Norm diffusion as a tool to uphold and promote EU values and interests: A case study on the EU Japan Mutual Legal Assistance Agreement

Abstract

The article takes the European Union (EU)-Japan Mutual Legal Assistance (MLA) Agreement as a case study to analyse the EU success in pursuing its art 3(5) TEU mandate of upholding and promoting its values and interests; and to what extent the EU effectively relied on norm diffusion to this aim. The EU has arguably been, at least partially, successful in exporting its legal standards on ‘improved judicial cooperation’ in the text of the Agreement, especially a legal basis for acquiring testimony via videoconference, whereby to uphold its interest into security; and in including clauses allowing it to uphold its values of respect of fundamental rights. In particular, in having clause allowing the EU to refuse assistance if death penalty is involved, the EU arguably not only acted as a norm exporter, but it also set a new international legal standard, through which it also hoped to promote its values by triggering a change in Japan’s retentionist policy. An analysis of 10 years of implementation of the Agreement shows, however, a more nuanced picture, highlighting the importance to look at both the norm emergence and the norm socialisation phase when assessing the success of the EU as a norm exporter. The institutionalisation of EU-Japan MLA cooperation through the conclusion of the agreement has triggered a stark increase in volume and speed of cases, contributing to higher security. However, legal, practical and cultural factors hinder the implementation in practice of EU legal standards on acquisition of evidence and the promotion of the EU abolitionist agenda.