At home, the EU updated 2013 provisions in its Accounting and Transparency Directives to make it mandatory for domestic extractive and logging companies to report their payments to foreign governments. While few international and domestic actors would challenge “transparency” directly, the norm is nevertheless subject to indirect forms of contestation. This chapter identifies three different norm contestation processes. First, transparency, and good natural resource governance in general, is presented as a consequence of economic development instead of being a prerequisite. This alternative model of development has been defended by China in the context of its engagement in Africa. The second contestation comes from resource-rich countries which do not implement global schemes such as EITI, as they see possible conflicts with the type-1 norm of sovereignty over their natural resources. Third, extractive companies argue that they subscribe to transparency as an organizing principle, but that the fundamental norm

M. C. Vlaskamp (B) Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_6

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of economic freedom comes before standardized procedures, such as national policies to promote transparency. In other words, specific domestic regulations should not harm their economic position. These three contestations do not stand on their own but are interrelated and feed into each other. This chapter will map them and discuss how they have affected the legitimacy of the organizing principle of transparency. The chapter will discuss how these global norm contestations did also embolden domestic norm contesters within the EU. Did these global contestations make the EU less ambitious in its domestic policies to promote transparency as a tool for natural resource governance? Or, did the norm show resilience to the contestations from different sides? The text will answer these questions by looking at primary and secondary sources published since 2010. This date has been chosen because in this year President Obama signed the US Dodd-Frank Act into law, which made it mandatory for US-registered companies to report payments to foreign governments for extraction contracts. As a result, both on the global scale, but also within the EU, the issue received an enormous impetus that culminated in the previously mentioned updates of the Accounting and Transparency Directives. In terms of primary sources, policy documents that preceded these regulations and the responses to the 2018 public consultation process for its review have been analyzed. In the first section, the chapter will provide some background about transparency as an organizing principle for good natural resource governance. It will describe the reasoning behind the corresponding policies and how this norm has been diffused. Then, in the following section, the chapter will discuss how it is contested. The third section will look at the results of this contestation on the norm’s legitimacy both globally and within the EU.

Transparency as an Organizing Principle of Good Natural Resource Governance The Natural Resource Governance Institute1 publishes a Resource Governance Index every year. For this index, they define natural resource governance as “the manner in which power is exercised and policies are made in the management of a country’s oil, gas and mineral resources for development” (Natural Resource Governance Institute, 2019). For the latest edition in 2017, one hundred and fifty researchers evaluated eighty-one resource-rich countries in terms of value realization, revenue management and enabling environment.2 The performance of less than a quarter of the assessed 1 The

Natural Resource Governance Institute is an independent, globally operating NGO. realization covers the governance of allocating extraction rights, exploration, production, environmental protection, revenue collection and state-owned enterprises. Revenue management includes national budgeting, subnational resource revenue sharing and sovereign wealth funds. Enabling environment looks at the broader governance context and to what extent it contributes to good natural resource governance (Natural Resource Governance Institute, 2017, p. 7).

2 Value

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countries was evaluated as “good” or “satisfactory”; almost half of the states had a “poor” or “failing” record (Natural Resource Governance Institute, 2017, pp. 4–5). Almost all these countries were located in Africa, the Middle East or Southeast Asia. Poor natural resource governance is the rule in large parts of the Global South rather than the exception. The affected countries have few to no procedures established to make sure that the revenues of their natural resources benefit the public good. Many of the revenue streams are completely opaque and impossible for the public to follow. For example, a 2011 report by the International Monetary Fund (IMF) remarked that the authorities in Angola could not clearly tell them what had happened to 32 billion US dollars (USD) in oil revenues (amounting to 25% of the country’s annual GDP) (International Monetary Fund, 2010, p. 9). Hence, and as a result of a concerted effort of largely non-state actors since the late 1990s, transparency has been promoted as a principle to allow politicians and other decision-makers to be held accountable. Transparency, in the context of resource governance, has been defined by EITI as allowing external actors to access information about key aspects of a country’s natural resource management, “including how licenses are allocated, how much tax, royalties and social contributions companies are paying, and where this money ends up in the government at the national and local level” (EITI, 2019). In theory, with this information, anti-corruption authorities, journalists and civil society can hold both the “corrupted” and the “corrupter” accountable for their behavior. As an organizing principle, transparency is almost universally acknowledged. A unanimously accepted 2008 UN General Assembly Resolution, emphasized “that transparency and accountability are objectives that should be embraced and promoted by all Member States, regardless of their size, level of development or resource endowment” (UN General Assembly, 2008). Resolutions by the G20 and the African Union have supported this principle as well (G20, 2009). The principle has also been the basis of some specific global schemes, such as the Kimberley Process Certification Scheme for rough diamonds. This global certification and monitoring scheme was started in 2000 to shed light on the supply chain of these gems, to end the trade in socalled blood diamonds.3 The 2011 OECD Due Diligence Guidance for Responsible Supply Chains of Minerals asks companies to be transparent about the origins of their natural resources to end the funding of armed conflicts by “conflict minerals” (e.g., in the Democratic Republic of the Congo). The previously mentioned EITI is the leading global scheme to address the issue of poor natural resource governance and corruption. During the 1990s and early 2000s, numerous academic studies concluded that countries rich in oil, gas or minerals tend to achieve economic development more slowly, be more corrupt, be more likely to experience armed conflicts, and have authoritarian regimes more often than comparable countries without significant natural resource deposits (Collier & Hoeffler, 2002; Fearon & Laitin, 2003; Sachs & Warner, 2001; Sala-i-Martin & Subramanian, 2003). Around the same time, NGOs and media reports drew attention to cases in 3 Participating countries are obligated to provide production data and every batch of diamonds carries

a certificate stating that it has not contributed to the funding of an armed rebel group.

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which Western companies had bribed governments in the Global South for extractive contracts. As a consequence of these developments, EITI was launched by then UK Prime Minister Tony Blair in the early 2000s and received support from both NGOs and the industry. Civil society organizations saw transparency, as previously said, as a tool to tackle corruption. Companies opted for global schemes as a way to avoid national regulations in their home countries: domestic regulations could have created conflicts with host countries, put contracts at risk and made them less competitive in corruption-prone business environments. Extractive companies supported EITI as a shift away from company reporting in favor of government reporting. As all companies active in a EITI-compliant country would be subject to the same scrutiny, an even playing field would be guaranteed (Haufler, 2010). As the remainder of the text will show, the concern about an uneven playing field remains today the main concern of the Western industry with respect to transparency measures. While EITI was initially set up as a voluntary process to bring transparency into the payments from companies to governments, it has evolved into a much broader instrument. If countries decide to adopt the EITI standard, they have to adapt their legal and institutional framework accordingly to comply with it. The current 2016 EITI Standard requires the disclosure of information with regards to the extractive value chain of oil, gas and mining products from the point of extraction, as well as how revenues make their way through the government and benefit the general public. These standards prescribe, for example, a transparent process for the allocation of licenses, openly available data about the revenues from natural resources and detailed information how they were spent. Participants are also encouraged to implement laws that make it mandatory to publish all contracts between extractive companies and the government. The oversight of the implementation of EITI is performed in every country by a national multi-stakeholder group that brings together representatives from the country’s government, industry and civil society (EITI, 2017). If countries do not make sufficient progress, their membership can be suspended. EITI has been widely hailed as an instrument to bring transparency to the extractive industry. The initiative has been endorsed once by the UN General Assembly, at least three times by the G20, and ten times by the G7/G8 (Lujala, Rustad, & Le Billon, 2017). On its Web site, EITI lists, among others, the African Union and the Asian Development Bank as its supporters. It is worth mentioning that extractive companies can also be supporters and contribute economically to the initiative. As of 2019, 52 states are implementing the EITI standard (of which seven are suspended for non-compliance with the requirements). However, there are large political and geographical disparities. The large majority of the implementation countries can be found in sub-Saharan Africa. Not one of the oil-producing countries in the Middle East is a participant (the membership of the only exception, Iraq, was suspended due to inadequate progress). Moreover, only a few of the world’s great and midsize power participate: not one of the BRICS has implemented this scheme. These numbers illustrate already that the practical implications of the organizing principle of transparency are more contentious than the unanimous UN General Assembly Declarations would imply.

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Whether EITI is successful in its initial objectives is still debated. A number of studies argue that the effect on governance quality and resource-related corruption in a country is limited (Aaronson, 2011; Corrigan, 2014; Sovacool, Götz, Van de Graaf, & Andrews, 2016). A recent review of 50 evaluations confirmed these findings and said that corruption is only reduced when a country also has a strong civil society that can hold the government and companies accountable (Lujala et al., 2017). However, the study also concluded that the initiative had “succeeded in diffusing the norm of transparency […] and institutionalizing transparency practices” (Lujala et al., 2017). A result of this norm diffusion and limited effectiveness of EITI is a trend in the Global North to adopt regulations that make it mandatory for their extractive companies to be more transparent (something that many extractive companies had wanted to avoid with their initial support for EITI). Section 1504 of the Dodd-Frank Act of 2010, the so-called Cardin-Lugar Amendment,4 obliged corporations which are registered with the US Securities and Exchange Commission (SEC) and which are engaged in the commercial development of oil, natural gas, or minerals, to disclose in an annual report the payments made to an American or foreign government. These legal stipulations required disaggregated reporting of payments to foreign governments from 90% of the world’s largest internationally operating oil and gas companies and eight of the world’s ten largest mining companies (Cust, 2018, p. 405). The 2013 EU’s Accounting and Transparency Directives, which will be discussed in more detail below, and the 2015 Canadian Extractive Sector Transparency Measures Act go into the same direction. These policies complement EITI: by making companies accountable in their home countries as well such regulations create more pressure to provide good data and cover larger parts of the extractive industry. The EU has frequently expressed its support for EITI. Belgium, Denmark, the European Commission, Finland, France, Germany, the Netherlands, Sweden and the United Kingdom contributed financially to the initiative during 2017 (EITI, 2019). For the European Commission, EITI was initially a tool of development policy, and therefore, it framed the initiative principally into its relations with Africa. In the 2007 Joint Africa-EU Strategy, enhanced cooperation between the signing parties was mentioned regarding the promotion of transparent and equitable management of natural resources such as EITI. In the Africa-EU Energy Partnership, the African Union Commission and the European Commission called for more countries to join EITI and to develop transparency guidelines for companies in the extractive sector (African Union Commission & European Commission, 2008). In numerous publications, the EU has highlighted EITI as an adequate policy response to the issue of transparency and accountability in development. In response to a 2012 parliamentarian question, then responsible Commissioner Piebalgs characterized the Commission as “very active in the EITI” and stated that it supported the “strengthening of the EITI standard” (European Commission, 2012). However, only three EU Member States are implementing the standard. The United Kingdom joined EITI in 2014, Germany in 2016 and the Netherlands in 4 The

section was based on the Energy Security Through Transparency Act of 2009, a bipartisan bill sponsored by the Republican Senator Richard Lugar.

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2018.5 Moreover, it required the push from the US Dodd-Frank Act to set a similar policy process into motion in the European Union. As a result of developments on the other side of the Atlantic, the European Parliament called on the Commission to “establish legally binding requirements for extractive companies to publish their revenue payments for each project and country they invest in, following the example of the US Dodd-Frank bill” (European Parliament, 2011) and to support EITI and the NGO-network Publish What You Pay. The result, Chap. 10 of the EU Accounting Directive, makes it mandatory for EU-registered companies that are active in the extractive industry or the logging of primary forests to report annually all payments (e.g., taxes, royalties and production entitlements) to governments above a threshold of 100,000 Euros a year (single and accumulated payments) on a countryby-country and project-by-project basis6 (European Union, 2013a). Article 6 in the EU Transparency Directive includes similar stipulations for publicly listed companies (European Union, 2013b). The legislation says explicitly that the reports by companies “should serve to help governments of resource-rich countries to implement the EITI principles and criteria and account to their citizens for payments such governments receive from undertakings active in the extractive industry” (European Union, 2013a). The Commission also declared that “the ultimate objective [of these policies is] to contribute to the strengthening of the EITI and to extend its scope to all resource-rich countries” (European Commission, 2013). The Accounting Directive has now been transposed into national law by all EU Member States. Accelerated adoption by countries such as France and the UK means that global companies such as BP and Total published their first reports in 2016, while the majority of European companies started reporting in 2017. In 2019, the European Commission will review Chap. 10 of the Accounting Directive, and send a report with recommendations to the European Parliament and Council. While the EU is a strong promotor of the EITI standard as a standardized procedure for better natural resource governance, this norm is not completely uncontested. Few actors would directly challenge transparency or good governance. Opposing transparency can create suspicions that one is hiding something. There are, however, a number of actors which try to contest it in different ways. As stated in the introduction, these contestations can be summarized into three categories: (I) contestations about the place of this norm in broader economic development, (II) contestations between the fundamental norm of state sovereignty and global standardized procedures (EITI) and (III) contestations between the fundamental norm of economic freedom and national standardized procedures (e.g., US Dodd-Frank Act or the EU regulations).

5 France

has announced that it wants to join EITI in the future. means that companies have to provide information for every country they operate in, instead of publishing only information at global level. A project is an operational activity, which is governed by a single contract, license, lease, concession or similar legal agreements and form the basis for payment liabilities with a government. If a number of these contracts are interconnected, they are also considered a project (European Union, 2013a). In other words, for a company it is not enough to report that it paid amount X to the government of a country, but it also has to disclose each individual contract.

6 Country-by-country

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The most prominent contester of the first category is China, and especially with respect to their activities on the African continent. When China’s economy took off, it turned to Africa for natural resources and as a market for its manufactured goods. Zhao (2014, p. 1036) gives three main reasons for China’s engagement. First, while many Western companies found much of the continent far too complicated as environment for business, China was willing to go there. Second, having no colonial past, China could present its infrastructure investments (often used for the transportation of resources and paid with resource-related revenue) as some form of effective development aid. Third, China’s principle of “non-interference” in domestic politics gave them an edge over Western competitors (both states and companies). The latter had to be more careful with their behavior on the African continent in terms of human rights implications and good governance due to potential backlash at home. China’s foreign direct investment in Africa grew exponentially between 2003 and 2012, going from under 100 million USD to multi billion dollars (Zhao, 2014, p. 1038). China sees policies to improve transparency in the natural resource governance of other countries, therefore, first and foremost through economic lenses. While China is not directly opposing transparency, and has in fact supported the previously mentioned UN and G20 resolutions, it was assessed for long time primarily as an abstract concept without any economic advantages. From the Chinese perspective, economic development precedes good governance and not the other way around. As Li Ruogo, the head of China’s Export-Import Bank told an audience in Cape Town: “[t]ransparency and good governance are good terminologies, but achieving them is not a precondition of development; it is rather the result of it” (Zhao, 2014, p. 1042). The contestation was thus about the place of transparency as a norm. A number of states fall into the second category and contest global standardized procedures as they see a conflict with the fundamental norm of state sovereignty. An example from this group is Russia. Moscow has publically expressed its support for the organizing principle of transparency but does not join EITI due to its potential to infringe on its sovereignty. The fear is that EITI could demand legislative changes for compliance and become an instrument to influence Russia’s domestic policy. In particular, the idea that (potentially foreign-funded) NGOs would have considerable clout in the Russian national multi-stakeholder group, and could, therefore, influence the country’s natural resource governance, is seen as problematic. As a solution, Russia has suggested an alternative membership for developed countries “which are not actual EITI members but actively support the initiative and introduce the required laws with local adjustments at the local legislative level” (Oussov, 2016). Similar arguments are stressed by many other resource-rich countries: while not opposing transparency publically, they resist to being subject to externally established standards and see them as a potential threat to their natural resource sovereignty. Many countries in the Global South are suspicious about such schemes as they fear that former colonial powers (in Africa) or the United States (in Latin America) could use them for political objectives. In some cases, however, there is also a very simple explanation for this resistance from many governments in the Global South: the regimes have no interest in implementing measures that could uncover their corruption. It is relevant to keep in mind that in many countries, natural resource extraction

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is mainly in the hands of state-owned companies, which are often economically connected to the ruling elite in opaque ways. A third group of contesters are globally operating extractive companies. As mentioned previously, these actors are particularly concerned about potentially losing competitiveness if they are the only ones subject to transparency requirements in corruption-prone business environments. Among the biggest twenty-five oil and gas companies of the world, less than half are from Northern America or Europe. Two of the six largest Russian energy companies are not registered in the United States nor do they trade in the EU. Of the sixteen largest Chinese mining corporations with overseas operations, nine do not have any listings outside of the China. Two of the three largest Indian oil companies would also not be covered by legislation in the USA, the EU or Hong Kong (Moran, 2013). As a consequence, many Western companies fear that unilateral legislation would harm their international competiveness. Besides the possible competitive disadvantage, the industry fears additional costs. In the case of section 1504 of the Dodd-Frank Act, Securities and Exchange Commission staffers estimated that the cost of initial compliance with the rules would range from 44 million to 1 billion USD, and expected that the final amount would probably be closer to the top end. Moreover, for continuing compliance with the provision, the SEC predicted costs between 200 million and 400 million USD (Matthews, 2012). The American Petroleum Institute, along with a coalition of business groups, has, therefore, sued the SEC in a US federal court to challenge the implementation of section 1504 because the SEC “disregarded its clear legal obligations to limit the costs and anti-competitive harm of the rule” (Carroll, 2012). The estimated costs of the updates of the EU Accounting and Transparency Directives were lower, but still noteworthy. According to a Post-Implementation survey in the United Kingdom, the total costs (one-off and recurring) ranged between 190,000 Euros for a small company, and 9.8 million Euros for large companies. A 2018 survey for the European Commission, however, came up with much lower numbers: between 12,000 and 36,000 Euros per report (European Commission, 2018a, p. 41). Such economic concerns also played a role during the policy process to formulate the EU Accounting Directive. One of the biggest opponents of overly strict standardized procedures was the Netherlands, due to the economic importance of Royal Dutch Shell. They promoted very high thresholds for reporting, a not-very-detailed level of information, and so forth. In an article in the Dutch newspaper De Volkskrant, several MEPs supported this viewpoint, such as Bas Eickhout (Greens/EFA) who was quoted: “Shell-policy is often Dutch policy. But this is more difficult in Europe” (Persson, 2012). Royal Dutch Shell took these accusations seriously enough to send a very critical open letter to a Dutch financial newspaper, in which it also recalled its engagement in EITI (Benschop, 2013). In spite of these cautious stances, policymakers were aware of the fact that the Dodd-Frank Act had at that time only left limited room for maneuver for European multinationals, as they were also listed in the United States stock exchange and, therefore, subject to the SEC. In a communication to the Dutch Parliament, the responsible Minister declared that he aimed for regulations as similar as possible to the SEC rules, in order to avoid extra administrative burdens for Dutch multinational corporations (Kamp, 2013).

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Transparency Contested from Different Sides In their contestation of the norm of transparency, the above-described state or nonstate actors used different modes of contestation and priorities. The primary “battlefield” for the first category, the place of the transparency norm, was Africa. Here, a Western concept of development, which saw good governance and transparency as prerequisites to economic development, met an alternative view from China, which argued that the causality worked the other way around. Visible economic process, according to the Chinese model, was fundamental to abstract concepts and regulations (Renwick, Gu, & Hong, 2018). Or, as Mouan (2010, p. 375) puts it, “the issues of transparency and accountability that (EITI) seeks to address are so remote and complex for poor people for whom immediate needs include access to safe and drinkable water, medicine, food and adequate housing”. These priorities are also a result of China’s own recent economic history and strategy, which is built on continuous economic growth (Renwick et al., 2018). Another factor is that many Chinese investors on the ground did not really know these concepts and were used to the highly non-transparent workings of the Chinese state apparatus (Zhao, 2014). Consequently, they perceived it as some vague Western idea and the lackluster application of it by some Western competing companies did not do much to change this idea (Mouan, 2010). In sum, norm contestation was based on the mode of justification: economic development, and improving the livelihood of the population, should trump the fundamental norm of good governance, which was seen as being of little practical use for these countries yet. This process could be qualified as soft contestation, as China did not openly challenge transparency, but took a position of “not yet.” States in Africa could choose whether they opted for the Western or Chinese development model. Similarly, in the case of the second norm contestation process, state sovereignty vs global standardized procedures, justification is the primary mode of contestation. Most Western actors see global standards, such as EITI, as the way to go for resource governance. However, not only Russia but also most countries in the Middle East and Africa argue that the state should lead national implementation, referring to the fundamental norm of state sovereignty. The previously mentioned 2008 UN General Assembly Resolution reaffirmed in this regard that “every State has and shall freely exercise full permanent sovereignty over all its wealth, natural resources and economic activities” (UN General Assembly, 2008). Not adopting the EITI standard is hence justified with its possible infringements of the country’s sovereignty over its natural resources. Again, the norm contestation is soft contestation: while not challenging transparency per se, they only contest the practical implications at the level of standardized procedures that are based on it. The third category, contestation by non-state actors with economic motivations, has played out largely in the US domestic realm. During the Obama Administration, the United States had been in the vanguard of the promotion of the norm of transparency for natural resource governance. After having adopted section 1504 of the Dodd-Frank Act, President Obama also promoted the country’s membership in EITI

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“so that taxpayers receive every dollar they are due from the extraction of natural resources” (Obama, 2011). In 2014, the United States became the first G8 member and the largest economy to join EITI. The stipulations of the Dodd-Frank Act were from the beginning subject to negative lobbying by the American Petroleum Institute, the lobby group of the US oil industry. Their norm contestation was arguably the hardest form of contestation as they were out to directly revoke the standardized procedures (content of US Dodd-Frank Act) that were motivated by the organizing principle of transparency. The industry’s first mode of contestation was arbitration: they sued in court arguing that the US Securities and Exchange Commission, which was in charge of the implementation, overstepped its competences as this was not a matter of shareholder protection but of foreign policy. Moreover, they claimed that the provisions were violating the US constitution’s first amendment, which guarantees free speech, as it obliged companies to disclose information that might be harmful for them. As a result of these complaints, the judges sent the implementation rules back to the SEC to overhaul them in 2013. A second version of the rules was adopted by the Securities and Exchange Commission in 2016. In the meantime, however, the Republican Party had won control over the two chambers of Congress. It first stopped further implementation of these provisions and then worked toward a complete abolishment. In one of his first acts, President Trump signed a Congressional Bill to revoke all reporting obligations until further notice (Snow, 2017). Due to these legal changes, a few months later the United States withdrew from EITI as an implementing country (though they are still a supporting country) (US Department of the Interior, 2017). In their letter, the US Department of the Interior explained that they would continue to support transparency to improve resource governance, but that these domestic changed no longer allow them to comply with the EITI standards. While somewhat indirectly, the case of the United States can also be seen as a case of justification. Domestic companies used arbitration within the country, but, once they had been successful, the United States referred to its state sovereignty when withdrawing from EITI. In terms of contestation by extractive companies, there were some fears by NGOs that events in the United States could also inspire EU companies to demand weaker standardized procedures. And indeed, the other contestations caused some timid, soft contestation in the EU. Some European extractive companies used the first and second norm contestation processes, and especially the developments in the United States, as a motivation to question EU regulation in this area. In the review of country-by-country reporting requirements for extractive and logging industries, issued by the European Commission, industry representatives expressed their worries about a potentially more difficult competitive position. The French multi-sector industry association representing large companies, AFEP (Association Française des Entreprises Privées), explicitly called for the repeal of the legislation as they feared that the repeal of the Dodd-Frank Act would create a competitive disadvantage for European companies (Penttinen, 2019). AFEP had also communicated its worries in a 2016 meeting with Commission officials in which it argued that this legislation would disfavor European companies compared to US and Chinese companies. Moreover, they remembered the fact that the French Supreme Court had already raised

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concerns similar to those of their US counterparts about a possible infringement of economic freedom (European Commission, 2018b, p. 12). The lobby group International Association of Oil and Gas Producers also said in their statement that Indian, Chinese and US competitors would not need to provide a similar degree of transparency and repeated that “this is relevant in the context of the ongoing review of the EU Accounting Directive which is required to take into account international developments, including issues of competitiveness” (International Association of Oil and Gas Producers, 2018). In other words, the extractive industry used the mode of justification and argued that the standardized procedures (provisions of the Accounting and Transparency Directives) were potentially in conflict with the norm of economic freedom, as they were disadvantaged by them. As these statements indicate, the global developments also affected the domestic norm contestation process in the EU. These norm contestation processes were, however, much softer than in the United States as the large majority of the industry did not want to overhaul regulations completely (see more details in the next section) (Penttinen, 2019).

Outcome of the Norm Contestation Process: Transparency Withstands Despite these three different norm contestation processes, the organizing principle of transparency has withstood the pressure relatively well so far. In each of the three processes, different factors played a role and the EU contributed to some extent to them. This section will now discuss them one by one. Since the early 2010s, China has changed some of its strategy in Africa. Confronted with increasing local complaints about exploitative behavior, and even antiChinese riots and election platforms, the government and companies decided to adjust some policies to improve China’s standing in the region. While still prioritizing economic development, investors discovered the hard way in a couple of countries that good resource governance was not just some woolly idea but a necessity when doing business (e.g., when Chinese companies were not able to enforce extraction deals in Nigeria). In other words, as Zhao puts it, “Chinese companies began looking for the same guarantees that Western companies have long sought for in their investments,” which included also a politically and economically stable environment (Zhao, 2014, p. 1049). Moreover, with growing political clout, China wants to demonstrate that it also acts as a “responsible power” and is, therefore, increasingly cautious in dealing in with overly corrupt and violent regimes to avoid international reputational harm. An example of this trend is the 2014 Guidelines for Social Responsibility in Outbound Mining Operations by the Chinese Chamber of Commerce of Metals, Minerals and Chemicals Imports and Exports (CCCMC), which is supervised by the Ministry of Commerce. These guidelines recommend that Chinese companies abroad “disclose all payments which are made to foreign government entities in countries of operation, including in-kind payments and infrastructure projects, in line with global

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transparency standards, in countries where those apply,” while specifically highlighting the EITI. An EITI study shows that Chinese companies, contrary to widely held beliefs, do actually not perform worse in terms of transparency in EITI countries than Western companies (EITI, 2016). The report states that: to date, there does not appear to be any cases in which a company based in China has refused to collaborate with a host country implementing the EITI. On the contrary, this review conducted by the EITI International Secretariat finds that an increasing number of Chinese companies are disclosing information in EITI countries where they are required to report. (EITI, 2016)

In conclusion, China nowadays takes a pragmatic stance toward this norm: the country might have their reservations about promoting it globally, but if it serves their own economic interests, they are willing to comply with it. This change is also related to the second contestation, which places the fundamental norm of sovereignty over global standardized procedures, such as the EITI standard. The EU and other Western actors promote their understanding of good governance (in the same way as other fundamental norms like human rights) often through conditionality in Africa. For access to foreign direct aid or loans, the receiving states have to comply with external standards (Lujala, 2018). Countries that do not depend on external funding (such as oil-producing countries in the Middle East) are much less inclined to join EITI. For example, oil-rich Equatorial Guinea, which was 85 out of 89 in the 2017 Resource Governance Index, has to implement the EITI standard as part of an application for a loan of the IMF (Government of Equatorial Guinea, 2018). The fact that, only a few months after the application, the country’s leading transparency activist was severely beaten up by security forces was used by the NGO Human Rights Watch as an example to show that the government’s application was not so much motivated by a particular desire for better resource governance (Human Rights Watch, 2018). Recent studies show a large discrepancy between signing up to the EITI standards and actually implementing them (Lujala, 2018). In other words, many of these countries want to project the image that they live up to the norms of transparency and good governance for economic reasons, while making the implementation process as slow and tedious as possible (Lujala, 2018). In many cases, joining EITI or implementing good governance measures is not the result of a completely free choice: insisting on state sovereignty can also be a luxury that many states cannot afford themselves. For some time, China presented an option to countries that looked for external economic aid without strings attached, which would respect the partner countries’ sovereignty. The fact that China offered this alternative to Western actors or Western-dominated institutions (such as the IMF or the World Bank) strengthened the sovereignty norm (Zhao, 2014, p. 1038). However, as mentioned above, while China is still less concerned about good governance than the EU, they are increasingly more selective in their engagement in Africa. This has created an additional incentive for these countries to look for ways to demonstrate that they can provide a stable and trustworthy business environment. With regard to norm contestation from the European extractive industry, the large majority did not call for the removal of the EU provisions, but rather requested more

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efforts to expand EITI implementation (European Commission, 2018a, p. 58). As in other cases, the industry’s main concern was still an even playing field. The International Association of Oil and Gas Producers argued that EU and US rules would only capture 7% of global reserves of oil and gas, while EITI would at least capture 14%. According to them, “the ‘value added’ of the EU provisions is, therefore, not readily apparent. It would have been more efficient for the EU to use its considerable ‘soft power’ to influence some of the largest resource-rich countries of the world to implement the EITI Standard” (International Association of Oil and Gas Producers, 2018). The lobby group, in fact, indirectly suggested coercing countries into joining EITI by saying that “the European Commission could explore how to create linkages between the allocation of EU development aid and funds to countries joining the EITI system” (International Association of Oil and Gas Producers, 2018). The majority of the European companies that participated in the Public Consultation Process declared that they would not recommend any changes, and that they would prefer to wait some time to allow lessons to be learned from the initial reports submitted on the basis of the rules that are already applicable (Penttinen, 2019). Most EU companies are aware of the fact that the norm of transparency is deeply enshrined in Western states, and it would be hard to contest it openly (Partzsch & Vlaskamp, 2016). In fact, after the signature of President Trump to stop the implementation of section 1504 of the Dodd-Frank Act, even the President of the American Petroleum institute said that “the oil and gas industry strongly support[ed] transparency and ha[d] pursued this effort for over a decade through the Extractive Industries Transparency Initiative, a globally accepted framework” (Snow, 2017). How constructive and productive this participation has been may be a matter of discussion, but as these quotes illustrate, the majority of the Western industry wants to give at least the appearance of being concerned about transparency. This leads to a situation where some parts of the industry contest the norm in their country, while supporting and promoting it on the global scale. In the case of the EU, Publish What You Pay stated in a report that “industry representatives have sympathy with the underlying aims” and that some reports go beyond what is legally required (Publish What You Pay, 2018). Leading multinational extractive companies and the most prominent NGOs in this area even sent a joint letter to the European Commission in which they affirmed that they believed that “transparency is essential to promote good resource governance” and formulated a joint list of recommendations (mainly improving the data quality and accessibility, and working toward a global even playing field) (Extractive Industry Representatives & Civil Society Representatives, 2019). On the global level, norm contestation by other actors did not much affect the norm’s legitimacy. EITI has further grown in members in the past years. Initially, EITI was mainly a club of low-income economies. However, more mid-income and high-income countries are also joining the initiative, which gives it additional credibility. The fact that the United States (at least for some time), Norway, and EU Member States Germany, the Netherlands and the United Kingdom implement the EITI standards sends a clear signal that these countries genuinely believe in the norm

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of transparency and do not only want to use EITI as a tool to get control over natural resource in the Global South. In terms of domestic policies, Norway adopted similar policies to the EU in 2013. In 2014, Canada adopted the Extractive Sector Transparency Measures Act. Both regulations were very similar to the EU directives and are mutually accepted. As written above, one of the main concerns of the EU industry was red tape from a multitude of different national requirements. As a result of the developments in the United States, the EU’s directives are now the remaining gold standard. Other states and globally operating extractive companies turn now to the EU requirements as benchmark.

Conclusion This chapter discussed the contestation of the organizing principle of transparency to support the norm of good governance in the natural resource sector and how the EU coped with it. It explained how it has been contested indirectly in three different ways. First, by arguing that the fundamental norm of economic development comes before this organizing principle of transparency. According to the justification, good governance would be a result of economic development, not the other way around. Second, a number of countries rich in natural resources used the fundamental norm of sovereignty to justify the non-implementation of globally established standardized procedures, such as the EITI standard. These contesters also did not oppose transparency per se but maintained that their countries should find their own national standardized procedures to live up to this norm. Finally, extractive companies have contested national (or in the case of the EU, European) standardized procedures that required them to provide transparency about their payments for extraction contracts both domestically and abroad. The principle mode of contestation was a combination of referring to the fundamental norms of sovereignty and economic freedom. Again, the organizing principle of transparency was not criticized directly but the standardized procedures that were implemented as a consequence. In all three cases, the norm contestation did not remain at one level of Wiener’s normative grid. This confirms findings in other chapters of this volume (JohanssonNogués, Vlaskamp and Barbé, this volume). During the norm contestation process, other fundamental norms were used to justify preferences regarding standardized procedures. Moreover, the hierarchy was questioned. Almost all contestations could also all be characterized as soft contestations: none of the contesters went out to “destroy” the norm of transparency openly. The hardest form of contestation could be seen when the US oil industry successfully contested the stipulations of the US Dodd-Frank Act. These results indicate that the norm’s legitimacy has withstood until now. At the global scale, the norm does not have seen to have suffered too much from the events in the United States, and its resilience is further strengthened by China increasingly recognizing its merits. In fact, the EU has now become a global champion in this

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area whose rules have been emulated by other countries, as the United States has fallen away as standard-setter. There is no evidence that the EU considered changing its norm promotion, either in Africa or anywhere else. There have also been no changes detected within the EU. In spring 2019, the European Commission reviewed Chap. 10 of the EU Accounting Directive. In their survey among industry representatives, the Commission did not detect much appetite for larger changes. While the developments in the United States had caused fears about their competitive situation with respect to US companies, they argued that the bureaucratic and financial implications of current EU regulations were less than expected. Consequently, they preferred stability and predictability above new changes. For the EU industry, it was more important to have an even playing field and it, therefore, urged the Commission to promote this norm, through EITI, even more aggressively. In sum, this chapter draws a picture of a rather resilient norm: both domestically and globally the contestation processes did not have any major impact on its legitimacy. The EU played an important role in this resilience by establishing domestic standards to serve as a new benchmark and support EITI. Acknowledgements Martijn C. Vlaskamp thanks the Beatriu de Pinós postdoctoral program of the Government of Catalonia’s Secretariat for Universities and Research (Ministry of Economy and Knowledge) for funding (Grant number: 2017-BP-152). Research was also supported by the EU’s Horizon 2020 Research & Innovation program (grant number 660245). Martijn thanks Carla Perucca for valuable research assistance and Alanna Irving for proofreading this text. The usual attribution of possible faults applies.

References Aaronson, S. A. (2011). Limited partnership: Business, government, civil society, and the public in the Extractive Industries Transparency Initiative (EIT). Public Administration and Development, 31(1), 50–63. African Union Commission, & European Commission. (2008, October 8). Joint statement of the African Union Commission (AUC) and the European Commission (EC) On the implementation of the Africa-EU Energy Partnership. Retrieved March 14, 2013, from Africa-EU Energy Partnership website: http://www.aeep-conference.org/documents/signed_joint_statement_on_energy_ partnership.pdf. Benschop, D. (2013, February 18). Opinie artikel in het FD… Graag eerlijk zijn over transparantie. Het Financieele Dagblad. Retrieved from http://www.shell.nl/nld/aboutshell/media-centre/newsand-media-releases/archive/2013/opinion-article-fd-21022013.html. Carroll, C. (2012, October 10). API files court challenge against costly, anti-competitive SEC rule. Retrieved March 17, 2013, from American Petroleum Institute website: http://www.api.org/newsand-media/news/newsitems/2012/oct-2012/api-files-court-challenge-against-costly-sec-rule. Collier, P., & Hoeffler, A. (2002). On the incidence of Civil War in Africa. Journal of Conflict Resolution, 46(1), 13–28. Corrigan, C. C. (2014). Breaking the resource curse: Transparency in the natural resource sector and the extractive industries transparency initiative. Resources Policy, 40, 17–30. Cust, J. (2018). The role of governance and international norms in managing natural resources. In Tony Addison & Alan Roe (Eds.), Extractive industries: The management of resources as a driver of sustainable development. Oxford: Oxford University Press.

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Sala-i-Martin, X., & Subramanian, A. (2003). Addressing the natural resource curse: An illustration from Nigeria. Columbia University Department of Economics Discussion Paper Series, Discussion Paper #:0203-15. Snow, N. (2017). Trump signs CR rescinding SEC foreign payment disclosure requirement. Oil & Gas Journal. Retrieved from https://www.ogj.com/articles/2017/02/trump-signs-cr-rescindingsec-foreign-payment-disclosure-requirement.htm. Sovacool, B. K., Götz, W., Van de Graaf, T., & Andrews, N. (2016). Energy governance, transnational rules, and the resource curse: Exploring the effectiveness of the Extractive Industries Transparency Initiative (EITI). World Development, 83, 179–192. UN General Assembly. (2008). Resolution adopted by the General Assembly on 11 September 2008: Strengthening transparency in industries. Retrieved from https://www.un.org/en/ga/search/view_ doc.asp?symbol=A/RES/62/274. US Department of the Interior. (2017, November 2). Letter to EITI. Retrieved from https://eiti.org/ sites/default/files/documents/signed_eiti_withdraw_11-17.pdf. Zhao, S. (2014). A Neo-Colonist predator or development partner? China’s engagement and rebalance in Africa. Journal of Contemporary China, 23(90), 1033–1052.

Martijn C. Vlaskamp is a Beatriu de Pinós Fellow at the Institut Barcelona d’Estudis Internacionals (IBEI). Prior to that, he was a Marie Skłodowska-Curie Global Fellow at Yale University and IBEI. Martijn is a member of the Observatory of European Foreign Policy in Barcelona. His research interests include the prevention and termination of armed conflicts, with a special emphasis on the role of natural resources. Martijn’s work has been published in Cooperation and Conflict, West European Politics, and other peer-reviewed journals.

Chapter 7

The European Union and the International Criminal Court: Contested Abroad, Consensual at Home? Gemma Collantes-Celador and Oriol Costa

The International Criminal Court is the latest step in the normative acceptance that serious violations of human rights cannot go unpunished in a rules-based international order, and that fairness and judicial independence must prevail in the prose1 cution of these crimes (European Union, 2011). It embodies, operationalises, and empowers the fundamental norm of justice, with the corollaries of legal accountability/individual criminal accountability and denial of impunity, through its authority to bring to justice individuals guilty of war crimes, crimes against humanity, genocide and—following the decision adopted in December 2017—crimes of aggression. It is not just another institution but rather represents “the establishment of a system of international criminal accountability, with the ICC standing firm at its centre” (Bekou, 2014, p. 11—emphasis in the original). The EU and member states, with a record of strong support for international criminal justice throughout the last two decades, wholeheartedly identify with the fundamental norm and practices that are administered through the Court; norm and practices that are fully in line with the defining values of the European project. The resulting “loyal” support for the Court (Aoun, 2008, p. 157; Groenleer & Rijks, 2009, p. 167) tends to be presented as a contrast to the contestation from other international actors. This has earned this institution the title of “EU Court” (Groenleer & Rijks, 2009, p. 167).

1 For the rest of the chapter, the International Criminal Court will be referred to by its acronym “ICC” or by the expression “the Court”.

G. Collantes-Celador (B) Cranfield University at the Defence Academy of the United Kingdom, Shrivenham, UK e-mail: [email protected] O. Costa Universitat Autònoma de Barcelona (UAB), Barcelona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_7

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Without denying the EU and member states’ support for the ICC as an arena to administer the fundamental norm of justice, in this chapter we argue that there are bouts of intra-EU disagreement that have made it at times difficult (but not always impossible) to maintain a common position. Such bouts of disagreement coincide with key junctures when external contestation of the norms embedded in the project of the Court is at its highest. We focus on the relationship between the internal (intraEU) and external (international) levels and ask how the EU has reacted to external contestation of the ICC. ¿Can the EU rally behind a common position or does external contestation promote internal differences? On the basis of a range of sources, we analyse three key junctures in the history of the ICC, from its inception in 1998 to date2 : (1) the USA challenge to the authority of the ICC in the form of bilateral immunity agreements; (2) the African Union opposition to ICC cases against sitting heads of state and (3) the incorporation and activation of the crime of aggression. In line with our interest in the effects of external contestation on EU unity, this chapter is organised in a slightly different manner to other chapters in this edited volume. In the first part of the chapter, we identify the norms contested and the motivations and modes of contestation adopted by external contesters, to then move to internal debates within the EU to understand how member states have contested or defended those same norms. In the third and final part of the chapter, we use the three case studies to reflect on potential links between both levels, external and internal, and explore EU patterns of behaviour during those key junctures depending on the norms contested and the predominant modes of contestation.

The ICC and Norm Contestation The idea that the international community needs to ensure individual criminal accountability and fight impunity for the most serious crimes against human rights if justice is not (or cannot be) administered at the national level has a long history. After World War II, it inspired the Nuremberg and Tokyo trials, and it gained momentum during the 1990s, with the end of the Cold War and the changing nature of violent conflicts (i.e. the predominance of intra-State conflicts). Since then, it has been embodied and pursued through the work of ad hoc international criminal tribunals and special courts/tribunals for Rwanda, the former Yugoslavia, Sierra Leone and Lebanon. The ICC is also based on this fundamental norm that the international society has to administer justice when human rights suffer the worst violations. Two corollaries of such norm appear self-evident: legal accountability for individuals that have committed criminal offences and denial of impunity. The Rome Statute, which established the ICC, enshrines this norm in its preamble (1998, p. 1): 2 In

addition to academic sources in the fields of European foreign policy, transitional justice and international criminal justice, our analysis relies on Court documents arising from the Rome and Kampala conferences and meetings of the Assembly of State Parties, documentation from key institutions in the EU and information produced by the Coalition for the ICC (CICC).

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Mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity […] the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must been ensured […] determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.

The support for the norm has been reiterated and sustained over time. Every year the Assembly of States Parties (ASP) approves a resolution, usually under the title Strengthening the International Criminal Court and the Assembly of States Parties, mimicking, with small variations, the language of the Rome Statute. The ICC is, in fact, more than the representation of this seemingly consensual norm. It is meant to contribute to the process of moving the fight against impunity from states to courts, concluding the transition from “victor’s justice”—best represented by Tokyo and Nuremberg—to “true international justice” (Hoover, 2013, p. 265). The distinct way in which the ICC embodies the fundamental norm of justice has led to the elaboration of a particular set of organising principles and institutional practices. The main novelty of the ICC is that it is a standing body, in contrast with the previous ad hoc tribunals created by, and provided with a one-time jurisdictional mandate designed by, the UN Security Council (UNSC). It is thus more prone to develop a greater autonomy vis-à-vis the Council and its veto-power members. In this way, under the veil of consensus around the fundamental norm, contestation has emerged with regards to the Court’s limits on matters of judicial independence and jurisdictional scope. This is also the reason why this chapter pays more attention to the institution than other chapters in this volume: it is the institution that sets the mechanisms by which justice (the fundamental norm) is administered. The first key organising principle pertains to matters of “exercise of jurisdiction” whereby under Article 15 of the Rome Statute, the prosecutor of the ICC can initiate investigations and/or prosecutions without the prior authority of state parties, albeit dependent on the ICC judges for decisions on arrest warrants, summons to appear, or decisions to proceed to trial (Collantes-Celador, 2016, p. 74). Having said that, the relationship between the Court and national criminal jurisdictions is governed by the principle of complementarity. The ICC is complementary to national criminal courts—it can only deal with cases where it has demonstrated that a state is unable or unwilling to investigate or prosecute on those crimes (Rome Statute, 1998, Articles 1, 17). However, the specific circumstances that would prove a lack of ability or willingness are of course far from clear and thus, the subject of ongoing interpretation—and conflict. Secondly, the Court’s jurisdiction is not universal and therefore only covers crimes where the nationality of the suspect or the location of the crime belong to a state party, except for those situations where a new state party chooses to exempt itself from ICC jurisdiction over war crimes for a period of seven years after the entry into force of the Statute. On the other hand, exceptions to this non-universality rule include non-state parties that approve the Court’s jurisdiction for that particular case or referrals made by the UN Security Council (UNSC) using Chapter VII of the UN Charter powers (Rome Statute, 1998, Articles 12, 13, 124). Finally, another matter pertaining to organising principles is the independence of the ICC in relation to the UNSC. Although the ICC is an independent judicial institution, there are a number

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of ways in which this UN organ can influence its work, from referrals to deferrals of specific cases (for more details see Collantes-Celador, 2016, p. 75). Yet again, the specific ways in which such powers influence the autonomy of the ICC have been hotly debated—particularly by some permanent members of the UNSC. Standardised procedures are plenty and occupy most of the Rome Statute and resolutions issued by the Assembly of State Parties (ASP). They have to do with the ways in which investigations and prosecutions take place, the role of victims, decision-making procedures at the ASP itself, funding provisions, and the rules of procedure and evidence, for instance. They also have to do with the specific ways in which different cases are managed along the process. Let us see now how contestation played out in our three case studies.

Bilateral Immunity Agreements and International Criminal Justice Already during Bill Clinton’s last term, the stance taken by the USA towards the ICC was reluctant. However, the inauguration of George Bush’s presidency in January 2001 prepared the stage for a head-on confrontation. On 6 May 2002, the new administration withdrew the US signature of the Rome Statute. In June that same year, the US vetoed in the UNSC the renewal of the peacekeeping mission in Bosnia and Herzegovina and “threatened to block all future missions if the Council did not pass a resolution exempting all UN peacekeepers from ICC jurisdiction” (Fehl, 2012, p. 88). Two months later, it enacted the American-Service-Member Protection Act (ASPA), also known as the “Invasion of the Hague Act”. It mandated cuts in military aid for states supporting the ICC and provided that “all means necessary” could be used to free US service people from the Court’s custody (Fehl, 2004, p. 362). As part of this same effort, the USA pressured dozens of states to conclude bilateral immunity agreements (BIAs) that prevented the extradition of current and former government officials, military personnel, civilian contractors, and other US nationals to the ICC (Groenleer & Rijks, 2009, p. 171). Sometimes such pressures included serious threats, as in the case of Eastern European countries and the menace to block their NATO applications (Fehl, 2012, p. 89). Contestation by the USA can be understood in this context as a direct attack on the fundamental norm embodied by the ICC—the norm of justice in the face of the most serious crimes against human rights. Although when it comes to BIAs, the attack was focused on an organising principle—the Court’s power to prosecute nationals of nonmember states for crimes committed in the territory of a state party—the implications were far broader and threatened the integrity of the ICC project. It could potentially debilitate the Court’s capacity to fight impunity with important consequences for its legitimacy and day-to-day effectiveness (see Collantes-Celador, 2016). Moreover, the BIAs did not happen in a vacuum but rather were part of a broader policy of “active marginalization” (Bosco, 2014, p. 178) that also included public statements

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from senior members of the Bush administration, attempts to dissuade states from joining and supporting the Court, the use of the veto in the UNSC, and the socalled unsinging of the Statute.3 Against such a broader context of US pressure on the Court from 2002, the EU saw the ICC imperilled (Thomas, 2005, p. 23). The EU interpretation of the US campaign on BIAs was that the “integrity of the Rome Statute” was at stake (Groenleer & Rijks, 2009, p. 172). Contestation by the USA took by and large a justificatory mode, since it was the validity of the fundamental norm itself, and not the application to one particular set of cases, that was at stake. In the early 2000s, the USA saw the ICC as the organizational embodiment of a norm (the international deliverance of justice to protect human rights against the worst abuses) that had gone too far in its defiance of national jurisdictions and sovereignty and had to be stopped in its tracks. At the same time, the USA did frame part of its efforts in ways consistent with the Rome Statute. For instance, BIAs were presented as “article 98 agreements”, in reference to Article 98(2) in the Rome Statute that deals with situations when requests by the Court for assistance arresting or surrendering a citizen of a third state are inconsistent with a state party’s obligations under international agreements. In those occasions, the argument was presented in a way that smacked of deliberation.

Sitting Heads of State, Between Justice and Sovereignty African countries were key in ensuring the 1998 signing of the Rome Statute and its subsequent ratification and implementation in the following years, as evidenced by the 2004 African Union call to universally ratify the Statute and the fact that Africa is the largest regional grouping in the Court (for a more detailed discussion see Collantes-Celador, 2016). In addition, Uganda, Mali, Central African Republic and the Democratic Republic of Congo are among those that have self-referred cases to the ICC. However, at some point, the pendulum swung. Although growing discontent with the Court had been building for a while, given that—at the time of writing—all cases brought to the ICC still relate to African “situations”, the tipping point was the Court’s decision to indict at the time the sitting heads of state of Sudan (President Omar Hassan Ahmed al-Bashir) in 2009 on the basis of a UNSC referral, and Kenya (President Uhuru Kenyatta and his deputy William Ruto) in 2011 on the basis of actions by the Court’s Prosecutor. What the African Union has protested against is the Court’s exercise of its powers under Article 27 of the Statute that extends the “anti-impunity norm” (Mills & 3 Countries

like Russia and China do share reservations on the ICC and its powers but, contrary to the USA, their policy preference has been to “watch the Court closely” through their diplomatic representation in The Hague and the presence of observer delegations at the Court (Bosco, 2014, p. 133). China never joined, and Russia withdraw its signature in 2016 following the Court’s decision that the situation between Russia and Ukraine amounts to an armed conflict and that Russia’s annexation of Crimea constitutes an occupation.

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Bloomfield, 2018; Rome Statute, 1998), a corollary to the fundamental norm of justice, to sitting heads of state, overriding the immunity prerogatives that have for long been associated with the fundamental norm of state sovereignty, itself based on the UN Charter principles of sovereign equality, non-interference and self-determination (Mills & Bloomfield 2018, p. 106). In other words, what was at stake was the debate on the territory that the fundamental norm of justice should occupy with respect to the fundamental norm of sovereignty; a crucial debate from the point of view of realising the Court’s objective of fighting impunity. Some of the tactics employed by the African Union fall under the category of deliberation since it recognised the legitimacy of the Court and tried to use it to stop the cases against the Sudanese and Kenyan Heads of State. Examples include the African Union requests to the UNSC to approve a postponement of the case against President al-Bashir as permitted by Article 16 of the Statute; and the Kenyan campaign to have the rules on the appearance of sitting heads of state at trial changed and which culminated in modifications in the Court’s rules of procedure and evidence. Also the use of Article 98(1) of the Statute, whereby requests by the Court for assistance arresting or surrendering a citizen of a third state are inconsistent with a state party’s obligations under international law, in this case the Vienna Convention that provides diplomatic immunity and decisions of the International Court of Justice and the US Supreme Court (Mills & Bloomfield 2018, p. 104; Sadushaj, Shatku, Pustina, Kuka, & Taraj, 2017). However, other aspects of the contestation by the African Union—albeit with disagreement from some of its member states—relied on a justificatory mode, aimed at weakening the effectiveness, credibility and legitimacy of the Court. Examples include plans for a mass withdrawal from the ICC of its member states or calls to those very same members not to fulfil their obligations as state parties by refusing to cooperate with the Court in apprehending—at the time—President al-Bashir. To this, we can add the de-legitimizing campaign by the African Union and some of its member states that labelled the Court as imperialist, colonial, pro-West and which therefore endangered the much-fought image of a neutral institution in the pursue of universal justice (for more examples, see CollantesCelador, 2016).

The Crime of Aggression and the UNSC The crime of aggression is mentioned in Article 5 of the Rome Statute, but agreement on a definition, conditions for the exercise of jurisdiction and for the entry into force of those powers were suspended until the 2010 Kampala Review Conference. The conference “offered states parties the first opportunity to amend the Rome Statute” (Davis, 2014, p. 85), and the debate was accordingly intense. The outcome, known as the Kampala amendments, granted the Court the power to prosecute “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of

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the Charter of the United Nations” (Review Conference, 2010, Annex I.2—Article 8bis). Such power was nevertheless granted under a very specific jurisdictional regime. Its activation was postponed until after 1 January 2017 when such decision would need to be adopted by a two-thirds majority of the Assembly of State Parties (ASP), and it could only be exercised over acts committed one year after thirty state parties to the ICC had ratified the amendments. Moreover, the Court’s jurisdiction was further limited, not just by other pre-existing clauses included in the Rome Statute (as discussed earlier in this chapter), but also by the inclusion of “opt-outs” whereby state parties could lodge a declaration of non-acceptance of jurisdiction with the Court’s Registrar at any point in time. Moreover, any investigation initiated by the ICC Prosecutor would need to first confirm if the UN Security Council (UNSC) had made a determination of the existence of an act of aggression and, if it had not done so, give it six months to consider (Review Conference, 2010). As per the timeline agreed at Kampala, in 2017 new negotiations took place in the ASP over the activation of the Court’s jurisdiction. The most contentious issue during these negotiations was the question of whether the Court would be able to exercise jurisdiction over nationals of state parties that had not ratified the aggression amendments and who had also not applied for an opt-out. The agreement ultimately reached in December 2017 by the ASP sets 17 July 2018 as the day the crime of aggression is officially activated and takes what is considered in the literature as the “restrictive position” on its jurisdictional scope, meaning the Court does not have jurisdiction over the abovementioned two categories (Akande, 2017). The only way of overruling this restrictive position is if the UNSC refers a crime of aggression to the ICC. In this occasion, what was being contested was not the fundamental norm; that is, the administration of justice in the face of the crime of aggression, a corollary to the prohibition on the use of force as described in the UN Charter, and therefore, worth of the label of “the arch-crime which most menaces international society” (Cassese, 1999, p. 146). Rather, the attention was on an organising principle; i.e. the level of independence that the Court should have in relation to the UNSC. In this case, the question was whether the ICC should have the authority to independently determine violations of the crime of aggression or whether such authority should remain exclusively in the hands of the UNSC. While the USA, who was actively involved as an official observer in the negotiations, had a number of concerns around the crime of aggression, the crux of its position was indeed on the matter of ICC–UNSC relations over this crime, a position that was shared by the other permanent members of the UNSC. Such divisions of opinion could also be found among key supporters of the Court, namely members of the pro-ICC “Like-Minded Group” of states (a grouping that included in addition to the “EU 13”, African, Caribbean and Latin American countries as well as Canada and Australia). NGOs that were part of the Coalition for the International Criminal Court (CICC) equally showed doubts on introducing strong provisions on the authority of the ICC over the crime of aggression (Davis, 2014,

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p. 87; CICC, 2010, Executive Summary). However, as we will see later on, their motivations were different from those of the USA. Contestation was primarily based on social practices that fall under the category of deliberation, given that all discussions took place in the formal framework of Statute-related negotiations (Rome and Kampala) and the Assembly of State Parties, and “according to semi-formal soft institutional codes” to use Weiner’s terminology (2014, p. 1). In other words, all actors—including known opponents like the USA— shared the legitimacy of the venue, the process by which the issue would be decided and the fundamental norm embodied by the Court.

The EU and International Criminal Justice The EU has lent a good deal of support to the ICC. EU member states were among the first to ratify the Rome Statute, and they contribute the largest share to the ICC budget. Key ratifications by third states (most notably that of Japan in 2007) have also been attributed to the “tireless efforts of the European Union and its member states” (Groenleer & Rijks, 2009, p. 170). Herman van Rompuy, at the time President of the European Council, explained the relationship between the EU and the ICC as follows: “support to the ICC has become one of the symbolic anchors of the EU’s external policies, fully in line with our defining values” (European Council-the President, 2010). However, during the Rome negotiations, the EU’s policy towards the ICC was very much driven by the policies of individual member states. Differences were too important regarding organising principles, particularly between the “EU 13” (those EU member states that belonged to the pro-ICC “Like-Minded Group”) and the UK and France that held positions closer to those of the other UNSC permanent members. Those differences were not minor, as they related to “the definitions of crimes […], the preconditions for the Court’s exercise of its jurisdiction […], ‘triggers’ for investigations […], and the ‘admissibility’ of cases in light of domestic criminal investigations” (Fehl, 2012, p. 85; see also Aoun, 2008). Such differences precluded the use of the EU as an institutional framework to put together any common position, apart from “broad statements of the Council Presidencies merely welcoming the proposed establishment of the ICC” and the presence of the Commission as an observer (Groenleer & Rijks, 2009, p. 169, 178). Just after the Rome Statute received the required number of ratifications to enter into force in July 2002, a special subarea on the ICC was added to the Council’s Public International Law Working Group (COJUR). COJUR/ICC, a technical body filled with legal experts from the member states, has acted since then as the key internal mechanism for policy coordination in the EU. COJUR–ICC meets between four and five times a year in Brussels and once a year in The Hague in closed sessions, which involve representatives from the member states, the Council, the EEAS and the Commission. Recommendations made by COJUR-ICC are frequently just channelled through COJUR, taken on by the Political Security Committee, and later

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adopted by the Council without “much discussion” (Groenleer & van Schaik, 2007, p. 981). In this way, since the entry into force of the Rome Statute, socialisation dynamics within the CFSP bureaucracy and policy and institutional efforts to streamline internal coherence on ICC-related matters have allowed for broad consensus to prevail (Collantes-Celador, 2012; Costa and Müller, 2018; Groenleer & van Schaik, 2007, p. 981). Nevertheless, such efforts have not produced a perfect socialisation into a common position. Differences among member states and other intra-EU actors have re-emerged at significant junctures in the development of the Court, particularly when such junctures have been accompanied by contestation from other key actors in the international system, as illustrated by the three episodes analysed in this chapter. Such contestation has usually taken place with most of the EU in one side of the debate and France and the UK on the other (together with other permanent members of the UNSC). Davis has argued that when there are major debates about the relationship between the ICC and the UNSC, “the EU does not reach a common position”. And, it does not even try too hard. Disagreements on the organising principles that shape this relationship are taken for granted, and thus “EU member states in ASP [Assembly of State Parties] can and do build an alliance with a range of like-minded non-EU ASP members” (Davis, 2014, p. 93). Such shows of disunity have actually even been described as more desirable than pushing the pursuit of consensus too far: “as EU member states already coordinate their positions through the EU” on all the other issues related to international criminal justice, “further coordination could risk a lowest-common-denominator approach” (Davis, 2014, p. 93) that would leave the EU with the worst of two worlds. Intra-EU contestation is thus an imperfect term for what is mostly an overt display of diverging opinions on organising principles (rather than internal disapproval) among EU member states at meetings of the ASP or the UNSC, on the background of a broad consensus on the day-to-day support for the fundamental norm of justice enshrined in the ICC. With the exception of the BIAs, where there is some evidence of deliberation within the EU, the case studies presented in this chapter illustrate clearly the abovementioned fact.

The EU and BIAs The move by the USA from lukewarm reluctance (Clinton) to all-round opposition (Bush) was seen by many EU member states as demanding a common response. EU countries saw the involvement of the Union as a way to “overcome internal differences on the admissibility and desirability of a compromise with the Bush administration” (Gronleer & Rijks, 2009, p. 181). Having said that, internal coherence did not emerge spontaneously. Initially, EU member states were all over the map. Some EU member states openly opposed such agreements and wanted to rule them out completely—Germany, Austria, Belgium, Finland, Greece, Ireland, Luxembourg and Sweden. The UK and Italy opposed such prohibition, though, “and even indicated their readiness to follow the US requests”. Finally, France, Denmark, Portugal, Spain

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and the Netherlands seemed to hold a middle position. To take the case of France, on the one hand, it “argued that the Rome Statute allowed the Security Council to defer ICC investigations on a case-by-case basis” but, on the other hand, it was also clear in its position that “the Statute was never designed to provide sweeping immunity from prosecution” (all quotes are taken from Fehl, 2012, p. 89; see also Thomas, 2005, pp. 26, 36). The EU response to US pressure to sign BIAs was strongly shaped by the Rome Statute as such, as it created a corpus of norms to which EU actors could refer to. In early August 2002, candidate states asked the European Commission “whether the EU would consider a bilateral agreement with Washington to be consistent with the requirements of the Rome Statute” (Thomas, 2005, p. 38). The Commission’s Legal Service concluded that candidate states should refuse to sign such agreements as proposed by the USA. In parallel, COJUR/ICC had concluded also that the US request was unacceptable as it stood, a conclusion endorsed by the Political Security Committee on 10 September 2002. In spite the meeting was “contentious”, most COJUR/ICC members considered, “regardless of their governments’ position”, that the US quest for immunity was “an assault on the Court” (Thomas, 2005, p. 37). The leakage of the Commission’s opinion to the press two days before the EU foreign ministers had to discuss the issue shaped the debate in terms of whether a minority of member states could “trump the majority of member states, supported by the European Commission, the European Parliament and an attentive public” (Thomas, 2005, p. 36). Accordingly, by the end of September 2002, the EU General Affairs Council unanimously adopted a number of “guiding principles” that established that BIAs could not be signed as proposed by the USA (Council of the EU, 2002). They could only be permissible under two conditions, which would have made BIAs meaningless for the USA: “no impunity” (again a reference to the fundamental norm)—i.e. “if they obliged signatories to prosecute crimes domestically”; and “no reciprocity”—i.e. “if they did not protect the nationals of ICC states parties from surrender to the Court” (Fehl, 2012, p. 89). In spite of the initial division, unity among EU members states on this matter was reflected by the fact that none ratified a bilateral non-surrender agreement with the USA, including Romania, whose government had initially signed one. The EU tried to deal with the US proposal over BIAs in a constructive manner, by exploring the leeway enabled by the Rome Statute itself—after all, BIAs had been framed by the USA as “article 98 agreements”, even if as Thomas (2012, p. 463) points out, most legal experts did not seem to agree with this argument. In other words, it addressed the US concerns as if they had to do with organising principles, and as if they were advanced in a deliberative manner. However, this effort was to no avail. The limits imposed by the guiding principles left the US intentions, which amounted to an all-out contestation of the fundamental norm underpinning the ICC, outside of what was perceived as acceptable by the EU.

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The EU and the Immunity of Sitting Heads of State The EU showed by and large internal unity vis-à-vis the challenge posed by the African Union to the fundamental norm embodied by the Court, defending the antiimpunity norm in their reaction. This position is best exemplified by the words of the President of the European Council, All parties to the Rome Statute should fully respect their obligations. These obligations are part of international law, they cannot and must not be overruled by political statements, actions or inaction that are incompatible with their undertakings. The European Union will continue to pay close attention to the implementation of these commitments in its external relations with other partners. (European Council 2010, cited in Collantes-Celador, 2016, p. 84)

Underlying the EU position was recognition that the Court’s credibility and legitimacy depend on states cooperating to ensure this institution delivers on its objectives of providing justice for the most serious violations of human rights and fighting impunity. This is clearly illustrated in the uncompromising stance towards acts of non-cooperation that the EU presented in its 2013 Response to Non-cooperation with the International Criminal Court by Third States, based on the work of the COJUR/ICC. Relations between the EU and Kenya suffered following the implementation of these guidelines: “Nairobi is particularly aggravated by the European Union’s policy of limiting contacts, which largely avoids any encounter with the accused president and vice-president but at the same time continues existing cooperation as long as the Kenyan government cooperates with the ICC” (Hellwig-Bötte, 2014, p. 3). The existence of intra-EU unity does not predetermine the type of policy response that follows. The arrest warrant on al-Bashir is a good example. Bosco points out that there was broad European support when Denmark announced that al-Bashir would be arrested should he appear at the December 2009 Copenhagen climate change conference. But this author also shows that “the European major powers – Britain, France, and Germany – were most ideologically inclined to support the Court […] often struggled to respond quickly to Bashir’s moves” (2014, pp. 156–157). Such a reality prompted former ICC Chief Prosecutor Moreno-Ocampo to complain that “the European Union was ‘doing nothing’ to pursue Bashir”, even if those same EU member states were key to ensuring that the UNSC referred the case of Darfur to the ICC (Bosco, 2014, p. 156). As discussed elsewhere (Collantes-Celador, 2012, pp. 157–158), the British and French considered a deal—that ultimately came to nothing—that would have dropped the indictment of al-Bashir in exchange for Sudan transferring to the ICC other officials indicted in April 2007, supporting the peace process and permitting the hybrid UN-African Union peacekeeping mission in Darfur (UNAMID) to fully deploy. The British and French consideration of this deal may have been influenced by concerns over the impact the al-Bashir’s indictment could have on conflict resolution in Darfur, the peace process between north and south Sudan and the safety of international personnel on the ground.

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What the examples of the UK, France and Germany show is that, given the complicated situation on the ground due to ongoing conflict, these countries may have had oscillating positions in relation to the “peace vs justice” debate, but this fact does not necessarily detract from their support of the EU position on cases of non-cooperation with the Court. The EU as a whole found itself making similar temporary concessions. Those same factors may have been behind the European leaders’ consideration in 2011 to put on hold for a year the ICC case against al-Bashir to show support to the Southern Sudan succession referendum and to encourage future restraints on human rights violations in Darfur.

The EU and the Crime of Aggression As seen above, a sizeable group of pro-ICC actors had deep reservations on extending the jurisdiction of the Court to include the crime of aggression, out of concern that the justice norm embodied by the Court could be harmed. Their hypothesis was that there was a real possibility that the energy spent to ensure that the Court would be shielded from politics could be undermined depending on how much power was afforded to the UNSC over ICC jurisdiction for this type of crime (CICC, 2010, p. 9; Davis, 2014, p. 87). Such politicisation could arise from “the hurdles to its application, interpretations of its meaning, and the political interests involved” (Duerr, 2017) given that ultimately with such crime the ICC would be prosecuting “state policy in a way that other crimes need not” (Bosco, 2014, p. 54). Complementary to this fear of politicisation were the arguments that activating the crime of aggression could work against the goal of universal acceptance of ICC jurisdiction and/or could endanger military interventions under the umbrella of the “Responsibility to Protect” (R2P); an organising principle that operating outside the Court’s framework was nevertheless complementary in the pursue of the fundamental norm of human rights protection (for a discussion of the relationship between the ICC and R2P see Ainley, 2015). Due to significant divisions among EU member states, there was no common position at Kampala, which meant that the Union played a very limited role, if at all (Davis, 2014, pp. 87–88). On the one hand, there were countries like the UK and France that sided with the permanent members of the UNSC on the issue of giving exclusive rights to the Security Council to commence prosecutions by the Court “unless there were changes to the jurisdictional filter” (Davis, 2014, p. 87; Bosco, 2014, p. 164; Márquez Carrasco, 2010). On the other hand, there were countries fully supportive of providing the Court jurisdiction over this crime, such as Greece, Germany—who fought hard to have this included as early as the Rome Statute—or even Poland, whose representative expressed the following view in October 2017 during a debate at the UN General Assembly: “throughout history, Poland repeatedly had fallen victim to aggression […] It is our dream to save others from such cruelties” (cited in Duerr, 2017—see also Kreß, 2018).

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The lack of a common position within the EU on the crime of aggression has continued since Kampala, despite the momentum generated by the German ratification of the amendments (June 2013) and European Parliament resolutions calling on all member states to ratify (see, for example, European Parliament, 2011). In this regard, the difference between the Rome Conference (1998) and the Kampala Conference (2010) is striking. In both cases, the EU struggled to develop a single voice, but while in the first case the adoption of the Rome Statute allowed member states to rally behind it and make common cause, the Kampala amendments have continued to prove divisive. By 11 April 2019 and out of a total of 37 ratifications, 19 EU member states had completed the ratification process with an additional five working actively towards the completion of that process.4 Missing from this list were the UK, France, Denmark and Sweden. Different interpretations among member states on the entry into force procedures for this type of crime as stipulated by the Kampala amendments seem to be behind this slower than expected ratification process (no author, 2013). The lack of internal EU consensus continued during the 2017 negotiations in the Assembly of State Parties over the activation of ICC jurisdiction over this type of crimes, as per the timeline agreed at Kampala. The “restrictive position” that prevailed was advocated by some EU countries, but not all, and those that actively supported this position—UK, France—joined forces with non-EU member states like Japan, Colombia and Canada (Kreß, 2018, p. 9).

Patterns of EU Behaviour Towards Norm Contestation on the ICC By now, it should be clear that agreement within the EU has never been completed when it comes to its policy on the ICC due to debate within the Union on some of the organising principles that enable the translation of the fundamental norm embodied by the Court into specific actionable decisions. Those instances of lack of unity among members states and other intra-EU actors have tended to coincide with key junctures in the development of the Court when there were significant levels of external contestation. In this chapter, we sought to answer the question: Can the EU rally behind a common position or will external contestation promote internal differences too? Another equally interesting question is whether the EU can maintain its authority and credibility as a norm promoter in the face of broad international contestation of the ICC. This chapter cannot provide definitive answers to these two questions on the basis of the three case studies explored: the US BIAs challenge, the African Union challenge and the challenge of incorporating and activating the crime of aggression. Nevertheless, these three cases—the most relevant episodes to date

4 This

data can be found at https://crimeofaggression.info/the-role-of-states/status-of-ratificationand-implementation/ [last accessed 14.04.2019].

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in terms of norm contestation of the Court5 —allow us to begin to think of potential patterns in EU behaviour when confronted with international contestation. The three case studies analysed here indicate that the capacity of the EU to articulate a unified response to the challengers of the ICC seems greater in instances of “hard” contestation, defined here in relation to the issue under contestation and the mode such contestation adopts. When contestation has immediate and substantial consequences on the fundamental norm the Court embodies and takes a justificatory mode, then it seems to encourage the EU to rally behind a common position, even where there previously was dissent. The Union considers the ICC as an embodiment of its defining values. Actually, it was not until the adoption of the Rome Statute that the EU was able to overcome its own differences and have a common position on international criminal justice. Since 1998, the EU has made the development of the Court—and therefore, of the fundamental norm of justice with the corollaries of legal accountability/individual criminal accountability and denial of impunity— into the linchpin of its role in this field (for examples see Collantes-Celador, 2012, 2016). On the other hand, when contestation is “soft”—i.e. when the contestation accepts the fundamental norm and focuses on challenging organising principles by making reference to the rule and norms associated with the ICC itself—then the EU can arguably be internally divided. EU member states may align themselves with the different sides of international debates on matters such as the jurisdiction of the ICC and its relationship with the UNSC (with France and the UK often distancing themselves from the majority of the EU and siding with other UNSC permanent members). Table 7.1 summarises the findings of our three case studies and presents this potential behavioural pattern in response to “hard” and “soft” contestation, the reasons of which seem quite straightforward: there is a broad EU consensus on the fundamental norm, but there is also a tradition of diverging positions at the level of organising principles. One caveat is on point here. The fact that contestation of fundamental norms (or its immediate corollaries) may promote intra-EU unity does not necessarily mean that it will also have a decisive role in shaping the content, direction or tone of that united response—i.e. it may not necessarily foster a strong, uncompromising response by the EU. To be sure, the EU might face such contestation by way of a forceful response that puts principles first and avoids making any overture to the contesters. But the other option is also possible. The EU might as well unite around a more nuanced position that tries to accommodate some of the demands made by challengers, as we have seen in the case of BIAs. However, such efforts might not always be able to satisfy the contester. Since the EU will be reacting within the limits of the ICC, any offer will probably be far from accommodating the kind of dissent that would animate contestation of the fundamental norm in a justificatory mode. 5 Although

too soon to explore, another potentially key juncture to consider in the future is the Trump administration’s increasingly hostile approach to the ICC that includes, in addition to the legal tools provided by the ASPA and BIAs, threats to “ban its judges and prosecutors from entering the United States […] sanction their funds in the U.S. financial system, and, we will prosecute them in the U.S. criminal system. We will do the same for any company or state that assists an ICC investigation of Americans” (Bolton, 2018).

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Table 7.1 The EU faces contestation over the Court’s normative basis BIAs

Sitting heads of state

Crime of aggression

Dominant type of norm contested

Fundamental norm: the USA contests the ICC as such

Fundamental norm: limits of justice in the face of sovereignty (sitting heads of state)

Organizing principle: jurisdiction, relationship with UNSC

Dominant mode of contestation

Justification: the validity of the norm is contested

Justification: the norm is contested with little regard to ICC provisions

Deliberation: debate on the equilibrium between ICC and UNSC, under ICC parameters

EU response

Unity (in spite of initial differences): Openness to negotiate within ICC parameters

Unity (in spite of initial differences) especially on the issue of non-cooperation with the Court

Division: UK and France closer to other UNSC permanent states, but divergences also found among EU members states in the post-Kampala phase

Source Authors’ elaboration

All in all, we think this chapter provides food for thought on the impact that contestation of the international liberal order can have on EU foreign policy and its authority as a norm promoter. It also allows us to follow on a debate began by Thomas (2009) on the role that the institutional location of negotiations plays when assessing the capacity of the EU to maintain unity when confronted with US norm contestation in the framework of the Court since 2002. What the three case studies explored in this chapter suggest is that the effect of contestation may depend, not only on institutional location, but also on the nature of contestation itself. It could tend to push the EU towards unity if it has to do with fundamental norms, but it can foster (already existing) internal EU differences when it has to with organising principles. Although too soon to reach firm conclusions, this analysis seems to indicate that the internal legitimacy of EU foreign policy norms and fundamental values in the area of international criminal justice remains unaffected. Externally, the contestation of key organising principles should not be considered of secondary importance, though, since they are closely associated with the workings of the ICC and thus with the most advanced embodiment of the fundamental norm of justice.

Conclusion This chapter has looked at the ways in which external contestation at the international level can shape internal contestation within the EU and has done so by looking at the issue area of international criminal justice. In this policy field, the fundamental

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norm that individual criminal accountability and the denial of impunity for the most serious crimes against human rights must be upheld by the international community has now been broadly accepted, but it has also led to contestation in two different ways. First, the norm itself has been contested—at its margins. In the early 2000s, the USA saw the administration of this norm by the ICC (a permanent Court independent—to a significant extent—from the UNSC) as a threat and campaigned to obtain bilateral immunity agreements to shelter its nationals from the ICC jurisdiction. Later, some African states with the institutional support of the African Union opposed the extension of the norm to sitting heads of state, in what we read as a clash between the fundamental norm of justice and that of sovereignty. On other occasions, contestation has revolved around key organising principles. The debate on the crime of aggression has featured concerns about the jurisdictional independence of the ICC vis-à-vis the UNSC. Each of these instances of external contestation has had a distinct impact on the EU. It is not possible for us to make causal claims here, but the three cases do provide information that can suggest a hypothesis. The EU has rallied behind the fundamental norm when it has been contested, but it has not responded in a unified way to debates around organising principles. This reflects the existence of long-lasting intra-EU differences in the relationship between the ICC and the UNSC. These differences go back to the negotiation of the Rome Statute in 1998 and have to do with the fact that France and the UK tend to look at the issue of jurisdictional independence from the vantage point of their permanent membership of the UNSC. In this way, external contestation can resonate with the internal one. However, one should not think about intense debates within the EU decision-making bodies in search of a common position—the lowest common denominator. Internal contestation here has consisted basically in the external display of European disunity at the ASP and the UNSC. At the same time, when necessary the EU has been able to leave internal differences behind in defence of the fundamental norm. Here, the evidence seems to suggest that the weight of legal argument in decision making within the EU on the matter of international criminal justice might have eased the emergence of a mutually accepted position among previously divergent national positions. Finally, none of this has stopped the EU from making a difference—not even the recurrent bouts of internal dissensus. The ICC, and thus the fundamental norm embodied in the Rome Statute and operations, has had a steady ally in the EU when it comes to promoting the universalization, effectiveness and day-to-day functioning of the Court. The relationship between external and internal contestation is a nuanced one and that between internal contestation and effectiveness too.

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References Ainley, K. (2015). The responsibility to protect and the International Criminal Court: Counteracting the crisis. International Affairs, 91(1), 37–54. Akande, D. (2017, December 15). The International Criminal Court gets jurisdiction over the crime of aggression. EJIL: Talk!—Blog of the European Journal of International Law. Retrieved from: https://www.ejiltalk.org/the-international-criminal-court-gets-jurisdiction-over-the-crimeof-aggression/. Last accessed 15.08.2018. Aoun, E. (2008). Beyond EU/US early contentions over the International Criminal Court: The development of the EU’s loyalty to the ICC. Studia Diplomatica, LXI(4), 155–171. Bekou, O. (2014). Mainstreaming support for the ICC in the EU’s policies. Report EXPO/B/DROI/2013/28 commissioned by the European Parliament’s Subcommittee on Human Rights, Brussels. Bolton, J. (2018). Protecting American constitutionalism and sovereignty from international threats. [Speech at the Federalist Society in Washington, D.C., 10 September]. Retrieved from: https://www.justsecurity.org/60674/national-security-adviser-john-boltonremarks-international-criminal-court/. Last accessed 12.04.2019. Bosco, D. (2014). Rough justice: The International Criminal Court in a world of power politics. Oxford: Oxford University Press. Cassese, A. (1999). The statute of the International Criminal Court: Some preliminary reflections. European Journal of International Law, 10, 144–171. CICC—Coalition for the International Criminal Court. (2010). Report on the first Review Conference on the Rome Statute, 31 May—11 June 2010, Kampala, Uganda. Retrieved from: http://www. iccnow.org/documents/RC_Report_finalweb.pdf. Accessed 12.04.2019. Collantes-Celador, G. (2012). La UE en la Negociación, Revisión e Implementación del Estatuto de Roma – Sus Limites como “Actor Global Dinámico y Eficaz”. In E. Barbé (Ed.), Cambio Mundial y Gobernanza Global: La Interacción entre la Unión Europea y las Instituciones Internacionales (pp. 142–159). Barcelona: Tecnos. Collantes-Celador, G. (2016). The defence of an institution under challenge: The EU and the International Criminal Court. In E. Barbé, O. Costa, & R. Kissack (Eds.), EU Policy responses to a shifting multilateral system (pp. 71–92). London: Palgrave Macmillan. Costa, O., & Müller, P. (2018). Une Liaison Transnationale. Exploring the Role of NGOs in EU Foreign Policy-making on the ICC. Comparative European Politics. Retrieved from: https://link. springer.com/article/10.1057/s41295–018-0121-6. Council of the EU. (2002, September 30). EU guiding principles concerning arrangements between a state party to the Rome Statute of the International Criminal Court and the United States regarding the conditions to surrender of persons to the court. Brussels. Council of the EU. (2013, November 27). The EU’s response to non-cooperation with the International Criminal Court by third states. Document 16993/13, Brussels. Davis, L. (2014). Discreet effectiveness: The EU and the ICC. In E. Drieskens & L. G. van Schaik (Eds.), The EU and effective multilateralism: Internal and external reform practices (pp. 84–100). London: Routledge. Duerr, B. (2017, 15 December). ICC jurisdiction set to expand: Will states be deterred from war? CSS Blog Network. Retrieved from https://isnblog.ethz.ch/justice/icc-jurisdiction-set-to-expandwill-states-be-deterred-from-war. Accessed 12.04.2019. European Council—The President. (2010, September 10). Statement by Herman Van Rompuy, President of the European Council, following his meeting with Judge Song President of the International Criminal Court. PCE 182/10, Brussels. European Parliament. (2011, November 17). EU support for the International Criminal Court: Facing challenges and overcoming difficulties. Document 2011/2109(INI). Retrieved from: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A72011-0368+0+DOC+XML+V0//EN&language=EN#title5. Accessed 09.04.2019.

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European Union. (2011, October 14). Statement by high representative Catherine Ashton on the ratification of the Rome Statute of the International Criminal Court by Cape Verde. Document A 413/11, Brussels. Fehl, C. (2004). Explaining the International Criminal Court: A ‘Practice Test’ for rationalist and constructivist approaches. European Journal of International Relations, 10(3), 357–394. Fehl, C. (2012). Living with a Reluctant Hegemon: Explaining European responses to US unilateralism. Oxford: Oxford University Press. Groenleer, M. L. P., & Rijks, D. (2009). The European Union and the International Criminal Court: The politics of international criminal justice. In K. E. Jørgensen (Ed.), The European Union and International Organizations (pp. 167–187). London: Routledge. Groenleer, M. L. P., & Van Schaik, L. G. (2007). United we stand? The European Union’s international actorness in the cases of the International Criminal Court and the Kyoto Protocol. JCMS: Journal of Common Market Studies, 45(5), 969–998. Hellwig-Bötte, M. (2014). Political bickering over the International Criminal Court. Stiftung Wissenschaft und Politik Comments no. 5. Retrieved from: https://www.swp-berlin.org/en/ publication/kenya-and-the-international-criminal-court/. Accessed 13.04.2019. Hoover, J. (2013). Moral practices: Assigning responsibility in the International Criminal Court. Law and Contemporary Problems, 76(3–4), 263–286. Kreß, C. (2018). On the activation of the ICC jurisdiction over the crime of aggression. Journal of International Criminal Justice, 16, 1–17. Márquez Carrasco, C. (2010, June 15). The EU and the ICC. Post in IntLawGrrls: Voices on international lsaw. Retrieved from: http://www.intlawgrrls.com/2010/06/eu-and-icc.html. Last accessed 06.03.2012. Mills, K., & Bloomfield, A. (2018). African resistance to the International Criminal Court: Halting the advance of the anti-impunity norm. Review of International Studies, 44(1), 101–127. No author. (2013, November 28). The Kampala amendments on the crime of aggression: A promise for the end of illegal use of force in international relations. Meeting organized by Helmut Scholz (Chairperson, PGA Group in the European Parliament/ member of the EP Friends of the ICC), European Parliament, Brussels. Retrieved from http://www.pgaction.org/news/thekampala-amendments-the-crime-aggression.html. Last accessed 15.08.2018. Review Conference. (2010, June 11). Resolution RC/Res.6—The Crime of Aggression. Adopted at the 13th plenary meeting, Kampala. Retrieved from https://asp.icc-cpi.int/en_ menus/asp/reviewconference/resolutions%20and%20declarations/Pages/resolutions%20and% 20declarations.aspx. Last accessed 15.08.2018. Rome Statute of the International Criminal Court. (2002, July 1). Document A/CONF.183/9, Rome, 17 July 1998 (adoption) (entry into force). Sadushaj, M., Shatku, S., Pustina, F., Kuka, E., & Taraj, G. (2017). Interpretation and Application of Article 98 of the Rome Statute. Academic Journal of Interdisciplinary Studies, 6(1), 141–147. Thomas, D. C. (2005). The institutional construction of EU foreign policy: CFSP and the International Criminal Court. Presented at European Union Studies Association Conference, Austin, Texas, 2014. Thomas, D. C. (2009). Rejecting the US challenge to the International Criminal Court: Normative entrapment and compromise in EU policy-making. International Politics, 46(4), 376–394. Thomas, D. C. (2012). Still punching below its weight? Coherence and effectiveness in European Foreign Policy. Journal of Common Market Studies, 50(3), 457–474.

Gemma Collantes-Celador is Senior Lecturer in International Security at the Centre for International Security and Resilience, Cranfield University at the Defence Academy of the United Kingdom. Previously, she held a lectureship post at City, University of London and completed a postdoctoral research fellowship at the Barcelona Institute of International Studies (IBEI). She holds a Ph.D. degree in International Politics from the University of Wales, Aberystwyth (now Aberystwyth University). Her research interests fall within the area of conflict, security and development,

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with particular attention to the following themes: post-conflict peacebuilding/statebuilding processes, security sector reform/governance, transitional justice, EU Common Security and Defence Policy, International Criminal Court, and asylum/migration. Much of her research has focused on the Western Balkans. Oriol Costa is Associate Professor of International Relations at the Universitat Autònoma de Barcelona (UAB). He is also Senior Research Associate at the Institut Barcelona d’Estudis Internacionals (IBEI). He has conducted research on the interplay between the EU and multilateral institutions. He has co-edited two volumes on EU foreign policy (Palgrave Macmillan), and his research has also appeared in refereed journals including the Journal of European Public Policy, Cambridge Review of International Affairs, Comparative European Politics, Mediterranean Politics, and the South European Society and Politics.

Chapter 8

The European Union and Lethal Autonomous Weapons Systems: United in Diversity? Esther Barbé and Diego Badell

1

Since 2012, a coalition of NGOs, under the name Campaign to Stop Killer Robots (CSKR) has been advocating for a hard law instrument banning lethal autonomous weapons systems (LAWS). These weapons are systems that can decide to kill and act on the decision to kill without communicating with or requiring further instruction 2 from humans. They are also known as human-out-of-the loop systems. In terms of 1 Launched in 2012, the Campaign to Stop Killer Robots comprises a steering committee comprising NGOs such as Human Rights Watch, Amnesty International, Mines Action Canada, International Committee for Robot Arms Control, WILPF, Article 36, PAX, Association for Aid and Relief Japan, Novel Women’s Initiative, Pugwash Conferences on Science and World Affairs, and Seguridad Humana en Latinoamérica y el Caribe. It is coordinated by Mary Wareham from Human Rights Watch. 2 So far, autonomy of weapon systems is limited to keeping a human in the loop (semi-autonomous), or a human on the loop (supervised autonomous). In human-in-the-loop systems, the machine waits for a human operator to take action before carrying on. Similarly, in human-on-the-loop systems, a human operator supervises the machine’s behaviour and, if necessary, intervenes to stop it (Scharre, 2018, pp. 60–2).

Esther Barbé wishes to acknowledge the Observatory of European Foreign Policy-SGR, funded by the Agency for Management of University Research Grants (AGAUR) of the Catalan Government (Grant agreement: 2017-SGR-693). Diego Badell thanks the Spanish Ministry of Economy, Industry, and Competitiveness for funding (FPI, Grant number: BES-2017-079692). E. Barbé · D. Badell (B) Institut Barcelona d’Estudis Internacionals (IBEI), Barcelona, Spain e-mail: [email protected] E. Barbé e-mail: [email protected] E. Barbé Universitat Autònoma de Barcelona (UAB), Barcelona, Spain © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_8

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military research, it represents a milestone in the field of artificial intelligence (AI) and robotics by completely removing human control from the targeting process; it is this human control which comprises the fundamental norm on civilian immunity embodied in international humanitarian law (IHL) conventions. In this vein, the United Nations (UN) special rapporteur on extrajudicial, summary or arbitrary execution, Christof Heyns officially stressed at the Human Rights Council (HRC) in 2013 the need to address such autonomous systems. Acknowledging the risks that LAWS might pose to international security, a year later the UN Convention on Certain Conventional Weapons (UNCCW) initiated deliberations on the matter. This chapter analyses how the EU and its Member States deal with deliberation on LAWS held at the UN level, and the political advancements at the intra-EU level. We argue that at the UN level, Member States and the EU delegation in Geneva are holding deliberations mostly focused on the organizing principle of human control. At the UN level, contestation has led Germany and France together with the EU delegation to work on a soft law instrument aiming to solve the disagreement over the standards of appropriateness of human control. At the intra-EU level, disagreements are palpable among Member States and EU institutions in relation to the articulation of human control. This varies from the status quo supported by the United Kingdom (UK) clashing with European Parliament and Austrian support for a full prohibition of LAWS to secure human control, to the soft law instrument endorsed by Germany, France and the EU delegation. This chapter applies a norm contestation framework (Wiener, 2014) in the early stage of the norm life-cycle, the emergent stage (Finnemore & Sikkink, 1998). In this stage, contestation takes the form of ideational contestation, which acts as a causal mechanism facilitating norm emergence (Wiener, 2014). The chapter, therefore, will focus on the process of norm emergence when actors produce assessments of the norm based on their identity and ideational factors (Ben-Josef Hirsch, 2014, p. 813). This case study focuses on two levels, the UN level and the EU level, between 2013 (when LAWS were addressed for the first time at the UN level) and 2019.3 That is why our research question is two-fold: How does contestation enhance deliberations on LAWS? Does contestation affect EU legitimacy as an actor in global governance? To answer these questions, we collected data from primary sources (i.e. official documents and public statements),4 but as full transcripts of the debate are not available, we also resorted to session records5 provided by external actors. 3 In

2019, the Group of Governmental Experts on LAWS scheduled two meetings, in March (25th–29th) and August (20th–21st). This cut-off day of this research was 26 April 2019. 4 Official documents comprise the countries’ and delegation’s working papers for meetings as well as national strategies if released. Public statements refers to country, European Union and NGO opening statements and closing statements during the 2013 HRC meeting, the 2016–2015 Informal LAWS meetings, and the 2017–2019 UNCCW LAWS meetings. 5 The Reaching Critical Will is the disarmament programme of the Women’s International League for Peace and Freedom providing the session records from the debates at the UN on LAWS (Available at http://reachingcriticalwill.org/disarmament-fora/CCW). In similar vein, the NGO PAX provides the European countries’ views on LAWS (Available at https://www.paxforpeace.nl/our-work/ programmes/killer-robots).

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The remainder of the chapter is structured as follows: the next section outlines the process of contestation at the UN level. A third section studies the internal political debate within the EU vis-à-vis LAWS. The fourth section addresses the outcome of norm contestation regarding EU legitimacy as a global actor. Finally, the conclusion discusses the findings of this chapter and the avenues of LAWS.

Deliberating the Emerging Norm on LAWS The HRC was the first forum to deal with LAWS. In an interactive dialogue6 held in 2013 at the HRC, the UN special rapporteur, Christof Heyns, presented a report assessing the impact of drones, putting special emphasis on LAWS. The Heyns Report considered the deployment of autonomous weapons to ‘entail not merely an upgrade of the kinds of weapons used, but also a change in the identity of those who use them. With the contemplation of lethal autonomous robotics, the distinction between weapons and warriors risks becoming blurred, as the former would take autonomous decisions about their own use’ (Human Rights Council, 2013, pp. 5–6). To recall the importance of keeping humans in the targeting cycle, the Heyns Report emphasized that while ‘robots are especially effective at dealing with quantitative issues, they have limited abilities to make the qualitative assessments that are often called for when dealing with human life’ (Human Rights Council, 2013, pp. 10–1). The Campaign to Stop Killer Robots (CSKR), seized the Heyns Report as an opportunity to set the issue on the agenda and commenced advocating for a new norm banning the use of LAWS. It has been argued that without the path established by previous ban treaties and the experience campaigners had gained in humanitarian arms control and the networks they had established, the CSKR would not have been able to set the issue on the agenda (Petrova, 2018, p. 652). In that sense, the CSKR arguments were similar to the ones used by the landmine campaign: the need for human control, and to keep decisions over life and death within human responsibility. Where they do differ from previous campaigns is in the way contestation is exercised. Although the norm contestation framework considers that norm entrepreneurs such as social movements and grassroots actors are prone to exert contention as the dominant mode of contestation (Wiener, 2014, p. 2), the CSKR did not use this as a strategy in national campaigns until 2019. The CSKR mostly focused on persuading those delegations that might recognize the importance of the normative challenge in front of them. Liberal-internationalism (Crocker, 2015) understands the diffusion of arms control norms (Müller, Fey, & Rauch, 2013) to be linear, where opposing actors will end up supporting the new norm. In our case study, the spread of arms control norms 6 Interactive

dialogue (ID) is one of the three main formats of debate in the HRC (General debate, Interactive dialogue, and panels). The ID permits the exchange of views as well as questions and answers with special procedures (i.e. special rapporteurs, independent experts, or a working group established by the HRC). Before the session is held, the special procedure submits a report to be the object of discussion.

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are far from being linear: LAWS are conceptualized as ‘works in progress’ bearing a considerable potential for contestation (Krook & True, 2010). During the 2013 HRC interactive dialogue, France, together with the support of the EU delegation in Geneva, suggested moving the debate from the HRC to the UN disarmament forum, the UNCCW. Following Bueger (2017), this may count as an exercise of contention as France and the EU delegation rejected that LAWS should be dealt with in the human rights forum. The decision was made based on the complexity of the issue, both legally and technically (European Union, 2013). Reframing the debate in terms of security was an unusual move as previously the human rights framing has predominated in arms control negotiations. As the UNCCW follows a consensus decision-making process, deliberations are likely to end up in a deadlock situation. Nonetheless, the EU has longstanding experience in building up consensus at this forum and could bring together different preferences and cultural validations in order to converge towards a ‘constitutive horizon’ upon which to act (Wiener, 2014). The UNCCW high contracting parties formalized the change of forum, as they agreed in 2014 on a four-day informal meeting of experts. The UNCCW is a regime created to be a flexible framework where specific norms can be added to the original treaty through a series of protocols, each of which addresses a particular subfield of a larger area of the regime (Gehring, 1994; Krasner, 1982; Müller, 2013). That is to say, the UNCCW takes interests into consideration, as countries can easily block negotiations if they are not and facilitates the shaping or expanding of norms as protocols can be added over the years. Recognizing the particularity of the UNCCW to be a unique forum, the EU delegation felt this approach was more suitable as the forum could respond in ‘a flexible way to future developments in the field of weapons technology’ (European Union, 2015). Moreover, the existence within the UNCCW of institutional instruments such as procedural mechanisms and the absence of hierarchy may encourage effective deliberations (Risse, 2000). Taking into account the successful contention exerted by France to move the issue to the multilateral forum of arms control, the country was appointed chair in the 2014 informal meeting. The debate was productive as different epistemic communities (e.g. military personnel, international law experts, academics, researchers in robotics) shared their views regarding the risks, benefits and challenges posed by LAWS, which in turn provided national delegations with food for thought. In parallel, the CSKR side events paved the way to increase the number of countries joining the call to ban LAWS, growing to five like-minded countries by the end of the meeting.7 The initial debate revealed two elements that would constantly be present throughout the meetings: to what extent LAWS would be able to comply with international law, and what is the necessary degree of human control. No state has openly declared an interest in developing LAWS, and several countries have expressed concerns regarding the use of autonomous weapons inside and outside armed conflict. There

7 In

2013, Pakistan was the first country to join the call for a norm banning LAWS. It was later joined by Ecuador, Egypt, the Holy See and Cuba.

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was awareness that resorting to LAWS could erode existing security norms as it would lower the threshold of the use of force. The 2015 and 2016 UNCCW informal meetings chaired by Germany put a very strong focus on the protection of civilians, outlining the importance of the fundamental norm of civilian immunity. Delegations addressed the issue by assessing to what extent LAWS were able to comply with international law, as well as to what degree human control was required. All delegations declared that LAWS should comply with IHL as they referred to the traditional organizing principles of civilian immunity, such as the principle of distinction between civilians and combatants (codified in articles 48, 51.2 and 52.3 of the Protocol Additional (I) to the Geneva Conventions), the proportionality of the attack (codified in articles 51.5 and 57 of the Protocol Additional (I) to the Geneva Conventions), and the principle of precaution against the effect of attacks (codified in articles 58(c) of the Protocol Additional (I) to the Geneva Conventions). By that time, the scientific community in an open letter from AI and robotics researchers stated that technology had reached a point where the deployment of such systems was feasible and recommended a preventive ban to avoid having weapons beyond ‘meaningful human control’ (Future of Life Institute, 2015). In a similar vein, the norm enforcer of the fundamental norm on civilian immunity, the ICRC, sees human control as a key organizing principle to assure compliance with IHL (ICRC, 2016). So far, human control has been taken as an implicit organizing principle in the Convention on Cluster Munitions that prevents the stockpiling of cluster bombs, or in the Ottawa Treaty banning antipersonnel landmine (Human Rights Watch, 2016). In that sense, national delegations started to devote their efforts to defining (meaningful) human control rather than defining autonomy (Kostopoulos, 2019). Yet, the two military powers France and the USA cast their doubts regarding this framework. France considered the term “meaningful” to lack the precision and technical accuracy to guarantee that humans remain in the full life-cycle of any weapons system (Government of France, 2016). Likewise, the US delegation preferred to stick to their own notion of human control defined as the ‘appropriate levels of human judgment over the use of force’ (U.S. Department of Defense, 2017, p. 2). To overcome this situation, Germany in its chairing report appeased advocates and critics of human control by referring to it as the ‘appropriate human judgment and involvement’ (United Nations, 2016b). Along these lines, national delegations started to see the human–machine relationship as a reference point in the debate. The human–machine relationship was referenced with different concepts such as meaningful human control, human judgment, or human involvement, which in turn bears the potential of clashing meanings-in-use and policy change. In other words, human control was evolving through deliberations as a new organizing principle. One may argue that the fact that the organizing principle embodies a plurality of meanings and more than one interpretation prepares the ground for intersubjective disagreement (Jose, 2018, p. 28). But human control needs to be codified as an ambiguous organizing principle to retain the norm’s flexibility as well as to allow its meaning to evolve with and to adapt to different weapon systems (Rosert, 2017). Furthermore, the definition of ‘autonomy’ shares

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with ‘human control’ the fact that it is not a fixed point but a continuum of degrees. Autonomous weapons are not by default autonomous, but systems moving along this spectrum from a teleoperated system to a supervised system, and subsequently to an unsupervised system (Scharre, 2018). At this point of the debate, the emergence of a new organizing principle is conceptualized as the analytical space where normativity translating fundamental norms into standardized procedures becomes negotiable (Wiener, 2014, pp. 37–39), which is essential to analyse how human control may shape or define existent normativity. Moreover, deliberations seemed to have substantially advanced as in November 2016 the UNCCW High Contracting Parties adopted by consensus the establishment of a group of governmental experts (GGE). The final informal meeting report considered that deliberations on emerging technologies in the area of LAWS, and more precisely human control, was one of the top priorities for the UNCCW (United Nations, 2016a). Establishing an open-ended GGE is a customary practice of the UNCCW to address pressing issues, which means that the GGE is formalized once the object of discussion is deemed to be of particular importance for the UNCCW. Chaired by India, the GGE was called to ‘explore and agree on possible recommendations on options related to emerging technologies in the area of LAWS, in the context and objectives and purposes of the Convention’ (United Nations, 2016a, p. 1), where the GGE is expected to build up the emerging organizing principle of human control. On the GGE general debate, countries continued to focus on the importance of human control where they addressed the ‘characteristics related to the human element in the use of force and its interface with machines as necessary for addressing accountability and responsibility’ (United Nations, 2018, p. 27). They further highlighted that ‘humans must at all times remain accountable in accordance with applicable international law for decisions on the use of force’ (United Nations, 2018, p. 28). The GGE in both 2018 and 2019 showed how the fundamental norm of civilian immunity became less central than the organizing principle of human control. This move is consistent with the fact that validity claims of some norms change through the process of policymaking. The norm of human control was starting to move up the scale from being considered an organizing principle to becoming a norm with wide-ranging moral impact (Wiener, 2017), as the meaning given to human control could provide a new set of standards of appropriateness for the arms control regime. In turn, the 2018 report aimed to establish emerging commonalities with regard to LAWS. The document pointed out the existence of three groups of states weighting the emerging norm differently (United Nations, 2018, p. 27). This is important, since divergent interpretations of the norm may (re)enact the normative structure, which in turn paves the way to a process of contestation (Wiener, 2009, p. 176). As the next section will show, this results in norm contestation not over the validity or applicability of human control, but over the relative weight or position given to the norm on human control (Mills & Bloomfield, 2018; Smetana & Onderco, 2019). In other words, national delegations within the UNCCW are contesting the norm in accordance with the institutional procedures of the forum, which suggests that contestation is rather soft as it is encouraging effective deliberations. In this sense,

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Table 8.1 Overview of the contestation on human control Status quo group

Like-minded countries

France and Germany coalition

Fundamental norm

Civilian immunity

Civilian immunity

Civilian immunity

Organizing principle

Principle of distinction, principle of proportionality, principle of precaution, principle of human control: • US/UK: principle of human judgement in the targeting cycle

Principle of distinction, principle of proportionality, principle of precaution, principle of human control: • Meaningful human control in the killing stage

Principle of distinction, principle of proportionality, principle of precaution, principle of human control: • France: principle of responsible human command • Germany: principle of effective human control

Standardized procedures

Inaction (art 36. Protocol I Geneva Convention)

Hard law (banning treaty)

Soft law (enhancing art. 36. Protocol I Geneva Convention)

Source Own elaboration

the forum might address human control in three different standardized procedures and regulations: resorting to existing IHL, seeking a hard law instrument in the form of a treaty banning LAWS, or advancing through a soft law instrument (see Table 8.1). On the one hand, Australia, Israel, the USA, the UK, South Korea, and the Russian Federation consider that existing IHL is sufficient to deal with LAWS. They argue that a moratorium or ban is too premature, or even unfounded and counterproductive. They claim that human control is secured in article 36 of Protocol Additional (I) to the Geneva Conventions as it disposes that states are asked to verify whether LAWS would be prohibited by the protocol or by any other rule of international law. In this vein, the Russian Federation affirmed that if deliberations take the form of a more formal debate planning to negotiate either hard law or soft law regulating human control in the targeting cycle, the country will withdraw from this same negotiation. On the other hand, the UN General Secretary, António Guterres—an engineer by training—officially included in his disarmament agenda the need to address LAWS. He declared these weapons to be defying the existent normative framework, this being ‘IHL and conventions’(United Nations Secretary-General, 2018a, 2018c). In this vein, he embraced the call for a norm banning LAWS (United Nations SecretaryGeneral, 2018b). The coalition led by Austria, Brazil, and Chile welcomed this call, sustaining the principle of meaningful human control. To date, the coalition has gathered 28 like-minded countries8 willing to open negotiations on an international 8 Pakistan,

Ecuador, Egypt, the Holy See, Cuba, Ghana, Bolivia, State of Palestine, Zimbabwe, Algeria, Costa Rica, Mexico, Chile, Nicaragua, Panama, Peru, Argentina, Venezuela, Guatemala, Brazil, Iraq, Uganda, Austria, China, Djibouti, Colombia, El Salvador and Morroco. China is not seeking to ban LAWS development or production, only their use. President Xi Jinping in his speech at the 19 the Congress of China’s Communist Party announced his intention

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legally binding agreement that guarantees human control by banning weapon systems that lack human control in the targeting process. Aware of the challenges lying ahead, the CSKR publicly stated that if the GGE is not able to produce a reasonable outcome, they will move the debate outside the UN standard arms control forum. In actual fact, like-minded countries successfully negotiated a final report which called the UNCCW ‘a’ forum, implying that the issue could also be addressed in other forums (United Nations, 2017, p. 8). The polarization of the debate around these two clashing groups suggested that a deadlock situation would be likely. To avoid this, a third group of states under the auspices of France and Germany resorted to soft law to propose a political declaration in order to work on a lowest common denominator outcome (Abbot & Snidal, 2000). The EU delegation aligned itself with the Franco-German political declaration, where the document is seen at the UNCCW as a third way between those wanting a banning treaty and those supporting the status quo. In brief, the political declaration is a political non-binding measure recalling that international law and more concretely IHL is fully applicable to the case of LAWS, and emphasizing the importance of Additional Protocol (I) to the Geneva Conventions. The document has also tried to come up with a working definition, whereby LAWS are defined as fully autonomous lethal weapon systems, where human control is framed as an ambiguous organizing principle: the exercise of sufficient control. Related to standardized procedure, the group foresees a pragmatic deployment of the article 36 normative components where it seeks to ensure the transparency and accountability through national weapons reviews. Moreover, once the political declaration is adopted, the instrument might consider more sophisticated soft law measures such as a politically binding measure in the form of a code of conduct as well as establishing a committee of experts within the UNCCW to inform of the technological developments related to LAWS (Political Declaration, 2017). All in all, the political declaration is seen ‘as the third way’ and has gained the support of 28 countries,9 among which we count both delegations preferring the status quo and delegations willing to ban autonomous weapons.

Contesting the Norm on Human Control: A European Insight Since the EU is an international organization, contestation is likely to occur in the mode of deliberation (Wiener, 2014), where actors within the EU could discursively to modernize the People’s Liberation Army in the realms of space, cyber and artificial intelligence. Regarding the latter, he plans the creation of an equivalent to the US Defence Advanced Research Projects Agency. 9 In 2018, 27 delegations at the UNCCW endorsed the political declaration: France, Germany, Belgium, Spain, Switzerland, Italy, Latvia, the Netherlands Poland, Argentina, Chile, Brazil, Bulgaria, Sweden, Australia, Finland, Ireland, Norway, Sri Lanka, Colombia, Morocco, Chile, Mozambique, Mexico, New Zealand, Austria, Slovenia and the UK.

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reconstruct the relative position of human control in the norm scale (Wiener, 2017). As a matter of fact, the EU deliberation on human control represents a space to establish the normative quality of human control as it is addressed ‘through policymaking […] or political processes’ (Wiener, 2014, p. 37). Moreover, the debate on human control finds itself in the constituting stage, thus justification is likely to occur. In the following lines, we consider that justification may not only come from epistemic communities (Wiener, 2014, p. 29), but can also be exerted by Member States and EU institutions alluding to various principles and norms to justify the relative weight or position given to human control (Bueger, 2017, p. 130). Indeed, Member States are divided between those endorsing the coalition to ban these weapons and those leading the political declaration. Similarly, at the EU level, institutional views on LAWS present clashing positions on how human control should be addressed, where the European Parliament is at the core of the debate. To shed light on this political process, it is worth mapping out Member States’ as well as institutions’ positions regarding human control and their articulation into standards of appropriateness. Member States when adopting their respective position regarding the organizing principle on human control are not driven by factors such as the country’s strategic culture or the presence/absence of a strong military industry. Rather, they are driver driven by the low barriers of entry to AI development, and the greater capacity that Member States will have to compete in the development of AI than they did in the creation of the complex military platforms (Horowitz, 2018). On the one hand, France, together with the EU delegation, rejected that the debate on LAWS should be resolved in the forum of human rights, the HRC. During these negotiations, the French delegation in their statements proved to be willing to preserve the existent normative framework through some limited actions rather than more fundamental changes. Throughout the debate, France claimed that given the early stage of this technology, the making of a clear judgment about weapons compliance with international law is impossible, and thus opposes a preventive ban or moratorium (Government of France, 2015, 2016). Despite the fact that France considers that LAWS need to comply with IHL, the country started to work on securing a sufficient level of human control. During deliberation at the UNCCW, France has contested the wide-moral reach of human control, arguing that a military approach should prevail as they framed the principle of responsible human command (Government of France, 2018). France sees the political declaration as a final step where LAWS are a feasible initiative in the long-term (Government of France, 2018). For instance, the Ministry of Defence is currently working on a national regulation advancing the role of AI in the military, where autonomous systems are not ruled out as long as human control is assured (Government of France, 2019). On the other hand, Germany agrees on the need for change but differs on the exact scope and content of the emerging norm. Throughout the debate, Germany developed a position closely resonating with the group advocating for legally binding agreement banning the use of weapon systems that lack human control in the targeting process. To give an illustration, Germany stated in 2015 that legal weapon reviews as required by Article 36 would lead to the result of LAWS being illegal (Government of Germany, 2015). In a similar vein, the country stated in the 2018 General Assembly

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(UNGA) that it is open to ban LAWS (Government of Germany, 2018) as well as framing in civilian terms the organizing principle of human control by referring to the ‘principle of effective human control’ (Government of Germany, 2019). Yet, the country looks forward to working with France ‘to promote measures less than a ban, and less than a legally binding instrument or a legally binding treaty’ (Delcker, 2019 quoting Wareham). Unlike France, Germany sees the political declaration as a ‘major step’ to achieve a legally binding regulation safeguarding human control in the use of force (Government of Germany, 2019). Drawing from this approach, the country has advanced in its AI strategy that the German military has no intention of acquiring or procuring LAWS. The reason that could explain why German wants a legally binding regulation but are also leading the call for a non-binding declaration is two-fold. At the international level, the rapprochement between Germany and France is related to their renewed cooperation seeking to advance towards an ‘effective and strong’ CFSP (Treaty of Aachen, 2019, p. 4). More concretely, the countries share the need to coordinate their positions closely within the UN bodies, where they aim to ensure that the EU adopts a ‘uniform position’ (Treaty of Aachen, 2019, p. 7). At the internal level, the chairman of the Munich Security Conference Wolfgang Ischinger considers that the absence of a clear Germany foreign and security policy is due to the lack of coordination between the country’s foreign, defence and European policy. As a result, the country prefers to muddle through the call for a stronger EU while demanding that Germany must not be asked to pay for it, which results in a government offering ‘different opinions depending on which part of the government or which ministry happens to be speaking’ (Ischinger, 2019). In a similar vein, Slovenia considers that the international community should safeguard human control in the use of force by adopting a new additional protocol (Government of Slovenia, 2018). Croatia shares that idea by claiming that ‘international prohibition of weapon systems operating without meaningful human control should not be something unthinkable’ (Government of Croatia, 2015b), further emphasizing that ‘creating a future legally binding agreement […] should not be left completely out of sight’ (Government of Croatia, 2015a). Meanwhile Ireland sees merit in a ‘legally binding option, but the current lack of a common understanding of what is meant by LAWS means that we do not yet have an appropriate platform on which to build an effective negotiating process’ (Government of Ireland, 2018), and considers a political declaration to have the potential to create the conditions and support the efforts going forward. The country has started to work closely with Belgium and Luxembourg in order to safeguard human control in the targeting cycle by working on a ‘strong political and/or dedicated international legal instrument’ (Governments of Belgium, Ireland, 2019). Previously to that action, the Parliament of Belgium requested the country to work on a legally binding instrument banning the development and use of weapon systems which lack human control in the targeting process (Belgian Parliament, 2018). In the end, these countries proved that the emerging organizing principle on human control is becoming more central, and even moving up the scale by becoming a norm with wide-ranging moral impact. But they still diverge on the standards of appropriateness of the norm.

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Nevertheless, Austria is the only like-minded Member State with the CSKR and leads the coalition in the UNCCW to advance a legally binding regulation contemplating the ban on the development and use of weapon systems that lack human control. The explanation for the Austrian behaviour lies in the fact that the country follows its self-projected identity of being a good international citizen where in most disarmament regimes their delegations have been a norm initiator, promoter and keeper (Becker-Jakob, Hofmann, Müller, & Wunderlich, 2013; Dunne, 2008). The Austrian proposal differs from other Member States aiming to advance a legally binding regulation setting obligation to safeguard human control in the use of force, since Austria is also willing to address the security concerns derived from proliferation and arms dynamics. At the level of institutions, the European Parliament challenges the EU delegation in Geneva. Since negotiations started at the UNCCW, the European Parliament sidelined both the status quo and the political declaration. For instance, during the 2014 informal meeting on LAWS, the European Parliament addressed in a resolution the issue of autonomous weapons as part of a broader resolution on armed drones. On that occasion, the institution considered that IHL was not sufficient to regulate LAWS, and proclaimed the need to secure that humans remain in control all along the targeting process by affirming that a legally binding agreement banning weapons that lack human control is needed (European Parliament, 2014). Similarly, when the political declaration was gaining the support of the EU Member States and the EU delegation in Geneva, the European Parliament passed a resolution in line with articles 25 and 29 of the TEU to work within CFSP to adopt a common position. The resolution considered that the common position should ensure that meaningful human control is retained as an emerging organizing principle paving the way to standardized procedures regulating a legally binding agreement banning weapon systems that lack human control in the targeting stage (European Parliament, 2018a), with a special focus on proliferation and arms dynamics. Delving into the EU level, the European Commission plays a fundamental role in addressing human control from the perspective of ethics, security and policies. In April 2018, the European Commission released the EU Plan on AI, where it raised awareness that the application of AI in weapon systems has the potential to fundamentally change armed conflicts. Focusing on the emerging norm on LAWS, the European Commission echoes the importance of complying with international law, including IHL. Likewise, the European Commission also shares the need to articulate human control as a new organizing principle. Along these lines, the European Commission argues that in the human–machine relationship, humans should remain in control (European Commission, 2018c, p. 8). When it comes to discuss how human control in the targeting process should be secured, the European Commission delegates this task into the areas of ethics and security. The ethics framework was retained by the European Commission in the format of a high-level group, while the nexus between security and technology was entrusted to the European External Action Service. In the race for AI currently led by the USA and China, the EU Plan intends to have a say in this realm by displaying the EU as a force for good (Barbé &

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Johansson-Nogués, 2008). For that reason, a high-level group was established with the assignment to provide the AI ethics guidelines ‘with due regard to the Charter of Fundamental Rights of the EU’ (European Commission, 2018b, p. 15). The guidelines, released in early April 2019, considered that LAWS may lead to an ‘uncontrollable arms race’ creating ‘military contexts in which human control is almost entirely relinquished and risks of malfunction not addressed’ (European Commission, 2018a, p. 12). It ultimately concluded that LAWS should be banned in line with Article 3 of the TEU, which states the Union’s aspiration to promote peace, and echoed the European Parliament 2018 resolution asking to work for a legally binding instrument banning the development and use of weapon systems that lack human control in the targeting process. That is to say, the European Commission supports the quest for a treaty banning weapons lacking human control, and in turn the view of human control becoming a norm with wide-ranging moral impact shaping the standards of appropriateness. Moving to the technology-security nexus, the HR/VP Mogherini has held various public discussions studying the matter. For instance, she brought the issue of LAWS to the European Parliament in September 2018 and chaired the November 2018 Annual European Defence Agency Conference dedicated to autonomous weapon systems. More to the point, she established a Global Tech Panel whose participants shared the need to provide inputs ensuring that the development of AI that can be used in weapons systems fully complies with international law and respects human dignity (EEAS, 2018). To date, it remains unknown what kind of policy recommendations the Global Tech Panel advised, and whether the HR/VP could take them into account (Mogherini, 2018a, 2018b). As things stand, the EU delegation in Geneva adopted a single position embracing the political declaration where human control is considered a guiding principle to set the minimum standards to ensure that humans remain in the targeting cycle. Lastly, the European Commission within the European Defence Fund (EDF) is open to fund actions in the field of AI and robotics. Opposing this action, the European Parliament seeks to prohibit the funding of LAWS. During the EDF interinstitutional negotiations (i.e. European Commission, the Council, and the European Parliament), the European Parliament introduced amendments ruling out actions that could commit serious violations of IHL such as LAWS (European Parliament, 2018b). It was stated that the EDF should not fund lethal autonomous weapons without human control of the critical functions of selecting and attacking individual targets. In February 2019, the European Commission, the Council and the European Parliament agreed on a policy that defines LAWS characteristics as non-eligible for funding (Brzozowski, 2019). To ensure that this first-ever legal instrument prevailed, the amendment was codified by referring to well-established and internalized norms of the sector of security governance that provides the standards of appropriateness. It is noteworthy that MEPs reached this compromise on LAWS even though it involved a loss of parliamentary scrutiny over the future developments of the EDF.

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The EU and the Side Effects of Contesting LAWS’ Human Control The European Security Strategy recognized that technological advancements in the field of weapons represent a risk that could end up in an uncontrollable arms race (European Union, 2003, p. 4). The EU Global Strategy (EUGS) reiterated the enduring commitment to promote a rules-based global order with ‘multilateralism as its key principle and the United Nations at its core’ (EEAS, 2016, p. 8). To be more precise, the EUGS sees the need to establish global rules in the field of AI and robotics to avoid the related security risks but also to take advantage of the economic benefits (EEAS, 2016, p. 43). This self-identification of the EU as an actor willing to expand norms regulating arms control and its aim to establish rules in the recent field of AI and robotics could be undermined by a new EU focus on its own security, based on the predisposition to support ‘defence research and technologies and multinational cooperation, and full use of the European Defence Agency’ (EEAS, 2016, p. 21). Regardless of EU Member States and the EU delegation contributions to the shared understanding of the fundamental norms (civilian immunity), as well as the traditional organizing principles (principle of proportionality, principle of distinction, principle of precaution), when it comes to human control and standardized procedures, divergences still persist. As mentioned above, hierarchical contestation is dividing EU Member States and EU institutions with regard to the relative weight given to the norm on human control, and therefore to the articulation of the standards of appropriateness. The normative dilemma is whether it is better to regulate LAWS through an international legally binding instrument or a politically non-binding instrument. However, the EU existent internal fissures in relation to the standardized procedures of the emerging norm are not something new. Previous negotiations on landmines and cluster munitions showed that contestation is the rule rather than the exception (Costa, 2009; Vlaskamp, 2010). As deliberations at the UN addressing the emerging norm on LAWS are proving to be long and difficult, to find common ground, France and Germany have come up with the political declaration considered to be the best achievable compromise. The political declaration aiming to close the gap between fundamental norms and standardized procedures was welcomed at the UNCCW by 15 EU Member States10 and the EU delegation. Despite the fact that contesting the norm banning LAWS might have undermined the role of the EU to externalize internal values such as human rights into multilateral institutions (Manners, 2002, pp. 242–243), it has, in the end, strengthened the position of the EU as a global actor. Contestation presented in its soft format (Johansson-Nogues, Vlaskamp and Barbé, this volume) has allowed the EU to not only preserve the multilateral forum of the UNCCW where it has acted as a bridge-builder between norm advocators and norm avoiders but also to advance in the adoption of a new norm. 10 Belgium,

Spain, Italy, Latvia, the Netherlands, Poland, Bulgaria, Sweden, Finland, Ireland, Austria, Slovenia and the UK have joined France and Germany in pursuing a political declaration on LAWS.

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Nevertheless, the existing divergence among Member States and institutions regarding human control leads us to consider that reaching a single position within the EU was achieved with difficulty. Aiming to put an end to internal fissures, the political declaration has provided the EU with internal cohesiveness on the emerging norm on LAWS (da Conceição-Heldt & Meunier, 2014, p. 973). For instance, Austria, which is leading the group calling for a norm banning LAWS, has stressed the country’s support for a political declaration in the 2018 UNCCW High Contracting Parties meeting. In a similar vein, the UK has also switched its normative preferences, moving from the status quo to endorsing the political declaration. More importantly, this pragmatic approach has transcended the limits of the EU, persuading actors on both sides of the normative spectrum—those aiming to ban LAWS and those opposing any new norm on LAWS. In effect, countries supporting a norm banning LAWS, such as their group leaders Brazil and Chile, and countries preferring the status quo like Australia are now opened to consider the political declaration on LAWS. All in all, the EU has not undermined its external authority and credibility. In fact, the EU remains an influential actor able to include the interests and ideas of other countries in the leadership project as it has triggered followership (Barbé, 2012; Schirm, 2010). At the same time, contestation in the field of human control is witnessing the advent of a principled pragmatism in the EU external action. Along these lines, it can be considered that the EU is aware of the internal fissures and external contestation regarding LAWS and has accepted a new role based on the idea ‘to be modest at times in what we believe we can achieve and what we cannot’ (Tocci, 2016, p. 6) without losing sight of international law and its underlying norms as the benchmark of what is acceptable for the EU and what is not (Tocci, 2017, p. 65). Lastly, the European Parliament has continued to portray its traditional role as a principled normative actor within the EU. This results from the European Parliament being the only directly elected EU institution, which means that its duty is to defend European values, and the predisposition to assume more power within the institutional framework by playing a more active role in areas such as the protection of human rights (Barbé, 2004, p. 55). Intending to shape the EU’s foreign and security policy, the European Parliament has passed two declarations endorsing the need for a new norm banning LAWS as well as calling within the framework of the CFSP to work on a common position at the UN level. Internally, the European Parliament took a further step as it successfully contested the EU Member States’ reluctance to take stronger views on LAWS during the EDF interinstitutional negotiations. The pressure exerted by MEPs has produced the first-ever agreement between the European Commission, European Parliament and the 28 Member States to stigmatize LAWS by prohibiting (Borrie, Brehm, Cattaneo, & Atwood, 2009). This suggests that the intra-EU contestation might revitalize the EU’s foreign and security policy in a normative sense as the EDF agreement might shape Member States’ positions, which could result in developing national regulations as well as supporting at the GGE a call to start negotiations on a legally binding agreement.

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Conclusions The debate on LAWS and especially on human control will continue in the years lying ahead. If the UNCCW is unable to produce a satisfactory outcome, the Coalition to Stop Killer Robots has already announced that discussions might be held outside of this forum. Indeed, like-minded countries can push the debate on LAWS outside the UN by adopting the form of the Ottawa Convention, but it could also be voted at the UNGA as showed by the 2017 Treaty on the Prohibition of Nuclear Weapons. In any case, such an agreement would probably not include those states developing and testing LAWS, and therefore would not stop proliferation and arms dynamics. A norm contestation framework has enabled us to map out the ideational debate in the emerging stage. On the one hand, there is a struggle between different groups of revisionists quarrelling about the direction or the degree of desirable change. On the other hand, there is debate between those willing to change and those who prefer the status quo (Müller & Wunderlich, 2018, p. 19). Along these lines, the contention exerted by France with the support of the EU delegation to move the debate to the UNCCW was crucial. The UNCCW institutional structure has led national delegations to adopt a strategy of soft contestation in the form of effective deliberations. Although human control remains an ambiguous principle, EU Member States and the EU delegation helped to enshrine it as the new organizing principle of the emerging norm. At the same time, they also facilitated shared understandings regarding the fundamental norm and traditional organizing principles. That is why, to avoid a deadlock situation, 15 Member States11 and the EU delegation in Geneva pursued a soft law instrument to articulate the contested standardized procedures of the organizing principle of human control. This approach seeks to gradually develop the standardized procedures and is seen as a third way between those opposing any revision, and those aiming to ban this kind of weapon. Indeed, the political declaration is an example of how the EU is able to bring together different preferences and cultural validations in order to converge towards a constitutive horizon upon which to act (Wiener, 2014, p. 67). For instance, it encompasses the view of France, which sees the political declaration as a final step, together with Germany, which considers the political declaration only a ‘major step’ towards banning LAWS. This gave room for the EU to reinvigorate their traditional ability to build consensus across the board, while further developing a new identity based on the understanding to be modest at times in what it can be achieved and what cannot be achieved. Resulting from this new role, the political declaration is a pragmatic option aiming to solve intra-EU fissures exerted by Member States and institutions alike. This has proved to be effective as the EU induced the acceptance of their norm’s interpretation even in cases of intersubjective disagreement. Accounting for that fact, norm followers are emerging from both groups: both countries supporting a banning norm, and states willing to preserve the status quo. In other words, soft contestation at the 11 France, Germany, Belgium, Spain, Italy, Latvia, the Netherlands, Poland, Bulgaria, Sweden, Finland, Ireland, Austria, Slovenia and the UK.

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UN level has allowed the EU to fill a void in such a way as to bolster its legitimacy as an actor in global governance and protect the two fundamental foreign policy values of the promotion of multilateralism and the promotion of norms (Costa, Kissack, & Barbé, 2016). Still, the European Parliament, intending to shape the EU’s foreign and security policy endorsed the need for a new norm banning LAWS and called within the framework of the CFSP to work on a common position at the UN level. At the internal level, it has successfully inhibited the views of the Member States and the EU delegation in Geneva. During interinstitutional negotiations on the EDF, the European Parliament was able to strike the first-ever deal between the European Commission, the Council, and the European Parliament itself, whereby the funding of LAWS was prohibited. This suggests that the EDF agreement may shape in the medium-term the EU internal political dynamics as Member States could develop national regulations as well as supporting at the UNCCW a call to start negotiations on a legally binding agreement, which in turn might revitalize the EU as a global actor in normative issues.

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Crocker, C. A. (2015). The strategic dilemma of a world adrift. Survival, 57(1), 7–30. da Conceição-Heldt, E., & Meunier, S. (2014). Speaking with a single voice: Internal cohesiveness and external effectiveness of the EU in global governance. Journal of European Public Policy, 21(7), 961–979. Delcker, J. (2019, March). France, Germany under fire for failing to back ‘killer robots’ ban. Politico, 1–4. Dunne, T. (2008). Good citizen Europe. International Affairs, 84(1), 13–28. EEAS. (2016). Shared vision, common action: A stronger Europe. Brussels. EEAS. (2018). International security and lethal autonomous weapons. European Commission. (2014). European Parliament resolution on the use of armed drones (2014/2567(RSP)). Brussels: European Parliament. European Commission. (2018a). Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions: Artificial intelligence for Europe. Brussels: European Commission. European Commission. (2018b). Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions: Coordinated plan on artificial intelligence. Brussels: European Commission. European Commission. (2018c). The European Commission’s high-level group on artificial intelligence: Ethics guidelines for trustoworthy AI (Draft). Brussels: European Commission. European Parliament. (2018a). European Parliament resolution on autonomous weapon systems (2018/2752(RSP)). Brussels: European Parliament. European Parliament. (2018b). Report on the proposal for a regulation of the European Parliament and of the Council establishing the European Defence Fund (COM(2018) 0476– C8–0268/2018— 2018/0254(COD)). Brussels: European Parliament. European Union. (2003). European security strategy: A secure Europe in a better world. Brussels. European Union. (2013). Interactive Dialogue with Special Rapporteur on extrajudicial, summary or arbitrary executions, and with the Special Rapporteur on Internally Displaced Persons. Geneva: EU Permanent Delegation to the UN Office and other international organisations in Geneva. European Union. (2015). European Union Statement by H.E. Mr Peter Sørensen, Ambassador, Permanent Delegation of the European Union to the United Nations and other international organisations in Geneva Meeting of the High Contracting Parties to the Convention on Certain Conventio. Geneva: EU Permanent Delegation to the UN Office and other international organisations in Geneva. Finnemore, M., & Sikkink, K. (1998). International norm dynamics and political change. International Organization, 52(4), 887–917. Future of Life Institute. (2015). Autonomous weapons: An open letter from AI & robotics researchers. Retrieved from https://futureoflife.org/open-letter-autonomous-weapons. Last accessed 14/06/2019. Gehring, T. (1994). Dynamic international regimes: Institutions for international environmental governance. New York: Peter Lang. Government of Croatia. (2015a). Closing statement of the Republic of Croatia. UNCCW informal meeting of experts on lethal autonomous weapons systems. Geneva: Croatia Permanent Delegation to the UN Office and other international organisations in Geneva. Government of Croatia. (2015b). Opening statement of the Republic of Croatia. UNCCW Informal Meeting of Experts on Lethal Autonomous Weapons Systems. Geneva: Croatia Permanent Delegation to the UN Office and other international organisations in Geneva. Government of France. (2015). Convention sur Certaines Armes Classiques (CCAC) Reunion informelle d’experts sur les systèmes d’armes letaux autonomes (SALA) Intervention générale. Geneva: France Permanent Delegation to the UN Office and other international organisations in Geneva.

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Government of France. (2016). Convention on Certain Conventional Weapons (UNCCW) Meeting of experts on Lethal Autonomous Weapons Systems (LAWS) Non Paper Characterization of a LAWS. Geneva: France Permanent Delegation to the UN Office and other international organisations in Geneva. Government of France. (2018). Human-machine interaction in the development, deployment and use of emerging technologies in the area of lethal autonomous weapons systems. Geneva: France Permanent Delegation to the UN Office and other international organisations in Geneva. Government of France. (2019). Discours de Florence Parly, ministre des Armées: Intelligence artificielle et défense. Saclay: Government of France. Government of Germany. (2015). UNCCW expert meeting lethal autonomous weapons systems final statement by Germany. Geneva: Germany Permanent Delegation to the UN Office and other international organisations in Geneva. Government of Germany. (2018). Speech by the Federal Minister for Foreign Affairs, Heiko Maas, Member of the German Bundestag at the general debate of the 73rd General Assembly of the United Nations. New York. Government of Germany. (2019). Speech by Federal Foreign Minister Heiko Maas at the Conference 2019 Capturing Technology. Rethinking Arms Control. Berlin: German Federal Foreign Office. Government of Ireland. (2018). Group of governmental experts lethal autonomous weapons systems convention on certain conventional weapons Ireland’s intervention. Geneva: Ireland Permanent Delegation to the UN Office and other international organisations in Geneva. Government of Slovenia. (2018). Statement of Slovenia. GGE LAWS. Geneva: Slovenia Permanent Delegation to the UN Office and other international organisations in Geneva. Governments of Belgium, Ireland, & Luxembourg. (2019). Food for Thought Paper. 4th Session of the GGE LAWS, Geneva, 25–29 March 2019. Geneva: Governments of Belgium, Ireland, and Luxembourg. Horowitz, M. (2018). The algorithms of August. Foreign Policy, 1–7. Retrieved from https:// foreignpolicy.com/2018/09/12/will-the-united-states-lose-the-artificial-intelligence-arms-race/? utm_source=PostUp&utm_medium=email&utm_campaign=EditorsPicks9/18/2018-FPGuide& utm_keyword=Editor'sPicksOC. Last accessed 14/06/2019. Human Rights Council. (2013). Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns. Geneva: Human Rights Council. Human Rights Watch. (2016, April). Killer robots and the concept of meaningful human control. Memorandum to Convention on Conventional Weapons (UNCCW) Delegates April 2016 Introduction, 1–16. ICRC. (2016). Views of the International Committee of the Red Cross (ICRC) on autonomous weapon system. Geneva: UN Convention on Certain Conventional Weapons. Ischinger, W. (2019, March 28). Tough decisions instead of muddling through. Frankfurter Allgemeine. Retrieved from https://www.faz.net/aktuell/politik/ausland/wolfgang-ischinger16112783.html. Last accessed 30/09/2019. Jose, B. (2018). Norm contestation: Insights into non-conformity with armed conflict norms. Basingstoke: Springer. Kostopoulos, L. (2019, April). Developmental items for consideration as scientists, commanders and politicians explore AI opportunities for Defense. Barcelona. Krasner, S. D. (1982). Structural causes and regime consequences: Regimes as intervening variables. International Organization, 36(2), 185–205. Krook, M. L., & True, J. (2010). Rethinking the life cycles of international norms: The united nations and the global promotion of gender equality. European Journal of International Relations, 18(1), 103–127. Manners, I. (2002). Normative power Europe: A contradication in terms? Journal of Common Market Studies, 40(2), 235–258. Mills, K., & Bloomfield, A. (2018). African resistance to the International Criminal Court: Halting the advance of the anti-impunity norm. Review of International Studies, 44(1), 101–127.

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Mogherini, F. (2018a). High representative letter to members of the Global Tech Panel (June 2018). Brussels: EEAS. Mogherini, F. (2018b). High representative letter to members of the Global Tech Panel (October 2018). Brussels: EEAS. Müller, H. (2013). Agency is central. In H. Müller & C. Wunderlich (Eds.), Norms dynamics in multilateral arms control (pp. 337–366). Athens: The University of Georgia Press. Müller, H., Fey, M., & Rauch, C. (2013). Winds of change: Exogenous events and trends as norm triggers (or norm killers). In H. Müller & C. Wunderlich (Eds.), Norms dynamics in multilateral arms control (pp. 141–159). Athens: The University of Georgia Press. Müller, H., & Wunderlich, C. (2018). Not lost in contestation: How norm entrepreneurs frame norm development in the nuclear nonproliferation regime. Contemporary Security Policy, 39(3), 341–366. Petrova, M. H. (2018). Weapons prohibitions through immanent critique: NGOs as emancipatory and (de)securitising actors in security governance. Review of International Studies, 44(4), 619–653. Political Declaration. (2017). Examination of various dimensions of emerging technologies in the area of lethal autonomous weapons systems, in the context of the objectives and purposes of the Convention. Geneva: Submitted by France and Germany. Risse, T. (2000). “Let’s Argue!”: Communicative action in world politics. International Organization, 54(4), 1–39. Rosert, E. (2017). How to regulate autonomous weapons: Steps to codify meaningful human control as a principle of International Humanitarian Law. Frankfurt: PRIF Spotlight. Scharre, P. (2018). Army of none: Autonomous weapons and the future of War. New York: W. W. Norton & Company. Schirm, S. A. (2010). Leaders in need of followers: Emerging powers in global governance. European Journal of International Relations, 16(2), 197–221. Smetana, M., & Onderco, M. (2019). Bringing the outsiders in: An interactionist perspective on deviance and normative change in international politics. Cambridge Review of International Affairs, 1–21. Tocci, N. (2016). Interview with Nathalie Tocci on the global strategy for the European Union’s Foreign and Security Policy. International Spectator, 51(3), 1–8. Tocci, N. (2017). Framing the EU global strategy: A stronger Europe in a fragile world. The RUSI Journal, 162. Basingstoke: Palgrave Macmillan. Treaty of Aachen. (2019). Traité entre la République française et la République fédérale d’Allemagne sur la coopération et l’intégration franco-allemandes. United Nations. (2016a). Advanced Version Recommendations to the 2016 Review Conference Submitted by the Chairperson of the Informal Meeting of Experts. Geneva: UN Convention on Certain Conventional Weapons. United Nations. (2016b). Advanced Version Report of the 2016 Informal Meeting of Experts on Lethal Autonomous Weapons Systems (LAWS) Submitted by the Chairperson of the Informal Meeting of Experts. Geneva: UN Convention on Certain Conventional Weapons. United Nations. (2017). Report of the 2017 Group of Governmental Experts on Lethal Autonomous Weapons Systems (LAWS). Geneva: UN Convention on Certain Conventional Weapons. United Nations. (2018). Report of the 2018 session of the Group of Governmental Experts on Emerging Technologies in the Area of Lethal Autonomous Weapons Systems (Vol. UNCCW/GGE.1/). Geneva: UN Convention on Certain Conventional Weapons. United Nations Secretary-General. (2018a). Remarks at the University of Geneva on the launch of the Disarmament Agenda. Geneva: United Nations Secretary-General. United Nations Secretary-General. (2018b). Remarks at “Web Summit”. Lisbon: Web Summit. United Nations Secretary-General. (2018c). Remarks to the Conference on Disarmament. Geneva: United Nations Secretary-General. U.S. Department of Defense. (2017). DoD Directive 3000.09: Autonomy in Weapon Systems. Department of Defence, 1(3000), 1–15.

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Vlaskamp, M. (2010). The Role of the European Union in the Processes to Ban Cluster Munitions (Observatori de Política Exterior Europea: 84). Barcelona. Wiener, A. (2009). Enacting meaning-in-use: Qualitative research on norms and international relations. Review of International Studies, 35(1), 175–193. Wiener, A. (2014). A Theory of contestation. Basingstoke: Springer. Wiener, A. (2017). A reply to my critics. Polity, 49(1), 165–184.

Esther Barbé is Professor of International Relations at the Universitat Autónoma de Barcelona (UAB) and Senior Research Associate at the Institut Barcelona d’Estudis Internacionals (IBEI). Since 2001, she has directed the Observatory of European Foreign Policy. Her research focuses on Mediterranean security, Spanish Foreign Policy, EU Foreign Policy, and emerging powers and multilateralism. Diego Badell is a Ph.D. candidate at the Universitat Autònoma de Barcelona (UAB) and Predoctoral Fellow at the Institut Barcelona d’Estudis Internacionals (IBEI). His Ph.D. thesis is conducted within the framework of the EU-NormCon research project funded by the Spanish Ministry of Economy, Industry, and Competitiveness. His research focuses on European Union foreign policy and norm contestation, with a particular focus on multilateral institutions.

Chapter 9

Norm Contestation in Modern Trade Agreements: Was the Transatlantic Trade and Investment Partnership a “One-off”? Leif Johan Eliasson and Patricia Garcia-Duran

The norm of an open, rules-based, trading system is of crucial importance to the European Union (EU), and it promotes this norm globally. The EU’s trade bi-and multilateral agreements are its organizing principle for this norm. Trade agreements, whether multilateral, plurilateral, regional, or bilateral, entail an institutionalization of the costs and rules for exchange between firms operating in and across the entities that have signed the agreements. Modern, “deep” trade agreements address the rules and regulations in place inside the signatories’ territorial boundaries, for the purpose of increasing compatibility and accessibility, thus reducing obstacles to trade and investment. To this effect, modern trade agreements include standardized procedures which are largely absent in shallower agreements that focus only on tariffs and quotas. This chapter looks at the contestation of standardized procedures in trade agreements by examining the highly politicized negotiations over the Transatlantic Trade and Investment Partnership (TTIP); a deep trade agreement attempted between the EU and the USA, where negotiations proceeded between June 2013 and November 2016. We argue that certain standardized procedures (regulatory convergence, investment protection, and transparency) were contested, while TTIP politicization did not challenge the fundamental norm of an open trading system, nor its organizing principle (EU trade policy). The latter were not directly contested for two reasons. The first has to do with the perception of an open trading system. Most people in the EU presume that this means retaining a form of domestic interventionism through social We are grateful to Pol Morillas for feedback provided at a workshop on May 31, 2019 at the Barcelona Institute for International Studies, and to the editors, Elisabeth Johansson-Nogués, Esther Barbé, and Martijn Vlaskamp, for their feedback and suggestions. L. J. Eliasson (B) East Stroudsburg University, East Stroudsburg, Pennsylvania, USA e-mail: [email protected] P. Garcia-Duran University of Barcelona, Barcelona, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_9

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provisions in order to “tame the socially disruptive effects of markets” (Addelal & Ruggie, 2009), without eliminating the gains from international trade. This equilibrium between the fundamental norm of free trade and the fundamental norm of sovereignty is referred to as embedded liberalism (Ruggie, 1982, see further below). Thus, opponents of TTIP sought to preserve this equilibrium by arguing for the status quo, rather than contesting the fundamental norm of an open trading system. The second has to do with the “one-off” character of TTIP politicization.1 The EU has focused on bilateral agreements since 2006 (as a way to support multilateralism), without contestation or even controversy. It was not until TTIP that the standardized procedures were contested, and TTIP was chosen because TTIP was a negotiation with the US, which helped raise the salience of the proposed agreement. The EU-Canada Comprehensive Economic and Trade Agreement (CETA) became salient only after opponents linked it to TTIP via certain investment provisions—this after CETA negotiations had been concluded (in 2014), but not yet signed at the time of TTIP negotiations. Demands related to a specific partner do not constitute a contestation of the organizing principle of EU trade policy. This chapter uses both scholarly analyses and primary sources of information. The latter include speeches by Trade Commissioners (2013–16), civil society and business organizations’ publications, and interviews with representatives of civil society organizations (CSOs) and business groups (see Eliasson & Garcia-Duran, 2019; Garcia-Duran & Eliasson, 2018b). We show that the intense challenges raised against TTIP may prove to have been unique. This is because although the contested procedures were present in other agreements, it was only in TTIP that they were directly linked to the negotiating partner, and presented as harmful. The EU response ultimately strengthened the internal legitimacy of its standardized procedures in trade. We also show that while the intra-EU contestation may have impacted the EU’s external authority in the short term—specifically its credibility in the field of trade—the end result may be increased legitimacy for the EU as a global actor. We have divided the rest of the chapter into five sections. After presenting the trade norms of the EU, we turn to the issue under analysis. We then discuss both the mode and the outcome of the contestation. In the context of trade, the issue is TTIP, the contestation was hard, and it was delivered through a mixture of arbitration, contention, and justification. As a result, both the legitimacy of standardized procedures in trade agreements and of the EU as a global actor were affected; the latter was at first weakened, but ultimately strengthened.

1 By

politicization, we mean an “increase in polarization of opinions, interests, or values and the extent to which they are publicly advanced towards the process of policy formulation” (de Wilde, 2011: 260).

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The Trade Norms of the EU The fundamental norm of an open trading system is endemic in the EU. Since its inception as the European Economic Community, the EU has enshrined in its treaties the objective of promoting global trade through its common trade policy. Article 110 of the Rome Treaty established that European economic integration should “aim to contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and the lowering of custom barriers.” Article 206 of today’s Treaty on the functioning of the EU states that the union “shall contribute, in the common interest, to the harmonious development of world trade, the progressive abolition of restrictions on international trade and on foreign direct investment, and the lowering of customs and other barriers.” The literature on EU trade policy shows that while including “measures designed to cushion the domestic economy from external disruptions” (Ruggie, 1982, p. 405), the EU has continuously pursued a liberalizing agenda (Dür et al., 2014; cf. SilesBrügge, 2011; Young, 2017a). Some authors consider this to have been the case even during the period when “managed globalization” was the doctrine guiding EU trade policy (Siles-Brügge, 2014). Introduced by Trade Commissioner Pascal Lamy (1999–2004), it refers to a broad and encompassing doctrine that subordinates trade policy to a variety of trade and non-trade objectives, such as multilateralism, social justice, and sustainable development (Meunier, 2007). Scholars have also argued that the Commission was able to promote free trade as the way out of the global financial crisis (De Ville & Orbie, 2011). As Dür (2007, pp. 100–101) summarizes it: ever since its creation, the EU has constantly moved away from the status quo with regard to the level of external trade barriers …[,] agreed to significant limits on the use of instruments of administrative protection such as antidumping duties… [and demonstrated] capacity to negotiate mutually agreed solutions in response to foreign complaints.

The promotion of the norm of an open trading system is thus of crucial importance to the EU; it favors liberalism while including a dimension of social purpose, and this strategy has persevered over time. What has changed is the organizing principle of the norm. Rather than pursuing trade liberalization through multilateral agreements, the EU is now negotiating bilateral, regional, and plurilateral agreements with both emerging and developed economies around the world. As Trade Commissioner Malmström (2016, p. 3) put it: “[while] work starts with the World Trade Organisation, the indispensable backstop of world trade liberalization. …, we are building a comprehensive network of bilateral trade and investment agreements.” Up until the turn of the century, the EU used multilateral agreements (resulting from negotiating rounds within the General Agreement on Tariffs and Trade— GATT) to further its objective of market access. The purpose of regional and bilateral agreements was primarily to achieve non-economic objectives, such as security and development cooperation. That changed in the mid-2000s when under the leadership of DG Trade Commissioner Peter Mandelson (2004–09), EU trade policy strategy shifted toward bilateral agreements (Garcia-Duran, Millet, & Orbie, 2016; Siles-Brügge, 2014). This new bilateral approach first focused on the promotion of

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agreements with emerging economies (except for South Korea), and then, during the tenure of Karl De Gucht as Trade Commissioner (2009–2014), on agreements with non-European developed countries, in particular, Canada, the US, and Japan. The same approach continued under Commissioner Cecilia Malmström (2014–19). As of 2019, the EU has either concluded or is negotiating trade agreements with numerous emerging market economies, such as Vietnam, Thailand, Philippines, Indonesia, Mexico, and India, as well as with non-European developed countries. The agreement with South Korea entered into force in 2011; the EU thereafter concluded agreements with Singapore (2013), Canada (2014), Vietnam (2016), and Japan (2017). The European Commission argues that its strategy does not contradict or challenge the EU’s emphasis on multilateralism, because preferential trade agreements (PTAs) that enable further progress on what has previously been achieved at multilateral level include areas not covered by the World Trade Organization (WTO), serving as stepping stones rather than stumbling blocks to multilateral liberalization; they allow for more trade creation than diversion, and prepare the ground for the multilateralization of bilateral preferential trade provisions (Garcia-Duran & Eliasson, 2018a). Modern PTAs are “comprehensive” because they no longer refer only to trade in goods but also in services (including foreign direct investment, FDI). They are “deep” because they also address the rules related to trade, at the border, but primarily behind the border, such as food regulations, intellectual property, labor, and environmental standards (Young, 2018). Some of these new provisions were intended for inclusion in a multilateral agreement under the auspices of the Doha Development Round, the first round of multilateral trade negotiations since the WTO materialized in January 1995. However, with the exception of the Trade Facilitation Agreement aimed at expediting border crossings of goods—which entered into force in February 2017—it has proven impossible to achieve a global trade agreement among all WTO members. In any case, these deep integration characteristics of modern trade agreements have led to the emergence of certain standardized procedures in EU bilateral negotiations. While deep agreements are negotiated following the same EU decision-making procedures as traditional trade agreements, they are all now expected to include provisions regarding sustainability, various kinds of regulatory convergence, investment protection, and transparency provisions. To sum up, the EU fundamental norm in the field of trade is an open trading system, and it is understood as a liberalizing agenda which includes a dimension of social purpose. Its organizing principle has always included different types of trade agreements, but there is now a greater emphasis on deep, bilateral agreements with standardized procedures (although bilateralism is expected to complement rather than substitute for multilateralism).

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TTIP Opponents and Supporters The EU started negotiations on TTIP with the US in July 2013, with the objective of reaching agreement on a deep and comprehensive PTA. Three years later, in November 2016, the negotiations were de facto frozen. This section shows that when contesting TTIP, CSOs did not directly target the bilateral approach of the EU, nor its fundamental norm of an open trading system (they were not asking for a shift to exclusive multilateralism, nor for protectionism, or laissez-faire). They targeted certain standardized procedures within deep trade agreements and challenged the need for an agreement with the US (Eliasson & Garcia-Duran, 2017). Neo-liberal European think tanks, and the neo-liberal agenda promulgated “as natural law” by the Commission, (CEO, 2017), were also targeted. Laursen and Roederer-Rynning (2017, p. 764) characterize modern, twenty-first century trade policy as “contentious market regulation,” which they argue entail “a politicized process shaped by the interaction between societal actors (using a broad range of conventional and disruptive techniques) and trade regulators, aimed at establishing sustained control over activities that are socially valued.” As such, the reasons why CSOs chose to target TTIP can be explained using traditional rational choice models: with deep FTAs (increased focus on regulations), the potential “costs” (e.g., threats to environmental, social, product, and/or labor standards) of an agreement can be perceived as very “high” by CSOs (cf. Laursen & Roederer-Rynning, 2017); they were sufficient to warrant the mobilization efforts against TTIP (e.g., CEO, February 17, 2014). However, the rationality argument fails to account for why previous (and concurrent) deep bilateral agreements or negotiations attracted scant public attention. Trade has traditionally been seen as an area for experts and officials, an area of exclusive EU responsibility, with little input or insight on the process from external groups, including CSOs (cf. Woolcock, 2011). While some ideologically left-leaning political parties across Europe have consistently opposed any liberalization through trade because it was part of what they saw as detrimental neo-liberal globalization (cf. Bauer, 2015, 2016; de Vries & Hoffmann, 2016), the “permissive consensus” that had largely reigned over EU trade (Hooghe & Marks, 2009) only came to a halt with TTIP. Two types of CSOs opposed TTIP: rejectionists such as Corporate Europe Observatory (CEO) who opposed any agreement, and reformists such as the European Consumer Agency (BEUC), who were prepared to accept an agreement if extensive changes were made to initial proposals put forth in negotiations.2 While their opposition to TTIP differed in its radicalism, the arguments of both types of CSOs were premised on many of the same assumptions (Eliasson & Garcia-Duran, 2018). The CSOs were able not only to increase the salience of certain issues and standardized procedures, but also to attract the support of (mostly left-leaning) political parties in 2 CSOs

were previously divided on international trade. Rejectionists saw globalization as a threat to sovereignty, and any public policy goal, and revisionists believed their goals could be achieved by globally upgraded rules (Hopewell, 2015).

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several member states (Bauer, 2016) and some party-groups in the European Parliament. European CSOs premised their arguments against a deep PTA with the US by referring to the trading partner’s policies and practices (Garcia-Duran & Eliasson, 2017). Based on the assumptions that American standards are lower than EU ones, and that mutual recognition of standards is automatic in deep trade agreements (which they are not), several CSOs argued that TTIP would lead to a “race to the bottom” on social and safety standards (e.g., CEO, 2017; Global Justice Now, 2015). Moreover, the inclusion of an investor-state dispute settlement (ISDS) mechanism would allow multinational corporations (in particular American) to sue governments, causing “regulatory chill” (cf. DeVille & Siles-Brügge, 2015). The end result was feared to be an American dominance of standards and practices, eclipsing EU standards. To prevent the EU from succumbing to American neoliberalism, textual proposals for TTIP had to be extensively revised, or, alternatively, the entire endeavor stopped. Even contestation over CETA, which was tied to TTIP, was premised on protecting the EU (citizens) from American multinationals. CETA was contested because of its inclusion of ISDS, which was asserted to represent a “backdoor for American companies.” (De Bièvre, Gstöhl, & Van Ommeren, 2018, p. 3; von der Burchard, 2016). This opposition emerged only after TTIP negotiations commenced, and CSOs realized that ISDS was intended for inclusion in a finalized agreement (Hübner, Deman, & Balik, 2017). As The Economist (2016, p. 29) explains: “Protesters transferred their outrage seamlessly from one [TTIP] to the other [CETA], dismissing cuddly Canada as a Trojan horse for rapacious American multinationals seeking to trample on European standards.” Opponents’ only arguments against CETA and TTIP not directly related to the US were in regards to the lack of transparency and CSOs’ participation in the negotiating process. The Commission was accused of violating principles of transparency, inclusion, and equal treatment of all affected parties. Greater inclusion of more voices (read: CSOs, trade unions) in deliberations and negotiations was said to ensure a better PTA (cf. Eliasson & Garcia-Duran, 2019). In defending the negotiations and its practices, the European Commission emphasized the agreement’s economic and geostrategic benefits, relying primarily on two premises: that lowering tariffs and removing non-tariff measures bring economic gains, and that standards agreed between the two largest markets will become globally dominant. Besides the classic economic growth argument associated with freer trade (see e.g., Hamilton & Schwarts, 2012), and dismissing the idea of a race to the bottom on standards, the Commission argued that TTIP would allow the EU to continue as a rules-setter despite the lack of a multilateral agreement.3 TTIP was expected to help the EU and US set standards for others to follow, and, in general, serve as a response to the rise of China (Garcia-Duran & Eliasson, 2017; Hamilton, 2014). The Commission was largely responsible for making the public case in favor of the TTIP agreement. This was not intentional. Traditionally, the Commission proposes a negotiation, receives its mandate from the Council, and goes about its 3 Vogel and Kagan (2004) argue that increased globalization can lead to a race to the top on standards.

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business negotiating on behalf of the EU. As previously noted, this was traditionally a technocratic process devoid of public scrutiny. Yet, the traditional fan bearers of trade, national governments, business organizations, and conservative parties, were quickly overwhelmed by the opposition mounted by CSOs. While some pro-TTIP organizations (for example, the Transatlantic Business Council, American Chamber of Commerce, and BusinessEurope) initially ran substantial online campaigns (and some on-the-ground events), traditional free trade advocates shivered as the opposition campaign intensified, blanketing social media (cf. Bauer, 2016; Eliasson & Garcia-Duran, 2019; Siles-Brügge, 2018). As noted by one business group representative, “[t]he companies in TABC realize now that civil society groups have an advantage in the marketing of TTIP and TTIP issues, and that businesses have difficulties in getting across their concerns and issues and countering misperceptions distributed by CSOs.”4 Some Commission staff (off the record) also expressed disappointment with governments’ lack of advocacy and support for TTIP.5 To sum up, while the EU shifted to bilateral agreements in 2006 as a means of ensuring its economic objectives, the first bilateral agreement to be contested by European CSOs was TTIP. The main arguments of opponents were grounded on the particular characteristics of the US. Bilateral deep and comprehensive agreements were not contested when negotiated with countries other than the US. Even the contestation over CETA’s ISDS was in relation to the latter’s proposed inclusion in the agreement with the US. While the Commission used geopolitical and economic benefits to defend TTIP, opponents did not respond by attacking those claims, but rather focused on the potential threat to EU citizens from lower EU safety standards stemming from an agreement with a neo-liberal and aggressive partner, who was presumed a stronger negotiator than the EU.

A Hard and Consistent Contestation Strategy In the case of TTIP, contestation was hard and occurred rapidly and explicitly through a mixture of deliberation, contention, and justification. It was hard because the attacks were aimed directly at certain standardized procedures. There was deliberation because some contesters were prepared to participate in advisory groups set up by the Commission and the office of the US Trade Representative (Buonanno, 2017). There was contention both because some contesters (rejectionists) did not consider deliberation the right mode of contestation, and because most CSOs (both rejectionist and reformist) encouraged societal protests; they undertook an “outside strategy” of protests, speeches, and social media campaigns (targeting the public, and thus indirectly policy makers, see Eliasson & Garcia-Duran, 2019). Finally, there was 4 Interview,

TABC representative, May 2016.

5 Interviews with Commission advisers and business representatives in Brussels and Berlin, in April

and June 2016, indicated that the Commission was surprised and disappointed by the lack of support it received from Member States.

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justification because contesters questioned the need for an agreement with the US on grounds of other norms: they wanted to preserve the status quo in order to preserve the values and practices of European welfare states. That is, to preserve, not contest, the fundamental norm of open trading system under the auspices of the European model of embedded liberalism (Fioretos, 2010; Garcia-Duran & Eliasson, 2017). While CSOs’ radicalness against TTIP—and their ensuing willingness (or not) to deliberate—allows us to distinguish between rejectionists and reformists, the two often coordinated their actions. Although lacking a centralized European opposition, CSOs “successfully created the image of a pan-European civil society uprising against the new trade politics of regulatory cooperation and investment rules” (De Bièvre, 2018; De Bièvre et al., 2018, p. 2). The opposition was fairly widespread across Europe; concentrated in the western half of the European continent and the UK, while scantly present in Scandinavia. Many groups staged their own events, but many also learned from, and most coordinated with, others, sometimes under the pan-European heading of StopTTIP! The latter was itself a creative attempt at accommodating both rejectionists (no deal) and reformist groups (suspend and revise) under one umbrella “…because stop does not mean no” (interviewee in Gheyle, 2019, p. 322). Public Citizen, an American CSO, also provided European CSOs material on ISDS, and members of the Transatlantic Consumer Dialogue (TACD) continuously exchanged ideas and tactics. While the degree of coordination among CSOs is debatable, research shows consistency in rhetoric and messaging from 2013 to 2016 (Bauer, 2016; Eliasson & Garcia-Duran, 2019; Gheyle, 2019). As Hübner et al. (2017, p. 853) also note, “the campaigns launched by European civil society groups… represent the largest cohesion amongst civil society in the EU’s history.” CSOs put forward similar arguments at similar moments, all asserting that TTIP would endanger the hard-won benefits of the status quo. Opponents steadfastly remained on their rhetorical path, notwithstanding some evolution in the content. While during the first two years, CSOs grounded their arguments in emotions and speculation; thereafter, they included some evidence-based framing, likely because there was more information available after the Commission decided to publish its negotiating mandate and textual proposals, while certain other texts leaked. In the case of lower standards, CSOs arguments from 2015 had to deal with the Commission’s proposals on regulatory cooperation, which would allow input from the public, CSOs, and business. On ISDS, they faced the Commission’s proposal for an international court system (ICS), and on transparency CSOs had to frame the Commission’s decisions to publish texts as insufficient, arguing that potentially dangerous compromises between the two parties remained undisclosed. The rhetorical content thus evolved slightly in response to action by supporters, as part of public contestation, while remaining consistent in its core messaging of TTIP jeopardizing the status quo. (Eliasson & Garcia-Duran, 2019, p. 69)

Justification was also used as a mode of contestation. TTIP, it was argued, challenged the values and practices of European welfare states. Campact, Germany, used its extensive email list of citizens (gathered over numerous other campaigns) to conduct market tests on policies; testing and identifying specific phrases that would elicit the greatest “desired” (read negative) reaction in the recipient.6 As a result, 6 Interview,

Berlin, June, 2016.

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CSOs’ contestation focused on primarily three issue areas: standards (in particular regarding food), ISDS, and transparency (the lack thereof). It was unsurprising that CSOs would raise public fears of food standards being threatened by “poor American standards.” Food plays a central role in most Europeans’ lives, extending far beyond its nutritional value (cf. Echols, 1998). Here, caution prevails, and discussions of genetically modified organisms, growth hormones, and recognition of others’ standards raise serious concerns. “Sixty percent of Europeans check the origin of their food, and for nearly half the origin influences their purchase. This is higher than for any other category of products, indicating […]likely higher receptivity to public campaigns regarding issues related to food.” (Eliasson & Garcia-Duran, 2019, p. 53). ISDS is intended to ensure that foreign investors have access to de-politicized legal redress for compensation (not legislative changes) when a host country’s government violates the terms of the investment treaty (Franck, 2014; UNCTAD, 2014). Yet, ISDS was quickly deemed a useful target in TTIP negotiations. It was drastically simplified and framed to the general public as unfair corporate favoritism and antithetical to democracy, “[ISDS] undermines the principle of judicial independence by surrendering judgement of what policies are right or wrong to three unaccountable and for-profit arbitrators hired from a small club of private lawyers riddled with conflicts of interest” (CEO, January 23, 2014). Proclaiming firms’ unfair advantages, vis-à-vis citizens helped CSOs garner greater public awareness of TTIP (Google searches for ISDS skyrocketed in 2014, Eliasson & Garcia-Duran, 2018). Though European states had long utilized Bilateral Investment Treaties (BITs)—which began in Europe after WWII when European investors wanted assurances when investing in former colonies—the general public, as well as many CSOs, labor unions, and policy makers, were unaware of the process prior to 2013. Yet, assertions that ISDS was “Allowing corporations to sue governments in secret courts over policies they don’t like” and “threatening public services” quickly became mantras, continuously repeated in protests and panel discussions, as well as in YouTube videos, Tweets, position papers, reports, and press releases. Most citizens are also unaware of how trade negotiations actually transpire. Thus, by insisting there was a lack of transparency in TTIP negotiations (despite nothing changing vis-à-vis other negotiations), CSOs could argue that “they [Commission] must be hiding something,” “the Commission doesn’t care about openness,” “what are they afraid of?,” and “they are circumventing democracy,” which all quickly became part of the common opposition rhetoric (BEUC, October 29, 2016; CEO, June 17, 2013; CEO, December 11, 2013; FoE, December 20, 2013).7 Questioning democratic values, transparency, and rights of corporations (“they are against us”, meaning citizens) is value-based arguments, normative in nature, rather than factual observations, but they were ubiquitous during the 2013–2016 period (cf. CEO, 2017). The overarching argument that TTIP would ruin perceived superior European values was thus directly tied to what CSOs proclaimed to be a lack of transparency in negotiations.

7 Interview

Brussels, May 2016.

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Notwithstanding that the EU had never previously published negotiating texts (proposed wording for different chapters of a trade agreement), nor held stakeholder meetings (allowing organizations to present their concerns to, and interact with, negotiators) during negotiating rounds, CSOs deemed the Commission’s 2015 decision to release its own textual proposals—it could not persuade the US to do the same— insufficient (BEUC, January 22, 2016; CEO, May 5, 2015). CSOs argued that they, and the public, could not trust the Commission’s reassurances that EU standards would remain unaffected, “not having access to the [US] texts creates suspicion, and we have to operate under the worst-case scenario.”8 However, just as the negotiations were grinding to a halt, friends of the earth Europe actually touted CSOs’ contributions to increased transparency in EU trade agreements; this by having made the Commission move beyond mere “window dressing” to actually publish texts (FoE, October 21, 2016). CSOs largely refrained from attempting to undermine proponents’ primary claims of economic and geopolitical benefits, choosing instead to focus on the rhetoric of fear, fear of losing precious European achievements, such as high food, safety standards, and the welfare state. The rhetoric used represented a “jeopardy thesis,” which entails arguing that “…the cost of the proposed change or reform is too high because it endangers some previous, precious accomplishment” (Hirschman, 1991: 7). Opponents favored the status quo (existing EU standards and welfare state provisions), which in Hirschman’s language was seen as the result of “older hard-won conquests or accomplishments” (Ibid., p. 84). CSO thus presented TTIP as leading to the erosion of hard-won and cherished regulatory standards and public policies; unacceptable costs were said to outweigh any potential benefits. Europeans’ greater trust in CSOs vis-à-vis business or governments (Edelman, 2012) certainly helped CSOs as they campaigned against TTIP, but the “US factor” was clearly important. Said one CSO representative, “we can’t get any of our national offices interested in other agreements.”9 Hosuk Lee-Makiyama of the European Center for International Political Economy found that “Most NGOs, among them several of the big ones, specifically told me, ‘Don’t contact us unless it’s about TTIP,’” (in von der Burchard, 2016). CSOs continuously insisted they were serious and concerned about the actual issues raised during TTIP negotiations. However, their concerns were not raised during negotiations with other countries, even though the same issues were included, for example, ISDS with Vietnam, agriculture and food imports with Japan, and a lack of transparency in all negotiations (no texts were posted online from the EU-Vietnam or EU-Japan negotiations). There was no lobbying of the European Parliament and no social media campaign against either agreement. Yet, on TTIP, there was a powerful narrative in which “the EU operates on a higher plane than its cousin—the US is a nation-state characterized by unfettered capitalism, weak social protections, low environmental protections, [and] selective human rights’ standards” (Buonanno, 2017, p. 98). This narrative tied into existing beliefs about, and fears of, the US (e.g., Margalit, 2012 in Steiner, 2016, p. 6), and 8 See

Footnote 7. CSO representative, Brussels, May, 2016.

9 Interview,

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“pre-existing country images are a constraint on narrative possibilities, making it easier or harder to craft a message about a foreign policy objective depending on the partner countries.” (Skonieczny, 2018, pp. 5–6). To understand the chosen justifications and rhetoric, one must remember CSOs (and the political parties that occasionally joined in the campaign) did not campaign against free trade or for “fair trade”—this was not about opposing trade.10 Even in the depth of the financial crisis (2010), 69% of Europeans supported free trade, and 65% believed the EU benefitted from international trade (Eurobarometer 85, 2016). Support for free trade was strong even in those countries where support for TTIP fell dramatically. In April 2014, 88% of Germans thought trade was good, and 55% deemed TTIP “a good thing”; five months later, support for free trade remained steady, but only 39% supported TTIP, falling to 20% by May 2016. Austria exhibited a similar decline. There was no correlation between general support for trade and specific support for TTIP in the five largest EU countries, and support for TTIP did not increase in any EU country between November 2014 and May 2016 (Eurobarometer data in Eliasson, 2016). To sum up, TTIP contestation involved rhetorical disapproval of the agreement and much external lobbying to that effect. Notwithstanding local differences, CSOs were able to put forward a trans-EU rhetorical strategy based on a jeopardy thesis linked to the perception of US-EU differences. Rather than attempting to undermine proponents’ claims of economic and geopolitical benefits, CSOs focused on the rhetoric of fear; fear of losing precious European achievements, such as high food, safety standards, and the welfare state. The issues contested were chosen for the purpose of raising as much fear as possible regarding the preservation of democracy, public policies, and welfare, yet international trade per se was not the object of contestation.

The Impact on Legitimacy Internal contestation over TTIP focused on certain standardized procedures in trade agreements (regulatory convergence, investment protection, and transparency). By challenging those procedures, however, it has had an impact on both the internal and external legitimacy of EU trade policy. The impact was negative at first (weakened legitimacy) yet positive in the end (strengthened legitimacy) thanks to the EU’s institutional capacity to react to changing demands. Regarding the internal legitimacy of EU trade policy, the European Commission changed the process of negotiating EU trade agreements by increasing transparency, enhancing dialog, and having more structured meetings with stakeholders; the Commission also proposed a new ISDS system (an international investor court system, ICS) to serve as a template for all its free trade agreements. Moreover, the Commission adapted its rhetorical strategy to counteract CSOs’ opposition. The Commission, 10 Interview,

CSO and labor union officials, Brussels, May, 2016.

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lacking experience defending trade negotiations authorized by Member States, was initially dumbfounded as to how to respond to CSOs’ campaign; it was woefully “unprepared for the depth of CSO hostility to TTIP” (Buonanno, 207, p. 796).11 While some research points to continued weakness in the Commission’s communication up until the end of the negotiations (“…Commission is using mainly the DG trade website to communicate. … it is not accessible to a wider public…” Poidevin, 2018), the experience with TTIP changed the Commission, who now pays much greater attention to words and phraseology in public communication on trade.12 The Commission used a conciliatory thesis (messaging how TTIP should be improved) in policy statements regarding changes to its processes and ISDS. However, its rhetoric was intransigent in response to CSOs’ arguments about lower standards and also when emphasizing the geopolitical and economic benefits of TTIP. The Commission emphasized both how TTIP would improve the status quo (positive messaging), and why the latter would be in danger without TTIP (negative messaging). By adopting some of the language used by contesters, the Commission’s rhetoric also gradually began emphasizing how European values and democracy were more important than material or geopolitical benefits (Garcia-Duran & Eliasson, 2018b). This shift reflects what Brink (2009) calls functional rhetoric, which is adopting opponents’ language but not their position. Commissioner Malmström heralded Trade for All, the Commission’s (latest) trade policy strategy published in October 2015, as evidencing the Commission’s responsiveness to accusations that the EU model was being abandoned; the Commission was not abandoning, but rather redesigning, the way the EU approaches trade policy (Malmström, October 19, 2015). A month later, she again assured skeptics that the new trade strategy addresses the “widespread concern that trade policy is more about the large companies and the investors than about individual European citizens”, instead it is “a trade policy which is in tune with European values” (Malmström, 2015, November 30, pp. 4–5). Thus, the European Commission had “deliberatively [sought] to make [its trade policy] more legitimate, by boosting beliefs that its rule is exercised appropriately,” what Tallberg and Zürn (2019, p. 5) call “legitimation.” The insertion of functional rhetoric in Trade for All means that in addition to changes to internal procedures and ISDS policy, there has been a change in EU trade policy rhetoric. While EU trade policy always included a social purpose (Drieghe & Potjomkina, 2019), European values and democracy had not been placed on the same level as economic interests since before the Commission’s 2006 Global Europe trade strategy. By doing so, as a result of TTIP contestation, the Commission has linked the internal legitimacy of its trade policy to this compromise. This is important, for as Grube (2016, p. 534) reminds us, “rhetoric is at one and the same time constitutive and formative of the ideas that are expressed through these words,” and therefore,

11 Interview,

Brussels, May, 2016. Hübner et al. (2017, p. 850) explain that while “the EU was planning ahead for potential accountability issues in Canada, by involving the provinces, it was unaware about the potential accountability issues it could face in its own negotiation process.” 12 Informal discussion with Commission representative, Antwerp, May, 2018.

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that political actors have difficulties in changing their rhetoric without losing legitimacy (“rhetorical path dependency”). Yet, the insertion of an equilibrium between economic interests and values in Trade for All also indicates that the Commission interpreted the jeopardy thesis of CSOs as a demand for preserving embedded liberalism (i.e., of a compromise between liberalism and social demands, cf. Ruggie, 1982) rather than as a demand for protectionism. While emphasizing free trade, the Commission now insists that policy space (to preserve social objectives) will be ensured. Even so, it is noteworthy that there was little to no intra-EU mobilization against EU trade policy when the EU departed from managed globalization and shifted toward a bilateral approach in the mid-2000s, nor were there protests against trade during the financial crisis (which hit Europe 2009–2011). It was only during negotiations with the US that CSOs’ jeopardy thesis resonated with the public; that is, when the EU started negotiations with a partner considered too “neo-liberal” and perceived as having superior bargaining power. This is consistent with the econometric findings in a country-case study on public opinion, where the authors show that there is a difference between supporting free trade in the abstract and supporting specific trade agreements (Jungherr et al., 2018). It is also consistent with the constructivist literature that claims that “successful or unsuccessful economic legislation [or trade agreements] hinges on plausible stories of trading partners and believable characterizations of the economic environment” (Skonieczny, 2018, p. 2). Moreover, the institutionalized legacy on EU trade negotiations may make TTIP contestation a “one-off”, even in the event of new trade negotiations between the EU and the US. When, in July 2018, Jean-Claude Juncker, the President of the European Commission, and US President Donald Trump agreed to start new trade negotiations on non-auto industrial goods, and the Americans insisted agriculture be part of the talks, there were some grumblings about a “TTIP-light” that would again threaten EU standards. In March 2019, the European Parliament voted against opening negotiations with the US (though the European Parliament lacks legal authority on the mandate, the procedural vote revealed how difficult it could be to get any final agreement accepted). Yet, the new post-TTIP institutional arrangements, with greater access for CSOs, may lessen the likelihood of public duels. Moreover, the Commission’s proposal for an ICS, a 2018 Court of Justice of the EU (CJEU) decision invalidating intra-EU ISDS cases, and the Commission’s commitments to EU values, may have neutered the most contentious issues (Eliasson & Garcia-Duran, 2019; Siles-Brügge, 2018). Further neutralization of the ISDS issue occurred as a result of an April 30, 2019, CJEU opinion affirming the compatibility of ICS with EU law. Trade Commissioner Malmström commented: “This opinion confirms that citizens can have full confidence in the Commission’s new approach to investment protection. …The Investment Court System guarantees that this is done fairly, effectively, and transparently.” (Malmström, 2019). The court rulings also helped the EU’s external credibility. The latter was initially dented, as TTIP contestation and failure to conclude negotiations cast doubts on the EU’s ability to conclude and ratify agreements. While few believe that TTIP would have been concluded even without Trump’s ascendency in the US (cf. Young,

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2017b; Eliasson & Garcia-Duran, 2019, p. 8), CSO contestation over TTIP also led to parliamentary majorities in some countries (e.g., Germany and France) demanding the classification of CETA as a mixed agreement (De Bièvre, 2018). Initially opposed, the Commission succumbed for political reasons (IISD, 2016). Thus, CETA had to be ratified by the Council of the EU and the European Parliament and then be approved domestically by each Member State. This led to a veto threat by a regional Belgian parliament (according to Belgian law, each sub-national parliament has to approve foreign treaties); a problem resolved after “the EU and Canada issued an interpretative declaration stressing the continued right to regulate in the public interest, the impartiality and fairness of the ICS and their commitment to sustainable development and high labor and environmental standards.” (De Bièvre et al., 2018, p. 4). The difficulties ratifying CETA hurt the image of EU as a reliable partner since it showed that even agreements “with the closest of friends” may not be ratified. The Economist (2016, p. 29) claims that the President of the Council of the EU, Donald Tusk, warned that “failure on CETA would mean the EU could never strike a trade deal again.” Another CJEU ruling in 2017 regarding the application of the Lisbon Treaty with respect to the Singapore PTA was also helpful. The Court declared investor protection and portfolio investments a shared (Member State-EU) competency, leaving the Commission to negotiate PTAs with Japan and others going forward without ISDS and portfolio investments (CJEU, 2017). Investments would be covered in separate agreements with countries opposed to participating in the ICS (ICS is in agreements with Singapore, Vietnam, and Mexico). In the words of De Bièvre et al. (2018, p. 5): “separating investment protection from trade agreements …makes “involuntary defection” in the ratification process of FTAs less likely, thus strengthening the Commission’s credibility as a negotiator.” Moreover, TTIP contestation may also have strengthened EU bargaining power. Thomas Schellings’ “paradox of weakness” suggests that in international negotiations, “having one’s hands tied may be instrumental in inducing the opposite number to move in one’s direction” because it improves the best alternative to no agreement (Dluhosch & Ziegler, 2011, p. 350). The possibility of greater scrutiny by Member State representatives and their domestic constituencies, thanks to increased transparency and inclusiveness, may both reduce the Commission’s negotiating autonomy and strengthen the credibility of the EU. As De Bièvre (2018, p. 72) explains, “the paradox of weakness holds in EU trade policy, yet opinions diverge on the extent to which and the conditions under which this generalization holds.” For the De Bièvre, the paradox of weakness applied in the case of CETA thanks to Canada’s eagerness to strike a deal, yet did not unfold in the case of TTIP because the US was not keen on a deal (cf. Young, 2017a).13 In sum, European CSOs’ contestation over TTIP, while focused on certain standardized procedures, has had an impact on the legitimacy of EU trade policy. This impact was negative at first due to the slowness of the EU’s response. However, the 13 There is also research showing that enhanced transparency in trade negotiations may have the paradoxical consequence of shifting decision-making processes to informal networks and practices; in trade negotiations, more transparency may lead to more secrecy (Heldt, 2019).

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end result is strengthened legitimacy for the norm of free trade, thanks to the EU’s institutional ability to accommodate and modify its approach. TTIP contestation led to changes in the EU’s trade strategy rhetoric, as well as in processes and policy. Moreover, contestation helped bring cases to the CJEU; cases which further clarified (and delineated) EU competences in trade policy have further reinforced the image of the EU as a complex entity. While the ride has been bumpy, we agree with De Bièvre (2018) that it has proven the resilience of EU trade policy and strengthened the EU’s bargaining power. The result has been more internal legitimacy of EU trade policy (seen as closer to citizens), without hampering the ability to pursue the norm of an open trading system. The EU launched new negotiations with New Zealand and Australia in 2018, and the EU-Japan agreement was ratified and entered into effect in February 2019.

Conclusion This chapter argues that while TTIP was contested by CSOs and became highly politicized, the norm of an open trading system was not the object of contestation (opponents were not demanding protectionism or laissez-faire), nor was the organizing principle of bilateral agreements. Opponents wanted to preserve rather than challenge the fundamental norm of an open trading system. Instead, the focus of contestation was certain standardized procedures (regulatory convergence, investment protection, and transparency), and, adhering to the analytical framework outlined in Chap. 1, the contestation was hard. The procedures were directly targeted for elimination or modification. The contested procedures were chosen for the purpose of raising as much fear as possible regarding the preservation of democracy, public policies, and welfare, and the preservation of a balance between free trade and social objectives. In so doing opponents did not challenge the EU’s bilateral trade policy approach. Political contestation (deliberation), social contestation (contention), and moral contestation (justification) over TTIP initially damaged both the internal and external legitimacy of the EU’s trade policy. Progressively, over time, the Commission responded. Its effective response also boosted its resilience, and the end result of the contestation episode is an enhanced legitimacy of EU trade policy. TTIP negotiations were a unique period of trade politicization—one which is unlikely to continue or reoccur. The EU’s ability to pursue both multilateral agreements (i.e., WTO) and bilateral agreements has been strengthened and reinforced; the institutionalization of standardized procedures is a legacy of TTIP contestation and politicization. However, a perception underlying contestation in TTIP may reappear as a result of Brexit (if it occurs). Brexit diminishes the EU’s collective weight, and the EU will at some point negotiate separate PTAs and/or investment agreements with China and the US. The (asserted) threat of a negotiating partner with stronger bargaining power than the EU may again lead to trade contestation.

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Grube, D. (2016). Sticky words? Towards a theory of rhetorical path dependency. Australian Journal of Political Science, 51(3), 530–545. Hamilton, D. (2014). The geopolitics of TTIP; repositioning the transatlantic relationship for a changing world. John Hopkins University: Center for Transatlantic Relations. Hamilton, D., & Schwarts, P. (2012). A transatlantic free trade area—A boost to economic growth? New Direction The Foundation for European Reform. Retrieved from http://www.liberavzw.be/ wp-content/uploads/2012/02/transatlantic-free-trade.pdf. Heldt, E. C. (2019). Contested EU trade governance: Transparency conundrums in TTIP negotiations. Comparative European Politics, https://doi.org/10.1057/s41295-019-00183-4. Hirschman, A. (1991). The rhetoric of reaction: Perversity, futility, jeopardy. Cambridge: Belknap Press of Harvard University Press. Hopewell, K. (2015). Multilateral trade governance as social field: Global civil society and the WTO. Review of International Political Economy, 22(6), 1–31. Hooghe, L., & Marks, G. (2009). A postfunctionalist theory of European integration: From permissive consensus to constraining dissensus. British Journal of Political Science, 39(1), 1–23. Hübner, K., Deman, A.-S., & Balik, T. (2017). EU and trade policy-making: The contentious case of CETA. Journal of European Integration, 39(7), 843–857. IISD-International Institute for Sustainable Development. (2016). CETA to be concluded as a mixed agreement; Commission hopes for signing in October. Retrieved from Investment Treaty News: https://www.iisd.org/itn/2016/08/10/ceta-to-be-concluded-as-a-mixed-agreementcommission-hopes-for-signing-in-october/. Jungherr, A., Mader, H., Schoen, H., & Wuttke, A. (2018). Context-driven attitude formation: The difference between supporting free trade in the abstract and supporting specific trade agreements. Review of International Political Economy, 25(2), 215–242. Laursen, F., & Roederer-Rynning, C. (2017). Introduction: The new EU FTAs as contentious market regulation. Journal of European Integration, 39(7), 763–779. Malmström, C. (2015, October 19). Towards a new strategy. Speech delivered at the Conference: Transatlantic Leadership in a Global Perspective: Challenges and Opportunities, Bruges, 1–8. Retrieved from http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153885.pdf. Malmström, C. (2015, November 30). Trade and global challenges. Speech delivered at 10th Anniversary Conference of the Swedish Chamber of Commerce in France, Paris, 1–7. Retrieved from http://trade.ec.europa.eu/doclib/docs/2015/november/tradoc_154009.pdf. Malmström, C. (2016, October 13). EU trade policy and the retail and wholesale sector. Speech delivered at the Meeting of the Board of Eurocommerce, Brussels, 1–7. Retrieved from http:// trade.ec.europa.eu/doclib/docs/2016/october/tradoc_155013.pdf. Malmström, C. (2019, April 30). European Court of Justice confirms compatibility of Investment Court System with EU Treaties. Press Release. Brussels. Retrieved from http://trade.ec.europa. eu/doclib/press/index.cfm?id=2014. Meunier, S. (2007). Managing globalization? The EU in international trade negotiations. Journal of Common Market Studies, 45(4), 905–926. Poidevin, A. (2018, May 3). How to prepare for the next anti-free trade campaign? Retrieved from European Center for International Political Economy. http://ecipe.org/blog/how-to-prepare-forthe-next-anti-free-trade-campaign/?mc_cid=0d731f2405&mc_eid=6a6ec72788. Ruggie, J. (1982). International regimes, transactions, and change: Embedded liberalism in the postwar economic order. International Organization, 36(2), 379–415. Siles-Brügge, G. (2011). Resisting protectionism after the crisis: Strategic economic discourse and the EU-Korea free trade agreement. New Political Economy, 16(5), 627–653. Siles-Brügge, G. (2014). Constructing European Union Trade policy. Basingstoke: Palgrave Macmillan. Siles-Brügge, G. (2018). Transatlantic investor protection as a threat to democracy: The Potency and Limits of an Emotive Frame. Cambridge Review of International Affairs, 30(5–6), 464–488. Skonieczny, A. (2018). Trading with the enemy. Review of International Political Economy. https:// doi.org/10.1080/09692290.2018.1448879.

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Steiner, N. (2016). Public support for TTIP in EU countries: What determines trade policy preferences in a salient real-world case? Working paper. Retrieved from https://ssrn.com/abstract= 2718984. Tallberg, J., & Zürn, M. (2019). The legitimacy and legitimation of international organizations: Introduction and framework. Review of International Organizations, 1–26. Retrieved from https:// papers.ssrn.com/sol3/papers.cfm?abstract_id=3060204. The Economist. (2016, October 29). If the European Union cannot trade, what can it do? The Economist, p. 14, Charlemagne. UNCTAD-United Nations Conference on Trade and Development. (2014). Recent developments in investor-state dispute settlement. New York and Geneva. Retrieved from http://unctad.org/en/ PublicationsLibrary/webdiaepcb2014d3_en.pdf. Vogel, D., & Kagan, R. A. (2004). Dynamics of regulatory change: How globalization affects national regulatory policies. Berkeley: University of California Press. von der Burchard, H. (2016). The man who killed TTIP. Politico, 4. Woolcock, S. (2011). European Union economic diplomacy. In S. Woolcock & N. Bayne (Eds.), The new economic diplomacy: Decision-making and negotiation in international economic relations global finance (pp. 169–186). Aldershot: UK Ashgate. Young, A. (2017a). European trade policy in interesting times. Journal of European Integration, 39(7), 909–923. Young, A. (2017b). The new politics of trade lessons from TTIP. Newcastle upon Tyne: Agenda Publisher. Young, A. (2018). Introduction: The politics of deep integration. Cambridge Review of International Affairs, 30(5–6), 453–463.

Leif Johan Eliasson is Professor of Political Science at East Stroudsburg University, Pennsylvania. His research focuses on EU economic integration, EU and transatlantic trade, and trade contestation. He is the author of America’s Perceptions of Europe (Palgrave McMillan), Civil Society, Rhetoric of Resistance, and Transatlantic Trade, with Patricia Garcia-Duran (Palgrave Pivot), and several articles in international journals such as the Journal of European Public Policy, Journal of World Trade, and Cambridge Review of International Affairs. Patricia Garcia-Duran is Associate Professor at the University of Barcelona (Department of Economic History, Institutions and Policy and World Economy). She is also a researcher at the Observatory of European Foreign Policy of the Barcelona Institute of International Studies (IBEI). In the last years, her work has focused on EU trade policy and the World Trade Organization. She has published in several refereed journals including the Journal of European Public Policy and the Journal of World Trade.

Chapter 10

Military Capacity Building as EU’s New Security and Development Strategy: The New Rules for Peace Promotion? Marta Iñiguez de Heredia

The security-development nexus has served as the organising principle to different fundamental norms the European Union’s (EU) foreign policy promotes, such as sustainable peace and sustainable development. The theory and practice of EU’s peacebuilding shows the application of this principle, as it encapsulates the idea that building peace means working simultaneously for the consolidation of security and order, as well as for the promotion of good governance, democracy and development. Whereas this principle expanded and dominated EU’s foreign and security agenda between the 1990s and 2002, the challenges that the contemporary context is posing to these principles and the EU itself (see Johansson-Nogués, Vlaskamp & Barbé, this volume) have pushed the EU to rethink many of its practices. In the last decades, the EU has shifted away from this liberal peacebuilding agenda, towards a more explicit focus on the security side of this nexus (Chandler, 2017; Iñiguez de Heredia, 2017). While this is not an entirely new way to put into practice programmes undertaken under the security-development nexus or liberal peacebuilding, the new approach not only deepens the understanding that security is a priority, but also defines it in military capacity terms. The main issues in this shift is that sustainable peace and development become, at least in short to medium term, served by military capacity rather than by good governance capacity. This has far-reaching implications for fundamental norms, as the EU changes itself from a purveyor of the rule of law to one of military capacity, even if the rule of law rhetoric is maintained for the long term. Additionally, as will be shown below, for many of those resisting this shift from within the EU, the implication is that aid and support shifts away from civilian towards military goals. This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No. 660933— PARADOXGREATLAKES. M. Iñiguez de Heredia (B) Universidad Autónoma de Madrid, Madrid, Spain e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_10

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This shift has, therefore, the potential to jeopardise the EU’s legitimacy and authority in its key foreign policy goals and has generated much contestation over how military capacity is to govern the practice of the security-development nexus. This chapter illustrates this contestation with the case of the 2017 Capacity Building for Security and Development (CBSD) initiative, which makes it possible to grant non-lethal military support to third countries. This specific case has provoked much intra-EU contestation, but, as the chapter argues, in many respects, it shows more cry than wool. On the one hand, granting military capacity goes against the Treaty of Lisbon,1 and its articulation has confronted proponents and detractors between and within the Parliament, the Commission and the Council. Yet, on the other hand, there is significant agreement over military capacity building as the best solution to address pressing security issues like terrorism and migration. The result is that ‘soft’ and ‘hard’ contestation overlap. While much of the contestation is centred around operational, regulatory and procedural issues, this is simultaneously accompanied by contestation about the standing of fundamental norms around the promotion of the rule of law, security, peace and development. With this in mind, the chapter addresses three questions. First, to what extent does granting military capacity challenge substantive norms about the promotion of sustainable peace and development in the EU? Second, does the contestation over the CBSD initiative harm the EU’s external authority and credibility? Third, does this contestation affect the EU’s legitimacy as a global actor? To address these questions, the chapter follows the volume’s analytical framework, exploring whether this contestation could be considered ‘soft’ or ‘hard’ depending on the deliberative/regulatory or substantive character of the contestation (see Johansson-Nogués, Vlaskamp and Barbé, this volume). It argues that the overlap found between ‘soft’ and ‘hard’ contestation shows that there is a continuum between the two types of contestation, for operational principles cannot be disentangled from fundamental norms. Additionally, the existence of one type of contestation does not automatically override the other. The chapter also shows that the contestation shows no major effects on the authority and legitimacy of the EU as a global actor. Rather, the new turn to grant military capacity is the outcome of a crisis of legitimacy—not only of the EU—but of the liberal order as a whole. In methodological terms, the chapter draws on a content analysis of 16 interviews with EU representatives and relevant documents (different drafts of the CBSD regulation, EU statements and minutes from relevant European Parliament debates). The interviews with EU officers, including EU Council delegates and EUMPs, were conducted in 2017 and focus on their level of support of the CBSD initiative, their role in the drafting of the regulation and their views on how this affected the overall objectives the EU had in regards to building sustainable peace. These interviews were then systematically analysed alongside official documents using thematic analysis,

1 Art.

41 excludes from the Union budget ‘expenditures arising from operations having military or defence implications’—that is why CSDP missions have been financed through instruments outside the treaty such as the Athena Mechanism or the proposed European Peace Facility.

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by way of coding themes and analysing the relationship between them (Boyatzis, 1998). The chapter first explores the rise of the security-development nexus and its understanding, linked to the EU’s liberal peacebuilding agenda. The chapter then explores how the norm is contested with the shift to military capacity and its outcome. It finally discusses the implications for the legitimacy and authority of the EU.

Contesting the Military Capacity-Development Nexus The rise of the security-development nexus in the early 1990s came in the EU as part of the liberal peacebuilding agenda.2 The Treaty of Maastricht established that Community policy should promote sustainable development, contributing to ‘the general objective of developing and consolidating democracy and the rule of law, and to that of respecting human rights and fundamental freedoms’ (EU, 1993, art. 130u). This was in the context of an ‘increasing awareness’ that human rights had an impact on ‘international and regional peace and security and on the political stability, social and economic development and general situation of individual countries’ (EU Commission, 1995, p. 19). Moreover, work on human rights, as an interlocking aspect of the security and development of people and countries, was seen as necessary to avoid issues that could spill over other regions, especially in Europe, with widespread movements of people, like those seen in Bosnia (EU Commission, 1995, p. 21). The security-development nexus emerged as an organising principle to several fundamental norms of the EU’s Foreign Policy, such as peace, rule of law and human rights promotion. Previously, the EU had placed development at the forefront of its relations with the Global South.3 The first Lomé Convention, signed in 1975, regulated how development aid was disbursed and, in fact, how relations between the EU (European Economic Community at the time) and these countries should take place. Security, more so in the context of the Cold War, was a separate and sovereign question, not even established as a common policy within Europe at that time. Events in the 1980s and 1990s consolidated a shift that merged security and development. The debt crisis in the 1980s and the realisation that development had got ‘lost’ during that decade, added to the conflicts that ravaged some countries in Africa, Latin America and South-East Asia, pushed many policy-makers to see development and security interdependent, not being able to consolidate one without the other. Moreover, poverty and conflict became to be understood as stemming from failed corrupt authoritarian states, requiring deeper political reforms to achieve 2 Though

liberal peacebuilding is a very contested term (Heathershaw, 2013), and there have been different approaches (Natorski, 2011), it refers here to the general consensus established in the early 1990s that building peace entailed a series of measures to reform states, in its political, security and economic arenas according to good governance and rule of law values (Campbell, Chandler, & Sabaratnam, 2011). 3 Unless stated, the following two paragraphs draw on Iñiguez de Heredia, 2019, pp. 55–57.

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security and development (Duffield, 2001, p. 58).4 With the end of the Cold War, and the triumph of liberalism, the rise of the liberal peacebuilding agenda sees the promotion of the rule of law, market liberalisation and democracy as the key for both these issues. The last Lomé Convention signed in 1990 makes development aid and any trade benefits conditional to the respect for human rights, good governance and reforms towards democratisation and rule of law. This is how the security-development nexus consolidated as a core organising principle of EU’s Foreign Policy towards southern countries and of fundamental norms like the promotion of sustainable peace and the rule of law. The security-development nexus was not something specific to the EU, the security-development nexus came to be a central organising principle for the liberal peace agenda globally (Duffield, 2001). But for the EU, to embrace the security-development nexus meant shifting practices in its development policy. Development work, meaning the funding of projects such as building public infrastructure in developing countries and providing these special trading deals, became a global governance mechanism through which to keep international order and security. As Duffield argues, the security-development nexus entailed enhancing global governance, through a series of ‘strategic complexes’ that merged state, non-state, military, civil, public and private actors, including UN agencies, international financial organisations (IFOs), governments, the military, private security contractors, NGOs, etc. (Duffield, 2001, p. 12). The work NGOs could do such as building schools or providing water sanitation became connected with and embedded in military interventions, corporate investments and macro-economic reforms. The 1993 Common Foreign and Security Policy (CFSP) and the European Security and Defence Policy that evolved into the 2009 Common Security and Defence Policy (CSDP), both were inspired by the liberal peacebuilding agenda and underpinned by the security-development nexus. This meant that not only were foreign and security goals defined by the promotion of liberal values and liberal forms of governance overseas, but also by a commitment to intervene, connecting military and humanitarian goals with economic and political reforms towards liberal-democratic forms of governance. The most explicit articulation of the security-development nexus came, as Keukeleire and Raube (2013) state, with EU’s first Security Strategy in 2003. However, while it specifies that ‘poverty and diseases such as AIDS give rise to security concerns [and] economic failure is linked to political problems and violent conflict’, it also states that ‘security is a precondition of development’ (EU Council, 2003, p. 1). That is, that security takes precedence and that the merging of security and development has securitised development is nothing new. Yet it is remarkable that throughout the whole document, making very explicit connections between security and the need to use military means alongside judicial, police and others (Eg. EU Council, 2003, p. 34), this ‘military call’ is for the EU to become more ‘active, capable and coherent’ in cooperation with partners and not for the EU to make partners more military capable (EU Council, 2003, pp. 39–42).

4 For

a critique on the perception and discourse on failed states see: Wai (2018).

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The EU has ever since expanded the number of civil and military interventions, whose aims and goals have systematically linked security and development as a stepping-stone towards sustainable peace, rule of law and human rights (Treaty of Lisbon art. 10A, EU, 2007). Individual operations have already shown the priority given to security and stability issues in peacebuilding missions. For instance, in places where it was first undertaken, like Bosnia and Herzegovina, Kosovo and the Democratic Republic of Congo, the EU achieved a great deal of stability and paved the way for democratic transitions. However, it also supported the not-sodemocratic governments and built up police and security forces capacity to deal with transnational organised crime, that so much affected the EU, in the case of Bosnia, and in the DRC, as a compromise for stability, despite the authoritarian turn of the government (Mac Ginty, 2011, p. 55; Von Billerbeck & Tansey, 2019). Yet in these earlier projects, the military capacity of the target states was conceived of as a question of Security Sector Reform, entailing at least rhetorically, the good governance of security forces and their placement under civilian control and oversight. Similarly, in 2004, the African Peace Facility (APF) was created to support the African Union’s (AU) security architecture. This was also an out-of-treaty instrument that included military capacity provision, evading the Art. 41,2 prohibition of the Treaty of Lisbon, and it was funded directly with the European Development Fund. One core difference with the CBSD initiative is that military equipment and training were excluded from the APF. AFP was conceived as a multilateral endeavour, having a strong conflict mediation and dialogue pillar, and retaining in its core goals and means the work on effective governance. Conversely, CBSD incorporates (nonlethal) military equipment and training, and consolidates a narrow view of security as the precondition for development and many other long-term goals. Such a move also implies that military capacity is necessary, regardless of the democratic or reformed character of governments and armed forces. Whereas the APF came up as part of a wide consensus, CBSD is generating contestation over both operational principles and fundamental norms. This contestation, as we are about to see, not only comes from a challenge to traditional understandings about the security-development nexus but also because it is seen as jeopardising the EU’s role in the promotion of fundamental norms, with repercussions for its legitimacy and authority.

How Is the New Approach to Security-Development Nexus Contested? Throughout this process, two blocs have been created between proponents and detractors that, as already mentioned, poise the Parliament against the Commission and against part of the Council, the Commission against the Council and vice versa, member states within the Council against each other and divides different groups in the Parliament. This is noted in that, while the initiative is the result of a push from

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high-level sectors of the Commission, like Federica Mogherini, and members of the Council like France and Germany, it has not sat well with Commission insiders, nor with officers working in peacebuilding programmes and desk-officers. Within the Council, divisions have also created proponents and detractors, with an additional reproach to the Commission, for trying to step on Council’s territory, as this initiative essentially allows the Commission to make some, even if small, decisions in matters of security and defence. Proponents and detractors in the Parliament have similarly aligned with those in other institutions. Thus, while deliberation can be seen as the main mode of contestation, contention has also been very present. The CBSD initiative has been a regulation, used by proponents as a tool to contend and transform the operationalisation of the security-development nexus, and with that the principles that come with it. Yet, the development of this initiative, its transit through the different institutions, and its final approval cannot be understood without the squabbles, gossip and chitchat in informal settings. Let us analyse these two blocks in relation to the CBSD initiative in more detail. Proponents of the initiative not only assume security as a precondition for development as an already consolidated understanding in the EU, but take this as an argument to make security more explicitly connected to military means and goals. As stated, it was Mogherini that took the lead on this issue with a proposal to the Council and the Parliament in 2015 to create a new instrument that would allow supporting security capacity building, including civilian, police and armed forces (EU Commission, 2015, p. 5). There, Mogherini states that the only way forward for the EU to be effective in approaching the ‘dramatic’ and ‘deteriorating global security situation’, felt in the immediate European neighbourhood, is by ‘enabling partner countries and regional organisations to increasingly prevent and manage crises by themselves through efficient EU support to their security capacity building’ (EU Commission, 2015, p. 12). In this document, it is already visible how a new regulation, in this case, a new financial instrument, is proposed to contest the norms that govern security and development. Yet rather than staying at the level of organising principles, the document also features an extensive explanation of how a new understanding is fundamental for EU’s foreign policy guiding principles and norms like peace and international security preservation, conflict prevention and poverty eradication (EU Commission, 2015, p. 3). Further, this is also stated as crucial to ‘restore confidence’, having consequences for the authority and legitimacy of Europe in front of partners and citizens (EU Commission, 2015, p. 1). Subsequent draft proposals have emphasised that the EU needs to enhance cooperation with the security sector and the military in third countries for its own security (EPRS, 2017; EU Commission, 2016a). The 2016 EU’s Global strategy is largely based on this idea, even claiming that ‘[t]he idea that Europe is an exclusively “civilian power” does not do justice to an evolving reality’; ‘our neighbour’s weaknesses are our weaknesses’ and that ‘[i]t is in the interests of our citizens to invest in the resilience of states and societies to the east stretching into Central Asia, and to the south down to Central Africa’ (EU Commission, 2016b, p. 4 and 9).

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This is also the message that comes from the most vocal member states in this issue (France and Germany): there is a need to foster the military capacity of third states in order to foster their capacity to deal with crises, which are a potential threat to the EU. As previously stated, this way of thinking contests the traditional view of the security-development nexus, but also of peace promotion through peacebuilding operations, which was to place good governance capacity, and not military capacity at the centre. While it would be inaccurate to think that these delegates are ready to give away long-term goals of good governance and sustainable peace, their views imply a raise of military goals and the role of the military that narrows the security component of the nexus. For instance, for a French Council delegate: When there is no control of the territory, there is no statebuilding, no administration building, community building and the international support is wasted. In Africa in particular, the military has a different role than in Europe. Very often they tend to go to places where the police cannot go. The aim is to support the military to support the population when they need it. And we hope CBSD will support that. (Interview, French delegate, 2017)

The German Council delegate (Interview, 2017) made the point with an example: In South Sudan, for instance, we did cooperation and state building, putting a lot of money on rebuilding state institutions. But none was left because of the conflict - no NGOs, noone, it was even difficult to deliver humanitarian aid. If there is a conflict you cannot have development, and then we go back to arms. Security and development reinforce each other.

Both France and Germany are adamant to see the goals of sustainable peace, rule of law and development attained in the long term, but their promotion of CBSD also conveys that military capacity becomes the main means for those goals, at least in the short to medium term. In similar ways, for another supporting delegation, Spain, the initiative plans to offer stability and peace for which an ad hoc instrument is needed in order to make the conflict states themselves and not EU countries the ones that have to be deployed. For a Spanish former Council delegate (Interview, 2017) ‘the EU is well furnished to build and promote peace in its three pillars: prevention, through mediation and diplomacy, military intervention if necessary and reconciliation and rebuilding through development aid and institution building’. What this delegate emphasises is the need for countries in conflict to deal with the conflict themselves and not put in danger European soldiers, while also remarking the fact that military forms of intervention are part and parcel of EU’s sustainable peace promotion. The underpinning message here seems that rather than contesting the application and undertaking of the security-development nexus as an organising principle, or of the norm of sustainable peace promotion, the CBSD initiative deepens what these principles are set out to do. Other officers refer to the oft-quoted examples of Mali and Somalia where despite the training and investment, little was left because of lack of ongoing support. That is, contesting the validity of the security-development nexus comes from its poor success rate. For instance, EU military staff officer (2017) referring to Mali stated: ‘we provide them with courses just to keep them at schools - they’re happy to be trained, they’re like dry swans seeking water, like children, but then what? they don’t

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have arms because they are under an embargo, no barracks, sometimes no uniforms or boots. Why not use these instruments for these purposes?’ Besides the paternalistic approach, this officer is demanding that these types of instruments are used for what is really needed for, which is military capacity to put down conflicts. For EU Peace and Security adviser (2017), the issue was also a practical one: the fact that everything that is not CSDP comes from the Commission has created a dichotomy between what is civil security (paid by the Commission) and military security (paid by the Council). This makes no sense in the pursuit of our objectives in certain countries, especially in some African countries where the military takes up police, or civilian tasks. Part of the problem is that the EU did not have expertise in the domain of security, that was up to each member state. CBSD will allow addressing better the root causes of conflict that we have in places like Mali, Sahel, CAR, Cameroon. For instance, in Cameroon now they need to draw on local militias, does that reinforce the rule of law?

This officer’s remark is important. It highlights that the contestation is not whether the EU should continue upholding the rule of law, but rather the need to include a military approach to security if other goals are to be achieved. It is also representative of what I was able to gather as one of proponents’ core argument: that the work that is being done through CSDP missions needs to be better coordinated with that done from other instruments and that ignoring the needs of military equipment and training does not fulfil peace, development or security objectives. Still, this puts into question the balance of the security-development nexus, redefines security in narrower military terms and places the promotion of good governance and the rule of law in a lower scale in the promotion of sustainable peace. On the other side are those who have opposed the measure. Detractors put the accent on the fact that they do not want to give military support with development money. They do not necessarily challenge the core arguments of proponents, but they do not want a redefinition of ‘development’ and of ‘security’ in military terms, nor do they accept that security takes centre stage in how sustainable development and long-term sustainable peace is achieved. Following the deliberative mode through which proponents have contested the traditional sense of security and development, they have mainly raised concerns about the loopholes and weakness of the regulations proposed. Yet as will be shown, pressure has also been put through informal channels of communication and settings as well. Detractors point out risks inherent in the initiative in terms of misuse of military support and corruption. One example quoted by an EEAS officer (no. 9, Interview, 2017) refers to a pilot project in Mali as giving evidence of misuse of military/security aid. As part of the intelligence gathering training support, spying equipment was granted to several key offices, including headquarters in Bamako. It was here, where the equipment was used by a high-level Malian military officer to spy on his wife who was cheating on him instead of putting it to the service of anti-terrorist activities (EEAS officer 6, 2017). Other examples highlight the complexities of the cooperation and training dynamics. The same officer recounted the ‘dilemma’ faced with the principle of ownership: If the EU has an obligation to apply the principle of ownership, which is embedded in the Cotonou agreement for African countries and applies it to all given support, then respecting

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ownership means renouncing to transparency. Mali opposed the EU proposal to enact changes in the recruitment phase. The EU suggested that candidates go through the selection process for free or very cheaply, and that checks were implemented to allow the recruitment of a range of ethnic groups. Yet Mali wanted to keep the control of the recruitment process and by allowing the EU reforms, they felt like losing it. In this case, maybe they do just want to recruit people from the South, but to me it is an example that if they say ‘no’, the EU has to respect that under the principle of ownership. At the end of the day the professionalization of the security forces will not be attained because the process is faulty. (EEAS officer 6, 2017)

It is interesting to note that while proponents use Mali (and Somalia) as examples of why military capacity building is necessary and already part of EU practice through the CSDP missions, the same examples are used by detractors to show the pitfalls of those very initiatives and programmes. A Belgian Council delegate (2017) raised similar concerns with programmes put in place to reinforce ‘certain capacities in places like the CAR, Libya and Mali to realise 10 years later that that was a bad idea’. Along the same lines, an EPLO officer (2017) raised examples coming from similar support from the United States to Mali, where some of the equipment and training was used against the central government. The officer also recalled Operation Likofi in 2014 in the DRC, were EU-trained police engaged in human rights violations in Kinshasa. The EPLO wrote a letter to the EU insufficient justification, jeopardise the IcSP and lack of legal grounds. (EPLO officer, 2017) In general, civil society groups have not welcomed the move due to the misuse, slippery slopes and complexities that military capacity building raises. They see this as something to remain within the domain of CSDP and the Athena mechanism. This is the case in some quarters of the Commission itself, where the main mode of counter-contestation has been contention, through informal quarrels and gossip. As an anonymous interviewee stated, ‘there is dissent off the record, but they feel they can’t push against it because you won’t [be able to] either. It is a bit like a streamroller’ (EEAS officer 3, 2017). Another interviewee noted that the tension this has brought up, felt in Council thematic committees, in corridors, within the EEAS service but also in the Council and the Parliament (EEAS officer 2, 2017). This was noticeable speaking to EEAS officers close to the issue. For instance, an EEAS officer stated that ‘it does not make sense to furnish material to troops, we’re not a furnishing agency, and less so within the IcSP’ (EEAS officer 5, 2017). The Turkish–Europe deal was resisted from within the EEAS but it finally went ahead: ‘When we were pushed to contribute directly to the Turkish facility, which was clearly an EU-Turkey deal on common interests, we said no. Finally, they cut out 60 m of the IcSP budget, it is a lot because we have a total budget of e220 m. What was proposed, really did not have room within the Instrument’s framework’ (EEAS officer 1, 2017). But for the Nordic countries together with Luxembourg, which have been the most vocal opponents of the initiative, the issue is more about the militarisation of development aid and the granting of money to activities that are not directed towards poverty alleviation. Sweden for instance issued a statement saying that the Commission’s proposals ‘does not respect the ODA-criteria’ and raising concerns about the ‘blurring of development cooperation and security-related activities’ (EU Council, 2017, p. 12). However, this was not against CBSD itself, but just in regards

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to the risks of ‘undermining the development agenda as well as the effectiveness of the CBSD’ (EU Council, 2017, p. 13). The statement emphasises that ‘Sweden strives for an efficient and fully operational solution to CBSD’ (EU Council, 2017, p. 13). Here, the controversy about what kind of security becomes merged with development is visible. Further, while Swedish and Nordic countries in general agree to grant military support for security and peace, they have raised much opposition to making sustainable development secondary to military capacity, and to taking away any development funding for that purpose. While this controversy could be seen as technical and operational, it is intrinsically related to fundamental norms. The contestation over what it means to uphold fundamental norms has been most vividly seen in the Parliament. Hautala (2017), a Finnish MEP, wrote an article arguing that ‘Europe’s development policy should stay true to its aims of eradicating poverty and raising people’s quality of life. The increasing military slant of EU development aid is both illegal and inhumane’. Though she agrees with the idea underlying the security-development-nexus, she does not see ‘that security cooperation equals development cooperation’ (Hautala, 2017). For her, if the EU fails to guide development aid by the principles of development and poverty alleviation ‘the instrument will become a first step on the way to instrumentalising human security for the purposes of military security’ (Hautala, 2017). For another Swedish MEP (Interview, 2018), the issue with CBSD is that it shifts away the main peacebuilding instrument the EU has (the IcSP) from the principles govern development assistance in the Organisation for Economic Cooperation and Development. For this MEP, the CBSD is very far-reaching in terms of deepening a military approach to security and development and is part of the strategy that some in the Commission and the Council have. Other MEPs have raised similar concerns. For instance, GUE/NGL MEP Lola Sanchez Caldentey said ‘[t]his new instrument [the IcSP] is not only a scam for taxpayers but also a perverse use of development funds. It functions as a bribe to third countries in exchange for externalising EU borders while turning a blind eye to our obligations towards asylum-seekers’ (GUE/NGL, 2017). Similarly, German MEP Sabine Lösing added: ‘[t]he European Parliament continues a fatally flawed path towards EU militarisation, moving away from the self-proclaimed “union for peace” to one that only has military solutions to peace and development’ (GUE/NGL, 2017). In the final vote of amendments prior to the Parliamentary plenary, a minority opinion was launched stating among other things that they oppose the document because it ‘supports the use of development aid for military purposes’ and demand ‘a pure civilian use of the [IcSP] and no use of development aid for military purposes’ (EU Parliament, 2017). In the Parliament, this contestation resonates with the widening ‘gap between the Radical Left as the main party family opposing peace and security missions and the parties of the centre’ that Wagner et al. (2017, p. 18) show. Overall, the controversy seats at two different levels confronting all major institutions of the EU. On the one hand, there is a question about EU-internal politics, and the technicalities of how CBSD is done and with which funding. This issue divides member states in the Council and is putting the Commission and the Council against each other. On the other hand, there is a more principled issue that is dividing the

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Parliament and is putting some groups in the Parliament against the Commission and the Council. They highlight what Costa (2017, p. 1) notes: ‘that norm promotion is not a one-sided effort: it is met by opposite endeavours that turn diffusion into contestation’. While much of the contestation is about organisational principles and there is agreement over the ultimate goal of promoting sustainable peace and development and the rule of law, these principles are nevertheless present in the contestation as inseparable from the means used to attain them.

Overlapping Contestations and EU’s Legitimacy As was pointed out at the start, CBSD is an initiative that introduces a new approach to the security-development nexus as an organising principle that served as the conveyor belt for fundamental norms such as the promotion of sustainable peace, sustainable development and international order, based on the rule of law. Therefore, the fact that this initiative has been introduced into the EU’s main peacebuilding instrument, the IcSP, circumventing treaty conventions, and makes explicit a shift to think of building peace as linked to building military capacity, albeit non-lethal, has not only provoked contestation over organisational principles but also over how to give content to fundamental norms. As was shown in the previous section, there is much overlap between discussions about, for instance, who should finance peacebuildingrelated programmes and whether peace and development need to be approached from a military security perspective. Building on these findings and following the book framework, this section now explores the outcome of that contestation, exploring whether this contestation could be considered, soft or hard, and hence whether this can affect EU’s legitimacy as a global actor. The main outcomes the section highlights are, firstly, that contestation over the operationalization of the security-development nexus through the CBSD initiative reflects a continuum (i.e. soft and hard contestation can overlap and should not be seen as exclusionary), and, secondly, that whereas this contestation does not by itself put the legitimacy of the EU in jeopardy, it raises concerns about whether it is the best way to address the issues it is set out to. As seen above, the merging of security and development had an impact not just on how development and security were to be promoted, but also on how the promotion of peace, the rule of law and sustainable development ruled politics within and without the EU. In this sense, the soft contestation of the security-development nexus has simultaneously implied a hard contestation on the norms of promoting sustainable development, peace and the rule of law. The Swedish delegation, as seen above, is reluctant to take any money out of development and place it on military capacity building, even if they agree that military capacity building can help building peace. This is argued not just on the basis of an operational principle, but by raising concerns about what it means to do ‘sustainable development’ and where security needs to stand in relation to development. Development, and peacebuilding to a large extent, have to be, according to CBSD-detractors, a civilian-driven strategy. On the contrary, French and German delegations and high-level officials in the Commission are willing

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to pursue security, by placing increasing resources on military capacity, as they see it as a necessary means to achieve the goals of development and peace. Further, contesting what the EU could become if this turn does or does not open the door to military capacity building means contesting the validity of norms that make up the ethos of the EU and not just their mere application. The question this raises is whether military support will, in fact, help peace and development, or it is a way to further security interests in an uncompromising manner. The record on military support, including lethal equipment, shows that it does not always work. It is, therefore, naïve to think that this time, non-lethal military support, with the low budgetary commitment the EU wants to make and the conditionalities it has on its application, will work in the way the EU Commission and the Council want. The question that follows is therefore how this contestation affects the authority and legitimacy of the EU, regarding its capacity to effectively promote sustainable peace, to actively pursue a balance between security and development, and to do so while maintaining a level of cohesiveness within its borders. Two aspects are important here. Firstly, the EU is one of the main peacebuilding actors along with the UN. There is no other international organisation with the level of civilian and military commitment to the deployment of peace operations and peacebuilding programmes, aside from the UN. In addition, the EU development aid represents 50% of the total development aid worldwide (EU Commission, 2018). So, if, as Chandler (2017) argues, peacebuilding is in crisis, or even, if, like Ikenberry (2018) argues, the liberal international order is in crisis, the EU cannot be thought of as external to such crisis. The contestation over the CBSD initiative, or more generally, how the security-development nexus should be carried out to give content to the promotion of sustainable peace and development is partly the reflection of that crisis, rather than its origin. Secondly, it should be noted that however different the CBSD initiative feels in contrast to the liberal peace agenda, it fits within what scholars have traditionally seen in EU’s peacebuilding—i.e. a janus-faced agenda, committed, on the one hand, to a human security and a democratising agenda, while on the other being securityorientated with foreign policy goals at the centre (Keohane et al., 2009; Richmond et al., 2011). That is, though this initiative attempts to address some of the issues that have emerged precisely in the wake of such crisis, it also continues in many ways how the EU operates in peacebuilding matters. This means that, in complex and contradictory ways, the authority and legitimacy that EU enjoys is at the root of policies that have produced limited peace, security and development dividends, thus creating and deepening the crisis that has questioned those policies and the authority and legitimacy of the EU itself. This incoherence is not specific to peacebuilding or the security-development nexus but captures something intrinsic to the EU. Mayer (2013) has analysed how incoherence is inherent to the EU and how the degree of incoherence in EU policy has implications in practical and normative terms. Wagner (2017, p. 1401) has studied how ‘core norms are not in natural harmony’—especially those like democracy, good governance on the one hand and peace and stability on the other. It is therefore not possible to speak of a legitimacy or authority crisis in light of the contestation around the granting of

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military capacity, but rather an ultimate consensus around the right way to go in light of that crisis. The contestation of the security-development nexus, with the shift towards military capacity has not per se affected the authority and legitimacy of the EU. That said, it would not be possible to analyse the EU’s authority and legitimacy in bulk terms but should be analysed in terms of the different constituencies to which this authority is projected and from which legitimacy is claimed. Once again, the two elements just mentioned are relevant here. While the capacity to draft and implement policies is given by the weight the EU has reached as a purveyor of an international order based on the rule of law, in the world of states, international organisations and international policy, the crisis of the international order the EU has helped building, can be understood as a loss of legitimacy and authority in the eyes of the ultimate recipients of peacebuilding policies (Sabaratnam, 2017). The shift to grant military capacity, first with the APF and now with CBSD, has been a welcome move to many countries in Africa and elsewhere. In this regard, the discourse the EU has on ownership and partnership with developing countries becomes strengthened and more coherent. The problem is that other similarly important principles become jeopardised. Firstly, as stated, some of pilot programmes through CSDP and IcSP show that military capacity building does not automatically traduce in peace dividends and largely implies supporting undemocratic regimes with a poor human rights record (Iñiguez de Heredia, 2017). Secondly, the question of the EU being the autonomous security provider it purports to be (EU, 2019; EU Council, 2003) clashes with the delegation of security provision to third countries. If as Barbé and Kienzle (2007) argue, the EU swings from a security provider to a security consumer depending on the circumstances and the context, CBSD swings the EU towards the consumer end. This is therefore not likely to erode significantly EU’s authority and legitimacy as a core actor in the security, peacebuilding or development arenas, but its limited dividends in these areas are likely to continue to erode its capacity to attain its ultimate goals and will jeopardise its legitimacy and credibility in the eyes of the ultimate recipients of these programmes.

Conclusion The new regulation allowing the granting of non-lethal military capacity to work for security and development has given rise to much contestation that has confronted within and between all main institutions. As was argued in the paper, this contestation has shown two aspects regarding the extent of the contestation in the specific area of the security-development nexus as an operationalising principle and the promotion of sustainable peace, development and the rule of law as a more general norm. Firstly, it has shown that questions of norm operationalisation can also imply questioning more substantive aspects of the actual norm. In this way, the soft–hard divide should be seen more as a continuum and not only as two polar opposites of the spectrum

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of contestation. Secondly, while the contestation analysed does not jeopardise EU’s authority and legitimacy, it reflects how the EU is muddling through challenges in the security environment, and how the strategy followed may in the long term not achieve EU’s ultimate goals that make up its fundamental principles. Weiner (2014) brings a useful categorisation of contestation practices in order to observe the life of norms and in fact, the political practices around them. Ultimately, in politics, norms are alive. Thus, following this categorisation (see more extensively the introduction of this volume), our focus should be more in the practices themselves rather than the outcome. Thus, even if the outcome is that the norm persists, or even if the outcome is that the norm changes, that cannot be the only way contestation practices are categorised. Rather these practices should be seen in a continuum where ‘hard’ contestation can bring the strengthening of the norm or affect the operationalising principles and mechanisms of a norm, and ‘soft’ contestation can question and even bring about the weakening of fundamental norms. In the case examined in this chapter, both soft and hard contestations take place simultaneously and are part of a continuum that also touches on long-standing debates, for instance, about the civilian character of the EU. Empirically, the paper has looked at a new initiative, the CBSD, which allows the granting of non-lethal military support to third countries. This initiative is poised to address security issues that would strengthen the capacity to do peacebuilding and development activities. Both the semi-structured interviews conducted and official documents revised pointed to conclude that the core of the issue, for both proponents and detractors of CBSD should reflect what the right answer is to worsening security conditions around the EU. The chapter analysed how this contestation does not have any visible effects on the authority and legitimacy of the EU as a global actor. Rather, the new turn to granting military capacity as a new defining characteristic of the implementation of the security-development nexus is itself the outcome of a crisis of legitimacy, not only of the EU but of the liberal international order as a whole. Yet, the implications of this shift are starting to emerge. For some scholars, such turn could be seen as a ‘return’ to a default geopolitical position of maintaining order, that though might seem coherent, it displays a lack of real strategic thinking (Chandler, 2007; Guzzini, 2013). That is, even if this shift shows a rational shift as part of a broader strategy of how best to build sustainable peace, and guarantee security and development, it displays much incoherence, relying on default military mechanisms, linked to traditional geopolitical approaches. Chandler (2007, p. 363) is right, and this incoherence and the swings policy has suffered are the result of how new forms of intervention have developed in an ad hoc and unplanned way, not directly based upon clear expressions of the political interests and policy needs of either national or institutional actors, then, we are likely to see more disengagement, and more passing on responsibilities to other actors. If so, then the EU is likely to keep increasingly drifting to a supporting security-consumer role rather than the engaged security provider one it purports to be—whether or not its security and peace goals are achieved. What is, therefore, at stake here is not just how

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contestation pushes or erases norms but how the EU deals with its own limitations and contradictory commitments between its strategic and normative foreign policy goals.

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Sabaratnam, M. (2017). Decolonising Intervention: International Statebuilding in Mozambique. London: Rowman & Littlefield International. Von Billerbeck, S., & Tansey, O. (2019). Enabling autocracy? Peacebuilding and post-conflict authoritarianism in the Democratic Republic of Congo. European Journal of International Relations (Online first), 1–25. Wagner, W. (2017). Liberal Power Europe. Journal of Common Market Studies, 55(6), 1398–1414. Wagner, W., Herranz-Surrallés, A., Kaarbo, J., & Ostermann, F. (2017). Politicization, party politics and military intervention: Deployment votes in France, Germany, Spain and the United Kingdom. Discussion paper SP IV (101), Berlin: Berlin Social Science Centre. Wai, Z. (2018). International relations and the discourse of state failure in Africa. In Iñiguez de Heredia, M. & Wai, Z. (Eds.), Recentering Africa in international relations—Beyond lack, peripherality, and failure. New York: Palgrave (pp. 31–58). Wrver, O. (1996). European security identities. JCMS: Journal of Common Market Studies, 34(1), 103–132.

Interviews EEAS officer 1. (2017, May 4). Brussels. EEAS officer 2. (2017, May 8). Brussels. EEAS officer 3. (2017, May 3). Brussels. EEAS officer 4. (2017, May 4). Brussels. EEAS officer 5. (2017, May 4). Brussels. EEAS officer 6. (2017, May 9). Brussels. EPLO officer. (2017, May 26). Skype interview. EU Military Staff officer. (2017, May 4). Brussels. EU Peace and Security adviser. (2017, May 5). Brussels. French Council delegate. (2017, May 9). Brussels. German Council delegate. (2017, May 5). Brussels. Spanish former Council delegate. (2017, June 23). Skype interview. Swedish MEP. (2017, September 5). Skype interview. Mayer, H. (2013). The challenge of coherence and consistency in EU foreign policy. In: M. Telò and F. Ponjaert (Eds.), The EU’s foreign policy: What kind of power and diplomatic action? (pp. 105–120) London: Routledge. Weiner, A. (2014). A Theory of Contestation. Berlin: Springer.

Marta Iñiguez de Heredia is Assistant Professor at Universidad Autónoma de Madrid. Previously, she was a Marie Sklodowska-Curie Fellow at the Institut Barcelona d’Estudis Internacionals (IBEI). Her research interests intersect peace and conflict studies, African studies, historical sociology, and practice theory in IR. She is currently researching about EU security and peacebuilding practices in the Great Lakes region and the militarization of peacebuilding more generally.

Chapter 11

When Contestation Is the Norm: The Position of Populist Parties in the European Parliament Towards Conflicts in Europe’s Neighbourhood Milan van Berlo and Michal Natorski

Since the 1970s, the idea of increasing the role of the European Union (EU) in world affairs has hardly been disputed. The fundamental norm of this EU collective enterprise is the convergence of views in pursue of common positions and actions in international politics as an avenue to affirm the political dimension of European integration in relation to external actors. Despite their differences, EU member states have agreed in the 1970s that the general modus operandi in the field of EU foreign policy requires broad consensus, and this widely shared organising principle of consensus has been codified in EU treaties and across all policy areas as the ambition of achieving an increasing coherence among the involved actors (Gebhard, 2011). It emphasises the expectation that the policy process of elaborating EU foreign policy positions pursues agreements to demonstrate a unified European position. Given this organising principle, the standardised procedures of unanimity in the field of EU foreign policy rarely needs to be mentioned as there is an implicit understanding of the need to achieve consensus by integrating all of the involved institutional actors, including EU member states as well as the European Commission and the European Parliament (EP). Populism is on the rise in Europe, and amidst this trend, populism is perceived as a key antagonist to the process of European integration. Populism is usually defined as a ‘thin-centred ideology that considers society to be ultimately separated into two homogenous and antagonistic groups, ‘the pure people’ versus ‘the corrupt elite’, and that argues that politics should be an expression of the volonté générale (general will) of the people’ (Mudde & Kaltwasser, 2017, p. 6). In the context of European M. van Berlo (B) Faculty of Governance and Global Affairs, Leiden University, The Hague, The Netherlands e-mail: [email protected] M. Natorski Maastricht Graduate School of Governance, UNU-MERIT, Maastricht University, Maastricht, The Netherlands e-mail: [email protected] © Springer Nature Switzerland AG 2020 E. Johansson-Nogués et al. (eds.), European Union Contested, Norm Research in International Relations, https://doi.org/10.1007/978-3-030-33238-9_11

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integration, ‘the elite’ is associated with all estranged decision-makers and bureaucrats involved in EU politics while ‘the people’ are those negatively affected by their decisions adopted in Brussels. In most European countries, populist parties have gained a substantial number of votes in their respective national parliaments in the last decade (Mudde & Kaltwasser, 2017; Verbeek & Zaslove, 2017). Moreover, far-right populist parties dominate governments in Italy, Hungary and Poland and left-wing populists dominate the Greek government. These governments frequently openly challenge EU integration from an intergovernmental position. In the context of the EU, populist contestation challenges the implicit normative stance of the appropriateness of further European integration. In general, it challenges the ‘permissive consensus’ (Lindberg & Scheingold, 1970, p. 41) that consists of indirect public consent of elite bargains behind closed doors driving the dynamics of EU integration in numerous policy fields. There is an increasing criticism that the EU institutions promote policies that undermine the legitimate concerns and aspirations of European societies. European populist parties have consolidated as an element of the political landscape in the European Parliament (EP), and there is an increasing body of research that has studied their attitudes towards different aspects of European integration. However, the positions of populist parties towards EU foreign policy remain understudied. Therefore, this chapter assumes their pre-disposition to contest EU foreign policy, and following the guiding question of this volume, asks how European populist parties contest EU foreign policy in the EP. To address this question, this chapter argues that the populist approach to EU foreign policy defies the organising principle of consensus and seeks to normalise the contestation above any substantive considerations. The chapter compares two populist parties’ groups represented in 2014–2019: the Europe of Freedom and Direct Democracy (EFDD) on the far-right, and the European United Left-Nordic Green Left (GUE-NGL) on the far-left.1 The chapter focuses on the debates on the crises in Ukraine and Syria given their prominence in the EU foreign policy agenda and recurrent presence in EP debates. The paper analyses the discourse of the representatives of the EFDD and GUE-NGL during plenary debates as well as associated motions for resolutions in the EP on the Ukrainian and Syrian crises until spring 2018. The analysis of the EP’s debates captures the range of normative claims advanced by diverse political representatives. There are two complementary patterns that emphasise the priorities attached to the practice of contestation of EU foreign policy. In the first place, the populist disposition of contestation drives both the left-wing and right-wing populist parties to adopt positions in opposition to the approach taken by the executive branch of the EU and mainstream EP political groups. In the second place, however, they promote very heterogeneous alternative approaches to the issues at stake. The populist mode of contestation mixes explicit contention with the implicit 1 Another

populist group Europe of Nations and Freedom (ENF) is not analysed because it was established only in June 2015. Hence, the ENF was not present as a group in the crucial debates on the Ukrainian crisis in 2014 and early 2015.

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neglect of engagement in negotiations. As a result, populist parties’ groups do not seek to influence the institutional position of the EP by engaging in the negotiations of joint motions for resolution representing consensual institutional positions.

Contestation of the Consensus in the European Parliament This section introduces the organising principle of consensus in the EP and its consequences for institutional practices. Then, we introduce the populist parties as the contesters of this principle, explaining the general nature of their arguments, motivations and interests.

Consensus as an Organising Principle in the European Parliament Numerous studies on the EP demonstrate the relevance of the norm of consensus as an organising principle defining the individual behaviour of MEPs as well as entire European party groups. This second type of norm informs ‘political procedures and guide policy practices’ (Wiener, 2008, p. 67). In the case of the EP, it leads institutional actors to focus on the internal institutional dynamics of policy-making during the elaboration of the institutional positions in relation to EU foreign policy affairs. The behavioural and teleological prescriptions of this organising principle imply that actors are expected to search for consensual institutional positions departing from their individual, national or party group preferences. It involves the disposition to engage in negotiations in order to achieve a compromise reflecting on the diversity of sensitivities in the EP. The organising principle of consensus historically emerged as a way to ensure the enhancement of the institutional role of the EP in relation to other institutional actors. The EP as the only directly elected institution of the EU increasingly claimed competences and influence on EU foreign policy (Barbé & Herranz-Surrallés, 2008). However, the EP’s influence in foreign and security policy was limited until the Treaty of Lisbon (Herranz-Surrallés, 2014). The Treaty of Lisbon increased the powers of the national parliaments and the EP simultaneously in relation to the Common Foreign and Security Policy (CFSP; Corbett, Jacobs, & Shackleton, 2016). It also involved increased inter-parliamentary cooperation between national parliaments and the EP (Herranz-Surrallés, 2014). Although not having any legislative competences in foreign and security policy, the EP has advisory competencies such as on information, consultation and debating rights. The EP can raise parliamentary questions on positions taken by the executive branch of the EU, file own-initiate reports on certain cases and adopt institutional resolutions. The EP also has to give its approval by means of the consent procedure when it comes to international agreements (Corbett

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et al., 2016) although this is rarely used (Keukeleire & Delreux, 2014). In addition, its budgetary power provides the EP with indirect leverage, which has successfully led to other institutions taking human rights and democratic dimensions into account (Keukeleire & Delreux, 2014). Given the aspiration of shaping EU foreign policy agenda and positions, it was widely believed that the consensual position in the EP across all the areas mentioned above would provide stronger institutional influence. The organising principle of consensus leads to a search for a compromise position during voting on a number of political issues. Faas (2003) and Hix (2002) argue that European party groups during the 5th EP (1999–2004) had high levels of cohesion and that it could be weakened only if the chances of MEPs for re-election depended on their respective national parties. Further studies have demonstrated that the cohesion of European party groups has increased over time and the increase in the size and power of Parliament incentivised the establishment of binding-division-of-labour contracts between MEPs with similar preferences, rather than national preferences (Hix, Noury, & Roland, 2006). Klüver and Spoon (2013) came to the same conclusion that party group cohesion is relatively high in most cases and only when national parties place a high level of importance on an issue, will MEPs tend to deflect from the party group line. This consensus-searching behaviour largely follows the left–right distinction between the party groups (Hix et al., 2006). The authors stress that the stances of the party groups on European integration largely follow the classic left–right division based on positions of their respective national parties (McElroy & Benoit, 2007, 2010). The positions of the Christian-democrats, social-democrats and liberal groups that dominate the political landscape in the EP are adopted in line with their positive ideological positions towards European integration and tend to support integration in the field of foreign policy. For example, McElroy and Benoit (2007) distinguished three large European political party groups: the redistributive left, with a pro-integrationist character composed by the European Socialists, the Greens, and GUE-NGL; the centre-right and pro-integrationist formed by the European People’s Party (EPP) and the Alliance of Liberals and Democrats for Europe (ALDE); and, the Union for a Europe of Nations (UEN) and the EDD Europe of Democracies and Diversities (EDD) on the far-right and who are distinctly Eurosceptic (McElroy & Benoit, 2007). The consensus-seeking behaviour in adopting institutional positions on EU foreign policy leads to the groups seeking cross-party consensus based on their positions.

Populist Parties as Contesters in the European Parliament The increasing number of populist parties in the EP challenges this straightforward left–right ideological cleavage. In particular, the election of the 8th European Parliament in 2014 increased the role of populist parties (Hobolt & de Vries, 2016). After the elections, three populist parties’ groups were eventually formed. On the far-right, there were two main populist blocs; the Europe of Freedom and Direct

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Democracy (EFDD) and Europe of Nations and Freedom (ENF; European Parliament, 2014; Hobolt & de Vries, 2016). The former is a continuation of the Europe of Freedom and Democracy (EFD) group and consists mostly of the British party, U.K.IP, and the Italian Five Star Movement, with the addition of some minor parties such as the Sweden Democrats, Alternative for Germany, and the Order and Justice from Lithuania (European Parliament, 2014; Treib, 2014). The latter was not established until June 2015 and retrieved most of its MEPs from the French Front National and the Dutch PVV (European Parliament, 2014). On the far-left, there is the European United Left-Nordic Green Left group (GUE-NGL; European Parliament, 2014; Treib, 2014). This party group has been in existence for almost 20 years and currently consists of MEPs from the Greek SYRIZA party, the Spanish Podemos party and the German Die Linke party, in combination with communist and radical left-wing parties from various European member states (European Parliament, 2014; Hobolt and de Vries, 2016). With the influx of MEPs from SYRIZA and Podemos, the GUE-NGL is considered to be on the far-left with a soft Eurosceptic approach (Hobolt & de Vries, 2016; Treib, 2014) even though previous studies have considered the GUE-NGL as pro-integrationist. Both the EFDD and GUE-NGL gained substantial support during the parliamentary elections in 2014. EFDD increased its representation in the EP from 32 seats in 2009 to 44 seats in 2014, and their share of seats in the EP went up from 4.2 to 5.8%. The GUE-NGL had an even larger increase from 34 to 52 seats, which equals a seat-share enlargement from 4.8 to 6.9% (European Parliament, 2014; Treib, 2014). In total, almost 18% of the seats in the 8th parliament were assumed to populists. Populist groups in the EP have focused on several issues in which they took an opposition role towards the EU mainstream policies. Hobolt and de Vries (2016) argued that the increased share in votes for the GUE-NGL was due to the economic crisis in Europe after 2008, while votes for EFDD depended more on general discontent with the EU. Treib (2014) argued that the Southern European parties of the GUE-NGL group benefited highly from opposition to the austerity measures imposed by the EU, while the EFDD parties obtained more votes from the anxieties caused by Eastern European immigrants and the concerns over the financial risks of credit guarantees for crisis countries (Meijers, 2017; Treib, 2014). As both party groups gained votes, in recent years, one would expect that their influence on foreign and security issues in the EP would increase in significance as well (Hobolt & de Vries, 2016). However, the significant increase in votes for populist parties’ groups led to a rather unexpected challenge to the conventional approach of the EP towards EU foreign policy. Instead of promoting coherent alternative policy programmes, the main objective of these groups consists of challenging the institutionalised search for institutional consensus in this field. This non-engagement in institutional affairs can be attributed to the general features of populist dispositions. The literature on populism tends to present anti-elitism as the driving motivations of populist parties. In populist view, widely defined political, economic and social elites exploit genuine people. Genuine people emerging from different constituencies share common identities based on their common interest to be protected by one transversal political movement. Populist movements frame their positions as

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the protection of the general will of the people, which are always opposed to the interests of the corrupt political and business elite that are in power. As a result, the phenomenon of populism is diversified and does not follow one particular political ideology. The populist label can, therefore, be applied to many different individuals, parties and movements, and populism can make use of different ideologies simultaneously (Mudde & Kaltwasser, 2017). Anti-elitist positions also define the approach of national populist parties towards foreign policy issues. Populist parties are not always exclusively anti-EU or antiinternationalist given that their positions depend on the extent to which they consider that the interest of the elites hinders the general will of the people (Verbeek & Zaslove, 2015). As a result, depending on the type of elites that are opposed, it is possible to distinguish the different views of populist parties on foreign policy as follows: (1) the radical populist right, (2) the populist market liberals, (3) the populist regionalists and (4) the populist left. The radical populist right sees the European elites in Brussels as their enemies, which makes them hard Eurosceptics. For the populist market liberals, the elites are seen as bureaucratic national politicians while the populist regionalists focus on either dominant national parties or European elites. The populist left parties oppose either transnational financial elites or national leaders pushing for globalisation (Verbeek & Zaslove, 2017). Nevertheless, it remains under-researched to what extent populism has defined the recent positions of non-mainstream political groups in the EP. The early analysis of the voting behaviour of MEPs of the far-left and far-right party groups on the Yugoslav war and the Gulf war in the 1990s revealed a high level of voting similarity between the non-mainstream groups, to the extent that left–right divisions did not seem very pronounced. Although being ideologically hard to reconcile, the far-right European Right (ER), regionalist and federalist parties in the Rainbow Group (RB), and the Greens adopted similar stances on foreign and security issues to oppose the position taken by the executive branch of the EU (Viola, 1999). However, the anti-elitist attitudes of populist parties driving the contestation of the organising principle of institutional consensus do not explain their positions comprehensively. The association of populism to one factor risks obscuring legitimate voices critical of the establishment with the negatively charged notion of populism. Therefore, following Müller (2016), two other features may motivate the populist contestation of EU foreign policy in the EP. In the first place, populist parties assume in their political discourse the monopoly of the representation of popular interests. In this way, they disagree with the political pluralism of positions and representation. As a result, this anti-pluralism is frequently associated with the support of charismatic leaders of populist movements as well as the establishment of direct channels of communication with society circumventing institutional, intermediary frameworks (Wodak, 2013). This element of the monopoly of representation can lead to the refusal to engage in negotiations and policy-making with other political representatives as they are considered as representing opposing interests. The second distinctive element of populism is that the thin-ideological positioning of populists is balanced by the emphasis of moralistic and normative

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rhetoric appealing to traditionalistic dominant popular emotions. Therefore, European Christian populist parties’ programs are often linked to anti-Muslim rhetoric and the promotion of traditional values (Wodak, 2015).

Data and Methods The chapter analyses the discourse of the representatives of the EFDD and GUENGL groups during plenary debates. The debates consist of speeches on pressing issues held by MEPs in the EP, which are frequently accompanied by motions for resolutions issued by the party groups (Corbett et al., 2016; European Parliament, 2014). The motions for resolutions summarise the main positions of the party groups towards a certain issue. They constitute the basis for normal inter-group negotiations that usually lead to agreements on joint motions for resolutions to be submitted to voting during the plenary sessions. All data analysed in this chapter is retrieved from the website of the EP. Table 11.1 summarises 17 debates, including seven motions for the resolutions that have been used for the analysis. Table 11.1 Overview of the analysed sources Date

Debate

Motions for resolution

15-06-2014

Situation in Ukraine

Situation in Ukraine

15-07-2014

Situation in Ukraine

16-09-2014

Situation in Ukraine

21-10-2014

Customs duties on goods originating in Ukraine

14-01-2015

Situation in Ukraine

10-02-2015

Situation in Ukraine

09-06-2015

State of EU-Russia relations

09-06-2015

Strategic Military situation in the Black Sea Basin following the illegal annexation of Crimea by Russia

07-10-2015

Situation in Syria

14-07-2015

Situation in Ukraine

19-01-2016

Situation in Syria

03-03-2016

Situation in Syria

05-10-2016

Situation in Syria

Situation in Syria

22-11-2016

Situation in Syria

Situation in Syria

14-02-2017

Deterioration of the Situation in Eastern Ukraine

16-05-2017

EU Strategy on Syria

EU Strategy on Syria

13-03-2018

Situation in Syria

Situation in Syria

17-04-2018

Situation in Syria

Source Own elaboration from the EP website (www.europarl.europa.eu)

Situation in Ukraine Situation in Ukraine

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The analysis follows conventional content analysis methods for categorising the discourse and organising the discursive categories into frequently mentioned sections. The categorisation is based on inductive observations, and subsequently, the categories are drawn from analysed data leading to a richer understanding of the phenomena. The categories were made during the analysis of the data by looking for certain keywords (Hsieh & Shannon, 2005). For each category, several keywords were used to determine whether certain discourse could be coded into one of the categories. For example, when an entity is criticised, certain keywords that indicate criticism such as ‘failure,’ ‘problem,’ or ‘provocation’ were coded as part of that particular category. The analysed debates and motions for resolution were tested on the frequency that a certain category was mentioned. Instead of focussing on the total number of times, a particular category was mentioned within each speech or motion, the analysis focused on the ratio of speeches and motions that included this category. As both parties have a different number of speeches and motions, percentages were used in order to conduct a comparative analysis. A higher ratio entails that a category was often mentioned in speeches or motions, and a low ratio indicates it was not often included in the discourse.

The Modes of Contestation of EU Foreign Policy by Populist Parties This section outlines the main lines of contestation of EU foreign policy by European populist parties’ groups in the EP. Populist contestation as a social practice is performed ‘either explicitly (by contention, objection, questioning or deliberation) and implicitly (through neglect, negation or disregard)’ (Wiener, 2014, p. 2). Referring to the explicit forms of contestations, the defining features of populism suggest that populist contestation consists of two modes: justification and contention. While the mode of justification as ‘a moral code of contestation according to moral codes involves questioning principles of justice’, the mode of contention ‘as the social practice of contestation critically questions societal rules, regulations or procedures by engaging multiple codes in non-formal environments’ (Wiener, 2014, p. 2). At the same time, populist parties will also perform implicit forms of contestations, such as refusing to be involved in the search for consensual positions. The conventional content analysis of the speeches distinguished the different categories that can be broadly divided into three sections. Therefore, the contestation tends to gravitate around the key lines of arguments exposed during the debates on the crises in Ukraine and Syria. On the one hand, the sections labelled as ‘the critique of the EU’ and ‘the critique of the West’, visualise the recurrent and consistent opposition to mainstream policies adopted vis-à-vis crises in involving moral-like types of arguments. On the other hand, the arguments labelled as ‘the crises management approach’ visualise strong heterogeneity of policy priorities, but they tend to emphasise the contention mode of contestation. The comparison between the debates and

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the groups’ motions for resolutions also provide interesting insights into the consistency of the adopted positions. Observations on the involvement in negotiations of joint motions for resolutions illustrate the contestation of the operating standard of consensus by the abstention to engage in fruitful negotiations leading to a shared compromise. As a result, the blending of vociferous rhetoric during the debates and abstention from institutional politics suggest that European populist parties employed both hard and soft forms of contestation.

The Ukrainian Crisis The first phase of the crisis in Ukraine consisted of domestic upheaval between November 2013 and February 2014. A crisis emerged from the decision of thenPresident Yanukovych to refrain from signing an Association Agreement with a Deep and Comprehensive Free Area but eventually evolved into anti-regime protests that toppled the kleptocratic Yanukovych regime. The newly formed pro-European government in Kyiv accelerated Russia’s fear of losing Ukraine to the West (Haukkala, 2016). Therefore, the second phase of the crisis was related to the Russian occupation of the Crimean Peninsula and fighting in Eastern Ukraine against rebels supported by Russia (Cross & Karolewski, 2017). The EU responded to these developments with a progressive introduction of sanctions against Russia and provided comprehensive political and economic support to Ukraine. The sanctions against Russia involved diplomatic sanctions, travel bans and freezing assets. After the Malaysian Airlines flight MH17 was shot down by separatist rebels supported by Russia, the EU also introduced targeted economic sanctions involving the financial and oil sectors, an arms embargo and restrictions on the trade of dual-use items (Natorski & Pomorska, 2017). The negotiations between Ukraine, Russia, Germany and France in the so-called Normandy format led to a fragile cease-fire in Eastern Ukraine and the Minsk agreement in February 2015 (Nitoiu, 2016). In this context, the Ukrainian crisis has been a recurrent foreign and securityrelated topic in EP debates. In total, nine debates with 32 speakers from the GUENGL and 22 from the EFDD, and the motions for the resolutions proposed by both party groups were used in the analysis. Table 11.2 visualises the distribution of the frequency of certain categories in MEPs speeches and the motions for resolutions. The analysis of the similarities demonstrated a strong overlap in three sections even though there are some differences in their approaches to crisis management. The results of this analysis demonstrate a similarity in the approach of both populist groups towards the crisis in Ukraine in terms of critiquing the EU and the West. Both groups criticised the EU and its policies in approximately half of the cases. The same applies to openly blaming the EU for the Ukrainian crisis, which is in stark contrast to the position taken by other party groups that tend to blame Russia (European Parliament Debate, 2015a). For example, Javier Couso Permuy (GUENGL) criticised the EU’s framing of Russia as the only aggressor and considered

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Table 11.2 Ukrainian crisis and populist positions Debates percentage

Debates percentage

Number of motions

Number of motions

GUE-NGL (%)

EFDD (%)

GUE-NGL

EFDD

Criticising the EU and its policies

47

55

2/3

0/3

The EU is (partly) to blame for the crisis in Ukraine

47

55

0/3

0/3

Criticising the Association Agreement

16

5

2/3

0/3

Critique of the EU

Critique of the West Criticising NATO/U.S.

44

23

2/3

0/3

Criticising the government in Ukraine

38

18

2/3

0/3

Crises management approach Support dialogue

25

23

3/3

0/3

Stopping military confrontation

13

9

3/3

2/3

Selfdetermination of the Ukrainian population

16

18

1/3

2/3

Concerns about the rise of the far-right in Ukraine

41

0

3/3

0/3

Concerns for the boycott of the Communist party

28

0

3/3

0/3

Concerns about energy resources and food supplies

3

27

1/3

1/3

Criticising Russia/Putin

3

32

0/3

3/3

Call for united action

0

18

0/3

3/3 (continued)

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Table 11.2 (continued) Debates percentage

Debates percentage

Number of motions

Number of motions

GUE-NGL (%)

EFDD (%)

GUE-NGL

EFDD

Support the territorial integrity of Ukraine

0

18

0/3

3/3

Support financial aid to Ukraine

0

12

0/3

3/3

Sources European Parliament Debate (2014a, 2014b, 2014c, 2015a, 2015b, 2015c, 2015d, 2015f, 2017a), European Parliament Minutes (2014a, 2014b, 2015)

the EU’s Associating Agreement as an ‘equally aggressive move’ (European Parliament Debate, 2015d). Similarly, Nigel Farage (EFDD) also stated that the EU provoked Russia with its policies towards Ukraine (European Parliament Debate, 2014b). Interestingly enough, however, only the GUE-NGL critiqued the EU in their motions, and, in particular, the Associating Agreement more frequently (European Parliament Minutes, 2014a, 2014b). Joao Ferreira (GUE-NGL) expressed his discontent towards the Association Agreement by stating that ‘the document that the legitimate Ukrainian authorities did not want to sign is in the end forced upon the Ukrainian people’ (European Parliament Debate, 2015d). Second, both party groups display a strong critique towards the West, in general, and, in particular, NATO, the USA, and the pro-European Ukrainian government. On behalf of the GUE-NGL, Ines Cristina Zuber stated that the EU, but also the USA and NATO were responsible for ‘provocations, instigating violence, violations of freedoms and rights, and installing an illegitimate government by means of a coup d’état’ (European Parliament Debate, 2014b). In one of their motions, the GUENGL called for the EP to denounce the enlargement of NATO to the Russian borders and introduce strong democratic reforms with regard to the Ukrainian government (European Parliament Minutes, 2015). Similarly, Fabio Massimo Costaldo (EFDD) condemned the USA and their influence in Eastern Europe, especially considering the role they played in the toppling of Yanukovych (European Parliament Debate, 2015a). For the crisis management priorities, both party groups supported the promotion of dialogue between all parties. For instance, both Peter Lundgren (EFDD) and Ines Cristina Zuber (GUE-NGL) have frequently promoted the need for dialogue in their speeches (European Parliament Debate, 2015b, 2015c). Furthermore, both party groups mentioned self-determination of the Ukrainian people and the need to stop the military confrontation. Both party groups incorporated this in their motions frequently. The GUE-NGL emphasised the importance of stopping the military conflict in all three of their motions while the EFDD emphasised this twice (European Parliament Minutes, 2014a, 2014b; 2015). Besides these converging views, there

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are two relevant differences that, to some extent, visualise the different ideological orientations. The GUE-NGL tended to mention their concerns with the rise of the far-right in more than 40 per cent of the cases while predictably the EFDD did not mention this in their speeches or their motions. Moreover, MEPs of the GUE-NGL expressed their dissatisfaction with the boycott of the communist party of Ukraine, something that the EFDD refrained from including in their discourse. For instance, Georgios Katrougkalos and Jiri Mastalka, both from the GUE-NGL, mentioned explicitly that the ban on the communist party of Ukraine is a reflection of ‘the rise of neo-fascist elements’ (European Parliament Debate, 2014a, 2014b). These concerns were translated into the motions of the GUE-NGL as well. In all three motions on Ukraine, the GUE-NGL condemned the boycott on the communist party and expressed concerns about ‘the ignorance of the Ukrainian officials towards the rise of the far-right and neo-Nazi forces’ (European Parliament Minutes, 2014a, 2014b, 2015). However, some party group members of the EFDD differed from the general party group’s position strongly. For example, although the Italian Five Star Movement MEPs were critical of the EU and other Western organisations like most EFDD members, they frequently incorporated their specific concerns about energy resources and emphasised that sanctions on Russia can have ‘devastating consequences for the European economy’ (European Parliament Debate, 2014a, 2015a). Similarly, Valentinas Mazuronis from the Lithuanian Order and Justice party adopted a completely different opinion compared to his fellow party group members. He supported increased financial aid to Ukraine and the inclusion of Ukraine’s territorial integrity in EP resolutions (European Parliament Debate, 2015a, 2014b). Furthermore, he also called for united European action and openly criticised Russia and Putin (European Parliament Debate, 2014a, 2015b). He called the Ukraine crisis a ‘war against all of us’ and argued that Russia has ‘imperial ambitions’ (European Parliament Debate, 2014b, 2015a). Unsurprisingly, Mazuronis left the EFDD one year after the first sitting of the 8th EP. As all three EFDD motions were tabled by Mazuronis, his positions explain the divergence between the EFDD’s position in debates and motions (European Parliament Debate, 2014b; European Parliament Minutes, 2014a, 2014b). Besides the strong criticism of the mainstream EU approach as well as the heterogeneous ideas of how to approach crisis management, both groups did not search for ways for their views to be incorporated into the institutional EP positions. Therefore, they did not participate in the elaboration of joint motions for resolutions that are always prepared by the biggest five European party groups present in the Parliament: the PPE Group, S&D Group, ECR Group, ALDE Group and Verts/ALE Group. During three debates on EP resolutions, these five groups presented their motions for resolutions but were not able to achieve a compromise and vote for a joint motion for a resolution. In this context, both the EFDD and GUE/NGL neglected this search for a compromise, and their motions were refused during voting in the EP.

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The Syrian Crisis The arrest and torture of 15 young Syrians for writing graffiti in opposition to the Syrian president initiated a wave of protests against the al-Assad regime (Phillips, 2015). They were met with heavy government violence, leading to numerous civilian deaths evolving into civil war between the fragmented Syrian opposition and the regime supported by the Syrian army (Gunter, 2015; Musarurwa & Kaye, 2016). The uncontrolled violence and increasing involvement of external actors in the domestic confrontations characterised the conflict. Hezbollah supported by Iran joined alAssad’s side, while the USA and their Middle-Eastern allies such as Saudi Arabia, Turkey and Qatar provided support for the Syrian National Coalition (Alkaff, 2015; Uludag, 2015). At later stages, the involvement of the Islamic State of Iraq and the Levant (ISIL) fighting for its quest to establish an Islamic State and Caliphate, and Russia supporting the al-Assad regime contributed to further intensification of the conflict leading to a massive increase in civilian victims (Musarurwa & Kaye, 2016; Stent, 2016). Although there were many attempts to resolve the conflict, all ceasefires have failed (Musarurwa & Kaye, 2016). After millions of Syrian refugees fled their country and some of them made their way in the direction of Europe, although the Syrian crisis dominated the headlines of the European media (Berti, 2015; Yazgan, Utku, & Sirkeci, 2015), the EU has played a minor role in the conflict because of difficulties in forming its approach to the crisis (Collett, 2016; Pierini, 2016). After the suspension of its cooperation with the Syrian government and the implementation of restrictive measures in 2011, the EU has been largely absent for most of the crisis (EU External Action, 2018). The EU’s contribution has been limited to humanitarian support and the 2017 Brussels Conference in which the EU attempted to create a political solution (EU External Action, 2018). Besides these two measures, two member states—France and the UK—have joined the USA in their airstrikes in response to chemical attacks by Al-Assad (Borger & Beaumont, 2018). Subsequently, the Syrian crisis became a recurrent topic in the EP debates. Although the EU has not played a major role in the conflict, the proximity and resulting migration crisis have made the Syrian civil war one of the EU’s top foreign policy issues (European Parliament Debate, 2016b). Since 2015, eight debates about Syria have been held. Ten different categories, divided into three sections, have been identified during the conventional content analysis. In total, 33 speeches of the GUENGL and 18 speeches by EFDD MEPs, and four and three motions from the two groups, respectively, were analysed. Table 11.3 illustrates the percentage of speeches and motions that mention each category. Both party groups converge in their critique of the EU, and MEPs from both party groups adopt a sceptical approach towards the EU in roughly half of their speeches. For instance, Neoklis Sylikiotis (GUE-NGL) criticised the EU for playing ‘a hypocritical role’ by supporting the USA and turning its back on refugees (European Parliament Debate, 2016a). Paul Nuttall (EFDD) criticised the EU for working together with Turkey (European Parliament Debate, 2016b). Surprisingly, most of

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Table 11.3 Syrian crisis and populist positions Syrian crisis

Debates percentage

Debates percentage

Number of motions

Number of motions

GUE-NGL (%)

EFDD (%)

GUE-NGL

EFDD

Criticising the EU and its policies

48

56

1/4

0/3

Criticising the EU’s absence and indecisiveness

42

56

0/4

0/3

Diplomatic/humanitarian responsibility of the EU

45

33

4/4

3/3

Critique of member states, France, and the UK

21

0

0/4

0/3

Criticising the USA

61

56

4/4

0/3

Criticising American Middle-Eastern allies

48

61

4/4

1/3

Criticising the Western supply of weapons

27

12

3/4

1/3

Critique of the EU

Critique of the West

Crises management approach Refugee concerns

12

17

4/4

3/3

Support for UN solutions

18

0

4/4

3/3

Stress the importance of taking the Syrian population into account

30

6

4/4

2/3

Source European Parliament Debate (2015e, 2016a, 2016b, 2016c, 2016d, 2017b, 2018a, 2018b), European Parliament Minutes (2016a, 2016b, 2017, 2018)

the critique of the EU by the populist blocs was based on the EU’s absence from the conflict due to its indecisiveness. As Fabio Massimo Castaldo (EFDD) stated, ‘the Syrian crisis shows that the EU is a dwarf when it comes to foreign policy because the member states are only able to agree to disagree’ (European Parliament Debate, 2016c). Following this line, Kristina Winberg (EFDD) stated that the EU’s role in the world had been reduced to waiting to see what the USA and Russia are going to do (European Parliament Debate, 2016d). Sophia Sakorapha (GUE/NGL) agreed by emphasising that the EU strategy is characterised by a ‘lack of solidarity and political will’ (European Parliament Debate, 2017b). In the debate following, the airstrikes by the USA, the UK and France, all of the GUE-NGL MEPs criticised the UK and France for their involvement in the bombings. Marisa Matias, for example, stressed that these attacks were ‘counterproductive’ to the political solution the EU

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strived for and criticised the lack of consultation with the other member states (European Parliament Debate, 2018b). In addition, Neoklis Sylikiotis argued that the UK and France have contributed to the ‘imperialist intervention’ led by the USA, and Sophia Sakorapha strongly condemned the airstrikes by stating that both countries ‘jeopardise the safety of European citizens’ (European Parliament Debate, 2018b). However, given the fact that the GUE-NGL only has a minor share of MEPs from either France or the UK and a large number of the MEPs of the EFDD are from the UK, the EFDD did not criticise these actions. Both political groups also critiqued the West. First, the USA was frequently criticised by both party groups. For example, Miguel Viegas (GUE-NGL) and Katerina Konecna (GUE-NGL) stated that the war in Syria had not been resolved due to ‘continuous interference from the United States’ (European Parliament Debate, 2018a, 2015e). Similarly, James Carver (EFDD) sees the Syrian conflict as a proxy war between the USA and Russia for influence in the region (European Parliament Debate, 2016d). Second, both party groups also heavily criticised the USA allies in the Middle East, especially Turkey and Saudi Arabia. A large portion of the analysed speeches contain critiques of Turkey’s war against the Kurds, and the hypocrisy of an undemocratic country like Saudi Arabia being involved (European Parliament Debate, 2016b, 2017a). The GUE-NGL translated the critiques expressed in their speeches into all of their motions, while the EFDD only did this once (European Parliament Minutes, 2016b, 2017). Finally, the supply of weapons to rebel groups by the USA and their allies was especially objected to by the GUE-NGL in both speeches and motions, and to a lesser extent by the EFDD. Specifically, speeches by Miguel Viegas and the GUE-NGL motions strongly condemned the weapon supplies (European Parliament Debate, 2016c; European Parliament Minutes, 2016a). In spite of the continuous critique of the EU’s role in the crisis in Syria, both party groups insisted on the EU’s obligation to play an active role in Syria concerning humanitarian and diplomatic aid as underlined in a significant number of their speeches (European Parliament Minutes, 2016a, 2017). Similarly, Castaldo (EFDD) and Kohlicek (GUE-NGL) also emphasised that the EU should play a role in the post-conflict reconstruction of Syria (European Parliament Debate, 2016b, 2018b). In addition, both party groups stated their support for the UN committee of inquiry and the attempts for peace settlement by the UN Special Envoy in all of their motions (European Parliament Minutes, 2016a, 2018). Finally, GUE-NGL MEPs mentioned territorial integrity and the importance of taking the Syrian population into account first (European Parliament Debate, 2017a). The analysis of the consistency between the speeches and the promoted motions for resolutions demonstrated far-reaching inconsistencies within each political group as well as between them. In the first place, many critiques expressed during their debates were not included in the motions for resolutions presented by both groups. The motions presented by the GUE-NGL included consistent critiques of the West but put much less emphasis on critiquing the EU. Although both parties criticised the USA in their speeches, only the GUE-NGL explicitly mentioned the USA in all of their motions, and openly condemned the USA for their involvement (European

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Parliament Minutes, 2016b, 2017, 2018). At the same time, the motions of the EFDD emphasised the humanitarian and diplomatic responsibility of the EU. In the second place, the least relevant categories in the debates related to the crisis management approach featured prominently in the motions for a resolution presented by both groups. Although not that often mentioned in speeches, both party groups expressed their concern on the number of Syrian refugees in motions and stressed the need for European assistance (European Parliament Minutes, 2016b, 2017). Both the EFDD and GUE-NGL are often on the sidelines when it comes to their influence on the EP positions. As in the case of Ukraine, both groups were not engaged in the search for a consensual institutional position on the topics related to the crisis in Syria. Only once did the EFDD support the presentation of a joint motion of resolution in October 2016. In all other cases, the motions of resolutions presented by both groups fell during voting, and they did not engage in searching for joint EP resolutions based on groups’ contributions.

What Are the Prospects for Populist Challenges to the Legitimacy of EU Foreign Policy? Contestation of EU foreign policy in the EP is both a process and a pursued normative outcome to be created in opposition to the organising principle of consensus guiding the development of the EU’s foreign policy. The contestation of norms is defined as a practice. Wiener distinguishes between contestation, in general, as a ‘social practice that entails objection to specific issues that matter to people’ and the contestation in international relations that ‘by and large involves the range of social practices which discursively express disapproval of norms’ (Wiener, 2014, p. 1). At the same time, the very notion of contestation has become disputed normatively. In Wiener’s account, the contestedness itself acquires a normative feature as a ‘meta-organising principle’, and the process of opposition to specific norms acquires the feature of ‘the norm generative power of political and cultural practices’. In this sense, the very contestation can become a norm understood as inter-subjective standards of appropriate behaviour (Katzenstein, 1996, p. 5; Finnemore & Sikkink, 1998). As a result, it can be argued that the practices of contestation can lead to the constitution of the norm of contestation. While scholars emphasise that norm contestation can lead to its erosion and affect international normative architecture negatively (Panke & Petherson, 2012), Wiener (2014) considers that norm contestation can have a positive impact on the institutionalisation of norms by enhancing their legitimacy. The advance of populism in Europe raises the question of how populist groups might influence the positions taken by the EP in the realm of EU foreign policy and the legitimacy of the EU foreign policy in general. Populism is unlikely to have a major influence on the texts adopted by the EP because that is not its main objective. Instead, populism in the EP is merely interested in the contestation of the EU mainstream approach adopted by the Council of the EU, European Commission, EEAS and

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mainstream EP political groups. The populist tendency to oppose elites is so strong that the positions taken by parties at the opposing poles of the political spectrum largely overlap in their critique on the EU, Western states, allies and institutions. Nevertheless, the continued opposition to EU foreign policy can contribute further to the institutionalisation of contestation challenging the traditional organising principle of consensus-seeking in the EP and the EU foreign policy institutional machinery. Therefore, the potential outcome of the increasing role of populists in EU foreign policy-making is a growing opposition within the institutions to the adopted positions. The idea that populist contestations are norm producing is sustained by the normgenerating logic of contestation as well as the ideological heterogeneity of populism. There are no clear signs of the direct effect of populist contestation on the EU foreign policy legitimacy. Moreover, the results of EP elections in May 2019 also suggest that the possible institutional role of these parties will be quite similar in the future. The final aggregated European results reflected that the populist parties’ EP groups did not increase their role significantly. Four mainstream pro-European integration ideological families will continue to dominate in the new EP term (2019–2024) with 511 seats, while the Eurosceptic and populist far-right parties and far-left parties have only 217 seats. The emerging composition of the EP’s groups suggests that four mainstream groups (European People’s Party, Socialists and Democrats, Liberals and Greens–European Free Alliance) lost only ten seats in comparison with 2014–2019 terms while four Eurosceptic populist groups (three far-right groups: Identity and Democracy, European Conservatives and Reformists, Europe of Freedom and Direct Democracy and one far-left group European United Left/Nordic Green Left) after the internal rearrangement of alliances gained only ten seats in comparison with the previous term (Politico, 2019). Therefore, it is hardly possible that EU mainstream foreign policies can suffer contestation leading to a diminishing legitimacy from within the EP.

Conclusion This chapter has scrutinised the contestation of the organising principle of consensusseeking in the EP by European populist parties. The analysis of the performance of two populist groups in the EP illustrates two dominant patterns. In the first place, they expressed critiques of the EU and the West in the involvement of both crises in the EU’s region. Similarly, both party groups generally have a high level of cohesion while most MEPs generally follow the position of the party group. However, there are still some categories that have been mentioned in the discourse by the GUE-NGL, but not by the EFDD. In the second place, the comparison of the contestation of the EU and the West in both crises does not reflect consistent positions across different crises. In both cases, the populist parties adopted a position in opposition to the approach adopted by the EU institutions, independently of the scope and nature of the involvement of the EU. In the case of the Ukrainian crisis in which the EU played a large and very active role

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as an actor, the populist parties’ groups adopted a position in which they strongly opposed further EU involvement. In contrast, in the Syrian crisis in which the EU has largely been absent as an actor, the same populist groups tended to encourage further involvement of the EU in the form of diplomatic and humanitarian aid, as well as in the reconstruction of Syria after the conflict. A thin-centred ideology and the opposition to the attitudes of elites explain this inconsistent approach. This enables the parties to switch from anti-EU interference to pro-EU interference depending on the crisis. Moreover, their positions largely depend on the position taken by the group they attempt to oppose, the elites, in this case, other EU institutions and organs and mainstream EP political groups, and this means that the position taken by the populist party groups depends on the position taken by other EU institutions. The lack of influence of populist parties on the texts issued by the EP can be explained in the light of this opposition role. Only one of the proposed motions for resolutions issued by the populist parties’ groups has been translated into one of the texts adopted by the EP. This can be explained by the very nature of populism, as it does not seek to influence the institutional consensus, it only seeks to oppose it. As stressed by Judis (2016) and Wodak (2015), populism is most successful when it is in opposition to elites or the established parties. Hence, if the populist parties’ groups retain their opposition role, it is highly unlikely that they will have a significant influence on the adopted texts by the EP. Therefore, it is most likely that the populist groups will either stay in opposition to other EU institutions and mainstream political parties and keep on playing the counterbalancing role or eventually adopt a rather moderate approach in order to attract more voters and to attempt to influence European politics. Nevertheless, the possible, increasing role of populist parties in the Council of EU could lead to the emergence and institutionalisation of contestation as an organising principle of the decision-making dynamics.

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Milan van Berlo is an Advanced M.Sc. candidate in International Relations and Diplomacy, which programme is taught jointly by Leiden University and the Clingendael Institute. His research interests are predominantly in the areas of EU foreign policy, populism, social cohesion, and conflict resolution. Michal Natorski is Assistant Professor at the Maastricht University (Maastricht Graduate School of Governance/UNU-MERIT) and an associate member of the research group Observatory of European Foreign Policy at the Institut Barcelona d’Estudis Internacionals (IBEI). He is also Visiting Professor in the College of Europe, Natolin campus. His research interests include the EU foreign policy, the international diffusion of public policies, the role of crises in policy-making, and the transformations of governance systems. His work has appeared, among others, in European Journal of International Relations, Journal of Common Market Studies, Journal of European Public Policy, and Cooperation and Conflict.