Law and Governance Variations of Europe’s Geopolitical Awakening
“Europe has never been so prosperous, so secure nor so free. The violence of the first half of the 20th century has given way to a period of peace and stability unprecedented in European history.” From today’s perspective, the optimism of the opening paragraph of the 2003 European Security Strategy sounds like something from the distant past. The ongoing Russian war of aggression against Ukraine is a daily reminder that peace in Europe cannot be taken for granted any longer.
From the presumption of peace to the threat of war
Before the 24th of February 2022, however, many (Western) Europeans held the belief, maybe even the conviction, that the first line of defence would be and remain far outside Europe. The European Union’s (EU’s) external action was based on a presumption of peace, both in terms of prospects and context: the European polity was supposed to safeguard peace and operate in peacetime. Indeed, following decades of their peaceful coexistence thanks to European integration—an achievement for which the EU was even awarded the Nobel Prize for Peace in 2012—and the end of the Soviet threat of the Cold War, the formerly hostile European states kept themselves so busy managing peace that they disregarded the possibility of war.
This outlook has drastically changed with the Russian invasion of Ukraine since February 2022. Brutal news coverage of Russian military convoys heading toward Kyiv and the horrifying pictures from Bucha have triggered a geopolitical awakening among European citizens and political decision-makers. This became clear with the EU’s Strategic compass for Security and Defence, adopted just two weeks after the invasion began, which warns that “[t]he war against Ukraine proves that Europe is even more in danger than we thought just a few months ago”. The Council of Europe’s suspension of Russia’s rights of representation just one day after the inception of the aggression also marked the beginning of a new geopolitical era. It is judicious to add, not least in light of the Russian war of aggression in the EU’s vicinity, that Europe’s manifest dependency on (fraying) transatlantic security guarantees for peace and stability now renders Europe increasingly vulnerable and, hence, nervous.
Substantial law and policy changes are underway
The consequences of the shift from a European presumption of lasting peace to one of existential threat are now starting to become visible. Indeed, recourse to this new sense of impending danger leaves its mark on law and governance, both domestically and internationally. Across governance levels, actors struggle to adjust to new security and defence realities in Europe and beyond. Their adjustments come in different shapes, cover a variety of policy issues, and involve many actors.
While most European citizens perceive the influx of Ukrainian refugees and the (temporary) spike in energy prices as the main consequences of the Russian invasion, the transformation triggered by the aggression goes much deeper. Security and defence have gone from being marginal issues to some of the most pressing political priorities in Europe — and they are likely to remain at the top of the agenda for many years to come. Indicative hereof is, inter alia, the significant increase in defence spending across Europe. Similarly, many countries have substantially revisited their security and defence proprieties and policies. Notably, Denmark, Finland, and Sweden have drastically changed their attitudes towards participation in existing security and defence structures, namely the EU (Denmark) and NATO (Finland and Sweden). Likewise, Germany seeks to address many pressing defence issues under the Zeitenwende topos. What is more, the appointment of the EU’s first Defence Commissioner is reportedly imminent. Tracing and understanding this far-reaching shift from a scholarly perspective is hence a Herculean task.
Through this symposium, we wish to make a start on this task and highlight some of the changes already visible. Hence, we invited young scholars with different national and academic backgrounds to help us provide a first—admittedly kaleidoscopic—law and governance outlook on what is currently going on in European security in a broad sense. Building on a fruitful conference dedicated to European security and defence in the 21st century held in April 2024 at Sciences Po Paris, this symposium explores in four thematic parts how different European actors cope with an unexpected, quickly-changing milieu.
Dealing with warfare: accountability, weapons and reconstruction
The starting point—both analytically and chronologically—of the symposium’s contributions is the invasion of Ukraine, which triggered manifold law and policy reactions in Europe. The blogposts discuss (some of) these reactions, hence offering a bouquet of different analytical and thematic perspectives on European security in motion.
First, under the heading “Dealing with warfare”, authors delve into how European actors try to cope with the horrors of the ongoing war in judicial, defence, and economic terms. In his contribution, Robert Stendel unravels the (potential) role of the Council of Europe in prosecuting those individuals responsible for the Russian aggression. He argues that setting up a special tribunal under the Council of Europe’s umbrella is both legally viable and politically preferable to other institutional arrangements. When it comes to EU’s role as international criminal justice actor, Kerttuli Lingenfelter shows in her post how the EU reconfigures criminal accountability spaces by pushing legal harmonization, using (novel) investigation schemes, and introducing new tools for data and evidence collection. She argues that (EU) law, when used creatively, can redefine spaces and provide room for accountability. Carolyn Moser unpacks how the EU has behaved as a defence actor in the aftermath of the Russian invasion. She demonstrates that the ongoing war on the EU’s doorsteps has make the bloc leave its normative power comfort zone to enter the harsh geostrategic realities. Leon Seidel complements this discussion by addressing the EU’s emerging leadership in matters of Ukraine’s economic reconstruction. He charts the dense web of arrangements put in place to support Ukraine in its reconstruction efforts and highlights the coordination challenges arising in this regard.
Functions, challenges and limits of judicial review
The second thematic bloc is dedicated to the role of courts in dealing with the new geopolitical realities, both in terms of ensuring checks and balances at the institutional level and providing fundamental rights protection at the individual level. Building on ECtHR and ECJ case law, Sofia Vandenbosch unpacks the significance and (potentially changing) nature of the political question doctrine in adjudicating matters of foreign policy. As a jurisdictional technique enabling the judiciary to reject a case at the admissibility stage, when a ruling to the contrary would bring it into the political arena, the political question doctrine can reinforce the legitimacy of the judiciary. However, other accountability mechanisms should be proposed to compensate for full judicial review. In her post, Maria Bebec takes a different angle on the topic when explaining how the case law on EU restrictive measures contributed to expanding the scope of the ECJ judicial power, despite the cases at hand being extremely politically loaded. She ends on a critical note whether this trajectory will continue given the current context. With a note of optimism, Jasmine Sommardal highlights the significant potential of advisory opinions of the ECtHR for enhancing European resilience when interpreting rights within a national security context.
Conflict as a double-edged sword for (un-)blocking policy change
Thirdly, the authors of the symposium take a look at how the war in Ukraine has impacted two other pressing policy areas: migration management and climate security. Interestingly, the trickling down effect is very different in these two policy fields. As Maciej Grześkowiak shows in his post, against the backdrop of war at the EU’s borders, securitization tendencies regarding migration have further increased, leading to legally problematic rules and practices. His post underlines that the rhetoric of security works at the expense of the rights of individuals. Yet, in Emma Bolopion’s contribution, we discover that a fairly different dynamic is at play when it comes to climate matters: while climate security, which holds promise of increasing human security, ranked high on the EU’s external action agenda before the war started, it has arguably lost traction by a focus on Ukraine. This lack of attention is likely to create a long-term security problem. While the Russian aggression acts as a regulatory catalyst in one policy area (migration management), it is an inhibitor for other policy advances (climate security).
Framing matters: the impact of media on threat perception
Considering sources not traditionally analysed by lawyers further complicates the contemporary picture of European security. This is why, in a fourth thematic block, two scholars examine whether and how the legality and legitimacy of the measures taken differs if an issue is addressed as a matter of security. As Omar Kamel demonstrates, the media commands the ability to influence who and what is framed as a security threat. Investigating the English-speaking mass media narration of the wars in Iraq and in Ukraine, he argues that mass media shapes and sometimes skews our perceptions of international legal realities – the war in Ukraine being depicted in far more legal terms than the war in Iraq. Given media’s power in framing the security agenda, the fight against circulation of false or misleading information online is paramount. In his blogpost, Henning Lahmann analyses the (increasing) scope of the problem and takes stock of the AI-based solutions provided at EU level so far, which he deems to be only partly satisfactory.
Outlook
Taken together, these contributions demonstrate the turmoil of European security. In addition to external threats, there are also significant internal challenges to overcome. It is clear that security actors cannot rely on political and legal frameworks from the past to solve the complex security and defence issues we face today. To ensure Europe’s security and defence, we need innovative legal approaches, new institutional arrangements and political compromises. Even though the era of ‘normative power Europe’, characterized by its purely civilian nature, may be behind us, this does not mean that Europe has lost its normative foundation. On the contrary: Europe’s geopolitical awakening can go hand in hand with the preservation of the Union’s fundamental values such as democracy, the rule of law, and the protection of fundamental rights. As the editors of this symposium, we believe these posts demonstrate that research can and must critically monitor developments. The journey to reconciling interests and values has only just begun.
