The Principle of Solidarity : International and EU Law Perspectives

This edited volume explores the principle of solidarity in international and EU law. Although the concept is regularly invoked in international and EU legal and policy debates alike, its meaning, nature and functions, as well as normative contours still remain nebulous. The contributions in this volume reflect on the legal trajectory of solidarity in international and EU law and offer unique insights into the evolution and status of the principle in different fields of international and EU law. By doing so, the book also serves as a springboard for answering broader questions pertaining to what the stage of development of this principle may imply for the two legal orders and their interaction. As the chapters of this book show, the debate on solidarity is premised on conflicting visions regarding the values underpinning the international legal order as well as the self-interest or community-oriented driving forces behind States’ action at the international level. The regional (EU law) perspective offers a new lens through which to revisit classic questions pertaining to the nature of modern international law and to assess its continuing relevance in a world of regional organizations presenting different visions (and levels) of co-operation. This book, the second volume to appear in the Global Europe Series, will appeal to international and EU law researchers and policy-makers alike with an interest in the nature and function of the principle of solidarity in international and EU law. Eva Kassoti is Senior researcher in EU and International Law at the T.M.C. Asser Institute in The Hague, The Netherlands and the Academic Co-ordinator of CLEER. Narin Idriz is Researcher in EU Law at the T.M.C. Asser Institute in The Hague, The Netherlands. Contents 1 ‘The Kindness of Strangers’—Solidarity in International and EU Law: An Introduction 1.1 Introduction 1.2 The Many Faces of Solidarity: Solidarity in the Theory and Practice of International and EU Law 1.3 Solidarity as a Leitmotif: The Relevance of Solidarity in International and EU Legal Discourses and the Selectivity Critique 1.4 Overview of the Contributions in this Volume References Part I Solidarity: An International Law Perspective 2 In Search of Solidarity in International Law 2.1 Introduction 2.2 The Emergence of an International Law Based on Solidarity 2.3 International Law’s Responses to Current Challenges 2.3.1 International Law and Poverty 2.3.2 Vaccines 2.3.3 The International Community 2.4 Conclusion References 3 Solidarity as an International Legal Norm 3.1 Introduction 3.2 Solidarity in International (Legal) Thought: Origins and Background 3.2.1 Solidarity as a Political and Legal Concept 3.2.2 Solidarity, Cooperation, and the International Community 3.2.3 A Working Definition of Solidarity 3.3 Articulating Presumptions: A Theory of International Legal Norms 3.3.1 Three Levels of Abstraction 3.3.2 The Essential Characteristics of Rules 3.3.3 The Essential Characteristics of Principles 3.4 Solidarity as a Principle in International Law 3.4.1 A Principle or Principles of Solidarity in International Law? 3.4.2 An Elevated Status of Solidarity as a Principle? 3.5 Solidarity and International Legal Rules 3.5.1 Specific Rules of Solidarity 3.5.2 Rules in Furtherance of Solidarity 3.6 Concluding Remarks References 4 The Principle of Solidarity in the Law of Transboundary Groundwater 4.1 Introduction 4.2 Legal Gap in International Water Law and Link to International Security 4.3 Defining the Principle of Solidarity 4.4 Solidarity and Equitable Utilisation Rule 4.5 Principle of Solidarity in International Law 4.6 Solidarity and the Right to Water 4.7 Status of the Principle of Solidarity 4.8 Conclusion References 5 Global Environmental Issues and International Solidarity: Between Myth and Reality 5.1 Introduction 5.2 Solidarity: A Mysterious Concept Driving the Evolution of International Environmental Law 5.2.1 Multilateralism, the Social Foundation of Solidarity 5.3 Solidarity, A Cornerstone for Stability in International Law 5.4 Solidarity: Towards Normative Creativity as a Driver for Change 5.5 Beyond the State Paradigm: The Rise of Non-State Actors’ Input 5.6 Non-State Actors' Involvement in Decision and Lawmaking Processes 5.7 Non-State Actors: A Safeguard for Effective Implementation of International Environmental Law References 6 Anti-legal? Georges Scelle’s Solidarity, French Sociological School, and the Backlash Against International Investment Law in Africa 6.1 Introduction 6.2 The Backlash Agenda 6.2.1 Colonial Legacy 6.2.2 Protection of Investors as the Dominating Paradigm 6.2.3 Investor-to-State Dispute Settlement (ISDS) 6.2.4 Forms of Backlash Against the IIL in Africa 6.3 The Solidarity Agenda 6.3.1 Solidarity as a Source of Law 6.3.2 Sovereignty 6.3.3 Objective Law 6.3.4 Social Justice? 6.3.5 Global (‘Intersocietal’) Solidarity as the Source of International Law 6.3.6 Role-Splitting 6.4 Solidarity Agenda Versus Backlash Agenda 6.4.1 BITs, Objective Law and Role-Splitting 6.4.2 Debt Owed by Investors 6.4.3 Sovereignty and Sectarianism 6.4.4 Against the ‘Anarchy of Appetites’ 6.5 Conclusion References 7 Differential Treatment for Developing Countries as a Manifestation of Solidarity: Overcoming New Challenges by Going Back to the Basics 7.1 Introduction 7.2 International ‘Society’ and Solidarity 7.3 Solidarity and Its Scope 7.4 The Nature of Solidarity in International Law 7.5 Differential Treatment as a Manifestation of Solidarity 7.5.1 Differential Treatment in International Trade Law 7.5.2 Differential Treatment and Climate Change 7.6 Nature of Differential Treatment 7.7 Differential Treatment and ‘Emerging Powers’ 7.7.1 Significance of the Existing Framework 7.8 Going Back to the Fundamentals of Solidarity 7.8.1 A Possible Way Out 7.9 Conclusion References Part II Solidarity: An EU Law Perspective 8 Thinking About Solidarity and EU Law 8.1 Introduction 8.2 Thinking About Solidarity 8.3 Solidarity in Sharing Out Something That There’s not Enough of 8.4 Solidarity in Sharing Out a ‘Burden’—Something That Requires Investing a Lot of Effort to Reach an Objective 8.5 Solidarity in EU Law 8.6 Conclusion Reference 9 Why the European Commission’s Pragmatic Approach to Asylum Is Not Enough: Re-imagining Solidarity as a New Form of Conducting Regional Politics 9.1 Introduction 9.2 Solidarity in the Pact 9.2.1 The ‘Seamless Link’ Between Migration Control and Asylum 9.2.2 The Legacy of the Dublin System and the Inflexibility of the First-Entry Criterion 9.2.3 More Flexibility in Inter-state Relations 9.2.4 More Coercion for Asylum-Seekers and Refugees 9.3 Problematizing the Commission’s Conception of Pragmatism 9.3.1 The Doctrinal Chasm Between the Political and the Legal 9.3.2 Towards a Normative Flattening 9.3.3 Re-entrenching Exclusion 9.4 Re-imagining Solidarity as Reconciliation and the Antithesis of Alienation 9.4.1 Moving Beyond a Micro-regulation of Solidarity 9.4.2 Solidarity as a New Form of Conducting Regional Politics 9.5 By Way of Epilogue References 10 Solidarity in EU Immigration and Asylum Law: A Corpus Linguistic Analysis 10.1 Introduction 10.2 Solidarity: A Multifaceted Concept 10.2.1 Solidarity as an Idea: Traditional Approaches 10.2.2 Solidarity in the European Union 10.2.3 Solidarity in the Legal Framework of the European Union 10.2.4 Solidarity in EU Asylum and Immigration Law 10.3 Corpus Linguistics: A Quantitative Method in Legal Linguistics 10.3.1 Law and Language 10.3.2 Quantitative Corpus Analysis in Legal Linguistics 10.4 Solidarity in EU Asylum and Immigration Law 10.4.1 Data—The Corpus 10.4.2 Analysis 10.4.3 Frequency 10.4.4 Dispersion 10.4.5 Key Word In Context (KWIC) 10.4.6 Results 10.5 Conclusions References 11 External Solidarity in Integrated Border Management: The Role of EU Migration Agencies 11.1 Introduction 11.2 The Normative Foundations of Solidarity and Its Understanding in the Areas of Asylum and Migration 11.2.1 The Multifaceted Manifestation of Solidarity in EU Law 11.2.2 Solidarity in the Common European Asylum System and the Integrated Border Management: An Operational Dimension? 11.3 Solidarity in the External Dimension of EU Migration Management 11.4 EU Migration Agencies and External Solidarity 11.4.1 Solidarity and the External Dimension of Frontex 11.4.2 EASO and Its Strategy of External Solidarity 11.5 Conclusion References 12 The Solidarity Principle in the Context of the CFSP: The Adoption of Restrictive Measures as an Expression of Solidarity? 12.1 Introduction 12.2 The Crisis of the Eastern Mediterranean Sea and the Adoption of EU Restrictive Measures in Solidarity with Cyprus 12.3 The Circumstances of the First Case of Reliance on Solidarity Under Article 24 TEU 12.4 The Intergovernmental Nature of the Solidarity Clauses in the CFSP and the Lack of Specific Obligations on the Part of the Union 12.5 An Analysis of the Member States’ Solidarity Obligations Under the CFSP: The Unclear ‘Contours’ of the Solidarity Principle Under Article 24 TEU 12.6 The Strengthening of the Principle of Solidarity Under Article 24 TEU 12.6.1 The Intergovernmental Nature of the CFSP and the Difficulty of Triggering a ‘Duty to Adopt Sanctions’ from the Article 24 TEU Solidarity Principle 12.6.2 The Limited Jurisdiction of the CJEU in the CFSP and the Non-justiciability of the Article 24 TEU Solidarity Principle 12.7 Concluding Remarks References 13 The Many Faces of Solidarity and Its Role in the Jurisprudence of the Area of Freedom, Security and Justice 13.1 Introduction 13.2 The Theory 13.3 Solidarity as an Aspirational Value 13.4 Solidarity as a Principle 13.5 Solidarity as a Rule 13.6 Conclusion. Solidarity: Clé de Voûte de la Construction Européenne? References 14 Reflections on the Legal Content of Solidarity in EU Law Under the Lens of the Covid-19 Pandemic 14.1 Introduction 14.2 The Uncertain Legal Nature of Solidarity Within the EU Legal Order 14.3 In Search of Solidarity During the Covid-19 Pandemic 14.3.1 The Union Civil Protection Mechanism as Provider of In-kind Assistance 14.3.2 The Joint Procurement of Medical Countermeasures 14.3.3 The EU Vaccine Strategy: Solidarity Within and Beyond the EU Borders 14.3.4 The Financial Support Vis-à-Vis the (Post-)Covid-19 Pandemic 14.4 Solidarity and Equality: Two Cornerstones of the EU Response to Emergency 14.5 Concluding Remarks References "This volume explores the principle of solidarity in international and EU law. Although the concept is regularly invoked in international and EU legal and policy debates alike, its meaning, nature and functions, as well as normative contours still remain nebulous. The contributions in this volume reflect on the legal trajectory of solidarity in international and EU law and offer unique insights into the evolution and status of the principle in different fields of international and EU law. By doing so, the book also serves as a springboard for answering broader questions pertaining to what the stage of development of this principle may imply for the two legal orders and their interaction. As the chapters of this book show, the debate on solidarity is premised on conflicting visions regarding the values underpinning the international legal order as well as the self-interest or community-oriented driving forces behind States action at the international level. The regional (EU law) perspective offers a new lens through which to revisit classic questions pertaining to the nature of modern international law and to assess its continuing relevance in a world of regional organizations presenting different visions (and levels) of co-operation"--Publisher's description