The chapter reflects upon EU international relations law by drawing on critical EU studies for the future framing of EU IR law. EU IR is a highly successful subject. Yet it has increasingly more subjects and objects and the EU risks becoming a victim of its own success. EU IR law has long been a highly doctrinal subject, dominated by highly court-centric views on EU integration and in need of further analytical insights to grapple with the post-Brexit era. EU IR yet appears increasingly as a highly deserving focus of the deeper and better study of EU integration. Since new post-Lisbon trade agreements explicitly and unambiguously lack direct effect, they further put into sharper focus the role of individual enforcement of EU international trade law going forward and the effectiveness of remedies. It is of major significance that EU IR law will become increasingly difficult to litigate in this new era and render the conventional court-centric narrative of EU integration somewhat difficult to place. It may also be that other areas of law enable citizens’ or NGOs’ empowerment (e.g. as to external migration or defence) in ways which ordinary individuals/businesses may not achieve. Nonetheless, this new era of arguably even more subjects and objects of EU IR law puts such a successful subject as EU IR into a new spotlight. Framing critical EU IR law as a research agenda thus enables forward reflections across a range of subjects and themes.
This chapter takes a broad perspective on the concept of framing interactions between organisations as ‘effects’ in law in a holistic sense: ‘inwards out’, ‘outwards in’ and the ‘in between’. The chapter examines the idea of ‘effects’ in internal lawmaking and also external lawmaking practice. It argues that the concept of effects and legal effects need to be broadly understood and deliberated upon. The chapter examines the interrelationship between the internal and external effects of interactions with international organisations on the part of the EU. What are the reasons for differences in understanding effects? How are legal effects understood? Is norm promotion so fundamental or essential? Is an institutionalised understanding of legal effects factually and normatively justified? What is a viable methodology? This chapter aims to frame the term ‘effects’ as broadly as possible so as to understand actual practice, soft practice and political practice and to give a holistic account of lawmaking.
The EU governance of migration has distinct internal and external facets, which may be viewed as innately contradictory. On the one hand, for example, there is legal competence for enhanced measures to combat illegal immigration, but on the other hand, it is to manage efficiently migration flows, yet with fairness towards third country nationals. These contradictions define the EU’s Area of Freedom Security and Justice (AFSJ) more generally, as a complex and evolving site of tremendous injustice and crisis. In times of crisis, there is an increasing number of soft law tools in EU external migration, used to enable flexibility, deploying management lexicon, principles and tools as a means to avoid or minimise the need for ‘hard’ binding law (e.g. frameworks, compacts, action plans), in a process of ‘hyper-legalisation’ of external migration. Often, it results from the multiplicity of constitutional competences applying in external migration. It mirrors well other crisis-ridden subjects of EU law, in particular as to the financial crisis. On the other hand, there is also a trend in significant recent case law towards the ‘de-legalisation’ of migration policy, putting key legal and policy questions in forms beyond review and outside of the Treaties, as in the financial crisis as well as other leading cases. They explicitly detail the nature of the contradictions at the heart of the external dimension to the AFSJ in the area of migration and the problematic nature of EU law-making. They also provide reasons for concern about basic conceptualisations of the rule of law therein. The key decisions arbitrarily decide the scope of ‘non-legislative’, ‘non-application’ and ‘European’ as to EU law. They emphasise the contradictions at the heart of the AFSJ, increasingly excluded through judicial review.
Transatlantic cooperation in justice and home affairs received its most prominent impetus after the 9/11 terrorist attacks, when many EU-US Justice and Home Affairs Agreements were enacted. Over a decade later, transatlantic cooperation in criminal law continues to have a lively agenda. The chapter purports to offer a ‘birds-eye’ view of key contemporary instruments and mechanisms. It begins with a brief overview of contemporary cooperation and then moves on to outline key agreements between the EU and the US in Extradition and Mutual Legal Assistance, including death penalty cooperation. Thereafter, there is a brief consideration of Agreements between Europol and the US, and then the chapter reflects upon the latest area of transatlantic cooperation in criminal law, namely EU cybercrime and cyber security. The chapter argues that secrecy and shortcomings vis à vis fundamental rights generally remain points of concern, similar to all forms of transatlantic cooperation as complex integration between legal orders.
Edited by Samo Bardutzky and Elaine Fahey
Samo Bardutzky and Elaine Fahey
This edited volume explores how we frame the subjects and objects of contemporary European Union (EU) law. The inquiry as to the subjects and objects of Public International Law (PIL) is one long dismissed as fruitless (e.g. Higgins, 1994). Nevertheless, it is a more revealing inquiry in EU law, which has explicitly sought to differentiate itself as a new legal order of PIL with a distinctive framing of its subjects and objects. As the EU’s internal and external competences have evolved, significant changes surround the subjects and objects of contemporary EU law. It may increasingly capture a broader range of actors and interests, intentionally or otherwise. The subjects and objects of EU regulatory frameworks thus raise fundamental issues as to the rule of law as well as to the EU’s legitimacy in the wider world. While there may be hundreds of years of work across disciplines on the self as subject, the object as an entity often appears a neglected field of inquiry. The EU treaties and EU law jurisprudence alike reveal a quantifiable panoply of interests, actors, objects and subjects, scattered across them. The collaborative research effort presented in this volume is linked to three primary motifs or considerations in how we frame the subjects and objects of EU law: transformations, the external-internal nexus and crises as to EU law. It confronts the question: how should we understand the dialectic between the subjects and objects in contemporary EU law? Can the objects of EU law so readily become its subjects? What are the normative parameters of the shift from subject to object and object to subject? How are new narratives understood within this dialectic? Keywords: EU law, jurisprudence, EU integration, Transformations, Crises, CJEU, EU international relations, public international law, subjects, objects