Small steps towards a comprehensive approach after Lisbon

Abstract

This article examines the changes brought about by the Lisbon Treaty (LT) in the overall institutional architecture of the European Union’s Common Foreign and Security Policy (CFSP), alongside their impact on the operation of the internal–external nexus in counterterrorism (CT) policies. It argues that the inclusion of CFSP actors in the making and implementation process of CT policies eased the legal, institutional and policy boundaries between the CFSP and the field of Justice and Home Affairs (JHA). This is despite the specific status granted to the CFSP in the Treaties, the former remaining subject to intergovernmental procedures and unanimity in decision-making, even after the strides towards the ‘communautarization’ of policies achieved by the LT, in Police and Judicial Cooperation in Criminal Matters in particular. Central to the analysis is the interplay and division of competences between ‘new’ CFSP actors endowed with a coherence mandate, such as the European External Action Service and the upgraded office of High Representative, and ‘old’, pre-Lisbon, CT actors, JHA structures and member states in particular. This article finds that the involvement of the CFSP and more particularly its defence component, that is, the Common Defence and Security Policy, to realize CT objectives ‘affected’ the very content of foreign and security policies and heralded a process of ‘judiciarization’ of CSDP missions deployed in third countries resulting from the integration of criminal justice and law components in their mandate. The article concludes that the ensuing blurring of frontiers between the realms of CSDP and JHA raises fundamental rights concerns as to the judicial remedies available to individuals suspected or accused of terrorist activities.