The recent decision of the European Council not to open the EU accession negotiations with North Macedonia and Albania has led to many a criticism both from the Western Balkans states (herein WB6) and some of the leading EU officials. The decision was motivated primarily by French President Macron’s belief that the enlargement process is flawed as it fails to bring transformation to the WB6 states, and that the EU should first reform itself before it proceeds to further enlargement. The critics have pointed out that the decision is a ‘historical mistake’ and that it leaves the region open to the influence of other international actors such as Russia, Turkey and China.
Less attention, however, has been paid to the consequences that the decision might entail for the rule of law and its promotion in the WB6 region. While most of the criticism of the process has been reserved for domestic actors and their unwillingness to implement EU driven reforms, much of the recent criticism focuses on the role that the EU itself has had. The EU influence is perceived as ‘stabilitocratic’, by strengthening the existing regimes which are hostile towards rule of law and democracy or, even pathological, as it does not pay sufficient attention to the breach of procedural rights of those prosecuted for corruption. It is argued that, even for the states that have advanced forward in the enlargement process, such as Montenegro and Serbia, the protection of some fundamental rights and freedoms has not been strengthened but weakened. Progress in the enlargement process through the opening of the negotiation chapters did not equal progress in the strength of the rule of law and quality of governance. It seems that Bosnia and Kosovo, while not being granted candidacy status, are not that far away in terms of standards in either of the two areas or, at least, less backsliding has been recorded there than in Serbia and Montenegro which remain the only two states among the WB6 that have opened the chapters of the acquis. Also, many of the proposed reforms, such as the introduction of the judicial councils, have been overvalued to begin with and have not led to either an increase of trust in the judiciary or to it becoming more independent and willing to tackle organized crime and corruption.
A New Approach?
Thus, Macron’s critique of the enlargement process does seem to have a point, but what should the new approach to enlargement look like? So far, the European Commission has been silent on this. Two recent initiatives, one from a think tank European Stability Initiative (ESI) and the other, a non-paper leaked from sources close to the French government have argued for a reframing of the enlargement process. Both proposals want to replace the current opening and closing of chapters of the acquis with a different process that would change the sequencing of the enlargement negotiation.
The proposal of the ESI would extend the EU single market onto the WB6 states by having the states adhere to the same standards that the European Economic Area (EEA) members (Norway, Switzerland, Liechtenstein and Iceland) have in being a part of the common market with the EU. This, it is argued, would allow for faster economic growth, access to certain EU funds and the effective adoption of the three quarters of the acquis needed to be adopted by a prospective future member. The marathon race is used as a metaphor to convey that by adhering to the EEA rules, the WB6 countries would adopt three quarters of the criteria needed to join the EU and that after this is achieved the enlargement could be debated on different grounds. The proposal is silent on the rule of law reforms; it merely argues that by implementing the same standards that are in place for the EEA members, the sectoral integration would by itself improve the rule of law and democracy, or, at least, the expectation of the citizens in this regard. This inversion holds that it is not the rule of law that leads to economic development, but the opposite; that the economic development and the legal framework that enables it is what strengthens the rule of law.
Implicitly, what the proposal admits is that the EU has failed in promoting rule of law and democracy – as the first two pillars of the Copenhagen criteria which form the basis for assessment of the new candidate states – but that the promotion of the free market, as the third pillar has succeeded, and that this success is something to build on. But, the EEA is hardly a rule of law promotion tool. It is a set of rules that does not encompass the common fisheries and agricultural policy, common trade policy, common foreign and security policy, justice and home affairs, direct and indirect taxation and economic and monetary union. Thus, it is hard to claim that it encompasses three quarters of the acquis or the benefits that the full membership brings. Also, it should not be forgotten that, according to one of the key negotiators of its establishment, the EEA was tailor-made for the countries that joined it. Tailoring a similar economic area for the Western Balkans countries might not be impossible but would take a lot of time and energy and could be equally politically unpopular for some member states as is the enlargement now.
The French proposal – which, as social network commentators have observed, carefully avoids the use of the word ‘enlargement’ replacing it instead with ‘European perspective’ – is much more ambitious. It aims to achieve the ‘European perspective’ through gradual and reversible sectoral integration where the existing negotiation of the acquis is translated into the several stages of the enlargement process. At first glance, it seems that the rule of law takes a central role here as it is the first stage of the process and as a lack of progress in this field may lead to a reversal of the progress made in other stages.
What role for the rule of law?
But how exactly the rule of law reforms will be facilitated is unclear. What is explicitly mentioned is the usage of indexes and monitoring tools such as the Fundamental Rights Agency’s Fundamental Rights Information System (EFRIS) and the EU Justice Scorecard. Both tools have not – so far – brought many new insights. While EFRIS hasn’t really been used as it was just developed, the main lessons learned so far from the EU Justice Scorecard is that the de facto independence of the judicial institutions within the EU does not correlate with de jure independence but with high levels of generalized trust in society. Thus, replacing the current measurements done by the experts hired by the European Commission while adding more to the transparency of the process won’t necessarily do much good. Also, the proposal calls for ratification of international agreements on co-operation in the fight against organized crime and terrorism between EUROJUST and the WB6 countries. This seems misplaced as four out of six countries have already concluded these agreements and as these treaties have also been concluded with Moldova and Georgia, which hardly impacted their membership aspirations or the state of the rule of law in these countries.
Both proposals, while useful for rethinking the enlargement in a situation where there is an evident lack of vision on how and whether to proceed, seem distanced from the practical rule of law promotion efforts. In practice, rule of law promotion, as Professor Humphreys has argued, resembles a kind of theatre play. In this play, the civil society organizations, the judiciary and (some of the) politicians work together in order to create a fairer society, ordered on principles of impartiality. Their work inevitably allows the societies to become embedded in the global markets and less peripheral than they were. They want to alleviate poverty in their countries although the reforms they undertake often do not benefit the poor directly. They fight to strengthen judicial independence for it will constrain the governments in exercise of public power. This explanations shows that rule of law promotion is both a political and a legal concept because it depends both on the content – the norms and the institutional framework – as well as on the political will of the actors involved in promoting the changes to the status quo. The lack of political will is an oft-cited reason for the failure of rule of law promotion.
The two recent success stories of the WB6 rule of law struggles, the North Macedonian attempts to root out systemic corruption and the recently introduced reforms in the work of Canton Sarajevo government in Bosnia and Herzegovina are examples of a construction of such a will. The work of both Zaev’s government in North Macedonia and the Canton Sarajevo government are examples of sophisticated construction of political will among different domestic actors and both heavily depend on foreign support in order to succeed. Whether these projects succeed where the EU rule of law promotion has failed, namely, in instilling trust in the work of the judiciary and the state organs themselves is what is more important than the methodology or the scorecard used to assess them. Mere cooperation with EU judicial organs or the inclusion of more institutions in monitoring the rule of law developments will not do much good to rule of law promotion. Finally, it is hard to imagine how implementation of proposals that offer sectoral integration or the creation of a joint economic area could succeed in rule of law promotion when the process that was to end in full accession has failed in doing so. Quite simply, they offer a smaller reward – economic integration in lieu of membership – for a goal that might not even require rule of law reforms. Such a reformed conditionality might even run against the realization of that goal. Thus, the current reframing of enlargement risks replacing the current dysfunctional EU conditionality with something worse. This is the economic integration that would be enough to maintain the EU’s control of the economies of the region while missing the leverage to promote the rule of law and without guaranteeing full accession regardless of reforms undertaken.
Instead, the approach to the rule of law should begin with an understanding that some of the WB6 governments are deliberately undertaking actions leading to backsliding of the rule of law reforms achieved or ongoing. Measures that focus on changing their behaviour, as some earlier rule of law reform proposals argued should replace what is rightfully criticized as useless and technical benchmarking of barely existent progress. A better way to start with the promotion of the rule of law reforms would be by strengthening the integrity of the electoral process hampered by frequent accusations of illegal buying of votes and the manipulations to the electoral rolls. This could be complemented with clear technical and political assistance to those political actors that seek to defend the values of rule of law and democracy. Such an approach would not be entirely new; Slovakia’s lag in preparations for the accession to the EU in the late 1990s which owed much to the undemocractic practices of the regime of the then-President Meciar was overcome through such actions. Finally, an integration of the lessons on trust and the judicial systems from the EUROJUST monitoring must be translated into a meaningful set of actions. Strengthening the rule of law through better legislation and an institutional framework designed to foster accountability is important but is not enough for overcoming low trust in the judicial institutions. Rather, actions of a collective nature, led by the civil society or the political parties, are needed to mobilize the societal potential for change. But this brings back the problem of quantification of success of such movements and the pitfalls of measurement of rule of law generally. On the one hand, the existing correlation between the weak rule of law and low levels of trust should be considered as it would allow those promoting the rule of law a quantification of their efforts. On the other hand, changes to generalized levels of trust in a society develop slowly and are a generational process. Perhaps the solution is to rethink whether the usage of the EU Justice Scorecard should be complemented by the usage of trust indicators while keeping in mind that no immediate benefits may be reaped from this.