THE EU IN THE WORLD OF INTERNATIONAL ORGANIZATIONS: DIPLOMATIC ASPIRATIONS, LEGAL HURDLES AND POLITICAL REALITIES

Transcription

1 Working Paper No. 121 September 2013 THE EU IN THE WORLD OF INTERNATIONAL ORGANIZATIONS: DIPLOMATIC ASPIRATIONS, LEGAL HURDLES AND POLITICAL REALITIES Jan Wouters Jed Odermatt Thomas Ramopoulos

2 THE EU IN THE WORLD OF INTERNATIONAL ORGANIZATIONS: DIPLOMATIC ASPIRATIONS, LEGAL HURDLES AND POLITICAL REALITIES 1 Jan Wouters Jed Odermatt Thomas Ramopoulos ABSTRACT The Lisbon Treaty emphasizes the European Union s (EU) commitment to multilateralism. A key part of this is the EU s engagement with and participation in international organizations (IOs). While the EU has clear ambitions to take part and play a leading role in IOs, it faces significant obstacles in making this a reality. This paper begins by outlining the status the EU currently enjoys in IOs, ranging from full member to observer or no status at all. It then examines some of the legal and political issues the EU faces when seeking to join or upgrade its status in an IO. Issues such as representation in areas of shared competence and the difficulties arising from parallel membership in an IO are discussed. It then examines how the EU goes about choosing which IOs to seek closer co-operation with, discussing its efforts to improve its representation in three IOs: the Arctic Council, the International Maritime Organization and the International Atomic Energy Agency. It is submitted that the EU s involvement in IOs is as much a legal issue as it is a political and diplomatic one. Upgrading the EU s status in IOs requires more than legal changes; it requires careful diplomacy to ensure that the EU s international status lives up to its external aspirations. KEY WORDS European Union, EU External Relations, EU Diplomacy, International Organizations, Arctic Council, International Maritime Organization, International Atomic Energy Agency AUTHORS Jan Wouters is Jean Monnet Chair ad personam EU and Global Governance, Full Professor of International Law and International Organizations and Director of the Leuven Centre for Global Governance Studies and the Institute for International Law, KU Leuven. Jed Odermatt is a PhD researcher at the Leuven Centre for Global Governance Studies (KU Leuven). Thomas Ramopoulos is a PhD researcher at the Leuven Centre for Global Governance Studies (KU Leuven). ADDRESS FOR CORRESPONDENCE Jan.Wouters@ggs.kuleuven.be Jed.Odermatt@ggs.kuleuven.be Thomas.Ramopoulos@ggs.kuleuven.be 2013 by Jan Wouters, Jed Odermatt and Thomas Ramopoulos. All rights reserved. No portion of this paper may be reproduced without permission of the authors. Working papers are research materials circulated by their authors for purposes of information and critical discussion. They have not necessarily undergone formal peer review.

3 TABLE OF CONTENTS 1 Introduction The EU s Legal Status in International Organizations: Layered Levels of Participation EU Participation and Representation in International Organizations: Internal Legal Issues Representation Issues in an IO Arising from Shared Competences Issues Arising from Parallel Membership in an IO Issues Arising from Representation by the Member States on Behalf of the Union Upgrading the EU s Role in International Organizations In which international organizations should the EU seek upgraded status? UN General Assembly Arctic Council International Maritime Organization International Atomic Energy Agency Factors Driving the EU s Quest for an Upgrade Conclusion Bibliography... 14

4 THE EU IN THE WORLD OF INTERNATIONAL ORGANIZATIONS: DIPLOMATIC ASPIRATIONS, LEGAL HURDLES AND POLITICAL REALITIES 1 Jan Wouters Jed Odermatt Thomas Ramopoulos 1 INTRODUCTION The Lisbon Treaty emphasizes the European Union s (EU or Union) commitment to multilateralism, stating that it shall seek to develop relations and build partnerships with [...] international, regional or global organisations and to promote multilateral solutions to common problems, in particular in the framework of the United Nations (Art. 21(1), second para., TEU). Moreover, one of the objectives of the EU s external action is to promote an international system based on stronger multilateral cooperation and good global governance (Art. 21(2)(h) TEU). The EU being itself one of the most advanced forms of multilateral cooperation among states, it is quite understandable that it would be committed to a stronger international society, wellfunctioning international institutions and a rule-based international order (European Council 2003a). The Union not only seeks to participate in this multilateral system, it actually aims to have a leading role in shaping it (European Council 2008). A key part of the EU s engagement in this multilateral order is its participation in international organizations (IOs). The present paper discusses the obstacles facing the EU when it seeks to assume a more prominent role in IOs. Such an effort is in line with the post-lisbon external relations architecture of the EU, and its outcome may at times impact upon the diplomatic influence of the Union abroad. The first part briefly outlines the different forms of participation the EU enjoys in various organizations. The next part examines the internal legal issues that still plague the Union when it seeks to be represented at IOs. Although the Lisbon Treaty was designed to eliminate many of these internal legal problems in EU external relations, new problems have emerged and some older ones are yet to be fully resolved. These include issues such as representation in areas of shared competences as well as the representation by the EU Member States in IOs where the EU does not have any status. The paper then turns to the external environment, an international legal system that is still heavily biased towards participation by states. Of the many international organizations that now play an important role in global governance, how does the EU decide which ones it shall develop closer cooperation with and the appropriate level of its representation in those bodies? The obstacles preventing the EU from enjoying membership and full participation in IOs are in reality often a mix of legal and political issues. Disagreements over the EU s status and representation in international fora not only stem from differing legal interpretations of the relevant Treaty provisions; they also stem from diverging views about who is the proper actor to represent the Union internationally. Likewise, the insistence of some non-eu states that the EU should not be given a prominent role in (some) IOs often stems from an unwillingness to see international bodies dominated by regional organizations, especially when Europe is already considered to be over- 1

5 represented in many international fora. Legal amendments to the EU Treaties or changes to the statutes of other IOs are helpful, but they are not always enough to ensure adequate representation of the EU in these bodies. 2 THE EU S LEGAL STATUS IN INTERNATIONAL ORGANIZATIONS: LAYERED LEVELS OF PARTICIPATION The EU s performance in IOs has been mixed, in part due to the differing levels of status of the EU in multilateral fora. (Wouters et al. 2013a: 79) Full membership of the Union remains an exceptional situation and in most cases the EU enjoys various levels of participation rights short of full membership. The different statuses are the result both of its internal allocation of competences, the legal provisions governing membership of each IO, and of course the political preferences of EU Member States and the non-eu states members of each organization. The Union s status in IOs often reflects its level of competences in the areas covered by the organization. For instance, the EU s full membership of the World Trade Organization (WTO) corresponds with its exclusive competence in the field of common commercial policy. The same is the case with the status of the Union in most fisheries organizations, where it also enjoys exclusive competence. (Art. 3(1)(d) TFEU; see also Wouters et al. 2009). Yet the level of EU competences and representation within an IO do not always match closely. The situation is more complicated in areas of shared competence where the EU has enacted significant internal legislation in a field dealt with by an IO. The EU s significant competences and law-making activity in the field of transport have not led to membership in important organizations such as the International Maritime Organization (IMO) or the International Civil Aviation Organization (ICAO). In most cases where it seeks to institutionalize its involvement in an IO, the EU has pursued and enjoys observer or enhanced observer status. This should come as no surprise given the fact that the basic instruments of most IOs provide for membership only by states, and the amendment of these instruments is often an onerous procedure. This is the case, for instance, with the United Nations (UN) where EU membership would require an amendment to Article 4(1) of the UN Charter and for the overwhelming majority of UN specialized agencies. Another such example is the World Customs Organization (WCO) where the EU enjoys status akin to WCO membership. While the WCO has accepted the then Community s request to join the WCO in 2007, full membership will occur only when a clause in the WCO Convention allowing economic and customs unions to join is ratified by all 172 members. Therefore, EU membership of an IO is also conditioned by the willingness of states members to that IO to sanction such a development. Observer status can include everything from merely the right to attend meetings to the right to participate fully in the work of the IO with the exception of voting. Being an observer does not always imply that the EU plays merely a passive role. Indeed, the meaning of being an observer has changed significantly over time, and the EU is in practice often a full participant or enhanced observer (Hoffmeister 2007: 54). 2

6 The rights enjoyed by the EU as an observer will still often depend on the attitude of third states which are full members of the organization (see Gstöhl 2009: , 401). Their attitude may change over time. IOs may seek to define and limit the participation rights of non-members, fearful that they are to play too large a role in the IO. For instance, in 2004, the Organisation for Economic Co-operation and Development (OECD), where the EU enjoys enhanced observer status close to de facto membership (Supplementary Protocol No. 1 to the Convention on the OECD 1960; see Emerson et al. 2011: 96-7), updated its policy on participation by nonmembers (OECD 2004). On a different occasion, after gaining enhanced observer status at the UN General Assembly (UNGA), the EU still had to push to have this status accepted in practice by UN Members (see below). While enhanced observer status provides a useful formal legal avenue for EU participation where membership is not legally or politically possible, it often still requires a sustained effort from the EU to safeguard its position in the IO. There are, lastly, organizations and organs where the EU is not a member and enjoys no official observer or similar status. In these situations, the EU must rely on its Member States to pursue its interests in the IO. A notable example of this is at the UN Security Council, a body where the EU has significant interests, but no formal representation. The EU Member States represented in that body are to concert and keep the other Member States and the High Representative fully informed (Art. 34(2) second para. TEU) and the High Representative is also to be invited to present the Union s positions (Art. 34(2) third para. TEU). In a similar vein, the EU, and in particular the euro area, has to rely on its Member States to represent it in a number of international financial institutions and conferences (IFICs), such as the International Monetary Fund (IMF). Pursuant to Article 138(1) TFEU the Council shall adopt a decision establishing common positions on matters of particular interest for economic and monetary union within the competent international financial institutions and conferences. Article 138(2) TFEU allows for a unified representation of the euro area in IFICs. However, this provision has not yet been implemented in practice although the Commission has indicated that it intends to bring a proposal for a Council Decision under Article 138(1) TFEU (European Commission 2012b). Despite the clear legal framework in this field of law, inaction by the EU institutions and the euro area Member States is again explained both by internal political considerations and legal constraints imposed by the founding instruments of some IFICs (see Wouters et al. 2013c: ). Thus, while competences matter (Jørgensen and Wessel, 2011: 273), they are clearly not the only issue that determines the EU s decision whether to take part in an IO. The position of the Member States is also a key factor. Moreover, the EU is simply not capable of joining each and every organization where it has competences, either due to the constitutive charter of the organization limiting membership to states, the unwillingness of third states members of an organization to accept EU membership, or the EU s own practical limitations. While the Union has a long and ambitious list of aims and objectives to achieve in its relations with the wider world (Art. 3(5) TEU), it does not possess sufficient political capital and human resources to spend in the effort to join or upgrade its status in all relevant IOs. Besides competences, the EU must also take into account its key external relations objectives as well as its strategic and 3

7 economic interests. The decision to participate in an IO is therefore as much a legal question as it is a political and diplomatic one. 3 EU PARTICIPATION AND REPRESENTATION IN INTERNATIONAL ORGANIZATIONS: INTERNAL LEGAL ISSUES The EU Treaties and the case-law of the Court of Justice of the European Union (CJEU) favor the participation of the EU in IOs as a means to exercise its competences (CJEU 1977: para. 5; CJEU 1994). This includes both internal competences with an external dimension and external competences. However, given the complex constitutional structure and the complicated allocation of competences within the EU, participation and representation in IOs has seen disagreements among EU institutions and Member States. This section examines the main aspects of these problems, presenting the internal legal and political reasons for the EU s layered status and often complicated representation in IOs. 3.1 REPRESENTATION ISSUES IN AN IO ARISING FROM SHARED COMPETENCES The drafters of the Lisbon Treaty sought to address the issue of EU external representation, through establishing a new institutional structure of the Union s external action as well as by delimiting competences in the EU Treaties. However, this reform has given rise to disagreements over the appropriate representation of the EU and its Member States in IOs in areas of shared competence. Given the fact that the principle of pre-emption applies in this field of competences, some Member States fear that if the Union and the Member States are represented together by an EU institution without clear indication of the internal allocation of competences, then Member States will be later prevented from exercising their competences (Polish Institute of International Affairs 2012: 7). In other words, they fear that a so-called representation creep may eventually equate to a competence creep (Foreign & Commonwealth Office 2013: 40-41). While this argument may seem persuasive on first glance, it does not hold up to serious legal scrutiny. First, it is doubtful that a unified representation of the Union and its Member States in an IO can be considered legally to constitute an exercise on behalf of the Union of its shared competence. Second, mere practice in an IO cannot change the allocation of competences enshrined in the EU Treaties. Actually, the Court has found that only those parts of a mixed agreement, or for that matter of the agenda of an IO, for which the Union has made a declaration of competence, come under the Union s sole competence (CJEU 2006: para. 99). Lastly, without making a reference to specific categories of competences, Article 17(1) TEU provides that the Commission is to represent the EU with the exception of the common foreign and security policy, and other cases provided for in the Treaties. The EU s representation in IOs involves similar legal and political issues as those regarding negotiations for the conclusion of legally binding international agreements (see Eeckhout 2011: ). Both the determination of the Union negotiator or negotiating team, and that of the legal bases of international agreements, have seen internal friction among EU institutions and Member States. The reasons for this lie with the desire by the Member States to safeguard their competences in the area of 4

8 shared competences and to maintain their international visibility. Grounded in the new post-lisbon provisions that ostensibly leave the question of the Union negotiator open and in the hands of the Council (Art. 218(3) TFEU), Member States have attempted to secure a role in the negotiations for themselves, provoking on at least one occasion a major diplomatic crisis (see Corthaut and Van Eeckhoutte 2012: ; De Baere 2011: ). Given the often unclear delimitation of competences and the numerous areas of law covered by international agreements, the Council has been liberal in adding legal bases to them in order to ensure that the agreements become mixed in nature. In many cases, this seems to defy the CJEU s case-law on the economy of legal bases and has led to new applications for annulment of decisions authorizing the opening of negotiations for an international agreement (see CJEU 1996; CJEU 2009a; further CJEU 2012a). Article 3(2) TFEU, which confers on the EU exclusive external competence to conclude international agreements in specific situations, has further complicated things. The wording of the article is too broad and insufficiently clear. Craig and Cremona concur that if read literally, Articles 3(2) and 216 TFEU would mean that implied shared competence would disappear (Craig 2010: 167; Cremona 2008: 61). The same problem would also occur regarding supporting competences (Craig 2010: 167). This is in contrast to the case-law (see Kuijper et al. 2013: 1-21) and the recommendations of the Working Group VII on External Action of the European Convention (European Convention 2002: 4, 15-6). The confusion stemming from the novel Treaty provisions has therefore produced legal concerns on the part of Member States about their powers in the area of shared competences, and less so in that of supporting competences, when the EU participates in the work of an IO and when it enters into a legally binding international agreement. These concerns have translated into rearguard battles among EU institutions to safeguard their respective positions. 3.2 ISSUES ARISING FROM PARALLEL MEMBERSHIP IN AN IO The EU and its Member States often face internal problems originating from their parallel membership in an IO. The most characteristic example of such a case is the Food and Agriculture Organization (FAO) where the EU (initially the Community) and its Member States have been members in parallel for more than two decades. The EU and its Member States agreed on an arrangement (Council 1991), whereas the last declaration of competences of the Community in the FAO was issued in 1994 (President of the Council of the European Union 1994). Similar arrangements exist for the participation of the EU and its Member States in the Codex Alimentarius Commission (Council 2003). The Commission does not consider the experience from these arrangements in FAO to have been successful since their application has constantly led to time-consuming discussions on the division of competences. (European Commission 2013a: 4) These disagreements even reached the point of having a case decided by the CJEU (CJEU 1996). For this reason and in light of the changes brought about by the Lisbon Treaty, the Commission recently issued a Communication to the Council where it argues in favor of replacing the current internal arrangements and the declaration of competences to FAO (European Commission 2013a: 4-5). In order to pre-empt disagreements by Member States, it makes the (legally unnecessary) clarification that [n]either the new Declaration of competences, 5

9 nor the new arrangements affect in any way the division of competences between the EU and its Member States as provided for under the Treaties. (European Commission 2013a: 3) The experience of the co-existence of the EU and its Member States in the WTO has been rather more successful. Still, the WTO is an uncommon example of an IO where the EU was already deeply engaged in its predecessor, the GATT (See CJEU 1972: paras 14-5; also Lenaerts and Van Nuffel 2011: 973-4). More importantly the Union s Member States have been happy to let it take the lead in practically all aspects of the work of the WTO. The reason for that lies both in the exclusive competence of the EU in common commercial policy and in the expertise accumulated by the Commission in this field. On the contrary, FAO is illustrative of the problems that usually arise in IOs where the EU and its Member States pursue the path of parallel membership. 3.3 ISSUES ARISING FROM REPRESENTATION BY THE MEMBER STATES ON BEHALF OF THE UNION As discussed above, in many IOs the EU will be left with no formal representation, despite the fact that it exercises significant competences in the field. In these cases the EU Member States are left to represent the EU when issues touching upon EU competences are addressed. While this is not always problematic, in some cases it has led to legal disputes over the Member States duties towards the EU (and vice versa). It is important to note that even in these cases the internal allocation of competences must be complied with. Member States have to act on behalf of the Union in matters that fall within its competence, an obligation stemming directly from the principle of sincere cooperation in Article 4(3) TEU (see De Baere 2008: ; Hillion 2009). As the CJEU has pointed out on different occasions, the duty of genuine cooperation is of general application and does not depend either on whether the Community competence concerned is exclusive or on any right of the Member States to enter into obligations towards non-member countries (CJEU 2010: para. 71). Nonetheless, the intensity of obligation differs depending on the category of the competence. In areas of exclusive competence, the obligations of Member States are relatively straightforward. Member States can act only after having secured authorization from the Union (see Cremona 2009; Neframi 2010: 341). Member States cannot act unilaterally even to initiate a non-binding procedure as long as this could lead to the adoption of a measure by the IO that is likely to affect Community rules promulgated for the attainment of the objectives of the Treaty. (CJEU 2009b: para. 30) Rather, Member States in such cases have to act on behalf of the EU in order for it to exercise its external competences (CJEU 2009b: para. 31). Therefore, the duty of sincere cooperation in exclusive competences entails two separate obligations. First, Member States have to attempt to reach a common position within the EU. Secondly, they have to avoid acting unilaterally even when this may hypothetically affect EU law (Neframi 2010: 341). The duty of sincere cooperation in this field is an obligation of result. 6

10 The situation is less clear when it comes to areas of shared competence. The CJEU s judgment in PFOS (2010) provides some clarifications in this regard. This case referred to a dispute that arose with regard to a proposal made by Sweden to add a specific pollutant to the Stockholm Convention on Persistent Organic Pollutants (to which both the EU and the Member States are parties) although the EU had agreed on a concerted strategy not to make such a proposal. The CJEU found that Member States freedom of action within an IO is severely curtailed once the EU has internally started the process for the formation of a concerted strategy on a topic. The point of departure for concerted [Union] action was found to be the submission of proposals by the Commission to the Council (Case C-246/07, para. 103), and not the prior adoption of a Council Decision in this regard, as was the previous case-law of the Court (CJEU 2005a: para 60; CJEU 2005b: para 66). This finding seems to serve the goal of achieving unity in external representation. However, it is not clear how long Member States are obliged to refrain from acting, especially if a concerted strategy takes too long to be adopted (Van Elsuwege 2011: 310; De Baere 2011: ). For this reason this judgment has led commentators to discuss whether the duty of sincere cooperation in external action in the area of shared competences is actually an obligation of result and not a best-efforts obligation (Van Elsuwege 2011: 310; Larik and Delgado Casteleiro 2011: ; De Baere 2011: ). This is important since Member States cannot be forced to refrain from acting in an IO for an indeterminate period even for those aspects of shared competences that lie within their competence. Apart from the obvious legal issues regarding such a requirement, it would severely handicap Member States ability to act in the IO, eventually undermining their and the EU s influence and interests. It is disputed whether this case-law on shared competences applies to IOs where the EU is not present. Since the same legal arguments would apply irrespective of the status or even presence of the EU in an IO, we are of the view that it does. Namely, the relevant question is whether an act by an IO is liable to affect internal legislation and not whether the EU is a member to that IO. The Court will have the opportunity to rule on this issue in a case brought by Germany against the Council in 2012 (CJEU 2012b). 1 In this case Germany seeks the annulment of a Council Decision establishing a position to be adopted on behalf of the EU on specific issues at the International Organisation for Vine and Wine (OIV). The first reason for annulment is according to Germany the fact that common positions within the meaning of Article 218(9) TFEU can only be adopted for IOs to which the EU is a member. Germany also contends that Article 218(9) TFEU cannot be the legal basis for such a decision since it applies only to acts having legal effects, meaning acts binding under international law. OIV resolutions are not legally binding. It remains to be seen whether the CJEU refutes both arguments on the basis that OIV resolutions may affect the EU legal order. 1 See also the relevant issues that have arisen in the process for the adoption of a Council Decision on the position, on behalf of the European Union, at the International Maritime Organization (IMO) with regard to the adoption of certain Codes and related amendments to Conventions, Council of the European Union, Report, Brussels, 26 April 2013, 8770/13, LIMITE. 7

11 4 UPGRADING THE EU S ROLE IN INTERNATIONAL ORGANIZATIONS As discussed above, the status of the EU in IOs is extremely varied. In many cases the EU s status or representation within a given body simply does not align with the level or EU interest in the field or with the extent of EU competences and internal legislation. Yet upgrading the EU s status also often requires considerable diplomatic effort on the part of the Union and its Member States and often requires convincing third states that the EU s involvement does not jeopardize the IO. The EU should therefore choose wisely when deciding in which organizations it seeks to upgrade its status and what type and level of status would be appropriate. 4.1 IN WHICH INTERNATIONAL ORGANIZATIONS SHOULD THE EU SEEK UPGRADED STATUS? Where should the Union focus when seeking to upgrade its status in IOs? Although the Treaties state that the EU must develop relations and build partnerships with IOs, there is little guidance on which IOs should be given priority. It is clear from the Treaties that the UN is of particular importance to the Union (Art. 21(1), second para., TEU), and it was logical that the UNGA was the first body in which the EU sought upgraded participation rights following the entry into force of the Lisbon Treaty. There are very few other specific references to international bodies in the Treaties. Article 6(2) TEU stipulates EU accession to the European Convention on Human Rights (Art. 6(2) TEU). Article 189(3) TFEU obliges the Union to establish any appropriate relations with the European Space Agency, but this leaves open all options regarding the precise nature of this relationship (see Wouters 2009: ). Lastly, Article 220(1) TFEU foresees that [t]he Union shall establish all appropriate forms of cooperation with the organs of the United Nations and its specialized agencies, the Council of Europe, the Organization for Security and Cooperation in Europe and the Organisation for Economic Cooperation and Development. Other than this, the Treaties do not specify the types of bodies where the EU should pursue enhanced status. An obvious starting point would be to look at competences. The Union should be well-represented in organizations whose work completely or predominantly falls in fields covered by one of its exclusive competences. It should also take into account the impact that an IO s work has on the development of EU policy in a certain field (European Commission 2012a: 3). This is the case especially in areas where it has already regulated the field to a considerable extent, such as labor rights, health, environmental standards, air transport and others. Yet other important issues also come into play, such as the interests and political priorities of the Union (European Commission 2012a: 3). The choice of which organizations the EU seeks to focus its attention on will reflect the EU s core diplomatic and strategic interests. It depends not only upon legal issues and competences, but also the EU s desire to influence certain policies at the international level, as well as its relationship with other world powers within these IOs. A related question is the level of representation that the Union should seek in a given organization. In which cases should observer status be upgraded to that of enhanced observer or another status? A calculation should be made about what the EU would gain from a status upgrade and whether it would actually translate into a greater ability 8

12 to influence the organization. Given the diplomatic effort involved in such upgrades, it should ideally result in more than mere cosmetic changes or greater visibility. Another issue the EU takes into account is the prospect of success of any attempt to upgrade its status in an IO. Since an upgrade will often expend significant energy and political capital on the part of the Union and its Member States, an effort to upgrade EU status should only be launched when there is a realistic chance of success. In a recent Joint Communication to the Commission from the President in Agreement with Vice President Ashton, several organizations were identified as potential bodies where the EU may upgrade its status and where this appears realistic in the short to medium term (European Commission 2012a: 3). These include the Arctic Council, Commission on the Protection of the Black Sea against Pollution, International Organisation of Vine and Wine, European and Mediterranean Plant Protection Organization, IMO, International Atomic Energy Agency (IAEA), ICAO and United Nations High Commissioner for Refugees (UNHCR). At the same time they pointed out that in the International Telecommunication Union (ITU), the International Energy Agency (IEA) and the Organisation for Security and Co-operation in Europe (OSCE), significant obstacles remain to be overcome in order to improve the status of the Union (European Commission 2012a: 3). Why were these bodies chosen as potential candidates for upgraded EU status? What criteria were employed when making this calculation? As space does not allow for a discussion of all relevant IOs where the Union may wish to upgrade its status, we have selected a number of IOs that illustrate the range of challenges the EU faces in upgrading its status and which highlight the role of the EU s strategic diplomacy. These are the Arctic Council, the IMO, and the IAEA. However, before turning to these IOs, we should briefly discuss the first body where the EU successfully upgraded its status following Lisbon: the UNGA. 4.2 UN GENERAL ASSEMBLY The EU s experience surrounding the 2011 upgraded status at the UNGA not only demonstrates the challenges the EU faces in seeking enhanced participation rights, it has been highly influential in shaping EU policy towards IOs ever since. Many of the EU s key foreign policy goals, including climate change policy, eradication of global poverty, and security issues such as Iran nuclear aspirations and combating the proliferation of arms, all require engagement with the UN system. As discussed above, the UN is also prominently mentioned in the EU Treaties. The UNGA, where it has been engaged for decades, was therefore the natural setting for the EU to seek an upgraded status following the Lisbon Treaty. Whereas the EU had previously been represented in the UNGA by the EU Member State holding the rotating Presidency, UNGA Resolution 65/276 of 3 May 2011 provides the EU with enhanced participation rights, which allows the EU, as far as possible, to be represented in the UNGA in its own right. The diplomatic saga involving the EU s upgraded status at the UNGA has been discussed extensively elsewhere (Brewer 2012: ; De Baere and Paasivirta 9

13 forthcoming 2013; Wouters et al. 2013b). Suffice it to say that the Union s first attempt to upgrade its status has led to it adopting a more cautious and deliberate approach to similar efforts in other IOs. Despite being touted as a diplomatic success, since 2011 there has been no comparable effort to replicate the EU s upgraded status in other IOs. The EU now understands that acceptance of its upgraded status by third states and even by some of its own Member States - should not be taken for granted, and the political sensitivities of third states should be understood and taken into consideration. Moreover, it is clear from this experience that even once upgraded status is reached, the EU may still have to fight for its place at the table to make sure the Resolution is given full effect (European Commission 2012a). 4.3 ARCTIC COUNCIL The Arctic region continues to grow in geo-strategic importance. The Arctic holds some of the world s greatest untapped oil reserves; melting ice packs have allowed new shipping lanes to open; and issues such as preservation of the arctic environment have taken on a greater urgency due to global warming, an issue on which the EU sees itself as a global leader. Since 1998, the EU (then still the Community), represented by the Commission, has been an ad hoc observer at the Arctic Council, which the Union sees as the most important forum for international cooperation in the region (European Commission and High Representative 2012). In addition to its bilateral relations with Arctic states, the EU is also involved in the Northern Dimension (ND), a common policy of the EU, Iceland, Norway and the Russian Federation, and the European Commission is a member of the Barents Euro- Arctic Council. Sweden, Finland and Denmark are the only EU Member States which are members of the Arctic Council, whereas Italy, France, Germany, the Netherlands, Poland, Spain, and the United Kingdom hold observer status. Since membership is exclusively for Arctic States defined as Canada, Denmark, Finland, Iceland, Norway, the Russian Federation, Sweden and the United States of America (Declaration on the Establishment of the Arctic Council 1996: Art. 2), the EU and other non-arctic territories can only participate as observers. At the 2013 Arctic Council biannual meeting held in Kiruna, Sweden, the organization decided to postpone the EU s application to become an observer until a number of outstanding issues are resolved (Kiruna Declaration 2013: 6). These issues mostly revolve around the continuing rift between the EU and Canada over the EU s ban on trade in seal fur (European Parliament and Council 2009). Following the decision, HR/VP Catherine Ashton and European Commissioner of maritime affairs, Maria Damanaki, made a joint statement saying that [f]urther to previous exchanges with the Canadian authorities the EU will now work expeditiously with them to address the outstanding issue of their concern. (High Representative Catherine Ashton and Commissioner Maria Damanaki 2013) This is an example of how political issues can obstruct the EU s status in an important IO. Interestingly, while EU observer status was postponed at the 2013 meeting, several other states were granted observer status: China, India, Japan, Republic of Korea, Singapore and one EU Member State, Italy. 10

14 4.4 INTERNATIONAL MARITIME ORGANIZATION The IMO is another organization where the EU may also seek to upgrade its status (see Wouters et al. 2009). The Union is increasingly interested in the work of the organization, one of the UN s specialized agencies, especially with regard to working on international environmental issues (particularly reduction in CO 2 emissions) and issues of ship safety (see Vice President Kallas 2013). While the EU currently has an emissions trading system that covers other fields of transport, including airlines operating in EU Member States (European Parliament and Council 2008), it has not yet implemented a system that regulates emissions from maritime transportation. On 28 June 2013 the Commission set out its plan to integrate maritime emissions into the EU s policy for reducing its domestic greenhouse gas emissions (European Commission 2013b). Despite the slow pace of discussions within the IMO on this issue, the Union still views the IMO as the best international forum to regulate emissions from shipping, which currently constitute around 3% of global greenhouse gas emissions (European Commission 2013b: 4). The EU also plays an active role in other areas relevant to the IMO, such as maritime pollution and maritime safety. Apart from EU legislation in these fields, in 2003 the European Maritime Safety Agency (EMSA) was established to provide specialised technical assistance. Lastly, the EU and the IMO are both becoming active in the field of maritime security and piracy (see IMO 2009; European Commission 2010), a topic that is increasingly important to the Union from a security standpoint. Besides, work undertaken by the IMO has led to amendments of the International Convention for the Safety of Life at Sea, 1974 (SOLAS Convention) and the International Ship and Port Facility Security Code (ISPS Code). Thus, interests as well as the significant EU legislation in fields covered by the work of the IMO support an enhanced status of the Union in the work of this organisation. The European Commission (not the Community nor the Union) has been an observer at the IMO since Although it recommended to the Council to pursue full membership of the then European Community in both the IMO and the ICAO (European Commission 2002), this was not supported by the Member States. In the face of opposition from EU Member States which are IMO members, the Commission is now seeking instead to change the Commission s representation to that of the European Union in accordance with the Lisbon Treaty. However, this must be decided upon by the IMO Council. The IMO therefore represents yet another organization where, even though the Union has significant competences, legislation and interests in the fields dealt with by this IO, its lack of membership means that it must rely on its Member States. This can cause problems within the EU s legal order. When the EU is not a formal member of an IO where significant Union competences are concerned, this can create a gap in legal obligations between the EU and its Member States, since only the Member States are formally bound under international law. For instance, in the ATAA case (CJEU 2011) the EU s non-membership of ICAO, another UN specialized agency, meant that the EU was not formally bound by a significant body of international law regulating air transport. EU membership in IOs such as ICAO and IMO would go a long way to filling this gap. Moreover, as mentioned above, the Union s membership in global regulatory bodies such as IMO and ICAO is important for it to safeguard its own significant regulatory framework. 11

15 4.5 INTERNATIONAL ATOMIC ENERGY AGENCY The IAEA is another important IO in global affairs where the EU has shown an interest in upgrading its status. The Union is strongly committed to the prevention of proliferation of weapons of mass destruction (European Council 2003b), and has worked actively in multilateral fora to prevent states such as Iran from acquiring nuclear weapons capabilities and to deal with the nuclear weapons programme of North Korea. Talks with Iran over its nuclear issues has been one of the key priorities of HR/VP Catherine Ashton as part of the E3+3. The EU is also actively involved in issues of nuclear safety, which were brought back to the world s attention after the Fukushima disaster in Japan. While the Union has worked on these issues in other fora, most notably within the UN Security Council, the IAEA also plays a crucial role in these fields. On 25 January 2013 a meeting was held in Brussels bringing together officials from the EEAS, the European Commission and the IAEA for the first time, to focus on areas of co-operation in the areas of nuclear safety, nuclear security, nuclear applications, technical cooperation, nuclear energy and nuclear safeguards (see Joint Press Statement 2013). It is evident that closer co-operation between the EU and IAEA would benefit both organizations. The EU is a major contributor to the IAEA, both in terms of financial aid and technical assistance. The gross overall contribution to the IAEA for the period of was million (see IAEA 2013). On 21 June 2013 the EU and IAEA signed a contribution agreement under the 2012 Annual Action Programme of the Instrument for Nuclear Safety Cooperation (INSC) whereby the EU would contribute 9,260,000 for technical cooperation and nuclear safety. Moreover, many of the issues dealt with by the IAEA are of key importance to EU domestic and foreign policy, most notably the Union s engagement on issues such as nuclear non-proliferation. The EU itself has no formal observer status at the IAEA although the European Atomic Energy Community (Euratom) is an observer. The relationship is based upon an agreement between Euratom and the IAEA, which has been in force since 1 January 1976 (Cooperation Agreement 1975) and whereby Euratom is invited to the annual sessions of the General Conference of the Agency but does not have the right to vote. There are several options available to the EU for improving its status at the IAEA. The first would require the EU to attain observer status alongside Euratom. This would probably require an agreement between the EU and Euratom concerning competences and clarifying the relationship between the existing IAEA-Euratom Agreement. Another option would be to update the IAEA-Euratom agreement to allow for dual EU-Euratom representation in their respective fields of competence. Either way, there is still an important requirement for the EU and Euratom to ensure consistency between [their] external relations. (Council 2010: 30-40, recital 18) 4.6 FACTORS DRIVING THE EU S QUEST FOR AN UPGRADE The IAEA is an example of an organization where the Union s choice of upgraded status is not tied closely to issues of competence. Rather, the EU s desire to upgrade its status at the IAEA is shaped by its interests in non-proliferation and nuclear safety. 12

16 Similarly, the Union s desire for observer status at the Arctic Council cannot be explained purely in terms of competences, but must be understood in the light of the growing importance of the Arctic region in geo-political terms, especially as states like China and India gain observer status within this IO. The Union s desire to upgrade its status at the IMO is more closely tied to the issue of competences, but can also be explained by its aspiration to influence international developments in fields such as regulation of global emissions. In short, the EU s decision to pursue formal status at an IO is informed by more than internal legal issues and competences; it is also an illustration of how the Union exercises strategic and structural diplomacy. 5 CONCLUSION This paper discussed the issues facing the Union when seeking to represent itself successfully or upgrade its status at IOs. These issues are both legal and political, internal and external. While the EU does not seem to have a policy for determining which IOs it should engage closer with, practice reveals the Union s priorities. First, the EU sees the UN as the key part of the multilateral system. Second, although competences matter, they are not the only criterion used when determining in which IOs the Union should be represented. Still, competences define the internal legal framework, within which the EU can act to participate in the work of IOs. These internal issues are relevant not only to the Member States, but also the EU s partners in IOs. Issues of competences and the international legal responsibility of the Union or the Member states are increasingly a legal issue for third states (see Govaere et al. 2004: , 160; Kuijper and Paasivirta 2013: 35-71; Hoffmeister 2010: ). Importantly, it is now clear that the EU s involvement in international organisations is as much a legal issue as it is a political and diplomatic one. Upgrading the EU s status in the world of international organizations therefore requires careful diplomacy to ensure that the EU s international status lives up to its external aspirations. 13

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