1 Ph. D. THESIS IN “LEGAL STUDIES”
CONSTITUTIONAL GIUSTICE AND FUNDAMENTAL RIGHTS CURRICULUM IN INTERNATIONAL AND EUROPEAN UNION LAW University of Pisa
Candidate: Luigimaria Riccardi Tutor: Prof. Simone Marinai
Synthesis
RELATIONS BETWEEN EUROPEAN UNION, INTERNATIONAL ORGANIZATIONS AND OTHER FORMS OF ORGANIZED COOPERATION: DYNAMICS OF INFLUENCE IN GLOBAL
GOVERNANCE
Summary: 1) Introduction, aims and methodology of the research; 2) The institutional profiles of the relationship between the European Union and other fora in which organized cooperation between States is carried out; 3) The capacity of the European Union to affect the activity carried out forward to other forms of international cooperation: the available data from practice; 4) Conclusions.
1) Introduction, aims and methodology of the research
Over the years, and especially since the entry into force of the Lisbon Treaty, the external action of the European Union (EU) has been subject to continuous evolution. In particular, the relationship that the Union has with other international organizations (IOs) and other forms of organized cooperation has further developed, mainly as a result of the increasingly active role of the EU as an international actor. The Union has sought to become increasingly visible and an active part in the international forums in question, with consequent repercussions both for the development of EU law, and for the strengthening of the synergy between the latter and the international order. The participation of the EU in universal IOs such as, for example, the United Nations (UN) and the IOs that make up its system, IOs and other forms of organized cooperation in economic and financial matters, for example, the World Trade Organization (WTO), the International Monetary Fund (IMF) or the Groups of States, or regional IOs as in the case of the North Atlantic Treaty Organization (NATO) and the Arctic Council was a logical consequence of the transfer of competences from Member States to the EU in recent decades. The EU has become part of a complex and structured reality by influencing the work of multiple IOs operating
2 in different fields with their own legal positions and political decisions1. This has
not only become clear, e.g., in sectors such as trade, health, the environment, but also in relation to more technical activities, e.g., in the area of health and food standards and in financial regulation or intellectual property.
The aim of this research is to reconstruct and critically evaluate the current state and development of international cooperation carried out between the EU, the IOs and other forms of organized cooperation and to understand, therefore, whether the current institutional and political structure allows or not the EU to act as a single and effective actor on the international scene. The research will identify the main factors around which the EU has ability to interact with other IOs, highlighting their respective critical issues. This appears necessary considering the elements that characterize the EU, which can make it an especially advanced IO. Thinking, for example, to the complex division of competences between the EU and its Member States which also produces effects on the level of EU responsibility in the international context. In fact, the delimitation of the boundaries of the matters subjected to possible Union intervention is not always clear and therefore, consequently, it may not be obvious if it is faced with an exclusive, concurrent or supportive competence. This may also have repercussions on the level of external representation of the Union. Thinking of the multiplicity of EU institutions (e.g. the European Commission, the European Council) or also the High Representative for the common foreign and security policy and the EU delegations all responsible for the external representation of the Union, whose presence or alternation, also on the basis of the division of competences between the EU and its Member States, does not always seem to follow a clear and constant logic. Also, thinking of the importance of the role that the principle of loyal cooperation, pursuant to art. 4, par. 3 TEU, has in relations between the Union, the IOs and other international forums in consideration. Through this analysis, therefore, we will try to understand if the recognition of EU status can depend only and simply on an internal allocation and division of competences between the Union and the Member States, or from a dynamic vertical perspective, or if it is instead necessary to take a dynamic horizontal perspective between the EU and the various international forums under consideration. In this way, we will try to reconstruct the legitimacy, participation and responsibility profiles of the Union as an international player within the broader political, economic and legal dimension that characterizes its external relations with the IOs and other forms of organized cooperation.
The analysis of the concrete role played by the EU within other IOs and different forms of organized cooperation will be conducted through three guiding elements: 1) the study of the status possessed or not by the EU within the various organizations or international forums taken into consideration. The description of the type of participation of the Union will be carried out through a survey on the membership of the Union, its rights and the powers that are recognized from time to time. In the eventuality that the EU has not a formal status, its potential
3 ability, even in such cases, to be present and participate in the work of the
international forum through its Member States will be taken into account; 2) the examination of the profiles relating to external representation, highlighting from time to time which body or institution assumes responsibility for representing the EU as such. In particular, this problem assumes potentially different connotations if the Union and its Member States are both present as members of the IO or if the EU has not a formal status within the organization or forum taken into consideration; 3) the investigation of the internal coordination process between the EU and its Member States and between the EU institutions among themselves.
In order to pursue the objectives set by this research, the thesis will be structured in two parts: in the first part, the various institutional issues within the EU and international law and the legal problems that arise such as prerequisites or complementary elements for understanding the practical relationship between the EU and international forums which will be specifically analysed in Part Two of the work. This refers in particular to the international legal personality of the EU; the division of competences and responsibilities between the EU and its Member States, the profiles relating to the various types of membership, the methods of external representation and internal coordination at the vertical level (between the EU and the Member States) and at the horizontal level (between EU institutions and international forums in examination). In the second part, an investigation will be carried out on the application practice of the relationships that the EU has with some IOs and other forms of organized cooperation. In this regard, it is appropriate - from the methodological point of view - to clarify the reasons that influenced the choice of IOs and other international forums that will be taken into consideration during the investigation. First of all, the study considered the need to evaluate the impact of the EU on the action of IOs which are distinguished by their relevance, as actors operating in key sectors such as international peace and security, the economic and financial sector and the protection of human rights. Secondly, the IOs and the international forums taken into consideration are distinguished by the fact that - in relation to them - the practice concerning potential interrelationships with the EU appears more conspicuous and, therefore, more theoretically and juridically analysable. Furthermore, we deliberately chose to consider both universal and regional OI; both OI in which the EU participates as an effective member, and OI in which the EU has a less significant or even non-existent status.
The second part will be divided into three sections: section I will focus on the relationship between the EU and the UN in the General Assembly and the Security Council. We will then proceed to the analysis of relations with other organizations attributable to the United Nations “family”, that is, the International Organization for Food and Agriculture (FAO), the International Labour Organization (ILO), the Organization World Health (WHO) and the International Maritime Organization (IMO). Section II will take into consideration the IOs operating in the economic-financial field, i.e. the WTO, the
4 World Organization for Intellectual Property (WIPO), the IMF and other forms
of organized cooperation or the groups of states (G7, G8 and G20). In the latter case, given the different elements that characterize the groups of states from the classic IOs, the analysis of the EU participation will have to be carried out mainly through official announcements at the summits and interviews with officials present at the work collected by the scholars of the matter. The existence of these groupings of states poses many difficulties to the interpreter about their systematic classification in the current order of international relations. Finally, in section III, the EU’s relations with IOs will be analysed, whether regional (NATO, the Arctic Council and the Council of Europe) or universal (the International Conference of The Hague on private international law) which may it is believed they have in common the fact that they have peculiar characteristics, both from a structural and functional point of view, which make the relationship with the EU complex, as much as that the latter alternates with the IOs in question, methods of real participation to a modality of mere external cooperation both in the presence of full participation (as in the case of the Hague Conference) but also in the absence of a formal status.
2) The institutional profiles of the relationship between the European Union and other fora in which organized cooperation between States is carried out During the first part of this investigation, the rules of international and EU law that make possible the participation of the Union in other IOs or other forms of organized cooperation were analysed, verifying their concrete implementation. An important fact that emerged from the analysis in question is, without doubt, the vast network of relationships that the EU has established, since the 1970s, with the main universal and regional IOs present on the international scene. This activity, carried out primarily on the impetus of the European Commission, has led to considerable current results. The EU, in fact, can boast a constant presence in numerous IOs, thus covering many of its areas of competence: from universally-oriented IOs such as the UN, the WTO, the IMF, to regional-oriented IOs, such as NATO o the Arctic Council, up to forms of organized cooperation different from the classic OI such as, for example, the Groups of States, to cite some of the most significant examples taken up in this study.
The elements that characterize and that allow the EU to carry out its action externally and to participate in the work of the IOs are varied and complex. The reform carried out by the Lisbon Treaty in 2009 has certainly led to an important evolution of the institutional components and the legal rules that must underlie the relationship between the Union and the IOs, which, however, are not without critical issues.
First, in the Chapter I of the first part of the thesis a positive evolution of the legal bases that allow the EU to relate to the IOs of its external relations has emerged. However, these legal bases are disparate and with a general and inhomogeneous
5 content. This does not seem to allow us to always understand if and to what extent
the EU as such can interact with the IOs. Furthermore, this disparity and dispersion prevents the Treaties from guaranteeing a uniform benchmark for the EU’s external action in all IOs and, moreover, this does not mitigate the serious conflict that the Union may suffer in its internal action in IOs with third States and other IOs. The existence of the EU as a non-state actor capable of performing functions like those of the States participating in the various forms of organized cooperation is accepted only in part and as a matter of fact. In more institutional terms, international law seems to be experimenting with ways that allow the EU to “play” as a particularly advanced international actor. Its logic, which is pursued, is to offer clarity and establish the conditions for easy cooperation between different subjects. Depending on this objective, it is possible to create special rules for special or particularly advanced entities such as the EU. Indeed, as analysed in Chapter II of the first part of the thesis, the clauses on regional economic integration organizations (REIO) included in some multilateral agreements or constitutive treaties of OI can be a good example. The same clauses, however, seem to limit or not be enough to allow the EU as such to act with a single voice. This difficulty is due to the most problematic issue of the complex division of competences between the EU and its Member States. In this regard, the competences of the Union in the various subjects - which are also dealt with by IOs and international forums in which the EU claims to participate - are fragmented and scattered in the treaties. The same division of competences between the EU and its Member States, which should clearly and precisely guide the action of the Union within the IOs considered from time to time generates serious doubts. This may be due both to elements internal to the EU system such as, in particular, the need to understand if a given matter may fall within the exclusive or concurrent competence, and to external elements characterizing the work of the IO taken into examination. The same evolution of EU competences and the theory of implicit powers leaves the EU the possibility of being involved in actions that would otherwise be denied. Also in this case, the founding Treaties do not clarify the balances that must be subjected to this division of powers. In this context, however, the Court of Justice of the EU has played a key role in the interpretation and application of EU competence and the application of the theory of implicit powers in international cooperation with other IOs, highlighting the importance of a compact and coordinated action in light of the principle of loyal cooperation pursuant to art. 4, par. 3 TEU. In any case, the operation of the EU action within the CFSP context is still particularly problematic. Although at first glance, foreign policy may seem characterized by a compact and unitary system, it ends up covering a wide range of EU external competences which, on closer inspection, appears to have a very limited and confused scope. All these issues are intertwined with the law of treaties, according to which an IO cannot invoke the rules of the organization as justification for its non-execution of a Treaty (art. 27, par.2, Vienna Convention of 1986). Article. 46, par. 2, of the Vienna Convention of 1986 adds that an IO
6 cannot invoke the fact that its consent to be bound by a Treaty was expressed in
violation of the organization’s rules relating to the competence to conclude treaties as a tool to invalidate its consent, unless that the violation is obvious and concerns a rule of fundamental importance. Article. 46, par. 3 specifies, then, that a violation is clear if it is objectively evident to any State or IO that behaves in a matter in accordance with the normal practice of the States and, where appropriate, of the IO and in good faith. In the specific case of the EU, given the multiple international relations and the dynamic and extensive competences of the Union, the question arises in terms of whether and to what extent the division of competences should or could be objectively evident to the other international actors are they states or IOs. We have highlighted that when this division was made known through the filing of a declaration of competence, the rules are no longer purely internal, but can be part of international agreements or at least constitute a source of independent interpretation of the same. This would be particularly true in cases where a declaration of competence has been filed by the EU in order to participate in an IO. However, it remains difficult to argue that other IOs and their members remain bound by a division of competences which is based only on EU law and which has not become part of international agreements with other parties. Furthermore, account must be taken of the continuous evolution of EU competences and relations with its Member States which could involve the need to review the declarations of competence filed and, therefore, any division of responsibility internally and internationally.
Secondly, an interesting element that can be drawn from the analysis carried out so far is the variety of legal solutions that the EU has, over the years, formulated to make its participation possible despite the different limits (internal and external) existing, due, in some circumstances, to the distribution of competences between the Member States and the Union or, again, between the institutions themselves. The doctrine has described this phenomenon by referring to different types of fragmentation: the first is “vertical” and the second is “horizontal”. This fragmentation is intertwined with the various statuses possessed by the EU within the IO with which it cooperates. One thing is that the EU treaties refer to international IOs and institutions and provide a legal basis for the Union to join or engage with them. However, how and to what extent the EU actually makes use of these external competences is a different matter. We have highlighted that the commitment can vary from full membership in an IO, to observer status with a variety of rights and duties of a different nature and amplitude and which materialize from simple cooperation to the absence of commitment. In general, full membership is mainly found in areas where the EU has broad competences (such as trade, fisheries and widely harmonized dimensions of the internal market). However, the EU is a full member of a limited number of IOs such as the FAO or the WTO and the Hague Conference on Private International Law. To this far, we can add another category of participation: de facto membership. This is the case in which the EU is not formally a member, but exercises participation rights that resemble those of full membership. This status is often
7 more fragile than full legal membership, since it can still depend on the goodwill
and readiness of full members in allowing the full participation of the Union. Furthermore, the actual participation of the EU in practice does not always coincide with what the formal status could lead to believe, as happens in the case of the WHO. A second method of participation has been identified in observer status, which implies that the EU can participate in meetings of a body or organization, but without the right to vote. The precise set of rights that the EU can exercise differs from one organization to another. It may involve all membership rights except voting rights or may be limited to formal meetings only after all formal and informal consultations have been conducted with formal members and interested parties. In addition, formal interventions can only be allowed after the interventions of the formal participants have ended, which can have an impact on the political weight of the EU within the IO considered. In some cases, however, observer status can be enhanced to such an extent that the EU can be considered a de facto member, as is the case with participation in the UNGA since the reform described in 2011. In the areas where the EU has formal competences, if the statutes of the IOs do not allow EU accession, a complex form of Union involvement can be identified. A good example is the ILO. Finally, the Union can even participate in areas deliberately left to the Member States. Examples in this area include non-proliferation and export control regimes. Furthermore, based on art. 347 of the TFEU, the Member States have always supported their competence in matters of maintaining peace and international security, as in the case of the UN Security Council. At the same time, this provision invites them to ensure that any measures taken in this regard do not prevent the functioning of the internal market and are in line with the common commercial policy. In turn, this constitutes a reason for the European Commission (not the EU as such) to participate as a “permanent observer” (as noted in connection with the Zangger committee to harmonize the interpretation of control policies nuclear exports for the parties to the non-proliferation Treaty) or even as a “full participant” (as is the case with the Australia group which aims to ensure that exports do not contribute to the development of chemical or biological weapons).
Finally, a further problem is connected, from an institutional point of view, to the body, organ or institution of the Union which is responsible for participating in the work of the IO from time to time examined. As noted in Chapter III of the first part of the thesis, the EU can be represented by different institutions depending on the competence exercised, the status possessed and the international forum in question. The current situation of external representation can be summarized as follows: in cases where the EU itself is a member of the IO and the issue addressed falls within its exclusive competence, the Union acts through the European Commission, which can be assisted by a committee of Member States representatives (as the “Committee 207” for commercial policy). In the case of shared competence (or exclusive competence without formal EU membership in the IO), it will be necessary to understand whether the matter
8 under discussion falls within the general policies of the EU or touches on aspects
more properly attributable to the CFSP area. In the first case, external representation will be entrusted to the European Commission, supported more tenaciously by the representatives of the Member States included in the EEAS delegations. In the second case, it will be the Presidency of the European Council that will represent the EU on the basis of a coordinated position within a committee composed of the Member States and the Commission. However, this only happens at the highest levels of institutional representation pursuant to art. 15, par. 6 TEU. In all other cases, or at the ministerial level, representation will be entrusted to the High Representative for foreign affairs and security policy. However, even in the latter case, even considering the importance of the “double hat” of the EU High Representative, one may wonder how a single person can manage multiple representation activities if they are carried out simultaneously with Brussels or in the IO. Furthermore, the founding Treaties offer EU Member States the possibility to negotiate on their own but taking into account the general duty of cooperation with the Commission or with the Presidency of the European Council. In areas of national competence, Member States may in principle speak for themselves, but they are obliged to coordinate their positions with that of the EU locally in Brussels or internationally within the OI. Again, in the context of the CFSP and the European Security and Defence Policy (ESDP), the EU is represented by the Presidency of the European Council or by the EU High Representative if the Union participates at a lower level of institutional debate, even if the Commission is fully integrated. However, even if the Lisbon Treaty eliminates the representation function of the Presidency of the Council of the EU, the latter is still sporadically involved, especially when the EU does not have a status in the IO or the competences exercised fall within the national spectrum of action.
In the light of the picture described, the division of competences does not seem to be the only parameter to understand if the Union as such is an international player in that the delimitation of competences itself can be ambiguous and fragmented or, in any case, difficult to understand. It is understandable to expect, in fact, any conflicts between the EU institutions themselves when the subject matter of the work is unclear in its structural elements. Any compromises reached in external representation may be the source of an uneven and non-unitary action by the Union, thus preventing the Union from acting as a unitary actor. However, at the same time, the Union’s ability to make use of multiple representatives can allow it to interact effectively when its competences are not entirely clear or border on purely state-owned areas. In this case, however, other parties may wish or avoid an over-representation of the EU, once again compromising a single, effective and strong representation that replaces the Member States in the appropriate international fora. In this context, however, internal and external coordination mechanisms can represent a valid tool to balance these critical issues and offer the EU the opportunity to speak with one voice.
9 3) The capacity of the European Union to affect the activity carried out forward
to other forms of international cooperation: the available data from practice The second part of this work has allowed us to analyse the participation of the EU as such within IOs and other forms of organized cooperation that can be considered, in our opinion, representative of the different mechanisms and the different problems that emerge in the in the context of cooperation conducted by the Union at the international level. The examination of the practice made it possible to highlight the concrete relationship dynamics and the extent of the role played by the EU as an international player, also in order to be able to identify potential limits and future prospects for evolution.
The attention was focused on three groups of case studies, namely: 1) the section I was dedicated to the UN and the main IOs that fall under the United Nations system; 2) in section II, the IOs operating in the economic-financial sector such as, for example, the WTO, the IMF and the OECD, were taken into consideration, including forms of cooperation not identifiable in the classic IOs such as, for example, the Groups of States, which play a central role in particularly sensitive thematic areas from a political point of view and are, at the same time, decisive in the current world balances and 3) in the section III other IOs, of a universal nature (the Hague Conference on private international law) and also of a regional nature (NATO, the Arctic Council and the Council of Europe) were examined in which the participation of the EU presents complex factors and particularly relevant for the purposes of this research.
The analysis of the rules introduced and reformed by the Lisbon Treaty conducted in Part one of this work, which, as it is known, has had a pervasive effect on the institutional balance within the Union, with the stated aim of making the EU stronger on the international scene, it highlighted some critical issues in the analysis of the representation and coordination mechanisms. While looking favourably at the reform implemented through the new Treaty, welcoming, for example, the possible positive impact of the new figure of the High Representative, at the helm of the EEAS and the “double hat” instrument to ensure greater coherence and coordination to the external action of the Union, however, in the analysis of the individual IOs limits were found that inevitably do not always guarantee the EU the possibility to act in a compact and unitary way and to concretely implement the described rules to the maximum. In relation to the role played by the Union within the individual IOs, the three groups of case studies present some significant common points, as well as important differences, which can be highlighted below.
In relation to the concrete role played by the EU, it is necessary to highlight that these three categories of IOs are united by a relevant legal datum, or by the fact that the formal institutional participation data that the EU plays within them does not always coincide with the substantial part of the active part of the relationship. In fact, in most of the case studies examined, the EU participates with an observer
10 status simple or even lacking a formal status. The Union, therefore, may not be
a full member, and nevertheless it can exercise rights, such as that of speech, although certainly not that of voting.
First, even where the EU has a formally more extensive status as in the case of FAO or the WTO in which the Union is a full member, the investigation has shown that this does not imply an extended and homogeneous participation the work of the IO and especially the EU’s ability to speak with one voice. In fact, in the case of FAO, there is a “selective” participation of the EU that does not fully reflect the status possessed. In this regard, if the EU has acquired the possibility of enjoying full formal membership, this is not reflected in its capacity of action, which is high only on some activities of the organization, on the contrary it is scarce or absent on others parts of the institutional agenda. This means that the Union is recognized as a relevant actor only “selectively” in sectors with significant capacity for action while in others it is not. The recognition of the EU as a relevant international actor in FAO is therefore highly selective. For example, based on the importance of the activity also carried out within the Union, the EU is fully accepted as an indispensable actor in the fisheries management sector. Another diachronic limit found to the status of member is the exercise of membership rights, which must be exercised on an alternative basis with EU Member States. Pursuant to art. 2 of the FAO Constitution, in fact, the EU and its Member States must declare on each individual item on the agenda before each meeting how competence is divided between them and the EU. Despite its membership status, the EU cannot automatically participate in committees and its representatives cannot be elected for official positions. Therefore, this shows that formal membership does not provide the EU with significant additional recognition in this IO. Some differences are traceable in the of the relationship between the EU and the WTO. If the EU’s capacity for action in the thematic area governed by an IO is high and the EU has also acquired formal accession to it, it is expected that it will enjoy full recognition on equal terms with (other) members Institution. The EU has been a member of the WTO since 1995. The Union has gained control over virtually all resources relevant to WTO issues. On the basis of its single market policy, the Union determines the quality standards of the products traded within the single market, carrying out strict controls on the national policies of its Member States. Also within the framework of its common agricultural policy, the EU controls issues relating to trade in agricultural products with third countries. Still, EU competition policy, including state aid control, is one of the most centralized EU policies. Despite some tensions over the exact delimitation of the EU's exclusive commercial competences, its Member States can no longer individually engage in international commercial obligations. Within the WTO, the EU is recognized as an actor of great importance. Indeed, in the absence of EU Member States’ s control over trade issues, third countries have no choice but to deal with the EU. Furthermore, due to its enormous economic power, the EU (rather than its Member States) is, together with the United States, Brazil and
11 China, a member of the exclusive steering group of the Doha Round negotiations
and attends the two meetings. While considering the importance of the Union for the same growth and evolution of the WTO, the presence of Member States alongside the EU does not always help the EU to speak with one voice. The attention has therefore focused on identifying the mechanisms currently existing in the WTO that can allow the Union, in a variously efficient way, to be present within it and move as an international actor as such involved in the work of the OI from time to time considered. In this case, at a substantial level, the vastness of the Union’s competence in commercial policy matters and, at procedural level, the EU’s ability to represent itself and its Member States in disputes before the WTO resolution mechanisms allow to partially overcome the critical issues of this double presence of the EU and its Member States as full members of the IO in question.
Secondly, in some cases, however, as in the UNGA or in some IOs belonging to the UN “family” such as, for example, WHO and IMO, or in IOs operating in the economic sector and financial services such as the OECD or even in international fora other than traditional organizations such as in the case of Groups of States, the participation of the Union is characterized by the fact that it possesses a status which, although formally concretized in the position of observer, proves to approach, albeit with elements from time to time different according to the single IO considered, to that of de facto members. The intervention and speech powers that the Union has in IOs and Groups of States also reflects greater cohesion among EU Member States, and this is reflected in the Union’s ability to speak with one voice. In fact, for example, the participation of the EU in the UNGA has the characteristics of an enhanced observer (almost member) with powers both in terms of intervention and negotiation. The coordination process with the Member States is stronger and more meaningful than what happens in IOs in which the EU is even a member, as in the case described by the WTO or FAO. A very similar position is also recorded in the Groups of States and in the Arctic Council where the EU is a “High Participant” with wide-ranging intervention powers. Within the WHO, for example, even though human health is a support competence, the EU actively participates in the work of the Organization in question, so much as to influence the international debate with its own action. Practice shows that the Union is becoming an increasingly unified actor in the WHO negotiations. At the same time, EU actions are limited by the fact that EU Member States are cautious in giving the EU full powers on issues such as, for example, reproductive rights and do not fully trust the European Commission to hire external representation. Also in this case, a single seat could not be the best solution given the conflict of the matter. Even in the IMO, within which the European Commission as such has observer status, the practice analysed has shown a greater participation than the formal membership due to the internal commitment to the IO but also internally of the Union through the evolution of its regulatory activity.
12 Thirdly, it can happen that where the EU not only does not have the status of a
member but is formally absent, the Union is particularly active. Indeed, it is important to emphasize that a complete formal absence does not lead to total invisibility, as evidenced by the analysis of the activity carried out by the Union within the Council of Europe. In this case, the EU is neither a member nor an observer, as the legal provisions underlying both organizations do not allow it. What they allow is mutual assistance and cooperation and over the years this relationship has been perfected through various forms of indirect contact. The EU can send representatives to the meetings of numerous intergovernmental committees of the Council of Europe and participate in four organs of the Organization set up as partial (enlarged) agreements. In addition, the EU has signed and ratified numerous Conventions drawn up within the Council of Europe. However, a discomfort has essentially been noted resulting from a fear of duplication, more palpable in the period in which the Union Agency for Fundamental Rights was established. Only after EU accession to the ECHR, the Union may take part in the sessions of the Council of Europe Committee of Ministers and obtain the right to vote in its work, but this could increase rather than decrease the division with its member states of the Council of Europe. Even in NATO, the EU is not recognized on a formal level; however, the cooperation between the two IOs is rather intense and growing so that the Union has the ability to positively influence NATO’s operational role. In fact, even if a certain overlap is evident on all operational levels between the two Organizations and this may not always be clear in the distribution of prerogatives and responsibilities, in any case, both IOs have managed to influence each other as actors in the policy of international security and defence. The EU has made a significant contribution to the formation of NATO’s identity and has also shown that it has useful skills and potential in crisis management, especially in matters in which NATO has no experience, e.g. think of civilian capabilities.
A common point that emerged in the various areas being analysed is the decisive role played by political data. In fact, there is still resistance from some EU States to the full external acceptance of the transfer of skills carried out internally. Specifically, the issue is clear immediately from the UN, and more specifically, within the Security Council. In light of the assessments carried out, not only legal difficulties, consisting in the EU’s lack of the necessary competences to play a role within the body in question, but also political obstacles prevent the realization of the seat in the future single union to the Security Council. Moreover, the Member States perceive their foreign policy as the last area of sovereignty to be protected with respect to the progressive extension of competences by the Union. Each state currently remains unwilling to go in search of a “European Union” solution to the questions posed by the international community and appears particularly keen to preserve privileged relationships, created over time, with third States and international institutions. The importance of the political figure is also emphasized within the IOs belonging to the UN system, as in the case of the WHO, but, especially in the case of the IO of an
13 economic-financial nature, such as, for example, the IMF. Indeed, the role that
the EU plays in the international financial system has a high sensitivity for States, since just like for the CFSP, these are policies that are traditionally considered to be part of the hard core of state sovereignty. However, a distinction must be made. In the case of the IMF, while for the States belonging to the Eurogroup, the transfer of their sovereignty in the monetary sphere has already taken place through the euro, this is not the case about foreign policy issues. In fact, it emerged that resistance is expressed in the Fund against the hypothesis of a more meaningful presence of the Union. Such resistance should be read as the strenuous defence of State power in an area where sovereignty has already been ceded to the Union for several years now. Therefore, there is a lack of adjustment by the stronger Member States to the current reality in the distribution of competences between the EU and Member States. The management of relations with third countries by these States still seems to play a significant factor, although they have given up their power in a relevant area such as that of money. Member States that have expressed similar resistance certainly need time to become aware of the consequences, on an international level, of political choices deliberately made internally.
Another fact that can be found from the examination of the selected case studies and which specifically emerges from the survey that concerned the UN, the IMF and the Groups of States, is the current debate on their prospect of reform. In particular, the UN and the IMF are institutions that have failed or delayed adapting to the changes that the world order has gone through. Both remain tied to an old international structure following the Second World War. Either way, reform is inevitable, but particularly difficult to implement. Although the debate continues in these international forums, and although there is an understanding or a basic agreement in the international community, on the principles that must be implemented, on the concrete ways to achieve this result, it is divided. Within the UN, in fact, the most delicate debate concerns the reform of the Security Council, which since the 1990s has focused on the need for enlargement and the attribution or otherwise of the veto right to other members. However, the UN States Parties stop, and do not advance with respect to identifying which country has the necessary requirements to join it, let alone the possibility for a non-state body, such as the EU, to participate in it . However, as already mentioned, the need for a single seat does not appear inevitable given the presence of the High Representative, his powers and the importance of the coordination process with the Member States, a mechanism on which greater attention should be paid. The same observation can also be extended to the IMF, where the need to adapt the main monetary organization to the new world economic equilibrium has been expressed by many, taking into account the growing importance of some countries whose economic power does not correspond to an equal power in terms of votes held. The question arose as to whether the introduction of a single EU seat in the Fund could be desirable. In the case of the IMF, an attempt was made to highlight that it would not be useful for the EU to support the existence of its
14 own exclusive competence on matters falling within the competence of the Fund
simply because of the existence of the euro. Unlike what happens within the G20, thanks to the non-institutionalized structure and the flexibility of the informal protocol that regulates the functioning of this conference of States, as we have highlighted, the activities of the IMF, despite the term “monetary” present in the denomination of the Fund go far beyond simple monetary issues. Therefore, a single Union seat with the IMF would have no reason to exist and, in any case, would not be possible in the short term, due to the lack of exclusive competence in all fields of share of the Fund. The issue of the unique participation of the EU reveals all its fragility and the weakness of the balance of the international community, just as it brings out, once again, the enormous political and economic interests that lie behind the various reform proposals made by many set off. To date, the EU appears weak, and partially completely absent, in the international debate within some IOs. What can be hypothesized, however, is a progressive acceptance by Member States of the (positive) consequences, externally, of adopting a unified position. This could lead, in the short term, to Member States to support the hypothesis of a single representation of the EU and its member states, such as e.g., in the case of a single EU constituent within the IMF.
Regarding the profiles concerning the EU’s external representation, a comparison of the EU’s participation in the IOs under examination revealed a different degree of autonomy of the Union institutions involved even after the reform of the Lisbon Treaty. Before the entry into force of the Treaty in question, it could be observed that while the Commission acted with a central role and enjoyed, under certain circumstances, autonomy of action, the same could not be asserted for the Presidency of the Council of the EU or for the High Representative for the CFSP. The problem of the coherence of external action in all these areas was detected. As a result, the fragmentation of the Union’s external representation was one of the challenges the Union had to face in order to make its action more effective on the international scene. In the Lisbon Treaty, the new role of the High Representative certainly has all the potential to exert important positive effects on some aspects related to the phenomenon of fragmentation. Within the CFSP, the High Representative has the necessary powers to ensure unity, effectiveness and continuity of the Union's external representation and coordination of the Member States, while the coherence of external action would be achieved through his double hat as described , for example, in the case of attending UN Security Council meetings. Nonetheless, from the cases taken into consideration in the three different sections, what the doctrine has called the “patchwork” of the external representation seems destined to never fail. On the other hand, the impact of the Lisbon Treaty on the external dimension of EMU is different. In this sector, the participation of the EU in economic and financial IOs denotes some innovations brought by the Treaty itself which, in essence, codifies some mechanisms that already exist only practically, such as, for example, the role recognized by the Eurogroup in the coordination process of the euro area States Parties and of the central role of the ECB both in the Bretton Woods institutions,
15 first of all, the IMF, but also in the case of the Groups of States, as described, in
particular, in the case of G20. This difference becomes fundamental to give concrete implementation to the rules set by the Lisbon Treaty and, consequently, to guarantee the Union an effective participation in the work of the IOs in consideration.
In our opinion, the analysis carried out has highlighted the characteristics of the Union’s relationship with the IOs or with other forms of organized cooperation, the adaptability and sensitivity of the EU to international forums all different from each other. From the outset, it was assumed that the identity of the EU had a chameleon-like quality and that the possibility for the Union to emerge as a unitary international actor was determined by the specific setting of the IO. This is perhaps most vividly exemplified in, or rather, in how to participate in, the OECD. As noted, the decentralized structure of the latter IO is extremely sophisticated, like a complex fusion of committees that pursue their programs in various ways. Although the IO in question takes up all the critical issues of the Union's involvement in the economic-financial system and in the relationship that the EU has with its Member States in this sector, the analysis of the relationship between the EU and the OECD can represent a benchmark for the evolution of Union participation in other OIs. In fact, in the OECD, contrary to what happens in the other IOs examined in this work, the EU has its own advanced status as an observer, which becomes an effective member within some work commissions. As a result, EU participation within the OECD has been seen to vary in content and meaning, depending on the issue (and the corresponding working committee) at stake. During the investigation, efforts were made to highlight that the flexibility of this status may also be relevant for the substantial participation of the EU in other IOs. Indeed, this flexibility could ensure unity in the EU’s external representation and protection of national interests by the Member States and in very different IOs where the EU is formally not recognized as having its own status, as in the IMF or in the case of the Council of Europe, or cannot acquire it upstream as, for example, in the case of NATO or does not have a formally clear position as in the case of the ILO, WIPO but also of the Arctic Council.
Therefore, relations between the EU and the IOs or its presence in other forms of organized cooperation could have much to gain from a wider and more flexible involvement of the Union. The same effect is not said instead that may derive from the recognition of a formal full and effective membership, but this cannot be defined through a single rule. Furthermore, this would hardly guarantee a truly unified representation. This is demonstrated by the fact that the international forums in which the Union operates as such with the exclusion of the Member States are few and rare. Furthermore, in order to strengthen the Union’s capacity to act within the IOs in which the EU is not formally recognized, it is particularly important to identify concrete measures that can guarantee and implement loyal cooperation and coordination between the Member States or the institutions of the EU. This could overcome the critical points detected and also the total or
16 partial formal lacuna of the impossibility of a participation of the EU itself in
some international forums that are structurally complex such as, for example, in the case of the ILO or the IMF.
4) Conclusions
The investigation has made it possible to reconstruct the participation of the EU as such within other IOs and international forums. There are many legal, institutional but also political criticalities on international and EU law level that prevent today to the Union the opportunity to speak with a single voice. This does not mean, however, that a form of active participation in the various forms of organized cooperation is precluded to the EU. On the contrary, even if it finds a differentiated participation of the Union at an international level, its presence is necessary for the purpose of effective European global governance and to achieve those balances that would inevitably be precluded through a single action at the State level. Although the EU can operate internationally and, in the present case, to be part of the work of other IOs and international forums at global and regional level, the EU encounters difficulties largely due to its persistent IO character. In particular, in the case of the relationship between the EU and the United Nations system, the analysis conducted has shown that to date the Union participates on different levels in the IOs that have been taken into consideration and that make up part of the system in question not only by assuming different statuses, i.e. founding member, observer, enhanced observer, but also through highly differentiated coordination processes. The operation that sometimes distinguishes the relationship that the EU has with IOs means that the bodies of the IOs are increasingly interested in the participation of the Union and are ready to recognize it as a relevant actor if they expect the EU to be able to contribute separately from its Member States to international cooperation. This suggests that the recognition of the EU as a relevant actor within the United Nations system stems mainly from its capacity for action, rather than its formal membership, that is indeed only whether and to the extent that it controls the relevant governance resources. This allows, for example, to overcome attempts to strengthen the (formal) participation of the EU within the IOs which would require a transfer of skills and additional governance resources. In addition, the Union’s international recognition will result from greater institutional participation. This allows us to argue that the EU can act as an independent international actor rather than as a mere coalition of its Member States.
With regard to relations between the EU and the IOs and other international economic and financial forums. These relationships are characterized by the center-periphery dialectic in which the “center”, that is, the international economic institutions, reaffirms its propulsive role of economic and financial development thanks to the integration with the “periphery”, represented by the EU. However, the investigation carried out chapter by chapter seems to reveal
17 that the participation of the EU in the international forums taken into
consideration creates an institutional and regulatory interaction that is not always homogeneous. Although the EU has developed significant economic and financial competences and action policies, the EU’s ability to act as such and with a single voice is rather uneven. Indeed, it seems that in order to actively participate, the EU simply accepts the political structures of international economic institutions, without managing to crystallize and centralize its autonomous participation compared to that of its Member States. This demonstrates the fact that international economic institutions also control the conduct of the EU both from a political point of view and through centralized dispute resolution mechanisms, such as those of the WTO, which can in any case represent a recognition of the work of the Union as a subject of international law, with its own obligations and responsibilities. In this context, the relationship between the EU and the OECD is particularly relevant. The multifaceted participation of the Union in the OECD can represent an example and element of study to be applied also in other IOs operating for the most part at a decentralized level (think of the IMF case) in which the EU is absent or does not enjoy full membership and in which it could strengthen its concrete participation both centrally and peripherally. This could be a possible solution especially in all those IOs or bodies of the same reluctant to accept a wider participation, such as in the case of the IMO or WHO.
The presence of the EU in some IOs, including regional ones, has its own peculiarity. In such contexts, a formal and full recognition of EU membership in the IOs in question is still rather difficult, especially for political reasons which distinguish the relationship that the Union has with these organizations such as, for example, in the case of NATO and the Arctic Council. Although the EU enjoys effective membership status at the Hague Conference, its action is still fragmented and developing.
From the investigation conducted in this research, therefore, it is possible to observe that in the context of the United Nations, a prevalent central participation of the EU prevails. Within the IOs and Groups of States of an economic and financial nature, the EU proves to have an initiative but lacking a substantial force that makes it always and only present in the respective international forums only at a peripheral level. Finally, in section III, the Union’s operations towards the IOs in question move from a reduced internal participation - still represented by a strong presence of the EU Member States - towards a greater and growing external cooperation rather than a participation stricto sensu through its institutions. This cooperation, although characterized by its complexity, seems to leave many rooms for manoeuvre to the Union as an international actor of a transversal nature, thus giving the ability to modify its impact in the work of the IOs in question. This was identified both internally, through its own substantial regulatory production, and externally such as, for example, with participation in civil and military missions in the case of NATO missions and through
18 participation in processes for the conclusion of international treaties such as, e.g.
in the case of the Hague Conference on Private International Law.
In all the case studies considered in the course of this investigation, it was observed that the possibility or need for the EU to occupy an autonomous position in an IO or other forms of organized cooperation is based on several factors which are inherent in the EU legal order is related to the IOs as such, however all connected to each other, namely: the division of competences between the EU and its Member States; the multiple external representation of the EU, the coordination mechanisms between the EU and its Member States and the need to identify concrete measures to ensure respect for the principle of loyal cooperation and, finally, the formal recognition of an EU role also through the rules of IOs or international forums from time to time considered. All these factors guide the concrete role played by the EU within the IOs and other international forums. However, during this investigation, multiple critical issues inherent in each of these elements have been identified, which risk limiting the Union’s action and its affirmation as an independent international actor within the IOs and other forms of organized cooperation.
The EU’s international identity includes all means and forms, both tangible and intangible, through which its action is manifested internationally. Taking into account that identity is a matter of perspective, this may vary depending on the point of view taken into consideration and, in the specific case, by the IO or by the international institution in which the EU participates. During this research, the Union’s membership and external representation were assessed from multiple angles precisely in order to understand whether and to what extent we can talk about a significant EU participation in the various IOs and in other forms of organized cooperation. This eventually allowed to analyse the different experiences, test various hypotheses and draw some general conclusions on the emerging international identity of the EU. In particular, firstly, it can be argued that the EU does not always impose itself as an independent international actor, but rather becomes an “accidental player” depending on the presence or absence of underlying agreements with its Member States that make it present or absent from the negotiation and debate sessions. Secondly, the analysis seems to show that the formal data linked to the status possessed by the Union in the international forum considered does not alone reflect the EU’s ability to act as such and, above all, the possibility of speaking with a only voice. On the contrary, the decisive element that becomes the compass and sextant of the Union’s action in IOs and other international institutions is the ability of the Union to be able to use and govern the governance resources and relevant bodies of the IOs or other international forums. Certainly, the EU is subjected to a process of continuous evolution which gives the possibility to the Union itself to focus its attention not only internally but, progressively, also externally and, consequently, take part in the debate on major issues of international politics. At the same time, the EU is progressively moving towards building its own international identity which is still not fully understood to date.
19 Therefore, the participation and cooperation of the EU within the IOs and other
international forums can be as strong as the identity that the Union perceives of its role in external relations becomes clearer. It is true that the EU remains an “accidental player”, but above all, it is an actor looking for its own identity on an international level.
