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<figure><img src="image_1.png" /></figure>
L'EUROPE UNIE

UNITED EUROPE

<figure><img src="image_2.png" /></figure>

No. 14 /
2019

Revue d'études européennes
PARIS
SUMMARY

<table><tr><td>Karina KUUSKMANN: BREXIT: Impact on the EU and consequences</td><td>1</td></tr><tr><td>Aleksi KAJANDER: EU Defense: Development of the European Defense Space and Its Relation with NATO</td><td>8</td></tr><tr><td>Dr. Yevhen SHEVCHENKO: A question on the state supremacy over the law: the context of reforming Ukraine's criminal legislation</td><td>18</td></tr><tr><td>Juho KIVIHUHTA: Democracy and the EU: Implication of democratic framework in the EU affairs. The role of European citizen</td><td>29</td></tr><tr><td>Henrik UUSTALO: Brexit and Constitutional Law of the European Union</td><td>38</td></tr><tr><td>Anri KIGURADZE: ISIS – A GLOBAL OR REGIONAL THREAT?</td><td>44</td></tr><tr><td>Raissa Raquel de Paula ALMEIDA: Populism: New Political Parties in Europe, Governments and Ideas and their Support for a Less Integrated Europe</td><td>55</td></tr><tr><td>Heldin MALMET: Current Issues in Internal Security</td><td>63</td></tr><tr><td>Esley Rodrigues CARVALHO: EU Internal Security: Terrorism and Criminality</td><td>70</td></tr><tr><td>Melda Kamil ARIADNO and prof. Anis H BAJREKTAREVIC: Humanising Cyberspace: the EU Legislation and its transformative power</td><td>78</td></tr></table>
# BREXIT: Impact on the EU and consequences

KARINA KUUSKMANN

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

KARINAKUUSKMANNN@GMAIL.COM

**Abstract:** 29th of March 2019 UK is scheduled for the United Kingdom leaving the European Union. Leaving EU was mainly triggered by the concern about the sovereignty of UK and immigration aspect, which was probably the last straw for the people who voted YES on the referendum on 23 of June 2016. This paper is analyzing the impact of BREXIT from economic and political aspect and the effect on the free movement of people from both perspectives – UK and EU. It was found, that both sides are going to suffer some consequences from BREXIT in every aspect, but it will not mean the end of the European Union.

**Keywords:** Artcile 50, Brexit, European Union, United Kingdom.

## INTRODUCTION

After European Coal and Steel Community was instituted in 1952, UK decided not to become a member due to concernes about souverignty and democracy. Same decision was made against signing Treaty of Rome and becoming the member of the European Economic Community in 1957. So, although United Kingdom has played a great part in European Union, it was not a member until 1973.<fnref n="1" />

Late 1950's UK had changed its opinion and started negotiations to enter the Common Market. They applied and were vetoed twice, 1963 and 1967 by the Prsident of France Charles De Gaulle, who accused Britain of having a deep-seated hostility towards European construction and that they showed a lack of interest in the Common Market. "The present Common Market is incompatible with the economy, as it now stands, of Britain," were his exact words on the matter, which lead to critizising UK economy, agriculture, working condition and even more aspects.<fnref n="2" /> After third application in 1973, after de Gaulle was no longer the President of France UK became a member of the European Communities after voting in the House of Commons with the result of 356 in favor to 244 against. In 1975 UK held it's first referendum, whether to remain in the European Community, the Common Market. Turnout of the referendum was 64% and 67% of the voters supported continued membership.<fnref n="3" />

This brief introduction of UK's history with EU demonstrates the rocky relationship between the two. At first, although encouraged to join, UK decided to stay distant from joining the new community and after reaching the decisin to finally join, they were vetoed twice and accused of being hostile.

## WHY BREXIT

BREXIT was triggered mainly by two aspects. First is the question of souverignty. As we know, this has always been the main issue for UK in regards of EU. Leavers are claiming, that accession into the EU in 1973 has limited the Parliamentary sovereignty, which is one of the

<footnote n="1">¹ „A history of the UK's EU membership“ June 15, 2016</footnote>

<footnote n="2">² „On this day 1967: De Gaulle says 'non' to Britain – again“</footnote>

<footnote n="3">³ Vaughn Miller. „The 1974-75 UK Renegotiation of EEC Membership and Referendum“ July 13, 2015. House of Commons Library</footnote>
principles of the UK constitution.⁴⁵ In Van Gend en Loos case in 1963 was articulated, that „By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on an international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states of the Community, the member states have limited their sovereign rights, and albeit within limited fields, have created a body of law which binds both nationals and themselves“.<fnref n="6" /> In the case of Costa v ENEL the supremacy of EU law against national law was established.<fnref n="7" /> With the Brexit their aim is to regain the sovereignty and with that be able to make their own trading agreements with other countries.

The second aspect is immigration. The UK citizens opposition to EU is strongly connected to immigration policies of the EU. Many are convinced, that immigration is negatively affecting nationalism and everyday lives of British people. Politicians have promised that, that Immigration will stop, there will not be free movement.<fnref n="8" /> This is the main reason for the YES vote on the referendum.

## IMPACT OF BREXIT

Article 50 of the Treaty of European Union allows a member state to decide to withdraw from the EU, according to its own constitutional requirements. Once the decision is made, the member state is required to notify the European Council, triggering a two-year negotiation period which may be extended by agreement.<fnref n="9" /> The exact impact of the Brexit is determined by the outcome of these negotiations. Biggest issues regarding the impact of Brexit are politics, economics, citizens rights and cuts to the EU budget after Brexit. So with the referendum, only thing, that was decided was to leave the European Union. On the referendum there was only a question, whether to leave the Union or stay. There was never any indication, what leaving the EU will entail.

There are four scenarios with Brexit, which all have different results and consequences for EU as well as for UK. Today, there is free trade between EU member states and there are rules laid down by EU. It is called a single market. If there is no deal for UK leaving, then 29 of March 2019 UK will have trade with EU on the bases of rules set by World Trade Organization, meaning that UK will become „third country“ to EU.<fnref n="10" /> With this, there will be custom checks, border taxes and other tariffs will be applied to goods entering to EU from UK and vice versa. Since Ireland remains in the EU, there will have a „hard border“ between the two for blocking movement of goods and people without border checks. So basically no deal situation would be the worst for both UK and EU and would change Europe as we know it today.

Hard Brexit means, that there will be a deal for UK leaving, but they will be cut out of single market, customs union and European Court of Justice. That means, that UK is able to make a free trade agreement with EU but also with other countries, such as USA, Canada and China.

When soft Brexit deal is made, then UK would remain into single market and customs union. There would be a few changes to EU when it comes to soft Brexit in terms of trade and customs.

<footnote n="4">⁴ „Parliament's authority“ https://www.parliament.uk/about/how/role/sovereignty</footnote>

<footnote n="5">⁵ „Dreaming of sovereignty“ March 19, 2016. The Economist</footnote>

<footnote n="6">⁶ Judgement of the Court. Van Gend en Loos v Nederlandse Administratie der Belastingen 6</footnote>

<footnote n="7">⁷ Judgement of the court. Costa v ENEL</footnote>

<footnote n="8">⁸ Tom McTague. „Theresa May unveils new UK immigration system“ October 2, 2018. Politico</footnote>

<footnote n="9">⁹ CONSOLIDATED TEXTS OF THE EU TREATIES AS AMENDED BY THE TREATY OF LISBON, article 50</footnote>

<footnote n="10">¹⁰ Dobrin, S., & Chochia, A. (2016). The concepts of trademark exhaustion and parallel imports: a comparative analysis between the EU and the USA. *Baltic Journal of European Studies*, 6(2), 28-57.</footnote>
Brits have tried to make a compromise and „cherry pick“ the condition best for them, but should also appeal to EU. The so called „chequers deal“ – staying into single market, but being able to make trade deals with other countries.

ECONOMICAL IMPACT

UK is one on the top contributors to EU budget with 8,9 billion GBP in 2017. Between 2014 and 2017 UK's contribution was 13%, making them third contributor after Germany and France. Each member state also receives benefits from EU. Most of the member states, especially newer members receive more, than they pay. UK contributes more than they receive. After leaving, UK will stop contributing annually and that means, that other member states have to start contributing more.<fnref n="11" /> After Brexit in 2021-2027 there will be a 94 billion euros less in the budget and at the first look it seems that EU must have to start cutting back some programmes. But according to a brief issued in spring 2018¹² assumes, that due to inflation and growth, the income of the 27 member states will be 28% higher than in 2014-2020, which means, that the financial impact of Brexit for EU is not as high as anticipated.

<figure><img src="image_3.png" /></figure>

Share of GDP exposed to the departure of the United Kingdom from the European Union.
Image source: www.politico.com

<footnote n="11">¹¹ „The UK is one of the biggest contributors to the EU budget“ July 13, 2018</footnote>

<footnote n="12">¹² Zsolt Darvas, Guntram Wolff. „Rethinking the European Union’s Post Brexit Budget Priorities.“ March 2018.
Bruegel</footnote>
Economical consequences with Brexit vary between different member states and it is dependant on the location and trade volumes. Countries, that are close to or have high volume of trade with UK, such as Ireland (10%), Netherlands (4,4%), Belgium (3,5%), Germany (5,5%) and France (2,2%) have the highest impact on their GDP after Brexit.<fnref n="13" />

After Brexit, whatever opt-out option is complied, it will reduce the trade between EU and UK and increase the cost due to taxes and fees on the border. Although loss or decrease of trade with EU is more damaging to UK then vice versa, it is bad for both. And as previously mentioned, it can go as high as 10% loss of GDP for some states. Probably it will not be the worst case scenario.

## FREE MOVEMENT OF PEOPLE

In this modern world living, studying and working as well as tourism has become a reality and inside EU for its citizens, there are only a few restrictions. The situation will change, especially living and working in UK will become more difficult. As previously mentioned, immigration was one of the main reasons that people voted YES on the referendum. And it was not only migrants from third world countries they were concerned about. In 2004, when the largest accention to EU happened, UK opened its borders to all the new EU citizens. Between 5000 and 13 000 migrants were expected to arrive into UK the first year, but close to 130 000 did.<fnref n="14" />

Theresa May has already stated, tha UK will end free movement of people. „Two years ago, the British public voted to leave the European Union and take back control of our borders. When we leave we will bring in a new immigration system that ends freedom of movement once and for all. For the first time in decades, it will be this country that controls and chooses who we want to come here.”

The new plan is to choose migrants according to their skills and education. The aim for this is to avoid people, who come with an intention to receive social benefits or simple labour. According to May, it is fair to ordinary working Brits.<fnref n="15" />

There is 3.2 million EU citizens living in UK and 1.3 million on UK citizens are living in EU. What does Brexit mean to them? According to the joint paper conducted and negotiated between EU and UK government, these people can stay where they are under the same conditions as today. Anyone coming after Brexit day will have to meet the new requirements laid down by UK.<fnref n="16" />

## POLITICAL IMPACT

There is 751 seats in European Parliament, UK holds 73 of these seats. In the Parliament, there are two sides – protectionism and liberalism, which refers to whether Europe should be more open or closed. UK with its 73 seats represents liberalism, along with Northern liberal block against Southern protective bloc and without UK, the balance would shift to protectionist bloc. Brexit would also change the political ideology – majority of UK's MEP's represent center-right and eurosceptic groups. After Brexit, their loss would strengthen the left and lead to more social Democratic union.<fnref n="17" />

<footnote n="13">¹³ Jacopo Barigazzi. „Where Brexit will hurt most in Europe“ January 8, 2018. Politico</footnote>

<footnote n="14">¹⁴ Ian Jack. „Who do I blame? Eight reasons we ended up in this Brexit mess“ March 3, 2018. The Guardian</footnote>

<footnote n="15">¹⁵ Tom McTague. „Theresa May unveils new UK immigration system“ October 2, 2018. Politico</footnote>

<footnote n="16">¹⁶ „Joint report from the negotiators of the European Union and the United Kingdom Government“ December 8, 2017. European Commission</footnote>

<footnote n="17">¹⁷ Oliver Patal, Chistine Reh. „Brexit: The Consequences for the EU's Political System“ 2016. University College of London</footnote>
<figure><img src="image_4.png" /><figcaption>Map of EU Parliament 2014, population per seat. Image source reddit.com</figcaption></figure>

UK has been a balancing force between France and Germany. Studies have shown, that after leaving, opposition between the two will grow stronger. France will have more difficulties standing out for their political views and Germany will increase their political power, which can increase opportunity for federalization.<fnref n="18" />

The change in political power after UK leaving can make EU more volatile, controversial and weaker. Since the representation of the liberal member states decreases, EU may become more closed to the outside world than before. There has been discussion about other member states leaving EU, if UK is granted soft Brexit. This is highly unlikely. As mentioned before, UK is one of the biggest contries in EU in terms of GDP, population and MEP's on the European Parliament. Although the EU's immigration politics has been problem for other member states, most will have a lot more to lose from leaving than UK does.

<footnote n="18">¹⁸ Kristjan Raid. 2016. „Brexiti poliitilised mõjud Suurbritanniale ja Euroopa Liidule“ Bakalaureusetöö. Tallinna Tehnikaülikool</footnote>
## CONCLUSIONS

There is no reason to belive, that Brexit won't happen. Brexit affects both - EU and UK and it's hard to say exacely, who will come out of it as a winner, but it is clear, that both sides will suffer some consequences.

In political aspect, there will be a shift in political power inside EU and according to the most probable scenario Germany will gain more power and also some tension between Germany and France will resurface, since the neutralizing UK will not be there. Liberal bloc will lose it's power in European Parliament, which would mean that EU will be more closed in terms of trade and there will be more regulations. In political aspect, there is also a threat, that EU will lose it's power in foreign politics.

In economy, the consequences vary - it does leave a big hole into EU budget, but when we are considering inflation, there will not be any huge sacrifises for any member states. The trade between UK and EU member states is still an open question. It is really depending on the opt-out option. Unless there is a soft-brexit deal, the trading will change. And that may influence some member state's GDP for as much as 10%.

Since stopping immigration is one of the highest priorities for UK after Brexit, the free movement of people will be affected highly. It is already confirmed, that no-one will have to move due to Brexit, but migrating into UK will be considerably more difficult for everyone in the future.

Brexit would end the European Union as we know it today, but it will not cause the collapse of the EU.

## BIBLIOGRAPHY:

„A history of the UK's EU membership“ June 15, 2016 http://ukandeu.ac.uk/explainers/factsheet-on-timeline/

„On this day 1967: De Gaulle says 'non' to Britain – again“
http://news.bbc.co.uk/onthisday/hi/dates/stories/november/27/newsid_4187000/4187714.stm

Chochia, A., Troitiño, D. R., Kerikmäe, T., & Shumilo, O. (2018). Enlargement to the UK, the Referendum of 1975 and Position of Margaret Thatcher. In Brexit (pp. 115-139). Springer, Cham.

Chochia, Archil, David Ramiro Troitiño, Tanel Kerikmäe, Olga Shumilo, and Nicole Lindstrom. "The First European Community and the British Position." In Brexit, pp. 59-81. Springer, Cham, 2018.

Vaughn Miller. 13 July 2015. „The 1974-75 UK Renegotiation of EEC Membership and Referendum“
House of Commons Library

„Parliament's authority“ https://www.parliament.uk/about/how/role/sovereignty (last accessed 22.11.2018)

Dobrin, S., & Chochia, A. (2016). The concepts of trademark exhaustion and parallel imports: a comparative analysis between the EU and the USA. *Baltic Journal of European Studies, 6*(2), 28-57.

„Dreaming of soverignty“ March 19, 2016 https://www.economist.com/britain/2016/03/19/dreaming-of-sovereignty The Economist

Kerikmäe, T., Chochia, A., Troitiño, D. R., & Hrebickova, A. (2018). The First Attempts to Unify Europe for Specific Purposes and British Flexibility. In Brexit (pp. 21-32). Springer, Cham.

Judgement of the Court. Van Gend en Loos v Nederlandse Administratie der Belastingen https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61962CJ0026

Judgement of the court. Costa v ENEL https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A61964CJ0006

Tom McTague. „Theresa May unveils new UK immigration system“ October 2, 2018
https://www.politico.eu/article/theresa-may-unveils-new-uk-immigration-system/

CONSOLIDATED TEXTS OF THE EU TREATIES AS AMENDED BY THE TREATY OF LISBON,
aricle 50
„The UK is one of the biggest contributors to the EU budget“ July 13, 2018 https://fullfact.org/europe/uk-one-biggest-contributors-eu-budget/

Zsolt Darvas, Guntram Wolff. „Rethinking the European Union’s Post Brexit Budget Priorities.“ March 2018 http://bruegel.org/wp-content/uploads/2018/03/PB-2018_01Correction.pdf Bruegel

Jacopo Barigazzi. „Where Brexit will hurt most in Europe“ January 8, 2018. https://www.politico.eu/article/brexit-impact-on-european-regions-revealed-by-eu-report-phase-2-negotiations/

Ian Jack. „Who do I blame? Eight reasons we ended up in this Brexit mess“ March 3, 2018. https://www.theguardian.com/commentisfree/2018/mar/03/brexit-immigration-jobs-eton-europe The Guardian

„Joint report from the negotiators of the European Union and the United Kingdom Government“ December 8, 2017. https://ec.europa.eu/commission/sites/beta-political/files/joint_report.pdf

Oliver Patal, Chistine Reh. „Brexit: The Consequences for the EU’s

Political System" 2016. https://www.ucl.ac.uk/constitution-unit/research/europe/briefing-papers/Briefing-paper-2 University College of London.

Kristjan Raid. 2016. „Brexit poliitilised mõjud Suurbritanniale ja Euroopa Liidule“ Bakalaureusetöö.
Tallinna Tehnikaülikool

Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). Cooperation or Integration?
Churchill's Attitude Towards Organization of Europe. In Brexit (pp. 33-56). Springer, Cham.

Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). First European and Pan-European Integration Efforts and British Reluctance. In Brexit (pp. 3-20). Springer, Cham.
# EU Defense: Development of the European Defense Space and Its Relation with NATO

ALEKSI KAJANDER

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

ALEKSI.KAJANDER@GMAIL.COM

**Abstract:** The European Union's Common Security and Defense Policy has often been associated with producing in the future a "real" common European Union army. However, many of the Member States of the EU are already a part of a defense alliance in the form of NATO. Consequently, what is the and what will the relationship be between these two organizations? This article provides a short overview of the relationship now and its potential future direction.

**Keywords:** CSDP, NATO, EU army, EU-NATO relationship.

## INTRODUCTION

<figure><img src="image_5.png" /></figure>

During the War in Kosovo the ineptitude of the EU to tackle a crisis in what may be called its backyard was revealed and as a consequence it became a driving force for closer EU security and defense cooperation<fnref n="1" />. On the other side of the Atlantic during this time, the Clinton administration looked favorably upon this type of development in the EU and encouraged an “ever closer Union”<fnref n="2" />.

Since the early late 90s and early 2000s, the rhetoric has changed dramatically. In 2018, the President of France, Emmanuel Macron, is now calling for a “real EU army” to defend Europe against China, Russian and even the United States<fnref n="3" />. Macron’s statement cannot be considered to be an exception either, as his statement echoes earlier statements made by the German Chancellor Angela Merkel calling for more independence from the United States in regards to defense<fnref n="4" />. Predictably on the other side of the Atlantic the President of the United States, Donald Trump labeled Macron’s statements as insulting<fnref n="5" />.

Therefore, in the span of about 20 years the relationship between the EU and the United States, and in this context by extension NATO as the United States is the major military power behind NATO, has changed dramatically from a co-operative standpoint to almost an opposing stance.

Consequently, several important questions arise from this rhetoric, what is the present state of the common EU defense and would a divorce from NATO even be viable in the near future?

<footnote n="1">¹ Paul Cornish and Geoffrey Edwards “Beyond the EU/NATO dichotomy: the beginnings of a European strategic culture”, *International Affairs* 77, no.3 (2001):588</footnote>

<footnote n="2">² Caspar W. Weinberger “EU separate defense – a bad idea”, *Forbes*, 3 April, 2000, 49</footnote>

<footnote n="3">³ Eli Meixler, “French President Emmanuel Macron Calls for a 'European Army' to Defend Against China, Russia and the U.S.”, *TIME*, November 7, 2018, http://time.com/5446975/emmanuel-macron-european-army-russia-us/</footnote>

<footnote n="4">⁴ Jordan Fabian, Morgan Gsalter, “Merkel: Europe can no longer rely on US protection”, *The Hill*, October 5, 2018, https://thehill.com/homenews/administration/387067-merkel-europe-cant-count-on-us-to-protect-us-anymore</footnote>

<footnote n="5">⁵ Chris Stevenson, Jon Stone, “Trump attacks Macron's call for EU army to defend against US as 'very insulting'”, *INDEPENDENT*, November 9, 2018, https://www.independent.co.uk/news/world/americas/us-politics/eu-army-trump-macron-france-europe-military-us-russia-china-defence-a8627176.html</footnote>
THE COMMON SECURITY AND DEFENSE POLICY (CSDP).
ORIGINS AND OVERVIEW OF THE CSDP

The Saint-Malo Declaration of 1998 is seen by many as the launch pad for the EU's Common Security and Defense Policy (CSDP), however already at this stage the relationship it was to have with NATO was not entirely clear<fnref n="6" />. France and United Kingdom both had widely different interpretations of the meaning of “autonomy” in regards to NATO<fnref n="7" />. For France, autonomy meant independence from NATO strengthening the European political power, whereas for the UK it meant building up European military power to bring life to NATO<fnref n="8" />.

The UK has been known to slow the progress of the CSDP's development, however, with Brexit the UK seems to have paradoxically changed its position by making suggestions it would like to continue to be a part of the CSDP.<fnref n="9" /> Nonetheless, one might expect the French view on the autonomy in regards to NATO strengthen in the coming years, however, the situation is not so black and white as the development of the CSDP demonstrates.

After the St. Malo declaration at the Cologne Summit the European security and defense policy was launched which was subsequently changed to the CSDP under the Lisbon Treaty<fnref n="10" />. As to the Lisbon Treaty, the Security and Defense aspects are concentrated in Section 2 of the Treaty spanning from Articles 42 to 46 of the TEU, as well as Article 222 TFEU regarding the solidarity of the Union.

Consequently, an interpretation of the Treaty Articles is crucial to understanding the present state of the CSDP, for the Treaties form the primary law of the European Union. As to the method of Treaty interpretation, despite international customary law warranting an interpretation under Article 31 (and 32) of the VCLT, the situation is not always so simple in the EU<fnref n="11" />. For example, in interpreting the Treaty compliance of the European Stability Mechanism the CJEU chose to interpret the situation not in accordance with international law but rather the political winds at the time<fnref n="12" />. Therefore, the interpretation of the Treaty articles regarding the CSDP are mainly indicative as they may be interpreted contrary to their textual meaning in the future if sufficient political pressure is exerted.

Nonetheless, the key wordings of Article 42 include (2) whereby the CSDP “shall include the progressive framing of a common Union defense policy” which in turn “will lead to a common defense”. From these wordings in accordance with Article 31 of the VCLT it is apparent that the objective of the CSDP is a common defense, and by that extension, what Macron may refer to as a “real EU army”, at least eventually.

Furthermore, Article 42 (7) incorporates a more concrete collective defense provision, whereby if one MS is the “victim of armed aggression on its territory” other MS “shall have” an obligation of providing “aid and assistance by all means in their power”. Interpreting this text in accordance with its ordinary meaning under Article 31 it is apparent that the other MS have, in case of an armed attack an obligation to provide all forms of assistance including military to the attacked MS. Considering the wording of “by all means in their power” attached

<footnote n="6">⁶ Chris J. Bickerton, Bastien Irondelle, Anand Menon, "Security Co-operation beyond the nation-state: The EU's Common Security and Defence Policy", *Journal of Common Market Studies* 49, no.1(2011):3</footnote>

<footnote n="7">⁷ Ibid, p 3</footnote>

<footnote n="8">⁸ Ibid, p 3</footnote>

<footnote n="9">⁹ Federico Santopinto et al, CSDP after Brexit: the way forward (Belgium: European Parliament, 2018), 4</footnote>

<footnote n="10">¹⁰ Bickerton, Irondelle and Menon, “CSDP”, 3</footnote>

<footnote n="11">¹¹ Gunnar Beck, “The Court of Justice of the EU and the Vienna Convention on the Law of Treaties”, *Yearbook of European Law* 35, no.1(2016):1</footnote>

<footnote n="12">¹² Ibid, p 504</footnote>
to the “aid and assistance”, the interpretation under Article 31 must include the deployment of troops and material provided the MS in question has a military under its control. Therefore, in effect this clause is not very different from NATO’s mutual defense obligation in Article 5, though Article 5 is more explicit as it references the use of armed force directly.

This “collective defense” provision of Article 42 (7) is complemented by Article 222, which provides for a “solidarity” obligation between the MS. More specifically, the article calls for “joint action” if a MS is the victim of a “terrorist attack or the victim of a natural disaster or a man-made disaster”. The term “man-made disaster” is broad and can include anything from a disaster at a Nuclear Power Plant to arguably, war, as the primary defining factor is that people i.e. “man-made” cause the disaster. Therefore, if put into the context of object and purpose of the Treaty under Article 31 it is not implausible to suggest that war is a “man-made disaster” that requires joint action, thereby reinforcing the message of Article 42 (7).

However, what of the relationship with NATO? Under Article 42 (2) it is additionally stated “this section shall not prejudice the specific character of the security and defense policy” and “shall respect the obligations of certain Member States which see their common defense realized” with NATO and be “compatible with the common security and defense policy established within that framework”. Interpreting the above, it is evident that, at least when drafting the Lisbon treaty, the objective of the CSDP was not to replace NATO but rather complement it. This is evidenced by the exemptions made to the obligations certain MS have under their NATO membership, whereby Section 2 of the TEU shall not prejudice those obligations, therefore, placing the CSDP into a complementary or subservient role to the NATO obligations, that is to say, the EU CSDP obligations under this provision shall not override the NATO obligations.

Consequently, at least on paper, if interpreted in accordance with Article 31 and hence, in good faith in accordance with the ordinary meaning of the terms in their context and the object and purpose of the treaty, the EU primary law sets down a NATO friendly framework. However, as mentioned above the CJEU may later creatively interpret Section 2 of the TEU to fit a more anti-NATO political climate in the EU, or that the next iteration of the EU Treaties will be worded considerably less NATO friendly.

However, the “collective defense” provision of Article 42 (7) contains a caveat whereby “Commitments and cooperation in this area shall be consistent with commitments under” NATO “for the those states that are members of it”. Again this may be interpreted as suggesting that the NATO obligations may not be overruled by the provision of collective defense under Article 42 (7). Therefore, as not all EU MS are members of NATO, this creates a non-uniform framework for the application of CSDP provisions. This is due to the MS that are also NATO members being potentially able to, if they so desired, to not comply with the CSDP obligations by referring to a conflict with their NATO obligations. As a result, the Common Security Defense Policy may not be as “Common” as the EU would need it to be, in the case of conflicting obligations with NATO.

Since the Treaty of Lisbon in 2007, 2017 has been called a watershed moment for the CSDP by some owing to the numerous developments that took place, that may form the foundation for European security in the future<fnref n="13" />. In the field of joint research and development in 2017 the Preparatory Action for Defense Research and the European Defense Industrial

<footnote n="13">¹³ Nathalie Tocci, “Towards a European Security and Defence Union: Was 2017 a Watershed?”, *Journal of Common Market Studies* 56, (2018):135</footnote>
Development Program (EDIDP) regulation were launched.<fnref n="14" /> In addition the Coordinated Annual Review on Defense (CARD) trial run was started to better co-operate the national defense budgets as well as increase transparency in this respect<fnref n="15" />.

Furthermore, 25 MS of the EU notified the High Representative of the Union for Foreign Affairs and Security Policy to activate the Permanent Structured Cooperation (PESCO).<fnref n="16" /> PESCO may go as far as to develop a single European armored vehicle as well as one of its most concrete impacts besides developing the joint capabilities of the MS armies. As a final note the first permanent European military command was established<fnref n="17" />. Consequently, 2017 was a busy year for the CSDP development and may well have long lasting effects on the CSDP in the EU, however, as the developments are so recent at the time of writing it remains to be seen what effect they will have in practice. Certainly, the development of a successful common European armored vehicle would be a tangible success for the CSDP, which may increase enthusiasm towards the project. However, equally if such a project is undertaken and the resulting vehicle is the product is akin to a soup with too many cooks, it may similarly spoil the appetites of the MS to develop military equipment together.

## CSDP AND NATO

On the surface, the relationship between the EU, and by that extension the CSDP, and NATO has been clear, the two organizations have a “Strategic Partnership” contained in the 2002 Berlin plus agreement<fnref n="18" />. However, it is commonly understood that one of the key features of NATO is the guarantee of defense among allies, of which the United States is the single most important provider<fnref n="19" />.

Therefore, the relationship between NATO and the EU/CSDP is determined not only be the actions of the EU/CSDP but the United States. The United States that may be described as the last superpower<fnref n="20" /> is generally speaking not interested in being an equal partner, but the leading partner in any coalition, certainly one between NATO and the EU<fnref n="21" />. This is further reinforced by the disproportionate contribution the United States makes into NATO, by providing 71.1% of the alliance's combined defense spending<fnref n="22" />, which naturally gives the US a more powerful voice. For NATO is certainly not an alliance of equals, but rather may be more aptly described as a collection of nations allying themselves with the United States and relying on it for protection. Therefore, as a result any discussion about the EU's relationship with NATO will inevitably involve United States' politics and their desires.

<footnote n="14">¹⁴ Ibid, p 135</footnote>

<footnote n="15">¹⁵ Ibid, p 135</footnote>

<footnote n="16">¹⁶ Ibid, p 135</footnote>

<footnote n="17">¹⁷ Ibid, p 135</footnote>

<footnote n="18">¹⁸ Simon J. Smith and Carmen Gebhard, “EU–NATO relations: running on the fumes of informed deconfliction”, European Security 26, no.3(2017):304</footnote>

<footnote n="19">¹⁹ Ibid, p 304</footnote>

<footnote n="20">²⁰ Hubert Muckel and Paul C. Jussel, NATO and EU/European Defense initiatives: competitive or complimentary? (Pennsylvania: US Army, 2006), 10</footnote>

<footnote n="21">²¹ Petros Dimetriou, “NATO&CSDP: Can the EU afford to go solo?”, *Cogent Social Sciences* 2(2016):4</footnote>

<footnote n="22">²² Holly Ellyatt, “Trump’s NATO criticism is ‘valid,’ Europe isn’t spending enough on defense, UK ex-minister says”, *CNBC*, July 11, 2018, https://www.cnbc.com/2018/07/11/trumps-nato-criticism-is-valid-europe-isnt-spending-enough-on-def.html</footnote>
Consequently, one must continuously remember that as the EU/CSDP power grows the more it will begin to rival the global influence of the United States<fnref n="23" />. Therefore, the relationship may become increasingly strained in the future if the CSDP's military power will begin to rival that of the United States'.

With that said, during the 2013 special summit on the CSDP the call was for more co-
operations between the CSDP and NATO<fnref n="24" />. A sentiment, which was echoed in the 2016
European Global Strategy, which aimed to “deepen” the relationship between the two alongside
the Joint Declaration, signed in Warsaw two weeks later<fnref n="25" />. Consequently, the calls by European
leaders going as far as to say defense against the United States are quite clearly a recent
phenomenon, for it is clear from the above that the relationship, at least on paper, has been one
of co-operation.

Ironically, this shift may have its roots in 2016 as well with the presidency of Donald Trump, who has called for a cessation of the United States paying for Europe's defense<fnref n="26" />. It must be stated that Mr. Trump's frustrations are not unfounded, as only four European member states of NATO, meet the agreed 2% minimum GDP defense spending agreed in 2006.<fnref n="27" /> It is alarming that one of these four is the United Kingdom who is evidently intending to leave the Union, and despite the uncertainty raised earlier likely the CSDP as well. That would mean that the only 3 EU MS meeting the 2% NATO spending target are Greece, Estonia and Poland.

The notable omissions from the 2% spending target are both France and Germany, which are held to be key for a credible CSDP, as they would form the Franco-German engine to power it<fnref n="28" />. This fact has not escaped the notice of many other notable individuals besides Mr. Trump, such as MIT international relations professor Barry Rosen who in 2014 called for a 10-year gradual US withdrawal from NATO<fnref n="29" />. His concerns were similar to Trump's, the alliance is simply not cost-effective and for the US the costs outweigh the benefits, even other US presidential candidates such as Bernie Sanders echoed this motion<fnref n="30" />.

As a result, there is considerable underlying as well as sometimes-overt tension in the relationship between NATO and the EU/CSDP, which may result in a sort of a lose-lose situation for the EU. If the CSDP fails to become powerful enough to not be considered a free-riding ally of NATO, the US may well withdraw from NATO citing its financials, leaving the EU and by that extension, Europe vulnerable.

On the other hand, if the CSDP succeeds and becomes a powerful rival to the United
States the relationship between the two organizations may suffer nonetheless as the present
supremacy of the US will be challenged. Therefore, arguably a moderately successful CSDP
would be the most fruitful ground for a co-operative relationship with NATO in the future;
however, with the political rhetoric becoming increasingly opposing, this modest aim may not
be what the EU will set as its target.

<footnote n="23">²³ Muckel and Jussel, *NATO and EU/European Defense initiatives*, 11</footnote>

<footnote n="24">²⁴ Joylon Howorth, “Strategic autonomy and EU-NATO cooperation: threat or opportunity for transatlantic defence relations?”, *Journal of European Integration* 40, no. 5(2018):525</footnote>

<footnote n="25">²⁵ Ibid, p 525</footnote>

<footnote n="26">²⁶ Ibid, p 528</footnote>

<footnote n="27">²⁷ Dimetriou, “NATO&CSDP”, 9</footnote>

<footnote n="28">²⁸ Tocci, “Towards a European Security and Defence Union: Was 2017 a Watershed?”, 134</footnote>

<footnote n="29">²⁹ Howorth, “Strategic autonomy and EU-NATO”, p 529</footnote>

<footnote n="30">³⁰ Ibid, p 529</footnote>
THE UKRAINE CRISIS AND A JOINT FAILURE?

The Crisis that began in 2014 in Ukraine has already been heralded as a failure from NATO owing to its lack of ability to deal with the Russian aggression.³¹³² Obviously, this assessment is not without its caveats as Ukraine is not a NATO member and therefore not formally a part of the defense alliance. However, there had been a widespread notion that Ukraine will join NATO such as at the Bucharest Summit where allied leaders agreed that Ukraine would become a NATO Member in the future<fnref n="33" />.

However, there was backpedalling on the part of Ukraine in 2010 regarding its NATO membership and there was no formal invitation from Ukraine for NATO assistance<fnref n="34" />. Nonetheless, some state that the crisis revealed decision-making problems within NATO regarding the crisis, which was initially thought to be a mere small incident, which proved to be wrong when Russia annexed Crimea, by which time it was too late<fnref n="35" />. To make matters worse, European NATO member states had pushed for less defense spending owing to the 2008 crisis and the US had began to shift its focus towards Asia, which resulted in a storm of circumstances that left NATO looking weak on the global stage<fnref n="36" />.

However, to say that the EU came out any better would be a false. The Common Security and Foreign Policy of the EU was far from common during the crisis<fnref n="37" />. The flagrant violations of the “solidarity” of the EU MS was quite appalling, the UK sold sniper rifles, ammunition, drones and laser technology to Russia while criticizing France for the planned sale of the ship Mistral to Russia<fnref n="38" />. This was additionally complemented by the internal bickering of the MS regarding the response towards Russia, with the severity of the actions to be taken being a highly divisive topic<fnref n="39" />.

As if the situation could not get worse, according to the Ukrainian press, the supplying of weapons to the conflict was very confused among the EU MS as well<fnref n="40" />. The UK, Germany, France, the Czech Republic, Austria, Italy, Greece and Cyprus provided weapons to Russia while Poland, Finland, the Czech Republic, the UK and Lithuania delivered weapons to Ukraine<fnref n="41" />. While supplying both sides may be an apt business strategy for the EU, it is certainly not a moral or unified strategy. As a result, the EU in effect supplied both sides of the conflict and did not provide a unified response, which one might expect under a Common Security and Foreign Policy. Needless to say, this makes the EU and by that extension the CSFP and CSDP look weak and divided on the international arena.

Therefore, neither NATO nor the EU demonstrated their finesse in dealing with military aggression on European soil. This failure brings into question the potential success of the CSDP in the future as a cohesive, unified and capable force on the international stage.

<footnote n="31">³¹ Hoffmann, T., & Chochia, A. (2018). The institution of citizenship and practices of passportization in Russia's European Neighborhood Policies,'. Russia and the EU Spaces of Interaction, Abingdon: Routledge, Taylor & Francis Group, 223-237.</footnote>

<footnote n="32">³² Isaac Kfir, "NATO's Paradigm Shift: Searching for a Traditional Security-Human Security Nexus", *Contemporary Security Policy* 36, no.2(2015):222</footnote>

<footnote n="33">³³ Ibid, p 223</footnote>

<footnote n="34">³⁴ Ibid, p 223</footnote>

<footnote n="35">³⁵ Ibid, p 223</footnote>

<footnote n="36">³⁶ Ibid, p 223</footnote>

<footnote n="37">³⁷ Ondrej Filipec, "(In)efficiency of EU Common Foreign and Security Policy: Ukraine, Brexit, Trump and beyond", *Slovak Journal of Political Sciences* 17, no. 3-4(2017):284</footnote>

<footnote n="38">³⁸ Ibid, p 284</footnote>

<footnote n="39">³⁹ Ibid, p 284</footnote>

<footnote n="40">⁴⁰ Ibid, p 284</footnote>

<footnote n="41">⁴¹ Ibid, p 284</footnote>
CREDIBILITY AND VIABILITY OF A NATO INDEPENDENT EU CSDP

As Kofi Annan once stated “You can do a lot with diplomacy, but you can do a lot more with diplomacy bucked up with firmness and force”<fnref n="42" />, consequently, for an EU army and by that extension the CSDP to be effective, it must have credible military force behind it. This is especially true if any semblance of Macron’s vision of a “real EU army” that could protect Europe from China, Russia or the United States is to be chased after.

As expressed by the Americans above regarding the European states free-riding on their defense, the state of the European militaries appears far from ideal. During the crisis in Kosovo for example, the United States flew 60 % of all sorties and 80 % of strike sorties and the European forces were heavily dependent on US intelligence<fnref n="43" />. Memories such as these leave long-lasting impressions, which must be erased by operational successes by the EU/CSDP forces, if they are to be taken seriously by other global powers.

Germany especially has been the subject of very unflattering headlines regarding its military. Which is a huge concern if a Franco-German engine would be driving the CSDP in the future.

The headlines have included the German military resorting to the use of broomsticks in NATO exercises to cover-up the lack of machine guns in 2015⁴⁴. Which is barely the tip of the iceberg, as almost a third were missing, not to mention 41 % of their handguns, three-quarters of their night vision equipment and the Germans were using ordinary Mercedes vans as replacements for armored personnel carriers<fnref n="45" />.

Similarly, in late 2017, once the scourge of the Atlantic, the entire German U-boat fleet was out of action, as all six need repairs<fnref n="46" />. The situation became more embarrassing in 2018 when the German navy refused to commission their new frigates owing to their multiple faults<fnref n="47" /> and a report stating that the armed forces as a whole were less ready for war than ever<fnref n="48" />. Consequently, Germany can be held to be a prime example of the type of NATO “free-rider” the United States has grown increasingly tired of, as the Germans only spend 1.2 % of their GDP on their military<fnref n="49" />.

On the European level, the situation is not much better as the defense spending of the EU countries dropped from 2.8 % of their GDP in 1988 to an average of 1.5 % in recent times, which does not compare favorably to e.g. Russia 5 % GDP<fnref n="50" />. Therefore, the abysmal situation with the German military may be representative of a much wider problem throughout the EU MS, which must certainly be addressed if the CSDP is to be taken seriously globally. For it is unlikely that future Russian aggression will be deterred by the use of EU broomsticks.

<footnote n="42">⁴² Ibid, p 286</footnote>

<footnote n="43">⁴³ Cornish and Edwards, “Beyond the EU/NATO dichotomy”, p 588</footnote>

<footnote n="44">⁴⁴ Justin Huggler, “German army used broomsticks instead of guns during training”, *The Telegraph*, February 18, 2018, https://www.telegraph.co.uk/news/worldnews/europe/germany/11420627/German-army-used-broomsticks-instead-of-guns-during-training.html.</footnote>

<footnote n="45">⁴⁵ Ibid</footnote>

<footnote n="46">⁴⁶ Associated Press, "Germany's entire submarine fleet is now out of action", *Business Insider*, 20 October, 2018, http://uk.businessinsider.com/ap-germanys-entire-u-boat-fleet-is-out-of-action-2017-10</footnote>

<footnote n="47">⁴⁷ Robert H. Charette, "New German Warship Fails Sea Trials Due to Tech Woes", *IEEE Spectrum*, February 7, 2018, https://spectrum.ieee.org/riskfactor/computing/it/new-german-frigate-fails-tests</footnote>

<footnote n="48">⁴⁸ Associate Free Press “Underequipped German army ever less ready for battle, damning report concludes”, The Local.DE, February 20, 2018, https://www.thelocal.de/20180220/underequipped-german-army-ever-less-ready-for-battle-damning-report-concludes</footnote>

<footnote n="49">⁴⁹ Ibid</footnote>

<footnote n="50">⁵⁰ Filipec, “(In)efficiency of EU Common Foreign and Security Policy”, p 287</footnote>
However, even Russia's military budget, albeit shrouded in some mystery as to its exact size<fnref n="51" />, pales in comparison to that of the United States, which spent 686.9 billion USD on defense in 2017⁵². To put this in context, Germany only spent around 45 billion USD on its defense in 2017 with France hovering around the same number and the UK spent 55 billion USD<fnref n="53" />. Therefore, to even nearly match the United States' military spending through an "EU army" would require a massive effort from the EU Member States, as the total for all the MS for defense adds to about 200 billion<fnref n="54" />.

Therefore, regardless if the EU aims for strategic autonomy from NATO or a co-operative role with NATO, it would seem that in either case a substantial increase in the defense spending of the MS is in order. For it is unlikely that the United States, and hence the major defense provider of NATO, will continue to pay for a charade where only the US with very few exceptions is the only one meeting the agreed obligations.

This situation is made worse if the United Kingdom decides to stay completely outside of the CSDP and opts to leave the EU with a "hard" Brexit. It is no secret that the UK military is one of the biggest in Europe, and as established above one of the few that actually meets the NATO spending targets. As a result the disappearance of the British military entirely from the CSDP would be a blow felt deeply in the present state of affairs. As for example Germany is in no position to take the UK's place in terms of defense spending as it has stated to only reach a defense spending of 1.5% of its GDP by 2024⁵⁵.

A further consideration is the fact that there may be a resulting power imbalance within the EU and the CSDP. This is due to the fact that out of all the European militaries only the UK and France have nuclear weapons<fnref n="56" />. Consequently, if the UK were out of the equation, this would mean that France would have considerable leverage over the rest of the EU MS, as it is the only member with nuclear capabilities. This has not gone unnoticed in Germany, as there is a serious debate about equipping the nation with nuclear capabilities<fnref n="57" />.

Nonetheless, in the near future if the EU/CSDP would divorce itself from NATO, however unrealistic this may be, and the UK separates entirely from the CSDP, the French will be in a favorable position to dictate its policies owing to its nuclear capabilities to the rest of the Union. Thus, the resulting power imbalance is no trivial concern, for it would likely only add further fuel to the euro skepticism of smaller EU nations that they are merely dominated by the more powerful MS.

<footnote n="51">⁵¹ Vladimir Jushkin, "What is Hidden in Russia's Military Budget", RKK ICDS, May 25, 2018, https://icds.ee/what-is-hidden-in-russias-military-budget/</footnote>

<footnote n="52">⁵² Holly Ellyatt, "Trump's NATO criticism is 'valid,' Europe isn't spending enough on defense, UK ex-minister says", CNBC, July 11, 2018, https://www.cnbc.com/2018/07/11/trumps-nato-criticism-is-valid-europe-isnt-spending-enough-on-def.html.</footnote>

<footnote n="53">⁵³ Ibid</footnote>

<footnote n="54">⁵⁴ "How much is spent on defence in EU?", Eurostat, Accessed 20 November, 2018, https://ec.europa.eu/eurostat/web/products-eurostat-news/-/DDN-20180518-1?inheritRedirect=true</footnote>

<footnote n="55">⁵⁵ Holly Ellyatt, "Trump's NATO criticism is 'valid,' Europe isn't spending enough on defense, UK ex-minister says", CNBC, July 11, 2018, https://www.cnbc.com/2018/07/11/trumps-nato-criticism-is-valid-europe-isnt-spending-enough-on-def.html.</footnote>

<footnote n="56">⁵⁶ Matthew Karnitschnig, "German bomb debate goes nuclear", POLITICO, March 8, 2018, https://www.politico.eu/article/german-bomb-debate-goes-nuclear-nato-donald-trump-defense-spending/.</footnote>

<footnote n="57">⁵⁷ Ibid</footnote>
## CONCLUSION

The development of a “real EU army” has taken considerable steps in the span of a relatively few years, notably in 2017. While the long-term results of these developments remains to be seen, it demonstrates the will and ambition of the EU to develop the CSDP into a respectable and formidable entity.

However, the reality of the force behind the CSDP, that is to say the European militaries, is at this stage appears quite dismal. Significant investments must be made into the military spending of the EU MS, which is aided by the joint research and development framework that has been developed especially in 2017. Nonetheless, the fact remains that as of this moment there does not appear to be enough operational capability and force behind the CSDP for it to truly become a force to reckon with on the global stage. This is further reinforced by the poor demonstration of the “unity” and cohesion of the EU MS during the 2014 Ukrainian crisis where the EU MS response was far from unified.

Due to these factors, despite the increasingly opposing political rhetoric between the EU and the United States, and by that extension, NATO, as of this moment the EU simply does not have the capacity to divorce itself from NATO or the United States. Consequently, for the near future the relationship between EU and NATO ought to be, from the EU perspective that of the “strategic partnership” agreed in Berlin for right now Europe needs NATO more than NATO (that is to say, the United States) needs Europe. The EU is not capable of forming a credible defense for Europe on its own against an increasingly aggressive Russia, and certainly the thought of a credible defense against the United States as Macron called for is a fantasy at this stage. Therefore, it is in the EU’s best interest in the short-term is to develop the CSDP into an entity that is capable of being a credible strategic partner to NATO, and only later if the need or desire eventually arises in the distant future, a credible global entity on its own.

## BIBLIOGRAPHY:

### Books

* Muckel, Hubert and Paul C. Jussel. NATO and EU/European Defense initiatives: competitive or complimentary? Pennsylvania: US Army, 2006.

* Santopinto, Federico et al. *CSDP after Brexit: the way forward*. Belgium: European Parliament, 2018.

### Journal Articles

* Beck, Gunnar. "The Court of Justice of the EU and the Vienna Convention on the Law of Treaties", Yearbook of European Law 35, no.1(2016):484:512

* Bickerton, Chris J., Bastien Irondelle, Anand Menon. "Security Co-operation beyond the nation-state: The EU's common Security and Defence Policy", *Journal of Common Market Studies* 49, no.1(2011):1-21

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* Cornish, Paul and Geoffrey Edwards. "Beyond the EU/NATO dichotomy: the beginnings of a European strategic culture", *International Affairs* 77, no.3 (2001):587-603

* Dimetriou, Petros. "NATO&CSDP: Can the EU afford to go solo?", *Cogent Social Sciences* 2(2016):1-16

* Filipec, Ondrej. "(In)efficiency of EU Common Foreign and Security Policy: Ukraine, Brexit, Trump and beyond", *Slovak Journal of Political Sciences* 17, no. 3-4(2017):279-298

* Hoffmann, T., & Chochia, A. (2018). The institution of citizenship and practices of passportization in Russia's European Neighborhood Policies,' *Russia and the EU Spaces of Interaction, Abingdon: Routledge, Taylor & Francis Group*, 223-237.
Howorth, Joylon. "Strategic autonomy and EU-NATO cooperation: threat or opportunity for transatlantic defence relations?", Journal of European Integration 40, no. 5(2018):523-537

Keedus, L., Kerikmäe, T., Chochia, A., & Troitiño, D. R. (2018). The British Rebate and the Single European Act: Political Ramifications of an Economic Reform. In Brexit (pp. 141-151). Springer, Cham.

Kerikmäe, T., Chochia, A., Troitiño, D. R., & Hrebickova, A. (2018). The First Attempts to Unify Europe for Specific Purposes and British Flexibility. In Brexit (pp. 21-32). Springer, Cham.

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Smith, Simon J. and Carmen Gebhard. "EU-NATO relations: running on the fumes of informed deconfliction", European Security 26, no.3(2017):301-314

Tocci, Nathalie. "Towards a European Security and Defence Union: Was 2017 a Watershed?", *Journal of Common Market Studies* 56, (2018):131-141

Troitino, D. R., Kerikmäe, T., & Chochia, A. (2018). De Gaulle and the British Membership in the European Communities. In Brexit (pp. 83-97). Springer, Cham.

Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). Cooperation or Integration? Churchill's Attitude Towards Organization of Europe. In Brexit (pp. 33-56). Springer, Cham.

## Magazine Articles

Associate Free Press. "Underequipped German army ever less ready for battle, damning report concludes", The Local.DE, February 20, 2018, https://www.thelocal.de/20180220/underequipped-german-army-ever-less-ready-for-battle-damning-report-concludes

Associated Press "Germany's entire submarine fleet is now out of action", Business Insider, 20 October, 2018, http://uk.businessinsider.com/ap-germanys-entire-u-boat-fleet-is-out-of-action-2017-10

Charette, Robert H. "New German Warship Fails Sea Trials Due to Tech Woes", IEEE Spectrum, February 7, 2018, https://spectrum.ieee.org/riskfactor/computing/it/new-german-frigate-fails-tests

Ellyatt, Holly. "Trump's NATO criticism is 'valid,' Europe isn't spending enough on defense, UK ex-minister says", CNBC, July 11, 2018, https://www.cnbc.com/2018/07/11/trumps-nato-criticism-is-valid-europe-isnt-spending-enough-on-def.html

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Huggler, Justin. "German army used broomsticks instead of guns during training", The Telegraph, February 18, 2018, https://www.telegraph.co.uk/news/worldnews/europe/germany/11420627/German-army-used-broomsticks-instead-of-guns-during-training.html.

Jushkin, Vladimir. "What is Hidden in Russia's Military Budget", RKK ICDS, May 25, 2018, https://icds.ee/what-is-hidden-in-russias-military-budget/

Karnitschnig, Matthew. "German bomb debate goes nuclear", POLITICO, March 8, 2018, https://www.politico.eu/article/german-bomb-debate-goes-nuclear-nato-donald-trump-defense-spending/

Meixler, Eli. "French President Emmanuel Macron Calls for a 'European Army' to Defend Against China, Russia and the U.S.", TIME, November 7, 2018, http://time.com/5446975/emmanuel-macron-european-army-russia-us/

Stevenson, Chris, Jon Stone. "Trump attacks Macron's call for EU army to defend against US as 'very insulting'", *INDEPENDENT*, November 9, 2018, https://www.independent.co.uk/news/world/americas/us-politics/eu-army-trump-macron-france-europe-military-us-russia-china-defence-a8627176.html

Weinberger, Caspar W. "EU separate defense – a bad idea", *Forbes*, 3 April, 2000, 49

## Other

"How much is spent on defence in EU?", Eurostat, Accessed 20 November, 2018, https://ec.europa.eu/eurostat/web/products-eurostat-news/-/DDN-20180518-1?inheritRedirect=true
# A question on the state supremacy over the law: the context of reforming Ukraine's criminal legislation

DR. YEVHEN SHEVCHENKO

DEPARTMENT OF CRIMINAL LAW 1
YAROSLAV MUDRYI NATIONAL LAW UNIVERSITY
61024, PUSHKINSKA STR., 77
KHARKIV, UKRAINE

E-MAIL: KRIMLOWI@NULAU.EDU.UA

**Abstract:** This paper represents an observational discussion on the essence of Criminal law, in the context of contemporary views on the body and its inter-relations with the state. By choosing a specific case of a particular country (Ukraine), this paper confirms that the academic debate on such a comprehensive subject can become as diverse as it can possibly be.

**Key words:** Law, Ukraine, Criminal law, state supremacy.

## INTRODUCTION

The very essence of law has been and remains the focus of modern legal and political thought. Even these days, conceptually, law could be considered one of the main categories not only within general theorising in the broad field that quasi-unifies philosophy and jurisprudence, but also an important subject of research in a high number of other academic disciplines. This is all due to the fact that the correct understanding of law, its essentiality as well as its direct ‘product’ (i.e. legislation) assists in formulating a set of basic premises for objective interpretation of different social as well as normative aspects of every-day life. In a specific case of a particular country – for our special example, this country is chosen to be Ukraine – the debate on such a comprehensive subject can become as diverse as it can possibly be. Especially, when it comes to inter-relations between the state and the law in Ukraine, as argued by Tyushka, “right after coming to power, political elites strive to adjust the basic constitutional norms in a way providing them broader scope of authority and, respectively, better control of the oppositional powers”<fnref n="1" />. Perhaps, this argument indirectly supports a suggestion that “the post-independence history of the Ukrainian Constitution can be conceived as a history of discussions about the Constitution”<fnref n="2" />. However, such theorising has been directly linked to the country’s Supreme Law, the Constitution, underlining its objectively unique place in the grand debate. What about some other bodies of law, for example Criminal law?

Generally, the scholarship on the topic underlines that the criminal law's meaning is essentially associated with the body's sectoral characteristics, defining it as “a system of legal rules (indeed, laws), adopted by the Verkhovna Rada<fnref n="3" /> [...] that designate those socially dangerous acts are considered as crimes and what kind of punishment will be applied to the person who committed it”<fnref n="4" />, or as a “branch of law that integrates the legal rules, which determine the act as a crime and the punishment for it, and other measures of legal influence to be applied to the person who committed

<footnote n="1">¹ Tyushka, A. (2016). 'From Constitutional Volatility to Constitutional Stability: Any Chance to Reconcile Constitutionalism and Power Struggle in Ukraine?' in *Historia i Polityka*, 16 (23), pg. 58.</footnote>

<footnote n="2">² Chaban, N. and Vernygora, V. (2010). ‘Ukraine’s Constitutional ‘Saga’: Ukrainian Media Reflections of the Constitutional Profess’ in *Trames*, 14 (64/59), 3, pg. 228.</footnote>

<footnote n="3">³ The *Verkhovna Rada of Ukraine* is the country's unicameral parliament that is composed of 450 members (commonly known as deputies).</footnote>

<footnote n="4">⁴ Baulin, Y. et al. (2010). *Criminal Law of Ukraine: General Part. Textbook* (Kharkiv: Pravo), 4th edition, pg. 12.</footnote>
it, while determining the grounds for criminal liability as well as exemption from criminal liability and punishment”<fnref n="5" />. At the same time, such definitions are justified precisely because of the questions relating to the criminal law, which is a form of its legislative expression: in accordance with Part 2 of Art. 1 of the country’s Criminal Code, “[it] determines which socially dangerous acts are crimes and which punishments are applied to the persons who committed those acts”<fnref n="6" />.

Such understandings of Criminal law (with a great deal of similar definitions that could be allocated in the field), despite certain differences, are unified by a highly important distinguishing feature – they all determine the relevant body of law mainly through the description of the institutions that form it, matching or even equating Criminal law with a criminal law (or a law on criminal liability). However, this approach was commonly accepted during the dominance of the so-called normative theory of law, but in was in the times when Ukraine was an integral part of the former Soviet Union. These days, it seems to be obsolete and insufficient in the process of clarifying the essence of Criminal law, especially in the context of contemporary views on the body and its inter-relations with the state. Arguably, such a **misleading discrepancy** represents an academic problem, and, considering the above, this paper attempts at **drawing attention to this issue in the light of modern views on legal thinking**. In addition, while taking into account the main vector of the general legal thought’s development – at least, in some foreseeable years to come – where there is a likelihood for the process to be leaning towards the creation of an integrative legal concept, one could see a certain logic in intertwining this general debate with **an observational discussion** on Criminal law as well. Not only such a drive is reinforced by an academic desire to participate in developing the theory of Criminal law, but the aforementioned discussion’s outcome should be of immense assistance for law-makers.

# I. OBSERVING THE DEBATE

Indeed, for most of the XX century, legal studies in Ukraine were based on a dogmatic interpretation of law (including the Criminal law), linking it to the set of rules and principles established by the ruling class. Without ‘dwelling’ too much on the socio-historic causes of this interpretation, it is worthwhile mentioning that it was connected with the following two factors. **On the one side**, there was an evident normative ‘visibility’ of the direct impact that the state-promoted communist ideology made on the correlation between the individual’s and the society’s interests, and, of course, on the state in itself that would always prevail over the former and the latter. **On the other side**, there was a centuries-long particular psychological ‘attachment’ to the phenomenon of faith that the Ukrainian people have always been known by. At first, it was a faith in higher powers; then – a faith in a good tsar, who will do everything in the right way; and, finally – a faith in the state that should help in realising or even realise any dream or desire.

However, since the collapse of the former Soviet Union and due to a number of fundamental changes in the country’s political, social and economic structures, the following features of the aforementioned dogmatic interpretation of law started being seriously questioned: **a)** the domination of one class over others in a modern society; **b)** the state-related origin of law as the phenomenon’s one and only origin; **c)** the supremacy of the state over law; **d)** the absolute level of sameness between law and the law.

<footnote n="5">⁵ Naumov, A. ed. (1994). *Criminal Law of Russia. General Part* (Moscow: Jurist), pg. 10.</footnote>

<footnote n="6">⁶ *The Criminal Code of Ukraine*, current version with revisions on 11 January 2019. (2001). Accessible: https://zakon.rada.gov.ua/laws/show/2341-14?lang=en.</footnote>
Without any intention to look down at the role that the old interpretation played in a certain period of the legal thought's development in Ukraine (some could argue that this role was significant), this paper underlines that the criticism of the previously dominating approach was not coincidental with the time when almost everything associated with past had been harshly criticised. Objectively, the critique was based on widespread societal disagreement with the doctrinised possibility for the legislator to continue being coupled with arbitrariness of the state, which essentially would continue following from the previous interpretation of law. Nor should one underestimate the change of ideological basis in the views on the state's predominant role over the society.

From the second half of the XX century, in the process of discussing the essence of law, the understanding of legal provisions and articles as ‘cells’ of law was criticized quite sharply as “narrow regulatory, normative, [and] positivist understanding of law”<fnref n="7" />. This critique was based on a fair reprimand of the inappropriateness of bringing law only to the texts of the laws, as this entails a separation from the practice of its implementation and diminishes (or does not sufficiently recognise) human rights and freedoms, as well as the moral principles of society.

Some of these scholarly comments are objectively relevant even today, in the sense that not only in the process of Criminal law enforcement, but also in theoretical doctrinal studies, there is still an existing tendency to be limited only to a range of comments on legal texts, without analysing any nature of their origin or societal perceptions on them. Indeed, the overwhelming majority of the provisions of the Criminal Code of Ukraine, migrating from one of its editions to another, are, so to speak, traditional, ‘crafted’ by centuries of history and, therefore, fully coincide with the notions of justice. However, recently, in the light of the actuality and its challenges, a range of new provisions are increasingly being introduced in the law – for example, the criminalization of extremist activity (Art. 110-1)<fnref n="8" />. The latter, in itself, while widely considered a dangerous phenomenon, however, due to the imperfection of legislative technique in describing it, as well as the appearance of notions like “social hatred” and “social affiliation”, is perceived by society in a mixed way.

It is hard to counter-argue that the process of meticulous studying the actual texts of criminal legislation is one of the main stages of getting closer to the understanding of law. At the same time, the plain texts, being apart from the live social content, legal relationship-driven dynamics, guarantees for those texts to be implemented in reality, and without taking into account a degree of the society's legal consciousness as well as common traditions and law enforcement practices, do not assist much in preparation of substantiated proposals for the Criminal Code's improvement, not to mention that such a simplified approach can lead to a certain erosion of law and order. Therefore, treating the Criminal law (as well as any other law) merely as a ‘conglomerate’ of legal texts will not help in identifying the legal content of these acts, while ‘drowning’ in different requirements, declarations, and definitions. For example, how could one, being guided only by the text of the Criminal Code's Art. 2, Par. 1⁹, define the concepts and features of the “crime” outlining the legal grounds for criminal liability, or disclose the essence of the “criminal liability”, or distinguish it from the “punishment”?

In addition, as it could be observed, the view on the legal texts as if they are “the state’s order”, which is one of the major postulates of normativism that links the regulatory function of law exclusively to the imperative method, could lead one towards an intriguing argument. It could be suggested that even if the law consolidates and enshrines the rights of citizens, it does not simply ‘deliver’ an important legal as well as positive command, but also it could be seen and treated as a

<footnote n="7">⁷ Podvolotsky, I. (1923). *Marxist Theory of Law* (Moscow-Petrograd: State Publishing House), pg. 156.</footnote>

<footnote n="8">⁸ *The Criminal Code of Ukraine*.</footnote>

<footnote n="9">⁹ *The Criminal Code of Ukraine.*</footnote>
restrictor of those rights “at least for the reason that only those rights are secured but not the other ones, and only those rights, but not the other ones are allowed to be excercised”<fnref n="10" />.

It will be hard to deny, even if it is going to be a denial of an abstraction, that if the Criminal Code does not consist of any norms on criminal responsibility for the murder, the society would be reacting on such a *status quo* with indifference, while waiting for the wise legislator to fix the issue. In fact, the state seems to only formalise the notion of the need to protect the most important of the relationships, universally recognised in society or necessary for its own existence. Or, sometimes, it provides for framing up an appropriate vector to form the aforementioned notion – for example, by criminalising one or another act. Depending on whether or not the act is perceived as conforming to the societal views on fairness and justice, the state determines its further fate (legal treatment) – the law can be amended accordingly or it can be abolished altogether.

However, such an overwhelming normativism on the nature and the way of exercising the citizen's rights could easily lead some scholars to a conclusion that the norm of Criminal law represents a formulated, secured and protected rule for the state to 'behave' accordingly<fnref n="11" />. For example, Naden<fnref n="12" /> also argues that the whole essence of Criminal law is reduced only to the power of the state, and the nature of relations, which is framed up by this particular body of law, comfortably 'dwells' on such an understanding. Objectively, this academic vision dramatically reduces the comprehensive scope of Criminal law-bound relationships to become a 'one-way road', which they are not. In addition, should the multi-faceted notion of Criminal law be substituted, so the body of law becomes a function of the state, determining the state's essence, this will, with necessity, degrade the real significance of Criminal law by 'pushing' it towards adopting a status of a variety of the State law. In fact, it is rather intriguing to note that such an academic stand-point could be taken by a scholar who, in her monograph, dedicated plenty of space to disagree with the narrowly normativist understanding of law<fnref n="13" />.

In the context of this observation's topic, it is possible to make a step further arguing that the fact of treating the Criminal law only through the prism of the body's textual component, which presumably expresses the will of the state, represents – almost – an inborn distinguishing feature of the Ukrainian legislator's understanding of the issue. Unfortunately, the legislator's long-term stability in taking a 'special care' of the normative side of law, particularly in the part that concerns the 'pure' stately origin of law and the state's perceived as well as real supremacy over law, leads to a very common situation when the legislator merely embodies an exclusive role of 'the creator' of legal norms.

Moreover, taking into account issues of reflection of this definition in the consciousness of society (legal consciousness), the quality of the text of the law as a guarantee of the simplicity of the implementation of norms in relations between the relevant actors (legal relationships), and the dynamics of the practice of the functioning of the legal system in general (law and order) often 'resides' outside of the legislator's attention, becoming just a declarative component of the process.

## II. DISCUSSING THE OBSERVATIONS

This material does not have an academic intention to degrade the state-driven process of expanding the legislative regulation of issues related to the fight against crime – naturally, such an

<footnote n="10">¹⁰ Nedbailo, P. (1965). 'Issues of the Structure of the Soviet Legal Norms in Connection with Their Gradual Development into the Rules of a Communist Community' in *Law and Communism* (Moscow), pg. 129.</footnote>

<footnote n="11">¹¹ Naden, O. (2012). *Theoretical Foundations of Criminal Law Regulation in Ukraine* (Kharkiv: Pravo), pg. 110.</footnote>

<footnote n="12">¹² Naden.</footnote>

<footnote n="13">¹³ Naden.</footnote>
effort made by the state deserves to be welcomed, especially given the circumstances of Ukraine. However, a situation can only be considered objectively optimal should a new law on combating crime be a result of a comprehensive professional discussion on as well as testing of those legal ideas to be used in the new law. After all, the whole process should be all about harmonising the interests of the individual, society, and the state. Otherwise, it is difficult to even raise a question of the fairness of the requirement for ordinary citizens in regards of the application of the *ignorantia legis non excusat*<fnref n="14" /> principle, since the volume of such changes and additions to the major segments of the Ukrainian legislation is so large that it requires from professional lawyers plenty of efforts to keep up with and even understand the process. It is also a concern that the legislator, sometimes, overuses the limitations of the standard rule for a new provision of the Criminal Code to enter into force. Although the possibility of enacting a new norm from the day of its official publication does not contradict Art. 4, Par. 1 of the Criminal Code<fnref n="15" />, this provision relates to a certain range of exceptional cases (such as a catastrophe or war, for example) and, therefore, it is not for systematic use, as is often the case today.

From this standpoint, one could argue that the amendments to the Criminal Code should not be so frequent, because it could raises a question on the legislator’s level of competence – was the change really needed to be made, or was it a situation what the *Verkhovna Rada* made a serious error or misjudged something in the process of analysing the directions of societal development that it is now hectically trying to fix the issue by amending the already amended norm of the Criminal Code or/and adding some other norms in. Or, what if the highly sophisticated as well as strategic process of lawmaking in Ukraine is reduced to a something else – **either** an attempt to reach a set of narrowly utilitarian or lobbyism-driven or politically-motivated goals for the benefit of a small group of people, **or** a childish competition between different MPs or factions for a higher number of bills proposed during a single period. In the pre-revolutionary Ukraine (before 2013), there were more than 120 drafts on amendments to the Criminal Code formally submitted at the *Verkhovna Rada*, not to mention that, since 2001, it has been recorded a bit less than a thousand of different legislative proposals on the Code’s ‘improvements’. At the same time, if we take into consideration that the overwhelming majority of those proposals, usually, related not to one, but were focused on adjusting five, ten or even twenty Articles of the Criminal Code, then the total number of changes would not have been too far from several thousand.

Although the number of actual amendments to the Code, which entered into force since 2001, is much lower if compared to the aforementioned ‘avalanche’ of proposals, – ‘only’ 471, – and the vast majority of them were concerning some editorial clarifications or criminalization<fnref n="16" />. Interestingly enough, 7 of those have already been eliminated, while 26 have been decriminalized on the ground of humanizing the current law<fnref n="17" />, some of them, nevertheless, are associated with systemic transformations that substantially change the generally accepted approaches and views, which have been formed within the Ukrainian legal doctrine centuries. Such novelties cannot always be considered indisputable. This argument can be applied, for example, to a number of legal norms adopted **a)** on the basis of a perception that fining represents one of the mildest types of criminal punishment, and, as a consequence, **b)** on the ground of a particular set of criteria, which

<footnote n="14">¹⁴ Latin for “ignorance of law excuses no one”.</footnote>

<footnote n="15">¹⁵ *The Criminal Code of Ukraine*.</footnote>

<footnote n="16">¹⁶ We are talking about 70 of newly recognised offences, where some of them have already been amended, with Art. 368 and 339 of the Criminal Code ‘suffering’ the changes for correspondingly 5 and 6 times.</footnote>

<footnote n="17">¹⁷ Tatsiy, V., Borisov, V., and Tyutyugin, V. (2013). ‘Stability and Dynamism – Necessary Conditions for the Effectiveness and Quality of Ukrainian Legislation on Criminal Liability’ in *Current Problems of Criminal Law Impact: Collection of Scientific Articles* (The Luhansk State University of Internal Affairs, Ukraine, and The Volgograd State University, Russia).</footnote>
assist in classifying offences by their severity. For instance, the notion of ‘unlawful profit’ that was introduced by the laws on *On the Principles of Prevention of and Counteraction against Corruption* and *On Amendments to Certain Legislative Acts of Ukraine on Legal Charges for Corruption Offenses*, adopted a more narrow conceptual connotation if compared to the notion of ‘bribe’, which is traditional for the Ukrainian legislation. Objectively, as argued, this situation does not help in reaching the state-promoted ultimate goal of strengthening the fight against corruption<fnref n="18" />.

This could be treated as a classic as well as actual example of the Ukrainian legislator's ultimate misinterpretation of its very own direct function in the formalization of the Criminal law's norms. Instead, the legislator substitutes the aforementioned comprehensive function by a questionable unilateral activity on defining the normative content alone, which is always a negative consequence of normativism, especially given the level of statehood's development of statehood in Ukraine. Therefore, if the goal is to build a law-governed state in Ukraine, there is also an objective necessity to search for and find a new understanding of the Criminal law, which would confirm not only the state's legitimacy, but also human rights as well as a custom of favouring the law before favouring the state.

On that basis, the idea of the broad understanding of law has been developed, and as its direct consequence, law has been distinguished from the law. According to this concept, as suggested, not only legal norms, but also legal relations as well as legal ideology and legal consciousness, were included in the concept of law<fnref n="19" />. Such a take on legal thinking makes it possible to overcome legal formalism; in addition, its democracy-bound idea is about legitimacy and justice to not only be proclaimed on paper (in the legal text), but also embodied through the state-originated practical activities and in strict accordance with the citizens' legal conscience. However, at present, the stated concept of legal thinking is only partially used and appreciated in the Criminal law of Ukraine, and only in that part that relates to legal relations, as one of its qualities. And it happens at a time when the world's academic thought went much further on. Therefore, it may turn out that, while theoreticians will continue 'trying on' different views on the legal understanding and its compatibility with the Criminal law of Ukraine, the practical field (especially, given the example of the EU) will begin removing the barriers between different legal systems, undermining basic foundations of legal pluralism. In fact, the process of creating a single international legal space has already begun and, from now on, the history of European law, as argued, is written in Brussels and Strasbourg<fnref n="20" />.

Within the framework of the contemporary intra-Ukraine academic debate, the scholarship started leaning towards contextualising Criminal law with discussions on legal relationships, legal ideology, and legal consciousness. For example, Kuznetsova and Tyazhkova believe that Criminal law – as a body of law as well as a legal sub-system – includes not only a system of norms adopted by the supreme authority, but also “criminal legal interactions related to law-making and law enforcement”<fnref n="21" />. In his turn, Pudovochkin offers an extensive definition of the Criminal law as an independent branch of law, which, while based on the [conceptual] ideas of legality, equality, guilt, justice and humanism, represents a system of legal norms adopted by the supreme body of representative power that determines [...] socially dangerous acts as crimes, by regulating them via prohibitions, obligations, permissions or incentives that arise on their basis from the moment when

<footnote n="18">¹⁸ Kirichko, V. (2013). 'Criminal Liability for Corruption' in *Scientific & Practical Commentary* (Kharkiv: Pravo).</footnote>

<footnote n="19">¹⁹ Piontkovsky, A. (1958). 'On the Question of the Relationship between Objective and Subjective Law' in *Soviet State and Law*, 5, pg. 25-36.</footnote>

<footnote n="20">²⁰ Kovler, A. (2002). *Anthropology of Law. Textbook for Universities* (Moscow: Norma/Norma-INFRA), pg. 5.</footnote>

<footnote n="21">²¹ Kuznetsova, N. and Tyazhkova, I., eds. (1999). *The Treatise on Criminal Law: General Part. Volume 1* (Moscow: Zertsalo), pg. 1-2.</footnote>
the crime was committed in the relations between the person who committed the crime and the state, which is represented by its competent authorities.<fnref n="22" />

However, this paper argues that yet another scholarly opinion on the issue – this time, it was offered by Navrotsky<fnref n="23" /> – deserves a decent level of recognition, even though it could and, most probably, will be widely criticized by supporters of traditionalism. Navrotsky also supports the idea of differentiating and correlating the concepts of Criminal law and the law (criminal norms), but prefers to discuss the issue using the well-known “content vs. form” formula, while underscoring that the content can never exist without the proper form and the form cannot be in existence without any content<fnref n="24" />. Therefore, in his seminal book, he argues that the identification of Criminal law as [simply] the law and the treatment of the two as antipodes are extreme ways of debating on the issue<fnref n="25" />.

Unfortunately, Navrotsky does not provide his own definition of Criminal law. Instead, he contributes in underscoring the societal purpose and role of this particular body of law, distinguishing the latter from the functions and tasks of the Criminal Code. Therefore, Navrotsky describes the functions of Criminal law to be as follows: a) formulating the society's requirements on determining the scope and features of a criminal offence and measures to respond to such acts; b) determining the circumstances, which prevent an act that is characterized by certain features of a crime from being recognized as such; c) determining the grounds for exemption from criminal liability and punishment<fnref n="26" />. Building on it, it is possible to argue that the described functions are excercised only within a framework of legal relationships, which is constructed in strict accordance with the society's requirements of society. Thus, in general, the function of Criminal law, although related, but does not necessarily coincide with the function of the law.

In addition, regarding the range of objectives that Criminal law possess, it is not surprising that these are also differentiate from the objectives of Criminal legislation. While the Criminal Code's Art. 1, Par. 1 outlines that the document's objectives are about “legal protection of the most important social relations”<fnref n="27" />, the particular case of Criminal law underlines that the body of law's main task should be based on achieving justice in the field of crime prevention, according to the following thesis: “everyone who deserves punishment for committing a crime has been subjected to criminal responsibility, and anyone who is not guilty was not brought to such responsibility”<fnref n="28" />. This remark is not indisputable, but if based, for example, on libertarian views on legal thinking – it has its logic.

Even though such an academically fruitful discussion on delineation of a particular body of law and the law has a sufficient theoretical justification, it can also enlighten the students of legal studies to a number of aspects that could be treated as angular for both the theory of Criminal law and the state-arranged actions of law enforcement. Most probably, one could quickly realize that, during its historical process, the world has come across a high number of legislative norms, but not many of them could be described as legal. For example, what can one say about eastern despotisms or different stages of the Soviet history?

Those and many other historic periods 'produced' legal norms that were objectively unfair, inhumane, and, therefore, would not meet societal requirements in principle. For example, what

<footnote n="22">²² Pudovochkin, Y. (2005). In Malinin, V. ed., *Encyclopaedia of Criminal Law: the Concept of Criminal Law*. Volume 1 (Saint Petersburg), pg. 182.</footnote>

<footnote n="23">²³ Navrotsky, V., ed. (2013). *Criminal Law of Ukraine: General Part* (Kyiv: Yurinkom Inter).</footnote>

<footnote n="24">²⁴ Navrotsky, pg. 25.</footnote>

<footnote n="25">²⁵ Navrotsky.</footnote>

<footnote n="26">²⁶ Navrotsky.</footnote>

<footnote n="27">²⁷ *The Criminal Code of Ukraine*.</footnote>

<footnote n="28">²⁸ Navrotsky, pg. 29.</footnote>
would be a scholarly judgement on the December 1919-issued *Guiding Principles of Criminal Law of the R.S.F.S.R.*, which were in force in some parts of the modern day Ukraine – the document, firstly, outlined that “Soviet criminal law has the task, by means of repression, of protecting the system of social relations corresponding to the interests of the laboring masses, organized into the ruling class under the dictatorship of the proletariat in the transitional period from capitalism to communism”, and secondly, defined a crime as “an act of commission or omission dangerous for the given system of social relations, and makes struggle by governmental power necessary against the person (criminal) who perpetrates such acts or allows them to occur as a result of a failure to act”<fnref n="29" />.

Certainly, one can assume some ideology-oriented operational logic in the then legislator's argument that a handful years of the Soviet political regime's existence was not enough to issue a corrected-by-history forecast on a range of possible criminal offences – there was simply no any historical analogy to 1917 – but the *Guiding Principles* would still hardly be treated as a societal requirement. Or let us take the so-called 'seven/eight law', known in history as the *1932 Law of Three Spikelets*, according to which no one was allowed to take any grain left in state farms without being qualified as a thief – the primary punishment for this crime, in accordance to this law, was execution by shooting, and no amnesty was allowed<fnref n="30" />. This law was issued during the Soviet famine of 1932–33, which in the Ukrainian context was compounded by the *Holodomor*<fnref n="31" />. Perhaps, few experts may find the 'seven/eight law' corresponding to some interests of the state, but, for the society of the former Soviet Union, the law was appalling.

Considering the above, the results of assessment of many current laws are not always equivocally positive. If not all of them meet the requirements of society, then how do we treat those that do not meet this criterion? This is only one of quite a few questions that arise not only in theory and practice, but also within society. That is why it seems to be objectively incorrect to exclude a social content from the law, turning this social dimension merely into a formality – in comparison with the conceptual meaning of Criminal law. Even more incorrect could be to employ a one-sided approach in the process of analysing the concept of justice, presenting it as an antagonistic battle between the society's and the state's understandings of the concept.

Arguably, if an individual and society have their own idea of the law conforming to their rights, the state, as a social entity, may also have relevant interests, which are extremely important for its sustainability or even survival but do not necessarily coincide with the notions of fairness celebrated by a narrow circle of individuals. For example, when it comes to such a crime as treason against the state in the form of a transition to the enemy's side during the period of martial law or at a time of armed conflict, it can be committed by a person who disagrees with the state-run policies or dominating ideologies, and such cases were widespread during the World War II – not only in Ukraine, but also in Belarus, France, Russia, others. These discrepancies should be communicated and discussed within a given society, so a common ground is found. In fact, any legal system's content is linked to history-originated legacies and history-bound legitimacy, and those are not always unambiguous or unquestionable. In general, historical experience shows that the 'weight' of positive law, which is created by a far-sighted state over time, can and should become an integral

<footnote n="29">²⁹ *Guiding Principles of Criminal Law of the R.S.F.S.R.* (1919). Accessible: http://soviethistory.msu.edu/1917-2/state-security/state-security-texts/guiding-principles-of-criminal-law-in-the-rsfsr/.</footnote>

<footnote n="30">³⁰ The decree of the Central Executive Committee and the Council of People's Commissars of the USSR, *About protection of the property of state enterprises, kolkhozes and cooperatives, and strengthening of the public (socialist) property*, 7 August 1932. Accessible: 'The Law of Five Spikelets' http://memorialholodomor.org.ua/eng/zakon_pro_5/.</footnote>

<footnote n="31">³¹ The *Holodomor* was a man-made famine in the Soviet Ukraine in 1932-33, considered by the modern Ukrainian state to be an act of genocide. To date, 14 sovereign countries, 18 states of the U.S.A. as well as the United States Senate officially recognised the *Holodomor* as an act of genocide.</footnote>
binding acts – laws, decrees, executive orders, precedents, officially authorized practices and so on, in other words – with the officially established (so-called positive) law. In contrast to the law, law's inherent features are equality and freedom. [...] Where [...] there is no principle of equality, there is no law as such.<fnref n="34" />

Indeed, in accordance with the postulates of Criminal law, this thesis is fully reflected in the broad principle of “nullum crimen sine poena, nulla poena sine lege, nullum crimen sine poena legali”<fnref n="35" />, should the principle’s content be interpreted in the following way: a) it represents equality – each and every punishment in its volume and content fully corresponds to the society’s understandings and perceptions of the dangers associated with the committed crime; b) it represents freedom – no one can apply any appropriate measures of state coercion, except in the cases provided for by the Criminal Code; c) it represents both equality and freedom at the same time – all people are equal before the law and, and nobody should avoid criminal liability, if there grounds for that.

**Fourthly and finally,** the still prevailing view on the content of Criminal law in Ukraine through the positivist prism should be considered obsolete, since it does not satisfy the academic thought in the field of legal studies. Enhancing our conceptions of law, which forms the Criminal law as its body, should be holistically based on legal ideas, principles, norms, and social relations. Therefore, scholarly research in the field urgently seeks for new directions to extend the boundaries of integrative concept in the context of legal thinking.

REFERENCES:

Baulin, Y. et al. (2010). *Criminal Law of Ukraine: General Part. Textbook* (Kharkiv: Pravo), 4th edition. In Ukrainian: Баулін, Ю. та ін. (2010). *Кримінальне право України: Загальна частина: підручник* (Харків: Право). За ред. Сташиса В. та Тація В., 4-те видання, перероблене і доповнене.

Chaban, N. and Vernygora, V. (2010). ‘Ukraine’s Constitutional ‘Saga’: Ukrainian Media Reflections of the Constitutional Profess’ in *Trames*, 14 (64/59), 3, 227–249.

*Guiding Principles of Criminal Law of the R.S.F.S.R.* (1919). Accessible: http://soviethistory.msu.edu/1917-2/state-security/state-security-texts/guiding-principles-of-criminal-law-in-the-rsfsr/.

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# Democracy and the EU: Implication of democratic framework in the EU affairs. The role of European citizen

JUHO KIVIHUHTA

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

JUHO.KIVIHUHTA@LIVE.FI

**Abstract:** The concept of an EU citizen has developed over the years with not just economic, right to reside in other Member States but also rights in the democratic processes. The processes of decision making, passing legislation and legal proceedings are proceeded between the institutions of the European Union, that function according to the powers assigned to them. The opportunity to influence decisions for an EU citizen arises from three ways of participation that have developed in the provisions of the treaties. The EU citizens can affect the democratic process through their national elections, in the elections of the European Parliament and by proceeding a merited legal claim to the Court of Justice of the European Union. The author analyzes official information along with journal writings to introduce the aspects of the topic. The author analyzes the relevant developments in the treaties that create the current legal rights of the EU citizen. The author covers the EU organizations relevant for the paper, their composition and their functioning in the Union. Also, the author analyzes features and mechanisms that take place in the democratic process along with the democratic deficit.

**Keywords:** EU citizenship, democratic process, EU citizens' electoral rights

## INTRODUCTION

<figure><img src="image_6.png" /></figure>

The European Union is composed of multiple different organs with different functions. Originally the European Union that started out as a Union for trade between Germany and France has reached its union of a single market to 28 states, additionally to the Member States there are members such as Iceland and Norway who are a part of the European Economic Area but not a part of the other functions of EU.<fnref n="1" /> The European Union is also additionally a legislator and a political entity, both of which have developed over the years, mostly concerning legislation in the single market. The union is a political structure with political decision making and at the ground level of influence is at least legally the Member State and the European citizen. In this paper the author will introduce the democratic framework that currently rules the Union. The author will then proceed to introduce and analyze the effects that this framework has on the functioning of the Union. Once the basics of the have been introduced the author will analyze the role of the European citizen, or to be more precise, the Member State citizen that has European union citizenship through their citizenship in their Member State. Their role in the democratic process is not obvious at all, due to different functions of the union, treaty provisions and their right to vote for a representative in the European Parliament. The aim of the paper is to define the democratic framework according to which the decisions are made in the Union, the different institutions and parties to the decisions and lastly introduce the ways this system works under the democratic principles and how the individual European citizen can have their voice heard in the structure. The questions that it mainly aims to answer is that whether the European citizen can affect directly or indirectly the functioning of the Union or is the citizenship of EU only a grand declaration without any actual practical application.

<footnote n="1">¹ Countries in the EU and EEA Accessed: 21.11.2018 https://www.gov.uk/eu-eea</footnote>
DEVELOPMENTS

The democratic framework in the European Union consists multiple organs and decision
making is mainly done by the European Parliament and the Council. The newest development in
the field of the Treaty of Lisbon that extended the decision-making powers of the Parliament and
created some additional elements to the system, but first let's take a look at the what was achieved
in the Treaty of Maastricht. The treaty of Maastricht created the concept of EU citizenship and
created a larger field for the powers of the Parliament also affecting to Councils voting procedure
to majority voting.<fnref n="2" /> The Maastricht treaty gave more say to the Parliament in the democratic
process, and created the possibility for EU citizens to run for the parliament or vote for candidates
into the Parliament.<fnref n="3" /> In terms of creating a democratic framework this puts the Union into a
completely new perspective in the authors opinion. The fact that actual democratic features are
presented to the citizens that reside in the Union area is great. The legal right to affect the
functioning using these rights would actually create a democratic element. The Union has grown
and in this manner the integration of democratic rights and ensuring in the legal field that a person
does have the rights is important. This affects the functioning of EU affairs a lot, and the
perspective changes when a truly democratic method is laid down in the law there is a greater
possibility for integration of European people, because it puts them on the same line. I will later
review the functioning in a more detailed manner where it is unfortunately the case that not
everyone is on the same line, but the important part is that a legal change was made that created
equal right and unifying right to the citizens of EU. As a personal note the author considers having
rights that unify people on the level of citizens is extremely important for the idea for further
integration, it has the democratic spirit in that citizens are able to get their voices heard.

Another key development in the EU is the Lisbon Treaty or the Treaty on the Functioning of the European Union (TFEU). This treaty introduced a lot more of democratic aspects to the Union, that affected the Parliament Council and the how the Member States interact with them. The treaty came into force in 2009. It was a project of the Union that started as a project to create a constitution for the Union. Due to voting procedures an official constitutional treaty never came in to force in the EU, however the treaty of Lisbon did, and it affected the functioning in a manner that could have some constitutional elements, like changing how the powers that govern decision making interact with each other and how the power is divided between them.<fnref n="4" /> The treaty also changes the prior three pillar approach, first being legislation directives, second pillar is common action, joint action and the third pillar is common positions framework positions.<fnref n="5" /> The changes included the third pillar into the first one and thus discontinuing to have the third one.<fnref n="6" />

The more specific institutional changes in the EU, that were brought into force by the
Lisbon treaty were: The Parliament composition was changed to represent the EU citizens, with
the change that EU citizens could vote for their Members of European Parliament (MEP),
increased the Parliament policy areas with 40 new areas and created the maximum limit of MEPs
that is 751. The European Council consisting of heads of states or heads of government, became

<footnote n="2">² Eichenberg, R. Dalton, Russell. Post-Maastricht Blues: The Transfromation for citizen support for European Integration, 1973-2004, Acta Politica 2004, 42. P 128-152, 139.</footnote>

<footnote n="3">³ The citizens of the Union and their rights, Achievements, B 2 Accessed: 21.11.2018, http://www.europarl.europa.eu/factsheets/en/sheet/145/the-citizens-of-the-union-and-their-rights</footnote>

<footnote n="4">⁴The Treaty of Lisbon, History, Accessed: 21.11.2018 http://www.europarl.europa.eu/factsheets/en/sheet/5/the-treaty-of-lisbon</footnote>

<footnote n="5">⁵ Sieberson,S. The Treaty of Lisbon and its Impact on European Union's Democratic Deficit, Columbia Journal of European Law, Vol 14:3, 2008. P 446-465, 449.</footnote>

<footnote n="6">⁶ *Ibid.*</footnote>
formally recognized as an EU institution. And finally, the Council of the European Union, formed
of ministers of the Member States, applied a new voting rule for their passing legislation, 55% of
the voters need to agree and the agreement needs to represent 65% of the EU's population.<fnref n="7" /> The
renewed decision-making process takes into consideration the basic principle of democracy
which is that the direction of the majority will be taken. Especially the requirement that it needs
to represent 65% of the population inhabiting the Member States seems to be a very democratic
requirement and as representative of the democratic principle of the EU.

The developments in the European Union can clearly be seen as leaning towards a more
democratic direction. To put it more clearly the developments have allowed for the democratic
process, or has created the ability of voters to affect the political decision by voting for their
candidate in a powerful way. Considering the decision making of the European Parliament, the
voter can vote for their national MEP according to their interest to represent them in the
Parliament and thus originally keeping a part of the decision making in the hands of the voter.
The voter also, by affecting their national elections affects the composition and decision of the
European Council and the Council, heads of states are voted to their position in the Member States
by their nationals and the ministers are also generally selected from among the candidates that
are elected into the national parliament. Even though there might a bit longer of a reach from the
voter's ability to affect these positions they are still selected by the democratic process, the
participants of these institutions take part in majority voting type systems that are quite democratic
in that sense. There can be drawn a link between the representatives and their election that they
are chosen by the vote of the majority and operate under a system of majority voting. The
developments and the treaties have certainly created at least in principle a quite a democratic
outlay in the decision making of the Union.

IMPLICATIONS ON THE DEMOCRATIC PROCESS

The European Parliament and its Members form political groups within the Parliament and are not divided by nationality, currently there are 8 groups and a MEP can decide to stay unattached to these groups and still remain in the parliament.<fnref n="8" /> The democratic aspect affects this part of EU decision-making greatly because as said the MEPs are voted in by the EU citizens. The Parliament is involved in passing legislation with Council of EU, the legislation that is proposed by the Commission.<fnref n="9" /> This I see as a fundamental democratic aspect to the Union, the MEPs discuss matters and affect legislation that is separate from the functioning of national parliaments. National parliament do have an option to interact with the Parliament, something that will reviewed in the paragraph but in essence the MEPs are separate from national parliaments. The democratic decision making is emphasized since it creates a separate function from national parliaments to the decision making. It does go both ways since national parliaments are also voted by the citizens and their legislative bodies in their countries so there are many layers to the system.

One of the measures that affects the decision-making of the European Parliament is the
involvement of national parliaments through a function that is known as Early Warning

<footnote n="7">⁷ The Treaty of Lisbon Summary, Accessed: 21.11.2018 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=legissum%3Aai0033#keyterm_E0003</footnote>

<footnote n="8">⁸ The Political Groups in the European Parliament, Accessed: 21.11.2018 http://www.europarl.europa.eu/about-parliament/en/organisation-and-rules/organisation/political-groups</footnote>

<footnote n="9">⁹ European Parliament, What does the Parliament do? Legislative, Accessed 19.199.2018 https://europa.eu/european-union/about-eu/institutions-bodies/european-parliament_en</footnote>
Mechanism, which allows for the national parliaments inspect legislation and to see whether it is
harmonious with the principle of subsidiarity. <fnref n="10" /> The aim of the mechanism is to create a more
legitimate and democratic way to make decisions without creating new bodies in to the EU
order. <fnref n="11" /> The function of the national parliaments is not allowed to create new legislation or
disallow a law to be drafted or passed, on its own, but it can obtain these powers in co-operation
the Commission when the Commission is proposing legislation, or the European Parliament or
the Council. <fnref n="12" /> The power is not absolute in that sense that it does not disrupt or alter the processes
of the institutions by simply creating a new power, but the ability to co-operate with one of the
institutions does have an effect. It does seem like quite a strange approach to have more power to
the national parliaments since it does not give an actual power to them. But like stated previously
the aim is to create legitimacy, this having an aspect of the national parliaments simply being
taken for a ride and not having any say in it, their ability to be heard is increased.

The EU citizenship and its function were a new development in the matter, however Parliament has had a directly elected MEPs since 1979. <fnref n="13" /> Through these changes the European parliament has become increasingly powerful, has acquired a co-legislative position alongside the Council, except when agriculture is concerned. <fnref n="14" /> This shows democratic process in the Union has been greatly different in the past. The Parliament is stronger foothold in the matters of EU even though not a full Parliament of the area meaning that they are still co-legislator, which does not give the EU citizens the electoral power to vote for their candidates in the Parliament and have the people deciding for their matters in this way, such that is usual in a nation. Of course, this is a good example of the fact that the EU is not one nation but a collection of its Members who are going forward to a more democratic direction in this regard or this is the impression the author of this paper has gotten from the development of the treaties.

The parliament is on an electoral level representative of the EU voters, however there are aspects to it create an interesting gap in interests of voters and MEPs. The interests of the voters and MEPs differentiate greatly in topics such as further integration of the European Union, the MEPs leaning towards integration than the voters. <fnref n="15" /> This is probably an unavoidable phenomenon in any democratic process at least to some extent. It does express some level of difference in approach to matters regarding MEPs and the voters, however in terms of democracy and the voters being represented in the Parliament according to their interest as an election would imply, does not become fulfilled. The democratic process does have implications in the affairs since the MEPs are elected with democratic means, this somehow does not seem to constitute a democratically successful end in this manner.

The democratic legitimacy of the Parliament is subject to criticism. There are two factors
having an effect of democratic deficit, these are the formation parliament as a party system which
is assumed to be derived from national democratic systems, the second one is that the
Parliamentary representatives might not be competing for European issues on the elections to the
Parliament but rather on national issues and their elections to the parliament would have an
element of citizens disappointment in the functioning of the national government and therefore

<footnote n="10">¹⁰ Cooper, I. A Virtual Chamber for the European Union? National Parliaments After the Treaty of Lisbon, West European Politics, Vol 35, No, May 2012, p 441-465, 441</footnote>

<footnote n="11">¹¹ *Ibid*. p 446.</footnote>

<footnote n="12">¹² *Ibid*. p 448.</footnote>

<footnote n="13">¹³ The European Parliament, Historical Background, Introduction, Accessed 22.11.2018
http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.3.1.pdf</footnote>

<footnote n="14">¹⁴ Eriksen, E. Oddvar, J. Democracy Through Strong Publics in the European Union? Journal of Common Market Studies, Volume 40, No 3, p 401-424, 411-412.</footnote>

<footnote n="15">¹⁵ Mair, P. Thomassen, J. Political Representation and government in the European Union, Journal of European Public Policy, 17:1, January 2010, p 20-35, 28.</footnote>
electing the MEP is based on the national issues more than EU.<fnref n="16" /> As for the first part of deficit, the structure of dividing into parties might not be such a negative thing. It seems to be always happening that most political systems operate under the assumption that there are likeminded persons that than formulate a joint direction or decision on a matter. It seems like more an appropriate way to have 751 people be somehow organized among themselves so that directions are more large scope among parties but individuals of those parties can express their personal opinion on a matter as a separate representative still going the direction of their party. The second part seems more damaging, it can be used to cloud the vision of the voters based on some internal issue and the might not be linked to the actions of the MEP in the Parliament that much. The MEP representing the things they promise might not happen either way but it would seem to be a more transparent approach to engage in the election with the opinions that are likely to be evaluated once in Parliament so that the process would seem less foggy.

Next the topic of the discussion will be the other institution passing legislation in the European Union that is the Council of the European Union. The institution is formulated of the ministers of Member States and they are the second party to the adopting new laws to the EU legislation.<fnref n="17" /> Their part of being involved in the EU legislation and being ministers of countries they are also involved in the developments of national legislation. They are along with the Parliament the key decision-making body of the EU.<fnref n="18" /> The interesting part about the Council of European Union is that in comparison it to the Parliament it is quite small in its representative size. This could be seen as that they have a lot smaller group to discuss in compared to the Parliament which is 751 persons. They are of course making the decision together with the Parliament but framing it in a way that it is two institutions where one is a lot larger than the other it seems somewhat odd that they are as involved in the decision-making. Council also has a larger gap regarding the voter, since it is not one step away from the voter as it is in the Parliament, but ministers are parts of the governments of the Member States and depending on the Member States are appointed to their position. It might not be a considerable gap since they are already elected officials but there is no more of a link between the vote and the Council member.

## CJEU AND THE ECHR

When talking about democratic decision being realized it is important to talk about the enforcement decisions and making sure that proper actions are taken in the different institutions. The role of the Court of Justice of the European Union is important in this sector. With the compilation of 1 judge per Member State the CJEU power is not limited only to dealing with decision regarding EU law in Member States but matters can be proceeded to them if EU has not taken proper action in one of their institutions.<fnref n="19" /> The decision of the Court of Justice are major impact when there is discussion of actions taken in the internal market, their role is extremely visible in these matters and considering democracy the function is extremely important. Inside a democratic framework where legitimacy and justice are important, the role of a court is foundational as a place where disputes can be settled.

<footnote n="16">¹⁶ Ibid., p 21</footnote>

<footnote n="17">¹⁷ Council of the European Union, What does the Council do? Negotiate and adopt EU laws, Accessed: 21.11.2018 https://europa.eu/european-union/about-eu/institutions-bodies/council-eu_en</footnote>

<footnote n="18">¹⁸ Accessed: 21.11.2018 https://europa.eu/european-union/about-eu/institutions-bodies/council-eu_en</footnote>

<footnote n="19">¹⁹ Court of Justice of the European Union, What does the Court of Justice Do? Ensuring the EU takes action, Accessed: 21.11.2018 https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en</footnote>
In terms of rights of an individual in a democratic process, it is important to ensure that any individual in their nation has the right to participate in the political process and have their human rights protected, which ensured by the European Court of Human Rights. The basic rights of an individual are set out in the EU Charter of Fundamental Rights.<fnref n="20" />

## EUROPEAN CITIZEN'S ROLE

The European citizen has multiple options how they can vote on issues regarding the affairs of EU. Being an EU citizen is quite an astonishing development in the world, EU not being a country but an agreement between Member States. Based mostly on the common good of having a single market but that it provides a political voice for citizen, even though the author is not a historian he does not think an arrangement like this has existed before in the world or the cases would be rarity, but this I cannot state as a fact. These political rights of the citizen, along with other freedoms ensured by EU such as free movement of people. The unique feature is that there is no clear constitution which is what differentiates the arrangement, there of course being other differences but this being an important one.

Firstly, we must to discuss how they can affect matters through their national elections. EU citizens can affect the matters of the Union on their national level, by voting for the candidate of their choice, from the elected candidates then is formed the national parliament from which political arrangements of opposition and government are made but most importantly for this paper the ministers are elected. The elected ministers are in communication with the through the Council of European Union. This is one of the ways a European citizen is involved with the decision of the EU. There in lies a connection between the individual citizen and the Council of the European Union. The ability to have the Member State to affect the political and legal decision is extremely important since the parliaments of nations represent the fair electoral decision in democratic states and there is a connection to a higher institution in this manner. Having a nation that has a democratic foundation is a prerequisite for membership in the EU which ensures again that rogue or tyrannical governments cannot be a part of the community.

Secondly, the European citizen can vote for their MEPs to represent them in European affairs, at least this is the founding idea behind it even though there is criticism whether this is actually the case. The problem however, is more of practical nature because in case MEP candidates ride the wave of being against unpopular decision made by a Member State government under the election this is for the European citizen to decide if they will enable this type of game playing with the political system. One does not matter like in democracies but the important thing considering the individual citizen is that the framework behind the structure has the potential of creating this type of a result. Approaching the matter from this aspect the European citizen does have quite a bit of democratic responsibility placed on him or her because the Parliament is one of the institutions making the decision passing the laws. The problem of a democratic deficit being realized as a MEPs being voted in because of a stance against national political decision making I consider as a feature of the system, but an inherently distinct quality. Politics is not considered the game of honesty anyway even though it seems that this is something that the majority vote forgets when the candidates are campaigning. Nevertheless, European citizens do have the possibility of voting for their candidate to represent their interests in the European Parliament and when new legislation is discussed there are movements to contact your

<footnote n="20">²⁰ EU Charter of Fundamental Rights, Accessed: 21.11.2018 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016P/TXT&from=EN</footnote>
MEPs. This is something that was going around the internet when the Parliament was considering new legislation regarding copyright laws in the European Union, which was then approved in the Council and after the first rejection it was approved in the Parliament.<fnref n="21" /> There is a democratic aspect that EU citizens could vote for their representatives in the parliament to vote towards their interest, regarding how effective this is arguable, but the democratic element behind it that the EU citizen is one step away from having a possibility to contact a member of the quite big institution is extremely democratic at its core.

The third way a European citizen can have their say in the democratic framework, or to put in other words to have their say how the community is approaching the tasks it is dealing with is the CJEU or the European Court of Human Rights. A European citizen can bring a claim against their state or a claim can be brought against the other EU institutions in the CJEU and this is important in the democratic process. The reason behind the importance is that a European citizen can have their voice heard in a fair hearing of CJEU in case their rights have been violated, or a company can do this as well. It is an important part of a democratic society that everyone has the right to demand a fair hearing if their rights have been violated and it is an extremely democratic element of the European Union that an individual can have their case heard in the CJEU or the European Court of Human Rights. ECHR deals with human rights violations and they have a large spectrum in severity of violations which are all important for democracy. Specific democratic rights involving politics can be pursued all the way to ECHR. Considering Eu as a community of not just market but political co-operation as well the rights of the citizen have been emphasized in this aspect greatly.

## CONCLUSIONS

The European Union has created a democratic framework that affects the entire Union. Through different treaties like the Maastricht Treaty or the Lisbon treaty democratic processes have been altered and there is a more cohesive and developed democratic system in place currently. The Member States have been ensured their platforms, opportunities and tools to operate in the framework. There different institutions of the EU that operate in the sphere of proposing legislation, passing legislation and creating the political directions for the Union that can use their power. There is the court system that handles matters that involve EU elements and do take matters seriously and give judgements where a person is up against their nation when a for example a directive has not been implemented correctly like the Francovich case.<fnref n="22" /> So in the midst of it all the citizen is not forgotten.

The electoral problems involving the citizens and their ability to affect EU affairs are multiple, whether it is a democratic deficit in the system or something that is misused are important problems which might be solved with more integration or not. The framework ensuring the citizen's rights is the important part when analyzing EU as a community. It does form a sort of society of Member States where the states themselves have a say in the process and they have tools like the early warning mechanism or heads of states assembling together to discuss the current political directions the Union should take. The division of powers between the courts, Commission, Council of the European Union and the Parliament are important factors in well assembled society to decrease possibilities of abuse of power, how well this is handled is arguable but the fact that the treaties have created a system that is in its foundation based on this is

<footnote n="21">²¹Julia Reda, Eu copyright reform/expansion, point 3, Accessed 21.11.2018 https://juliareda.eu/eu-copyright-reform/</footnote>

<footnote n="22">²²Court Decision 21.11.1991, Francovich, Joined cases C-6/90 and C-9/90</footnote>
important. While Member States, the Council of the European Union and Parliament interact with each the citizen has not been forgotten but they have been created rights which can have an impact in the Union and they can participate in the political process of the Union through national elections, European Parliament elections or through the courts. This is a great standing for the individual because they are not only members of their national state but European citizens, which is something that might not be as noticed or engaged in as it would allow.

To sum it up the democratic framework of the European Union is quite complex in its nature, and might not function to the fullest of its ability. The framework does however include all the functions of a society of nations where the citizens are not replaced with nations but are a part of the process.

REFERENCES:

1. Chochia, A., Troitiño, D. R., Kerikmäe, T., Shumilo, O., & Lindstrom, N. (2018). The First European Community and the British Position. In Brexit (pp. 59-81). Springer, Cham.

2. Countries in the EU and EEA Accessed: 19.11.2018 https://www.gov.uk/eu-eea

3. Eichenberg, R. Dalton, Russell. Post-Maastricht Blues: The Transfromation for citizen support for European Integration, 1973-2004, Acta Politica 2004, 42. P 128-152

4. The citizens of the Union and their rights, Achievements, B 2 Accessed: 19.11.2018,

5. The Treaty of Lisbon, History, Accessed: 21.11.2018 http://www.europarl.europa.eu/factsheets/en/sheet/5/the-treaty-of-lisbon

6. Sieberson, S. The Treaty of Lisbon and its Impact on European Union's Democratic Deficit, Columbia Journal of European Law, Vol 14:3, 2008. P 446-465,

7. The Treaty of Lisbon Summary, Accessed: 21.11.2018 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=legissum%3Aai0033#keyterm_E0003

8. The Political Groups in the European Parliament, Accessed: 21.19.2018 http://www.europarl.europa.eu/about-parliament/en/organisation-and-rules/organisation/political-groups

9. European Parliament, What does the Parliament do? Legislative, Accessed 19.199.2018 https://europa.eu/european-union/about-eu/institutions-bodies/european-parliament_en

10. European Parliament, What does the parliament do? Legislative, Accessed 19.199.2018 https://europa.eu/european-union/about-eu/institutions-bodies/european-parliament_en

11. Cooper, I. A Virtual Chamber for the European Union? National Parliaments After the Treaty of Lisbon, West European Politics, Vol 35, No, May 2012, p 441-465,

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13. Eriksen, E. Oddvar, J. Democracy Through Strong Publics in the European Union? Journal of Common Market Studies, Volume 40, No 3, p 401-424,

14. Kerikmäe, T., Chochia, A., Troitiño, D. R., & Hrebickova, A. (2018). The First Attempts to Unify Europe for Specific Purposes and British Flexibility. In Brexit (pp. 21-32). Springer, Cham.

15. Mair, P. Thomassen, J. Political Representation and government in the European Union, Journal of European Public Policy, 17:1, January 2010, p 20-35

16. Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). Cooperation or Integration? Churchill's Attitude Towards Organization of Europe. In Brexit (pp. 33-56). Springer, Cham.

17. Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). First European and Pan-European Integration Efforts and British Reluctance. In Brexit (pp. 3-20). Springer, Cham.

18. Council of the European Union, What does the Council do? Negotiate and adopt EU laws, Accessed: 19.11.2018 https://europa.eu/european-union/about-eu/institutions-bodies/council-eu_en
19. Court of Justice of the European Union, What does the Court of Justice Do? Ensuring the EU takes action, Accessed: 21.11.2018 https://europa.eu/european-union/about-eu/institutions-bodies/court-justice_en

20. EU Charter of Fundamental Rights, Accessed: 21.11.2018 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:12016P/TXT&from=EN

21. Julia Reda, Eu copyright reform/expansion, point 3, Accessed 21.11.2018 https://juliareda.eu/eu-copyright-reform/

22. Court Decision 19.11.1991, Francovich, Joined cases C-6/90 and C-9/90
# Brexit and Constitutional Law of the European Union

HENRIK UUSTALO

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

HENRIKUUSTALO@GMAIL.COM

**Abstract:** This paper analyses the impact of Brexit to the European Union. What effect does it have on the integration process? And what are the possible options that the United Kingdom has at the moment. The idea of the European Union army is discussed briefly. And what would be the consequences of a "Hard Brexit".

**Keywords:** Brexit, Integration, European Union army, Sovereignty

## INTRODUCTION

Integration in the European Union has been affecting the member states sovereignty more than ever. Even if the process has had a positive effect on the economy and functioning of the states, it has another side to it. If people start to feel that the decisions for their future are being not made in the hands of their representative in the state, it causes the feeling of losing sovereignty. Although their elected representatives may also not act in the will of their voters, they are easier to be manipulated by public opinion and they may react to the voice of the people more as being afraid to lose their position in the state. In the United Kingdom, people started to feel that the decisions were made without their will. The British were mainly demanding to minimize the immigration and to get back the sovereignty to make trade deals for themselves freely.

As the people of United Kingdom have expressed their will through referendum and decided to leave the European Union, the aftermath of the decision is still unknown. Negotiations are ongoing and in order to find out what are to come as a result of Brexit, it is needed to analyse the possible consequences of agreements that could be made.

## IDEOLOGICAL SWIFT

It is difficult to evaluate the effect of the United Kingdom leaving the European Union to the integration process as a whole, because in some fields, the UK has been a big supporter of integration and in some areas, that has not been the case. The area that the UK has surely expressed their support for has been the development of the single market. But they have a reputation of being against integration in social policy areas.<fnref n="1" />

The United Kingdom has been regarded as one of the northern liberal countries in the union with the Baltic states and countries like Germany, Denmark, Sweden, Finland and the Netherlands, these states have had an ability to block legislation by qualified majority voting in the European Council<fnref n="2" />. But if they leave the union, the northern liberal bloc will lose the blocking minority to block legislation, because the southern protectionist countries will have more power. In order for to not lose the power to have an ability to block legislation, when needed, the northern liberal countries will have to find other partners. By classifying the member states as countries who are in the Eurozone opposed to those, that are not, the Eurozone states will also gain such a majority, that the non-Eurozone states don't have a blocking minority against.

<footnote n="1">¹ http://www.europarl.europa.eu/RegData/etudes/STUD/2018/604973/IPOL_STU(2018)604973_EN.pdf</footnote>

<footnote n="2">² https://www.ucl.ac.uk/constitution-unit/research/europe/briefing-papers/Briefing-paper-2</footnote>
A research has been done, evaluating, how has the voting of the UK affected the decisions that have been made in the EU parliament by comparing, what kind of results would have been made without the UK. The research showed, that the UK parliament representatives tend to be for reducing "red tape", also without the UK being in the parliament, the vote for stricter copyright regulation would not have passed, the EU budget would have been smaller, but member state's contribution would have increased and there would be a stronger push for tax harmonisation and a higher taxation for financial transactions.<fnref n="3" />

## EUROPEAN UNION ARMY

As the UK has one of the biggest armies of EU and therefore has had a major foreign relations influence, the leaving, will weaken the European Unions power on an international power scale. The United Kingdom represented 23% of the total budget spent on defence by European countries in 2015.<fnref n="4" /> But as the departure from the union weakens the European Union's international power it has given a possibility to increase power that wasn't possible before. Rousseau had a discussion on uniting Europe in a letter the idea of creating a European Union army has been raised by Macron and Merkel. The UK has been against the idea of a European Union army and vetoed the idea because they have thought that it would undermine NATO, but now when they don't have a say, there is a possibility. For the European Union influence in international matters the existence of a united army would surely be beneficial, but as some countries see the current integration process moving too fast, it could instead create more tension in the union and possibly cause a mentality of disintegration in states like Poland. The Foreign minister of Estonia, Sven Mikser has said that he doesn't see that the government of Germany would accept giving the right of making a decision to move the German forces to a representation of the European Union. A state giving away power over a state's army is definitely a big loss of sovereignty.

## EUROPEAN UNION BUDGET

The United Kingdom has been reliable of a significant part of European Unions budget. In 2017 the UK contributed to the EU public sector a net worth of about 10, 2 billion euros<fnref n="5" /> that is the so called "Brexit gap". That makes the UK the second biggest net contributor after Germany. Although United Kingdom is supposed to continue to contribute in paying for some of the institutions after the next Multiannual Financial Framework period starts<fnref n="6" />. But if the UK ends contributing to the European Union budget, the European Union has to fill the 10 billion euros worth gap, therefore budget changes will be inevitable. "Since the UK is a significant net contributor, the EU27 will either need to cut spending, increase contributions or do a combination of both."<fnref n="7" /> This means that EU members will have more economic obligations in relation to EU contribution affected by the UK actions, if they exit the EU.

<footnote n="3">³ http://60811b39eee4e42e277a-72b421883bb5b133f34e068afdd7cb11.r29.cf3.rackcdn.com/2016/04/VoteWatch-Report-2016_digital.pdf</footnote>

<footnote n="4">⁴ file:///C:/Users/User%20name/Downloads/Brexit_-_Major_Consequences_on_the_Process_of_Euro.pdf</footnote>

<footnote n="5">⁵https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/691017/EU_finances_2017_Cm9576_web.pdf</footnote>

<footnote n="6">⁶ https://www.cer.eu/sites/default/files/prbrief_mff_gordon_24.4.18.pdf</footnote>

<footnote n="7">⁷ https://www.cesifo-group.de/DocDL/EconPol_Policy_Report_04_2017_Brexit.pdf</footnote>
## SINGLE MARKET AND CUSTOMS UNION

One of the reasons why the people of the UK chose to leave the European Union was the promise to regain its sovereignty of establishing trade deals, and to end the immigration flow. One way to leave the union would be to join the European Economic Area, as Norway, Iceland and Liechtenstein have, even though, they would still have to follow the four freedoms and the EU legislation, but they would have some freedom to negotiate trade deals for themselves.<fnref n="8" /> But the negotiations are showing that Theresa May is focusing to stay in the customs union. If the deal that states that the UK will stay in the customs union will be approved, it will mean, that the UK will lose its decision power, but has to follow the rules imposed on them by the EU until the end of the new date of transition period, which is set on the end of 2021, but the UK cannot leave without permission from the EU, because the EU has a right to extend the transition period to the end of the century.<fnref n="9" />

## BORDER PROBLEMS

Although in the withdrawal agreement that is on the table at the moment proposes that the United Kingdom will stay in a customs union until the end of the new date of the transition period, one of the most important problems regarding the departure that still remains, is the border between Northern Ireland and the Republic of Ireland. If the United Kingdom chooses to restrict the free movement of people, it is necessary for them to start controlling their borders, and the border with the Republic of Ireland has a history of causing tension. The problems of border control start from local farmers, that have land that crosses the border and people who live on one side of the border, but work on the other side a border. A hard border would definitely be causing harm for the everyday lives of such people. And it could possibly harm the peace process that the “Good Friday Agreement” has accomplished.<fnref n="10" />

If the migration would be controlled without a “hard border” and using technology to control the border, it would be a big risk to take, because such a border would be hard to have control over in a way that doesn’t harm the everyday lives of the people that need to cross the border daily. Another way to deal with the situation is to let the Northern Ireland have free movement with the Republic of Ireland. The border control would therefore be carried out on the route from the Northern Ireland to other parts of UK. This would bring Northern Ireland closer to EU and that is not something the UK is willing to accept.

## EUROPEAN UNION LEVERAGE

If the United Kingdom will have greater financial growth without the European Union, it will certainly make other states of the union hesitate on the utility of the union for their own economy and they will see it as an opportunity to start bargaining some benefits for themselves too. But as the EU has leverage over the UK, by being a bigger economic power, it is unlikely that such a deal would be made between the two, that the EU will let the United Kingdom leave and have bigger economic growth. That is one reason why it is so hard to get a “divorce deal” that satisfies both

<footnote n="8">⁸ file:///C:/Users/User%20name/Downloads/SSRN-id2841333.pdf</footnote>

<footnote n="9">⁹ https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf</footnote>

<footnote n="10">¹⁰ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2933715</footnote>
parties. If the economic growth in the European Union will be bigger than in the United Kingdom, the support in member states will likely to grow as people will acknowledge the positive impact that being a member states gives to a country's economy. This would therefore encourage support for integration in the member states. EU has significant leverage in negotiating a withdrawal agreement, and the possibility of UK getting a deal that would give them the benefit of participating in free market with the EU and to gain the sovereignty to make their own trade agreements internationally is very low,<fnref n="11" /> the UK basically has two possibilities. To remain in the customs union and act under EU legislation and the European Court of Justice decisions, or to go through with a hard Brexit. As it is unlikely that the UK parliament will support the deal that would be worse than if they had stayed in the union and remained a right to participate in legislation and governing of the union. The chances of a "hard Brexit" are very likely.

As the only state in the European Union that has chosen English as an official language will be leaving, the question of using English as a language for the European Union institutions to be working in, has been raised. But there is no other language that is so useful for the framework of EU affairs.<fnref n="12" />

## CONSEQUENCES OF A “HARD BREXIT”

A “Hard Brexit” is something, that one could be expecting as an outcome of a referendum that was about leaving the EU. Although it may not be beneficial for the people of the UK, it was after all the majority and the will of the people must be respected, even if they did not know what could come out of the decision. If it would happen, the UK would get back all the sovereignty to start organizing their economy.

If the EU and UK will not agree on a trade agreement before march 2019, the World Trading Organisation rules on imports of third countries, and the tariffs of the same regulations will be implemented by the parties.<fnref n="13" />

As the trade between the European Union and the UK would in that case decline, the economies of both parties are not likely to benefit. The UK's gross domestic product per capita could in that situation be 14 per cent lower by the year 2030.<fnref n="14" />

One of the negative consequences could be, that some of the banks, located in the city of London are likely to move to the European Union market, if the UK would stay out of the customs union. A study shows that of the 90 per cent of the European banking industry, resides in London, and about about 30 per cent, would move to a member state if the circumstances would find it necessary.<fnref n="15" /> And as the international banks will lose as well the cross-border benefits, that they have been enjoying in the UK, they are likely to move their headquarters to a member state.<fnref n="16" /> If the banking industry would move to the union, it would surely be beneficial for the EU economy, as then, the member states could collect taxes off of those banks.

<footnote n="11">¹¹ Dobrin, S., & Chochia, A. (2016). The concepts of trademark exhaustion and parallel imports: a comparative analysis between the EU and the USA. *Baltic Journal of European Studies*, 6(2), 28-57.</footnote>

<footnote n="12">¹² https://onlinelibrary.wiley.com/doi/epdf/10.1111/weng.12264</footnote>

<footnote n="13">¹³ https://www.cesifo-group.de/DocDL/EconPol_Policy_Report_04_2017_Brexit.pdf</footnote>

<footnote n="14">¹⁴ https://pdfs.semanticscholar.org/d729/e7e6c2b8ad3944f0d8784e77c72740fd05db.pdf</footnote>

<footnote n="15">¹⁵ https://books.google.ee/books?id=rj1LDwAAQBAJ&printsec=frontcover&dq=brexit&hl=et&sa=X&ved=0ahUKEwjNmtbb4cbeAhXI2SwKHTYeCrwQ6AEIazAJ#v=onepage&q=brexit&f=false</footnote>

<footnote n="16">¹⁶ http://www.kenwitsconsultancy.co.uk/wp-content/uploads/2016/09/BREXIT-2016-Policy-Analysis-from-the-Centre-for-Economic-Performance.pdf#page=40</footnote>
Some industries in Britain could not afford their shipments to go through border control, because they operate on precise time, that each of the part of their product is supposed to arrive and a delay of one part could harm the whole production process, so they could choose to move to the EU as well. As being in a larger economic area as the EU, without tariffs, gives the businesses the opportunity to export more and for the consumers to consume at a lower price.<fnref n="17" /> If the UK businesses would lose that advantage, some of them would certainly decide to move their businesses to the EU.

## CONCLUSION

As the UK parliament would be the riskiest party, that would be have to vote for agreeing this withdrawal deal, it is unlikely that they would do so. The reason for that would be, that such a deal would not be beneficial in any way comparing it to if the UK would remain in the union. But this deal could not be seen beneficial in the sense of regaining sovereignty as well as they would have to obey EU regulation. So, to analyse the impact that the possibility of the UK leaving the EU would still be very speculative. If the UK leaves, it is sure, that there will be some ideological swifts in the parliament and the council. The international influence of the EU is likely to decrease and there has to be some compensation in that area to replace the UK's part. An EU army would be unlikely as the member states lack the willingness for giving away such an important part of a state sovereignty.

## REFERENCES:

Chochia, A., Troitiño, D. R., Kerikmäe, T., & Shumilo, O. (2018). Enlargement to the UK, the Referendum of 1975 and Position of Margaret Thatcher. In Brexit (pp. 115-139). Springer, Cham.

Oliver, Tim, Walshe, Garvan, et. al. "The Impact of the UK's Withdrawal on EU Integration"(2018)

http://www.europarl.europa.eu/RegData/etudes/STUD/2018/604973/IPOL_STU(2018)604973_EN.pdf

Patel, Oliver, and Christine Reh. "Brexit: the consequences for the EU's political system." UCL Constitution Unit Briefing Paper (2016): 1-5.

Hix, Simon, Sara Hagemann, and Doru Frantescu. "Would Brexit matter? The UK's voting record in the Council and the European Parliament." (2016).

Pricopi, Marius. "Brexit–Major Consequences on the Process of European Military Integration?". In International conference KNOWLEDGE-BASED ORGANIZATION, vol. 23, no. 1, pp. 260-264. De Gruyter Open, 2017.

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Gordon, Noah. "The EU budget after Brexit: Reform not revolution"(2017)

Dobrin, S., & Chochia, A. (2016). The concepts of trademark exhaustion and parallel imports: a comparative analysis between the EU and the USA. *Baltic Journal of European Studies, 6*(2), 28-57.

Lehmann, Matthias, and Dirk A. Zetzsche. "Brexit and the consequences for commercial and financial relations between the EU and the UK." (2016). Force, EU Task. "Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, as agreed at negotiators' level" (2018).

Felbermayr, Gabriel, and Clemens Fuest. "Economic Effects of Brexit on the European Economy. No. 4." ifo Institute-Leibniz Institute for Economic Research at the University of Munich, (2017)

Modiano, Marko. "English in a post-Brexit European Union." World Englishes 36, no. 3 (2017): 313-327.

<footnote n="17">¹⁷ http://eprints.lse.ac.uk/66144/1/_lse.ac.uk_storage_LIBRARY_Secondary_libfile_shared_repository_Content_LSE%20BrexitVote%20blog_brexit02.pdf</footnote>
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Doherty, Brian, John Temple Lang, Christopher McCrudden, Lee McGowan, David Phinnemore, and Dagmar Schiek. "Northern Ireland and ‘Brexit’: The European Economic Area Option." (2017). Martill, Benjamin, and Uta Staiger. "BREXIT AND BEYOND." (2018)

Dhingra, Swati, et al. "The consequences of Brexit for UK trade and living standards." (2016).

Dhingra, Swati, Gianmarco Ottaviano, Thomas Sampson, and John Van Reenen. "The impact of Brexit on foreign investment in the UK." BREXIT 2016 24 (2016).

Troitino, D. R., Kerikmäe, T., & Chochia, A. (2018). De Gaulle and the British Membership in the European Communities. In Brexit (pp. 83-97). Springer, Cham.

Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). Cooperation or Integration? Churchill's Attitude Towards Organization of Europe. In Brexit (pp. 33-56). Springer, Cham.

Troitiño, D. R., Kerikmäe, T., Chochia, A., & Hrebickova, A. (2018). First European and Pan-European Integration Efforts and British Reluctance. In Brexit (pp. 3-20). Springer, Cham.
# ISIS – A GLOBAL OR REGIONAL THREAT?

ANRI KIGURADZE

TALLINN UNIVERSITY OF TECHNOLOGY, ESTONIA

KIGURADZE.ANRI@GMAIL.COM

**Abstract:** The study of terrorism is a very diverse, contingent and complex phenomenon. The world has long been fighting terrorism, pervaded with ethnic and religious characteristics, it does not represent a new tool against the civilized world order. Terrorism, featured by religious narratives backed by economic and political aspirations, has significantly changed a number of institutions and states' geopolitical strategies towards the hot terroristic areas of the world. When the Western world, in particular the USA, started celebrating a meritorious victory against "Al-Qaeda", by killing its spiritual leader Osama bin Laden, simultaneously a new terroristic organization called the "Islamic State of Iraq and Syria" (hereafter ISIS) announced a pretension of being a discretionary power in the Middle East. This paper aims at observing and analyzing how the ISIS has transformed from regional to a global threat and how the forming processes of such heavily militarized terrorist organization have developed to be perceived as a top global challenge of the world.

**Keywords:** Al-Qaeda, ISIS, Middle East, Terrorism.

## INTRODUCTION

<figure><img src="image_7.png" /></figure>

The world has long been fighting terrorism, pervaded with ethnic and religious characteristics, it does not represent a new tool against the civilized world order. Terrorism, featured by religious symbols backgrounded with economic and political aspirations, has significantly changed political map of the modern world. When the Western world, in particular the USA, started celebrating a meritorious victory against ‘Al-Qaeda’, by killing its spiritual leader Osama bin Laden, exactly that time, a new terroristic organization called the “Islamic State of Iraq and Syria” (hereafter ISIS) announced a pretension being a hegemonic power in the Middle East. The violation, which was being carried out by the ISIS militants against disobeyed Sunnis firstly and then Shias of the Middle East, soon crossed the regional boundaries and became an object of care for many Asian, African, European and Cross-Atlantic states. Occupation of North Iraqi cities in 2014 was accompanied by the statements of the European and the USA political leaders that it was a local problem that should have been solved in the Middle East, but after the November attacks in Paris in 2015, which ended with around 130 dead civilians, ISIS's actions were estimated as a global challenge for the European continent. Part of the US Senators had been persistently asserting that ISIS does not have any alarming linkage with the American soil, pretending that the Islamic Caliphate would have never appeared on the agenda, but after the December Christmas attack in San Bernandino in 2015, where 14 died and 24 were injured, American political establishment redefined ISIS as an increasing threat.<fnref n="1" />

Boko Haram, which is ISIS-affiliated terroristic organization, responsible for deaths of thousands of innocent people in North African states, is known as the most trusted supporter organization of ISIS, which also carries out a mass violation against African Muslims and Christians. Majority of fighters who have joined ISIS are from the North African states, where the idea of Islamic Caliphate is well absorbed and implementation of restrictive instruments against it seems hard for the local governments.

<footnote n="1">¹ Atagi, C. (2016) 14 dead in San Bernandino, and we still don't know why one year later.</footnote>
ISIS's seeking of strongholds is gaining momentum in Southeast Asia. In the list of 18 countries that estimate ISIS as a number one security, is also Philippines.<fnref n="2" /> ISIS-affiliated Philippine terrorist group Maute, follows the path of the Islamic State and creates numerous problems to national security forces. It has already taken responsibility for many deadly attacks in the country and officially acknowledged ISIS as a brother organization. Apart from the Philippines, Australia, Indonesia and India are the targets of ISIS. It actively appeals local Muslims to sober, carry out jihad and put their contribution in creation of Islamic Caliphate.

According to Paw Research Center survey, aligned with global warming, ISIS is estimated as a top global threat in the world and perceived as a cancer that has to be carved out.<fnref n="3" /> Regardless of open disputes between confronted political elites, existed threat, which is no longer regional problem, has made world's powerful states allied to root this cancer out with unified forces. The anti-ISIS USA-led coalition call on states to be engaged in the process since defeating such large-minded so-called 'Jihadist' state is unimaginable in only one state's endeavor.

## FROM REGIONAL TO GLOBAL STAGE

### Creation of ISIS

Many ISIS analysts confirm that the creation of this terrorist formation does not have a linkage only with the late Syrian rebellions, its creation has started long before. According to one of those sources, its roots can be traced to the late 1990's and in one man's vision to challenge the Western presence in the Middle East and its regional anchors and this man is Jordanian born Abu Musab al-Zarqawi. He has developed ties with Al-Qaeda under Osama bin Laden's rule and intending the resistance against the West, Israel and the Middle Eastern states, which did not consider to be genuinely Islamic.<fnref n="4" /> Looking at 2016 mass Human Rights violation, raping and torturing carried out by the ISIS militants, the Islamic State represented a deadly challenge to the people of Middle East and to governments in this region, as well as to other countries worldwide.<fnref n="5" /> This terrorist organization did not arise out of nowhere, it has profound roots in Jordan to the early 1990's, which became active in Iraq in the beginning of 2000's. After 2004, relationship between ISIS and its predecessor Al-Qaeda has worsened and because of ISIS savage methods of violation, ISIS – Al-Qaeda divorce derived from ISIS's open pretension to be a state with its own state institutions, legislation and governing structures, rather than a group, another source says.<fnref n="6" /> Part of anti-USA political analysts argue that IS, as well Al-Qaeda, would not seize such threatening power without the West's support. They blame on US president Barack Obama and his administration in feeding this terrorist organization with weapon and finances by mediating other Arab states in order to overthrow Syrian president, Bashar al-Assad, who represents a solid stronghold of Russia's Putin and whose rule has long transformed into tyranny.<fnref n="7" /> The main arguments of these critics lay down

<footnote n="2">² Romualdez, G. B. (2017). *ISIS identified as top global threat*.</footnote>

<footnote n="3">³ Poushter, J., Manevich, D. (2017). *Globally, People Point to ISIS and Climate Change as Leading Security Threats*. Paw Research Center.</footnote>

<footnote n="4">⁴ Tziarras, Z. (2017). *Islamic Caliphate: A Quasi-State, a Global Security Threat*. Journal of Applied Security Research. No. 12:1, 111-112.</footnote>

<footnote n="5">⁵ Kerikmäe, T.; Hamulak, O.; Chochia, A. (2016). *A Historical Study of Contemporary Human Rights: Deviation or Extinction? Acta Baltica Historiae et Philosophiae Scientiarum, 4 (2)*, 98–115.</footnote>

<footnote n="6">⁶ Johnston, B. P., Shapiro, N. J., Shatz, J. H., Bahney, B., Jung, F. D., Ryan, K. P., Wallace, J. (2016). *Foundations of the Islamic State. Management, Money, and Terror in Iraq, 2005-2010*. RAND Corporation. No. 1, 249-276.</footnote>

<footnote n="7">⁷ Hoffmann, T.; Chochia, A. (2018). *The Institution of Citizenship and Practices of Passportization in Russia's European Neighborhood Policies*. In: A. Makarychev, T. Hoffmann (Ed.). Russia and the EU Spaces of Interaction (223–237). Routledge, Taylor&Francis Group.</footnote>
into the Obama's unforeseen vision that these radicalized fighters would become a threat for the region and for the USA, too, after capturing the weapon. Obama's such incorrigible mistake has made Russia able to hold a dominant position in the Middle East by destroying ISIS and reinforce its political weight in the West, critics argue.

Many ideas exist about ISIS as a second phase of Arabs Spring that did not find a success ending in the beginning of the 2010's. In the point of views of ISIS spiritual leader, Abu Bakr al-Zarqawi and current leader Abu Bakr al-Baghdadi, the purpose of the Islamic State is to unify Sunni jihadists of the Middle East, North Africa, South-West Asia and part of Europe that would fulfill the Mohammad's prediction.

Creation if ISIS was followed by some religious assessments that it was the sign of the apocalypse of the anti-Christ and the day of judgement<fnref n="8" /> that in some degree leaves the questions how much this is the day of judgement and how much the economic factors are behind of this terrorist organization, which attracts many socially excluded and economically vulnerable people.

## Occupation of the Middle East and Crossing Regional Borders

According to figures that reveal the number and percentage of Muslim population in Africa, 635 million Muslims live on this continent making up 53% of the whole population (Africa Muslim Population 2016), it would be an acceptable for al-Zarqawi and al-Baghdadi to begin carrying out jihad from this soil, however it is quite noteworthy that they needed an acting lever, which would accelerate the spread of their ideology and attract radicalized Sunnis in very short terms. ISIS militants attached their forces to the civil rebellions against Syria's president Assad, which is why they have chosen this territory and not Africa for forming the Islamic State.

Very first successful punitive operation jihadist carried out was burning a Jordan pilot alive in the beginning of 2015 that caused open anger of Jordan King who immediately announced the war against ISIS and led his army to Syria. Exactly this fact is estimated as a first regional level violation that was followed by other regional states' involvement in fight against ISIS. Soon ISIS declares war against Assad of Syria and all Sunni Muslims who refuses allegation to ISIS, as well. Their punitive methods have become known as brutality against innocent people at lower level and destruction of the Middle East civilization at upper level. Occupation of North Syrian and Iraqi cities has left thousands of tortured, raped and killed people aligned with devastated cities of antic civilization hearth. Bombing of Aleppo and Raqqa of Syria and Mosul of Iraq has left thousands of people without households and enforced to seek a shelter in neighbor Turkey and Europe at best.

After mass flows of migrants from Syria and Iraq towards Turkey and Eastern Europe in 2015, Western media and a number of European states considered ISIS as an increasing global threat.<fnref n="9" /> After seeing millions of exterminated migrants at the European door, Germany, France and Belgium political leaders called for sanctions against ISIS-affiliated fighters in their state boundaries that was later resulted in mass suicide bomber and armed attacks by ISIS-inspired militants over the innocent civilians in those countries.

## ISIS OUTSIDE THE MIDDLE EAST

### ISIS in Africa

Mass violation and high rate of death of civilians committed by ISIS-inspired radical Muslim fighters in Africa have attracted global attention and become an object of discussion. Sunni

<footnote n="8">⁸ Asim, Q. I. (2017). *This is why young European Muslims are joining Isis*.</footnote>

<footnote n="9">⁹ Kerikmäe, T.; Chochia, A. (Eds.) (2016). *Political and Legal Perspectives of the EU Eastern Partnership Policy*. Springer International Publishing.</footnote>
Muslims' attitude that no Muslim can be a true Muslim without living in the Islamic State<fnref n="10" /> is well shared and well supported by Boko Haram terrorist organization. A Nigerian terrorist group, Boko Haram, is an African fundamentalist Islamic organization, which has a direct tie with ISIS and express allegiance to this organization. Boko Haram's intention to carve out any Western education and values related to Western society and form a state in accordance with Sharia laws, has already sacrificed more than 20,000 police officers and civilians. The Global Terrorism Index said that this radical group is responsible for 6,644 in 2014 and that number is expected to increase, since its insurgency against Christians and local governments continues.<fnref n="11" /> North Africa is the area where Islamic radical ideology has easily penetrated into masses and placed a radicalized youth into its service. Because the ideology of Islamic Caliphate soon has become popular among economically deprived African Muslims, ISIS leaders officially acknowledge Boko Haram as a brother organization and assess Africa as the best stronghold for ISIS. According to numbers revealed in 2015, so-called Maghreb region, combining of Tunisia, Algeria, Morocco, Libya and Mauritania, is characterized by the highest number of fighters who have left Africa for ISIS and it reached 8240 fighters.<fnref n="12" /> The vast majority of those fighters are the people who don't have access to education, work, social benefits and from nothing they become enemies for the local governments, particularly, when they use "Eastern fighting methods" gained during travelling to the Middle East.

Boko Haram does not frighten only local communities, as it is estimated as a significant threat for international organizations represented in North African region. United Nations compound became a target of this group in 2011 when 23 people died and 75 got injuries after explosion of car bomb.<fnref n="13" /> Boko Haram's imagination of torture reached a peak when they kidnapped 276 schoolgirls from Nigerian village Chibok. Part of those girls are still missing while many of them were raped and killed. Chibok tragedy has turned around the face of this Islamic group that was qualified as the crime committed against humanity and it has created a necessity for the Nigerian government to call for international help to defeat this Islamic radical terrorist organization.

In Spite of the fact that ISIS is losing important territories in the Middle East, Abu Bakr al-Baghdadi assumes Magreb region as a solid stronghold where the lack of international surveillance, weaknesses of local governmental security forces and shortage of local people's resistance can be used in favor of ISIS.

## ISIS in the USA

The United States has an incomparable experience in fighting against terrorism. It seemed that CIA has defeated Al Qaeda, which some political scientists believe this terrorist group was remarkably promoted by the United States, a new threat has emerged on the stage, called ISIS.<fnref n="14" /> Garikai Chengu is a research scholar at Harvard University who belongs to the group of analysts who considers ISIS as a US-based terroristic organization against Assad's regime and Russian ambitions in the Middle East. Chengu states that Obama and his administration have started assessing ISIS as a global threat only after the American journalists had been beheaded by ISIS-inspired militants and they has realized that controlling the Islamic State would require a hard effort.

After the San Bernandino and Orlando attacks in which 63 people died in total, former president Obama stated that ISIS did not have anything with religion, that it was a cult of death,

<footnote n="10">¹⁰ Dar, A. S (2016). *Contemporary discourses on the possibility of an 'Islamic state': an overview*. Journal of Contemporary Arab Affairs. No. 9:3, 421-427.</footnote>

<footnote n="11">¹¹ INSTITUTE FOR ECONOMICS AND PEACE. (2017). *Global Terrorism Index 2017*.</footnote>

<footnote n="12">¹² THE SOUFAN GROUP. (2015). *An Updated Assessment of the Flow of Fighters into Syria and Iraq. Foreign Fighters*. THE SOUFAN GROUP.</footnote>

<footnote n="13">¹³ CNN Library (2017). *Boko Haram Fast Facts*.</footnote>

<footnote n="14">¹⁴ Chengu, Garikai. (2017). *America Created Al-Qaeda and the ISIS Terror Group*.</footnote>
which threatens the Muslims in the region and in the USA, too.<fnref n="15" /> Current 45th president of the USA, Donald Trump has criticized Obama's regulations against the Islamic State and condemned him that was immediately followed by his promise he would take care of this global problem. From the first days of his rule he enhanced the sanctions against travelling from eight Asian and African countries towards America, the countries where in six out of eight, Muslims comprises of the total majority of population. In late 2016 Trump frozen the mass migration flows from the Middle East and Magreb regions that is vividly clear it worsened the situation that had been even much worsened before.

Brett McGurk, the top US envoy for the anti-Isis coalition bombing its territories in Syria and Iraq, said it was his and his coalition's duty to defeat the IS fighters in the Middle East and protect Americans from their killing hands.<fnref n="16" /> Atrocities, the Islamic State fighters led in the US soil after returning from the Middle East, needed to be solved by a complex approach and killing those fighters straightforwardly after revealing them in connection with ISIS, would not be the best solution. The USA was one of the first states aligned with leading European states, which have introduced the promoting programs to the returnees in case of revealing in inspiration by the Islamic State ideology. That programme has intended to help the returned fighters in resocialization process and make them able to find their place in society.

## ISIS in Southeast Asia

India is the part of the countries the Islamic State struggles to unify under so-called Khorasan Province and this unification belongs to ISIS's so-called 'five years plan' that should be completed by 2020. Among the terrorist attacks IS-affiliated terrorist groups have carried out in India there is one when terrorist attacked the railway near Mumbai city that has ended up with 182 dead and 770 wounded. After that, the Islamic State militants threatened India by attacking one of its national symbols and a pattern of Indian civilization, Taj Mahal. ISIS has announced within its main social media, Telegram, that Taj Mahal is the main target of their actions in India.<fnref n="17" /> Destroying exhibits of cultural heritage represents IS's handwriting that had already devastated the cities of Syria and Iraq representing the face ancient civilizations. In the views of some ISIS researchers, Taj Mahal is the part of the Islamic State's saga and a piece of chain of violation. Although, regardless of the current circumstances that more and more Indian youth join ISIS, India does not tend to be engaged in fight against ISIS at the global level. India supposes to work on suspension of IS-inspired Indians at a local level, rather than to involve in the US-led anti ISIS coalition in Syria and Iraq. Unlikely to Trump's administration, Indian government argues that fighting in the Middle East will bring some negative results back in India.<fnref n="18" />

As in every action area of the Islamic State, Indonesia's capital city, Jakarta, suffered from IS attacks carried out by its fighters in shopping mall and around the city's public gathering places, lost 4 civilians that has encouraged IS's behavior in this region and it has called on others to commit attacks ahead of Indonesia's Independence Day.<fnref n="19" /> This message once again has confirmed that public holidays are the best acting place for the Islamic State's fighters.

According to a report of by the Carnegie Council, around 1,000 people travelled to ISIS-controlled territory of the Middle East from the Southeast Asia<fnref n="20" /> and the contribution of the

<footnote n="15">¹⁵ Schwartz, I. (2015). *Obama Addresses Nation on ISIS Threat: This Is Not A War Between America and Islam*.</footnote>

<footnote n="16">¹⁶ Dearden, L. (2017). *More than 400 British Isis jihadists have already returned to UK, report warns*.</footnote>

<footnote n="17">¹⁷ Abraham, B. (2017). *ISIS Terrorists Vow To Intensify Attacks On India, Declare Plan To Target Taj Mahal*.</footnote>

<footnote n="18">¹⁸ Tecimer, N. (2017). *India and the Fight Against Islamic State*.</footnote>

<footnote n="19">¹⁹ THE STRAITS TIMES. (2017). *Further attacks in Indonesia feared after Jakarta bombing, ISIS-linked insurgency in Philippines*.</footnote>

<footnote n="20">²⁰ Kurlantzick, J. (2016). *Southeast Asia – The Islamic State’s New Front?*.</footnote>
Philippines in this terrorist migration is sizeable. Maute and Abu Sayyaf are the two representatives out of 60 Islamist radical groups in the Southeast Asian region, which have pledged allegiance to Abu Bakr al-Baghdadi and decided Marawi city to be the place of their violation. This city poses the ground of battles between IS fighters and military personnel and because of the large-scale attacks on the Filipino civilians it has long ago attracted the interests of international organizations, such as United Nations.<fnref n="21" />

This year one jihadist appealed Chinese people with video message that they don't understand the speaking language of other people and the soldiers of Islamic Caliphate themselves will come to Chinese people and teach them the language of weapon as revenge against the oppressors.<fnref n="22" /> Speaker of the Internal Affairs of China, Xuan Lei stated that ISIS is the challenge for the whole universe and it should be defeated by the coalition forces, but hesitation of China resisting ISIS at the global level is clear. As India, China's president Xi Jinping follows the Mao's non-interference policy and use some abstaining ways in order to avoid mass attacks at the local stage. It is more predictable that Jinping is going to be use UN's peace programmes to pretend other global political leaders that he puts his contribution against ISIS.<fnref n="23" /> Such peaceful position of China against ISIS, analysts argue, comes from China's local problem with Muslim radical Turkic ethnic group called Uyghurs who declare pretensions over China's west border, and who also represent the target of ISIS for mass recruitment. This is the main condition why China attempts to close the eyes on mass defeating operations in the Middle East.

## ISIS in Europe

Despite the fact Quran says that carrying out jihad is unacceptable on people who don't pose a threat for you, ISIS fighters consider Europe and the Western ideology as a main threat for true Muslims. Speaking about ISIS and its violation, immediately Europe and innocent European civilians emerge on the scope. Since 2013, hundreds of Europeans have sacrificed IS's armed and suicide bomber attacks. Massive attacks during the celebration of public holidays and in public transports, carried out by the militants of the Islamic State, have created fear in people to join the public gathering places. Moreover, it has aggregated the conflict between Europeans and Muslim migrants. The assaults committed by radical Islamist organization followed by part of Europeans' radical position against expanding Muslim communities in Europe has formed open ideological confrontation between the latter societies that is merely noticeable.

Before the well-known Parris attacks in 2014, the British government assessed the Islamic State as a global threat and a part of Al-Qaeda. The government stated that IS aims to carry out jihadist ideology almost everywhere based on Sharia law and refer violation by using its radicals. Prime Minister, Theresa May commented that the Islamic ideology would not spread root in British society.<fnref n="24" />

Russia, France, Germany, Belgium and the United Kingdom comprise the European five, which are characterized by the highest numbers of fighters left Europe for ISIS and exactly these are states, which suffer the most from ISIS attacks. From March 2016 to August 2017, 850 people left the UK for the Islamic State where 350 have already returned and 200 of them were liquidated by the national security forces.<fnref n="25" /> British soldier and veteran of the Afghanistan war was ruthlessly

<footnote n="21">²¹ Griffiths, J. (2017). *ISIS in Southeast Asia: Philippines battles growing threat*.</footnote>

<footnote n="22">²² O'Neill, K. (2017). *ISIS threatens China for the first time as child Muslim fighters vow to return home and attack own country*.</footnote>

<footnote n="23">²³ Topuria, R. (2015). *CHINA VS. ISIS?*</footnote>

<footnote n="24">²⁴ Ramiro Troitino, D.; Kerikmäe, T.; Chochia, A. (Eds.) (2018). *Brexit: History, Reasoning and Perspectives*. Springer International Publishing.</footnote>

<footnote n="25">²⁵ Radio Free Europe. (2017). *Where Do IS Foreign Fighters Come From?*</footnote>
tortured by two Islamic extremists in accordance to the reason that Muslims are dying by the British soldiers every day. Extremists announcing it as 'an eye for an eye'.<fnref n="26" />

Issue of returned fighters is on the agenda in British government. Unlikely to Rory Stewart, Minister of International Developments, who considers killing jihadists as the best solution, the British government defines rehabilitation and reintegration of the British-IS fighters as a significant solution, particularly for women and children who are vulnerable to the Islamic ideology.<fnref n="27" /> They think that they have to detect the returned fighters and support them in resocialization because much has been spent on their growing, forming and educating.

In March 2016 Belgium's capital Brussels was rocked by several deadly attacks thought to be linked with ISIS. Soon Brussels airport appeared in panic where 14 people died and 20 wounded after the terrorist attack inspired by the Islamic State's ideology, which once again united the Belgium's people against terrorism. The level of terrorism threat in Belgium is three out of four that is very dangerous. A small European state is distinguished by its number of terrorists with per capita. Around 85 out of 130 terrorists, who are being searched by Red circular enhanced patrolling, are Belgium-born.<fnref n="28" />

Among the explanations why this country is in the target of ISIS we can name one very symbolic factor that Belgium and Brussels are the face of the European Union while the main EU institutions are deployed here. Rooting fear in Belgium and victory over the city of the European political establishment automatically means the defeat of the Western ideology that is the motto of the ISIS.

Emergence of ISIS at the global level seriously damaged German society. After several armed attacks on German people in which the Christmas market attack is exceptionally brutal, year of 2016 was acknowledged as a year of terrorism. The photos, the ISIS fighters published in German media in late 2016, the slogans against “enemies of Allah” were included where they intend German people. They were also appealing other Muslims in Germany to do the same as their Belgium brothers have already done in Brussels.<fnref n="29" /> Massive attacks, in which young people’s, sometimes teenagers, contribution is sizeable, and fighter’s migration from Germany to the Middle East that is very critical, have caused certain legislative amendments aiming at revision of travelling laws.

Regardless of the fact that German state officials approved the plan of sending 1,200 soldiers in the Middle East against ISIS, they look aside of fighting ISIS at a global level in order to prevent its people from the Islamic State's violation. Their position about involving in airstrikes in the Middle East against ISIS was negative.

Compared to Germany, France leads the strongest anti-jihadist coalition in the Middle East and Africa. France, among the European five, has suffered the most and the November 2015 Paris multiple attacks is estimated as the deadliest aggression carried out on the European continent by the Islamic Caliphate. It left 130 dead and millions of threatened. Saint-Etienne, also is the first European city where clergymen itself was executed by the ISIS fighters. A question might be raised why eight times more fighters are joining ISIS from France, rather than from Bosnia and Herzegovina where 51% of population are Muslims.

Many analysts argue that terrorism has deep roots in France and apart from religious, some socio-economic factors play a crucial role, as well. From the Western Europe, France has “sent” the biggest number of radical fighters to the Middle East and the vast majority of those fighters had grown up in the culturally isolated and economically devastated “banlieues” (suburbs), which are far away from France of wine, charcuterie, chateaux and cheese (Burke 2016). Unemployment and

<footnote n="26">²⁶ Hayden, E. M. (2017). *Terror in the UK: A timeline of recent attacks*.</footnote>

<footnote n="27">²⁷ Dearden, L. (2017). *More than 400 British Isis jihadists have already returned to UK, report warns.*</footnote>

<footnote n="28">²⁸ Tabula. (2015). *Brussels is paralyzed because of high terrorist threat.*</footnote>

<footnote n="29">²⁹ Tomkiw, L. (2016). *ISIS Attack Germany? Islamic State Lists German Targets For Brussels-Style Terrorism.*</footnote>
poverty that usually accelerates the joining process to ISIS, are the main troubles of French Muslims added social exclusion and encouragement in a negative context that they will never become real français. After above mentioned factors, analysts argue that satiric magazine Charlie Hebdo, which is very prominent in France, put its own contribution in the ISIS attacks throughout the country when they have actively started insulting Muhammad's cult.

We face a paradoxical moment in Russian Federation. Many jihadists leave Russia for ISIS while Putin actively provides Bashar al-Assad with a significant artillery forces to defeat the Islamic State. For Russia, it might be considered as a fight against own Muslim citizens on another soil that emerges questions about fairness of Putin's behavior. We can convert this issue into historical narrative that asserts that Muslims and particularly radical Muslims have always been a threat for Russia and those Muslims' free outflow to the Middle East poses a great opportunity for Putin to clean Russian soil.

Number of fighters, who left Russia in from March 2016 to August 2017 for joining ISIS, is three times bigger than German one. Muslims coming from the Caucasus region have always been a part of Russian society and confrontation between the Caucasian Muslims and Russian government reached a peak in the middle 1990's in the Chechnya.<fnref n="30" /> Those Muslim's desire to revenge for the Chechnya wars is tireless and that desire has already found a successful ending into several suicide bombings at public transports.

# ISIS AS A GLOBAL CHALLENGE

## Political assessments

The Islamic State has partially reached some success the European people to be afraid of enjoying public holidays in the streets. After the Nice terrorist attack during the Bastille Day and the Berlin Christmas market tragedy, ISIS has published a dangerous poster in which the Santa from one of London's streets is holding a bloody knife in hand and the main slogan of the poster is: "Soon on your holidays" that sent British people to constant panic once again.

The money ISIS earns from oil, banks robbery and drag trafficking seriously threatens Western political elite. According to Viktor Ivanov, the head of the Federal Drug Control Service in Russia, ISIS's annual income from transiting heroin from the Middle East to Europe is up to one billion Dollar.<fnref n="31" /> It becomes more complicated to negotiate with such financially strong terrorist power, which aims at altering current religious, political and socio-economical aspects at any cost that aggravates critics in the Western camp.<fnref n="32" /> Barack Obama defined ISIS as a global threat that does not have any mutuality with religion, because no religion, including Islam, condones massacres of innocent people.

Sometimes when we see how politicians in the Congress and Europe attempt to spread the notion that people in the West are out of ISIS's danger, they immediately get attacked from the opponents to declare ISIS as a global threat and denounce misleading people. According to official web page of the US Department of State, ISIS presents a global threat which has attracted a lot of foreign young fighters from across the world who technologically organize the IS's operations.<fnref n="33" /> In

<footnote n="30">³⁰ Chochia, A.; Popjanevski, J. (2016). *Change of Power and Its Influence on Country's Europeanization Process. Case Study: Georgia*. In: Kerikmäe, T.; Chochia, A. (Ed.). Political and Legal Perspectives of the EU Eastern Partnership Policy (197–210). Springer International Publishing.</footnote>

<footnote n="31">³¹ (Joshi 2015).</footnote>

<footnote n="32">³² Tziarras, Z. (2017). *Islamic Caliphate: A Quasi-State, a Global Security Threat*. *Journal of Applied Security Research*. No. 12:1, 111-112.</footnote>

<footnote n="33">³³ U.S. DEPARTMENT OF STATE. (2014). *The Global Coalition To Defeat ISIS*.</footnote>
2016 during the Milken Institute-organized platform about the ways of defeating ISIS, Former Prime Minister of the UK, Tony Blair, who admits his mistake in the UK-US led operations against Saddam Hussein, now confidently defined ISIS as a global problem that has to be solved in the regional boundaries and further distribution towards other regions has to be prevented. This year Indonesian president Joko Widodo estimated the Islamic caliphates' violations as a wake-up call for the entire region. His vision is the regional governments to unite under strong coalition to combat ISIS in this region.<fnref n="34" />

## Problem solving methods

Summarizing briefly to what measures need to be implemented in order to handle such growing global threat, quoting an American President would be a good start: "The vast majority of victims around the world are Muslim. If we are to succeed in defeating terrorism, we must enlist Muslim communities as some of our strongest allies rather than push them away due to suspicion and hate," Barack Obama said.<fnref n="35" /> Secretary of States, John Kerry has long started criticizing ISIS as a modern world's cancer and Al-Qaeda's successor organization, who previously gave ISIS a qualification of mass threat. In his words, defeating such sophisticated and well-funded terrorist organization makes the mission more complicated where a single state's battle is a waste of time. Only a single state's effort to change ISIS's plans is doomed to failure and this attitude is well shared by the US Department of State. According to this institution's official statement, terrorism can be defeated by a sustained and comprehensive multilateral approach that combines active participation and co-operation of the states. The governments of the Southeast Asian countries launched the joint campaign in the Sulu Sea against kidnapping and privacy perpetrated by the Abu Sayyaf, ISIS-affiliated terrorist groups.<fnref n="36" /> France, which is one of the main enemies of ISIS in the Middle East, calls for other European and African political leaders to send their fighting items to the Middle East aligned with anti-ISIS US-led coalition and support the local governments to advance in this ongoing war.

Solving economic and social problems, which play a significant role for young fighters to join ISIS, would be considered as a successful step in terms of destroying this radical fundamentalist terrorist group. It is a decisively important from the local Europeans to promote Muslim minorities to integrate, get jobs and have access to proper education. They need to leave bidonvilles, actively engage in the process of healthy social life and have less time for making radical decisions. Society to avoid the contradictions between the civilizations which is the major driving force for this radical Islamist organization, it is also vitally important to acknowledge and respect different religious and political affiliations and enhance co-operation with Muslim communities that are suffering from the outrage of so-called Islamic Caliphate. Prominent sociologist Samuel Huntington has developed the same vision in the early 1990's that incentivizing controversy between different religious communities is the major purpose of such terrorist groups that bring us to war of civilizations eventually.

## CONCLUSION

During last several decades, the wars the terrorist organizations have declared against religious minorities, the Western ideology and the whole universe, are realizing by abusing religious

<footnote n="34">³⁴ Edwards, W. (2017). *ISIS' Reach Extends to Southeast Asia*.</footnote>

<footnote n="35">³⁵ Schwartz, I. (2015). *Obama Addresses Nation on ISIS Threat: This Is Not A War Between America and Islam*.</footnote>

<footnote n="36">³⁶ Edwards, W. (2017). *ISIS' Reach Extends to Southeast Asia*.</footnote>
naivety for political and economic purposes. ISIS struggling to bring its goals into reality have already destroyed the half of the Middle East region and millions of innocent lives. Its brutality is experienced in almost every continent and aligned with global warming it carries a significant massive threat for the strongest states of the world. Its violations particularly since 2014 have deserved the frantic attention of mass and social medias that increases the level of panic through the vulnerable groups. Despite the fact ISIS is losing important bases in north Iraq, it belongs to their strategic plan to attack the West by the Christmas. They also warn Chinese people to be careful and acknowledge 45th American president Donald Trump as the enemy of Allah.

Among the socially unsuccessful and economically vulnerable fighters who join ISIS, there are many who possess European passports and had access to proper European education before. Europe-born fighters represent the main technical force for ISIS and exactly they are responsible for large-scale terrorist attacks on the European soil. This fact threatens the European leaders the most. They constantly increase the number of social programmes in order to exclude European Muslim from ISIS propaganda. The United Kingdom, Germany, Belgium and France who suffer the most from ISIS armed and suicide bombing attacks, actively attempt to detect young people noticed in relationship with ISIS and promote them in rehabilitation and resocialization process instead of punishment.

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