A Citizen’s Guide to the Rule of Law. Kalypso Nicolaidis
they should be read.
Chapter 4 (The Fundamental Dilemma of EU Rule of Law Promotion) presents what we call EU’s rule of law “promotion dilemma”, a kind of catch-22-situation in which the EU finds itself. On the one hand, the EU has to be rather intrusive so as to enable a sustainable rule of law framework in future member states; on the other, it has to show restraint due to developments within the EU that may negatively impact its credibility. It also has to pay attention to the larger context in which it intervenes. We show that the inconsistencies this creates could be avoided if the EU adapted its understanding of the rule of law. We also show what the consequences of the current approach are and where a new approach should start.
Chapter 5 (Taking on the rule of law dilemma by being more ambitious) presents some of the building blocks of this new approach. Our solution consists of reframing the debate under the seemingly contradictory headline of being “humbler and more ambitious” in order to make the rule of law stick. We need to prevent digressions and make reforms permanent or “sustainable”, as we shall call it. Sustainable rule of law involves the entire society, not just lawyers, bureaucrats, and judges. As chapter 5 will explain, the EU’s rule of law promotion therefore needs to be more ambitious. It needs to engage with citizens, non-governmental organisations, interest groups and many more. It needs to become part of the social fabric.
At the same time, however, we argue in chapter 6 (Taking on the rule of law dilemma by being humbler) that to make rule of law promotion sustainable, the EU has to be humbler in what it presents as the “EU model” of the rule of law. Such a model simply does not exist. Different EU member states have different rule of law frameworks, all of which are supposed to be compatible with the EU’s rule of law norms. Acknowledging that would open up new spaces for manoeuvre and reform in the candidate countries. So, humility from the EU is a good start.
While these discussions are rather theoretical, chapter 7 (Promoting the rule of law in practice: the “living list”) offers a more practically oriented guide of how to deal with rule of law and its promotion on the ground. We examine the EU’s strategy in resolving the constitutional and political crisis in North Macedonia in 2015 focussing on concrete challenges to the rule of law in the country. Broadening our perspective, the chapter then presents our new approach for the EU’s rule of law promotion, which centres on a citizen-based perspective of what the rule of law actually is. We discuss the actors that should be involved in monitoring the rule of law in a country and present a “living list” of indicators and questions that should guide rule of law assessments in a country. The beauty of this list is that it can be employed in member states as much as in EU candidate countries.
Chapter 8 concludes the book by putting the rule of law and its promotion into a larger context and arguing for an engagement of each and every individual as guardian of the rule of law. It brings us back to the beginning of this chapter and our call for action.
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As you see, our goal is to provide our readers with all the information and tools they need to understand the challenges of the rule of law and its promotion.
But we freely confess, we have an ulterior motive. It is our deep belief that the rule of law is not something that lives on paper or in some procedure, but as a principle of living together that should be nurtured within each of us. We hope that you, dear reader, will do so, not primarily because you believe it’s necessary for the development of your country or for joining the European Union one day, but because you too believe in the rule of law, as humankind’s most precious invention. Because you realise how important it is for it to be kept alive and how dangerous it is to let it die. We are missionaries in the truest sense of the word.
But we ask even more. Let us become an even more active community. Let us approach our politicians and demand sustainable rule of law in a language both we and they understand. Let us fight small rule of law breaches as vigorously as we would fight larger ones. And let us speak up when the rights of our neighbours, our journalists, or our judges are being infringed upon.
And together, for everyone’s sake, we can save the rule of law.
Chapter 2.
When rule of law meets EU accession
For years, if not decades now, there has existed a fundamental misunderstanding in what we think the rule of law means in practice. It’s easy to see this misunderstanding when we look at an area in which the rule of law is supposedly at the centre of everyone’s attention: the EU’s accession policy.
In this book, we mostly focus on EU accession because it can teach us a lot about how the rule of law is established and what challenges it may face. The accession process is where the ideals of the rule of law, the practical challenges to it, and resistance to its implementation all coalesce into one. And the EU’s rule of law promotion efforts in this context can serve as our “proof of concept”. Everything we wish to say, can be said with the accession process as an example. But the ideas we put forward are applicable to all other contexts dealing with the rule of law, especially in EU member states. What we say matters, whether one lives in an EU member state or not.
The Twin Imperatives for the Western Balkans
Negotiating accession
Yugoslavia’s violent disintegration began in the early 1990s, when a number of wars among the former republics of the socialist confederation broke out. They would last for more than a decade and be fought with a brutality few had thought possible on the European continent after the experiences of the Second World War. The EU and its institutional predecessor, the EC, proved unable to prevent the outbreak of hostilities, and the self-proclaimed “hour of Europe” as an international actor turned out to be an empty phrase.1
When the Yugoslav wars eventually subsided, the EU offered a “membership perspective” to the successor states of the former Yugoslavia as well as Albania, which had not been part of Yugoslavia, as it had done with Central and Eastern Europe states (CEE) after the fall of the Iron Curtain in 1989. Today, Croatia and Slovenia are full-fledged EU member states, while the remaining countries—Bosnia-Herzegovina (BiH), Serbia, Montenegro, North Macedonia, Kosovo, and Albania—are still engaged in the so-called accession process. These countries are usually referred to as the “Western Balkans” or the “Western Balkans six”. It’s somewhat of a cumbersome, political term that desperately avoids any kind of connection with the Yugoslav past, but it has become the norm, so we shall use it as well. Why complicate matters more than necessary, right? But we shall also throw Turkey in the mix occasionally, for what we are saying matters there as well.
To become full members, these six states (and Turkey) have to fulfil a set of conditions—known as “membership criteria” or the “Copenhagen criteria”. They have to align their legal, political, and economic systems to the bulk of EU legislation that already exists, the so-called acquis communautaire. Basically, the EU’s rulebook. If a country wants to join, none of its laws and rules may contradict what’s in the rulebook, the acquis. Accession is thus basically an exercise in reforming existing rules and laws to fit the EU’s standards. This is actually quite a one-sided process, as the EU sets the rules and the candidate countries have to follow. Some would say that’s unfair, and it indeed is; but we shall come to that in a moment.2
As part of the accession process, EU negotiators have also sought to establish what they have called the “rule of law” in the accession countries. Yet, it has not really worked, despite their best efforts. Rule of law “reforms”—if one may so call the at times rather small legal changes to which the domestic political elites agree—are moving slowly, and at times hardly at all. Young people are leaving the region by the tens of thousands; economic prosperity is nowhere to be seen, while the political and legal systems seem inadequate to cater to what citizens deem important. That’s not just a feeling propagated by opposition