Reforming me softly – how soft law has changed EU return policy since the migration crisis

Abstract

In the wake of the 2015/2016 migration crisis, EU policy-makers have urged returning more irregular migrants. In order to achieve this, the EU has adopted a series of non-binding documents for European administrations (such as the EU Return Handbook) and agreed on informal return deals with countries of migrants’ origin including Afghanistan. This article argues that the EU’s shift towards soft law has not altered the EU’s return policy in a profound way. Yet, it has managed to ‘convert’ EU return policy by emphasizing a particular interpretation of existing hard law (towards more restrictive practices and a stronger focus on ‘efficiency’). The soft law approach has also allowed policy-makers to signal action in times of crisis at lower legislative and sovereignty costs.     

Comparing the legitimacy and effectiveness of global hard and soft law: An analytical framework

The international norms that are developed as tools of global governance can be placed on a continuum from traditional “hard law” treaties to the vaguest and voluntary “soft law.” In this article we develop an analytical framework for comparing norms on different positions along the continuum, thus for comparing international hard and soft law. We root the framework in both the rationalist and the constructivist paradigms of international relations by focusing on two overarching evaluative criteria: effectiveness and legitimacy. These broad concepts are divided into smaller building blocks encompassing mechanisms through which norms can exert influence; for example, by changing material incentives, identities, and building capacity, and by contributing to building source‐based, procedural, and substantive legitimacy. We illustrate the applicability of the framework with three norm processes of varying degrees of “softness” in global climate governance.     

The birth,life, and death of policy instruments: 35 years of EU gender equality policy programmes

Policy instruments research is an essential part of studying European Union governance. A growing interest in processes of (de-)legalisation and patterns of instrument choice requires a more process- and context-oriented analysis of the EU’s instrument selection. Using a political sociology approach, the article analyses patterns of instrument choice in soft law policy programmes, by examining the life cycle of EU gender equality policy programmes from 1982 to the present day. Gender equality policy programmes offer an in-depth understanding of how the Commission upgrades and downgrades policy instruments. The analysis indicates that patterns of policy instrument choice are not necessarily inflexible once a policy instrument is selected. Instead, patterns vary while the instrument is (de-)legalised. Investigating gender equality policy programmes provides explanations for the shifts in the use of legislative instruments and their limitations.     

Soft and hard law in times of crisis: budget monitoring,migration and cybersecurity

Abstract

European integration is associated with the idea of an ‘ever closer Union’, achieved in part through ‘integration-through-crisis’. However, while crises have led to higher regulatory pressure, responses to these crises have not always taken the form of stronger commitments and legally binding rules. Based on the study of three policy areas recently affected by crises, this article aims at analysing why in one of these policies (migration) more soft rules have been adopted, while the two other policies have evolved towards a greater use of hard law (budget monitoring, cybersecurity). Three potential explanations are analysed: the intensity of crises impacting political systems; the quality of prior norms and their (perceived) implementation; the entrepreneurship and heterogeneity of the coalition. Although all of these factors have explanatory powers, the capacity of policy entrepreneurs to build a large coalition appears to be the central explanation.     

Decoupling practical and legal compliance: Analysis of member states’ implementation of EU policy

Despite the vast literature on policy implementation, systematic cross‐national research focusing on implementers’ performance regarding different policy issues is still in its infancy. The European Union policies are conducive to examining this relationship in a comparative setting, as the EU member states need to implement various EU directives both legally and in practice. In this study, a first attempt is made to analyse the relationship between legal conformity and practical implementation and the conditions for practical deviations in 27 member states across issues from four policy areas (Internal Market, Environment, Justice and Home Affairs and Social Policy). In line with existing approaches to EU compliance, it is expected that the policy preferences of domestic political elites (‘enforcement’) affect their incentives to ‘decouple’ practical from legal compliance. Instead, administrative and institutional capacities (‘management’) and societal constraints (‘legitimacy’) are likely to limit the ability of policy makers to exert control over the implementation process. The findings suggest that practical deviations arise from policy makers’ inability to steer the implementation process, regardless of their predispositions towards internationally agreed policies. The results have strong implications for the effective application of international rules in domestic settings, as they illustrate that political support for the implementation of ‘external’ policy does not ensure effective implementation in practice.     

Providing information and building capacity: interest group involvement in the application of EU law

Practical implementation has attracted significant scholarly attention in the European Union in the last decade, and the EU compliance literature started to focus more on the players in the domestic arena to help understand the application of EU law. However, a systematic analysis on interest group activities at the application stage is yet to be conducted. Relying on enforcement and management approaches, this article argues that interest groups act as providers of legal and technical information that are needed for correct application of EU law. Also, interest groups actively demand information from political actors to build internal capacity during this period. The results show that interest groups act as providers of information, but only in the national political arena. Moreover, motivation to learn is another factor that explains the level of access seeking during application, and this type of interaction takes place in both European and national venues.     

From the rule of law to the rule of rules: technocracy and the crisis of EU governance

This article focuses on two trends emerging through the eurozone crisis, both of which diminish the quality of democracy in the EU and its member states. Firstly, the crisis has led to an increased reliance on non-majoritarian institutions, such as the ECB, at the expense of democratic accountability. Secondly, the crisis has led to a new emphasis on coercive enforcement at the expense of the voluntary cooperation that previously characterised (and sustained) the EU as a community of law. Thus, the ECB’s (over-)empowerment is a synecdoche of a wider problem: The EU’s tendency to resort to technocratic governance in the face of challenges that require political contestation. In the absence of opportunities for democratic contestation, EU emergency governance – Integration through Crisis – oscillates between moments of heightened politicisation, in which ad hoc decisions are justified as necessary, and the (sometimes coercive) appeal to the depoliticised rule of rules.     

Ideological influences on governance and regulation: The comparative case of supreme courts

A key influence on governance and regulation is the ideology of individual decisionmakers. However, certain branches of government – such as courts – while wielding wide ranging regulatory powers, are expected to do so with no attitudinal influence. We posit a dynamic response model to investigate attitudinal behavior in different national courts. Our ideological scores are estimated based on probability models that formalize the assumption that judicial decisions consist of ideological, strategic, and jurisprudential components. The Dynamic Comparative Attitudinal Measure estimates the attitudinal decisionmaking on the institution as a whole. Additionally, we estimate Ideological Ideal Point Preference for individual justices. Empirical results with original data for political and religious rights rulings in the Supreme Courts of the United States, Canada, India, the Philippines, and Israel corroborate the measures' validity. Future studies can utilize Ideological Ideal Point Preference and the Dynamic Comparative Attitudinal Measure to cover additional courts, legal spheres, and time frames, and to estimate government deference.     

The European Union as an opportunity: structures and uses of European soft law in French,Austrian and Irish eHealth policies

Abstract

Does European soft law matter? In order to answer this question, the article investigates the processes through which the European Union (EU) affects domestic politics and policies in the eHealth sector in France, Austria and Ireland. More precisely, it shows how the hardening of EU soft law creates a new rationale for the use of European instruments by domestic actors, thus expanding their strategic opportunities for policy making at the national level. Despite the empirical diversity of the cases, similar patterns of variation in Europeanisation mechanisms emerge over time, and the data show how the varying structure of European soft instruments (i.e. their degrees of ‘hardness’) accounts for these changes. This comparative analysis includes multiple process-tracing cases of eHealth public policy making in France, Austria and Ireland in which Europeanisation processes are at work.     

The rise and fall of a policy: policy succession and the attempted termination of ecological corridors policy in the Netherlands

In policy analysis, studies on policy termination are rare. This article offers such a study. It presents the story of how, despite attempts by the government to terminate it, Dutch nature policy on ecological corridors continued to be implemented by regional governments and in the field. A case analysis is presented that integrates theories and insights not only from the termination literature but also from the literature on implementation. The different factors identified in the literature that enable or constrain implementation and termination have served as a basis for developing possible explanations of the case study. They cannot, however, serve as generic theories with predictive power. Policy termination as well as policy implementation are highly contextual processes and the question which factors will enable or constrain policy termination and implementation can only be answered on a case by case basis.

The rule of law and citizenship in central India: post-colonial dilemmas

This article argues that the ‘rule of law’ has become a central goal in popular struggles the world over, and it is citizenship struggles which infuse the rule of law with substantive, as against a thin procedural, meaning. This is especially true in post-colonial societies like India, with a tradition of inherited colonial law designed for subject-hood rather than citizenship, growing inequality which affects both the enactment and interpretation of law, and the violation of law by those who are meant to protect it. Demanding implementation of existing laws, breaking laws that are patently unjust whether through armed struggle or non-violent social movements, or seeking to change laws in favour of new and more democratic laws, are all major avenues by means of which people express their aspirations as citizens. However, law's mutually constitutive relation with social practice means that people enter into political and legal negotiations already constituted as certain kinds of legal subjects, which constrains their imagination in certain ways.     

The weakness of strong policies and the strength of weak policies: Law,experimentalist governance,and supporting coalitions in European Union health care policy

The experience of European Union (EU) health care services policy shows the importance of supporting coalitions in any effort to effect policy change and the extent to which the presence or absence of such coalitions can qualify generalizations about policymaking. EU health care services law is substantively liberalizing and procedurally driven by the courts, with little legislative input. But the European Court of Justice (ECJ) has been much better at establishing an EU competency in law than in causing policy development in the EU or member states. Literature on courts helps to explain why: courts are most effective when they enjoy supporting coalitions and the ECJ does not have a significant supporting coalition for its liberalizing health care services policy. Based on interview data, this article argues that the hard law of health care services deregulation and the newer forms of health care governance, such as the Open Method of Coordination and the networks on rare diseases, depend on supporting coalitions in member states that are willing to litigate, lobby, budget, decide cases, and otherwise implement EU law and policy. Given the resistance that the Court has met in health care sectors, its overarching deregulatory approach might produce smaller effects than expected, and forms of experimentalist governance that are easy to deride might turn out to have supporting coalitions that make them unexpectedly effective.     

The political and practical obstacles to the reform of the judiciary and the establishment of a rule of law in China

Is China’s “socialist rule by law” (社会主义法制) qualified to be called “rule of law” (法治) or a “thin rule of law” proposed by Randall Peeremboon, without abolishing the political supremacy of the Chinese Communist Party and the establishment of an independent judiciary? Since the mid-1990s, the Chinese legal system and its judiciary have gone through reforms and on the whole modernized. However, the Chinese judiciary still faces many problems, and among them the lack of professional jurists, corruption and local protectionism appear as crucial ones. The current political and institutional arrangements and lack of freedom of the press and freedom of association clearly intensify these problems. “Rule of law” (法治) or “rule by law” (法制) in China is still more often interpreted in the light of the respective political, bureaucratic and economic powers of the parties involved than according to principles of law or equity. The modernization of the legal system will continue, but the political translation of the legal demands of society and the international community will take time to materialize. In the meantime, risks, setbacks and difficulties will continue to prevent China from establishing a truly independent judiciary and what is universally called a rule of law.     

The ‘third way’ and the politics of law and order: Explaining differences in law and order policies between Blair's New Labour and Schröder's SPD

Advocating more repressive law and order policies along the slogan ‘tough on crime, tough on the causes of crime’ in their election manifesto, Tony Blair in the United Kingdom and Gerhard Schröder in Germany were elected in the late 1990s. Once in power, however, only New Labour substantially toughened law and order policies, whereas the German Social Democrats did not change the legal status quo, to a similar extent, during their mandate. This article tackles this puzzle, arguing that the preferences of the ministers and the formal and informal rules shaping the balance of power in government are crucial to understanding why two governments that initially advocated similar policies adopted a rather different policy stance. The results are based on meticulous process tracing and a series of elite interviews concerning two major topics in the realm of law and order during the 1990s: policies directed at sexual offenders, and policies responding to the terrorist attacks of 9/11.     

Business conflict and international law: The political economy of copyright in the United States

The internet industry has emerged as an important economic and political actor, both within the United States and internationally. Internet companies depend on exceptions from copyright law in order to operate. As a result, internet companies have considerable incentive to try and influence international copyright law. However, the current literature has neglected the role of the internet industry, instead focusing on the influence of copyright owning media companies. This has largely homogenized the concerns of business interests, neglecting the interests of business actors which do not favor stricter copyright protection. By examining business conflict over recent copyright initiatives by the United States, this article criticizes the literature. It illustrates that the internet industry has been able to alter the negotiating preferences of the United States against the wishes of copyright owners. This argues against the homogenization of business interests regarding copyright while illustrating the importance of material over discursive factors in determining political outcomes.     

Globalization and legal change: The “Americanization” of European law?

Intensified global economic competition, economic liberalization, and the rise of EU governance have led some observers to argue that there has been a trend toward the “Americanization” of the European “way of law.” This article addresses that contention, focusing on legal change in European member states. It first describes ways in which the American legal tradition has differed most sharply from the national legal systems of Western Europe (including Great Britain) and the political and economic factors that account for this “American legal distinctiveness.” Similar political and economic factors currently are at work in Europe, the article acknowledges, creating incentives for legal convergence. But it also argues that European legal culture and the political organization of European national states generate path‐dependent forces that impede European movement toward American ways of law, and it discusses six important differences between European and American law that remain entrenched and are unlikely to disappear.     

The use and non-use of policy appraisal tools in public policy making: an analysis of three European countries and the European Union

The increasing complexity of policy problems, coupled with the political desire to base new policies on the foundation of firm evidence, has accelerated the development of policy assessment tools. These range from complex computer models and cost benefit analysis through simple checklists and decision trees. In the last decade, many governments have established formal policy assessment systems to harness these tools in order to facilitate more evidence-based policy making. These tools are potentially widely available, but to what extent are they used by policy makers and what becomes of the evidence that they generate? This paper addresses these questions by studying the empirical patterns of tool use across 37 cases in three European countries and the European Commission. It uses a simple classification of tools into advanced, formal and simple types. It finds that even when tools are embedded in policy assessment systems, their use is differentiated and on the whole very limited, in particular when it comes to more advanced tools. It then explores these patterns from contrasting theoretical perspectives to shed light on why, when and how different policy assessment tools are used in the policy process.     

The role of independent regulators in policy making: Venue‐shopping and framing strategies in the EU regulation of old wives cures

This article addresses debates on the formulation of public policy, building upon a body of literature which has focused on the interconnectedness between the venues of policy action and the way issues are defined. It does so by focusing on the strategic role of policy actors in a policy subfield and their attempts at manipulating either frames or venues in order to shape policy. The novelty here consists in pointing to the involvement of regulators in such strategic action. An emerging body of research has indeed shown that the activity of formally independent regulators is not necessarily limited to the implementation of delegated regulatory competencies and that they are increasingly engaged in policy‐making activities. Thus, by resorting to the agenda‐setting and framing literature, the article sheds light on novel pathways through which regulators intervene in policy‐making activities, making a claim that they have very good ‘tools’ at their disposal in order to shape policy. These dynamics are examined in the case of the last piece of the EU's pharmaceutical framework – the 2004 Directive on Traditional Herbal Medicines – which provoked intense debate among manufacturers of herbals, retailers, consumers, and both EU‐level and domestic‐level regulatory authorities.     

自然法思想对民法和国际法的贡献

自然法理论与罗马法学相结合,使罗马法优越于同时代其他国家的法律;自然法观念促使人们发出对法典化的呼唤,著名的《法国民法典》和《德国民法典》得以诞生;自然法是国际法的基础或渊源。