Il contributo dell’Unione europea all’affermazione dello stato di diritto nella comunità internazionale
Creators: name: Ficchi, Luisa <1979>
Publisher: name: Alma Mater Studiorum - Università di Bologna
Year: 2008
Subjects: IUS/14 Diritto dell'Unione Europea

description: This thesis is aimed at analysing EU external relations from the perspective of the promotion of the
rule of law in order to evaluate the effectiveness and consistency of its action within the
international community.
The research starts with an examination of the notion of the rule of law from a theoretical point of
view. The first chapter initially describes the historical-political evolution of the establishment of
the notion of the rule of law. Some of the most significant national experiences (France, the UK,
Germany and Austria) are discussed. Then, the focus is put on the need to propose interpretations
which explain the grounds of the rule of law, by highlighting the different formal and substantive
interpretations. This philosophical-historical analysis is complemented by a reconstruction of how
the notion of the rule of law was developed by the international community, with a view to
searching a common notion at the international level by comparing theory and practice within the
main international organisations such as the UN, OECD and the Council of Europe. Specific
mention is made of the EU experience, whose configuration as a Community based on the rule of
law is often debated, starting from the case law of the European Court of Justice. The second
chapter deals with the conditionality policy and focuses on the development and scope of
democratic conditionality according to the dominant approach of the doctrine. First, the birth of
conditionality is analysed from an economic point of view, especially within international financial
organisations and the different types of conditionality recreated in the scientific sector. Then an
analysis is provided about the birth of democratic conditionality in the EC – in relation to its
external relations – firstly as a mere political exercise to be then turned into a standardised system
of clauses. Specific reference is made to the main scope of conditionality, that is to say enlargement
policy and the development of the Copenhagen criteria. The third chapter provides further details
about the legal questions connected to the use of democratic clauses: on the one hand, the power of
the EC to include human rights clauses in international agreements, on the other, the variety and
overlapping in the use of the legal basis. The chapter ends with an analysis of the measures of
suspension of agreements with third countries in those rare but significant cases in which the
suspension clause, included in the Lomè Convention first and in the Cotonou Agreement then, is
applied. The last chapter is devoted to the analysis of democratic clauses in unilateral acts adopted
by the European Union which affect third countries. The examination of this practice and the
comparison with the approach analysed in the previous chapter entails a major theoretical question.
It is the clear-cut distinction between conditionality and international sanction. This distinction is to
be taken into account when considering the premises and consequences, in terms of legal relations,
which are generated when democratic clauses are not complied with. The chapter ends with a brief
analysis of what, according to the reconstruction suggested, can be rightly labelled as real
democratic conditionality, that is to say the system of incentives, positive measures developed
within the community GSP.
The dissertation ends with a few general considerations about the difficulties experienced by the EU
in promoting the rule of law. The contradictory aspects of the EU external actions are manifold, as
well as its difficulties in choosing the most appropriate measures to be taken which, however,
reflect all the repercussions and tension resulting from the balance of power within the international
community. The thesis argues that it is difficult to grant full credibility to an entity like the EU
which, although it proclaims itself as the guardian and promoter of the rule of law, in practice, is too
often biased in managing its relations with third countries. However, she adds, we must
acknowledge that the EU is committed and constantly strives towards identifying new spaces and
strategies of action.