Musical chairs revisited: Status and terms of participation of the European Union in the un peacebuilding commission

International Organizations Law Review

Volumn 5, Issue 2, 2008, Pages 299-322

  Spernbauer, Martina ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

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EID: 72449167993     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237408X412916     Document Type: Review

References (63)

1. In this article, the term "European Union" denotes the European Union as a whole, that is the European Communities as supplemented by the Common Foreign and Security Policy and the cooperation on police and criminal matters (commonly referred to as II and III pillars). If it acts only under the II pillar, the term CFSP-Union will be used.
2. The treaty provisions in this contribution refer, unless otherwise indicated, to the current treaties: The Treaty on the European Union (TEU) and the Treaty establishing the European Communities (ECT). The future provisions as amended by the Treaty of Lisbon will be referred to in their consolidated version, namely the Treaty on European Union (TEU (Lisbon)) and the Treaty on the Functioning of the European Union (TFEU).
3. Art. 21 TEU (Lisbon).
4. Art. 23 TEU (Lisbon).
5. Art. 208 (2) TFEU.
6. For an overview, see F. Hofmeister and P.-J. Kuijper, "The Status of the European Union at the United Nations: Institutional Ambiguities and Political Realities", in J. Wouters, F. Hofmeister and T. Ruis (eds), The United Nations and the European Union: An Ever Stronger Partnership (T.M.C. Asser Press, 2006), at 14-15.
7. S/RES/1645 and A/RES/60/180 in accordance with Articles 7, 22 and 29 of the Charter of the United Nations. The resolutions were endorsed by the World Summit 2005.
8. A more secure world: our shared responsibility, Report of the Secretary-General's High-Level Panel on Treats, Challenges and Change (United Nations, 2004), at 83-85.
9. In larger Freedom: Towards Security, Development and Human Rights for all, Report of the UN Secretary-General, 2005.
10. H. Miall, "The EU and the Peace building Commission", Cambridge Review of International Affairs 20 (2007), at 32. This formulation of the UN PBC's main function was confirmed by practitioners involved.
11. OP 2 of A/RES/60/180.
12. E. Drieskens and R. Van de Cruys, "EU Representation at the UN: The Peace building Commission as a Paragon of Complexity", CFSP Forum 5:6 (2007), at 5.
13. On 12 June 2008, the Irish referendum rejected the Treaty of Lisbon.
14. Bearing in mind the constitutional dimension of cross-pillar policies, it is not surprising that the allocation of competences has given rise to a considerable level of inter-institutional disagreement and court action. On the basis of Art. 47 TEU, read in conjunction with Articles 1 (3), 2 and 3 (1) TEU, there is a "watertight divide" between the Community pillar and the Union pillar, with Community law and policies given preference over those of the Union where they overlap. In other words, "if an action could be undertaken on the basis of the ECT, it must be undertaken by virtue of that Treaty." AG Mengozzi, Opinion in C-91/05 Commission v. Council (SALW or ECOWAS case), 19.9.2007, at 116.
15. In this case, the Court of Justice indeed annulled an implementing decision of a Council Joint Action granting technical and financial support to ECOWAS in the fight against the proliferations of small arms and light weapons. Judgement of 20 May 2008, Case C-91/05 Commission v. Council [2008] nyr.
16. An argument could be made however that these are not independent objectives of development cooperation but have to be understood in conjunction with poverty reduction. Interestingly, the provisions of the Treaty of Lisbon on development cooperation (Art. 208 TFEU) no longer include a reference to democracy and the rule of law. On the other hand, according to Art. 205 TFEU, development cooperation, as any other external action, is to be "guided by the principles, pursue the objectives and be conducted in accordance with" the general provision on external action laid down in the TEU, including Art. 21, referred to above, which stipulates in para. 2 (b) that the Union shall "work ... in order to consolidate and support democracy, the rule of law, human rights and the principles of international law."
17. Council Regulation (EC) 1717 / 2006 Regulation establishing an Instrument for Stability, OJ L 327, 24.11.2006. Art. 3 (2)(c) provides that Community technical and financial assistance in response to a situation of urgency, crisis or emerging crisis shall cover, inter alia, "support for effective civilian administration,..., good governance and law and order, including non-military technical cooperation to strengthen the capacity of law enforcement and judicial authorities...." This is covered by the notion of Security Sector Reform, if one follows the definition of the security sector established by the OECD-DAC guidelines, as does the European Community.
18. The office in New York currently has a staff of merely five officials, an amount which was intended to be almost tripled in view of the implementation of the Treaty of Lisbon. For a comprehensive overview of the Council Secretariat's development path since European Political Cooperation (EPC) and the evolution of its role in CFSP, see H. Dijkstra, "The Council Secretariat's Role in the Common Foreign and Security Policy", European Foreign Affairs Review 13 (2008), 149-166.
19. Whether these statements substitute for or are an addition to its statements as UN member state varies from member state to member state and depends on the subject matter and the forum.
20. This point is argued in a similar way by S. Gstöhl, "Patchwork Power Europe? The EU's Representation in International Institutions", Paper presented at the GARNET Conference 2008, Brussels, April 24-26, at 5.
21. of all EU humanitarian assistance (including the European Community and the Member States), almost a third is devoted to UN projects, especially those run by UNHCR. Similarly, of the development aid funded by the European Community, a considerable share flows to UN programs, funds and specialized agencies, especially UNDP, WFP and UNRWA. J. Wouters, "The United Nations and the European Union: Partners in Multilateralism", (2007) Working Paper No. 1, Leuven Centre for Global Governance Studies, at 7.
22. Gstöhl, note 19 above, at 5.
23. This means that development cooperation is to be exercised by the Community and the Member States "within their respective spheres of competence and 'without prejudice' to the Member States' competence in the international arena (see also Art. 174 (4) ECT) and that the Member States [remain free to act and] are accordingly entitled to enter into commitments themselves vis-à-vis non-member States, either collectively or individually, or even jointly with the Community"; Case C-316/91 Parliament v. Council (EDF) [1994] ECR I-0625, at 34-35.
24. For humanitarian aid, see Cases C- 181/91 and C-248/91, Parliament v. Council and Commission (Bangladesh) [1993] ECR I-3685, at 26.
25. For a discussion on the High Representative of the Union and the European External Action service, see for instance J. Wouters, D. Coppens and B. De Meester, "The European Union's External Relations after the Lisbon Treaty", in S. Griller, J. Ziller (eds), The Lisbon Treaty and the Future of European Constitutionalism, Publication Series of ECSA Austria, Vol.11, (Vienna/New York: Springer, 2008).
26. Art. 220 TFEU.
27. Art. 15(6) TEU (Lisbon) provides that the President of the European Council "shall, at his or her level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy."
28. The UN PBC in its country-specifc confgurations; see below. The European External Action Service is referred to in Art. 27 (3) TEU (Lisbon). It is unclear whether, and in fact in view of the double-hatting it is rather unlikely that the Union High Representative and the European External Action Service will limit themselves to matters of CFSP. And indeed already now, the European Commission representative gives way to the Presidency in matters other than exclusive Community competence and/or where the European Community enjoys formal membership. For the implementation of the Lisbon Treaty, it is for instance conceivable that either the current Heads of Missions (HoMs - of the Commission Delegations) act on behalf of the Union High Representative or that new "deputy positions" will be created. Another important question is whether the EU member states - especially on the main multilateral sites - will consent to the replacement of the rotating Presidency altogether.
29. Where non-state membership does occur, and this is rather exceptional, it has required an amendment of the constitutional statute of the organisation or agency. The European Community enjoys, for instance, full membership in the FAO since 1991 and in the Codex Alimentarius Commission since 2003.
30. For a discussion of the European Union's/European Community's status in a broad range of international organisations and organs and agencies of the UN family, see F. Hofmeister, "Outsider or Frontrunner? Recent developments under international and European law on the status of the European Union in international organisations and treaty bodies", CML Rev. 44 (2007), 41-68.
31. See also J. Sack, "The European Community's Membership of International Organisations", CML Rev. 32 (1995), 1227-1256.
32. Art. 52 (1) UN Charter.
33. Art. 53 (1) UN Charter. In fact, the EU does not consider itself to be a chapter VIII organization in this respect, but in any case "any international organisation ... may be called upon by the Security Council for pacific settlement activities and, as appropriate, for enforcement of the Council's decisions." K. Graham and F. Tania, "Regional Organisations and Collective Security: The Role of the European Union", in M. Ortega (ed.), The European Union and the United Nations: Partners in Effective Multilateralism (2005) Chaillot Paper No.78 EU Institute for Security Studies.
34. Other organisations have been granted observer status only in three limited cases in the 1990s, namely the International Committee of the Red Cross, the Sovereign Order of Malta and the "International Federation of Red Cross and Red Crescent Societies. It is difcult to see how the latter is distinct from other non-governmental organisations. P. Willets, "From Consultative Arrangements to Partnership: The Changing Status of NGOs in Diplomacy at the UN", Global Governance 6 (2000), 192.
35. An argument can be made however for a "functional legal personality" of the European Union, based on the fact that it may pursuant to Art. 24 TEU enter into international agreements, a provision which indeed has been widely used for the ratification of over 80 Union agreements. See for instance, S. Marquardt, "The Conclusion of International Agreements under Article 24 of the Treaty on European Union", in V. Kronenberger (ed.), The European Union and the International Legal Order: Discord or Harmony? (Asser Press, 2001) 333;
36. G. Bono, "Some Refections on the CFSP Legal Order", CML Rev. 43 (2006), 337;
37. and in particular R. Wessels, "The European Union as a Party to international agreements: shared competences, mixed responsibilities?", in A. Dashwood and M. Maresceau (eds), Recent Trends in the External Relations of the Union (2006), forthcoming.
38. Magiera, "Article 9", in B. Simma (ed.), The Charter of the United Nations - A Commentary (OUP, 1994).
39. J. Wouters, "The European Union as an actor within the United Nations General Assembly", in V. Kronenberger, The European Union and the International Legal Order: Discord or Harmony? (T.M.C. Asser Press, 2001), at 382. Rule 39 of the UN SC's Provisional Rules of Procedure on the other hand serves as the basis for the rare occasions on which a representative of the European Commission (mostly the Commissioner for External Relations) addresses the UN SC.
40. M. Farrell, "EU Representation and Coordination within the United Nations", in K.V. Laatikainen, K. Smith, The European Union at the United Nations - Intersecting Multilateralism (Palgrave, 2006), at 35.
41. On the clear overall tendency towards a high degree of convergence in voting behavior of the EU member states in the General Assembly, see Wouters, note 33 above, at 387-1340
42. Hofmeister, note 27 above, at 55.
43. OP 4 of A/RES/60/180. Consequently, seven EU Member States are currently sitting in the OC: France (UN SC), United Kingdom (UN SC), Italy (top financial contributor), the Netherlands (top financial contributor), Germany (top financial contributor), the Czech Republic (ECOSOC) and Luxembourg (ECOSOC).
44. OP 7 of A/RES/60/180. A composition of the UN PBC's country-specific confguration may be illustrated by the CSM on Burundi on 8 April 2008 where nameplates and seats were provided for the following organisations and institutions (in addition to those of the members of the OC): the European Community, the African Union, the Economic Community of the Central African States, the African Development Bank, the "Organisation International de la Francophonie", the Organisation of the Islamic Conference, the Inter-Parliamentary Union, the IMF, the World Bank, the East African Economic Community, the Economic Commission for Africa, the Special Representative of the Secretary-General in Burundi, and the Special Representative of the Secretary-General for the Great Lakes Region. Moreover, a further seven UN member states sat on the Burundi CSM: South Africa, Uganda, Rwanda, the Democratic Republic of Congo, Kenya, Nepal and Canada.
45. Note from PSC to COREPER, Council doc. 8960/06 of 4 May 2006.
46. Certainly, it is difcult to imagine how, especially under the assumption that the UN PBC convened at the highest level, the Commissioner for External Relations and the EU Presidency/HR/SG would switch seats in the course of a meeting in order to give credit to respective competences and responsibilities.
47. Note from the Presidency to COREPER, Council doc. 14452 of 26 October 2006.
48. Council doc. 16834/06 EXT 1.
49. Even if the Commission legal service and the New York delegation had warned against such a denomination, arguing that it would collide with the status and history of the European Community at the UN.
50. PBC/1/OC/SR.7.
51. Previously no institutional donors at all had been admitted to the meetings of the Organisational Committee as the OIC, whose role in the field of development policy can hardly be compared with the one exercised by the Community, had made a similar request. Hofmeister, note 27 above, at 53.
52. In order to facilitate this agreement, the Slovenian Presidency has adopted the practice of sending written "speaking points" to the Commission Delegation.
53. "The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers."
54. As it is done in the Annex to the note sent from PSC to COREPER on 4 May 2006. Council doc. 8960/06.
55. The caveat in the last paragraph of Art. 19 TEU with respect to the permanent members of the UN SC is to be mentioned, however.
56. Annex to the note sent from PSC to COREPER on 4 May 2006. Council doc. 8960/06.
57. On decision-making in the UN PBC, limited to one sentence, see OP 18 of A/RES/60/180, according to which "the Commission shall act in all matters on the basis of consensus of its members."
58. Website of the EU at the UN, .
59. Farrell, note 34 above, at 35.
60. At the same time, the intergovernmental reflexes of the UN PBC members seem to be omnipresent. For the field mission of a delegation of the UN PBC to Burundi, the European Commission had to request - during the CSM on 8 April 2008 on Burundi - to be invited and involved, although it could demonstrate a long and experienced presence on the ground.
61. Hofmeister, note 27 above, at 54.
62. ECOSOC Decision 1995/201 of 8 February 1995.
63. Hofmeister, note 27 above, at 54.