Introduction

The concept of smart power, first articulated by Joseph Nye in the early 2000s, has become a foundational framework for understanding how states navigate an increasingly complex global system. While traditional models of power focus either on coercive (military) or persuasive (soft power) mechanisms, smart power integrates both, combining military, economic, cultural, and diplomatic tools in a flexible, strategic approach to achieve state objectives. As the global order shifts toward multipolarity, the role of smart power becomes more critical. In a world shaped by hybrid threats, cyber warfare, and rapid technological advances, the ability to wield smart power is not just essential for global leadership but also for national resilience. 

This article explores the theoretical foundations of smart power, with a particular focus on the United States as the most successful example of its application. It critically assesses the U.S. approach and compares it with the strategies of other key global players, offering a comprehensive analysis of the strengths and limitations of each approach.

Theoretical Framework: Ingredients of Smart Power in International Relations

Smart power blends the foundational ideas of realism, liberalism, and constructivism. Realists argue that coercive power—particularly military and economic strength—remains crucial for influence. Liberal institutionalists assert that states must build international cooperation through norms, laws, and institutional frameworks. Constructivists highlight the role of identity, legitimacy, and perceptions in shaping global interactions. Smart power synthesizes these theories, combining hard elements of coercion with soft tools of diplomacy, cultural influence, and multilateral cooperation, aiming to secure legitimacy for state actions.¹

The key ingredients of smart power include material power, diplomatic finesse, cultural diplomacy, narrative control, hybrid agility, and technological prowess. Together, these elements form a state’s ability to wield influence effectively and flexibly, engaging with both coercion and persuasion while adapting to the changing dynamics of international relations.

Smart Power in Practice: The United States

The United States has long exemplified the effective use of smart power, a strategic approach that integrates both hard power (military and economic coercion) and soft power (diplomatic, cultural, and normative influence) to pursue national interests. This model, as articulated by Joseph Nye, has been essential for the U.S. in navigating an increasingly multipolar world. The U.S. has leveraged its vast military capabilities, economic dominance, and cultural influence to shape the global order, but the efficacy of its smart power strategy has been contingent upon its ability to blend coercive force with the promotion of democratic values and multilateral cooperation.

Historically, the United States’ smart power strategy has hinged on a combination of hard and soft elements. The Marshall Plan of 1948, which provided economic aid to post-war Europe, is one of the most iconic examples of U.S. smart power in action.² By combining economic assistance with the promotion of democratic governance, the U.S. successfully shaped the post-war order and bolstered its influence over Western Europe.³ Similarly, during the Cold War, the U.S. demonstrated a masterful use of both military deterrence and diplomatic engagement, particularly in resolving the Cuban Missile Crisis through a delicate balance of threats and negotiations.⁴ These instances underscore the potential of smart power to integrate hard and soft elements in pursuit of long-term strategic objectives.

In recent decades, the U.S. has continued to adapt its smart power strategy to confront new geopolitical challenges. One of the most notable contemporary examples is the Pivot to Asia, which aimed to counter China’s rising influence in the Asia-Pacific region. This strategy combined increased diplomatic engagement with regional allies, economic partnerships through initiatives like the Trans-Pacific Partnership (TPP), and military reinforcement through strategic alliances with countries such as Japan and South Korea.⁵ The Pivot to Asia highlighted the U.S.’s ability to use both soft power, through trade agreements and diplomatic outreach, and hard power, through military presence and security partnerships, to assert its influence in a changing global landscape.

Moreover, the United States’ cultural diplomacy has been a central pillar of its soft power. Institutions such as Hollywood, Silicon Valley, and prestigious universities have long been vehicles for projecting American values of freedom, innovation, and democracy worldwide. These institutions not only shape global perceptions of the U.S. but also provide a platform for fostering global networks of influence. A particularly significant example of U.S. soft power is the PEPFAR (President’s Emergency Plan for AIDS Relief) initiative, which was launched in 2003. PEPFAR is one of the largest global health initiatives aimed at combating HIV/AIDS and has provided lifesaving treatment to millions of people, particularly in sub-Saharan Africa. This initiative, blending humanitarian aid with diplomatic engagement, exemplifies the U.S. use of smart power to promote health, human rights, and global security, reinforcing its image as a leader in global health.

However, the U.S. has not been immune to criticisms of inconsistency and hypocrisy in its application of smart power, particularly when military interventions and economic sanctions have contradicted the values it promotes. The War on Terror, for instance, raised questions about the ethical limits of U.S. power, as its actions in Iraq and Afghanistan were seen by many as undermining its moral authority.⁶ Such contradictions reveal that the success of smart power is contingent upon maintaining a balance between coercion and legitimacy.

The rise of new technologies, such as cybersecurity and artificial intelligence (AI), has further transformed the U.S.’s approach to smart power. In the digital age, the U.S. has embraced the strategic use of information warfare, technological innovation, and digital diplomacy to assert its global influence. As a leader in both the development and regulation of emerging technologies, the U.S. has sought to shape the global rules of the digital economy, from data privacy laws to cybersecurity norms.⁷ This demonstrates the increasing importance of technological diplomacy as an extension of soft power, enabling the U.S. to project influence in the digital realm without resorting to traditional military force.

However, the deployment of smart power remains fraught with challenges. One significant concern is the legitimacy gap, where the use of coercion, such as economic sanctions or military interventions, undermines the credibility of U.S. values. For example, U.S. actions in the Middle East, framed as efforts to promote democracy, have often led to instability and human rights abuses, creating a disconnect between its professed values and its actions on the ground.⁸ Additionally, the rise of China’s Belt and Road Initiative (BRI), which offers economic investments without the political conditionalities typically associated with Western aid, presents a challenge to the U.S.’s ability to use economic power as a tool of smart power.⁹ As China’s influence expands, the U.S. may need to recalibrate its smart power strategy to maintain its competitive edge in the face of alternative models of statecraft. 

The United States’ use of smart power remains one of the most sophisticated and adaptable strategies in international relations. By blending hard and soft power, the U.S. has managed to assert its global leadership while also responding to emerging threats and challenges. Yet, as the global order continues to evolve and new powers like China gain influence, the U.S. will need to refine its approach to smart power, ensuring that it remains a credible and ethical leader in a multipolar world. The future of smart power will depend on the U.S.’s ability to navigate the complexities of global diplomacy while maintaining the legitimacy and moral authority that have been central to its influence in the 21st century.

Comparative Analysis: Smart Power Beyond the U.S.

While the U.S. represents a case of comprehensive smart power deployment, other global players employ this strategy in different ways, shaped by their unique geopolitical positions and priorities.

China: China’s smart power strategy relies heavily on geoeconomic tactics. The Belt and Road Initiative (BRI), which seeks to build infrastructure and create economic linkages across Asia, Africa, and Europe, is a prime example of China’s use of economic influence to extend its power.¹⁰ The establishment of Confucius Institutes worldwide, aimed at promoting Chinese language and culture, further demonstrates the importance of soft power. However, China’s use of coercion in regional disputes—particularly in the South China Sea—and its “wolf warrior diplomacy” have often undermined its soft power, demonstrating the risks of overemphasizing hard power in a global context.^{11 12}

European Union: The EU exemplifies a form of soft power through its regulatory influence, particularly in areas such as data protection and environmental policies. The EU has been successful in shaping global standards, promoting human rights, and pushing for environmental sustainability.¹³ However, its lack of a unified military force and dependence on NATO for security reduce its strategic autonomy, limiting the EU’s ability to deploy smart power in a more balanced way.¹⁴ The EU’s role in managing the migration crisis and its regulatory leadership in technology—such as General Data Protection Regulation (GDPR)—have demonstrated the EU’s capacity to influence the global agenda.¹⁵

Japan: As a middle power, Japan has embraced technological diplomacy and soft power to increase its global influence. Innovations in robotics, green technology, and its leadership in multilateral diplomacy, particularly within the United Nations and World Trade Organization (WTO), elevate its global standing.¹⁶ However, Japan’s pacifist constitution and reliance on U.S. security agreements restrict its ability to project power independently, thus limiting its overall smart power strategy.¹⁷

South Korea: South Korea’s smart power strategy combines cultural diplomacy, particularly through the global popularity of K-pop, with robust digital diplomacy. Yet, South Korea’s reliance on the U.S. for security and its ongoing geopolitical tensions with North Korea restrict its flexibility, making its approach to smart power more reactive than proactive.¹⁸

Conclusion: The Future of Smart Power in a Multipolar World

As multipolarity increases and emerging powers such as China, Russia, and regional players gain influence, the importance of smart power will only grow. While the U.S. must evolve its strategy to maintain its leadership position, smaller states can use smart power to level the playing field and assert their influence in global affairs. The ability to combine hard and soft power—rooted in legitimacy and innovation—will determine success in contemporary statecraft.

1.  Nye, Joseph S. The Future of Power. PublicAffairs, 2011. ↩︎
2.  Nye, Joseph S. “Smart Power: The U.S. Experience.” Harvard University Press, 2015. ↩︎
3.  Nye, Joseph S. Soft Power: The Means to Success in World Politics. PublicAffairs, 2004. ↩︎
4.  Kennedy, Robert F. “The Cuban Missile Crisis: A Memoir.” The New York Times, 1962. ↩︎
5. U.S. Department of State. “Pivot to Asia: U.S. Foreign Policy in the Asia-Pacific Region.” 2011. ↩︎
6. Chomsky, Noam. “Hegemony or Survival: America’s Quest for Global Dominance.” Metropolitan Books, 2003 ↩︎
7. Friedman, Thomas. “Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations.” Farrar, Straus, and Giroux, 2017. ↩︎
8. Mearsheimer, John J., and Walt, Stephen M. “The Israel Lobby and U.S. Foreign Policy.” Farrar, Straus, and Giroux, 2007. ↩︎
9. Belt & Road Initiative. “A New Silk Road: The Economic Power of China.” 2013. ↩︎
10. Ibid. ↩︎
11. Li, Xiaoyang. “Confucius Institutes: A Tool of China’s Soft Power.” Journal of Chinese Political Science, 2017. ↩︎
12. Callahan, David. “The China Model: Political Meritocracy and the Limits of Democracy.” Oxford University Press, 2020. ↩︎
13. Smith, Karen. “The European Union and the World: The External Relations of the European Union.” Oxford University Press, 2011. ↩︎
14. Keukeleire, Stephan, and Delreux, Tom. “The EU’s Foreign Policy: A Political Economy Approach.” Palgrave Macmillan, 2014. ↩︎
15. European Commission. “General Data Protection Regulation (GDPR): Impact and Regulations.” 2018. ↩︎
16. Shinoda, Tetsuro. “Japan’s Foreign Policy and Its Global Influence.” Japan Review of Political Science, 2016. ↩︎
17. Funabashi, Yoichi. “The Pacific Alliance and Japan’s Foreign Policy.” Asian Survey, 2015. ↩︎
18. Sung, Yoonhyuk. “South Korea’s Digital Diplomacy and the Role of K-Pop.” Journal of Korean Studies, 2020. ↩︎

Featured/Headline Image Caption and Citation: U.S. Power, Image sourced from European Council on Foreign Relations | CC License, no changes made

The Arab Oil Embargo of 1973 showed the Western World just how dependent they had become on a globalized energy market, and how easily this dependence could be weaponized. With oil prices having increased 300%, entire populations faced blackouts, extending even to the White House Christmas Tree whose lights remained unlit. Fifty years on, the world is facing a similar scenario. Energy has again been weaponized on both the demand- and supply-side: Russia has limited gas exports to Europe, and Europe has banned the import of Russian oil and coal. The developing conflict in the Middle East could bring further disruption to global markets.

In the fifty years since the Embargo, policymakers have understood the need to prevent history from repeating itself. In 1973, Nixon launched Project Independence, a commitment to develop “the potential to meet our own energy needs without depending on any foreign energy sources.”¹ In a similar move, Britain started drilling oil and gas from the UK Continental Shelf in the North Sea, becoming a net exporter of energy in the 1980s. However, tighter regulation, higher taxes, and political pressure resulted in production peaking in 1999 and falling precipitously since. By 2005, Britain had again become a net importer of both oil and gas.²

This trend has had, and will continue to have, grave impacts for national defense. A reliable source of energy is required to keep inflation and the economy stable, the bedrock of political power. Oil and gas have very few substitutes: while electricity can be generated through other means, oil has a virtual monopoly as fuel for transportation, whilst gas dominates in heating and boiling. This makes a nation’s individual economy highly vulnerable to energy shocks, placing importers at the mercy of nations able to inflict one. Given that over half the world’s gas reserves are located in Russia, Iran, and Qatar, this is not a position any Western country wants to be in.³ Moreover, beyond protecting one’s economy, reliable sources of oil and gas in defense contexts are necessary for projecting hard power. Domestic manufacturing requires large amounts of energy, as does military deployment. Gilbert Metcalf’s study on the Economics of Energy Security plainly stated that “energy is an integral part of military readiness and a critical military input,” looking to the wars in Iraq and Afghanistan as clear indicators of the importance of maintaining fuel supply.⁴

Energy security is therefore vital for national security. Following the International Energy Agency, this article will treat it as the product of short-term and long-term security. In the short term, an energy system must be able to respond quickly to changes in supply and demand, avoiding shortages. In the long term, a country must have sufficient investment and capacity to meet its energy needs. The UK, as has been made clear over the last two years, has neither. Following the Russian invasion of Ukraine, energy prices soared whilst oil and gas production continued to fall. There is an obvious argument to be made that the best way of reaching energy security, whilst also being able to pursue climate goals, is through investment in renewables and nuclear. Indeed, these already constitute 35.8% of total electricity generation, projected to rise to half by 2025. However, over the next decade, relying on renewables and nuclear is infeasible: they take many years to install, electric vehicles are far from being ubiquitous, and gas still predominates in electricity and heating. To be clear, climate goals are of paramount importance. The UK should absolutely seek to phase out coal and limit oil as quickly as possible, and the gradual phasing out of natural gas should also take place eventually. However, to safeguard national security in the short-term, the UK needs to promote North Sea gas, as there are currently no better substitutes.

Crucially, this article does not advocate becoming self-sufficient in oil. Given oil is a fungible commodity whose price is determined in global markets, self-sufficiency in oil does virtually nothing for energy security—oil can always be bought from other countries, and supplying more North Sea oil would do nothing to lower prices as it constitutes such a small portion of total supply. To illustrate: in 2008, the UK was self-sufficient in petroleum products but was still affected by a global spike in prices, resulting in protests against the high costs of petrol. Achieving energy security with oil thus depends on breaking oil’s monopoly as a fuel source through the adoption of electric vehicles, and ensuring a multitude of suppliers so that none can create disruption. Back in 1913, Winston Churchill recognised that “safety and certainty in oil lie in variety, and variety alone.” Having an adequate stockpile of oil and petroleum products is also important, as it can be used to alleviate shortages in the very short term. Nonetheless, there is still no need for increased oil production as stockpiles can be accumulated through buying oil on open markets.

In contrast, the economics of natural gas are markedly different. Liquified Natural Gas (LNG) is a fungible commodity as it can be shipped around the world, with most of the UK’s LNG coming from the US and Qatar. However, the majority of gas into the UK comes via European interconnectors and pipelines from the North Sea, where the quantities and prices are agreed in long-term contracts and cannot be diverted. Whilst this arrangement makes supply immune to fluctuations in global markets, it makes natural gas especially vulnerable to hostile states restricting supply, as happened with Russia. Even relying on gas from the EU carries its own security problems. The UK is in a worse negotiating position post-Brexit, with a weak pound making imports costlier, and the EU have restarted stockpiling gas, which restricts supplies to the UK. Furthermore, the EU faces accusations that its three major energy companies (EDF, E.ON and RWE) do not respond to market forces, which resulted in acute gas shortages in the UK in 2006.⁵ By increasing gas production in the North Sea, the UK can ensure future supply at low prices that isn’t subject to interference by other states.

There are also environmental arguments for increasing the UK’s gas output. When faced with shortages of oil and gas, as in 1973, 2006, and 2022, or if cloudy weather and slow winds reduce output from renewables, as happened in 2021, the UK needs to find additional fuel elsewhere. When energy prices are high enough, the West often turns to coal—this was indeed the UK’s primary response in 2006 and Germany’s in 2022. Moreover, even with demand and supply unchanged, all the gas that the UK produces itself can displace the LNG that would otherwise be imported. This lowers carbon emissions as LNG’s Scope 1 and Scope 2 emissions (produced through drilling, refinement and transportation) are four times greater than those of North Sea gas, making total emissions from North Sea gas 18% lower overall. In addition, depleted oil and gas fields in the North Sea make perfect sites for Carbon Capture and Storage (CCS), and the revenue earned from issuing gas licenses and taxing energy companies can be invested in the green transition. From 2008 to 2012, the UK government earned roughly £10bn a year from North Sea oil and gas. This stands in stark contrast to the 2023 offshore wind auctions which did not have a single bidder and thus made a loss.

In summary, the UK government should promote North Sea gas to strengthen national security and help the environment. Expanded licensing, less punitive taxes, and fewer regulatory hurdles to drilling would all boost the UK’s gas output with the aim of once again making the UK a net exporter of energy. By ending dependence on gas from abroad and reducing reliance on oil, the UK insulates its economy from shocks and safeguards national defense. Moreover, since North Sea gas has fewer emissions than LNG, oil, or coal, can kickstart CCS, and generates revenue that can be invested in the green transition, this shift has positive environmental benefits. In the long run, the UK must transition to a zero-carbon economy powered by nuclear energy and renewables, but this utopian ideal is far off. Over the next decade, whilst green energy is built up and transport is electrified, we still need to meet our demand for energy whilst limiting emissions as far as possible. Self-sufficiency in natural gas is the solution.

References

Featured/Headline Image Caption and Citation: Photo of the Troll A platform taken from the SouthEast. The Troll gas field is the largest gas discovery made in the North Sea, Photo by Øyvind Knoph Askeland | Image sourced from Wikimedia Commons | CC License, no changes made

1. Quoted in Metcalf, Gilbert E. 2014. “The Economics of Energy Security.” Annual Review of Resource Economics 6: 155-174. https://doi.org/10.1146/annurev-resource-100913-012333. ↩︎
2. Abdo, Hafez, and Reza Kouhy. 2016. “Readings in the UK Energy Security.” Energy Sources, Part B: Economics, Planning, and Policy 11, no. 1: 18-25. doi:10.1080/15567249.2011.588669. ↩︎
3. Bird, Jenny. 2007. “Energy Security in the UK: An ippr FactFile.” Institute for Public Policy Research. Accessed May 3^rd 2024. https://pmt.physicsandmathstutor.com/download/Geography/A-level/Notes/WJEC/Energy-Challenges-and-Dilemmas/Energy%20Report.pdf. ↩︎
4. Metcalf. “The Economics of Energy Security.” ↩︎
5. Bird. “Energy Security in the UK: An ippr FactFile.” ↩︎

Introduction

Since its formation, one of the main aims of the European Union is to preserve unity among its member states and strengthen their cooperation. Lately, this task has become increasingly difficult with some of the members acting according to their own rules, violating the essential principles of the EU. It seems even more challenging for the European authorities to ensure order in the Union. For several years now, Poland counts among the countries that are currently in dispute with EU institutions. It appears that the conservative Polish government and its ruling pose a threat to the integrity of the EU. Additionally, they seem to be trying to gain more sovereignty and control over Poland’s position within the Union. The EU attempts to restore order, punish Poland, and urge it to obey the EU law, as it is obliged to do so as a member state. However, the fight seems to be complicated and tedious with the prolonged legal process and the necessity of involvement of all the EU member states in decision-making. 

Rule of law violation 

The rule of law represents one of the fundamental values of the European Union and is stated in Article 2 of the Treaty on European Union. It is also important for the “functioning of the EU as a whole, for example, with regard to the Internal Market; cooperation in the area of Justice and Home Affairs.” The European Commission, together with other institutions and the member states, supervises and guarantees the observance of EU law, values, and principles.^[1]

In Poland, the rule of law crisis developed after the victory of the conservative-nationalist party Law and Justice (PiS) in the 2015 parliamentary election. According to Vock, the goal of the party was to put an end to persisting communist influence on the judiciary. With the majority in the government, PiS succeeded in enacting several reforms, including changes in the Polish judiciary system. The party appointed five new judges into the Constitutional Tribunal, which decides on the constitutionality of laws, and consequently, assured its control over the court. After the judiciary reforms, the independence of the Constitutional Tribunal has been questioned.[2] “Polish law allows to subject ordinary court judges to disciplinary investigations, procedures and ultimately sanctions, on account of the content of their judicial decisions.”[3] PiS started to tilt other Polish courts to its side which graduated with the foundation of the Disciplinary Chamber as a body of the Supreme Court. The Chamber’s task is “to sanction judges, including for the content of their rulings. It can impose penalties ranging from pay cuts to dismissal.” [4] The independence of the judiciary is embedded in the rule of law, and therefore it is considered to be a violation of EU core values. 

The EU’s response

The alarming changes in the judiciary system in Poland led the European Union to take action. As Poland was failing in fulfilling its obligations towards the EU, the European Commission opened a dialogue with the Polish government in January 2016 under the Rule of Law Framework. Since there was no progress in the situation and with the pressure of some of the MEPs, the Commission activated the Article 7 of Treaty on EU in December 2017 which could suspend some of the EU rights from Poland.^[5] However, in order to take such measures, unanimity of all member countries is required, being likely to present an obstacle. 

In October, the Polish Constitutional Tribunal announced that some regulations and their interpretation through the European Court of Justice (ECJ) are not in compliance with the Polish constitution, and therefore, are not legally binding for Poland. With this, the Polish government challenged the supremacy of EU law and values.^[6] The statement was seriously condemned by the European Parliament with the urge on the Commission to defend the Union. The Parliament stressed that Polish Constitutional Tribunal had converted “into a tool for legalizing the illegal activities of the authorities”.^[7] Recently, the ECJ ruled that “the ability of the Polish government to appoint and remove judges from trials is in violation of EU law.”^[8]

The Union accuses PiS of politically interfering in the judicial system and violating EU law. The European Commission endeavors to discipline Poland by withholding the EU coronavirus recovery plan, including €36 billion in grants as the Polish investment proposal has not yet been approved.[9] The EU efforts to stop Poland’s behavior were also supported by the new “rule of law” mechanism that could detain funds from member states that do not comply with their commitments towards the EU. Subsequently, Poland and Hungary appealed to the ECJ which is bound to review the subject first.[10] In October, the ECJ ordered Poland a daily fine of one million euros for not fulfilling the EU obligations.[11] Polish prime minister Morawiecki criticized the use of financial blackmail and the threats of sanctions, especially in the midst of the COVID-19 pandemic.[12] The dispute between EU institutions and the Polish government continues and the results of the battle appear to remain unclear. 

The seemingly controlled Polish judiciary by the conservative government is also reflected in the everyday life of Polish citizens. According to the European Parliament, the recent strict abortion laws in Poland could be considered an example of the “political takeover of the judiciary and the systemic collapse of the rule of law.”^[13]

Conclusion

Amid the pandemic, the European Union is being forced to handle another problem concerning its unity. Poland, an EU member state, is violating the rule of law and the core values of the EU which upsets the rest of the members and dismantles the European cohesion. The Polish government ruled by the Law and Justice Party fills EU institutions with indignations by their desire for more freedom and sovereignty within the EU. The controversial judiciary reforms that undermine the independence of the judiciary and interfere with the EU law, and the Constitutional Tribunal’s recent condemnation of EU supremacy, are some of the main reasons that make the EU uneasy about Poland. European institutions threaten Poland with sanctions, financial holding, and other possible disadvantages in order to stop the violations. Nevertheless, the means appear to be not yet sufficient enough to prevent the Polish government to revoke its efforts. The political power over the Polish judiciary might not be dangerous only for the EU, but also for the citizens of Poland who face newly adopted laws, such as the strict law on abortion. The future of this dispute remains uncertain. However, the EU should probably enforce more efficient measures to prevent other violations that could threaten its future unity. The question arises whether it is the EU’s insufficient means or lack of determination that the progressive results are still absent. 

References:

^[1]“Rule Of Law: European Commission Launches Infringement Procedure To Protect Judges In Poland From Political Control,” European Commission, Press Release, April 3, 2019. https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1957.

^[2] Ido Vock, “Dispatch: Poland Is No Longer A Democracy, Claim Rule Of Law Activists,” The New Statesman, November 5, 2021, https://www.newstatesman.com/world/europe/2021/11/dispatch-polands-rule-of-law-crisis-deepens-with-fears-for-its-democracy.

^[3] „Rule Of Law“, European Commission.

^[4] Vock, “Dispatch: Poland No Longer a Democracy.”

^[5] „Rule Of Law“, European Commission.

^[6] Benedikt Gremminger, “Rule Of Law Crisis In Poland – What Comes Next?” The New Federalist, November 28, 2021, https://www.thenewfederalist.eu/rule-of-law-crisis-in-poland-what-comes-next?lang=fr.

^[7]“Poland: Constitutional Tribunal Is Illegitimate, Unfit To Interpret Constitution,” European Parliament, Press Release, October 21, 2021. https://www.europarl.europa.eu/news/en/press-room/20211015IPR15016/poland-constitutional-tribunal-is-illegitimate-unfit-to-interpret-constitution. 

^[8] “EU’s top court says Polish rules on appointing judges violate EU law,” DW, November, 16, 2021. https://www.dw.com/en/eus-top-court-says-polish-rules-on-appointing-judges-violate-eu-law/a-59833245.

^[9] Piotr Skolimowski, “Poland, Hungary Likely to Miss EU Recovery Funds in 2021,” Bloomberg, December 7, 2021, https://www.bloomberg.com/news/articles/2021-12-07/poland-likely-to-miss-out-on-eu-pandemic-aid-payments-this-year?fbclid=IwAR2OrHGOeh2sw1AO9gFAv7T3pgE1E06sjbhp9Gp7YnE-4lq58IuEizQuJDE.

^[10] “European Court Of Justice Likely To Dismiss Poland, Hungary ‘Rule-Of-Law’ Challenge,” DW, December 2, 2021. https://www.dw.com/en/european-court-of-justice-likely-to-dismiss-poland-hungary-rule-of-law-challenge/a-59995286.

^[11] Gremminger, „Rule Of Law Crisis.“

^[12] “Europe’s Week: Poland In Spotlight Over EU Rule Of Law,” Euronews, Updated October 25, 2021, https://www.euronews.com/2021/10/22/europe-s-week-poland-in-spotlight-over-eu-rule-of-law.

^[13] “Poland: No More Women Should Die Because Of The Restrictive Law On Abortion,” European Parliament, Press Release, November 11, 2021, https://www.europarl.europa.eu/news/en/press-room/20211108IPR16844/poland-no-more-women-should-die-because-of-the-restrictive-law-on-abortion.

Works Cited:

1. DW. “European Court Of Justice Likely To Dismiss Poland, Hungary ‘Rule-Of-Law’ Challenge.” December 2, 2021. https://www.dw.com/en/european-court-of-justice-likely-to-dismiss-poland-hungary-rule-of-law-challenge/a-59995286. 
2. DW. “EU’s top court says Polish rules on appointing judges violate EU law.” November, 16, 2021. https://www.dw.com/en/eus-top-court-says-polish-rules-on-appointing-judges-violate-eu-law/a-59833245. 
3. Euronews. “Europe’s Week: Poland In Spotlight Over EU Rule Of Law.” Updated October 25, 2021. https://www.euronews.com/2021/10/22/europe-s-week-poland-in-spotlight-over-eu-rule-of-law. 
4. European Commission. “Rule Of Law: European Commission Launches Infringement Procedure To Protect Judges In Poland From Political Control.” Press Release. April 3, 2019. https://ec.europa.eu/commission/presscorner/detail/en/IP_19_1957.      
5. European Parliament. “Poland: Constitutional Tribunal Is Illegitimate, Unfit To Interpret Constitution.” Press Release. October 21, 2021. https://www.europarl.europa.eu/news/en/press-room/20211015IPR15016/poland-constitutional-tribunal-is-illegitimate-unfit-to-interpret-constitution. 
6. European Parliament. “Poland: No More Women Should Die Because Of The Restrictive Law On Abortion.” Press Release. November 11, 2021. https://www.europarl.europa.eu/news/en/press-room/20211108IPR16844/poland-no-more-women-should-die-because-of-the-restrictive-law-on-abortion. 
7. Gremminger, Benedikt. “Rule Of Law Crisis In Poland – What Comes Next?” The New Federalist, November 28, 2021. https://www.thenewfederalist.eu/rule-of-law-crisis-in-poland-what-comes-next?lang=fr.  
8. Skolimowski, Piotr. “Poland, Hungary Likely to Miss EU Recovery Funds in 2021.” Bloomberg, December 7, 2021. https://www.bloomberg.com/news/articles/2021-12-07/poland-likely-to-miss-out-on-eu-pandemic-aid-payments-this-year?fbclid=IwAR2OrHGOeh2sw1AO9gFAv7T3pgE1E06sjbhp9Gp7YnE-4lq58IuEizQuJDE. 
9. Vock, Ido. “Dispatch: Poland Is No Longer A Democracy, Claim Rule Of Law Activists.” The New Statesman, November 5, 2021. https://www.newstatesman.com/world/europe/2021/11/dispatch-polands-rule-of-law-crisis-deepens-with-fears-for-its-democracy. 

On December 30, 2020, the European Union (EU) and China announced that they concluded the Comprehensive Agreement on Investment (CAI), a long-awaited deal that would provide the EU with greater access and a “more level playing field” in the Chinese market.^[1] However, the announcement immediately drew criticism from scholars, civil society groups, and Members of the European Parliament (MEP) for failing to secure concessions from China on human rights in light of its recent string of high-profile transgressions.^[2] Hastened to a conclusion by the six-month German Presidency of the Council, the CAI’s controversy exemplifies the pattern of the EU’s cautious approach to human rights in China.. This paper argues that the bloc’s disinclination for a tougher line on China is largely the result of local political elites eager to preserve their own bilateral economic interests with Beijing, with pressure exerted by Member States such as Hungary and Greece involved with the Belt and Road Initiative (BRI), and pressure exerted by Germany, which seeks to preserve access to the Chinese market for its powerful export sector. 

The self-interest of Member States involved with the BRI and the related 17+1 regional grouping in Central and Eastern Europe (CEE) have undermined the EU’s effort to hold China accountable for its human rights abuses. The BRI is a large-scale Chinese investment program, launched in 2012, that nominally aims to boost Eurasian economic relations and streamline the flow of trade. Yet, for sub-initiatives such as the 17+1 group, the very practice of opening a new diplomatic front that distinguishes the different needs and interests of Eastern and Western Europe relies on exploiting existing divisions within the region.^[3] As Richard Q. Turcsányi outlines, the roots of the rapprochement between CEE Member States with China are a product of the enduring socio-economic disparities within the EU.^[4] In particular, there is the lasting impression that more could have been done by Western Europe in response to key recent crises such as 2007-2008 financial crisis, the succeeding Eurozone crisis, and the 2015 migrant crisis.^[5] Of the 11 EU Member States that have signed up to the 17+1 framework, a key factor is that “there is a widespread feeling (substantiated and deserved, or not) that they are still treated as second-class citizens in Brussels” and that the policies of the Western-dominated bloc often leaves them behind.^[6] These conditions made the initial prospect of Chinese capital with lax rules and regulations attractive to CEE leaders. For Brussels, in contrast, Chinese-backed infrastructure projects and acquisitions throughout the region often lack transparency and violate EU norms, giving rise to corruption.^[7] Prominent examples include the controversial construction of the Budapest-Belgrade railway and the sale of a majority stake in the strategic Greek port of Piraeus to a Chinese state-owned firm. In particular, China has shown an aptitude for connecting with local political elites and producing agreements with opaque procurement procedures (auctioning off contracts in a non-competitive manner), non-public documentation, and lax environmental standards that make them especially conducive to existing processes of state capture and cronyism. For many CEE states grappling with chronic corruption, these BRI infrastructure projects are especially problematic. In recent years, “public procurement became the most important payout channel enabling the allocation of state funds to government-friendly economic players,” reinforcing existing corruption cycles.^[8] In essence, Chinese investment is seen by many ruling parties as a way to funnel money to political allies in the private sector and strengthen their hold onto power.

In Hungary, the largely Chinese-financed Budapest-Belgrade high-speed railway represents the cornerstone of efforts by Prime Minister Orbán to cultivate closer ties with Beijing. Proposed back in 2013, the railway was to be the flagship project of the 17+1 framework and a milestone in Orbán’s “Eastern Opening” strategy, which defied Brussels by seeking greater investment flows from Russia and China.^[9] However, plagued by delays and ballooning costs, it became the target of a 2017 investigation launched by the EU into allegations that Hungary had broken EU laws on procurement as well as claims that the project was being pushed ahead despite its financial unviability.^[10] In 2018, after the EU concluded that only the Serbian portion of the railway was profitable and forced the Hungarian government to organize a public tender, the project came under further criticism both within and outside Hungary.^[11]It was revealed that one of the contracts was given to Lőrinc Mészáros, childhood friend and key ally of Prime Minister Orbán.^[12] To many, it did not come as a surprise. According to the 2020 European Commission (EC) Report on Hungary, the country had one of the highest instances of state contracts awarded with only a single bid with frequent “systemic irregularities” in the bidding process and clear preferential treatment of select firms.^[13] Furthermore, the railway’s staggering €3 billion price tag, the largest for an infrastructure project in Hungarian history, led critics to lambaste the economic feasibility of the project by pointing out that the proposed line fails to connect adjacent major cities along the route, leaving taxpayers to foot the bill for a transportation venture that offers them dubious benefits.^[14] Indeed, even the pro-Fidesz magazine Figyelő concluded in its investigation that the project’s debt would take some 2,400 years to pay off.^[15]

BRI investment has come to serve as a mechanism that exacerbates processes of corruption and democratic backsliding under Orbán’s regime.. The Budapest-Belgrade railway is just one example of the many infrastructure projects with Chinese financial backing that channel money to private Hungarian firms with murky ties to state actors and to Fidesz-loyalists as part of an expansive crony capitalist network designed to strengthen and perpetuate what has been called Orbán’s brand of “Hungarian Authoritarian Populism.”^[16] It is within this context that other projects similar to the Budapest-Belgrade railway in its questionable economic feasibility can be better understood, for they are first and foremost politically-motivated and implemented based on the availability of Chinese funding with “little focus on the demand of, or sustainability of, the services that they are intended to support.”^[17] For Orbán, these engagements with China have synergized particularly well with the anti-Brussels stance that he has come to adopt. Hungary, he argues, does not have to rely on the EU when it has powerful partners like Russia and China. In turn, deepening Sino-Hungarian ties under Orbán have translated to breaks with Brussels on the latter’s China policy. 

Greece’s situation bears large similarities to Hungary’s. Greece has also enjoyed large-scale BRI investments, most notably the acquisition of its port at Piraeus, a crucial centre of the country’s economic livelihood, by the Chinese state-owned shipping firm COSCO. China sought to capitalize on Greece’s continuing struggle with high debt pressure and its resentment of years of austerity imposed by Brussels. As a result, China’s involvement has been very welcome in Greece. According to an EC report, investment in Piraeus “led to an increase in freight traffic by 600% between 2009-2018 and is expected to lead to additional investment of close to 0.5% of Greek GDP and the creation of more than 30,000 new jobs by 2025.”^[18] Whereas the Piraeus port was shunned by EU investors who did not consider it an attractive prospect, China has already announced additional plans to boost local tourism by building new terminals for cruise ships, luxury hotels, shopping malls, and a large recreation park.^[19] Yet China’s involvement in Greece has also raised concerns similar to those in Hungary. In 2015, the EC found that Greece had granted unfair tax exemptions and preferential treatment to COSCO in breach of EU rules.^[20] In addition, the increasing rate of Chinese investment flowing into Greece has highlighted the country’s longstanding struggles with corruption. Local business leaders “perceive corruption to be rather widespread in public procurement (according to 72% of respondents), with 83% of businesses citing tailor-made specifications as a particular issue,” pointing to concerns of favoritism and clientelism in the disbursement of state funds.^[21]

For Member States like Hungary and Greece who have been on the receiving end of this Chinese “checkbook diplomacy,” they have demonstrated in return a proactiveness in tamping down on the discussion of what China considers “key sensitive issues.” The two states have been the most active in blocking EU statements that criticize China on human rights, with the use of their vetoes increasing significantly since 2015, according to interviews conducted with members of the European External Action Service (EEAS).^[22] For example, in July 2017, Hungary, Greece, and Croatia repeatedly blocked a joint 28-member statement recognizing the ruling reached by the Permanent Court of Arbitration in The Hague which declared China’s territorial claims in the South China Sea to be in violation of international law. It was later revealed that diplomats from the three countries had privately consulted with senior Chinese officials prior to the vote.^[23] In 2017, Greece blocked the EU joint statement to the UN Human Rights Council (UNHRC) in Geneva—marking the first time that a 28-member statement was not issued—on grounds that it constituted “unproductive criticism” and that individual bilateral talks outside of the UN were more appropriate.^[24]While these countries have officially denied that their vetoes were influenced by their bilateral investment relations with China, the empirical result as well as some off-the-record interviews make the picture very clear. To maintain good investment relations with China, some CEE Member States are willing to cater to Beijing’s demands on issues surrounding territory and human rights. For Greece, the contrast between an austere EU that has treated them as the Eurozone’s delinquent compared to an amenable China that was eager to invest was particularly stark. Paying greater respect to what China has declared its core interests did not seem like an unreasonable repayment of favors.^[25]

Germany, which has long exerted its influence to shape the EU’s relationship to China according to its interests, has also contributed to the bloc’s failure to hold China accountable for its human rights abuses.^[26] Since the start of China’s market-opening reforms in the late 1970s, Europe has benefited from lucrative access to China’s vast market and no country more so than Germany. As a result, the EU’s stance towards Beijing can be thought of as operating on a sort of Brussels-Berlin axis.^[27] Thus, the tensions and criticisms that have recently defined the Germany-China bilateral relationship are reflected in EU-China ties. 

In recent years, the EU has called for a redefinition of its China strategy in recognition that “China’s economic power and political influence have grown with unprecedented scale and speed, reflecting its ambitions to become a leading global power.”^[28] In its high-profile 2019 report “EU-China – A Strategic Outlook” which largely formed the basis of the 2020 CAI, it described China as simultaneously an important “cooperation partner” with whom a more reciprocal relationship needs to be reached and a “systemic rival promoting alternative models of governance.”^[29] The report exemplified the balancing act that EU leaders have tried to sustain for many years, a consensus that is coming under increasing strain as China’s authoritarian rule becomes further entrenched and its human rights abuses come more to light. The result is a disjointed, mixed message about where EU priorities lie. Even the “tougher line” which some media outlets characterized the new approach concerned only the economic dimension. The EU is keen to address longstanding frustrations about the imbalanced trade relationship and called for China to end its practices of “preserving its domestic market for its champions, shielding them from competition through selective market opening,” placing restrictions on investment, and forcing the transfer of technologies by EU firms wishing to do business in China.^[30] However, while the label “systemic rival” dominated the headlines, in reality the 2019 report merely drew attention to the “deterioration” of rights in Xinjiang and urged China to respect “the high degree of autonomy enshrined in the Hong Kong Basic Law.”^[31] Similarly, the 2020 CAI  secured only from China a “commitment to make continued and sustained efforts to pursue ratification of the ILO fundamental Conventions on forced labor.”^[32] In both cases, there was an absence of any substantial, tougher measures that would induce China to rein in its human rights and international law transgressions.

The EU is careful to avoid introducing what is viewed as unnecessary friction into its relationship with China, an approach that reflects the outsized influence of Germany. According to Max Zenglein, chief economist at the Mercator Institute for China Studies, “Europe’s weak point is Germany, and in Germany it’s the car industry, and in the car industry it’s Volkswagen.”^[33] This factor has been especially prominent under the chancellorship of Angela Merkel, who is very mindful of the powerful German industrial-business lobbies and their concerns that that Germany should not upset its lucrative economic relationship with the world’s largest market, especially given that Germany exports more to China than the next six EU Member States combined.^[34] For instance, the Volkswagen Group sold over 4.2 million cars in China in 2018 and comprised 20% of all new cars sold in the country; by comparison, the US market accounted for only 350,000 sales in the same period.^[35] As a result, German auto executives have long lobbied against tougher positions against China, emphasizing that angering Beijing on sensitive issues would affect access to the Chinese market and potentially cost jobs at home.^[36] In a 2018 interview with Die Welt, the CEO of Siemens said that Germany should be “thoughtful and respectful towards China…if jobs in Germany depend on how we deal with controversial topics, then we shouldn’t add to indignation, but rather carefully consider all positions and actions.”^[37]Merkel’s approach to China embodies the traditional policy of Wandel durch Händel (“change through trade”), a doctrine rooted in Cold War ideas which holds that, through deepening economic ties, China would gradually move towards further political and economic liberalization.^[38] In the summer of 2020, as Beijing imposed the controversial National Security Law on Hong Kong and many in the Bundestag were calling for a strong German response, Peter Altmaier, the Minister of Economic Affairs and Energy, expressed in an interview that Germany “[has] trade relations with many regions across the globe, including in many cases countries that have a different understanding of civil rights than we have in Germany…I have always been convinced and I still believe that change can be achieved through trade.”^[39] Yet, despite long being a core tenant of policy-making in Berlin and Brussels, it is an approach that has increasingly been criticized as outdated and naïve in dealing with a China under Xi Jinping that has shown no qualms about disregarding international rules and norms. 

There is no better exemplification of the soft approach that Brussels has continued to take vis-à-vis China on human rights than the increasingly obsolete EU-China Human Rights Dialogue, an annual bilateral forum established in 1995. Done behind closed doors, the Dialogue has achieved substantively little, and scholars have characterized it as an ineffectual approach “symptomatic of the EU prioritizing its material interests with China.”^[40] The fundamental disagreement is over China’s rejection of of EU values and the obligation of the government in guaranteeing them. Indeed, Beijing takes a statist view on human rights where individual rights can and should be subordinate to the collective welfare of the nation in the name of “maintaining stability.” As a result, interviews with former EU Dialogue participants and analysis of classified documents show that the ineffectiveness of the Dialogue means that it has come to serve as “intensive training for a small number of Chinese officials on how to engage with—and effectively counter—human rights related inquiries, criticism and recommendations.”^[41] Comments aimed at the situations in Hong Kong or Xinjiang are met with well-rehearsed rebuttals stressing “principles of mutual respect and non-interference in internal affairs” and a “refusal to be lectured” by EU officials who—the Chinese side accuse—have their own problems with the mistreatment of minorities and migrants in Europe.^[42] Over time, China has largely succeeded in leveraging its growing economic power to water down the Dialogue by pressuring the EU to agree to reducing the frequency of the meeting from biannually to annually as well as engaging in time-wasting practices that obstruct the EU side.^[43]

The EU-China relationship is at a critical junction. With the provisional agreement of the CAI with China, the Commission and EU Member State leaders sought to reorientate the relationship towards greater reciprocity in recognition of China’s rising place in the world. Yet, it has received substantial criticism from scholars and experts on China as well as from MEPs who say they will vote against ratification on grounds that the CAI largely fails to address China’s high-profile human rights transgressions. This paper has sought to situate the defining tension within the EU establishment—the bloc’s balancing act of weighing its economic interests against its commitment to uphold its values as an international normative power—in the context of pressure exerted by Member States involved in BRI investment relations with China and the preferences of Germany with its high prioritization of access to the Chinese market. Moving forwards, it is clear that while some within the EU favor a tougher line on China in principle, there is considerable reluctance to bear the economic and diplomatic blowback that would come with a more confrontational approach. It remains to be seen whether the EU’s balancing act will be sustainable, or that a time of choosing, where it will have to come down on one side or the other is fast approaching.

References

^[1] “Key elements of the EU-China Comprehensive Agreement on Investment,” European Commission Press Release (December 30, 2020)

^[2] Shannon Tiezzi, “China-EU Investment Deal Sparks Backlash Over Rights Concerns,” The Diplomat, January 13, 2021. 

^[3] Ágnes Szunomár, “Blowing from the East,” International Issues & Slovak Foreign Policy Affairs 24, no. 3 (2015): 61-64.

^[4] Richard Q. Turcsányi, “China and the Frustrated Region: Central and Eastern Europe’s Repeating Troubles with Great Powers,” China Report56, no. 1 (February 2020): 71.

^[5] Ibid.

^[6] Ibid.

^[7] Angela Stanzel, “A common EU China Policy: The divided, the ruled, and the united,” European Council on Foreign Relations (2017), 36-38.

^[8] Anita Koncsik, “From the Happiest Barrack to the Saddest Shopping Mall: Accountability, transparency and (anti-)corruption in Hungary,” Frontiers of Democracy (Palgrave Macmillan: London, 2016), 5.

^[9] Szunomár, 61-64.

^[10] Ibid.

^[11] Nick Miller, “‘Why are they giving us the money?’ Behind China’s plans to ‘rescue’ a decrepit rail link,” Sydney Morning Herald (June 20, 2018).

^[12] Edit Inotai, “Budapest to Belgrade: All Aboard the Secret Express,” Balkan Insight (April 22, 2020)

^[13] “Country Report Hungary 2020,” European Commission, Report (Brussels, February 2, 2020), 43.

^[14] Valerie Hopkins, “Hungary to keep details of Beijing-funded rail link secret,” Financial Times (April 2, 2020)

^[15] Inotai.

^[16] Samuel Rogers, “The Changing Dimensions of the post-2010 Hungarian Political Economy and the Emergence of Hungarian Authoritarian Populism,” PhD diss., University of Bristol, 2019, 229-233.

^[17] Ibid, 17.

^[18] “Country Report Greece 2020,” European Commission (Brussels, February 26, 2020), 46-47.

^[19] Frank Sieren, “Sieren’s China: Athens caught between Brussels and Beijing,” Deutsche Welle (November 7, 2019).

^[20] “State aid: Commission orders Greece to recover incompatible aid from Piraeus Container Terminal” European Commission Press Release(Brussels, March 23, 2015).

^[21] “Country Report Greece 2020,” 64.

^[22] Max Roger Taylor, “Inside the EU–China Human Rights Dialogue: assessing the practical delivery of the EU’s normative power in a hostile environment,” Journal of European Integration (2020), 11.

^[23] Laurence Norman, “EU Issues South China Sea Statement Ending Discord Within Bloc,” The Wall Street Journal (July 17, 2016)

^[24] Robin Emmott and Angeliki Koutantou, “Greece blocks EU statement on China human rights at U.N.,” Reuters (June 18, 2017)

^[25] Jason Horowitz and Liz Alderman, “Chastised by E.U., a Resentful Greece Embraces China’s Cash and Interests,” The New York Times(August 26, 2017)

^[26] Janka Oertel, “The New China Consensus: How Europe is Growing Wary of Beijing,” European Council on Foreign Affairs (2020), 9

^[27] Mark Leonard, “The End of Europe’s Chinese Dream,” European Council on Foreign Affairs (May 27, 2020)

^[28] “EU-China – A strategic outlook.” European Commission (March 12, 2019), 1.

^[29] Ibid.

^[30] Ibid, 5.

^[31] Ibid, 2.

^[32] “EU-China Comprehensive Agreement on Investment,” European Commission (December 30, 2020), 4.

^[33] Jakob Hanke Vela, “Europe’s China weak spot: Germany,” Politico (September 13, 2020)

^[34] “China-EU – international trade in goods statistics,” Eurostat – European Commission, (March 2020).

^[35] Vela.

^[36] Erika Solomon and Guy Chazan, “‘We need a real policy for China’: Germany ponders post-Merkel shift,” Financial Times (January 5, 2021)

^[37] Kate Brady, “Germany’s reluctance to speak out against China,” Deutsche Welle (July 7, 2020)

^[38] Solomon and Chazan.

^[39] Vela.

^[40] Taylor, 1.

^[41] Katrin Kinzelbach, The EU’s Human Rights Dialogue with China: Quiet Diplomacy and its Limits, (Routledge, 2014), 214.

^[42] Taylor, 7.

^[43] Ibid.

Works Cited

Brady, Kate. “Germany’s reluctance to speak out against China.” Deutsche Welle, July 7, 2020.

“China-EU – international trade in goods statistics.” Eurostat – European Commission, March 2020.

“Country Report Greece 2020,” European Commission, Brussels, February 26, 2020.

Emmott, Robin, and Angeliki Koutantou. “Greece blocks EU statement on China human rights at U.N.” Reuters, June 18, 2017.

“EU-China – A strategic outlook.” European Commission, March 12, 2019.

“EU-China Comprehensive Agreement on Investment.” European Commission, December 30, 2020.

“Key elements of the EU-China Comprehensive Agreement on Investment,” European Commission Press Release, December 30, 2020.

Horowitz, Jason, and Liz Alderman. “Chastised by E.U., a Resentful Greece Embraces China’s Cash and Interests.” The New York Times, August 26, 2017.

Hopkins, Valerie. “Hungary to keep details of Beijing-funded rail link secret.” Financial Times, April 2, 2020.

Inotai, Edit. “Budapest to Belgrade: All Aboard the Secret Express.” Balkan Insight, April 22, 2020.

Kinzelbach, Katrin, The EU’s Human Rights Dialogue with China: Quiet Diplomacy and its Limits. Routledge: 2014.

Koncsik, Anita. “From the Happiest Barrack to the Saddest Shopping Mall: Accountability, transparency and (anti-)corruption in Hungary.” Frontiers of Democracy. Palgrave Macmillan: London, 2016.

Leonard, Mark. “The End of Europe’s Chinese Dream.” European Council on Foreign Affairs, May 27, 2020.

Oertel, Janka. “The New China Consensus: How Europe is Growing Wary of Beijing.” European Council on Foreign Affairs, September 7, 2020. 

Miller, Nick. “‘Why are they giving us the money?’ Behind China’s plans to ‘rescue’ a decrepit rail link.” Sydney Morning Herald, June 20, 2018.

Norman, Laurence. “EU Issues South China Sea Statement Ending Discord Within Bloc.” The Wall Street Journal, July 17, 2016.

Rogers, Samuel. “The Changing Dimensions of the post-2010 Hungarian Political Economy and the Emergence of Hungarian Authoritarian Populism.” PhD diss., University of Bristol, 2019.

Sieren, Frank. “Sieren’s China: Athens caught between Brussels and Beijing.” Deutsche Welle, November 7, 2019.

Solomon, Erika and Guy Chazan. “‘We need a real policy for China’: Germany ponders post-Merkel shift.” Financial Times, January 5, 2021.

“State aid: Commission orders Greece to recover incompatible aid from Piraeus Container Terminal.” European Commission Press Release, Brussels, March 23, 2015.

Stanzel, Angela. “A common EU China Policy: The divided, the ruled, and the united.” European Council on Foreign Relations, October 7, 2017. 

Szunomár, Ágnes. “Blowing from the East.” International Issues & Slovak Foreign Policy Affairs 24, no. 3 (2015): 60-77.

Taylor, Max Roger. “Inside the EU–China Human Rights Dialogue: assessing the practical delivery of the EU’s normative power in a hostile environment.” Journal of European Integration (2020).

Tiezzi, Shannon. “China-EU Investment Deal Sparks Backlash Over Rights Concerns.” The Diplomat, January 13, 2021.

Turcsányi, Richard Q. “China and the Frustrated Region: Central and Eastern Europe’s Repeating Troubles with Great Powers.” China Report 56, no. 1 (February 2020): 60–77.

Vela, Jakob Hanke. “Europe’s China weak spot: Germany.” Politico, September 13, 2020.

Winter Issue 2019

Written by: Dalya Soffer, Boston University

Following Russia’s occupation of Crimea in 2014, the EU presented an unexpectedly strong and unified front, especially when compared to its muted reaction to Russia’s invasion of Georgia and annexation of Abkhazia in 2008. The uncharacteristically rapid mobilization by the EU and the imposition of sanctions took the international community by surprise, including Russia. On the surface, it may appear as if the EU is unified on this issue; in reality, it is more a reflection of a shift in the German government’s policy towards Russia. This consensus masks deep and long-standing divisions amongst Union Member States on the issue of how to deal with Russia as well as a fundamental flaw in the Union’s foreign policy structure which makes it difficult for the EU to develop and maintain a united foreign policy vis-à-vis Russia. According to Mitchell Orenstein and Daniel Kelemen, for a federal, or quasi-federal, entity to have a successful foreign policy, it must not only be in a position to formulate a common foreign policy, but it must also be able to prohibit its member states from simultaneously pursuing their own independent policies^[i]. However, when the EU developed its Common Foreign and Security Policy (CFSP) and its Common Security and Defense Policy (CSDP), it only completed half of the equation ^[ii]. These policies do provide a means for the EU to articulate a common foreign and security policy, but they do not prohibit Member States from developing and maintaining their own, at times contradictory, foreign policies. This has created an opportunity for Russian President Vladimir Putin to exploit internal divisions within the EU by cultivating bilateral relationships with individual Member States and thereby undermining, from within, the EU’s position against Russia. This paper will demonstrate how this flaw in the CFSP has given supranational actors, such as Germany, an outsized role in shaping EU foreign policy and illustrate how the current system is self-destructive.

The relationship with Russia is particularly susceptible to revealing the fissures which exist in the EU’s foreign policy. Historically, the divergent views of the Member States have thwarted efforts to adopt a unified policy vis-à-vis Russia. It was the egregious nature of the annexation of Crimea, which galvanized EU member states into recognizing the threat Russia posed and propelled them into adopting a unified policy. However, the policy itself will be difficult to implement due to external and internal factors. In March of 2016 the EU foreign ministers and Frederica Mogherini, the EU High Representative for Foreign Affairs and Security Policy, reached an agreement on five guiding principles for EU-Russia relations: “full implementation of the Minsk agreements before the lifting of sanctions; closer ties with Russia’s former Soviet neighbors; strengthening EU resilience to Russian threats; selective engagement with Russia on certain issues such as counter-terrorism; and support for people-to-people contact.” One difficulty in implementing the policy is that the EU cannot control the instability amongst Russia’s neighbors, and it is powerless to control the repressive legislation inside Russia which will make maintaining people-to-people engagement with Russian citizens extremely difficult^[iii]. Another significant hurdle for the implementation of the policy will be the lack of cohesion amongst its members. This tension is made evident by the increasingly loud and consistent efforts by some Member States to lift the sanctions without the implementation of the Minsk agreements^[iv]. Similarly reducing the EU’s dependence on Russian energy will be very difficult to achieve because Member States are pursuing independent foreign policy agendas and entering into bilateral deals with Russia on the energy front^[v]. In order to better understand the tensions at play, it is useful to examine the EU’s history when dealing with Russia which illustrates how the Member States have been pursuing their own foreign policies outside of the one established by the EU.

Adopting a unified strategy towards Russia was a major shift for the EU who until then had been sharply divided on the issue. The traditional East-West divide of Europe has strongly influenced individual members’ perception of their easternmost neighbor. The Eastern European countries, which have a long history as vassal states of the Soviet Union, view Russia in a more cynical light and see it as a threat to regional security. Consequently, they have long favored the adoption by the EU of a strong stance against Russia^[vi] [vii]. Whereas the Western European nations have tended to view Russia as a strategic partner and believed that there was an opportunity to establish positive and stable relations with their neighbor through economic integration^{[viii] [ix] [x]}. For these countries, economic ties with Russia have been viewed as an asset to be exploited. Germany, in particular, has pursued, since 1969, a foreign policy towards the Soviet Union, and subsequently Russia, dubbed Ostpolitik, whose stated goal “was to achieve positive change through rapprochement.” This was to be achieved by developing strong economic ties with Russia in particular in the energy sector through pipeline and nuclear projects^[xi]. The Eastern European countries, however, have always viewed their dependence on Russian goods as a form of continued dominance by their previous overlord^[xii]. This is especially true because Eastern European countries tend to be very reliant on Russian trade, in particular, its gas which Russia has used as a weapon on two occasions, in 2006-2007, against Ukraine by withholding gas deliveries to obtain political and financial gains^[xiii].

The Baltic nations have also had repeated clashes with Russia on other issues, which has only increased their distrust in their neighbor. There is an ongoing crisis between Estonia and Russia over the issue of Russian minorities and a territorial dispute over the Russian enclave of Kaliningrad. Poland has also clashed with Russia over the development of its anti-missile shield^[xiv]. Because of their geographic proximity to Russia, these countries felt the destabilizing effects of Russia’s invasion of Georgia in 2008 much more keenly than their Western partners did.  Due to these tensions, the Central and Eastern States have advocated, unsuccessfully, for many years for the EU to adopt a stronger stance against Russia and to give more importance to human rights and democratic values when dealing with the Russian government^[xv].  

These countries have repeatedly been thwarted in their efforts to get the EU to adopt a harsh foreign policy towards Russia by Germany and other large Member States. For instance, Germany opposed the EU’s efforts to develop the Nabucco natural gas pipeline, an alternative gas supply intended to reduce its dependence on Russia by transporting natural gas from the Caspian region and the Middle East instead of Russia. Berlin promptly reached an agreement with Gazprom, Russia’s energy supplier, to develop a pipeline known as the Southern Stream. Gerhard Schröder, who was Chancellor at the time, negotiated the NordStream pipeline deal directly with Russia bypassing regular EU channels and over the vociferous opposition of the Polish government^[xvi]. Similarly, it was Germany, along with other big Member States like Italy, France, and Spain, who defeated the proposal to have Georgia and Ukraine join NATO in order to avoid offending Russian sensibilities despite the support for the idea from the other Member States^[xvii].

Germany’s status as an economic powerhouse within the EU has given it the leverage to dictate the direction of the European Union’s foreign policy towards Russia^[xviii]. It has been described as “Russia’s strategic partner or even Russia’s advocate in Europe.” Germany has been a strong advocate for Russia due to the strong economic ties between the two countries, and this has remained the case during Angela Merkel’s term as chancellor. So much so that initially the rapprochement between the two countries worried foreign analysts and politicians alike. Philip Stephens reported in the Financial Times that several of US President Obama’s aides felt she was “…too soft on Russia.” The principle of Ostpolitik has played an essential role in shaping the relationship between the two countries and after 50 years of close economic cooperation, they are very closely linked, which is a critical consideration for German policymakers^[xix]. Eurostat finds that in 2017, Germany accounted for 30% of all EU exports to Russia. It was the largest importer (€29 billion) and exporter of goods (€ 26 billion) with Russia^[xx]. Germany’s foreign policy has, therefore, remained relatively stable regarding Russia primarily because of the intense lobbying efforts of German industry^[xxi]. BASF/Wintershall and E.ON Ruhrgas, German energy companies, each holds 20% of the Nord Stream AG project company^{[xxii] [xxiii]}. German industries are also involved in other joint ventures, such as WINGAS and WIEH, with their Russian counterparts^[xxiv]. The interests of the energy sector in Germany are so strong that they are taken into account by policymakers, even if they are not expressly stated^[xxv].

Because Russia has been able to cultivate separate relationships with individual Member States, it took internal negotiations and political pressure to reach a consensus on imposing sanctions on Russia after the invasion of Crimea^[xxvi]. While regional countries and major EU countries supported the initial imposition of sanctions, many countries had to be pressured into voting for them. The only reason Greece, who publicly opposed the sanctions, voted for them was because of its reliance on the EU for the financing of its bailout loan. Hungary’s government was also opposed to the sanctions but ultimately voted for them because it needed the support of the European People’s Party.  Italy had also voiced opposition but decided, under pressure, to ‘toe the line’ in the end^[xxvii]. Maintaining the sanctions imposed by the EU on Russia isn’t automatic; every six months, the Council must vote to reimpose them. Keeping all the members united on this issue is becoming increasingly difficult due to Member States’ respective domestic priorities. Smaller countries that are more sympathetic to Russia have tried to extract side payments from the EU in exchange for agreeing to support the EU’s policy on Russia while simultaneously seeking to obtain other benefits from Russia in exchange for promises that they will promote Russia’s interests in the EU^[xxviii].

These tensions within the EU are a major reason why the sanctions have not led to the withdrawal of Russia from Crimea. This is especially true because Germany, the de facto leader, has been ambivalent in its attitude towards Russia from the outset. The EU has been only marginally involved in trying to resolve the conflict between Ukraine and Russia. In some ways, it could be argued that Germany led the EU’s foreign policy on the Ukraine crisis just as it has done with previous EU foreign policy positions towards Russia^[xxix]. It was Merkel who spearheaded all of the diplomatic peace efforts, be they the Normandy Group (which included Germany, Russia, Ukraine, and France), the Weimar triangle (with France and Poland), or the shuttle diplomacy she conducted in 2015 which led to the Minsk II^[1] agreement^{[xxx] [xxxi]}. The EU did not pass sanctions on Russia until Merkel failed at resolving the issue through negotiations. At this point, Merkel took the lead in imposing sanctions which led to the EU passing the necessary resolutions^[xxxii]. It has been clear from the outset that the EU’s foreign policy on Russia, including the way it deals with the Ukrainian crisis, has been entirely under the control of Germany and that any sanctions imposed will only go as far as Merkel is willing to take them^[xxxiii], which makes domestic politics in Germany an important aspect of the EU-Russia policy.

In Germany, most politicians and business leaders have been paying lip service to the need for sanctions^[xxxiv]. However, Merkel has been facing domestic political pressure from all sides to end the sanctions from the outset^[xxxv]. Foreign Minister Steinmeier immediately expressed his disagreement over the exclusion of Russia from the G8. While he eventually came around to expressing support for Merkel’s position, he continued to make comments arguing for ways to accommodate Russia.  In December of 2014, he argued against new sanctions because bringing Russia to its knees would be destabilizing. In June of 2015, before the G7 meeting, he once again advocated for reintegrating Russia into the G8^[xxxvi]. The leader of the SPD and Minister for Economic Affairs and Energy, Sigmar Gabriel, meanwhile, advocated for a solution that would accommodate Russia’s position even after the Malaysian passenger plane MH17 was downed by Russian backed rebels^[xxxvii]. Several prominent former politicians, such as Chancellor Schroder, Helmut Schmidt, and Klaus von Dohnanyi, defended Russia and criticized the West. Not only did they claim that the sanctions were useless, but some went so far as to argue that the entire conflict was the fault of the United States for trying to integrate Ukraine into NATO^[xxxviii]. Overall there has been consistent and widespread criticism in Germany from the right, left and populist parties as well as industry leaders against the imposition of sanctions and in support of Russia’s position in Ukraine^[xxxix]. These voices have been growing louder and after Merkel’s many recent election defeats it is becoming harder for her to ignore these points of view^[xl]. This could eventually affect the EU’s attitude towards Russia’s invasion of Crimea.

There is evidence of this already in the way Merkel has dealt with the crisis up until now. While she advocated for imposing sanctions, she repeatedly made it clear that despite her criticisms of Russia’s actions in Ukraine, the “fundamentals of Ostpolitik had not changed,” and that Germany, both in the medium and long-term, would continue to seek a partnership with Russia^{[xli] [xlii]}. Merkel insisted that the only way to resolve the conflict was through sanctions. However, she resisted imposing heavier sanctions despite continued breaches of the Minsk Agreement, and she rejected the idea of delivering lethal weapons to Ukraine. At the 2015 Munich Security Conference Merkel criticized Russia for violating international law, but she once again emphasized the need for patience to end the conflict^[xliii]. She was the only European leader who went to Moscow to attend the ceremony commemorating the 70^th anniversary of the end of WWII, even if she eschewed the military parade held on May 9^th [xliv]. Perhaps the most significant show of ambivalence on her part came in the summer of 2015 when E.ON and Wintershall renewed their cooperation with Gazprom by entering into new joint ventures^{[xlv] [xlvi]}.

It is Merkel’s more conciliatory policy towards Russia, rather than the uncompromising stance taken by the EU, which was adopted by other member states in the wake of the crisis. Royal Dutch Shell, French ENGIE, and Austria’s ÖMV also entered into business agreements with Gazprom that same summer. These companies agreed to an expansion of the Nord Stream gas pipeline, increasing Europe’s dependence on Russian natural gas despite criticism from several Central and Eastern European nations and against stated EU energy policy^[xlvii]. Merkel has defended these actions by claiming that this deal is a purely economic move with no political significance. However, it sends a strong signal to Putin that Europe is willing to ignore Ukraine’s interests to pursue its economic interests and continue to deal with Russia^[xlviii]. Despite their disagreements on how to resolve the crisis, Putin’s willingness to speak primarily with her also makes it clear that he considers her the only legitimate interlocutor^[xlix]. Therefore, the fact that Merkel has been navigating a delicate balancing act trying not to push Russia too much has led Putin to believe that the West isn’t resolute on this issue, thereby undermining the EU’s credibility. Had the EU been able to present a strong, unified front and made a greater commitment to put pressure on Russia, we might have had a different outcome to this crisis by now. 

The current system of requiring unanimity to adopt a foreign policy position gives even smaller Member States significant leverage to affect policy outcomes. This, therefore, gives Russia a strong incentive to ignore Brussels and establish bilateral relations with European countries who can block any legislation which would harm their national interest and Russia’s as well. Greece has long been one of Russia’s most reliable advocates in the EU because it gets approximately 75% of its gas from the Russians and buys much of its weapons from them as well^[l] [li]. This explains why Greece, in 2007, stopped the EU from continuing the mandate of the EU Border Support Team in Georgia to include the area of Abkhazia which Russia had just annexed^[lii]. On another occasion, France, Germany, and Italy signed separate bilateral deals with Russia to allow visa-free travel between their countries. These deals were later declared in violation of the Schengen rules, which immediately forced the entire EU to negotiate a visa-free travel deal with Russia^[liii]. Poland, in 2007, single-handedly vetoed giving the EU a mandate to renegotiate the Partnership and Cooperation Agreement^[liv]. This underscores the influence these bilateral deals can have. Each of the economic deals Russia enters into with an EU Member State has consequences beyond the immediate economic benefits to the parties involved; it affects EU foreign policy as a whole. Russia has entered into many different deals with individual European nations. Currently, Italy, Germany, France, and the Dutch are deeply involved in Russian energy production. Cyprus is a major offshore destination for Russian firms and a significant investor in Russia^[lv]. Greece, which has recently had a contentious relationship with the EU due to its financial bailout, signed a preliminary deal to import gas from Russia^[lvi]. Putin recently went to Budapest and signed a nuclear power and natural gas deal with Prime Minister Viktor Orban^[lvii]. The Cypriot gave access to its ports to Russian Naval vessels^[lviii]. Each of these deals potentially is an obstacle to the EU’s ability to reach a consensus on its foreign policy towards Russia in the CFSP.

Another tactic Russia has been cultivating in order to further divisions between EU countries is the propagation of disinformation through cyber warfare and traditional media outlets. Russia has been supporting financially and online anti-EU political parties in many European countries. For instance, in France during the last presidential campaign, Emmanuel Macron, who has been a vocal supporter of the EU, identified attempts by the Russian’s to hack into the servers of his campaign headquarters^[lix].  The Front National, and its leader Marine Le Pen, have long advocated for France to withdraw from the EU and Le Pen frequently speaks in favor of a more pro-Russian foreign policy. It is therefore perhaps unsurprising that she received a 40-million-euro loan from a Kremlin-backed bank to support her political campaign for the French presidency^[lx]. There are reports that the Kremlin has provided financial support to other extremist political organizations such as Ataka in Bulgaria, Jobbik in Hungary, Golden Dawn in Greece, and Linke in Germany^[lxi]. Another means for spreading disinformation is through its state-sponsored news channel, Russia Today, which is diffused throughout Europe and the US. Changing domestic political views can have an impact not only on trying to get pro-Russian parties elected in a given Member State but it can also sway public opinion and put pressure on local politicians who may not be favorably disposed towards Russia. The goal of these campaigns according to analysts is to “weaken and destabilise the West, by exploiting existing divisions or creating artificial new ones” specifically “between EU Member States.” 

The debate over whether or not the EU has a common policy towards Russia rages on amongst scholars, politicians, and political analysts^[lxii].  Some view the fact that the EU has maintained sanctions on Russia since 2014 as a sign that it does have a common policy while others see fissures and disunity in the rhetoric, the bilateral deals and the lack of cohesion in the reaction to the poisoning of ex-Russian agent Sergei Skripal in Salisbury^[lxiii]. What seems evident, however, is that the current structure of EU foreign policy incentivizes nations, such as Russia, to bypass the EU and attempt to influence countries directly. This makes it very difficult for the EU to have a unified and cohesive foreign policy robbing it of much of its power on the international stage and vis-à-vis Russia in particular. This paper has illustrated that the EU’s current foreign policy structure has created a specific and internal flaw that not only makes having a united foreign policy almost impossible, but it destabilizes the Union as a whole. This is why some scholars like Avner Greif and David Laitin have identified the EU’s foreign policy as unstable and unsustainable^[lxiv]. If Peter Mandelson, the ex-EU Commissioner of Trade, is correct that “This is a failure of Europe as a whole, not any member state in particular,”^[lxv] then the problem can only be resolved at the EU level by altering the current system. 

Bio:

Dalya is a student at Boston University studying International Relations. Her area of research is Economic Integration and regional politics in the European Union.   

Endnotes:

^[1] The first Minsk agreement was a peace deal brokered by Angela Merkel and Francois Hollande to cease the fighting in September of 2014. When the deal broke down in January of 2015 it was followed by Minsk II in February of 2015 as a way to revive the first peace deal and stop the fighting in the Donbas region of Ukraine. 

Works Cited

^[i] Mitchell A. Orenstein and R. Daniel Kelemen, “Trojan Horses in EU Foreign Policy,” Journal of Common Market Studies 55, no. 1 (January 2017): 88, accessed December 10, 2018, https://doi.org/10.1111/jcms.12441.

^[ii] Kathleen McNamara, European Foreign Policy (n.p.: Oxford, 2017), 141.

^[iii] European Parliamentary Research Service, The EU’s, 3 & 7.

^[iv] Tuomas Frosberg, “From Ostpolitik to ‘frostpolitic’? Merkel, Putin and German Foreign Policy toward Russia,” International Affairs 92, no. 1 (2016): 31-33, accessed December 10, 2018, https://onlinelibrary-wiley-com.ezproxy.bu.edu/doi/epdf/10.1111/1468-2346.12505.

^[v] European Parliamentary Research Service, The EU’s, 5.

^[vi] Caterina Carta and Stefano Braghiroli, “Measuring Russia’s Snag on the Fabric of the EU’s International Society,” Journal of Contemporary European Research 7, no. 2 (2011): 261, accessed December 11, 2018, http://www.jcer.net/ojs/index.php/jcer/article/view/344/278.

^[vii] Frosberg, “From Ostpolitik,” 24.

^[viii] Carta and Braghiroli, “Measuring Russia’s,” 262.

^[ix] Frosberg, “From Ostpolitik,” 24.

^[x] Judy Dempsey, “Judy Asks: Does Europe Have a Russia Policy?,” Carnegie Europe, last modified March 28, 2018, accessed December 14, 2018, https://carnegieeurope.eu/strategiceurope/75924.

^[xi] Frosberg, “From Ostpolitik,” 21.

^[xii] Carta and Braghiroli, “Measuring Russia’s,” 269.

^[xiii] Emma C. Verhoeff and Arne Niemann, “National Preferences and the European Presidency: The Case of German Energy Policy towards Russia,” Journal of Common Market Studies 49, no. 6 (2011): 1279, accessed December 10, 2018, https://doi.org/10.1111/j.1468-5965.2011.02198.x.

^[xiv] Carta and Braghiroli, “Measuring Russia’s,” 273.

^[xv]  Iris Kempe, “Economic and Regional Topics for a Strategic Partnership Notes from the 5th Roundtable,” Partnership with Russia in Europe: Economic and Regional Topics for a Strategic Partnership, June 2007, 9, accessed December 10, 2018, http://library.fes.de/pdf-files/id/04688.pdf.

^[xvi] Orenstein and Kelemen, “Trojan Horses,” 92.

^[xvii] Carta and Braghiroli, “Measuring Russia’s,” 269.

^[xviii] Verhoeff and Niemann, “National Preferences,” 1277.

^[xix] Christopher Bickerton, From Nation States to Member States in European Union Foreign Policy (Oxford Scholarship Online, 2013), 258, digital file.

^[xx] Eurostat, “EU Imports of Energy Products – Recent Developments,” Statistics Explained, last modified June 11, 2018, accessed December 10, 2018, https://ec.europa.eu/eurostat/statistics-explained/index.php?title=EU_imports_of_energy_products_-_recent_developments#Member_States.27_trade_in_petroleum_oils_and_natural_gas.

^[xxi] Verhoeff and Niemann, “National Preferences,” 1279 & 1281.

^[xxii] Verhoeff and Niemann, “National Preferences,” 1279.

^[xxiii] Nina Chestney, “Nordstream 2 Gas Pipeline Important for Europe: German Energy Minister,” Reuters (London), October 1, 2018, accessed December 11, 2018, https://www.reuters.com/article/us-nordstream-germany/nordstream-2-gas-pipeline-important-for-europe-german-energy-minister-idUSKCN1MB25V.

^[xxiv] Mike Sander, “A Strategic Relationship? The German Policy of Energy Security within the EU and the Importance of Russia,” in “Dealing with Dependency: The European Union’s Quest for a Common Energy Policy,” ed. M. Overhaus, H. Maull, and S. Harnish, special issue, Foreign Policy in Dialogue 8, no. 20 (2007): accessed December 12, 2018.

^[xxv] Verhoeff and Niemann, “National Preferences,” 1280.

^[xxvi] McNamara, European Foreign, 160.

^[xxvii] Orenstein and Kelemen, “Trojan Horses,” 97.

^[xxviii] Orenstein and Kelemen, “Trojan Horses,” 89.

^[xxix] Orenstein and Kelemen, “Trojan Horses,” 96.

^[xxx] Wouter Zweers, “The State of EU Relations with Russia and the Eastern Neighborhood,” in Cligendael State of the Union 2018: Towards Better European Integration (n.p.: Netherland’s Institute of Foreign Relations, 2018), 61, https://www.clingendael.org/publication/clingendael-state-union-2018-report.

^[xxxi] Marco Siddi, “German Foreign Policy towards Russia in the Aftermath of the Ukraine Crisis: A New Ostpolitik?,” Europe-Asia Studies 68, no. 4 (June 3, 2016): 665, accessed December 10, 2018, http://dx.doi.org/10.1080/09668136.2016.1173879.

^[xxxii] Siddi, “German Foreign,” 668.

^[xxxiii] Stephen Szabo, Germany, Russia and the Rise of Geo-Economics (London: Bloomsbury Academic, 2015), 129, accessed December 10, 2018, http://dx.doi.org/10.5040/9781472596352.ch-001.

^[xxxiv] Siddi, “German Foreign,” 669.

^[xxxv] Szabo, Germany, Russia, 35-38.

^[xxxvi] Frosberg, “From Ostpolitik,” 31.

^[xxxvii] Frosberg, “From Ostpolitik,” 32.

^[xxxviii] Frosberg, “From Ostpolitik,” 32-33.

^[xxxix] Frosberg, “From Ostpolitik,” 33-35.

^[xl] Zweers, “The State,” 61.

^[xli] Frosberg, “From Ostpolitik,” 28.

^[xlii] Siddi, “German Foreign,” 666 & 668.

^[xliii] Frosberg, “From Ostpolitik,” 30.

^[xliv] Siddi, “German Foreign,” 670.

^[xlv] Siddi, “German Foreign,” 671.

^[xlvi] Chestney, “Nordstream 2 Gas Pipeline,”

^[xlvii] Siddi, “German Foreign,” 671.

^[xlviii] Siddi, “German Foreign,” 671.

^[xlix] Frosberg, “From Ostpolitik,” 30.

^[l] European Council On Foreign Relations, A Power Audit of EU-Russia Relations, by Mark Leonard and Nicu Popescu (London, 2007), 29, accessed December 10, 2018, https://www.ecfr.eu/publications/summary/a_power_audit_of_eu_russia_relations.

^[li] Eurostat, “EU Imports,” Statistics Explained.

^[lii] European Council On Foreign Relations, A Power, 16.

^[liii] European Council On Foreign Relations, A Power, 16.

^[liv] Kempe, “Economic and Regional,” 7.

^[lv] European Council On Foreign Relations, A Power, 30.

^[lvi] Orenstein and Kelemen, “Trojan Horses,” 93 & 97.

^[lvii] Daniel McLaughlin, “Vladimir Putin and Viktor Orban Hail Ties and Discuss Energy and Finance,” Irish Times, September 18, 2018, [Page #], accessed December 9, 2018, https://www.irishtimes.com/news/world/europe/vladimir-putin-and-viktor-orban-hail-ties-and-discuss-energy-and-finance-1.3633439.

^[lviii]  Damien Sharkov, “Cyprus Agrees Deal to Let Russian Navy Use Ports,” Newsweek, February 26, 2015, accessed December 10, 2018, https://www.newsweek.com/cyprus-agrees-deal-let-russian-navy-use-ports-309759.

^[lix] Aurelien Breeden, Sewell Chan, and Nicole Perlroth, “Macron Campaign Says It Was Target of ‘Massive’ Hacking Attack,” The New York Times, May 5, 2017, [Page #], accessed December 12, 2018, https://www.nytimes.com/2017/05/05/world/europe/france-macron-hacking.html.

^[lx] Gabriel Gatehouse, “Marine Le Pen: Who’s Funding France’s Far Right,” BBC News, last modified April 3, 2017, accessed December 12, 2018, https://www.bbc.com/news/world-europe-39478066.

^[lxi] Orenstein and Kelemen, “Trojan Horses,” 93,

^[lxii] Dempsey, “Judy Asks,” Carnegie Europe.

^[lxiii] Dempsey, “Judy Asks,” Carnegie Europe.

^[lxiv] Avner Greif and David D. Laitin, “A Theory of Endogenous Institutional Change,” American Political Science Review 98, no. 4 (November 2004): 634, accessed December 12, 2018, https://web.stanford.edu/~avner/Greif_Papers/2004%20A%20Theory%20of%20Endogenous%20Instituitonal%20Change.pdf.

^[lxv] European Council On Foreign Relations, A Power, 16

Written by: Sireen Haddad and Shatha Sabra, University of Haifa

We are both Palestinians, currently studying for an undergraduate degree in law at the University of Haifa. In February 2018, during the second year of our studies, we travelled to the Greek Island of Chios as a part of a clinical course on human rights. Located in the Aegean Sea, Chios is one of several islands, including Lesvos and others, which have been at the epicenter of the “global migration crisis.” The purpose of our trip was to provide translation and consultation to asylum seekers from the Middle East, while they confront the complicated process in which their refugee status is determined.

In Chios, we worked with a non-governmental organization from Germany, Refugee Law Clinics Abroad (RLCA). RLCA also sends volunteers to the island to provide asylum seekers with legal information and counselling. Together with the German attorneys and law students, we prepared members of one of the most vulnerable populations on the planet for crucial interviews with the Greek and European Union (EU) authorities. Such interviews may have fatal consequences for the lives of men, women, and children who have suffered unspeakable trauma. In many instances, these people come to Greece after having fled the protracted and atrocious civil war in Syria, which has since come to a partial lull. 

Our main role was to accompany RLCA lawyers in their meetings with asylum seekers. As Palestinian Arabs, we were able to provide crucial translation for Arabic-speaking refugees, who would otherwise not be able to understand the German lawyers’ English. We also gave the refugees information about their legal rights. During our stay, we dealt with many heart-breaking cases. 

This work led us to pursue research on the so-called “EU-Turkey Deal.” Under this 2016 agreement, the EU had reportedly provided Turkey with 3 Billion Euros (or 3.4 US dollars), in return for “hosting” Syrian asylum seekers and stemming their flow to Europe. We were interested in examining the legal basis for the processes asylum seekers confront in Chios. 

It was easy for us to identify with the refugees’ perspectives, due to our own Arab-Palestinian perspective. During the 1948 Palestine war (also known as Nakba Day, meaning “day of catastrophe”), Israeli forces uprooted large parts of Palestine’s Arab population by expelling them from their homes, destroying their towns and villagesin 1948 and then again inthe 1967 War (also called the “Six-Day War”), leading many Palestinians to become refugees. Many of whom settled in refugee camps and were divided between Syria, Lebanon, Jordan, The West Bank and the Gaza Strip. A series of laws then prevented Palestinian-Arab refugees the right to return to their homes or claim their properties. 

As a consequence of these historical developments, many Palestinian-Arab refugees, along with their descendants, remain refugees to this day. As we observed, some Syrian-Palestinians have recently fled yet again. Our research thus also became a way of investigating our own thoughts and feelings about the matter. We sought to expose the truth -to ourselves, to our own communities, to the world. Although the issue has been widely reported, we believe that even now few understand the gravity of the conditions that asylum seekers face. 

What is a “Sufficient Connection”? 

In 2013, the member states of the European Union signed the Asylum Procedures Directive, which was also to be adopted in member states’ national legislations by 2015. Through stipulating rules and requirements, the Directive creates a harmonized asylum procedure in all member states, aiming to ensure that decisions regarding providing international protection for applicants (migrants) are taken more fairly and efficiently, including safeguarding applicants’ rights. In order to implement the EU-Turkey deal, EU states such as Greece must examine, in each individual case, whether a connection exists between an “irregular migrant”(a migrant who enters a country without its legal permission)and a “safe third country” (a country that the migrant has previously entered following their flight from the country of origin). 

The “safe third country” is the first country entitled to offer the possibility of  protection, and such status was granted to Turkey under the EU-Turkey deal.  If the aforesaid connection exists, Greece may deport asylum seekers to Turkey. Article 38(2) of the Asylum Procedures Directive requires a “sufficient connection” between the former and the latter. It is notable, however, that this Directive does not establish a set of rules, or a clear definition of the concept of “Sufficient Connection.” The Directive leaves this, rather, for the discretion and regulation of individual EU Member States. According to the interpretation applied by EU Member States, the requirement of a “Sufficient Connection” is met merely by proving that a migrant has transited through Turkey after leaving their first country of origin, also known as the “country of danger.” 

The United Nations High Commissioner for Refugees (UNHCR) is considered responsible for governing the application of the “sufficient connection” concept, and interprets the concept more broadly. According to the AIDE MEMOIRE Directive on Minimum Standards on Procedures for Granting and Withdrawing Refugee Status by UNHCR, a migrant’s mere transit through Turkey (which is considered by the European Union a “safe third country” to Syrian refugees) is not enough. The assessment of the connection should confirm that a “meaningful connection” with the “third country” exists. Only with such a connection, does it become reasonable to “readmit” an asylum seeker from Greece to Turkey. 

The Greek Appeals Committees have the same approach as UNHCR. According tothe 9th Appeals Committee, Decision 15602/2017 and the 11th Appeals Committee Decision 14011/2017, there was insufficient connection between the applicant and Turkey. As stated in both of the decisions, “the geographical proximity of a country to the country of origin cannot in itself justify a sufficient connection, in the absence of conditions such as a reasonable period of stay of the existence of a supporting network”. According to this second approach, a sufficient connection is determined by balancing many factors. These include not only an applicant’smere transit through the country, but also their duration of stay in the respective country, proximity to their country of origin, and the existence of a support network that they have due to family ties or strong cultural ties in the respective third country.

The European Union Court interprets the concept of “sufficient connection” as broadly as possible, in order to apply it  to as many cases as possible. In practice, however, a “third country” like Turkey is not always safe for these people. Indeed, the “sufficient connection” test is at times applied arbitrarily and in a manner that harms migrants. During our meetings with the migrants on the island, some strongly expressed they would rather go back to their country of origin (which they had escaped in the first place) than being forcibly transferred to Turkey.

The legal framework of ‘country of origin’ and ‘sufficient connection’ puts Palestinian refugees in an especially unique predicament, one that arose while we were in a meeting with a Syrian-Palestinian refugee. Given the existing legal framework, there is no way to examine the real connections Syrian-Palestinian refugees have to places other than Syria. All the aspects such as cultural, linguistic, and historical, point to a strong connection with Palestine (rather than Turkey). But this argument cannot be examined legally, as there is no legal means to bring these refugees back to their roots. In other words, the system is premised on a fiction. It assumes that it is possible to determine the connections an asylum seeker has to countries other than the country he or she fled from.  But this is not possible for Palestinian refugees. What happened to the UNHCR and national courts who required a substantive interpretation of the “sufficient connection” standard?

Indirect Human Trafficking 

Rather than seeking to determinethe country with which anasylum seeker feels most connected, we believe that the current system is designed to fulfill another purpose: the exchange of people in return for money. This is exemplified by the EU-Turkey deal. 

One might even propose that the EU-Turkey deal amounts to an indirect form of human trafficking. The EU is paying Turkey €3 billion in exchange for granting status to asylum seekers that arrive in Greece, and preventing them from continuing their journey towards EU countries. The leading Member States of Europe, spearheaded by Angela Merkel, found in Turkey the ideal external solution to end the “migration crisis” in Europe. 

For Europe, it is the ideal solution that Turkey readmits the migrants; and admittedly, there have been positive legal and political developments that have emerged from the deal. The idea that refugees are not returned to where they will suffer persecution or ill-treatment, which lawyers call non-refoulement, is to some extent upheld. Both the EU Member States and Turkey are committed to this idea under the 1951 Geneva Convention. In order to achieve this deal, Turkey had to update and renew its national asylum law. In exchange, Europe committed to lifting the visa restriction on Turkish citizens who want to enter Europe, as well as paying Turkey the agreed-upon sum.  

What is the difference between this kind of deal, mainly based on paying a particular party in exchange for transferring people without their consent, and human trafficking?The fact that the transfer of migrants from Greece to Turkey does not take into consideration their personal choice, called our attention to the term “Human Trafficking” as defined in Art.3 of the United Nations Convention against Transnational Organized Crime. 

The EU-Turkey deal likely does not meet the definition of human trafficking under international law. We therefore propose a new term, indirect human trafficking, which would capture what is wrong here. Migrants are being transferred against their free willas ifthey were merchandise “sold” by the EU and “bought” by Turkey. The horrible and inhumane living conditions of the migration facilities are methods to force migrants to leave European countries. They are perhaps designed to prevent migrant participation in the EU labor market (among other things). In addition to the financial profit that is offered to Turkey as an outcome of the deal, all these facts indicate that “The EU-Turkey Deal” is a form of business.  

Deals Won’t Stop Migration 

Ultimately, Europeans and the international community should acknowledge that such a deal ends up diluting the rights of refugees, as protected by the 1951 Geneva Convention. While the Court of Justice of the European Union in Joined Cases C-208/17 P to C-210/17 P, declined to review the deal, the General Court did soon purely procedural grounds. It thus declared that “the action is dismissed on the ground of the Court’s lack of jurisdiction to hear and determine it.”

We nevertheless believe the framework cannot be considered fully legal. The bottom line is that such deals cannot stop the phenomenon of global migration. All they do is transfer migration to other locations, outside of the sphere of legal accountability. 

This piece appeared in the 2017 Acheson Prize Issue of the Yale Review for International Studies.

Introduction

On June 23^rd 2016, Great Britain shocked Europe and the rest of the world by voting to leave the European Union through a national referendum. The referendum, held in June 2016, stemmed from an election promise made by former British Prime Minister David Cameron prior to the 2015 General Election. Cameron promised to hold a referendum on Great Britain’s membership in the EU to curb political support for the United Kingdom Independence Party (UKIP), and the referendum was called British Exit, which was commonly referred to as Brexit. Cameron promised “a very simple in-or-out choice to stay in the EU on new terms, or come out altogether.”[1]

Campaigning groups such as Vote Leave and Britain Stronger (more commonly known as Remain) became the loudest advocate for exiting and remaining in the EU, respectively, after the referendum’s inception. Vote Leave emphasized the issue of immigration, specifically targeting questions of national and cultural identity. Their greatest advocacy tool targeted savings on economic investment: they estimated that exiting the EU would correspond to an additional $350 million USD per week. This increased governmental revenue, they argued, would enable better financing of the National Health Service, the British governmental healthcare provider.[2] In contrast, the Remain group focused on the economic benefits of staying within the European Union, citing the ease of transnational movement and access to commercial markets as key assets of long-term growth in the nation.

In the days preceding the vote public polls showed that Remain had gathered slightly more support than its counterpart, leaving many voters believing that Brexit would be voted down. However, with a seventy two percent voter turnout rate, fifty one point nine percent of Great Britain’s population voted in favor of leaving the EU with the remaining forty eight point one percent voting for the status quo.^[3] While Vote Leave celebrated a historic triumph the markets immediately began to decline. At one point, in the hours after the vote, the pound dropped eleven point one percent, to a $1.33 USD equivalent, its lowest level since the mid-1980s.[4]

At the time of writing the Brexit vote’s impacts remain too recent to tell. In other words, the long-term economic and political effects are not yet understood. Despite this, it’s clear that Great Britain’s decision to leave the EU will have significant impacts on those countries most closely tied to it. One such country is Great Britain’s neighbor, Ireland. The focus of the paper that follows is to explore the political and economic effects of Brexit on both Northern Ireland and the Republic of Ireland.

History of the European Union

The European Union, officially formed in 1992, emerged from a desire for peace and stability across Europe at the conclusion of World War II. This international institution would serve to end the bloody wars that dominated the first half of the 20th century. The roots of the European Union are found in the European Economic Community (EEC) established in 1957 by Belgium, France, Germany, Italy, Luxembourg, and the Netherlands. Throughout the 1970s and 1980s, more countries joined the economic community including Denmark, Ireland, and the United Kingdom, all by national referendum. After the fall of the Berlin Wall in 1989 and the general collapse of the communist bloc, Europe saw an opportunity to realign its institutional purpose to achieve a more integrated, united continent. A wave of countries introduced referendums, all voting to join the EEC, which eventually evolved into the present day European Union. While established on the premise of peace and stability, the EU’s focus, over recent decades, has shifted towards the facilitation of trade between member states. The EU now operates a single market, allowing the free movement of goods, capital, services, and people between loosely regulated transnational borders.^[5] Twenty two of twenty eight member states have facilitated the ease of travel by creating the Schengen Area, a coalition of countries who have agreed to abolish passport and border controls at their common borders.^[6] Furthermore in 2002 nineteen out of the twenty eight member states adopted the Euro as their official currency, allowing for easier and more efficient European based commercial transactions.

Great Britain has had a long and fraught relationship with both Europe and the European Union, and there are both historical and contemporary factors at play in explaining the fifty one point 9 percent vote for leaving the EU. Beginning with the former, Britain, as the empire it once was, has a clouded history with that of prominent European powers like France and Germany. For some, membership within the European Union is seen as relinquishing control to countries Great Britain once used to dominate.^[7] In addition, Great Britain is one of the biggest financial contributors to the European Union; however, given the 2008 global economic recession, British citizens have seen their financial contribution to the EU used to help bail other European countries, such as Spain, Portugal and Greece, out of financial distress. Outside of economics, immigration also served as a large divisive issue in the Brexit campaign. Vote Leave campaigners argued that Britain must have stricter border controls, claiming that many immigrants are taking jobs away from British citizens, a mindset that is fundamentally anti-Europe. The UK Independence Party capitalized on these complex issues, aiming their politics at those that disagreed with European ideals to achieve one main goal: to leave the European Union. The Independence Party began to gather intense support prior to the vote citing sovereignty, border control, and immigration as their main reasons for voting in favor of Brexit. With the emergence of the Syrian refugee crisis, immigration became a growing concern in Great Britain, with fears of diminishing employment opportunities lurking in the forefront of the British working class. In an attempt to combat UKIP’s growing political support, the Tory Party, under David Cameron, promised to hold an in-or-out referendum on Great Britain’s status within the European Union. He explained that an “In” vote would be on renegotiated terms, and an “Out” vote would mean a divorce from the Union entirely. Evidently, the simple, yet extremely complicated in-or-out vote created a clear divide across Great Britain.

Reshuffling of British Cabinet & Article 50

After the results of the Brexit referendum, David Cameron, on the steps of No.10 Downing Street, announced that he would be stepping down as Prime Minister of the United Kingdom. Cameron explained:

“I was absolutely clear about my belief that Britain is stronger, safer and better off inside the E.U. I made clear the referendum was about this, and this alone, not the future of any single politician, including myself. But the British people made a different decision to take a different path. As such I think the country requires fresh leadership to take it in this direction”.^[8]

With a vacancy for the Prime Minister position campaign groups on both sides of the referendum began advocating for replacement Prime Ministers, with Boris Johnson, former Mayor of London, garnering the most support early on. Other campaigners aiming for the role of Prime Minister included Theresa May, Michael Gove, Stephen Crabb, Liam Fox, and Andrea Leadsom. Though their initial efforts were strong, these candidates slowly began withdrawing from the political race. Liam Fox was first after receiving the least amount of votes from the Conservative party. Not long after, Crabb withdrew his name and pledged support to Theresa May. Soon, only two candidates remained: Theresa May and Andrea Leadsom. Once Leadsom quit the race, Theresa May was elected leader of the Conservative party, Prime Minister, and political leader responsible for negotiating the terms of Great Britain’s divorce from the EU. In her first act as Prime Minister May decided to reshuffle her cabinet by making the following appointments:

Philip Hammond: The former Foreign Secretary who campaigned to remain within the European Union. Hammond was appointed to Chancellor of the Exchequer. He will be responsible for steering Britain’s economy through Brexit and post-Brexit negotiations.[9]

• Boris Johnson: The former Mayor of London has become the new Foreign Secretary. Johnson was one of the foremost voices for Vote Leave’s campaign and will now be responsible for a role that looks very different with Great Britain on the outside of the European Union.[10]
• David Davis: An avid Vote Leave campaigner and former political rival to David Cameron, Davis has been appointed as the newly created: “Secretary of State for Exiting the European Union.” This position is known otherwise as the Brexit Secretary.[11]
• James Brokenshire: Brokenshire was the former Immigration Minister and campaigned to remain in the EU. He has been newly appointed as the Northern Ireland Secretary. Brokenshire takes over for Theresa Villiers, who resigned from the cabinet.[12]

But what jurisdiction do these individuals have with respect to their country and the European Union? The right of a member state to withdraw from the EU was introduced for the first time with the ratification of the Lisbon Treaty in 2009. Under Article 50 in the Treaty of the European Union, procedural requirements are set out for a country that wishes to withdraw.[13] Article 50 must be triggered by the member state withdrawing in order for formal negotiations about leaving the European Union to begin. These negotiations must be completed within two years. If a country fails to make an agreement within these two years, its membership automatically ends, unless the European Council and the member state jointly decides to extend the negotiation period.[14] Following the June referendum, Cameron refused to invoke Article 50, leaving it to his predecessor to determine when to start the clock on departure negotiations. Prime Minister Theresa May has said she will invoke Article 50, thus initiating formal negotiations on Brexit, by the end of March 2017, leading to a full exit by 2019.[15]

UK High Court Decision

On November 3^rd 2016, the British government’s plan for enacting Article 50 and leaving the European Union was brought to a halt. The UK High Court ruled that Prime Minister May and her cabinet must get approval from Parliament before the process can begin.[16] Beforehand, May had planned to start the legal process of leaving the E.U in March 2017. However, numerous British citizens opposing Brexit appealed to the UK High Court on account of the referendum’s violation of their inalienable rights as a European. More specifically, under the European Communities Act of 1972, Great Britain inherited certain legal rights created by EU law. Claimants of the High Court recognized that, by invoking Article 50, Great Britain is violating these rights.[17] The High Court verdict: only Parliament can legislate for such rights to be removed.

Thus, the High Court ruled that it is impermissible for the Prime Minister to legally authorize the notification of Article 50 without the approval of Parliament. It also must be noted that the Referendum Act of 2015 — the act that authorized the holding of the Brexit vote – only made provision for an advisory referendum and did not give statutory authority for the triggering of Article 50. To little avail, Prime Minister May suggested that initially all EU rights would remain legal upon Britain’s departure from the Union and that, over time, the British government would slowly reform these rights into long-standing law. This uncertain horizon, however, did not appease the claimants of the High Court case. Soon after this verdict, May and her cabinet appealed the High Court’s decision to the UK Supreme Court. The Supreme Court will gather all 11 justices — the largest court ever assembled in Great Britain – to have a four-day hearing in early December 2016.[18] Prime Minister May still intends on enacting Article 50 by March 2017. If the decision is upheld, the government will want legislative authorization from Parliament as quickly as possible. Upon this prospective outcome members of Parliament will be given a chance to uncover future governmental positions on negotiating Britain’s departure from the EU. Parliament has required that Prime Minister May outline her exit strategy for Brexit, but May refuses to do so, claiming that it would “impede her flexibility in negotiations, preventing Britain from getting the best deal possible.” [19]

In opposition to the High Court’s decision, the government claimed that executive powers were sufficient to give notice to the EU on behalf of Parliament. However, uncertainty looms, as the High Court did not specify the form of vote or approval needed from Parliament. If the vote is a simple yes-or-no question, members of Parliament will be forced to make very affirmative, and potentially polarizing, decisions. Such acts will put into questions these politicians best judgment and may compromise on the desire of their constituents. MPs are also worried about holding onto their seat in Parliament, especially if a general election is called early, adding to the difficulty in deciding how best to vote. If desired, May could call a vote of no confidence and seek an early general election, hoping to gain a wider mandate of Vote Leave supporters in Parliament. The implications of this move are, for now, unclear and I think, given the bigger picture, that this scenario is unlikely. The High Court decision does not directly prevent Brexit but merely challenges the legality and constitutionality of those responsible for invoking Article 50.

Pre-Brexit Ireland

In the lead-up to the June 23 vote, the leadership of the Republic of Ireland grew increasingly worried, for a variety of reasons. Firstly, as a member state of the EU, the withdrawal of any country from the Union would affect Ireland, especially if that country was its next-door neighbor and economic partner. Secondly, Northern Ireland is a part of Great Britain, and the Republic of Ireland has a long and complicated history with the North. Both countries also have a tense relationship with the United Kingdom. The Republic of Ireland was granted independence from Great Britain after the signing of the Anglo-Irish Treaty of 1921. While the treaty marked independence, it also marked the start of the Irish Civil War. Division over the support and rejection of the treaty established the foundation of two modern political parties, Fianna Gael and Fianna Fáil, respectively.

While there were many details and agreements within the treaty, the most conflicting agreement was regarding the geopolitical boundary between Northern Ireland and the “Irish Free State”.^[20] In accordance with the Anglo-Irish Treaty 1921, six counties on the island of Ireland, (Derry, Down, Antrim, Armagh, Fermanagh, and Tyrone) belong to, and are governed by Great Britain.[21] The wording of the Treaty is as follows:

“…shall determine in accordance with the wishes of the inhabitants, so far as may be compatible with economic and geographic conditions, the boundaries between Northern Ireland and the rest of Ireland, and for the purposes of the Government of Ireland Act 1920, and of this instrument, the boundary of Northern Ireland shall be such as may be determined by such Commission”.^[22]

The commission referred to above is the Boundary Commission, a committee established in 1924 with one representative from each of the governments of the United Kingdom, the Irish Free State,[23] and Northern Ireland. When the Boundary Commission first convened, Irish nationalists looked to alter the original border, drawn in 1920 under the Government of Ireland Act, in the hopes of conglomerating significant areas with nationalist majorities. However, a copy of the original border was leaked to The Morning Post in 1925, causing outcry from both unionists and nationalists. As a result, the Boundary Commission could do nothing but maintain the original border, hoping to avoid upsetting either side in the process of adjusting what already existed. The Irish Free State eventually became Éire, and, after full independence, became the Republic of Ireland in 1949. The Anglo Irish Treaty of 1921 gave rise to a divided Ireland and resulted in a civil war. The border between Northern Ireland and the Republic was a source of tension for groups on both sides, eventually leading to a period of intense violence during the 1970s and beyond. The period 1968-1998, known as The Troubles, brought political violence and terrorist attacks to the destabilized region causing the deaths of over 3,600 people as well as thousands of injuries.[24] The violence occurred between an overwhelmingly Protestant majority who wanted to remain part of the United Kingdom and a nationalist Catholic minority who wished to become part of the Republic of Ireland. In an attempt to end violence, cross-party talks began in 1996, but nothing was achieved until the signing of the Good Friday Agreement in 1998(to be discussed in more detail later).[25]

Irish Reaction

A week after being named the new Prime Minister, Theresa May met with Irish Taoiseach[26] Enda Kenny. May assured both nations that she wanted to make Brexit a success for them, commenting that “our discussions today have focused on Brexit; the particular impact on the Republic of Ireland and what this means for our economic relationship, travel between our countries, and the peace process.”[27] These three areas of discussion are of critical importance to the future of Ireland and to its relationship with Great Britain. Taoiseach Enda Kenny echoed May’s statement outlining the common issues they share after the referendum decision. Kenny acknowledged that “it’s not the outcome that we wanted in Ireland, but we respect the decision of the UK electorate, and we now must work out the consequences of that.”[28] Kenny also addressed the people of Ireland in a statement, emphasizing similar areas of concern but comforting the people with reassurance that “there will be no immediate change to the free flow of people, goods, and services.”[29] At the top of the Irish government’s priority list are the implications of this vote for Northern Ireland and the relationship between the North and South, something that will require careful consideration in the future and in ongoing conversations and negotiations. Taoiseach Enda Kenny closed his statement with a reminder to the Irish people that Ireland will remain a member of the European Union, noting that it is “profoundly in our national interest” and that the next phase of negotiations with Great Britain may not start for months.[30] As these discussions transpire, one factor remains evident: Brexit will have a significant impact on both Northern Ireland and the Republic of Ireland.

United Ireland

In the final count of votes from Northern Ireland, fifty five point eight percent of people voted to remain, with only forty four point two percent voting in favor of leaving the EU. With a majority of Northern Irish citizens wanting to remain, it is no surprise that the idea of a United Ireland became a topic of household conversations and political speeches across the island. In a British-Irish conference in September 2016, Taoiseach Enda Kenny said that the possibility of Irish unity must be considered in Britain’s negotiations to leave the EU. “The possibility of unity by consent must be maintained as a valid democratic option into the future,” Kenny explained, “that means that, if there were democratic consent to Irish unity at some time in the future, there must be a mechanism to ensure that democratic decision can be implemented within the European Union, as was the case in Germany.”[31]

The possibility of a United Ireland has not been seriously discussed in Irish politics, or amongst the Irish people, since the institution of the Good Friday Agreement. Since achieving independence, the Republic of Ireland has operated a common travel area with Northern Ireland, although security checks were implemented during wartime and The Troubles. As it stands, the border shared between Northern Ireland and the Republic is the only part of Great Britain that will remain connected to a part of the European Union once Great Britain leaves the international institution. Some politicians suspect that a hard border with passport control and customs checks will be implemented along the 317-mile border between the North and South. Enda Kenny, however, announced his intent on preventing such border construction, emphasizing that this is in the best interest of all three governments: “All three administrations share the common objective of wanting to preserve the common travel area, and an open border on the island of Ireland.”[32]

Economic Relationship

Brexit will greatly affect trade and foreign direct investment in the Republic of Ireland. In the short term, the Irish economy will be hurt by the volatility of Great Britain’s market. In particular, the alarming eleven point one percent drop in sterling that immediately followed the Brexit decision has hit Irish exporters.[33] The sharp fall caused Irish exports to the UK, specifically meat and dairy products, to become fifteen percent less competitive in their respective markets.[34] Director of the Irish Business and Employers Confederation (IBEC), Fergal O’Brien, commented on the extent of the economic hit to the Republic: “The Brexit strain is manifest and intense. Without urgent action to address competitive pressures, hundreds of millions of euros worth of exports and thousands of jobs will be lost.”[35] IBEC analysis of historical trade between Great Britain and Ireland showed that a one percent weakness in sterling results in a point seven percent drop in the value of Irish exports. If the pound fell to £0.90 to the Euro, that would cost Ireland $880 million ($USD) in food exports and 7,500 jobs in that sector alone.[36] A study done by the Economic and Social Research Institute estimates that Brexit will significantly impact bilateral trade flows between Ireland and the U.K by twenty percent or more.[37] This figure will differ greatly across commercial sectors and products; agriculture, food and beverages, and basic metals industries most impacted given their dependence on British imports.

On a positive note for Ireland, Great Britain will become less attractive to foreign direct investment (FDI) because of the uncertainty surrounding the future of its economy, along with the reduced access to the EU single market. This may be counterbalanced by an increase in FDI in the Republic of Ireland, especially given Ireland’s low corporate tax rate (twelve point five percent), English-speaking labour force, and EU membership. Some FDI in Great Britain could also choose to relocate to Ireland for the same reasons. Already a leading city in technology, Dublin appears to be becoming the new hub for financial firms’ European Headquarters. Since the Brexit vote, areas within the financial industry including banking, insurance, and funds are in talks and negotiations with IDA Ireland, the agency responsible for the attraction and development of foreign direct investment in Ireland.[38] Despite some initially ominous statistics, Ireland is in a good position to shield itself from potentially destructive effects of Brexit, maintaining the fastest-growing economy in Europe despite Brexit’s slowing of its annual GDP growth.[39]

Peace Process

On April 10, 1998, representatives from the Irish and British governments and Northern Irish political parties co-signed the Good Friday Agreement.[40] This agreement brought an end to over thirty years of sectarian conflict in Northern Ireland, the period known as The Troubles. The agreement set up the Northern Ireland Assembly, a power-sharing executive that linked Northern Ireland to assemblies in both Dublin and London. The Northern Ireland Assembly sits in the Parliament Buildings at Stormont Castle and is the center of governmental power in the North. Northern Irish residents voted seventy one point tweve percent in favor of a referendum supporting the agreement.[41] The peace process has not been without problems since the signing of the Good Friday Agreement; disagreements over controversial issues such as Orange Order marches, policing, and decommissioning of paramilitary groups continue to this day. However, what once seemed impossible, given the polar opposite political alignment of Northern political parties, was achieved under the Good Friday Agreement, a testament to how far Northern Ireland had come since the dark and violent era of The Troubles.

Today, the Northern Ireland Assembly is led by First Minister Arlene Foster of the Democratic Unionist Party (DUP), seconded by Deputy First Minister Martin McGuiness from Sinn Féin.[42] Following the Brexit decision, Foster and McGuiness wrote to Prime Minister May declaring their expectation of being fully included in negotiations regarding the UK’s future relationship with the EU. In this letter, they stressed that “the border cannot become a catalyst for illegal activity or create an incentive for those who wish to undermine the peace process.”[43] Newly appointed Northern Ireland Secretary James Brokenshire echoed these sentiments, saying he wants to chart “a positive new future for Northern Ireland.”[44] Taoiseach Enda Kenny emphasized the importance of the relationship between the Northern Ireland Assembly and the governments of Ireland and Great Britain:

“We [PM May and Taoiseach Kenny] did repeat and reiterate the importance of the partnership between our two governments as co-guarantors of the Good Friday Agreement, in supporting the peace process, and in contributing to stability and continued progress in Northern Ireland. We are both very much committed to the 1998 Good Friday Agreement… and we will continue to work for a prosperous and peaceful Northern Ireland in the time ahead.”[45]

Neither Northern Ireland nor the Republic wants to see a return to pre-Good Friday Agreement political violence, given the significant progress both countries have made since then. It is imperative that the border situation be a top priority for the British government in post-Brexit negotiations.

Northern Ireland Reaction

A majority (fifty five point eight percent) of Northern Ireland residents voted to remain within the European Union. Now, after the referendum has declared an exit from the EU, many have asked Prime Minister Theresa May to address the issues of Northern Ireland and the peace process before initiating Article 50. Northern Ireland has a fraught, complicated, and violent history with the Republic of Ireland. The membership of both Ireland and Great Britain within the European Union was a cornerstone of the 1998 Good Friday Agreement, symbolizing the unity of the two nations in mitigating continued political violence at the time.[46] The North-South relationship has changed considerably since the 1970s but feelings about a potentially united Ireland seem to have remained strong following the Brexit decision.

In a survey conducted in September 2016, support for a United Ireland increased, with twenty two percent supporting an all-Ireland approach, up from seventeen percent just three years earlier.[47] Although the survey was conducted amongst a small sample group (1000 people), it revealed some interesting perspectives: nearly half of Catholics supported the idea of a united Ireland, while barely a quarter of Protestants do. In addition, fifty two percent of those interviewed supported the idea of the government calling a border poll within the North.[48] Those warming up to the idea of a united Ireland may be thinking economically, knowing that a thirty-two county Ireland would see a big economic advantage for the North while also modestly benefitting the South.[49] At the moment of writing, it is still not clear whether a united Ireland could ever become a reality, but the idea is definitely making headlines and news stories in both the UK and in Ireland.

In contrast to a united Ireland, the idea of an independent Northern Ireland has also been publicly debated since the Brexit result. Across the Irish Sea, Northern Ireland’s neighbor, Scotland, held a referendum for independence in 2014. In response to the question “should Scotland be an independent country?” fifty five point three percent of Scots voted “No” and forty four point seven percent voted “Yes”, with eighty four point five nine percent voter turnout.[50] Scottish independence is a likely outcome after the Brexit vote; but for Northern Ireland, such a fate is much more unlikely. Scotland and Northern Ireland are both small, geographically and by population, but the former could be much more economically viable by itself compared to the latter. That being said, a report has emerged with another political possibility. The report outlines a hypothetical “voluntary union” between England and Wales, Northern Ireland, and Scotland. This proposed union would see a fully developed government in each country, allowing each parliament to have full sovereignty over its own affairs.[51] In this model, there would be an option to voluntarily sign up for “shared UK functions which would include the monarchy as head of state, foreign affairs, defense, national security, immigration…and the civil service.” Countries would have the option to opt in or out of these areas.[52] This proposed independent model is highly unlikely, but nevertheless is interesting to consider.

Border

It is not possible to talk about the effect of Brexit on Northern Ireland without mentioning the possible effects that implementing a border would have on the six Northern Irish counties. A hard border would be the biggest threat to peace between the North and South, an eerie reminder of the military checkpoints that dotted the border during the violent decades of The Troubles. As of right now, residents on either side of the border can freely travel between both countries. In fact, there are a lot of people who live on one side of the border and work on the other, relying heavily on the Common Travel Area: the free movement between the two countries, something that will most likely not survive after Brexit negotiations. Immigration was a key issue of the June 23^rd referendum, and directly affects the question of a hard border. Britain wants to be able to control its borders, especially given the recent rise in refugees in Europe. If Great Britain chooses to tighten up its borders on the mainland, then, unfortunately, the same applies to the border on the island of Ireland. At this time, no one is quite sure what the border will look like, whether it will be traffic stops, fences, or checkpoints, not to mention what will happen when the border crosses people’s houses, farms, and land. If a hard border does get implemented, it will mean big problems for Northern Ireland; if it does not, then it means big problems for Great Britain, as it would provide an easy path for refugees and migrants within the EU to get into Great Britain.

Economic Effects

Staying within the United Kingdom was once a sign of guaranteed stability and prosperity, but now certain communities, including Northern Ireland, fear the economic uncertainty of leaving the EU. Despite holding only three percent of the British population, Northern Ireland will be the region most economically affected by Brexit. Northern Ireland is a relatively poor province that relies heavily on its membership in the European Union for financial resources. For Northern Ireland, leaving the EU means leaving behind the financial support the union has provided since peace settlements. Without those funds, there is danger of a return to low-intensity violence within Northern Ireland and across the border. Northern Ireland receives significant economic support from the European Union that has allowed the province to flourish and thrive. The tourist industry is now worth £723 million ($895 million), the IT industry is growing, and there are plans to bring corporate tax rates down to twelve point five percent, in line with the tax rate in the Republic.[53] Northern Ireland received £2.5 billion ($3.1 billion) in the last EU funding round, with a further £2 billion ($2.47 billion) promised before 2020.[54] Furthermore, the EU has rolled out peace programs, cross border business development, subsidies for agriculture and fishing, and rural development programs in the North. Even the most recent creation of new infrastructure and improvement of existing structures in the North are thanks to monetary support from the European Union. If financial support is taken away, what will happen to the maintenance of these structures? A large portion of employment in Northern Ireland is linked to industries that have major trade agreements within the European Union and thus will be heavily affected once Great Britain leaves.[55] Ulster Bank, Northern Ireland’s largest bank, claimed that the uncertainty that surrounds the Brexit negotiations would heavily impact foreign direct investment in the North.[56] Northern Ireland may have to cut back on government spending and eliminate jobs, leading to high unemployment and consequently low economic growth in the area.

Scotland

An interesting actor in the Brexit fallout is Scotland. The 1707 Act of Union brought together the Kingdom of England and the Kingdom of Scotland, which had been separate states with separate legislatures but the same monarch, as “united into one kingdom by the name of Great Britain.”[57] Since then, the two countries have shared plenty of similarities, such as royalty and religion, but they also have their differences, both culturally and historically. It wasn’t until the 20^th century that Scottish political parties started to advocate for home rule, what later became known as the Scottish devolution, whereby the UK parliament would give power to a Scottish parliament. The Scots National League, which later became the Scottish National Party, was formed in 1924 with the goal of obtaining Scottish independence. There were small political organizations that campaigned for independence throughout the 1940s and 50s, but no political party saw large electoral success until the Scottish National Party took a number of parliamentary seats in the 1960s. A proposal for a devolved Scottish Assembly was held through a Scotland-wide referendum in 1979. The referendum failed because a clause was inserted into the legislation requiring more than 40 percent of all eligible voters to agree to devolution before it took place.[58] The next constitutional reform took place in 1997, when a second devolution referendum was held. This referendum was successful and passed the Scotland Act 1998, which set up the Scottish parliament with power to legislate certain outlined matters within Scotland.[59] In 2011, the Scottish National Party (SNP) emphasized its commitment to hold a referendum on Scottish independence during the 2011 parliamentary election cycle. After winning the majority of seats, the SNP followed through on its promise and held a referendum in 2014 asking, “Should Scotland be an independent country?” Before the vote, the Scottish government published a 670-page white paper titled Scotland’s Future, which outlined the case for independence and the means by which Scotland would become an independent country.[60] The white paper addressed social policies with a large emphasis on childcare, as well as considering the pension system and minimum wage, among other topics. In the end, Scotland voted against becoming an independent country by fifty five point three percent to forty five point seven percent.[61] When Prime Minister Cameron announced his intention to hold a referendum on Great Britain’s membership within the EU, Scottish political parties again broached the subject of Scottish independence.

Despite the overall British vote to leave the European Union, an overwhelming majority of Scots voted to remain in the Union; sixty two percent voted in favor of remaining, with thirty eight percent voting to leave.[62] Scotland’s first minister, Nicola Sturgeon, said that it was “democratically unacceptable that Scotland face the prospect of being taken out of the EU against its will.”[63] Immediately after the vote, Sturgeon said that the Scottish government would begin preparing legislation to enable another vote on Scottish independence. Great Britain’s negotiations with the European Union could result in a hard exit, whereby they leave the single market, end free movement, and reintroduce customs borders. The Scottish government is confident that, if this is the outcome of negotiations, it will only strengthen the support for Scottish independence. Although independence is what factions of Scotland ultimately desires the idea would raise questions about its border to England, a similar problem that Northern Ireland is about to encounter. There would have to be discussions around what a hard border between Scotland and England would look like, what the travel area would look like, and whether a strict border would have far-reaching effects on Scotland’s relationship with England. Brexit has caused Scots to identify more as Scottish than British and has increased the emphasis that Scotland places on its relationship with Europe. In this way, Scots embrace their European-ness in an attempt to distinguish themselves from their xenophobic and anti-Europe neighbors to the South. In her first speech after the vote, First Minister Sturgeon outlined the Scottish priorities, announcing, “I intend to take all possible steps and explore all possible options to give effect to how people in Scotland voted —in other words to secure our continuing place in the EU, and in the single market in particular.”[64] Scotland relies heavily on the European Union for trade and business ties, hence Sturgeon’s emphasis on maintaining the single market. Economically, Brexit came at a less than ideal time for Scotland. They are currently facing low levels of oil and gas and have recently seen a slowdown of their economic growth. As the Brexit negotiations move forward, it will become increasingly clear whether Scotland will get any, some, or none of the protections it seeks from this Brexit situation.

Larger Consequences for the European Union

Great Britain is the first country to vote to leave the European Union since its inception. As a result, some people fear that Brexit may have a domino effect around Europe, causing other countries to also try and secede. Brexit will impact EU member states in a variety of ways, some more severely than others depending on their connectivity with Great Britain. Three countries stand out for the likely heavy impact Brexit will have on them: most obviously Ireland, but also the Netherlands and Cyprus. The Netherlands, Cyprus, and Ireland share very strong trade, investment, and financial links with Great Britain and are closely aligned in terms of regulatory and trade policies.[65] The Netherlands’ political landscape is vulnerable to the consequences of Brexit. Right-wing parties have been garnering support around Europe and the Netherlands is no exception, where the fastest-growing party is the Partij voor de Vrijheid (Party for Freedom, PVV), a nationalist, right-winged, populist party. The party is consistently Eurosceptic and focuses on issues like immigration, seeking to halt immigration from the east and taking a strong assimilationist stance on the integration of immigrants into Dutch society.[66] PVV has been advocating for withdrawal from the European Union, a current topic in the ongoing political elections. Similarly in Denmark the Dansk Foleparti, the Danish People’s Party (DPP) has gathered support on a nativist, anti-immigrant, far-right political platform. The DPP won twenty one percent of the vote in the 2015 general election, showing the increase in anti-right mindsets across Europe. France is also no exception to the rise of right-winged parties. The French Presidential election is due to be held in late April or early May, and right wing party leader Marine Le Pen is in the running to win it. Le Pen is the president of La Front National, the National Front (FN), a national-conservative political party in France that opposes mass immigration and is outwardly anti-Europe. Although the concept of leaving the European Union is a hot topic across the continent right now, many countries will likely wait to see the outcome for Great Britain before committing themselves to the same course.

Conclusion

Great Britain’s decision to leave the European Union may be one of the most important decisions of 2016. This move is the first of its kind and while many countries may disagree with the final outcome, they will have to find a way to cope with the political and economic fallout. Long-term effects are still unknown and will be for years but some short-term consequences have become apparent since the June vote. Great Britain’s economy faltered when the value of the pound declined sharply in the hours and days after the vote. There was an increase in race hate crimes across Great Britain, given the strong position Vote Leave took on immigration. Fellow European countries were also reacted putting a quick halt to the UK’s presidency of the council of the European Union that they due to take up in July 2017. The longer-term effects on the British economy or Brexit’s impact on immigration will not come to fruition until Prime Minister May triggers Article 50. Northern Ireland and the Republic of Ireland will be affected most by Great Britain’s departure from the European Union. The history between these two countries will play a big part in negotiations with Great Britain. The biggest implication is the decision regarding the border between the North and the South. Neither the Irish government nor the Northern Irish Assembly want to see a return to borders of the past, something that would remind both countries of the violence and terrorism they have since overcome. However if no hard border is implemented then Great Britain may suffer from a migrant crisis, something Vote Leave campaigned to end. Economically, Great Britain and the Republic of Ireland are woven together, being each other’s biggest trading partners. Brexit comes at an inopportune moment for Ireland as the country has successfully recovered from the global economic recession. However, for Ireland, there may be an economic silver lining to Brexit. Foreign direct investment may choose to relocate to Ireland because of its talented, English-speaking labor force, low corporate tax rate, and increasingly vibrant capital city. Northern Ireland will also suffer economically after Great Britain leaves the European Union. The small country of less than two million people will have to find a way to fill the void of financial support that the EU provides. At the same time Northern Ireland may be the next European country to have an influx of migrants if no hard border is put in place between it and the Republic.

At the time of writing, the economic and political implications of Brexit for the island of Ireland are not entirely clear. What is clear is that the next couple years will be an interesting, formative, and transitional period for Ireland, Northern Ireland, Great Britain, and Europe as a whole.

[1] “EU Referendum Results – BBC News,” BBC News, June 24, 2016.

[2] “Eight Reasons Leave Won the UK’s Referendum on the EU,” BBC News, June 24, 2016.

^[3] Ibid.

[4] Eric Platt and Michael Mackenzie, “How Global Markets Are Reacting to UK’s Brexit Vote,”  Financial Times, June 24, 2016.

^[5] “The History of the European Union,” European Union Website, accessed September 29, 2016.

^[6] “What Is the EU, Why Was It Created and When Was It Formed?” Michael Wilkinson, The Telegraph, June 22, 2016.

^[7] Sam Wilson, “Britain and the EU: A Long and Rocky Relationship,” BBC News, April 1, 2014.

^[8] Heather Stewart, Rowena Mason, and Rajeev Syal, “David Cameron Resigns after UK Votes to Leave European Union,” The Guardian, June 24, 2016.

[9] “Theresa May’s Cabinet: Who’s in and Who’s Out?” BBC News – UK Politics, July 14, 2016.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] “Article 50 TEU: Withdrawal of a Member State from the EU,” European Parliament, Europa, European Union Research Service, February 2016.

[14] Ibid.

[15] Jenny Gross, “U.K.’s Theresa May Pledges to Set EU Divorce in Motion by End of March,” WSJ, October 2, 2016.

[16] Stephen Castle and Steven Erlanger, “‘Brexit’ Will Require a Vote in Parliament, U.K. Court Rules,” The New York Times, November 3, 2016.

[17] Fred Lewsey, “Brexit: High Court Ruling on Article 50 Explained,” University of Cambridge, November 3, 2016.

[18] Anne Perkins, “High Court Brexit Ruling: What Does It All Mean?” The Guardian, November 3, 2016.

[19] Ibid.

^[20] “Anglo-Irish Treaty 1921,” National Archives, December 6, 1921.

[21] Ibid.

^[22] Ibid.

[23] The Republic of Ireland was known as the Irish Free State after the Anglo-Irish Treaty 1921.

[24] “History – The Troubles,” BBC History, November 24, 2016.

[25] Ibid.

[26] Taoiseach is the Irish word for Prime Minister.

[27] “PM and Taoiseach Enda Kenny Statements: 26 July 2016,” GOV.UK, Prime Minister’s Office, July 26, 2016.

[28] Ibid.

[29] Enda Kenny, “Statement by Taoiseach Enda Kenny on the UK Vote to Leave the European Union,” RTE News, June 24, 2016.

[30] Ibid.

[31] Denis Staunton, “Irish Unity Must Be Considered in Brexit Talks, Enda Kenny Says,” The Irish Times, September 9, 2016.

[32] “Enda Kenny: Work Being Done to Keep Border with Northern Ireland Open,” Irish Examiner, June 27, 2016.

[33] Platt, Mackenzie, “How Global Markets Are Reacting.”

[34] Lisa O’Carroll, “Irish Exporters Feel Chill from Brexit Fall in Sterling,” The Guardian, August 3, 2016.

[35] Ibid.

[36] Ibid.

[37] Alan Barrett, Scoping the Possible Economic Implications of Brexit on Ireland, Economic and Social Research Institute, November 2015.

[38] Reuters, “Ireland Moves Swiftly to Lure Financial Jobs from the UK After Brexit,” Fortune, July 27, 2016.

[39] Phillip Inman, “Irish Economy Surges 26% as Revised Figures Take in Foreign Investment,” The Guardian, July 12, 2016.

[40] “Good Friday Agreement,” BBC History,  accessed November 23, 2016.

[41] Ibid.

[42] “Executive Ministers,” The Northern Ireland Assembly, accessed November 23, 2016.

[43] “NI Leaders Seek Inclusion in Brexit Talks,” RTE.ie, August 11, 2016.

[44] “Northern Ireland Secretary Does Not Want Return of Hard Border,” RTE News, July 15, 2016.

[45] “PM and Taoiseach Enda Kenny Statements.”

[46] Welle.Deutsche, “United Ireland Back on the Agenda,” DW.COM, July 16, 2016.

[47] Amanda Ferguson. “Sharp Rise in Support for United Ireland, Survey Reveals,” The Irish Times, September 8, 2016.

[48] Ibid.

[49] Harry McGee, “Both Republic and North ‘could Benefit from United Ireland,'” The Irish Times, October 9, 2016.

[50] “Scottish Independence Referendum,”  GOV.UK, accessed November 22, 2016.

[51] James O’Shea, “Independent Northern Ireland Possible as Top Tories Talk Federal UK,” IrishCentral.com, July 11, 2016.

[52] Ibid.

[53] Kathryn Gaw, “Northern Ireland’s Greatest Fear from a Brexit Is the Return to Conflict,” The Guardian, June 21, 2016.

[54] Ibid.

[55] Paul Mac Flynn, “The Economic Implications of BREXIT for Northern Ireland,” Nevin Economic Research Institute, April 2016.

[56] Conor Humphries and Amanda Ferguson, “How Brexit Has Suddenly made the prospect of a United Ireland Thinkable,” The Independent, July 3, 2016.

[57] “Union with England Act 1707,” Legislation.gov.uk, Statute Law Database, National Archives, accessed December 4, 2016.

[58] BBC News, “EU Referendum Petition Signed by More than 2.5m,” BBC News, June 25, 2016.

[59] “Scottish Parliament Official Report – 12 May 1999,” Scottish Parliament, accessed December 4, 2016.

[60] “Scottish Independence: Referendum White Paper unveiled,” BBC News, November 26, 2013.

[61] “Scottish Independence Referendum – Results,” Scotland Decides, BBC News, Sept. 2014.

[62] BBC News, “EU Referendum Results – BBC News,” BBC News, June 2016.

[63] BBC News, “Brexit: Nicola Sturgeon Says Second Scottish Independence Vote ‘highly Likely,'” BBC News, June 24, 2016.

[64] Ibid.

[65] “Brexit: The Impact on the UK and the EU,” Global Counsel, June 2015.

[66] Ibid.

Bibliography

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Barrett, Alan. Scoping the Possible Economic Implications of Brexit on Ireland. Economic and Social Research Institute, November 2015.

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“Eight Reasons Leave Won the UK’s Referendum on the EU.” BBC News. June 24, 2016.

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Castle, Stephen, and Steven Erlanger. “‘Brexit’ Will Require a Vote in Parliament, U.K. Court Rules.” The New York Times. November 3, 2016.

Deutsche Welle. “United Ireland Back on the Agenda.” DW.COM. July 26, 2016.

“Enda Kenny: Work Being Done to Keep Border with Northern Ireland Open.” Irish Examiner. June 27, 2016.

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Inman, Phillip. “Irish Economy Surges 26 percent as Revised Figures Take in Foreign Investment.” The Guardian. July 12, 2016.

Kenny, Enda. “Statement by Taoiseach Enda Kenny on the UK Vote to Leave the European Union.” RTE. June 24, 2016.

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Perkins, Anne. “High Court Brexit Ruling: What Does It All Mean?” The Guardian. November 3, 2016.

Platt, Eric, and Michael Mackenzie. “How Global Markets Are Reacting to UK’s Brexit Vote.” Financial Times. June 24, 2016.

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“Ireland Moves Swiftly to Lure Financial Jobs from the UK After Brexit.” Fortune. July 27, 2016.

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Staunton, Denis. “Irish Unity Must Be Considered in Brexit Talks, Enda Kenny Says.” The Irish Times. September 9, 2016.

Stewart, Heather, Rowena Mason, and Rajeev Syal. “David Cameron Resigns after UK Votes to Leave European Union.” The Guardian. June 24, 2016.

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Wilkinson, Michael, “What Is the EU, Why Was It Created and When Was It Formed?” The Telegraph. June 22, 2016.

Wilson, Sam. “Britain and the EU: A Long and Rocky Relationship.” BBC News. April 1, 2014.

My friend, you would not tell with such high zest

To children ardent for some desperate glory,

The old Lie; Dulce et Decorum est

Pro patria mori.

—Wilfred Owen[1]

Since France and the Netherlands rejected a European Constitution in 2005, the topic of a ‘European’ Constitution has become taboo. With the exception of Jürgen Habermas and Dieter Grimm’s ongoing debate on constitutional theory,[2] national politicians parry the topic of a formal constitution, hoping to deter electoral backlash.[3] Moreover, scholars willing to advocate for “a written federal constitution that unambiguously defines the rights of the European Union” run the risk of eliciting a barrage of academic criticism.[4] Ultimately, consensus dictates that the reforms of the 2007 Treaty of Lisbon have eclipsed the necessity of constitutionalization.

One simple explanation of Lisbon’s role in this taboo is the treaty’s appropriation of federalist principles. Supranationally, the landscape of the European judiciary has changed considerably now that citizens have been granted distinct juridical rights under EU and national law; the European Court of Justice has been vested with powers of judicial review; and European law has become increasingly understood as domestic law, not international law.[5]

As a result of the Lisbon reforms, many questions remain unanswered in the field of European constitutional theory. This inertia may have been borne from economic apprehension regarding the European Economic and Monetary Union’s structural flaws, as Habermas suggests, or from the existential crisis of ‘European’ identity and the associated debate over which normative principles ought to guide European integration.[6] Although Grimm argues that the ostensible “constitutional status quo” can “freeze” the extant democratic deficit in the EU, Habermas has suggested that the only way to alleviate the deficit would be to revise European treaties, in perhaps a sweeping ‘reconstitution’ of Europe.[7]

There is, however, an argument that Europe already has a constitution.[8] According to this argument, Europe’s constitution is implicit—a manifestation of the founding treaties and the incremental constitutionalization that has arisen from the growing EU legal system.[9] Müller has even suggested that the absence of a European constitution may itself be a distinctive European constitution.[10] The prominence of the EU in civil society has inextricably tied European civic identity with the EU such that the EU captures the political imagination of citizens, resulting in “patriotism” toward Europe’s unwritten constitution, or at least the idea of it.[11]

Patriotic sentiment toward a European constitution is not a modern phenomenon; in fact, the genealogy of “constitutional patriotism” dates back to the identitarian wreckage of post-war West Germany. Although the debate over democratic institutions in a nascent democracy was famously raised in Book VIII of Plato’s Republic,[12] West Germany put aside its Platonic and Aristotelian “love” of patria and Republican liberty in favor of stability.[13] Although the 1949 West German constitution was an exogenous document superimposed by Western allies, the West German political philosopher Dolf Sternberger emphasized the importance of “passionately rationalizing” this new constitution as a means of political stability.[14] According to Sternberger, citizens must not only collectively defend and identify with the democratic state, but they also must possess a civic reason to love the state and its constitution.[15] Sternberger called this affection, Verfassungspatriotismus, or constitutional patriotism. Modern scholarship criticizes Sternberger’s rendition as tendentiously illiberal in its prioritization of shared consciousness over full-fledged democracy with bountiful dissent.[16] However, the militancy of constitutional patriotism against radicalism can perhaps be appreciated in light of Sternberger’s fear of fascism resurfacing in Germany.

In the same vein, Karl Loewenstein advanced constitutional patriotism by further endowing it with concrete elements of militant democracy. Loewenstein argues that fascism is utterly devoid of rational content, and it relies on emotivist appeals. [17] If constitutional patriotism can inspire stringent adherence to democratic values that appeal solely to reason, then it may be permissible to prohibit certain features of democracy, such as free speech and assembly when practiced by any group with fascist leanings.[18] To the extent that Sternberger advocated militancy i.e. censorship, against fascism as a means of security, Loewenstein emphasized constitutional patriotism’s militant defense against reemerging fascism on the grounds of universally justifiable protection based in reason.

More recently, however, constitutional patriotism has become closely tied to the philosophy of Jürgen Habermas. Habermas, like his predecessors, argues that fascism’s grip over Germany during the war rendered the “Aristotelian polity” utterly “infeasible” as a modern paradigm.[19] With West German historians ambitiously seeking to expunge traces of fascism from the public sphere,[20] West German liberal democrats could no longer identify as citizens of a polity so closely tied to a repugnant past of illiberalism.[21] While Sternberger’s emphasis on state security and Loewenstein’s on militancy may be constitutive of constitutional patriotism, Habermas argues that they are not essential to the derivation of it. In his view, the condition of post-war Germany eradicated the necessity of fixtures of conventional morality like religion, nationalism, and quasi-sacred sources. In the “post-conventional” world, liberalism and the Enlightenment tradition of reason and secularism proved victorious, allowing citizens to hold impartial views separated from desire.[22] Ultimately, Habermasian constitutional patriotism emphasizes that political attachment ought to “center on the norms, the values and… the procedures of a liberal democratic constitution,” not historical or cultural communities centered on a polity.[23] In other words, there must be a love of shared political freedom and of the institutions that sustain it.[24]

Habermasian constitutional patriotism even holds the potential to develop outside of Germany as a guiding principle for European identity and integration.[25] The thought of a supranational constitutional patriotism is borne out of Habermas’ rejection of the “neoliberal illusion” that collapsing financial markets and grand scale violations of human rights can be dealt with by individual states or even coalitions of states.[26] Habermas’ vision of the EU as an apt target for constitutional patriotism also stems from the Enlightenment tradition of universality derived from reason, an idea enshrined in the EU’s central documents. Habermas cites how the spirit of the 1958 Luth Decision strengthened the constitutional principle of free expression, and how Article Six of the EU Treaty explicitly refers to the common constitutional traditions of protecting “human rights” and “the fundamental freedoms” of all citizens, without reference to specific history of culture.

The central argument of this paper rebuts the widespread scholarly claim that constitutional patriotism stems from the Enlightenment tradition; indeed, constitutional patriotism is not supported by the philosophies of prominent Enlightenment thinkers. I begin by dividing scholarship on constitutional patriotism into three camps: a universalist reading, a particularist (or communitarian) reading, and a compatibilist approach. From here, I argue that the universal nature of constitutional patriotism fails to provide a compelling reason for a citizen to swear allegiance to a European state; rather, constitutional patriotism explains why a citizen’s loyalty ought to lie with the state that best promotes universal constitutional principles. This criticism cites an inherent problem with the compatibilist approaches of Kleingeld, Muller, and Lacroix, all of whom attempt to reconcile Habermas’ universalist reading of constitutional patriotism with the communitarian reading advanced by Hayward. I will then raise a counter-objection that Habermas could leverage against my claim on the grounds that constitutional patriotism appeals to the communal European values of the Enlightenment, primarily reason and progressivism, which are inextricable from European identity. However, looking at the works of major Enlightenment thinkers, such as Hobbes, Locke, Rousseau, Burke, and Hume,[27] I argue that constitutional patriotism’s foundation on pure reason and its underlying assumption of inevitable progress fail to cohere with Enlightenment thought as seamlessly as Habermas would have us believe. I will conclude by suggesting that even if one were to overlook this paper’s critique of constitutional patriotism on theoretical grounds, the prospect of success for constitutional patriotism in the EU is further complicated by Eastern Europe’s dubious history with democracy.

The Trifurcation of Constitutional Patriotism

Each of the three interpretations of constitutional patriotism—the universalist, the particularist, and the compatibilist—conveys a distinct advantage of the theory. The universalist critique advanced by Habermas relies on the assumption that constitutionalism is an inherently universalist principle that relinquishes the need for nation-specific forms of patriotism. Derived from the Kantian tradition, this view asserts that citizens of a political state are analogous to free and equal co-legislators of moral law, who have moral obligations to all citizens irrespective of nationality, language, and custom.[28] Any citizen can understand these obligations, since they are derived from reason and thus universally accessible. Thus, universalists underscore attachment to a democratic order that promotes coexistence amongst citizens of diverse pre-political identities.[29] This iteration of constitutional patriotism seems to favor European integration as a process by which a “deliberative ‘we’ emerges so that there is no out group.”[30]

A particularist understanding of constitutional patriotism principally argues that any form of patriotism requires civic bonds particular to a single state. In order for constitutional patriotism to generate civic bonds to constitutional principles, “people need some politically particular interpretation of such principles.”[31] Scholars such as Lacroix and Hayward have pushed back against constitutional patriotism’s universal landscape by articulating that the nation is the ultimate horizon for political identity. According to this argument, constitutional principles appealing to universalism establish “bonds of social unity” that are not sufficiently strong to survive democratic majoritarian politics.[32] Though skeptical of the universalists’ reliance on reason, the particularists, i.e. communitarians, do not malign reason as the basis of civic attachment; rather, they emphasize that non-rational factors like language, culture, and history represent community affiliations that individuals prioritize over reason.[33] Though constitutional patriotism may be couched with “universal constitutional principles,” binding men’s “hearts” requires supplementary appeals to conventional channels and mores.

In recent years, Kleingeld, Lacroix, and Muller have endeavored to reconcile the communitarian and universalist views of constitutional patriotism. Muller asserts that theoretical justification for constitutional patriotism can only go so far. Reducing nationality and other non-rational attachments to the state to a secondary concerns, as the universalists do, may hastily dismiss the “ethical significance” that citizens place on these values.[34] That is, the basic unit of the universalist reading of constitutional patriotism, a rational being, will also be swayed by non-rational factors. As Lacroix’s account corroborates, the EU must make the shape and style of constitutional patriotism such that it both effectively advances its own universal principles while maintaining an inherent European character.[35] In her view, the particular characteristics of Europe’s constitutional patriotism are constituted by ‘militancy’ and ‘memory.’ Militancy, a characteristic influenced by Loewenstein, cultivates an “economy of moral disagreement” that seeks consensus on defining internal limits on democratic freedoms against illiberal democracies.[36] Crowding out emotional crowd politics that actively damage democratic life is an essential element of constitutional patriotism. [37]

The memory of the European public sphere also endows constitutional patriotism with particularity. Habermas’ account is situated historically, in the identitarian shambles of post-war Germany, which may reflect constitutional patriotism’s inextricable connection to its own history. Some scholars have advocated critically opening European national memories between member states as a means of deliberating what defines the ‘European’ identity.[38] This view attempts to democratize European memory: European states would endeavor to share responsibility for each other’s pasts with the aim of constructing a common political culture. While it is not prima facie evident that historical memories can be converged, this has not precluded scholars such as David Marsh from proposing reconciliatory committees that reopen the annals of history in order to cultivate European civic bonds.

‘The Knife of Reason’: Compelling A Particular Constitution

However, the compatibilist view fails to consider how the universalist dimensions of constitutional patriotism may override any ‘particular’ or communal attachment to a single European state. The universalist understanding of constitutional patriotism asserts that citizens have general duties to defend just democratic states, but this does not seem to imply that these duties require citizens to support any (or all) such states.[39] As Hayward argues, democracy needs to give a compelling sense of why citizens form a “people” with one group of particular strangers and not with another.[40] While ‘memory’ and ‘militancy’ may provide a European blush to the universalist understanding of constitutional patriotism, they do not obligate citizens in the same manner as the universal rule of promoting a democratic order. We must ask why citizens would swear allegiance to or even favor a ‘European’ state over a more democratic, and thus more “just,” state. Painting a European coat on constitutional patriotism endows it with militancy and memory, but these are “agent-relative” values that provide moral relevance to national borders and the birthplace of citizens. Yet, as previously mentioned, constitutional patriotism adheres to the Kantian principle that the basic unit of a state is a rational citizen, not a rational European citizen. What follows are universal constitutional truths that are accessible to all citizens. Introducing “European characteristics” to this theory would transmit agent-relative characteristics—such as being born in Europe—to an inherently agent-neutral philosophy, thus undermining the universalist appeal of constitutional patriotism. Under a universalist system, how can citizens be permitted to show partiality to one group of citizens, i.e. Europeans? Particularist attempts to vindicate constitutional patriotism “articulate definitions of who we are and who we want to be,” but this seems to contradict any conception of universalism. Yet, without the particularist European tint in constitutional patriotism, how can European citizens be compelled to unite under a single European state (or any European state) if doing so would violate notions of universalism?

Habermas has at least two strong responses at his disposal. First, as Habermas has previously articulated, constitutional patriotism’s erosion of “conventional” tradition i.e. its strict adherence to universalism, is not only permissible given the historical context but it expedites the acceptance of constitutional principles. Germany was a testing ground where citizens could only rationalize democracy if the traditions preceding this critical juncture were “wiped away” and replaced with the “knife of reason.”[41] Because the German tradition was ridden with problematic histories, the universal rule of law laid by reason does not deter particular attachment to the state because it becomes the very basis of the state.

However, this rebuttal seems to beg the question by failing to preclude the threat of totalitarianism. Habermas’ “knife of reason” logic lays in stark contrast to Hannah Arendt’s prominent post-war account of totalitarianism. Arendt argues that communal bonds established by tradition are necessary to preempt totalitarianism’s ability to alienate the citizen from the state and erode the social contract.[42] Instead of “wiping away” history in an act of self-denial, West Germans should have structured a strong political culture informed by their traditions. According to Arendt, tying political structures to inherited tradition can overwhelm the “flimsy and fluid” forces of fascism. Totalitarianism came to fruition not as the culmination of the political tradition in Germany; rather, it was the perverted understanding of this tradition that uprooted the political cultures necessary to protect human rights. A progressive understanding that constitutional principles can rest on universal principles alone conserves nothing but the grounds of ideology “that tend toward the breakdown of social order by destroying communal bonds.” In fact, one of the frightening realities of totalitarianism for Arendt is that as soon as one accepts the basic tenets, one is led to contradiction by reason and forced to ultimately accept the larger theory.[43]

Another critique of Habermas’ argument, advanced by Bruter, is that while this “particular” attachment to rationalism may be sufficient for West Germany, it is difficult to imagine its success on a larger scale.[44] In the status quo, the reference point to the state for EU citizens is not governmental institutions but rather horizontal characteristics specific to their own state, such as its language, history, arts, and culture. While the ideals of freedom and democracy may be vertically structured between the state and the European Union, the primary attachment to political institutions still rests on a national level.[45]

Contesting Enlightenment as Particularism

Even if Habermas were to leverage the first counter-objection, he would still need to elaborate why constitutional patriotism can motivate allegiance to Europe specifically. One available response is that constitutional patriotism appeals to the cumulative and ultimate reference point for the entire European continent: the spirit of Enlightenment values.[46] To Habermas, “Enlightenment and modernism are synonyms,” and the project of the Enlightenment is unfinished but can be realized through an embrace of universal constitutional principles.[47] Risse has also advanced this claim, arguing that “the preferences of member state governments” in stipulating the conditions of European treaties reflect the Enlightened “ideas enshrined in their various constitutional traditions.”[48] Following Risse’s logic, constitutional patriotism could offer a strong model for further European integration since Enlightenment values, such as the central role of reason and secularism, are inherently prominent dimensions of what constitutes European identity.[49] Habermas argues that one can even conceive of the entire “European project” as teleologically targeted toward a singular world society constituted by the ideals first promulgated in the intellectual tradition of the Enlightenment.[50] The end of Habermasian constitutional patriotism is “A United Europe [as] a new kind of ethicopolitical entity, which could even serve as a model of concretely realized universalism to other parts of the globe.”[51]

At first glance, constitutional patriotism’s centralization of deliberation and constitutional culture seem to embrace the Enlightenment thought of thinkers such as Rousseau. Rousseau ascribes great importance to a constitution as a cornerstone of grounding civil bonds: “What makes the constitution of a state truly solid and lasting is that proprieties are observed with such fidelity that the natural relations and the laws are always in agreement…each people has within itself some cause that organizes them in a particular way and renders its legislation proper for it alone.”[52] To Rousseau, a constitution’s “lasting” properties are most meaningfully manifest when citizens possess a particular fidelity to the constitutional principles that they deem correct for their society. Following this line of thought, constitutional patriotism centralizes the role of citizens deliberating and accepting the proper constitution for their society, and Habermas’ worldview coheres with Rousseau’s vision of a society led by a constitution. By elevating the role of public constitutional deliberation, constitutional patriotism adopts Rousseau’s concept of the general will, which seeks to best serve “the common good” by establishing free public discourse. Habermas’ articulation that “collective identity can be rationalized by European states” closely recalls Rousseau’s language that “we can rationalize collective identities in the public sphere.”[53]

Moreover, in various ways, constitutional patriotism revives various questions central to Enlightenment inquiry. One can see how Habermas’ concentration on universal democratic ideals echoes Rousseau’s social contract and its emphasis on equality: “the social compact establishes among the citizens an equality of such a kind that they all commit themselves under the same conditions and should all enjoy the same rights.”[54] Additionally, constitutional patriotism’s assertion that “citizens are subject only to those laws which they have given themselves to in accordance with a democratic procedure” is consistent with the social contract formulated by Locke and Hobbes.[55] Both of these thinkers argue that political orders necessarily imply consent from the citizens, and each vehemently advocated for the primacy of citizens consenting to such an order. Following this line of thought, constitutional patriotism’s focus on the interplay between legitimate democratic order and “the increase in power of international organizations [undermining] the democratic procedures in a nation” implicitly refers to Hobbes’ and Locke’s concerns of sovereign states overextending their forces beyond pre-established (or pre-constituted) boundaries.[56] Thus, to a certain extent, constitutional patriotism does in fact cohere with the thoughts of Enlightenment thinkers.

Yet, on a more fundamental level, constitutional patriotism does not derive from the Enlightenment tradition. Upon closer examination, constitutional patriotism fails as a communal manifestation of Enlightenment values because it overstates the centrality of reason. Though Enlightenment thinkers reify reason in the confines of the state, the Enlightenment project should be understood as bringing reason “to terms with sentiment,” not banishing it.[57] Liberal philosophers such as Habermas emphasize the “certitudes of reason,” which can keep the strong passions of loyalty and belonging that inspire civic engagement at bay. However, many Enlightenment philosophers would argue that these conventional forces are not always pernicious; in fact, “cold rationalis[m]” may be a more pernicious force. In the works of prominent Enlightenment thinkers, from the social contract theorists, to the Scottish philosopher David Hume, to the reactionary views of Edmund Burke, there is a visible tension between reason and tradition, which is not accommodated by the universalist tenets of constitutional patriotism.

Hume’s skepticism of reason’s jurisdiction over human institutions may call into question constitutional patriotism’s basis in rationalizing a citizen’s identity. As one of the most prominent epistemic philosophers to influence the Enlightenment, Hume resisted the absolute rule of reason. Hume contends that a priori reason fails to provide a compelling explanation for gaps in human knowledge since its conclusions are not grounded in experience.[58] At best, reason must “invent or imagine some event, which…must be entirely arbitrary.”[59] Admittedly, custom too may be fallible upon reflection: “the influence of custom…not only covers our natural ignorance, but even conceals itself.”[60] Yet, instead of rejecting conventional custom on the grounds of its imperfection, as Habermas does, Hume attempts to delimit reason, not custom. He does so on the grounds that reason can destructively undermine any human institution or custom that is not derived in a priori thought. In other words, reliance on reason may tend toward the arbitrary rejection of profound human institutions, such as civil society, on the overly abstract grounds of being inconsistent with universal reason. Hume concludes that the price humanity would have to pay to sacrifice its own customs would not be worth the marginal expansion of reason’s arbitrary jurisdiction over the human experience. Habermas’ assertion that collective identities ought to be completely rationalized vis-à-vis constitutional principles seems to contradict Hume’s empiricist claim that reason invites arbitrariness when not guided by experience, whereas inherited custom humbly admits the limits of reason to access all principles.

In fact, as Hayward argues, the pure reason of constitutional patriotism may leave citizens utterly devoid of the universal truths of reason. As a matter of civic identity, constitutional patriotism seems to implicitly violate Enlightenment principles by failing to reflect an enduring truth about “who I am” and what “my place is in the world.”[61] Because constitutional patriotism is deliberative and only arrived at through procedural adherence to constitutional principles, it fails to provide a constitutive understanding of one’s civic identity that is stable, according to Hayward. If citizens, against Hume’s advice, leave all principles open to “renegotiation by deliberation,” then “the boundaries that delimit their political community can be renegotiated.”[62] Thus, constitutional patriotism’s reliance on reason may be destabilizing.

In terms of attachment to the state, Hobbes would likely be critical of constitutional patriotism’s reliance on pure reason and universal principles. Hobbes, like Hume, is an empiricist who doubts the absolute success of reason: “in any subject of reasoning, the ablest, most attentive [of] men may deceive themselves and infer false conclusions.”[63] Reason may be an end of man, but Hobbes centralizes observation and sense perception as necessary tools to harness political power. Though “all men reasoneth alike,” when two rational-beings come into conflict and neither is in error, how can the conflict be resolved? Hobbes’ answer is civil society and a social contract. Reason is central to Hobbesian philosophy insofar as it grounds natural law and the necessity of the social contract; however, once Hobbes arrives at the civil state, reason seems to be an insufficient universal guide. If the absolute rule of the sovereign is based on the consent of the governed, with the sole condition that the sovereign must protect the citizenry, how can the state justify war? Would coercing citizens to abnegate their safety and fight not be an essential violation of the “constitution” derived in rationality? The conclusion must be that something besides reason gives rise to a citizen forgoing her own safety.

Perhaps, as Edmund Burke contends, love of country, custom, and the passions can explain citizens’ commitment to the constitutional state. Only the state can “create in us” the sort of “love, veneration, admiration, or attachment” that “is incapable of being filled…by that sort of reason.” [64] Reason attempts to cut through an instinctual affection that is a necessary component of stability since reason renders citizens into “mere machines and instruments of political benevolence.”[65] In order to “bind up the constitution of our country with our dearest domestic ties,” citizens must adopt the fundamental laws of the state “into the bosom of our family affections…procuring reverence to our civil institutions on the principle upon which nature teaches us to revere individual men and [from] whom they are descended.” [66] To Burke, patriotic sentiment toward a constitution is constituted by a respect for the tradition that citizens have inherited. The “moral imagination” inspired by ancestry and tradition compels individuals to respect the institutions in place, both stabilizing the polity and granting citizens their political rights.[67] It is conceivable that this non-rational patriotism driven by a citizen’s “moral imagination” may provide an answer to the question of dying for one’s state left open by Hobbes.

However, the “moral imagination” advocated by Burke seems to be inverted by Habermasian constitutional patriotism. By redefining rights and duties in reference to individual reason, Habermas empowers the sort of individualism that Burke says would undermine “the common agreement and original compact of the state.”[68] The non-teleological deliberation associated with constitutional patriotism would allow any generation to renegotiate the “pact of society…the constitution,” thus violating their promise of “public faith to the constitution.”[69] Furthermore, the universality of Habermas’ theory would tend toward subversion of the political order under Burke’s framework: it is “perhaps impossible to give limits to the mere abstract competence of the supreme power; but the limits of a moral competence…and the steady maxims of faith, justice, and fixed fundamental policy, are perfectly intelligible and binding on those who exercise authority.”[70] While one can conceive of citizens in the Burkean or Hobbesian state being compelled to die for their state by a force other than reason, it is difficult to imagine the rationalist constitutional patriotism compelling an individual to die for Brussels.[71]

Moreover, the essential Hobbesian question of quis iudicabit (who decides?), as Muller points out, cannot be answered by constitutional patriotism. Muller submits that constitutional patriotism functions as a non-positivist theory, whereby citizens are not asked to agree upon a particular constitution; rather, debate is “encouraged and constantly reflect[s] how coercion can be made legitimate by a set of constitutional essentials.”[72] This strict adherence to a lack of concrete agreement does not cohere with the central importance of legitimacy inherent to the Hobbesian framework. According to the Hobbesian contract, men will only “confer all their power and strength” if there is “one man…that may reduce all their wills, by plurality of voices, unto one will,” appointed to “bear their person, and every one to own and acknowledge himself to be author of whatsoever he that so beareth their person shall act.”[73] Constitutional patriotism not only fails to centralize power in one location, as outlined by Hobbes, but it also fails to provide a concrete constitution that can withstand the populist whims of public discourse. The European Union itself lacks a single locus of sovereignty, due to its permanent dispersal of power, with a dual executive, constituted by multiple sovereign forces that alternate rule at regular intervals.[74] Additionally, if we are to accept the criticisms of the European Council’s opacity, it seems that the EU’s upholding of Enlightenment values through free public discourse is not readily apparent. These sovereign states are also forbidden from leveraging criticisms of the Council’s decisions ex post facto, further suggesting a lack of an essential democratic element: political contest. Without the essential quality of centralization and visible legitimate power, the EU’s constitutional character fails to meet the Hobbesian standard of legitimacy, which served as a perennial concern for all subsequent Enlightenment thinkers.

Likewise, there are diminishing rates of “consent” amongst European citizens, which both fail the requirements of the Hobbesian contract and fail to maintain the democratic spirit of constitutional patriotism. Europe lacks “input-oriented authenticity,” meaning that the role of consenting citizens in supranational politics is marginalized.[75] This may breed a problem for constitutional patriotism, considering that the introduction of a European Constitution would likely, as it did in 2005, be done through electoral procedure. Yet, according to Hix and Hoyland, as European elections devolve into de facto second-order elections that reflect the citizenry’s satisfaction with national governments, the relative importance of the average European voter’s input is steadily declining.[76] The emergence of independent lobbying groups has further marginalized the European voter’s input on constitutional matters, and the prominence of such groups has coincided with a clear reduction in electoral accountability on the European level, thus eroding the EU’s legitimacy.[77] Consequently, constitutional patriotism will devolve into a mere aesthetic of legitimacy that purports an intimate, though unapparent, tie to enlightened values. This theory, without the consent of the people, will always rely on a thick historic majoritarian identity more closely aligned to citizens’ identities, and in turn, constitutional patriotism will become “secondary” to the ethno-cultural particularist bonds of a citizen’s current polity. Thus, one may not only question whether constitutional patriotism is a descendant of the Enlightenment but also if constitutional patriotism’s adherence to liberal values is even ripe for modern European politics.

Furthermore, underlying constitutional patriotism is an assumption of the inevitable progress and improvement of its liberal democratic order. In his book The Crisis of the European Union, Habermas claims, “the European Union can be understood as an important stage along the route to a politically constituted world society.”[78] The “constitutional culture” cultivated in the EU is based upon treaties and documents, but the telos of Habermas’ argument is not immediately clear: what is a “politically constituted world society”? Habermas lends some clarity to the end of constitutional patriotism by declaring that the end itself is not important; rather, the process by which the public sphere begins to deliberate and “rationalize” the law will establish a “systematic integration of a multicultural world society” that will consistently “progress towards civilizing relations between states through constitutional law.”[79] Citizens’ attachments to the state give “motivational pressure to find agreement” and to seek progress.[80] Central to this theory is the notion that a just democratic state is inconceivable without the consistent commitment of the citizens to constitutional principles. Prima facie, this seems to be a benefit of constitutional patriotism: there is no inherent complacency in the status quo that would impede efforts to better accommodate justice and democratic ideals. However, on a much more fundamental level, constitutional patriotism is not merely the accommodation of improved norms; rather, the validity of constitutional patriotism relies on the mechanism of progress. Kleingeld argues that a “love of shared political freedom” implies a duty to “sustain” the constitutional state through “commitment to its institutions.” Maintaining this constitutional order requires the “patriotic act” of consistently criticizing the body politic and finding ways to “enhance the common political good by calling for reforms.”[81] The European project of integration is not only an ongoing process but also its so-called incompleteness demands progress.

Yet, constitutional patriotism’s assumption of progress contradicts the Enlightenment’s skepticism toward progress. The three primary social contract theorists—Hobbes, Locke, and Rousseau—each rejected linear conceptions of time. Locke has no theory of progress, and Hume’s attempt to vindicate custom is part of a larger project to “change no circumstance in the received orthodox system.”[82] Rousseau’s Second Discourse stresses retrogression insofar as progress further entrenches civilization in inequality, and “the more we accumulate new knowledge, the more we deprive ourselves of the means of acquiring the most important knowledge of all.”[83] Peter Gay has even argued that a careful reading of the Second Discourse reveals Rousseau’s belief in an inevitable degeneration of all forms of government.[84] Therefore, constitutional patriotism’s call to consistently reform and progress the liberal democratic order seems to contradict Rousseau’s fear of progress giving way to inequality. Hobbes only defends progress insofar as it leads to a stable and inert social contract. There is no “progress” from the Hobbesian social contract because the terms are non-negotiable; however, there is decline such that the contract may devolve into the state of nature, leaving all parties worse off. Burke, while not opposed to change a priori, argues that any progress ought to be weighed against the meaningful tradition that precedes it, and change that seeks to wipe away the institutions inherited by society is morally abhorrent and not “chivalric.” However, Burke’s argument that reasonable change is permissible is not a concession that progress is inevitable; rather, it is a mood that allows for reform, not an attitude that progress is inherent in history.[85] Thus, constitutional patriotism’s underlying tendency toward progress seems to be at odds with the Enlightenment’s skepticism toward such a phenomenon.[86]

Conclusion: “East is East and West is West”?

“Oh, East is East and West is West, and never the twain shall meet,

Till Earth and Sky stand presently at God’s great Judgment Seat;

But there is neither East nor West, Border, nor Breed, nor Birth,

When two strong men stand face to face, though they come from the ends of the earth!”

— Rudyard Kipling[87] 

This paper has sought to contextualize constitutional patriotism as a guiding principle for Europe, while also eliciting constitutional patriotism’s departure from key tenets of the European Enlightenment. Borne out of West Germany’s disillusionment with its past, constitutional patriotism is a manifestation of Kantian ideals grounded in reason that seek to be universally accessible to citizens of all states. There is bountiful scholarship on the topic, from those in the Kantian universalist tradition, the communitarian “particularists,” and the compatibilists caught between these disparate views. An open question raised in this paper is whether the universal principles of constitutional patriotism can compel citizens in the European Union to join a “European” state, as opposed to any state that best upholds these constitutional values. Despite Jürgen Habermas’ claim that constitutional patriotism appeals to Europe’s communal identity derived in Enlightenment ideals, I have tried to demonstrate that prominent Enlightenment figures would likely reject the notion that constitutional patriotism upholds an Enlightenment understanding of reason or progress.

However, one further critique of constitutional patriotism warranting brief discussion is whether the European Union would likely face onerous obstacles in its implementation of this theory, specifically in the Eastern EU. As I have attempted to convey in this paper, constitutional patriotism is governed by both concrete and abstract democratic principles, from separation of powers, to federalism, to equality under the law. Yet, there is evidence to suggest that in the newest EU member states from Eastern Europe, attachment to these constitutional principles is tenuous. Over the past twenty years, several Eastern European states—Poland, most noticeably—have successfully adopted constitutional cultures and auspiciously passed the “critical juncture of regime change.”[88] Nevertheless, this fate of embracing democratic principles is not shared by all Eastern member states.

In the view of Vachudova, the EU lacked an “ingrained ‘civilizing project’” capable of molding Soviet Republics into fledgling democracies.[89] When countries such as Slovakia, Bulgaria, and Romania were in the midst of accession, the metrics of the Council of Europe and the Copenhagen criteria used to evaluate these states’ democratic inclinations failed to exercise rigor. In fact, many of the democratic reforms made were ostensibly superficial attempts to expedite integration. For example, the EU could not allow the accession of a Vladimir Mečiar-led Slovakia due to the leader’s blatant authoritarian tendencies. In turn, the EU proposed an ultimatum stipulating that it would only grant Slovakia membership if Mečiar was ousted. Though this deal visibly deposed the authoritarian leader, it was by no means a display of Slovaks exercising their democratic will; rather, this action was externally imposed, raising reasonable concern that Slovakia’s “improved” democratic condition was merely symbolic. As Table 1 illustrates, this reality reaches beyond Slovakia insofar as many former Soviet Republics in the EU have significantly lower democracy index values when compared to those of Western EU member states:

Table 1: EU Member States Democracy Index[90]

While constitutional patriotism promises to unite European states committed to democratic principles, this challenge is redoubled by the Eastern European states’ nascent democratic mores. “Hollow and ineffective” institutions were transmitted from Western Europe to the East during the accession process, and these inherited institutions were not legitimately debated in the public sphere so as to accommodate bureaucratic efficiency.[91] Consequently, joining the European Union with superficial benchmark criteria and “reform from above” may actually harm a country’s democratic prospects. While Vachudova argues that the introduction of democracy will allow these states to learn democracy by going through the motions, Jacques Rupnik articulates that the EU’s actions on this front may be a “Blessed plot” that incentivize hasty reforms that “empty the democratic process” due to blind commitment to liberal constitutional principles and stability.[92] Simply put, the forced conditions of accession for Eastern European states is a cause for concern. These new member states have not only been handed democracy in a rather undemocratic fashion, but within the EU, these states may be relegated “to a permanent second-class status,” due to their incomplete understanding of the institutions they have inherited.[93]

Furthermore, the mere existence of democratic institutions in Eastern EU member states by no means generates democratic institutions in these countries. Jack Snyder argues that there are potentially disastrous consequences to the liberal view that “it takes very little to establish a stable, peace-loving democracy: just get the authoritarian state out of the way.” Without “thick networks of social supports” and a longstanding understanding of liberal democracy characterized by more than “a single free and fair election,” the democratic transition of Eastern Europe to the EU can invite nationalism and instability, both of which are antithetical to constitutional patriotism.[94] Without the culture of a constitution or democracy, these new member states continue to fight an uphill battle. If the EU does not take deliberate and careful steps in cultivating such a constitutional culture in Eastern Europe, the democracy gap may not improve and will further undermine constitutional patriotism’s appeal as a guiding European principle. Without an organic “love” of constitutional principles in Eastern Europe and without a legitimate embrace of Enlightenment ideals, constitutional patriotism may march on as an “Old Lie,” promising the sweetness of universal principle and patria, without the laurels of a victorious European Union, integrated at last.[95]

Joshua Altman (’17) is a Ethics, Politics, and Economics major in Silliman College.

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———. “Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution?’” European Law Journal 1:3 (1995): 303-307.

———. Die nachholende Revolution, Frankfurt/Main: Suhrkamp, 1990 (152).

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Endnotes

[1] From Wilfred Owen’s poem “Dulce et Decorum Est;” Harold Bloom, ed. “‘Dulce et Decorum Est,'” In Poets of World War I – Part One, Bloom’s Major Poets (Philadelphia: Chelsea House Publishing, 2001), Bloom’s Literary Reference Online, Facts On File, Inc.

[2] Jürgen Habermas, “Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution?’” European Law Journal 1:3 (1995): 303-307.

[3] Arnaud Leparmentier, “France: Europe – Taboo Subject for François Hollande,” Vox Europ, Sept. 17, 2012, Accessed on Nov. 16, 2014, <http://www.voxeurop.eu/fr/node/2708891>.

[4] Andrew Moravcsik, “Review: Despotism in Brussels? Misreading the European Union,” Foreign Affairs 80:3 (2001): 114-22.

[5] Simon Hix and Bjørn Hoyland, The Political System of the European Union. 3rd ed. New York: St. Martin’s, 1999), 87-90.

[6] Muller 2012 discusses how the debate between supranationalists and intergovernmentalists boils down to a division of normative principles defining the feasible boundaries of the state.

[7] Habermas, 1995.

[8] Hix and Hoyland; Michael Bruter, Citizens of Europe?: The Emergence of a Mass European Identity (Hampshire: Palgrave Macmillan, 2005); Patchen Markell, “Making Affect Safe for Democracy?: On ‘Constitutional Patriotism,’” Political Theory 28:1 (2000): 38-63.

[9] Hix and Hoyland, 83.

[10] Jan-Werner Müller, Constitutional Patriotism (Princeton: Princeton University Press, 2007).

[11] Markell, 15.

[12] Plato, “The Republic,” in Complete Works, trans. John Madison Cooper (Indianapolis: Hackett, 1997).

[13] Ibid.

[14] Müller, 21.

[15] Ibid.

[16] Ibid., 22.

[17] Karl Loewenstein, “Militant Democracy and Fundamental Rights II,” American Political Science Review 31:4 (1937): 638-58.

[18] Ibid., 646.

[19] Jürgen Habermas, The Crisis of the European Union: A Response, trans. Ciaran Cronin (Cambridge, UK: Polity, 2012).

[20] Richard J. Evans, In Hitler’s Shadow: West German Historians and the Attempt to Escape From the Nazi Past (London: I.B. Tauris, 1989).

[21] Ibid.

[22] Jan-Werner Müller, “A ‘Thick’ Constitutional Patriotism for the EU? On Morality, Memory and Militancy,” in Law, Democracy and Solidarity in a Post-National Union: The Unsettled Political Order of Europe, ed. Erik Oddvar Eriksen, Christian Joerges, and Florian Rödl, (London: Routledge, 2008).

[23] Ibid.

[24] Pauline Kleingeld, “Kantian Patriotism.” Philosophy & Public Affairs 29:4 (2000): 313-341.

[25] However, as Kleingeld points out, Immanuel Kant first proposed a European völkerbund, a league of states that promotes universalizable maxims and debates its own legitimacy. Though distinct from constitutional patriotism, constitutional Kantianism closely resembles constitutional patriotism in regards to its focus on universal values.

[26] Habermas, The Crisis of the European Union: A Response, xi.

[27] I chose these five because each was instrumental in conceptualizing the proto-constitutional underpinnings of the social contract and the Enlightenment’s views on tradition. Additionally, each author represents a different dimension of the Enlightenment. Hobbes, one of the first Enlightenment thinkers, centralized reason; Locke and Rousseau advanced Hobbes’ conception of the social contract; Hume comes out of the Scottish tradition, lending a distinct perspective and response to these views; and Burke’s Reflections serves as a transitional text between Enlightenment thought and that of Romanticism.

[28] Kleingeld.

[29] Habermas, The Crisis of the European Union, 92.

[30] Müller, Constitutional Patriotism, 29-30.

[31] Clarissa R. Hayward, “Democracy’s Identity Problem: Is “Constitutional Patriotism” the Answer?” Constellations 14:2 (2007): 186.

[32] Justine Lacroix, “For a European Constitutional Patriotism,” Political Studies 50:5 (2002): 944-958.

[33] Müller, Constitutional Reform.

[34] Ibid., 67.

[35] Ibid., 68.

[36] Jonathan Allen, “Balancing and Social Unity: Political Theory and the Idea of a Truth and Reconciliation Commission,” University of Toronto Law Journal 49:3 (1999): 315-353 .

[37] James Q. Whitman, “What Is Wrong with Inflicting Shame Sanctions?” The Yale Law Journal 107:4 (1998): 1055-1092.

[38] David Marsh, Europe’s Deadlock: How the Euro Crisis Could Be Solved, and Why It Won’t Happen (New Haven, CT: London, 2013).

[39] Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy & Public Affairs 22:1 (1993): 3-30.

[40] Hayward, 187.

[41] Müller, Constitutional Patriotism, 33.

[42] Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace & World, 1966).

[43] Ibid, 473.

[44] Bruter.

[45] Ibid., 103

[46] Muller cites: Jürgen Habermas, Die nachholende Revolution (Frankfurt: Suhrkamp, 1990): 152.

[47] Ehrhard Bahr, “In Defense of Enlightenment: Foucault and Habermas,” German Studies Review 11:1 (1988): 97-109.

[48] Thomas Risse-Kappen, A Community of Europeans?: Transnational Identities and Public Spheres (Ithaca: Cornell UP, 2010), 196-197.

[49] Ibid., 194

[50] Habermas, The Crisis of the European Union, xi. Perhaps this thought gained influence from Julien Benda’s contention that a purely rationalist construct should be tacked to Europe, fully divorcing the self from the passions.

[51] Ibid., 134.

[52] Rousseau, Jean-Jacques, “Discourse on the Origin of Inequality,” in The Basic Political Writings, trans. Donald A. Cress (Indianapolis: Hackett Pub., 2011), 190.

[53] Müller, Constitutional Patriotism, 29-30.

[54] Rousseau, 175.

[55] Habermas, The Crisis of the European Union, 14.

[56] Habermas, The Crisis of the European Union, 15, 18-19.

[57] Peter Gay, “The Enlightenment in the History of Political Theory,” Political Science Quarterly 69:3 (1954): 375.

[58] David Hume, An Inquiry concerning Human Understanding: With a Supplement, An Abstract of A Treatise of Human Nature (Indianapolis: Bobbs-Merrill Educational Pub., 1955), 28.

[59] Ibid., 29.

[60] Ibid., 29.

[61] Hayward, 187.

[62] Ibid.

[63] Thomas Hobbes and E. M. Curley, Leviathan: With Selected Variants from the Latin Edition of 1668 (Indianapolis: Hackett Pub., 1994), 23.

[64] Edmund Burke, Reflections on the Revolution in France: And on the Proceedings in Certain Societies in London Relative to That Event, ed. Conor Cruise O’Brien (London, England: Penguin, 1986), 120-1.

[65] Ibid., 121.

[66] Ibid., 170.

[67] Müller, Constitutional Patriotism.

[68] Burke, 105.

[69] Ibid.

[70] Ibid., 120-121,

[71] Müller, Constitutional Patriotism.

[72] Jan-Werner Müller, “Reimagining Leviathan: Schmitt and Oakeshott on Hobbes and the Problem of Political Order,” Critical Review of International Social and Political Philosophy 13:2-3 (2010): 330.

[73] Hobbes, 109.

[74] Müller, Constitutional Patriotism.

[75]Fritz Wilhelm Scharpf, Governing in Europe: Effective and Democratic? (Oxford: Oxford University Press, 1999), 2.

[76] Hix and Hoyland.

[77] Scharpf.

[78] Habermas, The Crisis of the European Union, 2.

[79] Ibid., 7.

[80] Müller, Constitutional Patriotism.

[81] Kleingeld, 318.

[82] Gay; Hume, 97.

[83] Rousseau, 39.

[84] Gay, 380.

[85] Ibid.

[86] Though beyond the scope of this paper, many of the German idealists, notably Hegel and Kant, may be more sympathetic toward Habermas’ view. For example, Hegel’s notion of the dialectic, i.e. a process of thesis, antithesis, synthesis, seems to imply some sort of evolution of thought and improvement toward what he calls “the absolute,” the unachievable end of human inquiry. However, Hegel and Kant fit more clearly into the German idealist tradition than in that of Western Enlightenment.

[87] Rudyard Kipling, Ballad of East and West, comp. Blanche McManus (New York: M.F. Mansfield and A. Wessels, 1899).

[88] Milada Anna Vachudova, Europe Undivided: Democracy, Leverage and Integration after 1989 (Oxford: Oxford University Press, 2004), 15-21.

[89] Ibid.

[90] “Democracy Index 2012: Democracy at a Standstill” The Economist Intelligence Unit, 2013, <https://portoncv.gov.cv/dhub/porton.por_global.open_file?p_doc_id=1034>, 10-15; I winnowed the EU member states available from the Economist’s world report. The bolded values indicate states that are less than the mean value of 75.87 by greater than one standard deviation (7.29)

[91] Vachudova, 15.

[92] Jacques Rupnik, The Road to the European Union (Manchester: Manchester University Press, 2003). Print.

[93] Ibid.

[94] Jack L. Snyder, From Voting to Violence: Democratization and Nationalist Conflict (New York: Norton, 2000), 316-317.

[95] Bloom.