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The Maastricht Treaty stated that the Union should "assert its identity on the international scene". To this end it created the ambitious concept of a common foreign and security policy.
If there was one area where it was difficult to assess the effectiveness of a policy when the Conference opened, it was undoubtedly the CFSP. It could have evolved gradually, growing out of mutual confidence, but was instead plunged immediately into the worst possible situation - the conflict in Yugoslavia - and was judged in the light of how it handled this crisis. Even on this question opinion was divided: had the CFSP failed, or had it prevented matters getting even worse?
Most commentators, however, agreed that political success had all too often eluded the European Union, even though it had created the necessary economic conditions. Many stressed the need for a global and coherent external policy, which inevitably aroused the suspicions of others who interpreted this as an attempt to undermine the pillars.
In the end, the Treaty of Amsterdam conducted a general review of the ways and means of external action by the European Union. Without fundamentally altering the approach that resulted from Maastricht, it probably endows the common foreign policy with much-needed new powers. Oddly enough, many of these are the very powers denied it during the Maastricht negotiations, prompting the President of the Commission at the time to compare the CFSP to a Cadillac with the engine of a lawnmower. It is to be hoped that the introduction of qualified majority voting in foreign policy matters, however tentative, will lead to a corresponding increase in power.
The operational aspects of the CFSP have been improved. Scope for major qualitative advances now exists, but there is no guarantee that they will actually be made. Everything will still depend on the will of the parties concerned to use the instruments of the CFSP.
a)The common foreign and security policy has been given more coherent instruments and a more effective decision-making procedure.
- Articles J.3 to J.5 provide a clearer definition of the instruments. These definitions already existed in the Treaty but had become blurred through careless use. It is now clear that "joint actions" are specifically for operational purposes, whereas "common positions" relate to more general geographical or subject-based approaches.
The use of a single decision-making procedure for these instruments should eliminate the source of the current confusion.
- The key development is the creation of "common strategies", for which the procedure is described in Article J.3(2). They are agreed by the European Council by consensus, "in areas where the Member States have important interests in common". The European Council also decides on the objectives and duration of common strategies and the means to be made available by the Union and the Member States.
The crucial provision is Article J.13(2) which states that, when adopting actions or positions implementing common strategies decided by the European Council, the Council shall act by qualified majority. (The same applies to decisions implementing its own joint actions or common positions.)
There is now a genuine possibility, therefore, that qualified majority voting will become a reality for the CFSP. The instrument exists; how it operates in practice will depend on the ability of the European Council to take strategic decisions.
- This move to embrace the possibility of qualified majority voting in the CFSP, which is in some ways surprising, only emerged gradually in the course of the Conference. Regarded as a remote hypothesis in the Reflection Group's report, it first appeared in the Irish draft of December 1996. It only became possible once the Conference succeeded in providing a double safeguard for the Member States:
* "constructive abstention" (Article J.13(1), second subparagraph), whereby Member States may opt not to participate in certain cases. This is an ad hoc flexibility arrangement, making it easier to adopt initiatives which have a broad measure of support (at least 2/3 of the weighted majority) and which are undertaken in the name of the Union. Member States that do not actively take part in the action must not impede it;
* the possibility of blocking decisions on the grounds of "important reasons of national policy" (Article J.13(2), second subparagraph). In such cases, the Council, acting by qualified majority, may request that the matter be referred to the European Council for unanimous decision. The aim of this appeal to the European Council is to ensure that the veto is reserved for exceptional circumstances. It should ensure that the veto is not over-used.
- More emphasis has been given in Article C to the need for consistency between the different pillars, while keeping them separate and on an equal footing. However, the Treaty still lacks a systematic mechanism for ensuring synergy between the diplomatic and economic sides of foreign policy.
b)The Treaty may also prove innovative when it comes to the administration of foreign policy:
- A common foreign and security policy function is introduced, to be performed by the Secretary-General of the Council, who assumes the role of High Representative for the common foreign and security policy, delegating the traditional administrative responsibilities to a deputy.
The new function was discussed at length. It had its origins in an idea strongly backed by the French for a "Mr or Ms CFSP" - a high-ranking and prominent political appointment. However, the idea gained little support, largely because most other delegations saw it as complicating rather than simplifying matters: it would add yet another institution, making the system even more difficult to understand. It is also quite possible that the foreign ministers were unwilling to create a new figure of major political standing in their midst.
The compromise agreed upon was to create the function but not the political personage, by using the existing figure of the Secretary-General of the Council. Although the Secretary-General of the Council will continue to be appointed, as in the past, by the governments rather than the European Council, he or she will assume a much more prominent role in foreign policy, the exact nature of which will be determined by practical experience.
The Treaty defines the role of the Secretary-General as primarily to assist the Presidency (Article J.8(3)) or the Council (Article J.16), for example in a representative role and as the person in charge of the planning unit.
- The new "policy planning and early warning unit" is another innovation, responding to a clear need for forward planning. Agreement was reached at a very early stage in the Conference that this should provide a common basis for the preparatory work on the common foreign and security policy that has to date been decentralised. The hope is that this will make decision-making easier.
A declaration annexed to the Treaty sets out the conditions under which the new unit will operate, within the Council and under the responsibility of its Secretary-General. Its staff will be drawn from the Member States, the Commission, the Council General Secretariat and the WEU. Significantly, the declaration requires the Member States and the Commission to provide the fullest possible information, including confidential information.
- The Commission acquires a greater role in the common foreign and security policy as a whole. It is particularly involved in representation and implementation and is explicitly included in the new Troika (Presidency, Secretary-General and Commission).
c)Security and defence
The debate on security and defence was bound to be frustrating. While it was universally agreed that a genuine foreign policy was inconceivable without a credible external enforcement capability, much of this debate understandably took place within NATO, where future membership was under discussion. Moreover a number of countries, of which the United Kingdom was the most outspoken, both before and after the general election, argued that any debate about defence between members of the European Union automatically undermined NATO and was to be avoided. Finally, matters were as always complicated by the fact that there is no exact match between membership of the European Union, the WEU and NATO.
In these difficult circumstances the real innovations were dictated by changes in the militarily non-aligned countries which, taking up a text drafted by Finland and Sweden, suggested applying some of the lessons learned from the geopolitical events of recent years to the concept of neutrality itself.
The Amsterdam Treaty therefore contains two important innovations in the area of security:
-the possibility for the Council to take political decisions for the European Union in relation to the "Petersberg tasks" ("humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacekeeping");
-provisions for the Union to "avail itself" of the Western European Union to implement these political decisions with the ad hoc participation of the militarily non-aligned countries (Article J.7(3)).
This is undoubtedly a step forward given the importance of peacekeeping and crisis management operations in the current international context.
However, the scope of the provisions relating to the overall future defence structure is rather less clear. For one thing, there are direct and more explicit references to joint defence and institutional relations with the Western European Union; for another, the European Council has to explicitly trigger proceedings for certain other developments, which could make matters more difficult. A Declaration by the Western European Union concerning its relations with the European Union and the Atlantic Alliance is annexed to the Final Act and should finally smooth the way to improving administrative cooperation between the EU and the WEU, something we have been waiting for since Maastricht.
In the absence of any clear long-term outlook, there is to be a new IGC, although the date has not been set (Article J.7(5)).
From the start of the Conference the Commission, with the backing of the vast majority of Member States, argued that Article 113 in its restrictive interpretation, and as applied in practice by the Council, was in need of modernisation. Given the globalisation of trade negotiations, services, intellectual property and investments should be clearly included in the Article 113 regime and administered under a system of qualified majority voting. Without this, Europe would find itself at a disadvantage compared with its competitors, in that if one single part of an agreement still had to be approved unanimously the effect would be to make the entire agreement subject to unanimity. This made it all too easy for a non-member state to put pressure on a single Member State to weaken the position of the Union. There was also a significant risk that a Member State would make its agreement conditional on certain, possibly onerous, demands being met, and this has indeed happened on occasion. The restrictive interpretation of Article 113 was thus anachronistic and disadvantageous.
However, a minority of Member States (United Kingdom, France, Denmark, Portugal and Spain) felt that the inclusion of services and intellectual property in Article 113 would amount to a transfer of sovereignty to the Community for which they were not yet ready.
Despite long discussions and endless attempts it proved impossible to substantially modernise the provisions of Article 113, which was therefore left as it stands. A modest new provision was, however, included at the last minute, with the aim of introducing a "fast track": the Council, acting unanimously, may at a future date extend the application of Article 113 to international negotiations and agreements concerning services and intellectual property not already covered by the article.
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