Your rule of law is not mine: rethinking empirical approaches to EU rule of law promotion

The promotion of the “Rule of Law” is a leading ambition of the EU’s external action (Article 21 TEU). The dominant approach in most policy documents is to define the rule of law in terms of legal and institutional checklists. However, several authors have criticized this “anatomical” approach and have argued for a “sociological” approach. In this paper, I will discuss two empirical models of the rule of law. Most current studies follow the model of the “Rule of Law in Action.” This approach is based on Roscoe Pound’s distinction between the “law in the books” and the “law in action.” I will argue that this conventional approach has several shortcomings. I will therefore introduce an alternative model, based on Eugen Ehrlich’s concept of the “living law.” The principal concern of the “Living Rule of Law” model is not the level of social support but rather the social definition of the rule of law. To assess the strengths and weaknesses of both approaches, I will apply both models in a case study about rule of law reform in a refugee camp on the Thailand–Burma border. It will be concluded that empirical research is essential to evaluate the EU’s external action. Moreover, empirical studies based on the model of the Living Rule of Law support a legal pluralist approach, which focuses on the user perspective of citizens and which recognizes the contested notion of the rule of law across cultural borders.     

Strengthening the rule of law in Indonesia: the EU and the combat against illegal logging

Indonesia is an emerging power, but one problem particular taints the success story: corruption. While corruption affects all public policies, its disastrous effects are most visible in forestry. Indonesia is still home to the third largest rainforests in the world, but the country is losing its forests fast. One main driver of deforestation is illegal logging. The strengthening of the rule of law is therefore a key to stop or at least to slow down Indonesia’s deforestation rate. The European Union has been keen to support the Indonesian government in its fight against illegal logging in accordance with the European Forest Law Enforcement Governance and Trade Policy (FLEGT). In September 2013, Brussels and Jakarta have signed a FLEGT Voluntary Partnership Agreement (a FELGT-VPA, more commonly known as “Timber Pact”). Under the Timber Pact, Jakarta promises an overhaul of its forest governance. This reform of forest governance is costly to the Indonesian government, in financial and political terms. After all, many actors profited from the old system. The question arises why the Indonesian government agreed to the Timber Pact. In the first part of the analysis, a rationalist perspective is taken to answer this question, focusing on the political and economical gains for the decision-makers. The second part looks at the issue from a constructivist angle and shows how the norm “fight illegal logging” fitted into the normative framework of Indonesian politics. By combining a rationalist and a constructivist perspective, a broad picture of successful EU norm diffusion is painted.     

Correction to: The EU as a norm promoter through trade. The perceptions of Vietnamese elites

Asia Europe Journal - The original version of this paper unfortunately contained mistake, the correct sentence should be.     

The EU's approach post-September 11: global terrorism as a multidimensional law enforcement challenge

In response to the threat of terrorism following 9/11, the European Union has opted for a clear cross-border law enforcement approach that is quite distinct from the putative ‘war on terror’. This choice has been determined by factors of history, divergent threat perceptions, relative value orientations and restricted competences. And yet, far from limiting itself to a traditional ‘internal’ law enforcement focus, the EU has developed an extensive multidimensional approach that combines legislative and operational, repressive and preventive, internal and external, as well as institutional, measures. But weaknesses persist: the preference given by member states to instruments of cooperation and coordination, rather than integration, as well as the poor implementation of many agreed-upon measures, negatively weigh against the effectiveness of the EU's multidimensional law enforcement approach. Legitimacy deficits also exist owing to limited parliamentary and judicial control. These deficits will need to be addressed to reinforce the credibility of the EU's approach as a viable ‘European’ alternative to the US ‘war on terror’.     

The evolution of rule of law in Cambodia

Cambodian leaders have confounded the efforts of the international community to promote rule of law. Over the past decade the Cambodian government has introduced a series of legal reforms and overseen an increase in the use of legal proceedings including defamation lawsuits against opposition politicians and members of civil society. These reforms and practices, as well as the role of the judiciary in relation to each, may be better understood through elite perceptions of the rule of law in Cambodia. Comprehending the rule of law as it is understood by the ruling elites offers better insight into the trajectory of legal development and the obstacles to Western ideals for legal reform. This article situates Cambodia within the context of illiberal democracy and examines how a thin rule of law has evolved, focusing on defamation law as a legal and political strategy of control. While the international community has pressed Cambodia to carry out liberal legal reforms for some time, the article will outline the obstacles facing reformers and the competing desires of Cambodian leaders embedded in the patronage based political order.     

Foreign aid and political conditionality: Issues of effectiveness and consistency

This article examines the implementation of political conditionality by four official aid donors in the 1990s. It explores the aid sanctions taken globally to leverage improvements in respect of human rights and democratic principles, and assesses donor policy practice along two lines of investigation ‐ effectiveness and consistency. A main finding is the ineffectiveness of aid restrictions in contributing to political reforms in recipient countries. This is accounted for more by the weakness of measures imposed than by the strength of recipient governments, questioning the seriousness of donor intent in many cases. Regarding consistency, a pattern of selective and inconsistent policy application is revealed. The increased rhetorical support for democracy and human rights by northern governments post‐cold war has not led to a corresponding change towards the fair and equal treatment of all nations. The continued subordination of human rights and democracy to other foreign policy concerns, notably economic self‐interest, not only undermines policy credibility and legitimacy, but also limits impact and effectiveness. Donors themselves have introduced a normative dimension to aid policy. Yet if their own commitment to the principles of human rights and democracy is at best partial, they can hardly require development partners to abide by them in a manner that commands respect.     

Interregional relations and legitimacy in global governance: the EU in ASEM

This article explores the ramifications of the European Union’s (EU) internal legitimacy debate for its external relations. It applies the Asia–Europe Meeting (ASEM) as a case study to examine the EU’s attempts to promote legitimacy in global governance, more specifically in interregional institutions. The article’s theoretical framework draws from the EU’s legitimacy debate. It identifies three key sources of legitimacy, namely, (i) input legitimacy or democratic control and accountability, (ii) output legitimacy or performance and achievement of core purposes, and (iii) the degree of common identity as externalised through collective representation and the articulation of shared norms and values. The empirical analysis thereafter leads to three observations. First, the EU’s presence has contributed to an increased democratic involvement by ASEM’s different stakeholders including parliaments and civil society. Second, purely from an institutional legitimacy perspective ASEM achieves its purpose as a forum to ‘constructively engage’ with Asian countries and address issues relating to global governance. Third, ASEM reveals the EU’s dual identity as an intergovernmental grouping and an organisation with a gradually increasing capacity of collective representation. However, the advancement of the EU’s normative objectives through ASEM has been problematic, leading to a more interest-based and pragmatic policy path. The article concludes that the EU’s legitimacy debate has had a bearing on relations with Asia and, in particular, with ASEM. Importantly, and given the EU’s setbacks, some elements of the ‘EU’s way’ have proven successful in promoting democratic notions of legitimacy beyond the state.     

Technological intensity in manufacturing trade between ASEAN and the EU: challenges and opportunities

Asia Europe Journal - This article analyses trade flows EU-ASEAN, focusing on export performance and technological intensity, covering the years 2004–2016. The aim of this paper is to analyse...     

Fighting for the rule of law: civil resistance and the lawyers' movement in Pakistan

Pakistan, sometimes referred to as ‘the most dangerous place on earth’, is not typically thought of as a place where popular nonviolent resistance could take root, much less succeed. Citizen apathy, poor governance, and fear of regime repression and terrorist violence are barriers to effective civic activism inside Pakistan. Yet, over the past two years, Pakistan's authoritarian ruler was ousted and its independent judiciary restored following a massive grassroots campaign led by lawyers. The ‘men in black’, whose insistence on the rule of law and embrace of nonviolent struggle captured the hearts and minds of millions of Pakistanis, helped transform the country's political landscape in unexpected ways. The successes tallied by this nonviolent movement, this article will argue, can be attributed to the large-scale non-cooperation and civil disobedience that pressured two successive Pakistani regimes – one authoritarian and one democratic – to yield to its demands. Unity and mass participation, nonviolent discipline, and the creative use of nonviolent tactics were three key ingredients of success. While instability and Islamist extremism continue to plague Pakistan, the lawyers' movement highlights the steadily growing strength of Pakistani civil society have a potential to influence democratic change in the country.     

State of the world 2018: democracy facing global challenges*

This article analyses the state of democracy in the world in 2018, and recent developments building on the 2019 release of the V-Dem dataset. First, the trend of autocratization continues and 24 countries are now affected by what is established as a “third wave of autocratization”. Second, despite the global challenge of gradual autocratization, democratic regimes prevail in a majority of countries in the world (99 countries, 55%) in 2018. Thus, the state of the world is unmistakably more democratic compared to any point during the last century. At the same time, the number of electoral authoritarian regimes had increased to 55, or 31% of all countries. Third, the autocratization wave is disproportionally affecting democratic countries in Europe and the Americas, but also India’s large population. Fourth, freedom of expression and the media, and the rule of law are the areas under attack in most countries undergoing autocratization, but toxic polarization of the public sphere is a threat to democracy spreading across regimes. Finally, we present the first model to predict autocratization (“adverse regime transitions”) pointing to the top-10 most at-risk countries in the world.     

Comparing regional organisations in global multilateral institutions: ASEAN, the EU and the UN

Structural change brought about by the end of the Cold War and accelerated globalisation have transformed the global environment. A global governance complex is emerging, characterised by an ever-greater functional and regulatory role for multilateral organisations such as the United Nations (UN) and its associated agencies. The evolving global governance framework has created opportunities for regional organisations to participate as actors within the UN (and other multilateral institutions). This article compares the European Union (EU) and Association of Southeast Asian Nations (ASEAN) as actors within the UN network. It begins by extrapolating framework conditions for the emergence of EU and ASEAN actorness from the literature. The core argument of this article is that EU and ASEAN actorness is evolving in two succinct stages: Changes in the global environment create opportunities for the participation of regional organisations in global governance institutions, exposing representation and cohesion problems at the regional level. In response, ASEAN and the EU have initiated processes of institutional adaptation.     

俄罗斯的大国法治建设:现状、难题及发展趋势

俄罗斯正在积极建设具有俄罗斯特色的大国法治,建立强有力的国家权力,完善市场经济法律制度,重建收入分配制度,统一法治思想.由于俄罗斯的大国特性,无论是在法律制度上,还是在法治思想上,俄罗斯法治建设的难题还很多.当前"梅普组合"权力机制为俄罗斯法治建设的发展提供了契机,大国内部治理机制的法治化得到加强,与其他大国之间的经贸往来和制度建设不断扩大,新的理性而积极的法律意识有所增强.但俄罗斯要实现统一有效的大国法治目标并不容易,"梅普组合"政权面临着许多困难和挑战.     

The EU and China in a Polycentric World:The Case of Afghanistan

A Polycentric Post-Hegemonic World The world is becoming polycentric.The unipolar moment is fading,as the U.S.President himself has recognized.The relative decline of the U.S.and the EU is not the consequence of the current financial crisis but of the rise of China,India and Brazil and of a number of middle powers.As the EUISS ESPAS Report on Global Trends 2030 predicts,there will be a plurality of actors,and no single world power will play a hegemonic role.Polycentrism will be accompanied by an economic power shift toward Asia,where over half of the world's population will be concentrated by 2030.     

The EU and the Global Order: Contingent Liberalism

Abstract

Politicians, diplomats and analysts commonly assume that commitment to multilateralism and liberal norms is part of the EU’s very DNA. Increasingly, however, the EU’s commitment to the liberal global order is more selective. We demonstrate the shift to a more contingent liberalism by examining the EU’s recent record in relation to four different challenges: international trade; US leadership; Russian actions in the eastern neighbourhood; and security in the Middle East. We speculate on what this may portend for the EU’s self-identity, European interests and the integrity of the prevailing global order.     

The unexpected EU leadership on landmines: the influence of the Ottawa Convention on the EU

Abstract

The European Union (EU) has led international politics on antipersonnel landmines (APLs) for a decade now, and its foreign policy in this domain is perceived as a success story. Nevertheless, at the beginning of the negotiations that led to the Ottawa Convention, the EU looked unable to play any relevant part. This article addresses the emergence of the EU's foreign policy on APLs by arguing, in a second image-reversed way, that the corresponding international regime has deeply influenced the EU. It has changed Member States' and EU institutions' preferences, and it has empowered pro-Ottawa and pro-integration actors. This article explores the intra-EU conditions that have facilitated this influence and the way in which the regime itself has shaped them.