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Rethinking Europe's « Rule of Law » and Enlargement Agenda SIGMA Papers No. 49 Rethinking Europe's « Rule of Law » and Enlargement Kalypso Nicolaidis, Agenda: The Fundamental Rachel Kleinfeld Dilemma https://dx.doi.org/10.1787/5k4c42jmn5zp-en Support for Improvement in Governance and Management A joint initiative of the OECD and the EU, principally financed by the EU RETHINKING EUROPE’S “RULE OF LAW” AND ENLARGEMENT AGENDA: THE FUNDAMENTAL DILEMMA Kalypso Nicolaidis1 and Rachel Kleinfeld2 SIGMA Paper No. 49 1 Professor of International Relations, University of Oxford 2 Director, Truman National Security Project, and non-resident associate of the Carnegie Endowment for International Peace This document has been produced with the financial assistance of the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union, and do not necessarily reflect the views of the OECD and its member countries or of the beneficiary countries participating in the SIGMA Programme. This document and any map included herein are without prejudice to the status of or sovereignty over any territory, to the delimitation of international frontiers and boundaries and to the name of any territory, city or area. THE SIGMA PROGRAMME The SIGMA Programme — Support for Improvement in Governance and Management — is a joint initiative of the OECD and the EU, principally financed by the EU. In 2012, SIGMA supports the public governance reform efforts of the following countries: EU Candidates and Potential Candidates – Albania, Bosnia and Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Kosovo*, Montenegro, Serbia and Turkey. European Neighbours – Algeria, Armenia, Azerbaijan, Egypt, Georgia, Jordan, Lebanon, Moldova, Morocco, Tunisia and Ukraine. SIGMA provides assistance in the following areas: Legal Framework and Civil Service Management: Civil service and human resources management; Administrative law and justice; Regulatory policy. Public Finance Management: Public expenditure management; Public internal financial control; External audit. Public Procurement. Policy-making and Co-ordination: Policy development, co-ordination and implementation. Strategy and Reform. SIGMA uses a variety of support mechanisms: Advice on reforms, design and implementation of strategies and strategic development plans; Analysis and assessment of legal frameworks, methodologies, systems and institutions; Peer reviews and assistance; Drafting of studies, handbooks and other reference material; Methodological, technical and strategic input to optimise other Commission assistance; Training; Support to networks of policy-makers and practitioners. Further information on SIGMA: www.sigmaweb.org © OECD 2012 All requests for permission to reproduce or translate this publication for commercial or non-commercial purposes should be submitted to [email protected] * This designation is without prejudice to positions on status, and is in line with UNSCR 1244/99 and the ICJ Opinion on the Kosovo Declaration of Independence. 2 ACKNOWLEDGEMENTS This paper was written by Kalypso Nicolaidis and Rachel Kleinfeld in close collaboration with SIGMA staff Bob Bonwitt, Francisco Cardona and Pauline Greco. The authors would like to thank the scholars and experts who provided their input including: Bohan Vitvitsky, Nikiforos Diamandouros, Pilar Domingo, Pavlos Eleftheriadis, Denis Galligan, Ian Harden, Tobias Lenz, Giorgio Bernardo Mattarella, Jean-Claude Piris, Aleksandra Rabrenovic, András Sajó, Karl-Peter Sommermann, Calliope Spanou, and Andreas Woergoetter. Special thanks to Martin Krygier. 3 TABLE OF CONTENTS I. EXECUTIVE SUMMARY .................................................................................................................................. 6 I. INTRODUCTION ............................................................................................................................................ 7 Framing the Problem ................................................................................................................................... 8 1. Inconsistency between Accession, Assessment and Assistance ....................................................... 8 2. The fuzzy conceptual boundaries between democracy, human rights and the “Rule of Law” as political criteria ....................................................................................................................................... 10 3. The pitfalls of the EU’s “anatomical” approach: institution-focussed, State-centric, means-based12 - Scope: Legal-institutional focus ................................................................................................. 13 - Actors: EU and State-centric ...................................................................................................... 14 - Target: A focus on means rather than ends .............................................................................. 14 4. Rethinking the “Rule of Law” criterion in the context of enlargement: The “Rule of Law”/Enlargement dilemma .................................................................................................................. 15 II. THE “RULE OF LAW”/ENLARGEMENT DILEMMA (1): MAXIMISING IMPACT AND THE NEED FOR AN ”ENDS-BASED” APPROACH TO ASSESSING AND PROMOTING THE “RULE OF LAW” .................................... 17 1. From the laws on the books… ......................................................................................................... 17 2. …to the institutions of justice… ...................................................................................................... 19 3. …to power structures and processes … .......................................................................................... 19 4. …to socio-cultural realities .............................................................................................................. 21 5. Summing up: From the law on the books to law in action ............................................................. 23 III. THE “RULE OF LAW”/ENLARGEMENT DILEMMA (2): MINIMISING INCONSISTENCY AND THE NEED FOR RESTRAINT ..................................................................................................................................................... 25 1. Contestability: contested interpretation is at the heart of the “Rule of Law” ............................... 26 2. Diversity: different national traditions underpin the “Rule of Law” in the EU ............................... 27 3. Autonomy: we cannot escape the complex relationship between national and EU versions of the “Rule of Law” .......................................................................................................................................... 30 4. Definitions-as-frames: towards an eclectic definitional approach? ............................................... 31 5. Definitions-as-aspiration: the “Rule of Law” is a shared aspiration, not an end to be “achieved” as a condition for accession ........................................................................................................................ 32 IV. OPERATIONALISING THE NEW APPROACH: DEFINITIONS, ASSESSMENT, ASSISTANCE ........................... 35 1. Definitions and benchmarks in a pan-EU perspective .................................................................... 35 2. Fine-tuning assessments and assistance in tandem ....................................................................... 39 Step1: Assessing “ends” in the breach, identifying zones of non-law and curbing violations ........... 39 Step 2: Disaggregating the problem: Four realms .............................................................................. 40 Step 3: Determine new indicators, evaluation targets and measurement goals ............................... 41 Step 4: Identify nodes of opposition and support .............................................................................. 44 Step 5: Assessing actual reform and designing assistance measures and programmes .................... 46 3. Summing up: Principles for action .................................................................................................. 48 4 V. CONCLUSION AND RECOMMENDATIONS: THE SUSTAINABILITY TEST .............................................. 50 1. Strategy ........................................................................................................................................... 50 2. Caveats ............................................................................................................................................ 51 3. In the short term ............................................................................................................................. 51 Last words .............................................................................................................................................. 52 Boxes Box 1. Five citizen-centred “Rule of Law” principles ................................................................................. 37 Box 2. Using indicators to assess “equal access” ...................................................................................... 44 5 I. EXECUTIVE SUMMARY This paper sets out a strategy calling for a radical overhaul of the manner in which both the EU and aspiring member states define and implement what the Copenhagen criteria refer to as the “Rule of Law” in pursuit of the elusive goal of sustainability. While pointing to the limits of the current “anatomical
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