The Principle of Solidarity: International and EU Law Perspectives 946265574X, 9789462655744

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Global Europe: Legal and Policy Issues of the EU’s External Action

Volume 2

The Principle of Solidarity International and EU Law Perspectives

Eva Kassoti  Narin Idriz Editors

Global Europe: Legal and Policy Issues of the EU’s External Action Volume 2

Editors-in-Chief Narin Idriz , T.M.C. Asser Institute, The Hague, The Netherlands Eva Kassoti, T.M.C. Asser Institute, The Hague, The Netherlands Advisory Editors Elaine Fahey, Institute for the Study of European Law, City University London, City Law School, London, UK Ramses A. Wessel, Faculty of Law, University of Groningen, Groningen, The Netherlands Katja Ziegler, University of Leicester, Leicester, UK

The Global Europe Book Series: Legal and Policy Issues of the EU’s External Action Series is a peer-reviewed book series that explores the legal and policy issues pertaining to the EU’s global actorness. The editors of the book series welcome edited volumes as well as monographs exploring the EU’s identity as an international actor. The coverage extends to submissions identifying the internal and external factors that may challenge the EU’s capacity to exercise value-based global leadership on crucial issues affecting European citizens as well as those from other parts of the world; critically reflecting on whether the external projection of the EU as a virtuous normative power comports with its practice on the ground as well as addressing the descriptive, normative and conceptual challenges that complement the ever-expanding global reach of EU law.

Eva Kassoti · Narin Idriz Editors

The Principle of Solidarity International and EU Law Perspectives

Editors Eva Kassoti T.M.C. Asser Institute The Hague, The Netherlands

Narin Idriz T.M.C. Asser Institute The Hague, The Netherlands

ISSN 2666-4828 ISSN 2666-4836 (electronic) Global Europe: Legal and Policy Issues of the EU’s External Action ISBN 978-94-6265-574-4 ISBN 978-94-6265-575-1 (eBook) https://doi.org/10.1007/978-94-6265-575-1 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2023 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE, part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Contents

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‘The Kindness of Strangers’—Solidarity in International and EU Law: An Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Eva Kassoti and Narin Idriz

Part I

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Solidarity: An International Law Perspective

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In Search of Solidarity in International Law . . . . . . . . . . . . . . . . . . . . . Dire Tladi

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Solidarity as an International Legal Norm . . . . . . . . . . . . . . . . . . . . . . . Craig Eggett

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The Principle of Solidarity in the Law of Transboundary Groundwater . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Petr Stejskal

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Global Environmental Issues and International Solidarity: Between Myth and Reality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Vonintsoa Rafaly

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Anti-legal? Georges Scelle’s Solidarity, French Sociological School, and the Backlash Against International Investment Law in Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Tomasz Milej

Differential Treatment for Developing Countries as a Manifestation of Solidarity: Overcoming New Challenges by Going Back to the Basics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Athar Ud Din

Part II 8

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Solidarity: An EU Law Perspective

Thinking About Solidarity and EU Law . . . . . . . . . . . . . . . . . . . . . . . . . 153 Eleanor Sharpston

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Why the European Commission’s Pragmatic Approach to Asylum Is Not Enough: Re-imagining Solidarity as a New Form of Conducting Regional Politics . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 Eleni Karageorgiou

10 Solidarity in EU Immigration and Asylum Law: A Corpus Linguistic Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181 Laura Mastroianni 11 External Solidarity in Integrated Border Management: The Role of EU Migration Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209 Mariana Gkliati and Salvatore Fabio Nicolosi 12 The Solidarity Principle in the Context of the CFSP: The Adoption of Restrictive Measures as an Expression of Solidarity? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Anna Pau 13 The Many Faces of Solidarity and Its Role in the Jurisprudence of the Area of Freedom, Security and Justice . . . . . . . . . . . . . . . . . . . . . 261 Alina Carrozzini and Luigi Lonardo 14 Reflections on the Legal Content of Solidarity in EU Law Under the Lens of the Covid-19 Pandemic . . . . . . . . . . . . . . . . . . . . . . . 281 Susanna Villani

Chapter 1

‘The Kindness of Strangers’—Solidarity in International and EU Law: An Introduction Eva Kassoti and Narin Idriz

Contents 1.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.2 The Many Faces of Solidarity: Solidarity in the Theory and Practice of International and EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.3 Solidarity as a Leitmotif: The Relevance of Solidarity in International and EU Legal Discourses and the Selectivity Critique . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.4 Overview of the Contributions in this Volume . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Abstract The purpose of this introductory chapter is not to rehash the question of the normative value of solidarity in international and EU law—an issue which is treated in extenso in the chapters contained in the volume. Rather, we have found it more helpful to canvass here some more general thoughts pertaining to the ideologically charged context and presumptions underpinning current debates surrounding solidarity as well as to its relevance and the possible dangers of invoking it selectively on the international and EU law level—issues that have not been, in our view at least, adequately addressed in the literature. Against this backdrop, this chapter will begin by briefly mapping out the legal trajectory of solidarity in international and EU law. It will continue by sketching out some broader points regarding to the relevance as well as the possible pitfalls of the debate on solidarity in international and EU law, while the last section will provide an overview of the chapters in this volume. Keywords Solidarity · International community · Common interest · Self-interest · Consent · Selectivity critique · International law · EU law

E. Kassoti (B) · N. Idriz T.M.C. Asser Institute, The Hague, The Netherlands e-mail: [email protected] N. Idriz e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_1

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1.1 Introduction Solidarity is a concept that is increasingly invoked in international and EU legal and policy discourses alike. The 2018 Global Compact for Safe, Orderly and Regular Migration, a non-binding instrument intended to enhance co-operation on international migration, states that: “Our success rests on the mutual trust, determination and solidarity of States to fulfil the objectives and commitments contained in this Global Compact.”1 In 2020 the UN General Assembly affirmed that a democratic and equitable international order requires solidarity and co-operation among all States.2 The EU has expressly invoked solidarity in the eurozone, regarding both the refugee and the Covid-19 crises.3 More recently, in a joint statement, the European Commission President Ursula Von der Leyen and US President Joe Biden condemned Russia’s war on Ukraine and stressed that: “We stand in solidarity with the Ukrainian people, who are bravely defending their homeland, and we call on Russia to end the brutal onslaught against its neighbor.”4 However, the meaning, nature, functions as well as the normative contours of solidarity both at the international and at the EU law level remain nebulous—despite the importance attached to the relevant concept in international and EU law literature alike.5 The chapters in this edited volume stem from an (online) conference organized under the auspices of the T.M.C. Asser Institute in October 2021 where we invited the authors, as well as our distinguished keynote speakers Professors Dire Tladi and Eleanor Sharpston, to reflect on the legal trajectory of solidarity in international and EU law. We chose the EU legal system—as an example of a regional legal system—as a yardstick against which meaningful comparisons with international law can be made. Although references to solidarity can be found in other regional regimes and instruments such as the African Charter on Human and Peoples Rights6 and the Charter of the Organization of American States (OAS),7 the EU remains a regional organization with a high degree of integration in which solidarity is of cardinal importance and features among the founding values of the organization8 —and whose courts have engaged therewith in their practice (at least, to some extent).9 These considerations coupled with the Union’s claim to autonomy 1

Global Compact for Safe, Orderly and Regular Migration 2018. UN General Assembly 2020, point 6(e). 3 Grimmel 2021, p. 242. 4 European Commission 2022b. 5 Forowicz 2020. 6 African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, 21 ILM 58. 7 Charter of the Organization of American States, signed 30 April 1948, entered into force 13 December 1951, 119 UNTS 3. 8 See Consolidated Version of the Treaty on European Union [2012] OJ C 326/13, Articles 2, 3(3), 3(5), 21(1). 9 See for example CJEU, Joined Cases C-6/69 and C-11/69 Commission of the European Communities v French Republic, Judgment, 10 December 1969, ECLI:EU:C:1969:68, para 16; CJEU, Case 2

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make the EU’s approach to solidarity a useful vantage point of view from which to identify points of convergence or divergence with international law. In this light, this edited volume provides not only insights into the evolution of the principle of solidarity in international and EU law but also serves as a springboard for answering broader questions pertaining to what its stage of development may imply for the two legal orders and/or their interaction. As it will become apparent below, solidarity exposes international law to intense political contestation. The debate on solidarity is premised on conflicting visions (or even assumptions) regarding the values (or lack thereof) underpinning the international legal order well as the self-interest or community-oriented driving forces behind States’ action at the international level. Thus, the regional narrative offers a new lens through which to revisit classic questions pertaining to the nature of modern international law, its generality, as well as its continuing relevance in a universe of regional organizations presenting different visions of co-existence and co-operation.10 In turn, the book also invites us to critically reflect on the ‘emancipatory potential’ of regional organizations. As the chapters of this volume demonstrate, solidarity in the EU law context has been developed in a rather piecemeal fashion and as part of short-term measures responding to crises—thereby, arguably, lacking a clear normative human rights anchor. Furthermore, the selectivity critique arises in a much more intense way in this context. Selective manifestations of solidarity at this level— such as, arguably, the EU’s response to Russia’s invasion of Ukraine—raise awkward questions of double standards. Although these are not endemic to the regional level, they do challenge the regional narrative and invite us to contemplate whether regional international organizations are loci where injustice is perpetuated at a micro-level. The purpose of the introduction is not to rehash the question of the normative value of solidarity in international and EU law—an issue which is treated in extenso in the chapters contained in the volume. Rather, we have found it more helpful to canvass here some more general thoughts pertaining to the ideologically charged context and presumptions underpinning current debates surrounding solidarity as well as to its relevance and the possible dangers of invoking it selectively on the international and EU law level—issues that have not been, in our view at least, adequately addressed in the literature. Against this backdrop, the structure of this chapter is as follows: Sect. 1.2 will briefly map out the legal trajectory of solidarity in international and EU law. Section 1.3 continues by sketching out some broader points regarding to the relevance as well as the possible pitfalls of the debate on solidarity in international and EU law, while Sect. 1.4 provides an overview of the chapters in this volume. Before embarking on the substantive discussion, we would like at this juncture to sincerely thank Ms Caroline Schmidt for her invaluable assistance in editing this volume. C-77/77 Benzine en Petroleum Handelsmaatschappij BV and others v Commission of the European Communities, Judgment, 29 June 1978, ECLI:EU:C:1978:141, para 15; CJEU, Cases C-715/17, C-718/17 and C-719/17 European Commission v Republic of Poland, European Commission v Hungary and European Commission v Czech Republic, Opinion of Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917, paras 251, 253. 10 See generally Chalmers 2019.

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1.2 The Many Faces of Solidarity: Solidarity in the Theory and Practice of International and EU Law The concept of solidarity has a long pedigree in social, political and legal philosophy and it gained much traction at the beginning of the 20th century among sociologists.11 Drawing from the work of sociologists, Scelle developed the notion of solidarity in international law. For Scelle, solidarity in its normative dimension is a natural byproduct of a social fact, namely solidarity between individuals and groups: “By the mere fact of their existence, all these complex communities, all these interrelating groups, segregate their own rules in order to assure the maintenance and development of the solidarity on which they are based.”12 This factual/normative dimension of solidarity is also evident in Alvarez’s understanding of the concept. Alvarez argued that solidarity is both the new (factual) state of international affairs and the driving force behind the process of transformation of international law from an order based on sovereign independence to one of internationalism.13 The idea that solidarity is the guiding principle in altering the outdated structure of international law from a legal order promoting the self-interest of States to one that pursues common (community) interests and attempts to find solutions to problems affecting all humankind has heavily influenced international legal scholarship on the topic. According to Simma, the different manifestations of solidarity in various fields of international law attest to the emergence of a new legal order where community interests are prioritised over the “egotistic interests of individuals”.14 In a similar vein—and emphasising the idea that solidarity is premised on the existence of a sense of community—MacDonald argued that: “Solidarity as a principle of international law, creates a context for meaningful co-operation that goes beyond the concept of a global welfare State; on the legal plane it reflects and reinforces the broader idea of a world community of interdependent States”.15 Wellens took the argument further by claiming that: “The principle of solidarity may rightfully claim constitutional status …, because it is instrumental in protecting fundamental values shared by the international community, ...”.16 This brief exposition shows that the theoretical articulation and development of the concept of solidarity in international law is heavily ideologically laden. At the core of modern accounts of solidarity lies the idea that the concept spearheads the evolution of international law from a legal order based on State consent and bilateralism to one geared towards protecting common interests and values. 11

Durkheim 1933. For an extensive account of the development of solidarity in sociology and law see the contribution by Eggett in this volume (Chap. 3) as well as Campanelli 2011. See also Gorobets 2022. 12 Scelle 1932, p. 30, as translated in Casanovas 2001, p. 9. 13 Alvarez 1912, p. 128. 14 Simma 1994, pp. 244–245. 15 MacDonald 1996, pp. 259–260. 16 Wellens 2010, p. 36.

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Despite its long and rich history in international law, the concept’s exact meaning and normative contours remain vague. According to Campanelli, the key elements of solidarity in international law include: (a) the existence of collectively shared values and goals; (b) the provision of assistance by some actors to others without expectations of reciprocity; (c) that providers and beneficiaries of solidarity are clearly identifiable.17 Dann understands the key elements of solidarity as including: (a) an obligation; (b) to advance a common objective based on the equality of the partners involved; and (c) on the basis of mutual obligations and effort.18 Traces of the concept of solidarity exist in various international law regimes including international environmental law, collective security, international humanitarian and human rights law, international refugee law, international law on disaster relief and the law on state responsibility—and the principle is also discussed in the context of the responsibility to protect.19 At the same time, there is very little evidence to support the proposition that solidarity has a clear normative dimension in international law. As Campanelli argues: “It would be hardly sustainable that solidarity is today a fully acknowledged legal principle governing international law and from which it would be possible to draw a clear set of duties and obligations for international subjects.”20 Even vociferous proponents of the principle have doubted its binding force under international law.21 In the context of EU law, solidarity has been a guiding principle of European integration; Schuman stated in 1950 that Europe will be built “through concrete achievements which first create a de facto solidarity.”22 With the Treaty of Lisbon solidarity is explicitly mentioned as part of the values of the EU (Article 2 TEU) as well as a principle governing the EU’s relations with the outside world (Articles 3(5) and 21(1) TEU). As Hipold has observed, ‘islands of solidarity’ within EU law have evolved over time.23 References to solidarity abound in the Treaties. Solidarity is mentioned in the mutual defence clause of Article 42(7) TEU; in the field of asylum, immigration and border control (Articles 67, 80 TFEU); in the field of economic policy; in the context of measures to be taken in situations where a M.S. is facing difficulties in relation to energy supply, natural disasters or exceptional occurrences (Article 122 TFEU); in the field of EU energy policy (194(1) TFEU); as well as in cases of a terrorist attack (Article 222 TFEU).24 Despite the plethora of references to solidarity in the Treaties, the principle has appeared only sparingly in the case-law of the CJEU25 and it has only recently been recognized as “one of the

17

Campanelli 2011, paras 8–10. Dann 2010, p. 61. 19 See generally Koroma 2012; Tzimas 2018; Williams 2009. 20 Campanelli 2011, para 21; see also Gorobets 2022, p. 11. 21 See for example Wolfrum 2010, pp. 225–228. 22 European Union 1950. 23 Hipold 2015, p. 257. 24 For an overview, see Klamert 2022, pp. 128–129; Sommermann 2013, p. 176. 25 Schiek 2020. 18

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fundamental principles of EU law” in the context of energy policy.26 Thus far, the principle has not been applied by the Court as an independent source of obligations.27 As Klamert notes: “Solidarity … cannot be relied upon as the basis of a concrete duty, or a right to receive assistance in Union law, unless such right or duty were operationalised by secondary law”.28 At the same time, solidarity is an essential part of the EU’s legal resilience toolkit in responding to crisis situations.29 This has been particularly the case in the context of the migration, European debt and Covid-19 crises. The response to these crises has been characterised by the development of ‘solidarity mechanisms’—where the provision of assistance is linked to compliance with common rules.30 This has been acknowledged by the CJEU in the context of asylum policy. The Court viewed the 2015 relocation decisions as measures aimed at resolving an emergency situation caused by the influx of third country nationals and thus, as a concrete expression of the principle of solidarity which, under Article 80 TFEU is a principle that governs EU asylum policy.31

1.3 Solidarity as a Leitmotif: The Relevance of Solidarity in International and EU Legal Discourses and the Selectivity Critique The preceding discussion allows us to hazard a few general observations. First, solidarity suffers from ‘normative weaknesses’. There is very little evidence to support the proposition that the principle may create self-standing obligations either in international or in EU law. Secondly, the discourse surrounding the topic (particularly in the context of international law) is heavily ideologically laden. In international legal scholarship the debate on solidarity is premised on a set of assumptions pertaining to the existence of an international community sharing common values and as such, the principle is often perceived as being antithetical to structural features of current international law including state consent—which is often equated to self-interested consent.32 In a similar vein, in the context of EU law, solidarity spearheads the EU’s 26 CJEU, Case C-848/19 Germany v Poland, Judgment, 15 July 2021, EU:C:2021:598, para 38; See also CJEU, Case C-156/21, Hungary v European Parliament and the Council of the European Union, Judgment, 16 February 2022, ECLI:EU:C:2022:97, para 129. 27 Klamert 2022, p. 128. 28 Ibid., p. 134. 29 According to Mbengue: “Legal resilience refers to the ability of states to shape together legal initiatives and instruments that would allow them to better recover after a crisis …”. See Mbengue 2022, p. 64. 30 Editor(s) 2022, p. 963. 31 CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union, Judgment, 6 September 2017, ECLI:EU:C:2017:631, para 291; CJEU, Joined Cases C-715/17, C-718/17 and C-719/17, Commission v Poland, Hungary and the Czech Republic, Judgment, 2 April 2020, ECLI:EU:C:2020:257, para 80. 32 On this, see generally Besson 2016.

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crisis narrative—thereby testing pervasive assumptions regarding the Union’s raison d’être as well as its identity both internally and externally. As Borrell stressed during the Covid-19 crisis: “There is a global battle of narratives going on … There is also a battle of narratives within Europe. It is vital that the EU shows it is a Union that protects and that solidarity is not an empty phrase”.33 In turn, these observations raise questions regarding the merits, relevance, usefulness and possible pitfalls of the extant framework of discussion of solidarity in international and EU law. As seen above, the doctrinal articulation of solidarity in international law is premised on and entangled with discussions pertaining to the existence of an international community of States which shares common values and interests. However, the merits and value of framing the debate on solidarity in those terms is questionable. Apart from a short list of rules from which no derogation is permitted (jus cogens norms),34 there is little evidence of a shift from a consent-based to a communityoriented international law. Furthermore, it would be erroneous to assume that there is an inherent contradiction between solidarity and consent-based international law35 — an assumption underlying most modern accounts of solidarity in international legal literature. Treaties, which are consent-based instruments, may reflect community interests—and hence, they may also articulate and specify solidarity-related obligations. Moreover, the assumption that state-consent equates self-interest is in itself problematic. At its core, this assumption is based on a (misleading) analogy which reduces States to individuals; by drawing on this analogy, States are then perceived as pursuing ‘egotistic interests’—as Simma put it.36 This is erroneous on different grounds. Even if we accept the analogy between States and individuals, it would be wrong to assume that the latter only pursue self-interested objectives; community interests have also arisen in the domestic context.37 As Besson notes: “States are social institutions set up by their individual members to protect their community interests and cannot therefore be reduced to individuals. It becomes clear then that the interests of institutional agents like states cannot be self-oriented only.”38 The existence of multilateral duties stemming from international treaties attests to the fallacy of equating State consent with self-interest.39 For example, the ‘common heritage’ principle enshrined in the United Nations Convention on the Law of the Sea40 is a concrete manifestation of community interests in the governance of spaces beyond national jurisdiction. Ultimately, the conceptual entanglement of solidarity with a shift from a consent-based to a community-interest oriented international 33

Borrell 2020. ILC 2019, pp. 141–208. 35 Benvenisti and Nolte 2018, p. 3. 36 Simma 1994. 37 Besson 2018, p. 46. There is evidence that primates in general are not inherently motivated by selfishness but may also be driven by community-interest goals, see generally De Waal 2019. 38 Ibid. 39 Ibid. 40 United Nations Convention on the Law of the Sea, opened to signature 10 December 1982, entered into force 16 November 1994, 1833 UNTS 397, Articles 136–137. 34

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legal order may stunt the future development of the principle. Viewing solidarity as inevitably and inexorably linked with a move-away from consent reduces the possibility of its normative evolution within the current structure of international law. This is both empirically incorrect and normatively undesirable. As current practice shows, solidarity is not necessarily predicated on the existence of a communityoriented international legal order, although it may be considered as a manifestation of the existence of ‘community interests’ in international law. Although in EU law solidarity does not carry the ideological baggage that it does in international law, the centrality of its role in the Union’s crisis rhetoric shows that the assumption that the integration project is, at the end of the day, beneficial to all participants is being put to the test by repeated crises. More particularly, recent crises (such as the migration and European debt crises) create inequalities and asymmetric burdens—which the Union does not necessarily have the tools to systematically deal with.41 Hence, ‘solidarity mechanisms’ are being created (albeit, arguably in a haphazard and piecemeal fashion) in order to tackle important and acute underlying issues of social injustices. Ultimately, despite the differences in origin, legal trajectory as well as levels of entrenchment within the international and EU legal orders respectively, this brief exposition shows that there is a common thread running through the increased references to solidarity in international and EU legal policy discourses. Such references attest to common, growing concerns about social fairness and (re-)distribution in a globalised world. This does not necessarily mean that the current models of global governance are not adequate to tackle such challenges; as seen above, elements of ‘solidarity’ and ‘community interest’ permeate different treaty regimes and ‘solidarity mechanisms’ have been developed at the regional, EU law context. It means that the legal concept of solidarity needs to be substantially developed and that we need to acknowledge the need to seriously engage with questions of distribution, social fairness and collective endeavours both at the international and at the regional level. In this sense, solidarity comes, as Fassbender noted in respect to constitutionalization, “as some sort of leitmotif to capture, name and also promote the fundamental changes in the international legal order which we are all sensing but cannot easily express in the language of (international) law that we learned”.42 Engaging with these questions comes with a sense of urgency both for international and EU law lawyers in an era of populist attacks against international law and multilateralism and Euroscepticism in some M.S. A final point regarding the possible blind spots of the discussion on solidarity needs to be made here. Overall, as seen above, solidarity has been viewed as a good thing—something that international and EU law should strive for. At the same time, we should not lose sight of the awkward questions of identity, of ‘us’ and ‘otherness’ that come hand-in-hand with solidarity. To whom do we show solidarity and perhaps, more importantly, to whom we do not? What motivates solidarity, and hence non-reciprocal efforts towards a shared objective, seems to be a shared 41 42

Editor(s) 2022, pp. 958–959. Fassbender 2009, p. 309.

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identity and a sense of belonging; in other words, solidarity is a feeling based on the recognition of the beneficiary as an equal, or as a member of our own group.43 In turn, this may be perceived as being antithetical to ideas of global solidarity and of cosmopolitanism. As Moreno-Lax put it: “solidarity requires exclusion and positioning against a perceived ‘other’”.44 The way in which the EU reacted towards Ukrainian refugees by activating the temporary protection directive45 stands in stark contrast to the rather cynical approach it has adopted in relation to other people fleeing war. There is evidence to suggest that the showing of solidarity towards Ukrainian people fleeing from their country is due to the fact that most Europeans view Ukrainians as part of the ‘European family’.46 This raises issues of double standards and selectivity.47 The answers to these questions are obviously not easy or straightforward, but this does not mean that they should not be part of the debate on solidarity. As long as the notion of universal solidarity is not solidified, we need to be acutely aware of the limitations and possible dangers of the current discourse on solidarity. We simply cannot ignore the fact that manifestations of solidarity can be simultaneously not only acts of inclusion, but also of exclusion and that the relevant debate (perhaps, paradoxically so) carries with it the danger of perpetuating the very social injustices that solidarity was supposed to combat at the first place.

1.4 Overview of the Contributions in this Volume The book is conceptually divided into two parts. The first part focuses on solidarity in international law, whereas the second one explores the development of the principle in EU law. The international law part begins with Chap. 2 by Dire Tladi. Tladi provides a sobering account of solidarity within the international legal system. The chapter shows that international law, as it currently stands, is still very much a legal system based on co-operation—rather than solidarity, in the sense of a system geared towards improving the lives of the marginalised. The inability of international law to combat modern challenges, such as poverty as well as vaccine hoarding attest to the lack of embeddedness of solidarity within the international legal order. The chapter concludes by questioning whether an international community—an element perceived as necessary element for the emergence of solidarity as a legal principle— truly exists. Tladi argues that the emergence of a true international community, and thus, the principle of solidarity—at the international law level is not something that will happen naturally; it needs to be consciously and systematically nurtured and cultivated in the methodology, language and the very fabric of modern international law. 43

Moreno-Lax 2017, pp. 744–745. Ibid., p. 744. 45 Council of the European Union 2022. 46 European Commission 2022a. 47 See for example Deeb 2022. 44

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In Chap. 3 of this volume, Craig Eggett explores the normative status of solidarity in the international legal system. Eggett argues there is evidence to buttress the proposition solidarity functions as a principle of international law influencing the creation and interpretation of international law norms. At the same time, the chapter highlights that solidarity does not create self-standing obligations and that, therefore, it cannot be considered as an international law norm. The chapter concludes by stressing the potential of the further development of solidarity-based rules in the form of general principles—a welcome development which could contribute to the international law’s ability to respond to modern challenges. Petr Stejskal’s chapter (Chap. 4) zooms in on the application of the principle of solidarity in the law of transboundary groundwater. The chapter shows that there are interconnections between the principle of solidarity and the concepts of intergenerational equity and equitable utilization. However, Stejskal argues that the principle of solidarity does not create self-standing obligations. Rather, in the context of transboundary groundwater governance, the principle needs to be operationalized through the adoption of more specific rules, such as the equitable utilization rule. In this light, the chapter attests to the (indirect) legal relevance of the principle in international law. Solidarity can influence the interpretation of international treaties and the development of sources of international law more broadly. Vonitsoa Rafaly’s chapter (Chap. 5) examines the role of solidarity in international environmental law. Rafaly argues that solidarity’s normative status remains ambiguous—laying somewhere in-between a principle and a value. The chapter continues by showing how the principle of solidarity has influenced the international legal framework pertaining to environmental protection. Rafaly argues that solidarity is closely intertwined with the development soft environmental norms— thereby establishing a highly adaptive and dynamic global governance regime able to address modern environmental challenges. Finally, the chapter enquires into the role of non-State actors in advancing solidarity in international environmental law— thereby attesting to the principle’s potential to enhance the effective implementation of international environmental norms. In Tomasz Milej’s chapter (Chap. 6) the language of solidarity is used as a lens through which to revisit (and reframe) concerns surrounding international investment law in Africa. Milej argues that the solidarity agenda and language allow us to take a holistic perspective on foreign direct investment governance—one that respects local communities and contributes to sustainable development. In this sense, international law has arguably a role to play in changing the pro-investor bias of international investment law. However, in order to do so, international law must be infused with elements of inter-social solidarity—in order to create a new, more inclusive international community. Athar Ud Din’s chapter (Chap. 7) explores how the concept of ‘differential treatment’ in different international legal regimes, such as international law and law relating to climate change can be understood as a concrete manifestation of solidarity in international law. The chapter argues that the existence of ‘differential

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treatment’ attests to the fallacy of conceptualising international legal relations as being based solely on reciprocity. The chapter continues by discussing the adverse effects of the recent trend against providing ‘differential treatment’ to developing countries—a trend which has largely been initiated by emerging powers. The chapter concludes by making concrete recommendations on how to preserve the provision of ‘differential treatment’ to developing countries while at the same time addressing the concerns raised by emerging powers—something that is considered necessary in order to prevent reverting to a legal system based on competition and strict reciprocity. The second part of the edited volume begins with some reflections on the role of solidarity within the EU legal system by Eleanor Sharpston (Chap. 8). Sharpston identifies several key elements of solidarity: (i) there must be a particular issue; (ii) that requires collective effort to be resolved; (iii) the ones providing assistance must identify and engage with the issue. The chapter continues by providing concrete examples of hoe solidarity works in different fields of EU law, including common agricultural policy, fisheries and financial assistance. The chapter concludes by posing several fundamental questions about the nature (and future) of solidarity in EU law—including questions pertaining to its ability to bridge a sense of altruism with a sense of realism and to the extent to which a common and shared understanding of responsibility towards recipients of solidarity both within and outside the Union truly exists. Eleni Karageorgiou’s chapter (Chap. 9) explores solidarity in the EU’s asylum and migration policy—with a special focus on the Commission’s new Pact on Migration and Asylum. Karageorgiou argues that the Pact evidences the Commission’s preoccupation with questions of efficiency and speediness. The Pact arguably adopts a nation-centric and formalistic approach to solidarity, thereby ignoring questions of community and belonging that the 2015 migration crisis brought to the surface. The chapter concludes by emphasising that a re-structuring of the EU’s asylum policy entails putting solidarity (and thus, questions of community and belonging) at the epicentre of relevant discussion—something that would also mean being attentive to and taking into account the voice of refugees’ themselves. Laura Mastroianni’s chapter (Chap. 10) adopts a corpus linguistic analysis in the EU’s migration and asylum policy field in order to sketch out the meaning of solidarity within the EU legal system. On the basis of this approach the chapter shows that solidarity mainly refers to inter-State solidarity, namely solidarity between M.S. The analysis further illustrates that solidarity in the migration and asylum policy context is strongly connected to notions of fairness, responsibility and burdensharing. The chapter concludes with a call for wider engagement with the corpus linguistic approach in order to enrich the academic debate on solidarity and facilitate the elaboration of more transparent legislative texts on the topic. Mariana Gkliati and Salvatore Nicolosi in Chap. 11 examine the role of EU migration agencies, namely the European Border and Coast Guard Agency (FRONTEX) and the European Asylum Support Office (EASO) as actors of external solidarity. By exploring the mechanisms and forms of cooperation with third countries by these two

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agencies, the chapter identifies human rights concerns and accountability gaps in the external dimension of migration management. Gkliati and Nicolosi argue that activities undertaken by these two agencies—operationalising solidarity externally—may result in violations of the EU’s human rights obligations. The chapter concludes by highlighting the importance of implementing effective accountability mechanisms in the operationalisation of external solidarity—in order to mitigate the risk of human rights violations. Anna Pau’s contribution (Chap. 12) focuses on the application of the ‘solidarity clause’ of Article 24(3) TEU and uses the EU’s restrictive measures in solidarity with Cyprus pertaining to the infringement of the sovereign rights and jurisdiction of Cyprus in its territorial Sea, EEZ and continental shelf as a case-study. Pau argues that references to solidarity in CFSP acts may be viewed as expression of interMember-State solidarity as well as evidence of the reinforced role of the EU as a co-ordinator of M.S. action during an international crisis involving some of them. This, however, does not imply that Article 24 TEU entails obligations on behalf of the EU—and the provision remains essentially of a political nature. Despite this, the chapter concludes by stressing that although Article 24 TEU does not impose self-standing obligations, co-ordinated and coherent action at the EU level would be in the spirit of solidarity in cases of an international crisis involving M.S. In Chap. 13 Alina Carrozzini and Luigi Lonardo examine how solidarity has been used in the case-law of the CJEU in the Area of Freedom, Security and Justice (AFSJ). The authors argue that solidarity is employed in the case-law of the Court as a value, a principle and a rule—thereby attesting to its legal relevance in the context of EU law. Solidarity as a value takes the form of a standard to be attained. As a legal principle, solidarity is mainly used as a tool for the interpretation of secondary legislation, whereas when it is utilised as legal rule, it imposes on M.S. a duty to comply with obligations resulting from legislation aimed at combatting emergency situations. By confirming the legal relevance of solidarity in the case-law of the Court, the chapter also feeds into broader debates regarding the normative effect of constitutional objectives. Finally, in Chap. 14 Susanna Villani explores the role of solidarity during the Covid-19 pandemic by assessing the most significant measures adopted during that period in the light of solidarity arguments. While the instruments activated during the pandemic are different in nature and scope, Villani argues that the Eu’s response has largely been coherent and effective. In this light, the chapter claims that the discussion on solidarity should move away from one-dimensional calls for the creation pf a duty of assistance towards the establishment of structural assistance mechanisms of a permanent nature. The author concludes by stressing the need to acknowledge that the pandemic should not merely be viewed as a test of European solidarity, but also as an opportunity for rethinking the EU’s integration project as well as the best way of operationalizing the fundamental values underpinning it.

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References Alvarez A (1912) La Codification du droit international: ses tendances: ses bases. Pedone, Paris Benvenisti E, Nolte G (2018) Introduction. In: Benvenisti E, Nolte G (eds) Community Interests Across International Law. Oxford University Press, Oxford, pp 3–16 Besson S (2016) State Consent and Disagreement in International Law-Making: Dissolving the Paradox. Leiden Journal of International Law, 29:289–316 Besson S (2018) Community Interests in International Law: Whose Interests Are They and How Should We Best Identify Them? In: Benvenisti E, Nolte G (eds) Community Interests Across International Law. Oxford University Press, Oxford, pp 36–49 Borrell J (High Representative of the European Union for Foreign Affairs and Security Policy) (2020) The Coronavirus Pandemic and the New World It is Creating. https://www.eeas.europa. eu/eeas/coronavirus-pandemic-and-new-world-it-creating_en. Accessed 6 September 2022 Campanelli D (2011) The Max Planck Encyclopaedia of Public International Law—Principle of Solidarity. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019 9231690-e2072?prd=EPIL. Accessed 6 September 2022 Casanovas O (2001) Unity and Pluralism in Public International Law. Martinus Nijhoff, The Hague Chalmers D (2019) Regional Organizations and the Reintegrating of International Law. European Journal of International Law 30:163–167 Council of the European Union (2022) Ukraine: Council Unanimously Introduces Temporary Protection for Person Fleeing War. https://www.consilium.europa.eu/en/press/press-releases/ 2022/03/04/ukraine-council-introduces-temporary-protection-for-persons-fleeing-the-war/. Accessed 6 September 2022 Dann P (2010) Solidarity and the Law of Development Cooperation. In: Wolfrum R, Kohima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 55–79 De Waal F (2019) Mama’s Last Hug: Animal Emotions and What They Tell Us about Ourselves. W.W. Norton & Company, New York Deeb B (2022) Europe’s refugee double standards leaves it vulnerable. https://www.politico.eu/art icle/europes-refugee-double-standard-leaves-it-vulnerable/. Accessed 6 September 2022 Durkheim E (1933) The Division of Labour in Society. Macmillan, New York Editor(s) (2022) Editorial Comments: A Jurisprudence of Distribution for the EU. Common Market Law Review 59:957–968, p 963 European Commission (2022a) Eurobarometer: Europeans approve EU’s response to the war in Ukraine. https://ec.europa.eu/migrant-integration/library-document/eurobarometer-eur opeans-approve-eus-response-war-ukraine_en. Accessed 6 September 2022 European Commission (2022b) Joint Statement by President Von Der Leyen and President Biden. https://ec.europa.eu/commission/presscorner/detail/en/STATEMENT_22_2007. Accessed 6 September 2022 European Union (1950) Schuman Declaration May 1950. https://european-union.europa.eu/ principles-countries-history/history-eu/1945-59/schuman-declaration-may-1950_en. Accessed 6 September 2022 Fassbender B (2009) The Meaning of International Constitutional Law. In: Tsagourias N (ed) Transnational Constitutionalism: International and European Perspectives. Cambridge University Press, Cambridge, pp 307–328 Forowicz M (2020) Convergence and Divergence of the Principle of Solidarity. In: Fahey E (ed) Framing Convergence and Divergence with the Global Legal Order: The EU and the World. Hart Publishing, Oxford, pp 177–201 Global Compact for Safe, Orderly and Regular Migration (2018) Intergovernmentally negotiated and agreed outcome. https://refugeesmigrants.un.org/sites/default/files/180713_agreed_out come_global_compact_for_migration.pdf. Accessed 6 September 2022 Gorobets K (2022) Solidarity as a Practical reason: Grounding the Authority of International Law. Netherlands International Law Review 69:3–27

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Grimmel A (2021) ‘Le Grand Absent Européen’: Solidarity in the Politics of European Integration. Acta Politica 56:242–260 Hipold P (2015) Understanding Solidarity within EU Law: An Analysis of the ‘Islands of Solidarity’ with Particular Regard to Monetary Union. Yearbook of European Law 34:257–285 ILC (2019) Draft Conclusions on peremptory norms of general international law (jus cogens). In: Report of the ILC, UN Doc. A/74/10. https://legal.un.org/ilc/reports/2019/english/chp5.pdf. Accessed 6 September 2022 Klamert M (2022) Loyalty and Solidarity as General Principles. In: Ziegler KS, Neuvonen PJ, Moreno-Lax V (eds) Research Handbook on General Principles of EU Law. Edward Elgar, Cheltenham, pp 118–135 Koroma A (2012) Solidarity: Evidence of an Emerging International Legal Principle. In: Hestermeyer H, Wolfrum R (eds) Coexistence, Cooperation and Solidarity: Liber amicorum Rüdiger Wolfrum. Nijhoff, Leiden, pp 103–129 MacDonald R (1996) Solidarity in the Practice and Discourse of Public International Law. Pace International Law Review 8:259–302 Mbengue MM (2022) Narratives of Solidarity in Times of Crises: Tales from Africa. In: Mbengue MM, D’Aspremont JD (eds) Crisis Narratives in International Law. Brill, Leiden, pp 62–69 Moreno-Lax V (2017) Solidarity’s Reach: Meaning, dimensions and implications for EU (external) asylum policy. Maastricht Journal of European and Comparative Law, 24:740–762 Scelle G (1932) Précis de Droit des gens, Vol. I. Librairie du Recueil Sirey, Paris, p 30 Schiek D (2020) Solidarity in the Case Law of the European Court of Justice: Opportunities Missed? In: Krunke H, Petersen H, Manners I (eds) Transnational Solidarity: Concept, Challenges and Opportunities. Cambridge University Press, Cambridge, pp 252–300 Simma B (1994) From Bilateralism to Community Interests in International Law. Recueil des Cours 250 Sommermann KP (2013) Article 3 TEU [The Objectives of the European Union]. In: Blanke HJ, Mangiameli S (eds) The Treaty on European Union: A Commentary. Springer, Heidelberg, pp 157–183 Tzimas T (2018) Solidarity as a Principle of International Law: Its application in Consensual Intervention. Groningen Journal of International Law 6:333–359 UN General Assembly (1982) United Nations Convention on the Law of the Sea, 1833 UNTS 397 UN General Assembly (2020) Resolution on the Promotion of a democratic and equitable international order, UN Doc A/RES/75/178, point 6(e) Wellens K (2010) Revisiting Solidarity as a (Re-)Emerging Constitutional Principle. In: Wolfrum R, Kohima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 3–39 Williams A (2009) Solidarity, Justice and Climate Change Law. Melbourne Journal of International Law 10:493–509 Wolfrum R (2010) Concluding Remarks. In: Wolfrum R, Kohima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 225–228

Eva Kassoti Senior Researcher in EU and International Law, T.M.C. Asser Institute; Academic Co-ordinator of CLEER, The Hague, The Netherlands. Narin Idriz Researcher at the T.M.C. Asser Institute, The Hague, The Netherlands.

Part I

Solidarity: An International Law Perspective

Chapter 2

In Search of Solidarity in International Law Dire Tladi

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Emergence of an International Law Based on Solidarity . . . . . . . . . . . . . . . . . . . . . . 2.3 International Law’s Responses to Current Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 International Law and Poverty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Vaccines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.3 The International Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter argues that international law as it currently stands is not a legal system based on solidarity, nor is there any evidence that such a system is emerging. To the contrary, it is asserted that manifestations of ‘solidarity’ in modern international law simply reflect a duty of co-operation—a duty which is transactional in nature, and thus akin to the bilateralist character of classic international law. The inadequate responses to modern challenges such as poverty and vaccination attest to the lack of solidarity in modern international law. Ultimately, the idea that international law embodies or aspires to a sense of solidarity is contingent upon the existence of an ‘international community’. However, there is very little evidence to buttress the proposition that this ‘international community’ really exists. Therefore, it is incumbent on actors and international actors not to simply will solidarity into existence but to carefully promote the infusion of the principle of solidarity into the very fabric, methodology and raison d’être of the international legal system. Keywords Solidarity · International law · Sovereignty · Co-operation · Self-interest · International community

This chapter is based on the keynote speech I held at an Asser Institute conference on 28 October 2021. D. Tladi (B) University of Pretoria, Pretoria, South Africa © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_2

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2.1 Introduction The genesis of my thoughts on solidarity, oddly, is an article in the 2019 Chinese Journal of International Law about populism and international law.1 That article, of course, was not about solidarity. In that article, I argued that international law and multilateralism were not, as the popular narrative suggested, under threat from populism. Rather, the article suggested, populism’s “attack” on international law was made possible by the very nature of international law and was, in fact, a reflection of international law. The incidents often put forward to show the dangers of populism for international law were, in reality, simply a manifestation of the underlying character of international law under which, in the famous words of the Athenians: “The strong do what they can, and the weak suffer what they must.”2 While the paper was not about solidarity, it concluded that the lack of solidarity was the real threat to a value-laden international law, not populism. These concluding thoughts made me wonder what solidarity in international law would look like. When the Vice-Chancellor of the University requested that I present an expert lecture during the pandemic, I decided to use that as an opportunity to develop my thoughts on solidarity.3 I will pause to say that in that lecture, presented in September of 2020, I predicted that the united front premised on solidarity that we saw from world leaders at the beginning of the pandemic,4 pledging that there would be no vaccine hoarding and that the poorest of the poor will have the same access to vaccines as the richest of the rich, would be quickly forgotten and thrown in the rubbish bin of academic ideas when vaccines were eventually developed. In that lecture, I expressed the view that when, after great collaboration, with many developing countries serving as sites for vaccine production and its populations serving as subjects for tests, when the vaccines were found, those that have the financial muscle would throw fancy words at us like “intellectual property rights”, and “scientific research” and the poor of the world would be left holding the proverbial baby of vaccination, skyrocketing fatalities and tanking economies. The early days of vaccine distribution illustrate how solidarity was jettisoned in favour of the “me-first-approach”.5 Shortly after that initial talk, the African Society of International Law invited me to deliver a keynote address on COVID and International Law. I chose, as the theme of the keynote, to develop further my thoughts on solidarity. 1

Tladi 2020a. Ibid., at p. 389, stating that those “with the influence, the power, will yield it—the word ‘it’ is purposefully used ambiguously to refer to either power or international law—for either good or bad”. 3 Tladi 2020b. 4 See UN General Assembly (2019) UN General Assembly Resolution on Global Solidarity to Fight the Coronavirus Disease, UN Doc A/RES/74/270. 5 See Oxfam Press (2020) Campaigners Warn that 9 out of 10 People in Poor Countries Are Set to Miss Out on COVID-19 Vaccine Next Year. https://www.oxfam.org/en/press-releases/ campaigners-warn-9-out-10-people-poor-countries-are-set-miss-out-covid-19-vaccine. Accessed 8 November 2021. 2

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I have shared this journey only to make the point that, prior to 2020, I had not explicitly thought about solidarity, but that once I started thinking about it, it became somewhat of an obsession. I have, of course, had the occasion to address solidarityrelated issues in the past, sometimes even referring to solidarity conceptually. To take my work on the use of force as an example, the central idea of emphasising collective measures and shedding reliance on unilateral measures is inspired by the idea of solidarity, a sense of collective responsibility to stop the cycle of violence inherent in the expansive approach to self-defence.6 In the last fourteen years I have written a significant amount on the law of the sea and if I reflect on those contributions,7 I would suggest that what ties them all together is solidarity. The essence of my views on the ongoing discussions is best captured in the following quote, which is taken from a statement I made as a diplomat on behalf of South Africa at the UN General Assembly: The common heritage of mankind principle is not solely about benefit sharing. [it] is just as much about conservation and preservation. The principle is about solidarity: solidarity in the preservation and conservation of a good we all share and therefore should protect. But also solidarity in ensuring that this good, which we all share, is for all our benefit.8

A prime example of how solidarity has been a constant undertone of my work is my doctoral thesis on sustainable development, in which the word “solidarity” does not appear even once.9 Yet the theory expounded in that book is absolutely one about solidarity. That book concludes with the following paragraph: The call made — for example in the Johannesburg Declaration on Sustainable Development — for a recognition that ‘humans must be at the centre’ of sustainable development is a call for a social well-being-centred variation of sustainable development. This call is consistent with the historical exposition of sustainable development from its early roots during the Stockholm process. It was the plight of the poorest and most vulnerable members of our human family that laid the seeds for the development of the concept. It should be the plight of the poorest and most vulnerable members of our human family that informs the understanding of this concept.10

The theme of the Conference this chapter is a result of was Solidarity in International and Regional Law. I will focus not on regional law, but on international law. Yet, I should recall that solidarity is an important concept for the region from which I come, Africa—whether as a concept of law or philosophy. We are known, as Africans, for our appeal to solidarity. For example, what makes the African Charter different from a typical international human rights instrument is the inclusion of group rights and duties, concepts born of a sense of solidarity.11 Solidarity can of course be 6

See, e.g. Tladi 2013; 2019a; 2021. Tladi 2009; 2014; 2015; 2017; 2019b. 8 Statement by South Africa to the UN General Assembly on Oceans and the Law of the Sea, 4 December 2009 (on file with author). 9 Tladi 2007. 10 Ibid., p. 250. 11 See generally the African Charter on Human and Peoples Rights (1982) adopted 27 June 1981, entered into force 21 October 1986, 21 ILM 58, Articles 19–21. See generally Umozurike 1983 and Bondzie-Simpson 1988. 7

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abused. We have seen, at times, African states showing solidarity by standing with, or behind, abuses of other African states.12 This is not the type of solidarity I propose. Solidarity should conceptually be about improving the lives of the disadvantaged and marginalised and vulnerable people in our society. In many ways, the eruption of the COVID-19 pandemic has highlighted the plight of the most vulnerable in our society and the cracks in the purported solidarity often declared in the international legal scholarship. The effects of the pandemic have made graphic the inequality and disparity that we all know exists. When the pandemic broke, world leaders churned out the mantra for successfully overcoming the pandemic—sanitise, social distance, wash your hands often, wear a face mask. Social distancing might be possible in the Hague or Geneva, but it is not possible in the townships of Gugulethu in South Africa or the slums of Dharavi in India. The average person in Europe or Sandton might have several bottles of hand sanitiser—a few for the house, a small bottle for the car, a bottle for the office and maybe one for the handbag. Yet many in Dhoker Jhara and Zomba District do not even have access to clean running water for washing their hands, let alone sanitiser. When the pandemic hit, and we were told to go into lockdown, Zoom, Facetime, Teams, Webex and other platforms aided many of us to continue our professional lives in the virtual world. But the poor do not have access to computers, internet connectivity and even electricity, leaving aside the fact that much of their work cannot be done online. These illustrations of inequality can, as well, be applied to the discrepancies in opportunities for education. These inequalities exist across the world and within different societies in the world. If law, and in particular international law, is meant to address these inequalities and disparities, then surely it must embody a sense of solidarity.

2.2 The Emergence of an International Law Based on Solidarity It is now well known that classical international law does not embody solidarity. International law is based on a network of bilateral relations in which State sovereignty and the consent of the State are supreme.13 Because of its “sovereignty” and “consent” centred nature, international law in its classical model can be described as a legal order in which “States are nominally free” and “enjoy supreme authority over all subjects and objects within” their territories.14 The resulting framework is one in which the individual interests of States drive the content and development of international law. The objective of this legal system, and the cooperation on which

12

See, e.g., Bondzie-Simpson 1988, pp. 644–645. Simma 1994, pp. 229–233. 14 Held 2003, p. 162; Tladi 2020a, pp. 373 et seq. 13

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it is founded, is to enable each individual State to pursue and enhance their individually determined objectives and interests.15 Under this system, where consent and sovereignty are king, the only real constraint on States is the ability to bargain, which in turn is dependent on the States’ influence—influence itself is derived from military, economic and political power. This system of international law, a system in which individual interests of States drive the content of law and in which the only real constraints on States flow from the ability to bargain, is not based on any normative objectives nor is directed at improving the lives of the marginalized. Such a system cannot be said to exhibit the virtue of solidarity. Yet there has been a trend, at least in academic literature, suggesting that the classical, state sovereignty-centred international law is giving way to a more value-based system of international law and that the idea of international law as a network of bilateralism is being replaced by a system based on community values and solidarity.16 German scholar and former Judge of the International Court of Justice, Bruno Simma described this shift in his now famous Hague Academy Lectures.17 In those lectures, Simma observed that international law was “overcoming the legal and moral deficiencies of bilateralism” inherent in the State-centred classical international law and was “maturing into a much more socially conscious legal order”.18 The type of order that could address itself to the social issues; the type of order that could exhibit or at least approximate solidarity. In Judge Simma’s view the legal system emerging to replace classical international law is one characterised by the “social responsibility and accountability” of its subjects.19 Elsewhere, the emerging legal system has been described as one premised on “a brave new world” in which “State sovereignty is no longer a factor … in which the community of personkind is governed by the rule of law … in which peace and human rights are secure and in which the energy of personkind is addressed toward resolving poverty and inequality.”20 This new vision of international law is one that is characterised by a commitment to solidarity—that after all is the essence of community. Can we really say that we have a system based on solidarity, or even that such a system is emerging? Of course, the principle of cooperation is deeply embedded in modern international law. But cooperation should not be confused with solidarity. Cooperation is transactional and is based on quid pro quo. States agree to cooperate in order to achieve mutually beneficial outcomes.21 In a sense, cooperation is merely a reflection of classical international law and its core of bilateralism. As 15

Allott 1990, p. 324. Dupuy 2005; Jouannet 2007. 17 Simma 1994. 18 Ibid., p. 234. 19 Ibid. 20 Dugard 2007, p. 731. 21 See in this respect Delbrück 2012, at p. 4, explaining why cooperation in a context that does not constitute “an undue burden on States” is acceptable but a general duty to cooperate outside particular contexts is difficult to conceive. 16

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Abdul Koroma, former judge of the International Court of Justice, notes, in contrast to cooperation, solidarity “represents more than a general notion of ‘neighbourliness’”.22 For Koroma, solidarity “establishes concrete duties on States to carry out certain measures for the common good”.23 Seen in this light, it seems fair to say that this “brave new” international law based on solidarity does not exist. It is a figment of the imagination, a unicorn. That international law does not embody this principle should not be taken to mean that international law is bad or evil. That is certainly not the point I wish to make. I do not even wish to make the point that international law is uncaring towards the poor. International law is none of those things. It is nothing more than a vehicle through which the outcomes of bargain are reflected. It is perhaps neutral, and even this may be challenged. It does not seek to harm the poor and the vulnerable (though it may). It, as a system, is simply indifferent. International law’s indifference towards the needs of the marginalized and solidarity can be illustrated by reference to particular challenges and international law’s response to them.

2.3 International Law’s Responses to Current Challenges 2.3.1 International Law and Poverty24 There is no better reflection of the lack of solidarity in international law than international law’s response to poverty—the very embodiment and cause of the inequality and disparity which is exacerbated by COVID and the thing that is both a cause and an effect of the marginalization of the poor and vulnerable. According to a recent World Bank report in 2015 the levels of “extreme poverty”, which this report defines as persons living below 1 dollar 90 cents a day, stood at 736 million.25 This figure may be seen as an improvement when compared to the nearly 2 billion people living below this threshold in 1990.26 Yet, the presentation of these figures as representing progress is, at best, an overstatement and at worst, a misleading statement. First, the threshold of 1 dollar 90 cents is a rather unambitious threshold for identifying poverty. It permits us to exclude from the portrait of the human family the multitudes of people living in poverty. Indeed, the World Bank’s more complex measure of poverty, that goes beyond consumption levels, shows that “the number of people who are poor stood at 2.1 billion as of 22

Koroma 2012, p. 103. Ibid. Compare with Delbrück’s context-specific description of cooperation under international law. Delbrück 2012, p. 4. 24 Tladi 2022. 25 World Bank Group 2018, p. 1. 26 Ibid., p. 1. The report states that “[d]espite the more sluggish global growth of recent years, the total count of people in extreme poverty declined by more than 68 million people between 2013 and 2015—a number roughly equivalent to the population of Thailand or the United Kingdom”. 23

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2015”,27 a figure that is three times that of persons living on less than USD 1.90 a day. Second, whatever the decrease in the rate of extreme poverty, if we accept the slogan “leave no one behind”, then by these numbers the “international community” is failing at least 736 million times over. The true picture of the state of our world is that poverty remains unacceptably high. This picture of poverty is one which ought to trouble the “international community” if such a community exists. It should be of concern to the international community that the number of hungry people is increasing while there is enough food to feed everyone in the world. The international community should be concerned, from an ethical and legal standpoint, that while a few have plenty, the vast majority are impoverished and live in squalor. International law, in particular the post-classical, value-based international law, as a vehicle through which the concerns of the international community are expressed, should be expected to incorporate rules designed to address poverty. In an international law based on solidarity, in which the international community seeks to address poverty, we might expect to find an obligation to eradicate poverty. Yet there is no obligation under general international law to act to eradicate poverty. There isn’t even an obligation to cooperate to eradicate poverty: an obligation of conduct. If there was any area of international law that could be said to, at least potentially, be directed at poverty it would be international human rights law. This should be self-evident: international human rights law, more than any other area of international law, is, at its core, about the human condition. Poverty is also about the human condition. Given that poverty and human rights are both, at their core, about the human condition, how international human rights law addresses poverty is an important question for assessing the role of solidarity in international law. Socio-economic rights are the rights most closely associated with the fight against poverty. These rights are established precisely to ensure the protection of “the poor and otherwise marginalised” in society.28 In this context, it has been noted that socio-economic rights “can serve as a powerful tool for reducing and eliminating poverty”.29 A survey of the catalogue of rights in the International Covenant on Economic, Social and Cultural Rights (ICESCR), reveals that they concern, directly, the fight against poverty. The recognition of socio-economic rights in international law has the potential to play an important role in poverty eradication. Yet, while socio-economic rights can potentially play an important role for the alleviation of poverty, this potential is limited in several ways. First, treaties in which socio-economic rights are found, apply only to states parties to the treaties.30 For civil and political rights, this limitation is overcome because a strong argument can be made that the commonly recognised civil and political rights are also customary international law—an argument which will be more difficult to make for socio-economic 27

Ibid., p. 7. See Brand 2005, p. 2. See generally Khoza 2004. 29 Osuji and Obibuaku 2016, p. 331. 30 See Article 34 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331 (VCLT ). 28

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rights. Second, treaty provisions on socio-economic rights are generally couched not as immediately and absolutely enforceable rights, but rather as obligations on the state to progressively realise the right, and that such rights are subject to the resource constraints of each individual state. There is a third, and in my view more crippling, constraint on the potential of socioeconomic rights under international law to impact on poverty. Socio-economic rights in human rights treaties are couched as rights owed by a state to the population in its own territory.31 While there has certainly been movement towards some sort of extraterritorial application, this has largely been limited to those instances where the state in question exercises some control or jurisdiction over activities or actors in a third state, where that actor or activity impacts on rights in a treaty.32 The problem with this general construction of international law is that, in the context of socio-economic rights, it places the burden of dealing with the most serious cases of poverty—those in developing states—on precisely those states that, due to their economic situation and developmental state, are not in a position to allocate the necessary resources to effectively address poverty. This reveals either a lack of seriousness about dealing with poverty or, alternatively, an insane approach. The legal framework of socio-economic rights described above makes sense from the perspective of international law, based on bilateralism, cooperation and state sovereignty. However, it undermines the idea of solidarity implied by the transition of international law from bilateralism to a system based on community interests. To truly enable socio-economic rights to play a meaningful role in the eradication of poverty, relevant human rights instruments should be interpreted to establish the idea that the international community as a whole is responsible for ensuring that such rights are enjoyed by all. Is that possible under the current international law, though?

2.3.2 Vaccines I introduced this chapter by referring to vaccine hoarding. In August of this year, the Institut de Droit adopted a resolution containing draft articles on Epidemics, Pandemics and International Law.33 The resolution has a number of provisions that appeal to a sense of solidarity and I would like to say a few things about them. The first preambular paragraph affirms that the protection of persons from epidemics “is

31

See Askin 2019. Ibid. In regard to civil and political rights, see ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, 2004 I.C.J. Reports 136, at para 109; see also IACtHR, State Obligations in Relation to the Environment in Relation in the Context of the Protection and Guarantee of the Rights to Life and to Personal Integrity: Interpretation and Scope of Articles 1(1) and 2 of the American Convention on Human Rights, Advisory Opinion, 15 November 2017, OC-23/17, at paras 73 et seq. 33 Institut de Droit International 2021. 32

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a common concern of humankind”.34 The notion of common concern, denoting “we are all in this together”, suggests a sense of solidarity. The third preambular paragraph for its part emphasises “the need for international solidarity and cooperation for the prevention of epidemics and in responding to the threats of epidemics”. The choice of words and style of the third preambular paragraph is revealing. It states, as a matter of fact, that there is a need for international solidarity. But there is no claim in this preambular paragraph that international solidarity in responding to threats exists. More than that, the preambular paragraph does not make a claim that international law requires solidarity. It is also just a need. Just as the need for love does not mean an obligation to love, so the need for solidarity does not mean the obligation for solidarity. Article 4, on Human Rights, provides for States to take all necessary measures to “ensure equitable access to medical services, vaccines and medicines to all”. On its own, this provision is not about international solidarity. It is about the duties of States in respect of their own populations, territories and jurisdiction. Article 4 must be read with Article 6 which provides for the duty to cooperate. In particular, paragraph 3 of Article 6 provides that the duty to cooperate includes access to patents and technologies relating to vaccines and that such cooperation must take into account the needs of developing countries. More to the point, paragraph 4 states that cooperation also applies to equitable access to medical services, vaccines and medicines. This all seems very promising for solidarity, until we remember that the principle of cooperation is not the same as solidarity. Unlike solidarity, cooperation is transactional and, like the bilateralist character of international law, cooperation is based on bargain. Many of us would have wanted the Institut de Droit to go further in stating that intellectual property rules that prevent the equitable access to medicines shall be inapplicable in times of pandemics. But the articles of the Institut probably go as far as the current state of the law permits—it may even be said that they go further than the current state of the law.

2.3.3 The International Community At the heart of the idea that international law either embodies or aspires to a sense of solidarity is the notion that there exists an international community. To recall the sentiments of Judge Koroma, solidarity means more than good neighbourliness. It calls upon us to want to see each other’s upliftment. There is a Zulu saying, which I am sure you are familiar with: “Umuntu ngumuntu ngabantu”. This well-known saying calls on us to care for those around; it evokes a sense of belonging, a sense of community. And in many ways, that is precisely what solidarity is about: a sense that we all belong, and sense that we are a community. So the concept of an “international

34

Ibid., p. 1 (“Affirming that protection of persons from epidemics without discrimination of any kind and regardless of the sources and cause of the disease is a common concern of humankind”).

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community”, so ubiquitous in modern international law,35 is an appeal to creating an environment of global belonging; an appeal to each and every one of us to care about the other, wherever the other may be, whatever the other might look like. An appeal to an international community is made in a different context, and it is not possible in this chapter to describe the various ways that the concept is invoked. In the context of peremptory norms of general international law (jus cogens), the definition of jus cogens is based on the acceptance and recognition of peremptoriness by the international community,36 the characteristics of jus cogens are based on the values of the international community,37 and jus cogens norms give rise to obligations owed to the international community of States as a whole.38 In relation to the responsibility to protect, it is the international community that has the duty to assist States and to intervene when States are unable or unwilling to protect their populations. The two main pillars of the responsibility to protect are placed on the shoulders of this mythical creation called the international community.39 The question, though, is whether this international community exists. Can we say that the international law of today creates conditions of belonging, of caring for one another regardless of where we may be, what we may look like, what we may believe in? Put differently, does international law, as a rule, contribute to the establishment of an international community and thus a sense of solidarity? It is easy to speak of an international community but it is not at all clear that an international community truly exists. There is, of course, a collection of States committed to particular objectives and willing to cooperate and coordinate to achieve these objectives. But how and which of these objectives are prioritised, how they are to be achieved and at what cost, are all products of bargain, of quid pro quo and of influence, which is itself dependent on power.

35

See Hakimi 2017. See Draft Conclusion 2 of the ILC (2019) Draft Conclusions on peremptory norms of general international law (jus cogens), UN Doc. A/74/10, pp. 141–208. https://legal.un.org/ilc/reports/2019/ english/chp5.pdf. Accessed 6 September 2022 (“A peremptory norm of general international law (jus cogens) is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”). 37 Ibid., Draft Conclusion 3 (“Peremptory norms of general international law (jus cogens) reflect and protect fundamental values of the international community, are hierarchically superior to other rules of international law and are universally applicable.”). 38 Ibid., Draft Conclusion 17 (“Peremptory norms of general international law (jus cogens) give rise to obligations owed to the international community as a whole (obligations erga omnes), in which all States have a legal interest.”). 39 See UN General Assembly (2005) Resolution on the 2005 World Summit Outcome, A/60/1, especially para 138 (“The international community should, as appropriate, encourage and help States to exercise this responsibility ..”) and para 139 (“The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”). 36

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2.4 Conclusion It is easy to use solidarity as a sexy catchphrase. Yet, if international law is to move beyond its current bilateralist nature, solidarity has to be cultivated. Speaking it and dreaming it will not deliver an international law of solidarity. To nurture the development of caring international law reflecting a sense of community, a sense of caring, a sense of ubuntu, we need to promote the infusion of solidarity into the very fabric, methodology, raison d’être of the system.

References Allott P (1990) Eunomia: New Order for a New World. Oxford University Press, Oxford/New York Askin E (2019) Economic and Social Rights, Extraterritorial Application. In: Max Planck Encyclopedia of Public International Law. Oxford University Press Brand D (2005) Introduction to the Socio-Economic Rights in the South Africa. In: Brand D, Heyns C (eds) Socio-Economic Rights in South Africa. Pretoria University Law Press Bondzie-Simpson E (1988) A Critique of the African Charter on Human and Peoples’ Rights. Howard Law Journal 31:643–665 Delbrück J (2012) The International Obligation to Cooperate – An Empty Shell or a Hard Law Principle of International Law? A Critical Look at a Much Debated Paradigm of Modern International Law. In: Hestermeyer H, König D, Matz-Lück N, Röben V, Seiber-Fohr A, Stoll P, Vöneky S (eds) Co-existence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum, Vol I. Brill, Leiden Dugard J (2007) The Future of International Law: A Human Rights Perspective – With Some Comment on the Leiden School of International Law. Leiden Journal of International Law 20:729– 739 Dupuy P (2005) Some Reflections on Contemporary International Law and the Appeal to Universal Values: A Response to Martti Koskenniemi. European Journal International Law 16:131 Hakimi M (2017) Constructing an International Community. American Journal of International Law 111:317–356 Held D (2003) The Changing Structure of International Law: Sovereignty Transformed? In: Held D, McGrew A (eds) The Global Transformations Reader: An Introduction to the Globalization Debate. Polity Press, Cambridge, Malden Institut de Droit International (2021) 12th Commission Resolution on Epidemics, Pandemic and International Law. https://www.idi-iil.org/app/uploads/2021/09/2021_online_12_en.pdf. Accessed 6 September 2022 Jouannet E (2007) Universalism and Imperialism: The True-False Paradox of International Law? European Journal of International Law 18:379–407 Khoza S (2004) Promoting Economic, Social and Cultural Rights in Africa: The African Commission Holds a Seminar in Pretoria. African Human Rights Law Journal 4:334–343 Koroma A (2012) Solidarity: Evidence of an Emerging International Legal Principle. In: Hestermeyer H, König D, Matz-Lück N, Röben V, Seiber-Fohr A, Stoll P, Vöneky S (eds) Co-existence, Cooperation and Solidarity: Liber Amicorum Rüdiger Wolfrum, Vol I. Brill, Leiden Osuji O, Obibuaku U (2016) Rights and Corporate Social Responsibility: Competing or Complementary Approaches to Poverty Reduction and Socioeconomic Rights? Journal of Business Ethics 126:329–347 Simma B (1994) From Bilateralism to Community Interest in International Law. Recueil des Course de l’Academie d Droit International de la Haye 217:229

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Tladi D (2007) Sustainable Development in International Law: An Analysis of Key EnviroEconomic Instruments. Pretoria University Law Press Tladi D (2009) Marine Genetic Resources on the Deep Seabed: The Continuing Search for a Legally Sound Interpretation of UNCLOS. In: Couzens E, Honkonen T (eds) International Environmental Law-Making and Diplomacy Review 2008. University of Joensuu, pp 65–80 Tladi D (2013) Nonconsenting Innocent State: The Problem with Bethlehem’s Principle 12. American Journal of International Law 107:570–576 Tladi D (2014) The Common Heritage of Mankind And the Proposed Treaty on Areas Beyond National Jurisdiction. Yearbook of International Environmental Law 25:113–132 Tladi D (2015) The Proposed Implementing Agreement: Options for Coherence and Consistency in the Establishment of Marine Protected Areas. International Journal of Marine and Coastal Law 30(4):654–673 Tladi D (2017) L’exploitation des Resources Biologiques non Halieutique. In: Forteau M, Thouvenin J (eds) Traité de Droit International de la Mer. Editions Pedone Tladi D (2019a) The Use of Force against Non-State Actors, Decline of Collective Security and the Rise of Unilateralism? In: O’Connell M, Tams C, Tladi D (eds) Self-Defence against Non-State Actors (Vol 1 of the Max Planck Trialogues on the Law of War and Peace). Cambridge University Press, Cambridge Tladi D (2019b) An Institutional Framework for Addressing Marine Genetic Resources under the Proposed Treaty for Marine Biological Diversity in Areas Beyond National Jurisdiction. International Environmental Agreements: Politics, Law and Economics 19:485–495 Tladi D (2020a) Populisms Attack on Multilateralism and International Law: Much Ado About Nothing. Chinese Journal of International Law 19:369 Tladi D (2020b) 25th Expert UP Lecture delivered by International Law Specialist, Prof Dire Tladi. Available at https://www.up.ac.za/faculty-of-law/news/post_2921865-25th-expert-up-lec ture-delivered-by-international-law-specialist-prof-dire-tladi. Accessed 20 November 2021 Tladi D (2021) The Extraterritorial Use of Force against Non-State Actors. Recueil des Cours de l’Academie de Droit International de la Haye 418:237 Tladi D (2022) End Poverty in All Its Forms Everywhere. In: Ebbesson J, Hey E (eds) The Cambridge Handbook of the Sustainable Development Goals and International Law. Cambridge University Press Umozurike U (1983) The African Charter on Human and Peoples Rights. American Journal of International Law 77:902 World Bank Group (2018) Piecing Together the Poverty Puzzle: Poverty and Shared Prosperity. World Bank Group, Washington DC

Dire Tladi Professor of International Law and SARChI Chair of International Constitutional Law, University of Pretoria, South Africa.

Chapter 3

Solidarity as an International Legal Norm Craig Eggett

Contents 3.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Solidarity in International (Legal) Thought: Origins and Background . . . . . . . . . . . . . . . 3.2.1 Solidarity as a Political and Legal Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Solidarity, Cooperation, and the International Community . . . . . . . . . . . . . . . . . . 3.2.3 A Working Definition of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Articulating Presumptions: A Theory of International Legal Norms . . . . . . . . . . . . . . . . 3.3.1 Three Levels of Abstraction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 The Essential Characteristics of Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 The Essential Characteristics of Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Solidarity as a Principle in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 A Principle or Principles of Solidarity in International Law? . . . . . . . . . . . . . . . . 3.4.2 An Elevated Status of Solidarity as a Principle? . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Solidarity and International Legal Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1 Specific Rules of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.2 Rules in Furtherance of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

30 31 31 33 35 36 37 38 40 42 42 45 46 47 48 50 51

Abstract References to ‘solidarity’ pervade contemporary international legal discourse, yet it is unclear precisely how the notion of solidarity fits into the international legal system. More specifically, whether solidarity can be considered an international legal norm remains unsettled. The diversity of views makes it very difficult to determine the normative content and consequences of invocations of solidarity in international law. On one end of the spectrum, it could simply be that solidarity is a largely ornamental term or rhetorical device deployed in political discourse. On the other, it may be that solidarity imposes concrete and significant obligations on international actors in a range of circumstances. Against this backdrop, this chapter explores the normative classification of solidarity in the international legal system from a theoretical perspective. It does so on the basis of an explicitly elucidated

C. Eggett (B) Faculty of Law, Maastricht University, Bouillonstraat 3, 6211LH Maastricht, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_3

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understanding of the international legal system and its constituent norms, considering whether there are principles and rules of solidarity in international law. It is argued that there are principles of solidarity and that certain rules may be developed to strengthen the place and effects of solidarity in international law. Keywords Solidarity · Rules · Principles · International legal system · Legal norms · General principles of law

3.1 Introduction The notion of solidarity in international law is as elusive as it is prevalent. Scholarly accounts of the meanings, functions, and importance of solidarity are incredibly diverse. For some, solidarity is foundational to the international legal system; a fundamental, constitutional premise on which the edifice of international law is built. On this view, solidarity has greatly influenced the development and application of international law, itself becoming capable of imposing obligations and granting rights for actors. For others, solidarity is not part of the international legal system at all. Composed of or reflecting moral and ethical considerations, solidarity plays but a minor role in the creation and operation of international law (if it plays a role at all). For others still, solidarity may be a descriptive tool, used as a label for the latest phase of the development of international law; from a system of coexistence, to one of cooperation, to one of solidarity. Alternatively, scholars have sought to rely on solidarity as an explanatory or legitimising device for aspects of international law, used to argue in favour of the law’s progressive development. Further, there is a frequent bundling together of solidarity with other notions, such as norms of jus cogens, obligations erga omnes, the nature and role of ‘the international community’, and issues of cooperation between states. To add to this complexity, many of these positions are not mutually exclusive, with scholars presenting different accounts of solidarity depending on the context. In short, there does not seem to be a clear and widely-accepted definition of and place for solidarity in international law, despite the prevalence of references to solidarity in international legal discourse. The objective of this chapter is to explore the nature and place of solidarity in international law from a theoretical perspective. That is to say, the goal is not to examine specific manifestations of or reliance on solidarity in relation to different fields of international law (such as human rights or the protection of the environment) or specific legal issues (such as the system of collective security or responsibility to protect). Instead, the focus will be on how ‘solidarity’ fits within the international legal system. Is this merely a moral call to action or does it operate as an international legal norm? How does solidarity influence the creation and development of international law? How can solidarity be more effectively conceptualised in the construction of international legal arguments? It is hoped that this contribution can offer some theoretical foundations upon which more substantive discussions of the functions of solidarity in international law can be based.

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When approaching such an endeavour, it is good practice to explicitly articulate the theoretical vantagepoint from which the investigation is launched. I, like anyone else, have approached this question on the basis of my understanding of the international legal system and its constituent norms. This understanding draws certain distinctions between norms and conceptualises certain features of the system in which these norms operate. My view, like all views, is influenced by certain biases, presumptions, and assumptions about law and the society it seeks to regulate. Authors cannot be wholly free from such considerations, so it is critical to explicitly set out these views when embarking upon such a theoretical inquiry. I attempt to do this in the next two sections of this chapter. First, I sketch out the origins and background of the notion of solidarity in international legal thought in order to arrive at a working definition of solidarity as the object of inquiry (Sect. 3.2). Second, I articulate my understanding of the nature and functions of norms within the international legal system (Sect. 3.3). Then, in the final sections of this chapter, I examine the scope for solidarity to be conceptualised as an international norm, considering its status as a principle (Sect. 3.4) and its manifestation as such and in legal rules (Sect. 3.5). Section 3.6 offers some concluding remarks.

3.2 Solidarity in International (Legal) Thought: Origins and Background Before properly turning to the central task at hand, this section provides some background to the notion of solidarity in international (legal) thought. I place the term ‘legal’ in parentheses here as the story of solidarity begins outside the realm of law. In sketching out the journey of solidarity into contemporary international legal thought, this section proceeds in three main parts. Section 3.2.1 traces the origins of the modern idea of solidarity as a political and legal concept. From this starting point, Sect. 3.2.2 provides a snapshot of the positions taken by international lawyers in the debates on the role of solidarity in the international legal system. Finally, Sect. 3.2.3 proposes a working definition of solidarity as the object of the present inquiry.

3.2.1 Solidarity as a Political and Legal Concept The notion of solidarity has a long and complex history, so much so that a full explanation of this history is not possible within the scope of this part. Instead, this historical detour serves to draw attention to some of the salient features of solidarity as a political and legal concept. This provides the background and context for the subsequent discussion of solidarity in international law. Some authors have noted the origins of solidarity in Roman law, tracing its influence into the codes of civil law

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systems in the context of the shared responsibility of debtors.1 Such an observation, while accurate, does not effectively describe the modern origins of solidarity as it developed to influence international law.2 For this, the most appropriate starting point is the aftermath of the French Revolution and its ideals of liberté, egalité, and fraternité. The last of these is commonly seen as reflecting the non-individualistic notions of solidarity,3 which influenced political and moral thought at the start of the nineteenth century and beyond. Even at this stage, the idea of solidarity may be seen to have permeated the law; a commonly-cited example being the 1793 law adopted by the Assemblée Nationale providing assistance in the form of subsidies to all citizens in need.4 This emergence of solidarity represented an attitude of reciprocal sympathy for members of a political community, reliance on which would lead to a more just society.5 Solidarity, it was thought, could complement or supplant notions of charity to overcome social inequalities.6 In the decades and centuries that followed, solidarity continued to be influential for social and political philosophers. A particularly notable example is the work of Émil Durkheim, who considered solidarity in presenting a theory on the development of societies.7 According to Durkheim, there are two types of solidarity: mechanical and organic. Mechanical solidarity is based on the commonalities between individuals in a social group and is ultimately manifested through overt expression of group interests.8 Organic solidarity views society as an organism and arises as a kind of social cohesion from the interdependence between members of the society.9 On the basis of this understanding of solidarity, Durkheim posits that the influence of solidarity becomes more pronounced the more complex and developed a society becomes.10 The views put forward by Durkheim became influential in the development of twentieth century conceptions of the welfare state.11 Building on the foundations set by Durkheim, Léon Duguit advanced a view of law based on solidarity.12 On this view, law emerged on the basis of the objective facts of interdependence and solidarity and, as such, violations of social rules predicated on these facts provoke a social reaction.13 Duguit’s conception of law is based on ideas of solidarity, claiming that individuals have duties not to hinder the activities of others simply by virtue of being 1

Badanova 2019, p. 110. Indeed, some authors have remarked that the narrow Roman law concept of solidarity of shared responsibility “transformed […] into a sociological and political concept”, Stjernø 2011, p. 156. 3 Dann 2010, p. 56; Steinvorth 1999. 4 Dann 2010; Campanelli 2011, para 2. 5 Stjernø 2011, p. 156. 6 Dann 2010; Leroux 1840. 7 Durkeim 1893. 8 Ibid., pp. 57 et seq. 9 Ibid., pp. 88 et seq. 10 Ibid., p. 109. 11 Campanelli 2011, para 4. 12 For an excellent overview, see Koskenniemi 2002b, pp. 297–302. 13 Duguit 1908, p. 6. 2

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part of society.14 These initial conceptions of solidarity in political and legal thought focus on the moral and legal obligations that arise by virtue of membership of a social community. Solidarity seems to be linked to social integration and development, with the aim of instilling in individuals a sense of duty towards others.

3.2.2 Solidarity, Cooperation, and the International Community From these initial elaborations, similar ideas found their way into international legal discourse. Building on the accounts of Durkeim and Duguit, Georges Scelle explored the notion of solidarity on the international plane.15 While still concerned with the individual and presenting a view based on common interests and interdependencies,16 Scelle considered the proliferation of international organisations in the context of solidarity. This increase in supra-national interactions called into question the nature and contents of the communities in question, but Scelle adopted a factual view of solidarity17 in which state and supra-national structures were mere fiction, with only individuals being subject to regulation.18 Alejandro Alvarez attached far greater importance to solidarity in international law, arguing in 1912 that a “regime of solidarity” was under construction on the international plane.19 Alvarez saw solidarity as crucial for international law, serving as a driver of internationalism and as an impetus for the development of international law.20 From these early discussions, scholars have taken up more elaborate and diverse positions on the place and influence of solidarity in international law. Consisting of many elements common in earlier approaches, more recent accounts tend to focus on community interests and duties of cooperation and assistance between states. For Michel Virally, it was possible to trace solidarity from a simple notion, to a political principle, and then to a legal principle.21 This evolution was, it seems, assumed by many others. At the very least, there seems to be a presumption that solidarity is closely related to cooperation and the idea of an international community. Ronald MacDonald, for example, writes that “solidarity is first and foremost a principle of cooperation […] on the legal plane it reflects and reinforces the broader idea of a world community of interdependent states”.22 Similarly, Karel Wellens speaks of “solidarist primary rules” formed from the integration of solidarity into “norms of 14

Duguit 1922, p. 142. Koskenniemi 2002b, pp. 331–332. 16 Scelle 1935, p. 42. 17 Ibid., p. 42. 18 Koskenniemi 2002b, p. 332. 19 Alvarez 1912, p. 47. 20 Ibid., p. 128. 21 Virally 1968, pp. 531–543. 22 MacDonald 1996, p. 259. 15

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positive international law”.23 The imposition of obligations on the basis of solidarity may include both negative duties to refrain from actions that would undermine the activities of others and positive duties to act to assist others.24 Wellens goes further, labelling solidarity as a “constitutional principle”25 and claiming that it has achieved greater prominence and a more expansive role in international law.26 Offering a different view, Hanspeter Neuhold claims that the international manifestation of solidarity concerns “the readiness of a State to provide assistance to another State and to accept the resulting costs”.27 This understanding of solidarity is not, in and of itself, a legal one, yet Neuhold is open to the possibility that “solidarity between subjects of international law could also evolve into a rule of customary international law if practised repeatedly and with the necessary opinio juris”.28 For Wolfrum, it is a “misconception” to view solidarity as a principle capable of generating rights or obligations.29 Instead, solidarity should be viewed only as a tool for interpretation. On such a view, solidarity simply operates in the background to legal norms, offering a lens through which to interpret such norms but playing no direct role in the imposition of legal obligations. Accounts of solidarity in international law also frequently entail a description of common interests, values, or objectives of the international community. Phillip Dann understands solidarity as entailing the provision of help to advance a common objective, based on the equality of the partners involved, and on the basis of mutual obligations and efforts.30 However, this understanding is presented only as a tool for the critical analysis of international law.31 That is, as a means to assess the legitimacy and effectiveness of (a particular area of) international law. Themistoklis Tzimas speaks of solidarity as “help among actors in furtherance of [a] common goal [or] value”.32 This position is supported by a rare definition of solidarity from international instruments. Two UN General Assembly resolutions entitled ‘Promotion of a Democratic and Equitable International Order’ define solidarity as: a fundamental value, by virtue of which global challenges must be managed in a way that distributes costs and burdens fairly, in accordance with basic principles of equity and social justice, and ensures that those who suffer or [who] benefit the least receive help from those who benefit the most.33

23

Wellens 2010, p. 4. Koroma 2012, p. 103. See, also, Kotzur 2017, p. 40. 25 Wellens 2010, p. 13; For a similar view, see Tzimas 2018. 26 Wellens 2010, pp. 29–32. 27 Neuhold 2010, p. 193. 28 Ibid., p. 196. 29 Wolfrum 2010, p. 228. 30 Dann 2010, p. 61. 31 Ibid., p. 62 (in Dann’s contribution, the focus is on an evaluation of the law on development cooperation). 32 Tzimas 2018, p. 335. 33 UN General Assembly (2001) UN General Assembly Resolution on the Implementation of the Declaration on International Economic Cooperation, in particular the Revitalization of Economic 24

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Similarly, Ielyzaveta Badanova claims that for solidarity to exist, “there must be a ‘sense of community or commonality’ and a recognition that common values and objectives can be secured only if everybody in the community participates in the joint efforts”.34 Such a view anchors solidarity in the nature of the society at hand and the goals pursued by that society. In a similar vein, Wellens speaks of a “law of solidarity” as the next step in the overall development of international law and its fundamental premises. On this view, international law has transitioned from a system based merely on coexistence to one based on cooperation. The next step in this development is a system based on solidarity.35 While merely a snapshot of the international legal discourse on solidarity, the discussion above illustrates the range of views on the legal relevance of solidarity. There are clearly greatly divergent positions on the legal force of solidarity, yet there appear to be recurring elements about the notion of solidarity as such. Much like earlier accounts, explorations of solidarity in international law seem to centre on membership of a group, interests shared by that group, and certain behaviours towards other members of the group.

3.2.3 A Working Definition of Solidarity Against this backdrop, it is necessary to adopt at least a working definition of solidarity as the object of the discussion that will follow. As may already be clear, definitions of solidarity may themselves imply (a lack of) legal normativity. As such, my definition will attempt to focus on the essential elements of solidarity as a notion, without prejudice as to the role of such notions in the international legal system and to the scope of such a notion to be reflected in or transformed into legal norms. In my view, the notion of solidarity in international law has three key elements. First, it is inherently linked to the international society.36 Solidarity is relevant for actors by virtue of their membership of this society and such actors share a common set of interests. Second, solidarity influences the manner in which these international actors interact with one another. Appeals to or calls for solidarity are calls to do or not do something. Third, calls for solidarity seek to address inequalities in the society, asking those who are able to act to protect the interests and address inequalities that Growth and Development of the Developing Countries, and implementation of the International Development Strategy for the Fourth United Nations Development Decade, UN Doc A/Res/56/191; and UN General Assembly (2002) UN General Assembly Resolution on the Promotion of a democratic and equitable international order, UN Doc A/Res/57/213 [emphasis added]. 34 Badanova 2019, p. 109 (referring to Simma 1994). 35 Wellens 2005, p. 804. 36 Wellens 2010, p. 8 refers to a distinction between ‘international society’ and the ‘international community’, the former being institutionally linked to the United Nations and the latter existing “informally and in abstraction only”. No such distinction is adopted here.

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affect the most vulnerable in society. These three elements are clearly linked, with the calls to act made by and towards members of the society. There appears to be an expectation of conduct because of membership of society and solidarity provides the reason for this expected conduct. Given these characteristics, it is unsurprising that accounts of solidarity are frequently concerned with broader questions of the nature and scope of the international community. For present purposes, these elements will serve as an initial starting point in considering the normative classification, and therefore role, of solidarity in the international legal system.

3.3 Articulating Presumptions: A Theory of International Legal Norms Before making an argument on the status of solidarity in international law, it is necessary to elucidate the theoretical lens through which any such argument would be made. The starting point of my theoretical position is, in essence, a traditional “textbook narrative” of international law.37 This has been effectively summarised by Andrea Bianchi as including: The idea that international law is a system of objective principles and neutral rules that emanate from States’ will, either directly through treaty or indirectly through custom, the notion that States are the primary subjects of the international legal order […] the requirement that a strict test of legal validity must be passed for a rule to be conceived of as a binding rule of law […] values and their relevance are rarely dealt with explicitly, if not denied altogether. Generally, the system is considered to be unitary and problems are supposed to have one correct legal answer.38

It is necessary to critically engage with such presumptions and I would hesitate in attaching such labels, but it would be fair to describe the foundations of my position as essentially positivist.39 As will be explained, I draw clear distinctions of kind between different norms and notions in international law. I view international law as a legal system composed of a core of rules, united by a relationship of validity, and operating against a background of principles.40 International law has been described as entailing a “jeux de mots”,41 a constant back and forth over the terms used to describe different concepts and notions. Nowhere is this struggle more apparent than in discussions of the theoretical foundations of the system. In the remainder of this section, I will attempt to precisely explain my understanding of the key terms relied upon in the examination of the normative classification of solidarity that follows.

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Kammerhofer 2016, pp. 407, 411. Bianchi 2016, p. 21. 39 Ibid., referring to Simma and Paulus 1999, pp. 304–305. 40 For a more elaborate explanation of my position, see Eggett 2021, Chapter II. 41 Verhoeven 2000, p. 14. 38

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3.3.1 Three Levels of Abstraction Let us begin with an explanation of the term ‘norm’ in the context of international law. In the words of Hans Kelsen: “[b]y ‘norm’ we mean that something ought to be or ought to happen, especially that a human being ought to behave in a specific way”.42 In other words, a norm is “a standard of performance, a measurement scale […] used to predict […] and diagnose performance contrary to expectations”.43 This definition, of course, includes non-legal norms, such as moral, religious, or cultural norms.44 For the purposes of this chapter, and unless otherwise indicated, any references to ‘norms’ will be references to legal norms. In my view, there are two broad categories of legal norms: rules and principles. In the international legal system, like all legal systems, it is possible to speak to about different levels of abstraction in relation to legal norms. At one end are the most abstract notions: values.45 These may be fundamental to the system in the sense that they reflect the “goals to be achieved”46 by the system or the “enduring beliefs” on which it is built.47 They are typically expressed as single words or short terms: think of examples such as peace48 and “elementary considerations of humanity”.49 These values, important as they may be, do not set standards against which behaviour may be assessed. The formulation of such values as vague notions makes this impossible. Values, then, cannot be considered norms of any kind. That being said, values have a close relationship with and may be given legal expression through principles. Principles are general ‘should’ statements that set certain standards to be achieved but do so in a non-conclusive manner. The content of principles gives some expression to values by providing reasons for certain conduct. However, principles do not provide for concrete and definitive conclusions in the same way as rules. Rules specify certain consequences that follow upon the fulfilment of conditions. There are clear distinctions between values, principles, and rules, yet there are also significant relationships between these categories. As an example, take the value of peace and security in international law. This is reflected in the principles of sovereign equality; the idea that states are sovereign and should be treated equally. This principle is, in turn, given concrete protection in law by rules such as those on the prohibition on the use of force and interference,50 as well as those relating to state 42

Kelsen 1967, p. 4. Boer 2009, p. 109. 44 Hechter and Opp 2001, p. xi (noting that “legal norms are different from social norms” and explaining differences in formation and precision). 45 For an exploration in international law, see, for example, Spijkers 2011; Henkin 1990. 46 Orakhelashvili 2008, p. 180. 47 Spijkers 2009, p. 69; Rokeach 1973. 48 Orakhelashvili 2008, p. 181; Lauterpacht 1946, p. 51; Kelsen 1944. 49 Cassese 2012; ICJ Corfu Channel (United Kingdom v Albania) Judgement, 15 December 1949, 1949 I.C.J. Reports 4, 22. 50 Charter of the United Nations, adopted 26 June 1945, entered into force 24 October 1945, 1 UNTS XVI (UN Charter or the Charter), Article 2(4); UN General Assembly (1970) UN General Assembly Resolution on the Declaration on Principles of International Law concerning Friendly Relations 43

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immunity from foreign domestic jurisdiction.51 It is clear, then, that in dealing with a question of interference between states, there will be values, principles, and rules at play. Nevertheless, it is only rules and principles that constitute international legal norms. These are norms of different kinds, with fundamentally different natures and functions in the international legal system. At this point, it seems possible to conclude that solidarity is a value in international law. On the understanding of solidarity set out in Sect. 3.2 and the view of the normative composition of the international legal system presented here, it is clear that solidarity is linked to certain goals or beliefs of the system. This position seems consonant with the origins of solidarity in political and social thought. What remains to be examined is the extent to which solidarity can be views as part and parcel of international law as such. This is the task for the final sections, which will consider the potential status of solidarity as a principle in international law and its relationship to rules.

3.3.2 The Essential Characteristics of Rules There are two essential characteristics of rules: validity and the issuing of definitive commands. Rules are legal norms that ground their validity in the fulfilment of criteria provided in other rules.52 In other words, “a norm is valid because […] it [has] been created in a certain way, that is, in a way determined by another norm, therefore that other norm is the immediate reason for the validity of the new norm”.53 That is to say, rules are either valid or not; only when the formal procedural conditions for their creation are met do rules come into existence as part of the system. All rules, therefore, base their existence on another rule of the system and all rules within a system can trace their existence back to one rule, as reflected in Hart’s “rule of recognition”54 or Kelsen’s “Grundnorm”.55 All rules within a system base their validity on another rule of the same system and the validity of all rules in the system can be traced back to the system’s ultimate rule of validity. If a rule is not based on the conditions set out in another rule, then it simply is not a rule within the legal system in question. The notion of validity of rules is absolute: that is, the distinction between valid and and Cooperation among States in accordance with the Charter of the United Nations, A/RES/2625 (XXV) (the Friendly Relations Declaration). See, generally, ICJ, Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v United States of America) Merits, 27 June 1986, 1986 I.C.J. Reports 14. 51 ICJ, Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) Judgment, 3 February 2012, 2012 I.C.J. Reports 99; ICJ, Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) Judgment, 14 February 2002, 2002 I.C.J. Reports 3 paras 53–61. 52 See, for example, Kelsen 1982, p. 65; Hart 1994, pp. 100–110. 53 Kelsen 1967, p. 221. It should be noted that the term “norm” here should be equated with “rule”: Moore 1978, p. 45. 54 Hart 1994, p. 100. 55 Kelsen 1967, pp. 193–211.

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invalid is binary.56 There are distinct rules of validity for the different sources of international law. For example, the conditions for the creation of treaty rules are set out in the general rules on the law of treaties57 and the conditions for the formation of custom have been elaborated by the International Court of Justice (ICJ)58 on the basis of Article 38(1)(b) ICJ Statute.59 Rules are definitive commands60 consisting of at least one condition and a consequence. Dworkin argued that rules apply in an “all or nothing fashion”:61 either the conditions of the rule are fulfilled and the consequence takes effect, or they are not and the rule contributes nothing to the situation at hand. The application of legal rules works according to rules of logic.62 Of course, a comprehensive and precise restatement of this rule will include several conditions for each of the primary elements, together with any exceptions that may be applicable. Irrespective of the complexity of a rule, the operation of conditions and consequences will operate according to the same ‘if…then…’ logic. Rules perform different functions in a legal system, as encapsulated in the distinction between primary and secondary rules.63 Primary rules impose duties, grant rights, or create legal or institutional facts. The imposition of obligations (and the corresponding granting of rights) is typically the most prominent aspect of rules: it is only through legal rules that such legal rights and obligations can be granted. The creation of legal or institutional facts can be conceptualised as indirectly granting rights or imposing obligations, as they will modify the general situation and, in turn, the rights and obligations applicable. For example, membership of an organisation may be granted following the fulfilment of a rule’s conditions. This membership results in the application of other rules that impose obligations and/or grant rights. Secondary rules are “rules about rules”,64 and are generally divided into three categories.65 In my view, the categories of secondary rules are: (1) rules of validity, (2) rules of change, and (3) rules of adjudication. First, rules of validity govern the creation of other rules. Second, rules of change regulate the modification, interpretation, and extinction of other rules. Third, rules of adjudication determine (the consequences of) the violation of rules and the conduct of judicial proceedings. 56

Ibid., p. 10; Kelsen 1945, p. 30; Alexy 2000, p. 297. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331 (VCLT 1969) Article 2(1)(a), Part II Section 1. 58 See, for example, ICJ, North Sea Continental Shelf Cases (Germany v Denmark; Germany v Netherlands) Judgment, 20 February 1969, 1969 I.C.J. Reports 3, paras 60–76. 59 Statute of the International Court of Justice (1946) 33 UNTS 993 (ICJ Statute). Article 38(1)(b) refers to “general practice accepted as law”. 60 Alexy 2012. 61 Dworkin 1977, p. 25. 62 Alexy 2003, p. 448. 63 Hart 1994, pp. 99, 214. See also the distinction drawn between regulative and constitutive rules: Linderfalk 2009, p. 59; Peczenik 2008, p. 277. 64 Reinold and Zürn 2014. 65 See, in general, Hart 1994, pp. 94–99. 57

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It should be noted that, on my view of international norms, the “general principles of law” referred to in Article 38(1)(c) ICJ Statute constitute an autonomous category of rules, distinct from principles in the true sense of the term described below. In my view, this position is supported by judicial reference to ‘general principles’ and the drafting history of Article 38.66 The full potential of general principles as part of the fabric of the international legal system is yet to be fully realised.67 I view general principles as the category of rules least dependent on the actions and consent of states. Instead, it is international courts and tribunals that play the central role in the ascertainment of these international rules.68

3.3.3 The Essential Characteristics of Principles Conversely, principles should be seen as optimisation commands with a dimension of weight. It is inaccurate to speak of the ‘validity’ of principles as they are not formed on the fulfilment of specific criteria as is the case with rules. Instead, principles have a “dimension of weight or importance”69 and this characteristic is relative in nature. It may thus be said that the existence and role of principles is determined at least in part on their substantive content,70 which is not the case with rules.71 The difference between weight and validity is effectively illustrated by their respective applications to a legal question. While the application of rules is governed by logic, the application of principles is based on arithmetic.72 If the conditions of a validly enacted rule are fulfilled, the consequences contained in that rule automatically follow; the application of valid rules is definitive. If multiple rules are applicable, which rule is applied is to be determined in accordance with the rules of the system. Where two or more principles are relevant to a situation, they are to be balanced against one another73 in an attempt to best serve the values at stake. In the event of a collision between principles, an assessment of their relative weight is to be carried out by the judge. This balancing can involve a considerable degree of judicial discretion and, according to Robert Alexy, requires a proportionality assessment to be carried out.74 66

For a full account, see Eggett 2021, Chapter III. Indeed, general principles are still subject to considerable debate and are currently part of the programme of work of the International Law Commission. 68 Eggett 2021, Chapter IV. 69 Dworkin 1977, p. 43. 70 This touches on the broader debate on the interaction between law and morals. Such questions are beyond the scope of this chapter. See, in general, Hart 1994, pp. 185–212; Dworkin 1977; Kelsen 1967, pp. 59–69. 71 The conditions of rules may be seen as part of their “content” but the application of rules does not differ depending on the importance or weight of the subject-matter regulated by rules, unless provided for by another rule of the system. 72 Alexy 2003. 73 Dworkin 1977, pp. 26–27; Alexy 2002, pp. 54–55. 74 Alexy 2003, p. 446. 67

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In contrast with the definitive nature of rules, principles can be viewed as “optimisation commands”.75 As such, the outcome sought by principles is not one that automatically follows the fulfilment of conditions. Instead, principles provide prima facie or “first-order” reasons for a particular result.76 Alexy has referred to principles as positing an “ideal ought” that is not yet “related to the possibilities of the factual and normative world” in the same way as rules.77 Put differently, principles are “should” statements that require a goal to be “realised to the greatest extent possible in the circumstances”.78 Where two or more principles are relevant to a situation they are to be balanced against one another in an attempt to best serve the values at stake.79 As such, they provide reasons to optimise behaviour in a particular direction but do not impose definitive and binding legal obligations on actors. It may be argued that there are different categories of principles. For Dworkin, principles are related to justice and fairness, while policies are related to social, economic, and political objectives.80 Alexy draws a line between substantive and formal principles. Substantive principles are focused on certain content, such as life and free speech. Conversely, the object of formal principles are legal decisions themselves.81 Irrespective of any categories that may be imposed, it is clear that principles are closely related to values.82 Alexy claims that it is always possible to reformulate a principle as a value, and vice versa.83 So, for example, the value of protecting the environment can be reformulated as ‘the environment should be protected’. In the context of a similar investigation into solidarity in international law, and mindful of the confusion and inconsistencies surround the term, Kostiantyn Gorobets presents four different uses of ‘principles’ in international law.84 These are: (1) reference to rules as principles in an attempt to give them greater argumentative weight, (2) principles that establish standards of behaviour by without stipulating any specific actions, (3) principles relevant for law although not legal principles, but political or moral norms or ideals that can legitimise international law; and, (4) principles that are not norms but moral values that the law is supposed to protect. This is an effective summary of the range of (sometimes inaccurate) uses of principles. Of course, on my view of the international legal system, (1) refers to rules and (4) to values. I see less need for a formal distinction of kind between categories (2) and (3), as the relevance of principles for a legal question will be determined by its relative weight.

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Alexy 2000, p. 295. Raz 1999, p. 187. 77 Alexy 2002, p. 59. 78 Ibid., p. 47. 79 Dworkin 1977, pp. 26–27; Alexy 2002, pp. 54–55. 80 Dworkin 1977, p. 23. 81 Alexy 2014, pp. 515–516. 82 Alexy 2002, p. 93. 83 Ibid., p. 86. 84 Gorobets 2020, p. 11. 76

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3.4 Solidarity as a Principle in International Law On the basis of the observations set out in the previous section regarding the close relationship between values and principles, the question of solidarity’s status as a principle may simply be a question of phrasing. The value of solidarity is simply reformulated as a broad normative statement, something like ‘states should act in solidarity’. By setting a standard against which behaviour can be judged, this formulation gives legal expression to the value as a principle, extending its influence beyond mere rhetorical use. While consonant with the basic distinction between principles and values, such a simplistic approach ignores the nature and function of principles in the international legal system. First, principles have a dimension of weight or importance. Merely reformulating a value as a normative ‘should’ statement does nothing to explain whether and to what extent this prospective norm plays a role in the system. Second, the exact content of a prospective principle should not be predetermined in such a way. The formulation given—‘states should act in solidarity’—is vague in the sense that it tells us little about the standard imposed by the norm. It is also narrow in the sense that it is constructed so as to already limit the actors (states) and the action (a positive act) to which the norm may apply. In this section, then, the approach will be to examine whether and how solidarity has been (or could be) given expression to as a principle in international law. As such, the examination concerns (Sect. 3.4.1) whether there are manifestations of solidarity as normative statements in the form of one or more principles and, (Sect. 3.4.2) if this is the case, whether there is any support for the idea that such a principle enjoys a higher status as a ‘constitutional’ or other kind of fundamental principle.

3.4.1 A Principle or Principles of Solidarity in International Law? As was explained at the outset, many accounts of solidarity consider its application to a specific legal issue or field. It may therefore be asked whether there are different manifestations of solidarity in different contexts. Such a conclusion would be perfectly in line with the understanding of the international legal system set out in the previous section. There are two main points to consider here. First, the content of any broadly applicable principle of solidarity in international law. That is, whether there is a principle that is generally applicable in international law and not confined to certain specific fields and issues. Second, whether there (also) exist principles of solidarity in specific contexts. The objective of this section is not to provide an exhaustive account of such norms, but to identify their nature and the plausibility of their inclusion in the international legal system.

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Elements of a Broadly Applicable Principle of Solidarity

To recap, the notion solidarity relied upon in this chapter is that of attitude or behaviour of actors within a society or community towards other members of the same group by virtue of membership to this group. If formulated as a principle, then, the issue arise as to what behaviour is expected of an actor in relation to other actors. As a broadly applicable principle of international law, there are two main issues to be resolved: the actors to whom solidarity applies and the content of the standard of behaviour it imposes. Regarding the relevant actors, the position taken here may depend on the position taken regarding participation and personality in the international legal system, or at least the view of international society/the international community adopted.85 Indeed, it is conceivable that a broad principle of solidarity could applied to a diverse range of actors.86 This issue will be taken up in the discussion of solidarity in different contexts, but as a preliminary matter, attention should be drawn to the application of a principle of solidarity solely among states and one that includes other actors, most notably individuals. It may be argued that international law is, in and of itself, a manifestation of solidarity between states:87 an ‘international solidarity’ arising from the interdependence of states.88 On such a view, the creation of a rules-based order in pursuit of certain common values (such as peace and security) demonstrates an acknowledgement of certain common (albeit basic) interests of the community of states.89 Beyond this, there are claims that states should act in solidarity in relation to individuals.90 This position, too, seems uncontroversial given the current scope of international law and its concern for the right of individuals in fields such as human rights and humanitarian law. The manifestations of this aspect of solidarity may be subject to contestation, but the basic proposition that solidarity could be relevant for individuals is sound. The next question to consider is the potential content of a broadly applicable principle of solidarity. There may be both positive and negative standards of behaviour expected from such a principle. The negative, generally narrower,91 aspect of solidarity would be confined to the expectation to not cause harm or significantly hinder the rights of other members of the international community. Other accounts of solidarity go beyond this, suggesting that there are expectations to take positive actions 85

The nature and composition of international society/the international community may become relevant when discussing specific rules that give expression to solidarity, such as certain jus cogens norms and obligations erga omnes. See, for example, Wellens 2010, p. 9. 86 It is assumed by some that solidarity is an inherently universalistic notion. See, for example, the discussion in Tzimas 2018, pp. 338–340. 87 Bourgeois 1900; MacDonald 1996, p. 280, citing de Vattel 1958, pp. 1–16. 88 See, generally, Koskenniemi 2002b, pp. 327 et seq. 89 Conversely, it may be argued that international law gave rise to solidarity between states. Koskenniemi 2002b, p. 340, citing Le Fur 1938, pp. 62–63 on the influence of the League of Nations. 90 This reflects the distinction between horizontal and vertical solidarity as referred to by Wellens 2010, p. 9; Boisson de Chazournes 2010, p. 102. 91 Dann 2010, p. 60.

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in order to further solidarity among members of the community.92 While part and parcel of many conceptions of solidarity as part of international law, it may still be contested what exactly the content of such a positive dimension of solidarity would be. Would it be confined solely to extreme situations of need or inequality or would it also extent to general expectations of cooperation between actors? A broadly applicable principle of solidarity in international law is a clear theoretical possibility. There may be a principle applicable generally to states that sets expectations for their actions in furtherance of solidarity. However, the precise content of such a principle is likely only to be determined on the basis of its manifestation in certain contexts. There are, as I see it, two possibilities. First, revisiting the question of the content of the broadly applicable principle following an exploration of specific manifestations. Second, acknowledging that solidarity’s status as a principle would be dependent on specific context to the extent that any broadly applicable principle would add little to the rhetorical use of solidarity as a value.

3.4.1.2

Principles of Solidarity in Different Contexts

As already mentioned, accounts of solidarity frequently focus on its manifestations in different fields of law and in relation to specific issues,93 such as the regime of collective security,94 the responsibility to protect,95 climate change law,96 or the law of state responsibility.97 It is not possible here to provide a comprehensive overview of the different areas in which solidarity has been discussed. Instead, the focus will be on assessing how such references are made so as to consider whether there are multiple potential principles of solidarity in international law or if these manifestations can assist in developing a broader principle of solidarity. A common theme of exploration of solidarity in specific contexts is the assertion that the norms are somehow tied together by solidarity, being inspired by and operating in furtherance of ideals of solidarity. Neuhold refers to “model[s] of solidarity” in assessing how different mechanisms of collective security further the interests of solidarity,98 and explains the malfunctioning of such mechanisms as a lack of solidarity among states. Boisson de Chazournes explores the extent to which the notion of responsibility to protect reflects solidarity, at one point calling them “matching notions”.99 In this context, it is argued that there are horizontal and vertical dimensions of solidarity. Horizontal solidarity concerns the “attitude aiming at reducing casualties or inequalities between states” while vertical solidarity is “a means of rescuing a population encountering 92

See, for example, Boisson de Chazournes 2010, p. 94. For a prominent example, see the contributions in Wolfrum and Kojima 2010. 94 Slaughter 2005; Neuhold 2010. 95 Boisson de Chazournes 2010. 96 Williams 2009. 97 Koskenniemi 2002a. 98 Neuhold 2010. 99 Boisson de Chazournes 2010, p. 102. 93

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serious dangers that cannot be protected by its own state”.100 Dinah Shelton invokes solidarity in the context of ‘intergenerational equity’, exploring its place as part of the rationale for structures that protect the interests of future generations.101 When discussing the role of solidarity in such contexts, solidarity is referenced in explaining the foundations of the legal structures in question; solidarity is viewed as a premise for the creation and application of other norms. Solidarity is also viewed as a tool for interpreting rules within such structures.102 Solidarity, then, should be seen as possessing significant interpretative value in the same way as other principles that underly and tie together norms. The principle103 of sustainable development is a prominent example of this function. Viñuales describes sustainable development as having “architectural and interpretative functions”.104 Sustainable development plays a role in, for example, interpreting (or updating) treaty norms that contain no reference to the concept.105 Despite not imposing obligations as such, principles in this context play an instrumental role in the operation and development of rules. These functions are consonant with the inherent characteristics of principles set out in the previous section. That is, there is a tendency to view solidarity as a broader norm that links together the objectives and spirit of norms in a certain area of law. References to solidarity appear to provide basic reasons for the application of law to a given area, even if they do not provide specific and concrete obligations to act. It seems that the invocations of solidarity share common characteristics, calling on states to act to protect the interests of other, particularly vulnerable, members of international society.

3.4.2 An Elevated Status of Solidarity as a Principle? It has been argued that solidarity enjoys some sort of elevated status in international law. MacDonald even makes the (unsubstantiated) claim that solidarity can be considered jus cogens.106 This claim is to be emphatically rejected as it would require proof, first, that ‘solidarity’ is a concrete legal rule and, second, that this peremptory character has attained widespread support. Neither of these propositions finds sufficient 100

Ibid. Shelton 2010, p. 131. 102 Gorobets 2020, p. 9; Wolfrum 2010, p. 228. 103 See, for example, ICJ, Gabˇ cíkovo-Nagymaros Project (Hungary v Slovakia) Separate Opinion of Vice-President Weeramantry, 25 September 1997, 1997 I.C.J. Reports 88. It may be possible to argue that sustainable development is merely a concept that ties together certain principles of international law. See, for example, the discussion of the ‘concept’ of sustainable development by Viñuales 2021, pp. 293–299. Irrespective of this, it is still principles that are at work here, even if indirectly. 104 Viñuales 2021, p. 293. 105 Ibid., p. 296. 106 MacDonald 1996, p. 260. 101

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support. This claim, then, seems to be a conflation of the value-laden characteristics of solidarity with the fact that jus cogens norms protect core values by imposing strict, non-derogable and hierarchically superior obligations on states. Beyond this extreme example, there are several accounts of solidarity that seem to view solidarity as some sort of higher norm, of greater importance compared with other principles. Notably, this claim has been made by Wellens, who asserts that solidarity is a “constitutional principle” of international law.107 On this view, solidarity has more than a simply inspiration or aspirational role, instead performing a normative function and applying across different fields of law,108 perhaps even displacing or overriding other norms. Caution should be exercised when assessing such a claim, particularly because of the labels used. References to constitutionalism and constitutionalisation in international law are frequently misleading and unhelpful. They approach international law from the perspective of domestic ideas, attempting to transpose national law notions and structures to the inherently different international plane.109 The content of the proposition may be largely accurate, but the label ‘constitutional principle’ suggests some sort of normative hierarchy or inherently different role of function than other principles. Wellens’ account does not support this claim. It seems, instead, that attempts to add some sort of a qualifier—such as ‘constitutional’ or ‘structural’110 —are merely efforts to convey the perceived importance of the norm in question or its scope of application. These are to be clearly distinguished from any normatively superior status assigned to solidarity. That a principle of solidarity applies generally, in all fields and to all actors, does not mean that it supersedes other norms. Put differently, the scope of application is not to be confused with elevated hierarchical status. Similarly, that it exerts significant influence on certain rules or in certain areas merely speaks to its relative weight. On the view presented in Sect. 3.3, principles cannot be hierarchically superior to rules, instead they operate in the background to the creation and application of rules. This, of course, does not preclude the significant effect of principles, which may provide very strong reasons to adopt a particular interpretation of a rule. Yet, this is not the same as saying solidarity has a higher normative status in the legal system as such.

3.5 Solidarity and International Legal Rules It seems that there is quite some support for the existence of a principle or multiple principles of solidarity in international law. A related but separate question is the link between solidarity and international legal rules. On the view presented in this chapter, it is only rules that are capable of granting legal rights and imposing binding legal obligations. In this section, the focus will be on how solidarity influences international 107

Wellens 2010. Ibid., pp. 30–32. 109 I have elaborated on this position elsewhere, see Eggett 2019. 110 See, generally, Wolfrum and Kojima 2010; Koroma 2012, p. 103. 108

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legal rules. This relationship is discussed in two main parts. First, claims that there are specific obligations of solidarity are considered. Here, the focus is whether there are general rules that directly imposed obligations to act or refrain from action because of solidarity. In this examination, particular attention is paid to the potential sources of such rules of solidarity. Second, the development of rules inspired by solidarity is considered. This is a more indirect manifestation of solidarity in legal rules. In such situations, rules are created and applied in order to further interests of solidarity. It is considered whether there is scope for the development of new international rules on the basis of solidarity, particularly on the basis of ‘general principles of law’ in the sense of Article 38(1)(c) ICJ Statute.

3.5.1 Specific Rules of Solidarity It is commonplace to assert that solidarity imposes obligations111 and there are some who assert solidarity as a right.112 Proponents of such views may base their findings on an understanding of (legal) principles as capable of generating rights and obligations,113 but on the understanding of international norms relied upon here, it would only be possible for solidarity to grant rights and impose obligations if reflected in legal rules. As explained by Koroma, the content of such prospective rules of solidarity could include negative obligations to refrain from certain actions and positive duties to “carry out certain measures for the common good”.114 Rights of solidarity would correspond and lead to the imposition of such obligations on others. If there are such rules of solidarity, the question arises as to the potential source of such rules. I adopt a view of the sources of international law as being confined to treaties, customary law, and ‘general principles of law’. The first two of these sources will be discussed here, while general principles will be considered in the next part. References to solidarity in treaties and other international instruments are scarce. Where references are made in treaties, solidarity is presented as a guiding principle or objective as opposed to a rule. For example, the Convention to Combat Desertification refers to “the spirit of solidarity” as the impetus for improved cooperation and coordination between states.115 In this treaty, reference to solidarity is made only in conjunction with specific duties, seemingly providing an explanation of the motivation of states to create and comply with such an obligation. While it is of course possible for a treaty to contain a rule on solidarity, this does not seem to have been 111

See, for example, Wellens 2010, p. 30; Koroma 2012, p. 103. UN General Assembly (2010) Report of the Independent Expert on Human Rights and International Solidarity, Rudi Muhammad Rizki, UN Doc A/HRC/15/32, para 6.8. 113 See, again, the taxonomy adopted by Gorobets 2020, p. 11. 114 Koroma 2012, p. 103. 115 United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, adopted 14 October 1994, entered into force 26 December 1996, 1954 UNTS 3, Article 3(b) and Annex I, Article 4(b). 112

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the case so far. The influence of solidarity on rules, including treaty rules, will be discussed in the following section, but it seems clear that treaties do not typically contain rules to act in furtherance of solidarity. Solidarity is instead referred to and functions as a principle in certain treaty regimes. Alternatively, customary international law may be asserted as the basis of rules on solidarity. Some authors have explicitly recognised this, either as reflecting the current state of affairs or as a means to further embed solidarity into the international legal system.116 Such a proposition seems attractive but should be qualified. The development of a customary rule requires widespread, virtually uniform, and consistent state practice accompanied by opinio juris. Therefore, for any rules on solidarity to emerge, it would be required that states not only consistently act or refrain from action by reason of solidarity, but that states are of the view that this conduct is mandated by law.117 Such development seems unlikely, particularly as a broadly applicable rule to act or refrain from action in solidarity.118 Solidarity may be referred to by states when asserting a legal position, but it seems more likely to serve as a principle or value relied upon to support a certain legal claim. This is not the same as saying that states act in accordance with solidarity and believe that they are legally required/permitted to do so.

3.5.2 Rules in Furtherance of Solidarity Irrespective of certain general rules that impose broad obligations of solidarity, it may be the case that specific rules exist or could be created in order to further solidarity in particular contexts. This is indeed the view of many authors in their assessments of solidarity in certain fields or in relation to certain issues.119 Once again, treaties provide little assistance here and customary law could in theory be relevant. However, it seems that there is greatest scope for general principles of law to serve as the source of concrete rules in further of solidarity.120 It should be reiterated that reference to ‘general principles’ here is a reference to the norms envisaged by 116

Wellens 2010, p. 13; Neuhold 2010, p. 138. For an overview, see ILC (2018) Draft conclusions on identification of customary international law, with commentaries, Document A/73/10, Yearbook of the International Law Commission 2018, Vol. II, Part Two. 118 Indeed, some instruments that have referred to solidarity in more detail have failed to gain widespread support. See, for example UN Report of the Secretary-General (1984) Progressive Development of the Principles and Norms of International Law relating to the New International Economic Order, UN Doc A/39/504/Add.1, p. 91. See also UN General Assembly (2001) UN General Assembly Resolution of 14 March 2001 on the Promotion of a democratic and equitable international order, UN Doc A/RES/55/107; UN General Assembly (2004) UN General Assembly Resolution of 20 December 2004 on the Promotion of a democratic and equitable international order, UN Doc A/RES/59/193. 119 See, generally, the views of authors referred to in Sect. 3.4.1. 120 Note that this is different from the claim that existing rules are united by or further solidarity. 117

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Article 38(1)(c) ICJ Statute. As explained above, I understand this category of norms as a distinct category of rule, separate from principles in the true sense of the term, as described above. While there is a degree of imprecision in the labelling of norms when relied upon by courts and tribunals,121 there is a functional difference between reliance on principles and reliance on general principles of law. General principles were intended to serve as the basis of legal decisions122 and judicial references to these norms tends to be in search of rather specific and technical secondary rules of international law.123 In my view, these rules are not solely predicated on the consent of states and it is other actors, most notably international courts and tribunals, that play the most prominent role in the creation of general principles.124 Claims that states must recognise general principles do not reflect the reality that these norms are ascertained by judicial bodies as part of a continuous process of contestation and confirmation.125 This process entails the judge considering whether and to what extent a prospective general principle has been accepted as part of international law. In doing so, judges may make reference to, inter alia, international instruments, certain principles and values, domestic law, and other judicial decisions. The central issues for the judge with whether a prospective general principle finds support and fits within the international legal system. Here, solidarity could play a role in the development of specific rules, as judges may make reference to aspects of solidarity as part of this assessment. This role is of course enhanced if solidarity is seen as a principle with significant weight in different areas and contexts. The development of solidarity-inspired rules could occur in relation to specific substantive fields and issues. It is not hard to imagine, for example, that general principles of solidarity may be developed in areas such as the protection of the environment or development cooperation.126 These developments could involve the creation of obligations of cooperation of assistance, such as those included in the Desertification Convention discussed above. More extensive solidarity-based obligations may be imposed in such fields due to the substantive importance of the matters in question. Further, solidarity could serve as the impetus for the development of certain secondary rules of international law, such as those on 121

See, for example, ICJ, Delimitation of the Maritime Boundary in the Gulf of Maine Area (Canada v United States of America) Judgment of a Chamber, 12 October 1984, 1984 I.C.J. Reports 246, paras 79 et seq. (referring to rules and principles interchangeably). 122 League of Nations Advisory Committee of Jurists 1920, pp. 308 et seq. 123 See, for example, ICJ, Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission of Human Rights, Advisory Opinion, 29 April 1999, 1999 I.C.J. Reports 62, p. 63 (referring to the obligation to rule on matters in limine litis); ICJ, Effect of Awards of Compensation made by the UN Administrative Tribunal, Advisory Opinion, 13 July 1954, 1954 I.C.J. Reports 47, p. 53 (referring the rule of res judicata); ICJ, Avena and Other Mexican Nationals (Mexico v United States of America), Memorial of Mexico, 20 June 2003, 2004 I.C.J. Reports 12, paras 374 et seq. (claiming a general principle regulating the admissibility of illegally obtained evidence). 124 Article 38(1)(c) ICJ Statute refers to recognition by “civilized nations”. Once this clearly archaic and unhelpful term is discounted, all that is left is recognition. 125 For a full elaboration of this view, see Eggett 2021, Chapter IV. 126 See, for example, Wellens 2010, p. 4, speaking of “solidarist primary rules”.

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responsibility. For example, Nedeski argues that solidarity may be used to enhance the rules on shared responsibility in international law.127 Indeed, considerations of solidarity can be seen in many existing secondary rules, such as those relating to the invocation of obligations owed to the international community128 or the obligations on states to act following serious breaches of peremptory norms.129 The development of further solidarity-inspired rules would also be consistent with the view that international law has generally moved beyond a system based on coexistence and cooperation, and to one based on solidarity.130

3.6 Concluding Remarks This chapter has sought to examine some of the theoretical aspects of solidarity in the international legal system. Adopting a view of solidarity as concerned with the behaviour of members of a group influenced by their membership to that group, the main task has been to assess the extent to which this notion can be considered as part of the fabric of international law. When approaching such a task, it is imperative to set out the theoretical foundations relied upon. I view international law as a system of rules and principles, with these categories of norms being fundamentally different and performing clearly distinct functions. The system itself is based on certain values; fundamental and enduring beliefs and objectives to be achieved. It is clear that solidarity can be considered a value. Its political and moral roots continue to be present as calls to action for states. Further, there is considerable support for the existence of principles of solidarity in international law. Convincing claims can be made that solidarity is not a mere rhetorical device, but sets expectations and provides reasons for certain action by states. Indeed, principles of solidarity can be seen to permeate certain fields and legal structures in international law, exerting an influence on the creation and interpretation of rules. However, it appears that solidarity does not directly entail concrete obligations in the sense of rules. There is simply a lack of support for such a position. That being said, solidarity can be given further legal expression by rules. This interaction is inherent in the relationship between rules and principles in international law. Certain obligations of assistance and cooperation, for example, could convincingly be seen as emanations of solidarity in the form of rules. There is potential for further development of solidarity-based rules in the case of general principles of law. This, in turn, could contribute to the modernisation of the international legal system and its ability to respond to contemporary challenges.

127

Nedeski 2020, pp. 29–44. ILC 2001, pp. 26–30 (ARSIWA), Article 48(1)(b). 129 ARSIWA, Article 41. 130 For a good overview, see Nedeski 2020, pp. 3–5. 128

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References Alexy R (2000) On the Structure of Legal Principles. Ratio Juris 13:294–304 Alexy R (2002) A Theory of Constitutional Rights. Oxford University Press, Oxford Alexy R (2003) On Balancing and Subsumption: A Structural Comparison. Ratio Juris 16:433–449 Alexy R (2012) The Construction of Constitutional Rights. Revue française de Droit constitutionnel 91:465–477 Alexy R (2014) Formal principles: Some replies to critics. International Journal of Constitutional Law 12:511–524 Alvarez A (1912) La codification du droit international – ses tendences, ses bases. Pedone, Paris Badanova I (2019) Making Sense of Solidarity in International Law: Input from the Integration of the European Gas Market. European Journal of Legal Studies 2:105–141 Bianchi A (2016) International Law Theories: An Inquiry into Different Ways of Thinking. Oxford University Press, Oxford Boer A (2009) Legal Theory, Sources of Law, and the Semantic Web. IOS Press, London Boisson de Chazournes L (2010) Responsibility to Protect: Reflecting Solidarity? In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 93–110 Bourgeois L (1900) Préface. In: Mérignhac A (ed) La Conférence internationale de la paix. Rousseau, Paris Campanelli D (2011) Principle of Solidarity. In: Wolfrum R (ed) Max Planck Encylopedia of International Law. Oxford University Press, Oxford Cassese A (2012) A Plea for a Global Community Grounded in a Core of Human Rights. In: Cassese A (ed) Realizing Utopia. Oxford University Press, Oxford Dann P (2010) Solidarity and the Law of Development Cooperation. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 55–78 de Vattel E (1758) Le Droit des Gens ou Principes de la Souveraineté, 1958 reprint. University of Geneva, Geneva Duguit L (1908) Le droit social, le droit individuel et la transformation de l’état. Alcan, Paris Duguit L (1922) Souvereineté et liberté: leçons faites à l’Université de Colombia. Alcan, Paris Durkeim É (1893) The Division of Labour in Society, 1933 edn. (Simpson G (transl). Macmillan Company, London Dworkin R (1977) Taking Rights Seriously. Harvard University Press, Harvard Eggett C (2019) The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law. Netherlands International Law Review 66:197–217 Eggett C (2021) General Principles as Systemic Elements of International Law. Maastricht University PhD Thesis Gorobets K (2020) Solidarity as Practical Reason: Grounding Authority of International Law. https:// ssrn.com/abstract=3548673. Accessed 6 September 2022 Hart HLA (1994) The Concept of Law, 2nd edn. Oxford University Press, Oxford Hechter M, Opp KD (2001) Social Norms. Russell Sage Foundation, New York Henkin L (1990) International law: Politics, Values and Functions General Course on Public International Law. Recueil des Cours de l’Académie de Droit International 216 ILC (2001) Draft Articles on Responsibility of States for Internationally Wrongful Acts, Yearbook of the International Law Commission 2001, Vol II, Part Two Kammerhofer J (2016) International Legal Positivism. In: Hoffmann F, Orford A (eds) The Oxford Handbook of the Theory of International Law. Oxford University Press, Oxford, pp 407–426 Kelsen H (1944) Peace Through Law. University of North Carolina Press, Chapel Hill Kelsen H (1945) General Theory of Law and State. Harvard University Press, Harvard Kelsen H (1967) Pure Theory of Law. University of California Press, Berkeley Kelsen H (1982) The Concept of the Legal Order. American Journal of Jurisprudence 27:64–84

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Koroma AG (2012) Solidarity: Evidence of an Emerging International Legal principle. In: Hestermeyer HP, Wolfrum R (eds) Coexistence, Cooperation and Solidarity: Liber amicorum Rüdiger Wolfrum. Nijhoff, Leiden, pp 103–129 Koskenniemi M (2002a) Solidarity Measures: State Responsibility as a New International Order? British Yearbook of International Law 72:337–356 Koskenniemi M (2002b) The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960. Cambridge University Press, Cambridge Kotzur M (2017) Solidarity as a Legal Concept. In: Grimmel A, Giang S (eds) Solidarity in the European Union: A Fundamental Value in Crisis. Springer, Berlin Lauterpacht H (1946) The Grotian Tradition in International Law. British Yearbook of International Law 23:1–53 Le Fur L (1938) La Guerre d’Espagne et le Droit. Éditions Internationales, Paris League of Nations Advisory Committee of Jurists (1920) Procès-Verbaux of the Proceedings of the Committee, 16 June – 24 July 1920. Van Langenhuysen Bros, The Hague, pp. 308 et seq. Leroux P (1840) De l’humanité. Fayard, Paris Linderfalk U (2009) State Responsibility and the Primary-Secondary Rules Terminology – The Role of Language for an Understanding of the International Legal System. Nordic Journal of International Law 78:53–72 MacDonald RSJ (1996) Solidarity in the Practice and Discourse of Public International Law. Pace International Law Review 8:259–302 Moore R (1978) Legal Norms and Legal Science: A Critical Study of Kelsen’s Pure Theory of Law. University Press of Hawaii, Hawaii Nedeski N (2020) Concepts of Solidarity in the International Law of Obligations: Moving Beyond a One-Sided Conceptualization of Solidarity. Amsterdam Law School Legal Studies Research Paper No. 2020-11, Amsterdam Center for International Law No. 2020-09 Neuhold H (2010) Common Security: The Litmus Test of International Solidarity. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 193–224 Orakhelashvili A (2008) The Interpretation of Acts and Rules in Public International Law. Oxford University Press, Oxford Peczenik A (2008) On Law and Reason, 2nd edn. Springer, New York Raz J (1999) Practical Reason and Norms, 2nd edn. Oxford University Press, Oxford Reinold T, Zürn M (2014) ‘Rules about Rules’ and the Endogenous Dynamics of International Law: Dissonance Reduction as a Mechanism of Secondary Rule-making. Global Constitutionalism 3:236–273 Rokeach M (1973) The Nature of Human Values. Free Press, New York Scelle G (1935) Théorie de gouvernement international. Annuaire de l’Institut International de Droit Public 41 Shelton D (2010) Intergenerational Equity. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 123–162 Simma B (1994) From Bilateralism to Community Interests in International Law. Recueil des Cours 250 Simma B, Paulus A (1999) The Responsibility of Individuals for Human Rights Abuses in Internal Conflict: A Positivist View. American Journal of International Law 93:302–316 Slaughter AM (2005) Security, Solidarity, and Sovereignty: The Grand Themes of UN Reform. American Journal of International Law 99:619–631 Spijkers O (2009) What’s Running the World: Global Values, International Law, and the United Nations. Interdisciplinary Journal of Human Rights Law 4:67–87 Spijkers O (2011) The United Nations, the Evolution of Global Values and International Law. Intersentia, Cambridge Steinvorth U (1999) The Concept and Possibilities of Solidarity. In: Bayertz K (ed) Solidarity. Springer, Dordrecht Stjernø S (2011) The Idea of Solidarity in Europe. European Journal of Social Law 3:156–176

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Tzimas T (2018) Solidarity as a Principle of International Law: Its Application in Consensual Intervention. Groningen Journal of International Law 6:333–359 Verhoeven J (2000) Droit International Public. Larcier, Brussels Viñuales JE (2021) Sustainable Development. In: Rajamani L, Peel J (eds) The Oxford Handbook of International Environmental Law, 2nd edn. Oxford University Press, Oxford Virally M (1968) Le role des ‘principes’ dans le développement du droit international. In: Batelli M, Guggenheim P (eds) Recueil d’études de droit international en hommage à Paul Guggenheim. University of Geneva, Geneva, pp 531–554 Wellens K (2005) Solidarity as a Constitutional Principle: Its Expanding Role and Inherent Limitations. In: MacDonald RSJ, Johnston DM (eds) Towards World Constitutionalism: Issues on the Legal Ordering of the World Community. Nijhoff, Leiden Wellens K (2010) Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 3–38 Williams A (2009) Solidarity, Justice and Climate Change Law. Melbourne Journal of International Law 10:493–508 Wolfrum R (2010) Concluding Remarks. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 225–228 Wolfrum R, Kojima C (eds) (2010) Solidarity: A Structural Principle of International Law. Springer, Heidelberg

Chapter 4

The Principle of Solidarity in the Law of Transboundary Groundwater Petr Stejskal

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Legal Gap in International Water Law and Link to International Security . . . . . . . . . . . . 4.3 Defining the Principle of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Solidarity and Equitable Utilisation Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.5 Principle of Solidarity in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.6 Solidarity and the Right to Water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.7 Status of the Principle of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

56 57 60 61 62 65 67 71 72

Abstract The vast majority of water consumed and utilised by mankind comes from underground resources, the majority of which cross boundaries of States. However, the management of transboundary groundwater is insufficiently regulated in international treaties whereas the existence of relevant customary norms remains unclear. In particular, it is still unclear whether the equitable utilisation rule is part of customary international law with respect to transboundary groundwater. This contribution does not focus on the analysis of the customary status of this important rule but it looks into the principle of solidarity as an alternative legal doorway for the applicability of the equitable utilisation rule. After briefly explaining the current state of the art concerning the legal regime of transboundary aquifers, it provides the reader with an overview of the manifestations of the principle of solidarity in international law. On the basis of that, it analyses the normative status of the principle. In particular, it seeks to answer the question whether the enunciation of the principle of solidarity in binding and non-binding legal instruments enables us to conclude that it now forms part of the scope of general international law and operates as a stand-alone source of obligations for States, particularly with respect to groundwater. Answering this

P. Stejskal (B) Department of International and European Law, Faculty of Law, Palacky University Olomouc, Olomouc, Czech Republic e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_4

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question may contribute to closing the gap in the legal regime of utilisation of transboundary groundwater but may also be very relevant for other fields of international law. Keywords Principle of solidarity · Transboundary groundwater · Aquifers · Equitable utilisation · Intergenerational equity

4.1 Introduction The international community faces various challenges, some of which are imminent and significant. Degradation of environment, climate change and access to vital resources ranks among them. In many aspects, international law proves its relevance as an important tool the international community can utilise to solve these challenges. This contribution addresses one particular aspect—utilisation of transboundary groundwater. After pointing to the legal gap in the utilisation of transboundary water, this contribution will analyse to which extent the enunciation of the principle of solidarity in binding and non-binding legal instruments enables us to conclude that it forms part of the scope of general international law and operates as a standalone source of obligations for States, particularly with respect to the utilisation of transboundary groundwater.1 This chapter reflects on the following legal issues concerning the utilisation of transboundary groundwater. It is still unclear whether seminal equitable utilisation rule is part of customary international law with respect to transboundary groundwater.2 Given the fact that utilisation of transboundary groundwater is only scarcely regulated by international agreements, the existence of this norm in customary international law is indeed a question with direct impact on the ground. It also remains unclear what is the specific content of equitable utilisation rule with respect to groundwater. This contribution will not focus on the analysis of the customary status of the equitable utilisation rule (which would require a comprehensive quantitative and qualitative research of state practice and opinio juris),3 but it will look into the principle of solidarity as an alternative legal doorway for the applicability of the elements of the equitable utilisation rule.4 In particular, this chapter asks if the rule of equitable utilisation can be perceived as a manifestation of the general principle of solidarity in the specific context of transboundary groundwater. Answering this question may contribute to closing the gap in the legal regime of utilisation of transboundary groundwater with strong relevance for application practice and ongoing

1

See a similar point of view in Dupuy 2008, p. 462. Eckstein 2021, p. 206. 3 For at least some trends in the evolution of customary law related to the utilisation of aquifers, see the useful overview in Eckstein 2021, pp. 201–206. 4 Even the International Court of Justice sometimes draws no distinctions between general principles of law and customary law. See Lepard 2010, p. 163. 2

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disputes. The clarification of the normative status of the solidarity principle would be strongly relevant also for other fields of international law. As regards the structure of this chapter, it will firstly provide the reader with relevant data and overview of the legal regime of utilisation of transboundary groundwater, pointing to insufficient regulation and identifying a legal gap. After explaining the meaning of the principle of solidarity and its possible links with rules addressing utilisation of transboundary groundwater, it will provide an overview of the manifestations of the principle of solidarity and related concepts in international law. On this basis, the chapter proceeds by analysing the normative status of the principle. In particular, it will seek to answer the question whether the enunciation of the principle of solidarity in binding and non-binding legal instruments enables us to conclude that it now forms part of the scope of general international law and operates as a standalone source of obligations of States, particularly with respect to groundwater.5

4.2 Legal Gap in International Water Law and Link to International Security The vast majority of water consumed and utilised by mankind comes from underground resources, the majority of which cross boundaries of States. In particular, it is estimated that groundwater represents approximately 97% of the freshwater resources that are available (thus excluding frozen water).6 And whereas there are nearly 300 watercourses that are international, almost 600 aquifer systems crossing boundaries have been identified so far.7 At the same time, many transboundary aquifers are underlying territories of States where the risk of escalation and conflict is high or where these States are already engaging in a conflict (aquifers shared by Turkey and Syria, India and Pakistan, Palestine and Israel etc.). The competition over this vital source is increasing8 and eventual disputes may involve political, economic, legal and technical issues related to a broad spectrum of water issues (use, allocation, pollution etc.). The topicality of the issues connected to shared water in general is confirmed also by the very recent events. For example, there is an ongoing dispute between Ethiopia and Egypt related to the construction of a dam on the upstream of the River Nile.9 The issue is relevant also for the Czech Republic due to the dispute with Poland over the plan of the Polish state-controlled utility PGE to expand a brown 5

See a similar point of view in Dupuy 2008, p. 462. Mechlem 2010, para 1; Milanés-Murcia 2019, p. 147. 7 Milanés-Murcia 2019, p. 147. The exact number depends on the selected criterions—according to IGRAC’s map of the world’s transboundary aquifers, there are now 468 identified transboundary aquifers and aquifer systems globally. See the new map available at: https://www.un-igrac.org/res ource/transboundary-aquifers-world-map-2021. 8 Leb 2009, pp. 116–117. 9 For more details, see International Crisis Group 2019. 6

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coal mine near the Czech border (Turów). There are serious concerns on the Czech side that the mining would hamper groundwater supplies for thousands of Czechs.10 In some regions, defective utilisation of water resources and disputes related to the scarcity and inequitable allocation of freshwater may even be counted among the causes of armed conflicts and driving force for migration.11 However, the management of transboundary groundwater is insufficiently regulated in international treaties whereas the legal framework of general (customary) international law remains (at least) unclear—with some authors providing evidence for rather insufficient State practice and opinio iuris.12 The topic of the law of transboundary groundwater has been on the agenda of the United Nations General Assembly and several expert bodies. The then United Nations Secretary General, Ban Ki-moon, once stated that “there is still enough water for all of us—but only so long as we keep it clean, use it more wisely, and share it fairly”.13 The rule of equitable utilisation is one of the key rules governing the utilisation of transboundary water resources. It is included in Article 5 of the United Nations Watercourses Convention from 1997,14 in Article 2 of the United Nations Economic Commission for Europe Water Convention15 and in many non-binding instruments—such as the Berlin Rules on Water Resources 200416 and the Draft Articles on the Law of Transboundary Aquifers from 2008.17 According to this rule, shared water resources shall be utilised in a manner that is consistent with the equitable and reasonable accrual of benefits therefrom to the aquifer States concerned. States shall aim at maximizing the long-term benefits derived from the use of water and shall take into account present and future needs. Some authors even speak about inter-generational solidarity in connection with that rule.18

10

Janicek 2019. Tignino 2010, p. 651. For example, the increase in water-related Arab-Israeli tensions is actually believed to be a strong factor causing the so-called Six Days War in 1967. And it seems to be generally accepted that water may be at least one of the significant causes of conflicts in the near future, for example in the Middle East and North Africa. 12 Eckstein 2021. See also the view that the equitable utilisation principle, the no harm rule and some procedural obligations “can increasingly be considered to be crystallizing into customary international law”. See Sindico 2021, p. 181. 13 UN News 2008. 14 Convention on the Law of the Non-Navigational Uses of International Watercourses, adopted 21 May 1997, entered into force 17 August 2014, 2999 UNTS 77 (1997 United Nations Watercourses Convention). 15 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, adopted 17 March 1992, entered into force 6 October 1996, 1936 UNTS 269. 16 International Law Association 2004. 17 ILC, Draft Articles on the Law of Transboundary Aquifers, Yearbook of the International Law Commission 2008, Vol. II, Part Two 19 (2008 Draft Articles on the Law of Transboundary Aquifers). 18 Carozza and Crema 2019, p. 10. 11

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Also the related procedural obligations are essential in this regard—as Judge Higgins once called it—the procedural law of cooperation.19 The general obligation to cooperate consists of the duty to notify, to consult and negotiate, as well as the duty to exchange information.20 The view that cooperation for the responsible management of aquifers by neighbouring States may avoid disputes and preserve the freshwater reserves is shared by several States.21 Especially in the context of groundwater, the realization of substantive norms on allocation and utilisation of water would be especially difficult without cooperation.22 The fact that agreements have been concluded even between States with not particularly friendly relations only supports this view.23 But, as already mentioned, international agreements addressing groundwater are few. The existence of a general duty to cooperate in customary international law, as well as the way how its elements are predetermined by the specific nature of groundwater and by the content of the relevant substantive norms is not clear. It should be noted that although there is a number of international treaties that address international surface waters, still the legal gap may exist also here. It may be the case that particular States sharing surface water are not parties to a multilateral treaty and an ad hoc treaty addressing the water source in question does not exist or it does not sufficiently address the issue of allocation. Findings from this contribution may therefore be relevant for the utilisation of groundwater and surface waters as well. For example, neither Egypt nor Ethiopia are party to the Watercourses Convention. The solution of the dispute (in terms of its legal dimension) over the construction of the dam on the river Nile is thus left also to customary international law and general principles of law or to the conclusion of a specific agreement between the parties to the dispute.24

19

McCaffrey 2001, p. 398. Ibid., referring to the ICJ Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay) Judgement, 20 April 2010, 2010 I.C.J. Reports 14. 21 UN General Assembly 2016, p. 10. See also position of Tunisia on behalf of the Group of Arab States. 22 Tanzi 2019, p. 53. 23 Good examples are the 1960 Indus Water Treaty between India and Pakistan and the 1995 Interim Agreement between Palestine and Israel under which the Joint Water Committee was established. Not only that the Indus Water Treaty remained in force during the conflicts between India and Pakistan in 1960s and 1970s, but also the Permanent Indus Commission established by that treaty continued to work as a means of communication between the two countries. See Tignino 2010, p. 671. 24 Sindico 2021, p. 182. In fact, there is already an agreement in place—the so-called Agreement on Declaration of Principles between The Arab Republic of Egypt, the Federal Democratic Republic of Ethiopia and the Republic of the Sudan on the Grand Ethiopian Renaissance Dam Project (GERDP) from 2015. However, this agreement did not solve the protracted dispute between the contracting parties. 20

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4.3 Defining the Principle of Solidarity In moral terms, solidarity is a value-based moral obligation to take into account interests of others and provide them assistance to achieve some goal or to recover from a critical situation.25 On the international level, MacDonald defined solidarity as “a principle of cooperation which identifies as the goal of joint and separate state action an outcome that benefits all states”.26 According to him, as a principle of international law, it creates a context for cooperation going beyond the concept of a global welfare State and reflects the broader idea of a world community of interdependent States.27 Utilisation of solidarity helps among actors to further a common goal, value or to avoid common danger.28 However, it goes beyond the (mere) principle of cooperation as it requires States not only to co-operate amongst each other, but also to take into account the interests of others and of the international community as such.29 The mere fact that multiple States or international organizations are bound to a similar international obligation does not automatically entail that the obligation is based on the principle of solidarity.30 Rather than that, utilisation of the principle of solidarity in international agreements displays an element of amelioration of deficits which a particular State pursues also as an objective in the interest of the community of States.31 It can also be agreed that an example of utilisation of the solidarity principle can be found in cases where States are bound to an indivisible shared obligation. A shared obligation is typically indivisible when it binds multiple States or international organizations to achieve common performance.32 A typical sign of a solidarity-based obligation is the combination of the two aspects: achievement of a common objective and amelioration of deficits of certain States.33 In legal writings, the term solidarity is used in various forms—either as a legal principle34 or as a principle of international environmental law.35 Whereas R. Wolfrum uses the notion of emerging structural principle of international law,36 independent expert on human rights and international solidarity, R. M. Rizki in its report submitted to the Human Rights Council even recognizes the principle of solidarity as a general principle of law, a formal source of international law obligations in accordance with Article 38 of the Statute of the International Court of Justice (hereinafter as “ICJ”).37 25

Chazournes 2010, pp. 94–95. MacDonald 1996, pp. 259–260. 27 Ibid. 28 Tzimas 2019, p. 335. 29 Wolfrum 2011, para 12. 30 Nedeski 2020, p. 31. 31 Wolfrum 2013, p. 417. 32 Ibid., p. 35. 33 Wolfrum 2006, p. 1096. 34 Tzimas 2019, p. 335. 35 Kenig-Witkowska 2021. 36 Wolfrum 2006, pp. 1087 et seq. 37 Human Rights Council 2009, para 16. 26

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This chapter seeks to analyse whether the principle of solidarity can be perceived as a distinct source of international law obligations. Because of the link to or even partial overlap with the concept of intergenerational equity and the rule of equitable utilisation (as demonstrated below), the principle of solidarity might hypothetically contribute to the closure of the legal gap in the utilisation of transboundary water resources. In particular, it might serve as a normative vehicle for application of at least some elements contained in the equitable utilisation rule.

4.4 Solidarity and Equitable Utilisation Rule Given the above-presented instances of utilisation of solidarity principle in international law, one may ask how exactly it can serve (if recognized as a general principle of law, for example) as a normative basis for the application of elements contained in the distinct (treaty-based) rule of equitable utilisation. This rule generally demands that States utilise transboundary aquifers or aquifer systems in a manner that is consistent with the equitable and reasonable accrual of benefits therefrom to the aquifer States concerned, and maximize long-term benefits from its use. It also requires States to establish a comprehensive utilisation plan that takes into account present and future needs. Specifically with respect to recharging aquifers, this rule obliges States not to utilise them at a level that would prevent continuance of its effective functioning.38 A distinct feature of the rule of equitable utilisation with respect to water resources is the inclusion of the relevant factors supplementing the rule and its implementation. These factors include geographical, social and economic circumstances, as well as existing and potential uses, conversation and protection and also the availability of alternatives.39 Thus, the described elements of the equitable utilisation rule can be seen as an imprint of the principle of solidarity. Moreover, the principle of solidarity is sometimes linked to the notion of equity40 and the element of equity is by its nature intrinsic to the rule of equitable utilisation.41

38

2008 Draft Articles on the Law of Transboundary Aquifers, Article 4. Castillo-Laborde 2010, para 20. See for example Articles 5 and 6 of the 19797 United Nations Watercourses Convention. 40 See for example the UN General Assembly Resolutions entitled Promotion of a Democratic and Equitable International Order, UN Doc A/RES/56/151 from 19 December 2001 and UN Doc A/RES/57/213 from 18 December 2002, reaffirming the requirement of realization of solidarity “as a fundamental value, by virtue of which global challenges must be managed in a way that distributes costs and burdens fairly in accordance with basic principles of equity and social justice and ensures that those who suffer or who benefit the least receive help from those who benefit the most.” See also the United Nations Millennium Declaration, UN General Assembly Resolution from 2 September 2000, UN Doc A/RES/55/2, para 6. 41 Castillo-Laborde 2010, para 10. For more details on manifestations and normative status of equity in international law, see the recently published book by Titi (2021), where the author concludes that equity is applicable as a source of international law. 39

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Equity has been also invoked as a basis for standards for allocation and sharing resources and it provides a foundation for the principle of intergenerational equity.42 But the notion of intergenerational equity is often understood as embracing also an element of solidarity because it demands that the present generation uses natural resources in a way that does not deprive the future generations of equal conditions for living.43 Intergenerational equity is referred to in the Preamble of the 1997 United Nations Watercourses Convention and also in the 2008 Draft Articles on the Law of Transboundary Aquifers in connection with “optimal and sustainable” development or utilisation of water resources. Intergenerational equity is also explicitly included also in Article 2, para 5 (c) of the 1992 UNECE Convention on the Protection and Use of Transboundary Watercourses and Lakes. Intergenerational equity was also implicitly referred to by the ICJ in the Gabˇcíkovo-Nagymaros case.44 Thus, this principle is relevant for the topic of utilisation of transboundary water resources.45 And the notion of intergenerational equity is sometimes indirectly equated with intergenerational solidarity in international treaties,46 other official documents47 and writings of authors,48 or is at least perceived as a form of solidarity.49 Given these links between the contents of the principle of solidarity, intergenerational equity and equitable utilisation rule, it is appropriate to enquire whether the principle of solidarity can be the normative ground for application of their common features where the treaty-based rule of equitable utilisation itself is not applicable. Thus, the normative status of the principle of solidarity needs to be elucidated.

4.5 Principle of Solidarity in International Law The notion of solidarity resonates often in connection with specific areas of international law. As regards the doctrine, R. Wolfrum, for example, perceives the principle of solidarity as governing the areas of international law on economic relations or 42

Weiss 2021, para 3. Wolfrum 2006, p. 1094. 44 ICJ, Case Concerning The Gabˇ cíkovo-Nagymaros Project (Hungary v. Slovakia) Judgment, 25 September 1997, 1997 I.C.J. Reports 7, para 140. 45 Even though it has a more vertical dimension as it addresses the needs of generations of people, present and future, and thus is not strictly associated with a particular State, whereas the equitable utilisation rule refers to the benefits or interests of concerned States. 46 The above-mentioned Article 3(1) of the United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107 (UNFCCC). 47 UN General Assembly (2013) Report of the Secretary-General on Intergenerational solidarity and the needs of future generations, UN Doc A/68/322; UN General Assembly (2010) UN General Assembly Resolution on the human right to water and sanitation, UN Doc A/RES/64/292. 48 As put by Fitzmaurice: “the concept of intergenerational equity (solidarity) is wider as it embraces ...” In Fitzmaurice 2018, p. 357. 49 Shelton 2010, p. 126. 43

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on the protection of environment.50 The principle is also discussed with respect to international human rights law51 or even in relation to such topics as military intervention,52 collective self-defence,53 or the system of collective security.54 Solidarity is also strongly manifested in EU law.55 Finally, a slightly different angle on the notion of solidarity in international law exists in the law of international treaties and in the law of international responsibility, including the consequences of the breach of erga omnes norms (namely the possibility of invocation of international responsibility also by States that were not directly injured).56 The reference to solidarity may be found in many non-binding documents57 and in some legal instruments. For example, the Mediterranean Action Plan of the United Nations Environment Programme is understood as soft-law reflecting solidarity as it works as a pull for articulation of common goals, definition of standards of behaviour and eventually ignition of a law-making process.58 In 1976, the Mediterranean countries and the European Community adopted Barcelona Convention,59 followed by two protocols.60 One may find imprints of the principle of solidarity also in Principle 9 of the Stockholm Declaration or in Principles 6, 7 and 9 of the Rio Declaration.61 Sometimes, the undertakings in legal mechanisms that might be seen as utilisation of the principle of solidarity are quite vague or the relevant clauses lack binding enforceable wording. For example, the consolidated and amended version of the Barcelona Convention stipulates in its Article 13 para 2 that contracting parties “undertake to promote the research on, access to and transfer of environmentally sound technology,” or even uses the wording “shall” with respect to the transfer of technology (see Article 4—General Obligations). As regards other international 50

Wolfrum 2011, at para 12. For more notes on the manifestation of the principle of solidarity in international economic law, see for example MacDonald 1996, pp. 263–282. 51 Human Rights Council 2009. See also Wolfrum 2013, p. 410. 52 See Tzimas 2019 or Bolaños 2010. 53 Wolfrum 2013, pp. 406–407. 54 Wolfrum 2006, p. 1092. 55 Be it the EU primary law (such as Article 2 of the Treaty on European Union) or its further elaboration in the EU asylum law, development policy and other areas. 56 See Wellens 2010b, pp. 22–28 or Nedeski 2020, pp. 6, 15–23. See also Wellens 2010b, who at p. 32 refers to obligations contained in the Genocide Convention as an example of erga omnes obligations having their basis in international solidarity. 57 Mar del Plata Action Plan, adopted at the 1977 United Nations Water Conference, Recommendation 91. 58 MacDonald 1996, p. 287. 59 Convention for the Protection of the Mediterranean Sea Against Pollution, adopted 16 February 1976, entered into force 15 April 1978, 1102 UNTS 44 (Barcelona Convention). 60 Note that the Barcelona Convention was amended in 1995 and renamed as the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean. 61 Stockholm Declaration of the United Nations Conference on the Human Environment, adopted 16 June 1972, UN Doc A/Conf.48/14, 11 ILM 141 (1972 Stockholm Declaration); Rio Declaration on Environment and Development, adopted 14 June 1992, UN Doc A/CONF.151/26 Vol I, 31 ILM 874 (1992 Rio Declaration).

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treaties, for example the Water Charter of the Niger Basin from 200862 stipulates in its Article 2 that the purpose of the Charter is to encourage co-operation that is based on solidarity and reciprocity for a sustainable, equitable and coordinated use of the water resources of the Niger river basin.63 In some treaties, the principle of solidarity is more clearly articulated. An illustrative and more tangible manifestation of the principle of solidarity is the establishment of a mechanism for financial assistance and transfer of technology towards developing countries in specific areas of cooperation.64 After recognizing the need of these mechanisms in Principle 9 of the (non-binding) Stockholm Declaration in 1972,65 several environmental conventions imposed a duty on States to provide funds and/or technology to less developed States to achieve a common goal. A good example is the Vienna Convention on the Protection of the Ozone Layer (1985)66 and its Montreal Protocol (1987)67 which established a multilateral fund to enable developing countries to comply with their environmental obligations (for example by covering the costs of converting existing production facilities to produce substitutes for ozonedepleting substances). The Protocol also provides for the sharing of information.68 Similarly, Article 11 of the Convention on Climate Change (1992)69 established a mechanism for provision of financial resources for assistance with the transfer of technology (on a grant or concessional basis). Article 4 lists the kinds of assistance, including financial transfers, that are expected from the developed countries. The principle of solidarity is evident also behind Article 3 para 1 of the Convention. It stipulates the objective (but not a direct obligation here) of the protection of climate system for the benefit of the present and future generations on the basis of equity, and refers to the notion of differentiated responsibilities and respective capabilities. The Convention on Biological Diversity also addresses technology transfer in its Article 16 and financial funding in its Article 29.70 An explicit reference to the principle of solidarity may be found in the United Nations Convention to Combat Desertification

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The Niger Basin Water Charter, signed on 30 April 2008, available at http://www.abn.ne/ima ges/documents/Charte_Eau/niger_basin_water_charter_certified_copy.pdf. Accessed 7 September 2022. Signed by Burkina Faso, Benin, Cameroon, Ivory Coast, Guinea, Mali, Niger, Nigeria and Chad. 63 Ibid. 64 Although it might also be argued that the very motive behind these obligations is not solidarity as such but the need to involve also developing Sates to achieve the vital goal. However, this following of individual interest does not necessarily exclude the utilisation of solidarity principle. 65 1972 Stockholm Declaration. 66 Vienna Convention on the Protection of the Ozone Layer, adopted on 22 March 1985, entered into force on 22 September 1988, 1513 UNTS 293. 67 The Montreal Protocol on Substances That Deplete the Ozone Layer, signed on 16 September 1987, entered into force 1 January 1989, 1522 UNTS 28. 68 MacDonald 1996, pp. 284–286. 69 UNFCCC, Article 11. 70 MacDonald 1996, pp. 288–289.

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from 1994.71 Article 3 letter (b) states that “Parties should, in a spirit of international solidarity and partnership, improve cooperation and coordination at subregional, regional and international levels, and better focus financial, human, organizational and technical resources where they are needed.” Article 4 para 1 letter (b) stipulates that the African country Parties undertake to “promote regional cooperation and integration, in a spirit of solidarity and partnership based on mutual interest, in programmes and activities to combat desertification and/or mitigate the effects of drought.” Apparently, financial contributions and transfer of technology to less developed countries are not to be understood as donations, but rather as the fulfilment of obligations that are based (in their nature) on the principle of solidarity. It is indeed not a one-way flow of assets and obligations as recipient States usually have a corresponding obligation under the same principle to cooperate and participate in the common efforts to achieve the desired goal.72 The principle of solidarity was also raised in inter-state disputes related to the utilisation of shared water. For example, the tribunal had to interpret the objective of the 1991 Protocol to the 1976 Rhine Convention and the very purpose of the latter in the dispute between the Netherlands and France.73 The tribunal ascertained that solidarity is an element of the so-called community of interest that has been established by the Convention.74 However, apart from the above-mentioned, agreements dealing with utilisation of shared water resources usually do not explicitly operate with the notion of solidarity (they often operate with the notion of intergenerational equity).

4.6 Solidarity and the Right to Water This contribution addresses the normative Status of the principle of solidarity on the inter-State level. Existence and normative effects of the so-called solidarity rights is a different question that would deserve a separate analysis in the context of environmental rights.75 However, the right to water is to certain extent also related to the principle of solidarity.76 Solidarity in connection with the right to water is sometimes

71

United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, adopted 14 October 1994, entered into force 26 December 1996, 1954 UNTS 3. 72 MacDonald 1996, pp. 289. 73 Permanent Court of Arbitration, Case concerning the application of the Convention on the Protection of the Rhine against Pollution by Chlorides of 3 December 1976 and its Additional Protocol of 25 September 1991, Award, 12 March 2004, Case 2000-02. 74 Chazournes 2013, pp. 210–211. 75 As a starting point of the analysis, see for example Minnerop et al. 2006. 76 UN General Assembly (2010) UN Human Rights Council Resolution on Human rights and access to safe drinking water and sanitation, UN Doc A/HRC/RES/15/9.

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mentioned by States during the adoption of international instruments, binding or nonbinding.77 The human right to water may indeed be strongly relevant for the allocation of shared freshwater resources.78 The argument is that the inter-state legal regime of utilisation of shared water resources might be influenced by the existence and scope of the human right to water.79 This is because states have to respect international legal obligations both towards other states (from the perspective of conventional80 or customary obligations related to the utilisation of shared water resources) but also towards individuals (from the perspective of the human rights obligations). Indeed, human rights dimensions are sometimes at least partially reflected in the instruments that address transboundary water resources.81 However, the question of the existence and content of the right to water still seems to be controversial in the doctrine.82 Only a few (and thematically specific) human rights treaties mention contents or elements of this right,83 but do not recognize the right to water and sanitation as such.84 The right was recognized by the United Nations General Assembly in 2010.85 Although its resolutions are not binding, the fact that the resolution recognizing the right to water was adopted by a vote of 122 in favour to none against (with 41 abstentions, including the Czech Republic) might indicate that States consider the right to water as forming part of general international law. The human right to water was recognized also by the Human Rights Council86 and several other expert bodies.87 Nevertheless, this evidence is not as such sufficient to 77

For example the position of Costa Rica after the vote on the United Nations General Assembly Resolution 64/292 on the human right to water and sanitation, stating that States have “the primary responsibility to guarantee its inhabitants access to water pursuant to the principle of social and intergenerational equity and solidarity.” At UN General Assembly (2010) Official records, 64th session: 108th plenary meeting, UN Doc A/64/PV.108, p. 12. 78 Benvenisti 2010, para 5. 79 Arden 2016, p. 789; Scanlon et al. 2004, p. 23. 80 With respect to the interpretation of international treaties, Article 31(3)(c) of the 1969 Vienna Convention on the Law of Treaties enshrines the principle of systematic interpretation. 81 Article 10(2) of the 1997 United Nations Watercourses Convention or Article 16(3) of the ILC’s 2008 Draft Articles on the Law of Transboundary Aquifers can serve as an example of such an interconnection if the latter was part of customary international law or included in a binding convention. 82 Some authors share the view that the human right to water is part of customary international law. See for example Tanzi 2019, p. 53. 83 For example, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (Article 14(2)), the 1989 Convention on the Rights of the Child (Article 24) or the 2006 Convention on the Rights of Persons with Disabilities (Article 28(2)(a)). 84 Cavallo 2012, p. 199. 85 UN General Assembly (2010) UN General Assembly Resolution on the human right to water and sanitation, UN Doc A/RES/64/292. 86 Human Rights Council derives the right from the right to an adequate standard of living, the right to the highest attainable standard of physical and mental health and from the right to life and human dignity. See UN General Assembly (2010) Human Rights Council resolution on Human rights and access to safe drinking water and sanitation, UN Doc A/HRC/RES/15/9. 87 United Nations Committee on Economic, Social and Cultural Rights (2002) General Comment No 15 on the right to water, UN Doc E/C.12/2002/11; Human Rights Council (2013) Report of

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conclude that human right to water and sanitation is now part of general international law, binding upon states towards individuals.88 Moreover, the right to water is very often derived from other human rights.89 This takes us back to the question whether at least the principle of solidarity that is embedded in the idea of the right to water is not a standalone source of obligations related to the utilisation of transboundary water resources.

4.7 Status of the Principle of Solidarity It is claimed that ideas of solidarity and justice should be the theoretical starting points for the enhancement of the international legal framework for environmental and developmental inter-State cooperation, as important ethical sources for developing more concrete concepts, such as sustainable development, common but differentiated responsibilities, or inter-generational equity.90 However, as noted elsewhere, due to the limited applicability of bilateral and multilateral instruments, the utilisation of shared water resources creates tension between national sovereignty and transboundary water cooperation. This is based on the fact that a territorial State can generally assert its sovereignty over the water on its territory.91 But the right to permanent sovereignty over natural resources, whose status as part of customary international law has been confirmed by the ICJ,92 is not an absolute one. It is limited by other rules of international law that protect interests of other States or of international community or by rules that encompass new concerns, including sharing of resources93 —for example the rule of equitable utilisation and obligation not to cause significant harm. And the question of this chapter was whether the principle of solidarity may be utilised as another source of such limitations. However, the above-presented fields and concepts of international law where the principle of solidarity is manifested as such do not suffice for qualifying the latter as a standalone obligation for States—applicable as such also in other fields, including international water law. The presence of the principle is quite fragmented and very the Special Rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, UN Doc A/HRC/24/44. 88 See for example McIntyre 2012, pp. 7–8. 89 The United Nations Committee on Economic, Social and Cultural Rights in its General Comment No. 15 (2002) as well as the Human Rights Council derived the right from the right to an adequate standard of living and from the right to the enjoyment of the highest attainable standard of physical and mental health. 90 Beyerlin and Stoutenburg 2013, para 98. For a brief overview of the roots of the solidarity principle in domestic law and policies, see Nedeski 2020, p. 7; Campanelli 2011, para 2; or Carozza and Crema 2019, pp. 3–4. 91 Sindico 2021, p. 178. 92 ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement, 19 December 2005, 2005 I.C.J. Reports 168, para 244. 93 Schrijver 2008; Pereira and Gough 2013, p. 44; Tzimas 2019, p. 345.

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often its manifestation does not bear strong normative value, especially where it is referred to explicitly. For example, the already mentioned Water Charter of the Niger Basin operates with the principle of solidarity in relation to the objectives of the treaty in its Article 2. The already mentioned United Nations Convention to Combat Desertification from 1994 also contains an explicit reference to the principle of solidarity in its Article 3 letter (b) and Article 4 para 1 letter (b) and enjoys almost universal membership (currently 197 Parties) which is noteworthy. However, in terms of the hypothetical distillation of the solidarity principle as a standalone rule, this wording used in these provisions is again quite ambiguous and soft.94 The principle of solidarity therefore often works as an interpretative standard or guidance in several branches of international law.95 In another instances, typically non-binding instruments or treaties where the principle of solidarity is only implicitly embraced, its role may be understood also as defining the goal to be achieved by the particular obligations or recommendations. For example, Recommendation 91 of the Mar del Plata Action Plan96 utilises the right of States to equitably utilise shared resources as the means to promote bonds of solidarity and cooperation (emphasis added). Thus, regarding its normative status, it might be apposite to relate the principle of solidarity to what Dupuy linked to the normative concept of sustainable development. Due to their generality and vagueness, the binding character of such concepts remains rather uncertain outside the scope of complementary sources, especially treaty law. These should therefore be viewed from the perspective of their normative potential rather than from the perspective of their binding legal status.97 This postulate seems to be confirmed by the fact that where the solidarity principle is given some normative materialization in the presented treaty-based instruments, we can see a certain level of specificity, technicality or detail in the relevant clauses. See for example the rule of equitable utilisation as defined in Article 5 the 1997 United Nations Watercourses Convention or the mechanisms of financial assistance in other instruments. Thus, the correct view seems to be that solidarity is embedded in existing international water law norms and that is achieved by implementation and observance of these norms.98 If that interpretation is correct, it again supports the view that solidarity does not 94

Using phrases such as “the Parties should develop (..)” or “(..) Parties undertake to (..) promote regional cooperation and integration (..).” However, see also the different view of Campanelli, who understands the Convention as at least one case where solidarity is “a true hard law obligation”. In Campanelli 2011, para 22. 95 Wellens 2010a, pp. 43, 45–46; Wolfrum 2013, p. 409, or Tzimas 2019, pp. 334, 356, who is also presenting the view that principles of international law may play different roles in various branches of international law. 96 Mar del Plata Action Plan (adopted at the 1977 United Nations Water Conference). 97 Dupuy 2008, p. 462. 98 See for example the view of C. Leb that “Inter-generational equity is promoted through the concurrence of the principles of equitable and reasonable utilisation and environmental protection, as well as through the precautionary approach; furthermore, it necessitates international cooperation to achieve its objective.” and that “concurrence of existing principles in support of sustainable development for the benefit of future generations imposes a duty on the present generation to show solidarity with those future generations and to cooperate in this regard.” Leb 2013, p. 96.

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operate as a standalone source of obligations but as an element of already existing ones. Even if one accepts the view of the independent expert Rizki that principle of solidarity is general principle of law, that will relate rather to the field of international human rights law where elements of solidarity are manifested in vast body of norms, often with universal scope of application and wide reflection in domestic laws of States (namely constitutional), as demonstrated in the report.99 It is hard to draw the same conclusions for the applicability of standards of conduct related to transboundary water that are different partially in their content and context on one hand, and that are meeting strong reluctance of States in terms of acceptance, on the other hand. It is true that contemporary international law is more and more based on cooperation between States as the range of interactions between States in international relations is gradually expanding. Also the above-presented manifestations of the principle of solidarity rank among elements that moved the contemporary international law from the strict requirements of the traditional Westphalian system, with its main pillars of State sovereignty, equality of States, non-intervention and State consent as the only valid source of international legal obligation. There is indeed a shift away from an international community organized on the basis of independent and sovereign territorial entities towards a system of the increasing interdependence between States and other subjects of international law pursuing common goals such as peace and security and the protection of the environment.100 However, there still needs to be a certain level of acceptance by States for a norm of conduct to become part of positive law. But the fact is that even in the fields of international relations where even the mere self-interest of States dictates to collaborate (rules related to the prohibition and prevention of genocide or efforts to reduce air pollution), States are reluctant to fully commit themselves in binding norms for the benefit of the international community.101 Moreover, as presented, the principle of solidarity is perceived as going beyond the mere cooperation between States, thus arguably operating as an advanced or qualified standard of international cooperation.102 If this view is correct, the claim for the principle of solidarity as a standalone source of obligations in international law would also be hard to reconcile with the fact that even the general obligation to cooperate is not accepted by some authors as part of general international law outside the scope of treaty law.103 Thus, the principle of solidarity as such does not 99

Ibid. Grote 2006, para 15. 101 Villalpando 2010, pp. 387–419. 102 See Kenig-Witkowska 2021, who describes the principle of solidarity as “qualifier for the classic principle of cooperation in the field of environmental protection”. However, there is also a view that solidarity should be completely distinguished from the concept of cooperation. See Campanelli 2011, paras 11–13. 103 Wolfrum 2010, paras 22 and 40. However, elucidation of the customary status of the general duty to cooperate and its content with respect to shared water resources would require a thorough analysis. The existence of the duty in customary international law seems to be less controversial 100

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oblige States to action or inaction nor it allow them to act in a way that interferes with sovereignty and rights of other States. Already more than 20 years ago MacDonald was cautious to state that solidarity had achieved the stage of development as universal principle of international law.104 Also other authors deny that the principle of solidarity is a legal principle from which it would be possible to draw a clear set of obligations for States.105 And even today, despite the fact that it operates within several fields of international law of growing importance, as demonstrated above, it still has not developed into a standalone source of obligations for States in sense of Article 38 of the Statute of the ICJ. The hesitation of the doctrine saturated by the fragmented State practice of the utilisation of the solidarity principle in a variety of the fields of international law (albeit important ones) supports the qualification of the principle as merely emerging.106 Despite the legal vacuum in the legal regime for utilisation of groundwater, and the voices to distil from the above-presented sectoral manifestations of the principle of solidarity a general principle applicable and prescriptive in all fields of international law,107 the principle of solidarity does not stand as a distinct legal rule establishing rights and obligations between States in international law in general, nor in international water law in particular. The question arises as to what is the normative relevance of the principle of solidarity, so often included (implicitly or explicitly) in international instruments? Since the references to and manifestations of solidarity principle are inherent to specific fields of international law, the notion of solidarity bears an important significance for the interpretation of the particular document or norm where it is contained.108 Furthermore, as already indicated, the principle of solidarity from the more general perspective effectively serves as a catalyst of the development of normative concepts such as sustainable development, common but differentiated responsibilities, or inter-generational equity.109 These concepts then in turn lay the ground for broadening and consolidating the system of multilateral environmental agreements.110 For example, it is claimed that reference to the principle of solidarity effectively contributed to the adoption of the 2015 Paris Agreement.111

than the customary status of the rule of equitable utilisation. But the former is rather an abstract obligation that is made operational through more specific obligations (the duty to notify, to consult and negotiate, as well as the duty to exchange information)—see Leb 2013, p. 81. 104 MacDonald 1996, pp. 301. 105 For example Campanelli 2011, at para 22; Wolfrum 2006, p. 1100; Carozza and Crema 2019, p. 14. 106 Wellens 2010b, p. 35. 107 Shelton 2010, pp. 163 et seq—record of discussion between Dr. Shelton, P. Carazo, C. Tomuschat and others, following the presentation by D. Shelton on Intergenerational Equity. In the same spirit, see the proposition by B. O. Bryde at p. 52, following the presentation by Wellens (2010b). 108 Campanelli 2011, para 22; Wellens 2010a, pp. 43, 45–46; Wolfrum 2013, p. 409, or Tzimas 2019, pp. 334, 356. 109 Beyerlin and Stoutenburg 2013, para 98; similarly also Kenig-Witkowska 2021. 110 Beyerlin and Stoutenburg 2013, para 98. 111 Kenig-Witkowska 2021.

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4.8 Conclusion Despite the growing pressure on the critically important resource for the whole population and its potential to trigger conflicts between States, the utilisation of transboundary groundwater is insufficiently addressed by public international law. It is a controversial question whether important rules such as the rule of equitable utilisation, obligation not to cause significant harm and the duty to cooperate (and its elements) form part of customary international law in relation to groundwater and what is their specific content in this respect. Based on the links (in terms of content) to the rule of equitable utilisation and to the notion of intergenerational equity, this chapter sought to analyse whether the principle of solidarity contributes to the closure of this legal gap by making some elements of conduct that are intrinsic to the above-mentioned norms applicable in context of groundwater via its application as a standalone rule. With respect to the content of these concepts, this chapter identified interconnections between the concepts of solidarity, intergenerational equity and equitable utilisation. However, with respect to the normative status of the principle of solidarity, the chapter concluded that this principle as such does not oblige States to action or inaction nor it allow them to act in a way that interferes with sovereignty and rights of other States. The principle of solidarity is, in various fields of public international law an intrinsic part of a non-binding instrument or is even embraced in several binding norms, but it is not a standalone source of obligations. Instead, the applicability of this principle is reliant on the applicability of the substantive norms where it is embraced. In the context of technically and legally complex phenomenon of transboundary groundwater, the principle of solidarity would also need to be operationalised by more specific rules (as is arguably the case with the duty to cooperate) such as the equitable utilisation rule. In any case, as Wolfrum has put it, the principle of solidarity is one of the most interesting witnesses of the “transformation of international law into a value-based system of international legal order.”112 Several experts claim that as this principle in fact governs certain areas of international law,113 it has a strong relevance in the interpretation of relevant concepts and rules.114 The principle of solidarity has a direct impact on the interpretation of international treaties and on the development of the sources of international law in general.115

112

Campanelli 2011, at para 23, referring to Wolfrum 2006, p. 1087. Wolfrum 2013, p. 403. 114 Wellens 2010a, pp. 43, 45–46; Wolfrum 2013, p. 409 or Tzimas 2019, pp. 334, 356. 115 Wolfrum 2011, at para 12. 113

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Leb C (2013) Cooperation in the Law of Transboundary Water Resources. Cambridge University Press, Cambridge Lepard B D (2010) Customary International Law. A New Theory with Practical Applications. Cambridge University Press, Cambridge MacDonald R S J (1996) Solidarity in the Practice and Discourse of Public International Law. Pace International Law Review 8:259–302 McCaffrey S C (2001) The Law of International Watercourses. Non-Navigational Uses. Oxford University Press, Oxford McIntyre O (2012) The Human Right to Water as a Creature of Global Administrative Law. Water International 37(6):654–669 Mechlem K (2010) The Max Planck Encyclopedia of Public International Law—Groundwater Protection. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019 9231690-e1944. Accessed 11 November 2019 Milanés-Murcia M (2019) The application of the general principles and key obligations to internationally shared groundwater. In: McCaffrey S C et al (eds) Research Handbook on International Water Law. Edward Elgar, Cheltenham, pp 147–165 Minnerop P, Roht-Arriaza N, Aminzadeh S C (2006) The Max Planck Encyclopedia of Public International Law—Solidarity Rights (Development, Peace, Environment, Humanitarian Assistance). www.opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019 9231690-e1470?prd=MPIL. Accessed 15 October 2021 Nedeski N (2020) Concepts of Solidarity in the International Law of Obligations. Moving Beyond a One-Side Conceptualization Solidarity. Amsterdam Law School Legal Studies Research Paper No. 2020-11 Pereira R, Gough O (2013) Permanent Sovereignty Over Natural Resources in the 21st Century: Natural Resource Governance and the Right to Self-Determination of Indigenous Peoples Under International Law. Melbourne Journal of International Law 14(2):1–45 Scanlon J et al (2004) Water as Human Right? IUCN Environmental Policy and Law Paper No 51 Schrijver N J (2008) The Max Planck Encyclopedia of International Law—Permanent Sovereignty over Natural Resources. www.opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978 0199231690-e1442?prd=EPIL. Accessed 15 October 2021 Shelton D (2010) Intergenerational Equity. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 123–162 Sindico F (2021) National Sovereignty Versus Transboundary Water Cooperation: Can You See International Law Reflected in the Water? American Journal of International Law Unbound 115:178–182 Tanzi A (2019) The Global Water Treaties and their Relationship. In: McCaffrey S C et al (eds) Research Handbook on International Water Law. Edward Elgar, Cheltenham, pp 44–58 Tignino M (2010) Water, International Peace, and Security. International Review of the Red Cross 92(879):647–674 Titi C (2021) The Function of Equity in International Law. Oxford University Press, Oxford Tzimas T (2019) Solidarity as a Principle of International Law: Its Application in Consensual Intervention. Groningen Journal of International Law 6(2):333–359 UN General Assembly (2016) 71st Session, UN Doc A/C.6/71/SR.18—Statement Made by Argentine on Behalf of Brazil, Paraguay and Uruguay. Available at https://digitallibrary.un.org/record/ 864280/files/A_C-6_71_SR-18-EN.pdf?ln=fr. Accessed 4 October 2022 UN News (2008) At World Economic Forum, Ban Ki-moon Pledges Action on Water Resources. https://news.un.org/en/story/2008/01/246802-world-economic-forum-ban-ki-moonpledges-action-water-resources. Accessed 20 February 2020 Villalpando S (2010) The Legal Dimension of the International Community: How Community Interests Are Protected in International Law. European Journal of International Law 21(2):387– 419

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Weiss E B (2021) The Max Planck Encyclopedia of Public International Law—Intergenerational Equity. www.opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019923 1690-e1421?prd=MPIL. Accessed 12 October 2021 Wellens K (2010a) Discussion Following the Presentation by Karel Wellens. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 39–54 Wellens K (2010b) Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg, pp 3–38 Wolfrum R (2006) Solidarity among States: An Emerging Structural Principle of International Law. In: Dupuy P M et al (eds) Common Values in International Law. Essays in Honour of Christian Tomuschat. Engel, Kehl, pp 1087–1101 Wolfrum R (2010) The Max Planck Encyclopedia of Public International Law—International Law of Cooperation. www.opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019923 1690-e1427?rskey=jZc6Pl&result=1&prd=OPIL. Accessed 11 October 2021 Wolfrum R (2011) The Max Planck Encyclopedia of Public International Law—Sources of International Law. www.opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-978019 9231690-e1471?prd=MPIL. Accessed 11 October 2021 Wolfrum R (2013) Solidarity. In: Shelton D (ed) The Oxford Handbook of International Human Rights Law. Oxford University Press, Oxford, pp 401–419

Mgr. Petr Stejskal LL.M. (UvA), Ph.D., lecturer and researcher at the Department of International and European Law at the Faculty of Law, Palacky University Olomouc, Czech Republic, member of the affiliated Centre for International Humanitarian and Operational Law, paper forming the basis for this chapter prepared as part of internal grant n. 457100014/30.

Chapter 5

Global Environmental Issues and International Solidarity: Between Myth and Reality Vonintsoa Rafaly

[S]ans ‘valeurs’ morales supérieures, le droit international n’est qu’une mécanique privée d’âme. Prosper Weil (Weil 1982, p. 18)

Contents 5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Solidarity: A Mysterious Concept Driving the Evolution of International Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Multilateralism, the Social Foundation of Solidarity . . . . . . . . . . . . . . . . . . . . . . . 5.3 Solidarity, A Cornerstone for Stability in International Law . . . . . . . . . . . . . . . . . . . . . . . 5.4 Solidarity: Towards Normative Creativity as a Driver for Change . . . . . . . . . . . . . . . . . . 5.5 Beyond the State Paradigm: The Rise of Non-State Actors’ Input . . . . . . . . . . . . . . . . . . 5.6 Non-State Actors’ Involvement in Decision and Lawmaking Processes . . . . . . . . . . . . . 5.7 Non-State Actors: A Safeguard for Effective Implementation of International Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The international society moves towards an international community—a sociological unit where common concerns are the core element. This evolution raises the question of how solidarity has impacted the international legal framework. This chapter draws on the concept of solidarity as a core normative ideal underpinning the development of modern international law. It investigates the influence of the common interest on international solidarity and the evolution of international law. First, focusing on environmental issues, it elaborates on international solidarity as the mysterious concept driving the evolution of international law to address global challenges. Then, it analyses how solidarity has shaped the legal framework, both at the normative and institutional levels.

V. Rafaly (B) School of Business, Economics and Law, University of Gothenburg, Gothenburg, Sweden © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_5

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Keywords Solidarity · Global challenges · International community · Soft law · Anthropocene era · Non-States actors · Climate change · Adaptative regime

5.1 Introduction The Rio Declaration ascertains that the Earth is “our home”.1 Nowadays, rapid and often unpredictable effects of global issues threaten life conditions in “our home”: climate change, loss of biodiversity, natural disasters, pandemics and many more. According to scientists, we are moving toward the Anthropocene Era, a new, uncertain and ever-changing geomorphological situation, different from the stable situation during the Holocene.2 This transformation raises the general question of international law adaptation amidst change. During the Holocene Era, international law developed to ensure the stability of the legal order through the preservation of State sovereignty and sovereign rights. International law was meant to facilitate the avoidance of conflicts and, maintain peace, foster certainty and predictability. The Anthropocene Era necessitates a re-examination of the traditional conception of international law. This is because global environmental issues transcend States’ boundaries. An ever-changing environmental situation is likely to require increased cooperation and interdependence between States for the sake of mankind, but not more for States’ interests. In her reflection on the evolution of environmental law, Martine Rémond-Gouilloud argues that the “heuristic of fear” is the foundation of the paradigm shift in the protection of the environment towards the consideration of the human condition.3 Uncertain environmental risks, whilst unpredictable and most often have irreversible consequences, likely to cause States utilise any means to save themselves—and by extension, humanity—from the avoidable man-made fate. Therefore, solidarity becomes a reference point in protecting the environment in relation to the increasing global environmental challenges and issues. Rapid and uncertain global challenges necessitate a ‘turn down shift’ from the State sovereignty paradigm to a more “human-being approach”4 with a more adaptive

1

Rio Declaration on Environment and Development, adopted 14 June 1992, 31 ILM 874 (1992 Rio Declaration), Preamble. 2 The Holocene comprises a long period of relative environmental stability which facilitates the development of human civilization. Unlike the Holocene, the Anthropocene is characterized by change, uncertainty, and considerable instability, due to human impact on the Earth system. See Zalasiewicz et al. 2012. 3 Rémond-Gouilloud 1998, pp. 11–12. 4 In one of its decisions, the International Criminal Tribunal for former Yugoslavia stated that ‘[a] sovereignty-oriented approach [of international law] has been gradually supplanted by a humanbeing-oriented approach. Gradually the maxim of roman law hominum causa omne jus constitutum est (all law is created for the benefit of human beings) has gained a firm foothold in the international community as well’. See ICTY, Prosecutor v. Tadi´c, Decision on the Defence Motion for Interlocutory Motion for Appeal on Jurisdiction, 2 October 1995, IT-94-I-AR72.

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and transformative legal regime.5 At the core of this change, international solidarity can be seen as a guiding principle. The Preamble of the United Nations Framework Convention on Climate Change (UNFCCC) declares that the Earth’s climate is a “common concern of mankind”.6 It is recognised that “the solution to the climate change problem depends upon the cooperation of all States”7 and, more broadly, the participation of non-State actors. This idea of solidarity is, at first sight, quite vague. However, it is a principle that guides international law toward considering common concerns to address global issues. In a fragmented international society, defining solidarity in international law is a difficult task per se. International solidarity bears a close relationship to other concepts such as common interest or community interest,8 the common good, the international community,9 and even humanity. However, those concepts are integrated into international legal instruments albeit with roots in religion, philosophy, sociology and politics. The conception of solidarity is two folds. Firstly, it is understood as “a principle of cooperation which identifies, as the goal of joint and separate State action, an outcome that benefits all States or at least does not gravely interfere with the interests of other States”.10 Here, State interests—individually or as a community is emphasised. Secondly, solidarity entails goals that go beyond the sum of interests of all States.11 In that sense, international solidarity expresses solidarity 5

Such evolution is already noticeable. This can be illustrated in decision-making process, for example, where the recourse to the Conference of Parties under international environmental agreement, help to make decisions faster; or the use of the tacit acceptance procedure at the International Maritime Organization (IMO). This evolution foreshadowed this moving toward the Anthropocene epoch as the international law is now more dynamic than it was before, where international norms and rules were more or less stable during the past centuries. 6 United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107 (UNFCCC), Preamble para 1. 7 Horn 2009, p. 170. 8 On that point, Bruno Simma referred to all States when talking about ‘community interests’. He describes ‘a consensus according to which respect for certain fundamental values is not to be left to the free disposition of States individually or inter se but is recognized and sanctioned by international law as a matter of concern to all States’. Simma 1994, p. 233. 9 There are two definitions of the notion of ‘international community’. On the one hand, legal scholars define it as the “community of nations”, composed by all existing States that are involved in international relations (see Higgins 1963, pp. 11–12; Wolfrum 2011). On the other hand, some scholars define the ‘international community’ as a group sharing the same fundamental values, going beyond the sum of all States. 10 MacDonald 1996, pp. 259–260. 11 Santiago Villalpando refers to “identical community interests”. He pointed out that, “internationally, there is no one collective interest, but many (as many as there are States) identical interests having a collective content”. Such single collective interest would exist only if there is a single authority, or entity, that fulfil the collective interests of States. Even if such an entity exists, States do not renounce their identical community interest, which they continue to hold. See Villalpando 2010, p. 394.

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vis-à-vis other States but also vis-à-vis mankind. Overall, solidarity is inherent to the existence of an international community,12 considered the social ground, be it the sum of all States or a sense of community that transcends the idea of State. The consideration of international solidarity changed over time as the international community evolved. During the Middle Age, the development of maritime activities, crusades, and expeditions worldwide influenced relations between peoples. Although these relationships were mainly based on trade and exchange, they outlined international relations. At that time, European States were considered to compose the international community, and solidarity was connected to their ‘civilising mission’.13 From the Peace of Westphalia to the end of the First World War, cooperation became the guiding principle in international affairs. This led to the international law of coexistence, and solidarity is evidenced by separate State actions to maintain peace, security, and legal order. During the post-Cold War era, security concerns gave way to common—or shared—concerns. It led to an ever-increasing States interdependence and thus States cooperation to solve issues that could only be addressed through collective actions, such as protecting the environment.14 Here, the traditional conception of international law, driven by State sovereignty and sovereign rights, became meaningless and ineffective in addressing common concerns. It meant a re-imagining of international law in light of global environmental challenges that increasingly threaten international peace and security and extensively the living conditions on Earth for the present and future generations. This chapter investigates whether solidarity has been reflected in the evolution of international law in addressing global environmental challenges. Thus, it tries to answer the following question: to what extent does solidarity impact the evolution of international law concerning global environmental issues? Section 5.2 elaborates on the assertion that international solidarity is, first and foremost, an abstract concept. Still, it exists in the legal system as something between a value and a principle. Then, the analysis shifts to how solidarity has shaped the international legal framework at normative and institutional levels. Section 5.3 examines the recourse to soft law in environmental protection regimes to establish dynamic and adaptive norms and rules. Section 5.4 is concerned with the increasing role of non-State actors in enhancing solidarity in international environmental law.

12

As Emer de Vattel rightly pointed out, international solidarity is the condition for the existence of a community of States. See de Vattel 1758, pp. 1–16. 13 MacDonald 1996, p. 261. 14 In that sense, it is interesting to connect the increasing collective action to what-is-called “law of solidarity”, a third generation of international law, co-existing in parallel with the law of co-existence and the law of cooperation. See Wellens 2005, p. 804.

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5.2 Solidarity: A Mysterious Concept Driving the Evolution of International Environmental Law International law is considered a set of norms and rules governing international relations for common purposes.15 It constitutes a “normative order” and a “factor of social organisation”16 between the subjects of international law. Its very nature is to be the source of rights and obligations for the subjects of international law. The protection of common goods (peace and environment) and the achievement of common goals (protection of the environment, sustainable development, climate change mitigation) enhanced the integration of solidarity in the evolution of international law. The increasing awareness of States’ interdependence concerning global environmental challenges and their willingness to protect the environment was driven by three main factors: the significance of the protection of the environment in States’ mutual relations, the particular ethical value attached to the protection of the environment for humankind and the unique vulnerability of the protection of the environment.17 To illustrate solidarity, these three factors are grounded in international law through three criteria:18 legal relationships involving State interactions; a common purpose; or a common interest protected or conferred by norms and rules with institutionalisation for implementation and enforcement.

5.2.1 Multilateralism, the Social Foundation of Solidarity Multilateralism represents a means of negotiation between more than two parties, and it exemplifies a collective action towards the realisation of shared purposes. The development of multilateral cooperation relates to the increasing interdependence between States, and the development of shared interests, especially in facing global challenges.19 Solidarity derives from “a worldwide social consciousness at work today that ‘communalises’ and ‘publicises’ international relations far beyond the traditional 15

As the expression of the Lotus dictum, international law governs “relations between independent States … in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims”. PCA, Island of Palmas (Netherlands v. United States), Award, 4 April 1928, 1928 RIAA 2, p. 870. In the United Nations Charter, this common good refers to the international peace and security, for example. 16 Rousseau 1970, pp. 25–26. 17 Those factors were developed by Santiago Villalpando, to demonstrate how community interest have been incorporated into international law in relation to the preservation of public goods. Villalpando 2010, p. 396. It is worth noting that the environment, here, is considered as a public good. Therefore, the protection of the environment is a common good or value that ensures the preservation of a public good. 18 See Dupuy 1979, pp. 9–232. 19 Devin 2010, p. 34.

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rituals of governmental interactions”.20 It means that international cooperation derives mainly from the existence of shared interests. To that extent, shared values tighten the boundaries between law and morality.21 Some values that pursue common purposes and address common concerns have been integrated into the international legal system. Those values became fundamental and inherent to international law and cannot be departed from—even if they might not be found explicitly in hard law.22 For example, the principle of pacta sunt servanda which refers to the “duty of a state to not defeat the object and purpose of a treaty which it has signed or approved represents a duty of solidarity to other states parties. It also represents a duty of collective solidarity to the international collectivity of States and the institutional framework created by the treaty”.23 The United Nations General Assembly has recognised that the international order requires the realisation of “[s]olidarity, as a fundamental value, by which global challenges must be managed in a way that distributes costs and burdens fairly, in accordance with basic principles of equity and social justice […].”24 Solidarity has become a core principle in addressing global environmental challenges through joint rights and obligations and State interactions.25 Solidarity is a means to achieve common objectives through differentiated obligations. Both in substantive and procedural law, the concept of common but differentiated responsibilities and intergenerational equity illustrate the relationship between solidarity and differentiated obligations. The principle of common but differentiated responsibilities, for example, is seen in the setting of a higher standard for developed States,26 financial and technological 20

Simma 1994, p. 234. Jouannet 2008, p. 820; Wellens 2010, p. 6. This link between law and morality exists since the birth of international law, when Grotius, in his work, distinguished two types of law in the international arena: on the one hand, the natural law (divine) and, on the other hand, the positive law, which derives from the will of States. Even they are distinct in their very nature, they are linked as, from his point of view, the natural law takes precedence over voluntary law, which was the source of States respect to international law. See Grotius 2005. 22 It has been emphasized that “contemporary international law cannot claim anymore to be valuefree, even if the precise meaning and consequences of those values have to be determined in each and every single case and might not be found at all in hard cases”. Paulus 2001, pp. 751–752. Commenting the Nicaragua case before the ICJ, J. Tasioulas noted that “by making explicit, and reflectively articulating, the genuine reasons on which decisions are based […] self-consciously value-based adjudication can enhance, rather than corrode, the realization of the rule of law”. Tasioulas 1996, pp. 104–105. 23 MacDonald 2005, p. 853. 24 UN General Assembly 2005, para 4(f). 25 This is the so-called negative and positive solidarity. See Wellens 2010, p. 4. The protection of the environment is the main purpose of the international environmental law. Regarding the increasing number of global challenges, such as the loss of biodiversity or the effects of climate change, the consideration of the environmental requirements became crucial to set rules and standards governing human activities. Therefore, such environmental requirements guarantee a specific cohesion at the global level, entailing the so-called international solidarity, and therefore shared values among the international community. 26 UNFCCC, Article 4(3). 21

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assistance to developing States,27 and a means for developing States to put pressure on the developed ones to implement their commitments.28 Solidarity will remain a utopia unless it is developed by reference to the reality of international actions.29 The end of the 20th Century marked the decline of the international legal framework as a State-based system. The adoption, in 1992, of major global instruments highlighted how the protection of the environment as a common good and value and thus promoted an inclusive international legal framework.30 This is further illustrated through the development of regionalism in international environmental law. Regionalism is regarded as “a multilateral and multidimensional process of regional integration, including economic, political, social and cultural aspects among the States themselves but also among States and other non-governmental entities”.31 It brings together States and non-State actors in implementing and enforcing norms and rules established globally. The regional framework aims at implementing those international norms and rules according to regional specificities. Although regionalism is splitting international solidarity on the regional level, it strengthens the effectiveness of international norms and rules and, at the same time, creates a smaller solidarity group to better achieve common goals. Numerous initiatives have been developed at the regional level to tackle global environmental issues and challenges. For example, in the Arctic region, melting sea ice due to climate change is likely to open some areas to shipping and the discovery of new commercially attractive fisheries resources. The preservation of its biodiversity in the absence of an overarching governance instruments led to the unique maritime and environmental regime applicable in the Arctic. In 2018, the Agreement on Fisheries in the Central Arctic Ocean32 was adopted by Arctic coastal States and distant fishing nations to protect fisheries resources in the high seas part of the Central Arctic Ocean. This Agreement is unique. It was adopted through a brand-new cooperation platform to respond to a foreseeable future challenge in the Arctic, circumventing traditional bureaucracy and politics within international organisations. Although the Agreement serves the interest of Arctic States to secure this region from future ‘biodiversity rush’, it serves, more importantly, a common concern to conserve and sustainably use biodiversity 27

UNFCCC, Articles 4(1)(c) and 4(3). The conditional obligation of developing States under the Article 4(7) of the UNFCCC, to comply with the framework Convention is a means to put pressure on developed States to respect their commitment. See Birnie et al. 2009, pp. 134–135. 29 See McCorquodale 2004, p. 478. The author stressed that “conceptual or philosophical ideas in international law are strengthened if developed by reference to the reality of international actions.” 30 For example, the UNFCCC; the United Nations Convention on Biological Diversity, opened for signature 5 June 1992, entered into force 29 December 1993, 31 ILM 818 (CBD); the 1992 Rio Declaration. 31 Kluˇ cka 2017, p. 32. 32 Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean, opened for signature 3 October 2018, entered into force 25 June 2021. Available at https://eur-lex.eur opa.eu/resource.html?uri=cellar:2554f475-6e25-11e8-9483-01aa75ed71a1.0001.02/DOC_2&for mat=PDF. Accessed 2 May 2022. 28

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beyond national jurisdiction. The Parties to the Agreement support solidarity through their regional initiatives, considering the shared consciousness that protecting and preserving the Arctic marine environment is of common interest.33

5.3 Solidarity, A Cornerstone for Stability in International Law The international legal system carries the structures and systems of society through time, inserts the common interest of society into the behaviour of its members, and establishes future legal pathways through theories, values and purposes of the international society.34 When the structure changes or its stability is threatened, the law evolves to meet new expectations and adapt. The increasing awareness of environmental degradation, the loss of biodiversity, and the adverse effects of climate change transformed the rules governing the protection of the environment. Solidarity is the driving principle in this development, as the international community is “unie par des facteurs de cohésion spécifiques”.35 The growing awareness surrounding the environmental risks for mankind—for present and future generations—triggered the development of new norms and standards36 and enhanced social interaction at the global and regional levels. In that regard, the 1972 Stockholm Declaration on the Human Environment proclaimed that defending and improving the human environment for present and future generations have become an imperative goal for mankind.37 Therefore, solidarity is the underlying factor for developing international cooperation to fulfil common interests in protecting the environment.38 Concerning the conservation of marine living resources on high seas, for example, the 1958 Geneva Convention on high seas and the conservation and management

33

Kiss and Beurrier 2004, p. 145. Allot 1999, p. 31. 35 Kolb 2003, p. 25. 36 ICJ, Gabˇ cíkovo-Nagymaros Project (Hungary v. Slovakia) Judgment, 25 September 1997, 1997 I.C.J. Reports 7, para 140. 37 Stockholm Declaration of the United Nations Conference on the Human Environment, adopted 16 June 1972, UN Doc A/Conf.48/14, 11 ILM 1416, para 6 (1972 Stockholm Declaration). 38 The Preamble states that: “A growing class of environmental problems, because they are regional or global in extent or because they affect the common international realm, will require extensive cooperation among nations and action by international organizations in the common interest.” See Principles 21 and 22 of the 1972 Stockholm Declaration. In its 1975 Principles concerning Transfrontier Pollution, following the 1972 Stockholm Declaration, the Organization for Economic Cooperation and Development (OECD) refers to “a spirit of international solidarity” when States cooperate for preventing and controlling transfrontier pollution (14 ILM 242). See also Simma 1994, p. 244. 34

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of marine living resources39 initiated the codification of the freedom of the sea principle. This principle was driven by an individualistic conception of open access to marine living resources in areas beyond national jurisdiction. The freedom of the sea principle evolved with the rising consciousness of fisheries resources’ depletion and, thus, the need for resource conservation. Under the United Nations Convention on the Law of the Sea (UNCLOS),40 the open-access principle moved toward equal access to the high seas living resources for all States,41 taking into account some States’ rights and obligations. On the one hand, this equal access reflects the notion of equality of interest. On the other hand, States should cooperate for common purposes of conserving and sustainably using marine living resources, considering the various interests at stake. In addition, institutionalisation is a crucial criterion for securing the stability of international law. International institutions are indispensable in a globalised world as “they facilitate cooperation across boundaries, allowing for the identification, discussion and resolution of difficulties in a wide range of subjects”.42 International organisations allow the adoption of rules, patterns of conduct, and compliance mechanisms more rapidly. The rapidly growing number of international organisations, both at the global and regional level, shows the growing interdependence between States and the need for cooperation to deal with common concerns. More specifically, the proliferation of international institutions dealing with environmental concerns has paved the decay of State sovereignty in addressing global challenges. This is illustrated through the development of decision-making processes. Unanimity, in decision-making, is the basic principle following States sovereignty. The latter implies that States are bound only by rules they had agreed to. However, increasing globalisation and the appearance of global issues requiring more dynamic decision-making in international organisations give rise to the development of two tendencies. On the one hand, the establishment of majority voting avoids the paralysis of negotiation, because a State can impose its veto to block a proposal. On the other hand, new mechanisms are developed where States’ sovereignty in decision-making is ‘diluted’. This is the case of the adoption of declarations or resolutions. State consent is not essential in those cases, especially when obligations are due to the international community. The relevant rules and norms have a self-normative value without express consent because they concern common values for the international

39

Convention on Fishing and Conservation of the Living Resources of the High Seas, opened to signature 29 April 1958, entered into force 20 March 1966, 559 UNTS 285. 40 United Nations Convention on the Law of the Sea, opened to signature 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3 (UNCLOS). 41 See UNCLOS, Articles 116 to 119. 42 Shaw 2014, pp. 932–933.

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order.43 Several rules guarantee the importance of fundamental values and interests shared by the entire international community.44 Those rules could become binding for all States outside the sphere of pure States voluntarism because the purpose is to preserve the fundamental values shared by the international community.45 As PierreMarie Dupuy argues, the obligations arising from those rules are “assumées par les États au titre de l’affirmation – même partiellement fictive – de valeurs réputées communes à tous”,46 entailing non-formalised acceptance. This is the case concerning the work of international organisations in addressing global environmental issues. International organisations illustrate the existence of common interests and international solidarity.47 Analysing the lawmaking processes within international organisations nowadays shows that the principle of consensus is decreasing. The promotion of environmental protection as a common concern questions the contractual model of international lawmaking that safeguard State sovereignty. As critical common interest is at stake, increasing the well-being of each State—through the consensual model—can no longer prevail over the well-being of the majority of States.48 The establishment and implementation of international environmental norms and rules no longer depend only on State’s consent. This was especially the case when the Cancun Agreements, in 2010, were adopted by declaring consensus and thus overruling Bolivia.49 Such a process can be seen as promoting solidarity. The “quasi-consensus” was necessary to go forward in the negotiation, and the adopted agreements “have served to define the course of the climate change regime”.50 Additionally, non-State actors’ influence on the lawmaking process—and the effects thereof—impact States’ conduct vis-à-vis protection of the environment. For example, treaty secretariats, subsidiary bodies and conferences of Parties “develop expertise, foster scientific know-how, survey compliance, promote cooperation, determine funding, and push administrative rule-making as a phenomenon in international environmental law”.51 They contribute to dynamizing international environmental law through the day-to-day implementation and development of the general legal framework. 43 Rozakis 1975, pp. 1–2. To that extent, Prosper Weil refers to a less stringent version of State consent within the voluntarist scholarship. Thus, the general State consent to the entire international law is enough to make it legally binding for that State, without a required consent for each international rules and norms. See Weil 1996, pp. 69–70. 44 Trindade 2014, p. 158. 45 Dominicé 2013, p. 51. See also Institut de Droit International 2005. 46 Dupuy 2000, p. 217. 47 Wyler and Papaux 2014. 48 In 1994, Christian Tomuschat warned about the development of legal norms and processes that develop obligations for States without their consent. See Tomuschat 1994. 49 The core elements of Bolivia’s objection concerned the insufficiency of discussion on the content, ambition, and characteristic of the regime established by the agreements. See Rajamani 2011, pp. 515–516; French and Rajamani 2013. 50 Krisch 2014, p. 17. 51 Drumbl and Ulhíˇrová 2021, p. 14.

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5.4 Solidarity: Towards Normative Creativity as a Driver for Change The rapid and often unpredictable effects of global environmental issues induced the development of norms and rules towards different legal mechanisms and tools, including soft law. In his concluding remarks during the symposium on Solidarity: A Structural Principle of International Law,52 Rüdiger Wolfrum pointed out that international solidarity can have an impact on the development of international law: on the one hand, by being a tool to better understand the development of international law and, on the other hand, as a means for the progressive development of international law. Solidarity is closely intertwined with the development of soft law in establishing an adaptive, dynamic and effective legal regime. Much like solidarity, soft law is hard to define in legal terms. It can represent the vague and uncompelling character of a norm, or refer to the sub-legal value of some non-normative acts or principles, such as declarations or resolutions of international organisations.53 Soft law is characterised by its relative normativity. The distinction between what is binding or not and what entails rights and obligations for States or not is—to a certain extent—blurred. Those controversies are beyond the realm of this chapter. Here, the main idea is to reflect on the potential of soft law to convey solidarity values in addressing global environmental challenges. First, the development of soft law can be regarded as a response to the urgent character of the global environmental situation. It emerged as an alternative to overcome the weaknesses of traditional international law in addressing global environmental concerns. Several authors have pointed out the pathology of the international normative system since the 1970s.54 One significant pathology is arguably the pre-eminent role of State sovereignty, with minimal support for common interests. Slow, cumbersome and uncoordinated lawmaking processes are inadequate regarding the rapid environmental changes. The lack of an institutional framework to ensure the implementation and enforcement of established environmental norms and rules makes the protection of the environment ineffective. The development of forum of cooperation to address environmental issues, such as conferences, summits, conferences of Parties, and many more, initiated a new wave of international rule-making. Political commitments—under international declarations, resolutions and programmes of action—are gradually integrating normative statements that can lead to normative rules. The continuous networking system impacts State’s behaviour and conduct. Answering the question, “Why does soft law have any power anyway?” Bryan Druzin stressed that soft law induces network effects as the more a number of agents using the same standards grows, the more a standard is valuable for a given user,55 creating a snowball effect. By being a droit en devenir, soft law conciliates the limits inherent to 52

Wolfrum 2010, p. 229. Weil 1983, p. 414. 54 Ibid., pp. 413–442; Holloway 1967. 55 Druzin 2017, p. 361. 53

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traditional international law and the need to establish an adaptive and more dynamic legal regime to address rapid changes induced by global challenges. Then, as Ronald MacDonald argues, “soft-law creates this pull of legitimacy through the articulation of common goals. Soft law is itself a reflection of solidarity.”56 The recourse to soft law in international environmental law relates to establishing common goals to be achieved in the future. The increasing adoption of soft law instruments in international environmental law can be “posited on the argument that not only do States have interest in the activities of their neighbours […] but that the world community also has an interest in the protection of certain key shared resources—the so-called global commons […].”57 Several soft law instruments are used “to define standards of good behaviour without the need for those standards to be consecrated as norms of customary law”.58 This is the case when soft law instruments are a source of general principles. The consecration of such general principles in different soft law instruments confers a coherence in States’ behaviour, enabling the lawmaking process without establishing strict legal obligations or sanctions. In addition, soft law can induce the emergence of general principles that could affect States’ particular interests and, thus, their conduct. Soft law can refer to “nonbinding but potentially normative instruments … [which] may affect the interpretation and evolution [of certain treaties].”59 Soft law can be used as an element of interpretation of existing rules of international law,60 and it appears that in practice, such interpretation is shared by almost all States. In practice, the soft law “create[s] expectations and exert on the conduct of States an influence that in certain cases may be greater than that of rules of treaty or customary law”.61 As for the precautionary principle, for example, its acceptance by States “entails acceptance of the fact that restrictions must be placed on activities which are likely to have significant negative impacts on the environment.”62 Incorporated in more than fifty environmental law instruments,63 precaution is one of the most prominent and controversial concepts of international environmental law. From a general policy orientation64 to a principle of international environmental law, precaution is first 56

Ibid. Freestone 1999, p. 136. 58 MacDonald 1996, p. 287. 59 Boyle 2005, p. 574. 60 Tanaka 2012, p. 241. 61 Weil 1983, p. 415. 62 Freestone 1999, p. 137. 63 For different formulation of the concept of precaution in international environmental instruments, see Peel 2021, pp. 309–310. 64 Several international law instruments and international courts and tribunals decisions refers to a ‘precautionary approach’. For example, the ICJ refers to a ‘precautionary approach’ in the interpretation and application of an environmental treaty. See ICJ, Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, 20 April 2010, 2010 I.C.J. Reports 977, para 164. Without considering the precautionary principle as a principle of international law, The ITLOS refers to a ‘trend towards making [the precautionary approach] part of customary international law’ (ITLOS, Responsibilities and Obligations of States Sponsoring Persons and entities with Respect to Activities 57

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and foremost a product of soft law mechanism and its acceptance—by the international community—was made through a range of international and regional fora.65 Endorsed by consensus in Principle 15 of the 1992 Rio Declaration on Environment and Development,66 precaution stands in opposition to a widely-accepted idea that environmental measures should be based on firm scientific evidence.67 Conscious of the need to protect and preserve the environment, States apply this concept systematically, whether the concept of precaution is integrated into a binding or non-binding instrument. Some legal scholars regarded this consecration as the turning point of the general acceptance of the precautionary principle in international environmental law.68 Moreover, some scholars see it as the way to establish the precautionary principle as a customary rule of international law, potentially binding all States.69 Some recognise that “the notion of acting to prevent environmental harm before it materialises has since achieved broad international policy consensus”.70 Therefore, precaution represents a paradigm shift for adaptative management, responding to changing circumstances, new knowledge and scientific uncertainty.71 Although international norms and rules apply only to a State when it has accepted them, the precautionary principle “suggest[s] that it is instead addressed to States collectively in their efforts to develop and apply international environmental law.”72 In this regard, the precautionary principle impedes “the development of rational, coordinated, and predictable environmental law and policy”.73 Considering the evolution of technology and scientific knowledge, the precautionary principle represents “a more specific rule of restraint adaptable to a wide range of new environmental circumstances”.74

in the Area, Advisory opinion, 1 February 2011, 2011 ITLOS Reports, para 135. See also ITLOS, The MOX Plant case (Ireland/United Kingdom) Provisional measures, Order of 3 December 2001, 2001 ITLOS Reports 2001, at paras 108–110). 65 Freestone 1991, p. 36. 66 According to Principle 15 of the 1992 Rio Declaration, ‘[i]n order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation’. 67 Peel 2021, p. 302. 68 See Kiss 1994, p. 55; Cameron and Abouchar 1996, p. 30. 69 McIntyre and Mosedale 1997, pp. 221–241; Trouwborst 2007, p. 185. 70 Peel 2021, p. 303. 71 Tarlock 2007, p. 581. 72 Bodansky 2004, p. 389. See also Background Paper No. 3 for the 4th Session of the Commission on Sustainable Development (1996) Report of the Expert Meeting on Identification of Principles of International Law for Sustainable Development, Geneva, 26–28 September 1995, para 72. 73 Hickey and Walker 1995, p. 425. 74 Ibid., p. 426.

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5.5 Beyond the State Paradigm: The Rise of Non-State Actors’ Input The traditional Westphalian conception of international law is centred on State sovereignty and does not include non-State-actors. However, the rise of global issues and common concerns from the 19th Century and States’ incapacity to effectively address such issues had brought non-State actors in the international arena. The international legal system became ‘inclusive’ of a range of participants and was no longer a State-based system.75 There is a diverse range of non-State actors—both intergovernmental and nongovernmental, among which non-governmental organisations (NGOs).76 NGOs are defined as “private environmental organisations engaged in legal, political or social actions to promote different goals and objectives in the transnational realm”.77 NGOs were considered entities through which individuals and groups can have a ‘collective voice’, speaking to the rest of international society,78 a sort of “representatives of diverse societal interests”.79 NGOs are also considered the voice of the voiceless, such as the future generations, establishing a more just, inclusive and equitable environmental law.80 The participation of non-State actors in international affairs can be traced back to the International Labor Organisation (ILO). The creation of the ILO was driven mainly by the will of workers’ and employers’ representatives to establish proper protection from unfair, hazardous and unhealthy working conditions to social security protection for workers.81 Additionally, those representatives participate in the work

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Some critics was made on this idea of international legal system as a State-based system. Regarding the evolving situations, this conceptual idea was considered as an ‘intellectual prison’. Higgins 1994, p. 49. See also the work of Koskenniemi 1989; Charlesworth and Chinkin 2000. 76 This choice refers to the definition given by a UN Report, in 1994, defining an NGO as ‘a nonprofit entity whose members are citizens or associations of citizens of one or more countries and whose activities are determined by the collective will of its members in response to the needs of the members or of one or more communities with which the NGO cooperates’. UN Economic and Social Council (1994) General Review of Arrangements for Consultations with Non-Governmental Organizations: Report of the Secretary General, UN Doc E/AC.70/1994/5. 77 Alkoby 2003, p. 32. In that sense, a UN Report on Human Development states that ‘[o]ne big development in opening opportunities for people to participate in global governance has been the growing strength and influence of NGOs’. See UN Development Programme 1999, p. 35. 78 McCorquodale 2004, p. 478. To that extent, NGOs are considered as part of ‘international civil society’. See Cullen and Morrow 2001, p. 7. 79 Raustiala 1997, p. 565. NGOs were perceived as providing a “crucial guardianship role” for all matters that are outside the interest of individual State, especially the global commons, in order to pursue their protection. Ibid., p. 567. On the notion of guardianship, see Stone 1993, pp. 35–49. 80 Raustiala 1997, p. 567. 81 Constitution of the International Labour Organisation, opened for signature 1 April 1919, entered into force 28 June 1919, 15 UNTS 35.

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of the ILO, namely concerning the adoption of norms and regulations under the auspices of the International Labour Conference.82 Nowadays, there is a tendency to growing participation of non-State actors, in activities where States previously had the leading role.83 Although the status of non-State actors is debatable in international law,84 they have become increasingly involved in formulating and implementing international environmental norms and rules. They can influence the negotiating process of international legal instruments and also help to monitor State compliance with international norms and rules. This tendency is attributed, in international law, to ‘globalisation’ that slowly deconstructed the pre-eminent myth of State sovereignty.85 Concerning international environmental law, since the second part of the 20th century, its development has been marked by the actions of non-State actors. Their roles are varied, and they are involved in different stages of the legal process: from the negotiation to the implementation and enforcement of norms and rules.

5.6 Non-State Actors’ Involvement in Decision and Lawmaking Processes It is recognised that NGOs are “of value to the international community”.86 NGOs’ strength resides in their information and mediatisation capacity and the involvement of international experts that make their approach more stable and coherent regarding global issues.87 NGOs are “expertly staffed, and often NGOs exist that devote considerable effort and resources to policy research and development and often substantial international expertise on the environmental policy”.88 Therefore, NGOs play an essential role in decision-making through their knowledge and expertise. There 82

For a study on the work before the ILO, see LeClercq 2015, pp. 105–132. For an insightful analysis of non-State actors’ role in international law in general, see Noortmann and Ryngaert 2010. 83 For an insightful analysis of this evolution, see Thomann 2008, pp. 71–94. 84 As this chapter will not dwell upon this matter, it is left to the discretion of the reader to refer to some insightful studies. One relevant argument according to which non-State actors, especially NGOs, do not have a legal impact per se in the development of international law is that their political impact is limited by States’ willingness to consider their advice or recommendations, or not. Alkoby 2003, p. 26. 85 See Falk 1995, p. 34; Reinicke and Witte 2003, pp. 75–114. For an analysis of the interaction between the role of non-State actors in international law and globalization, see the very important work of Delmas-Marty 2007. See also Gordenker and Weiss 1995, pp. 357–387. 86 See the Preamble of the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organizations, opened for signatures 24 April 1986, entered into force 1 January 1991, ETS No. 124. They were called as ‘international public interest organizations’. See Dolidze 2013, pp. 379–418. 87 Törnquist-Chesnier 2007, p. 170. 88 See Raustiala 1997, p. 559.

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are numerous cases where NGOs advocate, promote, or initiate international environmental treaties or conventions. This was the case concerning the CBD or the UNFCCC, and such participation was considered “mobilis[ing] public opinion by bringing credibility to the issue at hand”.89 They also assist in drafting treaties such as the 1979 Convention on the Conservation of Migratory Species of Wild Animals.90 NGOs act as observers and advisory bodies in different organisations to establish international norms and rules. This consultative position or observer statute gives them a significant voice in the policy-making process, speaking for the community’s welfare and environment. On that point, the Convention on International Trade in Endangered Species (CITES) provides that the Executive Director of the United Nations Environment Programme establishes and maintains a Secretariat, “[t]o the extent and in the manner he considers appropriate, may be assisted by suitable intergovernmental or non-governmental international or national agencies and bodies technically qualified in protection, conservation, and management of wild fauna and flora.”91 For example, Article 8 of the Convention on Wetlands of International Importance, Especially as Waterfowl Habitat (Ramsar Convention),92 assigns ‘bureau duties’ to the International Union for the Conservation of Nature (IUCN). It has provided the administrative structure for establishing a secretariat through the maintenance of lists of endangered and important international wetlands, convening and organising meetings of the parties, and generally acting as a source of information for the parties. In that sense, the first paragraph of the article seems to consider the IUCN as a kind of NGO, distinct from “another organisation [understood as an intergovernmental organisation] or government.”93 Through their activities and participation in different international organisations, non-State actors enhance the development of environmental law by representing various interests, beyond those of individual States per se. Depending on the international environmental agreement, the observer status permits NGOs to submit papers and documents to the record or delegates, suggest draft conventions, and address various sessions. Another example concerning the actions of civil society in enhancing the general consideration of the protection of the environment is the

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Alkoby 2003, p. 34. The author refers to the adoption of the Montreal Protocol on Substances that Deplete the Ozone Layer. See Lindborg 1992, p. 1. 90 See Bowman 1999, pp. 281–300. 91 Article 12 of the Convention on International Trade in Endangered Species, opened for signature 3 March 1973, entered into force 1 July 1975, 993 UNTS 243 (CITES). The Montreal Protocol in its Article 11(5) refers to non-governmental organizations “qualified in fields relating to the protection of the ozone layer”. See Montreal Protocol on Substances that Deplete the Ozone Layer (with annex), opened for signature 16 September 1987, entered into force 1 January 1989, 1522 UNTS 28. 92 Convention on Wetlands of International Importance, Especially as Waterfowl Habitat, opened for signature 2 February 1971, entered into force 21 December 1975, 11 ILM 963. 93 Some legal scholars tend to consider the IUCN as an NGO. See Bowman 1999, p. 298.

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Project of adopting a Global Pact for the Environment.94 This Global Pact grew out of an initiative taken in 2017 by a network of international legal experts (professors, judges, and lawyers), the Club des Juristes.95

5.7 Non-State Actors: A Safeguard for Effective Implementation of International Environmental Law NGOs also play a role in the implementation of international law. In the past years, their action before European courts was remarkable and led to ‘ground breaking’ decisions in climate change mitigation.96 First, they contribute to “elaborating further interpretative rules in connection with already existing international instruments […] [which have come to be] referred to as […] authoritative sources”.97 Then, NGOs contribute to implementing international environmental rules and regulations through technical, promotional and financial support to different conventions’ Secretariat.98 Finally, NGOs have input in monitoring and enforcing the application of international environmental instruments. This was done through “mechanisms and procedures for enhancing their effectiveness, publicising instances of infringement […]”99 or participating in international adjudication. Concerning the latter, they can contribute to the development of international law through judicial proceedings. They can institute cases or intervene as parties, serve as a court—or party-appointed experts100 for fact-finding or legal analysis, testify as witnesses, or participate in proceedings as amici curiae.101 The participation of NGOs in a legal proceeding, according to Dinah Shelton, is due to the fact that 94

The draft of the Global Pact for the Environment is available at https://globalpactenvironment. org/en/document/draft-of-the-international-group-of-experts-for-the-pact/. Accessed 2 May 2022. For a study on the legal background of the Global Pact, see Aguila and Viñuales 2019, p. 3. 95 See their ongoing work, available at https://globalpactenvironment.org/. Accessed 2 May 2022. 96 This is for example, at the national level, the case of the Supreme Court of the Netherlands, State of the Netherlands v. Urgenda Foundation, Judgment, 20 December 2019, ECLI:NL:HR:2019:2006. For an overview of the decision, see Cox 2016, pp. 143–163. 97 In the field of human rights, see Van Boven 1990, p. 357. 98 The Conference of the contracting Parties of the Ramsar Convention recognizes the role of NGOs in ‘[making] important technical, promotional and financial contributions to the implementation of the Ramsar Convention, and to support the Ramsar Bureau’. To that extent, some NGOS were explicitly cited such as the IUCN, the International Waterfowl and Wetlands Research Bureau (IWRB), BirdLife International and the WWF. See Recommendation 5.6 on The role of nongovernmental organizations (NGOs) in the Ramsar Convention, 5th Meeting of the Conference of Contracting Parties, 9–16 June 1993, Kushiro, Japan. https://www.ramsar.org/sites/default/files/documents/lib rary/key_rec_5.06e.pdf. Accessed 2 May 2022. 99 Bowman 1999, p. 298. NGOs ‘operate as fact-finding bodies, lobbyist, and advocates in a way that generates publicity about violations of international law’. See McCorquodale 2004, p. 495. 100 Article 50 of the ICJ Statute and article 57 of the Rules of the Court. 101 Shelton 1994, p. 611.

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V. Rafaly As the judgements affect the rights and obligations of States parties to the dispute and increasingly the rights and obligations of individuals, justice requires that non-governmental organisations representing the public interest have the opportunity to submit information and arguments to [the international judicial body].102

This participation is not directly linked to the proceedings but can occur in different manners. We can take as an example the case law before the International Tribunal for the Law of the Sea (ITLOS). First, in contentious proceedings, representatives of NGOs may be called as experts or witnesses by parties or by the Tribunal,103 or a party to the proceedings can refer in its statement to information or documentation communicated by an NGO.104 Then, in advisory proceedings, the position of ITLOS is quite similar to that before the ICJ. A statement submitted by an NGO is not considered “as part of the case file” but “shall be treated as publications readily available and may accordingly be referred to by States and intergovernmental organisations presenting written and oral statements in the case in the same manner as publications in the public domain.”105 Such status could be interpreted as enhancing the value of some NGOs’ work in the context of international adjudication. To a certain extent, NGOs act where States lack to operate in the enforcement of international environmental regulations. Two cases are relevant: on the one hand, NGOs can have a powerful effect on States’ activities. On the other hand, they can be a substitute for State inaction or lack of action against illegal activities. The former concerns, for example, the action of Greenpeace against French nuclear testing in the South Pacific, resulted in the sinking of Greenpeace ship Rainbow Warrior in a New Zealand harbour.106 Considering these roles of NGOs in the evolution of international environmental regulations, the work of the IUCN is worth mentioning. Of course, this organisation is not a typical NGO107 as it is a mix of government and nongovernment hybrid. However, it has an important place in elaborating international environmental regulations or their implementation, namely, considering their role in the international adjudication process. Despite the potential of non-State actors to enhance solidarity, it is worth mentioning that not all of them play that role, and, most often, they face issues, especially in the domestic system. NGOs can be partial in their interest and lack 102

Ibid., p. 642. Rules of the Tribunal, Articles 72 and 77. 104 See Gautier 2013, p. 80. The author refers to the Volga case. ITLOS, the Volga case (Russian Federation v. Australia) Judgment, 23 December 2002, 2002 ITLOS Reports 10. 105 ICJ, Practice Direction XII, adopted in 2004. https://www.icj-cilensj.org/en/practice-directions. Accessed 30 September 2022. Instead of placing the said documents, the ITLOS publish them on their website, in a separate section entitled ‘Statements from NGOs (not part of the case file)’, thus enhancing their publicity, even if they are not considered per se part of the case file. 106 See Special Arbitration Tribunal, Rainbow Warrior Arbitration (New Zealand v. France) Decision, 30 April 1990, 82 ILR 499. 107 Some authors rally the consideration of IUCN as a nongovernmental organization. See Shelton 1994, p. 622. 103

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legitimacy, with few democratic processes and limited representativeness.108 Additionally, this role is likely to be distorted regarding the increasing influence of mass communication media.109 Nevertheless, they play a crucial role in developing and enforcing international environmental law. Their role is likely to be more and more important as a collective voice at the global level.110 In a nutshell, solidarity remains ambiguous in international law. It has been used to protect fundamental values and to set common purposes. At the same time, its legal impact is overwhelmed by the ever-increasing complexity of international relations and global governance. Although solidarity, as a guiding principle, is developing in international law, one must be cautious about the illusion of common sense it entails. The existing structure of international law, with the remaining importance of States sovereignty, still does not allow the burgeoning of real international solidarity. In the context of global environmental issues, this concept is crucial as a powerful tool to face the Anthropocene Era, which requires an adaptive, dynamic and effective legal regime concerning the uncertainties. In this context, the Anthropocene Era enjoins rethinking the whole framework of international law to consider State interests—whether individually or collectively—and encompass a broader humanitarian character for both the present and future generations.

References Aguila Y, Viñuales J (2019) A Global Pact for the Environment: Conceptual Foundations. RECIEL, 28:3 Alkoby A (2003) Non-State Actors and the Legitimacy of International Environmental Law. NonState Actors and International Law 3:23 Allot P (1999) The Concept of International Law. EJIL 10:31 Birnie P, Boyle A, Redgwell C (2009) International Law and the Environment. Oxford University Press, Oxford Bodansky D (2004) Deconstructing the Precautionary Principle. In: Caron D, Scheiber H N (eds) Bringing New Law to Ocean Waters. Brill, The Hague Bowman M (1999) International Treaties and the Global Protection of Birds. Journal of Environmental Law 11:281 Boyle A (2005) Further Development of the Law of the Sea Convention: Mechanism for Change. ICLQ 54:563 Cameron J, Abouchar J (1996) The Status of the Precautionary Principle in International Law. In: Freestone D, Hey E (eds) The Precautionary Principle and International Law: The Challenge of Implementation. Kluwer Law International, The Hague 108

McCorquodale 2004, p. 496. See also Cullen and Morrow 2001, p. 7; Charlesworth and Chinkin 2000, p. 169. 109 On that matter, Judge Guillaume has pointed out that the pressure groups are ‘besieg[ing] [governments and inter-governmental institutions] today with the support of mass media’. See ICJ, Legality of the Threat or Use of Nuclear Weapons, Separate opinion of Judge Guillaume, 8 July 1996, 1996 I.C.J. Reports 226, p. 288. 110 The call for participation of NGOs in legal proceedings are supported by some scholars. See Popovic 1993, p. 683; Raustiala 1997, p. 537; Gemmill and Bamidele-Izu 2002, p. 20.

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Charlesworth H, Chinkin C (2000) The Boundaries of International Law: A Feminist Analysis. Manchester University Press, Manchester Cox R (2016) A Climate Litigation precedent: Urgenda Foundation v The State of the Netherlands. Journal of Energy and Natural Resources Law 34:143 Cullen H, Morrow K (2001) International Civil Society in International Law: The Growth of NGO Participation. Non-State Actors in International Law 1:7 de Vattel E (1758) Préliminaires. In: Le droit des gens ou principes de la souveraineté, 1958 reprint. Geneva, pp. 1–16 Delmas-Marty M (2007) Les forces imaginantes du droit – Vol. II: Le pluralisme ordonné (La couleur des idées). Editions du Seuil, Paris Devin G (2010) Le multilatéralisme - une perspective de science politique. In: Droit international et relations internationales – divergences et convergences. Journées d’études à Paris (Colloque de la SFDI). Edition A. Pedone, Paris Dolidze A (2013) Advisory Opinion on Responsibility and Liability for International Seabed Mining (ITLOS Case No. 17) and the Future of NGO Participation in the International Legal Process. ILSA International and Comparative Law 19:1 Dominicé C (2013) La société internationale à la recherche de son équilibre - Cours général de droit international public. RCADI 370:1 Drumbl A M, Uhlíˇrová K (2021) Actors and Law-making in International Environmental Law. In: Fitzmaurice M, Ong DM, Merkouris P (eds) Research Handbook on International Environmental Law. Edward Elgar Publishing, Cheltenham Druzin B H (2017) Why does Soft Law Have any Power Anyway? Asian Journal of International Law 7:361 Dupuy P-M (2000) L’obligation en droit international. Archives de philosophie du droit 44:217 Dupuy R-J (1979) Communauté internationale et disparité de développement – Cours général de droit international public. RCADI 165:9 Falk R (1995) Towards Obsolescence: Sovereignty in the Age of Globalization. Harvard International Law Review 17:34 Freestone D (1991) The Precautionary Principle. In: Churchill R, Freestone D (eds) International Law and Global Climate Change. Graham and Trotman, London Freestone D (1999) International Fisheries Law Since Rio: The Continued Rise of the Precautionary Principle. In: Boyle A, Freestone D (eds) International Law and Sustainable development: Past Achievements and Future Challenges. Oxford University Press, Oxford French D, Rajamani L (2013) Climate Change and International Environmental Law. Journal of Environmental Law, 25:437 Gautier P (2013) Two Aspects of ITLOS Proceedings: Non-State Parties and Costs of Bringing Claims. In: Scheiber H N, Paik J-H (eds) Regions, Institutions and the Law of the Sea. Martinus Nijhoff Publishers, Leiden Gemmill B, Bamidele-Izu A (2002) The Role of NGOs and Civil Society in Global Environmental Governance. In: Esty D E, Ivanova M H (eds) Global environmental governance: Options and Opportunities. Yale School of Forestry and Environmental Studies, Yale Gordenker L, Weiss T G (1995) Pluralising global Governance: Analytical Approaches and Dimensions. Third World Quarterly 16:357 Grotius H (2005) The Rights of War and Peace. In: Tuck R (ed) From the 1738 English translation by John Morrice of Jean Barbeyrac’s French translation. Liberty Fund,Indianapolis [originally published in 1625] Hickey Jr. J E, Walker V R (1995) Refining the Precautionary Principle in International Environmental Law. Virginia Environmental Law Journal 14:423 Higgins R (1963) The Development of International Law Through the Political Organs of the United Nations. Oxford University Press, London Higgins R (1994) Problems and Process: International Law and How We Use It. Clarendon Press, Oxford Holloway K (1967) Modern Trends in treaty Law. Oceana Publication, London

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Horn L (2009) Is Litigation an Effective Weapon for Pacific Island Nations in the War Against Climate Change? Asia Pacific Journal of Environmental Law 12:169 Institut de Droit International (2005) Resolution on Obligations and Rights Erga Omnes in International Law, adopted 27 August 2005. Annuaire de l’Institut du Droit International 71(2) 286 Jouannet E (2008) What is the Use of International Law? International Law as a 21st Century Guardian of Welfare. Michigan Journal of International Law 28:815 Kiss A (1994) The Rio Declaration on Environment and Development. In: Campiglio L et al (eds) The Environment After Rio: International Law and Economics. Graham & Trotman, London Kiss A, Beurrier J-P (2004) Droit international de l’environnement. Pedone, Paris Kluˇcka J (2017) Regionalism in International Law. Routledge, London Kolb R (2003) Réflexion de philosophie du droit international – Problèmes fondamentaux du droit international public : théorie et philosophie du droit international. Bruylant, Brussels Koskenniemi M (1989) From Apology to Utopia: the structure of International Legal Argument. Lakimiesliiton Kustannus, Helsinki Krisch N (2014) The Decay of Consent: International Law in an Age of Global Public Goods. American Journal of International Law, 108:1 LeClercq D (2015) Sea Change: New Rule-Making Procedures at the International Labour Organization. ILSA Journal of International and Comparative Law 22:105 Lindborg N (1992) Nongovernmental Organizations: Their Past, Present, and Future Role in International Environmental Negotiations. In: Susskind L, Dolan E, Breslin W J (eds) International Environmental treaty Making—Volume 2: Papers on International Environmental Negotiation. PON Books, Cambridge MacDonald R St J (1996) Solidarity in the Practice and Discourse of Public International Law. Pace International Law Review 8:259 MacDonald R St J (2005) The International Community as a Legal Community. In: Macdonald R St J, Johnston (eds) Towards World Constitutionalism: Issues in the Legal Ordering of the World Community. Martinus Nijhoff Publishers, Leiden McCorquodale R (2004) An Inclusive International Legal System. Leiden Journal of International Law 17:477 McIntyre O, Mosedale T (1997) The Precautionary Principle as a Norm of Customary International Law. Journal of Environmental Law 9:221 Noortmann M, Ryngaert C (2010) Non-State Actor Dynamics in International Law—From LawTakers to Law-Makers. Ashgate, Farnham Paulus A L (2001) International Law after Post-Modernism: Towards Renewal or Decline of International Law? Leiden Journal of International Law 14:727 Peel J (2021) Precaution. In: Rajamani L, Peel J (eds) The Oxford Handbook of International Environmental Law. Oxford University Press, Oxford Popovic N A F (1993) The Right to Participate in Decisions that Affect the Environment. Pace Environmental Law Review 10:683 Rajamani L (2011) The Cancun Climate Agreements: Reading the Text, Subtext and Tea Leaves. ICLQ 60:499 Raustiala K (1997) The “Participatory Revolution” in International Environmental Law. Harvard Environmental Law Review 21:537 Reinicke W H, Witte J M (2003) Challenges to the International Legal System Interdependence, Globalization, and Sovereignty: The Role of Non-Binding International Legal Accords. In: Shelton D (ed) Commitment and Compliance: The Role of Non-binding Norms in the International Legal System. Oxford University Press, Oxford Rémond-Gouilloud M (1998) L’irréversibilité: de l’optimisme dans l’environnement. Revue Juridique de l’Environnement, numéro spécial, pp. 7–13 Rousseau R (1970) Droit international public – Tome 1 – Introduction et sources. Sirey, Paris Rozakis C L (1975) Treaties and Third States: A Study in the Reinforcement of the Consensual Standards in International Law. ZaöRV 35:1

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Shaw M (2014) International Law, 7th edn. Cambridge University Press, Cambridge Shelton D (1994) The Participation of Non-governmental Organizations in International Judicial Proceedings. American Journal of International Law 88:611 Simma B (1994) From Bilateralism to Community Interest in International Law. Recueil des Cours 250:217 Stone C D (1993) Defending the Global Commons in Philippe Sands, Greening International Law. Earthscan, London Tanaka Y (2012) The International Law of the Sea. Cambridge University Press, Cambridge Tarlock D A (2007) Ecosystems. In: Bodansky D, Brunnée J, Hey E (eds) The Oxford Handbook of International Environmental Law, 1st edn. Oxford University Press, Oxford Tasioulas J (1996) In Defense of Relative Normativity: Communitarian Values and the Nicaragua Case. Oxford Journal of Legal Studies 16:85 Thomann L (2008) The ILO, tripartism, and NGOs: Do Too Many Cooks Really Spoil the Broth? In: Steffek J, Kissling C, Nanz P (eds) Civil Society Participation in European and Global Governance. A Cure for the Democratic Deficit? Palgrave Macmillan, New York Tomuschat C (1994) Obligations Arising for States Without or Against Their Will. Recueil des Cours 241:217 Törnquist-Chesnier M (2007) Le multéralisme ’par le bas’: l’entrée en jeu d’acteurs non étatiques. In: Badie B et al (eds) Le multilatéralisme. La Découverte, Paris Trindade A A C (2014) Quelques réflexions sur l’humanité comme sujet du droit international. In: Alland D et al (eds) Unité et diversité du droit international - Écrits en l’honneur du Professeur Pierre-Marie Dupuy. Martinus Nijhoff Publishers, Leiden Trouwborst A (2007) The Precautionary Principle in General International Law: Combatting the Babylonian Confusion. Review of European, Comparative and International Environmental Law 16:185 UN Development Programme (1999) Human Development Report 1999. Oxford University Press, Oxford/New York UN General Assembly (2005) Resolution on the Promotion of a Democratic and Equitable International Order, A/RES/59/193 Van Boven T C (1990) The Role of Non-governmental Organizations in International Human Rights Standard-setting: A Prerequisite for Democracy. California Western International Law Journal 20:207 Villalpando S (2010) The Legal Dimension of the International Community: How Community Interests Are Protected in International Law. European Journal of International Law 21:387 Weil P (1982) Vers une normativité relative du droit international? Revue Générale de droit international public 86:5 Weil P (1983) Towards Relative Normativity in International Law? American Journal of International Law 77:413 Weil P (1996) Le droit international en quête de son identité – Cours de droit international public. RCADI 237:9 Wellens K (2005) Solidarity as a constitutional Principle: Its Expanding Role and Inherent Limitations. In: MacDonald R St J, Johnston D M (eds) Towards World Constitutionalism, Issues in the Legal Ordering of the World Community. Martinus Nijhoff, Leiden Wellens K (2010) Revisiting Solidarity as a (Re)-Emerging Constitutional Principle: Some Further Reflections. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Berlin Wolfrum R (2010) Concluding Remarks. In: Kojima C, Wolfrum R (eds) Solidarity: A Structural Principle of International Law. Springer, Heidelberg

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Wolfrum R (2011) Enforcing Community Interests through International Dispute Settlement: Reality or Utopia? In: Fastenrath U et al (eds) From Bilateralism to Community Interest. Oxford University Press, Oxford Wyler E, Papaux A (2014) Le mythe structurant de l’humanité : La communauté internationale vivante. In: Alland D et al (eds) Unité et diversité du droit international - Écrits en l’honneur du Professeur Pierre-Marie Dupuy. Martinus Nijhoff Publishers, Leiden Zalasiewicz J et al (2012) The Anthropocene. In: Gradstein F et al (eds) The Geologic Time Scale 2012, vol 2. Elsevier, Oxford

Vonintsoa Rafaly Postdoctoral Researcher in Ocean Governance, School of Business, Economics and Law, University of Gothenburg, Sweden.

Chapter 6

Anti-legal? Georges Scelle’s Solidarity, French Sociological School, and the Backlash Against International Investment Law in Africa Tomasz Milej

Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 The Backlash Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 Colonial Legacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.2 Protection of Investors as the Dominating Paradigm . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Investor-to-State Dispute Settlement (ISDS) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.4 Forms of Backlash Against the IIL in Africa . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3 The Solidarity Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 Solidarity as a Source of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Sovereignty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.3 Objective Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.4 Social Justice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.5 Global (‘Intersocietal’) Solidarity as the Source of International Law . . . . . . . . . 6.3.6 Role-Splitting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Solidarity Agenda Versus Backlash Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.1 BITs, Objective Law and Role-Splitting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.2 Debt Owed by Investors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.3 Sovereignty and Sectarianism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4.4 Against the ‘Anarchy of Appetites’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The present chapter argues that the International Investment Law (IIL) is biased towards sectarian interests of foreign investors and does not serve the interests of Africans. The IIL looks at a foreign investment not as a source of debt towards the host state’s society, but as a source of privilege. More fundamentally, the concept of the state sovereignty failed to adequately safeguard African agency. Following decolonization, the myth of free consent contributed to the emergence of illegitimate racialised structures underlying the IIL in its current state. It is argued that George Scelle’s idea of objective law, rooted in inter-social solidarity is in a T. Milej (B) School of Law, Kenyatta University, Nairobi, Kenya e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_6

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better position to advance legitimate expectations of Africans with regard to the governance of international investment and to transform it into a more equitable, development-oriented legal order. Keywords International Investment Law · Third World Approaches towards International Law (TWAIL) · Solidarity · Decolonisation · George Scelle · Role-splitting · Bilateral Investment Treaties (BITs) · Investor-to-State-Dispute Settlement (ISDS)

6.1 Introduction Biased towards investors’ interests and disenfranchising Africans—this is how the growing reproach of the International Investment Law (IIL) in Africa may be summarized. And yet this is the law, a positivist would answer. Luckily, the dismissive language of positivism is not the only one to address the legitimate concerns about the current state of the IIL. The present chapter seeks to narrate those concerns using a different language. It is the language of the French sociological school and the concept of solidarity rooted in this school and adopted to international law by Georges Scelle, an eminent French jurist of the first half of the 20th century. The chapter is divided into three main sections. It first outlines the reasons for a backlash against the IIL in Africa and the forms that it has taken (Sect. 6.2). Section 6.3 presents the basic assumptions of the Scellian concept and the ideas of Léon Duguit and Léon Bourgeois which inform the same. Finally, Sect. 6.4, while contrasting the findings of the earlier sections, makes use of the Scellian language to unveil the mechanisms of the backlash against the IIL and its potential to change the international law. It also outlines certain salient features which a solidarity-based international community has and with which the IIL in the formal sense and its current shape fails to comply. The chapter’s objective is not to evaluate in detail the correctness of the backlash agenda and the solidarity agenda, but rather to assess, to what extent the latter may be a useful tool to explain and advance the former, as this creates a chance to reclaim the agency of Africa’s people when it comes to regulating foreign investment. The Third World Approaches to International Law (TWAIL) have debunked the myth that sovereign equality of States alone has the capacity of creating a just international order. Moreover, as will be shown, the TWAIL scholars deconstructed the positivist school of international law as based on illegitimate racialized hierarchies. It is therefore time to think big and look into alternative concepts of international law. And Scelle’s quite comprehensive, solidarity-based and non-positivist theory is certainly worth looking at.

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6.2 The Backlash Agenda The list of complaints concerning the current shape and operation of the IIL is long and the present section attempts just a summary of some major points. It starts with the very origins of the IIL.

6.2.1 Colonial Legacy One of the distinguishing features of colonial oppression was to facilitate the exploitation of natural resources in Africa to aid Europe’s industrialization.1 To this end, the colonial legal systems protected European investments and the profits they were making, while the welfare of the Africans living in the colonies and pronounced ‘uncivilised’ was as a matter of fact of secondary concern at best, mostly, however, of no concern at all. The nature of colonialism is adequately captured by Grovogui: Sustained by the precepts of natural history and pseudoscientific racism, the Berlin regime [established by Berlin conference of 1884–1885] reasserted Western superiority and facilitated the conquest and exploitation of Africans. It effected Africa’s marginality and subordination to Europe by articulating African otherness in a new system of signs that posited African disorders in the cultural and political spheres as a key justification for European political control. The formal colonisation of Africa was construed as the means to African spiritual and political salvation, economic regeneration, and civilization.2

Moreover, oppressive laws were used to secure European privilege at the expense of Africans, e.g. by sanctioning massive land grabs and destruction of the customary land tenure system.3 One of the long-term consequences of this paradigm is the structure of the South-North trade, whereby African exports are made up of primary commodities, while the much more lucrative value addition through manufacturing takes place in the North, and it is the manufactured products that are being sold to Africans.4 This state of affairs is, first, exploitative and harmful to Africans; more and more basic commodities must be sold to buy the same amount of manufactured goods. Second, it is also reflected in the investment pattern, which, as demonstrated by Taylor,5 is focused on capital-intensive extraction of natural resources. The benefits of such investment for the local economies are questionable; the number of jobs thus created is limited and the technology transfer is also on the lower side. As technological learning takes place mostly in the manufacturing sector, it is in this sector where investments should be made, preferably in a way benefitting local small and medium-sized enterprises (SMEs). It is this structure of investment, firmly entrenched since colonial times, that the IIL has been keen on protecting. Worse still, 1

This was also one of the objectives of the European integration, see Hansen and Jonsson 2018. Grovogui 1996, p. 69; see also Bedjaoui 1979, pp. 49–50. See also further below, Sect. 6.2.4. 3 Okoth-Ogendo 2002, p. 5. 4 Taylor 2016, p. 13. 5 Ibid., p. 11. 2

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several BITs explicitly restrict the freedom of the host state to impose performance requirements on investors, such as an obligation to purchase goods locally thus which would strengthen local supply chains or transferring technology to local enterprises.6 As argued by Ramdoo,7 the investment treaties have proved to be most constraining with regard to the local content policies (to a large extent to be subsumed under the performance requirements), although such policies are considered as an important development tool. After decolonisation, the former colonial states were not still interested in offering protection to the businesses and properties remaining in the colonies on a level comparable to the one those businesses and properties enjoyed under the imperial laws insulating them from the usual risks associated with investing in other countries.8 There was also interest in new investments that would help to preserve the trade structure which would provide low-priced raw materials for the European industries.9 On the other hand, the African states were desperate to attract the capital necessary to meet the development needs.10 This exacerbated the already existing power imbalance and it is in this context that the investment protection treaties were concluded. Proper negotiations were rarely carried out; more frequently the newly independent States were presented with a template to which they were persuaded to adhere.11 As a result, the protection levels for investment before and after colonisation became comparable. What changed was the instrument of protection. Imperial laws became (among others) investment protection treaties.12

6.2.2 Protection of Investors as the Dominating Paradigm Given the political circumstances around the conclusion of investment treaties, the investment protection paradigm is hardly a surprise. The already mentioned restrictions on performance requirements are just one example of it. As a rule, the BITs provide only for the protection of investments;13 and for those provisions, the language of ‘investors’ rights’ is used.14 Typically, based on the BITs concluded in the 1960s (the first-generation BITs) and the BITs concluded in the 1990s (the second generation),15 the investors have only rights, while the host states (where the 6

Ramdoo 2016, p. 27. Ibid., p. 39. 8 Kidane 2018, p. 530. 9 Hansen and Jonsson 2018. 10 Choudhury 2020, p. 1. 11 Vargiu and Seatzu 2015, pp. 143, 163. As pointed out by Perrone, African States have for long been in a position of ‘rule takers’, see Perrone 2021, p. 200. 12 See Anghie 2005, p. 208. 13 Kryvoi 2020, p. 8. 14 See e.g., Dolzer and Schreuer 2008, p. 193 (‘right to transfer funds’). 15 See Jandhyala et al. 2011, p. 1047. 7

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investments are made) have only obligations. It is only some BITs of the most recent generation that provide for investors’ obligations. More importantly, the BITs do not provide for any rights and any redress to the individuals or local communities which may be adversely affected by investment projects, e.g., by encroachment on their land, pollution, or other forms of environmental degradation. The investment treaties make those stakeholders ‘invisible’.16 Clearly, what the IIL does not establish is a ‘development-oriented and holistic perspective of FDI [Foreign Direct Investment] governance’, as postulated by Perrone.17 And such a perspective requires an adequate legal framework that would ensure that foreign investment contributes to sustainable development.18 As recent research by Odumosu-Ayanu on the Chad-Cameroon Petroleum Development and Pipeline Project demonstrates, the involvement of local communities in the design of investment projects and their participatory rights should be a salient feature of this type of development-oriented FDI governance.19 Whereas currently the investment projects are negotiated between the investors (mostly large companies) and the central governments of the host state, research shows that local communities ‘hold an important position in defining the relationship between economic development and environmental protection in a manner that draws directly from their experience, and which none of the other actors share’.20 Although development is often associated with the inflow of FDI, some of the investment projects end up exacerbating poverty, causing environmental damage, if not environmental disasters.21 The views expressed by the local communities help to design investment projects by incorporating different ideas about development so that eventually the well-being of the local communities and the needs of environmental protection are taken into account.22 A need for a paradigm becomes clear also against the background of the ‘Pandora Papers’ revelations. It is quite common for the BITs to grant the investors some form of a guarantee to transfer funds out of the host state, albeit the guarantee is rarely unconditional.23 On the other hand, it is estimated that due to capital outflows accompanied by accounting tricks and tax avoidance (illicit financial flows), Africa is losing 80 billion US Dollars annually, as compared to the 42 billion spent annually on the so-called development aid.24 Some rich countries have made the illicit financial flows a foundation of their economies with London being one of the hubs.25 Accordingly, it is not adequate to frame the issue of fund transfers as a guarantee 16

Perrone 2021, p. 201. Perrone 2020, p. 3. 18 Perrone 2021, p. 205. 19 Odumosu-Ayanu 2019, p. 503. 20 Ibid., pp. 480, 503. 21 Ibid., pp. 481–482; see also Perrone 2021, p. 205. 22 Odumosu-Ayanu 2019, p. 503. 23 Dolzer and Schreuer 2008, p. 193. 24 Allison and Kings 2021. 25 Ibid., p. 20. 17

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for the investors. It would be more proper, to treat it as a point of concern within a holistic concept of FDI governance and the ensuing legal framework geared towards sustainable development. The guarantees for the investors have for a long time been framed in very broad terms and they have also been quite far-reaching. As a recent study concerning the European Union reveals, the international investors actually enjoy under the IIL stronger protection and an ampler set of rights than they do under the domestic legal systems of their home states.26 Those guarantees contributed to the shrinking of home states’ ability to legislate in the public interest, given that they are often combined with the enforcement mechanism through international arbitration (to be addressed in the following section) and the high compensation amounts which the arbitrators may award to the investors. The guarantee of ‘fair and equitable treatment’ (FET) of investors by the host state, very common in the BITs, and the guarantee against expropriation, which include the so-called ‘indirect expropriation’ have proved to be particularly limiting. While in 1927, an arbitral tribunal in the Neer case required for a violation of the FET standard an action that is ‘outrageous, egregious or in bad faith or so below international standards that a reasonable and impartial person would easily recognize it as such’,27 the Tecmed tribunal defined FET in 2004 as a ‘treatment that does not affect the basic expectations that were taken into account by the foreign investor to invest.’28 And what are those expectations? The tribunal continues as follows: “The foreign investor expects the host State to act in a consistent manner, free from ambiguity and transparently in its relations with the foreign investor, so that it may know beforehand any, and all rules and regulations that will govern its investments, as well as the goals of the relevant policies and administrative practices or directives, to be able to plan its investment and comply with such regulations”.29 Clearly, not being outrageous or egregious (Neer) is one thing, and being free from ambiguity (Tecmed) is quite another, and it is the latter requirement that limits the freedom of action of the host state quite substantially. The uncertainty adds to it; while Tecmed standard was relied on by some tribunals,30 it was rejected by others. As observed by Bonnitcha, the arbitral tribunals have developed as many as four different approaches to the FET standard.31 Indirect expropriation is, generally speaking, a measure that interferes with the use or enjoyment of benefits of a property, even where the property is not seized and a legal title of the property is not affected.32 A host state can easily be accused of violating a 26

Peters et al. 2021. Mexico/US General Claims Commission, L F H Neer and Pauline Neer (USA) v United Mexican States, Decision, 15 October 1926, IV RIAA 60. 28 ICSID Tribunal, Técnicas Medioambientales Tecmed, S.A. v The United Mexican States, Award, 29 May 2003, ICSID Tribunal Case No. ARB(AF)/00/2, para 154. 29 Ibid. 30 ICSID Tribunal, Siemens AG v The Argentine Republic, Award, 17 January 2007, ICSID Tribunal Case No. ARB/02/8, paras 288–299. 31 Bonnitcha 2014, p. 143. 32 OECD 2004, p. 3. 27

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prohibition against indirect expropriation, even while legislating or otherwise acting in public interest, e.g., to protect the environment or rights of a local community. In Metalclad v. Mexico,33 the arbitral tribunal established an indirect expropriation of a completed hazardous waste landfill. In the wake of local community protests, the landfill operator was refused a local construction permit (following the federal one which had been granted) and an ecological decree was enacted, declaring the area where the landfill was situated to a cactus protection area. In view of those measures, the operator retained the formal title, but the operation of the landfill became impossible. The tribunal ordered payment of compensation, although the local authorities acted in legitimate public interest, having been side-lined by the federal government. Had the local community been involved from the onset, the issue would not have arisen. Different approaches have been advanced relating to the delimitation between the indirect expropriation which involves compensation and legitimate exercise of police powers in the public interest which does not.34 A recent overview of arbitral jurisprudence by Malakotipour concludes that the same lacks consistency and predictability, there is no established definition of indirect expropriation, no method for identifying it and the clauses prohibiting expropriation are open to different interpretations.35 More recent BITs seek to reduce the strain on the regulatory powers of the host state thus created by including more precise definitions of indirect expropriations.36 But this would be of little benefit without addressing the Investor-to-State Dispute Settlement (ISDS) (see further Sect. 6.2.3 below).

6.2.3 Investor-to-State Dispute Settlement (ISDS) The proliferation of the BITs, if not an explosion of their number, took place in the 1990s. Of the total of 2842 BITs signed until now, roughly 2000 were concluded around that time.37 And it is also when the ISDS became their common feature; 96% of the BITs currently in force include an ISDS clause.38 This has resulted in an

33

ICSID Tribunal, Metalclad Corporation v The United Mexican States, Award, 30 August 2000, ICSID Tribunal Case No. ARB(AF)/97/1. 34 Malakotipour 2020, pp. 235, 238 et seq. 35 Ibid., p. 269; see also El-Kady and De Gama 2019, pp. 482, 488. 36 Malakotipour 2020, p. 256. 37 Van Harten 2007, p. 27. For the up-to-date figures, see the database available at https://investmen tpolicy.unctad.org/international-investment-agreements. 38 Gaukrodker and Gordon 2012. OECD Working Papers on International Investment 2012/03, p. 64.

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uptake in the cases decided under the ICSID-Convention from 1997 onwards.39 As of now, the count of adjudicated ISDS cases stands at around 1100.40 In a strict sense,41 the ISDS boils down to a right of a foreign investor to sue the host state before an international arbitral tribunal for damages arising out of alleged violations of a BIT. Most of the arbitral proceedings are conducted under the ICSID Convention;42 but other fora and rules (e.g., UNCITRAL or Stockholm Chamber of Commerce) can be and are chosen. Although several differences between investment arbitration and commercial arbitration have emerged over time,43 some salient common features remained; the choice of arbitrators by the parties to the particular dispute being the most obvious one.44 Confidentiality of the proceedings is the other one, even though—and only recently—some attempts to infuse more transparency into the investment arbitration have been made.45 This is also where criticism sets in. According to van Harten, investments disputes are of an ‘intrinsically public law’ character.46 Important public policy choices are reviewed against BIT investment protection standards and this is illustrated by the case-law examples already cited. But those disputes are ‘resolved by privately contracted adjudicators according to rules that are in many respects alien to public law’.47 Moreover, the arbitrators are recruited from a limited group of persons,48 many of them with commercial arbitration backgrounds.49 Lack of diversity among the arbitrators, and most notably a very limited number of arbitrators from the Global South, has been flagged as a serious point of concern.50 The same applies to law firms representing the parties, most of them headquartered in the US and UK.51 The access to international arbitration is limited to investors; as already mentioned, no access is provided for individuals and the local communities that may be affected by the investments. Insofar the (lack of) access regulations reflect the pro-investor 39

ICSID 2021, p. 7. UNCTAD 2021, p. 4. 41 In a broad sense, the ISDS can also be understood as any form of dispute resolution between the investor and the host state. 42 UNCTAD 2021. 43 Böckstiegel 2012, p. 577. 44 Ibid., p. 581. 45 Ibid., p. 586. 46 Van Harten 2007, p. 71. 47 Ibid. 48 Bjorklund et al. 2020, pp. 410, 418; see also Franck et al. 2015, pp. 429, 450, noting, however, that ‘the arbitrator bench was not necessarily as narrow as one might perceive’. 49 Ibid., p. 447. 50 Böckstiegel 2012, p. 578. ‘The “median international arbitrator” was a fifty-three-year-old man who was a national of a developed state and had served as an arbitrator in ten arbitration cases.’ Franck et al. 2015, p. 466. 51 Kryvoi 2020, p. 11. 40

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bias of the substance of regulation. And the access for the investors is facilitated by the fact that according to most ISDS clauses in the BITs, the international arbitration can be accessed without exhaustion of domestic remedies allowing the investors to bypass the courts of the host state. The costs of arbitration and the awards granted are huge and may pose a significant burden, especially on a budget of a developing state. An average award in cases won by investors is about USD 500 million and on median about USD 20 million.52 The average costs of the dispute are 4 Million US Dollars per party.53 To sum up, under the current ISDS system, a foreign investor may invoke standards that are vague or skewed to his favour to challenge public policy regulations and measures of the host state and the investor may do so in a procedure which is sectarian and expensive and which may result in compelling the host state to a payment of massive compensations. The summary may be slightly overdrawn but is certainly not far from the truth. And as said, the list of concerns presented here is not exhaustive. The practice of establishing so-called ‘special purpose vehicles’ or ‘paper nationality’ illustrates well the attractiveness of the system for investors. It is when a domestic investor establishes a ‘parent company’ in another state without taking up any substantial business activities; the purpose of it is to enjoy protection under the BIT with that other state and to bring a claim before an international arbitration tribunal.54

6.2.4 Forms of Backlash Against the IIL in Africa The backlash against the IIL in Africa flows from two sources. The first source is the delegitimization of racist imperial hierarchies in the course of decolonisation and the TWAIL scholarship on which much of the previous section is based and which provides for a theoretical framework allowing to critically revisit the assumptions of IIL. The second source is a political realization that African countries and societies do not benefit from IIL. TWAIL is an intellectual movement that has its roots in the struggle against colonialism.55 Also, the push towards the New International Economic Order (NIEO)

52

UNCTAD 2018, p. 5. Bonnitcha 2017, p. 14. 54 In Phoenix Action v. the Czech Republic (ICSID Tribunal, Phoenix Action, Ltd. v. The Czech Republic, Award, 15 April 2009, ICSID Tribunal Case No. ARB/06/5), the tribunal held that it goes against the principle of good faith to establish a paper nationality in another country at least after the dispute arises. This approach was rejected by another tribunal in Saba Fakes v. Turkey (ICSID Tribunal, Saba Fakes v. Republic of Turkey, Award, 14 July 2010, ICSID Tribunal Case No. ARB/07/20). The Saba Fakes tribunal was hailed by one commentator for ‘providing a succinct and clear rejection of the attempt in Phoenix Action to add further and unwarranted jurisdictional requirements for the purposes of ICSID arbitration.’ Newcombe 2010. 55 Mutua 2000, p. 31. 53

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was one of its hallmarks.56 Its objective is to alleviate the harm and injury which the Third World suffers as a result of the unjust international legal order.57 And why is it unjust? It is unjust because rather than being based on the principle of the equivalency of cultures, the TWAIL scholars argue, it is based on the racist idea of the supremacy of white European peoples over non-Europeans and a ‘duty’ of the former to civilize and control the latter as its implication.58 This can be seen in the colonial oppression, the mandate system of the League of Nations, but also—and this is particularly relevant in the present context—in the fact that the international law gives sanction to certain economic ideas which are of European origin and imposes them upon non-Europeans.59 In light of what has already been said, the paradigm of giving a priority to the protection of foreign investors may be considered as an example of such an operation. The TWAIL scholarship unmasks and attacks a persisting cleft between the aspirations and the reality, or, as Ignatieff puts it, a cleft between a normative commitment to equal voice and the reality that some voices are heard more than others.60 And still, the very normative commitment to self-determination and equality of individuals, or, to continue with Ignatieff, ‘the new normative dispensation is the idea that every person, every faith, and every race and creed should enjoy the same right to be heard and the same right to shape national political outcomes’,61 is a powerful force with which the IIL with its ‘original sin’62 of translating the delegitimized hierarchies of racial oppression into a privilege for investors has to reckon. Studying the dynamics of the attitudes to the BITs, Jandhyala, Henisz, and Mansfield identified a number of factors that contributed to a more cautious approach when it comes to signing them. The most important one was a realization that they come with a cost that might be huge. This realization was fuelled by an exponential increase in investors’ claims. Some of them were filed by investors even in times of national crises—Argentina is perhaps the most prominent example. Consequently, the host states found themselves liable for large sums.63 The host states would then have to mount a defence before international tribunals while having little expertise in this area of law and in face of looming compensations, which in several cases, as observed by the Attorney General of Pakistan, would be higher than the annual health and education budget of the host state combined.64 In the case of South Africa, the

56

Ibid., p. 35. Ibid., p. 36. 58 Ibid. See also Grovogui 1996, p. 49 and passim: Anghie 2005, p. 52. 59 Mutua 2000, p. 37. 60 Ignatieff 2017, p. 13. 61 Ibid., p. 12. 62 Kidane 2018, p. 537. 63 Jandhyala et al. 2011, pp. 1056–1057. 64 Ibid., p. 1057. 57

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change of spirit was occasioned by the Foresti65 case involving an investor’s claim that directly challenged the policy of economic empowerment of historically disadvantaged Africans. It is a policy mandated by the constitution, the objective of which is to reverse the results of oppression by the criminal apartheid regime by achieving a certain level of African ownership in the mining companies.66 Consequently, South Africa, adopted a policy to move away from ISDS and terminated several BITs.67 A small number of terminations by other countries followed: In 2019, Tanzania terminated the BIT with the Netherlands, while Kenya and Uganda terminated the respective BITs with Italy.68 A downward trend could be observed with regard to the conclusion of new BITs by African countries. There has been a sharp uptick in the conclusion of those treaties since the mid-1990s. In the peak year of 2001, over 80 BITs were concluded. Since then, the number of new BITs has been decreasing, with less than 10 BITs having been concluded in 2017 and 2018.69 Quite importantly, the African countries came up with new IIL instruments, which do away completely or reform some of the controversial clauses, most notably the FET and ISDS, strengthen the right of the host state to regulate in public interest and seek to rebalance the legal relationship otherwise tilted heavily towards the investor, e.g. by introducing obligations either specifically for the investor or common obligations for the investor and the host state. Such instruments include the Pan-African Investment Code of 2016, the Southern African Development Community (SADC) Financial Protocol of 2006 (reformed in 2016), and the Economic Community of Western African States (ECOWAS) Common Investment Code of 2018.70 Those developments show that African States are now making efforts to reclaim their agency by actively shaping the IIL, rather than subscribing to norms set by the capital-exporting states.71 The backlash in Africa is to some extent supported by global trends and the mounting critique of the IIL which led to the establishment of the UNCITRAL working group III on the ISDS reform.72 The distinction between capital-exporting and capital-importing States has been blurred, so that even the promoters of the BIT system, such as the US, started losing ISDS

65 ICSID Tribunal, Piero Foresti, Laura de Carli and others v Republic of South Africa, Award, 4 August 2010, ICSID Tribunal Case No. ARB(AF)/07/1. The case was discontinued following a settlement. 66 Davis 2018, pp. 1, 6–8. 67 Qumba 2019, pp. 358, 360. South Africa terminated the BITs with Spain, Belgium-Luxemburg Economic Union, Argentina, Italy, Austria, Denmark, France, Germany, Switzerland, Netherlands, and the United Kingdom, see UNCTAD undated-b. 68 Data after the UNCTAD Database, see UNCTAD undated-a, undated-c, undated-d. 69 El-Kady and De Gama 2019, p. 5. 70 Chidede 2019, p. 437 gives a comprehensive overview of the IIL instruments adopted recently in Africa. 71 Mbengue and Schacherer 2019, p. 21. 72 The progress can be followed on the Group’s website: United Nations Commission on International Trade Law, Working Group III: Investor-State Dispute Settlement Reform. https://uncitral. un.org/en/working_groups/3/investor-state. Accessed 22 September 2022.

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cases. Consequently, the current political climate is more conducive towards a critical reflection about the IIL. All this, however, must not conceal the fact that the majority of the traditional BITs with a strong pro-investor bias still remain in force. There are even cases in which African States concluded new BITs of the same old type.73 The power imbalance has not disappeared. And this is where the objective law based on solidarity may play a role.

6.3 The Solidarity Agenda 6.3.1 Solidarity as a Source of Law Scelle’s solidarity is the source of objective law. It is not a concept that Scelle developed by himself; he draws upon the concepts developed by French jurists, most notably Léon Duguit and Léon Bourgeois, whose scholarship must therefore be taken into account while examining the Scellian construction of public international law. The works of Duguit and Bourgeois are situated in the national context. And even though Duguit attempts to extrapolate his ideas to the international plane, it is Georges Scelle who comes up with a comprehensive theory of solidarity as a source of public international law. All three scholars take a sociological approach to law based on Emile Durkheim’s ideas on the division of labour in society. Most importantly, solidarity in the Scellian sense is not a romantic and idealistic concept but purports to be a ‘scientific’ one, based on the observation of interactions of individuals in a society. The individuals would depend on each other and satisfy their needs through social exchanges.74 These exchanges are conceived as a social fact that can be established by empirical observations. This is how social bonds are formed. The interactions between individuals would produce two types of solidarity: Solidarity by similarity and solidarity by division of labour. While the former is the more basic form of solidarity and a source of a sense of common belonging, the latter evolved when the societies became more complex. According to Scelle, the former one is instinctive and exclusionary, the latter one is constructed and desired.75 The better the individuals can develop their different capabilities, the more they specialize, the ampler the possible exchanges and the better the society can satisfy its needs. The legal order emerges as a recognition of this social necessity76 by creating rules of exchange and public institutions necessary to give them effect.

73

Mbengue and Schacherer 2019, p. 21. See also Pathirana 2021. Scelle 1948, p. 6; Bourgeois 2020, p. 19. 75 Scelle 1948, p. 7. 76 Ibid.; Bourgeois 2020, p. 21. 74

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But how can a mere fact that individuals exchange services be a source of law? Duguit explains this phenomenon as follows. Because the idea of social solidarity is difficult to define, it is not the solidarity as such that is the actual source of law, but the awareness of the social bonds which the solidarity in its two forms creates. This awareness is highly contextual as it always exists in a particular group of individuals, such as a family, a city, or a nation, at a particular time and may vary across groups and epochs. According to Duguit, a legal character of a norm of behaviour may be identified, once the rule is violated. If there is a general awareness that a violation of a given norm must be sanctioned, as otherwise the bond of solidarity that maintains social integration will be broken, then this norm is considered as a legal norm.77 Duguit underlines that the legal character of the norm does not depend on its formal recognition by ‘the State’ (those who govern); the decisive factor is a different one: It is the awareness that a norm must be sanctioned for the sake of maintaining solidarity.78 The awareness of a need for sanction is an empirically observable social fact. Duguit speaks of unanimity or quasi-unanimity of spirits79 or that a norm must have penetrated the conscience of people so that they regard the sanction as necessary.80 Under the term sanction, Duguit understands more generally a social reaction to the violation of a norm (a retribution), or once there is a distinction between those who govern and those who are governed, the use of force by the former.81 The sanction must be assured permanently by those who govern. This is where Duguit sees the jurisdictional function in the society, highlighting that it is older than the legislative one, since those who govern were first called upon to sanction laws, before they were required to formulate them or write them down.82 Herein lies the fulcrum of the distinction between the objective law arising out of the social consciousness and the positive law, formulated by the legislators. And even the latter can be exercised without invoking the concept of sovereignty.

6.3.2 Sovereignty Not only the idea of sovereignty but even a state as an imagined community vested with certain powers is rejected. This is the consequence of the ‘scientific’ approach which the theory takes: the ‘state’ is not an observable phenomenon; according to Thierry, Scelle aims to ‘demythologise’ the state. What can be empirically observed

77

Duguit 1927, pp. 115–117. Ibid., p. 111. 79 Ibid., p. 115. 80 Ibid., p. 109–110. 81 Ibid., p. 111. 82 Ibid., p. 112. 78

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are just individuals wielding power over other individuals. This is where the distinction between those who govern and those who are being governed comes from. Political power belongs to those who are stronger; in the democracy, this is the power of numbers: the strongest are those who are the most numerous.83 ‘I cannot understand at all’—Duguit argues—‘that those who govern are individuals of another essence than those who are governed.’84 Those who govern are members of the given society the same way those who are governed are and for this reason, they are subjected to the same rules of law, which according to Duguit evolve around two general obligations: not to go against the social solidarity and to cooperate with the view of achieving its amplest realisation.85 This is how the law limits the power excesses. As Scelle puts it, the law is there to ‘restrain the appetites’.86 Since those who govern do not have any special status, also the distinction between public and private law is no longer justified. Consequently, Scelle also does not distinguish between private and public international law.87

6.3.3 Objective Law Scelle makes a different distinction, which is one between the substantive and formal sources of international law.88 The substantive sources produce the objective law understood as legal norms emanating from the social solidarity as already outlined. The formal sources are only external manifestations or expressions of the objective law, such as custom, statutes, judicial decisions, or treaties when it comes to international law.89 It is what Scelle refers to as positive law. It follows that formal sources cannot be used to ‘make’ objective law, but only to ‘declare’ it.90 And this is where the legitimacy of positive law derives from. As explained by Duguit the respect for the (positive) law does not emanate from the fact that it is being made by a supreme commander (the king, the legislator, ‘the state’), but because of the assumption that it complies with the objective law of the given community.91 In international law, custom and treaties ‘are ways of ascertaining and expressing pre-existing rules of objective law, which are thus translated into normative or constructive rules of positive law’.92 It is assumed that the positive law complies with the objective law, but

83

Ibid., p. 660. Ibid., p. 685. 85 Ibid., p. 679. 86 Scelle 1948, p. 7. 87 Scelle 1948, p. 24. 88 Ibid., p. 9. 89 Ibid., p. 10. 90 Thierry 1990, p. 199. 91 Duguit 1927, p. 673. 92 Scelle, Precis, cited after Thierry 1990, p. 199. 84

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once this assumption is proven false, the positive law becomes ‘anti-legal’.93 As observed by Thierry, ‘in Scelle’s thought, objective law plays the role traditionally given to natural law. It is the source of positive law, and is the benchmark by which positive law must be assessed, and approved, or rejected’.94 The theory is thus non-voluntarist in nature, as Duguit himself acknowledges.95 By portraying sources of positive law not as a will of an uncommanded commander but rather as an expression of social awareness of objective necessities, it is certainly out of tune with positivist approaches. What makes it akin to positivism is, however, the emphasis on the scientific observation of social realities rather than reading transcendental or metaphysical ideas into the substance of law. Based on this, law-making follows a certain technique. As explained by Scelle,96 in every legal system (and this refers also to international law), law-making revolves around three elements: the social goals specific to a given community at a given time conforming to the requirements of solidarity; the individuals equipped with certain competences or powers of action (Scelle calls them ‘legal agents’)97 and the material means (collected via taxation), both of the latter meant to achieve the goals. It is important to add that in Scelle’s theory the language of competences is used not only with regard to those who govern but with regard to all individuals. Because social solidarity is the only source of law, there is no space for ‘subjective’ rights inherent to an individual, as this would result in an ‘anarchy of appetites’.98 The entitlements which an individual has in society are therefore conferred by law whose aim, as a reflection of solidarity, is to promote public interest and safeguard public order. The same applies to international law that aims at safeguarding the interest of a community of all humans, and not states.99

6.3.4 Social Justice? Do the solidarist theories imply that objective law should be based on some social justice principles? At first blush, the ‘scientific’ approach taken by the French solidarists seems to speak a different language. The only way to establish a legal norm, and this includes also principles of social justice, would be to create general awareness in a given society that a violation of such a principle should be sanctioned, or in short, to stay with the Duguit’s metaphor, to win the ‘spirits’ of the society members in favour of such principles. There seem to be no shortcuts; especially by invoking some higher ideas of justice. The equation seems to be sober and simple: no 93

Thierry 1990, p. 199. Ibid., p. 199. 95 Duguit 1927, p. 799. 96 Scelle 1948, p. 14. 97 Ibid., p. 13. 98 Ibid., p. 122. 99 Ibid., p. 122. 94

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observable awareness, no legal norm. In other words, the struggle for social justice is a struggle to win the spirits in a given society. As Duguit points out, the legislator can have a role to play, for the enacted legislation, albeit part of positive law ‘only’, may contribute to the rise of awareness that the norms encapsulated in this legislation should also belong to the objective law. One may, however, look at the theory from a different perspective, as a reaction to abstract individualism that does not correspond to the power realities in modern societies. In this sense, the mere acknowledgement of social solidarity may have normative implications. By emphasising the interdependence of individuals and the social bonds between them, the solidarist theory challenges the idea that the individuals are just contracting parties, whose freedom and formal equality, once guaranteed, would result in a spontaneous creation of a just order.100 According to Supiot, social solidarity implies a relationship, in which an individual has entitlements towards the society, but on the other hand, also owes it a debt.101 And this is the idea—the idea of a debt owed to the society—which is one of the central concepts of Leon Bourgeois whom Kleinlein describes as a ‘radical solidarist’.102 According to Bourgeois, the mere fact of human association creates rights and duties.103 The association of individuals is an instrument of liberation,104 since it makes the exchange of services possible. Bourgeois argues that the free development of skills and capabilities and personality can only happen due to the contribution of capabilities and skills of other people.105 Therefore, a human being, as much as it has the right to preserve and develop his or her own life, belongs to a community, which was in place even before he or she was born. And it is the community where the development of personality takes place, in a network of actions and reactions by which the individual is surrounded.106 The duties of individuals owed to the community arise from the fact that belonging to the community comes with benefits and the services which the community provides.107 Bourgeois underscores even the temporal dimension of the association: since the development of the individual personality is possible only within the community to whose development the past generations contributed, members of the community owe a debt also to the future generations;108 an idea, which we would today call sustainable development. According to Bourgeois, there is a natural duty of every individual to carry a share of the burdens within a community, at whose gains he or she partakes.109 In the actual society, Bourgeois argues, to which every individual belongs by virtue of the very fact of being a human, 100

Supiot 2005, p. 73. Ibid., p. 77. 102 Kleinlein 2012, p. 210. 103 Bourgeois 2020, p. 33. 104 Ibid., p. 25. 105 Ibid., p. 48. 106 Ibid., p. 30. 107 Ibid., p. 37. 108 Ibid., pp. 37 and 48. 109 Ibid., p. 53. 101

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‘everybody is necessarily a debtor to all. This is the burden of freedom.’110 From this, Bourgeois draws a moral conclusion: Being good means to perceive oneself as a member of society; seeking isolation from it, is evil.111 But what is the role of the law in this concept? According to Bourgeois, while the belonging to the community established a quasi-contractual relationship;112 the role of the law is to ensure the equivalence of direct and indirect benefits, which every partner to this quasi-contract seeks to secure;113 this includes also the ratio of debt owed, the burden carried and the gains made.114 But in addition, the law needs to acknowledge the equal value of the individuals despite the existing actual inequalities. It is for this reason, and it is an important normative implication of the concept, that the law must not magnify the existing actual inequalities.115 This quasi-contract constitutes, as we would say today, a standard of review for the positive law. Any external power, any authority, political or social, exercised by the State (in Duguit’s parlance meaning those who govern) or the society may only intervene if it respects the ‘natural conditions’ of allocation of burdens, debts, and benefits.116 According to Prosser,117 it means that state regulation based on social solidarity must have a role to ‘prevent or limit the socially fragmenting role of markets’, as opposed to a market failure approach, whereby the regulation is ‘a second best where markets fail’. The question which remains, is to what extent these structural normative implications of solidarity must be validated and shaped through a corresponding social awareness, as postulated by Duguit.

6.3.5 Global (‘Intersocietal’) Solidarity as the Source of International Law Duguit extrapolates his solidarity-based theory of law to the international level. The way solidarity creates social bonds among the members within a given society, e.g., within a state, it may also create such bonds among members of two or more different societies.118 Georges Scelle speaks of ‘sociability potential’ which extends to the entire planet.119 Here again, it is the solidarity relations among individuals and awareness of those relations that create law. The difference between national law 110

Ibid., p. 41. Ibid., p. 31 citing Secrétan 1887, referring, however, not to a society (a concept which Bourgeois introduces later), but to ‘humanity’. 112 Ibid., p. 48. 113 Ibid., p. 47. 114 Ibid., p. 38. 115 Ibid., p. 40. 116 Ibid., p. 53. 117 Prosser 2006, p. 382. 118 Duguit 1927, p. 186. 119 Scelle 1948, p. 18. 111

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and international law is only that in the former case the law is generated by social bonds within a state territory, while in the latter case the focus is on the social bonds that traverse state borders, in Scelle’s words ‘international sociability’.120 This is why Duguit terms the norms of international law ‘intersocial’ norms.121 A norm of international law is thus established, when there is awareness among the individuals who are subject to this norm that if this norm is violated, harm is inflicted upon the solidarity which links the members of different groups and there should be an organized ‘intersocial sanction’ against the violators.122 This definition is in essence not different from the definition of legal norms within the state. But there are two important observations to be made. First, there is no ‘suprasocial’ power in this concept, that would be in a position to impose law; the law comes from ‘within’ the solidarity relations among the individual members of multiple societies.123 Consequently, it is only individuals that can be subjects to international law, and not ‘states’ which, being only imagined, not empirically observable entities, cannot have any rights. There is accordingly also no room for state sovereignty, the state consent as a source of international law, and, as already mentioned, a distinction between private and public international law. This is the foundation of George Scelle’s international law theory.124 Second, Duguit’s definition of law presupposes that the violations can be ‘sanctioned’. To this end, there must be some form of organized compulsion which would validate the ‘intersocietal’ jurisdictional function.125 Also, the legislative function (in Duguit’s view of lesser importance) understood as creation of positive law is difficult to construct. This is because the respective ‘intersocietal’ mechanisms are rather weak, and they were even weaker at Duguit’s time of writing (1927–1930). Duguit puts some faith in the League of Nations,126 but leaves the problem largely unresolved. It is precisely this gap that Scelle fills with the idea of ‘role-splitting’, to be presented in the following section. Scelle observes that international law does not emerge from the juxtaposition of states, but through their mutual penetration by the people by means of international commerce.127 Sociability, Scelle argues, creates multiplicity of societies each with its own legal order based on the solidarity among its members.128 A state and its legal order are only but one such society. There are also non-state collectivities; Scelle gives an example of churches; today we would also add e.g. non-governmental organizations.129 Within this multiplicity of different societies and legal orders, each 120

Ibid., p. 510. Duguit 1927, p. 185. 122 Ibid., p. 188. 123 Ibid., p. 188, Scelle 1948, p. 9. 124 Ibid., p. 23: ‘A state cannot be sovereign’. 125 Duguit 1927, p. 191; Scelle 1948, p. 16. 126 Duguit 1927, p. 197. 127 Scelle 1948, p. 18. 128 Ibid., p. 23, see also Kleinlein 2012, p. 212. 129 Ibid., p. 23. 121

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of the legal orders is autonomous, but it is the law of the international society that should top the hierarchy.130 The reason is that the particular legal orders are tailored to the interests of the particular community, while the global international legal order should be their synthesis and therefore, it cannot be undermined by interests that are more particular or limited.131 According to Scelle, the international society is composed not of independent states, but the infinity of individuals and collectivities bound by the links of solidarity.132 The particular interests of these groups must conform to the interests of the global international society.133 Scelle’s concept is a strongly anti-sectarian one.

6.3.6 Role-Splitting Following Duguit’s diagnosis, Scelle observes that the international community (understood as composed only of individuals linked by solidarity bonds across borders) does not have adequately structured organs to fulfil all three social functions (jurisdictional, legislative, and executive) so as to pursue its social goals and common interest. However, it does not mean that there are no organs at all to fulfil those functions; it is the state representatives that do this, e.g., through the conclusion of treaties or by applying countermeasures. But again, Scelle is far from acknowledging any special legal quality of ‘state representatives; those are only on whom the international law confers certain competences’.134 They have competences conferred upon them through the national legal orders and also competences conferred upon them by the international law (law of the international community), by virtue of which they become also agents of international law.135 This is the fulcrum of Scelle’s concept of role-splitting. However, Scelle underscores that the situation in which the social functions of the international community are exercised through role-splitting is not satisfactory; Scelle compares it to anarchy. Ideally, the international community should have its own organs, which would also have the competence to enforce international law’s superior rank in the hierarchy of legal orders. Individuals representing states, rather than having the common interest of the international community at heart, tend to enter into conflicts to satisfy the appetites of their governments (a metaphor Scelle uses frequently) and can go as far as resorting to war to impose their ideas on other governments.136 In this way, the social functions are subordinated to those who can exercise greater force, which Scelle terms ‘international government through 130

Ibid., p. 20. Ibid., p. 20. 132 Ibid., p. 122. 133 Ibid., p. 122. 134 Ibid., p. 13; Kleinlein 2012, p. 222. 135 Scelle 1948, p. 23. 136 Ibid., p. 22. 131

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facts’.137 Therefore, to adequately cater to the common interest, there is a need to have a common public authority.138 Scelle seems to suggest that the closer we get on the way towards the establishment of such an authority, the better the common interest is catered for, and the ampler the global solidarity is realised.

6.4 Solidarity Agenda Versus Backlash Agenda 6.4.1 BITs, Objective Law and Role-Splitting The solidarity-based objective law provides a standard against which the BITs—the positive law—must be measured. If they do not comply with the objective law, they must be considered anti-legal. This is a fact of which the government agents negotiating the investment treaties must be aware. By virtue of role-splitting, they must consider themselves as law-makers of the international community. Their objective and major concern must be how to best translate the objective law reflecting intersocial solidarity into the treaty norms. This is the basic conceptual gain of Scelle’s theory. Based on this theory, two types of arguments can be made. The first type would be to capture the social facts which give rise to the objective law in the area concerning cross-border investment. Social fact is awareness of the individuals.139 From this perspective, the backlash against the IIL in all its forms, including the critical scholarship, is a social fact. Even the establishment of the UNCITAL working group, the emergence of new types of the BITs more responsive to the development needs of the host states’ societies, creeping change of spirits in the capital-exporting countries who have become capital importing countries as well—these are all social facts. And those are facts that give rise to new norms of objective law with which especially the second-generation BITs do not sit comfortably anymore. Moreover, the moral condemnation of racism and colonial oppression and the resulting awareness of it are social facts too. If one applies Duguit’s definition of legal norms to these social facts, one may safely assume that any attempt to establish any form of a racist, colonial subjugation would be countered by the awareness that such an attempt must be met with an organised sanction. Given the colonial roots of the IIL, it is already at this point, at which its disaccord with the objective law starts. But changing awareness—and the objective law with it—is a process. How far has it come? As far as to say that an application of a second-generation BIT or a conclusion of a new one must be countered by an organized sanction of the international law too? Or, rather, is it only a process of objective law in the making with many struggles ahead? Even if the levels of awareness are difficult to measure—certainly a weak 137

Ibid., p. 22. Ibid., p. 23. 139 Duguit 1927, p. 653. 138

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point of the theory discussed here—one can venture to make some statements about the emerging trends. Accordingly, one cannot for example claim any longer, that an organised international sanction must be in place against those who challenge the economic power of investors by standing up for the rights of local communities. A norm that investing abroad necessarily comes with privileges, too, does not anymore seem to reflect the universal awareness of social facts. The other type of argument can be derived from the very structure of the international legal order as an order based on the inter-societal solidarity to which Bourgeois refers as ‘natural conditions’ of allocation of burdens, debts, and benefits. Does the IIL respect those natural conditions? This is what the following sections will focus on.

6.4.2 Debt Owed by Investors In Bourgeois’ parlance, the investors would owe to the society of the host state and the local communities affected by the investment a debt. Rather than exempting foreign investors from it, the IIL’s paradigm should be a determination of a fair debt ratio. By investing, the investors become a part of the society in which the investment is made, or in other words, they become entangled in the network of social bonds determined by the division of labour, not only by virtue of physical presence and use of natural resources but also through participation in the local supply chains, hiring of local employees and benefitting from their skills and expertise, etc. They become beneficiaries of the services offered locally (in the broadest sense), such as the provision of security or infrastructure facilities (roads, water, etc.). And the fact of partaking in the solidarity within the society of the host state implies the existence of debt towards this society, or in other words, the investor has to carry his part of the responsibility for the society’s public interest as a burden based on the fact that the investor was allowed to invest. Yet, the IIL in its current state does not regard the investor as a debtor. Under the BITs, investing is not a source of responsibility, but rather an achievement worth rewarding. The reward takes the form of access to the ISDS and guarantees of treatment which are sometimes more protective than the one offered by the home state. This is even worse than seeking isolation from the host state’s societies which would be on the side of ‘evil’ on the moral compass postulated by Bourgeois. On the opposite side, Perrone requires foreign investors ‘to behave as members of the host country and local community, with rights as well as obligations’.140 It is this idea of debt and of shared responsibility for the home state’s society that enables a ‘development-oriented and holistic perspective of FDI governance’,141 instead of a legal regime that views the investor as an outsider entitled to privilege. The difference between the current position of an entitled outsider and the position of an 140 141

Perrone 2021, p. 206. The term used by Perrone 2020, p. 3.

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agent of solidarity carrying a share of responsibility may have practical implications. For example, in a recently decided case of Eco Oro v. Columbia, the ICSID Arbitral Tribunal found Columbia to be in violation of the FET standard. The measure at stake was a ban on mining, aimed at the preservation of a vital source of fresh water in the area in which the claimant (a Canadian mining company Eco Oro) had previously secured mining licenses. The tribunal argues with Eco Oro’s entitlement to be provided a stable and predictable regulatory environment.142 Moreover, according to the Tribunal, the environmental exceptions provided for in the Canada-Columbia Free Trade Area Treaty—the basis for the claim, even if applicable, did not exempt Columbia from the duty to pay compensation to the investor.143 The outcome might have been different, had the Tribunal acknowledged a fair share of responsibility of the company for the supply of fresh water and the ecosystem, rather than juxtaposing an entitlement to a stable and predictable business environment with the police powers of the Columbian state. Attributing such a share of responsibility to the investor, or— to stay with the terminology of Bourgeois—determining the investor’s ratio of a debt owed to Columbian society is not far-fetched, given the presence of the investor in Columbia since the 1990s.

6.4.3 Sovereignty and Sectarianism For Scelle, sovereignty is an expression of national egoism which a solidarity-based international legal order is set to overcome. From the Third World perspective, this idea does not have to be appealing. In interwar Western Europe,144 the sovereignty might have been regarded by progressive jurists as synonymous with a reckless pursuit of sectarian national interests which ultimately led to the outbreak of World War I. In the African States about to achieve independence, the newly acquired sovereignty was an attractive idea regarded by many as a shield against colonial oppression and an instrument of restoring the agency of individuals, who, according to Scelle, are the only subjects of international law. Accordingly, in the context of IIL, much of the discourse has been about reclaiming the regulatory space of the host state,145 which at least at first blush collides with Scelle’s anti-sovereignty rhetoric. Remarkably, Scelle fails to make a case for decolonisation which would eventually happen some fifteen years after the publication of Scelle’s Public International Law textbook. The respect for the human person which is at the core of his thought would

142

ICSID Tribunal, Eco Oro Minerals Corp v Republic of Colombia, Decision on Jurisdiction, Liability and Directions on Quantums, 9 September 2021, ICSID Tribunal Case No. ARB/16/41, para 805. 143 Ibid., para 830. 144 This is not necessarily the case for the States in Central and Eastern Europe, which regained independence after decades of foreign subjugation. 145 Milej 2021.

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require, Scelle claims, a prohibition of slavery and ‘slavery colonialism’,146 but not of all forms of colonisation which, in Scelle’s words, should be merely ‘regulated’.147 Similarly, Scelle’s thoughts on possible decolonisation are rather descriptive; he describes it as a new allocation of territorial and personal competences of state governments.148 This shows the eurocentrism of Scelle’s concept which at least tolerates illegitimate racialized hierarchies. Therefore, there can be no question that his stance on colonialism must be rejected. However, as much as Scelle misses the point when it comes to decolonisation, his idea of international law as a shield against sectarian interests may offer a useful tool to advance the interests of disenfranchised individuals and communities. Given that solidarity by division of labour requires not only respect for the autonomy of individuals and communities, but even the fullest realization of the same, neither individuals as ‘legal agents’ nor local communities may be left out of the process of establishing the rules of objective law. Moreover, for Scelle, international law is a shield against sectarian interests, and this applies to the interests of foreign investors as well. Scelle understands the international legal order as a synthesis of particular interests,149 or, as Duguit explains, it is not an order in which a ‘suprasocial’ power would impose its will on subordinated groups, e.g., the societies within nation-states. It is an order based on cross-border individual interactions which establish bonds of solidarity.150 The consequence of this concept is that the autonomy of the particular communities must be respected. And those communities are, according to Scelle, not just societies within national states, but also families, churches, trade unions, etc. As noted by Kleinlein, Scelle’s idea of law is pluralistic,151 which is a consequence of the fact that the idea of solidarity is by no means limited to and by the idea of a nation-state. In the context of the IIL critique, it is especially the indigenous local communities that must be mentioned; communities whose interests may be and are affected by the investment projects and which a state-centred IIL disenfranchises by making them disappear under the umbrella of state sovereignty. Following Scelle’s approach, it is also their autonomy that must be respected and not just the autonomy of the state. And when Scelle says that international law should supersede the national law, it is only then, when common interest of the international community has been created by cross-border solidarities. The idea that international law tops the hierarchy of legal orders is a means to advance common interests over particular interests. In other words, international law supersedes the local law, once the common interest is adversely affected by the particular interests. It is a hierarchy of objective law. By no means, however, should the sectarian interests of investors in any way prevail 146

Scelle 1948, pp. 120, and 510. Ibid., p. 510. 148 Ibid., pp. 136–137. According to Kleinlein, Scelle’s stance on colonization is ‘neutral’. Kleinlein 2012, p. 220. 149 Scelle 1948, pp. 20–21. 150 Duguit 1927, p. 188. 151 Kleinlein 2012, p. 212. 147

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over the interests of local communities only because it has been given a sanction of positive international law. If one were to look for the expression of the common interest of the international community today, one would look into the SDGs, as even alluded to by Bourgeois. The anti-sectarian dye of Scelle’s concept makes it akin to Perrone’s call for a new development-oriented paradigm in the FDI governance. It also resonates well with the ideas of one of TWAIL’s grandmasters, Mohammed Bedjaoui, with his idea of a ‘collective economic security’ which would have to involve all states and their resources.152 Scelle’s anti-sectarianism sits also well with the idea of the common heritage of mankind which, according to Bedjaoui, should be at the heart of a New International Economic Order, but must not be abused to claim monopoly over natural resources.153 Given that the Scellian concept does not recognise subjective rights, but only competences conferred by law, an allocation of those competences to the host states, to the investors, to the local communities and individuals affected by the investments would have to aim at the fullest possible realisation of the universal common interest in sustainable development, while respecting the autonomy of each of those groups. There is thus space for a regulatory autonomy of the host state, which, however, does not flow from the host state’s sovereignty, but is conferred upon it by the objective norms of international law, oriented towards a common interest. A similar point can be made with regard to ISDS. From the perspective of Scelle’s theory, the ISDS tribunals may be described as sectarian courts, for their role is to oversee the enforcement of sectarian investment treaties, biased towards the investors. Under the theory of role-splitting, the legal agents, both those who create such tribunals as well as the adjudicators are under the obligation to translate the objective law into positive law. Consequently, the ISDS tribunals, rather than being agents reconciling the interests of the parties, namely the investors and the ‘sovereign’ host state, would have to be constituted as organs exercising the jurisdictional function of the international community in the Scellian sense. In so doing, they would become agents of a holistic conception of FDI governance based on the sustainable development agenda. Historically, the arbitral tribunals were perceived more as agents of the parties to the particular dispute and their role did not go beyond the dispute at hand. It was the emergence of permanent judicial bodies at the beginning of the 20th century that was meant to fulfil the vision of an international court as an organ of an international community.154 Whereas the international community at that time was an exclusive concept centred on European ‘sovereign’ States,155 the Scellian concept based on inter-social solidarity under present-day conditions, encompassing a myriad of communities and based on the international subjectivity of individuals paves a way for the international community’s new, more inclusive edition. But for a court to be an organ of such a community, a certain input-legitimacy requirement 152

Bedjaoui 1979, p. 240. Ibid., p. 239. 154 Milej 2017, pp. 22–23. 155 Anghie 2005, pp. 53 et seq. 153

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should be met. The diversity of the bench is the main one and, as outlined, it is lacking under the current system. And as long as such an international adjudicative organ of the international community is not in place, the investment disputes should remain within the jurisdiction of the national courts, in line with Scelle’s theory of role-splitting. It is for those courts to exercise the judicial function of the international community.

6.4.4 Against the ‘Anarchy of Appetites’ Preventing the ‘anarchy of appetites’ is one of Scelle’s156 and Duguit’s157 central concerns. This is also where the critique of sovereignty and the idea of states having rights under international law comes from. In Scelle’s opinion, those two form a basis for political and economic conquest, the establishment of commercial monopolies, and ‘slavery colonialism’.158 However, Scelle’s solution is, as mentioned, not decolonisation, but open borders which would include free commerce, free circulation of people and capital, and equal access to raw materials.159 Those are quite central ideas, because they form the basis for the international sociability160 which, in turn, produces cross-societal solidarity. And it is this solidarity that forms the basis for the objective law. From this, Scelle derives a duty to open the territory, to participate in the exchange of goods, services and ideas, and to refrain from self-exclusion from the international community, because it is the law of this community from which the given state is benefitting.161 At the time of Scelle’s writing, this was likely to mean that the access to natural resources of a colonised territory should not be limited to just one colonial power, but should be accessible to all colonial powers. The implications of such an approach are problematic from the perspective of the backlash agenda also under the present-day conditions. Quite obviously, the ‘equal access to natural resources’ flies in the face of the principle of sovereignty over national resources, so high on the NIEO agenda.162 Moreover, following this line of reasoning, one would have to postulate an elimination of the restrictions to the admission or establishment of foreign investment. Yet, some of those restrictions, e.g., a duty to partner with local enterprises, have been put in place to advance legitimate development needs, such as protection of small local businesses against competition from big companies or transfer of know-how.163 In addition, unlimited 156

Scelle 1948, p. 120. Duguit 1927, p. 728. 158 Scelle 1948, p. 120. 159 Ibid., p. 121. 160 Ibid., p. 510. 161 Ibid., p. 117. 162 Haight 1975, p. 594. 163 Milej 2017, p. 11. 157

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access of prospective investors to the host state market poses a risk to the participatory rights of local communities. Obviously, replacing permanent sovereignty over natural resources with unregulated market would privilege those who have economic power, most likely big multinational companies. In this case, quite paradoxically, rather than restraining appetites of the powerful, an unregulated market access would be likely to feed those appetites. Therefore, as much as free movement of people and capital is necessary to make the most of the inter-social solidarity and the division of labour, it cannot go unregulated. If the permanent sovereignty over natural resources is meant to empower the disempowered and to restrain the powerful, the same is true for the ideas of Scelle, and even more so for those of Bourgeois. Yet, according to these scholars, it is not the sovereignty that fulfils the functions of empowerment and restrain, but the objective law based on inter-social solidarity. And, as noted above, it is for this reason that the objective law necessarily follows certain structures, namely, it recognizes that freedom comes with a debt, it does not magnify inequalities and it limits the socially fragmenting role of markets. Duguit makes this point referring to the very idea of solidarity by division of labour which he regards as a precondition of any social progress. Accordingly, there can be no such division, if a powerful social group uses its power to suppress or ‘uselessly limit’ activities and initiatives of others. Duguit regards such behaviour as anti-social and thus illegal.164 So, if the (objective) law is there to thwart such actions, it also assures that the actions by powerful investors do not suppress or ‘uselessly limit’ the initiatives and actions of less powerful, such as indigenous communities, factory workers, and small entrepreneurs (e.g., by establishing monopolies) in the host states. And again, the fact that the discussed concept does not recognise sovereignty (and this includes sovereignty over natural resources), does not mean that it does not recognise the regulatory autonomy. The difference is that the competence to regulate in the public interest is based not on sovereignty, but is conferred upon the national government by objective, inter-social law. Furthermore, and quite importantly, the competence to regulate can be conferred not only upon state governments, but also upon local authorities or indigenous communities. Finally, what does it mean in the context of the IIL to limit the socially fragmenting role of markets? If this is the function of the objective law, then it means that objective law must confront those investment structures that push African economies into the raw commodities corner. But above all, it means that the objective law must stand for a holistic perspective on the FDI governance, which is a perspective that necessarily merges the economic and social aspects of foreign investment. And those are aspects which the IIL in its current state separates. Worse still, by codifying the standards of investment protection it places a premium on the economic interests of investors while leaving the social dimension of investment (mitigating negative externalities, ensuring the economic benefits for the local people) to the host state and its internal law. It is this divorce between the economic and social dimensions of investment that fuels a debate on the host state’s right to regulate. The traditional IIL’s paradigm 164

Duguit 1927, p. 676.

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echoes an individualistic idea which, according to Supiot, a contemporary scholar in the French sociological school tradition, underlies the French civil code. It is the idea that a just social order would emerge, only if liberty and equality will be guaranteed to parties (individual and juristic persons) entering into contracts with each other.165 A market, Supiot continues, eliminates all discrimination save for the one based on money.166 Similarly, the international regulation of investment seems to assume that welfare would kick in once the investors are assured of FET, security of property and non-discrimination. By limiting itself to the protection of foreign investors, it fails to acknowledge that non-discrimination also means non-discrimination of domestic investors in relation to the foreign ones. But most importantly, the question of inequalities and the socially disruptive role of the market is out of its purview, left entirely to the host states. This includes the developing and least-developed States which sometimes may lack capacities to address it adequately.

6.5 Conclusion The Scellian tradition of the international law, rooted in the French sociological School shaped by the ideas of Duguit and Bourgeois examined here, fails to offer a straightforward case for a reform of the IIL in line with the backlash agenda. It is, in particular, Scelle’s lack of commitment to decolonisation which is very disturbing. However, the solidarity agenda has considerable potential to spur a paradigm change in the IIL. It can be used to make a case for a legal regime that goes beyond an opposition of ‘investors’ rights’ and the host states’ right to regulate and provides for a holistic perspective of FDI governance, based on intra-social and inter-social solidarity, maximising the positive externalities of FDI and minimising its negative impact, one that respects the agency of local communities and contributes to sustainable development. The idea of the process of construction of objective law norms captures well what has been described as a backlash against IIL in Africa. This backlash is a process. It is a process that restores African agency, changes the reality of international relations, dismantles illegitimate racialized hierarchies, creates a new, more inclusive international community, and hence also new objective law. But even when captured well, the process is far from being completed and it is not said that it will be smooth or linear. As observed by Duguit, what is important is to win the spirits and change the conscience. The juxtaposition of objective law and positive law, the duty of government agents to translate the former to the latter may be used as a powerful argument against the pro-investor bias in the current IIL and for the restoration of the agency of African societies, Africa’s local communities and Africa’s people. Sovereignty as a shield against oppression and empowering tool might have been underestimated by Scelle, who wanted it to be replaced by objective international 165 166

Supiot 2005, p. 73. Ibid.

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law. Scellian international law is a legal regime based not on the ‘will of States’, but a one rooted in inter-social solidarity. Consequently, it is not for the governments to make this law, but rather for the law to allocate competences to the governments and other legal agents. But looking at the sovereignty from today’s perspective, and also looking at the pro-investor bias of the IIL, one may doubt, whether sovereignty has indeed proved to be a firm shield and an efficient empowering tool. And in this regard, international law has a role to play. However, it is a law that meets certain conditions. Most notably, it must acknowledge that freedom comes with a debt, it must not magnify inequalities, it must strive for an inclusive international community, it must respect the autonomy of individuals, it must mitigate the socially disruptive role of markets and it must counter the abuse of economic power which limits the agency of individuals and the local communities in the host state. In short, it must comply with objective law that is based on inter-social solidarity. At this junction, Scellian objective law meets the tradition of Mohammed Bedjaoui who imagined international law as a custodian of a common heritage of mankind. This is the standard against which the IIL must be measured. And as long as it is biased towards sectarian interests of investors, it is indeed anti-legal.

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Franck S D et al (2015) The Diversity Challenge: Exploring the “Invisible College” of International Arbitration. Columbia Journal of Transnational Law 53:450 Gaukrodker D, Gordon K (2012) Investor-State Dispute Settlement: A Scoping Paper for the Investment Policy Community. https://www.oecd-ilibrary.org/finance-and-investment/investorstate-dispute-settlement_5k46b1r85j6f-en. Accessed 20 May 2022 Grovogui S N (1996) Sovereigns, Quasi Sovereigns, and Africans: Race and Self-Determination in International Law. University of Minnesota Press Haight G W (1975) The New International Economic Order and the Charter of Economic Rights and Duties of States. The International Lawyer 9:594 Hansen P, Jonsson S (2018) Eurafrica: History of European Integration, “Compromise” of Decolonization. https://www.europenowjournal.org/2018/02/28/eurafrica-history-of-europeanintegration-compromise-of-decolonization/. Accessed 20 May 2022 ICSID (2021) The ICSID Caseload—Statistics Issue 2021-2. https://icsid.worldbank.org/sites/ default/files/Caseload%20Statistics%20Charts/The%20ICSID%20Caseload%20Statistics%202 021-2%20Edition%20ENG.pdf. Accessed 20 May 2022 Ignatieff M (2017) The Ordinary Virtues: Moral Order in a Divided World. Harvard University Press Jandhyala S et al (2011) Three Waves of BITs: The Global Diffusion of Foreign Investment Policy. Journal of Conflict Resolution 55:1047 Kidane W (2018) Contemporary International Investment Law Trends and Africa’s Dilemmas in the Draft Pan-African Code. George Washington International Law Review 50:530 Kleinlein T (2012) Konstitutionalisierung im Völkerrecht: Konstruktion und Elemente einer idealistischen Völkerrechtslehre. Springer Kryvoi Y (2020) Three Dimensions of Inequality in International Investment Law. British Institute of International and Comparative Law, London Malakotipour M (2020) The Chilling Effect of Indirect Expropriation Clauses on Host States’ Public Policies: A Call for a Legislative Response. International Community Law Review 22: 238 et seq Mbengue M M, Schacherer S (2019) Evolution of International Investment Agreements in Africa: Features and Challenges of Investment Law “Africanization”. In: Chaisse J et al (eds) Handbook of International Investment Law and Policy. Springer, Singapore, p 21 Milej T (2017) Striking the Right Balance Between the Interests of the Foreign Investors and the Host State—A Case Study of the Tanzania-Germany BIT 50 Years After Its Conclusion. African Journal of International and Comparative Law 25:11 Milej T (2021) Reclaiming African Agency: The Right to Regulate, the Investor-State Dispute Settlement and the ‘Africanisation’ of International Investment Law. https://ssrn.com/abstract= 3839434. Accessed 20 May 2022 Mutua M W (2000) What Is TWAIL? Proceedings of the ASIL Annual Meeting 94:31 Newcombe A (2010) Fakes vs. Phoenix. http://arbitrationblog.kluwerarbitration.com/2010/08/03/ fakes-vs-phoenix/. Accessed 9 September 2022 Odumosu-Ayanu I T (2019) Local Communities, Environment and Development: The Case of Oil and Gas Investment in Africa. In: Miles K (ed) Research Handbook on Environment and Investment Law. Edward Elgar Publishing, Cheltenham, p 503 OECD (2004) “Indirect Expropriation” and the “Right to Regulate” in International Investment Law. OECD Working Papers on International Investment 2004/04 Okoth-Ogendo H W O (2002) The Tragic African Commons: A Century of Expropriation, Suppression, and Subversion, Land Reform and Agrarian Change in Southern Africa. An Occasional Paper Series 24:5 Pathirana D (2021) Promoting Japanese Private Investments in Africa: A Clash of Interests. https://www.afronomicslaw.org/index.php/category/analysis/promoting-japanese-privateinvestments-africa-clash-interests. Accessed 20 May 2022 Perrone N M (2020) The ISDS Reform Process: The Missing Development Agenda. Investment Policy Brief 19:3

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Perrone N M (2021) Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules. Oxford University Press Peters J et al (2021) Memorandum Regarding Comparative Research on Investment Protection Standards and Procedures. https://www.somo.nl/wp-content/uploads/2021/03/ALC-Compar ative-Research-on-Investment-Protection-Standards-and-Procedures-1-1.pdf. Accessed 20 May 2022 Prosser T (2006) Regulation and Social Solidarity. Journal of Law and Society 33:382 Qumba M F (2019) South Africa’s Move Away from International Investor-State Dispute: A Breakthrough or Bad Omen for Investment in the Developing World? De Jure Law Journal 52:360 Ramdoo I (2016) Local Content, Trade and Investment: Is There Policy Space Left for Linkages Development in Resource-Rich Countries. ECDPM Discussion Paper 205:27 Scelle G (1948) Manuel de Droit International Public. Domat-Montchrestien Secrétan Ch (1887) La civilisation et la croyance. Alcan, Paris Supiot A (2005) Sur Le Principe de Solidarité. Rechtsgeschichte 6:73 Taylor I (2016) Dependency Redux: Why Africa Is Not Rising. Review of African Political Economy 43:13 Thierry H (1990) The Thought of Georges Scelle. European Journal of International Law 1:199 UNCTAD (2018) Investor-State Dispute Settlement: Review of Developments in 2017. https://unc tad.org/system/files/official-document/diaepcbinf2018d2_en.pdf. Accessed 20 May 2022 UNCTAD (2021) Investor-State Dispute Settlement Cases: Facts and Figures 2020. https://unctad. org/system/files/official-document/diaepcbinf2021d7_en.pdf. Accessed 20 May 2022 UNCTAD (undated-a) Kenya Bilateral Investment Treaties (BITs) https://investmentpolicy.unctad. org/international-investment-agreements/countries/108/kenya. Accessed 3 October 2022. UNCTAD (undated-b) South Africa Bilateral Investment Treaties (BITs) https://investmentpolicy. unctad.org/international-investment-agreements/countries/195/south-africa. Accessed 20 May 2022 UNCTAD (undated-c) Tanzania Bilateral Investment Treaties (BITs) https://investmentpolicy. unctad.org/international-investment-agreements/countries/222/united-republic-of-tanzania. Accessed 3 October 2022. UNCTAD (undated-d) Uganda Bilateral Investment Treaties (BITs) https://investmentpolicy.unc tad.org/international-investment-agreements/countries/218/uganda. Accessed 3 October 2022. Van Harten G (2007) Investment Treaty Arbitration and Public Law. Oxford University Press Vargiu P, Seatzu F (2015) Africanizing Bilateral Investment Treaties (BITs): Some Case Studies and Future Prospects of a Pro-Active African Approach to International Investment. Connecticut Journal of International Law 30:163

Tomasz Milej Professor, School of Law, Kenyatta University, Nairobi, Kenya.

Chapter 7

Differential Treatment for Developing Countries as a Manifestation of Solidarity: Overcoming New Challenges by Going Back to the Basics Athar Ud Din

Contents 7.1 7.2 7.3 7.4 7.5

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International ‘Society’ and Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Solidarity and Its Scope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Nature of Solidarity in International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Differential Treatment as a Manifestation of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.1 Differential Treatment in International Trade Law . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.2 Differential Treatment and Climate Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.6 Nature of Differential Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7 Differential Treatment and ‘Emerging Powers’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.7.1 Significance of the Existing Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8 Going Back to the Fundamentals of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.8.1 A Possible Way Out . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.9 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

130 131 132 133 134 136 137 139 141 143 144 146 147 148

Abstract Differential treatment favouring developing countries is an important manifestation of solidarity. However, granting differential treatment to developing countries, especially emerging powers, has become contentious. This chapter provides an overview of differential treatment in international law, with a specific focus on international trade and climate change law. It concludes that doing away with differential treatment will adversely affect the role of solidarity in international legal relations. Accordingly, a hierarchical form of differential treatment that is in tune with the concept of solidarity could provide a way forward to resolve the current impasse. Keywords Solidarity · Common But Differentiated Responsibilities · Special and differential treatment · Developing countries · Emerging powers · Differential treatment A. Ud Din (B) Centre for International Relations, Islamic University of Science and Technology, Awantipora, J&K, India e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_7

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7.1 Introduction Solidarity in international relations provides a refreshing alternative to a thoughtprocess where international legal relations are conceptualized only on the basis of competition and strict reciprocity. A legal framework based on solidarity essentially connotes that States do not have to compete perpetually against each other; rather, they have common interests that can be fulfilled through cooperation and by assisting weaker members of the international society.1 Accordingly, differential treatment is adopted in many legal regimes to provide varying forms of flexibilities and assistance to weaker members of the international society, e.g., developing countries.2 However, recent developments indicate that there is a growing unreceptive attitude towards differential treatment, especially towards those developing countries that have experienced rapid economic development. The withdrawal of the General System of Preferences in favour of developing countries like India3 and contestations surrounding the exemptions from hard legal obligations in climate change law for countries like India, China, and South Africa can be cited as examples. Developments like these could revert international legal relations to a framework wherein exclusive focus is given to complete reciprocity. This chapter is divided into the following sections. Section 7.2 discusses the nature of international legal relations and illustrates that solidarity is an inextricable part of contemporary international society. Section 7.3 focuses on the scope of solidarity and demonstrates that providing differential treatment to developing countries is a manifestation of solidarity. By using the examples of differential treatment in international trade and climate change law, Sect. 7.4 illustrates the nature of differential treatment. Subsequently, the chapter discusses the adverse implications of the recent trends against providing differential treatment to developing countries, especially the emerging powers. Towards the end, the chapter highlights the necessity to recognize the essence of solidarity and rework international legal relations on that basis. In this context, it provides suggestions that are in tune with the concept of solidarity and can provide a way out of the current impasse relating to differential treatment for developing countries.

1

Williams 2009, p. 497. For instance, in the WTO Special and Differential Treatment provisions provide “special rights” to developing countries in general, with some provisions aiming at favourable treatment for Least Developed Countries (LDCs). See World Trade Organization (n.d.) Special and differential treatment provisions. https://www.wto.org/english/tratop_e/devel_e/dev_special_differential_ provisions_e.htm. Accessed 15 April 2022. On the other hand, in the case of the UNFCCC the divisions of States into annex and non-annex countries is understood as a division between developed and developing countries. See Rajamani 2008; Stone 2004; Williams 2009; Deng and Chen 2016. 3 Office of the United States Trade Representative 2019. 2

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7.2 International ‘Society’ and Solidarity One way to conceptualize state-centric international society is to view it through the prism of competition.4 For instance, using the metaphor of a lifeboat, Hardin emphasized how the interests of States (especially the rich and the poor) are in direct conflict with each other.5 Accordingly, each State has to look for its interests and recognize that assisting other States will result in self-harm. While a degree of self-help exists in international relations on account of the absence of a central authority, it is essential to consider to what extent the description of the international system provided above is relevant to the current global order. The fundamental questions relate to defining the nature of interests of States. Do States have interests that are always in conflict with each other? Over the years, States have become interconnected. They frequently interact in diverse aspects like trade, management of global commons, civil aviation etc. Moreover, developments that take place within a State have international implications. Be it in economics, security, environment etc.; the international community can no longer afford to show complete indifference towards events that unfold in any particular State. More importantly, there are several issues that States have to address jointly by cooperating with each other. This is because these issues affect all States, and effectively responding to them is beyond the capacity of a single or even a group of States. Issues relating to environmental protection can be cited as examples. Whether it is the depletion of the ozone layer, desertification, or long-range transboundary air pollution, States have to cooperate to respond effectively. Interdependence among States is also reflected in other areas like international trade and health where developments happening in any part of the world can have global ramifications. The outbreak of the Covid pandemic is a case in point. Therefore, a conception of international relations that is essentially based on conflicting interests among States is not relevant to the current global order. Interdependence and mutual interests are essential attributes of the current global order. They have given rise to an international society that is held together by common bonds. Any society held together by common bonds results in the development of solidarity among its members. Solidarity is a logical corollary of the emergence of an international society of States on account of interdependence, mutual interests and interconnectedness.6 Accordingly, solidarity emanates from the very nature of contemporary international relations.

4

See, e.g., Hardin 1974. Ibid. 6 French 2000; MacDonald 1996; Williams 2009. 5

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7.3 Solidarity and Its Scope While conceptualizing solidarity, two possible approaches could be adopted. First, solidarity could be conceptualized in a manner that essentially involves treating the interests of States as interlinked. Any action that is harmful to the interests of other States should be avoided. For instance, McDonald provides the following understanding of solidarity: ‘Solidarity requires an understanding and acceptance by every member of the community that it consciously conceives of its own interests as being inextricable from the interests of the whole’.7 Cullet conceptualizes solidarity as a partnership that aims to resolve common concerns of all States.8 Second, a broader approach to solidarity involves an emphasis on providing assistance to weaker sections of the society.9 In this case, the nature of the obligation is not restricted to the prohibition of any action that harms the interests of other States. Instead, it involves positive actions that are aimed to assist weaker members of the international society. In other words, it dilutes the traditional approach towards international legal relations that was based on strict reciprocity.10 It permits non-reciprocal relations that may provide more benefits one side, generally the weaker side. It is important to mention that in any society weaker members have legitimate expectations of assistance from the privileged ones. This is also evident at national levels, where provisions relating to affirmative action favouring weaker members of society are given a legal shape. Examples can be cited of legal provisions of countries like India and the United States of America (USA) that provide affirmative action in favour of marginalized sections of the society.11 As interests of States are interlinked and common, assisting weaker States will eventually result in the better accomplishment of joint interests. For instance, assisting weaker States to enable them to protect the environment will eventually result in the reaping of joint benefits. Dann lists the following three essential elements of solidarity: common objective, equality of partners, and mutuality of obligations.12 Out of the three, the first one, i.e., a common objective, is of specific relevance for this section. Common objectives naturally emanate when members are interconnected and interdependent. The other 7

MacDonald 1996, p. 290. Cullet 1999. 9 Williams 2009. 10 Cullet 1999. In general, many scholars have argued that international law is no longer confined within the boundaries of strict reciprocity. See, e.g., Kiss 1985; Wellens 2010, p. 30. 11 Article 16(4) of the Constitution of India states, “Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State”. In the case of the USA affirmative action is used to benefit groups like women and minorities. See CNN (2019) Affirmative Action Fast Facts. https://edition.cnn.com/2013/11/12/us/ affirmative-action-fast-facts/index.html. Accessed 12 January 2020. 12 Dann 2010, p. 61. 8

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attributes of solidarity mentioned above, i.e., equality of partners and mutuality of obligations, are discussed subsequently in this chapter. Thus, the scope of solidarity should be conceptualized in a broad manner. Apart from recognizing mutuality of interests and a common bond, it also includes providing assistance to weaker members of society.

7.4 The Nature of Solidarity in International Law Solidarity can be conceptualized in various forms. For instance, it can be considered as a necessity arising out of existing circumstances, a principle that guides the action of States, a value, or a right.13 However, the present chapter is immediately concerned with the legal aspects of the nature of solidarity. Existing literature relating to solidarity indicates that it is not a legally binding principle. Rather, it acts as a guiding principle that provides general direction to developing international legal relations. For instance, MacDonald also states that solidarity gives rise to obligations that are moral in nature and lack an effective enforcement mechanism.14 However, being non-enforceable in nature does not diminish the utility or value of solidarity. The use of non-enforceable provisions in the form of soft law is common in international law. Soft law has its own utility, especially in the case of international law, which is often concerned with guiding the behaviour of States, as opposed to ensuring absolute compliance.15 Further, several treaties have incorporated provisions guided by the spirit of solidarity.16 On the other hand, several soft law instruments have recognized the role of solidarity in addressing global challenges. For instance, the submission by the Office of the High Commissioner for Human Rights to the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change states that the problem of climate change requires a global response that is based on solidarity.17 However, solidarity works in an international system where reciprocity continues to play an important role. While solidarity weakens the emphasis on strict reciprocity, it does not mean that the latter should be wholly disregarded. Instead, solidarity should be construed in a manner that results in mutual gains for all. In other words, solidarity works best in an environment where all reap benefits. As mentioned 13

Carozza and Crema 2014. MacDonald 1996. 15 Pronto 2015, p. 954. 16 Examples can be cited of the Convention on Biological Diversity, adopted 5 June 1992, entered into force 29 December 1993, 1760 UNTS 79, Article 16; Charter of the United Nations, signed 26 June 1945, entered into force 24 October 1945, 1 UNTS XVI, Article 55; and the United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107, Article 11. 17 See Office of the High Commissioner for Human Rights n.d. 14

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above, mutuality of obligations is an essential attribute of solidarity.18 Therefore, in the specific case of the relationship between developed and developing countries, solidarity should lead to results that benefit both.19 Under such circumstances, the application of solidarity will be sustainable and will contribute towards the sustenance of treaties as reciprocity does.20 Finally, it is important to mention that solidarity should not be used as a license to interfere in the affairs of other States. For instance, one particular manifestation of solidarity is the concept of responsibility to protect, also popularly known as humanitarian intervention.21 While the exact scope of this principle is still being worked out,22 the misuse or selective use of the principle for political purposes is a strong possibility. Perhaps, the most obvious example in this regard is colonialism itself, which was undertaken as a civilizing mission for the benefit of the colonized.23 However, in this particular case, there was an apparent change in attitude in the case of the trusteeship system, which evolved from a mission aimed at providing governance to ‘uncivilized people’ to an enlightened form where the territories were held in trust for the entire mankind.24 Hence, an increased concern with situations that exist in other parts of the world should be qualified with avoiding misuse of solidarity for political or other related purposes.

7.5 Differential Treatment as a Manifestation of Solidarity As mentioned above, solidarity is a broad concept wherein States must assist weaker members of the international society on a non-reciprocal basis or at least on conditions of “less than full reciprocity”.25 At very minimum, solidarity involves treating the interests of States as interlinked and ensuring that policies adopted by one State do not hurt the interests of other States.26 Differential treatment for developing countries emanates from both conceptions of solidarity. 18

Dann 2010. MacDonald 1996. 20 De Jonge 2014. 21 See e.g., Tzimas 2018; Boisson de Chazournes 2010; Wellens 2010, p. 12. 22 Bolaños 2010. 23 See, e.g., Anghie 2004, p. 96. 24 Melnyk 2013. Also refer to Anghie 2004, p. 194. For a deep analysis of the structurally exploitative nature and implications of administration of territories through international institutions (for instance the Mandate system of the League of Nations), see Anghie 2004, Chapter 03. 25 For an illustration of legal relations based on ‘less than full reciprocity’, see WTO Ministerial Conference 2001a, para 16. 26 MacDonald 1996. 19

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Differential treatment is as a legal arrangement where the provisions of strict reciprocity are set aside, and more favourable treatment is granted to some of the contracting parties.27 It is essential to mention here that some scholars make a distinction between differential treatment and preferential treatment. While the former is associated with more favourable treatment to one set of contracting parties (for instance, developing countries), the latter is associated with one-sided non-reciprocal favours, i.e., more favourable treatment is accorded to one set of parties without any corresponding obligations on their part.28 It is important to note that differential treatment is not necessarily confined to providing more favourable treatment to developing countries. On some occasions, developed countries have been accorded more favourable treatment on account of varied reasons. An example can be cited of the veto power enjoyed by the five permanent members of the UN Security Council (with China as the only developing country)29 as well as the weighted voting mechanism in international financial institutions.30 Historically, even in the case of international trade law, several GATT inconsistent measures have adversely affected developing countries and provided benefits to developed countries.31 Therefore, more favourable treatment granted to developing countries can also be co-opted by their developed counterparts for their benefits.32 However, this chapter focuses on the first aspect of differential treatment, i.e., where strict reciprocity is set aside, and more favourable treatment is granted to developing countries in international legal relations. Differential treatment can be provided to developing countries in diverse forms. At a larger level, two approaches can be identified. First, a different set of obligations are imposed on developing countries as opposed to their developed counterparts. Second, similar obligations apply to both developed and developing countries; however, for the latter, the obligations are qualified through certain conditions that effectively result in more favourable treatment. Such provisions have been termed as ‘contextual norms’,33 as obligations are contextualized through favourable conditions. An overview of differential treatment in the case of international trade law and law relating to climate change is provided below.

27

Cullet 1999. Ibid. 29 De Jonge 2014. 30 See International Monetary Fund (n.d.) IMF Members’ Quotas and Voting Power, and IMF Board of Governors. https://www.imf.org/en/About/executive-board/members-quotas. Accessed 2 December 2021. 31 Whalley 1999, p. 1069. 32 Bedjaoui 1979. 33 Magraw 1990. It is important to mention here that Magraw differentiates between differential treatment and contextual treatment. The former grants more favourable treatment to developing countries by adopting different obligations, while the latter differentiates between States by qualifying and contextualizing similar obligations that apply to all. 28

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7.5.1 Differential Treatment in International Trade Law In the specific case of international trade law, differential treatment is provided to developing countries through Special and Differential Treatment (SDT), which is incorporated in various WTO legal texts. The WTO Secretariat identifies six types of provisions that provide differential treatment to developing countries.34 They include provisions that: a. b. c. d. e. f.

aim at increasing trade opportunities of developing countries, require that the interests of developing country members should be safeguarded, provide flexibility of commitments, actions and use of policy instruments, provide increased transitional time periods, require developing countries to be provided with technical assistance, specifically focus on Least-Developed Countries (LDCs).

It is important to note that the WTO texts in themselves do not mention the rationale for providing differential treatment to developing countries; neither do they lay down the criteria for classifying a State as a developing country.35 However, on account of differences in the levels of economic and technological developments, it was recognized that developing countries will not be able to undertake exactly similar obligations as their developed counterparts. This realization is in tune with the principle of equity which involves taking into account complex historical as well as other relevant circumstances while serving justice.36 On account of diversity among States, it is important to focus on a shared conception of justice.37 Having identical obligations for both developed as well as developing countries will be detrimental to the interest of the latter.38 Therefore, even according to the minimal understanding of solidarity, States are prohibited from taking any action that will hurt the interests of other States. Hence, strict reciprocity is set aside, and differential treatment is accorded to developing countries. The concept of SDT is firmly entrenched in the WTO law. However, over the years, the nature of differential treatment has changed. Before the Uruguay Round of trade negotiations, differential treatment provisions provided ample policy space to developing countries. After the Uruguay Round of trade negotiations, the overwhelming focus of these provisions is to ensure effective integration of developing countries in the WTO’s multilateral trading system.39

34

WTO Secretariat 2013. Within the WTO, a member state designates itself as a developing country, subject to challenges from other members. See World Trade Organization (n.d.) Who are the developing countries in the WTO? https://www.wto.org/english/tratop_e/devel_e/d1who_e.htm. Accessed 8 September 2022. 36 ICJ, Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Separate Opinion of Judge Jiménez de Aréchaga, 24 February 1982, 1982 I.C.J. Reports 100, para 24. 37 Francioni 2013, para 3. 38 See, e.g., Cullet 1999, p. 554. 39 WTO General Council 2001; WTO Ministerial Conference 2013. 35

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Further, several provisions in the WTO agreements focus on providing assistance (financial or technical) to developing countries so that they can meet their obligations under the WTO law.40 This is in accordance with the broader conception of solidarity that involves assisting weaker members of the international society.

7.5.2 Differential Treatment and Climate Change In the case of international environmental law, granting differential treatment to developing countries is more readily accepted41 as interdependence and common interests among States are more noticeable. The principle of Common but Differentiated Responsibility (CBDR) is the cornerstone of international environmental law42 and has been described as a “general principle of international environmental law”.43 One of the earliest mentions of the principle can be found in the Rio Declaration on Environment and Development, adopted after the UN Conference on Environment and Development held in Rio, Brazil in 1992 (also known as the Earth Summit). Principle 07 of the Rio Declaration states: States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. Because of the different contributions to global environmental degradation, States have common but differentiated responsibilities. The developed countries acknowledge the responsibility that they bear in the international pursuit of sustainable development in view of the pressures their societies place on the global environment and of the technologies and financial resources they command.

Therefore, differentiated responsibilities are incorporated in international environmental law on account of the record of polluting the environment and current capabilities relating to the rectification of the same. However, it would be erroneous to conclude that CBDR is solely based on measurable indicators like past contributions to global environmental degradation. Instead, concepts like equity and solidarity also contribute to the establishment and wide acceptance of CBDR in international environmental law.

40

Examples can be cited of Article 9 of the Agreement on the Application of Sanitary and Phytosanitary Measures, signed 15 April 1994, entered into force 1 January 1996, 1867 UNTS 493 (SPS Agreement) and Article 11 of the Agreement on Technical Barriers to Trade, entered into force 1 January 1995, 1868 UNTS 120 (TBT Agreement). 41 Cullet 1999. 42 This is reflected in the Principle 07 of the Rio Declaration on Environment and Development, adopted after the 1992 UN Conference on Environment and Development, which provides that the Earth’s ecosystem is to be protected through cooperation and on the basis of common but differentiated responsibilities. See Rio Declaration on Environment and Development, adopted 14 June 1992, UN Doc A/CONF.151/26 Vol I, 31 ILM 874 (1992 Rio Declaration). 43 Cullet 1999, p. 578.

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In the specific case of law relating to climate change, Article 03(1) of the United Nations Framework Convention on Climate Change (UNFCCC)44 stresses equity as a factor for the protection of the climate system based on CBDR. The said provision states: The Parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities. Accordingly, the developed country Parties should take the lead in combating climate change and the adverse effects thereof.

Further, Article 03(2) of the UNFCCC states that “special needs and circumstances” of developing country Parties that would be abnormally burdened under the Convention should be given “full consideration”. Moreover, taking into account past contributions towards environmental degradation as well as current capabilities to rectify the same is in sync with the concept of equity.45 Numerous provisions and steps have been taken in furtherance of the principle of CBDR. The UNFCCC states that developed countries should take the lead in the global fight against climate change.46 It classifies Member States into two groups: those listed in annexes (also called as the Annex States) and those not listed in annexes (i.e., non-annex States). The division of members into annex and non-annex States is considered synonymous with developed and developing countries.47 Only developed countries i.e., the annex states have the responsibility to return to 1990 levels of emissions.48 Some of them have additional responsibility for providing financial and technological assistance to developing countries (they are included in Annex II of the UNFCCC). In the case of the Kyoto Protocol,49 the differentiation between developed and developing countries was intensified further, with only developed countries having binding emission reduction targets.50 Granting complete exemption to developing countries, especially emerging powers, from binding emission cuts had a significant contribution towards the failure of the Kyoto Protocol,51 and the treaty could not be adequately revived for the second commitment period, which was to start from 2012. The Paris Agreement,52 adopted in 2015, has made course corrections in this regard by adopting Nationally Determined Contributions for all States (developed and 44

United Nations Framework Convention on Climate Change, opened for signature 9 May 1992, entered into force 21 March 1994, 1771 UNTS 107 (UNFCCC). 45 Cullet 2008. 46 See UNFCCC, Article 3(1). 47 Rajamani 2008; Stone 2004; Williams 2009; Deng and Chen 2016. 48 UNFCCC, Article 4(2)(b). 49 Kyoto Protocol to the United Nations Framework Convention on Climate Change, signed 11 December 1997, entered into force 16 February 2005, 2303 UNTS 162. 50 Kyoto Protocol, Article 3(1). 51 See, e.g., Cullet 2008. 52 Conference of the Parties (2015) Paris Agreement, adopted 12 December 2015, entered into force 4 November 2016, UN Doc FCCC/CP/2015/L.9/Rev/1 (Paris Agreement).

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developing). However, it reiterates that CBDR will continue to remain an important aspect of the legal regime for combating climate change.53 Further, the UNFCCC law (which includes UNFCCC and subsequent agreements like the Kyoto Protocol, Copenhagen Accords, and the Paris Agreement) contains numerous provisions that provide financial and technical assistance to developing countries in order to enable them to effectively respond to climate change, either through mitigation or adaptation.54 Thus, in the law relating to combating climate change, the principle of CBDR is incorporated on account of differential contribution towards environmental degradation and is based on principles of equity and solidarity that inform the working of the international system.

7.6 Nature of Differential Treatment An overview of differential treatment provisions in the law relating to climate change and international trade highlights the following traits. First, a significant number of these provisions are non-mandatory. While they contain obligations that provide more favourable treatment to developing countries, they are not capable of being legally enforced. This specific outcome is achieved through the use of phrases that qualify the obligations towards developing countries. Part IV of the General Agreement on Tariffs and Trade (GATT),55 which was introduced specifically to cater to the developmental interests and needs of developing countries, provides an excellent example in this regard. The phrases that qualify obligations of developed countries under Part IV of GATT include “shall to the fullest extent possible”,56 “accord high priority”,57 “make every effort”,58 “give active consideration”,59 “have special regard to the trade interests of lessdeveloped contracting parties”,60 and “explore all possibilities of constructive remedies”.61 There are other provisions in the WTO Agreements that contain use of similar 53

Paris Agreement, Article 2(2). However, the said provision qualifies the CBDR principle with the phrase ‘in light of different national circumstances’. This effectively results in individual differentiation and makes CBDR dynamic because differentiation will evolve as per changes in national circumstances. See Rajamani 2016, p. 508. 54 See for instance UNFCCC, Articles 4(4), 4(5); Paris Agreement, Articles 7(7), 11(3); and Kyoto Protocol, Article 11(2)(a). 55 General Agreement on Tariffs and Trade, signed 30 October 1947, entered into force 1 January 1948, 1867 UNTS 190 (GATT). 56 GATT, Article XXXVII(1). 57 GATT, Article XXXVII(1)(a). 58 GATT, Article XXXVII(3)(a). 59 GATT, Article XXXVII(3)(b). 60 GATT, Article XXXVII(3)(c). 61 GATT, Article XXXVII(3)(c).

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phrases.62 Similarly, the provision relating to strengthening cooperation among States for effective adaptation to climate change has been drafted in a manner that renders it non-binding. This specific outcome has been achieved by the use of the word ‘should’ instead of ‘shall’.63 Second, numerous provisions that provide differential treatment are ambiguous, or aspirational at best. Even if the concerned provision is mandatory, the precise nature and scope of the obligation is uncertain. Most of these provisions contain obligations (sometimes binding in nature) to consider the needs and interests of developing countries. For instance, Article 12 of the Agreement to Technical Barriers to Trade (the TBT Agreement)64 contains a binding obligation to consider “special development, financial and trade needs of developing country Members”. The best illustration in this regard is Article 15 of the Agreement on the Implementation of Article VI of the GATT (Anti-Dumping Agreement).65 The said Article contains an obligation to give “special regard” to the situation of developing countries before applying anti-dumping measures. It further contains an obligation to explore possibilities of constructive remedies in case anti-dumping measures hurt the essential interests of developing countries. In the case of a trade dispute between the European Communities and India, neither the Panel nor India (a developing country member of the WTO) were able to offer concrete suggestions relating to the exact scope of the provision.66 In case of law relating to combating climate change, there is an obligation that all Parties “shall give full consideration” to actions that are necessary to address those concerns of developing countries that arise out of adverse effects of climate change.67 A similar obligation exists relating to the transfer of technology and funds.68 In all the examples mentioned above, the nature of the obligation is limited to giving special consideration to the interests of developing countries. The exact scope of the obligation is not clear. Therefore, the language that has been used to draft provisions relating to differential treatment for developing countries renders them non-operational. However, it does not mean that all differential treatment provisions can be characterized as such. Some differential treatment provisions lay down specific obligations and are mandatory. The Agreement on Subsidies and Countervailing Measures can be cited as an example.69 However, such provisions are very few, especially when compared to provisions that are either non-mandatory or whose exact obligation is ambiguous. 62

See for example SPS Agreement, Article 10. See Paris Agreement, Article 7. 64 TBT Agreement. 65 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, entered into force 1 January 1995, 1868 UNTS 201 (Anti-Dumping Agreement), Article 15. 66 See World Trade Organization 2000, paras 6.229 and 6228. 67 UNFCCC, Article 4(8). 68 See UNFCCC, Articles 4(9) and 4(10). 69 Agreement on Subsidies and Countervailing Measures, entered into force 1 January 1995, 1869 UNTS 14, see Article 27. 63

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The nature of differential treatment provisions discussed above reflects the understanding and nature of solidarity in international legal relations. While solidarity is an essential attribute of the existing international legal structure, it has at best served as a guiding principle instead of a legally binding one. Accordingly, most differential treatment provisions are aspirational in nature and do not contain legally binding obligations. However, the lack of enforceability of differential treatment provisions has become a matter of concern, especially for developing countries that rely on them for addressing various issues that are of specific concern to them. Such provisions signify half-hearted attempts to initiate steps under solidarity in international relations. The problem was recognized in the WTO law and the Doha Round of trade negotiations aimed at operationalizing SDT provisions by making them specific and enforceable.70 Efforts to make differential treatment provisions effective have not yielded meaningful results. In the case of the Doha Development Agenda, it was expressly recognized that vague and aspirational SDT provisions are a matter of concern.71 Despite express instructions to operationalize such provisions, no progress could be achieved. Developing countries were disappointed with the results of the Doha Round of trade negotiations because of the lack of adequate support from developed states. After prolonger negotiations and extensions of deadlines the lack of support for operationalizing SDT provisions in the WTO law was eventually acknowledged in the Nairobi Ministerial Declaration.72

7.7 Differential Treatment and ‘Emerging Powers’ While solidarity is an essential part of the nature of international society, in the specific case of differential treatment for developing countries, which is a manifestation of solidarity, the growing differences, especially in economic and technological terms, within countries that are collectively categorized as developing states have become a matter of serious contention. Some developing countries have experienced rapid growth in economic as well as technological capabilities. Examples can be cited of countries like China, Russia, India, Brazil, South Africa and Indonesia. They are often labelled as emerging powers as they intend change the existing world order and aspire to take a leadership role.73 In economic matters, the growing clout of the BRICS group is keenly observed.74 However, on numerous occasions, the interests of States that are within the developing country group can conflict with each other.75 Developed countries are 70

See WTO Ministerial Conference 2001b. Ibid. 72 WTO Ministerial Conference 2015, para 34. 73 See, e.g., Hurrell 2006, p. 2. 74 Zoellick 2010, p. 42; Stuenkel 2016. 75 Mitchell 2006, p. 458. 71

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hesitant and, in some cases, even hostile to granting differential treatment to emerging powers, i.e., those developing countries growing rapidly. In the case of international trade law, developed states have been stressing on the graduation of emerging powers so that they cannot claim benefits under SDT.76 Recently, the USA suspended benefits to India under its Generalized System of Preferences (GSP) schemes.77 In the case of climate change the data of the last 5–6 years indicates that the carbon footprint of states like India and China is increasing rapidly. China and India are among the top five greenhouse gas emitters.78 Without the cooperation and commitments from emerging powers, any effort towards mitigation of greenhouse gas emissions is bound to fail.79 Accordingly, even advanced economies have raised the issue of the growing carbon footprint of emerging powers on several occasions and begun to question the rationale of classification of some countries as non-annex states.80 Developed countries like the United States have stressed that evolving trends for the emission of greenhouse gases should be taken into account.81 More interesting is the stated opinion of Bangladesh (an LDC), which stresses that economic and technological differences between emerging powers and LDCs should be taken into account while assigning obligations for combating climate change.82 The 2015 Paris Agreement marks a significant departure from the previous approach, which was based on CBDR. While the Paris Agreement states that climate change will be combated through the principle of CBDR, it adds the condition of ‘in light of different national circumstances’ to it.83 This has opened up the possibility of taking individual circumstances into account while providing differential treatment.84 Moreover, it makes the concept of CBDR dynamic as the nature of obligations will evolve as national circumstances change.85 As per one opinion in the case of international trade and climate change, the trend is moving towards individual differentiation, as opposed to differentiation favouring all developing countries.86 The fact that the legal regimes discussed in this chapter lack objective criteria for classifying states as developing countries have further added to the problem.87 76

Kanth 2019. Office of the United States Trade Representative 2019. 78 See United States Environmental Protection Agency n.d.; Deng and Chen 2016. 79 Campbell 2016. 80 United Nations Climate Change 2008a, p. 5. 81 United Nations Climate Change 2008b, p. 87. 82 Ibid. 83 See Paris Agreement, Article 2(2). 84 For details relating to change in the CBDR post-Paris Agreement, see Thakur 2021. 85 Rajamani 2016, p. 508. 86 Pauwelyn 2013. 87 In the case of the WTO, a member self-designates itself as a developing country. This is subject to challenge by the other Member States. See World Trade Organization (n.d) Who are the developing countries in the WTO? https://www.wto.org/english/tratop_e/devel_e/d1who_e.htm. Accessed 18 77

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7.7.1 Significance of the Existing Framework While considering the emerging gaps between States that are classified as developing countries, it is equally important not to lose sight of the fact that the reality of the socalled emerging powers is extremely complex. They are growing at a rapid pace, and their technological prowess has increased. However, at the same time, they still suffer from developmental challenges. Millions of people in emerging powers continue to live in extreme poverty and face issues like lack of proper sanitation, healthcare and other basic essential requirements. For instance, while commenting on India’s rapid growth in the context of its position in the Human Development Index as well as other developmental challenges faced by the country Cullet labels India as “two countries”.88 Equity also demands that undue burden should not be put on developed States.89 A legal framework is inextricably linked to socio-political realities. Therefore, it is important to apply considerations of equity and solidarity in order to ensure that any legal arrangement does not create hardship for millions of people living under challenging circumstances in the so-called emerging powers. Moreover, reciprocity continues to play an important role in international legal relations. That is why solidarity works best when all sides benefit. In the absence of emerging powers, the bargaining capacity of other developing countries decreases significantly. For instance, it was on account of the bargaining capacity of India that developing countries were able to resist pressures relating to the inclusion of Singapore Issues in the Doha agenda.90 Further, most LDCs face an acute shortage of resources in terms of money as well as human, technical and legal expertise. Shortage of resources hampers the negotiating capacity of LDCs. The terms of accession of LDCs who had to negotiate their accession to WTO individually are less favourable as compared to those LDCs that were initial members of the WTO, as the latter bargained collectively along with powerful developing countries.91 Therefore, the interests of LDCs will most likely suffer due to a split in the developing country group on account of their weak bargaining power.92

November 2021. In the specific case of the UNFCCC law, as discussed above, the distinction between annex and non-annex states is considered synonymous with developed and developing countries. However, there is an absence of objective criteria for classifying a State as an annex or non-annex State (see Rajamani 2008). Accordingly, many States have expressed concerns relating to the absence of objective criteria for classification of States in the annex system of the UNFCCC. See, e.g., United Nations Climate Change 2001, para 3. 88 Cullet 2008, p. 112. Emerging powers like India and China have to balance their growing aspirations with identifying and expressing solidarity with other developing States. See, e.g., Cooper 2020. 89 See e.g. UNFCCC, Article 4(3). 90 Panagariya 2002. 91 Cortez 2011, p. 15. 92 See, e.g., Pauwelyn 2013.

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7.8 Going Back to the Fundamentals of Solidarity While differential treatment in favour of developing countries is a manifestation of solidarity, recent trends indicate that its role in international legal relations is decreasing. In the case of the WTO, the lack of progress concerning operationalizing SDT provisions is of growing concern. Similarly, in the case of law relating to combating climate change, the Paris Agreement indicates a shift towards individual differentiation. As discussed above, individual differentiation is problematic on account of two factors. First, most emerging powers have a complex reality. While emerging powers have shown remarkable growth in economic terms, they continue to struggle with issues like inadequate healthcare, poverty, lack of access to education etc.93 On account of globalization, the emergence of an emerging broader aspect of human solidarity, as opposed to solidarity among an international community of States, cannot be ruled out.94 Second, if left alone, weaker developing countries, especially LDCs, lack bargaining power to negotiate legal provisions that are in accordance with their needs and interests. The current impasse relating to differential treatment favouring developing countries is because of conflicting interests between developed countries and emerging powers. Both will have to realize that the solution lies in going back to the basics of solidarity. It holds important lessons for both developed countries as well as emerging powers. A common complaint against developing countries has been that they were guilty of implementing solidarity in a manner that effectively resulted in one-sided nonreciprocal benefits for them.95 Cullet distinguishes between preferential treatment and differential treatment. He associates the former with one-sided obligations for developed countries and the latter with more favourable treatment to developing countries in an arrangement that contains obligations for all.96 Initiates like the New International Economic Order (NIEO) and related developments was critiqued. They were perceived as attempts to ensure benefits for developing countries without any corresponding obligations on their part. Granting more favourable treatment to developing countries was an integral part of the efforts to create a new international law of development.97 As has been discussed above, solidarity works best in a framework that contains obligations and benefits for all sides, although one side may benefit more than the other.

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For instance, in its Human Development Report, the UN Development Programme (UNDP) ranks India at 131, Brazil at 84 and China at 85. For more details see United Nations Development Programme 2020. Further, in an era of globalization, the emergence of human solidarity is an emerging possibility. See, e.g., Wilde 2007. 94 See, e.g., Wilde 2007. 95 See, e.g., Dann 2010, p. 64. 96 Cullet 1999. 97 Regarding the international law of development, see Kwakwa 1987; De Jonge 2014.

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However, it is important to mention here that programs like NIEO should be seen in the context of the colonial experience of developing countries. Having been subject to colonialism (for which ironically solidarity as a civilizing mission was used as a justification98 ) developing countries sought to rectify past wrongs through international law. Nonetheless, insisting on one-sided non-reciprocal benefits is not in tune with the concept of solidarity. Developing countries were quick to make the necessary course corrections99 and the differential treatment provisions incorporated subsequently in international trade and environmental laws are based on less than full reciprocity, as opposed to complete non-reciprocity.100 On the other hand, developed countries need to recognize that solidarity is an essential aspect of international legal relations. On numerous occasions, developed States have not shown a cooperative approach towards differential treatment, especially for emerging powers. In the case of international trade law, they have been stressing the graduation of emerging powers from the SDT benefits. Similarly, in the case of law relating to climate change, any relaxation provided to emerging powers like India, China and Brazil is strongly contested as developed States insist that CBDR should be interpreted dynamically. However, even in the case of differential treatment for developing countries in general (which includes LDCs and other smaller developing states) the initiatives adopted by developed states have been subject to criticism. The Generalized System of Preferences (GSP), launched in pursuance of the 1979 Enabling Clause, aims to increase export opportunities of developing countries. However, the programs have not yielded adequate results as they are politicized,101 unpredictable and do not cover products that are of specific export interest to developing countries.102 The law relating to climate change expressly states that developed countries have to take the lead in combating climate change.103 Objections from developed states to grant differential treatment to emerging powers need to be contextualized against the fact that their track record relating to reported binding emission reductions and transfer of technology and financial resources is not encouraging.104 In the case of the transfer of resources, no satisfactory outcome has been achieved. Apart from issues relating to inflated figures105 developed countries have been reluctant to transfer funds through the mechanism established under the Green Climate Fund106 as it does not 98

Anghie 2004. For instance, there has been a perceptible change since 1974 in the law of development, and new Declarations focus on a reciprocal understanding of solidarity. See Dann 2010, p. 67. 100 See, e.g., WTO Ministerial Conference 2001a, para 16. Further, the focus on Nationally Determined Contributions in the Paris Agreement signals a shift to less than full reciprocity. 101 Jones 2006, p. 9. 102 Kishore 2014; Herz and Wagner 2011; Hoekman and Özden 2005. 103 See UNFCCC, Article 3(1). 104 See United Nations Climate Change 2015. 105 Upton 2015. 106 For details about the Green Climate Fund, see About GCF. https://www.greenclimate.fund/ about. Accessed 15 September 2021. 99

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provide them adequate institutional control.107 Here, it is important to stress again that apart from the mutuality of obligations, the equality of partners is a fundamental aspect of solidarity. The recent trend of exclusive focus on complete reciprocity with total disregard for complex economic, social and historical circumstances is extremely worrying. While solidarity is yet to emerge as a legally binding principle, paying lip service to the concept by incorporating provisions whose substance in itself is ambiguous is ill-fated. Further, developed countries have shown reluctance to operationalize differential treatment provisions, as evident in the discussions related to the Doha Round of trade negotiations. Developed states need to accept solidarity as an essential part of international legal relations and, following the principle, provide effective and meaningful differential treatment to developing countries based on equality. Moves towards individual differentiation could lead to abrogation of solidarity and adoption of an approach wherein the sole focus is on reciprocity. This approach does not bode well for the future of international legal relations. Further, it will be detrimental to millions of people living under challenging conditions in developing countries, including the emerging powers.

7.8.1 A Possible Way Out The current impasse relating to differential treatment for developing countries could be resolved by adopting a hierarchical system of differential treatment. It is proposed that differential treatment should be available to all developing countries, but its intensity should differ for a specific set of countries. For instance, a three-tier differential treatment system could be adopted with LDCs at the bottom, other developing countries occupying the middle rung and emerging powers at the top. Accordingly, differential treatment will be available to all developing countries; however, its intensity will decrease as one moves from the bottom to the top tier. It is pertinent to mention here that the WTO law follows a similar approach. While all developing countries can take benefits under the SDT, some SDT provisions provide additional or specific benefits to LDCs.108 However, as proposed above, a minimum of three tiers need to be adopted in order to sync differential treatment with practical realities. A hierarchical form of differential treatment will address concerns from all sides. From the perspective of developed states, it will introduce an element of dynamism in differential treatment. At the same time, it will also address the complexity of the economic development of emerging powers and the limited bargaining capacity 107

Kumar 2015. The Governing Board of the GCF has members from developed and developing countries in equal strength. See Green Climate Fund Board members. https://www.greenclimate. fund/boardroom/board-members. Accessed 30 July 2020. 108 See e.g. Agreement on Agriculture, entered into force 1 January 1995, 1867 UNTS 410, Article 15(2) and SPS Agreement, Articles 14 and 10(1).

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of LDCs. More importantly, it will thwart attempts to do away with differential treatment in international legal relations. Thus, this proposal could help in preserving solidarity in international legal relations. The onus on supporting a hierarchical form of differential treatment is on developed countries and emerging powers.

7.9 Conclusion Interdependence and interaction among States have given rise to an international society of States, and like any other society, solidarity is an essential part of the basic fabric of international society. Solidarity not only involves treating the interests of States as interlinked but providing various forms of assistance to weaker members of international society is a manifestation of solidarity. Accordingly, differential treatment has been incorporated in international legal regimes, e.g., international trade law and law relating to climate change. Differential treatment weakens the role of strict reciprocity and incorporates provisions that provide more favourable treatment to the weaker members of international society, e.g., developing countries. However, over the years, the role of differential treatment in international legal relations has become questionable. Moves towards abrogation of differential treatment in international legal relations will adversely impact the acceptance and role of solidarity. The current issues relating to differential treatment are mainly about conflicting interests of developed States and emerging powers. The solution lies in recognizing the essence of solidarity and implementing the same in international legal relations. Although developing countries were quick to make the course corrections and accept a version of solidarity that contains obligations on both sides (although unequal), emerging powers need to recognize that they cannot enjoy the exact quantum of differential treatment as other developing countries and LDCs. At the same time, developed countries also need to realize the risks associated with reverting international legal relations to a framework that works only on the basis of competition and full reciprocity. A hierarchical form of differential treatment, where an incremental form of differential treatment is provided to specific sets of developing countries, instead of individual differentiation, could provide a possible solution. For instance, developing countries could be divided into three tiers with emerging powers at the top, followed by other developing countries and LDCs at the bottom. While differential treatment will be applicable to all developing countries, its intensity will change as we move from one tier to another. This will preserve the integrity of developing countries, which is extremely important for LDCs and people living in extreme hardships in emerging powers and address the concerns of developed States. More importantly, this framework will help preserve solidarity in international legal relations and prevent it from descending into a framework solely based on competition and full reciprocity.

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United Nations Development Programme (2020) Global Human Development Indicators. http:// hdr.undp.org/en/countries. Accessed 12 September 2021 United States Environmental Protection Agency (n.d.) https://www.epa.gov/ghgemissions/globalgreenhouse-gas-emissions-data. Accessed 10 September 2021 Upton J (2015) The $100 Billion Climate Question. https://www.scientificamerican.com/article/ the-100-billion-climate-question/. Accessed 25 July 2020 Wellens K (2010) Revisiting solidarity as a (re-) emerging constitutional principle: Some further reflections. In: Wolfrum R, Kojima C (eds) Solidarity: A structural principle of international law. Springer, Berlin/Heidelberg, pp 3–54 Whalley J (1999) Special and Differential Treatment in the Millennium Round. World Economy 22:1065–1093 Wilde L (2007) The concept of solidarity: Emerging from the theoretical shadows? The British Journal of Politics and International Relations 09:171–181 Williams A (2009) Solidarity, justice and climate change law. Melbourne Journal of International Law: 10(02):493–508 World Trade Organization (n.d.) Special and differential treatment provisions. https://www.wto.org/ english/tratop_e/devel_e/dev_special_differential_provisions_e.htm Accessed 15 April 2022 World Trade Organization (2000) Report of the Panel on European Communities-Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/R WTO General Council (2001) Proposal for a Framework Agreement on Special and Differential Treatment, WT/GC/W/442. https://www.wto.org/english/thewto_e/minist_e/min01_e/pro posals_e/wt_gc_w442.pdf. Accessed 24 December 2021 WTO Ministerial Conference (2001a) Ministerial Declaration, WT/MIN(01)/DEC/1, 14th November. https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?FullTextHash=1& MetaCollection=WTO&SymbolList=%22WT/MIN(01)/DEC/1%22&languageUIChanged= true#. Accessed 21 December 2021 WTO Ministerial Conference (2001b) Implementation-Related Issues and Concerns, WT/MIN(01)/17. https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009-DP.aspx?lan guage=E&CatalogueIdList=35625,33346,18756,37254,17243&CurrentCatalogueIdIndex= 2&FullTextHash=. Accessed 18 April 2022 WTO Ministerial Conference (2013) Monitoring Mechanism on Special and Differential Treatment, WT/MIN(13)/45WT/L/920. https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?fil ename=q:/WT/MIN13/45.pdf Accessed 24 December 2021 WTO Ministerial Conference (2015) Nairobi Ministerial Declaration, WT/MIN(15)/DEC. https:// www.wto.org/english/thewto_e/minist_e/mc10_e/mindecision_e.htm. Accessed 15 April 2022 WTO Secretariat (2013) Special and Differential Treatment Provisions in WTO Agreements and Decisions, WT/COMTD/W/196. https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S009DP.aspx?language=E&CatalogueIdList=117334,73586,73871,59765,49067,21868,43008,753 36,69267,64560&CurrentCatalogueIdIndex=0&FullTextSearch=. Accessed 25 December 2021 Zoellick R (2010) The End of the Third World – The case for modernizing multilateralism. The International Economy. http://www.international-economy.com/TIE_Sp10_Zoellick.pdf. Accessed 28 August 2021

Athar Ud Din, Assistant Professor, Centre for International Relations, Islamic University of Science and Technology, J&K, India.

Part II

Solidarity: An EU Law Perspective

Chapter 8

Thinking About Solidarity and EU Law Eleanor Sharpston

Contents 8.1 8.2 8.3 8.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Thinking About Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Solidarity in Sharing Out Something That There’s not Enough of . . . . . . . . . . . . . . . . . . Solidarity in Sharing Out a ‘Burden’—Something That Requires Investing a Lot of Effort to Reach an Objective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 Solidarity in EU Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Solidarity involves acknowledging that there can be a shared objective and that the collective good may be more important than one’s own narrow and immediate self-interest. The chapter provides an overview of the different fields of EU law where the principle has been employed. At the same time, enquiries into the legal contours of solidarity, its level of entrenchment within the EU legal system and its future development pose broader questions about the objectives of, and the values underpinning, the EU. These questions, including how clear the common objectives are and whether there is a shared understanding of responsibility for the fate of fellow-Europeans and others in need, invite us to reflect on what it truly means to participate in the European project. Solidarity, ultimately, is based on the understanding that, apart from acquiring rights and benefits, sharing in the European ‘demos’ also entails the willingness to shoulder collective responsibilities to further the common good. Keywords Solidarity · European Union · Court of Justice of the European Union · Collective responsibilities · Burden-sharing · Common objective

This chapter is based on the keynote speech I gave at an Asser Institute conference on 28 October 2021. E. Sharpston (B) School of Law, Trinity College Dublin, House 39, New Square, Dublin 2, Ireland © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_8

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8.1 Introduction Depending on where you come from, your knee-jerk reaction to the word ‘solidarity’ will probably be different. For many native English speakers, solidarity is a word that raises eyebrows and suspicions. Solidarity is not an obvious rallying call in English. If you are French, it is a natural part of the political discourse (‘évidemment, il faut être solidaire …’). The antithesis of ‘solidarity’ is easily—perhaps, a little too easily—identified as the statement in the interview given in 1987 by the then UK Prime Minister Margaret Thatcher to Woman’s Own magazine (and much quoted by her and others since then): ‘I think we have gone through a period when too many children and people have been given to understand “I have a problem, it is the Government’s job to cope with it!” or “I have a problem, I will go and get a grant to cope with it!” “I am homeless, the Government must house me!” and so they are casting their problems on society and who is society? There is no such thing! There are individual men and women and there are families and no government can do anything except through people and people look to themselves first’.1

I shall deliberately begin this lecture at a rather abstract level before I go on to look at specific areas of EU law where the concept of solidarity may be useful (or even essential).

8.2 Thinking About Solidarity Let me begin with the proposition that solidarity requires the individual economic actor to realign his behaviour from what he would naturally do if he had regard only to his own interests. To that extent, Margaret Thatcher was right: individual people do naturally, as their first reflex, tend to ‘look to themselves first’. As you will gather, I think she was (totally) wrong, however in saying that ‘there is no such thing as society’! So, the next question that logically we need to ask is, why would the individual man or woman, on a particular occasion or for a particular reason, not ‘look to themselves first’? Sometimes, the motivation may be purely altruistic. Let me give an obvious example. A natural disaster happens somewhere in the world (let us say, a tsunami or an earthquake). Our TV screens are filled with graphic images of destruction and suffering. The tear-filled eyes of little children gaze into the camera lens and through the screen into our hearts. Impulsively we reach for our cheque book or our credit card and make a one-off donation to disaster relief. 1

Emphasis added. Since its publication in ‘Margaret Thatcher Foundation: Speeches, Interviews and Other Statements’, this particular passage from Mrs Thatcher’s interview with Woman’s Own magazine in 1987 has been much quoted (indeed, the interview swiftly became known as the ‘There’s No Such Thing As Society’ interview). The full text of the interview is available at https://www. margaretthatcher.org/document/106689.

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Let us move from that individual response to a collective response. One morning that began just like any other morning, the townspeople of Gander, Newfoundland, turned on their radios to find that 38 planes had been diverted to their airport when the Federal Aviation Authority (the ‘FAA’) closed US airspace immediately after the 9/11 terrorist attacks on New York and Washington DC.2 Those 38 planes disgorged their frightened passengers. At a stroke, the population of Gander went from 8000 to about 16,000. The story of how the townspeople of Gander opened their hearts and their homes and looked after their unwilling visitors is beautifully told in the musical ‘Come from Away’ that was playing in London just before the pandemic. Here was altruism, certainly; but the story is also intensely practical. To put it bluntly: all these additional people are arriving right now—and we must deal with the situation. That suggests that solidarity is perhaps most readily forthcoming when the emergency to be met is clear and obvious and immediate. Conversely, if the impending disaster isn’t yet where we can touch it and see it, it is much easier to ignore. Thus, for years and years scientists have been warning us about global warming and climate change. The Paris Climate Accords3 entered into by 196 Parties at COP21 were a first belated step. At COP26 in Glasgow—maybe, finally—we began to take those warnings in true earnest. Let us have a look at a couple of typical situations that may require solidarity.

8.3 Solidarity in Sharing Out Something That There’s not Enough of The New Testament illustration of this is (of course) the miracle of the loaves and the fishes.4 Over the years, as I was growing up, I sat and listened to the ‘explanations’ offered by a succession of parish priests. Those explanations ranged from ‘it was truly miraculous’ to ‘well, what actually happened was that the gesture by Christ— getting his own disciples to share out what they had—spurred others who had come along with ample provisions to get them out and share them with their neighbours (in its own way, a kind of miracle)’.

2

The 38 planes got diverted to Gander because Gander has an enormous airstrip. The reasons for that are historic. In the early days of transatlantic travel, almost all flights stopped at Gander Airport to refuel. With the advent of the jet engine, refuelling at Gander was no longer necessary and air traffic in and out of Gander Airport dropped off sharply, to only a few flights a day. But the enormous airstrip remained and was—very gratefully—brought back into capacity use on 9/11. 3 Conference of the Parties (2015) Paris Agreement, adopted 12 December 2015, entered into force 4 November 2016, UN Doc FCCC/CP/2015/L.9/Rev/1. 4 The feeding of the five thousand with five loaves and two fishes appears in all four Gospels: Matthew 14:13-21, Mark 6:31-44, Luke 9:19-17 and John 6:1-14 (apart from the Resurrection, the only miracle so comprehensively recorded). There is also, in Matthew 15:32-39 and Mark 8:1-9, the parable of the feeding of the four thousand with seven loaves and a few small fish. Was there one instance or two (see Mark 7:19 and 20)?

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8.4 Solidarity in Sharing Out a ‘Burden’—Something That Requires Investing a Lot of Effort to Reach an Objective Here, the essential point seems to be, is the objective important enough to you? The immediate illustration that comes to my mind is that of the standing stones at Stonehenge (or the isolated menhirs in corners of France, or Malta). Given the sheer size and weight of what was transported and erected and the available technology (fairly basic), it is evident that an immense amount of collective physical effort and willpower and motivation was needed to see the project through. Perhaps we can now start to distil out some elements that go to promoting solidarity. There must be an identifiable issue or problem. Its dimensions mean that any one individual’s response acting alone will be inadequate. However, if enough individuals act together collectively, that issue or problem can be addressed. But individuals (or ‘society’, however defined) must ‘buy into’ the need for solidarity—otherwise that collective action will not happen. Therefore, society must identify and engage with the issue or problem. The reasons for that engagement may vary along a spectrum that ranges from pure altruism to enlightened self-interest, but for solidarity to manifest itself, the engagement must be there. Here I pause to note that what I have just sketched out in a rather simplistic way takes us straight to a very big question indeed. How far do EU citizens identify and engage with the EU and problem-solving through EU action rather than looking to (or expecting there to be) action at national level? If the answer to that question is, ‘not so much’, the next question is—I would strongly contend—what can be done to foster more engagement with the ‘European project’? However, these are not topics that I can stray into within the compass of today’s keynote address. To return, therefore, to the theme of solidarity: I observe that solidarity can be organised through more, or less, formal channels. In the 1980s, the Solidarno´sc´ trade union movement in Poland had an immense impact upon that country’s transition from Communism to democracy. At the other end of the spectrum, local or national governments can—and sometimes do—enact legislative measures whose basis is the need for society as a whole to support some particular disadvantaged group. From these abstract statements I turn to look at some specific examples of solidarity in action as the EEC became the EC and now the EU. What follows is not an exhaustive list—that would be a task for the book that, sadly, I have never yet got around to researching and writing up.

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8.5 Solidarity in EU Law The initial foundations of our present European Union lay—let us please remember— in the devastation of post-war Europe. As I wrote in one of my last Opinions as an Advocate General,5 ‘The founding fathers of the ‘European project’ — Robert Schuman, Jean Monnet, Konrad Adenauer — were statesmen from countries that had recently been embroiled (aggressor and victims, victors and vanquished alike) in 6 years of devastating and destructive conflict. Had it not been for their initial vision and openness of spirit, the European Coal and Steel Community (ECSC) and (6 years later) the European Economic Community and Euratom would not have come into being. The Schuman Declaration of 9 May 1950 famously recognised that ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity’.6 That statement found an echo in the third recital to the Treaty establishing the European Coal and Steel Community —(the ECSC Treaty, the precursor to the EEC Treaty, of which the present TEU and TFEU are direct descendants), which spoke expressly of ‘recognising that Europe can be built only through practical achievements which will first of all create real solidarity, and through the establishment of common bases for economic development’.7

Article 2 TEU reminds us, right at the start of the Treaties, of some very basic, very essential points: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.’ (emphasis added)

Article 4(3) TEU (the principle of sincere cooperation) is—I suggest—an elaboration of what solidarity means in practice: ‘3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.’

The CJEU first identified solidarity within the general principle of loyalty (later translated into ‘the principle of sincere cooperation’ under Article 4(3) TEU) in 1969 5 CJEU, Cases C-715/17, C-718/17 and C-719/17 Commission v Poland, Hungary and the Czech Republic, Opinion of Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917, paras 246 and 247. 6 The full text of the Declaration is available at: European Union 1950. As the Schumann Declaration later put it, ‘The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible.’ (emphasis added). 7 Treaty Establishing the European Coal and Steel Community, signed 18 April 1951, entered into force 23 July 1952, end of validity 23 July 2002, CELEX:11951K/TXT.

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in Commission v France, where it held that solidarity is ‘the basis of […] the whole of the Community system’.8 Solidarity was seen there as cooperative conduct on the part of a state that can even go against national interests. The Court makes a similar, contemporaneous, analysis under Article 3 of the ECSC Treaty, dealing with the common ECSC interest, which, according to the Court, presupposed a duty of solidarity amongst the then six ECSC Member States.9 From there I move to the aims identified in Article 9 TFEU (aims whose attainment is, frankly, impossible without solidarity): ‘In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.’

Later in the Treaties, you find specific references to solidarity. Let me pick out just one, Article 80 TFEU (part of Title V (‘AFSJ’), Chapter 2 (‘Policies on border checks, asylum and immigration’)), which reads: ‘The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.’ (emphasis added)

Let us have a look—a quick and far from comprehensive look—at solidarity in action within EU law. To begin with steel: it became clear, as the steel sector declined, that pooling of production may also require quotas on production at particular times and for particular reasons. In 1983, in the context of steel quotas, the Court explained that ‘it is in fact impossible to entertain the concept of necessity in relation to the quota system provided for by Article 58 of the ECSC Treaty, which is based on solidarity between all Community steel undertakings in the face of the crisis and seeks an equitable distribution of the sacrifices arising from unavoidable economic circumstances’.10 Necessity does not remove the obligation to show solidarity—indeed, it may enhance it. Agricultural support (the ‘common agricultural policy’, or ‘CAP’) was built into the very design of the European project by the EEC Treaty. Farmers and agriculture matter—we all need to eat! The sector badly needed help in the aftermath of World War II. It had to be got back onto its feet in a stable way. Enter solidarity from

8

CJEU, Cases C-6/69 and 11/69 Commission v. France, Judgment, 10 December 1969, ECLI:EU:C:1969:68, para 16; see also Case 39/72 Commission v. Italy, Judgment, 07 February 1973, ECLI:EU:C:1973:13, para 25. 9 CJEU, Cases C-154, 205, 206, 226–228, 263 and 264/78, 39, 31, 83 and 85/79 SpA Ferriera Valsabbia and others v. Commission, Judgment, 10 March 1980, EU:C:1980:81, para 59. 10 CJEU, Case C-263/82 Klöckner-Werke v Commission, Judgment, 14 December 1983, ECLI:EU:C:1983:373, para 17 (emphasis added). Paragraphs 18 to 20 also repay study.

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consumers/taxpayers towards producers, via the budgetary mechanism that transferred part of Member States’ financial contributions (funded by taxpayers) through the support mechanisms to the farmers. Later in the story, the CAP had to deal with over-production rather than scarcity.11 Thus, in the context of the elaborate arrangements for disposing of surplus sugar,12 the Court was called upon in Eridania zuccherifici nazionali and Others13 to decide whether a quota system alleged to bear more heavily, in financial terms, on Italian producers than on producers from other Member States was unlawful. The Commission, defending the system, argued that fixing quotas on the basis of the actual production of undertakings was consistent with the principle of solidarity between producers. The Court held that ‘the Council was justified in dividing the quotas between the individual undertakings on the basis of their actual production … such a distribution of the burden is … consistent with the principle of solidarity between producers, since production is a legitimate criterion for assessing the economic strength of producers and the benefits which they derive from the system’.14 In so ruling, the Court made it clear that the principle of solidarity necessarily sometimes implies accepting burden-sharing. Once scarcity turns into over-production, we start to see legislative arrangements like the supplementary levy on milk (the ‘SLOM’)—a centrally imposed, marketwide solidarity as between producers (note that, built into the system, there were nevertheless national reserves of quota to help, e.g., young farmers). Let’s move over from dairy cows to fish: a wonderful resource that we have to be careful with, to avoid overfishing and depleting the stocks. Total Allowable Catches (‘TACs’) are not in the short-term interests of any individual fisherman. However, they are in his long-term interests, and in the interests of the fishing industry as a whole. From fish to impoverished but deserving students:15 in Grzelczyk,16 the Court invoked citizenship of the Union in conjunction with solidarity as the basis for 11

This paragraph is taken verbatim from my Opinion in Joined Cases C-715/17, C-718/17 and C-719/17, supra at footnote 6, point 251. 12 It has been my doubtful privilege since I joined the Court in 2006 to examine some aspects of those arrangements in a series of Opinions and the reader curious to discover more about the workings of the market in sugar is referred to those texts. See, for example, my Opinions in CJEU, Joined Cases C5/06 and C-23/06 to C-36/06, Zuckerfabrik Jülich, Opinion of Advocate General Sharpston, 14 June 2007, EU:C:2007:346; and in CJEU, Joined Cases C-11/10, C-147/10 and C-234/10, Zuckerfabrik Jülich and Others, Opinion of Advocate General Sharpston, EU:C:2011:701. 13 CJEU, Case C-250/84 Eridania zuccherifici nazionali and Others, Judgment, 22 January 1986, EU:C:1986:22. 14 CJEU, Case C-250/84 Eridania zuccherifici nazionali and Others, Judgment, 22 January 1986, EU:C:1986:22, para 20. 15 This paragraph is taken verbatim from my Opinion in Joined Cases C-715/17, C-718/17 and C-719/17, supra at footnote 6, at point 252. 16 CJEU, Case C-184/99 Grzelczyk, Judgment, 20 September 2001, EU:C:2001:458. See the extensive and careful analysis in paras 31–46 and the specific reference to ‘a certain degree of financial solidarity between nationals of a host Member State and nationals of other Member States’ in para 44.

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Belgium’s obligation to give Mr Grzelczyk access to the same benefit (the minimex) as his Belgian fellow students for the final year of his studies. In Bidar,17 the Court built on that decision to say that, whilst a Member State might legitimately require ‘a certain degree of integration’ with the host Member State before it showed financial solidarity, it could not impose additional conditions that made it impossible for citizens of the Union from other Member States who did satisfy those residence requirements to obtain student loans. Or let us look at the support that is given through the structural funds for disadvantaged regions. Anyone who goes travelling (or who went travelling, in the preCovid-19 pandemic days!) has probably seen sign boards on the edges of a road in a remote area (South Wales, Catalunya, the Dalmatian alps in Croatia) proudly announcing that ‘This road was improved with the help of funds from the European Union’s regional development fund’. And not only roads. One of the most poignant moments, on the morning after the Brexit referendum in the UK, was the live TV interview with a Leave voter in Wales who told the reporter, ‘Yes, I voted Leave – what has the EU ever done for me?’ The cameraman, in a moment of spontaneous genius, then widened the camera shot from the close-up of the voter to take in the building behind him, to which was clearly affixed a sign with a little twelve-star EU flag and the information that ‘This library was built with assistance from funding from the European Union’. The list could be extended, but I have no desire to trespass on later sessions.18 I will merely add that of course with the Covid-19 pandemic, the need for solidarity has become very obvious indeed. Beneath the details of any individual piece of legislation, there are some bigger issues. How clear is the shared objective? Are we trying to legislate for pure altruism (perhaps, not so easy) or can altruism be allied to some degree to pragmatism? Is there some shared understanding of responsibility for what happens to fellowEuropeans?19 Do we have a sense of common humanity with those who come to the territory of the EU seeking asylum which justifies legislating for common standards enabling asylum-seekers to live with decency whilst their applications for asylum are being processed (c.f. Directive 2013/33:20 the ‘reception conditions’ directive)?

17

CJEU, Case C--209/03 Bidar, Judgment, 15 March 2005, EU:C:2005:169. See, in particular, paras 56–63. 18 Such as Chap. 9 by Eleni Karageorgiou; Chap. 11 by Mariana Gkliati and Salvatore Nicolosi; and Chap. 10 by Laura Mastroianni (all included in this volume). 19 As I was writing up this keynote speech for publication, Russia invaded Ukraine on 24 February 2022. That cataclysmic event brought everything that I was trying to say here into even sharper focus. Amidst the bad news (of which, alas, there is no shortage), what has been encouraging and heart-warming has been the immediate solidarity being shown by the European Union as a whole, and by individual EU Member States (such as Poland and Slovakia), in responding to war on their doorstep. 20 Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, OJ L180, p. 96.

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8.6 Conclusion Let me come back to that quotation from Margaret Thatcher, ‘… who is society? There is no such thing! There are individual men and women and there are families and no government can do anything except through people and people look to themselves first’. On a larger scale, populist governments pander to that tendency, to the knee-jerk reflex that ‘we only need to look to ourselves’. I make no apologies for saying that such a reflex is inherently dangerous. Solidarity is not about being (in political terms) left-wing or right-wing. There is solidarity inside a commune or a kibbutz. There is also solidarity in the armed services (in the military). There is solidarity between crew members on board an old-fashioned square rigged sailing vessel. I speak as someone who has often worked as a watchleader on such vessels: it is truly amazing to see how people who started the voyage as total strangers coalesce, under the pressures of shared work and difficulties, into a crew and, within a crew, into a watch. So, solidarity is not about allegiance to a particular political ethos. It is, rather, about appreciating that there can be a shared objective and that the collective good may be more important than one’s own narrow and immediate self-interest. Allow me to end by quoting again from my Opinion in Case C-715/17: 253. Solidarity is the lifeblood of the European project. Through their participation in that project and their citizenship of European Union, Member States and their nationals have obligations as well as benefits, duties as well as rights. Sharing in the European ‘demos’ is not a matter of looking through the Treaties and the secondary legislation to see what one can claim. It also requires one to shoulder collective responsibilities and (yes) burdens to further the common good. 254. Respecting the ‘rules of the club’ and playing one’s proper part in solidarity with fellow Europeans cannot be based on a penny-pinching cost-benefit analysis along the lines (familiar, alas, from Brexiteer rhetoric) of ‘what precisely does the EU cost me per week and what exactly do I personally get out of it?’ Such self-centredness is a betrayal of the founding fathers’ vision for a peaceful and prosperous continent. It is the antithesis of being a loyal Member State and being worthy, as an individual, of shared European citizenship. If the European project is to prosper and go forward, we must all do better than that. 255. Let me conclude by recalling an old story from the Jewish tradition that deserves wider circulation. A group of men are travelling together in a boat. Suddenly, one of them takes out an auger and starts to bore a hole in the hull beneath himself. His companions remonstrate with him. ‘Why are you doing that?’ they cry. ‘What are you complaining about?’ says he. ‘Am I not drilling the hole under my own seat?’ ‘Yes,’ they reply, ‘but the water will come in and flood the boat for all of us’.21

21

From the teachings of Rabbi Shimon bar Yochai (‘Rashbi’: 2nd century C.E.), quoted in Midrash, Vayikra Rabbah 4:6. See https://www.sefaria.org/Vayikra_Rabbah.1.1?lang=bi&with= all&lang2=en. I have made the translation read a little more smoothly.

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Reference European Union (1950) Schuman Declaration May 1950 https://european-union.europa.eu/ principles-countries-history/history-eu/1945-59/schuman-declaration-may-1950_en. Accessed 6 September 2022

Eleanor Sharpston KC served as an Advocate General at the Court of Justice of the European Union from 2006–2020.

Chapter 9

Why the European Commission’s Pragmatic Approach to Asylum Is Not Enough: Re-imagining Solidarity as a New Form of Conducting Regional Politics Eleni Karageorgiou

Contents 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Solidarity in the Pact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.1 The ‘Seamless Link’ Between Migration Control and Asylum . . . . . . . . . . . . . . 9.2.2 The Legacy of the Dublin System and the Inflexibility of the First-Entry Criterion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.3 More Flexibility in Inter-state Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.4 More Coercion for Asylum-Seekers and Refugees . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Problematizing the Commission’s Conception of Pragmatism . . . . . . . . . . . . . . . . . . . . . 9.3.1 The Doctrinal Chasm Between the Political and the Legal . . . . . . . . . . . . . . . . . . 9.3.2 Towards a Normative Flattening . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.3 Re-entrenching Exclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Re-imagining Solidarity as Reconciliation and the Antithesis of Alienation . . . . . . . . . . 9.4.1 Moving Beyond a Micro-regulation of Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . 9.4.2 Solidarity as a New Form of Conducting Regional Politics . . . . . . . . . . . . . . . . . 9.5 By Way of Epilogue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The failure of the EU and its Member States to adequately respond to increased refugee movements since 2015, has caused disagreement on how the principle of solidarity and fair sharing of responsibility should be given effect in the context of a reformed European policy on migration. In September 2020, the European Commission proposed the new Pact on Migration and Asylum which was meant to promote a new pragmatic approach to solidarity for achieving ‘a fair, workable and sustainable EU migration system’. This chapter seeks to interrogate this new approach to solidarity with a view to establishing the extent to which it provides a viable remedy to current and future challenges for refugee protection in Europe. The main proposition is that the conception of pragmatism promoted in the Pact E. Karageorgiou (B) Faculty of Law, Lund University, Lund, Sweden e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_9

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emphasizes excessive formalism through calculative rules and complex procedures sidestepping questions of political organization, community and belonging that solidarity has squarely brought to the table in 2015. A re-imagining of solidarity in the CEAS as a particular form of conducting regional and global politics is suggested as the way forward. Keywords Solidarity · Asylum · CEAS · EU Pact · Dublin Regulation · Flexibility · Pragmatism

9.1 Introduction The significance of solidarity as a ‘founding and existential value’ of the Union and as ‘the bedrock of the European construction’ has been reiterated time and again.1 The 2015 refugee movements to Europe, mainly from Syria and the failure of the EU and the Member States to respond in a coherent, fair and humane manner have exposed the European asylum system’s inherent limitations leading to what has been termed as the European refugee crisis, and what has proved to be the Union’s solidarity crisis.2 In the aftermath of 2015, humanitarian challenges including the appalling reception conditions for asylum-seekers and refugees arriving on the Greek islands,3 continue to persist attesting to the myopic operationalization of solidarity over the past years. In September 2020, the Commission proposed the new Pact on Migration and Asylum which claims to pursue a ‘humane’ approach to migration and asylum with a focus on building trust amongst the Member States by ‘closing the existing implementation gap’.4 EC President Von der Leyen has stated that the proposed reforms reflect a ‘pragmatic and realistic approach’ taking ‘many legitimate interests’ into consideration and thus, striking ‘a new balance between responsibility and solidarity’.5 1

See CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v. Council., Opinion of Advocate General Bot, 26 July 2017, ECLI:EU:C:2017:618 (CJEU, Slovak Republic and Hungary v. Council). 2 See e.g. AIDA 2015. 3 European Council on Refugees and Exiles (ECRE) (2020) Greece: Transfers to Improvised Tent Camp has Begun, Thousands Sleeping Rough, EU to Co-manage New Reception Structure in Lesbos. https://ecre.org/greece-transfers-to-improvised-tent-camp-hasbegun-thousands-sleeping-rough-eu-to-co-manage-new-reception-structure-in-lesbos/. Accessed 12 September 2022; and Council of Europe (2019) Greece must urgently transfer asylum seekers from the Aegean islands and improve living conditions in reception facilities. https://www.coe.int/en/web/commissioner/-/greece-must-urgently-transfer-asylumseekers-from-the-aegean-islands-and-improve-living-conditions-in-reception-facilities. Accessed 12 September 2022. 4 European Commission (2020) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a New Pact on Migration and Asylum, COM(2020) 609 final (Communication on a new Pact ), p. 2. 5 European Commission (2020) Press statement by President von der Leyen on the New Pact on Migration and Asylum. https://ec.europa.eu/commission/presscorner/detail/en/statement_20_ 1727. Accessed 12 September 2022 (Press statement by President Von der Leyen).

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Although solidarity features prominently in the Pact, as the main pillar for a fair, workable and sustainable EU migration system, this chapter goes beyond the rhetoric of solidarity with a view to investigating the assumptions and lines of argument that have informed the Commission’s proposals. An examination of what the ‘new’ pragmatic approach to solidarity emphasizes and de-emphasizes, prioritizes and overlooks aims at contributing to a better understanding of how solidarity is narrated and envisaged in a reformed Common European Asylum System (CEAS) and of the extent to which such vision may (continue to) be part of the very problem it is invoked as a response to. In this chapter, I first discuss the new solidarity proposals as stated in the Pact and reflect on the form of pragmatism the Pact advocates for. Then, I draw on recent state practice and the politics of solidarity playing out during and in the aftermath of 2015 to establish what kinds of competing solidarities there exist and whether this has been addressed by the new proposals. My argument is that solidarity is used as a tool to micro-regulate interstate relations, completely excluding a question of where refugees fit in the solidarity circle. As a final step I go on to suggest the elements on the basis of which a reconstruction of the principle of solidarity in the EU asylum law could be thought of.

9.2 Solidarity in the Pact 9.2.1 The ‘Seamless Link’ Between Migration Control and Asylum The Pact begins by emphasizing the complexity of the phenomenon of migrant and refugee movements.6 It is on this basis that the Pact highlights the need for integrated policy-making7 bringing together aspects of migration, namely border management and screening, asylum and integration, return and relations with third countries. There is, arguably, more to it than a mere reiteration of the need for coordination between EU policies on migration, asylum, and border management.8 What the Commission presents as the most innovative aspects of the Pact and as the epitome of its pragmatism, entails a conflation between different categories of people on the move, based on a problematic assumption about migrant movements to Europe. In

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Communication on a new Pact (see n. 4 above), p. 4. See European Commission (2020) Proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund] COM (2020) 610 final (Proposal for a RAMM), p. 11. See also Article 4 ‘principle of integrated policy-making’ of the Proposal for a RAMM. 8 See the Pact, Article 78(1)(g) and Article 80. 7

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particular, it frames international protection seekers as “mixed flows”,9 embracing a narrative of persons unworthy of protection. The distinction between ‘economic’ migrants and refugees has been questioned both descriptively and normatively for not capturing the reality of migration experience (mixed movements, overlap of displacement root causes) and for demonizing the movement for reasons linked to socio-economic deprivation. Extensive research has shown that mixed movements prove policies based on rigid distinctions between regularity and irregularity, untenable.10 One would thus expect that the institution of asylum and border management/removal from the territory are kept distinct as permeated by diametrically opposite objectives. Instead, it is rather clear from the new proposals that the mixed character of migrant movements to Europe post-2015 is used by the Commission to precisely justify and reinforce the very distinctions that create the problem in the first place. By integrating protection mechanisms with border screening and return, the Pact continues to normalize a conflation between refugeehood and irregularity, reinforcing the securitized conception of EU asylum law which permeates the CEAS since its inception.11 Pre-screening procedures make further distinctions (e.g. between groups of asylum-seekers based on nationality) possible and even desirable in order to achieve speediness and efficiency.12 In this context, the movement of refugees to and within Europe continues to be deemed as a ‘threat’ to the EU project on market integration and migration to Europe is framed as a collective action problem addressed through the intensification of border management and cooperation with third countries. The inherent reason why one seeks protection, namely a well-founded fear of persecution, is swapped by the obsession to control migration, and ‘refugees’ are seen as irregular (illegal or outside the system) and not as people seeking protection.

9.2.2 The Legacy of the Dublin System and the Inflexibility of the First-Entry Criterion As suggested above, the Pact attests to the fact that the Commission continues to be preoccupied with migration control considerations, despite the fact that containment and deterrence have given rise to a number of human rights violations on European

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The term ‘mixed’ bears a negative connotation pointing to persons unworthy of protection. See Proposal for a RAMM, pp. 10–11. 10 See Foster 2016 and Achiume 2019, pp. 1512–1513. 11 Moreno-Lax 2014, pp. 146–167. 12 European Commission (2020) Proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM (2020) 612 final.

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soil over the last years.13 This is also reflected in the proposals about the way in which the system for allocating responsibility for refugees among EU states should be organized. The rather symbolic move by the Commission to rename the reformed Dublin Regulation as ‘the Asylum and Migration Management Regulation’ (RAMM), does nothing to remedy the very point that nurtures the fundamental inequality at the heart of the CEAS, namely the first entry criterion.14 The RAMM maintains the default position that the more geographically vulnerable a country is, the more responsibility it should bear. It is striking that the Commission does not consider the reverse consequences of such blame-based interpretation of responsibility allocation which has for years triggered a race to the bottom15 (divergence in recognition, status and rights attached to it). Instead, the new proposals continue to favour the default connection between external borders and responsibility alongside a cumbersome administrative bureaucracy, adopting compensatory solidarity measures to tackle unevenness. Trust between the EU Member States—on the basis of which solidarity is shown— is, therefore, reduced to a question of how well a country guards Europe’s external borders and makes returns possible.16 The decision to consider the implementation of solidarity only in terms of additional and flanking measures to be coupled with the criteria of responsibility under the Dublin system is an element embedded in the CEAS since its beginnings.17 Examples of such measures have been the creation of various funds relating to asylum, migration, and external borders,18 the establishment of EU agencies to assist national authorities such as EUAA and FRONTEX,19 as well as the intensification of cooperation with third countries.20 Interestingly enough, in its 2000 working paper on the

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See, among others, Costello 2020. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (recast), OJ L 180 (Dublin III Regulation) Article 13; Council Regulation (EC) No 343/2003 of 18 February 2003, OJ L 50, (Dublin II Regulation) Article 10; Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, entered into force 1 September 1997, OJ C 254 (Dublin Convention) Article 6. 15 See, among others, Thielemann et al 2010 and Mouzourakis 2014. 16 In fact, the Communication on a new Pact reinforces the responsibility of the Member States located at the borders by significantly limiting existing possibilities for cessation or shift of responsibility and by extending the responsibility based on the first entry criterion. For a more detailed analysis, see Brouwer et al 2021. 17 On the need to consider ‘“corrective” burden-sharing mechanisms that are complementary to the Dublin system’, see Commission of the European Communities (2007) Green Paper on the Future Common European Asylum System, COM (2007) 301 final p. 11. 18 See e.g. Council Decision (EC) No 2000/596 of 28 September 2000 establishing a European Refugee Fund, OJ L 252, Article 1. 19 On the role of the European Union Agency for Asylum (EUAA) and FRONTEX, see Chap. 11 by Gkliati and Nicolosi in this volume. 20 On the necessity for external solidarity through resettlement and capacity building, see Commission of the European Communities (2008) Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of 14

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Community instrument which would replace the Dublin Convention, the Commission opined what a pragmatic approach in this case dictated: “[…] not to seek to replace the Dublin Convention with a mechanism for distributing asylum applicants between the Member States in proportion to each Member State’s capacity to receive them, particularly since discussions on physical burden sharing […] have not produced any concrete results”.21

The same rationale was retained in the negotiations for the subsequent reform of the Dublin system (Dublin III Regulation, Dublin IV proposal,22 and the RAMM), the key element of which was precisely to ensure that pressure stays on the external borders with a view that responsibility be further outsourced to third countries. In other words, the EU’s system on responsibility allocation was grounded on a wellknown asymmetry (protection of the European heartland, namely north-west Europe including France, known as main destination countries for most refugees)23 which were to be ‘corrected’, primarily, through financial and operational support on an ad hoc basis.

9.2.3 More Flexibility in Inter-state Relations Acknowledging the lack of a ‘structured solidarity mechanism’24 as the main limitation of the current Dublin system,25 the Commission does little to essentially disrupt the structural asymmetry/corrective solidarity approach to the CEAS. It does make the physical distribution of asylum seekers and refugees between the Members States (relocation) an integral part of the new solidarity system, making sure though that contributions to solidarity may take other forms as well. ‘Different geographical situations, capabilities, and policy choices of European Member States’ in combination with varying pressures and asylum demands, call for ‘flexibility’, according to the President of the Commission.26 In particular, the Commission introduces a ‘predictable and reliable migration management system’ of flexible solidarity contributions ranging from relocation of Regions on a Policy Plan on Asylum: An Integrated Approach to Protection across the EU, COM (2008) 360 final. 21 Commission of the European Communities (2000) Commission staff working paper, Revisiting the Dublin Convention: developing Community legislation for determining which Member State is responsible for considering an application for asylum submitted in one of the Member States, SEC (2000) 522, p. 12. 22 European Commission (2016) Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM (2016) 0270 final - 2016/0133 (COD). 23 See Karageorgiou and Spijkerboer 2019. 24 Ibid.; Proposal for a RAMM, p. 11. 25 Ibid., Communication on a New Pact, p. 5. 26 Ibid., Press statement by President von der Leyen.

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asylum-seekers from countries of first asylum to returns of irregular migrants.27 The system distinguishes between three different levels for contributions to be triggered: (a) disembarkation following SAR operations,28 (b) pressure or risk of pressure29 and (c) crisis situations.30 As regards disembarkation, solidarity contributions may take the form of relocation. In cases of pressure, Member States are free to choose amongst different options including return sponsorship and capacity building, and, finally, in times of crisis States shall choose strictly between relocation and return sponsorship. The Commission grants itself the authority to decide, whenever necessary, what kind of re-adjustments (corrections) will have to be made so that the solidarity contributions pledged by Member States would be fit for purpose. Such a proposal for an in-built flexible solidarity system is grounded on the lesson learnt from EU Member State practice since 2015,31 namely that there is a lack of consensus on how solidarity should materialise, hence the proposal for a wide range of responsibility sharing options. Definitive decisions on how solidarity should materialise are postponed to a future time, relying on the Commission to decide which contributions will be considered appropriate in case voluntary pledges are not sufficient.32 In other words, what counts as a proportionate solidarity contribution will be decided on a case-by-case basis. It should be noted here that considering the pragmatics of any given situation—in this case the distribution of responsibilities—does require a certain degree of flexibility, as this may allow for circumstances-specific solutions at the implementation stage. In fact, pragmatism and flexibility do go together.33 One should caution though 27

Ibid., Proposal for a RAMM Part IV Solidarity, Articles 45–60. Ibid., Articles 47–49. 29 Ibid., Articles 50–53. 30 European Commission (2020) Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum, COM (2020) 613 final. 31 A number of EU countries, including the Visegrád Group, have opposed the proposal for a corrective allocation mechanism—automatically triggered once a state was reported to receive applications exceeding 150% of its capacity level—as encroaching ‘too far on the competences reserved for the Member States in the areas of security policy and social rights, see e.g. Interparliamentary Committee Meeting organized by the Committee on Civil Liberties, Justice and Home Affairs on the Third Reform of the Common European Asylum System—Up for the Challenge—Summaries of Reasoned Opinions and Contributions of National Parliaments, 28 Feb 2017. https://www.europarl. europa.eu/cmsdata/226588/Summaries_of_reasoned_opinions_and_contributions.pdf. Accessed 1 October 2022, pp. 4–6. In addition, the proposal for a mandatory solidarity system was challenged by those countries as incompatible with the principle of proportionality and necessity, see CJEU, Slovakia and Hungary v Council. See also the subsequent judgement by the CJEU declaring that Poland, Hungary and the Czech Republic have failed to fulfil their obligations under EU law, Joined Cases C-715/17, C-718/17 and C-719/17 Commission v Poland, Hungary and the Czech Republic, Judgment, 2 April 2020, ECLI:EU:C:2020:257. 32 Karageorgiou 2020, p. VI. 33 Human rights scholars have criticized the use of flexibility by European states in earlier situations of mass refugee movements (former Yugoslavia) as a way to shift the focus from refugee law standards to ‘an uncertain realm of political bargaining and humanitarian assistance’. See Fitzpatrick 2000, p. 305 and Durieux 2021, p. 687. For this chapter, political flexibility is not synonymous to 28

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against the concentration of decision making power on the Commission, which sits uncomfortably with the idea of pluralism and flexible conducting of the politics of solidarity, pointing instead to a one-institution’s game.

9.2.4 More Coercion for Asylum-Seekers and Refugees Although solidarity as the guiding principle of EU policy on migration and asylum is meaning to provide guidance for building a fair system towards third country nationals (Article 67 TFEU), the Pact seems to pull in the opposite direction; it treats asylum-seekers as passive objects, directing those in need of protection towards countries they have not earlier considered as their final country of asylum and allowing for the possibility of those whose asylum application has been rejected to be transferred from one Member State to another in order for the latter to return them back to their country of origin (in the name of solidarity between the Member States). In other words, flexibility in interstate relations as discussed above seems to come at a cost: more coercion of asylum-seekers to be traded and transferred within the EU. This approach exemplifies the problem of ‘vanishing refugees’ as identified by Durieux who has argued that: ‘the central character of the 1951 Convention regime, namely the refugee, is blurred, marginalized or ignored within a system (CEAS) based heavily on the logic of an internal market and a European human rights framework that often sees protection from refoulement as an end in and of itself’34

This, Durieux argues, constitutes an inherent flaw in the CEAS pertaining to the fact that it seeks to allocate ’responsibility for a process, rather than for a person’.35 Under the new pragmatic approach of the Pact, asylum-seekers are not only objectified within a system where asylum becomes bureaucracy with a focus on procedural efficiency; they are alienated by being punished for not claiming asylum in the first safe country they entered.36 The individuals’ wishes to seek protection where they want to, and other factors relating to their specific situation are being sidestepped to the benefit of a well-functioning and managed movement regime within the internal market of EU.

the exercise of discretionary power unconstrained by rule or certainty but rather as a tool which encourages a consideration of context, causes and remedies of a particular asylum problem in practice. On this, see Kennedy 1986, p. 7. 34 Durieux 2013, pp. 225, 251. 35 Ibid., p. 235. 36 See the proposal for a RAMM and the suggested sanctions to non-compliant asylum-seekers.

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9.3 Problematizing the Commission’s Conception of Pragmatism 9.3.1 The Doctrinal Chasm Between the Political and the Legal Refugee protection, as framed in the Refugee Convention,37 is a ‘positive and collective commitment to protect specific categories of persons, and to resolve the problems caused by their exodus and exile’.38 Nonetheless, while the task of protection through determining refugee status is deemed to be a technical legal task, advocating solutions for refugees—including through responsibility sharing, remains by and large a matter of political negotiations. In his interrogation of the refugee regime, Kennedy has questioned the rigid doctrinal distinction between refugee law as public international law and national political decisions concerning solutions to refugee problems as activities associated with pragmatism, and thus with informality.39 The incorporation of an interstitial norm like solidarity in EU primary law and its infiltration in EU migration policy could potentially allow for a way to overcome this rigid distinction. Historically associated with questions of asymmetry and injustice, carrying a strong moral and political import,40 solidarity allows for an intermediate way of discussing questions of fairness, remedies and belonging, skilfully blending elements of formalism and pragmatism. Based on this, solidarity would mean less to bind the Commission and Member States than to enable them. If the CEAS and international human rights standards limit state discretion, a discussion of solidarity means to enlarge it. If the CEAS creates individual rights and state responsibilities, solidarity opens the province of political negotiation and flexibility for regional and supranational solutions. Within this context, it can be argued that a pragmatic approach to solidarity in the CEAS could have a critical potential in democratizing and pluralizing the possibilities of action, by focusing on results stemming from a ‘conversation’ between fellow inquirers rather than concepts. Simply put, a pragmatic approach to solidarity would reconcile 37

1951 Convention Relating to the Status of Refugees, entered into force 22 April 1954, 189 UNTS 150. 38 Durieux 2013, p. 252, emphasis in the original. 39 Kennedy 1986. 40 Solidarity’s long history—which can be traced back to antiquity, Roman civil law, Christianity and the French Revolution—speaks of its context-dependent character; far from being a homogeneous idea travelling through time, solidarity’s meaning, scope and reach depend upon the material circumstances in which it occurs. What seems not to be challenged, though, is that in all its appearances solidarity refers to a ‘community’. According to Scholtz ‘Solidarity is used to describe a particular type of community and it is used to describe the bonds of any community.’ Scholz 2008, p. 17. Thus, rather than offering a flat definition, this chapter approaches solidarity as a generic notion that refers to all legal discourses, ideologies, structures of argument, strategies, and projects whereby different actors in the asylum context, including EU institutions, states, and courts defend their community claim and oppose it to others. For a detailed analysis, see Karageorgiou 2018.

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the political and the legal in a manner that responds to material needs on the ground. Is this the type of pragmatism the Commission advocates for?

9.3.2 Towards a Normative Flattening As discussed in Sect. 9.2.3, the Commission’s pragmatism entails an adjustment to intergovernmental and rationally-egoistic constraints to solidarity as exemplified during and in the aftermath of the 2015 crisis. In particular, its flexible and realistic approach reflects the different usages of solidarity by various actors: the Visegrád countries to resist Muslim refugees (nationalist solidarity), heartland Member States (such as Germany) to promote their liberal sympathy with refugees, peripheral states (such as Greece and Italy) to shirk their international and European responsibilities, and finally other states to justify more restrictive national asylum policies (e.g. Sweden). Although the Pact’s approach points to a flexible and pluralist direction, the challenges for implementation of the Commission’s all-encompassing proposals remain unaddressed. Implementation aside, a major risk is evident; that of a ‘normative flattening’:41 the need to accommodate various interests and capacities as well as asymmetrical obligations is expected to materialize in solidarity and fairness being traded with migration management and deterrence cooperation, making asylum a matter of discretion. By way of illustration, the Pact explores the possibilities of ‘return sponsorships’, according to which States could decide not to accept relocations, yet to bear the administrative and financial cost of returns. By employing this and other forms of solidarity, the Commission’s pragmatism places faith on institutions that have created EU asylum asymmetries in the first place. It is thus questionable if this kind of pragmatism is good faith pragmatism in which the transformative power of the solidarity language, is likely to be used equally by both the centre and the periphery in order to bring any meaningful change in practice. Instead, there is a risk of cynicism and managerial conduct of politics where the Commission will be ‘flexibly’ deciding on solidarity contributions on a case-by-case basis.

9.3.3 Re-entrenching Exclusion What the 2015 crisis exposed is a clash between different modes of solidarity against one another; first, a thick solidarity based on a nation-state belonging against a far thinner conception of solidarity embodied in the figure of the refugee. On the face of it, there appears to be a tension between doing justice to refugees and achieving justice between states.42 As suggested in Sect. 9.2.4, the refugee—as the main person 41 42

Lombardi 2021, p. 60. Gibney 2007.

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of concern—is not only overlooked but also a focus on her is seen as antithetical to the aims of the EU integration project and, hence, to European solidarity. Solidarity has been conceptualized as a reaction to the alleged unprecedented arrival of people in Europe and them being a threat to Europe’s security and cohesion; as a commitment owed by the Union or certain EU states to other states. The idea about cooperation and solidarity between Member States is opposed to exclusion of refugees and desolidarization of refugee protection, along with shifting responsibility elsewhere. Such an understanding of solidarity in EU asylum policy and within a community of states with particular self-interests, makes it rather hard for it to work two ways, namely fostering interstate support and safeguarding refugee rights in line with international and European human rights standards. The language and function of solidarity (as relocation or return sponsorship) appears to be more of an apology for the internal market rationale and less of an ‘honest’ assessment43 and revision of an unfair system.44 Instead of asking the question how the EU can facilitate the lives of people fleeing persecution, the Pact seems to be furnishing answers as to how responsibility for refugees can be evaded. It is again only in emergency situations that solidarity will be invoked, losing sight of the migration process as a continuum. In this context, the Commission’s proposals are grounded on a superficial assessment of the situation on the ground. Focusing on the form, i.e. more complicated laws and procedures, the core question pertaining to the way in which the community within which solidarity applies is conceptualized, is once again obscured. In refugee protection, solidarity challenges the sanctity of national borders and formal exclusions by including refugees in the solidarity circle. It also invites us to reconsider established frameworks of political organization and authority. Therefore, the problem goes beyond a mere lack of responsibility sharing as portrayed in the dominant discourse. It is rather about a clash of solidarities: the solidarity towards the citizen and the solidarity towards the ‘other’. Instead of establishing a constructive dialogue around questions of democracy and belonging, the Pact re-entrenches the exclusionary, state-centred and security-oriented approach to asylum which has fuelled all asylum crises up to this point.

9.4 Re-imagining Solidarity as Reconciliation and the Antithesis of Alienation 9.4.1 Moving Beyond a Micro-regulation of Solidarity As shown above, the Commission has been overly concerned with efficiency and speediness. State concerns of overburdening of national systems have influenced the 43

European Commission (2020) A fresh start on migration: Building confidence and striking a new balance between responsibility and solidarity. https://ec.europa.eu/commission/presscorner/detail/ en/IP_20_1706. Accessed 12 September 2022. 44 Karageorgiou and Noll 2022.

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Commission’s direction45 and security considerations have taken priority over the right to enter and be granted protection. Hiding behind its excessively formalistic pragmatism, the Commission evades objections at a meta-level. How is the future of the CEAS envisioned and what do we want solidarity to achieve? Unfortunately, the Commission’s formalistic pragmatism does not magically resolve contradictions nor does it reconcile competing interests. Instead, it seems to foreclose possibilities to counter particular demands, namely the demands of the market by reducing solidarity to an apolitical and neutral device for bureaucratic administration. Solidarity’s fairness remains a bureaucratic decision to be taken ad hoc and not integrated in a system that reinforces complementary interest structures and new modes of democratic legislation.46 The clash experienced in the petition of the refugees for entry and protection in 2015, the petition of peripheral states for sharing, the petition of the Balkan countries for ad hoc solidarity to compensate for Dublin’s injustice, are obscured with this pragmatic approach. In addition, the asylum debate is minimized as a conflict of justice versus charity or solidarity, instead of one vision of belonging against the other. These questions require reimagining the EU as a legal construct, solidarity and unity of its peoples, and its form of governance in a different way. As I have argued elsewhere,47 restoring mutual trust between EU states requires restoring faith to institutions. European asylum law and policy is bound to fail engendering solidarity if they do not create the conditions where all those who are involved (or subjected to EU law) participate in the EU legal processes of integration. In the words of Banakar ‘its [solidarity’s] viability at the transnational level remains ultimately a function of its efficacy at the micro level of EU citizens’,48 and non-citizens as the case of asylum policy indicates.

9.4.2 Solidarity as a New Form of Conducting Regional Politics To think pragmatically about solidarity in an empowering and transformative way,49 the premises of European migration and asylum policy need to be re-examined. As Benhabib suggests, the EU is found in contradictory currents which move it towards norms of cosmopolitan justice in the treatment of those who are within its boundaries, while leading it to act in accordance with Westphalian conceptions

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Craig and Fletcher 2005. Stjerno 2005, p. 289. 47 See Karageorgiou 2021. 48 Banakar 2018, p. 2. 49 On the idea of thinking pragmatically about solidarity as a particular form of conducting regional and global politics I draw inspiration from Ben Golder (Golder 2016) and Florian Hoffmann (Hoffmann 2008) and their work on pragmatism in human rights. 46

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of unbridled sovereignty toward those who are on the outside.50 The refugee crisis made it clear that the concept of solidarity becomes the site where a dialogue between different visions regarding the role of the CEAS should lie. Thus, the question to be asked is, rather, to what extent solidarity in the field of EU asylum law and policy is possible within the existing EU institutional structures. Is there a possibility to eliminate this tension and render solidarity a functional principle for all EU states and asylum applicants? Unless states depart from the traditional nation-state construction and seek new forms of “belonging”, solidarity will simply remain a word on paper serving merely symbolic purposes. In light of this, structural reform is much required for a system that could accommodate different solidarities, embracing a broader ideal of community. A transformative reading of solidarity as a concept intrinsic to groupings and communities51 and as a source for new modes of democratic processes and legislation is what the Commission’s pragmatic approach is missing. A pragmatism that goes beyond excessive formalism, requires an attentive look at the concept of solidarity and its theoretical underpinnings. In contemporary political theory solidarity can be invoked as a synonym for community. According to Habermas, inclusion does not imply locking members into a community that closes itself off from others. The ‘inclusion of the other’ means rather that the boundaries of the community are open for all, and most specifically for those who are strangers to one another and want to remain strangers.52 This signifies a shift from premodern societies based on the principle of likeness to modern solidarity in which states have to find formulas to include a large number of persons independently from traditional symbolic resources, i.e. family, clan, ethnos.53 Inclusion in this specific sense means a community whose conceptions of citizenship as political belonging rest on universalist normative grounds. What are the limits of solidarity and inclusion for democratic polities whose boundaries are determined by territorial claims? Insofar as all acts of inclusion also presuppose acts of exclusion as well, what if anything does a solidary group owe to those whom it excludes? Pensky suggests a European polity be well aware of its complex and compelling relationships with other people, groups and polities around the globe; that it recognizes that its sovereignty does not imply that it is capable of unilaterally declaring and justifying mechanisms of exclusion and inclusion; that solidarity extends beyond the EU in keeping with complex and multiple belongings and obligations that its members bear; that the nature of EU citizenship and participation is in a constant dialogue to be carried out between interested parties and individuals; that uses a constitutional language stating that all persons who are likely to be significantly affected by decisions and policies of the EU and its Member States have, prima

50

Benhabib 2015. See Cotterrell 2013 and Mason 2000. 52 Habermas et al. 1998. 53 Pensky 2008, p. 11. 51

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facie, the right to participate in the process whereby those decision and policies are made.54 What could solidarity entail in terms of refugee rights? The negative right not to be hindered by social vulnerabilities that result from social structures, (i.e. migration status) in the exercise of refugee rights in an inclusive community that takes their voice into account.55 For solidarity in refugee protection and community politics, justice has relevance to the distribution of membership within polities.56 Sturm, inspired by Gould’s version of relationality,57 introduces us to the concept of justice as solidarity and as the antithesis of alienation. Refugees are linked to a negative form of belonging, namely alienation.58 Before the closure of borders in 2016, refugees were moving across the EU seeking the Member State where they’ll file their asylum application; yet the EU didn’t seem willing to take their agency into account and translate it into law. This because democracy is thought to take place within nationally constituted parliamentary elections. Crises situations though have been testing the limits of nation state capabilities, allowing for a re-imagining of existing structures.59 Thinking about democracy is thinking about the power of the people on the move as much as the power of sedentary people. Within this context, a pragmatic account of solidarity, requires institutions that are able to capture this.60 In search of solidarity one needs to be looking at the institutionalization of democracy.61 Such reconstruction of solidarity seems to transcend the traditional notion of citizenship and belonging. Refugee rights, as human rights, must be removed from abstract notions of universalism and relocated in communities through politically empowered individuals in democratic politics.

9.5 By Way of Epilogue The analysis above established that the direction of the CEAS has been unduly influenced by national interests concentrated to exclude and prevent irregular migration, regardless of human costs. The EU Pact seems to favour a traditional, nation-statist, formalistic reading of solidarity which clashes with refugee rights. It argued that 54

Ibid., p. 131. Scholz 2014, pp. 49–67. 56 On this, see Walzer 1983. 57 Gould 1983. 58 Sturm 1998, p. 8. 59 A bottom-up approach to solidarity is gaining currency in many EU countries, promoted by localities and municipalities. 60 Of relevance here is the notion of ‘acts of citizenship’, which has been employed to register the political subjectivity of those formally excluded. See Isin 2008, pp. 36–37, and Zhang 2020, pp. 330–331, 338. 61 Drawing on Benhabib’s notion of ‘jurisgenerative politics’, a reimagining of solidarity in the CEAS would entail consideration of both the law and the political praxis (actions, demands of refugees themselves). See Benhabib and Nathwani 2021, pp. 130–131. 55

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the conception of pragmatism promoted in the Pact emphasizes excessive formalism through calculative rules and complex procedures sidestepping questions of political organization, community and belonging that solidarity has squarely brought to the table in 2015. Not learning the lessons from the 2015/2016 so-called refugee crisis is an approach that allows solidarity between EU states to evolve into an entitlement based on exclusionary politics. This chapter emphasized that demands for solidarity stem from a perception of belonging to a community. What is implicitly assumed in the Commission’s account is that, despite disagreement, the politics of solidarity is a matter of everyone pulling together to solve a common set of problems within the context of a particular ‘we’. Pragmatically speaking, therefore, the Commission calls for a consideration of the costs and risks of free-riding and advocates for compromise. However, as shown above, that is not enough and can hardly provide a viable remedy to current and future challenges for refugee movements in Europe. Going beyond that would require a rethink of how Member States’ compliance with the demands of European solidarity is not presumed, but rather debated and reconciled. As a powerful discourse in which claims of justice are spoken by different actors (states, refugees, citizens), every invocation of solidarity gives a new meaning to the norm, transcending its formalism. Thus, a re-imagining of the CEAS must be attentive both to the law and to the political praxis (actions, demands of refugees themselves) and promote solidarity as a particular form of conducting regional and global politics.

References Achiume T (2019) Migration as Decolonization. Stanford Law Review 71:1509–1574 AIDA (2015) Common Asylum System at a Turning Point: Refugees Caught in Europe’s Solidarity Crisis. AIDA Annual Report 2014/2015 Banakar R (2018) Law, Love and Responsibility: A Note on Solidarity in EU Law. In: Banakar R et al (eds) Festskrift till Håkan Hydén. Juristförlaget i Lund Benhabib S (2015) Another Cosmopolitanism. Oxford University Press, Oxford Benhabib S, Nathwani N (2021) The Ethics of International Refugee Protection. In: Costello C et al (eds) The Oxford Handbook of International Refugee Law. Oxford University Press, Oxford Brouwer E, Campesi G, Carrera S, Cortinovis R, Karageorgiou E, Vedsted-Hansen, Vosyli¯ut˙e L (2021) The European Commission’s legislative proposals in the New Pact on Migration and Asylum. Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 697.130 Costello C (2020) Overcoming Refugee Containment and Crisis. German Law Journal 21:17–22 Cotterrell R (2013) Rethinking ‘Embeddedness’: Law, Economy, Community. Journal of Law and Society 49–67 Craig S, Fletcher M (2005) Deflecting Refugees: A Critique of the EC Asylum Procedures Directive. In: Shah P (ed) The Challenge of Asylum to Legal Systems. Routledge, London Durieux J F (2013) The vanishing refugee: How EU asylum law blurs the specificity of refugee protection. In: Lambert H et al (eds) The Global Reach of European Refugee Law. Cambridge University Press, New York Durieux J F (2021) Temporary Protection and Temporary Refuge. In: Costello C, Foster M, McAdam J (eds) The Oxford Handbook of International Refugee Law. Oxford University Press, Oxford

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Fitzpatrick J (2000) Temporary Protection of Refugees: Elements of a Formalized Regime. American Journal of International Law 94:279–306 Foster M (2016) Economic Migrant or Person in Need of Protection? In: Burson B, Cantor D (eds) Human Rights and the Refugee Definition: Comparative Legal Practice and Theory. Brill Nijhoff, The Netherlands Gibney M J (2007) Engineered regionalism, forced migration, and the distribution of refugees. In: Kneebone S, Rawlings-Sanaei F (eds) New Regionalism and Asylum Seekers. Berghahn Books, New York Golder B (2016) Theorizing Human Rights. In: Orford A, Hoffmann F (eds) The Oxford Handbook of the Theory of International Law. Oxford University Press, Oxford Gould C C (1983) Private Rights and Public Virtues: Women, Family and Democracy. In: Gould C C (ed) Beyond Domination: New Perspectives on Women and Philosophy. Rowman & Allanheld Publishers, U.S. Habermas, J, Cronin C, De Greiff P (1998) The Inclusion of the Other Studies in Political Theory. MIT Press, Cambridge, Mass Hoffmann F F (2008) Human Rights, the self and the other: reflections on a pragmatic theory of human rights. In: Orford A (ed) International Law and its Others. Cambridge University Press, Cambridge Isin E F (2008) Theorizing acts of citizenship. In: Isin E F, Nielsen G M (eds) Acts of Citizenship. Zed Books, London/New York Karageorgiou E (2018) Rethinking solidarity in European asylum law: A critical reading of the key concept in contemporary refugee policy. Media-Tryck, Lund University Karageorgiou E (2020) The New Pact on Migration and Asylum: Why Pragmatism Cannot Engender Solidarity. NJEL 2:III–VIII Karageorgiou E (2021) The Impact of the New EU Pact on Europe’s External Borders: The Case of Greece. In: Carrera S, Geddes A (eds) The EU Pact on Migration and Asylum in light of the United Nations Global Compact on Refugees International Experiences on Containment and Mobility and their Impacts on Trust and Rights. European University Institute, Florence. Karageorgiou E, Noll G (2022) What is Wrong with Solidarity in EU Asylum and Migration Law? Jus Cogens Karageorgiou E, Spijkerboer T (2019) Solidarity with/out borders. https://rli.blogs.sas.ac.uk/2019/ 06/13/solidarity-with-out-borders/. Accessed 10 May 2022 Kennedy D (1986) International Refugee Protection. Human Rights Quarterly 8:1–69 Lombardi L (2021) The Value of European Solidarity Within the Dublin Regulation: An Investigation on the Evolution of the Concept. Master Thesis, Lund University Mason A (2000) Community, Solidarity and Belonging Levels of Community and their Normative Significance. Cambridge University Press, Cambridge Moreno-Lax V (2014) Life After Lisbon: EU Asylum Policy as a Factor of Migration Control. In: Acosta Arcarazo D, Murphy C C (eds) EU Security and Justice Law After Lisbon and Stockholm. Hart Publishing, Oxford/Portland, OR Mouzourakis M (2014) ‘We Need to Talk about Dublin’ - Responsibility under the Dublin System as a blockage to asylum burden-sharing in the European Union. Refugee Studies Centre Working Paper Series No 105 Pensky M (2008) The Ends of Solidarity Discourse Theory in Ethics and Politics. State University of New York Press, Albany, NY Scholz S J (2008) Political Solidarity. Penn State University Press Scholz S J (2014) Solidarity as a Human Right. Archiv des Völkerrechts 52:49–67 Stjerno St (2005) Solidarity in Europe - The history of an idea. Cambridge University Press, Cambridge Sturm D (1998) Solidarity and Suffering Toward a Politics of Relationality. State University of New York Press, Albany, NY Thielemann E, Williams R, Boswell C (2010) What System of Burden Sharing between Member States for the Reception of Asylum Seekers? European Parliament, Directorate-General Internal

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Policies, Policy Department C, Citizens Rights and Constitutional Affairs, Civil Liberties, Justice and Home Affairs, PE 419.620, Brussels Walzer M (1983) Spheres of Justice: A Defense of Pluralism and Equality. Basic Books, New York Zhang Ch (2020) Free Movement and Social Citizenship Towards a Politically Construed Understanding of Solidarity Across Borders. In: Krunke H et al (eds) Transnational Solidarity. Cambridge University Press, Cambridge

Eleni Karageorgiou, Ragnar Söderberg Postdoctoral Fellow in Law, Faculty of Law, Lund University, Sweden

Chapter 10

Solidarity in EU Immigration and Asylum Law: A Corpus Linguistic Analysis Laura Mastroianni

Contents 10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Solidarity: A Multifaceted Concept . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 Solidarity as an Idea: Traditional Approaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 Solidarity in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.3 Solidarity in the Legal Framework of the European Union . . . . . . . . . . . . . . . . . . 10.2.4 Solidarity in EU Asylum and Immigration Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 Corpus Linguistics: A Quantitative Method in Legal Linguistics . . . . . . . . . . . . . . . . . . . 10.3.1 Law and Language . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 Quantitative Corpus Analysis in Legal Linguistics . . . . . . . . . . . . . . . . . . . . . . . . 10.4 Solidarity in EU Asylum and Immigration Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.1 Data—The Corpus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.2 Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.3 Frequency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.4 Dispersion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.5 Key Word In Context (KWIC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4.6 Results . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.5 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract Solidarity is one of the core concepts of the European Union. It is promulgated throughout EU primary and secondary legislation, as well as it is frequently called out by many politicians. However, it is not easy to determine the extent of the application of the principle of solidarity, or the lack thereof. Since the principle of solidarity has been so widely employed in a variety of fields, attaching to it multiple meanings, it has become extremely difficult to define its legal, political, and social meanings. The aim of this chapter is to provide an overview of the concept of solidarity, especially focusing on EU immigration and asylum law. Therefore, the chapter is divided into three main sections. In Sect. 10.2, a theoretical framework of the overall concept of solidarity is provided, drawing conceptualisations from L. Mastroianni (B) Department of Political and Social Sciences, Alma Mater Studiorum—University of Bologna, Bologna, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_10

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multiple fields such as sociology, political sciences, and law and discussing how the concept of solidarity has been introduced and shaped within the EU context, its legal framework and specifically EU asylum and immigration law. Section 10.3 outlines the methodological approach by emphasising the applicability of quantitative methods to the language of the law through quantitative corpus linguistic analysis. In the last section, Sect. 10.4, the results of the analysis are presented, conclusions are made, some caveats of the analysis are illustrated, and a future research agenda is set out. Keywords Solidarity · CEAS · European Union · Immigration · Asylum · EU Law · Corpus Linguistics

10.1 Introduction Since the founding treaties of the European Union (EU), the concept of solidarity has been included among its key principles and values. Article 2 of the Consolidated Version of the Treaty on European Union (TEU) states: The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.1

The prominent use of the term in multiple fields and policy areas has generated a burgeoning debate on the effective meaning of solidarity. Scholars have analysed solidarity from a philosophical, political as well as from a sociological perspective, and more recently, from a legal point of view.2 Accordingly, the centrality of the legal concept within the EU is clear, due to its frequent use. What is less clear, as expressed by Dagilyt˙e,3 is its legal effects, justiciability, and enforceability. Apart from being a central issue of debate in many fields, the concept of solidarity and its applications have been highly criticised during the 2015 refugee crisis. Accordingly, even if the EU has a Common European Asylum System (CEAS), the application of solidarity mechanisms has been partially undermined by the system itself. Moreover, even when EU institutions have put in place measures to give relief to Member States with a higher number of applications, these have often been regarded as unnecessary. Therefore, this chapter aims at understanding in which way the concept of solidarity is used and framed in EU immigration and asylum law. Such analysis is considered fundamental in order to understand the possible shortcomings of EU immigration and asylum law, and its possible failing during the crisis period, creating a deteriorating situation for Member States and, especially, for the Union as such. The performed analysis is based on the methodological approach of quantitative 1

Consolidated Version of the Treaty on European Union [2012] OJ C 326/13. Grimmel 2017. 3 Dagilyt˙ e 2018. 2

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corpus linguistic analysis, through which the linguistic characteristics of the term ‘solidarity’ are investigated. As it will be further elaborated in the following sections of this chapter, an empirical analysis of the term ‘solidarity’—based on an original dataset including EU primary and secondary legislation—leads to a more comprehensive understanding of the ambiguous concept of solidarity in relation to its linguistic employment. The present chapter is divided into three sections. Section 10.2 provides a theoretical framework for the overall analysis. Accordingly, it includes a brief literature review of the idea of solidarity, its evolution over time, as well as the traditional approaches to the concept. It then moves on to the description of the conceptualisations of solidarity within the EU legal system and, more specifically, its immigration and asylum law. Section 10.3 focuses on the methodological approach. In essence, it presents the connection between language and law, as well as the enforceability of quantitative methods in legal linguistics—with a particular emphasis on the method of corpus linguistic analysis. Finally, the last section, Sect. 10.4, illustrates the specific empirical analysis conducted, by presenting its results, alongside some caveats regarding the limitations of this approach. The conclusions, Sect. 10.5, highlight possible future developments in the field.

10.2 Solidarity: A Multifaceted Concept During and after the 2015 refugee crisis, a fierce debate erupted on the idea of solidarity, its conceptualisations at the EU level, as well as its applicability. However, it must be noted, that the concept of solidarity and its meaning(s) have been discussed for a much longer time in multiple fields, such as sociology, political sciences, and more recently, in law. Since it is such a much-debated issue, and it has been so for many decades, has a comprehensive and coherent definition of solidarity been traced? The answer is not as straightforward as it might seem. For this reason, this section illustrates the debate evolving around the concept of solidarity from multiple perspectives, providing an understanding of the concept within the academic debate.

10.2.1 Solidarity as an Idea: Traditional Approaches From a historical point of view, solidarity as a phenomenon existed before the actual formulation of the idea. Accordingly, the term solidarité had been already applied by French lawyers in the sixteenth century.4 The evolution of solidarity from a legal concept into a political one apparently began at the end of the eighteenth century. In his book Solidarity in Europe: the History of an Idea, Stjernø5 identifies three 4 5

Hayward 1959. Stjernø 2005.

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broad traditions in the development of the idea of solidarity. Firstly, it had been conceived as a key element in classical social theory. Secondly, it had taken a central place in political thought. Thirdly, it had acquired a certain relevance as a religious branch in Christian democracy. Among the various philosophers, political scientists and sociologists categorised in the three traditions, Émile Durkheim stands out as the pioneer of research on solidarity in classic sociology. His work The Division of Labour in Society6 is the most famous and most cited in the field, and it is taken as a source of departure for many theories and conceptualisations of solidarity in contemporary research. In order to explain his theoretical approach to solidarity, Durkheim distinguishes between primitive/traditional and modern societies.7 Each of the two kinds of societies is characterised by a specific form of solidarity. Mechanic solidarity is identified in primitive/traditional societies, while organic solidarity is represented in modern societies. On the one hand, primitive/traditional societies are described as simple and homogeneous societies with a low degree of differentiation and a lack of individuality. Accordingly, in primitive/traditional societies, individuals are strictly linked among them due to their similarity in living conditions, shared culture and beliefs. For this specific reason, in these societies, solidarity is very strong, since people are alike and think in the same way.8 Referring to these intrinsic features of solidarity in primitive/traditional societies, Küçük redefines Durkheim’s mechanic solidarity as “emotionally driven solidarity”,9 more easily reached in smaller societies with tight interpersonal relationships among its members. As reported by Küçük, solidarity driven by emotional impulses, such as charity, sympathy, affection or pity, is also described as altruistic solidarity. Reflecting on Durkheim’s work and elaborating on the features on this first type of societies, Steinvorth takes another position on mechanic solidarity and gets to the conclusion that mechanic solidarity is not solidarity: it is mutual independence.10 In line with this reasoning, “individuals can survive their exit from society only because they are more or less like any other individual”.11 On the other hand, modern societies are outlined by a complex division of labour, with a high degree of occupational specialisation and of social differentiation. Due to the increased division of labour and specialisations, individuals’ consciousness becomes more dominant, bringing to a factual interdependence, that Durkheim names organic solidarity.12 This representation of solidarity achieves in grasping the role that self-interest has in modern societies. In effect, the members of this type of societies support each other not (only)out of a sense of emotionally driven solidarity,

6

Durkheim 1893. Durkheim 1893. 8 Stjernø 2005. 9 Küçük 2016, p. 968. 10 Steinvorth 2017. 11 Steinvorth 2017, p. 11. 12 Durkheim 1893. 7

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but because they gain benefits from each other’s well-being. Therefore, organic solidarity is “functional and underpinned by self-interest”.13 As far as organic solidarity is concerned, Küçük affirms that in this case, charitable grounds (solidarity driven by emotional impulses) are replaced by ethical imperatives, which have a stronger connotation in larger societies.14 Therefore, he defines this kind of solidarity as “egalitarian solidarity”.15 However, Durkheim affirms that common interests are not enough to preserve cohesion in a social group.16 In combining the emotionally driven element of mechanic solidarity with the interests of modern societies, Stjernø points out that “[e]motions reinforce the commitment to solidarity, and the more intense social relationships are, the stronger the sentiments of solidarity”.17 Furthermore, Durkheim reaches the goal of highlighting that individual liberty and solidarity are two ideas which are simultaneously required in a liberal society.18 This acknowledgement is considered important by Steinvorth, because “without individual liberty and responsibility, solidarity will degenerate into parasitism; yet, without solidarity individual liberty will be defeated by authoritarianism, which will always prove stronger than any individual fighting alone for their liberty”.19 As noted by Stjernø, Durkheim’s pioneering work on the conceptualisations of solidarity gave birth to a set of themes and issues continuously discussed and analysed in social theory as well as in other fields: “the relationship between similarity and difference, and the relationship between solidarity, justice and equality, the law as an integrating force, the phenomenon of increasing individualism […]”.20 After the classification of the three traditions of the idea of solidarity, Stjernø provides his own definition of solidarity, described as “fundamentally static in character” by Ross.21 In outlining his comprehension of the idea of solidarity, Stjernø summarises: For the majority, it is based not on personal interest, but on political altruism: it is founded on empathy and cognition, and the balance between the two may vary. Solidarity is developed through communicative action and the ability to take the role of ‘the other(s)’. It means the preparedness to share resources with others, through personal contributions to those who are struggling and through taxation and redistribution organised by the state. Thus, solidarity means a readiness for collective action and a will to institutionalise it through the establishment of rights and citizenship. It is normally expressed through relating to others who are engaged in struggle […].22

13

Küçük 2016, p. 970. Küçük 2016. 15 Küçük 2016. 16 Durkheim 1893. 17 Stjernø 2005, p. 36. 18 Durkheim 1893. 19 Steinvorth 2017, p. 11. 20 Stjernø 2005, p. 35. 21 Ross 2010, p. 27. 22 Stjernø 2005, p. 326. 14

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In the prolific debate evolving around the idea of solidarity and its definition(s), it is necessary to mention that some traditional themes are still present in recent literature across disciplines. Contributing himself to these discussions, Ross makes reference to some scholars and theories going back to the traditional understandings of the idea of solidarity.23 Heyd stresses the ideology contained in such idea: solidarity indicates a dichotomy between the group and an ‘other’. Therefore, in his vision, solidarity entails exclusion.24 Mutuality takes a central role in Wilde’s25 conceptualisation of solidarity: it catches reciprocity and responsibility among members of a group which encourages mutual support. Some other scholars focus on the moral implications, such as Derpmann,26 who conceives solidarity as the care and moral responsibility for the rights or welfare of others in the society. However, solidarity also acquires an instrumental value in the achievement of essential political functions. Even if, according to Derpmann, solidarity is based on moral responsibility, it does not require self-sacrifice. Accordingly, Baurmann states that solidarity may have its roots in the security of fairness for a group, which includes the probability of the reception of self-benefits for individuals.27 Finally, Steinvorth goes back to the emotionally driven solidarity as represented in primitive/traditional societies, defining it as “the virtue of equals who help one another in misfortunes they are not responsible for”.28 Furthermore, he explains the four elements composing this definition of solidarity as a virtue. Firstly, it presupposes individuals with common goals. Secondly, it assumes that these individuals are on the same legal level, and no one has a higher level of legal rights if compared to any other individual. Thirdly, it implies individuals who deny unnecessary domination or authoritarianism, and who appeal to equality and pretend fraternity. Finally, it entails individuals who, even if in a good situation, do not forget that they might easily get into the same tragic situation as the person asking for their support.29 Having revised the three traditional theoretical contributions related to the idea of solidarity and the consequent developments, it is of relevance to also point out the challenges connected to solidarity as an idea. As pointed out by Ross, one of the greatest challenges is how solidarity’s collective dimensions could be harmonised with tendencies towards self-interest. He asserts that self-interest is represented by “the middle class, individualism and consumerism, with potentially lethal results for the creation and/or strength of solidarities”.30 Going back to Stjernø’s own understanding of solidarity, Ross states that 23

Ross 2010. Heyd 2007. 25 Wilde 2007. 26 Derpmann 2009. 27 Baurmann 1999. 28 Steinvorth 2017, p. 10. 29 Steinvorth 2017. 30 Ross 2010, p. 34. 24

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On the one hand, when morality is based on self-realisation, universal moral criteria lose their significance ad other people are only important in the context of intimate relationships. On the other hand, in a reflexive and liquid modern society, social identity is ever more associated with being a consumer, eroding recognition that each human being is dependent on others. The result is that welfare arrangements previously based on solidarity are replaced by ones based upon individual purchasing power. Social solidarity becomes one of the collateral casualties of consumerism.31

The present chapter will not develop more on the theoretical challenges of solidarity as an idea, since these discussions are not part of the core of the research itself. Therefore, it will move on to the review of the concept of solidarity at the EU level, focusing on the debate regarding the conceptualisations of solidarity within the EU multi-level system. It will start by considering how the founding fathers of the EU conceived and expressed it, providing a direct link to the traditional approaches as discussed in this section. It will then direct its attention to some models of the concept of solidarity, as provided by some of the most prominent scholars in the field, the description of common elements among their theorisations, and concluding with the challenges that are still linked to the concept of solidarity.

10.2.2 Solidarity in the European Union Solidarity in the European Union is not a recent phenomenon, but it has been present since the founding days of what would have become the EU. Accordingly, already the Schuman Declaration32 (1950) explicitly referred to such a concept, as it did the Preamble to the Treaty establishing the European Coal and Steel Community33 (1951). Both of them mention the concept of “real solidarity”,34 considered as a consequence of factual actions in concomitance with economic welfare.35 Even if the concept of solidarity is thought to be one of the founding values of the EU, it is also one of the most ambivalent ones. It is not fully clear what is the significance of behaving in a way that mirrors solidarity, both in policymaking and in practices.36 The principle has been used in a variety of ways by EU institutions, but they never attempted to define it, thereby leading to a multitude of interpretations. As expressed by Barnard, “the EU institutions appear to apply the elephant test: you know it if you see it”.37 The ambivalence and the confusion deriving from the concept of solidarity could be attributed to the fact that the EU founding fathers appealed to real solidarity, 31

Ross 2010, p. 34. European Union 1950. 33 Treaty Establishing the European Coal and Steel Community, signed 18 April 1951, entered into force 23 July 1952, Document 11951K/TXT. 34 Sangiovanni 2013, p. 213. 35 Beutler 2017. 36 Grimmel 2017. 37 Barnard 2010, p. 80. 32

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replacing the individuals, as expressed in the traditional idea of solidarity, with European nations. They supposed that European nations would have chased the shared goals of liberty and peace, along with cooperation on an equal basis. They also presumed that European countries would have aimed at living in non-authoritarian relations. But it was a mistake.38 Why has it not been possible to transfer the traditional idea of solidarity to the EU? According to Knodt and Tews,39 there are two limitations to this shift. Firstly, traditional approaches usually address smaller communities or national contexts. Secondly, they generally take into consideration solidarity among individuals of a group. Transferring the traditional approaches of solidarity to the EU multi-level system, it means constructing solidarity at different levels at the same time, and among individuals and member states. Reflecting upon the adaptation of solidarity to the EU, Sangiovanni defends a normative model. Accordingly, he stands for what he defines as an internationalist position, based on cosmopolitanism and the belief that people deserve equal dignity and recognition. The factor differentiating this position is that the content of fundamental principles of social justice varies with the type and extent of social interaction involved. […] Internationalism has a multinomial structure: different principles of social justice apply to different types of social and political institutions, depending on the kind of social interaction that the institutions instantiate.40

He chooses to adopt this perspective because internationalism does not treat the EU as an instrument for realising a more widespread ideal. At the same time, it does not consider the EU as an agreement fundamentally constructed on voluntary bases, in which solidarity and social justice would not have any space. Instead, internationalist positions take the history and the institutional structure of the EU as a serious matter, recognising the extensive effects of its primary and secondary law.41 According to Sangiovanni, in developing an internationalist account of the EU, three sets of principles are needed, one for each aspect of cooperation. He identifies as the first set of principles, one governing the collaborative production of goods within member states, while the other two sets govern the collaborative production of goods at the EU level. The first set is recognised as national solidarity, relating it to the principle of solidarity among citizens and residents of the state. As far as the EU level is concerned, principles of solidarity within this dimension will be less demanding due to the more restrictive character of goods provided. Therefore, the second set of principles is identified as member state solidarity, and it expresses a conception of states and their relations. The last set is expressed as transnational solidarity, a dimension also including the relations among EU citizens.42 With the same aim of differentiating the concept of solidarity within the EU multi-level system, Knodt and Tews contribute with their analysis based on the horizontal and the vertical dimensions of the system. Combining these two dimensions, 38

Steinvorth 2017. Knodt and Tews 2017. 40 Sangiovanni 2013, p. 220. 41 Sangiovanni 2013. 42 Sangiovanni 2013. 39

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they identify four types of solidarity, namely transnational solidarity, supranational solidarity, intergovernmental solidarity, and international solidarity.43 Transnational solidarity is placed within the horizontal dimension and is based on the relations between individual actors, who come together to get to the same goal upholding their interests. At the EU level, this is equated to the organisation across national borders when dealing with EU policy. The same relations among individuals are represented into the vertical dimension, with the name of supranational solidarity. It refers to solidarity based “on the sense of belonging as European citizens to a political community with specific rights and duties”.44 Since supranational solidarity is constructed upon a vertical dimension, it implies that it is not solely centralised at the European level, but it also integrated national and subnational levels. Intergovernmental solidarity, also labelled as member state solidarity, is placed within the vertical dimension and focuses on member states as collective actors. Finally, within the horizontal dimension, international solidarity includes collective actors who act beyond European borders and into the international sphere. Therefore, “there is not one form of solidarity within the EU but several”.45 Contributions to the debate on the concept of solidarity within the EU, as has been explored until this point, often place solidarity on different converging dimensions. The same line of thought has been applied by Agustín and Jørgensen who identify three types of solidarity: autonomous, civic, and institutional. Based on forms of horizontal participation, autonomous solidarity supposes relations that are produced in self-organised environments. Civic solidarity is achieved by civic society that does not belong to the state, including a great number of manifestations and actors. Finally, institutional solidarity formalises solidarity at different levels, connecting the civic society sphere with the policymaking one.46 Another interesting perspective is provided by Ross, who proposes the visualisation of solidarity as a “virtuous circle of reinforcement”47 composed of creation, expression, and sustainability. As far as the creation element is concerned, the history of the EU shows that solidarity is not an abstraction. Relevant factors in this realisation include identity, shared values and beliefs. Positive rights and responsibilities, and level of security and anxiety. [But] Bringing together these various associative factors (which individually will have different intensities) to provide a holistic concept of European solidarity implies a need to embrace a series of universal/ particular relationships that cannot be turned into a simple binary model.48

The second factor of this circle, namely the expression of solidarity, highlights the crucial role that EU legal framework has. Precisely because of its existence, the concept of solidarity can operate and develop. Lastly, sustainability links the other 43

Knodt and Tews 2017. Knodt and Tews 2017, p. 51. 45 Knodt and Tews 2017, p. 52. 46 Agustín and Jørgensen 2019. 47 Ross 2010, p. 35. 48 Ross 2010, p. 36. 44

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two dimensions, recognising the emotional component of traditional conceptualisations of solidarity and, as a consequence, the obligation to describe the concept as a continuous evolution, rather than as an abstraction. Considered in such a way, solidarity acquires an evolutionary character, implying its transformative potential.49 A point of convergence among all these models of solidarity is the acknowledgement that a clear, coherent, and comprehensive theorisation of the concept of solidarity in the EU context does not exist, and that there is a gap in the field. As expressed by Ross, the particularities and novelties of the EU’s legal, political and social shape provide a context in which to interrogate and, possibly, renew solidarity. This is not to assume or apply some ‘essentialist’ approach to solidarity as a concept […] but to suggest that there is illumination to be found regarding both the scope of solidarity and the constitutional contours of the EU by postulating that there might be some dynamic, mutual relationship between them.50

Therefore, another element must be included in the description of solidarity: the legal framework of the EU. Accordingly, after having pointed out to the main positions in the traditional discussion of solidarity as an idea, and having described the multiple theories and models illustrating the concept of solidarity within the EU context, it is essential to look at the understanding of solidarity as a legal concept.

10.2.3 Solidarity in the Legal Framework of the European Union In more recent times, the discussion regarding the conceptualisation(s) of solidarity within the EU moved to the field of law, with scholars striving to define solidarity as a legal concept. In effect, solidarity is not a contentious issue only in the fields of philosophy, sociology, and political sciences, but it is also a matter of law.51 As has been noted in previous (sub)sections, solidarity is present in EU legislation since the establishment of the Coal and Steel Community, and it has been widely used in EU primary and secondary legislation. The principle of solidarity has been strengthened even more with the Lisbon Treaty,52 that names solidarity in its Preamble and associates the principle to specific policy areas in more than twenty instances.53 Moreover, “one of the most articulated concepts of solidarity found in public international law”54 is included in the Charter of Fundamental Rights of the European

49

Ross 2010, p. 40. Ross 2010, p. 28. 51 Küçük 2016. 52 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, signed at Lisbon, 13 December 2007, OJ C 306/01. 53 Knodt and Tews 2017. 54 Beutler 2017, p. 30. 50

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Union,55 in which solidarity is presented as a basis of the EU, in line with human dignity and fundamental rights. According to Bast,56 the fact that solidarity has such a prominent role in the political and legal discourse is a hint of the continuous process of federalisation of the EU. These multiple references to solidarity leave lawyers as well as scholars with controversial opinions, and lead to some crucial questions: “which overall expectations, moral obligations, political assumptions, and normative force can be attributed to what the Union’s primary [and secondary] law calls “solidarity”?”57 In general terms, solidarity interpreted as a legal principle is distinguished into two components: a negative and a positive one.58 On the one hand, negative solidarity is understood as a reaction to particular dangers and events. On the other hand, positive solidarity is a consequence of negative solidarity, in the following creation of joint rights and obligations. However, focusing on the multitude of legal provisions and caselaw of the EU, it becomes clear that various types, or aspects, of European solidarity exist, and that they cooperate in the legal space of the EU.59 Accordingly, Dagilyt˙e distinguishes two conceptualisations of solidarity in EU law: interpersonal and intergovernmental. As far as interpersonal solidarity is concerned, the author links it to the idea of organic solidarity as presented by Durkheim. In effect, it is expressed between people, and in the case of the EU, among European citizens. Referring specifically to EU law, she finds four different ways in which the concept is explicated: as solidarity between generations, as workers’ solidarity, as political solidarity, and as financial solidarity.60 All other provisions of EU law are conveyed by solidarity among member states, namely intergovernmental solidarity. Reflecting upon this form of solidarity, Bast hypothesises that “while the legal principle of solidarity in EU law concerns the interstate relationships between the Members, at its root it is part of a dynamic that deepens supranational integration, rather than intergovernmental cooperation”.61 Basing her analysis on this differentiation of the concept of solidarity in EU law, Dagilyt˙e gets to the conclusion that, despite the inhomogeneous usage of the notion in EU primary and secondary legislation, solidarity is a “foundational value upon which the Union is built”,62 since it has a central role in European integration. Apart from being a value on which the EU legal order if founded, solidarity also qualifies as a constitutional paradigm, since “it frames, contextualized with citizenship and loyalty, duties of membership, and it displays, contextualized with human rights, universal tendencies”.63 55

Charter of Fundamental Rights of the European Union [2000], adopted 7 December 2000, entered into force 1 December 2009, OJ C 326/02. 56 Bast 2018. 57 Kotzur 2017. 58 Wellens 2010. 59 Dagilyt˙ e 2018. 60 Dagilyt˙ e 2018. 61 Bast 2018, p. 290. 62 Dagilyt˙ e 2018. 63 Kotzur 2017, p. 43.

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Policymaking in the EU is generally understood as a complex system, therefore difficult to understand. Thus, in order to better grasp the meaning assigned to solidarity within the EU multi-level system, it is thought to be fundamental to start from one policy area in which solidarity is considered to be a key principle, namely immigration and asylum. Thus, the next section will clearly exemplify the academic discussion evolving around the principle of solidarity in EU immigration and asylum law.

10.2.4 Solidarity in EU Asylum and Immigration Law Solidarity has always been a central principle in immigration law. Accordingly, it is scholarly affirmed that international refugee law, as expressed in the Geneva Refugee Convention,64 can be framed as an expression of global solidarity.65 Taking specifically into consideration EU migration legislation, solidarity is considered to be an important pillar covering asylum, immigration, and border controls, explicitly referred to in various treaty articles. Apart from EU primary legislation, solidarity has been included in numerous EU key documents related to the aforementioned legal area, such as the Tampere Council Conclusions66 (1999), the Hague Programme67 (2005), the European Pact on Immigration and Asylum68 (2008), the Stockholm Programme69 (2009) and so on. Two EU provisions specifically link migration policy to the principle of solidarity, namely Article 67(2) and Article 80 of the Treaty on the Functioning of the European Union70 (TFEU). As far as Article 67(2) is concerned, it states that the EU shall develop a common policy in this area, with a notably intensive form of integration and founded on three implications: the removal of internal border controls for persons, thus ensuring the freedom of movement within the EU, the principle of fairness in respect of third-country nationals as well as solidarity among Member States.71 Already from these first provisions, the concept of solidarity gets into an unequivocal direction: “it is framed in a way of protecting the state and requires cooperation not between the state and the individual but between the state and the European Union”.72 64

UN General Assembly (1951) Convention Relating to the Status of Refugees, adopted 28 July 1951, 189 UNTS 137; UN General Assembly (1967) Protocol Relating to the Status of Refugees, adopted 31 January 1967, 606 UNTS 267. 65 Bast 2018. 66 European Parliament 1999. 67 Council of the European Union (2005) The Hague Programme: Strengthening Freedom, Security and Justice in the European Union 2005, OJ C 53/1. 68 Council of the European Union 2008. 69 European Council (2009) The Stockholm Programme - An Open and Secure Europe Serving and Protecting the Citizens, OJ C 115/1. 70 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47. 71 Bast 2018. 72 Mitsilegas 2014, p. 187.

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The second provision introducing the concept of solidarity into EU migration policy is Article 80 TFEU, considered by Goldner Lang73 as its most explicit formulation. Correspondingly, the Article maintains solidarity as being a governing principle, expanding the scope of EU competences by legitimising EU institutions to “adopt financial equalization schemes or other mechanisms to distribute the burdens equitably in each of the sub-fields of migration law”.74 Moreover, this extension of the principle of solidarity throughout all the policies on border checks, asylum and immigration emphasises the purpose of applying this principle not only in emergency situations, but also in day-to-day policymaking.75 Even if solidarity may be accepted as a key principle of EU asylum and immigration law, a clear definition of the concept is not present in neither of the two articles mentioned, leaving room for multiple points of view and disparate interpretations of its meaning.76 In order to determine the meaning of solidarity in the context of EU asylum and immigration law, four key driving forces have been identified.77 The first facet to be determined is loyalty, that pushes Member States to remain loyal to their EU obligations towards migrants, refugees and asylum seekers through respect of EU law. The second facet is associated with fairness, equity, or justice. The definition of solidarity contained in the concept of fairness is based on the premise that the ‘burdens’ experienced by one Member State should be shared by other Member States. This would practically mean assisting Member States exposed to higher migratory and asylum pressures due to geographical reasons. The third facet is trust, as expressed between Member States who are part of a union and have agreed to mutual rights and obligations as specified in treaties provisions. In effect, an area of freedom, security and justice with no internal borders presumes a high degree of inter-state mutual trust. However, Member States’ unwillingness to apply some of the existing mechanisms and to explore new ones to enhance mutual trust and fairness, through burden-sharing and different joint activities such as joint processing, is the result of a lack of confidence and fear of the negative impact of a mass influx of economic migrants, asylum seekers and refugees. As a consequence of a low level of trust, solidarity measures are scarcer, both in terms of their quantity and variety, than had there been more solidarity among Member States.78

Finally, the fourth facet is necessity. In this sense, solidarity has the role of acting as a joint insurance policy mechanism that boosts EU stability as a whole and of each Member State. Thus, solidarity is clearly linked to Member States self-interest. Another perspective on the multiple dimensions of the concept of solidarity within this context is defended by Karageorgiou, affirming that two dimensions of the concept are present: the interstate and the state-refugee dimensions. The first one is related to the share of responsibility between Member States, and it is demonstrated 73

Goldner Lang 2013. Bast 2018, p. 293. 75 Goldner Lang 2013. 76 Goldner Lang 2018. 77 Goldner Lang 2018. 78 Goldner Lang 2018, p. 152. 74

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through forms of assistance towards other Member States in order for the latter to manage the entry and presence of refugees and migrants in the European territory. Therefore, this dimension takes the form of burden sharing, cooperation and sharing of responsibility among Member States. The second dimension is related to the protection granted to individuals under certain circumstances defined by international and European law. This can be interpreted as a unilateral action from the Member States to individuals in need of protection. However, it is maintained that these two dimensions are not reflected in the application of EU asylum and immigration law.79 This brief literature review regarding solidarity in EU asylum and migration law has highlighted that in this area of EU law there is nearly no agreement on the exact meaning, scope, and application of the concept. As summarised by Bast referring to the area of migration, asylum and border controls, The principle of solidarity in the form of solidarity between States is to expressly guide the EU’s migration policies. The addressee of this legal principle is first and foremost the Union legislature, which must transform it into operational policy. This concerns in particular the sharing of the administrative and financial burdens that accompany the creation of European policies on migration control. The Union has the duty and the powers to establish the necessary redistribution mechanisms to correct and compensate for the unequal costs placed on the individual Member States […].80

Therefore, the present chapter proposes a quantitative corpus linguistic analysis of EU immigration and asylum law, as a way to interpret how solidarity is framed within this specific legal context. The following sections will present the methodological approach and its theoretical implications, the analysis and the results.

10.3 Corpus Linguistics: A Quantitative Method in Legal Linguistics In the field of political sciences, many scholars have proposed Wittgenstein’s approach in order to illustrate the relationship between the linguistic and practical dimensions of language.81 In effect, it is affirmed that the meaning of concepts and rules is strictly linked to how they are used in language. Furthermore, it is stated that a meaning does not exist without a practice illustrating the empirical significance of following a certain rule or applying a determinate concept. According to Wittgenstein, “meaning can never be the result of a private, merely reflective mental experience but has to be learnt and clarified by learning the use of concepts and rules, i.e., how they are practised in concrete cases”.82 However, the same argument could be turned upside-down: it is possible to recognise certain practises only because these are expressed in linguistic terms. 79

Karageorgiou 2016 and Mitsilegas 2014. Bast 2018, pp. 293–294. 81 Grimmel 2017. 82 Grimmel 2017, p. 166. 80

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Relying on the combination of language and practice in order to define a concept, the analysis presented in this chapter will only take into consideration the linguistic dimension. Therefore, the following subsections will outline the link between language and law, by introducing the emerging field of legal language or legal discourse. The methodological approach will be illustrated, building on the significance of the application of quantitative methods to descriptive corpus linguistic analysis in the context of legal linguistics.

10.3.1 Law and Language It is widely recognised that law does not exist without language. Accordingly, legal rules and regulations as well as legal concepts are coded in language and legal processes are approachable only through language.83 As expressed by Gibbons, “Law is language. It is not solely language, since it is a social institution manifested also in non-linguist ways, but it is a profoundly linguistic institution. Laws are coded by language, and the processes of the law are mediated through language.”84 The convergence of law and language has recently been recognised as a subfield of Applied Linguistics (AL), generating its own academic organisations and journals in the last twenty-five years. In the early 1990s, literature in this field began with important general collections of articles on language and law, spreading in the following years in the active analysis of what has then been defined as legal language.85 Referring specifically to the intent of establishing ways in which methods and approaches from AL may be used to tackle challenges and problems in the field of law involving language and communication, the subfield of Legal Linguistics (LL) was born. Therefore, LL may be thought as a kind of AL, meaning that the starting point is the actual problem from the field of law, that could be formulated as a problem of language and communication.86 This approach to LL is systematically defined as the following: Legal linguistics studies law with linguistic methods and the outcome of the studies can help legal scientists and legal practitioners do and understand their work better through an increased understanding of how language works in general and in legal domains in particular.87

A different approach to the field is provided by Galdia, who proposes a conception of legal linguistics based on language use. His definition always implies connections 83

Go´zd´z-Roszkowski 2012. Gibbons 1999, p. 156. 85 Shuy 2015. 86 Engberg 2013. 87 Salmi-Tolonen 2013, p. 275. 84

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between particular legal provisions or legal notions to their context of use, since meaning cannot be simply interpreted from the exclusive analysis of legal provisions. Accordingly, “this approach has the advantage to be broad enough to capture not only the legal language but also the law as a social phenomenon”.88 More focused on the implications of language, Mattila defines legal linguistics as a discipline which analyses the development, characteristics, and usage of legal language. Thus, this discipline may concern vocabulary, syntax, or semantics of the language of the law.89 The emergence of this new interdisciplinary field of legal linguistics covers a range of different areas such as legal terminology and lexicography, legal translation and interpreting, courtroom discourse, linguistic human rights, language policy and planning.90 It is also fundamental to exemplify the reasons behind the foundation of a new discipline in order to study the language of the law. In effect, it has peculiar characteristics that distinguish it from other linguistic representations. According to Gibbons, the language of the law is marked by three characteristics: it is highly specialised, it is predominantly written, and it is associated with the deployment of power.91 Therefore, the language of the law is marked by large-scale technicality, involving terms that are not part of everyday language, but most importantly using everyday words in a specialised manner.92 As described by Mellinkoff, legal language is characterised by the “frequent use of common words with uncommon meaning”.93 Another significant contribution to the definition of the language of the law is given by Trosborg, who refers to it as “realized specifically in legal documents, i.e. texts covered by the scope of statute law and common law, namely (i) legislation, and (ii) simple contracts and deeds, respectively”.94 Therefore, the designation ‘legal language’ refers to the multitude of systems of genres related to different professional activities and in combination with large primary genres, namely legislation and judgements. The present subsection reflected on the extremely strong links existing between the two disciplines of language and law. Based on these theoretical and analytical assumptions, the following section will present the specific methodological approach taken in order to analyse the language of the law as expressed in EU asylum and immigration law. Accordingly, it will illustrate the relevance of quantitative methods in legal linguistics, with a specific focus on quantitative corpus linguistic analysis.

88

Galdia 2017, p. 421. Mattila 2013. 90 Go´ zd´z-Roszkowski 2012. 91 Gibbons 1999. 92 Gibbons 1999. 93 Mellinkoff 2004, pp. 11–12. 94 Trosborg 1995, p. 32. 89

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10.3.2 Quantitative Corpus Analysis in Legal Linguistics The employment of quantitative methods in LL comes from the acknowledgement that the meaning of concepts and rules is strongly related to their usage in language.95 Correspondingly, in the field of law, a legal concept does not exist without a corresponding legal term. Therefore, “[t]he linguistic expression of a concept is the term, which means that both are linked like two sides of a coin”.96 However, especially in the aforementioned field, the strong interest for terms has been cultivated with the hope that terms would reveal unambiguous meanings, independent form their contexts and this has acquired a central role in legal linguistic research.97 With this same dream of objectivity, some legal practitioners have adopted specific methods to interpret terms and their meanings, namely Corpus Linguistics (CL). Especially during the last decades, a proliferation of empirical studies on virtually all aspects of language has brought CL to revolutionise how language is understood and explored today. This is particularly true for the disciplinary field of law, where, as has already been outlined before, language is a key element for its construction and interpretation.98 CL can be defined as “[t]he set of studies into the form and/or function of language which incorporate the use of computerized corpora in their analysis”,99 or as “an approach to the study of language that uses computer assisted methods to detect multi words units, word sequences, and phrases”.100 Accordingly, CL methods are mainly employed to establish how often words are used, in which contexts they appear and, in cases where words have multiple connotations, to identify what other words tend to occur in their proximity. Even though CL has a lot of potential, the sole information that a corpus can provide is on frequencies. Then, it is the researcher’s task to interpret these frequencies in meaningful or functional ways.101 A corpus is described as a “category organized around a prototype”102 or as “a body of naturally occurring language”,103 distinguishing it from word lists, dictionaries, or databases. In the area of law, empirical materials can be composed of texts of any kind, such as judgements of international courts, legislative proposals, or statutes.104 Through the analysis of a corpus, questions regarding the distribution of linguistic items may be answered. For this reason, CL is also described as a distributional

95

Grimmel 2017. Galdia 2017, p. 150. 97 Galdia 2017. 98 Go´ zd´z-Roszkowski 2021. 99 Partington et al 2013, p. 5. 100 Šadl and Olsen 2017, p. 335. 101 Gries 2016. 102 Gries and Newman 2014, p. 258. 103 McEnery et al 2005, p. 4. 104 Šadl and Olsen 2017. 96

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discipline. With CL, three main questions can be asked, incorporating the set of tools available for this type of analysis.105 (1) How often and where does something occur in a corpus? (2) How often do linguistic expressions occur in close proximity to other linguistic expressions? (3) How are linguistic elements used in their actual contexts? The most basic CL tool are frequency lists. They illustrate how frequent each word appears in a corpus or in a part of it. However, with frequency lists, it is important to acknowledge that they decontextualize the usage of words. In effect, it is only possible to observe how often words are present in the corpus, but not in which part of the file they are found, nor in which context(s). The second tool are collocations, which take into consideration a specific linguistic element (usually a word) and gives some information of where such word is used within the corpus. It must be made clear that the information about the positioning of the word in the corpus does not use the location in the corpus as a reference, rather it makes a list of which words are most frequently found in the proximity of the chosen word. Finally, the last tool is KeyWordInContext (KWIC) concordance. It enables the researcher to have a display of the word of interest in its immediate context.106 As far as LL is concerned, CL is mainly employed for legal interpretations, specifically focusing on the ordinary meaning of terms. Therefore, the introduction of CL in the field of law “presupposes a central concern with how the linguistic and legal perspectives can be interconnected to shed more light on legal discourse, while keeping a clear focus on the language perspective of the law and language interplay”.107 In effect, CL tools are coherently assumed to bring a more comprehensive understanding of the development of the law by focusing on different usages of words, word combinations and phraseology.108 Thus, generally, language analysis is considered to be in multiple ways the most legitimate counterpart of doctrinal legal analysis and its significance is theoretically recognised by legal scholars, who claim that the meaning of legal concepts can only be grasped with the examination of the usages of a concept or of a word in larger language structures.109 Especially considering the ambiguity stemming from the concept of solidarity, an empirical linguistic analysis of the term in EU law may lead to a more definite understanding of its usage linguistically, resulting in a more cohesive definition of the concept in the context of broader theoretical approaches.

105

Gries and Newman 2014. Gries 2016. 107 Go´ zd´z-Roszkowski 2021, p. 2. 108 Šadl and Olsen 2017. 109 Šadl and Olsen 2017. 106

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10.4 Solidarity in EU Asylum and Immigration Law Throughout this chapter, it has been made clear that solidarity has not been used and it is not used in one particular way, rather it is a multifaceted concept to which different meanings are attributed. As has been explained, the ambiguity of this concept is related to the traditional approaches to the idea of solidarity, as well as their applications to the EU multi-level system. This has become an issue also in the field of law, since solidarity has been used both in primary and secondary legislation, without providing a comprehensive definition. Since solidarity has always been a central concept in EU asylum and immigration law, the aim of the analysis is to understand its usages within this policy area. The choice of quantitative CL as a methodological approach to the analysis stands precisely in the acknowledgement that the concept of solidarity has been extensively employed within this policy area. Therefore, analysing its frequency, collocations, dispersion, concordances, and cooccurrences within a corpus of legal texts is thought to be a step forward towards a more empirical understanding of the different meanings assigned to solidarity in the EU asylum and immigration law.

10.4.1 Data—The Corpus Due to the methodological approach employed, the data is constituted by a corpus of documents, comprising primary and secondary legislation of EU asylum and immigration law. The corpus can be characterised as being specific (restricted to a particular variety, register, genre, etc.), raw (files only containing the corpus material), and diachronic (representing how a language/variety changes over time).110 As far as the object of the corpus is concerned, “legal discourse spans a continuum from legislation enacted at different levels […], judicial decisions […], law reports, briefs, various contractual instruments, wills, power of attorney, etc. […]”.111 Therefore, the corpus under analysis has been composed of EU asylum and immigration primary and secondary legislation, action plans and international provisions. The choice of texts to be included in the corpus has been made taking into consideration the document An Introduction to the Common European Asylum System for Courts and Tribunals: A Judicial Analysis,112 EU websites on immigration and asylum policy, and previous literature in the field. Therefore, the corpus resulted in a total of thirty-four documents (see Table 10.1), within a timespan ranging from 1951 (UN Refugee Convention) to 2021 (EU Regulation establishing the European Union Asylum Agency).

110

Gries 2016. Go´zd´z-Roszkowski 2021, p. 5. 112 European Asylum Support Office and International Association of Refugee Law Judges European Chapter 2016. 111

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Table 10.1 Corpus under analysis, composed of EU asylum and immigration primary and secondary legislation, action plans and international provisions Document

Date

1

Refugee Convention and Protocol

1951–1969

2

Treaty of Maastricht

1992

3

Dublin Convention

1997

4

Treaty of Amsterdam

1997

5

Tampere Conclusions

1999

6

Eurodac I

2000

7

Temporary Protection Directive

2001

8

Reception Conditions Directive I

2003

9

Dublin II

2003

10

Family Reunification Directive

2003

11

Long Term Residence Directive I

2003

12

Qualification Directive I

2004

13

Asylum Procedures Directive I

2005

14

Treaty of Lisbon

2007

15

European Pact on Immigration and Asylum

2008

16

Returns Directive

2008

17

EASO Regulation

2010

18

Long Term Residence Directive II

2011

19

Qualification Directive II

2011

20

Charter of Fundamental Rights of the European Union

2012

21

Reception Conditions Directive II

2013

22

Eurodac II

2013

23

Dublin III

2013

24

Asylum Procedures Directive II

2013

25

EU Agenda on Migration

2015

26

Provisional Measures Italy Greece I

2015

27

Provisional Measures Italy Greece II

2015

28

Refugee Facility Turkey

2015

29

Suspension Relocation Austria

2016

30

Reform CEAS

2016

31

CoE Convention

2017

32

New Pact on Migration and Asylum

2020

33

Asylum Migration Integration Fund

2021

34

EUAA

2021

Source The author

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10.4.2 Analysis The present analysis aims at exploring the term solidarity within the corpus, specifically focusing on its frequency, its dispersion, its collocations, and its co-occurrence with other terms, taking into consideration also its possible evolution over time. It is hypothesised that the results of the analysis will push the definition of the term solidarity towards one or more theoretical conceptualisation(s) discussed in previous subsections (i.e., inter-state solidarity and/or state-refugee solidarity), as well as it will outline which could be considered as the main dimension(s) of the concept (i.e., loyalty, fairness, trust, and necessity). It is acknowledged that the present analysis is limited in scope, but it still provides an overview of the way in which the term solidarity is used in EU asylum and immigration primary and secondary legislation. The empirical analysis has required a preliminary analysis of the more general characteristics of the corpus, which will not be explored throughout this chapter. However, for the sake of clarity, some details will be provided. The preliminary analysis took into consideration the whole corpus, since it was essential to observe the presence/ absence of the term solidarity throughout the legal provisions. Once having pointed out to all documents including such term, a subset of the corpus has been extracted. The choice of focusing on a more restricted corpus has been made to better analyse the immediate context of the term within the corpus. The results of the analysis are presented following the quantitative corpus linguistic tools employed for the analysis, namely frequency, dispersion and KWIC.

10.4.3 Frequency The preliminary analysis of the corpus shows that the term solidarity occurs 134 times within 22 documents, therefore in more than half of the whole corpus. The texts containing the term occupy a timespan ranging from July 1992 to December 2021. In order to compare the relevance of the term throughout the overall corpus of documents, the TF-IDF algorithm is employed. The TF-IDF algorithm “shows the relevance of keywords to some specific documents”,113 and is calculated through the multiplication of the Term Frequency—how many times a word occurs in a document—and the Inverse Document Frequency—which assigns a higher weight to less frequent words, and a lower one to most common ones.114 Figure 10.1 plots the results of the aforementioned algorithm. The term is present in both primary and secondary legislation, with a spiking increase after the second phase of the CEAS. It is also very interesting to observe the increasing tendency of the term relevance from the Treaty of Maastricht and the Treaty of Amsterdam—having the same level of TF-IDF—to the Treaty of Lisbon, with which the TF-IDF peaks—as far as primary legislation is concerned. Apart from 113 114

Qaiser and Ali 2018, p. 25. Qaiser and Ali 2018.

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Fig. 10.1 Solidarity term frequency—inverse document frequency plot. Source The author

primary legislation, it is observed that the term acquires more relevance with the European Pact on Immigration and Asylum (2008), representing the highest salience within the corpus—chronologically corresponding to the end of the second phase of the CEAS. From that point on, even though the TF-IDF shifts from higher to lower results, the overall tendency of the relevance of the keyword ‘solidarity’ increases, especially during the crisis period, and the subsequent proposals for revision of the CEAS.

10.4.4 Dispersion Having considered the relevance of the term solidarity—based on the TF-IDF algorithm—throughout the corpus, it is necessary to analyse the dispersion of the word within the documents. Generally speaking, the dispersion shows in which parts of the documents the term is located. It is assumed that the combination of the results of the TF-IDF and of the dispersion provide a more complete and clearer understanding of the presence and relevance of solidarity within the corpus. As has been affirmed in the previous subsection, solidarity occurs 134 times. For this analysis, the dispersion is provided by the relative frequency of the keyword—the number of the occurrences of the term divided by the length of the single document. The results of the lexical dispersion based on a relative token index are plotted in Fig. 10.2.

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Fig. 10.2 Solidarity lexical dispersion plot—relative token index. Source The author

From the dispersion, it is observed that in the majority of cases the term appears in the first quarter of the document, and it is rarely present after the first half. Taking into account primary legislation—therefore, the Treaty of Maastricht, the Treaty of Amsterdam, and the Treaty of Lisbon—the dispersion shows not only the increase in occurrences of the term with the Treaty of Lisbon, but also its more consistent usage throughout the whole document. The same conclusions may be drawn for the rest of the documents too. Accordingly, starting from the European Pact on Immigration and Asylum (2008), the consistency of the term occurrences increased, reaching the highest level of consistency with the New Pact on Immigration and Asylum (2020). Therefore, combining the observations from the TF-IDF and the lexical dispersion plots, the conclusion that the term solidarity acquired more relevance after the second phase of the CEAS may be drawn. Finally, an interesting exception might be observed in the cases of both Decisions providing provisional measures for the benefit of Italy and Greece (2015). Even though the relevance of the term solidarity seems quite high from the TF-IDF plot, the same results are not mirrored in the lexical dispersion plot. As it appears from the lexical dispersion plot, the term solidarity mainly occurs in the first quarter of the documents, and it is not consistently employed throughout the documents. Thus,

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in this specific case, the fact that the keyword has a relatively high salience in terms of its frequency does not result in the consistent distribution of the term within the documents.

10.4.5 Key Word In Context (KWIC) The KWIC tool is considered to be as the most useful one for the present analysis, since it allows to explore the context of the selected term. During the preliminary analysis, the KWIC tool printed out all solidarity occurrences, in a span of words going until seven before and after the keyword. In order to better grasp the linguistic contextualisation of solidarity, all the entries have been extracted, completed with the missing parts of the sentences, and uploaded as the subset of the corpus. The choice of reducing the corpus stems from the intention to better consider the words cooccurring with solidarity. Relevant for the present chapter, it results that solidarity appears mostly with words such as member states, protection, responsibility, fair, principle. The words third-country nationals, or refugees, or asylum seekers appear rarely in reference to solidarity (Fig. 10.3).

10.4.6 Results Combining the multiple observations from the tools employed for the quantitative corpus analysis with a qualitative content analysis of the subset of the corpus used for the KWIC tool, the results are described in relation to the actors and to the dimensions of the concept of solidarity. Firstly, as has been exemplified with the employment of the KWIC tool, solidarity mostly appears in relation to terms such as member states, and hardly ever to third-country nationals/refugees/asylum seekers. Therefore, it is thought that the most suitable definition of solidarity in EU immigration and asylum law is as inter-state solidarity, that is solidarity among the member states of the EU.115 Moreover, from the analysis, it emerges that the state-refugee dimension of solidarity is nearly inexistent. Secondly, from the same results of the KWIC tool, solidarity is strongly associated with the concepts of responsibility and fairness. These could be considered as the main facet of solidarity as expressed in EU immigration and asylum law. Considering these two concepts and their known context allows to match them with the driving force of fairness, that is burden-sharing among member states.116 Therefore, looking both at the actors and at the dimensions of the term, it is clear that solidarity is strongly associated with the conceptualisation of inter-state solidarity, and that it can

115 116

Karageorgiou 2016. Goldner Lang 2018.

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Fig. 10.3 Solidarity WordCloud. Source The author

be described as a principle based on the dimension of fairness, responsibility, and burden-sharing.

10.5 Conclusions As has been established throughout this chapter, solidarity is an ambiguous term, difficult both to define and to apply. Within the EU multi-level system, solidarity has always been a central principle, especially when dealing with EU immigration and asylum law. Therefore, the aim of this analysis was to grasp how solidarity is framed in EU immigration and asylum primary and secondary legislation. In order to do so, a quantitative corpus linguistic analysis has been chosen as the appropriate method. The results of the quantitative corpus linguistic analysis have been combined with a qualitative content analysis to get to a set of results contributing to the theoretical

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framework established in previous sections of the chapter. Some conclusions can be drawn from the results of the analysis. Foremost, it is essential to acknowledge that these results should be read with certain caveats. The socio-historical context has not been taken into consideration. Of course, a better understanding of the meaning of solidarity in the EU in general, and more specifically, in EU immigration and asylum law would result from the inclusion of a larger context. Moreover, as has been stated throughout the chapter, the analysis took into consideration only EU immigration and asylum law, therefore it is quite limited in its scope. A comparative analysis with other legislative areas would be interesting to investigate whether the term acquires predominantly the same pattern, or if it is used in combination with different dimensions. Furthermore, the reduction of the analysis to EU legislation may not seem comprehensive enough. However, it is thought that for the perspective adopted by this chapter, focusing solely on EU immigration and asylum law provides a more specific view on how solidarity has been framed in EU law in this specific policy area. Therefore, the present analysis represents a microlevel analysis which can be transposed to the meso- and macro-levels. In order to better understand the role of solidarity in EU immigration and asylum policy, the analysis presented in this chapter is considered as preliminary. In effect, enlarging the scope of actors, data and timespan could better exemplify the supposed role of solidarity within this policy area. As has been mentioned in previous subsections, a comparative analysis with other policy areas—starting with a preliminary quantitative corpus linguistic analysis—may provide interesting results as far as the relevance of the concept of solidarity is concerned. Moreover, the application of quantitative corpus linguistic analysis to EU law may contribute to the academic debate concerning the definition of the concept, as well as it may help policymakers in elaborating more transparent legislative texts. Therefore, the present chapter aims at engaging the academic community with this approach, by transposing it to different policy areas, by applying it to larger datasets, and by combining it with a variety of theoretical implications.

References Agustín O G, Jørgensen M B (2019) Solidarity and the ‘Refugee Crisis’ in Europe. Springer International Publishing, Cham Barnard C (2010) Solidarity and the Commission’s ‘Renewed Social Agenda’. In: Ross M, Borgmann-Prebil Y (eds) Promoting Solidarity in the European Union. Oxford University Press, Oxford, pp 73–105 Bast J (2018) Deepening Supranational Integration: Interstate Solidarity in EU Migration Law. In: Biondi A et al (eds) Solidarity in EU Law: Legal Principle in the Making. Edward Elgar Publishing, Cheltenham, pp 289–304 Baurmann M (1999) Solidarity as a Social Norm and as a Constitutional Norm. In: Bayertz K (ed) Solidarity. Springer Netherlands, Dordrecht, pp 243–272

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Beutler B (2017) Solidarity in the EU: A Critique of Solidarity and of the EU. In: Grimmel A, Giang S M (eds) Solidarity in the European Union: A Fundamental Value in Crisis. Springer International Publishing, Cham, pp 21–35 Council of the European Union (2008) European Pact on Immigration and Asylum, Doc 13440/08. https://data.consilium.europa.eu/doc/document/ST-13440-2008-INIT/en/pdf. Accessed 12 September 2022 Dagilyt˙e E (2018) Solidarity: A General Principle of EU Law? Two Variations on the Solidarity Theme. In: Biondi A et al (eds) Solidarity in EU Law: Legal Principle in the Making. Edward Elgar Publishing, Cheltenham, pp 61–90 Derpmann S (2009) Solidarity and Cosmopolitanism. Ethical Theory and Moral Practice 12(3):303– 315. Durkheim E (1893) The Division of Labour in Society. The Free Press, Glencoe Engberg J (2013) Legal Linguistics as a Mutual Arena for Cooperation: Recent Developments in the Field of Applied Linguistics and Law. AILA Review 26(1):24–41 European Asylum Support Office, International Association of Refugee Law Judges European Chapter (2016) An Introduction to the Common European Asylum System for Courts and Tribunals: A Judicial Analysis. Publications Office of the European Union European Parliament (1999) Tampere European Council, 15 and 16 October 1999, Presidency Conclusions https://www.europarl.europa.eu/summits/tam_en.htm. Accessed 12 September 2022 European Union (1950) Schuman Declaration May 1950 https://european-union.europa.eu/princi ples-countries-history/history-eu/1945-59/schuman-declaration-may-1950_en.%20Accessed% 206%20September%202022. Accessed 6 September 2022 Galdia M (2017) Lectures on Legal Linguistics. Peter Lang Verlag, Frankfurt am Main Gibbons J (1999) Language and the Law. Annual Review of Applied Linguistics 19:156–173 https:// doi.org/10.1017/S0267190599190081 Goldner Lang I (2013) Is There Solidarity on Asylum and Migration in the EU? Croatian Yearbook of European Law & Policy 9:1–14 Goldner Lang I (2018) The EU Financial and Migration Crises: Two Crises – Many Facets of EU Solidarity. In: Biondi et al (eds) Solidarity in EU Law: Legal Principle in the Making. Edward Elgar Publishing, Cheltenham, pp 133–160 Go´zd´z-Roszkowski S (2012) Legal Language. The Encyclopedia of Applied Linguistics https://doi. org/10.1002/9781405198431.wbeal0678 Go´zd´z-Roszkowski S (2021) Corpus Linguistics in Legal Discourse, International Journal for the Semiotics of Law 34:1515–1540.https://doi.org/10.1007/s11196-021-09860-8 Gries S T (2016) Quantitative Corpus Linguistics with R: A Practical Introduction. Routledge, New York Gries S T, Newman J (2014) Creating and Using Corpora. In: Podesva R J, Sharma D (eds) Research Methods in Linguistics. Cambridge University Press, Cambridge, pp 257–287 Grimmel A (2017) Solidarity in the European Union: Fundamental Value or “Empty Signifier”. In: Grimmel A, Giang S M (eds) Solidarity in the European Union: A Fundamental Value in Crisis. Springer International Publishing, Cham, pp 161–175 Hayward J E S (1959) Solidarity: The Social History of an Idea in the Nineteenth Century France. International Review of Social History 4(2):261–284. https://doi.org/10.1017/S00208590000 01371 Heyd D (2007) Justice and Solidarity: The Contractarian Case Against Global Justice. Journal of Social Philosophy 38(1):112–130. https://doi.org/10.1111/j.1467-9833.2007.00369.x Karageorgiou E (2016) Solidarity and Sharing in the Common European Asylum System: The Case of Syrian Refugees. European Politics and Society 17(2):196–214. https://doi.org/10.1080/237 45118.2016.1121007 Knodt M, Tews A (2017) European Solidarity and Its Limits: Insights from Current Political Challenges. In: Grimmel A, Giang S M (eds) Solidarity in the European Union: A Fundamental Value in Crisis. Springer International Publishing, Cham, pp 47–64

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Kotzur M (2017) Solidarity as a Legal Concept. In: Grimmel A, Giang S M (eds) Solidarity in the European Union: A Fundamental Value in Crisis. Springer International Publishing, Cham, pp 37–45 Küçük E (2016) Solidarity in EU Law: An Elusive Political Statement or a Legal Principle with Substance? Maastricht Journal of European and Comparative Law 23(6):965–983. https://doi. org/10.1177/1023263X1602300604 Mattila H E S (2013) Comparative Legal Linguistics: Language of Law, Latin and Modern Lingua Francas. Routledge McEnery T, Xiao R, Tono Y (2005) Corpus-Based Language Studies: An Advanced Resource Book. Routledge Mellinkoff D (2004) The Language of the Law. Wipf and Stock Publishers Mitsilegas V (2014) Solidarity and Trust in the Common European Asylum System. Comparative Migration Studies 2:181–202. https://doi.org/10.5117/CMS2014.2.MITS Partington A, Duguid A, Taylor C (2013) Patterns and Meanings in Discourse: Theory and practice in corpus-assisted discourse studies (CADS). John Benjamins Publishing Qaiser S, Ali R (2018) Text Mining: Use of TF-IDF to Examine the Relevance of Words to Documents. International Journal of Computer Applications 181(1):25. https://doi.org/10.5120/ijca20 18917395 Ross M (2010) Solidarity – A New Constitutional Paradigm for the EU? In: Ross M, BorgmannPrebil Y (eds) Promoting Solidarity in the European Union. Oxford University Press, Oxford, pp 23–45 Šadl U, Olsen H P (2017) Can Quantitative Methods Complement Doctrinal Legal Studies? Using Citation Network and Corpus Linguistic Analysis to Understand International Courts. Leiden Journal of International Law 30(02):327–349. https://doi.org/10.1017/S0922156517000085 Salmi-Tolonen T (2013) Legal Linguistics as a Line of Study and an Academic Discipline. In: Tessuto G, Williams C (eds) Language in the Negotiation of Justice: Contexts, Issues and Applications. Routledge, London, pp 275–294 Sangiovanni A (2013) Solidarity in the European Union. Oxford Journal of Legal Studies 33(02):213–241. https://doi.org/10.1093/ojls/gqs033 Shuy R W (2015) Discourse Analysis in the Legal Context. In: Tannen D et al (eds)The Handbook of Discourse Analysis. John Wiley & Sons, pp 822–840 Steinvorth U (2017) Applying the Idea of Solidarity to Europe. In: Grimmel A, Giang S M (eds) Solidarity in the European Union: A Fundamental Value in Crisis. Springer International Publishing, Cham, pp 9–19 Stjernø S (2005) Solidarity in Europe: The History of an Idea. Cambridge University Press, Cambridge Trosborg A (1995) Statutes and Contracts: An Analysis of Legal Speech Acts in the English Language of the Law. Journal of Pragmatics 23(01):31–53. https://doi.org/10.1016/0378-216 6(94)00034-C Wellens K (2010) Revisiting Solidarity as a (Re-)Emerging Constitutional Principle: Some Further Reflections. In: Wolfrum R, Kojima C (eds) Solidarity: A Structural Principle of International Law. Springer, Berlin, pp 3–54 Wilde L (2007) The Concept of Solidarity: Emerging from the Theoretical Shadows? The British Journal of Politics & International Relations 9(01):171–181. https://doi.org/10.1111/j.1467-856x. 2007.00275.x

Laura Mastroianni, PhD Candidate, Department of Political and Social Sciences, Alma Mater Studiorum—University of Bologna, Italy.

Chapter 11

External Solidarity in Integrated Border Management: The Role of EU Migration Agencies Mariana Gkliati and Salvatore Fabio Nicolosi

Contents 11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 The Normative Foundations of Solidarity and Its Understanding in the Areas of Asylum and Migration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.1 The Multifaceted Manifestation of Solidarity in EU Law . . . . . . . . . . . . . . . . . . . 11.2.2 Solidarity in the Common European Asylum System and the Integrated Border Management: An Operational Dimension? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 Solidarity in the External Dimension of EU Migration Management . . . . . . . . . . . . . . . . 11.4 EU Migration Agencies and External Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.1 Solidarity and the External Dimension of Frontex . . . . . . . . . . . . . . . . . . . . . . . . . 11.4.2 EASO and Its Strategy of External Solidarity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract This chapter sheds light on the rather neglected external dimension of European Union (EU) migration agencies, in particular, the European Border and Coast Guard Agency (Frontex) and the EU Agency for Asylum that succeeded to and replaced the European Asylum Support Office (EASO). The chapter describes the normative and practical manifestations of solidarity in the external dimension of EU migration management (external solidarity), examining its embodiment in the work of the two agencies. It offers a thorough reflection on the consequences of this understanding of external solidarity from the perspective of the migrants and concludes that even though solidarity is a normative ideal, this does not absolve the concept of human rights risks. Activities, such as those examined in this chapter, which appear as the operationalisation of genuine solidarity, in fact, exacerbate existing risks for the compliance of the EU with its human rights obligations. Accordingly, the chapter M. Gkliati (B) Department of International and European Law, Radboud University, Montessorilaan 10, 6525 HR Nijmegen, The Netherlands e-mail: [email protected] S. F. Nicolosi Department of International and European Law, Utrecht University, Newtonlaan 201, 3584 BH Utrecht, The Netherlands e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_11

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upholds its normative conclusions by arguing that accountability should be part of the implementation of solidary also in its external dimension. Keywords Solidarity · Frontex · EASO · EUAA · Externalisation · Migration · Third countries · Cooperation

11.1 Introduction Thriving debates have sparked on the conceptualisation of solidarity and its legal understanding in European Union (EU) migration and asylum law and policies.1 It has been abundantly discussed in its internal dimension as a counter-balance to the disproportionate responsibility carried by the Members States at the external borders of the EU and, accordingly, as a ‘principle’ allowing for the establishment of a burden-sharing mechanism within the Common European Asylum System (CEAS).2 However, less attention has been given to the nascent conceptualisation of solidarity in the external dimension of the EU common policies on migration and asylum.3 This chapter refers to the external dimension of solidarity as the increasing process of externalisation aimed at seeking the support and cooperation of third countries in the management of the migratory flows to the EU. In this connection, the chapter elaborates upon the external dimension of solidarity by looking at how the EU constructs the concept in its cooperation with third countries with the aim of managing migration and by reflecting on its consequences also from the perspective of the migrants. To pursue this goal, the chapter will especially reflect on the relatively neglected external dimension of EU migration agencies, namely the European Border and Coast Guard Agency (Frontex) and the European Asylum Support Office (EASO) and its successor, the EU Agency for Asylum (EUAA), as actors of external solidarity. Since 2016, Frontex has conducted border surveillance operations in third countries and cooperates closely with an extensive network of countries of origin and transit in the context of information exchange and capacity building. EASO has been developing its external cooperation strategy that includes coordination and information exchange, capacity and knowledge building, and delivering targeted operational support to migrants, such as assisting with resettlement plans. Such a strategy will be revamped by the new EUAA. In attempt to shed light on the mechanisms and forms of cooperation with third countries by these two EU migration agencies, this chapter flags the human rights concerns as well as the accountability gaps that the external dimension of EU solidarity may raise. These gaps and concerns constitute elements to prove how the concept of solidarity might be euphemistically used to pursue self-serving political 1

See, inter alia, Marin et al. 2020, pp. 1–10; Miglio 2018, pp. 23–50; Tsourdi 2017, pp. 667–686. Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47 (TFEU), Article 80. For references, see especially Maiani 2016, pp. 622–645; Küçük 2016a, pp. 448– 469. 3 Cf, respectively, TFEU, Articles 79 and 78. 2

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interests through externalisation practices that may be detrimental to the safeguard of EU core values, such as the protection of fundamental rights. This chapter, first, introduces the reader to the concept of solidarity, addressing its normative and operational manifestation in EU migration and asylum law (Sect. 11.2). Having built the basis for our analysis, we proceed to exploring the expression of solidarity in the external dimension of EU migration management, via the trends of externalisation and agencification (Sect. 11.3). Following that, we study external solidarity as it is operationalised by Frontex and EASO and EUAA (Sect. 11.4) and we present our conclusions with an eye on accountability for human rights violations (Sect. 11.5).

11.2 The Normative Foundations of Solidarity and Its Understanding in the Areas of Asylum and Migration Having sprung from ethics and moral philosophy,4 solidarity has entered the EU constitutional order via the jurisprudence of the Court of Justice of the EU (CJEU) and has, accordingly, found its way in the EU Treaties. These introductory sections explore the normative foundations of solidarity in EU law and its understanding in the context of migration and asylum.

11.2.1 The Multifaceted Manifestation of Solidarity in EU Law Solidarity has been at the core of the EU project since early on, while it also has a prominent place in the political discourse. The notion, however, lacks a commonly agreed understanding of its meaning, which has caused authors to examine if it is, in fact, an ‘elusive political statement’ rather than a legal principle that can carry the weight of normative consequences, duties and commitments.5 The CJEU first read solidarity in the light of the general principle of loyalty, later translated into ‘the principle of sincere cooperation’ under Article 4(3) of the Treaty on the EU (TEU).6 In Commission v France, the Court held that solidarity is ‘the basis of […] the whole of the Community system’.7 Solidarity was seen as cooperative conduct on the part of a State that could even go against national interests. The Court initially discovered the principle in Article 3 of the European 4

Derpmann 2009, p. 303; Baldwin 1990, pp. 29–31; Durkheim 1984, pp. 42, 64. Küçük 2016b. 6 Consolidated version of the Treaty on European Union [2012] OJ C 326/13 (TEU). 7 CJEU, Joined Cases C-6/69 and C-11/69, Commission v. France, Judgment, 10 December 1969, ECLI:EU:C:1969:68, para 16; CJEU, Case C-39/72, Commission v. Italy, Judgment, 7 February 1973, ECLI:EU:C:1973:13, para 25; de Witte 2000, p. 153; Goldner Lang 2020. 5

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Coal and Steel Community (ECSC) Treaty, dealing with the common European interest, which, according to the Court, presupposed a duty of solidarity amongst the Member States.8 The Lisbon treaty has given solidarity a prominent place in the EU constitutional order, by referring to solidarity in European societies as a founding value of the EU (Article 2 TEU) and to solidarity amongst Member States (Article 3(3) TEU) as one of the main objectives of the EU, while solidarity amongst peoples is central in the EU’s relations with the broader world (Article 3(5) TEU). According to Article 67(1) of the Treaty on the Functioning of the EU (TFEU), the EU policies on asylum, immigration and external border control shall be based on solidarity among Member States. Article 80 TFEU highlights that the implementation of EU policies on border checks, asylum and immigration is governed by the principle of solidarity and fair sharing of responsibility between the Member States, including solidarity in financial terms. Solidarity is considered essential for maintaining the common area of free movement without internal checks, and the solidarity obligations of the Member States in this area are unconditional. Still, security (Articles 42(7), 222 TFEU) and energy (Articles 122, 194 TFEU) are also areas where solidarity takes a more specific form to address emergencies, such as foreign aggression, terrorism, or energy deficits, but also more broadly in the sense of sustainable energy management. Solidarity commitments are also present in the Common Foreign and Security Policy (CFSP). Article 24(3) TEU, in particular, imposes solidarity obligations on the Member States, urging them to support the Union’s external policy in the spirit of loyalty and mutual solidarity, as well as to comply with the Union’s activities in this region. Still, from a fundamental rights perspective, solidarity is found in the Charter of Fundamental Rights of the EU (Charter) as one of the indivisible and universal values upon which the EU is founded.9 Furthermore, the goal of deepening solidarity amongst the peoples is recalled in the preamble to the TEU. However, these understandings of solidarity towards individuals or peoples lack a normative element and judicial enforceability10 that can adequately mirror their relative importance in the EU legal system. The CJEU has contributed to clarifying the scope of the concept of solidarity, identifying its distinctive features in a fragmented and often selective manner.11 The Court has frequently discussed the concept of solidarity by referring to reciprocity12 and the need to contribute to common interests, as Member States would seek to avoid responsibility under EU law. Thus, the Court’s point of view was directed towards 8

CJEU, Joined Cases C-154, C-205, C-206, C-226 to C-228, C-263 and C-264/78, C-39, C-31, C-83 and C-85/79 SpA Ferriera Valsabbia and others v. Commission of the European Communities, Judgment, 18 March 1980, ECLI:EU:C:1980:81, para 59. 9 Charter of Fundamental Rights of the European Union [2000] adopted 7 December 2000, entered into force 1 December 2009, OJ C 326/391, Preamble para 3. 10 Küçük 2016b, p. 975. 11 Küçük 2016b, p. 981–983. 12 CJEU, Case C-39/72, Commission v. Italy, Judgment, 7 February 1973, ECLI:EU:C:1973:13, para 24.

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achieving a common goal. This, however, does not necessarily require the strong to help the weak in a particular sector.13 The Court also examined the transnational limits of social solidarity, declaring that it is mandatory to show a ‘certain degree of solidarity’ by the host State to economically inactive migrant EU citizens.14 On the whole, while solidarity features prominently in EU legal provisions and the CJEU case law, no concrete definition is provided, allowing for the heuristic use of the term and its operationalisation in a vague landscape of binding normative consequences.

11.2.2 Solidarity in the Common European Asylum System and the Integrated Border Management: An Operational Dimension? Solidarity has been abundantly and critically discussed regarding its role as a counterbalance to the disproportionate responsibility carried by the Member States at the external borders of the EU and, accordingly, as a principle allowing for the establishment of a burden-sharing mechanism with the Common European Asylum System (CEAS).15 Nonetheless, the legal basis in the Treaty is rather vague, as Article 78 TFEU on the CEAS does not mention it, while, as has been mentioned, Article 80 TFEU limits itself to state that all policies in the field of border checks, asylum and migration and their implementation ‘shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.’ Scholars pointed out that, instead of defining the scope of any legal obligations linked with Article 80 TFEU, EU institutions pursued a more operational approach ‘listing different measures that operationalise solidarity’,16 including the relocation of asylum seekers throughout the EU.17 Solidarity and responsibility are also meant to qualify the approach to the reform of the CEAS and, in particular, of the Dublin Regulation, as highlighted by the Joint Declaration on the EU’s legislative priorities for 2018–19.18 Interestingly, in 2011 the European Parliament published a Study on the Implementation of Solidarity, highlighting that, while the concept of solidarity has been left undefined in order not to limit its scope, one of its primary 13

CJEU, Case C-179/84, Bozzetti v. Invernizzi and Ministero del Tesoro, Judgment, 9 July 1985, EU:C:1985:306; CJEU, Case C-203/86, Spain v. Council of the European Communities, Judgment, 20 September 1988, ECLI:EU:C:1988:420. 14 CJEU, Case C-184/99, Rudy Grzelczyk v. Centre public d’aide sociale d’Ottignies-Louvain-laNeuve, Judgment, 20 September 2001, ECLI:EU:C:2001:458, para 44. 15 Karageorgiou 2019, pp. 315–58; Karageorgiou 2016, pp. 1–12; Thym and Tsourdi 2017, pp. 605– 621; Garlick 2016. 16 De Bruycker and Tsourdi 2015, p. 4. 17 In this regard, see Nicolosi 2016. 18 European Commission 2017.

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goals is to foster trust.19 Solidarity and responsibility-sharing are necessary to assure Member States’ loyalty as a minimal condition of trust because, as cases like NS and ME have significantly illustrated, blind trust in correctly implementing legislative instruments may not be sufficient.20 Therefore solidarity constitutes the paradigm under which adequate tools need to be elaborated ‘to assist other Member States to reach the standards set at EU level or even to compensate for their failure to do so’.21 More emphatically, in a recent Opinion, Advocate General Sharpston stressed that ‘solidarity is the lifeblood of the European project’,22 and, as illustrated by the development of the whole integration process, that means accepting and sharing responsibilities and burdens ‘to further the common good’.23 This operational dimension of solidarity is also found in the concept of Integrated Border Management (IBM), first legislatively defined in the 2016 Regulation on the European Border and Coast Guard (EBCG), as Frontex was officially renamed.24 This definition includes border control, returns, prevention and detection of crossborder crime, inter-agency cooperation, and cooperation amongst member states and with third countries. Through coordination and cooperation, IBM’s stated aim is to establish an effective coordinated system of border management of the external borders to ensure the free movement of persons in the EU via a high level of security and at the same time respect for fundamental rights. The 2019 EBCG Regulation has added fundamental rights education and training, as well as research and innovation as the overarching components in the implementation of IBM.25 This definition sees IBM as a shared responsibility between Frontex and the Member States, operationalised through the surveillance and return operation and other activities of the EBCG. More broadly, solidarity is invoked in the context of EU migration policy to express (the need for) support for individual Member States that face particular migratory situations and direct national approaches towards achieving common goals jointly (Articles 67 and 80 TFEU).26 This is also the promise of the 19

European Parliament 2011. See CJEU, Joined Cases C-411/10 and C-493/10, NS and ME, Judgment, 21 December 2011, ECLI:EU:C:2011:865. 21 Vanheule et al. 2011, p. 100. 22 CJEU, Joined cases C-715/17, Case C-718/17, C-719/17, European Commission v. Republic of Poland and Others, Opinion of Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917, para 253. 23 CJEU, Joined cases C-715/17, Case C-718/17, C-719/17, European Commission v. Republic of Poland and Others, Opinion of Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917, para 16. 24 Article 4 of Regulation (EU) 2016/1624 of the European Parliament and of the Council on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC, OJ L 251/01, 16.9.2016 (EBCG Regulation 2016). 25 Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/162, OJ L 295/01, 14.11.2019 (EBCG Regulation 2019), Article 3(2). 26 Küçük 2016b, p. 971. 20

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New EU Pact on Migration and Asylum.27 Building EU Member State solidarity is one of the three fundamental elements around which the EU Pact on Migration and Asylum has been constructed, accompanied by improving third country cooperation and reinforcing the external borders. Dedicated to fair sharing of responsibility and solidarity is the Pact’s second pillar, which stresses the need for intensifying returns and an enhanced role for Frontex.28 Thus, the Pact clearly links solidarity with expulsion and border securitisation. Overall, the Pact puts further emphasis on externalisation and the place of agencies in this evolving field and confirms, by making this explicit, the link between the internal and external dimensions of migration management, because close cooperation with external partners has a direct impact on the effectiveness of policies inside the EU.

11.3 Solidarity in the External Dimension of EU Migration Management The trend towards externalisation has become a distinct feature of the current phase of reform of the CEAS29 and has become inherently intertwined with the trend towards ‘agencification’ of these policy areas.30 It is, therefore, crucial to explore how the understanding of the concept of solidarity which, as discussed above, is essentially operational in the field of migration and asylum, translates to the external dimension. This firstly requires a comment on the increasing process of externalisation of EU migration and asylum policies and considering the role of EU migration agencies as potential actors of solidarity with third countries and migrants in the external dimensions of these policies. The EU has, in fact, chosen to participate in this international effort of addressing migration-related challenges by creating partnerships with third countries and establishing cooperation aimed at preventing onward movement towards its territory and facilitating returns and readmission. Externalisation has been studied to some extent in terms of general EU policy and in terms of macro-political analysis.31 Regarding specific angles, researchers have focused on migration deals (e.g. EU-Turkey Statement)32 and the relationship of individual Member States with third countries (e.g. cooperation between Italy and Libya).33 Surprisingly, the role of EU migration agencies in the externalisation process has been greatly overlooked. Cooperation with third countries has become essential for these agencies as they constitute the operational machinery by which the EU fulfils its role as a global actor 27

European Commission 2020 (Communication on a new Pact on Migration and Asylum). Gkliati 2021. 29 Cantor et al. 2022. 30 Vitiello 2019, pp. 125–152. 31 El Qadim et al. 2020, pp. 1608–1638; Collyer 2016, pp. 606–624. 32 Council of the EU 2016. 33 See Palm 2017; Ott 2008, pp. 515–540; Chamon 2019, pp. 1509–1548. 28

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in the field of border control and migration management. This emerging architecture is predicated on the assumption that the migratory dynamics to the EU can only be appropriately dealt with if countries that constitute transit areas for most migrants arriving in the EU agree to: (i) jointly cooperate to stem migratory flows, (ii) share information regarding these migratory dynamics and (iii) build up their capabilities (with the help of the EU) to be regarded as safe countries from the perspective of migrants. Increasing attention is currently paid to the externalisation of the EU policies, but externalisation itself is not a new phenomenon. Ever since the Treaty of Amsterdam in 1997, the EU and its Member States have been exploring the potential of the participation of countries of origin and transit in EU migration management.34 Today, coupled with securitisation, it is used to respond to a multitude of crises, and is mainly implemented via cooperation agreements aiming to return and readmission and to stemming irregular migration to Europe.35 Much of this cooperation is conducted informally, also on the basis of EU agencies’ activities, and this creates significant accountability challenges.36 The increased importance of the external dimension is illustrated by the EU Council five-year strategy documents for the overall development of the Area of Freedom Security and Justice (AFSJ), in which ‘external action’ has become a separate field of attention.37 Partnership and cooperation with third countries for the purpose of managing migration are included in Article 78(g) TFEU as an area of priority for the CEAS. The ways in which the EU can try to assert itself as a global actor on the ‘international scene’ are plenty. Related practices include strengthening the border control capacity of third countries, interception beyond international waters and into the territory of third states, and cooperation to facilitate returns. This cooperation is motivated by a carrot-andstick approach with EU development funding, visa liberalisation, and accessional negotiations becoming conditional upon enhanced control of borders.38 Such superficial reciprocity and the title of ‘cooperation’ do not, in fact, represent a relationship of equals, and one can question whether the goals pursued are indeed common goals. One may only think of border restrictions imposed on countries that are members of the Economic Community of West African States (ECOWAS), which are diametrically opposed to the ECOWAS vision of a borderless region.39 Moreover, the unequal socio-economic and political elements of the relationship and the interdependence between rich and poor countries need to be considered.40

34

Boswell 2003, p. 632. Cotrinovis 2015, p. 6; Carrera et al. 2016, p. 19. 36 European Parliament 2020. 37 European Parliament 2021. 38 Palm 2016 p. 3; Stoji´ c Mitrovi´c 2020; Cantor et al. 2022. 39 Economic Community of West African States (ECOWAS). 40 Benhabib 2020, pp. 75–100. 35

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With extensive use of financial incentives41 third countries are instrumentalised to realise the EU goals of restricting mobility and added to the EU’s border control mechanisms.42 Cooperation with third countries of origin and transit enables the EU to extend its migration control beyond its borders and even international waters.43 It is in the process of creating a buffer zone44 at what has been characterised as a preborder45 or pre-frontier area.46 On the other hand, the element of cooperation with third countries with the view to promoting mobility, regular migration opportunities and integration in the interest of a ‘Global Approach to Migration and Mobility’ (GAMM)47 is much less developed.48 There have been measures aiming at developing and improving the conditions in the countries of origin, but most measures are focused more on preventing people from leaving and returning people to regions of origin.49 A variety of instruments has been created in the direction of externalisation, including political initiatives under the Common Foreign and Security Policy (CFSP),50 cooperation missions, such as EU NAVFOR MED,51 and an increasing number of cooperation agreements with third countries. The numerous EU mobility and readmission agreements with third countries (e.g., EU-Morocco Mobility Partnership, 2013), bilateral agreements between a member state and a third country (e.g., Denmark-Rwanda Extraterritorial Processing Agreement, 2022), and the sui generis EU-Turkey Statement illustrate the inclusion of third countries in the EU migration management in the form of outsourcing responsibilities. The next step in this direction is enhancing the external dimension of EU agencies and their increased role in the cooperation with countries of origin and transit.

11.4 EU Migration Agencies and External Solidarity EU migration agencies, particularly Frontex and EASO, have developed patterns of cooperation with third countries to fulfil their tasks and roles in prescribing norms and standards and enforcing them.52 More importantly, as these agencies have been 41

El Qadim 2018, pp. 341–363; de Lange et al. 2021. Karageorgiou 2019. 43 Moreno-Lax and Costello 2014, p. 1663. 44 Hurwitz 2009, p. 75. 45 Den Heijer 2012, p. 208; Karageorgiou and Spijkerboer 2019. 46 Borrell 2020. 47 European Commission 2011, pp. 5, 12–25; General Secretariat of the Council 2012, pp. 5–6. 48 García Andrade 2013, pp. 263–265, pp. 279–281. 49 Chou 2009, p. 543. 50 Common Foreign and Security Policy (CFSP). 51 EUNAVOR MED Operation Sophia, About us. https://www.operationsophia.eu/about-us/. Accessed 19 September 2022. 52 Fernández-Rojo 2021. 42

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given essential tasks within IBM, their status has become increasingly relevant in the international context.53 The external dimension of these agencies takes different forms, including the conclusion of a wide array of cooperative arrangements with external partners. This shift to agencification and externalisation understood as two complementary facets of the emerging EU migratory architecture is relaunched by the 2020 New Pact on Migration and Asylum. This has put particular emphasis on cooperation with third countries and reliance on the mandate of the migratory agencies.

11.4.1 Solidarity and the External Dimension of Frontex 11.4.1.1

The Normative Foundations of External Solidarity in Frontex

The establishment of Frontex in 2004 and its development have constituted a marked change in the approach to border management in the EU towards the coordination of operational cooperation among the Member States.54 Established to implement the European IBM, cooperation was at the centre of its mandate as also indicated by the Agency’s original name, ‘European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union’. Solidarity in the area of migration is mainly expressed via financial support to manage sections of the borders that belong to individual Member States and the reinforcement of border controls, and Frontex has a vital role to play. In fact, the Agency was the manifestation of the aim of ‘shared responsibility and solidarity among Member States’55 and its establishment was based on the premise that control of the external borders is a shared responsibility of the Member States.56 Solidarity is directed towards the Member States at the EU’s external borders, and the aim of solidarity as cooperation translates in practice in the financing, organisation and coordination of joint operations surveillance and return operations by Frontex. In joint operations, other Member States participate with personnel and equipment, and since the 2019 amendment of its Regulation, Frontex has a dedicated standing corps of 10.000 border guards and other experts, including (increasingly) the Agency’s own statutory staff operating with executive powers equivalent to those of national border guards and with equipment (e.g., vessels, plans) owned by the Agency. Especially since the latest Regulation amendment, the Agency is passing from managing the operation cooperation of Member States to a more centralised

53

Coman-Kund 2018, pp. 97–118. Rijpma 2012, pp. 84–102. 55 EBCG Regulation 2019, see n. 25 above, preamble. 56 EBCG Regulation 2019, see n. 25 above; Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, OJ L 349/01, 25.11.2004, p. 1. 54

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mechanism for border management, especially in the area of returns and cooperation with third states. At the same time, its independence and autonomy in its external competencies were overall strengthened.57 The work of Frontex, more broadly regarding the coordination of the cooperation amongst member states and the centralisation of the management of operations, as well as its fundamental rights monitoring duties, constitute the EU’s expression of solidarity in view of the common goals of IBM.

11.4.1.2

Operational Aspects of Frontex External Solidarity

Frontex has been involved in this outsourcing of EU migration management since early on. Building cooperation with neighbouring countries and with countries of origin and transit is an integral part of the EU’s IBM and has contributed significantly to the success of Frontex. Its extent becomes apparent in the surveillance operations and the working arrangements (i.e. cooperation agreements) it concludes in and with third states. Frontex has concluded working arrangements with 18 countries: Albania, Armenia, Azerbaijan, Belarus, Bosnia and Herzegovina, Canada, Cape Verde, the Former Yugoslav Republic of Macedonia, Georgia, Kosovo, Moldova, Montenegro, Nigeria, the Russian Federation, Serbia, Turkey, Ukraine, and the United States.58 The cooperation of the Agency with third countries has been noticeably strengthened in the 2016 EBCG Regulation. Since then, the Agency may launch and finance technical assistance projects in third countries and provide other operational and technical assistance relevant to returns.59 More importantly, it may launch surveillance operations in a third (neighbouring) country. In the 2019 amendment of its Regulation, the launch of border control operations was not limited anymore to neighbouring countries, and the Agency can then carry out such an operation anywhere in the world.60 These first third-state border surveillance operations have been launched in Albania and Montenegro, while the Agency is preparing to deploy its standing corps to Senegal.61 In the area of return operations, states of return may provide the means of transport and the return escorts in collecting return operations, while border surveillance activities may be carried out in the territory of a third state under its command. Specific actions, such as the deployment of European Border Control teams with executive

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Gkliati 2021. A list is available on the website of Frontex (n.d.) Other Partners and Projects—Non-EU countries. https://frontex.europa.eu/we-build/other-partners-and-projects/non-eu-countries/. Accessed 5 October 2022. 59 EBCG Regulation 2016, see n. 24 above, Article 54. 60 EBCG Regulation 2019, see n. 25 above, Article 74. 61 Statewatch 2022. 58

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powers, require establishing a status agreement between the EU and the third state, covering the operation’s details.62 Apart from specific operations, the work of the Agency is particularly relevant in relation to capacity building and information sharing, especially with African countries for the purpose of risk analysis, an activity essential for the production of knowledge required for border surveillance.63 The Agency has a role as a ‘normative power Europe’ actor, exporting European norms and standards to third countries, analysing the impact of this transfer only from the perspective of the priorities of EU migration management.64 Since 2010 Frontex has been in regular contact with the African countries that form part of the Africa-Frontex Intelligence Community (AFIC),65 in the context of which in 2017 it launched a capacity-building project for Africa aiming to strengthen the capacity of AFIC countries to work on joint intelligence analysis of crime.66 It is also involved in cooperation based on agreements concluded between a third country and an EU member state. Technically such agreements, in the form of Memoranda of Understanding or Technical Protocols, are concluded between Frontex and the border control authority of the third country.67 The cooperation could be on the level of information exchange, training, research, development, or joint patrols. In particular, the collaboration may take the form of donations of border management technologies and assets, deployment of liaison officers to third countries, and financial means so that states develop their border security systems.68 The aim is that the third countries are assisted so that they can successfully stop the departure of immigrant vessels aiming to reach Europe, intercept migrant vessels or readmit third-country nationals and return them to their respective countries of origin. Information sharing is the core element of this cooperation with third countries,69 and is found as part of working agreements with third countries, in the framework of information sharing communities, such as AFIC and the Western Balkans—Risk Analysis Network (WB-RAN), within the context of technical assistance and capacity building, as well as Frontex liaison officers stationed in third countries (currently in

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EBCG Regulation 2019, see n. 25 above, Article 73(3)(4). Such a model agreement has been drawn by the Commission, establishing a framework for the cooperation of the Agency with third states. See European Commission 2016a. 63 Horii 2016, pp. 242–258. 64 Angola, Benin, Burkina Faso, Cameroon, Cape Verde, Chad, Democratic Republic of Congo, Ivory Coast, Egypt, Eritrea, Gambia, Ghana, Guinea, Kenya, Liberia, Libya, Mali, Mauritania, Morocco, Niger, Nigeria, Senegal, Sierra Leone, Somalia, South Sudan, Sudan and Togo. 65 Frontex 2017. 66 For instance, Operation HERA was based on bilateral agreements that Spain had concluded with Mauritania and Senegal. 67 Papastavridis 2010, pp. 89–90. 68 FRONTEX, Situational awareness and monitoring. https://frontex.europa.eu/we-know/situat ional-awareness-and-monitoring/third-country-analysis/. Accessed 12 September 2022. 69 Marin 2020, pp. 157–180.

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Turkey, Niger, Serbia, Senegal, Albania and a pending deployment in Ukraine).70 Based on the model of the Frontex Risk Analysis Network (FRAN), these activities aim to facilitate information sharing, including classified information and joint risk analyses for the purpose of migration management and return.71 Still, Frontex seems to be the main recipient of this information exchange, while sharing data from the Frontex Risk Analysis Unit (RAU) to the authorities of third countries seems to be a secondary possibility and can happen on a case-by-case basis upon prior authorisation.72

11.4.1.3

Legal Issues of Frontex as a Mechanism of External Solidarity

Such cooperation, often non-conditional upon compliance with human and refugee rights by the third country, has a plethora of inherent sensitivities.73 These pre-border preventive actions are in obvious tension with the right of a person to leave a country, which is protected in Article 2 of the Fourth Protocol to the European Convention on Human Rights (ECHR) and Article 12(2) of the International Covenant on Civil and Political Rights (ICCPR).74 Furthermore, responsibility may result from violations committed against the individuals by the authorities of the third state. The cooperating countries are usually not subject to human rights commitments or have worrying human rights records. Many of these countries operate under different legal standards as they are not bound by the ECHR75 or EU law.76 Moreover, Libya is not bound by the 1951 Refugee Convention, while Turkey still retains a geographic reservation to the Convention, which means that its obligations stemming from the Convention are limited to applicants coming from Europe.77 Serious human rights violations have been progressively documented by international organisations and NGOs, while the ECtHR and the United Nations High Commissioner for Refugees (UNHCR) have warned that it is not safe to send certain persons back to these countries. Libya is one of the most typical examples, being reported arbitrarily detaining people for long periods, inhumane detention conditions, 70

Frontex, Frontex Liaison Officers to Non-EU Countries, https://frontex.europa.eu/we-build/ other-partners-and-projects/liaison-officers-network/; Marin 2020, pp. 167–171. 71 Marin 2020, p. 166. 72 Marin 2020. 73 Gkliati and Kilpatrick 2021. 74 Fundamental Rights Agency 2013, p. 46; Migreurop 2011, p. 131. 75 With the exception of Turkey. 76 CJEU, Case C-311/18, Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems, Judgment, 16 July 2020. ECLI:EU:C:2020:559. 77 See UNHCR, United Nations High Commissioner for Refugees, States Parties to the Status of Refugees and the 1967 Protocol, https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf; the most expected new asylum law in Turkey has not managed to remedy the inconsistency of the geographic restriction.

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beatings, rape, and other forms of ill-treatment towards irregular migrants.78 Amnesty International has been reporting the abuse of ‘tens of thousands’ of migrants at the hand of Libyan authorities and non-state actors, such as tribes and armed groups. It has highlighted the complicity of EU member states in such violations and expressly indicated that the EU has also been assisting Libya through Frontex.79 Besides, observers repeatedly report ill-treatment of migrants in Mauritania.80 Indicatively, the Nouadhibou detention centre in Mauritania has been renamed ‘Guantanamito’ by migrants.81 Finally, most North African states and Turkey have criminalised irregular exit imposing fines and imprisonment to those trying to leave the country without the necessary documents or outside the designated border crossing points.82 Frontex does not provide information as to the fortune of the apprehended migrants and does not consider itself responsible for the treatment of individuals after they are surrendered to the authorities of the third state.83 Moreover, there is no mechanism or policy that would allow monitoring of whether third States use the donated assets and equipment in accordance with human rights law.84 Moreover, the expansive intelligence activities of the Agency, especially regarding the widespread exchange of information with third countries, poses significant risks to the right to privacy and data protection.85 With the 2019 amendment of its Regulation, Frontex comes to the centre of extensive data sharing, including with third countries. It becomes an ‘information hub’,86 where new specialised structures and mechanisms are created and operated by the Agency, including European Travel Information and Authorisation System (ETIAS)87 and a centralised return management platform for processing all information relevant for returns.88 Such information can also be shared with third countries, including countries of origin, from which the returnees were originally fleeing, which can prove detrimental for the safety of people seeking protection and can lead to retaliation measures against the migrants and their families.89 It may also alert the state of persecution of the attempt of the person of interest to flee to the EU, which could stop them from reaching safety.90 Without the necessary human rights safeguards, the Agency’s extensive powers risk being perceived as giving ‘green light

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Human Rights Watch 2019. Amnesty International 2017. 80 Migreurop 2011, p. 14. 81 Amnesty International 2017. 82 Fundamental Rights Agency 2013, pp. 42–43. 83 Amnesty International 2017, p. 11; Human Rights Watch 2009, p. 98. 84 Fundamental Rights Agency 2013, p. 11. 85 EBCG Regulation 2019, see n. 25 above, Articles 46–48. 86 European Data Protection Supervisor 2016, p. 3. 87 Frontex 2021. 88 EBCG Regulation 2019, see n. 25 above, Article 50(1). 89 Fundamental Rights Agency 2016a, para 3.1. 90 Fundamental Rights Agency 2016a, p. 46. 79

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for a blanket sharing with the third country of all information that may be considered relevant for returns’, the EU Fundamental Rights Agency (FRA) has warned.91 Various sources have expressed repetitive criticism on the cooperation of Frontex with third countries and called for safeguards on the choice of countries.92 According to the Frontex Regulation, liaison officers ‘shall only be deployed to third countries in which border management practices respect minimum human rights standards’.93 However, such guarantees are not wholly reassuring. As has been pointed out, no information is provided on the criteria or the mechanisms of evaluation, thus constituting the guarantees unenforceable and in fact meaningless, while the Frontex Consultative Forum has urged for a prior fundamental rights risk assessment and an appropriate complaints mechanism also covering the Agency’s activities in third countries.94 Furthermore, there is no supervisory authority that would monitor the upholding of human rights standards in the cooperation agreements,95 especially since much of this cooperation is done on an informal basis, which does not allow for the appropriate democratic and judicial oversight.96 The working arrangements that Frontex concludes with third countries are not considered as international treaties but rather as soft law,97 administrative acts of the Agency that attempt to escape the democratic and judicial scrutiny of formal international agreements. Moreover, cooperation under the title of ‘technical assistance’ may take place on a fully informal basis, without the need for working arrangements.98 Such informalisation creates challenges for fundamental rights, accountability and the rule of law at large.99 Moreover, the lack of transparency in the work of the Agency is a thorn in the quest for accountability. The working agreements with third countries are published by Frontex, but this is not also the case with respect to other equally important cooperation instruments.100 As far as the redress mechanisms are concerned, the secrecy over Frontex operations and risk analyses does not leave much space for EU nationals to challenge the unlawful acts of the Agency by making use of their

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Fundamental Rights Agency 2018, p. 13. Moreno-Lax 2012; Fundamental Rights Agency 2013, pp. 10, 11, 16; PACE 2013, pp. 4, 5, 14; FRA holds that the EU should reinforce its efforts to strengthen the protection space in the transit countries, which should involve effective asylum systems, prevention of abuse, and access to justice. 93 Article 14, Regulation (EU) No 1168/2011 of the European Parliament and of the Council of 25 October 2011 amending Council Regulation (EC) No 2007/2004 establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member states of the European Union, OJ L 304/01, 22.11.2011. 94 Frontex Consultative Forum on Fundamental Rights 2015 and 2017 95 Statewatch and Migreurop 2012, pp. 12, 13. 96 Such cooperation agreements are still subject to a right of information by the EU Institutions, including the European Parliament. EBCG Regulation 2019, see n. 25 above, Article 73(7). 97 Ott et al. 2013, pp. 32. 98 EBCG Regulation 2019, see n. 25 above, Article 73(6); Marin 2020, p. 172. 99 Santos Vara 2015, pp. 118–136; Rijpma 2017, pp. 571–596. 100 Marin 2020, pp. 163–164. 92

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rights under Article 8(2) of the Charter and Article 12 of Regulation 45/2001.101 This lack of safeguards is even more prominent with respect to third-country nationals outside the EU that do not enjoy the same rights to accessing information.102 The external activities of EU agencies are more generally ‘characterised by secrecy and opacity’,103 which is widely problematic from an accountability point of view.104 Finally, studying issues of responsibility and accountability in the context of joint operations conducted in third countries raises new questions regarding outsourcing responsibilities under refugee and human rights law,105 the extraterritorial jurisdiction of the CJEU or special agreements excluding Frontex personnel from criminal and civil liability in third countries participating in EU operations despite the extraterritorial exercise of executive powers.106

11.4.2 EASO and Its Strategy of External Solidarity 11.4.2.1

EASO External Action Strategy and Its Normative Foundations

In accordance with its founding Regulation,107 EASO ‘is fully involved in the external dimension of the Common European Asylum System’ (CEAS).108 The objectives of the CEAS include the establishment of partnerships and cooperation with third countries for the purpose of managing inflows of people applying for international protection.109 To this aim, at the political level, in 2013, EASO’s Management Board adopted the EASO External Action Strategy, defining the approach and general framework within which the Agency develops its work related to its external dimension.110 Given the changes in the wider EU external relation policy framework and in view of the support requested by third countries,111 in 2019 EASO Management Board revised,

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Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data, OJ L 8/01, 12.1.2001. 102 Gkliati and Kilpatrick 2021. 103 Omiˇ cevi´c 2021. 104 Carrera et al. 2013, pp. 337–358. 105 Gammeltoft-Hansen and Hathaway 2014, p. 235. 106 Coman-Kund 2020. 107 Regulation (EU) No 439/2010 of the European Parliament and of the Council of 19 May 2010 establishing a European Asylum Support Office, [2010] OJ L 132/11, 29.05.2010, Article 2(1). 108 De Bruycker and Tsourdi 2016, pp. 471–538. 109 TFEU, Article 78 (2)(g). 110 EASO 2019a. 111 For references, see especially the contributions in Carrera et al. 2019.

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improved and adapted the strategy in the EASO External Cooperation Strategy.112 It is worth stressing that, as will be discussed in greater detail, this strategy will be most probably subject to further revision due to the recent adoption of the Regulation establishing the EU Agency for Asylum (EUAA) that succeeds EASO as of January 2022.113 The 2020 New Pact on Migration and Asylum, in fact, makes an explicit link between the internal and external dimensions of migration management, as close cooperation with external partners has a direct impact on the effectiveness of policies inside the EU. Accordingly, the new EUAA is called to play a major role to ensure such coordination, as required by the principle of coherence under Article 21(3) TEU.114 To this aim, it is worth stressing that Working arrangements for cooperation on external action have been already concluded with the European Commission’s Directorate-General for Migration and Home Affairs (DG HOME) and with European External Action Service (EEAS).115 From a legal perspective, pursuant to Article 7 of the 2010 EASO Regulation, the Agency plays a coordinating role in the exchange of information and other action taken on issues arising from the implementation of instruments and mechanisms relating to the external dimension of the CEAS, and on resettlement taken by the Member States with a view to meeting the international protection needs of refugees in third countries and showing solidarity with their host countries. In addition, Article 7 of the Regulation in joint combination with Article 49 provides that EASO ‘may cooperate with competent authorities of third countries in technical matters, in particular with a view to promoting and assisting capacity building in the third countries’ own asylum and reception systems and implementing regional protection programmes, and other actions relevant to durable solutions’. In the light of this framework, EASO has been pursuing an External Action Strategy that comprises different forms of active engagement, offering solidarity to third countries in terms of capacity building and to the refugees in terms of resettlement and other humanitarian initiatives. As will be illustrated, the operationalisation of this form of external solidarity requires a complex set-up of arrangements that will be further revised in light of the mandate of the new EUAA. In general, for EASO, and now the EUAA, to be able to engage in a third country, a specific Working arrangement could be established, but the Agency could also work under the general agreements that the EU has with a third country, such as an association agreement, Mobility Partnerships or common agendas on migration and asylum.116 112

EASO 2019b. Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, OJ L 468/01, 30.12.2021. 114 TEU, Article 21(3) establishes that: ‘The Union shall respect the principles and pursue the objectives set out in paras 1 and 2 in the development and implementation of the different areas of the Union’s external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies’. 115 Cf EUAA 2018; EUAA 2021. 116 See EASO 2019b. 113

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The Twofold Operational Aspects of EASO External Solidarity: Technical Cooperation to Capacity Building and Resettlement

EASO has developed its strategy for external solidarity in two main areas that are worth analysing to collect evidence about the practice and contribution of the Agency and its legal implications in view of the recent process of transformation into the EUAA. These areas include delivering capacity building in third countries and cooperation in resettlement. The support to third countries by delivering capacity building activities has prioritised countries that are more broadly involved in the European Neighbourhood Policy (ENP).117 Since its establishment, EASO’s external activities especially focused on Turkey and Western Balkan countries118 through inter alia the EU-funded multicountry programme ‘Regional Support to Protection-sensitive Migration Management in the Western Balkans and Turkey’, in cooperation with international organisations, including the UNHCR and the International Organization for Migration (IOM).119 This form of multi-actor technical cooperation in third countries has contributed to strengthening the mechanisms of early identification, registration and proper referral of irregular migrants and asylum seekers as well as to implementing principles of international and European refugee law, including the respect for the obligation of non-refoulement.120 In addition, this technical cooperation has promoted a coordinated approach at the procedural level to implement a return system in line with the objectives of IBM. While the technical cooperation between EASO and third countries is less structured and formalised than the one undertaken by Frontex, these activities of capacity building in third countries can be considered as an expression of an emerging model of administrative cooperation in the area of asylum and international protection to countries who share the borders with the EU or have become primary partners within the IBM for the management of migratory flows.121 In the area of resettlement, which constitutes an expression of international solidarity to refugees, EASO has offered bilateral and multilateral support to Member States intending to enhance their resettling capacity. Resettlement encompasses ‘the selection and transfer of refugees from a State in which they have sought protection to a third State that has agreed to admit them—as refugees—with permanent residence status.’122 In this connection, the Agency has been working within the framework of the resettlement schemes that have been established under EU asylum 117

For references, see Poli 2016. EASO 2019a, point 12 confirms that ‘EASO External Action in the first years shall mainly focus on the enlargement countries and the Western Balkans as well as the European Neighbourhood partners, the Russian Federation, and countries included in RPPs’. 119 Publications Office of the EU 2019. 120 Fundamental Rights Agency 2016b. 121 EASO 2021, p. 50. 122 UNHCR 2006. 118

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law since 2015.123 Despite its controversial legal aspect, an example is the 2016 EU-Turkey Deal, which established the so-called ‘1:1 scheme’ according to which ‘for every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled to the EU from Turkey directly’.124 EASO has worked in Turkey in the area of resettlement also on the basis of a framework agreement concerning the implementation of an 18-month pilot project established in 2019 to create an EU model to increase operational cooperation between States to facilitate refugees’ resettlement from Turkey.125 While through this pilot project, EASO aimed to maximise the number of EU countries successfully involved in resettlement as well as the actual departures of vulnerable refugees from Turkey to the EU, numbers have been rather limited, with only about 10,640 persons arrived in the EU in the context of resettlement in 2020, 58% fewer than in 2019.126 The new EUAA is expected to play a major role in implementing the practical arrangements within the Proposal for the Union Resettlement Framework that is to be adopted in the light of the New Pact on Migration and Asylum.127 Article 35 of the EUAA Regulation concerning the new Agency’s cooperation with third countries establishes that ‘the Agency may support a Member State in the implementation of resettlement schemes, at the request of that Member State.’ The enhanced role of the Agency in the area of resettlement is of crucial importance, as this will contribute to implementing at the regional level the goals of the Global Compact on Refugees (GCR), calling for an expansion of resettlement and other forms of legal admission.128 However, an issue that deserves careful analysis is whether the political priority of improving the asylum and reception capacity in third countries and embedded in the EASO External Action129 is, in fact, a disguised incentive for the externalisation of asylum responsibilities from the EU to third countries. Should this be the goal of the EASO’s strategy, legal issues arise as the action of the Agency will actually pursue the objective of preventing the arrival of asylum seekers to the EU. Admittedly, this will be problematic and incompatible with the scope of Article 78 TFEU, which

123

Cf General Secretariat of the Council of the EU (2015) Conclusions of the Representatives of the Governments of the Member States meeting within the Council on resettling through multilateral and national schemes 20.000 persons in clear need of international protection, 11130/15, 22.07.2015. For a criticism, see De Boer and Zieck 2020, pp. 54–85. 124 Council of the EU 2016. See Lehner 2019, pp. 176–185. From 1 June 2016, this mechanism was succeeded by the EU-Turkey Readmission Agreement, following the entry into force of the provisions on readmission of third-country nationals of this agreement, cf. Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorisation [2014] OJ L134/3, 7.5.2014. 125 EASO 2018. 126 EASO 2021, p. 245. 127 European Commission 2016b, Article 8 (2)(d). For references, see Savino 2018, pp. 81–104. 128 The Global Compact on Refugees (GCR) was adopted by UN General Assembly (2018) UN General Assembly Resolution of 17 December 2018, UN doc A/RES/73/151. See Nicolosi and Momoh 2022. 129 EASO 2019a, point 4.

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requires the EU to develop a CEAS, thereby assuming the responsibility for this policy area instead of delegating its execution to external partners.

11.4.2.3

The New EU Asylum Agency: Enhancing External Solidarity and Emerging Legal Issues

The external dimension of European solidarity is enhanced in the new Regulation 2021/2303 establishing that the EU Agency for Asylum, whose mandate builds on the functions and practice of EASO, also as regards cooperation with third countries.130 In this connection, Article 35 of the Regulation more clearly refers to activities that the Agency can develop in third countries. Again, the reference is to capacity-building and resettlement. To this aim, Article 36 refers to the deployment of Liaison officers in third countries ‘in which migration and asylum management practices comply with non-derogable human rights standards’.131 These Liaison officers will act as an interface between the Agency and the national authorities responsible for asylum and immigration and other relevant services in order to gather information and facilitate access to legal pathways to the EU, including through resettlement.132 Nonetheless, legal issues may arise regarding the deployment of the EUAA Liaison officers. In fact, as to the selection of third countries where to deploy the Liaison officers, Article 36(2) prioritises third countries which, ‘on the basis of information analysis…, constitute countries of origin or transit regarding asylumrelated migration.’ A systematic reading of the EUAA Regulation arguably reveals a contradiction, because, whether, on the one hand, the Agency must operate in those countries that show a full and effective commitment to ‘comply with nonderogable human rights standards,’ on the other hand, the same provision mentions practical priorities linked with the relevance of third countries in terms of migratory flows. This interpretation is at odds with the fact that many countries that the EU might consider ideal external partners in the area of migration, because of their configuration as countries of origin or transit, in reality, do not offer adequate guarantees of human rights protection. Recent European case law has emphasised that the designation of a country of origin as safe is not necessarily all-encompassing, urging EU Member States’ authorities to conduct an individual risk assessment on a case-by-case approach.133 In addition, there might also be issues related to the unclear identification of the relevant competent authorities in third countries, a circumstance that may frustrate the role of the EUAA Liaisons officers. In this scenario, Libya stands as a clear example, 130

For preliminary comments, see ECRE 2021. Regulation (EU) 2021/2303 of the European Parliament and of the Council of 15 December 2021 on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, OJ L 468/01, 30.12.2021 (EUAA Regulation), Article 36(1). 132 EUAA Regulation, Article 36(3). 133 See, e.g., European Court of Human Rights (ECtHR), DL v Austria, Judgment, 7 December 2017 Application no. 34999/16; or ECtHR, Khlaifia and Others v Italy, Judgment, 15 December 2016, Application no. 16483/12. 131

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but other African countries, such as Tunisia, might be in the same situation when a domestic legal framework governing asylum to conduct refugee status determination is not in place.134 Finally, but more fundamentally, some considerations are necessary as regards the nature of the cooperation arrangements between the Agency and third countries. The EASO Annual Reports have highlighted a practice of cooperation based on different, though always informal, instruments, including written correspondence, letters of intent or working arrangements. Like the vast majority of EU agencies, EASO, and now the EUAA, could not conclude international agreements but their activities constitute a form of administrative or technical cooperation that does not create international legally binding obligations stricto sensu, as also stressed by the CJEU,135 though this form of cooperation is treated by both parties (the Agency and the third party) as a source of binding commitment.136 Such a circumstance does not only cast doubts about the actual nature of this form of cooperation but also contributes to blurring the margins of control over the activities of the Agency, more specifically of the Liaison officers in third countries. As emphasised, ‘the majority of these non-binding arrangements concluded by agencies with third countries and international bodies escape judicial scrutiny for the lack of intent to produce legal effect.’137 Likewise, the European Parliament is not fully equipped to monitor and ensure political oversight of these cooperation practices due to its limited role in EU external action.138 As in the case of Frontex, the lack of clear avenues for accountability is a major lacuna in the EU’s emerging governance of migration and asylum matters, which risks compromising the core value of solidarity, instrumentalised to self-service EU political objectives of externalisation instead of promoting protection-sensitive elements.

11.5 Conclusion Solidarity has been prominently featured in the EU legal order, with a flourishing case law upholding its axiological nature. In the areas of migration of asylum, solidarity has been analysed in its internal dimension essentially to interpret the legal implications of Article 80 TFEU. In an attempt to offer a thorough reflection on the scope of solidarity in EU migration and asylum policies, this chapter has explained the implications of solidarity in the external dimension of the Integrated Border Management, underscoring the risks and human rights concerns hidden in the emerging architecture of the EU migration law and policies.

134

UNHCR 2016. CJEU, Case C-327/91, France v. Commission, Judgment, 9 August 1994, ECLI:EU:C:1994:305. 136 In this regard, see Ott et al. 2013, p. 14. 137 Ott et al. 2013, p. 37. 138 For more references, see Guild and Moreno-Lax 2013, p. 23. 135

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Activities that, owing to the operationalisation of solidarity, such as those examined in this chapter, may result in violations of human rights obligations of the EU. For instance, Frontex, the epitome of EU solidarity in border management, is currently under heavy scrutiny for allegations of human rights violations from multiple angles, including by the UN Special Rapporteur on the human rights of migrants and the European Parliament. Similarly, the recently established EUAA illustrates emerging legal concerns as regards the development of its mandate in cooperation with third countries. Moreover, the fulfilment of the global obligations of the EU via development aid and support in capacity-building over the last decade has been heavily criticised on human rights grounds. Cooperation, which is often non-conditional upon compliance with human and refugee rights by the third country, has a plethora of inherent sensitivities. In fact, solidarity can, in practice, enhance human rights risks, as responsibilities are diluted, and the accountability safeguards are reduced. The chapter upholds its normative conclusions by arguing that accountability should be part of the implementation of the principle of solidarity also in its external dimension. Admittedly, this is a constitutional requirement, according to the principle of coherence between the internal and external dimensions of the EU policies. Thus, given that the concept is not neutral and absolved of human rights risks, there is no space for unaccountable solidarity. In conclusion, in an area as sensitive to human rights as migration, solidarity cannot be a stand-alone ideal if it is not accompanied by appropriate accountability frameworks, which include judicial accountability, but also a robust system of external and independent monitoring.

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Karageorgiou E, Spijkerboer T (2019) Solidarity with/out borders. RLI blog on Refugee Law and Forced Migration. https://rli.blogs.sas.ac.uk/2019/06/13/solidarity-with-out-borders/. Accessed 12 September 2022 Küçük E (2016a) The Principle of Solidarity and Fairness in Sharing Responsibility: More than Window Dressing? European Law Journal 22:448–469 Küçük E (2016b) Solidarity in EU Law: An Elusive Political Statement or a Legal Principle with Substance? Maastricht Journal of European and Comparative Law 23(6):965–983 Lehner R (2019) The EU-Turkey-‘deal’: Legal Challenges and Pitfalls. International Migration 57(2):176–185. Maiani F (2016) The reform of the Dublin system and the dystopia of ‘sharing people’. (2017) Maastricht Journal of European and Comparative Law 24:622–645 Marin L (2020) The Cooperation Between Frontex and Third Countries in Information Sharing: Practices, Law and Challenges in Externalizing Border Control Functions. European Public Law 26(1):157–180 Marin L, Penasa S, Romeo G (2020) Migration Crises and the Principle of Solidarity in Times of Sovereignism: Challenges for EU Law and Polity. European Journal of Migration and Law 22:1–10 Miglio A (2018) Solidarity in EU asylum and migration law: crisis management tool or structural principle? In: Ku˙zelewska E, Weatherburn A, Kloza D (eds) Irregular Migration as a Challenge for Democracy. Intersentia, Antwerp, pp 23–50 Migreurop (2011) Frontex Agency: Which Guarantees for Human Rights? http://www.migreurop. org/IMG/pdf/Frontex-PE-Mig-ENG.pdf Accessed 12 September 2022 Moreno-Lax V (2012) Frontex as a Global Actor: External Relations with Third Countries and International Organizations. In: Dony M (ed) The External Dimension of the Area of Freedom, Security and Justice. Université Libre de Bruxelles Press, Brussels Moreno-Lax V, Costello C (2014) The extraterritorial application of the EU Charter of Fundamental Rights: from territoriality to facility, the effectiveness model. In: Peers S et al (eds) Commentary on the EU Charter of Fundamental Rights. Hart Publishing, Oxford, pp 1657–1683 Nicolosi SF (2016) Emerging challenges of the temporary relocation measures under EU asylum law. European Law Review 41(3):338–361 Nicolosi SF, Momoh S (2022) International Solidarity and the Global Compact on Refugees: What Role for the African Union and the European Union? Journal of African Law 66(1):23–45 Omiˇcevi´c E (2021) Between Security, Secrecy and Scrutiny: Enigmatic External Activities by European Agencies and Bodies in the Fight against Crime. European Law Blog https://europeanlawblog.eu/2021/11/24/between-security-secrecy-and-scrutiny-enigmaticexternal-activities-by-european-agencies-and-bodies-in-the-fight-against-crime/ Accessed 18 December 2022 Ott A (2008) EU Regulatory Agencies in EU External Relations: Trapped in a Legal Minefield Between European and International Law. European Foreign Affairs Review 13(4):515–540 Ott A, Vos E, Coman-Kund F (2013) EU Agencies and Their International Mandate: A New Category of Global Actors? CLEER Working Paper 2013/07. https://www.asser.nl/media/1642/cleer_137_web.pdf. Accessed 12 September 2022 PACE (2013) ‘Frontex: human rights responsibilities’, Mr Mikael Cederbratt rapporteur (Doc. 13161) Palm A (2016) Did 2016 mark a new start for EU external migration policy or was it business as usual? Istituto Affari Internazionali Working Papers 16/33 Palm V (2017) The Italy-Libya Memorandum of Understanding: The baseline of a policy approach aimed at closing all doors to Europe? EU Immigration and Asylum Law and Policy Blog. https://eumigrationlawblog.eu/the-italy-libya-memorandum-of-understanding-thebaseline-of-a-policy-approach-aimed-at-closing-all-doors-to-europe/. Accessed 12 September 2022 Papastavridis E (2010) ‘Fortress Europe’ and FRONTEX: Within or Without International Law? Nordic Journal of International Law 79(1):75–111

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Poli S (2016) The European Neighbourhood Policy—Values and Principles. Routledge, London Publications Office of the EU (2019) Leaflet on the IPA II project. https://doi.org/10.2819/926988. Accessed 19 September 2022 Rijpma J (2012) Hybrid agencification in the Area of Freedom, Security and Justice and its inherent tensions: the case of Frontex. In: Trondal J, Busuioc M, Groenleer M (eds) The agency phenomenon in the European Union: Emergence, institutionalisation and everyday decision-making. Manchester University Press, Manchester, pp 84–102 Rijpma J (2017) External Migration and Asylum Management: Accountability for Executive Action Outside EU-Territory. European Papers 2(2):571–596 Santos Vara J (2015) The External Activities of AFSJ Agencies: The Weakness of Democratic and Judicial Controls. European Foreign Affairs Review 20:118–136 Savino M (2018) Refashioning Resettlement: from Border Externalization to Legal Pathways for Asylum. In: Carrera S, den Hertog APL, Panizzon M, Kostakopoulou D (eds) EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes. Brill, Leiden Statewatch (2022) EU: Tracking the Pact: Plan for Frontex to deploy “vessels, surveillance equipment, and carry out operational tasks” in Senegal and Mauritania. https://www.statewatch. org/news/2022/july/eu-tracking-the-pact-plan-for-frontex-to-deploy-vessels-surveillance-equ ipment-and-carry-out-operational-tasks-in-senegal-and-mauritania/. Accessed 5 October 2022 Statewatch, Migreurop (2012) Reply to the Ombudsman’s request for submission—Frontex’s fundamental rights strategy. https://www.statewatch.org/media/documents/analyses/no-193-eu-ombsinquiry-frontex-evidence.pdf. Accessed 12 September 2022 Stoji´c Mitrovi´c M (2020) The dark sides of Europeanisation; Serbia, Bosnia and Herzegovina and the European border regime. Rosa Luxembourg Stiftung Southeast Europe Thym D, Tsourdi E (2017) Searching for Solidarity in the EU Asylum and Border Policies: Constitutional and Operational Dimensions. Maastricht Journal of European and Comparative Law 24(5):605–621 Tsourdi E (2017) Solidarity at work? The prevalence of emergency-driven solidarity in the administrative governance of the Common European Asylum System. Maastricht Journal of European and Comparative Law 24:667–686 UNHCR (United Nations High Commissioner for Refugees) (2006) UNHCR Master Glossary of Terms, https://www.refworld.org/docid/42ce7d444.html UNHCR (United Nations High Commissioner for Refugees) (2016) Submission for the Office of the High Commissioner for Human Rights’ Compilation Report Universal Periodic Review: 3rd Cycle, 27th Session, https://www.ecoi.net/en/document/1399300.html Vanheule D, Van Selm J, Boswell C, Ardittis S (2011) The Implementation of Article 80 TFEU on the principle of solidarity and fair sharing of responsibility, including its financial implications, between Member States in the field of border checks, asylum and immigration. European Parliament, Brussels, Belgium. Available at: https://www.europarl.europa.eu/RegData/etudes/etudes/ join/2011/453167/IPOL-LIBE_ET(2011)453167_EN.pdf Vitiello D (2019) Chapter 5 Agencification as a Key Component of the EU Externalisation Toolkit. Observations on a Silent Escape from the Rule of Law. In: Carrera S, den Hertog A P L, Panizzon M, Kostakopoulou D (eds) EU External Migration Policies in an Era of Global Mobilities: Intersecting Policy Universes. Brill, Leiden, pp 125–152

Mariana Gkliati is Assistant Professor of International and European Law at Radboud University, Nijmegen, the Netherlands. She a co-convenor of the Refugee Law Initiative Declaration on Externalisation and Asylum, International Journal of Refugee Law, Volume 34, Issue 1, March 2022, Pages 114–119. Salvatore Fabio Nicolosi is Senior Assistant Professor of International and European Law at Utrecht University, Utrecht, The Netherlands, and Adjunct Professor of International and European Migration and Asylum Law at the Brussels School of Governance, Vrije Universiteit Brussel,

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Brussels, Belgium. The authors wish to acknowledge the students of the Roma Tre Migration Law Clinic, Marta Bracalente and Lauren Heredia Zuloeta, for their research assistance.

Chapter 12

The Solidarity Principle in the Context of the CFSP: The Adoption of Restrictive Measures as an Expression of Solidarity? Anna Pau

Contents 12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.2 The Crisis of the Eastern Mediterranean Sea and the Adoption of EU Restrictive Measures in Solidarity with Cyprus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.3 The Circumstances of the First Case of Reliance on Solidarity Under Article 24 TEU . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4 The Intergovernmental Nature of the Solidarity Clauses in the CFSP and the Lack of Specific Obligations on the Part of the Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.5 An Analysis of the Member States’ Solidarity Obligations Under the CFSP: The Unclear ‘Contours’ of the Solidarity Principle Under Article 24 TEU . . . . . . . . . . . . . . . 12.6 The Strengthening of the Principle of Solidarity Under Article 24 TEU . . . . . . . . . . . . . 12.6.1 The Intergovernmental Nature of the CFSP and the Difficulty of Triggering a ‘Duty to Adopt Sanctions’ from the Article 24 TEU Solidarity Principle . . . . . 12.6.2 The Limited Jurisdiction of the CJEU in the CFSP and the Non-justiciability of the Article 24 TEU Solidarity Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.7 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract According to Article 24(2) TEU, the Common Foreign and Security Policy (CFSP) is based on the development of mutual political solidarity among Member States. In particular, the latter should support the Union’s external and security policy in a spirit of loyalty and mutual solidarity (Article 24(3) TEU). However, the said principle has not found many applications in this field so far and seems to be of uncertain substance. This chapter will focus on the application of the ‘solidarity clause’ of Article 24 TEU and will address a remarkable case, where solidarity was used by the Council of the EU for the first time as the basis of a CFSP decision establishing a sanctions regime towards Turkish nationals. This happened in the context of the crisis of the Eastern Mediterranean and Aegean Sea, which involved Cyprus, Greece and Turkey and reached its peak in the summer of 2020. As we shall see, the CFSP decision is a sui generis sanctioning measure not only for this reason, A. Pau (B) Law Department, University of Pisa, Palazzo della Sapienza, Via Curtatone e Montanara 15, 56126 Pisa (PI), Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_12

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but also because it was adopted to protect the sovereign rights and jurisdiction of an EU Member State, Cyprus, which was the target of unauthorised and unlawful drilling activities on the continental shelf below its territorial waters and exclusive economic zone. Keywords Mutual political solidarity · CFSP · Article 24 TEU · Restrictive measures · Article 42(7) TEU · Greece · Cyprus · Turkey

12.1 Introduction Solidarity in EU law can be considered an evolving concept of uncertain status. Some legal scholars have acknowledged that it has acquired an increasingly prominent place within the constitutional system of the EU legal order;1 others have defined it as a rather political and non-binding principle, irrespective of the area of EU law under consideration.2 Solidarity is among the cardinal values and foundations of the Union,3 and it was described as the raison d’être and the objective and lifeblood of the European project.4 Over time, its importance has been reaffirmed on several occasions, and it has made some appearances in the jurisprudence of the Court of Justice of the EU (CJEU), often linked to the principle of loyalty.5 Only recently, the CJEU has recognised in solidarity the status of a fundamental principle of EU 1

For example, see Küçük 2016, p. 966. For example, see Klamert 2014, pp. 35–40. 3 In the Charter of Fundamental Rights of the EU, it is listed among the ‘indivisible and universal values’ on which the Union is founded; see Preamble of the Charter of Fundamental Rights of the European Union [2000] adopted 7 December 2000, entered into force 1 December 2009, OJ C 326/391. See also the Preamble and Article 2, second sentence, Consolidated version of the Treaty on European Union [2012] OJ C 326/13 (TEU). For more references to solidarity in the EU Treaties, see below, note 9. 4 CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union, Opinion of Advocate General Bot, 26 July 2017, ECLI:EU:C:2017:618, paras 17–18 and CJEU, Joined Cases C-715/17, C-718/17, C-719/17 European Commission v Republic of Poland and Others, Opinion of Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917, para 253. 5 The CJEU affirmed already in 1969 that solidarity ‘is at the basis of (…) the whole of the Community system in accordance with the undertaking provided for in Article 5 of the Treaty’ (CJEU, Joined Cases C-6/69 and C-11/69 Commission v France, Judgment, 10 December 1969, ECLI:EU:C:1969:68, para 16) and, in 1973, that the incomplete or selective implementation of EU law is a ‘failure in the duty of solidarity accepted by Member States by the fact of their adherence to the Community [and it] strikes at the fundamental basis of the community legal order’ (CJEU, Case C-39/72 Commission of the European Communities v Italian Republic, Judgment, 7 February 1973, ECLI:EU:C:1973:13, para 25). In 1978, the Court affirmed that the principle of Community solidarity is one of the foundations of the Community (CJEU, Case C-77/77 Benzine en Petroleum Handelsmaatschappij BV and others v Commission of the European Communities, Judgment, 29 June 1978, ECLI:EU:C:1978:141, para 15). See also CJEU, Case C-250/84 Eridania zuccherifici nazionali and Others v Cassa conguaglio zucchero and the Italian Ministry of Finance and Treasury, Judgment, 22 January 1986, ECLI:EU:C:1986:22, para 20, where the Court made it clear that the principle of solidarity necessarily sometimes implies accepting burden-sharing (concerning this, see 2

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law underpinning the entire legal system of the Union, and affirmed that it entails obligations for both the EU and the Member States.6 As observed by Hilpold, ‘islands of solidarity’ within EU law have been created over time.7 Indeed, the principle has multiple applications in the context of the Treaties: it operates under Article 42(7)TEU if a Member State is the target of armed aggression;8 in the field of immigration and asylum policy (Article 80 TFEU); in the context of economic policy, in particular to cope with crisis situations involving difficulties for a Member State, in relation, inter alia, to energy supply or in the case of natural disasters or exceptional occurrences (Article 122(1) TFEU); in the field of the EU energy policy ex Article 194(1) TFEU.9 In the field of the CFSP, Article 24(2) TEU provides the legal basis for the development of mutual political solidarity among Member States. In particular, the latter should support the Union’s external and security policy in a spirit of loyalty and mutual solidarity.10 The application of the solidarity principle is particularly important in the CFSP, a field which is notably ‘subject to specific rules and procedures’,11 especially when it comes to situations affecting one or more EU members, as unanimity is required for the adoption of CFSP acts. For the first time, this provision was invoked by the Council in 2019 to justify the adoption of Decision (CFSP) CJEU, Joined Cases C-715/17, C-718/17, C-719/17 European Commission v Republic of Poland and Others, Opinion of Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917, para 251). For in-depth studies on solidarity in EU law, see, inter alia, Cremonini 2006; Blanquet 2009; Boutayeb 2011; Neframi 2011; Hilpold 2015; Küçük 2016; Manzini 2017; Biondi et al 2018; Croci 2020; Mengozzi 2020. For solidarity in the context of EU external relations, see CJEU, Case C-399/12 Federal Republic of Germany v Council (OIV), Judgment, 7 October 2014, ECLI:EU:C:2014:2258, para 52 and CJEU, Case C-45/07 Commission v Hellenic Republic, Judgment, 12 February 2009, ECLI:EU:C:2009:81, paras 30–31; see also, on the same subject, CJEU, Opinion 2/91, Opinion of 19 March 1993, ECLI:EU:C:1993:106, para 5. For a doctrinal analysis of the applications of the solidarity principle after the Lisbon reform, see Czuczai 2017, pp. 148–149. 6 CJEU, Case T-883/16 Commission v. Poland (OPAL I), Judgment, 10 September 2019, ECLI:EU:T:2019:567, paras 69–70 and CJEU, Case C-848/19 P Germany v Poland (OPAL II), Judgment, 15 July 2021, ECLI:EU:C:2021:598, paras 38 and 41. For another recent judgment enhancing the principle of solidarity in the field of asylum and immigration policy, see CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union, Judgment, 6 September 2017, ECLI:EU:C:2017:631. 7 Hilpold 2015, p. 264 and here, note 24. 8 Cimiotta 2016; European Parliamentary Research Service (2015) The EU’s mutual assistance clause first ever activation of Article 42(7) TEU. https://www.europarl.europa.eu/RegData/etudes/ BRIE/2015/572799/EPRS_BRI(2015)572799_EN.pdf Accessed 21 December 2021; Koutrakos 2013. 9 For explicit references to the principle of solidarity in the Treaties, see Articles 2, 3(3) and (5), 21, 24(2) and (3), 31(1), 32 TEU and Articles 67(2), 78(1) and (3), 80, 107(2)(b), (3)(a) and (3)(b), 122(1), 194(1), and 222 Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C 326/47 (TFEU); in addition, see Protocol No. 28 on economic, social and territorial cohesion, OJ C 115/310, 9.5.2008 and Declaration No. 37 on Article 222 TFEU, OJ C 202/349. 10 TEU, Article 24(3). 11 TEU, Article 24(1).

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2019/189412 establishing restrictive measures13 vis-à-vis Turkish nationals in the context of the crisis of the Eastern Mediterranean and Aegean Sea, which involved Cyprus, Greece and Turkey. Given that the solidarity clause of Article 24 TEU has not yet been sufficiently explored by legal scholars, this chapter aims to shed light on the distinctive elements of this provision with respect to other solidarity clauses. The piece will start with a brief description of the context in which the sanctions’ regime was adopted by the Council: the crisis of the Eastern Mediterranean Sea and the violation of Cypriot territorial sovereignty and sovereign rights committed by Turkey (Sect. 12.2). Next, Sect. 12.3 remarks on the circumstances of the first case of reliance on Article 24 TEU. Section 12.4 provides a brief account of the other solidarity clauses in the Treaties, with particular focus on the ‘clause of mutual-assistance’ of Article 42(7) TEU in the framework of the Common Security and Defence Policy (CSDP). Section 12.5 looks at the nature of the Article 24 TEU ‘solidarity clause’. In Sect. 12.6, the peculiarities of the CFSP policy area are taken into consideration, in order to acknowledge that there are obstacles to strengthening the principle of solidarity under Article 24 TEU: first, the intergovernmental, state-centric nature of this area of EU law (Sect. 12.6.1); second, the lack of jurisdiction of the CJEU and the consequent impossibility of judicial enforceability of the principle at hand (Sect. 12.6.2). Concluding remarks follow in Sect. 12.7.

12.2 The Crisis of the Eastern Mediterranean Sea and the Adoption of EU Restrictive Measures in Solidarity with Cyprus At the heart of the dispute between Turkey, Cyprus and Greece lies the delimitation of their respective maritime areas and the exploitation of subsoil resources. The crisis in question evolved around two different issues: the first is a direct consequence of the bipartition of the Island of Cyprus and the existence of the Turkish Republic of Northern Cyprus (TRNC), a self-proclaimed State recognised only by Turkey; the second involves Greece and concerns the geographical configuration of the Aegean Sea and the right of islands to be entitled to declare their own maritime zones and to exploit the resources present therein. As far as the first issue is concerned, in September 2011 Turkey and the TRNC signed a bilateral ‘treaty’ with the aim to delimit their respective continental shelf.14 12

Council Decision 2019/1894/CFSP of 11 November 2019 concerning restrictive measures in view of Turkey’s unauthorised drilling activities in the Eastern Mediterranean, OJ L 291/47. 13 In this chapter, the terms ‘sanctions’ and ‘restrictive measures’ are used interchangeably. 14 Continental Shelf Delimitation Agreement between Turkey and the Turkish Republic of Northern Cyprus of 21 September 2011, signed by Recep Tayyip Erdo˘gan and Dervi¸s Ero˘glu. It should be noted that the delimitation agreement concluded between Turkey and the TRNC cannot be considered as having legal value under international law, since UN Security Council Resolutions

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The agreement, which covered certain areas of the Cypriot EEZ, was concluded with a view to granting licences for the exploration and exploitation of oil and gas reserves around the island to the Turkish Petroleum Corporation (TPAO),15 and as a reaction to similar activities carried out by the Republic of Cyprus.16 On the basis of the aforementioned licences, Turkey commenced drilling in Cyprus’ EEZ (at first) and in its territorial waters (at a later stage).17 As regards the matter with Greece, since the negotiation of the United Nations Convention on the Law of the Sea (UNCLOS),18 Turkey has been arguing that islands in certain regions, as such, do not have their own continental shelf and are therefore not entitled to generate complete maritime zones.19 For its part, Greece considers that its islands, however small, have the same rights as land territories, including the right to exploit the resources on their continental shelf. As of November 2019, Turkey has been interfering with maritime areas under the jurisdiction of Greece with the conclusion of an agreement with Libya in violation of Greece’s sovereign rights and the Law of the Sea.20 While Turkey was carrying out the aforementioned activities in the context of Cypriot and Greek territorial seas and/or self-proclaimed EEZ,21 the European 541/1983 and 550/1984 require that the legal effects of acts carried out by the authorities of an occupied territory should not be recognised. 15 See Decisions Nos. 2012/2802, 2012/2973 and 2012/2968, Turkish Official Gazette No. 28276, 27 April 2012. 16 Gürel et al 2013; see also Republic of Turkey, Minister of Foreign Affairs (2011) No. 181 of 5 August 2011 Press Release Regarding the Greek Cypriot Administration’s Gas Exploration Activities in the Eastern Mediterranean. https://www.mfa.gov.tr/no_-181_-5-august-2011_-pressrelease-regarding-the-greek-cypriot-administration_s-gas-exploration-activities-in-the-easternmediterranean.en.mfa. Accessed 13 September 2022. 17 UN General Assembly (2019) Letter from the Chargé d’Affaires ad interim of the Permanent Mission of Cyprus to the United Nations to the Secretary-General dated 12 July 2019, Doc. A/73/944-S/2019/564. For a picture summarising Turkish drilling activity, refer to Annex II of the UN General Assembly (2020) Letter dated 30 April 2020 and sent to the Secretary-General by the Permanent Representative of Cyprus to the United Nations dated 1 May 2020, UN Doc. A/74/832-S/2020/350. 18 United Nations Convention on the Law of the Sea, opened to signature 10 December 1982, entered into force 16 November 1994, 1833 UNTS 3 (UNCLOS). 19 As an example, see ICJ, Aegean Sea Continental Shelf (Greece v Turkey), Judgment, 19 December 1978, 1978 I.C.J. Reports 3, where Turkey defined the Greek Islands as ‘mere protuberances on the Turkish continental shelf’ (para 87); see also Van Dyke 2005. 20 After having intervened in support of the Libyan Government of National Accord, Turkey concluded with Libya a memorandum of delimitation of the respective continental shelves and EEZs; see Memorandum of Understanding between the Government of the Republic of Turkey and the Government of National Accord of the State of Libya on the Delimitation of Areas of Maritime Jurisdiction in the Mediterranean, Registration No. 56119, 27.11.2019. This document ignores the presence, among others, of the Greek islands of Rhodes and Crete, located between the coasts of Turkey and Libya. 21 It should be stressed that Turkey is not a member of UNCLOS; moreover, until 2019, when it reached an agreement with the Libyan government, it had neither established an EEZ nor conventionally delimited its continental shelf with other states in the context of the Mediterranean Sea. In addition, Turkey has not agreed to resort to any international dispute settlement mechanism, despite having been invited to do so by Nicosia: see UN General Assembly 2020

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Council unequivocally affirmed its full solidarity with the Member States involved.22 Again, solidarity on the part of the Union was reaffirmed solely with Cyprus by the same EU institution one year later.23 Then, in November 2019, the Council of the EU established an economic sanctions’ framework through a CFSP Decision24 adopted under Article 29 TEU and based on a proposal of the EU High Representative (HR).25 The restrictive measures targeted those individuals involved in the planning, preparation, participation, direction and/or assistance to the illegal activities carried out by the TPAO and infringing the sovereignty or sovereign rights and jurisdiction of the Republic of Cyprus in its territorial sea, EEZ and continental shelf. The said actions were deemed to be contrary to the principles of the UN Charter, including the peaceful resolution of disputes, and as posing a threat to the interests and security of the Union.26 In the case examined, since the territorial sovereignty of a Member State (Cyprus) had been violated and there was a concrete threat to the security of another Member State (Greece), it was not difficult for the EU members to reach a unanimous position and, for the news, see Brief Team (2019) Anastasiades aims to appeal to The Hague to defend Cyprus’ rights. https://www.brief.com.cy/english/anastasiades-aims-appeal-hague-defend-cyprusrights. Accessed 21 December 2021. Cyprus, on the other hand, ratified UNCLOS and proclaimed its EEZ in 2004 (see Law no. 64 (I) of 2 April 2004 and 97(I) 2014. https://www.un.org/Depts/los/LEG ISLATIONANDTREATIES/PDFFILES/CYP_EEZ-CS_Law_2014.pdf. Accessed 21 December 2021). According to this law, where the EEZ overlaps with that of another coastal State, in the absence of a conventional delimitation, the rule of the median line - equidistant between the island of Cyprus and the state facing it – applies. Greece applies the same criterion, as set out in Article 2(1) of Law No 2289/2005 (2012) On Prospecting, Exploration and Exploitation of Hydrocarbons and Other Provisions, as amended by Law No 4001/2011. Bulletin of the Law of the Sea No 79, p. 14. For an analysis of the work of the most authoritative legal scholars on the rules of the international maritime law, see Pineschi and Treves 1996; Churchill and Lowe 1999; Scovazzi 2002. For more information regarding the sanctioning measures under examination, see Poli and Pau 2020. 22 European Council 2018, para 12. 23 European Council 2019, para 17. See also Delegation of the European Union to Turkey (2020) Conclusions by the President of the European Council following the video conference of the members of the European Council on 19 August 2020. https://www.avrupa.info.tr/en/eeasnews/conclusions-president-european-council-following-video-conference-members-european. Accessed 21 December 2021. 24 Council Decision (CFSP) 2019/1894 of 11 November 2019 concerning restrictive measures in view of Turkey’s unauthorised drilling activities in the Eastern Mediterranean, OJ L 291/47. 25 The asset-freezing sanctions were implemented, pursuant to Article 215 TFEU, by Council Regulation (EU) 2019/1890 adopted the same day on the basis of a joint proposal by the High Representative and the Commission; see Council Regulation (EU) 2019/1890 of 11 November 2019 concerning restrictive measures in view of Turkey’s unauthorised drilling activities in the Eastern Mediterranean, OJ L 291/3. 26 Ibid., Recital (2) and Council Decision 2019/1894/CFSP (see above, note 24) Recital (9). Under the UNCLOS, the coastal state has the right to explore and exploit the resources of the seabed and subsoil up to the limit of its continental shelf, and no other entity under international law may undertake such activities – including drilling activities – in the said area without its permission (Articles 76 et seq., UNCLOS). States with opposite or adjacent coasts are obliged to delimit their EEZ and continental shelf on the basis of an agreement, with a view to reaching an equitable solution and, in the meantime, to make every effort to reach interim solutions and not to compromise or hinder the final settlement (Articles 74 and 83, UNCLOS).

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and to impose the restrictive measures under consideration.27 The sanctions examined in this chapter are based on the premise of a declaration of ‘full solidarity’ released by an EU institution—the European Council—on the part of the Union towards Cyprus.28 For the first time29 and in the restrictive measures under consideration, we find solidarity invoked as a justification for a CFSP act.

12.3 The Circumstances of the First Case of Reliance on Solidarity Under Article 24 TEU Restrictive measures are not usually adopted when the territorial sovereignty of a Member State is breached.30 The Union adopts sanctions following violations of international law31 given that under the EU Treaty the organisation shall contribute ‘to the strict observance and the development of international law, including respect for the principles of the United Nations Charter’ (Article 3(5) TEU).32 The EU has reacted to serious violations of this body of law which were taking place in its neighbourhood: for example, on the occurrence of violations of the territorial integrity

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It needs to be stressed that the restrictive measures were adopted against two Turkish nationals (precisely, against Mehmet Ferruh Akalin, Vice-President (Assistant General Manager) and member of the Board of Directors of the TPAO, also Head of TPAO’s Exploration, R&D Centre and Information Technologies Departments, and Ali Coscun Namoglu, Deputy Director of the Exploration Department of the TPAO) and that there was probably no consensus to adopt restrictive measures against the Turkish State, probably due to divisions within the Union. However, the actions for which the individuals were listed were connected to the Turkish State policy regarding the exploration and exploitation of natural resources in the high sea (the TPAO is a State-owned enterprise). 28 Council Decision 2019/1894/CFSP (see above, note 24) Recitals (6) and (8). 29 As far as the author is aware. 30 However, as we shall see, some cases should be mentioned: first, Council Decision (CFSP) 2018/1544 of 15 October 2018 concerning restrictive measures against the proliferation and use of chemical weapons, OJ L 259/25. The EU adopted the said act after the Salisbury attacks: the Russian Federation was considered responsible for the attempted murder of two Russians with chemical weapons in the UK territory. Second, Council Decision (CFSP) 2020/1127 of 30 July 2020 amending Decision (CFSP) 2019/797 concerning restrictive measures against cyber-attacks threatening the Union or its Member States, OJ L 246/12. The adoption of the latter was triggered by the 2015 Bundestag hack: the sanctions targeted Russian, Chinese and North Korean hackers. 31 Though, to the best of the author’s knowledge, the EU has never imposed sanctions for breaches of sovereign rights in maritime areas (despite the fact that the Turkish illegal activities started in 2008; see Gürel et al 2013, p. 61 onwards). And this is another element which renders the EU reaction unprecedented. 32 See also Article 21(2)(c).

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of one state by another (as in the cases of Crimea,33 or Georgia34 ). However, in these situations, the solidarity principle did not come into play since the States victim of the violations were (and are) not EU members. The peculiarity of the Cyprus case lies in the fact that the maritime sovereign rights of an EU Member State were violated. Precisely the latter circumstance may trigger the activation of Article 24 TEU. The reference to Article 24 TEU solidarity in the text of restrictive measures was not used by the Union in the past. Even when some EU Member States were actually targets of violations carried out by third States, the Union adopted sanctions with no mention of solidarity, where one of the most recent cases was the 2015 Bundestag hack, which triggered the adoption of the 2020 EU cyber-sanctions against Russian, Chinese and North Korean hackers.35 In the mentioned act, the EU acknowledged that cyber-attacks cause significant damage and economic loss in the Union and beyond and intend to undermine the Union’s integrity, security, and economic competitiveness. Nonetheless, the Council chose not to mention solidarity in the CFSP act.36 Similarly, when the EU adopted restrictive measures after the Salisbury attacks,37 despite the prior declarations of ‘unqualified solidarity with the United Kingdom’ released by the European Council,38 in the restrictive measure we find reference to the conclusions of the said EU institution without any mention of solidarity.39 When the EU decided to manifest full solidarity towards one of its members in reactions to crisis situations it did so via other means.40 For instance, in February 33

In 2014, after the annexation of Crimea by the Russian Federation, the organisation sanctioned the Russian State for its unprovoked actions aimed at destabilising Ukraine or undermining or threatening its territorial integrity, sovereignty or independence; see Council Decision 2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine, OJ L 229/13. In addition, individual restrictive measures were applied; for an overview, see Council of the EU, Infographic – EU sanctions against Russia over Ukraine. https://www.consil ium.europa.eu/en/infographics/eu-sanctions-against-russia-over-ukraine/. Accessed 21 December 2021, and Poli 2016. 34 Another case of the EU’s response to serious breaches of international law is that of Georgia: since the Russian intervention in 2008 and its recognition of Abkhazia and South Ossetia as sovereign States, the Union has been reiterating firm support for the independence, sovereignty and territorial integrity of Georgia within its internationally recognised borders. See, for instance, the statement of the Delegation of the European Union to Georgia, Press Release (2021) Local EU statement on the 13th anniversary of the conflict between Russia and Georgia. https://eeas.europa.eu/delega tions/georgia/102869/node/102869_en. Accessed 21 December 2021. However, it should be noted that sanctions against Russia over the situation in Georgia were never adopted by the Union. 35 Council Decision (CFSP) 2018/1544 (see above, note 30). 36 See especially Recital no. 3 of Council Decision (CFSP) 2020/1127. 37 Council Decision (CFSP) 2018/1544 (see above, note 30). 38 European Council, Press Release (2018) European Council Conclusions on the Salisbury attack. https://www.consilium.europa.eu/en/press/press-releases/2018/03/22/european-cou ncil-conclusions-on-the-salisbury-attack/. Accessed 27 December 2021. 39 However, it needs to be pointed out that Council Decision (CFSP) 2018/1544 (see above, note 30) was adopted also in response to the violations carried out by the Syrian regime, and not only as a consequence of the Salisbury attacks. 40 Notably, the need for solidarity commonly emerges in situations of crisis. See, in particular, the emblematic Article 222 TFEU. Casolari affirms that if one looks at most of the provisions of primary law that expressly refer to obligations of solidarity (in particular, between Member States),

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and April 2021, the European Parliament and HR Borrell released declarations in solidarity with the Czech Republic over criminal activities carried out on its territory by the Russian Federation.41 In that case, the EU accused the latter country of a ‘gross violation’ of international law and the sovereignty of the Czech Republic after Moscow expelled 20 Czech diplomats.42 Yet, no act of secondary law was adopted. This may be explained by the fact that, on that occasion, the Russian actions were not considered serious enough to justify the adoption of sanctions, or because unanimity was not achieved within the Council. Indeed, the Russian move of expelling Czech diplomats is hardly comparable to the fossil fuel research activities undertaken by Turkey in the Mediterranean Sea; however, both kinds of actions are reprehensible and sufficiently serious to provoke a cohesive EU response. The latter scenario could have required coordinated action under the CFSP but, as previously said, the EU decided to limit its intervention to the expression of solidarity in the form of political declarations. At the time, the actions of expulsion of Russian diplomats in the name of EU solidarity were taken in reprisal by some Member States, but also some action at the EU level would have been appropriate (for example, the expulsion from Brussels of Russian agents accredited in the EU as diplomats).43 It is also worth mentioning the recent declarations of solidarity in the face of increased organised and facilitated migratory pressure on Belarus’ neighbouring countries (in particular, Latvia, Lithuania and Poland), released under the Slovenian Presidency of the Council and with the intention of protecting the EU’s external borders.44 Despite the fact that new EU restrictive measures (amending the countrybased regime of EU sanctions against Belarus already in place) are connected to the a fil rouge clearly emerges, the trajectory of which outlines the context in which these obligations are called upon to operate: that is to say, the context of emergency scenarios, which require Member States to share the resulting burdens and responsibilities; see Casolari 2020, p. 66 and here, note 90. 41 European Parliament, Press Release (2021) EU-Russia relations: MEPs condemn the decision by the Russian authorities to expel three EU diplomats. https://www.europarl.europa.eu/news/ en/press-room/20210208IPR97332/meps-condemn-the-decision-by-the-russian-authorities-toexpel-three-eu-diplomats. Accessed 21 December 2021; Council of the EU, Press release (2021), Russia: Declaration by the High Representative on behalf of the European Union in solidarity with the Czech Republic over criminal activities on its territory. https://www.consilium.europa. eu/en/press/press-releases/2021/04/21/russia-declaration-by-the-high-representative-on-behalfof-the-european-union-in-solidarity-with-the-czech-republic-over-criminal-activities-on-its-territ ory/. Accessed 21 December 2021. 42 See Council of the EU, Press release (2021) cited above and Tétrault-Farber G and Muller R (2021) Livid Russia expels 20 Czechs after blast blamed on Skripal suspects. https://www.reuters. com/world/europe/czechs-discuss-alleged-russian-link-2014-blast-with-eu-2021-04-18/. Accessed 21 December 2021. The Czech diplomats were expelled as a reaction to the Czech Republic’s allegations that two Russian spies were behind an earlier explosion at a Czech ammunition depot that killed two people. 43 Rettman A (2021) EU in talks on further Russia expulsions. https://euobserver.com/world/ 151654. Accessed 21 December 2021. 44 Slovenian Presidency, Press Release (2021) Home affairs ministers express solidarity with the EU member states at the border with Belarus. https://www.gov.si/en/news/2021-08-18-home-affairsministers-express-solidarity-with-the-eu-member-states-at-the-border-with-belarus/. Accessed 21 December 2021.

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facilitation of the migratory pressure on the Eastern members of the Union, there is no mention of solidarity inside the CFSP-based acts.45 In conclusion, despite the sporadic appearance of solidarity towards one or more EU members in the context of the HR or European Council’s declarations, the Union has never before used this principle to justify the adoption of a CFSP act. Hence, one may wonder what the significance of the first case of (explicit) reliance on Article 24 TEU solidarity can be. We have seen that in some (less serious) cases the EU decided to react through mere declarations of solidarity, while in other cases it decided to adopt sanctions that do not contain solidarity references. Lastly, in one case, it directly referred to the principle of solidarity in the restrictive measure’s text. What can be appreciated from the examples outlined in this section is that the Council is gradually giving relevance to the principle of solidarity through the practice of adopting CFSP-based acts.

12.4 The Intergovernmental Nature of the Solidarity Clauses in the CFSP and the Lack of Specific Obligations on the Part of the Union In the Treaties, we cannot find an explicit duty of aid or assistance imposed upon Member States if the territorial sovereignty of a Member State is breached, leaving aside the case of armed attack, which is regulated by Article 42(7) TEU. The latter provision, placed in the part dedicated to the CSDP,46 provides for a mutual-assistance obligation binding the Member States if armed aggression occurs. This provision was defined by Wessel as a ‘more military oriented solidarity clause’.47 The wording of Article 42(7) TEU refers to the obligation stemming from the UN Charter’s Article 51 and seems to draw a line between the right of collective self-defence in the framework of the UN and the same right in the context of the EU.48 Yet, the expression used in Article 42(7) is reductive, and leaves room for mere acts of aggression towards Member States, thus excluding from its scope of application illegal activities carried out by one State to the detriment of another which do not encompass the use of armed

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Council Decision (CFSP) 2021/1990 of 15 November 2021 amending Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus, OJ L 405/10. Interestingly, slightly after the restrictive measures against Turkish drilling activities were adopted by the EU, Cyprus blocked the approval of the sanctions against Belarus, and it did so in order to convince the other Member States to take further actions against Turkey. In so doing, Cyprus used its veto power as leverage for pursuing its own interests. 46 CSDP, as is well known, constitutes an integral part of the CFSP. 47 Wessel 2022, p. 7. 48 The clause was invoked for the first time by France after the terrorist attacks of 13 November 2015. For more information, see Cimiotta 2016.

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force.49 This clause was invoked only once by France in 2015, following terrorist attacks which hit the French State. Eventually, the clause was not activated. The use of Article 222 TFEU would probably have been more appropriate in that situation: indeed, it contains ad hoc provisions to be activated on the occurrence of a terrorist attack and foresees the central role of the Union as ‘protector’ of the Member States’ security and as coordinator of the actions of solidarity undertaken by its members. Instead, the activation of Article 42(7) TEU triggers an intergovernmental dynamic that appears to exclude the Union from any decision-making and implementation of the measures to be taken.50 Article 222 TFEU is applicable only when a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. According to the latter provision, ‘the Union and its Member States shall act jointly in a spirit of solidarity’ (and, in particular, the Union has the obligation to mobilise all the instruments at its disposal; the Member States have the duty to assist the Member State in crisis and coordinate between themselves). Article 122 TFEU provides appropriate measures if a Member State is in difficulties or is seriously threatened by a natural disaster or by exceptional occurrences beyond its control. The provision in question provides the possibility for the EU (through the Council and the Commission) to grant financial assistance to the Member State concerned.51 Article 78(3) TFEU provides for a solidarity mechanism in the case of a migratory emergency (that is, an exceptional, sudden inflow of third-country nationals). Again, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State concerned. In addition, Article 194 TFEU requires the Union to attain the objectives of the energy policy ‘in a spirit of solidarity between Member States’ (emphasis added). As we will see (Sect. 12.6.2), the latter provision has been interpreted by the CJEU, which drew from it the obligation for the EU institutions and the Member States to take into account each other’s interests.52 The solidarity clauses described above provide for concrete obligations for both the Union and the Member States (based on the text of the Treaties and/or as interpreted by the Court of Justice). What is more important is that the Union has a central coordinating role when activating these solidarity clauses in the different areas of EU law. What emerges from a comparison between the solidarity clauses sprinkled in the Treaties and the solidarity clauses present in the CFSP—that is to say, in Articles 24 and 42(7)—is that the latter have a purely intergovernmental dimension. As noted by Küçük, the solidarity envisaged under the provision of Article 42(7) is inter-governmental, while other solidarity clauses require both the Union and the 49

Article 51 of the UN Charter refers to an ‘armed attack’ occurring ‘against a Member of the United Nations’. According to the new definition of the crime of aggression contained in Article 8-bis of the Rome Statute of the International Criminal Court, ‘(…) “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations’ (emphasis added) (para 2). 50 See Cimiotta 2016, p. 166. 51 TFEU, Article 122(2). 52 OPAL I, para 77 and OPAL II, para 73.

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Member States to act jointly in solidarity (Article 222 TFEU) or that the EU institutions decide in a spirit of solidarity between Member States (Article 122 TFEU).53 As will be shown (see Sect. 12.5), the Article 24 solidarity clause only refers to inter-State solidarity and does not foresee any obligation for the EU institutions, being more political and anchored in the principle of ‘loyalty’ or loyal cooperation between Member States (and not between the EU institutions or between the latter and the Member States). It is worth noting that the case of the Eastern Mediterranean crisis does not fall under Article 42(7), nor under any of the other solidarity clauses in the Treaties. The decision to ‘resort’ to Article 24 TEU and to include the references to solidarity in the sanctioning measure adopted in response to the crisis seems an appropriate response. EU intervention in the form of sanctions, indeed, can be considered proportionate to the threat that Cyprus was facing.54 During the crisis, the Member States decided to centralise their actions at the EU level. First, they reached a common position in the framework of the European Council and, subsequently, they adopted a CFSP act within the Council of the EU, thus providing a quick and appropriate reaction through the organisation. It is important to stress that when the Member States intend to assume a position on their own behalf—and not within the Union—they do so by adopting a Decision of the representatives of their governments (for example, after or within the Union’s institutional meeting). What can be inferred from the case at hand is that the Member States wished to express solidarity directly within and through the Union and, subsequently, to use the said declaration as a basis for the adoption of the CFSP act.

12.5 An Analysis of the Member States’ Solidarity Obligations Under the CFSP: The Unclear ‘Contours’ of the Solidarity Principle Under Article 24 TEU It is now useful to point out what the Article 24 TEU ‘solidarity clause’ entails at the moment for the Member States. Solidarity is one of the principles guiding the EU in its external action.55 In turn, the CFSP is one of the areas in which the solidarity commitments among the Member States have been strengthened under the Lisbon

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Küçük 2016, p. 972. The consequent implementation of sanctions such as asset freezes or travel bans at the national level is clearly less burdensome for the EU Member States than the possibility of intervening with an armed contingent in response to a military attack. 55 Article 21(1) TEU clearly links the principles as applied in the internal context to external action. See Neframi 2011; Larik 2018; Wessel 2022. 54

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Treaty,56 the result being that the CFSP has a strong basis in the said principle.57 Indeed, the principle of mutual solidarity is mentioned three times in Article 24 TEU, which introduces the CFSP.58 As observed by Croci, the role played by the solidarity principle in the CFSP cannot be the same played in the context of energy policy, or in the case of a terrorist attack or natural calamity.59 Though its normative scope is ambiguous or undefined, CFSP solidarity holds special importance, because its primary function is to prevent the Member States from undermining the Union’s interests in general while pursuing their own.60 Its content is twofold: on the one hand, Member States must be proactive (support, comply, work together, enhance, develop); on the other, they must refrain from any action which is contrary to the interests of the Union. In particular, in addition to the obligations stemming from Article 42(7) of the TEU’s mutual-assistance clause, the Member States have, in the context of the CFSP: (1) the duty to support the Union’s external and security policy, to enhance and develop their mutual political solidarity and to refrain from any action which is contrary to the interests of the Union;61 (2) the duty—consequent to abstention—to refrain from any action likely to conflict with or impede Union action (and for the voting Member States, the duty to respect the position of the abstaining member;62 (3) the duty to consult each other within the European Council or the Council in order to determine a common approach and before ‘undertaking any action on the international scene or entering into any commitment which could affect the Union’s interests’.63 As it appears from the analysis of the Treaty obligations cited above, in the CFSP the emphasis is on inter-state solidarity; there are no indications of any specific instruments that the EU may adopt (see Sect. 12.4).64 Similarly, there are no implementing 56

Croci 2020, pp. 44–49 and Manzini 2017, p. 138. Solidarity among Member States first appeared in harmonised fields of EU law (the iron and steel sector, agriculture, fisheries, transport); in not fully harmonised fields of law, inter-state solidarity is often expressed through transnational cooperation between the Member States; see Domurath 2013. 57 Klamert 2014, p. 11. According to the latter author, the separate regime dedicated by the Treaties to the CFSP contains specific and differently worded provisions on loyalty but ‘displays a strong basis in the principle of solidarity’. Klamert observes that solidarity is the predominant concept in the CFSP by the number of references, but also that solidarity, by its ordinary meaning, is essentially a concept operating in the political dimension and reflects the distinct nature of the CFSP under the Lisbon Treaty (respectively, pp. 38, 36 and 39). 58 See its paras (2) and (3). 59 Croci 2020, p. 10. 60 Küçük 2016, p. 974. 61 TEU, Article 24(3). 62 TEU, Article 31(1). 63 TEU, Article 32. 64 As has been observed, ‘[e]mphasis also in the CFSP is more on the (horizontal) relations between the Member States themselves, and less on the (vertical) relationship between the Member States and the Union that Article 4(3) TEU mainly governs’ (Klamert 2014, p. 38); and, about the principle of cooperation, ‘(…) also in a CFSP context – Member States are not merely bound by the vertical cooperation principle, but also by the horizontal version, the moment the Institutions are used,

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decisions defining the use of the provision of Article 24 TEU (as, for instance, the one adopted with the aim of implementing Article 222 TFEU, which is Decision 2014/415/EU).65 Therefore, there are no obligations stemming from this provision for the EU: the Member States alone are under some duty, also when they ‘meet’ in the context of the EU institutions (see, for instance, the duty to consult each other within the European Council or the Council). Not even an examination of the literal construction of the provision of Article 24 TEU makes it possible to deduce a meaning of ‘solidarity’ that may give the principle some legal force. The provision has very generic wording, lacking real substance. Here, solidarity is mentioned twice as ‘mutual’ and ‘political’ and is linked once to the Member States’ duty of loyalty. As argued by Cremona, on the basis of the principle of mutual solidarity Member States owe obligations to each other as well as to the EU when operating collectively with the EU or when operating collectively where the EU cannot participate.66 The loyalty and solidarity principles are thus strictly associated in the CFSP: both principles form an integral part of the EU legal framework. Yet, only the former has a clear legal nature. The solidarity in the context of the CFSP can be considered as an expression of the principle of sincere cooperation between EU members: inter-state solidarity supports mutual trust and cooperation in various areas of EU law and is achieved through the concrete implementation of the duty of sincere cooperation.67 According to some legal scholars, reference to the concept of the ‘spirit’ of solidarity reinforces the interpretation that the obligation under Article 24 (2) TEU is an application of the duty of sincere cooperation.68 Even the ECJ recently recalled that the principles are closely linked.69 Both principles hint at the social bond between the Member States, which are oriented towards the pursuit of a common interest and aim at the realisation of the European integration project.70 Conversely, one main difference between them is the non-justiciability of the CFSP

even if just as a “meeting place”’ (Wessel 2022, p. 8). For more about the horizontal and vertical components of the solidarity principle, or about its internal and external dimensions, see Czuczai 2017. In the CFSP, which has an inter-governmental dimension, solidarity comes more into play in relations between Member States and less in its welfare dimension. Solidarieté-lien between Member States is a cornerstone of CFSP conduct. About the categories of solidarieté-assistance and solidarieté-lien, see Neframi 2011, p. 139 onwards and Croci 2020, p. 71 onwards. 65 Council Decision 2014/415/EU of 24 June 2014 on the arrangements for the implementation by the Union of the solidarity clause, OJ L 192/53. As stated in the Preamble at Recital no. (1), the Decision concerns the implementation by the Union of Article 222 TFEU, and not by Member States, which – according to Declaration (No 37) on Article 222 TFEU – are free to choose the most appropriate means to comply with their own solidarity obligation towards another Member State. 66 Cremona 2016, p. 53 (see the section dedicated to ‘Relational principles’, Member State-Member State). 67 It is necessary to stress that, in its case law, the CJEU has, in general, not used solidarity in connection with Article 4(3) TEU and its precursors. 68 Casolari 2020, p. 70; Klamert 2014, p. 35 onwards. 69 See OPAL II, para 41. 70 Casolari 2020, pp. 61–62.

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‘duty’ of solidarity (that is to say, there are no sanctions or remedies in response to its violation).71 In the following section, the author will investigate whether and under what circumstances solidarity under Article 24 TEU may be applied to safeguard the interest of one EU member when a third State undermines its sovereignty or sovereign rights. It is submitted that it would be appropriate for the EU to play a role in the application of this particular solidarity clause, as it has in the application of others.

12.6 The Strengthening of the Principle of Solidarity Under Article 24 TEU The previous section concluded that Article 24 TEU does not impose any legally binding obligation on the EU. The question now arises whether a broader interpretation of the CFSP solidarity principle is possible whereby it imposes on the EU the adoption of restrictive measures when a Member State suffers from breaches of international law by a third State not covered by the scope of application of Article 42(7) TEU. The present section will take into account the circumstances that would prevent (or make more difficult) the envisaged wider interpretation of Article 24: first, the intergovernmental nature of the CFSP and the coexistence of different national foreign policy interests; second, the lack of jurisdiction of the CJEU, which prevents it from strengthening the principle in this area of EU law (as it did in the migration and energy policy fields with, respectively, Joined Cases C-643/15 and C-647/15 and OPAL I and II).72

12.6.1 The Intergovernmental Nature of the CFSP and the Difficulty of Triggering a ‘Duty to Adopt Sanctions’ from the Article 24 TEU Solidarity Principle Even if the CFSP is grounded on the solidarity principle,73 the Member States retain important powers to safeguard their national prerogatives.74 This is because foreign 71

For the application of the duty of loyalty in the framework of EU external action, see Neframi 2010; Casolari 2015 and 2020, p. 221. 72 CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union, Judgment, 6 September 2017, ECLI:EU:C:2017:631. 73 See TEU, Articles 24(2) and (3), 31(1), second paragraph, 32(1). 74 Klamert 2014, p. 39. The author underlines that this area has remained largely intergovernmental, continues to be governed by specific rules and procedures, provides for little participation of the Parliament, mostly foresees unanimity voting, and the Court of Justice does not have (direct) jurisdiction to hear cases on the CFSP.

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policy matters are usually very sensitive and related to the exercise of sovereign rights. For this reason, with the 2008 Declaration No. 13 concerning the CFSP, the Conference of Member States specified very clearly that the CFSP provisions ‘do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy’ and ‘do not prejudice the specific character of the security and defence policy of the Member States’.75 While addressing the issue of solidarity, and emphasising ‘the importance of solidarity as a founding and existential value of the Union’,76 AG Bot acknowledged the de facto inequality of Member States, due to their different geographical situation and vulnerability.77 This is evident, for instance, in the energy sector, which saw Poland and Germany opposed in the OPAL dispute and, more recently, in the Nord Stream 2 affair.78 In the field of energy, the concept of solidarity is especially related to the process of integration between Member States.79 Indeed, given the growing interconnection of the EU markets and infrastructures, it is increasingly important that crucial national decisions, having a potential impact on other Member States, be taken with due regards to the consequences they might have on the economy and national security of the latter. In such cases, the general interest of the EU (in the security of energy supply) may prevail over the national interests of some of its members. Similarly, a broader application of the solidarity principle in the context of EU foreign policy may not only be of aid for certain vulnerable Members States, but could also boost the general interest of the EU in ensuring respect of international law in its neighbourhood, and in projecting a compact picture of itself to the outside world. However, if it was for the Union to adopt sanctions in the application of the Article 24 TEU solidarity principle and, consequently, for the Member States to implement the adopted measures at the national level, there would certainly be some constraint on the latter’s freedom of shaping their national foreign policy. Indeed, some Member States have interests which are profoundly different from others.80 In the case examined in the present chapter, there was the need to balance the following interests: those of the EU (to reach a peaceful settlement of the dispute, but also to adopt an assertive position towards Turkey without undermining the good neighbourly relations with the said country); those of the Member States involved (to safeguard their maritime rights and their territorial sovereignty against external interference); those 75

Declarations annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, OJ C 115/335, p. 343. 76 CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union, Opinion of Advocate General Bot, 26 July 2017, ECLI:EU:C:2017:618, para 18. 77 Ibid., para 22. 78 In this case, Poland strongly opposes the completion and operativity of Nord Stream 2, a new pipeline connecting Russia to Germany and bypassing Ukraine and some Eastern members of the EU, among which Poland itself. 79 OPAL I, para 73. The interdependence of Member States in the natural gas sector (physical integration of gas systems and harmonisation of gas market rules) justifies the link between the concepts of solidarity and security in the energy policy field. 80 See, for instance, the differences between Eastern and Western European States.

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of the other Member States external to the crisis (which may be not interested at all in intervening). In the Eastern Mediterranean Sea dispute, the positions of EU Members such as Greece, Cyprus and Italy are quite different from each other. For instance, Italy has not concluded any delimitation agreement of its EEZ with opposite States, and it has not taken a clear position in the dispute either: on the one hand, Italy has an interest in sustaining the position of Greece (with regards to the right of islands to generate maritime zones) and, on the other, to counter the assertiveness of the said State (in order to avoid being excluded from the definition of the EEZ in the future).81 For the reasons outlined above, the EU can perhaps be expected, but not obliged, to adopt a CFSP act for the sake of solidarity towards one of its members. Indeed, some Member States may be well in favour of the adoption of a declaration of solidarity within the EU institutions but may not be willing to internally implement sanctions against one third State. This may be due to the fact that they have strong interests in maintaining good relations with the supposedly targeted country. In such cases, a Member State could at least be expected to rely on the constructive abstention under Article 31(1) TEU, so as not to hinder the Union’s action in such critical cases involving one of its members. Besides, the decision of abstaining from the vote would still involve a process of ‘taking into account’ the interest of the other EU members and of the Union.

12.6.2 The Limited Jurisdiction of the CJEU in the CFSP and the Non-justiciability of the Article 24 TEU Solidarity Principle The importance of solidarity in primary law as a value and objective in the process of European integration is such that it may be regarded as significant enough to create legal consequences.82 In its opinion expressed in Case OPAL II, AG Campos Sánchez-Bordona observed that, where the Treaties have sought to emphasise the purely political component of solidarity, they have done so expressly.83 The AG was specifically referring to solidarity in the CFSP. Indeed, in Article 24(2) we find solidarity invoked next to the words ‘mutual’ and ‘political’; in addition, neither the expression used by Article 24(3) TEU (‘in a spirit of loyalty and mutual solidarity’) 81

See the intervention of Sara Poli (2021) at the webinar organised by the Naval Academy of Livorno, ‘Italia paese marittimo: sfide e opportunità’ [Italy as a maritime country: challenges and opportunities]. https://www.unipi.it/index.php/unipieventi/event/5616-italia-paese-marittimosfide-e-opportunita. Accessed 21 December 2021. 82 CJEU, Case C-848/19 P Germany v Poland (OPAL II), Opinion of Advocate General Campos Sánchez-Bordona, 18 March 2021, ECLI:EU:C:2021:218, para 70. 83 Ibid., para 97. While the AG is of the opinion that the principle of energy solidarity produces effects which are not merely political but legal, he refers to the provision on the CFSP to make an example of a ‘purely political component of solidarity’.

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seems helpful in the construction of a legal concept (see Sect. 12.5). The said specifications of the principle reflect the intergovernmental nature of this particular field of EU law. Since the principle of solidarity does not have the status of a legal principle in the CFSP field, it seems to hold a ‘purely symbolic value with no prescriptive force’.84 In selective areas of EU law, such as immigration and energy policy, the CJEU seems to have established that the principle of solidarity between Member States can be a source of EU obligations capable of judicial enforcement.85 Recently, the EU General Court considered energy solidarity as a specific expression of the general principle of solidarity, underpinning the whole system of the Union.86 This led to the annulment of an act of secondary law, precisely for the Commission having violated this principle. The energy solidarity principle thus translated from a principle of uncertain substance into an obligation for the EU institutions and Member States ‘to take into account (...) the interests of both the European Union and the various member states and to balance those interests where there is a conflict’.87 In July 2021, the EU Court of Justice confirmed the latter finding on appeal.88 The OPAL saga builds on the acknowledgement that solidarity is ‘at the basis of the whole Union system’.89 And, as observed by Boute, this will have important formal implications for the decision-making process in the EU energy sector and for the other fields that are bound by a solidarity requirement—i.e., asylum, immigration and external border controls, and also external and security policy.90 Indeed, in the interests of consistency, if the Court was able to recognise the normative value of the principle of solidarity for the inference of certain consequences in some areas of EU law (e.g., in the field of migration and asylum policy), the same should be foreseeable concerning the principle of solidarity in other fields. As Obradovic underlines while commenting on Joined Cases C-643 and C-647/15, ‘because the [concerned EU act] represents a concrete expression of the principle of solidarity, it is capable of imposing the legal obligation of solidarity’ (emphasis added).91 The latter assumption may be true in that domain of EU law (i.e., migration policy), but perhaps it can be applied also in other fields. However, at the moment, the possibility of an ‘upgrade’ of the Article 24 TEU solidarity principle ‘into a valid, legally binding obligation through the process of the adoption of concrete measures’92 appears still remote. 84

Ibid. OPAL and OPAL II and CJEU, Joined Cases C-643/15 and C-647/15 Slovak Republic and Hungary v Council of the European Union, Judgment, 6 September 2017, ECLI:EU:C:2017:631; see also Obradovic 2017. 86 OPAL I, para 69. 87 Ibid., para 77. 88 OPAL II. 89 OPAL I, para 69 and OPAL II, paras 38 and 41. 90 Boute 2020, p. 907. 91 Obradovic 2017. 92 Ibid. 85

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Indeed, the jurisdiction of the CJEU in the CFSP field is limited with the sole exceptions listed in Article 24(1), second paragraph, TEU, which allows the CJEU to monitor compliance with Article 40 TEU and to review the legality of certain decisions as provided for by Article 275, second paragraph, TFEU. For this reason, it is difficult to imagine a context where the Court is given the occasion to elevate the status of the Article 24 TEU solidarity principle, making it legally enforceable in the future.

12.7 Concluding Remarks In conclusion, on the one hand it has to be acknowledged that two EU institutions (the European Council and the Council of the EU) acted in solidarity with one Member State. In this respect, the references to solidarity in Decision (CFSP) 2019/1894 may be considered not only as a signal of inter-Member State solidarity, but also as an indication of a reinforced position of the Union as coordinator of Member States’ action during an international crisis involving some of the Member States, even when measures under the CFSP umbrella are required. On the other hand, through this chapter we have shown how the Article 24 TEU solidarity principle does not provide for obligations on the part of the Union and is still to be considered as being of a political nature. It has been argued that the Council is gradually giving relevance to the principle of solidarity through the practice of the adoption of CFSP-based acts. It is desirable for the EU to take a stand when one of its members is the target of a (minor) breach of international law rules which entails, for example, the violation of its territorial sovereignty or sovereign rights in its maritime zones. It has been submitted in the present chapter that it would be appropriate for the EU to provide more cohesive and assertive action in these situations. Although it is not possible to interpret the principle of solidarity in the context of the CFSP as implying the obligation to adopt an EU position, the organisation could still choose to adopt a (non-binding) act defining the arrangements for the implementation by the Union of the solidarity clause of Article 24 TEU. In this act, an obligation to discuss within the EU the adoption of a common position could be envisaged. For instance, coordination within the European Council could be foreseen. One example of measures to be taken (in the case of Turkey) would be the suspension of accession funds. This mechanism could also be used to adopt a common position if Member States’ diplomats are expelled by third countries (i.e., the expulsion of Czech diplomats by Russia; see Sect. 12.3). In such cases, more than ever, the adoption of a common position at the EU level would appear as a cohesive and appropriate response. As part of its reaction to Russia’s invasion of Ukraine, the EU adopted several packages of restrictive measures.93 In the context of this war, solidarity was not expressly mentioned by the EU in the text of the CFSP acts, but was invoked by the 93

See Poli 2022.

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organisation with regards to the State victim of the aggression and towards its citizens in other secondary acts.94 Solidarity between Member States was also invoked by the Union because of the impact war-related migration is having on them.95 In this occasion, the Commission was able to draw the attention on the role of the EU, redirecting inter-state solidarity towards a common response and reaffirming the Union’s position as coordinator of the efforts of its members. For instance, the Commission affirmed that the EU ‘will ensure that Member States receive the support they need’ in response to the challenge they are facing due to the arrival of so many fleeing war with unprecedented speed.96 In a similar vein, a ‘Solidarity Platform’ was set up by the Commission with a view to coordinating the operational response of Member States and to facilitating the mobilisation of relevant EU instruments.97 European solidarity was defined as ‘inspirational’ and as ‘keystone for the EU’.98 In conclusion, although these developments did not give the EU the opportunity to resort to the solidarity clause in the field of the CFSP, the war context sparked a broad application of the principle of solidarity. Indeed, the need for solidarity arising from a ‘foreign

94

See for example European Commission (2022) Communication from the Commission to The European Parliament, the European Council, the Council, The European Economic and Social Committee and the Committee of the Regions, European solidarity with refugees and those fleeing war in Ukraine, Strasbourg, COM(2022) 107 final; European Commission (2022) Communication from the Commission on Operational guidelines for the implementation of Council implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection (2022/C 126 I/01), OJ C 126 I/1; European Commission (2022) Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, Welcoming those fleeing war in Ukraine: Readying Europe to meet the needs, Brussels, COM(2022) 131 final; Commission Recommendation (EU) 2022/554 of 5 April 2022 on the recognition of qualifications for people fleeing Russia’s invasion of Ukraine, OJ L 107 I/1. It needs to be stressed that a solidarity reference is present in Council Decision (CFSP) 2021/509 of 22 March 2021 establishing a European Peace Facility [EPF], and repealing Decision (CFSP) 2015/528, OJ L 102/14 (Recital n. 24). The EPF was recently used by the EU to finance the supply of lethal weapons and protective equipment to Ukraine and to provide support to the Ukrainian Armed Forces. The latter Recital mentions Article 31(1) TEU, which provides that, in a spirit of mutual solidarity, the Member State eventually abstaining from a concerted EU action is to refrain from any action likely to conflict with or impede Union action. 95 See, for example, European Commission, 8.3.2022 COM(2022) 107 final, pp. 7–8. 96 European Commission, 23.3.2022 COM(2022) 131 final, p. 12. 97 Instruments such as EU humanitarian aid, EU Civil Protection Mechanism, Temporary protection mechanism, Macro-financial assistance and budget support. See European Commission (2022) Communication from the Commission on Operational guidelines for the implementation of Council implementing Decision 2022/382 establishing the existence of a mass influx of displaced persons from Ukraine within the meaning of Article 5 of Directive 2001/55/EC, and having the effect of introducing temporary protection, OJ C 126 I/01 pp. 1–2 and European Commission (2022) EU assistance to Ukraine. https://ec.europa.eu/info/strategy/priorities-2019-2024/stronger-europeworld/eu-solidarity-ukraine/eu-assistance-ukraine_en. Accessed 12 May 2022. 98 European Commission, 8.3.2022 COM(2022) 107 final, p. 2.

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policy’ situation triggered Member States’ solidarity in non-foreign policy areas (for example, within the migration or the energy field).99

References Biondi A, Dagilyt˙e E, Küçük E (2018) Solidarity in EU law: Legal principle in the making. Edward Elgar Publishing, Cheltenham/Northampton Blanquet M (2009) L’Unione Européenne en tant que système de solidarité: la notion de solidarité européenne [The European Union as a system of solidarity: the notion of European solidarity]. In: Hecquard-Théron M (ed) Solidarité(s). Perspectives juridiques. Université Toulouse 1 Capitole, Toulouse, pp 155–195 Boute A (2020) The principle of solidarity and the geopolitics of energy: Poland v. Commission (OPAL pipeline). CML Review 57(3):889–914 Boutayeb C (2011) La solidarité dans l’Union européenne - éléments constitutionnels et matériels [Solidarity in the European Union: constitutional and material elements]. Dalloz, Paris, pp 137– 154 Casolari F (2015) The principle of loyal cooperation: a ‘master key’ for EU external representation? In: Besson S, Levrat N (eds) L’Union Européenne et le droit international – The European Union and international law. Issy-les-Moulineaux: LGDJ-Lextenso éditions, Paris/Geneva, pp 91–125 Casolari F (2020) Leale cooperazione tra Stati Membri e Unione Europea – Studio sulla partecipazione all’Unione al tempo delle crisi [Loyal cooperation between Member States and the European Union: study on participation in the Union in times of crisis]. Editoriale Scientifica, Naples Churchill R R, Lowe A (1999) The Law of the Sea. Manchester University Press, Manchester Cimiotta E (2016) Le implicazioni del primo ricorso alla c.d. ‘clausola di mutua assistenza’ del Trattato sull’Unione europea [The implications of the first resort to the so-called ‘mutual assistance clause’ of the Treaty on European Union], European Forum 1(1):163–175 Cremona M (2016) Structural principles and their role in EU external relations law. Current Legal Problems 69(1):35–66 Cremonini R M (2006) Il principio di solidarietà nell’ordinamento europeo. In: Mangiameli S (ed) L’ordinamento europeo. 1. I principi dell’Unione. Giuffrè, Milan, pp 435–477 Croci F (2020) Solidarietà tra Stati Membri dell’Unione Europea e governance economica europea [Solidarity between EU Member States and European Economic Governance]. Giappichelli, Turin

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See, for example, Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions - REPowerEU: Joint European Action for more affordable, secure and sustainable energy of 8.3.2022, COM(2022) 108 final, where (p. 4) the Commission illustrates the EU gas storage policy, aimed at “preparing for next winter by ensuring sufficient gas storage” and reminds Member States of the need to conclude ‘solidarity arrangements’ under the Regulation (EU) 2017/1938 of the European Parliament and of the Council of 25 October 2017 concerning measures to safeguard the security of gas supply and repealing Regulation (EU) No 994/2010, OJ L 280, 28.10.2017, pp. 1–56. See also the Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2017/1938 of the European Parliament and of the Council concerning measures to safeguard the security of gas supply and Regulation (EC) n°715/2009 of the European Parliament and of the Council on conditions for access to natural gas transmission networks of 23.3.2022, COM(2022) 135 final, 2022/0090 (COD), published by the Commission following Russia’s invasion of Ukraine.

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Czuczai J (2017) The principle of solidarity in the EU legal order: some practical examples after Lisbon. In: Czuczai J, Naert F (eds) The EU as a global actor: bridging legal theory and practice. Brill - Nijhoff, Leiden, pp 145–165 Domurath I (2013) The three dimensions of solidarity in the EU legal order: limits of the judicial and legal approach. Journal of European Integration 35(4):459–475 European Council (2018) Conclusions of 22 March 2018. https://data.consilium.europa.eu/doc/doc ument/ST-1-2018-INIT/en/pdf. Accessed 19 September 2022 European Council (2019) Conclusions of 20 June 2019. https://data.consilium.europa.eu/doc/doc ument/ST-9-2019-INIT/en/pdf . Accessed 19 September 2022 Gürel A, Mullen F, Tzimitras H (2013) The Cyprus hydrocarbons issue: context, positions and future scenarios. PRIO Cyprus Centre, PCC Report No. 1. https://files.prio.org/publication_files/ Cyprus/Report%202013-1%20Hydrocarbons.pdf. Accessed 21 December 2021 Hilpold P (2015) Understanding solidarity within EU law: an analysis of the ‘islands of solidarity’ with particular regard to Monetary Union. Yearbook of European Law 34(1):257–285 Klamert M (2014) The principle of loyalty in EU law. Oxford University Press, Oxford Koutrakos P (2013) The EU Common Security and Defence Policy. Oxford University Press, Oxford Küçük E (2016) Solidarity in EU law: an elusive political statement or a legal principle with substance? Maastricht Journal of European and Comparative Law 23(6):965–983 Larik J (2018) Pars Pro Toto: The Member States’ obligations of sincere cooperation, solidarity and unity. In: Cremona M (ed) Structural principles in EU external relations law. Bloomsbury Publishing, Oxford, pp 175–199 Manzini P (2017) La solidarietà tra Stati Membri dell’Unione Europea: un panorama “costituzionale” [Solidarity between Member States of the European Union: a “constitutional” overview]. In: Manderieux L, Vellano M (eds) Étique globale, bonne governance et droit international économique [Global ethics, good governance and international economic law]. Giappichelli, Turin, pp 137–153 Mengozzi P (2020) Note sul principio di solidarietà nel diritto comunitario [Notes on the principle of solidarity in Community law]. Rivista DUE 1:99–126 Neframi E (2010) The duty of loyalty: rethinking its scope through its application in the field of EU external relations. Common Market Law Review 47(2):323–359 Neframi E (2011) La solidarité et les objectifs d’action extérieure de l’Union européenne [Solidarity and the European Union’s external action objectives]. In: Boutayeb C (ed) La solidarité dans l’Union européenne - éléments constitutionnels et matériels [Solidarity in the European Union constitutional and material elements]. Dalloz, Paris, pp 137–154 Obradovic D (2017) Cases C-643 and C-647/15: enforcing solidarity in EU migration policy. European Law Blog. https://europeanlawblog.eu/2017/10/02/cases-c-643-and-c-64715-enforcing-sol idarity-in-eu-migration-policy/. Accessed 21 December 2021 Pineschi L, Treves T (1996) The Law of the Sea: The European Union and its Member States. Martinus Nijhoff, Leiden Poli S (2016) L’Unione europea e le misure restrittive individuali a carattere economico: tendenze evolutive del quadro normativo e giurisprudenziale [The European Union and individual economic restrictive measures: evolving trends in the legal and case-law framework]. Studi sull’integrazione europea 2–3:475–508 Poli S (2022) La portata e i limiti delle misure restrittive dell’unione europea nel conflitto tra Russia e Ucraina [The scope and limits of EU restrictive measures in the Russia-Ukraine conflict]. SIDIBlog. http://www.sidiblog.org/2022/03/22/la-portata-e-i-limiti-delle-misure-restri ttive-dellunione-europea-nel-conflitto-tra-russia-e-ucraina/. Accessed 5 May 2022 Poli S, Pau A (2020) La reazione dell’Unione europea di fronte alla crisi del Mediterraneo orientale: tra misure restrittive e la proposizione di ‘un’agenda politica positiva’ alla Turchia [The European Union’s reaction to the crisis in the eastern Mediterranean: between restrictive measures and the proposal of ‘a positive political agenda’ to Turkey]. European Papers 5(3):1511–1530 Scovazzi T (2002) Elementi di diritto internazionale del mare [Elements of International Law of the Sea]. Giuffré, Milan

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UN General Assembly (2020) Letter dated 20 January 2020 from the Permanent Representative of Cyprus to the United Nations addressed to the Secretary-General, UN Doc A/74/660–S/2020/50 Van Dyke J M (2005) An analysis of the Aegean disputes under International Law. Ocean Development and International Law 36(1):63–117. Wessel R A (2022) General principles in EU Common Foreign and Security Policy. In: Morena-Lax V, Neuvonen P, Ziegler K (eds) Research Handbook on General Principles of EU Law. Edward Elgar Publishing

Anna Pau, PhD candidate at the University of Pisa, Law Department, Pisa, Italy.

Chapter 13

The Many Faces of Solidarity and Its Role in the Jurisprudence of the Area of Freedom, Security and Justice Alina Carrozzini and Luigi Lonardo

Contents 13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 The Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3 Solidarity as an Aspirational Value . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 Solidarity as a Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5 Solidarity as a Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.6 Conclusion. Solidarity: Clé de Voûte de la Construction Européenne? . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The question moving the inquiry of this chapter is the following: how is solidarity used in the case law of the Court of Justice of the European Union in the Area of Freedom Security and Justice? Section 13.2 presents a legal-theoretical discussion aimed at ascertaining what exactly is meant by a ‘face of solidarity’, that is, what could the ‘legal nature’ of the concept be. Building upon these theoretical foundations, the chapter zooms in on the case law in the Area of Freedom Security and Justice since the entry into force of the Lisbon Treaty. Sections 13.3, 13.4 and 13.5 consider solidarity as a value, as a principle, and as a rule, detailing the applicable case law. Speaking of solidarity as a ‘value’ means that it transcends specific doctrinal domains such as migration law, labour law, human rights etc., and it offers instead a standard of behaviour to strive for and on the basis of which to adopt or interpret other rules. Solidarity is also a principle in the sense that it guides the application or interpretation of other rules, and in this sense, it is akin to a value (the differentiation is defended in the next section). Finally, solidarity is a rule insofar as it provides the solution to a legal controversy in a specific instance, by creating an obligation for the EU legislator or for the Member States.

A. Carrozzini (B) King’s College London, London, United Kingdom e-mail: [email protected] L. Lonardo University College Cork, Cork, Ireland © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_13

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Keywords European Union law · Area of Freedom, Security and Justice · Solidarity · Migration · Court of Justice of the European Union · Legal theory

13.1 Introduction Solidarity is a concept that transmigrated, around the time of the French Revolution, from legal jargon into political speech,1 and from there back again into the legal text of the EU fundamental Treaties.2 In its political sense, solidarity describes a desirable attitude or behaviour, and as an idea it acquired political power in the 19th century, when it ‘became the skeleton-key to all social problems’.3 In many European languages, it refers to the common feeling or action in support of a common interest, or to mutual support within a group.4 It is probably in this sense that it was used by Schuman in his famous declaration of 1950, where he said ‘L’Europe ne se fera pas d’un coup, ni dans une construction d’ensemble: elle se fera par des réalisations concrètes créant d’abord une solidarité de fait’.5 On that occasion, he also spoke of ‘solidarité de production’ (between France and Germany), which is closer to a state of community than to a behaviour, but in any case expresses the (political) idea of interconnection and mutual relation. In the second, legal sense, the word solidarity appears no fewer than 13 times in the Treaty on the Functioning of the European Union (TFEU), and 11 in the Treaty on the European Union (TEU). To solidarity is also dedicated Title IV of the EU Charter of Fundamental Rights (concerning labour rights, family rights, and consumer rights). In its various transmigrations, in its centenary history, in its service to as different masters as Leninists and Catholics, the concept has inevitably been diluted, as if being tossed around discoloured its meaning. The result is that solidarity is a vague notion, one of many in which a purely semantic, essentialist analysis yields as many results

1

Stjernø 2009, p. 27 and work there cited. The part of the Schuman declaration of 9 May 1950 mentioning solidarity, on which more below, was almost verbatim transposed in the preamble of the 1951 Treaty instituting the European Coal and Steel Community. Solidarity between Member States was then inserted in the Treaty on the European Community (Article 2) as modified in 1992 by the (Maastricht) Treaty on the European Union (Article G.2). 3 Hayward 1959, pp. 261, 263. 4 “Solidarity” (2022) Oxford Dictionary. https://www.oxfordlearnersdictionaries.com/defini tion/english/solidarity#:~:text=%2F%CB%8Cs%C9%92l%C9%AA%CB%88d%C3%A6r%C9% 99ti%2F,%2C%20opinions%2C%20aims%2C%20etc. Accessed 5 October 2022. 5 “Europe will not be made all at once, or according to a single, general plan. It will be built through concrete achievements, which first create a de facto solidarity”. 2

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as there are observers:6 ‘only something that has no history can be defined’.7 The fact that solidarity carries many meanings is also clear through a cursory glance at the EU Treaties: solidarity appears in such different contexts8 that one sole meaning is impossible to find. Our approach is consequentialist rather than essentialist: we do not seek to uncover the ‘real’ meaning of solidarity, its ‘correct’ legal interpretation, but only its concrete manifestations. The question moving the inquiry of this chapter is thus the following: how is solidarity used in the case law of the Court of Justice of the European Union (herein, ‘the Court’) in the Area of Freedom, Security and Justice (AFSJ)? The analysis starts with a jurisprudential (in the sense of philosophical, legal-theoretical) inquiry, as this perspective may prove helpful in suggesting a theoretical (legal) framework to structure the answer. It will need to be ascertained, in fact, what is meant precisely by the expression a ‘face of solidarity’, that is, what could be the ‘legal nature’ of a concept. Thus, Sect. 13.2 is of general and abstract nature, and it is independent, so to speak, from the concrete object of the chapter. It provides instead the necessary theoretical background which will inform and, it is hoped, sharpen and validate the rest of the chapter. Building upon these theoretical foundations, the chapter zooms in on an area of particular practical relevance, the AFSJ. Sections 13.3, 13.4 and 13.5 consider solidarity as a value, as principle, and as rule, detailing the applicable case law. The analysis is done with regard to all judgments in the AFSJ mentioning the word ‘solidarity’ since the entry of force of the Lisbon Treaty in 2009.9 Of these, only 16 judgments mention or discuss solidarity in a meaningful way. Ultimately, this chapter attests that solidarity is used as a value, a principle, and a rule, without it being possible to determine à priori when it will be used as what. Speaking of solidarity as a ‘value’ means that it transcends specific doctrinal domains such as migration law, labour law, human rights etc., and it offers instead a standard of behaviour to strive for and on the basis of which to adopt or interpret other rules. Solidarity is also a principle in the sense that it guides the application or interpretation of other rules, and in this sense, it is akin to a value (the differentiation is defended in the next section). Finally, solidarity is a rule in so far as it provides the solution to a legal controversy in a specific instance, by creating an obligation for the EU legislator or for the Member States. This chapter thus contributes both to the 6

Elster 2020, p. 591: ‘Definitions can never be true or false [...]. Those who write about populism, capitalism, democracy and other complex social phenomena sometimes give the impression that one can send out a kind of conceptual probe to discover their ‘true meaning’, just as one can send out a space ship to show us the hidden face of the moon. One writer may, for instance, criticize another for having ‘misunderstood’ populism. Such essentialist practices are common but meaningless. Everyone is entitled to their own definition, provided they stick to it consistently and, for ease of communication, do not deviate too much from common usage’. 7 Nietzsche 1887/2017, paras 13, 55: ‘Definierbar ist nur das, was keine Geschichte hat’. 8 Solidarity between employer and employees (Title IV of the Charter); between Member States if difficulties arise in the area of energy supply (Article 122 TFEU); between the Union and the Member States in case of a terrorist attack or of a natural or man-made disaster (Article 222 TFEU), etc. 9 The total number being 39 at the time of writing.

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literature on the Area of Freedom, Security, and Justice, as well as on the growing literature on the legal values of EU constitutional commitments. Many authors have stressed that EU constitutional objectives and values are (binding) legal standards for the EU’s conduct, both in its internal10 action as well as its external one.11 Reference is typically made to Article 2 TEU, Article 3(5) TEU as well as to Article 21(1) TEU, but we show that solidarity can also be added to this list.

13.2 The Theory We begin from the proposition that solidarity (as many other concepts) operates within a spectrum of bindingness. The volume of its normativity varies: louder in certain cases when it leads to the annulment of EU law; more silent in other instances, when it is merely invoked as an aspirational value. But it is not the aim of this chapter to explain the variance in normativity, so to speak. That is a law-in-context enquiry, which may build upon, but is rather distinct from, the one attempted by this chapter. While our chapter is not primarily concerned with seeking ‘to identify the ideational and zeitgeisty elements of case law’12 (as other scholars instead are), we do recognise that that element is essential to a correct understanding of our analysis. Still, the discussion of that ‘ideational element’ shall be limited to the conclusion.13 This chapter’s approach—and in particular this section’s—is more abstract and has an aspiration for generality. What this section says about solidarity, we believe, could be said about many other concepts in (EU) law. What are, then, the ‘faces’ of solidarity—and what is exactly a ‘face’, in this context? What are the possible legal ‘strengths’ of a legal concept? What does it mean, in other words, to say that the normative value of a concept or of a provision varies? It is a well-established and non-controversial philosophical position that systems, including those based on words such as the law, can carry normative strength.14 Particular attention has been dedicated, in philosophical and jurisprudential work, to the normativity of words. Reference shall be had for example to Austin’s theory of speech act, according to which certain words not only present information, but perform an act. Many legal texts share this characteristic (of commanding, of ordering something), even though the way they do things (their normative power) varies. Quite 10

Scheppele et al. 2020. Kassoti and Wessel forthcoming; Sommermann 2013, p. 160; Cannizzaro 2021. 12 Schiek 2020, p. 4. 13 In technical jurisprudential terms, our analysis is not rigidly anchored to legal positivism, as we believe that some concepts, which some would call “non-legal concepts”, are relevant to our understanding of “legal concepts”. The terms are in inverted commas because their distinction obscures more than it reveals. 14 For a history of this concept in relation to law and morality, see “Norma” (2012) Dizionario di Filosofia Treccani. https://www.treccani.it/enciclopedia/norma_%28Dizionario-di-filosofia% 29/#:~:text=Nell’uso%20linguistico%20corrente%2C%20regola,n.%20o%20regola%20tecnica. Accessed 5 October 2022 (ad vocem). 11

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how much they can do—how much words influence behaviour—is an open question. Even within a legal system, the strength of normativity varies on a continuum. Within a given (legal) system, the cogency of a rule may differ from that of other rules. The difference may be one of hierarchy,15 or of some other kind. Let us consider in more detail the difference ‘of some other kind’. A legal system is not all equally binding. In a first sense, this is obvious and was also noted by Kelsen and Hart in their seminal contributions on the definition of law: certain rules are conditional, or permissive, rather than peremptory.16 In a less obvious sense, there are shades of normativity even for orders or commands—and this is what our article seeks to explore. Law, as expressed by Baxter in a famous article quoting a beautiful phrase by Shakespeare, comes in ‘her infinite variety’.17 Classic works of legal theory help by suggesting at least a distinction between values (or principles) and rules. Reference shall be had to the seminal work of Dworkin and MacCormick. Despite the fact that they are highly influential authors, to the best of our knowledge their distinction is not routinely adopted, at least in these explicit terms, in EU legal scholarship.18 Another source of inspiration could be the literature on the phenomenon of ‘soft law’ in the EU. However, the inquiry in that context is slightly different than ours, as that is oriented to understanding what produces legal effects and when, rather than classifying, in an abstract manner, what kind of legal effects exist.19 For this reason, in our opinion studies on soft law have not yet provided a conclusive theoretical standpoint from which to analyse this specific issue of strength of normativity.20 Building on speech act theory, Wessel21 proposed various examples, in European Union law, of the categories of legal ‘speech’ identified by Ruiter.22 These are declarative legal acts; self-obligating (or ‘commissive’) legal acts; purposive legal acts; imperative legal acts; hortatory legal acts; expressive legal acts and assertive legal acts. This categorisation by Ruiter (as applied by Wessel to EU law) is mentioned here as one example of possible taxonomies of legal acts, even though in that example the focus was not the normative ‘weight’ of each act. Dworkin posits that rules (such as those found in a statute) providing rights and obligations can in fact be complemented, in a decision-making process, by other ‘standards’ governing their operation and application. What are these other standards? Dworkin distinguishes between policies and principles. A policy is the standard ‘that sets out a goal to be reached, generally an improvement in some economic, political, or social features of the community’.23 A principle is ‘a standard that is to 15

Kelsen 1934, p. 267. Kelsen 1979. 17 Baxter 1980, p. 549. 18 But for the distinction between principles and rules in EU law, see Tridimas 2007, drawing on Dworkin 1977. 19 Eliantonio et al. 2021. 20 Türk and Xanthoulis 2019, note 14. 21 Wessel 2016, p. 16. 22 See Ruiter 1993. 23 Dworkin 1977, p. 22. 16

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be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality’.24 The distinction between specific rules and principles also appears very clearly in Hart’s later works, such as Punishment and Responsibility,25 in which the Oxford philosopher considers that rules of criminal law are subject to (more general) principles, and asks whether, in turn, these principles reflect a moral tradition (a conjecture he rejects, and here lies an important difference with Dworkin). MacCormick usefully describes the opposition between values and rules as a difference in specificity and extension (‘unlike rules, whose operative facts delineate specific circumstances of application, values are pervasive [...] These are norms that bear on decision-making in almost any circumstance, so there is no point in singling out particular circumstances of application. They are what we commonly call ‘principles’, or indeed ‘general principles’26 ). Other authors have provided very helpful taxonomies of the principle of solidarity. For example, Domurath identified three dimensions of the principle: solidarity between Member States, between Member States and individuals, and between generations.27 Thym and Tsourdi distinguished four dimensions of solidarity in the EU context: ‘transnational solidarity, inter-state solidarity, solidarity between a particular group of individuals and, finally, the institutional dimension’.28 Schiek’s comprehensive study suggests ‘to identify the dimensions and types of solidarity’29 along four dimensions (‘solidarity between citizens, between Member States and the EU, between Member States and citizens and international solidarity’); and, within those, six categories (‘solidarity as charity, solidarity as mutual obligation, solidarity as risk mitigation, embedding individual rights, embedding the Internal Market, rejecting limiting effects of national solidarity’).30 Another important outlook on the manifold meanings that solidarity can hold within the EU was offered in Biondi, Dagilyt˙e and Küçük’s study.31 We suggest adopting a taxonomy partially overlapping with that suggested by the work of Dworkin and MacCormick. The rest of the chapter therefore discusses three faces of solidarity: as an aspirational value; as a principle; and as a rule. When talking about solidarity as a value, we will consider something akin to Dworkin’s ‘policies’: solidarity is the aspiration toward a social situation considered desirable. Solidarity as ‘principle’ participates in the notion developed by both Dworkin and MacCormick, in that it bears over decision-making—and thus guides the application of rules—regardless of the specific context on which a rule applies. The distinction

24

Ibid. Hart 2008. 26 MacCormick 2004, p. 26. 27 Domurath 2013, pp. 459–475; see also Hilpold 2015, p. 257. 28 Thym and Tsourdi 2017, p. 605. 29 Schiek 2020, p. 3. 30 Ibid. 31 Biondi et al. 2018. 25

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between a principle and a value is perhaps little more than arguing semantics,32 but it is justified in light of the distinction (if blurred33 ) between EU values on one hand (Article 2 TEU), and on the other hand EU general principles (Article 6(3) TEU).34 Finally, solidarity as a rule is one capable to confer rights or generate obligations in specific circumstances, when the Treaties say so. This taxonomy, which builds closely on those classic works, has the advantage of being sufficiently abstract to lay claims, if not to universality, at least to generality within EU law. They could be applied not only to solidarity, but also to notions such as ‘(mutual) trust’, ‘security’, ‘best interests of the child’, and so on. The three categories therefore transcend the specifics of our case study, and are instead useful because they encompass, jointly or individually, characteristics of all the values that a normative text can have. The rest of the chapter is devoted to teasing out the three aspects, as applied to solidarity in the case law of the CJEU.

13.3 Solidarity as an Aspirational Value Solidarity is presented as an aspirational value in the preamble of the TEU (since its entry into force in 1993)35 where Member States express their desire ‘to deepen the solidarity between their peoples while respecting their history, their culture and their traditions’. Further, it is expressly included among the values, common to Member States, on which the EU is founded (Article 2 TEU). It is also an objective of the EU to promote ‘solidarity between generations’ (Article 3(3) TEU). Similarly, it features as a ‘universal value’ in the preamble of the Charter, and ‘solidarity’ is also the rubric of Title IV of the Charter on worker rights, family life, and consumer protection. This aspirational role has been confirmed extensively in the jurisprudence of the Court in the AFSJ, by the Court and Advocates General (AGs) alike. A first example is Slovakia and Hungary v Council.36 These two Member States had contested the validity of Council Decision (EU) 2015/1601,37 which introduced relocation mechanisms for the purpose of easing the burden of heavy migratory fluxes on Italy and

32

Wouters 2020, p. 260: ‘it seems a somewhat pointless undertaking to try to distinguish systematically between “values” and “principles”’. 33 Casolari 2021, p. 2. 34 On the distinction, see also the comment on Article 23 TEU by Rosas 2016, p. 641: ‘Whilst this provision thus uses the notion of “principles”, they are referred to in art. 2 TEU as “values”, and values they are’. 35 In addition, in its Article A, the Maastricht TEU stated that the task of the EU ‘shall be to organize, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples’. 36 CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Judgment of the Court of 6 September 2017, EU:C:2017:631. 37 Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ L 248.

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Greece.38 The importance of solidarity in this context—and employment thereof as a value—was made clear by AG Bot in his Opinion in this case, who argued that: [S]olidarity is among the cardinal values of the Union and is even among the foundations of the Union. How would it be possible to deepen the solidarity between the peoples of Europe and to envisage ever-closer union between those peoples, as advocated in the Preamble to the EU Treaty, without solidarity between the Member States when one of them is faced with an emergency situation? I am referring here to the quintessence of what is both the raison d’être and the objective of the European project.39

The AG’s reference to Article 3(5) TEU—where this notion is mentioned as an objective—undoubtedly underscores the status of solidarity as an aspirational value. This is, we submit, a ‘policy’ in the Dworkinian sense since solidarity works as a standard to be achieved. It does not, however, lead directly to any concrete applications in the Opinion. The AG instead was of the view that ‘behind what is by common consent called the ‘2015 migration crisis’, another crisis is concealed, namely the crisis of the European integration project, which is to a large extent based on a requirement for solidarity between the Member States which have decided to take part in that project.40 This suggested that solidarity was understood as background, as a desirable objective rather than an enforceable rule or even principle guiding the application of a rule. A similar understanding of solidarity is evident across multiple other Opinions. A first example thereof is Ryanair.41 The circumstances of this case were peculiar: doubts as to the interpretation of Article 5 of Directive 2004/38/EC arose in the context of proceedings brought by Ryanair against a fine it received for failing to ensure that a passenger possessed all necessary documents for entering Hungary.42 The AG opined for a broad reading of this provision (arguing in favour of the individual’s entry on Hungarian territory),43 recalling that ‘Article 67(2) TFEU provides that the European Union is to ensure the absence of internal border controls for persons and must frame a common policy on, inter alia, immigration and the control of external borders that is based on solidarity between Member States and is fair towards third-country nationals.’44 Thus, solidarity was once again invoked as the overall objective of the system establishing the contested provisions. Similarly, in

38

CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, EU:C:2017:631, paras 1–31. 39 CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Opinion of Advocate General Bot, 26 July 2017, EU:C:2017:618, para 17. 40 Ibid., para 24. 41 CJEU, Case C-754/18 Ryanair v Országos Rend˝ or-f˝okapitányság, Opinion of Advocate General Maciej Szpunar, 27 February 2020, EU:C:2020:131. 42 Ibid., paras 1–2. 43 Ibid., para 81. 44 Ibid., para 32, emphasis added.

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K.S.,45 the Court was asked to clarify the arrangements for the reception of an asylumseeker where a national authority has adopted a decision to transfer them to the Member State it has identified as being responsible for examining that application pursuant to Regulation No 604/2013.46 The AG also opted for an interpretation of the Regulation benefitting the asylum-seekers, recalling the aspirational value that solidarity holds vis á vis provisions of Chapter II of the TFEU.47 This legal form of solidarity was also stressed in Vethanayagam v Minister van Buitenlandse Zaken,48 which raised questions as to the distribution of competence in relation to the Visa Code. In developing her analysis, AG Sharpston recalled that the Schengen system was one of ‘real solidarity such that the effects of a decision taken by one Member State are not limited solely to the territory of that Member State but, on the contrary, concern the Schengen area as a whole.’49 X v Staatssecretaris van Veiligheid en Justitie50 featured different circumstances, but an equal commitment to this interpretation of solidarity: in this case the applicant had filed 4 subsequent applications for international protection in two different Member States, while being investigated for allegedly committing a sexual offence on the territory of the Member State where the first applications were filed.51 The referring Court thus sought to understand which Member State would be competent for assessing the last application. In this context, AG Bot stressed the cardinal value of solidarity, describing it as a ‘“pivotal element” in that system [which] must, moreover, be “genuine and practical” and be shown towards the Member States most affected by flows of asylum applicants which place disproportionate pressure on their systems.’52 A similar situation arose in Kastrati,53 which concerned the interpretation of Regulation No 343/2003 of 18 February 2003. The referring court essentially wished to know in what way the withdrawal of an asylum application by an asylum seeker, who lodged an application for asylum in only one Member State, affected the applicability of this instrument. AG Trstenjak also reiterated the aspirational role of the spirit of solidarity, arguing that: Regulation No 343/2003 has essentially adopted the concept of the Dublin Convention of 15 June 1990, whereby, in an area in which the free movement of persons is guaranteed

45

CJEU, Joined Cases C 322/19 and C 385/19 K.S. M.H.K. v The International Protection Appeals Tribunal, The Minister for Justice and Equality, Opinion of Advocate General de la Tour, 3 September 2020, EU:C:2020:642. 46 Ibid., paras 23–40. 47 Ibid., para 40. 48 CJEU, Case C-680/17 Vethanayagam v Minister van Buitenlandse Zaken, Opinion of Advocate General Sharpston, 28 March 2019, EU:C:2019:278. 49 Ibid., para 38. 50 CJEU, Case C-213/17 X v Staatssecretaris van Veiligheid en Justitie, Judgment of 5 July 2018, EU:C:2018:538. 51 CJEU, Case C-213/17 X v Staatssecretaris van Veiligheid en Justitie, Opinion of Advocate General Bot, 13 June 2018, ECLI:EU:C:2018:434, paras 1–10. 52 Ibid., para 71. 53 CJEU, Case C-620/10 Kastrati, Opinion of Advocate General Trstenjak, 12 January 2012, EU:C:2012:10.

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in accordance with the provisions of the Treaties, each Member State is responsible visà-vis other Member States for its actions in relation to the entry and residence of thirdcountry nationals and must bear the consequences of its actions in the spirit of solidarity and cooperation in good faith.54

This understanding of solidarity was also affirmed by the Court itself. In Jafari,55 the Court was asked whether Articles 2, 12 and 13 of the Dublin III Regulation56 were to be interpreted in light of other EU acts or not: the applicants in the proceedings had entered the EU through the Slovenian and Croatian borders—where they were issued documents—but travelled to and ultimately applied for asylum in Austria and Germany. These two Member States sought to know whether the applicants’ documents issued by the competent authorities of the Member State of entry could be seen as visas within the meaning of the Schengen Borders Code, thus enabling them to recognise the applicants as having entered their territory irregularly.57 The broader question posed was thus whether the Dublin III Regulation had to be read in conjunction with the Schengen Borders Code and the Return Directive.58 The Court employed solidarity as a value to reiterate that the distribution of responsibility between MS in asylum and migration must be done with regard for other MS as well. Indeed, according to the Court: Recital 25 of the Dublin III Regulation thus refers, inter alia, to the direct link between the responsibility criteria established in a spirit of solidarity and common efforts towards the management of external borders, which are undertaken, as stated in recital 6 of the Schengen Borders Code, in the interest not only of the Member State at whose external borders the border control is carried out but also of all Member States which have abolished internal border control.59

Solidarity as a value thus permeates the functioning of the EU, and in this sense, it transcends the boundaries of the AFSJ. The crisis of solidarity resulting in AFSJ jurisprudence is the tip of the iceberg: more profound issues of solidarity—meaning of participation in a common process—affect the Member States. As AG Bot wrote in his Opinion in Slovakia and Hungary v Council, ‘behind what is by common consent called the ‘2015 migration crisis’, another crisis is concealed, namely the crisis of the European integration project, which is to a large extent based on a requirement for solidarity between the Member States which have decided to take part in that project’.60 54

Ibid., para 48. CJEU, Case C-646/16 Jafari, Judgment of 26 July 2017, EU:C:2017:586. 56 Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, OJ 2013 L 180, p. 31. 57 Ibid., paras 1–2, 29–36. 58 Ibid., para 36. 59 Ibid., para 85. 60 CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Opinion of Advocate General Bot, 26 July 2017, ECLI:EU:C:2017:618, para 24. 55

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13.4 Solidarity as a Principle The level of normativity offered by aspirational commitments and principles phrased as such has not escaped attention within EU legal scholarship,61 which has dedicated ample attention to the effects that principles may have in guiding EU external action. This study should be complemented—we argue—by an enquiring into the contribution made by solidarity, which holds central importance in this field. Solidarity is described as a legal principle in a number of provisions of the Treaties. At a broader level, it is featured in Article 21 TEU as one of the principles which ought to guide EU external action more broadly. In the context of the policies on border checks, asylum and immigration within the AFSJ, solidarity is spelled out in two provisions: Article 80 TFEU, which underscores it as a guiding notion for Member States’ action; and Article 78(3) TFEU, a “specific legal basis for provisional measures which implement the principle of solidarity in emergency situations characterised by a sudden inflow of nationals of third countries”.62 The two provisions fail however to disclose the character and role that this principle holds vis á vis other provisions in the Treaties, suggesting merely that it exists to regulate the exercise of MS competence in this field. This would also appear from the wording of Article 67(2) TFEU, a general provision in the AFSJ, stating that the Union ‘shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.’ Member States’ difficulties relating to the management of migration flows have been a fertile ground for the employment of solidarity as a legal principle. Indeed, within the jurisprudence of the Court, solidarity is most often utilised to guide interpretation of sensitive rules affecting MS responsibility in the context of the Common European Asylum System (CEAS). The degree of normativity to be attributed thereto is however debatable since its use in this juridical form has not extended beyond Opinion of AGs, with one exception: N.S. and others.63 In this case, the Court was asked—inter alia—to provide an interpretation of Article 3(2) of Regulation 343/2003,64 with a view to clarifying the extent to which fundamental rights could trump the transfer of an asylum seeker to the state responsible for his/her asylum application pursuant to Article 3(1) of the same Regulation.65 The applicant in the case was an Afghan national having entered the EU through Greece, however ultimately seeking international protection in the United Kingdom. Pursuant to Article 61

See recently Kaspiarovich and Wessel 2022; Cannizzaro 2021. CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Opinion of Advocate General Bot, 26 July 2017, ECLI:EU:C:2017:618 EU:C:2017:618, para 17. See also para 84. 63 CJEU, Case C-411/10 N.S. and Others, Judgment of 21 December 2011, ECLI:EU:C:2011:865. 64 Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, OJ L 50, p. 1. 65 Ibid., paras 34–44. 62

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17 of Regulation 343/2003, the competent British authorities sought to transfer him back to the State they viewed as responsible for assessing his application for international protection—Greece. The applicant however contested the transfer, alleging the possibility of being exposed to fundamental rights violations in Greece on account of the systemic deficiencies affecting this State’s asylum reception system.66 The Court employed solidarity as a principle to determine the weight to be attributed to fundamental rights protection in the context of the CEAS, and particularly whether they could offset the transfer of the asylum-seeker; it ultimately opined in favour of the suspension of this mechanism when such risks occur.67 This is not to say that principle of solidarity contained in Article 80 TFEU was the sole, decisive consideration: solidarity was in fact not a self-standing principle in the Court’s analysis, opposable to Article 17 of Regulation No. 343/2003, but rather one of the principles leading to the Court’s conclusion.68 Indeed, the Court acknowledged the need for solidarity in the execution of obligations in the context of the CEAS, however recognising that solidarity (and the fair sharing of responsibility) may not ultimately justify the execution of provisions which may result in curtailing the fundamental rights of asylum-seekers.69 Other examples of the principle of solidarity being employed as a tool for interpretation are Jawo,70 X v Staatssecretaris van Veiligheid en Justitie,71 Jafari,72 X and X,73 and Adil.74 The circumstances leading to its application are generally similar: the entry and subsequent travel through the EU of asylum seekers generates tensions between MS authorities as to the entity responsible for the assessment of the individual’s asylum application; the Advocate General then relies, inter alia, on the principle to reiterate that the CEAS is not a system comprising many MS acting alone, but an area which ought to see MS collaborate towards the management of migration flows. For instance, in X v Staatssecretaris van Veiligheid en Justitie, AG Bot described the principle of solidarity as being irreconcilable with the automatic nature of the take-back mechanism envisaged by Article 23 Dublin III, which ought to be applied with consideration for the ‘disproportionate pressure’ on the asylum

66

Ibid. Ibid., para 123. 68 Ibid., paras 10 and 93. 69 Ibid., paras 93–94. 70 CJEU, Case C-163/17 Jawo v Bundesrepublik Deutschland, Opinion of Advocate General Wathelet, 25 July 2018, EU:C:2018:613, para 145. 71 CJEU, Case C-213/17 X v Staatssecretaris van Veiligheid en Justitie, Opinion of Advocate General Bot, 13 June 2018, EU:C:2018:434, para 99. 72 CJEU, Case C-646/16 Jafari, Opinion of Advocate General Sharpston, 8 June 2017, EU:C:2017:443, para 139. 73 CJEU, Case C-638/16 PPU X and X, Opinion of Advocate General Mengozzi, 7 February 2017, EU:C:2017:93, para 174. 74 CJEU, Case C-278/12 PPU Adil, Opinion of Advocate General Sharpston, 9 July 2012, EU:C:2012:430, para 33. 67

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systems of the MS most affected by the migration crisis.75 Similarly, in Jafari, the AG juxtaposed the principle of solidarity to the responsibility criteria enshrined in Dublin III, reiterating the need to strike a balance between the two, ultimately proposing that the Regulation be read separately from the Return Directive.76 Similarly, in Jawo, the referring Court asked a series of questions relating to the discharge of duties under the Dublin III Regulation when a migrant absconds on the day of his transfer back and subsequently objects to the decision. The referring Court sought to know, in particular, the effects that poor reception conditions could have on the execution of a take-back procedure. The AG, however, did not attribute normative force to the principle of solidarity—as provided for in Article 80 TFEU: the AG limited himself to noting that the adoption of a—currently not existing—‘genuine policy on international protection within the European Union’77 would be compatible therewith. In X and X, two Syrian citizens and their children had applied for short-term visas at a diplomatic representation of Belgium in Lebanon, hoping to flee Syria, where they allegedly risked being persecuted for religious reasons.78 The case raised the question of whether Article 25(1)(a) of Regulation No. 810/200979 (on short-term visas) required a Member States to issue a short-term visa for humanitarian grounds when there are substantial grounds to believe that a refusal to issue that document will have the direct consequence of exposing the applicant to treatment prohibited by Article 4 of the Charter of Fundamental Rights. The AG answered positively,80 whereas the Court took the view that the question was one of national law, and that the Charter does not apply to such a situation.81 The AG’s interpretation ensured compliance with the principle of solidarity as enshrined in Article 80 TFEU, which permits to dismiss the objection raised by Belgium according to which mandating a Member State to issue a short-term visa would amount to allowing third-country applicants to choose the Member State in which they want their application to be examined (an objection the AG defined ‘frankly uncalled for’, and superseded by Article 4 Charter82 ). 75 CJEU, Case C-213/17 X v Staatssecretaris van Veiligheid en Justitie, Opinion of Advocate General Bot, 13 June 2018, EU:C:2018:434, para 71. 76 Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, p. 98. 77 CJEU, Case C-163/17 Jawo, Opinion of Advocate General Wathelet, 25 July 2018, ECLI:EU:C:2018:613 para 145. 78 CJEU, Case C-638/16 PPU X and X, Opinion of Advocate General Mengozzi, 7 February 2017, EU:C:2017:93, paras 31–32. 79 Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) OJ L 243, p. 1. 80 CJEU, Case C-638/16 PPU X and X, Opinion of Advocate General Mengozzi, 7 February 2017, EU:C:2017:93, para 176. 81 CJEU, Case C-638/16 PPU X and X, Judgment of 7 March 2017, ECLI:EU:C:2017:173. 82 CJEU, Case C-638/16 PPU X and X, Opinion of Advocate General Mengozzi, 7 February 2017, EU:C:2017:93, para 174.

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The normative character of solidarity was reiterated by AG Bot in Slovakia and Hungary v Council, who stressed that ‘[s]olidarity is both a pillar and at the same time a guiding principle of the European Union’s policies on border checks, asylum and immigration’.83 An expression of this is Article 67(2) TFEU, which states that the Union is to ‘frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards nationals of third-countries’. Adil84 represents the only exception to this line of litigation as it introduced the principle of solidarity not at a horizontal level (i.e. in the context of migration-countering efforts by Member States), but rather at a vertical one (regulating the relationship between the CJEU and national courts.) In this case, the referring Court had requested that its preliminary reference relating to the interpretation of Article 21 of the Schengen Borders Code (providing for the prohibition of border checks) be dealt with under the urgent procedure.85 AG Sharpston, in assessing the need thereof, described compliance with the principle of solidarity as entailing that national courts are under an obligation to provide all necessary legal and factual information to the Court in order to enable it to ascertain the urgency of the case.86 Solidarity as a legal principle is thus a hermeneutic tool, utilised to reiterate the background against which other provisions of EU law ought to be interpreted. Yet one could go so far as to state that these ‘expectations of solidarity’ expressed by AG Bot and AG Wathelet incorporate moral or ideological considerations of what solidarity should entail, thus providing support to a Dworkinian reading of the case law. In particular, the case law shows that solidarity as a principle allows Advocates General to justify interpretations of secondary legislation in the light of humanitarian considerations.

13.5 Solidarity as a Rule The preponderance of cases utilising solidarity for interpretative purposes should not, however, suggest that solidarity holds limited normative value. Indeed, solidarity has been employed as a rule binding upon Member States, either by the Member States themselves, implicitly, when they tried to argue they should not be bound by that duty; or by the Court when it dismissed those arguments. The former approach appears in the line of cases on the relocation decisions, beginning with Slovakia and Hungary v Council. The contested decisions, so Poland claimed in support of the applicants, were invalid because they did not allow the Member States to ensure the effective 83

CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Opinion of Advocate General Bot, 26 July 2017, EU:C:2017:618, para 20. 84 CJEU, Case C-278/12 PPU Adil, Judgment of 19 July 2012, EU:C:2012:508. 85 The referring court can file such a request pursuant to Article 104b of the Rules of Procedure of the Court. 86 CJEU, Case C-278/12 PPU Adil, Opinion of Advocate General Sharpston, 9 July 2012, ECLI:EU:C:2012:430, para 33.

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exercise of their responsibilities with regard to the maintenance of law and order and the safeguarding of internal security.87 The Court noted that Article 5(7) of the relocation Decision allowed for derogations on grounds of national security or public order88 and that practical difficulties in implementing those provisions were not a flaw inherent in the mechanism.89 The defendants repeated the argument,90 and the Court repeated its finding, in Commission v Poland, Hungary and Czech Republic.91 Of particular relevance for this section is the analysis provided in paragraphs 80 and 81 of that judgment, where the Court recalled that: [T]he burdens entailed by the provisional measures provided for in Decisions 2015/1523 and 2015/1601, since they were adopted under Article 78(3) TFEU for the purpose of helping the Hellenic Republic and the Italian Republic to better cope with an emergency situation characterised by a sudden influx of third-country nationals on their territory, must, in principle, be divided between all the other Member States, in accordance with the principle of solidarity and fair sharing of responsibility between the Member States, since, in accordance with Article 80 TFEU, that principle governs the Union’s asylum policy. […] The Commission’s action is therefore based, in the present case, on a neutral and objective criterion relating to the gravity and the persistence of the infringements which the Republic of Poland, Hungary and the Czech Republic are alleged to have committed, which, having regard to the objective of Decisions 2015/1523 and 2015/1601 such as that objective has just been recalled, serves to distinguish the situation of those three Member States from that of the other Member States, including those which did not fully comply with their obligations under those decisions.92

By contrast, the duty of solidarity was invoked by AG Bot in two separate cases, namely X v Staatssecretaris van Veiligheid en Justitie and Slovakia and Hungary v Council.93 The background justifying its use in the former was described in Sect. 13.3: the Court was asked to interpret articles 17(1), 18(2), 23(3) and 24 of the Dublin III Regulation to ascertain which Member State was responsible to assess the application for international protection filed by the applicant, a migrant who had filed four different applications across two Member States (the Netherlands and Italy) and who was being investigated in the former Member State for allegedly committing sexual offences. The case thus offered an invaluable example of the competence struggles 87

CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Judgment of the Court of 6 September 2017, EU:C:2017:631, para 306. 88 Ibid., paras 12, 41. 89 Ibid., paras 308–309. 90 Here, that Article 72 TFEU can be invoked by a Member State to disapply the relocation decisions which were in line “with the principle of solidarity and fair sharing of responsibility between Member States which, in accordance with Article 80 TFEU, governs the Union’s asylum policy”. See CJEU, Joined Cases C-715/17, C-718/17 and Case C-719/17 Commission v Poland, Hungary and Czech Republic, Judgment of 2 April 2020, EU:C:2020:257, para 70. 91 Ibid., para 148. 92 Ibid., paras 80–81. See also CJEU, Case C-848/19 P Federal Republic of Germany v. European Commission (OPAL) (Energy Solidarity), Judgment of 15 July 2021, EU:C:2021:598, where ‘the Court referred to [C v Poland et al.] to highlight that the principle of solidarity under Article 80 TFEU is not merely abstract, but was crucial to the Court’s conclusion that, in essence, Member States had failed to fulfil certain obligations under EU asylum law. 93 CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Judgment of 6 September 2017, EU:C:2017:631.

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stemming from the application of Dublin III. The AG sought this opportunity to underline the moral fallacy represented by the take-back mechanism envisaged by the instrument, stating that: In so far as [the] transfer [back of an applicant] takes place automatically, irrespective of its human and material toll, I consider that, in a situation such as that at issue, it deprives the procedure for determining the Member State responsible of the rationality, objectivity, fairness and expeditiousness pursued by the EU legislature within the framework of the Dublin III Regulation and is an impediment to the discharge of the duties of cooperation and solidarity that must underpin the Common European Asylum System.94

The use made of this notion in Slovakia and Hungary v Council 95 mirrors the spirit embodied by the former passage for the very reason behind that action for annulment was Slovakia and Hungary’s opposition to solidarity as expressed by the relocation decisions.96 The AG was swift to thus underscore the quintessential role that solidarity plays in the functioning of the CEAS, at the same time attaching an ulterior role to the notion: that of a duty shaping MS action. Indeed, he opined that [T]he non-application of the contested decision also constitute[d] a breach of the obligation concerning solidarity and the fair sharing of burdens expressed in Article 80 TFEU. [According to him] there [was] no doubt that, in an action for failure to fulfil obligations on this matter, the Court would be entitled to remind the offending Member States of their obligations, and to do so in no uncertain terms.97

13.6 Conclusion. Solidarity: Clé de Voûte de la Construction Européenne? In general terms, solidarity may regulate relationships between individuals in close groups such as the family—formations which we would generally regard as private— as well as, with an abstraction, relations between states. But if this ‘private’ value is elevated to the functioning of the EU as a whole (‘There are no societies, only individuals who interact with each other’98 ) it is not only due to the personal (religious) convictions of certain founding members (Adenauer, De Gasperi, Schuman99 ). It is 94 CJEU, Case C-213/17 X v Staatssecretaris van Veiligheid en Justitie, Opinion of Advocate General Bot, 13 June 2018, EU:C:2018:434, para 10. 95 CJEU, Joined Cases C-643/15 and C-647/15 Slovakia and Hungary v Council, Opinion of Advocate General Bot, 26 July 2017, EU:C:2017:618, para 242. 96 Specifically, with Article 5(2) of Council Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece, OJ 2015 L 239 and Article 5(2) of Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, OJ 2015 L 248. 97 Ibid. 98 Elster 2010, p. 248. 99 Consider the ironic title by the Guardian (2021) EU founding father Robert Schuman moves a step closer to sainthood. . Accessed 15 October 2021.

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‘the cement of society’ because it corrects material and perhaps moral shortcomings: solidarity is shown when someone is in want; and it is the opposite of opportunistic behaviour generated by negative emotions such as contempt, envy, and hatred. This means, we believe, that moral considerations are relevant to the decision-making process. A Dworkinian framework helps provide a taxonomy of cases where this happens. When solidarity is a standard—and not merely a rule—a mechanical application is not possible (if indeed it ever is possible at all). This chapter thus sought to define the boundaries of this notion with a view to assessing its degree of normativity, and showed that, within the AFSJ, this is a rather multifaceted tool. When solidarity is employed as a value, it has the form of a standard to be attained (e.g. Jafari and Ryanair) (Sect. 13.3). It is an objective permeating the EU as a polity, it is even particularly evident in the case law on AFSJ because solidarity was severely challenged by the 2015 migration crisis. The case law also confirms the finding of the literature on EU constitutional objectives: these do carry actionable normative value. Solidarity may also take the form of a legal principle (see Sect. 13.4), in which case it is a hermeneutic tool to reach a given conclusion or advance a teleological interpretation of EU secondary law (X and X, Jawo, X v Staatssecretaris). In particular in the opinions of Advocates General, solidarity allows to incorporate humanitarian considerations. Solidarity as a legal principle regulates not just horizontal relationships (i.e. fostering cooperation between Member States), but also vertical ones (solidifying further cooperation between EU courts and national courts) (Adil). Finally, when utilised as a rule, solidarity imposes in itself a duty for Member States to comply with emergency legislation adopted to cope with crises such as the sudden inflow of nationals of third countries (Commission v Poland, Hungary and Czech Republic, Slovakia and Hungary v Council). The analysis also shows that solidarity is not merely a declaratory commitment, but it provides a normative standard guiding EU action—or at the very least guiding interpretation of secondary legislation in the Area of Freedom Security and Justice. This ‘value’ of solidarity should not be neglected in the context of debates on the normative effects of EU values or constitutional objectives: as this chapter shows, solidarity is another binding constitutional commitment, capable of producing legal effects.

References Baxter RR (1980) International law in “her infinite variety”. International and Comparative Law Quarterly 29:549–566 Biondi A, Dagilyt˙e E, Küçük E (2018) (eds) Solidarity in EU Law: Legal Principle in the Making. Edward Elgar Publishing, Cheltenham Cannizzaro A (2021) The Value of International Values. In: Douma W et al (eds) The Evolving Nature of EU External Relations Law. T.M.C. Asser Press, The Hague Casolari F (2021) I principi del diritto dell’Unione europea negli accordi commerciali: una visione di insieme. In: Adinolfi G (ed) Gli accordi di nuova generazione dell’Unione europea in materia di commercio ed investimenti. Giappichelli, Turin

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Domurath I (2013) The Three Dimensions of Solidarity in the EU Legal Order: Limits of the Judicial and Legal Approach. European Integration 35:459–475 Dworkin R (1977) Taking Rights Seriously. Harvard University Press, Cambridge MA Eliantonio M, Korkea-aho E, Stefan O (eds) (2021) EU Soft Law in the Member States. Theoretical Findings and Empirical Evidence. Hart Publishing, Oxford Elster J (2010) The Cement of Society. A Study of Social Order. Cambridge University Press, Cambridge Elster J (2020) Some notes on ‘Populism’. Philosophy and Social Criticism 46:591–600 Hart HLA (2008) Punishment and Responsibility: Essays in the Philosophy of Law. Oxford University Press, Oxford Hayward JES (1959) Solidarity: The Social History of an Idea in Nineteenth Century France. International Review of Social History 4:261–284 Hilpold P (2015) Understanding Solidarity within EU Law. Yearbook of European Law 34:257–285 Kaspiarovich Y, Wessel R A (2022) The Role of Values in EU External Relations: A Legal Assessment of the EU as a Good Global Actor. In: Fahey E, Mancini I (eds) Understanding the EU as a Good Global Actor: Ambitions, Directions and Values. Edward Elgar Publishing, Cheltenham Kassoti E, Wessel R A (forthcoming) The Normative Effect of Article 3(5) TEU: Observance and Development of International Law by the European Union. In: Garcia Andrade P (ed) Interacciones entre el Derecho de la Unión Europea y el Derecho Internacional Público. Tirant lo Blanch, Valencia Kelsen H (1934) Pure Theory of Law. University of California Press, Berkeley/Los Angeles Kelsen H (1979) Allgemeine Theorie der Normen. Manz, Vienna MacCormick N (2004) Institutions of Law. Oxford University Press, Oxford Nietzsche F (1887/2017) On the Genealogy of Morality. Cambridge University Press Rosas A (2016) EU Restrictive measures against third states. Il Diritto dell’Unione Europea. http://www.dirittounioneeuropea.eu/eu-measures-third-states-gesture-politics-judicialcontrol. Accessed 13 September 2022 Ruiter DWP (1993) Institutional Legal Facts: Legal Powers and Their Effects. Kluwer Academic Publishers, New York NY Scheppele et al (2020) EU Values Are Law, after All: Enforcing EU Values through Systemic Infringement Actions by the European Commission and the Member States of the European Union. Yearbook of European Law 39:3–121 Schiek D (2020) Solidarity in the case law of the European Court of Justice – opportunities missed? In: Krunke H et al (eds) Transnational Solidarity. Concept, Challenges and Opportunities. Cambridge University Press, Cambridge Sommermann K-P (2013) Article 3. In: Blanke H-J, Mangiameli S (eds) The Treaty on European Union (TEU): A commentary. Springer, Berlin/Heidelberg Stjernø S (2009) Solidarity in Europe. The History of an Idea. Cambridge University Press, Cambridge Thym D, Tsourdi L (2017) Searching for solidarity in the EU asylum and border policies: Constitutional and operational dimensions. Maastricht Journal of International Law 24:605–621 Tridimas T (2007) General Principles of European Community Law. Oxford University Press, Oxford Türk A, Xanthoulis N (2019) Legal accountability of European Central Bank in bank supervision: A case study in conceptualizing the legal effects of Union acts. Maastricht Journal of European and Comparative Law 26:151–164 Wessel R A (2016) Resisting Legal Facts: Are CFSP Norms as Soft as They Seem? European Foreign Affairs Review 20:123–145 Wouters J (2020) Revisiting Art. 2 TEU: A True Union of Values. European Papers 5:255–277

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Alina Carrozzini Lecturer in EU Law, Vrije Universiteit Amsterdam, The Netherlands and Ph.D. Candidate, King’s College London, United Kingdom. Luigi Lonardo Lecturer in EU law, University College Cork, Ireland.

Chapter 14

Reflections on the Legal Content of Solidarity in EU Law Under the Lens of the Covid-19 Pandemic Susanna Villani

Contents 14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2 The Uncertain Legal Nature of Solidarity Within the EU Legal Order . . . . . . . . . . . . . . . 14.3 In Search of Solidarity During the Covid-19 Pandemic . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3.1 The Union Civil Protection Mechanism as Provider of In-kind Assistance . . . . . 14.3.2 The Joint Procurement of Medical Countermeasures . . . . . . . . . . . . . . . . . . . . . . . 14.3.3 The EU Vaccine Strategy: Solidarity Within and Beyond the EU Borders . . . . . 14.3.4 The Financial Support Vis-à-Vis the (Post-)Covid-19 Pandemic . . . . . . . . . . . . . 14.4 Solidarity and Equality: Two Cornerstones of the EU Response to Emergency . . . . . . . 14.5 Concluding Remarks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Abstract The variable expressions solidarity acquires in the EU legal order make it an amorphous concept from a strict legal perspective. Against this backdrop, this chapter focuses on the role played by solidarity during the Covid-19 pandemic by revealing the need of urgent as well as long-lasting political, health and economic strategic choices at the national and supranational level. Indeed, once it was evident that the health emergency not only was exogenous but also symmetric and extended to the whole EU, the approach changed. The necessity to tackle it with a more cooperative and ‘one voice’ strategy emerged. New opportunities of assistance both at the operational and financial level materialised by the enhancement of existing structures and the creation of new instruments of response in situations of emergency. Ultimately, the response to Covid-19 has confirmed the interaction between solidarity and other concepts, like that of conditionality, thus entailing, rather than obligations to solidarity, a collective responsibility of solidarity in order to comply with the principle of equality as intended in EU law. Keywords Solidarity · Covid-19 · Emergency · Conditionality · Equality · EU Civil Protection Mechanism · Vaccine strategy · Financial assistance · Joint Procurement Agreement (JPA) S. Villani (B) Department of Political and Social Sciences, University of Bologna, Bologna, Italy e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_14

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14.1 Introduction Over the last ten years, the increase of emergencies, occurring within the European Union or originating outside but having repercussion on it, has progressively convinced the EU Member States that often these situations do not recognise national borders. Such a keen awareness has called the attention to the importance of appropriate interrelated national and supranational rules and mechanisms for emergency prevention, mitigation and response. The Lisbon Treaty has consolidated these requirements by conferring to the EU new competences for jointly responding to times of crisis and by envisaging the adoption of secondary law instruments of inkind and financial nature that were based on solidarity arguments. However, the Member States have sometimes reacted to the occurrence and the consequences of these emergencies in an incohesive way thus demonstrating to be still reluctant to show solidarity and burden-sharing. This has made evident the existing uncertainties on the nature of solidarity within the EU legal framework. In the last two years, the Covid-19 pandemic has put the single national structures and models to the test thus revealing the need of urgent as well as long-lasting political, health and economic strategic choices at the national and supranational level. Among the others, the health emergency has brought to light multiple challenges for the future of the EU in terms of structural strategies and constitutional vision, including the revitalisation of a common understanding of solidarity within the EU legal order, especially when dealing with situations of crisis. The present contribution intends to propose an overview of the nature of solidarity in the EU legal order (Sect. 14.2) and to evaluate the most significant measures adopted during the health emergency in the light of solidarity arguments (Sect. 14.3).1 In this regard, specific attention will be devoted to the effectiveness of the Union Civil Protection Mechanism as catalyst of in-kind assistance (Sect. 14.3.1); the Joint Procurement Agreement as a first step towards the creation of a common procurement system in case of major health emergencies (Sect. 14.3.2); the Emergency Support Instrument as financial instrument providing assistance in the provision of vaccines (Sect. 14.3.3) and, finally, the instruments of broader financial support (Sect. 14.3.4). Those findings will offer the opportunity to present a general reflection the interaction between solidarity and equality in the EU legal order (Sect. 14.4). The work will conclude with a reflection on the future perspectives for the EU integration process in the light of solidarity considerations (Sect. 14.5).

1

Given the constantly evolving context, it must be noted that the present work considers facts and figures which have taken place before 31 December 2021.

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14.2 The Uncertain Legal Nature of Solidarity Within the EU Legal Order The European Union has evolved from a purely economic organisation to a multifaceted entity with political, social and human rights dimensions. This has created an environment in which the concept of solidarity is gaining a more substantial role in shaping the EU legal order. Indeed, the notion of solidarity justifies and adjusts the exercise of public authority in favour of a common interest, separate and separable from the sum of the individual ones.2 Hence, solidarity should be more than the sum of the different national interests and only an arena used to ensure national advantages; it should be perceived as corrective element to the tension between a high degree of supranational integration and a simultaneous heterogeneity of interests between the Member States.3 Alternatively, as suggested by Jacques Delors, if not based on pure generosity, it should be built on an “enlightened self-interest”.4 Over the decades, the revised Treaties have given substance to this ideal vision by progressively including more references to solidarity and matching it with more concrete and substantive provisions. In the first place, solidarity is now explicitly listed in Article 2 TEU among the values of the EU and, in particular, among the elements that characterise the societies in which these values, common to the Member States, may be found.5 Similarly, the EU Charter of Fundamental Rights lists solidarity among the “indivisible and universal values” on which the Union is founded.6 In the second place, the revision embedded in the Lisbon Treaty has de facto taken back and reinforced what was stated in the previous Treaties by including solidarity as an objective of any kind of relationship established by virtue of the EU legal order.7 Indeed, a clear reference to solidarity as an objective is included in the sixth recital of preamble of the TEU by recalling Member States’ desire “to deepen the solidarity between their peoples while respecting their history, their culture and their traditions”. Furthermore, solidarity as objective works in the external dimension of the Union: Article 3(5) TEU specifies that “in its relations with the wider world, the Union shall […] contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples […].” In this perspective, the improvement of cooperation in the light of solidarity between Member States and between the States and the Union becomes functional to the wellbeing of people and to the ever-closer union of those living in the EU.8 In terms of substantive law, the Lisbon Treaty has certainly contributed to giving impetus to solidarity by attributing to it a special relevance in different sectors of 2

Bieber and Maiani 2012, p. 296. Bast 2018, p. 115. 4 Fernandes and Rubio 2012, p. 10. 5 Böhm 2015; Blanke and Mangiameli 2013, p. 114; Dony 2008, pp. 36–39; Russo 2017. 6 Dony 2005, p. 34. 7 Ross 2010, p. 36; Domurath 2013, p. 460; Neframi 2013; Larik 2014. 8 For more insights on this three-fold dimension of solidarity, see Sangiovanni 2012; De Witte 2015; Piernas et al. 2018. 3

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intervention renamed by Hilpold as “islands of EU law”.9 Indeed, the term ‘solidarity’ has been embodied in a number of primary EU law provisions concerning the relationships between the Member States and with the Union in different areas of integration independently from the nature of the EU competence. These sectors range from economic, social, and territorial cohesion (Articles 174 and 177 TFEU)10 to asylum, immigration, and external borders control (Articles 67, 78 and 80 TFEU),11 to economic governance (Article 122 TFEU),12 to the energy supply sector (Article 194 TFEU),13 to disaster management (Article 222 TFEU),14 and to the common foreign and security policy (Article 24 TEU).15 Notwithstanding the multiple references to the need to act according to a “spirit of solidarity”, a clear proposition on its legal effects and role in the implementation of the mentioned provisions is still lacking. Similarly, despite several attempts, the reconstruction of solidarity not only as value and objective but also as a principle of the EU legal order is not supported by most scholars.16 The picture is further complicated by the fact that, over the past years, the Court’s case law has not been particularly decisive in further clarifying the legal scope of solidarity in the EU legal system. In early (not conspicuous) case-law citing solidarity issues,17 the Court often preferred to replace it with the notion of ‘common interest’ by comprising a complex of positive and negative obligations upon the Member States.18 In multiple occasions, the Court has then conceived the notion of solidarity as strictly linked to that of sincere cooperation enshrined in Article 4(3) TEU as two sides of the same coin.19 At the basis of this partial overlap, there is the assumption that reciprocal 9

Hilpold 2015a. For insights, see Holder and Layard 2010; Butler 2018. 11 With reference to the principle of solidarity in the common policy on asylum, immigration and control of foreign borders, see, ex multis, Nikolakopoulou-Stephanou 2010; Gestri 2011; BasilienGainche 2012; Favilli 2015; Küçük 2016; Morgese 2018; Miglio 2018; Marin et al. 2020. 12 On the application of the principle of solidarity in the field of the EU economic governance, see, ex multis, Louis 2012; McDonnell 2014; Manzini 2017; Croci 2020; Weber and Pilz 2021. 13 For deeper insights on the role of solidarity in the energy sector, see, ex multis, Petit 2009–2010; Ahner and Glachant 2012; Knodt and Tews 2017; Moschetta 2019. 14 For deeper insights on the ‘solidarity clause’, see, ex multis, Myrdal and Rhinard 2010; FuchsDrapier 2011; Alì 2014; Gestri 2014; Blockmans 2014; Martino 2015; Hilpold 2015b; Villani 2021, pp. 199 ff. 15 For deeper insights on the role of solidarity in the CFSP, see Ferreira-Pereira and Groom 2010; Nováky 2017. 16 Küçük 2018. 17 CJEU, Case C-11/69, Commission v. France, Judgment, 10 December 1969, ECLI:EU:C:1969:68; CJEU, Case C-77/77, Benzine en Petroleum Handelsmaatschappij BV and others v. Commission of the European Communities, Judgment, 29 June 1978, ECLI:EU:C:1978:141; CJEU, Opinion 1/75, 11 November 1975, ECLI:EU:C:1975:145; CJEU, Joined Cases C-154, C-205, C-206, C-226–228, C-263 and C-264/78, C-39, C-31, C-83 and C-85/79, SpA Ferriera Valsabbia and others v. Commission, Judgment, 18 March 1980, ECLI:EU:C:1980:81. 18 Neergaard 2010; Oliva 2005; Küçük 2018. 19 Berramdane 2012, pp. 74–75. 10

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loyalty obligations can be intended also to adjust the single national interests in the light of the general one. Indeed, the first sentence of Article 4(3) TEU clearly codifies the duty of mutual assistance between Member States and the Union by providing the obligation “to assist each other in carrying out the tasks which low from the Treaties.” Accordingly, the point is that, while solidarity mainly reflects the ideological (but often unexpressed) aspiration of Member States to advance in the EU integration process, the principle of loyalty represents the way it should be effectively and manifestly implemented.20 In light of these considerations, it is possible to introduce the binomial ‘solidarity-loyalty’, operating as a synthesis between the protection of the respective national interests and the necessity to ensure the effective functioning of the Union in pursuing specific solidarity objectives. Thus, not solidarity duties, but rather duties of loyal cooperation supported by arguments of solidarity find application.21 In more recent times, the question has been raised whether the notion of solidarity can be uplifted in such a way that autonomous obligations of solidarity can be invoked. The most prominent area wherein such an orientation has found a first attempt of affirmation has been that of asylum, immigration, and border check activities vis-à-vis the last critical events that have affected the EU.22 The Court itself has partially changed its cautious approach towards the recall of solidarity arguments by commenting on its nature as legal concept with regard to the establishment of an effective and overall EU-wide mechanism based on burden-sharing in the context of asylum policy as prescribed in Article 80 TFEU. In the notable 2017 judgment in the Slovak Republic and Hungary v. Council of the European Union case, the Court mentioned several times solidarity as guiding principle in the elaboration of specific measures and also referred to its inherent capacity of imposing binding obligations on Member States.23 The Court has then proposed a similar orientation as for the migratory emergency in the recent judgement on the Commission v. Poland and Others case.24 However, in the reasoning of the Court solidarity was less emphasised than

20

Casolari 2014, pp. 119 ff. Bieber and Maiani 2012, p. 297. For deeper insights on the principle of loyal cooperation, see Casolari 2020a. 22 CJEU, Joined Cases C-411/10 and C-493/10, N.S. and M.E., Judgment, 21 November 2011, ECLI:EU:C:2011:865; CJEU, Case C-528/11, Zuheyr Frayeh Halaf , Judgment, 30 May 2013, ECLI:EU:C:2013:342; CJEU, Case C-646/16, Jafari, Judgment, 26 July 2017, ECLI:EU:C:2017:586; CJEU, Case C-490/16, A.S., Judgment, 11 January 2017, ECLI:EU:C:2017:5. For a general overview, see Bast 2018; Ferraro 2014; Di Stasio 2017; Villani 2018, p. 3; Quadri 2019. 23 CJEU, Joined Cases C-643/15 and C-647/15, Slovak Republic and Hungary v Council of the European Union, Judgment, 6 September 2017, ECLI:EU:C:2017:631, paras 252–253. 24 CJEU, Joined Cases C-715/17, C-718/17, C-719/17, Commission v. Poland and Others, Judgment, 2 April 2020, ECLI:EU:C:2020:257. 21

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Advocate General Sharpston had made in her conclusions.25 In fact, besides dedicating a whole section to solidarity,26 she had defined it not only as “lifeblood of the European project”27 but also as a “fundamental principle of EU law”.28 In this way, solidarity translated in “the responsibility of both the frontline Member States and the potential Member States of relocation to make that mechanism work adequately, so that relocation could take place in sufficient numbers to relieve the intolerable pressure on the frontline Member States”.29 The notion of solidarity as a principle has not been at the centre just of the Court’s case-law on migration issues. In fact, the recent position of the Court in the recent case Germany v. Poland cannot be disregarded.30 Here, the judges have offered a noteworthy interpretation of the notion of solidarity in the field of energy by opposing to the German definition that referred to solidarity as a purely political notion and not a legal criterion.31 The Court noted, indeed, that the “spirit of solidarity between Member States, mentioned in [Article 194 TFEU], constitutes a specific expression, in the field of energy, of the principle of solidarity, which is itself one of the fundamental principles of EU law”.32 As a result, it produces binding legal effects in the form of rights and obligations both for the EU and the Member States.33 Indeed, if on the one hand the Member States have an obligation of solidarity between themselves and with regard to the common interest of the EU, on the other one, the latter has the same obligation towards the Member States in the application of EU law. While the Court’s reasoning was clearly limited to the energy sector, it has maybe opened the door to solidarity as a fundamental principle of EU law significant enough to create legal consequences upon the Union and the Member States.

14.3 In Search of Solidarity During the Covid-19 Pandemic Emergency management is not a harmonised field of law at the EU level, and it has always been perceived as a prerogative and responsibility of the States. Therefore, the early European Community’s task was to face internal and external threats in order to secure the economic system. However, the increase of emergencies has progressively brought attention to the importance of appropriate national and supranational 25 CJEU, Joint Cases C-715/17, C-718/17, C-719/17, Commission v. Poland and Others, Opinion of the Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917. 26 Ibid., paras 246–255. 27 Ibid., para 253. 28 Ibid., para 201. 29 Ibid., para 234. 30 CJEU, Case C-848/19 P, Germany v. Poland, Judgment, 15 July 2021, ECLI:EU:C:2021:598. For a comment about the case, see Mengozzi 2021. 31 Ibid., para 27. 32 Ibid., para 38. 33 Ibid., para 49.

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rules and structures for the whole crisis management lifecycle, including prevention, mitigation, and response. During the integration process, Member States have progressively conferred to the EU some competences related to disaster response, such as the defence of the environment, social security, and civil protection.34 The Lisbon Treaty has consolidated and multiplied the references to the management of emergency situations occurring both outside and inside the EU territory, by giving the EU institutions new responsibilities that have allowed the adoption of instruments of financial and in-kind nature. As for the external projection, Article 21 TEU requires the Union to define and pursue common policies and actions in order “to assist populations, countries and regions confronting natural or man-made disasters”. Such a provision can easily be connected to the EU’s humanitarian aid policy governed by Article 214 TFEU. It is aimed at granting “ad hoc assistance and relief and protection for people in third countries who are victims of natural and man-made disasters, in order to meet the humanitarian needs resulting from these different situations.” The joint reading of Article 21 TEU and Article 214 TFEU could report the ambition of the Union as a whole to progressively establish itself as an independent humanitarian donor and a coordinator of aid and relief provision in emergency situations.35 With regard to the internal dimension, Article 122 TFEU constitutes a crucial rule regarding the possibility of enhancing a Member State in need by the EU or other Member States. Indeed, it allows the Council to take a decision on measures to offer financial assistance during “exceptional occurrences” or “natural disasters” that may affect Member States.36 Furthermore, Article 196 TFEU relating to the area of civil protection emphasises the importance of “cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters.” While the Union has only a supporting competence in this sector, it is intended to encourage major cooperation between Member States under the coordination of the EU in order to improve the effectiveness of systems 34

Gestri 2012; Boin et al. 2013. According to the widely accepted definition, the notion of ‘disaster’ in EU law is quite broad and comprises “any situation which has or may have a severe impact on people, the environment, or property, including cultural heritage” (Decision 1313/2013/EU of the European Parliament and of the Council on a Union Civil Protection Mechanism, OJ L 347/924, Article 4(1)). By using such an all-encompassing approach, one can make reference to a number of emergencies having occurred in the territory of the EU that, for the extent and the nature of the impact, can be classified as disasters according to the aforementioned definition. Among these, it is appropriate to recall the disaster in a chemical industrial plant in Seveso in Italy 1976; the Chernobyl nuclear plant disaster of 1986; the outbreak of BSE (“mad cow disease”) in 1996; the flooding in Central Europe in 2002; the outbreak of Severe Acute Respiratory Syndrome (SARS) in 2003; the Avian flu; the eruption under the glacier of Eyjafjallajökull (Iceland) in 2010; the Ebola virus outbreak in Africa and even the migration crisis in Europe in 2015. 35 In this respect, the establishment of a European Voluntary Humanitarian Aid Corps as an expression of the European value of solidarity with people affected by disasters in third countries is then of the utmost importance. The EU Aids Volunteers Initiative was launched in 2014 with the adoption of Regulation (EU) 375/2014 of the European Parliament and of the Council of 3 April 2014 establishing the European Voluntary Humanitarian Aid Corps (EU Aid Volunteers initiative), OJ L 122. 36 Louis 2012; Anrò 2017; Flynn 2019.

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for preventing and protecting against natural or man-made disasters.37 Moreover, for the purposes of the present work, it cannot be neglected Article 168 TFEU, that is the provision assigning the EU with the significant mandate to act on health risk and crisis management. It has, indeed, introduced new powers for the EU to take monitoring and early warning measures which complement the Member States’ national health policies for protecting and improving human health and, in particular, tackling major cross-border health emergencies.38 The need to envisage such special provisions concerning the response to situations of emergency should be coupled with the awareness that in these circumstances more intense cooperation and support based on solidarity arguments is required for the Member States. The most critical point is, however, to make clear how solidarity informs these legal instruments and to verify whether it is possible to go beyond what normally is required under the principle of sincere cooperation by envisaging special obligations of solidarity for the States and the EU itself.39 In this regard, one shall underline that the Lisbon Treaty now enshrines a specific provision entirely dedicated to solidarity in the event of a disaster, that is Article 222 TFEU known also as ‘solidarity clause’. This provision imposes an explicit and general obligation upon the Union and its Member States to act jointly “in a spirit of solidarity” if a Member State is the object of a terrorist attack or the victim of a natural or manmade disaster. Moreover, it requires the Union to mobilise all the instruments at its disposal, while the Member States are asked to coordinate between themselves in the Council. However, comprehensive legal investigations and the practice have so far suggested that the specific content of the solidarity clause is still characterised by a general and very vague scope that especially the Member States are reluctant to clarify. Such an orientation is made evident by the fact that, despite the overall positive theoretical value of Article 222 TFEU, so far the solidarity clause has never been activated. Indeed, even in situations of emergency, the opportunity of moving forward in making the legal contours of solidarity sharper suffers from the fact that it is still an element of friction among Member States that fear an obligation of unconditional assistance. Against this background, the Covid-19 pandemic has made the reaction to this emergency the litmus test of the European solidarity in all its complexity, revealing expectations and uncertainties both at the EU and the national level. Moreover, it has represented the occasion for assessing the legal content of solidarity within the EU legal order.40 Actually, in the early stages of the health emergency, solidarity did not exercise its potential. On the contrary, the EU was caught by a variety of confused reactions.41 On the one hand, the EU institutions were absent or shallow in 37

Åhman 2009; Fink-Hooijer 2014. With regard to the subject, see my more detailed analysis in Villani 2021. 38 Beaussier and Cabane 2020. 39 Gatti 2017; Casolari 2021. 40 For general insights on the EU reaction to the Covid-19 pandemic, see, ex multis, Ziller 2020; Jacqué 2020; Beaucillon 2020; Bastianon 2020; Di Federico 2020. 41 For comments, see Casolari 2020b.

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assessing the ongoing situation (just think of the initial European Central Bank (ECB) President’s declarations42 ); on the other one, a series of events raised many doubts about the ability of Member States to show solidarity for withstanding the shock of the emergency. In this regard, one could recall initial Italy’s unanswered appeal for help addressed to the other Member States,43 which was instead compensated by influx of emergency aid from third countries. The belatedness of a collective reaction of EU Member States44 was then matched with the unilateral closure of borders and the banning of export of medical equipment, such as masks, or medicines.45 Moreover, apart from episodes of repatriation of EU citizens via the Union Civil Protection Mechanism,46 at the beginning the opportunity of a collective response was not contemplated and in-kind assistance essentially resulted in (sporadic) bilateral and ad hoc interventions based on the classical interaction between request and acceptance.47 Hence, at the beginning of the health emergency, not only the national health systems but also the concept of solidarity as conceived in the Treaties were put under pressure. The approach changed once it was evident that the health emergency was exogenous but also symmetric and extended to the whole EU. Multiple Member States’ 42

On 12 March 2020, the ECB’s President Christine Lagarde in press conference affirmed: “We are not here to close spreads. This is not the function or the mission of the ECB. There are other tools for that, and there are other actors to actually deal with those issues”. Available at https://www.ecb.eur opa.eu/press/pressconf/2020/html/ecb.is200312~f857a21b6c.en.html#qa. Accessed 13 September 2022. 43 At the end of February 2020, Italy asked the Commission to activate the Union Civil Protection Mechanism in order to obtain personal protection equipment, but no EU Member State responded to it. See Massari 2020. 44 For insights, see Beaucillon 2020. 45 Gatti 2021, p. 40. In this regard, the European Commission intervened in mid-March by issuing implementing regulations (EU) 2020/402 and (EU) 2020/426 on EU export restrictions on PPEs. While the former regulation intended to adopt an export restrictions regime applied to all third countries, the latter included exemptions from EU export restrictions on PPEs for the four EFTAcountries Switzerland, Norway, Liechtenstein and Island, and overseas countries and territories, including the Faroe Islands. 46 The Mechanism intends to guarantee coordination and faster response in the operations of civil protection on occasion of disasters and serious emergencies occurring within or outside the EU by mobilising the assets and personnel (including search and rescue teams, medical teams, means of transport, and equipment) voluntarily put at disposal by the participating States in the European Civil Protection Pool. Originally set up in 2001, the UCPM was improved in 2013 (Decision 1313/2013/EU of the European Parliament and of the Council on a Union Civil Protection Mechanism, OJ L 347/924 of 20 December 2013) and revised in 2019 (Decision 2019/420/EU of the European Parliament and of the Council, OJ L 77I of 13 March 2019) and in 2020 (Regulation (EU) 2021/836 of the European Parliament and of the Council of 20 May 2021 amending Decision No 1313/2013/EU on a Union Civil Protection Mechanism, OJ L 185 of 26 May 2021). In this specific case, the Mechanism supported the repatriation of EU citizens from Wuhan, Cape Verde, the Dominican Republic, Egypt, Georgia, Japan, Morocco, the Philippines, Tunisia, the USA and Vietnam. European Parliament Research Service 2020. For a comment, see Iliopoulou-Penot 2020. 47 For example, Spain and Italy received 10,000 protective suits from the Czech Republic and 7 tons of medical equipment and material including 300 ventilators in total from Germany through the NATO-EADRCC assistance. NATO updated situation reports—COVID-19. https://www.nato. int/cps/en/natohq/news_174854.htm. Accessed 20 October 2021.

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representatives stressed the necessity to tackle it with a more cooperative and ‘one voice’ strategy and the EU institutions mobilised to make the EU a hub of coordination and cooperation. Even if long overdue, new opportunities for assistance both at the operational and financial level materialised by the enhancement of existing structures and the creation of new instruments of short-term and long-term response. Due to space constraints, the next sections are intended to offer a brief overview of some selected measures of in-kind and financial assistance to direct support to public health and research, as well as to economic and social consequences of the emergency.48

14.3.1 The Union Civil Protection Mechanism as Provider of In-kind Assistance In-kind assistance was mainly delivered through the dual system of response capacity at the basis of the Union Civil Protection Mechanism (UCPM) thereby guaranteeing not only major coordination among the States but also underlining the need of a supranational mechanism of civil protection able to compensate national deficiencies. Originally set up in 2001, the UCPM has been institutionalised by Decision 1313/2013,49 and further reinforced by Decision 2019/42050 in order to reorganise the previous variegated and heterogeneous legal regimes and to move towards a preplanned, predictable, and coordinated response to natural and man-made disasters through a specific operational instrument. In the first place, the European Civil Protection Pool (ECPP), a voluntary pool of resources pre-committed by Member States to be deployed immediately within or outside the Union for ensuring a rapid, effective and coordinated assistance to the affected populations,51 was activated. Upon the request of the affected Member States, this allowed the deployment of pre-committed civil protection assets, including rescue or medical teams, experts, specialised equipment or transportation. In particular, Austria delivered over 3360 litres of medical disinfectant to Italy, gloves and disinfectant to Croatia, Bosnia and Herzegovina, North Macedonia, Montenegro, 48

See Castellarin 2020. Decision No. 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism, OJ L 347, 20 December 2013. Moreover, in 2014 the Commission adopted the implementing decision European Commission Implementing Decision 2014/762/EU of 16 October 2014 laying down rules for the implementation of Decision No. 1313/2013/EU, OJ L 320, 6 November 2014. For comments, see Rhinard et al. 2013; Morsut 2014; Parker et al. 2019; Casolari 2021. 50 Decision (EU) 2019/420 of the European Parliament and of the Council of 13 March 2019 amending Decision No 1313/2013/EU on a Union Civil Protection Mechanism, OJ L 771, 20 March 2019. 51 Decision (EU) 2019/420 of the European Parliament and of the Council of 13 March 2019 amending Decision No 1313/2013/EU on a Union Civil Protection Mechanism, OJ L 771, 20 March 2019, Article 11. 49

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Albania, and Moldova. Moreover, doctors and nurses from Romania and Norway were dispatched to Bergamo (Italy), being deployed through, and financed by, the EU Medical Corps, set up in response to the acute shortage of trained medical teams during the Ebola crisis in West Africa in 2014.52 In the second place, the Commission decided to rely on the extra layer of the EU Civil Protection Mechanism, called “rescEU” and introduced by the 2019 revision.53 The rescEU capacities are intended to provide assistance in overwhelming situations where overall existing capacities at the national level and those of the ECPP are not able to ensure an effective response to the disaster.54 Those capacities shall be acquired, rented or leased by the Member States with the financial support of the European Commission. The decision on the deployment of rescEU capacities is taken by the Commission in close coordination with the involved Member States, but the direction of the response operations is up to the Member State on the territory of which rescEU capacities are deployed. RescEU is conceived as a ‘last resort tool’, as the initial composition of the capacities set in the Implementing Decision 2019/570 was limited to aerial forest fire fighting, then amended to include also emergency medical response.55 However, the existing rescEU capacities for medical aerial evacuation of disasters’ victims and an emergency medical team were not be sufficient for facing the effects of the pandemic. Hence, after having received the approval of the Member States, in March 2020, the Commission adopted an additional Implementing Decision for adding medical stockpiling capacities to rescEU.56 This has allowed the creation of a rescEU reserve including ventilators and reusable masks, therapeutics, and laboratory supplies. The Commission has financed 100% the storage and transport of the assets initially stocked in Germany and Romania and then in Belgium, Denmark, Greece, the Netherlands, Slovenia, Sweden and Hungary.57 52

European Commission (2020a, b) Daily News 07/04/2020. https://ec.europa.eu/commission/pre sscorner/detail/en/mex_20_617. Accessed 28 August 2021. To date, 11 States party to the Mechanism have committed emergency medical teams and their equipment to the European Medical Corps: Belgium, Estonia, the Czech Republic, Italy, France, Germany, Norway, Portugal, Slovakia, Spain and Sweden. 53 Decision (EU) 2019/420 of the European Parliament and of the Council of 13 March 2019 amending Decision No 1313/2013/EU on a Union Civil Protection Mechanism, OJ L 771, 20 March 2019, Article 12. 54 Casolari 2021. 55 Implementing Decision (EU) 2019/570 of 8 April 2019, OJ L 99, 10 April 2019; Implementing Decision (EU) 2019/1930 of 18 November 2019, OJ L 299, 20 November 2019. In July 2019, the European Commission adopted another decision laying down rules for the establishment, management and maintenance of rescEU capacities, see Implementing Decision (EU) 2019/1310 of 31 July 2019, OJ L 204, 2 August 2019. 56 European Commission, Implementing Decision (EU) 2020/414 of 19 March 2020 amending Implementing Decision (EU) 2019/570 as regards medical stockpiling rescEU capacities, OJ L 82I, 19 March 2020. 57 Essential medical supplies have been delivered to Croatia, Czechia, France, Italy, Lithuania, Spain, Montenegro, North Macedonia and Serbia. See European Commission Press Release (2021) Coronavirus: rescEU medical stockpile expands in four Member States, IP/21/45. https://ec.europa. eu/commission/presscorner/detail/en/IP_21_45. Accessed 10 October 2021.

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In light of these evidences, the dual system of response capacity at the basis of the Union Civil Protection Mechanism has firstly guaranteed major coordination among the States. Secondly, it has underlined the increasing need of a supranational mechanism of civil protection able to compensate national deficiencies, especially in situations of symmetric emergency. Such a massive intervention has, indeed, represented a concrete way to put EU solidarity into action in favour of the Member States and those living in the EU.58 It has also been an occasion to reflect on the necessity to envisage a further enhancement of the UCPM enabling the Commission to directly procure emergency capacities in cases of urgency where national capacities are overwhelmed.59

14.3.2 The Joint Procurement of Medical Countermeasures The EU in-kind solidarity, intended to foster the pooling and sharing of strategic assets, has been matched with the coordination of the procurement procedures for the acquisition of appropriate medical devices as well as medicines and virus-testing kits. At first, the Commission provided only guidance on how Member States could best secure urgent medical supplies60 by offering clarity on the use of accelerated urgent national public procurement procedures. However, the guidelines not being binding, it was immediately clear that they were not sufficient to tackle the limited purchasing power yielded by individual Member States. Hence, the Commission issued the Communication on the Global EU response to Covid-19 highlighting the intention to activate the EU’s Joint Procurement Agreement (JPA) for the purchase of medical equipment.61 The opportunity of a joint procurement procedure is expressly envisaged in Article 5 of Decision 1082/201362 on serious cross-border threats to health adopted on the basis of Article 168(5) TFEU in response to the epidemic risk deriving from the

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European Commission (2020a, b) Daily News, 19 March 2020. https://ec.europa.eu/commission/ presscorner/detail/fr/mex_20_489. Accessed 28 August 2021. 59 A reformed civil protection mechanism has been finally adopted in May 2021, see Regulation (EU) 2021/836 amending Decision No 1313/2013/EU on a Union Civil Protection Mechanism, OJ L 185, 26 May 2021. The final version introduces the noteworthy possibility for the Commission to directly procure rescEU capacities in duly justified cases of urgency where national capacities are overwhelmed. Moreover, in the area of transport and logistics, rescEU capacities may be rented, leased or otherwise contracted by the Commission. 60 European Commission (2020a, b) Guidance on using the public procurement framework in the emergency situation related to the COVID-19 crisis, OJ C108I/1, 1 April 2020. For comments, see Baratta 2020. 61 European Commission 2020a. 62 Decision No 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 on serious cross-border threats to health and repealing Decision No 2119/98/EC, OJ L 293, 5 November 2013.

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swine flu in 2009.63 JPA is not conceived as an international agreement64 but as an administrative arrangement that entails executive functions. Indeed, it provides for the Commission to determine and manage the procedures for concluding aggregated medical supplies and medical countermeasures contracts, streamlining the procedure and “generating buying power”.65 Participating Member States are effectively assisted in accessing high-quality, in-demand medicines and medical supplies by organising procurement at a regional level.66 It is noteworthy that the JPA is not used to purchase the supplies on behalf of the participating Member States, but is a centralised and quick procurement mechanism that facilitates the purchasing competition.67 After that it is up to the participating States to purchase from the concluded contracts, confirming the voluntary nature of the mechanism. Hence, JPA is based on voluntary considerations and is complementary to national procurement procedures thus making the JPA somewhat exemplary of the EU’s supporting role in the health field. In the context of the Covid-19 pandemic, starting from February 2020, the Commission published six procurement competitions for personal protective equipment: fans, laboratory equipment, and medicinal products used in intensive care units.68 These efforts have been appreciated by Member States, also by countries that were initially reluctant (such as Poland and Sweden), and the number of signatories to the JPA has increased from six to thirty-seven since its adoption in 2014.69 On this occasion, the activation of the JPA during the pandemic has, in effect, renewed the interest in the need to ensure EU-wide solidarity in access to medicines and fostered the centralized EU procurement of emergency goods. Therefore, the Commission has made a step forward in adopting an initiative such as the JPA that aims to guarantee proximity and solidarity to national authorities as well as equitable distribution of supplies for all States. Indeed, it has not only facilitated a collaborative approach but also guaranteed proximity and solidarity to the EU citizens. At the end, even if an extended JPA remains voluntary, and hence fully dependent on the political will of the Member States, the potential occurrence of future health emergencies could 63

Mennini et al. 2017. European Commission, Considerations on the legal basis and the legal nature of the Joint Procurement. ec.europa.eu/health/sites/health/files/preparedness_response/docs/jpa_legal_nature_ en.pdf. Accessed 29 August 2021; European Commission Health and Consumers DirectorateGeneral (2020) Explanatory Note on The Joint Procurement Mechanism. ec.europa.eu/health/sites/ default/files/preparedness_response/docs/jpa_explanatory_en.pdf. Accessed 29 August 2021. 65 Sánchez-Graells 2020; Azzopardi-Muscat et al. 2012. 66 In this regard, it is necessary to mention that the EU Member States, European Economic Area (EEA) countries and candidate countries have joined the JPA. European Commission, Signing ceremonies for Joint Procurement Agreement. https://ec.europa.eu/health/health-security-andinfectious-diseases/preparedness-and-response/signing-ceremonies-joint-procurement-agreem ent_en. Accessed 14 September 2021. 67 For insights on the benefits to the use of the JPA, see Mcevoy and Ferri 2020; Sdanganelli 2020. 68 Mcevoy and Ferri 2020, p. 858. 69 As of April 2020, the JPA included all EU and EEA countries, the UK, Albania, Montenegro, North Macedonia, Serbia and Bosnia and Herzegovina, as well as Kosovo. 64

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prompt the Member States to prepare in advance and enhance their coordination and to rely on a centralised procurement system. According to a broader view, the JPA can then be seen as another way to support a more collaborative pan-European system of healthcare resulting in an accessible and inclusive European Health Union.70

14.3.3 The EU Vaccine Strategy: Solidarity Within and Beyond the EU Borders The activation of the Emergency Support Instrument71 for financing the purchase of antiviral drugs or antigen tests and, above all, the development and purchase of vaccines, deserves to be discussed separately.72 The ‘race to vaccines’ started when the pharmaceutical companies announced the first valuable tests on their efficacy and stressed the limited production in the near future. Within the EU, the risk of unequal access to vaccines among Member States was immediately apparent: while some of them had started negotiating with pharmaceutical companies for the purchase of vaccines in an autonomous way already in April 2020, the smaller or less economically strong ones risked not being able to gain sufficient access to vaccines. Aware about its limited competence in the field of health protection, the Commission tried and was able to persuade the Member States to adopt a common vaccine strategy based on the negotiation of contracts by the Commission itself for the procurement of vaccines on behalf of all the Member States.73 Hence, in June 2020 the Commission and the Member States reached an 70

In November 2020, the European Commission adopted the Health Union package to increase resilience to cross-border health threats, in particular with the establishment of the Health Emergency Response Authority, which extends the scope of cooperation in health emergencies. Among the different proposals, the Commission has included the adoption of a regulation amending Decision 1082/2013 for establishing a stronger and more comprehensive legal framework within which the Union can prepare for and respond to health crises (European Commission proposal for a Regulation of the European Parliament and of the Council on serious cross-border threats to health and repealing Decision 1082/2013/EU under the ordinary legislative procedure (2020/0322(COD)). See Hervey and de Ruijter 2020; Greer and de Ruijter 2020. 71 Council Regulation (EU) 2016/369 of 15 March 2016 on the provision of emergency support within the Union, OJ L 70, 16 March 2016. It has been adopted by taking up as a legal basis Article 122(1) TFEU that grants the Council—according to a proposal from the Commission— “in a spirit of solidarity between Member States”, the power to adopt measures appropriate to the economic situation aimed at coping with emergency situations that the States are not capable to face individually. Hence, the Emergency Support Instrument has been established as a complementary instrument with the mechanisms of in-kind nature for providing financial assistance measures to support Member States dealing with severe humanitarian difficulties in times of emergency through the direct involvement of non-governmental and independent organisations. For insights, see Villani 2021, pp. 123 ff. 72 Council Regulation (EU) 2020/521 of 14 April 2020 activating the emergency support under Regulation (EU) 2016/369, and amending its provisions taking into account the COVID-19 outbreak, OJ L 117, 15 April 2020. 73 European Commission 2020c.

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agreement granting the former the power to negotiate Advance Purchase Agreements74 with pharmaceutical companies, while the States remained responsible for the direct purchase and administration of their national vaccination programmes.75 The Advance Purchase Agreements contained a provision on the equal distribution of vaccine doses to Member States, which has ensured that each country received doses based on a pro rata population distribution key. The intervention of the Commission in respect of the vaccination process has not, however, stopped with the vaccine purchase. On 15 October 2020, the European Commission published a Communication on preparedness for Covid-19 vaccination that included key actions to be considered for national vaccination strategies in order to guarantee coordination among the Member States also in this phase.76 Among the most interesting actions, one can recall the necessity to prepare adequate infrastructures for deployment of vaccines; the update of the data included in the Immunisation Information Systems and the vaccination registers in collaboration with the European Centre for Disease Prevention and Control; and the coordination of the national responses within the Health Security Committee established by Article 7 of Decision 1082/2013 for supporting the exchange of information between the Member States and the Commission on cross-border threats to health.77 Moreover, transport and logistical support have been conceived as a significant section of the public procurement and deployment of the large Covid-19 vaccine portfolio. These practical measures and the soft law instruments concerning the vaccination procedures can be placed among the tools intended to advance the value of EU solidarity grounded on the awareness of a common interest and of a mutual connection and interdependence of peoples. Ultimately, one should not forget that, according to Article 21 TEU, the principles of equality and solidarity should guide the Union’s action on the international scene, especially when populations, countries and regions confronting natural or man-made disasters need assistance. Actually, the process of “securitization” of the vaccines for the EU Member States at the beginning hardly met such a requirement. After a first hesitation, the EU has not only mobilised e853 million in support of the campaign COVAX but has also set up an EU vaccine sharing mechanism by acting as a single point for request and securing 2.3 billion doses to be distributed to third countries in need.78 The vaccine strategy, despite being questionable in some respects, has allowed the Commission, along with national authorities, to assume its own share of 74

European Commission, Decision approving the agreement with Member States on procuring Covid-19 vaccines on behalf of the Member States and related procedures, C/2020/4192 final, 18 June 2020. 75 For comments on the critical issues linked to the advance purchase of vaccines, see Gatti 2021, pp. 53–56; Di Federico 2021; Rodríguez Rodrigo 2021. 76 European Commission 2020d. 77 Decision No 1082/2013/EU of the European Parliament and of the Council of 22 October 2013 on serious cross-border threats to health and repealing Decision No 2119/98/EC, OJ L 293, 5 November 2013. 78 European Commission 2021.

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responsibility to respond properly to the serious public health issues related to the Covid-19 crisis not only within but also outside the EU.

14.3.4 The Financial Support Vis-à-Vis the (Post-)Covid-19 Pandemic The serious socio-economic impact of the pandemic and the consequent disparities amongst the Member States have pushed the adoption of multiple financial emergency initiatives. The most reactive and prominent intervention has been certainly put in place by the European Central Bank with the Pandemic Emergency Purchase Programme (PEPP),79 announced on 18 March 2020, which has significantly expanded asset purchases, offered credits to banks and eased bank capital rules.80 For its part, the European Investment Bank has guaranteed e200 billion extra liquidity support to hard-hit small and medium-sized enterprises in the EU.81 On the social side, the Support Unemployment Risks in an Emergency (SURE) has been approved for providing financial support to national measures to tackle unemployment that risked collapsing under the weight of the economic effects of the pandemic and the lockdown measures.82 Moreover, it cannot be ignored the mobilisation and the simplification of the access criteria to specific funds, such as the Cohesion Fund83 and the EU Solidarity Fund.84 79

Decision (EU) 2020/440 of the European Central Bank of 24 March 2020 on a temporary pandemic emergency purchase programme (ECB/2020/17), OJ L 090, 25 March 2020. 80 On 4 June 2020 the Governing Council of the ECB decided to increase the e750 billion envelope for the PEPP by e600 billion to a total of e1,350 billion. See Decision (EU) 2020/1143 of the European Central Bank of 28 July 2020 amending Decision (EU) 2020/440 on a temporary pandemic emergency purchase programme (ECB/2020/36), OJ L 248, 31 July 2020. 81 European Investment Bank (2020) Press Release, The EIB Board approves e25 billion PanEuropean Guarantee Fund in response to COVID-19 crisis. https://www.eib.org/en/press/all/ 2020-126-eib-board-approves-eur-25-billion-pan-european-guarantee-fund-to-respond-to-covid19-crisis. Accessed 15 September 2021. 82 Council Regulation (EU) 2020/672 of 19 May 2020 on the establishment of a European instrument for temporary support to mitigate unemployment risks in an emergency (SURE) following the COVID-19 outbreak, ST/7917/2020/INIT, OJ L 159, 20 May 2020. For insights, see Calzolari and Costamagna 2020. 83 The Commission has modified its internal procedures to allow for a swift treatment of all requests. For an overview of the mobilised resources, see European Commission (2020a, b) Coronavirus Response Initiative: Cohesion policy action against the coronavirus pandemic. ec.europa.eu/reg ional_policy/sources/newsroom/coronavirus-response/crii_state_of_play_072020.pdf. Accessed 3 September 2021. 84 The EU Solidarity Fund was created after the severe floods in Central Europe in the summer of 2002, primarily to assist eligible countries in the emergency and recovery operations following natural disasters. The EUSF is a special instrument of solidarity and is mobilised upon applications and the assessment of their eligibility. In the forthcoming programming period 2021-2027, it will be part of the newly established Solidarity and Emergency Aid Reserve.

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As for the latter, it is noteworthy the decision to extend its material scope in order to provide financial assistance also in case of major health emergencies.85 By moving from such a decision, on March 2021, the European Commission has put forward a package of almost e530 million for supporting part of the public expenditure of 17 Member States and 3 accession countries on medical and personal protective equipment, emergency support to the population, and measures of prevention, monitoring and control of the spread of the disease.86 As stressed by the European Parliament, the Fund is one of the most concrete expressions of EU solidarity that, while respecting the principle of subsidiarity, responds to the EU citizens’ expectations to be supported by the EU institutions when disasters or serious public health emergencies occur.87 Besides these instruments of prompt response, the EU has also represented the place of discussion among the Member States to take efforts beyond the strict emergency phase. In May 2020, the Commission proposed an Emergency Recovery Instrument of e750 billion and a revised Multiannual Financial Framework (MFF) proposal for 2021–2027 for mobilising e1.824 trillion from the EU’s budget in different EU programmes.88 Negotiations held in June 2020 sparked disagreement from the notorious ‘frugal four’ States (The Netherlands, Austria, Denmark, Sweden) and Finland regarding the idea that the Commission could exceptionally issue bonds on behalf of the EU and that there was a transfer of money from wealthier Member States to the most affected ones in southern Europe. The landmark political agreement following the establishment of a Recovery Fund was finally reached on 21 July after a marathon European Council of almost five days. The deal has included a ground breaking ‘Next Generation EU’ (NGEU) plan of joint borrowing to build a recovery fund of e750 billion to be distributed among individual programmes to be allocated until 2026 and the new seven-year MFF of the e1.074 trillion EU long term budget.89 In its 10−11 December 2020 meeting, the European Council reached a compromise which opened

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Regulation (EU) 2020/461 of the European Parliament and of the Council of 30 March 2020 amending Council Regulation (EC) No 2012/2002 in order to provide financial assistance to Member States and to countries negotiating their accession to the Union that are seriously affected by a major public health emergency, OJ L 99, 31 March 2020. 86 European Commission (2021) Press Release, EU Solidarity in action: Commission proposes to mobilise almost e530 million to support emergency measures against the coronavirus pandemic. ec. europa.eu/commission/presscorner/detail/en/IP_21_1111. Accessed 3 September 2021. The beneficiary countries are Austria, Belgium, Croatia, Czechia, Estonia, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Portugal, Romania, Spain and Albania, Montenegro and Serbia. 87 European Parliament resolution of 18 May 2021 on the review of the European Union Solidarity Fund, 2020/2087(INI). 88 European Commission 2020b. See also, European Commission (2020a, b) Proposal for a Council Regulation establishing a European Union Recovery Instrument to support the recovery in the aftermath of the COVID-19 pandemic COM/2020/441 final/2, 28 May 2020 and European Commission (2020a, b) Amended proposal for a Council Regulation laying down the multiannual financial framework for the years 2021 to 2027, COM/2020/443 final, 28 May 2020. 89 Conclusions of the European Council, Special meeting of the European Council (17, 18, 19, 20 and 21 July 2020), EUCO 10/20. For comments, Fernández 2020; Hinarejos 2020.

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the road for the adoption of the recovery package.90 The regulation establishing the so-called Recovery and Resilience Facility (RRF) was adopted by the Council on 11 February 2021.91 The RRF is intended to provide grants and loans on the basis of the national recovery and resilience plans submitted by the Member States. These shall describe the reforms and public investment projects they plan to implement in the field of with the support of the RRF to recover from the pandemic-induced economic and social crisis and make their economies and societies more resilient. Given that the impact and costs of the pandemic appear to be unevenly spread in terms of sectors, Member States, and specific regions, the EU’s response to the crisis has been daring and innovative by enhancing the idea of togetherness.92

14.4 Solidarity and Equality: Two Cornerstones of the EU Response to Emergency Such a brief account of the different stages of management of the pandemic has made evident that this emergency has impacted all the Member States thereby enlightening the need of a ‘multilevel solidarity’ capable of intervening both in the initial phase and the recovery one. The intervention of the EU has, indeed, allowed a coordinated and complementary response to the Covid-19 pandemic outbreak. Moreover, the EU has not only encouraged major inter-State cooperation, but also ensured that all the affected individuals had equitable access to high-quality and affordable healthcare according to a collective spirit of solidarity. At the same time, one could also argue that, exactly because of the symmetric nature of the emergency, without the decisive intervention of the EU institutions, maybe the Member States would have continued to have just a national-oriented approach resulting in limited (and voluntary) offers of assistance. Indeed, while willingness and solidarity are not per se opposite concepts, the freedom to decide whether and how to show solidarity may result in significant shortage of assistance. And, solidarity may suffer from an over-compromise among different interests and priorities. This effective limit is essentially due to the fact that, at the moment, even in situations of emergency, a set of obligations of solidarity (in the form of a duty to provide for assistance) is not established. In this regard, it is emblematic that the first request of activation of the UCPM filed by Italy has remained unheard by the other Member States. Moreover, it cannot be ignored that, according to available data, also the activation of the so-called ‘solidarity clause’ set in Article 222 TFEU establishing an explicit and general obligation upon the Union and its Member States to act jointly “in a spirit of solidarity” for responding to crisis and emergencies has not 90

European Council, Meeting Conclusions, EUCO 22/20, COEUR 17 CONCL 8, Brussels, 11 December 2020. 91 Regulation (EU) 2021/241 of the European Parliament and of the Council of 12 February 2021 establishing the Recovery and Resilience Facility, OJ L 57, 18 February 2021. 92 Tridimas 2020.

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been put forward by any EU Member State during the pandemic.93 In effect, apart from the development of a common understanding and the constant information sharing about the situation among Member States and the EU institutions,94 the adoption of compulsory measures to be taken by the States or the Union under the clause was not even discussed. The fact that no Member State had requested its activation clearly demonstrates the existing fear of opening Pandora’s box. Indeed, the activation of the solidarity clause would have set a precedent in shaping and then scrutinising solidarity duties incumbent on the EU bodies (in the broad sense) and on the Member States. The general reluctance to establish duties of solidarity in the form of duties of assistance relies on the existence of structural limits and uncertainties on the content of the provisions of primary law as well as on the willingness and discretion of the actors involved. Indeed, the current difficulties in moving forward in the process of recognition of the legal value of solidarity are essentially linked to a plurality of views on solidarity in EU law which make today’s legal and political climate extremely uncertain. As a matter of fact, the legal dimension of solidarity essentially suffers from the fact that it is also a politically loaded concept and that different stances among Member States on the opportunity to show or not major solidarity also in exceptional situations remain. The different stages of the pandemic have also confirmed the existence of two different groups of States: while some tend to criticise the excessive dependent approach which is to the detriment of national responsibility, others perceive the Union and its Member States as still showing too little solidarity in comparison to what is required by the Treaties. As a matter of fact, the inclination to rely on the voluntary element and the creeping logic of State discretion is significantly due to the objective differences between Member States—in terms of risk, vulnerability and resources at disposal—which may disagree over compulsory interventions of solidarity.95 Interestingly, the initial ‘vaccine race’ has demonstrated that even the alleged absence of ‘moral hazard’ due to the symmetric nature of the health emergency does not change the bias. Indeed, the structural imbalance that makes some lastingly stronger than others still exists. Hence, a supranational intervention that was complementary to the national one and, as far as possible, partially autonomous from States’ willingness was proved necessary. Without the intervention of the Commission, not always free of objections, just some privileged Member States would have had the opportunity to access a significant and safe number of medical devices and vaccines. As emerged more than once in this contribution, one could say that this is not only a matter of solidarity but also of respect to the principle of equality of Member States before the Treaties enshrined in Article 4(2) TEU. Applied to situations of 93

Council Decision (EU) 2014/415 of 24 June 2014 on the arrangements for the implementation by the Union of the solidarity clause, OJ L 192, 1 July 2014. 94 Croatian Council (2020) Croatian Presidency activates EU’s Integrated Crisis Response in relation to Corona virus. eu2020.hr/Home/OneNews?id=160. Accessed 4 September 2021. 95 See Boin et al. 2007.

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emergency, this structural principle of EU law entails that all play a role and that the same opportunities of supranational assistance be guaranteed to all the Member States thereby indirectly ensuring the prevalence of the common general interest over the single ones.96 This reading of the interaction between equality and solidarity in times of emergency may also offer another reading, which is key to the necessity to introduce elements of conditionality especially to the instruments of assistance having financial character. Disregarding the SURE instrument that has been applauded for lacking conditionality of loans to Member States, the financial instruments activated to respond to the serious economic consequences of the pandemic are characterised by a conditionality model. Indeed, the provision of assistance is subjected to a set of requirements to be respected by the States receiving the aid. In particular, one can recall both the conditions envisaged for the activation of the EU Solidarity Fund in situations of major public health emergency,97 and those included in the NGEU plan as for the recovery fund. As for the latter, Member States are required to prepare national recovery plans in the light of the Country-Specific Recommendations issued by the Commission that will pay the instalments following the fulfilment of milestones and targets. Such a sort of socio-economic conditionality confirms that, contrary to what was stated by the German representative in the cited Germany v. Poland case, the provision of assistance is not “unconditional”.98 On the contrary, the activation and functioning of the relative mechanisms are strictly linked to the respect of specific conditions and requirements by the Member States thereby introducing a ‘conditioned solidarity’.99 The logical pathway of such a consideration is based on a comprehensive reading of the interaction of conditionality both with the principle of subsidiarity—conceived as a limit to the EU institutions’ action for guaranteeing the national prerogatives— and with that of equality. Indeed, in the face of a serious crisis the principle of subsidiarity—coupled with the national identity clause requiring the respect of the essential State functions100 —acquires relevance as a justification for the allocation of responsibilities to national authorities for the welfare and protection of their own population. In this perspective, conditionality in accessing EU instruments of assistance offers an objective parameter of reference to employ in EU-wide efforts performed in a spirit of solidarity when that goal cannot be sufficiently achieved by 96

See Rossi 2017, p. 36. The Solidarity Fund complements the efforts of the affected countries when the public financial burden inflicted on the eligible State for emergency response measures is estimated either at over e1.5 billion in 2011 prices or more than 0.3% of its GNI. See Article 2 of Regulation (EU) 2020/461 of the European Parliament and of the Council of 30 March 2020 amending Council Regulation (EC) No 2012/2002 in order to provide financial assistance to Member States and to countries negotiating their accession to the Union that are seriously affected by a major public health emergency, OJ L 99, 31 March 2020. 98 CJEU, Case C-848/19 P, Germany v. Poland, Judgment, 15 July 2021, ECLI:EU:C:2021:598, para 56. 99 Such an expression has already been used with reference to the EU economic governance. See Louis 2011, p. 356. 100 For insights on the ‘national identity clause’, see Di Federico 2017. 97

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the Member States. Then, where uniform solidarity actions for all the beneficiaries are necessary as in the case of the current pandemic, the inclusion of conditions for benefitting from the different instruments represents also the way for avoiding morally hazardous behaviour and, eventually, guaranteeing the application of the principle of equality for the EU general interest. Interestingly, this perspective has been further confirmed by the troubled decision to envisage the ambitious ‘rule of law’ conditionality as a key part of the financial package adopted in response to the Covid-19 pandemic. It has been stressed that “Europe must never compromise on its values. The recovery must be based on fundamentals rights and full respect of the rule of law”.101 Already proposed by the Commission in 2018,102 the idea to link the breaches of the rule of law and the protection of the financial interests of the Union has been then translated, notwithstanding the strong opposition by Hungary and Poland,103 into the rule of law conditionality in Regulation 2020/2092.104 According to the Regulation, that partially departs from the Commissions’ proposal, when a Member State breaches the principle of the rule of law and such a breach affects or seriously risks affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way, measures against that Member State can be taken.105 While Regulation 2020/2092 establishes a clear connection between rule of law violations and the financial interests of the Union, its scope is wide. Indeed, it underlines the strong link between, on one hand, respect for the rule of law and, on the other hand, mutual trust and financial solidarity among the EU and the Member States.106 Ultimately, such a perspective unveils that a system of solidarity at the 101

European Commission (2020a, b) Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions, Europe’s moment: Repair and prepare for the next generation, COM(2020) 456 final, 27 May 2020, section 6. For a comment, see Fisicaro 2019. 102 European Commission (2018) Proposal for a Regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States, COM/2018/324 final, 2 May 2018. 103 Joint declaration by the Prime Ministers of Hungary and Poland, 26 November 2020. https:// www.gov.pl/web/eu/joint-declaration-of-the-prime-minister-of-poland-and-the-prime-minister-ofhungary. Accessed 13 September 2022. 104 Regulation 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, OJ L 433, 22 December 2020. In this regard, it is necessary to stress that Hungary and Poland each brought an action before the EU Court of Justice for the annulment of that regulation (Cases C-156/21 Hungary v Parliament and Council and C-157/21 Poland v Parliament and Council). For comments on the regulation, see ex multis Circolo 2019; Scheppele et al 2020; Alemanno and Chamon 2020; Nascimbene 2021; Kirst 2021. 105 Regulation 2020/2092 of the European Parliament and of the Council on a general regime of conditionality for the protection of the Union budget, OJ L 433, 22 December 2020, Article 4(1). The measures that may be taken include, inter alia, suspension of payments, disbursements, or commitments, suspension of the approval of programmes, prohibition on entering into new agreements on loans or other instruments guaranteed by the Union budget, and a reduction of pre-financing. 106 Łacny 2021.

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disposal of all the Member States cannot disregard the constitutional foundations of the EU.

14.5 Concluding Remarks The occurrence of the Covid-19 pandemic has highlighted weaknesses and strengths of the EU legal order by also putting to the test the definition of a common understanding of solidarity. The complexity and multiple faces of solidarity have repeatedly put it in a demanding position in terms of expectations; at the same time, it has had to confront the Member States’ inclination to preserve their prerogatives and to avoid unfair or opportunistic behaviour.107 In this regard, the lack of a concrete application and the continued reluctance of States to invoke the solidarity clause also in during the health emergency lead to wonder when it could be effectively activated and what its real capacity is to embrace the whole system of assistance in the event of an overwhelming emergency. However, solidarity has demonstrated to be a multifaceted notion which permeates the supranational action by strengthening the principle of loyal cooperation. Indeed, while solidarity has underpinned the measures of assistance and entails the sharing of financial and operative burdens, the loyalty principle has ensured that they effectively are implemented by informing the interaction between the EU institutional actors and the Member States. At the same time, solidarity has been relevant for securing the principle of equality. It has operated in those situations which risked to create distortive effects and to fuel the existing structural asymmetries either for the Union as a whole or just for some Member States. The effectiveness of solidarity can be thus sought through a way that actually goes beyond the classical search for pure obligations and that is made by those instruments leading to overall results of solidarity. Indeed, solidarity has proved to be the essential starting point of the process of activation of the main instruments of assistance, but also end point and final outcome. As a matter of fact, solidarity has expressed itself as much in the pre-established pooling of resources and burden-sharing measures as in the creation of new instruments of response. While following different logics and therefore parallel levels, the instruments activated during the pandemic have demonstrated to be complementary and consistent thus guaranteeing full effectiveness of the interventions. In addition, within the framework of a coordinated and complementary response to the Covid-19 pandemic outbreak, the EU has not only encouraged major inter-State cooperation but also ensured that all the affected individuals had equitable access to high-quality and affordable healthcare according to a collective spirit of solidarity. And this is not a mere comforting conclusion, but the acknowledgment that the notion of solidarity enshrined in the Treaties should also be aimed at establishing a complex and structural system of assistance mechanisms entailing a common responsibility of solidarity able to overcome the inconsistences 107

Steinvorth 2017, p. 12.

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deriving from spontaneous offers of support. Hence, a real and desirable solidarity does not necessarily go through an obligation of assistance but certainly through the development of a complex and structural system of assistance mechanisms that have a permanent character thus bypassing the case-by-case logic. At the moment, solidarity concerns the building of a system with a deeper nature leading to overall results of de facto solidarity, exactly as required by Robert Schuman, and to a “European solidarity in action”, as stressed by the President of the European Commission on occasion of the State of the Union 2020.108 Once consolidated, this system will be able to make it easier the creation of a legal framework for the configuration of true and proper obligations to be ancillary to the further improvement of the existing system. If read according to such a paradigm, it appears clear the necessity to attribute to solidarity the role of inspiring principle for the elaboration of instruments designed to respond both to asymmetric and symmetric situations of emergency. In this way, solidarity is able to express its special position within the EU legal order alongside the role of objective and political value embracing the Union. In turn, the continuous rereading and reinterpretation of the very norms of EU law according to a teleological approach will hopefully lead to a progressive increase in application of solidarity. In effect, like the EU integration process, solidarity experiences a slow process of creation and now is probably at an evolutionary stage towards its full accomplishment and potential. Ultimately, the Covid-19 crisis is not ‘just’ a health emergency the Member States still have to confront. As stressed by Tridimas, it is not simply a response to a crisis but a blueprint for development.109 It has called for urgent action not only on health matters but mainly on structural, economic and financial issues. Moreover, the pandemic is putting to the test some other core values the EU is founded on, such as the rule of law, respect for human rights, and protection of democracy. Thus, it is not just a matter of change of paradigm of solidarity. It asks for a change of pace in the EU integration process and the current emergency represents the yardstick against which the whole Union’s failure or success will be measured. In effect, there is no doubt that the current emergency is something different from those that occurred in the past because it is a crisis which involves the whole international community. Accordingly, it does imply the necessity to rethink the resilience of the EU project and what role the EU wants to play in the constitution of a new international equilibrium that will follow this period of global crisis. The word ‘crisis’, even though slightly different in the EU official languages, has the same Hellenic etymology, that is krisis meaning ‘turning-point’. In the past, too many times the EU Member States have postponed the necessity to embark on a new path. But, after about 70 years since the Schuman Declaration, the Covid-19 pandemic has been the ‘turning-point’ and the occasion for the EU Member States to decide to start evolving in terms of values and objectives towards a real new horizon for the EU integration process. 108

European Commission (2020a, b) State of the Union Address by President von der Leyen at the European Parliament Plenary. https://ec.europa.eu/commission/presscorner/detail/en/SPE ECH_20_1655. Accessed 14 September 2021. 109 Tridimas 2020, p. XI.

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Susanna Villani, PhD, Post-doc Research Fellow in EU law, Department of Political and Social Sciences, University of Bologna, Italy.