The Institutional Construction of EU Foreign Policy:

CFSP and the International Criminal Court






Daniel C. Thomas

Department of Political Science
University of Pittsburgh
dcthomas@pitt.edu





Prepared for presentation at the European Union Studies Association,
Austin, Texas, March 31-April 2, 2005







Draft: Comments are invited. Work on this paper was supported by a leave from 
the University of Pittsburgh, an International Affairs Fellowship from the Council 
on Foreign Relations, and a Resident Fellowship at the Transatlantic Center of 
the German Marshall Fund of the United States. Officials of the European Union 
institutions and member states, as well as experts from non-governmental 
organizations, provided critical information and comments on condition of 
anonymity. Eric Remacle provided comments on an earlier draft. Zeki Sarigil 
provided research assistance. 


Introduction
How do international institutions affect the likelihood that states will 
compromise their preferences in order to achieve or sustain international 
cooperation? Although generally focused on the relative effects of anarchy and 
institutions in international affairs (Keohane 1984, Oye 1986, Grieco 1988), this 
question is equally relevant to debates over the dynamics of regional integration. 
The late and weak integration of foreign and security policy in Europe has led 
many observers to consider this issue-area immune to any cooperation-
promoting effects of institutions. Unfortunately, this supposition has not been 
subject to sufficient theoretical development or empirical research.
	Scholarship on the European Union's Common Foreign and Security 
Policy (CFSP) has focused in recent years on explaining the institutions that 
govern this "new" area of EU activity (Nuttall 2000, White 2001, M.E. Smith 2004, 
Koenig-Archibugi 2004a, Tonra and Christiansen 2004). In comparison, relatively 
little attention has been devoted to developing theories of EU policy-making 
under CFSP or to evaluating empirically how well such theories explain patterns 
or critical cases of EU foreign policy. As a result, despite some work in this area 
(K. Smith 1999, Ginsburg 2001), we have insufficient understanding of the 
dynamics of foreign policy cooperation among the EU member states, how they 
arrive at common policies on critical international issues (or fail to do so), why 
they agree on certain policies rather than others, and how they act after the 
common policies have been agreed. 
	This paper introduces Intergovernmentalist and Institutionalist theories of 
EU foreign policymaking, and then evaluates their explanatory power in light of 
two case studies of EU cooperation on a high salience issue – how to respond to 
the United States' quest for immunity from the International Criminal Court, first 
through a United Nations Security Council resolution, and then through bilateral 
agreements. In both cases, member-state preferences diverged considerably. 
However, the first case involves cooperation among EU member states outside 
the institutions and process of the CFSP, while the second case involves 
cooperation within the CFSP. While this case selection does not represent the 
universe of EU foreign policy actions, tracing the policy-making process and 
comparing the policy outcomes in the two cases contributes to theory 
development by demonstrating the plausibility of both theories under specified 
conditions (George and McKeown 1985).
	At first glance, the EU's ability to shape international outcomes appears to 
be hamstrung by a "Catch-22" dilemma in the CFSP. On the one hand, even 
though none of the European Union's member states is powerful enough to 
shape international outcomes single-handedly, there is good reason to believe 
that the EU could be a major player if the member-states could concentrate their 
weight on a single substantive position (Jupille 1999). On the other hand, since 
the CFSP operates on the principle of unanimity, many observers consider it 
inevitable that EU positions in foreign policy will fall somewhere between the 
status quo and the lowest-common denominator positions. By increasing the 
number of potential veto players, enlargement from fifteen to twenty-five member 
states (with more to come) should only reinforce this tendency (Tsebelis 2002). 
The EU thus appears unlikely to agree on a position that departs significantly 
from the preferences of whichever single member state is least receptive to 
change on the issue at hand (Hill 1983).
	Some analysts treat this as an iron-rule of decision making under 
unanimity: "When each member state possesses the power of veto, whether at 
the outset of a negotiation or at the ratification stage, the common position 
eventually reached is the lowest common denominator" (Meunier 2000:109). This 
is correct, of course, if one formally equates any non-status quo outcome with the 
preferences of the most conservative actor. This equation blinds us, however, to 
the possibility that some aspect(s) of the policy-making process might lead 
member states to forego the pursuit of outcomes that they prefer with respect to 
the issue at hand. For this reason, the lowest common denominator outcome is 
better treated as an empirical possibility than as a theoretical assumption.
	This paper challenges the expectation that the EU will inevitably adopt 
highly conservative positions on critical international issues. Instead, it argues 
that within the CFSP process, the ability of EU actors (both member-states and 
supranational institutions) to play an entrepreneurial role and frame issues 
publicly before they reach the Council, as well as the power of norms of 
consensus within the Council, can move EU positions from a status quo or 
lowest-common denominator position toward a less-conservative or compromise 
position. 

Part I. The Rules and Instruments of EU Foreign Policy
The Common Foreign and Security Policy emerged out of the 
intergovernmental process known as European Political Cooperation (EPC), 
which developed a considerable body of substantive commitments and 
procedural norms on foreign policy cooperation during the 1970s and 80s. CFSP 
was formally established, however, by the Treaty on European Union in 1992 
and expanded by the Amsterdam Treaty in 1997. Its formal rules grant principal 
policy-making authority to the Council (rather than the Commission, Court or 
Parliament) and give considerable bargaining power to individual member states 
with respect to the adoption of particular policies. The EU's adoption of legally 
binding common foreign policies has increased considerably since the 
establishment of CFSP, from an average of almost 16 per year during 1993-1995 
to an average greater than 60 per year in 2001-2003 (see Figure 1).

-- Figure 1 about here --

The original Treaty on European Union (TEU) established two specific 
legal bases for action under CFSP: common positions and joint actions. Common 
positions require the member states to implement national policies that comply 
with the position defined by the Union on a particular issue. Joint actions are 
operational measures taken by the member states under the auspices of the 
CFSP, such as the allocation of financial resources or the deployment of military 
forces. Since the Treaty of Amsterdam, the TEU includes a third legal instrument 





Figure 1: Total EU Legal Acts under CFSP, 1993-2003

 

Note: This table includes only CFSP acts based on articles in the Treaty on European Union or 
on pre-existing CFSP acts. Council Declarations, Presidency Declarations, and Council 
Conclusions are not included. Source: Actes Juridiques PESC: Liste Thématique, 18 juin 2004, 
http://ue.eu.int/uedocs/cmsUpload/Actes.legisl.pdf (December 6, 2004).


for CFSP, common strategies, which set overall policy guidelines for relations 
with particular countries or regions where the member states have especially 
important interests in common, and specify the objectives, duration, and means 
to be made available by the Union and member states. Once adopted, they can 
be implemented by common positions and joint actions adopted by a qualified 
majority of the Council. However, common strategies are relatively rare (see 
Table 1). In their absence, both common positions and joint actions must be 
adopted by unanimity 

-- Table 1 about here --

All proposals for CFSP action (regardless of which policy instrument they 
involve) are ultimately debated, amended, approved, or rejected by the EU's 
General Affairs and External Relations Council (GAERC), which is composed of 
Foreign Ministers and meets on a monthly basis or more frequently when urgent 
decisions are required. Before an issue reaches the GAERC, it is typically 
addressed in a series of lower-ranking Council bodies, from expert working 
groups, to the Political and Security Committee (PSC), and eventually the 
Committee of Permanent Representatives (COREPER). Since the Treaty of 
Amsterdam, the European Commission has been "fully associated" with the 
CFSP, which allows it to participate in Council formations alongside member 
states, but not to vote. For its part, the European Parliament is able to submit 
questions and recommendations (in the form of resolutions) to the Council, but it


Table 1: EU Legal Acts under CFSP, 1993-2003

Common 
Positions
Joint 
Actions

Common 
Strategies
"Imple-
menting 
Acts"
Other
Total
1993
1
5
--
0
0
6
1994
8
9
--
0
0
17
1995
12
9
--
1
1
23
1996
10
19
--
0
2
31
1997
13
15
--
0
1
29
1998
22
16
--
0
4
42
1999
23
19
2
11
6
61
2000
17
12
3
10
5
47
2001
20
12
0
9
9
50
2002
23
15
0
5
5
48
2003
20
21
2
16
27
86

Note: "Common Positions" refers to acts based on Art. J-2 or 15 of the Treaty on European 
Union; "Joint Actions" refers to acts based on Art. J-3 or 14; "Common Strategies" refers to acts 
based on Art. 13 (which was not in effect until 1999). "Implementing Acts" refers to acts whose 
principal juridical basis is a pre-existing Common Position, Joint Action or Common Strategy. 
"Other" refers to acts based on other articles in Title V of the Treaty. Source: Actes Juridiques 
PESC: Liste Thématique, 18 juin 2004, http://ue.eu.int/uedocs/cmsUpload/Actes.legisl.pdf 
(December 6, 2004).


cannot participate in Council deliberations at any level and has no veto over the 
decisions of the GAERC. 
In addition to common strategies, joint actions, and common positions, 
CFSP deliberations may result in Declarations by the EU Council or Presidency 
or in Conclusions by the GAERC on particular issues. Although these 
supplemental instruments have been used continuously since the days of EPC, 
they are not mentioned in the Treaty on European Union and are thus politically 
(but not legally) binding on the member states. Like the CFSP's legal 
instruments, the adoption of the political instruments requires the unanimous 
support of the member states. In the following pages, the five CFSP instruments 
(legal and political) are referred to as "common policies."
This catalogue of policy instruments and decision-making processes 
demonstrates the formal dominance of member states and unanimity voting in 
the CFSP. With the exception of measures taken to implement common 
strategies, all CFSP instruments require unanimous support and are thus subject 
to veto by a single member state. Even where qualified majority voting is 
permitted, an individual member state may block it if they argue that the policy in 
question impinges upon important national interests. If a member state does so, 
the Council may decide by qualified majority to refer the matter to the European 
Council for a unanimous decision by heads of state and government. It is 
therefore hardly surprising that some skeptics of CFSP view it as a "European 
rescue" of national foreign policy (Allen 1996; see also Koenig-Archibugi 2004b).


By general agreement among the member states, the CFSP does not 
apply to issues that are especially sensitive to a particular member state 
(generally for historical or geographic reasons), though this domaine réservé has 
contracted over time (M.E.Smith 2004). When issues are under consideration in 
forums where all the EU member states are not represented, such as the G-8 or 
the UN Security Council, member states participating in these forums are 
expected to take account of existing EU positions and to inform their EU partners 
about the deliberations.
The EU Constitutional Treaty that was signed in Rome in October 2004 
maintains member states' rights to abstain from voting on common policies that 
they do not wish to support, and thus facilitates the adoption of common policies 
in the absence of unanimous support. However, the Constitution would not 
prevent an individual member state from exercising a veto over the Union's 
foreign and defense policy when it so desired, nor would it transfer significant 
authority in this area to supranational bodies such as the Commission or 
Parliament. In a White Paper on the new Constitution, the British government 
commented, "When we don't agree, there is no common policy." 
Given these rules, salient outcomes for EU foreign policy include the 
status quo, lowest common denominator, and compromise. A status quo 
outcome could reflect a shared preference among the member states not to 
adopt a common policy on the issue at hand, or a failure to agree on a common 
policy, or a failure to agree to change an existing common policy. (In any of these 
cases, member states retain the right to act independently or in small groups.) A 
lowest common denominator policy would reflect convergence around the policy 
preference of the member state that is least receptive to change. A compromise 
policy would reflect mutual concession by the member states with the most 
extreme preferences.

Part II. Theories of EU Foreign Policymaking
This section of the paper introduces two theories of CFSP policy-making 
based upon distinct approaches to European integration and international 
relations: Intergovernmentalism and Institutionalism. One views the European 
Union as an intergovernmental forum for bargaining among sovereign states 
unencumbered by supranational institutions, sub-state or non-state actors, while 
the other views the EU as a multi-level polity in which a society of states is 
nested within a transnational society of supranational institutions, sub-state and 
non-state actors whose dynamics exert significant effects on the behavior of the 
member states. Following discussion of both theories, Table 2 summarizes their 
key elements. 

Intergovernmentalism
The intergovernmentalist theory of CFSP is based on theories of 
European integration that portray the European Union as a forum for bargaining 
between member states (Hoffmann 1966; Grieco; 1988; Moravcsik 1993 & 
1998). As a theory of EU foreign policy, it assumes that neither supranational nor 
non-state actors exert any direct and significant influence over policy outcomes; 
instead, it explains policy outcomes in terms of the rational or self-interested 
calculations of the member states (Hill 1983). The key decision-makers are 
assumed to be national executive authorities (typically prime ministers and 
foreign ministers); neither lower-ranking national officials nor supranational 
officials nor non-governmental actors are assumed to exercise any significant 
power over national preferences or Union-level outcomes. Similarly, the theory 
assumes that each member state's participation in the CFSP process is driven by 
its national interests, and that its preferences with respect to any given policy 
issue are determined independently of interactions or negotiations at the EU 
level. The theory would be agnostic, however, with respect to whether member 
state preferences are shaped by the strategic calculations of national executives 
(as assumed by Realist approaches to international relations) or by domestic 
structures, lobbies and public opinion (as assumed by Liberal approaches) 
(contrast Mastanduno, Lake and Ikenberry 1989 and Moravcsik 1993). 
According to the intergovernmental theory, the dominant dynamic in EU 
foreign policy-making is bargaining among the member states within constraints 
established by the formal rules of CFSP. The theory views the rules as 
reflections of the long-term self-interested calculations of the member states that 
created them, and does not attribute to them any influence over the identities, 
interests or preferences of the member states themselves. Intergovernmentalist 
theory thus asserts that EU foreign policymaking is dominated by the preferences 
of the member states and by the formal rules that they have established to 
govern the CFSP. 
Given the aforementioned assumptions, and the fact that CFSP decision-
making proceeds formally on the basis of unanimity, the intergovernmental 
theory generates three expectations. First and foremost, if one of the member 
states prefers the status quo over all alternatives, then it will block any changes 
proposed by other member states. As a result, the EU will often fail to adopt 
common policies, even on issues that all member states consider to be very 
important.
Second, when member states do agree on a common policy, its content is 
most likely to be determined by the lowest-common denominator, meaning the 
preference of the member state least interested in change. This expectation 
derives from the fact that every member state has a veto over the adoption of 
any common policy, and the assumption the most conservative member state will 
veto (or simply threaten to veto) any proposed policy that is further from the 
status quo than its own ideal policy. Alternatively, the EU may adopt a common 
policy that simply confirms or reiterates the status quo
Third, individual member states will take an exploitative approach to 
whatever common policy is adopted, complying with its basic terms while 
exercising whatever leeway it allows for them to pursue their own interests. This 
expectation derives from the dual assumption that that member states' interests 
and preferences are unaffected by the rules or process of CFSP but that a 
common policy would not be adopted if any of the member states found it less 
preferable than the status quo. 

Institutionalism
The institutionalist theory of CFSP draws on sociological institutionalist 
and constructivist approaches to European integration (Risse-Kappen 1996; 
J?rgensen 1997a; Diez and Whitman 2002; Checkel 2003) and world politics 
(Finnemore 1996; Katzenstein 1996; Johnston 2001). It emphasizes the social 
construction of foreign policy identities, interests and preferences within the EU, 
which is assumed to have characteristics of both international and transnational 
society. The theory thus focuses on entrapment, socialization, and shaming as 
critical determinants of policy-making within the Union. In this sense, the 
institutionalist theory takes seriously the distinction between nation-states and 
member-states (Sbragia 1994).
The institutionalist theory of CFSP also conceives of the EU as a multi-
level polity involving intergovernmental, transgovernmental and transnational 
levels of policy formation (Marks, Hooghe, Blanks 1996; Pollack and Shaffer 
2001). As a result, the theory attributes a potentially significant role to 
supranational actors (such as the European Commission and European 
Parliament), sub-state actors (such as staffs from the national foreign ministries), 
and non-state actors (including media, lobbies and NGOs).
With respect to the intergovernmental level of CFSP, institutionalist theory 
asserts that the impact of EU rules and institutions cannot be reduced to the 
exogenous interests or preferences of the member states (Sandholtz 1996; 
Lewis 1997 & 2003; Haas 2004). In particular, the theory emphasizes two 
mechanisms by which participation in EU institutions over time systematically 
transforms how member states perceive and pursue their interests. First of all, 
the CFSP process has generated a set of public commitments to certain policy 
goals that constrain the ability of individual member states to pursue divergent 
preferences with respect to particular choices. In order to pursue divergent 
preferences, a member state must run the risk that domestic public opinion would 
not appreciate the departure from prior commitments and be willing to suffer the 
resentments of other member states that made concessions to achieve the 
original collective commitment. In short, member states find themselves 
entrapped by their prior political commitments (Schimmelfennig 2002). The 
acquis politique thus functions as a powerful counterbalance to the formal 
possibility of unit veto under the unanimity rule for CFSP (Young 2000). 
Furthermore, CFSP and the EPC process that preceded it have 
'Europeanized' foreign policy professionals from the member states and 
generated consensus-oriented procedural norms for CFSP decision making. In 
particular, an informal CFSP norm has developed incrementally since the days of 
EPC indicating that member states should seek to develop a common policy on 
issues of great significance and that all are expected to compromise to achieve 
that end (J?rgensen 1997b; Regelsberger 1997; M.E. Smith 2004a, chap.7). As 
a result, notwithstanding a member state's preferences with regard to a particular 
policy issue, it will be reluctant to 'break ranks.' Taken together, these factors 
increase the value that EU member states attach to achieving and maintaining 
common policies. 
The transgovernmental level involves "sets of direct interactions among 
sub-units of different governments that are not controlled by the policies of 
cabinets or chief executives of those governments" (Keohane and Nye 1974:43). 
In CFSP, this involves contacts between expert staff from the national foreign 
ministries, the Council's CFSP secretariat and the Commission's Directorate 
General for External Relations, which occur both informally and through meetings 
of the Council's many specialized working groups, such as COASIE (dealing with 
policy toward Asia) or COHOM (dealing with policy on human rights). Through 
these contacts, EU foreign policy experts at the working level become a distinct 
transgovernmental community with shared policy preferences (perhaps based on 
a shared identity) that differ from those of the member states or institutions that 
they represent.
	Finally, the transnational level involves interactions across national 
borders between non-state and state or supranational actors (Keohane and Nye 
1973, Risse-Kappen 1995). In CFSP, this typically involves exchanges of ideas 
and information between non-governmental organizations and policy lobbies on 
the one hand, and the staff of national foreign ministries or the EU's 
supranational institutions, on the other. These exchanges may coalesce into de 
facto "transnational advocacy networks" on CFSP through which supranational, 
sub-state and non-state actors together advance a shared agenda (Keck and 
Sikkink 1998). Finally, the transnational level of CFSP policy formation also 
involves the ability of European media to publicize policy deliberations before 
they are complete, and thus to increase public pressure on decision-makers.
	Given the aforementioned assumptions, the institutionalist theory of EU 
foreign policymaking generates three expectations that contrast directly with 
those of intergovernmental theory. First and foremost, individual member states 
will be reluctant to pursue policy preferences that could undermine the 
achievement of consensus within the Council. Moreover, the member state 
holding the EU presidency will refrain from pursuing its own preferences and 
instead engage in consultations designed to identify a possible consensus 
(Forwood 2001). As a result, the EU will often succeed in adopting common 
policies despite wide divergences among member states' preferences.
	Second, the content of EU common policies is likely to reflect a significant 
compromise among member state preferences, rather than the lowest common 
denominator. This expectation derives from the assumption that while every 
member state has a veto over the adoption of any common policy, CFSP norms 
of consensus and compromise will lead them to value EU unity as much as their 
own preferences on the issue at hand. This expectation will only apply when 
issues are raised in the institutional context of CFSP; if not, lowest common 
denominator outcomes are likely.
Third, once a common policy is adopted through CFSP, member states 
will comply with its terms and hesitate to exploit whatever leeway it allows for 
them to pursue divergent interests. This expectation derives from the dual 
assumption that achievement of a common policy reflects a shared commitment 
to EU unity and the integrity of the CFSP process, and that a member state 
whose foreign policy behavior appears inconsistent with the spirit of a common 
policy would be subject to social sanctions (criticism, isolation, etc.) from other 
member states.
-- Table 2 about here --

In short, intergovernmental and institutionalist theories of EU foreign 
policymaking generate distinct policy expectations that can be evaluated 
empirically. The intergovernmental theory suggests that the EU will either fail to 
adopt common policies, adopt a common policy that confirms the status quo, or 
adopt a common policy that reflects the preference of the most conservative 
member state. It also suggests that member states will take an exploitative 
approach to whatever common policy is adopted. In contrast, the institutionalist 
theory suggests that the EU will adopt common policies that reflect a 
compromise among member state preferences, and will then seek to comply with 
its letter and spirit.

Part III: Background to the EU-US Clash over the ICC
One of the most politically sensitive issues on the CFSP agenda in recent 
years has been how to respond to the United States' campaign for immunity from 
the International Criminal Court (ICC) – an institution that the EU and its member 
states strongly support. This section of the paper outlines the evolution and 
stakes of the EU-US dispute over the Court and the challenge it posed to CFSP. 
It then summarizes the two theories' expectations with regard to how the EU
Table 2: Theories of EU Foreign Policy-Making



Intergovernmentalism


Institutionalism
Explanatory logic
Rationalist
Constructivist
View of EU
Forum
Multi-level polity
View of member state's 
preferences
Exogenous
Endogenous
Institutional condition
None
Council/CFSP
Key actors
National executives (heads 
of Government and foreign 
ministers of member 
states)
Supranational actors 
(Commission, European 
Parliament); national 
participants in CFSP 
bodies; national 
parliaments; NGOs; 
media
Key rules
Treaty rules
Informal norms
Key dynamics
Bargaining
Socialization, agenda 
setting, entrapment, 
shaming
Expected EU policy 
outcome
No common policy, status 
quo policy, or lowest 
common denominator 
policy
Compromise policy
Expected member state 
approach to EU 
common policies
Exploitative
Compliant




would respond to US campaign for ICC immunity within the United Nations 
Security Council and then through bilateral agreements. In the process, it refers 
to the adoption of several CFSP instruments (common positions, joint actions, 
and declarations) during 2001-02 which elicited little controversy among the 
member states and are thus not analyzed here in detail.
The ICC is the world's first permanent court designed to ensure individual 
accountability for the most serious crimes under international law: genocide, war
crimes, and crimes against humanity. It was established by the Rome Statute of 
1998, which entered into force on July 1, 2002. At present, 139 states have 
signed the Statute and 97 have ratified it. In addition to the list of crimes, the 
ICC's jurisdiction is limited in a number of ways: the crime in question must have 
been committed after the Statute entered into force; the crime must have been 
committed on the territory of a state that accepts the jurisdiction of Rome Statute 
or by a national of such a state; the ICC may act only when national courts are 
"unwilling or unable genuinely to carry out the investigation or prosecution" (the 
principle of complementary jurisdiction); and the United Nations Security Council, 
acting under Chapter VII of the UN Charter, may defer cases for 12 months, 
renewable indefinitely. The ICC's eighteen judges, as well as the prosecutor and 
deputy prosecutor, are elected by the Assembly of States Party to the Statute. 
The Court's procedures are consistent with international legal standards.
	The European Union has long supported the creation and functioning of 
the ICC, which is widely seen in Europe as a desirable (if limited) solution to the 
problem of impunity for international crimes. The EU's member states played a 
central role in the "group of like-minded states" that pushed for a strong and 
effective ICC during the Rome negotiations (Benedetti and Washburn 1999; Fehl 
2004). Since then, every EU member state has signed and ratified the Rome 
Statute, and most have adopted the necessary implementing legislation. The fact 
that these ratifications and legislative changes have been accomplished with 
strong support from both governing and opposition parties shows that the ICC 
enjoys broad popular support across Europe. Eight of the member states have 
contributed funds to the global non-governmental Coalition for the ICC. 
 	Echoing this sentiment, EU Commissioner for External Relations Chris 
Patten declared, "In the twenty-first century, potential tyrants and mass 
murderers will know in advance that the international community is prepared to 
hold them accountable for massive violations of human life and dignity. It is our 
belief and our hope that this awareness will help reduce the frequency and the 
severity of such crimes. But when it does not, and the relevant national legal 
authorities are unwilling or unable to act, the international community will have in 
place a complementary system of criminal justice that is fair, transparent and 
effective."  Between 1995 and 2003, the European Commission's European 
Initiative for Democracy and Human Rights provided approximately € 13 million 
to the Advance Team setting up the ICC in The Hague, to the NGO Coalition for 
the ICC and other initiatives around the world that promote the ratification of the 
Rome Statute or the good functioning of the Court.  Within the European 
Parliament, overwhelming majorities have repeatedly supported pro-ICC 
resolutions, and individual MEPs have championed the issue in public forums 
(e.g., Bonino 1998).
In contrast, the United States has never embraced the ICC. Although 
American negotiators achieved many of their objectives during the Rome 
negotiations (including the principle of complementary jurisdiction and the right of 
the Security Council to defer cases), the US was one of seven countries to vote 
against the Statute in 1998. The following year, the US Congress passed a law 
prohibiting the use of government funds to support the ICC, denying legal effect 
to ICC jurisdiction within the United States unless the US becomes a party to the 
Rome Statute, and barring extraditions of US citizens to third countries unless 
they agree not to surrender them to the ICC.  President Clinton signed the ICC 
Statute three weeks before leaving office, but indicated to the Senate that he did 
not recommend ratification until further changes were made (Clinton 2001). 
With the transition from the Clinton to the Bush Administration, US 
ambivalence toward the Court was replaced by rejectionism. John Bolton, who 
had argued for years that the ICC was inconsistent with the US Constitution and 
a threat to US sovereignty, was named Under Secretary of State for International 
Security Affairs (see Bolton 1998/99). In May 2001, House of Representatives 
Majority Leader Tom Delay introduced the American Service-members' 
Protection Act (ASPA), which would prohibit cooperation with the ICC by any US 
agency or official, require the US to pursue ICC exemption for US participants in 
UN peacekeeping missions, prevent the transfer of US intelligence information to 
the ICC, prohibit US military aid to any States party to the ICC, and authorize the 
use of "all necessary means" to obtain the release of any American held by the 
ICC.
	Not surprisingly, the ASPA was seen in Europe as a legislative assault 
on the good functioning of the ICC. The bill's threatened cut-off of US military aid 
was a powerful instrument, certain to influence the ICC policies of the many 
states around the world that depended on such assistance. Its "all necessary 
means" clause was also particularly worrisome to the Netherlands, on whose 
territory the ICC would be located. European critics of the proposed law began to 
call it the "Hague Invasion Act."
Faced with such a clear challenge to an institution that it supported, and 
absent any significant dissension among the member states, the EU had little 
trouble achieving a unanimous response through CFSP. In June 2001, the EU 
issued its first Common Position on the ICC, which began, "The principles of the 
Rome Statute of the International Criminal Court, as well as those governing its 
functions, are fully in line with the principles and objectives of the Union." The 
Common Position also expressed the EU's full support for the early 
establishment of the Court, indicated that the EU and its member states would 
encourage other states and international organizations to support the ICC, and 
encouraged the Bush administration to cooperate with the ICC as well. 
In the spring of 2002, as it became apparent that the sixty ratifications 
necessary for the Rome Statute to enter into force would soon be achieved, the 
Bush Administration launched a diplomatic campaign to ensure that the ICC 
would not affect Americans or the United States government. On April 11, the US 
boycotted a special ceremony at the UN for the ten countries whose deposit of 
instruments of ratification would make the ICC a reality.  Several weeks later, the 
US government announced that it did not intend to ratify the Rome Statute and 
thus did not consider itself bound to comply with its provisions. In addition, senior 
administration officials expressed a strong commitment to ensuring that US 
officials and military personnel would never be subject to the new Court. 
In response, the EU once again achieved easy unanimity under CFSP in 
support of a declaration that criticized Washington's repudiation of the ICC 
Statute as unwarranted and damaging to international law and reiterated the 
EU's commitment to ending impunity for individuals who commit the most serious 
international crimes.  As the ASPA legislation moved through the US Congress, 
Europeans expressed growing concern about its authorization of "all necessary 
means" to obtain the release of Americans held by the ICC. A London newspaper 
asked if Bush would invade England.  The Dutch parliament passed a resolution 
expressing its concern about the ASPA bill, which it considered "detrimental to 
transatlantic relations."  
	On June 17, the EU Council adopted Conclusions criticizing the ASPA 
legislation. Three days later, the EU adopted an Action Plan detailing its 
initiatives in support of the ICC, as well as a revised version of its Common 
Position on the ICC emphasizing the diplomatic and technical assistance it would 
provide to advance the good functioning of the Court. On June 23, the EU 
Presidency and the Commission expressed concern about the APSA in joint 
letters delivered to the US Senate and House of Representatives. On July 4, the 
European Parliament added its voice to this chorus of disapproval. 

Part IV: Two Case Studies
Up to this point, the course of the EU-US dispute over the ICC reflects the 
EU's easy adoption of common policies under CFSP when the member states' 
preferences are similar or identical. Though useful as background, this pattern is 
neither surprising nor incompatible with either of the theories presented in Part II. 
The real challenge for EU foreign policy cooperation, and thus the more 
interesting test for the intergovernmental and institutionalist theories, is what 
happens in the face of divergent member state preferences. The following 
analyses of the next two stages in the EU-US dispute over the ICC constitute 
case studies of this sort. As indicated earlier, the first case occurred outside 
CFSP (where we would expect the process and outcome to fit the 
intergovernmental theory), and the other inside (where they could fit either 
theory).



Case 1: ICC Immunity for UN Peacekeepers
The EU maintained its unity when Washington first took its anti-ICC 
campaign to the United Nations. Barely a week after renouncing its signature of 
the Rome Statute, the US threatened to veto renewal of the UN's East Timor 
mission if the Security Council did not grant ICC immunity to international military 
and civilian personnel serving there. Although the US presence in East Timor 
was small (three unarmed military observers and about eighty police officers), a 
veto of the entire UN mission could have jeopardized stability on the newly-
independent island. France and the United Kingdom lobbied against the US 
proposal. After failing for several days to gain the support of any other Security 
Council member, Washington decided to set aside its threatened veto. 
Six weeks later, though, on the same day that the Rome Statute entered 
into force, the US again signaled its opposition to the ICC by simultaneously 
withdrawing its three soldiers from East Timor and vetoing an extension of the 
mandate for the UN Mission in Bosnia-Herzegovina. In Europe, the American 
moves were seen as a challenge to the EU's commitment to defend the integrity 
of the Rome Statute, and to its concrete interest in the security and stability of the 
Balkans.  The US then proposed two alternative resolutions: one would have 
extended immunity only to peacekeepers deployed in Bosnia, while the second 
would have covered all peacekeepers involved in operations authorized or 
mandated by the UN. In response, France's UN ambassador argued that the 
Rome Statute allowed the Security Council to defer ICC investigations on a case-
by-case basis when they would interfere with the Council's efforts to negotiate a 
peace agreement, but that the Statute was never designed to provide sweeping 
immunity from prosecution.  
	France, the United Kingdom, and Germany (then a rotating member of the 
Security Council) rejected both American proposals. Fearing that the Security 
Council standoff could threaten the continuity of the UN's Mission in Bosnia, EU 
officials began preparing to replace it with EU forces, while Britain's UN 
ambassador prepared a resolution that would authorize the hand-over.  
Meanwhile, EU Commissioner Chris Patten again pleaded publicly for the US to 
reconsider its policy, which he said threatened international security and 
contradicted long-standing American support for human rights.  This time, 
though, the Bush Administration did not relent in its quest for a UN Security 
Council resolution that would grant ICC immunity to UN peacekeepers. 
	The difficulty for the EU was that while all its member states opposed the 
US campaign, they did not all agree on how to respond. Germany favored an 
unequivocal rejection of Washington's demand, which it believed would 
compromise both the UN Charter and the Rome Statute.  On the other hand, 
while Tony Blair's government had always been a strong supporter of the ICC, it 
began to reinterpret that position to accommodate its 'special relationship' with 
Washington. The US initiative also placed France in an awkward position: 
despite having signed and ratified the Rome Statute, France was the sole EU 
member to take advantage of Article 124, which permits states to exempt their 
nationals from the ICC's jurisdiction over war crimes (but not genocide or crimes 
against humanity) for a seven-year period beginning with the Statute's entry into 
force. With the UK showing sympathy for the US's legal claim that as a non-Party 
to the ICC it should not be subject to the Court's jurisdiction, EU member state 
positions began to diverge.
Given that this stage of the EU-US dispute concerned votes in the UN 
Security Council, where only a few EU members had seats, consultations 
between France, Germany and the UK did not lead to discussion of a common 
EU policy within CFSP. As a result, the informal norms and transgovernmental 
channels of CFSP were not engaged, supranational actors were marginalized, 
and NGOs had little opportunity to mobilize. In addition, as president of the UN 
Security Council at that time, the UK had special responsibilities beyond its 
membership in the EU. In such circumstances, the previous Common Positions 
on the ICC offered little precedent for the policy choices of the three EU states 
involved.
	Not surprisingly, the outcome was consistent with the expectations of the 
intergovernmental theory. At an open meeting of the Security Council on July 10, 
Denmark's representative spoke for the EU presidency, praising the ICC as "a 
major leap forward in the development of international law," suggesting that it 
was "understandable that the United States was seeking protection from 
politically motivated prosecutions," and arguing that "those concerns had been 
met and sufficient safeguards against such accusations had been built into the 
Statute."  This much was consistent with the general Common Positions on the 
ICC that the EU had unanimously agreed in June 2001 and June 2002.
With respect to the specific issue on the table, though, the lowest common 
denominator position was an alternative resolution prepared by the UK that 
would limit ICC immunity for UN peacekeepers to one year and to the armed 
forces of States that were not Party to the Rome Statute.  Anxious to maintain 
EU unity on the issue, Germany and France compromised and agreed to support 
the British proposal. Faced with European unity in opposition to its demands, 
Washington accepted the British proposal as well.
	On July 12, 2002, the Security Council voted unanimously in favor of 
Resolution 1422, giving peacekeepers from non-ICC party states immunity from 
the Court through June 30, 2003. In the end, the resolution conceded more to the 
US than some EU member states would have preferred, but fell far short of the 
broad and permanent immunity sought by Washington. As one Security Council 
diplomat put it, "The Europeans dug in their heels and said you are undermining 
something that is fundamental to us… The Americans blinked." 

Case Study 2: Bilateral Agreements on ICC Immunity 
	While the negotiations over the Security Council resolution were still going 
on in June 2002, US Secretary of Defense Donald Rumsfeld announced that 
Washington also intended to pursue bilateral agreements with governments 
around the world to protect US citizens, government officials, military personnel 
and other employees from surrender to the ICC.  Speaking off the record, 
though, members of the administration conceded that their real goal was to 
protect senior US officials, whom they considered to be most at risk. 
	Such agreements, US officials argued, would be consistent with Article 98 
of the Rome Statute, which addresses potential inconsistencies between 
obligations created by the Statute and those created by other international 
agreements. US officials thus typically referred to them as "Article 98 
agreements" or "non-surrender agreements." In contrast, most Europeans and 
most ICC experts (including David Scheffer, the chief American negotiator of the 
Rome Statute) argued that Article 98 had been crafted to accommodate Status of 
Forces agreements and extradition treaties that were already in effect when the 
Statute entered into force, not to facilitate new agreements to limit the jurisdiction 
of the new Court (Scheffer 2002). They began referring to the US pursuit of 
"immunity agreements" or even "impunity agreements."
Most EU leaders saw the proposed bilateral agreements as the latest US 
challenge to the integrity of the Rome Statute and thus to the good functioning of 
the ICC itself. Unlike the UN resolution, these agreements fell clearly within the 
policymaking scope of the CFSP. However, more was at stake than simply the 
EU's commitment to the ICC. Denying the US request could provoke a further 
confrontation with Europe's most important ally and the world's only superpower. 
In addition, there was real tension between the EU's public commitment to 
support the ICC and its general commitment to international law, which 
traditionally limits the jurisdiction of international treaties to states that have 
accepted them. The issue also engaged the long-standing division between the 
EU's more "Atlanticist" and "Europeanist" member states. Finally, as the weeks 
passed, the ICC immunity issue began to overlap with the controversial 
diplomatic and then military build-up to the invasion of Iraq, over which the EU 
was increasingly divided. A common EU policy on ICC immunity agreements for 
the United States in mid-late 2002 was thus no easy matter for CFSP.
	In response to direct overtures from Washington, Berlin announced on 
July 23 that it could not consider US requests for bilateral agreements until the 
entire EU had deliberated on a common policy. This announcement, which 
effectively set the CFSP process in motion, was a major setback for the US, 
which had hoped that a positive response from Germany would set an example 
across Europe.  Three days later, the Council's Political and Security Committee 
(PSC) discussed the matter, and agreed to inform Washington that the EU 
remained committed to its Common Position to support the ICC and to preserve 
the integrity of the Rome Statute, and that it could not reply further to the US 
request until it completed an in-depth analysis.  This procedural agreement 
reinforced that salience of the existing Common Position as precedent for the 
issue of bilateral agreements.
	In early August, the European Commission got involved in the issue. In its 
role as the EU's negotiator with candidate member states, the Commission had 
been asked by candidate states whether the EU would consider a bilateral 
agreement with Washington to be consistent with the requirements of the Rome 
Statute. Upon the request of Commission President Romano Prodi's office, the 
Commission's Legal Service prepared a written opinion on August 13 stating 
clearly that such agreements were inconsistent with the Rome Statute itself and 
with the commitment to support the effective functioning of the ICC that the EU 
had agreed and expressed in two Common Positions.  Based on this opinion, 
which was well received by Prodi's office, the Commission strongly advised 
candidate states that they should refuse to sign a bilateral agreement with the 
US.
	The Commission opinion was also circulated to the member states 
through the EU's confidential Coreu message system. All recognized that the 
opinion was potentially of great significance. If the EU were to translate its logic 
directly into a common policy, none of the fifteen member states -- all of whom 
had ratified the Statute -- would have been able to reach bilateral agreements 
with the US. This in turn would have undermined Washington's efforts to 
convince other states around the world to sign such agreements.
	Many of the EU member states were already sympathetic to the position 
expressed by the Commission, but others appreciated the clarity of its argument 
on this emerging issue. Another factor was the automatic sympathy that the 
smaller member states have for the Commission's Legal Service, which they 
tend to regard as protective of their interests through its commitment to European 
and international law. However, the member states were not unanimous in this 
view. Perhaps because some were fearful of the opinion's potential 
consequences for the issue at hand, or perhaps simply because they resented 
the Commission's assertiveness on a CFSP issue, they told the Commission in 
no uncertain terms that it had overstepped its competence. The Commission 
responded by keeping a low profile during the CFSP deliberations over the next 
six weeks, but its Legal Service's opinion continued to influence the process. 
	The US government also learned of the Commission opinion, which 
contributed to its growing awareness that opposition to the quest for bilateral 
agreements was mounting in Europe. Three days after the Commission opinion 
was released, US Secretary of State Colin Powell wrote to a number of his 
European counterparts recommending that they not wait for a common EU 
position and threatening that failure to sign bilateral agreements could have 
negative consequences for the United States' role in European security.  
Powell's demarche was seen in EU capitals as heavy-handed interference, and 
stiffened the resolve of some member states to resist American overtures. 
On the other hand, Washington's anti-ICC campaign succeeded in its goal 
of forcing EU member states to balance their commitment to support the Rome 
Statute against their desire to avoid a major trans-Atlantic dispute. As one EU 
diplomat explained, "We are coming under huge pressure from Washington. All it 
takes is one member state to give in and it undermines the credibility of the 
ICC."  Given that the EU had just updated its Common Position on the ICC two 
months earlier, he could have added that a failure of EU unity would undermine 
the credibility of the CFSP as well.
	By late August, only Israel, Romania, East Timor and Tajikistan had 
signed bilateral immunity agreements with the US. But given the global spread of 
Washington's campaign on this issue, it seemed to be only a matter of time 
before other governments signed as well. The formerly Communist states of 
Central and Eastern Europe, which wanted to become members of both NATO 
and the EU, found themselves caught between American and European 
preferences. "I can't remember anything they put so much weight or interest 
into," Romania's foreign minister said of the US campaign.  In an effort to 
forestall this eventuality, the EU presidency instructed all EU candidate states 
(including Romania, whose Parliament had not yet ratified the government's 
signature) that it disapproved of signing bilateral accords in the absence of an 
agreed EU policy.
The existence and content of the Commission's legal opinion leaked to the 
press at the end of August, just two days before the EU foreign ministers were 
scheduled to discuss the issue.  With a Financial Times headline declaring 
"Bilateral pacts with US a violation, says EU," the foreign ministers were no 
longer able to assume that their deliberations would go unnoticed by national 
parliaments and publics who supported the ICC. The fact that the legal opinion 
had been drafted by the European Commission, and not the EU Council, would 
make little difference to most readers. Human rights NGOs stepped up their 
pressure on the EU for a negative answer to Washington. A flexible EU policy on 
bilateral agreements was thus framed in public discourse as illegal before the 
member states even began to negotiate.
	Among the EU member states, Germany remained outspoken in its 
opposition to the US request, and was supported in this position (to varying 
degrees) by Austria, Belgium, Finland, France, Greece, Ireland, Luxembourg, the 
Netherlands, and Sweden. Their opposition was motivated both by a principled 
rejection of American exceptionalism with regard to international law and a 
practical concern that granting special immunity to the US would defeat the 
purpose of the ICC by inviting other states around the world whose judicial 
systems were far less protective of human rights to seek immunity for themselves 
as well. If EU member states signed immunity agreements with the US, they 
feared, it would be politically difficult, if not impossible, to refuse similar requests 
from others. 
On the other side of the debate, Italy and the United Kingdom openly 
favored a more flexible response to Washington that would permit bilateral 
agreements, and were supported (to varying degrees) by Denmark, Portugal and 
Spain. As they saw the issue, the US plays a unique role in maintaining 
international peace and security, so its concerns about the ICC must be 
addressed.  As the foreign ministers prepared for their meeting at Elsinore on 
August 31, the question was whether the minority of member states that favored 
a flexible response to Washington could trump the majority of member states, 
supported by the European Commission, the European Parliament, and an 
attentive public, which all favored a negative response.
If the logic of the intergovernmental theory prevailed, those who favored a 
flexible response should have been able to deny any EU policy that did not meet 
their preference. Their knowledge that most of the members favoring a negative 
response to Washington also valued EU unity on this issue would only 
strengthen the bargaining position of the "flexible" camp. For example, while 
Swedish Foreign Minister Anna Lindh feared that accommodating the US would 
undermine the Court, she openly concluded that "the most important thing is that 
the EU stick together." 
On the other hand, there were powerful pressures on London and Rome 
to compromise their positions: both governments had already alienated many of 
their EU counterparts with their support of US policy on Iraq and thus could have 
been expected to seize the high-profile ICC issue as an opportunity to comply 
with the EU's written and unwritten rules that encourage member states to reach 
consensus under CFSP. Despite these pressures, the Italian and British foreign 
ministers made clear to their EU colleagues at Elsinore that unless the EU found 
a way to accommodate US concerns in its common policy, Rome and London 
would break ranks and sign agreements with Washington.  These threats thus 
appear to reflect real policy preferences and intentions on the issue at hand.
	At the end of the Elsinore meeting, the foreign ministers announced that 
they had agreed to pursue a common response to Washington that would 
maintain the integrity of the Rome Statute and respond constructively to US 
concerns within that framework.  Amnesty International responded by slamming 
Italy and the UK for taking positions that threatened the Rome Statute, but the 
theoretical significance of this initial compromise are about as unclear as the 
policy implications were to most observers at the time.  If the first part of the 
agreement were to win out, it would be consistent with the compromise policy 
expectation of the institutionalist theory. If the second part were to win out, it 
would lend credence to the lowest common denominator expectation of the 
intergovernmental theory. The CFSP policymaking process then began working 
to translate the awkward Elsinore compromise into an EU policy that every 
member state could accept.
The first formal step in this process was a meeting in Brussels of COJUR, 
the Council's working group on public international law. Although COJUR is 
normally composed of the foreign ministers' chief legal advisors, this meeting 
involved COJUR's ICC sub-group, which had been created earlier to handle the 
growing volume of ICC-related work in CFSP. The members of the sub-group 
knew each other well and communicated on a regular basis. Many had been their 
governments' chief negotiator of the Rome Statute, and all were experts on the 
ICC. As a result, every member was personally committed to the ICC: regardless 
of their governments' position on bilateral agreements, most considered the US 
quest for immunity to be an assault on the Court. 
Before COJUR convened, though, the Danish foreign ministry, which then 
held the EU's rotating presidency, consulted intensively with its fourteen 
counterparts regarding what they could and could not support. Despite the 
Elsinore compromise and the presidency's consultations, the COJUR meeting 
was contentious. Not surprisingly, the UK and Germany led the arguments for 
and against a flexible response to Washington's request.  In the end, COJUR 
agreed on the basic elements of a common EU policy that they would 
recommend to higher levels in the CFSP hierarchy. As Germany was insisting, 
they agreed that the draft agreement proposed by Washington was incompatible 
with the obligations imposed by the Rome Statute, which would effectively 
prohibit any EU member state from signing the text that US officials were 
circulating. On the other hand, the COJUR framework included four points that 
were closer to the conditions preferred by the UK: new bilateral agreements were 
permissible under Article 98; such agreements could not allow impunity for those 
exempted from ICC jurisdiction; they could only cover military personnel and 
officials; they could not cover citizens of a State Party to the Statute. 
	While the Council was deliberating under CFSP, other European 
institutions expressed their views on the issue. The Parliamentary Assembly of 
the Council of Europe passed a resolution declaring that the agreements 
proposed by Washington were incompatible with the Rome Statute and calling 
upon Council of Europe members (which included all the EU member states) not 
to sign such agreements. The following day, the European Parliament adopted a 
resolution expressing its view that signature of an agreement that undermines 
the effective implementation of the Rome Statute was incompatible with EU 
membership.  The White House's release of its new National Security Strategy 
of the United States of America, which included an explicit rejection of the ICC as 
a Court whose jurisdiction the US does not accept, only strengthened the 
convictions of the anti-flexibility camp. 
The EU Presidency then prepared an elaborated version of the COJUR 
recommendations, which its legal experts discussed with their U.S. counterparts 
in late September.  (This followed a meeting at the UN General Assembly 
meeting in New York earlier in the month, where senior EU officials exchanged 
views on the issue with Secretary of State Colin Powell.) The Presidency's draft 
was debated and approved by PSC on September 25 and 27. After approval by 
COREPER later on the 27th, the draft Council Conclusions were finalized by the 
PSC on September 30, just hours before the meeting of the General Affairs 
Council.
Although Germany had initiated the process of developing a common EU 
policy on the bilaterals, its government reportedly hesitated as the policy took 
shape. Foreign Minister Joschka Fischer was deeply committed to the ICC and 
reluctant to endorse a policy that could be seen to authorize actions that, in his 
view, would weaken the Court. Germany's representative to COJUR's ICC sub-
group, Hans-Peter Kaul, then spoke with Fischer. The draft EU deal was closer 
to Germany's position than Fischer may have realized, Kaul indicated. If Fischer 
insisted on his position, London and/or Rome were likely to refuse to renegotiate. 
The resulting collapse of EU unity in the face of Washington's global campaign 
would be worse for the ICC than a compromise agreement. Fischer relented and 
the CFSP process continued. 
In its September 30 meeting, the General Affairs Council issued the EU's 
policy on bilateral agreements in the form of Conclusions that reaffirmed the EU's 
support for the effective functioning of the ICC and expressed its belief that the 
Rome Statute provided all the necessary safeguards against the use of the Court 
for politically motivated purposes. In addition, the Conclusions signalled the 
readiness of EU Member States to discuss with the US how its concerns could 
be accommodated within existing agreements. Finally, the Conclusions included 
a set of EU Guiding Principles to guide any State Party to the Rome Statute 
(including but not necessarily limited to the EU's member states) that wishes to 
reach an arrangement regarding the conditions of surrender of persons to the 
ICC. 
Notwithstanding Danish Foreign Minister Per Stig Moller's insistence that 
there was "no concession… no undermining of the ICC" in the Council 
Conclusions, they were clearly filled with compromises.  The real question is 
whose preferences were compromised. In an opinion piece written for an 
American audience, Moller referred diplomatically to "a good compromise" 
between US concerns about the ICC and the EU's commitment to the integrity of 
Rome Statute.  As described below, though, the Conclusions were in fact less a 
compromise between the EU and the US than a compromise between the 
divergent preferences of the UK and Germany, as expected by the institutionalist 
theory of CFSP.
The Guiding Principles were drafted to ensure that any bilateral 
arrangement would be maximally consistent with the obligation of States Parties 
to cooperate fully with the ICC. In particular, they stipulate that (1) existing 
international agreements (such as extradition treaties and SOFAs) should be 
taken into account; (2) the draft agreements proposed by the US are inconsistent 
with the Statute; (3) any arrangement must ensure that persons who have 
committed crimes covered by the Statute are investigated and punished; (4) no 
arrangement for non-surrender can apply to nationals of an ICC State Party; and 
(5) any such arrangement can only cover government officials or military 
personnel. 
In that the Conclusions did not expressly forbid EU member states from 
signing a bilateral agreement with the United States under Article 98 of the Rome 
Statute, they reflect the British and Italian government's insistence on their right 
(and intent) to do so. However, the preferences of the majority of EU member 
states are clearly reflected in the rejection of the text proposed by Washington 
and in the strict requirements that any new agreement would have to meet. In 
order to comply with the Guiding Principles, the United States would have to stop 
seeking immunity for US citizens who were not sent abroad on government 
business, stop seeking immunity for citizens of states party to the Rome Statute 
who were working for the US government (most likely as private contractors), 
demonstrate that US courts have jurisdiction over all crimes within the jurisdiction 
of the ICC as defined in the Statute (which is not presently the case), and commit 
to investigate in good faith all credible accusations of such crimes. Given the 
deep suspicions of international law in general and the ICC in particular that 
prevailed in the US government during this period, such actions were highly 
unlikely.
Once the EU policy was announced, observers waited to see whether Italy 
or the UK would exploit the flexibility contained in the Conclusions and sign an 
agreement with the United States, as they had threatened to do less than one 
month earlier. At this point, the policymaking process was replaced by a process 
of competitive "spin" in which various parties sought to move events in their 
preferred direction by shaping public perceptions of what had been agreed. The 
German government was particularly active in this process. Emerging from the 
GAC, Joschka Fischer described the Conclusions as a virtual rejection of 
bilateral agreements: "We are against the conclusion of special agreements and 
we will not conclude such an agreement… We would have wished a clear 
rejection of the agreements. Because of the Principles we are very close to such 
a position."  
Within the British Parliament, supporters of the ICC urged the government 
not to sign bilateral immunity agreements with Washington, while the Minister for 
Trade praised the EU Conclusions for authorizing an alternative to the time-
limited immunity provided by the UN Security Council resolution: "We need 
something far more solid than that, and we have a means of getting it."   In mid-
October, an Under-Secretary from the British Foreign Office told the House of 
Lords that the government was "beginning discussions with the United States on 
the possibility of a bilateral agreement."  
Hoping to head off any such possibility, the European Parliament passed 
a strongly worded resolution on October 24 calling on "the governments and 
parliaments of the Member States to refrain from adopting any agreement which 
undermines the effective implementation of the Rome Statute."  That same day, 
Germany's Foreign Office released a detailed analysis of the Council 
Conclusions designed to bolster its view that they constituted a de facto (if not de 
jure) prohibition on signing bilateral immunity agreements.  The non-
governmental Coalition for the ICC agreed with the German memorandum (which 
it posted on the CICC website), and mobilized its lobbying efforts accordingly. At 
the next COJUR meeting, the British member expressed London's strong 
displeasure with the German memorandum, which led others to conclude that the 
UK was still leaning toward signing an agreement. 
Despite these multiple indications that the British government intended to 
sign a bilateral agreement, and that it believed this would be consistent with the 
Council Conclusions, pressure from EU and transnational channels has 
apparently made it difficult for London to do so. A special US ambassador 
travelled to London, Madrid, Rome and Vienna for discussion of the issue in late 
2002, but failed to achieve any agreements.  The Foreign Ministry of Portugal, 
which had tacitly supported the British and Italians during the negotiation of the 
Council Conclusions, rejected a bilateral agreement proposed by Washington 
after receiving a negative legal opinion from the Consultative Committee of the 
General Attorney's office, and decided to "freeze" further discussion of the 
issue.   The Dutch Foreign Ministry simply announced that existing treaties 
would make it "impossible for the Netherlands to honor a request for the 
surrender of US citizens to the Court without US permission…"  In the end, no 
EU member state has signed a bilateral agreement on ICC immunity with the US 
since the Council Conclusions were agreed, and the US has apparently 
abandoned its effort to obtain such agreements from EU members.
The closest that any member state has come is a provision within the 
revised U.S.-U.K. Extradition Treaty, which was signed in March 2003. According 
to Article 18(2) of the treaty, "A person extradited under the Treaty may not be 
the subject of onward extradition or surrender for any offense committed prior to 
the extradition to the Requesting State unless the Requested State consents."  
Not surprisingly, the US State Department heralded the apparent concession.  
However, this provision covers situations where the UK would request extradition 
of an individual held by the US, not the situation that was centrally at stake in the 
dispute over bilateral immunity agreements: the surrender to the ICC of US 
nationals or government employees held by a state that is a party to the Rome 
Statute. This is far less than the ability to accommodate US demands that the UK 
and Italy had insisted upon when they threatened to deny EU agreement at 
Elsinore.
In sum, we see that EU member states have been very reluctant to act on 
the latitude that the September 30, 2002 Council Conclusions provided for them 
to sign a bilateral agreement on ICC immunity with the United States. Given that 
the member states were subject to intense US pressure to sign such 
agreements, and two threatened to break EU unity on the ICC in order to retain 
this right, the evidence suggests that they have not done so because of the 
various pressures within a multi-level EU to comply with the spirit (as well as the 
letter) of agreements reached under CFSP. This finding supports the 
institutionalist expectation of high compliance with EU common policies, rather 
than the intergovernmentalist expectation that member states will seek to exploit 
such policies.

Part V: Conclusions 
While two case studies should not be treated as a definitive test of any 
theoretical proposition, these studies have a number of interesting implications 
for our understanding of EU foreign policy in particular and European integration 
in general. First, they demonstrate that CFSP skeptics are correct to assert that 
as long as common policies require unanimous support, "the EU will be 
hampered... by the constant threat of having one of its numerous member states 
break from its ranks" (Meunier 2000:132). This threat appears to have forced 
France and Germany to accept the UK's position within the UN Security Council, 
and it forced the majority of EU foreign ministers to make real concessions to the 
UK and Italy at their Elsinore meeting on bilateral agreements. Some elements of 
the Intergovernmental theory are thus clearly consistent with the dynamics of EU 
foreign policy making.
However, the case studies provide powerful evidence that the EU's foreign 
policymaking process is not condemned to result in LCD outcomes that are then 
exploited by the member states. As shown by the deliberations over the Council 
Conclusions on the ICC, the informal rules of CFSP and the diverse actors 
involved in the process can lead the EU to adopt common policies that reflect a 
real compromise among member state preferences. These findings are 
consistent with the Institutionalist theory of EU foreign policy presented in this 
paper and with studies of other areas of EU decision-making that question the 
"hard bargaining" image of the Council (Lewis 1998). Predictions that CFSP will 
"remain intergovernmental" thus gloss over potentially-important institutional 
variations within the EU foreign policymaking process (Wagner 2003).
The second case study also demonstrates the potential power of public 
framing and rhetorical pressure in EU foreign policymaking. Although the 
Commission's Legal Service had little statutory role in CFSP, the distribution and 
then media leak of its opinion on ICC bilateral agreements shaped public 
expectations and thus steered the ensuing debate within the Council. If qualified 
majority voting becomes more prevalent in CFSP, these processes of public 
framing should gain importance, since small numbers of member states will be 
less able to block agreement on common policies. Similarly, once a compromise 
policy was adopted, the UK and Italy found their freedom of maneuver 
constrained by rhetorical pressure from actors with different preferences, 
including other member states, national parliaments, the European Parliament, 
and NGOs. As a result, while both the UK and Italy insisted on the flexibility to 
sign bilateral agreements, and even threatened EU unity in order to guarantee 
this flexibility, neither has done so.
These latter findings do not imply that CFSP decision-making will 
necessarily or always depart significantly from the pattern expected by 
Intergovernmentalism. The contrast between the lowest common denominator 
outcome in the case of the UN resolution and the compromise outcome in the 
case of bilateral agreements indicates a need for further research on the 
conditions under which EU foreign policy is likely to fit intergovernmentalist 
versus institutionalist theory. Given the nature of the two cases, the institutional 
setting in which EU foreign policy cooperation occurs appears to matter a great 
deal. In the first case, member states were required only to consult with each 
other and to respect pre-existing EU positions. In the second case, once they 
agreed that the EU should have a common policy, the outcome was strongly 
influenced by by pressure from supranational and non-state actors and especially 
by norms of compromise and consensus within a highly institutionalized CFSP 
process. Research with broader case selection could assess the reliability of this 
finding.
Another possible source of variation in CFSP outcomes would be whether 
or not a common policy (or set of policies) already governs member states on the 
issue at hand. In what we may call Type 1 situations, no EU common policy 
exists but one or several have been proposed. Here, the status quo is when the 
member states reject the proposal(s), and change is when they adopt a common 
policy. In Type 2 situations, an EU common policy does exist but a new one has 
been proposed. Here, the status quo is when the existing common policy is 
maintained, and change is when the EU adopts a new common policy or reverts 
to having no common policy. If Institutionalist theory is correct, then median 
policy outcomes would be more likely in Type 2 situations, where an existing 
policy highlights the Union's prior commitment on an issue and thus reduces the 
likelihood and credibility of threats to defect by individual member states or 
minority groupings within the Council.
A third possibility is that the variation in policy-making dynamics depends 
upon the type of policy instrument under consideration. One could imagine, for 
example, that member states are more likely to engage in "hard bargaining" and 
thus more likely to provoke LCD outcomes, when negotiating over legally binding 
instruments such as common strategies, joint actions and common positions than 
over politically-binding instruments such as declarations and conclusions. 
However, CFSP practitioners tend to report that the distinction between a legal 
and a political obligation in the EU has little significance in CFSP, where the 
European Court of Justice has no oversight. 
A final possibility is that the answer depends upon the type of issue at 
stake. Sophie Meunier's (2000) conclusion that the EU's external relations will 
always be subject to lowest common denominator dynamics was based on a 
study of EU-US relations in the area of trade, which falls outside the scope of 
CFSP. As a general proposition, though, issue-area per se is a weak explanation 
for variations in foreign policymaking (Evangelista 1989). With respect to the EU, 
in fact, a focus on issue-area would probably lead one to expect median 
outcomes on trade policy, where the Commission has strong competence and 
majority voting dominates, and LCD outcomes within CFSP, where the 
Commission is weak and unanimity voting prevails.
Notwithstanding the need for further research, these cases show that the 
EU is not inevitably hobbled as an international actor by the Catch-22 dilemma of 
individual member state weakness and unanimity decision-making. Instead, we 
see that the EU is capable, at least under certain conditions, of agreeing on 
common foreign policies that bridge the divergent preferences of its member 
states and exert a significant impact on international outcomes. In the case of the 
ICC, most observers agree that without EU unity, the Rome Statute would have 
been weaker (if it were completed at all) and the United States would have been 
more successful in its effort to reduce the scope of the Court. This finding 
undermines blanket assertions that the EU is "too strong to be Washington's 
lackey, but too weak and divided to be either an effective partner or a formidable 
counterweight" (Kupchan 2003:226).
These EU foreign policy successes have been achieved without 
transferring policymaking authority to a centralized administrative structure 
comparable to the foreign ministry of a traditional or Westphalian state (Caporaso 
1996). They thus call into question warnings that the EU may never make 
effective foreign policy without unified state structures and a coherent national 
identity (Hill and Wallace 1996). The real analytical challenge, which this paper 
has just begun to broach, is how to re-conceptualize foreign policy for an 
evolving multi-level governance structure like the EU.


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  Quoted in Paul Reynolds, "Analysis: Quest for EU Identity," BBC News Online, 27 October 2004, 
http://news.bbc.co.uk/go/fr/-/2/hi/europe/3945001.stm (15 November 2004).
  Chris Patten, "The International Criminal Court," Address to the European Parliament, September 25, 
2002, from http://www.europa.eu.int/comm/external_relations/news/patten/sp02_431.htm.
  Ibid.
  Ibid.
  22 U.S.C.S. §262-2(a) and note (2000), Act of Nov. 29, 1999, Pub. L .No. 106-113.
  All CFSP acts on the ICC are available at 
http://ue.eu.int/cms3_fo/showPage.asp?id=628&lang=EN&mode=g (November 23, 2004).
  "War Crimes Court Created Over Fierce U.S. Objections," Washington Post, April 12, 2002. Compare 
Javier Solana, "International court signals a new era," International Herald Tribune, April 11, 2002.
  U.S. Department of Defense News Release No. 233-02, May 6, 2002.
  Declaration by the EU on the Position of the US towards the International Criminal Court, Brussels and 
Madrid, 13 May 2002. Twelve EU candidate countries plus Norway formally aligned themselves with the 
CFSP declaration.
  "Will Bush invade Cambridgeshire?" The Daily Telegraph, May 9, 2002.
  For text, see http://www.amicc.org/usinfo/reaction.html
  For the full text of these documents, see http://www.amicc.org/usinfo/reaction.html.
  "U.S. Seeks Court Immunity For E. Timor Peacekeepers," Washington Post, May 16, 2002.
  "Les Etats-Unis Surs de Leurs Bon Droit," Libération, 18 juin 2002.
  "U.S. Drops Demand for War Court Immunity," Washington Post, July 11, 2002.
  "EU to Speed Action on Bosnia Police," Financial Times, July 4, 2002; "Action on Bosnia Forces 
Delayed," Washington Post, July 4, 2002.
  Chris Patten, "Why Does America Fear This Court?" The Washington Post, July 9, 2002.
  "Germany Steps Up Criticism of US Over International Court," Agence France-Presse, 7 July 2002.
  United Nations, Press Release SC/7445/Rev.1, 10 July 2002, Security Council 4568th Meeting.
  "UK Accused of Preparing a Deal with America over Criminal Court," The Independent, July 10, 2002; 
"British back US plan to avoid war crimes court," The Times (London), July 11, 2002.
  "U.S. Drops Demand for War Court Immunity," Washington Post, July 11, 2002.
  For the transcript of Rumsfeld's comments, see http://www.amicc.org/docs/Rumsfeld6_26_02.pdf.
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  "Germany Gives Cool Response to U.S. Request for Soldiers' Immunity," Handelsblaat (English on-line 
edition), 23 July 2002.
  Statement by Danish Foreign Minister Per Stig Moller on the International Criminal Court at the 
European Parliament, Strasbourg, 25 September 2002.
  The following account of this episode is based largely on interviews with European officials and NGO 
experts, November 2004. The Commission's full opinion was later published in Human Rights Law 
Journal 23 (September 2002), 158-9.
  Interviews with European officials and NGO experts, November 2004.
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  Interviews with European officials and NGO experts, November 2004.
  "Bilateral pacts with US a violation, says EU," Financial Times, August 28, 2002.
  "East Europeans Torn on the Rack by International Court Row," The Guardian, August 17, 2002.
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Say Nations Have No Right to Exempt US Military from War Crimes Trials," Associated Press, August 28, 
2002.
  Interviews with European officials and NGO experts, November 2004.
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deal," CCN.com, August 31, 2002.
  Quoted in "UK, Italy eye U.S. court deal," CCN.com, August 31, 2002.
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September 1, 2002.
  "Brussels Notebook: A battle for the ICC," Financial Times, September 1, 2002; "Straw urges war court 
retreat," The Guardian, September 2, 2002.
  "US-EU deals over criminal court rapped," Baharein Tribune, 3 September 2002.
  Interviews with European officials, November 2004.
  Interviews with European officials, November 2004.
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new court," BBC News Online, September 4, 2002.
  Council of Europe Parliamentary Assembly Resolution 1300, 25 September 2002; European Parliament 
Resolution P5_TA-PROV (2002)0449, 26 September 2002. 
  National Security Strategy of the United States of America, Washington, DC, September 2002, p.31; 
interviews with European officials, November 2004.
  Statement by Danish Foreign Minister Per Stig Moller on the International Criminal Court at the 
European Parliament, Strasbourg, 25 September 2002.
  Interviews with European officials and NGO experts, November 2004.
  The EU Council Conclusions are available at http://ue.eu.int/pesc/ICC/default.asp?lang=en.
  "EU gives US troops immunity," BBC News Online, 30 September 2002.
  Per Stig Moller, "A Good Compromise on the ICC," Wall Street Journal, October 2, 2002.
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  See Lords Hansard, 14 October 2002; House of Commons Hansard, Daily Debates, 21 October 2002; 
Lords Hansard, 26 November 2002.
  Lords Hansard, 14 October 2002, Volume 639, Part 186.
  European Parliament resolution P5 TA-PROV(2002) 0521, 24 October 2002.  
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September 2002," 24 October 2002, available at 
http://www.iccnow.org/documents/otherissues/impunityart98/GermanonEUConcArt98_24Oct02.pdf
  Interviews with European officials and NGO experts, November 2004.
  "Portugal 'freezes' US immunity deal," BBC Monitoring Service, April 12, 2003.
  Memorandum from Minister of Foreign Affairs J.G. de Hoop Scheffer to the President of the Second 
Chamber of Parliament, 21 January 2003, available at www.amic.org/docs/Neth_98(2).pdf (18 October  
2004).
  See: http://www.statewatch.org/news/2003/jul/UK_USA_extradition.pdf (21 November 2004).
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http://www.state.gov/p/eur/rls/fs/34885.htm (21 November 2004).
  Interviews with European officials, November 2004.


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