The EU as the Lone Ranger Converger with the Global Legal Order? On Methodology

In her new book, Framing Convergence with the Global Order: The EU and the World, Professor Elaine Fahey, Jean Monnet Chair in Law and Transatlantic Relations at the University of London’s City Law School, explores EU convergence in the global order, drawing on a range of disciplines to illuminate the themes of global convergence and the EU’s role in a turbulent international environment.  The contributors find that, although the EU remains a driving force behind a rules-based international order, the methodology of depicting complex case studies remains contestable.   The book features contributions from a number of Trade Experettes.

Professor Fahey’s volume is published by Hart Publishing – see the link here: Framing Convergence with the Global order: The EU and the World.

The EU’s place in the global order

Scholarship, from international economic law, international investment law, international human rights law to sources of Public International Law (PIL), increasingly frames new shifts in sources, practice and jurisprudence as an explicit narrative of ‘convergence’ (Behn et al 2019; Buckley et al 2017; Evans 2014; Forowicz 2010; Dean 2014; Andenæs and Bjorge 2015). The previously dominant narrative of fragmentation had been conducted within PIL often in a highly court-centric sense, focussing upon sources, their implementation and interpretation thereof. Convergence means many things to many people but appears to generally capture the direction of the relationship between organisational practices and law-making.

 The EU’s place in the global legal order can be understood as a form of convergence ethic but is not usually studied in the context of law, EU studies or political science, which this book tackles.  This book project uses three themes to explore the methodology of describing convergence: I. Framing the EU as a Global Convergence actor, II. The Global legal order against convergence and III. Framing External Effects: The EU’s ‘inside-out’. 

“The book project is unashamedly a methodology project, which seeks to zoom in on the complexity of dynamism and action and also never-ending competence expansions. The breadth of disciplines in the book – lawyers, political scientists, political economy scholars to practitioners – lends depth to the efforts. To the extent that the development of these themes is at the heart of the European trajectory right now, it also constitutes a vibrant future agenda.”

Framing the EU as a Global Convergence Actor

 The EU increasingly sets new international agendas, standards and rules and is referred to in a vast literature as a ‘norm promoter’ (Manners, 2002) The EU also appears as a distinctively consistent internationalist in a world shifting towards populism, and localism, both within and beyond the EU (Ikenberry, 2018; Smith, 2017). It even has an express mission to be a ‘good’ global governance actor, differing from many other international organisations and states. It has done this, in particular, through consistently advocating the creation of new international institutions (Fahey, 2018). It is of significance because it shows its highly orchestrated alignment with the international legal order in law-making. Yet, independently there is also a widespread use of external norms now in EU internal law-making in a wide variety of fields. such that it can be argued that this can also be understood as a form of regular practised convergence at the heart of EU law (Fahey, 2016). There is also widespread use of external norms in European Court of Justice (CJEU) jurisprudence. 

 As Cremona and Scott outline in their masterful collection, there is a significant challenge in formulating EU Global action and its effects (Cremona and Scott, 2019).This is particularly the case with respect to some of the most complex topics of global governance e.g. migration, data, the environment – where the EU seeks to have global effects and lead global change despite asymmetric competence and institutional formulations therein. To similar effect, the amount of case-studies of Bradford’s iconic ‘Brussels Effect’ work make it a formidable task to go from the descriptive to the normative as a phenomenon – which they purposefully avoid (Bradford, 2020). Convergence, arguably is not well understood, however championed and in some disciples as to EU integration studies and divergence is arguably more ‘mainstream’ in political science.

A Global Legal Order against Convergence?

 Despite the wording of Art. 21 TEU mandating to the EU an entitlement to participate in the global legal order, in general, the external environment is less welcoming to its ambitions.

The EU’s commitment to the external multilateral legal order explicitly through converging around multilateral institutions and developing new institutions might also be seen to be the evidence of concrete convergence. It takes place contrary to the perceived wisdom of renowned international relations theorists about post-World War US hegemony, that it is easier to maintain existing international institutions than to create new ones.

Convergence is arguably not an accurate description of the current international political economy. There has never been a more contentious moment in time for the study of EU convergence in global trade.

 Nonetheless, there has also been an important move to an era of EU deeper trade agreements in recent times, including addressing concerns about globalisation, moving towards more sophisticated agreements beyond mere tariff-setting arrangements in a form of grand convergence. The recent movement towards WTO+ agreements has put pressure upon the idea of what legitimately can be in an international trade agreement. 

 The EU has the convergence of good norms as the centre of its latest trade policies on globalisation, pitching globalisation as positive force for change, inside and outside of the EU. Here, multilateralism is important, for example, evidenced through EU reform of WTO, Agenda 2030 and the full integration of Sustainable Development Goals into EU policy. EU convergence of good norms is also centre-stage in new generation FTAs, for example, requiring partner participation in the Paris Agreement or Trade and Sustainable Development chapters. Also, civil society fora and domestic advisory groups are increasingly significant entities in new generation FTAs and in important chapters there e.g. EU-Korea FTA, CETA, EU-Mexico. The depth of this convergence still remains to be seen and is under review and evaluation, albeit significant lack of transparency exists as to who forms civil society in EU trade law, how they should be selected. 

Framing External Effects: Is EU law more ‘Inside-out’ than ‘outside-in’?

Contributors to this volume pin down the complexity of external effects and EU law as a methodological challenge. Chapter authors have been asked to isolate the phenomena of convergence by self-selecting their method (historical, empirical, qualitative, quantitative etc.). Most contributors do not proceed from a purely empirical basis or indeed from casestudies or caselaw but rather attempt to outline narratives of convergence as they arise in the evolution of a subject e.g. EU public procurement law or EU trade agreements and labour law.  This means that there are important methodological challenges of external effects tackled here which are usually overlooked.

The project thus wrestles with the framing of the challenges of our times: how can the EU be a global actor? How does it make a difference? What is the nuance of power through law in this context? The book project is unashamedly a methodology project, which seeks to zoom in on the complexity of dynamism and action and also never-ending competence expansions. The breadth of disciplines in the book – lawyers, political scientists, political economy scholars to practitioners – lends depth to the efforts. To the extent that the development of these themes is at the heart of the European trajectory right now, it also constitutes a vibrant future agenda.

By Prof. Elaine Fahey, Jean Monnet Chair in Law & Transatlantic Relations, City Law School, City, University of London 

 References:

1.     Andenæs, Mads and Bjorge, Eirik. (eds). 2015. A Farewell to Fragmentation: Reassertion and Convergence in International Law. Cambridge: Cambridge University Press. 

2.     Behn, Daniel, Gáspár-Szilágyi Szilárd and Malcolm Langford. (eds). 2019. Adjudicating Trade and Investment Law: Convergence or Divergence? Cambridge: Cambridge University Press. 

3.     Bradford, Anu. 2020. The Brussels Effect: How the European Union Rules the World. Oxford: Oxford University Press. 

4.     Buckley, Carla, Donald, Alice and Leach, Philip. (eds). 2017. Towards Coherence in International Human Rights Law: Approaches of Regional and International Systems. Brill/ Nijhoff.

5.     Cremona, Marise and Scott, Joanne. (eds). 2019. EU Law Beyond EU Borders: The Extraterritorial Reach of EU Law. Oxford: Oxford University Press. 

6.     Dean, Meryll. 2014. “Bridging the Gap: Humanitarian Protection and the Convergence of Laws in Europe.” European Law Journal 20 Issue 34. 

7.     Evans, Christina. 2014. The Right to Reparation in International Law for Victims of Armed Conflict. Cambridge: Cambridge University Press. 12.

8.     Fahey, Elaine. 2016. The Global Reach of EU Law. Routledge. 

9.     Fahey, Elaine. 2018. Institutionalisation beyond the State. Springer. 

10.  Forowicz, Magdalena. 2010. The Reception of International Law in the European Court of Human Rights. Oxford: Oxford University Press. 

11.  Manners, Ian. 2002. “Normative Power Europe: A Contradiction in Terms?.” Journal of Common Market Studies 40, 235