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University of Groningen Faculty of Law Research Paper Series. No. 14/2015 ... what good neighbourliness implies in the EU legal context. The objective is ...
University of Groningen Faculty of Law

Introduction: Good Neighbourliness inside and outside the Union

by Dimitry Kochenov and Elena Basheska

January 2015

University of Groningen Faculty of Law Research Paper Series No. 14/2015 This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection Available at SSRN: http://ssrn.com/ abstract=2548136

Electronic copy available at: http://ssrn.com/abstract=2548136

Introduction: Good Neighbourliness inside and outside the Union Dimitry Kochenov and Elena Basheska

This is a draft of a contribution forthcoming in D Kochenov and E Basheska (eds) Good Neighbourly Relations in the European Legal Context (Brill Nijhoff, 2015) 1. Please consult the book for the final version.

Abstract This text provides an introduction to the volume on Good Neighbourly Relations in the European Legal Context, offering a brief sketch of the essence of the principle and a description of the structural organisation of the book. The focus is on the particular issues where good neighbourliness considerations could be applicable, aiming to provide a rich outline of the potential usefulness and importance of the principle of good neighbourly relations in the European legal context.

What is this book about? Good neighbourliness is the essential starting point of international relations and one of the key considerations behind the very idea of international law. Is it a legal principle though? If so, how does it function within the particular legal-political context of European integration? These are the key questions which this volume explores, drawing on a number of examples from the EU and its relations with neighbouring countries. The key task assigned to the contributors, who come from a range of disciplines, was to scrutinise the role that good neighbourliness plays – or could play – in their particular fields of study, to sketch out the state of good neighbourliness in the EU – among its

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Member States – and in the relations between the Union and its Member States with the ‘outside world’. Given the potential breadth of the idea of good neighbourly relations, it is not surprising that this volume cannot possibly aspire to provide comprehensive coverage of what good neighbourliness implies in the EU legal context. The objective is, rather, to supply a heterogeneous assortment of telling examples which speak to each other through the good neighbourliness idea. These demonstrate with clarity that it would be premature to discard good neighbourliness as either insignificant or simply passé: there is a clear role for it to play, notwithstanding the seemingly basic idea underpinning this principle: a point strongly defended by Elena Basheska in the chapter which follows.1 Most importantly though – if not most worryingly – the chapters in this collection require the conclusion that good neighbourliness is not only of importance outside the EU; but also within the Union, no matter how much interdependence and mutual trust between the Member States the Union commands,2 good neighbourliness definitely and unquestionably has a role to play – a finding which is probably the most unexpected, given the common perception of the EU as a legal-political space where the relations between states are markedly different compared to the ‘outside world’.3 While the editors initially aimed to focus predominantly on the EU enlargement context, the European Neighbourhood Policy (ENP) and EU external relations law to find examples where good neighbourly relations would be most relevant as a principle of law, the whole project had to be fine-tuned and moved away from EU external relations sensu stricto as increasingly many potentially thorny issues poisoning relations between the Member States of the EU have been unearthed by the editors and the other 1

See also Elena Basheska, ‘The Good Neighbourliness Principle in EU Law’ (PhD thesis, University of Groningen 2014). 2 See Dimitry Kochenov, ‘The Internal Aspects of Good Neighbourliness in the EU: Loyalty and Values’ in this volume. 3 Philip Allott, ‘The European Community is not the True European Community’ (1991) 100 YLJ 2485– 2500; Dimitry Kochenov and Fabian Amtenbrink, ‘Introduction: the Active Paradigm of the Study of the EU’s Place in the World’ in Dimitry Kochenov and Fabian Amtenbrink (eds), The European Union's Shaping of the Legal International Order (CUP, Cambridge 2013) 1–18.

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participants of this project.4 Moreover, these issues do not merely belong to the traditional realm of potential tensions where sovereignties collide – as they do in ageold territorial disputes,5 private law6 or energy relations7 – but they are also the product of newly-concocted tensions arising from irresponsible foreign policy and disloyalty to the general values on which the Union is built.8 In other words, the illustrations this

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Some of the disputes affecting inter-state relations within the EU and lying, predominantly, outside the scope of EU law include border disputes between states, such as: the dispute between Portugal and Spain regarding the status of Olivenza, where Portugal does not recognise Spanish sovereignty of Olivenza’s territory (including the municipality of Táliga) due to a different interpretation of the 1815 Congress of Vienna and the Treaty of Badajoz of 8 August 1801; the dispute between Spain and the UK over the status of the isthmus between Gibraltar and Spain emanating from the long-lasting dispute between the two states concerning the status of Gibraltar itself; the disputed border between Ireland and the UK in Lough Foyle and Carlingford Lough, where the delimitation of the territorial water boundaries have not been fully agreed between the two states; the dispute between Austria, Germany and Switzerland over the boundaries between the three states in Lake Constance, in the absence of a binding agreement on the boundaries applicable to a large part of the lake; the unresolved question over the state border between Germany and the Netherlands running through the Ems estuary and Dollart Bay, for which the two bordering states ‘agreed to disagree’ in the Ems-Dollard Treaty of 1960; Denmark and Poland have also not yet agreed on the delimitation of the maritime border between the two states and neither have Latvia and Lithuania. In addition, there is a dispute involving Ireland and the UK, but also Iceland and Denmark (for the Faroe Islands), which relates to the remote islet of Rockall, to which all four states lay claim. Moreover, Iceland, Ireland and the UK dispute that the Faroe Islands’ continental shelf extends beyond 200 nautical miles, as claimed by Denmark. Even more issues have been suggested by some scholars as capable of occasioning disputes over the international borders of EU Member States. These have been described, however, as ‘internal matters of the member states’ rather than situations involving disputes between two or more states – Eberhard Bort, ‘Regionalism and Subregionalism in Europe’ in Heather N Nicol and Ian Townsend-Gault (eds), Holding the Line: Borders in a Global World (British Columbia UP, Vancouver 2005) 61–89, 65. 5 The tensions surrounding the legal situation of Gibraltar is the telling example of these, discussed by Artur Khachaturyan, ‘Applying the Principle of Good of Neighbourliness in EU Law for the Case of Gibraltar’ in this volume. 6 See Aurelia Colimbi Ciacchi, ‘Good Neighbourliness and Fundamental Rights Based Interpretations of Public Policy Exceptions in EU Private International Law’ in this volume. 7 See Hans Vedder, ‘Good Neighbourliness in a Sustainable European Internal Electricity Market: A Tale of Communities and Uncommunautaire Thinking’ in this volume. 8 The case of the recent ‘illiberal turn’ in Hungary illustrates such developments marvellously. See Paul Blokker and Kriszta Kovács, ‘Unilateral Expansionism: Hungarian-Romanian and Hungarian-Slovak Relations in the Light of the New Hungarian Constitution’ and José-María Arraiza, ‘Good Neighbourliness as a Limit to Extraterritorial Citizenship: The Case of Hungary and Slovakia’ in this volume.

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volume provides establish that one can legitimately speak of external relations not only outside, but also within the EU, the Union’s maturing federal-constitutional nature notwithstanding.9 In addition to providing a detailed introduction to the essence and legal development of the idea of good neighbourly relations in international and EU law, which follows in the next chapter, this collection focuses on two broad groups of case study to illustrate the insights related to the essence of good neighbourly relations. The first, explored in Part I, relates to the actual functioning and the potential role of the idea of good neighbourly relations within the EU, i.e. among the Member States of the Union. Good neighbourliness is clearly of relevance here, alongside the duty of loyalty,10 to resolve disputes between the Member States leading to a possible rethinking of some aspects of the operation of the Union as a whole – external relations law within the EU. A number of key examples from fields where the idea of good neighbourliness is of direct relevance are provided, from the EU energy market to EU private law and the thorny issues arising from the Gibraltar and Cyprus problems. Part II zooms in on the context of external relations sensu stricto, including the ENP, EU-Russia relations and the specific legal-political context of EU enlargement policy. Good neighbourly relations definitely emerge as a principle of EU enlargement law and, possibly, also the law of the ENP. Different issues are explored here, from the Greek-Macedonian dispute over the official constitutional name of the latter country,11 to the construction of the European Neighbourhood Policy12 and the EU’s problematic

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Robert Schütze, From Dual to Cooperative Federalism: The Changing Structure of European Law (OUP, Oxford/NY 2009). 10 Marcus Klamert, The Principle of Loyalty in EU Law (OUP, Oxford 2014). 11 See Elena Basheska, ‘(Mis)application of the Good Neighbourliness Principle in International and EU Law: The Case of the Republic of Macedonia’ in this volume. 12 As analysed by Roman Petrov, ‘The Principle of Good Neighbourliness and the European Neighbourhood Policy’ in this volume, taking Ukraine as an example. For a detailed analysis, see Nariné Ghazaryan, ‘The European Neighbourhood Policy and the Democratic Values if the EU: A Legal Analysis’ (Hart Publishing, Oxford 2014).

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and ineffective approach to the dormant conflicts in the Caucasus,13 to the everdeteriorating context of EU-Russia relations, now marked by a swift turn to the worse following the illegal annexation of the Crimean peninsula,14 the downing of the Malaysian flight MH-17 over the territory controlled by Russia-sponsored rebels and the general context of Russia-instigated military aggression at the EU’s borders.15 Now that EU-Russia relations have hit the all-time low since the split-up of the Soviet Union, Europe is particularly in need of revisiting the reigning presumption that good neighbourliness as the natural state in the European continent, which seems to be undermining the scholarly approaches to the relevance of good neighbourly relations as a principle of law. The recent developments in the ‘post-Crimea’ world provide a most acute reminder of how fast international relations can deteriorate, affecting the Union and its citizens in a most direct way, to say nothing about prompting the need to revisit the EU’s engagement with its neighbourhood, the ENP and the enlargement regulation involved. The structural organisation of the book thus focuses on the particular issues where good neighbourliness considerations could be applicable, aiming to provide a rich outline of the potential usefulness and importance of the principle of good neighbourly relations in the European legal context.

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Using Nagorno-Karabakh as an illustration: see Nariné Ghazaryan, ‘“Good Neighbourliness” and Conflict Resolution in Nagorno-Karabakh: A Rhetoric or Part of the Legal Method of the European Neighbourhood Policy?’ in this volume. 14 See, for analyses, Christian Walter, ‘Postscript: Self-Determination, Secession, and the Crimean Crisis 2014’ in Christian Walter, Antje von Ungern-Sternberg and Kavus Abushov (eds), Self-Determination and Secession in International Law (OUP, Oxford 2014) 293–312; Antonello Tancredi, ‘La crisi in Crimea’ 8 (2014) Diritti umani e diritto internazionale 480–490. See also Enrico Miliano, ‘The NonRecognition of Russia’s Annexation of Crimea: Three Different Legal Approaches and One Unanswered Question’ (2014) 1 Questions of Int’l Law 35–55. 15 See Paul Kalinichenko, ‘Some Legal Issues of the EU-Russia relations in the Post-Crimea Era: from Good Neighbourliness to Crisis and Back?’ in this volume.

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Good neighbourliness: a very brief introduction Traditional accounts of the good neighbourliness principle go back to the traditional conceptions of territorial sovereignty in international law and are rooted in the UN Charter16 and in the Declaration on Friendly Relations.17 The requirement for inviolability of frontiers which lies at the core of the principle has been widely recognised since Westphalia at least.18 Despite its illustrious history and widely agreed16

Charter of the United Nations (adopted 26 June 1945, in force 24 October 1945) 59 Stat. 1031 (UN Charter). 17 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the UN Charter, UNGA Res 2625 (XXV) (24 October 1970) (Declaration on Friendly Relations). On the foundations of good neighbourliness principle in International law, see Elena Basheska, ‘The Position of Good Neighbourliness Principle in International and EU Law’ in this volume. See also Iftene Pop, Components of Good Neighbourliness Between States – Its Specific Legal Contents – Some Considerations Concerning the Reports of the Sub-Committee on Good-Neighbourliness Created by the Legal Committee of the General-Assembly of the United Nations (Editura R.A.I., Bucharest 1991). 18 The ‘Westphalian model’ has largely been regarded in the literature as marking the beginning of the development of the international system of sovereign states. See, among many authors on this issue, Leo Gross ‘The Peace of Westphalia: 1648–1948’ (1948) 42 AJIL 20–41, 28, noting that, ‘[t]he Peace of Westphalia, for better or worse, marks the end of an epoch and the opening of another’ and also that ‘[t]he idea of an authority or organization above the sovereign states is no longer. What takes its place is the notion that all states form a world-wide political or that, at any rate, the states of Western Europe form a single political system. This new system rests on international law and the balance of power operating between rather than above states’ (footnotes omitted); Gianfranco Poggi, The Development of the Modern State – A Sociological Introduction (Hutchinson, London 1978) 89, regards Westphalian Peace as a ‘cornerstone of the modern system of international relations’; Heinhard Steiger, ‘Concrete Peace and General Order: The Legal Meaning of the Treaties of 24 October 1648’ in Klaus Bussmann and Hans Schilling (eds), 1648 − War and Peace in Europe, vol 1, Politics, Religion, Law and Society (Westfälisches Landesmuseum, Münster 1998) 437–446, 440, notes that ‘[s]overeignty – as a form of complete external and internal independence and self-determination in relation to every other power – became the fundamental principle of the European order’; Daniel Philpott, Revolutions in Sovereignty: How Ideas Shaped Modern International Relations (PUP, Princeton, NJ 2001) 96, emphasises that nonintervention is as much a ‘constitutive principle’ now as it was at the time of the Peace’s conception; along similar lines, Andrew Phillips, War, Religion and Empire: The Transformation of International Orders (CUP, Cambridge 2011) 145, asserts that the Peace of Westphalia ‘signalled the embryonic emergence of norms of non-intervention’. However, the theory that the peace of Westphalia brought something new in terms of sovereignty of states has been challenged by number of authors, see in this respect for instance: Randall Lesaffer, ‘International Law and its History: The Story of an Unrequired Love’ in Matthew Craven, Malgosia Fitzmaurice and Maria Vogiatzi (eds), Time, History and International Law (Martinus Nijhoff, Leiden 2007) 27–42; Stéphane Beaulac, The Power of Language in the Making of International Law (Martinus Nijhoff, Leiden 2004) 71–98; Andreas Osiander,

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upon significance, good neighbourliness has not seen codification in international law, despite numerous attempts.19 This situation notwithstanding, international law clearly recognises the rights and duties of states related to good neighbourliness as well as the concrete fields of application of this principle, as established through GA Resolutions and reports of the special Sub-Committee on good neighbourliness.20 Good neighbourliness is also of crucial importance in the context of EU integration: good neighbourly considerations in fact underpin the essence of the integration exercise – a tour de force of peace and cooperation.21 Unquestionably, the cooperation between the Member States provided – since their first steps – ‘an excellent illustration of good-neighbourly relations’.22 The supranational legal framework can be viewed, following Karen Smith, as a successful route to securing good neighbourly relations between European states through integration.23 Reconstruction and reconciliation among former enemies were essential triggers for the integration process.24 Good neighbourliness is thus a crucial expression of ‘the way in which the EU approaches dispute resolution [i.e.] via cooperation, and preferably integration’.25 ‘Sovereignty, International Relations and the Westphalian Myth’ (2001) 55 Int’l Organization 251–287 etc. 19 See the reports of the UN Sub-Committee on good neighbourliness mandated to identify the elements of good neighbourliness: UN Doc A/C.6/40/L.28; UN Doc A/C.6/41/L.14; UN Doc A/C.6/42/L.6; and UN Doc A/C.6/43/L.11. See also Elena Basheska, ‘The Position of the Good Neighbourliness Principle in International and EU Law’ in this volume. 20 See Basheska, ibid. 21 The Schuman Declaration; Joseph HH Weiler, ‘Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay’ in Julie Dickson and Pavlos Eleftheriadis (ed), The Philosophical Foundations of EU Law (OUP, Oxford 2012). 22 UN Doc A/C.6/42/SR.55, para 37. 23 e.g. Karen E Smith, European Union Foreign Policy in a Changing World (2nd edn Polity, Cambridge 2008) 171. See also Robert Bideleux, ‘European Integration: The Rescue of the Nation State?’ in Dan Stone (ed), The Oxford Handbook of Postwar European History (OUP, Oxford 2012) 379–405. 24 e.g. András Inotai, ‘Remarks on the Future Challenges of the European Union’ in Richard H Tilly, Paul JJ Welfens and Michael Heise (eds), 50 Years of EU Economic Dynamics: Integration, Financial Markets and Innovations (Springer, Berlin/Heidelberg/New York 2007) 261–274, 263. 25 Helene Sjursen and Karen E Smith, ‘Justifying EU Foreign Policy: the Logics Underpinning EU Enlargement’ in Ben Tonra and Thomas Christiansen (eds), Rethinking European Union Foreign Policy (Manchester UP, Manchester 2004) 126–141, 134.

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That said, a strict line of separation seemingly emerged between EU law internally and the functioning of the EU externally.26 Notwithstanding the legal obligation incumbent upon the EU to promote its values around the world,27 it has been notoriously ineffective in implanting even the crucial value of peace outside EU territory, including at its very borders.28 Doubts expressed in the context of the promotion of peace are obviously of relevance in other contexts, from the Rule of Law29 to social justice.30 Underpinned by the growing bonds between the Member States in the context of EU citizenship and the internal market, the functioning of good neighbourly relations in the EU legal context differs significantly from what can be observed in classical international law.31 The context of supranational integration, while respecting the principle, has fundamentally altered the perception of the essence and the very function of state borders and state sovereignty in the Union. European integration transcends national borders and the spheres of interest of individual Member States requiring the Member States to take into account, de facto and frequently also de iure, in all their actions, the interests of other Member States of the Union, and the Union as such.32 Shared interests become attached to each other and inseparable.33 This somewhat alters

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Ester Herlin-Karnell, ‘EU Values and the Shaping of the International Legal Context’ in Kochenov and Amtenbrink (n 3) 89–107. 27 Joris Larik, ‘Shaping the International Order as an EU Objective’ in Kochenov and Amtenbrink (n 3) 62–86. 28 Andrew Williams, The Ethos of Europe: Values, Law and Justice in the EU (CUP, Cambridge 2010) 22–69. 29 Laurent Pech, ‘Promoting the Rule of Law Abroad: On the EU’s Limited Contributionto the Shaping of an International Understanding of the Rule of Law’ in Kochenov and Amtenbrink (n 3) 108–129. 30 Andrew Williams, ‘The Problem(s) of Justice in the European Union’ in Dimitry Kochenov, Gráinne de Búrca and Andrew Williams (eds) Europe’s Justice Deficit? (Hart Publishing, Oxford 2015). 31 See Kochenov (n 2). 32 For a more sophisticated critical account of what is actually going on, see, Alexander Somek, ‘The Argument from Transnational Effects I: Representing Outsiders Through Freedom of Movement’ (2010) 16(3) ELJ 315–344; and Alexander Somek, ‘The Argument from Transnational Effects II: Establishing Transnational Democracy’ (2010) 16(4) ELJ 375–394. 33 Sven Biscop (ed), ‘The Value of Power, the Power of Values: A Call for an EU Grand Strategy’ (2009) Egmont Paper No 33, 16. The text clearly distinguishes between two terms: ‘to have an interest’ and ‘being interested’. Notwithstanding the many overlapping vital interests, EU Member States can be

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the concept of the sovereignty of states around which the good neighbourliness principle developed in international law:34 the Union and its Member States share and are accomplishing common vital interests, potentially turning good neighbourly relations into a systemic principle of key importance. That said, plenty of deviations from this reading are easily available, as mentioned above, pointing towards important practical limitations, Hungary, Slovakia, Gibraltar and plentiful others instantly springing to mind. The functioning of good neighbourly relations is different in EU external relations and enlargement policy, where the principle of conditionality is deployed.35 Although ‘good neighbourliness’ was introduced into the EU Treaty with the Lisbon revision and refers to the EU’s relations with neighbouring countries, the principle of good neighbourly relations does not emerge consistently, it seems, either from the Treaty text in force, or from the implementation of the aforementioned policies. Article 8(1) TEU, which includes good neighbourliness, stipulates that ‘the Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation’. 36 To that end, Article 8(2) TEU allows the Union to conclude ‘specific agreements’ with neighbouring countries which can contain reciprocal rights and obligations and the possibility of joint activities.

certainly interested, to varying degrees, in different things. Thus, ‘Belgium may be more interested in Central Africa and Poland in Ukraine, but objectively the stability of both is equally important to, and thus equally in the interest of both Brussels and Warsaw’. 34 See, in general, Allott (n 3). 35 See Dimitry Kochenov, ‘Overestimating Conditionality’ in Inge Govaere et al. (eds), The European Union in the World: Essays in Honour of Marc Maresceau (Martinus Nijhoff, Leiden 2013) 541–556, 541. 36 Article 8(1) TEU [2010] OJ C83/1.

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The substance of the ‘special relationship’ referred to in the first paragraph is not clear.

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Similar wording governs the association agreements based on Article 217

TFEU, which are said to be ‘creating special, privileged links’ between the Union and non-member countries. In fact, ‘association’ is quite an ambiguous notion, which can ‘[range] from little more than a free trade agreement to a level of integration that comes close to membership’.38 Closely resembling Article 217 TFEU, agreements based on Article 8 TEU can cover all the EU’s competences,39 the procedure for which is set out in Article 218 TFEU.40 The crucial difference between the operation of Articles 8 TEU and 217 TFEU seems to be that, as underlined by Christophe Hillion,41 the former contains a clear and unconditional obligation on the EU to engage with the neighbourhood to promote and ensure good neighbourliness, while Article 217 TFEU merely opens a legal possibility of forging closer ties with some third countries. Approached in this light, it is thus quite logical to regard Article 8 TEU as a way to codify the ENP – a policy aiming at establishing a ‘ring of friends’ around the Union 42 – and conferring a constitutional status to the relationship between the Union and its

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Article 8(1) refers to ‘a special relationship’, while other versions of the Treaty, for instance, the Bulgarian, German and the French version, use the plural form referring to ‘privilegirovani otnosheniya’, ‘besondere Beziehungen’ and ‘des relations privilégiées’ respectively. 38 Peter Van Elsuwege, From Soviet Republics to EU Member States: A Legal and Political Assessment of the Baltic States’ Accession to the EU (Martinus Nijhoff, Leiden 2008) 131. 39 In Case 12/86 Meryem Demirel v Stadt Schwäbisch Gmünd [1987] ECR 3719, para 9, the ECJ held that Article 217 TFEU (then Article 238 EC Treaty), ‘must necessarily empower the Community to guarantee commitments towards non-member countries in all the fields covered by the Treaty’. 40 Marise Cremona, ‘The Two (or Three) Treaty Solution: The New Treaty Structure of the EU’ in Andrea Biondi and Piet Eeckhout (eds), EU Law after Lisbon (OUP, Oxford 2012) 40–61, 46. 41 Christophe Hillion, ‘Anatomy of EU Norm Export Towards the Neighbourhood: The Impact of Article 8 TEU’ in Roman Petrov and Peter Van Elsuwege (eds), Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the European Union: Towards a Common Regulatory Space? (Routledge, Oxon/NY 2014) 13–20. 42 European Commission, ‘Communication from the Commission to the Council and the European Parliament, Wider Europe–Neighbourhood: A New Framework For Relations with our Eastern and Southern Neighbours, COM(2003) 104 final, 4 (Commission’s Communication on Wider Europe).

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neighbours.43 Such a reading seems to point towards the constitutionalisation and formalisation of the good neighbourliness considerations in the EU legal context. What appears to be crucial in this context is that Article 8 TEU of itself does not resolve all doubts regarding the interpretation and the implementation of the good neighbourliness principle in the EU’s relations with neighbouring countries.44 It is as clear as day that the scholarly engagement with good neighbourliness in the EU should not be scaled down to the analysis of the text of Article 8 TEU, and the more expansive approach this implies is consistently embraced in this volume.

Part I: Good neighbourliness inside the EU The first part of this volume deals with the functioning of good neighbourly relations inside the Union – in ‘internal external relations’ context, if one can call it that. The chapter by Dimitry Kochenov, which opens Part I sets the scene by analysing the specificities of the EU internal legal context in some detail, arguing that the idea of good neighbourly relations has not lost its potential appeal as a useful legal tool, notwithstanding the profound differences observable between classical international law and EU law as it developed, which are bound to affect the functioning of the good neighbourliness principle. In particular, the chapter focuses on the legal-political reality shaped by the European integration process to demonstrate that even general deviations by the Member States from the key values on which the Union is built – including democracy, the Rule of Law and the protection of human rights – could lead to a potential breach of the good neighbourliness principle. The particular focus is on the interplay between good neighbourliness and the EU duty of loyalty. The chapter also argues for awarding the EU as such a role in the good neighbourly relations context,

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e.g. Robert Schütze, European Constitutional Law (CUP, Cambridge 2012) 190. No immediate vicinity to the EU’s borders is required, of course, in the light of this provision, of which Armenia and Azerbaijan are great examples. See European Commission, ‘European Neighbourhood Policy Strategy Paper’, COM(2004) 373 final, 10–11. 44

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thus further nuancing the general presentation of the principle by Elena Basheska, as well as further attuning it to the specificity as well as complexity of EU law. The chapter concludes that good neighbourliness within the EU implies, inter alia, a strict adherence to the values of the Union as expressed in Article 2 TEU and that Member States should be ready to go beyond international law and the EU’s acquis to fit within the new context of good neighbourly relations shaped by the Union’s supranational integration project. The failure of Member States to consider their EU reality, as argued by the author, is the quickest way to breach the principle of good neighbourliness in the EU. The story of the EU’s internal good neighbourliness context is continued by Aurelia Colombi Ciacchi, who brings private law into the picture. Her chapter analyses good neighbourliness in the context of the fundamental rights-based interpretations of public policy exceptions in EU Private International Law. In EU Private International Law the good neighbourliness principle is brought into contact with the comity principle. The argument favours the deployment of good neighbourly relations to achieve the imposition of a duty on EU Member States to reduce their mutual conflict of laws barriers as much as possible. The public policy exceptions for recognition of laws, although presented as barriers between neighbours, have in fact resulted in a more integrative approach, it seems, which contributes to the strengthening of good neighbourly relations between the Member States. A fundamental rights-based interpretation of public policy exceptions could in principle promote good neighbourliness in the context of EU’s ‘internal external relations’, even notwithstanding the obvious fact that in certain instances fundamental rights necessarily prevail over the good neighbourliness principle. The chapter contributed by Hans Vedder focuses on the intersection of market integration, sustainability and Member State policies, to identify a tension between good neighbourly relations in the EU and the national policies of the Member States, focusing on an important corner of the internal energy market. Failing to take into account the special EU nature of a sustainable internal electricity market, the national policies of the

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Member States and the EU’s occasional response are viewed as more or less uncommunautaire. The electricity market has been chosen as a part of the broader energy market, to show the importance of good neighbourliness for the purposes of market integration given the advanced legal framework concerning sustainability at both the EU and Member State level and the ease with which electricity can be transported across national borders. A truly sustainable internal energy market, as argued by the author, requires both the definition and the operationalisation of good neighbourly relations at the EU level, which entails – to provide a concrete example – the absolute necessity for the Member States to open up their renewable energy incentive schemes to energy generators from other Member States. The heterogeneous presentation of good-neighbourliness-related internal issues within the EU, begging for a solution continues with José-María Arraiza’s contribution, which tests the application of the good neighbourliness principle to the external acquisition of citizenship, focusing on the case of bitter disputes between two EU Member States: Hungary and Slovakia. Arraiza discusses the duty of states to cooperate and not to interfere with the domestic affairs of the neighbours as two elements by which the good neighbourliness principle is most affected. In particular, the author assesses the impact of granting Hungarian citizenship to its kin-minorities residing in Slovakia and Slovakia’s subsequent actions – the elimination of dual citizenship toleration by that country – on interstate relations between the two EU Member States. A policy of external acquisition of citizenship, according to the author, can harm good neighbourly relations between states when such policy targets a large number of kin minorities in other Member States. In the case of Hungary and Slovakia, both Hungary’s action and Slovakia’s reaction might have infringed the good neighbourliness principle, negatively affecting the lives of thousands of EU citizens and undermining the whole rationale of good neighbourly relations underlying the supranational integration project in Europe. The chapter which follows continues the Hungarian theme. Paul Blokker and Kriszta Kovács discuss, echoing Arraiza’s analysis, how Hungarian citizenship and

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franchise politics affected Hungarian-Romanian relations in light of the principle of good neighbourly relations. Blokker and Kovács analyse the adoption of the controversial new Hungarian constitution45 as an attempt to institutionalise an extraterritorial Hungarian nation at the expense of good relations with Hungary’s EU and non-EU neighbours. The authors conclude that the Hungarian external citizenship policy, including its political participation aspect, although operating within the ambit of the idea of toleration of dual citizenship, does undermine the principle of good neighbourly relations by strengthening a nationalistic idea of sovereignty and peoplehood, running against the core of all liberal arguments in favour of the toleration of multiple nationality, rooted specifically in the departure from nationalistic ideologies.46 The duties of inter-state cooperation and the obligation on states to cooperate in light of the good neighbourliness principle might have been infringed by the Hungarian project. The remainder of the first part of the volume moves towards assessing the good neighbourliness implications of the conflicts arising de jure internally, but de facto at least partially outside the EU, focusing on the problems faced by Cyprus and Gibraltar. Artur Khachaturyan thus analyses the good neighbourliness principle in the context of Gibraltar’s very special legal status in EU law,47 taking into account the positions and actions of all parties involved into the related long-lasting dispute – Spain, the UK and Gibraltar itself. The good neighbourliness principle as applied in intra-EU interstate relations is brought into the spotlight in connection with the principle of the duty of

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Kim Lane Scheppele, ‘The Unconstitutional Consitution’, The New York Times (2 January 2012) available at: last accessed 21 November 2014. 46 Peter Spiro, ‘Dual Citizenship as a Human Right’, (2010) 8 Int’l J. Const. L. 111–130. For an analysis in the EU context, see e.g. Dimitry Kochenov, ‘Dual Nationality in the EU: An Argument for Tolerance’ (2011) 17 ELJ 323–343. 47 Article 355(3) TFEU. For an analysis, see Dimitry Kochenov, ‘The EU and the Overseas: Outermost Regions, Overseas Countries and Territories Associated with the Union, Territories Sui Generis’ in Dimitry Kochenov (ed), EU Law of the Overseas: Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis (Kluwer Law Int’l, The Hague 2011) 3–68, 12 et seq.

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loyalty, binding both the EU and its Member States. In particular, Khachaturyan discusses the actions of the Member States which may be in breach of the good neighbourliness principle and the EU’s failure to react appropriately to such infringements. The enlargement acts of the EU resulting in the incorporation of the UK and Spain did not culminate in the settlement of the Gibraltar dispute, to say nothing of the bettering of the lives of the EU citizens of Gibraltar, who frequently end up as de facto hostages of Spain in violation of EU and international law. The picture painted by the chapter leads to the conclusion that EU rights have been overshadowed by the ambitions of the Member States. Moreover, the EU’s own unresponsiveness to the plight of the Gibraltarians might have led to the strengthening of Spain’s confidence in its persistent breach of the good neighbourliness principle in the EU. The situation of the Republic of Cyprus analysed by Stéphanie Laulhé-Shaelou in her chapter is much more complicated. Although the whole of Cyprus joined the Union, the country does not have control of all the territory of the island, 48 creating very specific problems in the light of good neighbourliness. Two different dimensions of the good neighbourliness principle are addressed here – the relations Cyprus maintains with the part of its own sovereign territory under Turkish military control (internal relations) and the relations this country maintains with neighbouring Turkey as a candidate country currently undergoing the accession negotiation process (external relations). Laulhé-Shaelou concludes that troubled relations between neighbouring states in the light of the good neighbourliness principle can safely be addressed within the framework of EU external relations notwithstanding the geographical position of the entities concerned. Both the troubled situation of the Republic of Cyprus and that of Gibraltar, when assessed in light of the idea of good neighbourly relations point towards the acute need to rethink the EU’s approaches to dealing with these issues.

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Nikos Skoutaris, The Cyprus Issue: The Four Freedoms in a Member State under Siege (Hart Publishing, Oxford 2011); Stéphanie Laulhé Shaelou, The EU and Cyprus: Principles and Strategies of Full Integration (Martinus Nijhoff, Leiden 2010).

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All in all, it is impossible to state that good neighbourly relations is the current reality within the EU at the moment. As the first part of this volume demonstrates, good neighbourliness is undermined in the EU internally in many contexts and at many levels. While the situations of Cyprus and Gibraltar could be dismissed as too extreme and atypical by some, the examples of the general interdependency, internal energy market and the negative consequences of the Hungarian constitutional reform in the context of the operation of the good neighbourliness idea point towards abundant opportunities for violating good neighbourliness also in the ‘ordinary’ inter-state relations within the EU. The picture becomes even more sombre, however, as we move from to the sphere of EU external relations sensu stricto.

Part II: Good Neighbourliness outside the EU The second part of this volume focuses on good neighbourly relations in the context of the purely external engagements of the EU and its Member States, paying particular attention to the legal-political context of EU enlargements and the ENP. While these two contexts of deployment of the principle are seemingly separated logically and in practice, in fact, a high degree of fluidity has always existed between building an EU ‘special relationship’ with European countries and their accession prospects.49 The whole story of the big-bang Eastern enlargement of the EU50 – which is arguably the greatest success of the Union’s foreign policy – proves this point quite eloquently: the EU transforms through incorporation.51 In other words, while we are constantly 49

Kirstyn Inglis, ‘The Europe Agreements Compared in the Light of Their Pre-Accession Reorientation’ (2000) 37(5) CML Rev 1173–1210. 50 Christophe Hillion (ed) EU Enlargement: A Legal Approach (Hart Publishing, Oxford 2004); Marise Cremona (ed) The Enlargement of the European Union (OUP, Oxford 2003). 51 Marc Maresceau, ‘Quelques réflexions sur l’application des principes fondamentaux dans la stratégie d’adhésion de l’UE’ in Le droit de l’Union européenne en principes: Liber amicorum en l’honneur de Jean Raux, (LGDJ, Paris 2006) 69; Marc Maresceau, ‘The EU Pre-accession Strategies: A Political and Legal Analysis’ in Marc Maresceau and Erwan Lanon (eds) EU Enlargement and Mediterranean Strategies (Palgrave, Basingstoke 2001) 3–28.

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reminded that the ENP is not about accession or enlargement,52 we are obviously bound to realise (and the ENP countries in Eastern Europe certainly did from the start) that such separations are in many respects half-hearted: there is a clear connection between the ENP and enlargement prospects. This is not only the case because of the methodologies deployed by the EU in both legal contexts,53 mostly focusing on conditionality,54 but also in the context of the overarching goals of both policies, which undoubtedly consist in stabilising and pacifying the continent, making it a better place for all. Once the key connection between the ENP55 and enlargement policy is established, two key considerations come to mind. Firstly, the establishment of good neighbourly relations is at the heart of both policies. Secondly, both policies de facto but 52

As proposed by the Commission’s Communication on Wider Europe (n 42) 4, ‘the EU should aim to develop a zone of prosperity and a friendly neighbourhood – a ‘ring of friends’ – with whom the EU enjoys close, peaceful and co-operative relations’. Some scholars argue even that Article 8 TEU was introduced to distinguish between countries with accession prospects and states without them. See in this respect Peter Van Elsuwege and Roman Petrov, ‘Article 8 TEU: Towards a New Generation of Agreements with the Neighbouring Countries of the European Union?’ (2011) 36(5) EL Rev 688–703, 693, noting that the provision confirms the ‘disconnection between ENP and enlargement’ through its objectives. See also Paul P Craig and Gráinne de Búrca, EU Law: Text, Cases and Materials (5th edn OUP, Oxford 2011) 324. 53 Amichai Magen, ‘The Shadow of Enlargement: Can the European Neighbourhood Policy Achieve Compliance’ (2006) 12(2) CJEL 383–427. 54 Dimitry Kochenov, ‘The ENP Conditionality: Pre-Accession Mistakes Repeated?’ in Laure Delcour and Elsa Toulmets (eds), Pioneer Europe? Testing EU Foreign Policy in the Neighbourhood (Nomos, Baden-Baden 2008) 105–120. 55 In particular, it is the Eastern Partnership corner of the ENP that is of particular interest here, as Eastern Partnership is tailored to engage the countries which can, in the future, meet the formal requirements of accession outlined in Article 49 TEU. On the Eastern Partnership, see Elena Korosteleva, Eastern Partnership: A New Opportunity for the Neighbours? (Routledge, London 2012). See also Bart Van Vooren, ‘The European Union as an International Actor and Progressive Experimentation in its Neighbourhood’ in Panos Koutrakos (ed), European Foreign Policy: Legal and Political Perspectives (Edward Elgar, Cheltenham 2011) 147–171; Christophe Hillion and Alan Mayhew, ‘The Eastern Partnership – Something New or Window-dressing’, SEI Working Paper No 109, available at: last accessed 21 November 2014; Dimitry Kochenov, ‘The Eastern Partnership, the Union for the Mediterranean and the Remaining Need to Do Something with the ENP’, CRCEES Working Papers (Glasgow) No WP2009/01, available, also, at last accessed 21 November 2014.

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also to a certain extent de jure balance between the ‘internal’ and the ‘external’ realms of EU law, enjoying huge potential to influence the EU’s internal functioning in the near to long-term to a great degree, as the chapter by Kochenov, inter alia, demonstrates. The more Hungaries join (or reveal themselves already within) the Union, the more difficult it will be to maintain steady movement towards the goals set for the EU in the Treaties. Scholars even speak of a threat of the ‘Belarusisation’ of the EU in this respect.56 From the connection between the ENP in Eastern Europe and Enlargement policy emerges a clear distinction between these two on the one hand, and the ‘ordinary’ EU external relations on the other. Therefore, while the EU is rightly criticised for failing to promote its key values, most importantly peace – the crucial component of good neighbourly relations – externally,57 the ENP and Enlargements established legitimate expectations that the EU should be infinitely more effective in the context of these two aims. Regrettably, the examples of Armenia, which is de facto lost to the ENP due to the Russian pressure,58 and Ukraine, plunged into war instead of moving closer to the EU as the Commission and other actors expected,59 pose serious questions as to the ENP’s effectiveness in Eastern Europe, and to the actual presence of the difference one would legitimately expect to find between the conduct of ordinary external relations and the ENP. With a new war and the growing potential for a long-term frozen conflict taking root at the very borders of the EU60 where the ‘ring of friends’ was supposed to be, it is now clear that the policy is a resounding failure and needs to be seriously rethought. Good neighbourliness should certainly play a role. The question remains, however, whether it will be successful.

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Uladzislau Belavusau, ‘Case C-286/12, Commission v Hungary, Judgment of the Court of Justice (First Chamber) of 6 November 2012’ (2013) 50(4) CML Rev 1145–1160. 57 Williams (n 28). 58 Ghazaryan (n 12) Post-scriptum. 59 See Petrov (n 12). 60 See, for more on the ‘frozen conflicts’ and the ENP, Ghararyan (n 13).

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The second part of this volume navigates through the thorny issues described above by focusing on the EU enlargement context first, to analyse the rise of good neighbourliness as a principle of law there, then moving to analyse the ENP. Part 2 then assesses EU-Russia relations as an example of a legal-political context where good neighbourliness considerations seem to be missing virtually entirely, and the EU’s external energy relations. The evolution of the law and practice of EU enlargements demonstrates with clarity how the importance of the good neighbourliness principle has been growing steadily with every new enlargement round, to culminate with the formal proclamation of the principle as part of the EU’s enlargement efforts in the Balkans. Peter Van Elsuwege’s chapter is dedicated to the scrutiny of this process, which is ongoing, approaching good neighbourliness as an EU pre-accession condition. Van Elsuwege demonstrates that the key issue here is uncovering the fine balance between law and politics, to ensure that the invocation of good neighbourliness is not arbitrary and serves the aims of reinforcing the Rule of Law as a key principle of EU enlargement regulation. In particular, Van Elsuwege analyses whether resolving outstanding disputes between neighbouring states is necessary for the progress of the candidate countries on their EU integration path, as opposed to adopting a constructive approach and relying on the willingness of these countries to cooperate with each other, which could suffice for EU enlargement preparation purposes: i.e. whether the good neighbourliness principle in EU enlargement implies an ‘obligation of result’ or ‘an obligation of conduct’. To answer this, the author explores the development of good neighbourliness as a customary principle of EU enlargement law and its application to horizontal and vertical issues, i.e. the issues arising between the candidate countries themselves as opposed to those arising between the candidate countries on the one hard and the Member States of the Union on the other, as explained by Judge Rodin.61 The chapter concludes that the 61

Siniša Rodin, ‘The European Union and the Western Balkans: Does the Lisbon Treaty Matter?’ in Federiga Bindi and Irina Angelescu (eds), The Foreign Policy of the European Union: Assessing the Europe’s Role in the World (2nd edn Brookings Institution Press, Washington 2012) 153–171.

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application of the good neighbourliness principle largely depends on the political context, which lends a certain flexibility. In particular – and depending on the involvement of EU Member States – the good neighbourliness condition is in some instances translated into an obligation of conduct, while in others it is an obligation of result. The abuse of the enlargement process by the Member States can be only avoided by respect of law and the involvement of the Court of Justice. In her second chapter in this volume, Elena Basheska develops Professor Van Elsuwege’s insights by considering a case-study of the application of the good neighbourliness principle in the pre-accession context, focusing on the Republic of Macedonia. Selecting Macedonia over any other candidate country is quite natural: the on-going name dispute between Macedonia and its southern neighbour, Greece, has hijacked the progress of Macedonia’s accession and provides the clearest possible illustration of the abuse of the good neighbourliness requirements in a context where the absolute majority of the Member States as well as the Commission are silent about Greece’s behaviour, which ensures the obstruction of any progress towards accession and ignoring the Commission’s constant recommendations to start pre-accession negotiations. The application of the good neighbourliness condition in the process of recognition of states in EU foreign relations thus provides a very specific example of the deployment of the principle in the pre-accession context: good neighbourliness is then a UN admission condition alongside being a condition in EU enlargement policy. The chapter provides detailed scrutiny of this difficult case. Basheska concludes that the good neighbourliness principle as established in international law has been inconsistently if not outright wrongly applied in the case of Macedonia. The scrutiny of specific examples of the pre-accession application of the principle of good neighbourly relations continues with a contribution by Damjan Možina, who focuses on the long-lasting dispute between Slovenia and Croatia over bank deposits from Yugoslav times which affected Croatia’s progress towards EU

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accession.62 The author draws his conclusions on the good neighbourliness principle after discussing the relevant aspects and circumstances of this dispute. Importantly, the chapter brings human rights considerations into the picture: not only the positions of states involved matter, argues the author: the human rights of the bank depositors must also be taken into account. Možina doubts whether the EU enlargement process provides a suitable platform for the settlement of disputes in a good neighbourly spirit, thus echoing Basheska’s and, partly, Van Elsuwege’s conclusions. This is, on one side, due to the asymmetric position of Member States and candidate countries in the enlargement process, and on the other, because the settlement of a dispute in the enlargement process at the initiative of a Member State should not automatically lead to the conclusion that it misused its powerful position as a Member State able to veto enlargement. From the scrutiny of the EU enlargement context of the application of good neighbourliness, the volume moves to the ENP context in Eastern Europe. In the first chapter dealing with this particularly difficult legal political context Roman Petrov discusses the role of the good neighbourliness principle in the ENP with a particular emphasis on the security challenges faced by the countries of the Eastern Partnership due to the destructive position of the Russian Federation. Within the general context of good neighbourliness in the ENP, Petrov approaches good neighbourliness as among the key ENP principles. The author’s particular interest lies in the scrutiny of the correlation between good neighbourliness and conditionality. Within the context of the Eastern Partnership and the security challenges its countries are facing, the author 62

A more ‘popular’ Slovenia-Croatia pre-accession dispute, mentioned in Možina’s chapter en passant has been scrupulously analyzed in the literature – see, for instance, Matej Avbelj and Jernej Letnar Černič, ‘The Conundrum of the Piran Bay: Slovenia v Croatia – The Case of Maritime Delimitation’ (2007) 5 J. Int’l L. and Policy 1–19; See, also: Elena Basheska, ‘The Good Neighbourliness Condition in EU Enlargement’ (2014) 1(1) Contemporary Southeastern Europe (2014) 92–111; Arjan Uilenreef, ‘Bilateral Barriers or Good Neighbourliness? The Role of Bilateral Disputes in the EU Enlargement Process’, Clingendael European Papers, Netherlands Institute for International Relations, Clingendael, The Hague, June 2010, 15–22, 28 last accessed 21 November 2014.

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assesses the EU’s successes and failures to contribute to the stabilisation of the region where the Eastern Partnership is active. Although there is no doubt that the principle of good neighbourliness rhetorically enjoys an important place in the ENP framework, in practice, the principle has not been successfully applied to which the security conflicts with and beyond the EU’s neighbourhood abundantly testify. This is due to the weak ENP framework, which does not offer any practical tools for the application of the good neighbourliness principle beyond conditionality, which cannot be effective in the face of external threats, as was the case in Ukraine in particular. However, the new generation of Association Agreements, which locate the good neighbourliness principle among their essential elements, could contribute to the principle’s improved implementation.63 Continuing along the line of the same key challenges as outlined by Petrov, Nariné Ghazaryan discusses the application of the good neighbourliness principle to the conflict resolution in the ENP, focusing on the conflict in Nagorno-Karabakh – an archetypical example of a long-lasting frozen conflict. In particular, Ghazaryan critically assesses the role of good neighbourliness in the ENP, analysing whether this principle is an objective promoted by the EU or a condition imposed by the Union on its partners in the light of inter alia Article 8 TEU. The enlargement process, where good neighbourliness has been deployed as a pre-accession condition for cooperation between states, is used as a comparative example for the assessment of the application of the principle in the ENP. Unlike in the enlargement process, however, in the ENP the good neighbourliness principle has not developed into a condition for cooperation between the EU and its neighbours. Instead, argues the author, it has proved to be a flexible concept applied as a condition only where this is deemed necessary by the EU. The weak conditionality of the ENP and the lack of accession incentive contribute further to the poor implementation of the good neighbourliness principle.

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For a meticulous analysis of the first such agreement, see Guillaume Van der Loo, Peter Van Elsuwege and Roman Petrov, ‘The EU-Ukraine Association Agreement: Assessment of an Innovative Legal Instrument’ EUI Working Papers, LAW, 2014/09.

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The elephant in the shaky and dangerous post-Crimea ENP edifice is the Russian Federation – a country officially not participating, although de facto now shaping the ENP, which set as the key goal of its foreign policy to undermine the ENP and the other cooperation policies established by the EU, rather than to reinforce good neighbourly relations, as international law and custom would require. Given the directly destructive role that Russia has played in the ENP countries over the last years, no book about EU’s external relations would be complete without a chapter on Russia’s role in the ongoing processes of international cooperation or the lack thereof. Paul Kalinichenko provides this chapter for this volume. Kalinichenko – a Euro-optimist atypical in a country now chanting ‘Krym nash!’64 – focuses on the relations between the EU and Russia in light of the good neighbourliness principle, paying particular attention to the radical decline in mutual contacts and cooperation caused by the Ukrainian crisis in 2014. The author provides in-depth analysis of the mutual sanctions between the EU and Russia related to the crisis in general and to the Russian annexation of the Crimean peninsula in particular. Further to this, Kalinichenko discusses EU-Russia disputes under WTO law, assessing the impact of this framework on the above relations. While the outstanding problems only seem to be growing, Russia is not going to disappear: sooner or later a constructive way of dealing with such neighbour is bound to be found by the EU. In the last chapter in the volume, which is also among the most fascinating, Anatole Boute focuses, in particular, on the case of the regulation of energy transit, analysing cross-border energy flows in the light of the good neighbourliness principle under international law by taking into account the current challenges that the EU faces regarding energy transit and energy security. The duty to avoid actions which could harm other countries stemming from the good neighbourliness principle is reflected in the Energy Charter Treaty65 (ECT) transit regime which is based on the need to avoid

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‘Crimea is ours’ is a popular rallying cry which came to symbolise and uniting the absolute majority of Russians behind President Putin. 65 Energy Charter Secretariat, ‘The Energy Charter Treaty and Related Documents: A Legal Framework for International Energy Cooperation’ (2004) 15, available at

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the interruption or reduction of cross-border energy supply. Another duty in light of the good neighbourliness principle – the duty to cooperate – is implemented through a voluntary and conciliatory transit dispute resolution mechanism provided by the ECT. The analysis of good neighbourliness in the field of external EU energy relations is particularly relevant to understanding the rights and obligations of the EU, Russia and Ukraine in the context of the current Ukrainian crisis, also explored by Roman Petrov and Paul Kalinichenko.

Three lessons learnt Based on this heterogeneous presentation of the role played by good neighbourly relations in the EU legal context, three lessons emerge for scholars and policy makers. Firstly, good neighbourly relations is a principle able to play an important role in interstate relations, to which numerous international legal instruments, state practices and opinio juris, as well as case law and academic doctrine, testify.66 In circumstances where all states are equal and free to deal independently in their internal and external affairs, constraining their actions in the light of good neighbourliness principle is the only answer to continue their enjoyment of their rights. Its lack of codification in international law should not lead to disregarding the good neighbourliness principle, but rather proves its complexity and breadth. How the rights and duties of states are already differentiated by the principle and its fields of application is a major step towards to furthering its position in international law. Secondly, the good neighbourliness principle has proved itself to be of particular importance for both the internal and the external contexts of EU law. Internally, relations between Member States developed far beyond ordinary interstate relations as understood in international relations. The supranational legal framework based inter (Energy Charter Treaty) last accessed 21 November 2014. 66 See Pop (n 17) for numerous examples.

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alia on the principles of solidarity and loyal cooperation gave new impetus to the good neighbourly relations between EU Member States. This necessarily enhances the position of the good neighbourliness principle not only in the internal EU context but also in international law, given the increased role of the Union in shaping the international legal order. However, as an important actor on the international scene, the EU is also responsible for promoting international law as a minimum standard in its relations with the ‘wider world’67 and must not become a ‘clearing house for national interests’68 of its Member States. The failure of the EU to ensure consistent and accurate implementation of the principle seriously undermines its credibility in the world of neighbours. Finally, the good neighbourliness principle begs for further clarification and possibly, codification, both in the EU – where Article 8 TEU does not yet amount to codification – and in the international law context. The numerous inconsistencies in the implementation of the good neighbourliness principle, particularly in EU foreign relations and enlargement, speak of the insufficient clarification of its substance, which can easily lead to its misuse. A better articulation of the principle is therefore needed to assign it clear functions in various interstate contexts. In particular, a codification of the good neighbourliness principle will not only strengthen international law and EU law, but will also minimise the possibilities of its arbitrary application. ‘Only in this way are we in a genuine juridical world which deserves its name […] All the rest, are words’.69

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Article 3(5) TEU. Sarah Wolff, The Mediterranean Dimension of the European Union’s Internal Security (Palgrave MacMillan, London/New York 2012) 98. 69 Pop (n 17) 100. 68

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