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Global Europe: Legal and Policy Issues Volume 2 of the EU’s External Action The Principle of Solidarity International and EU Law Perspectives Eva Kassoti Narin Idriz Editors Global Europe: Legal and Policy Issues of the EU’s External Action Volume 2 Editors-in-Chief Narin Idriz , T.M.C. Asser Institute, The Hague, The Netherlands Eva Kassoti, T.M.C. Asser Institute, The Hague, The Netherlands Advisory Editors Elaine Fahey, Institute for the Study of European Law, City University London, City Law School, London, UK Ramses A. Wessel, Faculty of Law, University of Groningen, Groningen, The Netherlands Katja Ziegler, University of Leicester, Leicester, UK The Global Europe Book Series: Legal and Policy Issues of the EU’s External Action Series is a peer-reviewed book series that explores the legal and policy issues pertaining to the EU’s global actorness. The editors of the book series welcome edited volumes as well as monographs exploring the EU’s identity as an international actor. The coverage extends to submissions identifying the internal and external factors that may challenge the EU’s capacity to exercise value-based global leadership on crucial issues affecting European citizens as well as those from other parts of the world; critically reflecting on whether the external projection of the EU as a virtuous normative power comports with its practice on the ground as well as addressing the descriptive, normative and conceptual challenges that complement the ever-expanding global reach of EU law. · Eva Kassoti Narin Idriz Editors The Principle of Solidarity International and EU Law Perspectives Editors Eva Kassoti Narin Idriz T.M.C. Asser Institute T.M.C. Asser Institute The Hague, The Netherlands The Hague, The Netherlands ISSN 2666-4828 ISSN 2666-4836 (electronic) Global Europe: Legal and Policy Issues of the EU’s External Action ISBN 978-94-6265-574-4 ISBN 978-94-6265-575-1 (eBook) https://doi.org/10.1007/978-94-6265-575-1 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © T.M.C. ASSER PRESS and the authors 2023 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. 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The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany Contents 1 ‘The Kindness of Strangers’—Solidarity in International and EU Law: An Introduction .................................. 1 Eva Kassoti and Narin Idriz Part I Solidarity: An International Law Perspective 2 In Search of Solidarity in International Law ..................... 17 Dire Tladi 3 Solidarity as an International Legal Norm ....................... 29 Craig Eggett 4 The Principle of Solidarity in the Law of Transboundary Groundwater ................................................. 55 Petr Stejskal 5 Global Environmental Issues and International Solidarity: Between Myth and Reality ..................................... 75 Vonintsoa Rafaly 6 Anti-legal? Georges Scelle’s Solidarity, French Sociological School, and the Backlash Against International Investment Law in Africa ................................................. 99 Tomasz Milej 7 Differential Treatment for Developing Countries as a Manifestation of Solidarity: Overcoming New Challenges by Going Back to the Basics .................................... 129 Athar Ud Din Part II Solidarity: An EU Law Perspective 8 Thinking About Solidarity and EU Law ......................... 153 Eleanor Sharpston v vi Contents 9 Why the European Commission’s Pragmatic Approach to Asylum Is Not Enough: Re-imagining Solidarity as a New Form of Conducting Regional Politics ........................... 163 Eleni Karageorgiou 10 Solidarity in EU Immigration and Asylum Law: A Corpus Linguistic Analysis ............................................ 181 Laura Mastroianni 11 External Solidarity in Integrated Border Management: The Role of EU Migration Agencies ................................. 209 Mariana Gkliati and Salvatore Fabio Nicolosi 12 The Solidarity Principle in the Context of the CFSP: The Adoption of Restrictive Measures as an Expression of Solidarity? ................................................. 237 Anna Pau 13 TheManyFacesofSolidarityandItsRoleintheJurisprudence of the Area of Freedom, Security and Justice ..................... 261 Alina Carrozzini and Luigi Lonardo 14 Reflections on the Legal Content of Solidarity in EU Law Under the Lens of the Covid-19 Pandemic ....................... 281 Susanna Villani Chapter 1 ‘The Kindness of Strangers’—Solidarity in International and EU Law: An Introduction Eva Kassoti and Narin Idriz Contents 1.1 Introduction ............................................................... 2 1.2 The Many Faces of Solidarity: Solidarity in the Theory and Practice of International and EU Law ............................................................... 4 1.3 Solidarity as a Leitmotif: The Relevance of Solidarity in International and EU Legal Discourses and the Selectivity Critique ........................................ 6 1.4 Overview of the Contributions in this Volume ................................... 9 References ..................................................................... 13 Abstract The purpose of this introductory chapter is not to rehash the question of the normative value of solidarity in international and EU law—an issue which is treated in extenso in the chapters contained in the volume. Rather, we have found it more helpful to canvass here some more general thoughts pertaining to the ideologically charged context and presumptions underpinning current debates surrounding solidarity as well as to its relevance and the possible dangers of invoking it selectively on the international and EU law level—issues that have not been, in our view at least, adequately addressed in the literature. Against this backdrop, this chapter will begin by briefly mapping out the legal trajectory of solidarity in international and EU law. It will continue by sketching out some broader points regarding to the relevance as well as the possible pitfalls of the debate on solidarity in international and EU law, while the last section will provide an overview of the chapters in this volume. · · · Keywords Solidarity International community Common interest · · · · Self-interest Consent Selectivity critique International law EU law B E. Kassoti ( ) · N. Idriz T.M.C. Asser Institute, The Hague, The Netherlands e-mail: [email protected] N. Idriz e-mail: [email protected] © T.M.C. ASSER PRESS and the authors 2023 1 E. Kassoti and N. Idriz (eds.), The Principle of Solidarity, Global Europe: Legal and Policy Issues of the EU’s External Action 2, https://doi.org/10.1007/978-94-6265-575-1_1 2 E.KassotiandN.Idriz 1.1 Introduction Solidarity is a concept that is increasingly invoked in international and EU legal and policy discourses alike. The 2018 Global Compact for Safe, Orderly and Regular Migration, a non-binding instrument intended to enhance co-operation on international migration, states that: “Our success rests on the mutual trust, determination and solidarity of States to fulfil the objectives and commitments contained in this Global Compact.”1 In 2020 the UN General Assembly affirmed that a democratic and equi- table international order requires solidarity and co-operation among all States.2 The EU has expressly invoked solidarity in the eurozone, regarding both the refugee and the Covid-19 crises.3 More recently, in a joint statement, the European Commission President Ursula Von der Leyen and US President Joe Biden condemned Russia’s war on Ukraine and stressed that: “We stand in solidarity with the Ukrainian people, who are bravely defending their homeland, and we call on Russia to end the brutal onslaught against its neighbor.”4 However, the meaning, nature, functions as well as the normative contours of solidarity both at the international and at the EU law level remain nebulous—despite the importance attached to the relevant concept in international and EU law literature alike.5 The chapters in this edited volume stem from an (online) conference organized under the auspices of the T.M.C. Asser Institute in October 2021 where we invited the authors, as well as our distinguished keynote speakers Professors Dire Tladi and Eleanor Sharpston, to reflect on the legal trajectory of solidarity in international and EU law. We chose the EU legal system—as an example of a regional legal system—as a yardstick against which meaningful comparisons with international law can be made. Although references to solidarity can be found in other regional regimes and instruments such as the African Charter on Human and Peoples Rights6 and the Charter of the Organization of American States (OAS),7 the EU remains a regional organization with a high degree of integration in which solidarity is of cardinal importance and features among the founding values of the organization8 —and whose courts have engaged therewith in their practice (at least, to some extent).9 These considerations coupled with the Union’s claim to autonomy 1 Global Compact for Safe, Orderly and Regular Migration 2018. 2 UN General Assembly 2020, point 6(e). 3 Grimmel 2021, p. 242. 4 European Commission 2022b. 5 Forowicz 2020. 6 African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, 21 ILM 58. 7 Charter of the Organization of American States, signed 30 April 1948, entered into force 13 December 1951, 119 UNTS 3. 8 See Consolidated Version of the Treaty on European Union [2012] OJ C 326/13, Articles 2, 3(3), 3(5), 21(1). 9 See for example CJEU, Joined Cases C-6/69 and C-11/69 Commission of the European Commu- nities v French Republic, Judgment, 10 December 1969, ECLI:EU:C:1969:68, para 16; CJEU, Case 1 ‘TheKindnessofStrangers’—SolidarityinInternationalandEULaw:… 3 make the EU’s approach to solidarity a useful vantage point of view from which to identify points of convergence or divergence with international law. In this light, this edited volume provides not only insights into the evolution of the principle of solidarity in international and EU law but also serves as a springboard for answering broader questions pertaining to what its stage of development may imply for the two legal orders and/or their interaction. As it will become apparent below, solidarity exposes international law to intense political contestation. The debate on solidarity is premised on conflicting visions (or even assumptions) regarding the values (or lack thereof) underpinning the international legal order well as the self-interest or community-oriented driving forces behind States’ action at the international level. Thus, the regional narrative offers a new lens through which to revisit classic questions pertaining to the nature of modern international law, its generality, as well as its continuing relevance in a universe of regional organizations presenting different visions of co-existence and co-operation.10 In turn, the book also invites us to critically reflect on the ‘emancipatory potential’ of regional organizations. As the chapters of this volume demonstrate, solidarity in the EU law context has been developed in a rather piecemeal fashion and as part of short-term measures responding to crises—thereby, arguably, lacking a clear normative human rights anchor. Furthermore, the selectivity critique arises in a much more intense way in this context. Selective manifestations of solidarity at this level— such as, arguably, the EU’s response to Russia’s invasion of Ukraine—raise awkward questions of double standards. Although these are not endemic to the regional level, they do challenge the regional narrative and invite us to contemplate whether regional international organizations are loci where injustice is perpetuated at a micro-level. The purpose of the introduction is not to rehash the question of the normative value of solidarity in international and EU law—an issue which is treated in extenso in the chapters contained in the volume. Rather, we have found it more helpful to canvass here some more general thoughts pertaining to the ideologically charged context and presumptions underpinning current debates surrounding solidarity as well as to its relevance and the possible dangers of invoking it selectively on the international and EU law level—issues that have not been, in our view at least, adequately addressed in the literature. Against this backdrop, the structure of this chapter is as follows: Sect. 1.2 will briefly map out the legal trajectory of solidarity in international and EU law. Section 1.3 continues by sketching out some broader points regarding to the relevance as well as the possible pitfalls of the debate on solidarity in international and EU law, while Sect. 1.4 provides an overview of the chapters in this volume. Before embarking on the substantive discussion, we would like at this juncture to sincerely thank Ms Caroline Schmidt for her invaluable assistance in editing this volume. C-77/77 Benzine en Petroleum Handelsmaatschappij BV and others v Commission of the European Communities, Judgment, 29 June 1978, ECLI:EU:C:1978:141, para 15; CJEU, Cases C-715/17, C-718/17 and C-719/17 European Commission v Republic of Poland, European Commission v Hungary and European Commission v Czech Republic, Opinion of Advocate General Sharpston, 31 October 2019, ECLI:EU:C:2019:917, paras 251, 253. 10 See generally Chalmers 2019.