Many may have missed the news that South Dakota single-handedly stopped the former President Donald Trump from criticising China’s human rights abuses, despite the rest of the country supporting the idea. The most probable reason why this did not make headlines is, of course, because it did not happen. However, this made-up scenario of a single state that represents 0,25% of the population is analogous to what happened in the EU when Cyprus blocked the Union from imposing sanctions on Belarus. Although Cyprus’s veto was understandable in the context of its own interests, this case will exemplify the problems that arise from all Member States wielding a veto on foreign policy matters, alongside other examples of Greece and Hungary blocking common EU statements. Ultimately, we look into some ways in which we could move towards more efficient decision-making in EU foreign policy.

Decision-Making in EU Foreign Policy

Depending on the issue under discussion, the Council of the European Union takes its decisions through different voting procedures. The most widely used procedure is called ‘Qualified Majority Voting’ (QMV), also known as ‘double majority’ since a proposal needs to be approved by a majority in two senses. First, it needs to be approved by 55% of Member States (15 out of 27). Second, the Member States that do approve of the proposal must also represent 65% of the total EU population. If both of these criteria are fulfilled, the proposal passes. This means that, in order to block a proposal, a disagreeing Member State needs to form a coalition of like-minded Member States that together make up a blocking minority (45% of the countries or 35% of the population). However, in some policy areas that are considered more sensitive, decisions are taken unanimously, meaning that all Member States need to agree. This means that if a Member State disagrees with the proposal, it can single-handedly block it. One of the areas that retain the unanimity procedure is the Common Foreign and Security Policy, including e.g. sanctions and joint statements on human rights in third countries.

The division between QMV and unanimity can be understood in terms of supranational and intergovernmental decision-making. Where decisions require unanimity, Member States have been reluctant to give up any sovereignty. Therefore, EU cooperation in these areas likens that of purely intergovernmental forms of cooperation where each state is only bound by the treaties and agreements that it has chosen to sign and ratify. However, where decisions are made by QMV, Member States have recognised that the benefits of coordinating policies within the EU outweigh the risk of sometimes being unable to block unfavourable decisions. Decisions are in these cases more supranational since a Member State can lose a vote and be forced to implement something that has been decided on a European level, that it would not otherwise have ratified.

The benefit of unanimity is of course that it ensures that the decisions are acceptable to all Member States. No single Member State will be overrun by an opposing majority in the Council. This also grants the decisions external legitimacy since it means that the position is shared by all Member States, without any major internal divisions. On the other hand, it means that decision-making takes much longer. There is a risk that consensus is not reached at all or that the final product has been watered down to the lowest common denominator. There have been numerous examples in the history of the EU where the unanimity principle was detrimental to its common foreign policy. Here, we have chosen two cases that concern sanctions and human rights – two areas that have been proposed to be exempted from the unanimity requirement.

The Cypriot Rebellion

The most recent example is that of the Cyprus veto on the EU sanctions on Belarus President Alexander Lukashenko following the violent repression of peaceful demonstrators after the 2020 presidential election. However, Cyprus’s veto had little to do with the Belarusian case. Rather, the explanation is found in the fact that the EU has had trouble defining a joint position when it comes to the Eastern Mediterranean crisis, where Cyprus, Greece and Turkey are at odds over the maritime territory and the undersea energy sources. In addition to the territorial grievances, the Cyprus dispute, unresolved since the mid-1970s, remains a sticky thorn in the relations between the three.

The EU’s inability to procure a common position in the most recent episode of the conflict became apparent when France, Greece and Cyprus argued for “a strong and reactionary” policy against Turkey, including the possibility of sanctions. Their argument is based on the premise that Turkey violates the Greek and Cypriot sovereignty by engaging in search and drilling operations in the exclusive economic zones (EEZs) of Greece and Cyprus, which in turn also amounts to an EU border violation. On the other hand, the more ‘conciliatory camp’ involves Spain, Italy and Germany. Germany has assumed a mediatory role and held the EU presidency until the end of 2020. This group is more willing to resolve the differences through open dialogue, without necessarily putting the migration deal and the Customs Union in danger. The differences, particularly between the French and the German positions, are stark, but understandable given that Germany has a much closer economic, military and political relationship with Turkey.

However, much like a recurring headache, the problem reappeared at a very crucial moment when the EU prepared to vote on sanctioning Belarusian officials, including Lukashenko, on the basis of grave human rights violations during protests and rigging of the ballot. Cyprus vetoed the sanctions, not as a matter of principle, but as a matter of issue-linkaging. They wanted the sanctions to be tied to measures against Turkey over the Eastern Mediterranean dispute. In a statement, the High Representative of the European Union Josep Borrell claimed that the EU’s credibility on foreign policy was “at stake” due to its inability to impose sanctions against Belarus.

This issue-linkaging of sanctions revealed a deep fault line in the EU’s unanimity procedure. Respect for human rights and the rule of law is a core pillar of the European Union, and as such it needs to be non-negotiable. Therefore, sanctions on Belarus should have been an easy point to agree on. It is therefore no surprise that a few days after Cyprus’s veto block, Ursula von der Leyen called for EU member states to move to QMV at least on human rights and sanctions implementation. This incident strongly demonstrated the unsustainability and inefficiency of the principle of unanimity for EU foreign policy-making in the long-term, although it provided an initial compromise for sovereignty in the short-term.

Divide and Conquer

For non-member countries that do not necessarily share the same values with the EU, unanimity voting can serve as a method of divide and conquer against the EU’s solidarity and unity by pressuring the EU’s smaller states. For instance, in June 2017, the EU was due to make a statement at the UN Human Rights Council (UNHRC) on the promotion of free speech, as well as ending capital punishment worldwide. After considerable Chinese pressure, Greece blocked the unanimity required for the statement in order to improve its own bilateral relationship with China. At the time, the Greek foreign minister defended the action by calling the statement “unconstructive criticism of China”, and that the EU should engage in discussions with China on such issues outside of the UN context.

Once again, the problem is not so much about the right of sovereign EU nations to determine their own foreign policies, as it is about the necessity of a joint unwavering commitment to the core principle of human rights. Needless to say, it was the subject of many headlines when China’s COSCO Shipping, the world’s fourth largest container fleet company, acquired a hefty 51% stake in Greece’s largest port, Piraeus. These events demonstrate the vulnerabilities and challenges that unanimous voting can create for the most important and existential values of the EU. 

Greece is not an isolated case. Other Member States like Italy, France and Hungary have also blocked statements made against human rights violators. For instance, in March 2017, Hungary refused to sign the draft joint letter denouncing the torture of detained lawyers in China. The correlation of Hungary’s protection of China from EU statements and condemnations with China’s ‘Belt and Road’ investment for the Belgrade-Budapest railway project is also noteworthy. 

The EU simply cannot afford, and should not tolerate, external interventions on its respect for human rights and the rule of law through the influencing of smaller Member States. It is not problematic for Member States to determine their own economic and political partners. Yet, it is problematic for these exchanges and relations to acquire a transactional nature, where the EU’s solidarity over human rights is traded. As this is ultimately very difficult to control, it makes sense to scrap the unanimity requirement for QMV in matters of human rights promotion and sanctions.

Solving the Standstill

The idea of moving towards QMV has been voiced many times. In 2018, the Juncker Commission identified a growing trend among Member States of delaying, blocking or diluting the Union’s positions “for reasons unrelated to human rights”. Ten Member States remain openly opposed to a move towards QMV on sanctions and common positions on human rights in international fora. Naturally, all three of the countries featured in the examples above – Cyprus, Greece and Hungary – are staunch opponents to the proposal, along with a prevalence of Eastern and Southern Member States. Their opposition is to some degree based on Euroscepticism and an aim to retain sovereignty. However, as we have seen, there are cases where strategic and economic interests in their relations to third parties dictate their voting behaviour. These Member States rely on their foreign policy veto to be able to trade the stalling of EU foreign policy for favourable deals with third countries.

This makes the situation very difficult, but let us have a look at what can be done within the current legal framework. Excluding a treaty change, which possible solutions have been proposed within the boundaries of the current Treaties? Below, three proposed solutions are presented, which all depart from Art. 31 TEU.

Constructive Abstention

Unsurprisingly, the least controversial approach is also the one deemed least effective. During the Finnish Presidency in 2019, the idea of a systematic use of ‘constructive abstention’ was addressed. Article 31(1) TEU stipulates that a Member State may formally abstain, in which case it is not obliged to apply the decision, but accepts that the decision commits the Union. This means that the action of the entire Union would not be blocked whenever a single member state chooses to be excluded from decision-making and action.

However, this only solves the least severe part of the EU’s decision-making dilemma. While this lets neutral Member States opt out of decisions without blocking them, opposing Member States will not become more willing to give up the leverage that their veto gives them. Constructive abstention offers some flexibility in foreign policy decision-making, but in order to solve the underlying structural problems, the solution cannot be dependent on the goodwill of the blocking Member States.

The ‘Enabling Clause’

Article 31(2) enables the Council to use QMV in some cases. Where the European Council has taken a decision setting the Union’s strategic interests, the Council can use QMV when implementing actions and positions pertaining to those interests. Therefore, this paragraph goes under the name of the ‘enabling clause’.

This enabling of a QMV procedure is what High Representative Josep Borrell sought when he earlier this year proposed an Action Plan for Human Rights. It was accompanied by a proposal to the European Council to (unanimously) adopt the Action Plan as a ‘strategic interest’. With the Action Plan set as a strategic interest, the Council would then be able to use QMV to implement the actions and positions stipulated in the plan. However, Member States dismissed the proposal.

There are advantages and disadvantages with this approach. The advantage is that the vote that requires unanimity is decoupled from any issue-specific case that otherwise makes it easy for third countries to exert targeted pressure on single Member States to block common EU action. However, the vaguer the premises in the proposed strategic objective are, the more wary all Member States will become to cede their veto rights. Furthermore, this clause does not present any clear incentive for opposing Member States to allow for QMV procedures. A Member State that is either Eurosceptic or disposed to stall EU foreign policy in exchange for favours will not be convinced to fall in line for the sole purpose of strengthening EU actions on human rights.

The ‘Passerelle Clause’

Article 31(3) TEU allows the European Council to decide that QMV shall be used permanently in the Council on a specific matter. This type of flexibility mechanism is called a ‘passerelle clause’. The problem, however, is the same as the ‘enabling clause’: it requires unanimity in the European Council and it does not offer any clear incentive to defenders of national sovereignty to give it up. The fact that this does not apply to decisions having military or defence implications does not help much in that regard.

A second problem for any use of QMV in foreign policy matters is the ‘emergency brake’ that is included in Article 31(2), Any member state can object to a decision being taken by QMV for “vital and stated reasons of national policy”. The High Representative will consult with the Member State in question, and if no solution is reached, the Council can refer the matter to the European Council for a decision by unanimity. The problem that the veto poses therefore remains, although it becomes a bit more cumbersome to wield it.

Going Forward

In sum, the Treaties do offer some ways forward to achieve more efficient foreign policy making in the EU. However, most of them are weak and rely on the Member States that currently benefit from their veto to give it up without offering them any convincing incentive to do so. Constructive abstention only means that a neutral Member State can opt out of a decision. The passerelle clause will hardly find unanimous support in the European Council. The enabling clause offers some hope by decoupling the vote from a specific case, but is not ready to be passed unanimously. Furthermore, both the enabling clause and the passerelle clause are hampered by the emergency break. 

Of course, nothing will happen if the Member States themselves are unwilling to make EU foreign policy-making more supranational. That is also the way it should be; no further integration should take place without the Member States’ consent based on a recognition that they will benefit from deepened cooperation. That is why we have revisited the cases of Cyprus, Greece and Hungary blocking common EU action, in order to underline the harm that the foreign policy veto inflicts on all Member States of the Union, including the ones that are sceptical towards further integration. These cases illustrate how the EU’s global influence is weakened in a time when the relative power of individual Member States in international affairs wanes in isolation.

There are those who have recognised the importance of a common EU stance on human rights and efficient decision-making on sanctions. Following the Cypriot case, Commission President von der Leyen called for QMV to be used in matters concerning sanctions and human rights in her State of the Union Address. The latest resolution from the European Parliament on the issue came in March 2019, right before the end of the last parliamentary mandate, and urged the Council to allow for the imposition of human rights sanctions through QMV. High Representative Borrell has indicated that he will promote greater use of QMV in external relations, as evidenced by his intent to allow for QMV on human rights issues via the enabling clause. The proposal was also supported by important parts of civil society. In a statement, HRDN, the umbrella organisation for European human rights NGOs (including among others Human Rights Watch, Save the Children and Amnesty International), announced that it fully supports the proposal to act by QMV in implementing the new Action Plan. By the end of the day, however, the opinions of the Member States is what matters. At the moment, there are six Member States who are openly in favour of using QMV on matters related to sanctions and human rights: Belgium, Finland, Germany, the Netherlands, Sweden and Spain. France is also in favour, but Macron has decided to link the issue of QMV in foreign policy making to the introduction of QMV in tax policy – a policy field that is, if possible, an even more heavily guarded cornerstone of national sovereignty.

Lastly, it is important to point out that QMV is no silver bullet and that it comes with its own risks, such as growing discontent among Member States that are unable to block unwanted decisions. South Dakota is still a more integral part of the U.S than any Member State is of the EU, and it does not need a veto to find the U.S foreign policy to be legitimate. There are other concerns that need to be taken into account too. The EU needs a collective sense of purpose and community based on shared interests and a common strategic culture. The internal legitimacy that would be weakened by a removal of the veto needs to be compensated. There has been a debate on whether such compensation could be given through the co-decision of the European Parliament, or if the national framework of reserving foreign policy competences for the executive branch should be preserved. Finally, a key question is whether or not QMV would come with a net benefit of external credibility. We have covered the benefits in this article. However, a potential drawback is that if Member States are publicly outvoted on decisions on the relations to third countries, the EU’s credibility as a cohesive foreign policy actor would be weakened.

To overcome these difficulties, we propose a gradual use of increasingly non-unanimous decision-making in foreign policy. Constructive abstention may not solve the current standstills, but it could play a role as an initial step towards building trust among the different national Ministries of Foreign Affairs. With an increased mutual trust, either the enabling clause or the passerelle clause could be used in a narrowly restricted policy field. Hopefully, this could help form a collective sense of purpose and a common strategic culture. If this could convince a few more Member States to loosen their grip of unanimity, a critical mass would start to take shape, given that both France and Germany are already supportive. Incrementalism is not ideal in a situation where the EU’s credibility takes a hit for every delayed decision, but as so often when it comes to European integration, it seems to be the only way forward.

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