An implicit ‘constitutionalization’: The Treaty of Lisbon and the values of the EU the EU

As mentioned above, the founding treaties do not refer explicitly to IHL. However, it is reasonable to consider that the Treaty of Lisbon contains indirect references to IHL, in particular in the light of the meaning provided to the concepts of ‘human rights’,

‘democracy’ and the ‘rule of law’ in the founding values and objectives enshrined in EU primary law.

358 WRANGE, Pål. “The EU Guidelines on Promoting Compliance with International Humanitarian Law”. op. cit., 2010. p. 552.

359 FERRARO, Tristan. “Le droit international humanitaire dans la politique étrangère et de sécurité commune de l’Union européenne”. op. cit., 2002. p. 439.

360 Document available upon request.

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First, it could be argued that the references to the more encompassing concepts of

"peace", "security", and "international law" actually include IHL. Indeed, the objectives of “peace” and “security” codified in article 3 implicitly refer to the need to respect IHL, insofar as the latter contributes to the former. In addition, “the strict observance and the development of International Law, including respect for the principles of the United Nations Charter”³⁶¹ is strictly related to IHL. In this respect, the EU assigns itself the mission of respecting and developing IHL and considers itself both as a passive and an active subject of International Law. If all these elements are read together, an indirect reference to IHL may be found, especially in the light of the movement of convergence of the law of international peace and security with IHL, as explained in Chapter 1. Thus, these references to the Law of international peace and security make it possible to establish a connection between the EU and Common Article 1.

Second, and more importantly, the integration of IHL into EU Law emphasizes the symmetry between the EU’s internal and external values. In this respect, the codification of EU’s values within the body of the Treaty of Lisbon turns them into legal requirements, not mere moral and political aspirations. In this context, the EU’s approach to the concepts of democracy, rule of law, and respect for human rights is particularly important regarding IHL. Indeed, pursuant to their European acceptation, the concepts of democracy, rule of law, and overall, respect for human rights include the respect and promotion of IHL at international level.

Even before the entry into force of the Lisbon Treaty, the EU has been considered a

"community based on the rule of law" (communauté de droit)³⁶² in the words of the European Court of Justice, in which fundamental rights ought to be respected and protected³⁶³. The European identity has been progressively shaped so that the Union is nowadays founded on “the values of respect for human dignity, freedom, democracy,

361 TEU article 3.5.

362 ECJ, Case C- 294/83, Parti écologiste "Les Verts" v European Parliament. Judgment of the Court of 23 April 1986. European Court Reports 1986 -01339. Para 23.

363 ECJ, Cases C-29/69, Stauder v City of Ulm [1969] ECR 419; C-11/70, Internationale Handelsgesellschaft mbH v Einfhr- und Vorratsstelle für Getreide und Futtermittel [1970] ECR 1125, para. 4; C-44/79 J. Nold, Kohlen-und BaustoffgroBhandlung v Commission [1974] ECR 491, para. 31;

C.6/64, Flaminio Costa v Enel [1964] ECR 585, CMLR 425, 593.

equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”³⁶⁴ which have become “axiological”³⁶⁵ to the EU with the adoption of the Treaty of Lisbon. They now are the raison d’être of the EU³⁶⁶, they legitimize it, and command its action since EU policies rely upon it. In this sense, the entry into force of the Charter of Fundamental Rights of the EU confirms the EU’s aspiration to be a leader in human rights matters on the international stage³⁶⁷. Furthermore, several operational advances have been made in this sense since 2009. In particular, the EU adopted the Strategic Framework for Human Rights and Democracy in 2012³⁶⁸, which constitutes the cornerstone of the EU’s action on human rights matters and includes aspects relating to IHL. Furthermore, it appointed its first EU Special Representative for Human Rights³⁶⁹, a position currently held by Stavros Lambrinidis, thus enhancing the EU’s visibility on this matter.

The EU has become a multilevel democracy which has encouraged Member States to respect these values, to the point that article 7 TEU foresees a mechanism of sanction in the event of “a serious and persistent breach by a Member State of the values referred to in Article 2”³⁷⁰. A precedent may be found on the occasion of the Austrian crisis in

364 TEU, article 2.

365 SIMON, Denys. “Les fondations : L'Europe modeste ?, Le traité de Lisbonne: oui, non, mais à quoi?”.

Europe n°7, July 2008.

366 FREIXES, Teresa. “Quelles valeurs à proteger dans le dialogue interculturel euro méditerrannéen?”.

In: pp. 110-112.

367 While the EU self-assigns an extremely ambitious mission, its practice on this matter compels to relativize this statement, to the extent that EU’s – controversial – action in response to the massive arrival of refugees on European soil has importantly damaged its aspiration to be a leader in human rights in the public’s eye. members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.

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2000, when Jorg Haïder, an extremist leader acceded the Austrian government.

Sanctions were taken against Austria which was unable to vote in the Council in order to show that proclaiming the respect for human rights was not merely formal but had concrete implications too. Said sanctions were eventually lifted as it was held that the policies conducted by the Austrian government would not pose a threat to EU’s founding values. A more recent example can be found with the launching of a structured dialogue between Poland and the European Commission under the Rule of Law Framework³⁷¹, albeit it is too early to assess the results of this dialogue at this stage.

The result of this process is that the EU's action must be consistent with this commitment to its values, both internally and externally. It should be noted in this regard that this commitment is not a mere political mandate, but a legal obligation enshrined in EU primary law. The self-proclamation in the ‘constitutional’ text of a space where human rights are respected generates international expectations on this matter. The EU cannot pretend to incarnate a democratic space internally without promoting its values on the international scene too without running the risk of establishing double standards, and vice versa. As a matter of fact, the externalization of the EU’s values is confirmed by the Lisbon Treaty provisions governing the Common Foreign and Security Policy in the following terms:

Union’s action on the international scene shall be guided by (…) democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 354 of the Treaty on the Functioning of the European Union”.

371 See: European Commission, Fact Sheet: College Orientation Debate on recent developments in Poland and the Rule of Law Framework: Questions & Answers, Brussels, 13 January 2016. Available at:

http://europa.eu/rapid/press-release_MEMO-16-62_en.htm (last consultation: 28/01/2016).

and solidarity, and respect for the principles of the United Nations Charter and international law³⁷².

In the same way, the Union’s foreign policy shall pursue the objectives of safeguarding

“its values, fundamental interests, security, independence and integrity” and of consolidating and supporting “democracy, the rule of law, human rights and the principles of international law”³⁷³.

Thus, the EU self-assigns an extremely ambitious mission, a quasi-evangelical mission, of projection and promotion of its values on the international stage, which includes the promotion of IHL. The inscription of this aspiration in the EU constitutional marble – the founding treaties – entails legal consequences, not moral ones, and the EU must therefore subject its action to the respect of these values. It must live up to the expectations that it sets itself and that stem from its own primary law, in order to avoid accusations of double standards. In this respect, it seems that the EU is currently challenged by a set of crises: the economic crisis, Brexit and the surge of euro-skepticism in general, as well as the so-called ‘refugee crisis’. While there are no easy responses to all these crises, the constitutionalization of the EU’s values mean that the EU must always bear them in mind while it confronts such crises. In this line of argument, the importance of such crises should not overshadow its commitment in IHL matters.

As Katharina Häusler and Alexandra Timmer have shown³⁷⁴, the EU external activism on human rights matters is justified notably because of their universality. The 2012 EU Strategic Framework and Action Plan on Human Rights and Democracy are particularly significant in this regard, as it underlines that “[h]uman rights are universally applicable legal norms"³⁷⁵. Therefore, the EU is not only compelled to promote human rights on the international scene because of internal constraints – its founding values – but also because of external constraints: human rights are enshrined in international treaties and

372 TEU, Article 21.

373 Ibid.

374 HÄUSLER, Katarina; TIMMER, Alexandra. “Human Rights, Democracy and Rule of Law in EU External Action: Conceptualization and Practice”. In: BENEDEK, Wolfgang; BENOÎT-ROHMER, Florence; KETTERMANN, Matthias C.; KNEIHS, Benjamin; NOWAK, Manfred, (eds). European Yearbook on Human Rights 2015. Intersentia. p. 234.

375 Council of the European Union, EU Strategic Framework and Action Plan on Human Rights and Democracy, 25 June 2012, Luxembourg, 11855/12. p. 1.

Bettina Steible PhD thesis

conventions, and are universally applicable. The EU adopts an approach based on, inter alia, the United Nations Universal Declaration of Human Rights and is therefore in a position to refute Eurocentrism-based critics. The promotion of human rights is not only a reflection of European values, but also a legal duty, which is the result of an international consensus on the universal nature of human rights. The same holds true regarding IHL.

This is particularly relevant when talking about Common Article 1, as the EU has integrated IHL as one of the constituting elements of its values, in particular of the rule of law and human rights. This is clearly expressed in the introduction to the IHL Guidelines:

The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law. This includes the goal of promoting compliance with IHL³⁷⁶.

This approach was further confirmed in the Declaration by the Presidency on behalf of the Union on the occasion of the 60^th anniversary of the adoption of the Geneva Conventions has shown:

International law, including international humanitarian law, is one of the strongest tools the international community has to maintain international order and to ensure the protection and dignity of all persons. The European Union will continue to do its utmost to promote an international order where no state or individual is above the law and no one is outside the protection of the law³⁷⁷.

It appears from these declarations that ensuring respect for IHL is a component of the rule of law as it contributes to subjecting all individuals and states to the law, while ensuring legal protection for all.

Furthermore, IHL is integrated into EU law through the vector of human rights, which in turns reflects the movement of convergence of IHL and International Human Rights Law. As noted above, human rights are closely tied to the human principle, which also applies in time of armed conflict. The integration of human rights in IHL is blatant in

376 IHL Guidelines, para. 3.

377 Declaration of the Presidency on behalf of the EU on the occasion of the 60^th anniversary of the adoption of the 4 Geneva Conventions of 1949, 12535/1/09 REV 1 (Press 241), Brussels, 12 August 2009.

the case-law of several regional tribunals, such as the ECtHR and the Inter-American Court of Human Rights, as well as in the development of international criminal law.

Besides humanizing IHL, this movement of convergence also allows to ensure the efficiency of IHL in response to its difficult litigation. In turn, the EU contributes to this movement of convergence as it has included the promotion of IHL as a sub-category – although autonomous – of its policy of promotion of human rights. The participation of the EU in the development and enforcement of IHL through its external action indeed reinforces its credibility as a human rights promoter and leader.

In fact, only three years after the creation of the CFSP, some acts already referred to IHL mainly through declaratory acts³⁷⁸ through the vector of the promotion of human rights. It indeed would be surprising to differentiate between IHL and human rights exactions when the EU deals with a particular situation. As Tristan Ferraro highlights, these references used to be scattered and reflected the lack of a consistent strategy regarding this matter³⁷⁹. Nevertheless, those references to IHL became more frequent and more explicit, included in legally binding acts³⁸⁰ to the point that the Geneva Conventions and their additional protocols can now be considered recurrent instruments of the CSFP³⁸¹. The EU has therefore used its policy of promotion of human rights at international level to enter into the IHL field, and in particular to promote compliance with IHL. While it could have been understood that the EU was associating both corpuses of law through their systematic combination, the EU’s approach is clearer on that aspect now. The promotion of IHL in the EU external action has become autonomous and is reported as a policy by itself. By way of example, Point 21 of the EU Action Plan on Human Rights and Democracy included in the 2012 Strategic Framework for Human Rights and Democracy is specifically dedicated to IHL³⁸². The latter is integrated within the policy on human rights, but appears in a specific section.

The same holds true regarding the EU annual reports on human rights. It therefore

378 FERRARO, Tristan. “Le droit international humanitaire dans la politique étrangère et de sécurité commune de l’Union européenne”. op. cit., 2002. p. 437.

379 Ibid., p. 435.

380 AUVRET-FINCK, Josiane. “L'utilisation du DIH dans les instruments de la PESC”. op. cit., 2010.

381 FERRARO, Tristan. “Le droit international humanitaire dans la politique étrangère et de sécurité commune de l’Union européenne”. op. cit., 2002. p. 436.

382 Council of the European Union, EU Strategic Framework and Action Plan on Human Rights and Democracy, 25 June 2012, Luxembourg, 11855/12.

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clearly appears that, in the EU’s view, promoting compliance with IHL is seen as an extension of the necessity to guarantee its values.

As a subsidiary comment, the integration of the obligation to ensure respect for IHL in EU Law is consistent with the EU’s claim to be a super soft power. In addition to the legal duty, there are other reasons why the EU should enter into IHL concerns which evolve around the ideas of legitimacy and democratization from a constitutional perspective. In particular, the EU’s ambition to establish a European constitutional legal order based on values – democracy, the rule of law, and the respect for human rights – calls for the externalization of these values in the EU action on the international scene.

In this regard, the meaning the EU wishes to place on its international action defines its own identity. The EU is sometimes termed a soft³⁸³, civil, normative or even a calm power. According to Joseph Nye, a soft power is characterized by its capacity to influence, the promotion of its values, and an attractive power not exclusively based on military means³⁸⁴. Although the EU is a sui generis entity which cannot be deemed a federation, it is a union composed of free states, who decided to tie their relationships in such a way that they make war very unlikely to happen among them. The very purpose of the creation of the EU was to establish a permanent peace within the European territory by creating interdependency among its members that would not allow for war to be waged among them. European integration has allowed for the union of historic enemies such as Germany and France, but it has also permitted the reunification of Western and Eastern Europe. The EU’s role as a pacific force in international relations is therefore legitimatized by and founded on this primary mission.

Consequently, the EU prefers to communicate and use diplomacy rather than be guided by its military power. The EU projects itself in a post-modern world grounded by its rejection of the use of force and is refusal of any imperial temptation³⁸⁵. In this respect, the integration of IHL as one of the sources of EU Law is not surprising to the extent

383 NYE, Joseph. The means to success in politics. Public Affairs, New York, 2004. Quoted in:

KOECHLIN, Jérôme. La politique étrangère de l’Europe, entre puissance et conscience. Illico 2009, Infolio Ed.

384 Ibid.

385 KOECHLIN, Jérôme. La politique étrangère de l’Europe, entre puissance et conscience. op. cit., 2009.

that the promotion of International Law has become a ‘leitmotiv’³⁸⁶ in the CFSP, to the point that some authors talk about the “Europeanisation of International Law”³⁸⁷. For example, the 2003 European Security Strategy³⁸⁸, the 2015 Security Agenda, the European Commission Communication on multilateralism³⁸⁹, as well as the 2012 EU Strategic Framework and Action Plan on Human Rights and Democracy³⁹⁰ reassert these concerns: fostering multilateralism as well as the EU’s dialogue with third parties,

that the promotion of International Law has become a ‘leitmotiv’³⁸⁶ in the CFSP, to the point that some authors talk about the “Europeanisation of International Law”³⁸⁷. For example, the 2003 European Security Strategy³⁸⁸, the 2015 Security Agenda, the European Commission Communication on multilateralism³⁸⁹, as well as the 2012 EU Strategic Framework and Action Plan on Human Rights and Democracy³⁹⁰ reassert these concerns: fostering multilateralism as well as the EU’s dialogue with third parties,