VU Research Portal Between Rights and Market: Lawrence, J.C. 2015 document version Publisher's PDF, also known as Version of record Link to publication in VU Research Portal citation for published version (APA) Lawrence, J. C. (2015). Between Rights and Market: Governmentality in EU External Trade and Environment Policy. General rights Copyright and moral rights for the publications made accessible in the public portal are retained by the authors and/or other copyright owners and it is a condition of accessing publications that users recognise and abide by the legal requirements associated with these rights. • Users may download and print one copy of any publication from the public portal for the purpose of private study or research. • You may not further distribute the material or use it for any profit-making activity or commercial gain • You may freely distribute the URL identifying the publication in the public portal ? Take down policy If you believe that this document breaches copyright please contact us providing details, and we will remove access to the work immediately and investigate your claim. E-mail address: [email protected] Download date: 11. Oct. 2021 BETWEEN RIGHTS AND MARKET Governmentality in EU External Trade and Environment Policy © 2015, Jessica C. Lawrence Cover design by Theodore O. Lawrence ISBN 978-90-6464-861-8 VRIJE UNIVERSITEIT Between Rights and Market: Governmentality in EU External Trade and Environment Policy ACADEMISCH PROEFSCHRIFT ter verkrijging van de graad Doctor aan de Vrije Universiteit Amsterdam, op gezag van de rector magnificus prof.dr. F.A. van der Duyn Schouten, in het openbaar te verdedigen ten overstaan van de promotiecommissie van de Faculteit der Rechtsgeleerdheid op donderdag 21 mei 2015 om 11.45 uur in de aula van de universiteit, De Boelelaan 1105 door Jessica Charles Lawrence geboren te Spokane, Washington, Verenigde Staten promotor: prof.dr. G.T. Davies copromotor: dr. T.E. Aalberts Acknowledgements First and foremost, my sincere gratitude to my supervisor Gareth Davies for giving me the opportunity to embark on this adventure, and allowing me the space to go my own way. Thanks, boss. Tanja Aalberts became my co-supervisor in 2013. Her detailed comments, intellectual engagement, and dedication were exactly the cocktail I needed to help me brave the final year. Thanks for reassuring me that I had a point after all. From 1 May 2010, Laurens Ankersmit has been my constant companion, co-author, and sparring partner. If this thesis is grounded in EU law in any sense, it is thanks to him. To everyone at the VU who provided support, encouragement, and entertainment over our four years together: it was great fun. To my friends in the Netherlands: thanks for being my most welcome distraction. It would be impossible to overstate the degree to which this work was influenced by Juan Amaya Castro, whose love, wit, and intellectual sparkle have sustained me for the past eight years. Everything I write is a product of how we have grown together. To T.O., Zack, and Michelle: I promise the next book will be more entertaining. To Merrie Lawrence: You’ve kept me safe and warm through everything. Thanks for all the socks, mom. And to David Lawrence: I wish you could have been here in body, as you are in spirit. Table of Contents 1 Introduction: The Evangelical EU and Environmental Norm Export 1 1 The Evangelical EU: Trade, Environment, and Environmental Norm Export 1 2 The Scholarly Landscape and its Missing Pieces 9 3 A Brief Note on Methodology 20 2 4 Setting Outline the of Stage: Foucault, the Dissertation Governmentality, and EU Environmental 22 Norm Export 25 1 Introduction 25 2 Governmentality 28 2.1 What is Governmentality? 28 2.2 Three Forms of Governmentality: Raison d’État, Liberalism, Neoliberalism 34 2.2.1 Raison d’État 36 2.2.2 The Physiocrats and the Transition to Liberalism 41 2.2.3 Liberalism 43 2.2.4 Neoliberalism 48 2.3 Governmentality and the International: Critiques 53 3 Conceptual Framework: Rationalities, Technologies, and Subjectivities 57 3.1 Conceptual Framework 57 3.2 Truth and Rationalities of Government 57 3.3 Technologies of Government 61 3 Rights 3.4 Subjectivities and The Market: and Rationalities -­‐ Self Government of EU Environmental 62 Norm Export 67 1 Introduction 67 1.1 What are Rationalities of Government? 67 1.2 ‘Rights’ Rationalities 69 1.3 ‘Market’ Rationalities 71 1.4 Chapter Outline 74 2 Market and Rights Rationalities in EU Environmental Norm Export 74 2.1 The EU through the Market and Rights Lenses 74 2.1.1 EU History 74 2.1.2 Contemporary EU Trade & Environment Policy 82 2.2 Environmental Norm Export through the Market 88 and Rights Lenses 2.2.1 Introduction 88 2.2.2 EU Environmental Norm Export in ‘Market’ Rationality 89 2.2.3 EU Environmental Norm Export in ‘Rights’ Rationality 93 2.2.4 Conclusion 96 3 The EU Emissions Trading Scheme for the Airline Industry 98 3.1 The EU ETS for Air Transport and its Discontents 98 3.2 Market Rationality in the EU ETS Debates 103 3.3 Rights Rationality in the EU ETS Debates 108 3.4 Rationalities and their Effects in the EU ETS Debates 111 4 4 Government Conclusion and Governance: The Technologies of EU Environmental 113 Norm Export 115 1. Introduction 115 1.1 What Are Technologies of Government? 115 1.2 Rights Technologies 117 1.3 Market Technologies 119 1.4 Chapter Outline 128 2. The EU’s Trade and Environment Toolbox 130 2.1 Multilateral Agreements 130 2.2 Unilateral Import Restrictions 134 2.3 Environmental Conditionality 137 2.4 Sustainability Impact Assessments 141 2.5 Horizontal and Voluntary Partnerships 143 2.6 Market and Rights Technologies ion in Act 146 3. Environmental Norm Export in the EU—Colombia Peru FTA 148 3.1 The EU—Colombia Peru FTA 148 3.1.1 The EU, the Andean Community, — and the EU Colombia Peru FTA 148 3.1.2 Trade and Environment — in the EU Colombia Peru FTA 150 3.2 Market and Rights Technologies in the EU—Colombia Peru FTA 157 3.2.1 Rights Technologies in — the EU Colombia Peru FTA 157 3.2.2 Market Technologies in — the EU Colombia Peru FTA 159 3.3 Technologies and their Effects he in t EU—Colombia Peru FTA 160 5 4. Citizens Conclusion and Stakeholders: The Subjectivities of EU Environmental 164 Norm Export 167 1 Introduction 167 1.1 What are Subjectivities? 167 1.2 The Subject of Rights: the Citizen 171 1.3 The Market Subject: the Stakeholder 174 1.4 Chapter Outline 177 2 Citizens and Stakeholders in EU policy 180 2.1 Subjectivity as Multiple -­‐ and Multi Level 180 2.2 Subjectivity as Relational: the Production of ‘Others’ 189 2.3 Construction and Contestation 195 3 The EU Ban on Trade in Seal Products: Subjectivities in Context 198 3.1 Morals, Traditions, and Science: the EU Ban on Trade in Seal Products 198 3.3 Citizens and Stakeholders in the Seal Products Ban 213 3.3.1 The EU as Democratic ve Representati of European Citizens 213 3.3.2 The EU as a Leader of Global Citizens 214 3.3.3 The EU as Setting the Rules of the Game for Global Stakeholders 216 3.3.4 The EU as Ensuring Free Competition among Stakeholders 217 3.4 Power, Strategy, and Resistance: Subjectivities and EU Environmental Norm Export 218 6 4 Conclusion: ConclusionGovernmentality and EU Environmental Norm Export 225223 List of Abbreviations 235 Bibliography 239 1 Legislation 239 1.1 International Treaties 239 1.2 EU Treaties 240 1.3 EU Agreements 240 1.4 EU Legislation 241 1.4.1 Decisions 241 1.4.2 Directives 242 1.4.3 Regulations 243 1.4.4 Other Documents 244 1.5 WTO documents 248 1.6 Other legislation & documents 249 2 Cases 250 2.1 ECJ 250 2.2 GATT/WTO 250 2.3 ICJ 250 2.4 Other Courts 251 3 Books, Chapters, Journal Articles & Reports 251 Samenvatting4 News Articles, Press Releases & Internet Sources 277272 Chapter 1 INTRODUCTION: The Evangelical EU and Environmental Norm Export 1 The Evangelical EU: Trade, Environment, and Environmental Norm Export The preamble of the Treaty on European Union (TEU)—one of the two constitutional documents of European Union (EU)1 law—begins with a provocative definition of the relationship between Europe and the world. As the TEU would have it, the European project “Draw[s] inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, and the rule of law.” This casual preambular equation of European values and universal values is supplemented by a substantive provision, sometimes known as the TEU’s “missionary principle,”2 that obligates the EU to spread these European/universal values and interests beyond its borders: In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and development 1 For reasons of consistency and clarity, the term EU will be used throughout this dissertation, including in places where the acronym EC (“European Community”) might be more technically appropriate. 2 See, e.g., Morten P. Broberg, “Don’t Mess with the Missionary Man! On the Principle of Coherence, the Missionary Principle and the European Union’s Development Policy,” in EU External Relations Law and Policy in the Post-Lisbon Era 181 (Paul James Cardwell ed.