Resisting Legal Facts: Are CFSP Norms as Soft as They Seem?

Abstract:

Studies on the (non-)compliance with CFSP norms often misinterpret the legal nature of those norms. Classifying CFSP norms as ‘non-binding’ may help in distinguishing this policy area from other European Union’s (EU) policies, but does not do justice to the committing nature of the norms. Irrespective of the limited role Court’s may play in relation to CFSP, the norms often intend to bind the Member States. This has been the case from the outset, but seems strengthened now, as the Lisbon Treaty streamlined procedures and consolidated the EU’s external action. In studying resistance to CFSP norms, it is worthwhile to take their legal nature into account. In that sense, the broad definition of soft law used in the introduction to this special issue is helpful as it includes binding norms without enforcement mechanisms. Yet, the question remains whether one can still hold that judicial enforcement and the principles of primacy and direct effect are completely alien to the area of CFSP.

This article is part of a Special Issue of the European Foreign Affairs Review.