Papers by Paul James Cardwell
JCMS: Journal of Common Market Studies, 2019
The EU's legal system has been built on the principle of a 'single legal order'. Undeniably, howe... more The EU's legal system has been built on the principle of a 'single legal order'. Undeniably, however, differentiation has crept in. The UK has been at the forefront of seeking opt-outs and exceptions to the euro, Schengen etc. After Brexit, will others' requests for special treatment continue, or will the Brexit experience strengthen the legal order? Is the EU's legal system capable of absorbing differentiation in its fabric? This contribution argues that differentiation can only be accommodated so far in the Treaty arrangements without a wholescale re-evaluation of the purpose of EU law. The UK's departure removes the Member State most ready to challenge some of the fundamentals of the legal order, but the article urges caution against a full re-characterisation post-Brexit. Instead, the article foresees a continuation of the status quo, in which differentiation exists in various forms but as exceptions to the rule, rather than the rule itself.
Revue critique de droit international privé, 2019
Résumé
Les conséquences de la sortie du Royaume-Uni de l’Union européenne (Brexit) demeurent... more Résumé
Les conséquences de la sortie du Royaume-Uni de l’Union européenne (Brexit) demeurent encore incertaines. Pour les juristes, le Brexit a posé une série de questions de droit complexes, dont quelques-unes n’ont pas été envisages depuis plus de 40 ans. Cet article a pour but de mettre en avant quelques-unes des questions qui ont surgi au cours du processus lié au Brexit , et de présenter quelques unes des voies de réponse possibles. Il évalue aussi le défi que représente le Brexit pour les chercheurs dans les différents domaines juridiques les incertitudes et changements rapides affectant la façon dont le droit est compris ont des conséquences importantes sur la recherche et l’enseignement de la discipline. Les débats sont d’une telle portée et d’une telle complexité que seule une fraction peut en être envisagée ici. Il va sans dire que le Brexit aura des conséquences sur le Royaume-Uni, l’UE, ses États membres ainsi qu’en termes de gouvernance globale, à laquelle le droit international privé est intimement lié.
Summary
The consequences of the United Kingdom’s decision to leave the European Union (Brexit) remain uncertain still. For legal scholars, Brexit has posed a series of complex legal questions, some of which have not been considered for over 40 years, if at all. This article aims to consider some of the main questions that have arisen during the Brexit process, and some of the potential responses. The article also evaluates the challenges that Brexit represents for researchers and teachers in the various sub-disciplines within legal scholarship, including the fast-paced, ever changing legal landscape. Although only a small number of the questions and challenges can be considered here, it goes without say that Brexit will undoubtedly have significant consequences for the UK, the EU and its Member States as well as for the systems of global governance, in which private international lawyers are inherently linked.
Journal of European Integration, 2019
The European Parliament enjoys an array of powers in development cooperation, ranging from legisl... more The European Parliament enjoys an array of powers in development cooperation, ranging from legislative and budgetary powers to scrutiny and democratic oversight. However, its role has largely been overlooked and generally been absent from the key debates in the EU foreign policy literature. Partly this stems from the 'low politics' nature of development cooperation, when set against the 'high politics' of EU external relations as typified by CFSP/CSDP and trade. This article combines a legal analysis of the EP's post-Lisbon powers in EU development cooperation with an examination of the Multiannual Financial Framework, European Consensus on Development and interinstitutional interactions to assess how the EP has succeeded in gaining a more significant role in this policy field. The article argues that the 'low politics' of EU development cooperation is highly susceptible to the EP's institutional assertion and empowerment in overall EU external relations.
European Journal of Higher Education, 2019
Studying abroad as part of a degree has become commonplace for many students in European and othe... more Studying abroad as part of a degree has become commonplace for many students in European and other developed countries. Universities actively promote opportunities as part of internationalization strategies. Whilst research has looked into the ‘abroad’ aspect of study abroad, there is less literature on the ‘study’ aspect, and in particular, the effects that the period has on academic achievement. This article provides evidence that studying abroad has a beneficial effect on overall academic achievement. The article compares the final degree grades of students at Sheffield Law School (UK) who participated in a year studying abroad, with those who did not. Interviews with students across the period deepen the qualitative dimension to the research by exploring how students felt about their academic experience. Whilst few students opt to go abroad for the purposes of improving grades, most feel that the additional confidence and maturity, alongside deeper knowledge of their subject and a break in the pattern of their studies, contributes to their higher achievement.
JCMS: Journal of Common Market Studies, 2018
Ordoliberalism has undergone a dramatic resurgence as a characterisation of the contemporary EU a... more Ordoliberalism has undergone a dramatic resurgence as a characterisation of the contemporary EU and its economic dimensions. Commentators have pointed to the ‘ordoliberalisation’ of EU economic policy with Germany at its core, albeit taking the role of a ‘reluctant hegemon’. Perhaps as a result of this pervasive influence, some have claimed that the EU is itself ordoliberal, resting on a particular understanding of the relationship between ordoliberalism and an ‘economic constitution’. For this claim to be substantiated, the characterisation of ordoliberalism needs to persist across time and the EU’s law and policy-making spaces. In this article, we examine this proposition, and argue that the influence of ordoliberalism can help a richer understanding of the contemporary EU beyond the confines of the economic constitution and into its evolving legal system(s).
Global Policy, 2018
It has become commonplace to regard the contemporary state of migration to Europe as a ‘crisis’. ... more It has become commonplace to regard the contemporary state of migration to Europe as a ‘crisis’. The European Union has been under pressure to respond effectively to this ‘crisis’, which has gone to the very top of its policy making agenda. However, despite the legal powers the EU has to regulate migration, legislative measures appear to have declined as an appropriate response. Rather, a constant stream of policy documents has referred to ‘tools’ and ‘instruments’ which appear to fall outside the scope of legislative processes, and the democratic scrutiny which goes hand‐in‐hand with them. This article argues that the practices which are emerging from the institutions can be regarded as instances of ‘new governance’, which are found in other areas of EU activity. To do so highlights the risks associated with using non‐legal tools to deal with an area where there are extremely important consequences for individuals. The policy recommendations highlight the need for vigilance to ensure that the EU's stated values are not undermined in the quest for dealing with the migration ‘crisis’.
Croatian Yearbook of European Law and Policy, 2017
The UK’s decision to leave the European Union (EU) has presented innumerable challenges for both ... more The UK’s decision to leave the European Union (EU) has presented innumerable challenges for both the leaving state and the EU. In these unchartered waters, the future of UK involvement in EU policies is very much in doubt. The Common Foreign and Security Policy (CFSP) has not been at the forefront of the debates about Brexit, despite the increasing focus on the EU’s global role, and the UK’s own vision of a ‘Global Britain’. The purpose of this article is to consider the past, present, and future role played by the UK in the CFSP since its inception in the Treaty on European Union. This necessitates consideration of how the CFSP might develop in the future and fulfil the goals of the recent Global Strategy. The article explores the UK’s constant opposition to greater integration in EU foreign policy and how it has purported to distance itself from the CFSP machinery. This can be contrasted with the UK’s apparent post-referendum enthusiasm for pursuing shared foreign policy goals. The future direction of the CFSP may not be affected to a significant degree by the UK’s departure. However, the CFSP will not necessarily become more integrated after Brexit. To achieve this, greater commitment will need to be shown by the EU27 to the aims of the CFSP, and other Member States will no longer be able to count on the UK as the lead voice of opposition or ‘brake’ on integration. If there is a continued desire for the UK to be involved in the CFSP, finding an acceptable model for cooperation is likely to prove a substantial, long-term challenge.
European Papers, 2017
The EU has a Treaty-based obligation to promote democracy in the wider world, with a particular e... more The EU has a Treaty-based obligation to promote democracy in the wider world, with a particular emphasis on neighbouring States. Doctrinal approaches to EU democracy promotion generally focus on a specific set of instruments, whereas the law of external relations underpins a much wider set of policies and practices relating to democracy promotion. This Article applies four categories of democracy promotion (on a positive/negative and express/implied axis) to a case study of the EU-Turkey relationship. The wider scope provided by this categorisation demonstrates that democracy promotion should not only be seen within the confines of “positive” measures such as enlargement conditionality but also by measures and practices which are often hidden from view. In doing so, a richer understanding of how the law of the EU’s external relations informs policy and practice can be gained.
European Foreign Affairs Review, 2016
Common Foreign and Security Policy (CFSP) Declarations have become one of the main ways in which ... more Common Foreign and Security Policy (CFSP) Declarations have become one of the main ways in which the European Union (EU) makes its voice heard on the global stage. Declarations do not have a basis in the Treaty but are the product of close cooperation between the Member States. Their frequency has increased to the extent that they are a stable, regular and institutionalized feature of the CFSP. When placed in the context of the EU’s institutional foreign policy arrangements, Declarations can be understood as an integral part of the process of forging a common foreign policy for the EU and they should not merely be regarded as empty words. In particular, Declarations represent a significant delegation of authority to the High Representative for Foreign and Security Policy to speak for Europe. This article examines the scope and content of the CFSP Declarations issued over the period 2007–2015 by the Council and the High Representative of the Union for Foreign Affairs and Security Policy. By classifying Declarations according to type, ‘target’ and subject matter, the article suggests that Declarations have become a specific instrument in their own right and reflect a core set of values the EU has pursued via the CFSP.
European Law Review, 2016
This article proposes a way forward in the debate about law and new governance in the contemporar... more This article proposes a way forward in the debate about law and new governance in the contemporary European Union. Migration management is used a prism through which we can see what is happening in a significant area of EU activity and re-evaluate new governance, both in terms of its opportunities, but also crucially, its dangers. A rethink on new governance and its application to external migration implies an alteration of the lenses by which we see migration, by uncoupling new governance from its synergy with ‘good’ governance and to instead consider that new governance may offer policy-makers opportunities to meet goals beyond legislative processes. The article does not argue that new governance should be used in migration management. Rather, by using governance as
an explanatory concept and providing a critique, the contribution of the article is to highlight the potential dangers that new modes of governance may pose to transparency and legitimacy in the contemporary EU, especially if they are used to bypass legislative processes and avoid civic involvement.
Journal of European Public Policy, 2016
This contribution analyses the potential legal outcomes in meeting the United Kingdom's (UK's) de... more This contribution analyses the potential legal outcomes in meeting the United Kingdom's (UK's) demands in advance of the referendum and what they might mean for EU integration should the UK vote to remain in the Union. It argues that there is unlikely to be a 'quick fix' to meet the full range of demands, since there is no obvious legal mechanism which can satisfy the demands in either substance or the proposed time-frame.
Cambridge Yearbook of European Legal Studies, 2015
This article explores the legalisation of the Common Foreign and Security Policy (CFSP) of the Eu... more This article explores the legalisation of the Common Foreign and Security Policy (CFSP) of the European Union (EU) and its increasing use of sanctions. It argues that the breadth and depth of the numerous sanctions regimes in place shows that EU foreign policy is not merely an aspiration but produces law and legal processes which share similarities with those in the rest of the EU’s legal order. Further, the article examines the extent to which non-EU Member States in Europe have aligned themselves with EU sanctions. The argument is made that this is evidence not only of Europeanisation, but also crucially of a legalised foreign policy which has allowed Europe-wide, EU-led foreign policy to emerge.
European Public Law, 2015
Can the identity of EU Member States be hidden from public view during the legislative process? I... more Can the identity of EU Member States be hidden from public view during the legislative process? In this judgment, the Court of Justice had the opportunity to consider and clarify the extent of the transparency duty imposed by Regulation 1049/2001,1 where the centralized institutions are acting in their legislative capacity. The appeal, brought by the Council against the decision of the General Court of 22 March 20112 posed the question of whether, under Article 4(3) of the Regulation,3 the Council could refuse access to those parts of Council documents that disclosed the identity of Member States, who had submitted proposals that sought to amend draft Commission legislation. Specifically, the Commission legislation at issue was a proposal to recast Regulation 1049/2001 itself.
International Migration, 2013
Against the background of the limited “hard” law measures in place on external migration, the EU ... more Against the background of the limited “hard” law measures in place on external migration, the EU institutions are attempting to use a more differentiated approach to migration. This is evidenced by both the Stockholm Programme and the Global Approach to Migration (2005) which rely less on binding instruments and more on flexible, coordinated measures to meet their goals. This article discusses whether these measures can be understood as “new modes of governance” (NMG), which have only rarely been discussed insofar as the external sphere of EU governance is concerned. The article will also investigate the extent to which the initiatives are already in place, contextualising them in the broader debates on new governance and the conduct of the internal and external dimensions of the EU's system of governance. The article concludes that new modes of governance are indeed present in the external dimension of EU migration policy and that understanding them as such helps towards a better understanding of the contemporary state of policymaking at EU level.
Northern Ireland Legal Quarterly, 2013
Abstract. As a non-traditional actor on the international stage, the European Union (EU) presents... more Abstract. As a non-traditional actor on the international stage, the European Union (EU) presents itself as a successful example of peaceful, democratic cooperation between its Member States. Its foreign policy, existing alongside rather than replacing that of the Member States, is not driven by military strength but backed-up with formidable economic clout.
Jcms: Journal of Common Market Studies, 2011
This article uses the language of governance to explore the relationships between the EU and the ... more This article uses the language of governance to explore the relationships between the EU and the states around the Mediterranean. Against the background of multiple legal, policy and institutional arrangements which have been created by the EU since 1995 to frame Euro–Mediterranean relations, the article considers how seemingly different priorities and methods come together. Of particular interest is the EU's stated goal of a ‘partnership’ across the Mediterranean, which is promoted by the EU at the same time as it seeks to project its own values in the countries just beyond its borders. The article considers the changing nature of ‘the Mediterranean’ within EU policy-making, as well as the EU's changing priorities, which suggests incoherency but which instead underlines the central role of the EU in a Euro–Mediterranean system of governance. The positive connotations of the language of governance (identified in the first part of the article) are not fully present in the overlapping policy frames since the stated ‘partnership’ between the two sides of the Mediterranean in a system of governance is not borne out in practice.
In 2008, the EU adopted Directive 2008/99/EC on the protection of the environment through the cri... more In 2008, the EU adopted Directive 2008/99/EC on the protection of the environment through the criminal law, to be implemented in Member States by December 2010. Although the enforcement of environmental legislation by means of the criminal law is by no means novel, it has often played a secondary role to administrative sanctions and civil penalties. This Directive is thus perhaps indicative of a hardening of attitudes over breaches of environmental law. Nevertheless, this article considers the extent to which the response ...
European Law Review, 2011
In Bolbol, the European Court of Justice considered the refusal of the Hungarian authorities to g... more In Bolbol, the European Court of Justice considered the refusal of the Hungarian authorities to grant refugee status to a stateless Palestinian. Her claim relied on a provision of the Geneva Convention contained in Directive 2004/83 on minimum standards for the qualification and status of third-country nationals as refugees. The ECJ was willing to consider that the minimum standards extended to considering the eligibility of a Palestinian displaced after 1951 as a refugee, but that the individual in question must have actually, not potentially, availed themselves of UN protection or assistance. The Court interpreted a vaguely worded provision of the Geneva Convention in a narrow way, though it rejected the even narrower approaches put forward by some Member States. In this article, the author discusses the balancing act undertaken by the ECJ when considering minimum standards legislation in a dynamic and rapidly evolving domain of EU law-making.
European Public Law, 2011
The Court of Justice has held that goods originating in the West Bank are not entitled to enter t... more The Court of Justice has held that goods originating in the West Bank are not entitled to enter the European Union (EU) under the preferential tariff arrangements granted under the EC-Israel Association Agreement. The customs authorities of the Member States are not bound by the proof of origin status given by the exporting state when sufficient information is not provided, nor are they obliged to refer the matter to the Customs Cooperation Committee. The Court considers that the Association Agreements concluded with Israel and the Palestinian Authority (PA) must be interpreted in accordance with the rules and principles of customary international law. In doing so, the Court finds a way to resolve a technical dispute in a highly political context. The judgment sheds light on the Court’s view of the EU’s place within a wider set of norms governing the international system.
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Papers by Paul James Cardwell
Les conséquences de la sortie du Royaume-Uni de l’Union européenne (Brexit) demeurent encore incertaines. Pour les juristes, le Brexit a posé une série de questions de droit complexes, dont quelques-unes n’ont pas été envisages depuis plus de 40 ans. Cet article a pour but de mettre en avant quelques-unes des questions qui ont surgi au cours du processus lié au Brexit , et de présenter quelques unes des voies de réponse possibles. Il évalue aussi le défi que représente le Brexit pour les chercheurs dans les différents domaines juridiques les incertitudes et changements rapides affectant la façon dont le droit est compris ont des conséquences importantes sur la recherche et l’enseignement de la discipline. Les débats sont d’une telle portée et d’une telle complexité que seule une fraction peut en être envisagée ici. Il va sans dire que le Brexit aura des conséquences sur le Royaume-Uni, l’UE, ses États membres ainsi qu’en termes de gouvernance globale, à laquelle le droit international privé est intimement lié.
Summary
The consequences of the United Kingdom’s decision to leave the European Union (Brexit) remain uncertain still. For legal scholars, Brexit has posed a series of complex legal questions, some of which have not been considered for over 40 years, if at all. This article aims to consider some of the main questions that have arisen during the Brexit process, and some of the potential responses. The article also evaluates the challenges that Brexit represents for researchers and teachers in the various sub-disciplines within legal scholarship, including the fast-paced, ever changing legal landscape. Although only a small number of the questions and challenges can be considered here, it goes without say that Brexit will undoubtedly have significant consequences for the UK, the EU and its Member States as well as for the systems of global governance, in which private international lawyers are inherently linked.
an explanatory concept and providing a critique, the contribution of the article is to highlight the potential dangers that new modes of governance may pose to transparency and legitimacy in the contemporary EU, especially if they are used to bypass legislative processes and avoid civic involvement.