Europe Has a Coherence Problem
The Treaty of Maastricht was a watershed moment for the European integration project – it marked the evolution from market integration to a much broader enterprise (and not completely defined neither then nor now). New areas, and most notably police and judicial co-operation and common foreign and security policy, were attracted within the umbrella of EU action, areas which like monetary policy, which had been traditionally seen as the preserve of state sovereignty. And, it is the Treaty of Maastricht that establishes European Union citizenship, a supranational citizenship the contours of which we still struggle to understand given the concept of citizenship is deeply rooted in the notion of the nation-state (at least post-19th century,) to describe a special "transnational" status. But Maastricht also acknowledged, for the first time, the existence of what will later be defined as the foundational values of the EU: the democratic nature of its Member States, this reference being introduced with enlargement in mind; and, its own commitment to fundamental rights, as guaranteed by the European Convention on human rights, the common constitutional traditions of the Member States and the general principles of European law.
The EU's commitment to the protection of fundamental rights becomes also part of a self-congratulatory narrative: the EU not only goes beyond its economic origins and ventures into new areas, even asserting a potential role as a geopolitical power, but also becomes a Union founded on higher ethical values – democracy and fundamental rights to which, at a later stage, a longer list of values will be added – some foundational, such as the rule of law, some aspirational, such as pluralism and tolerance. Yet, as the EU grows into a more complex and also more "political" community, its commitment to fundamental rights and even to the rule of law is not always entirely consistent: on the one hand we see the EU struggling to enforce these principles internally and on the other hand we see it wavering in its own commitments externally. Internally, and as it is well known, a combination of political and legal constraints has produced an utter inability to deal effectively with the rule of law crises in Poland and Hungary. But beside the objective difficulties in enforcing values within the EU, difficulties which as mentioned also derive from an ill-conceived Treaty mechanism which requires unanimity to impose sanctions, we increasingly see EU political institutions sacrificing the protection of fundamental rights to achieve other goals.
This is true first and foremost in the field of migration "management", where the EU's record in relation to its fundamental rights protection is patchy to say the least. It is sufficient to recall the involvement of Frontex (the EU's Agency for border management) in the cover up of, and participation in, pushbacks, i.e. asylum seekers being pushed away from EU territorial waters, often in dangerous ways and towards unsafe jurisdictions, a practice that is not compatible with the EU Charter of Fundamental Rights and with international law. Or the deals, directly or indirectly (i.e. through its Member States), made with third countries to "securitize" the EU's external border: from returning failed asylum claimants, often in camps where the conditions of detention are far from being safe; to "training" third countries' border guards to ensure that asylum seekers do not reach EU territorial waters, even when those countries are not considered safe countries (e.g. Lybia). Furthermore, we see the EU consistently using its economic might to achieve non-economic aims, again in the field of migration – we have seen this with Morocco, and we are seeing this now with Tunisia. On top of this, the post-Maastricht architecture even after the changes brought about by the Lisbon Treaty, almost entirely shelters the Common Foreign and Security Policy from judicial oversight – threatening our commitment to fundamental rights protection given that a right which cannot be enforced is, by definition, ineffective. Of course, this is not to say that all is bad – after all, the EU's response to refugees from Ukraine has been outstanding demonstrating that unplanned migratory influxes can be successfully absorbed when there is the political will to do so. And in some fields, such as data protection, the EU has become international standard-setter. Rather, this is to say that if the EU's ambition is to be a Union founded on common values, it has to do better to ensure that those values are respected by its own institutions.