Reforming Europe's Common Foreign and Security Policy

• Published date: 01 January 2004
• DOI: http://doi.org/10.1111/j.1468-0386.2004.00200.x
• Author: Daniel Thym
• Date: 01 January 2004

Reforming Europe’s Common Foreign

and Security Policy

Daniel Thym*

Abstract: The reform of the constitutional foundations of Europe’s Common Foreign and

Security Policy (CFSP) featured prominently on the agenda of the European Convention.

To the great surprise of many observers the much lamented absence of a common Euro-

pean response to the war in Iraq did not prevent the Convention from agreeing upon an

ambitious reform package in the foreign-policy f‌ield. This article explores the legal impli-

cations of the new institutional balance for European foreign policy envisaged by the Con-

vention against the background of the achievements and def‌iciencies of Europe’s existing

foreign policy regime. Thereby, we shall see in how far the Convention has met the origi-

nal goal set by the Laeken European Council to consider reform steps to strengthen the

Union’s ability to ‘shoulder its responsibilities in the governance of globalisation.’1

After some initial arguments, the Convention eventually decided to establish a working

group on ‘external action’ which submitted its f‌inal report in December 2002.2It pro-

vided the groundwork for a sometimes heated debate in the Convention plenary and the

eventual consensus enshrined in the Convention’s Draft Treaty establishing a Constitu-

tion for Europe (hereafter:D-TCE).3Of course, the Intergovernmental Conference may

modify the draft and the politically sensitive area of foreign policy is indeed particularly

likely to be subject to some changes.But it is to be expected that the numerous informal

consultations between the Convention’s Presidium and national governments have eased

most tensions and that the underlying structure of the Convention proposal ref‌lects a

basic compromise from which the governments will eventually not depart.4

European Law Journal, Vol.10, No. 1, January 2004, pp. 5–22.

© Blackwell Publishing Ltd. 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Dr. iur. (Berlin), LL. M. (London), Research Assistant at the Walter Hallstein Institute for European

Constitutional Law, Humboldt University Berlin . Thanks to my colleagues Vera

Rodenhoff and Philipp Steinberg for repeated and fruitful discussions on the topic.

1Laeken Declaration on the Future of the European Union, Annex I to the Presidency Conclusions,

Laeken European Council, 15 December 2001 o/eurocouncil>, Section I.

2Wor king Group VII ‘External Action’, Final Report, 16 December 2002, doc. CONV 459/02. Its f‌ind-

ings were complemented by the results of two other working groups on the issues of defence and legal

personality; see Working Group VIII ‘Defence’, Final Report, 16 December 2002, doc. CONV 461/02

and Working Group III ‘Legal Personality’, Final Report, 1 October 2002, doc. CONV 305/02.

3European Convention: Draft Treaty establishing a Constitution for Europe, 18 July 2003, doc. CONV

850/03.

4See, in particular, the general support voiced by the Secretary of State for Foreign and Common-

wealth Affairs, A Constitutional Treaty for the EU: The British Approach, September 2003

.gov.uk> at para 86–96 which demands only some minor modif‌ications in relation to CFSP,

mainly in the f‌ield of defence policy.

Among the citizens of Europe, there is a general understanding that the European

Union should play a more proactive role in foreign policy.5Even visionary reform steps

such as a European seat in the UN Security Council which the Convention proposal

does clearly not entail or the establishment of a European foreign minister are sur-

prisingly supported by a straight popular majority.6Nonetheless, the agreement on the

nitty-gritty details of the new Treaty articles in the Convention was more diff‌icult to

achieve. Their evaluation f‌irst requires a closer look at the constitutional foundations

of CFSP (I). On this basis, the article focuses on specif‌ic reform steps concerning the

respective role of the European institutions in the formulation of European foreign

policy (II). Finally,the articulation of the common policy thus agreed upon to the inter-

national community will be considered (III).

IConstitutional Foundations

The article deliberately adopts a lawyer’s perspective by focusing on procedural and

institutional issues. Certainly, the success of any reform ultimately depends on the

ability and will of the political actors to agree and implement a common foreign policy.

But the history of European integration shows that the Treaties’ institutional rules are

an important framework and catalyst for the progressive realisation of common poli-

cies. Institutional design and questions of substance go hand in hand, and the experi-

ence of external Community policies suggests that this applies to foreign and ‘domestic’

European policies alike. It is therefore assumed that the European Treaties—contrary

to most national constitutions, which generally do not contain detailed rules on foreign

policy—should continue to regulate the formulation and articulation of European

foreign policy legally. An effective and eff‌icient institutional framework provides the

necessary groundwork and foundation upon which a more eff‌icient and effective Euro-

pean foreign policy may be built.

At present, the European Union is founded upon the well-known three pillars, one

of which concerns the Common Foreign and Security Policy (CFSP).7Its legal status

has been the subject of a lively academic debate, although one should remember that

the Union’s ‘troubled personality’8did not impede the political development of CFSP

in recent years.9Nonetheless, the Convention’s decision to establish a single and undis-

European Law Journal Volume 10

6© Blackwell Publishing Ltd. 2004

5In spring 2003, 67% of the respondents to the eurobarometer survey supported the principle of a common

foreign and security policy, while 19% were against it. In almost all Member States, there was a clear

majority in favour, except in the UK, where opinion was divided; see eurobarometer 59 of March/April

2003 .

6According to eurobarometer 59, 64% of all Europeans support the establishment of an EU foreign

minister and 68% a seat for the EU on the UN Security Council, see ibid.

7Art 11–28 TEU.

8N. Neuwahl, ‘A Partner With a Troubled Personality’,(1998) 3 EFAR 177–195.

9On the EU’s international legal personality, see the comprehensive article by R. A. Wessel, ‘Revisiting

the International Legal Status of the European Union’, (2000) 5 EFAR 507–537 and the reference to the

state practice as the deciding factor in A. Dashwood, ‘External Relations Provisions of the Amsterdam

Treaty’, (1998) 35 CMLR 1019–1045 at 1041. Indeed, the recent practice suggests that the Member States

and third countries now recognize the Union’s legal personality; see, inter alia, the agreements between

the European Union and the Federal Republic of Yugoslavia of 25 April 2001 (adopted by Council

Decision 2001/352/CFSP; OJ 2001 L 125/1) with NATO on the Security of Information of 14 March

2003 (adopted by Council Decision 2003/211/CFSP; OJ 2003 L 80/35) and—on the basis

of Art 38, 24 TEU—with the US on Extradition and Mutual Legal Assistance in Criminal Matters

(signature authorised by Council Decision 2003/516/EC; OJ 2003 L 181/23).