Sunday, 12 August 2012

End the Cuban Embargo - Brian Safran


A series of recent developments in Cuba have called into question the sanctity of its communist regime and the validity of the continuance of the embargo the U.S. has imposed upon it. The impending death of Fidel Castro has the potential to affect a societal transformation in Cuba that challenges its long-standing stance against the United States. In addition, even under the Castro regime, signs of the onset of free-market economics have begun to infiltrate in Cuba amidst widespread poverty. Nevertheless, the United States government continues to enforce its archaic economic embargo on Cuba, effectively castrating the Cuban people from basic necessities and the means to their sustenance and wellbeing. The embargo has led to international condemnation of the United States; and the policy is considered by many to violate international law. No longer does Cuba represent a militaristic threat to the United States, yet the U.S. continues to impose sanctions on it as if the two nations were engaged in a seemingly never-ending war to the detriment of both nations. Accordingly, it is of the utmost importance that the United States government reexamines its policies vis-à-vis Cuba during this time of socio-political instability. In order to establish a mutually beneficial relationship, the U.S. should seek to put an end to the existing embargo and travel restrictions it enforces against Cuba. The upcoming regime transition and the associated weakness it will bring to the political environment highlight this moment as one of the few opportunities the United States will have to affect meaningful change in Cuba.
The United States’ longstanding embargo on Cuba was instituted in the context of a specific socio-political climate; one which no longer exists. Having lent its support to the Soviet Union, Cuba had been perceived by the United States to be a major potential geo-political and militaristic resource for the powerful Soviet empire in its efforts to dominate and undermine the United States. (Mesa-Lago, 1971, 87-88; Weinmann, 2004, 23-24) In addition, the U.S. government believed Cuban communism to be a prominent source of regional instability and thus, threatening to our political and economic standing and way of life. (Falcoff, 2003, 98) Acting on these precepts, the U.S. government promulgated an embargo on Cuba in 1962, effectively prohibiting businesses from engaging in trade in or with Cuba, and forbidding American travelers from visiting the island. (Griswold, 2005, 1; Falcoff, 2003, 132) The embargo was initially enacted to symbolize the fact that the United States refuses to support regimes that in turn do not support liberal democracy. However, in practice it has evolved into a symbol of the United States’ helplessness and inability to accomplish its desired goal of eliminating communism in Cuba. It should be noted that while many of the originally sought upon goals of implementing the embargo have been reached, such as the prevention of the formation of major military confrontations against the U.S., and a reduction in the ability of Cuban communism to infiltrate throughout Latin America, the embargo has failed to destroy the Cuban Communist regime, which has continued to prosper under its veil. (Griswold, 2005, 1) Thus, the policy is in need of a critical reexamination.
Domestically, the effects of the ongoing U.S. embargo have been disastrous. Millions of Cubans are without the food necessary to ensure survival, and many have little to no access to basic medicines. (Schechner, 1994, 8) In addition, the embargo prevents Cuban hospitals from being stocked with basic laboratory products and surgical equipment; effectively reducing the availability of emergency services for the Cuban people. (Herrera, 2003, 54) The primary reason why these goods fail to reach the Cuban people has been the continuance of the embargo, which prohibits the majority of goods from entering into the nation from the United States or through third parties. (Schechner, 1994, 8; Weinmann, 2004, 24) Among its losses have been reductions in export earnings, losses incurred based upon the fact that inflows of goods and services must circumvent the United States, inefficiencies in production and technology derived from the absence of amicable relations with the U.S., limitations on the usage of the U.S. dollar, and restrictions on remittance and foreign direct investment. (Herrera, 2003, 52) Some have estimated the damages of the embargo to the Cuban economy to be over seventy billion dollars in totality. (Herrera, 2003, 52) It cannot be doubted that the embargo has perpetuated unfavorable domestic conditions in Cuba, having left millions of people absent of basic human necessities.
The Cuban people have been reluctant to allow for economic change because communism has brought about social welfare and protection in the form of free education, equal access to healthcare, and socioeconomic equality; which before its implementation many had been without. (Schechner, 1998, 8) In essence, even though Cuba has made great strides in achieving relatively high indicators in health and education over the past half century as compared to pre-communist rule, the embargo has prevented the nation from realizing the full extent of its socio-economic capabilities. (Herrera, 2003, 54) While Cuban socialism has served to improve the lifestyle of the Cuban populace, the country as a whole has been adversely affected by its consequences. Some make the argument that the embargo should be maintained, because the economic intervention of the United States was itself the primary catalyst for the Cuban Revolution. However, Mr. Castro needed and enjoyed popular support while leading the country into the Cuban Revolution; support of which he would have been unlikely to attain if the populace were to have been aware of the long-term damage that they were inflicting upon themselves (Luxenburg, 1988, 4) Thus, the economic benefits that the Cuban people would accrue if the embargo were to be eliminated would likely serve to substantially reduce the risk of a resurgence in anti-U.S. sentiment or a provocation of a strengthening of Cuban communism.
Those that support the embargo often make the claim that as such a small Caribbean country, the economic advantage to be gained by the United States in lifting its embargo on Cuba would be negligible. This assertion is simply without merit, and the evidence proves it. A committee of former Department of Transportation economists recently noted that eradicating the embargo would add 1.6 billion dollars in revenue to the U.S. economy and establish approximately twenty thousand additional jobs in the U.S. (Weinmann, 2004, 29) Analysts have asserted that had the embargo been lifted, the Cuban people would have been able to use revenues derived from tourism to purchase significant amounts of machinery and agricultural products from the United States. (Griswold, 2005, 2) In fact, the American Farm Bureau has stated that the embargo has caused U.S. businesses to lose out on a major potential export market in agriculture which could have led American farmers to profits upwards of one billion dollars, and to an additional quarter million dollars per year in the exportation of farming machinery and accessories. (Griswold, 2005, 2) The passage of the 1992 Cuban Democracy Act, which banned all trade in foodstuffs to Cuba through U.S. subsidiaries, effectively deepening the Cuban depression, further served to damage U.S. agricultural business interests abroad. (Weinmann, 2004, 24; 29) In addition, the 1996 Helms-Burton Act, which allowed U.S. citizens, including those Cuban-Americans who had not been citizens at the time, to commence lawsuits against companies that had engaged in indirect business transactions with the Castro regime has had a crippling affect on a multitude of U.S. businesses. (Vanden, 2006, 360-61) In addition, the maintenance of the embargo requires a significant utilization of national security resources that can clearly be put to better use in protecting America from substantive terrorism threats rather than by using them to enforce an inconsequential ban on Cuban travel. (Weinmann, 2004, 30) Thus, from an economic standpoint, the United States does indeed have the potential to benefit from a liberalization of trade with Cuba.
The continuance of the embargo has incited widespread international condemnation of the Untied States. The United Nations General Assembly has consistently denounced the imposition of the embargo almost unanimously on the basis of its illegitimacy and violation of internationally accepted humanitarian standards. (Herrera, 2003, 50) The United States has also recently had to relinquish its seats on the human rights commissions both in the United Nations and in the Organization of American States, which many analysts believe to be a form of retribution aimed at the United States in response to its continuation of the Cuban embargo in the midst of its unfathomable and deplorable effects on the Cuban populace. (Weinmann, 2004, 30) Many leaders in the international community have expressed their distain for the U.S. embargo through international organizations based on the fact that the United States attempts to impose the sanctions it places on Cuba via “extraterritoriality,” or against the international community, thus clearly violating internationally-accepted standards of national sovereignty and international law (Herrera, 2003, 51). Global public opinion perceives the United States as engaging in strong economic and political tactics such as the Cuban embargo in an effort to further its own world domination. This sentiment serves to divert attention from the evils of Cuban communism, and instead focus international pressure on the United States; serving to render the existing embargo less effective. Some say that the United States would stand to lose its credibility if it were to put an end to the embargo without its having accomplished its goals in totality. However, the anti-U.S. sentiment on a global scale derived from its continuation is of much greater detriment to U.S. interests than the short-term loss in credibility it may experience by reorganizing its policy. Although in a prior historical era the Cuban embargo and its intended goals might have been seen by the international community as justifiable, the U.S. intervention in Cuba has now come to symbolize the domineering and intolerant methodology that it fosters in many of its international engagements.
In addition, U.S. public opinion appears to be shifting in favor of eliminating the embargo. By virtue of its geography, influence in national elections, near even split in terms of ideological composition, and preponderance of Cuban-Americans living within its borders, U.S.-Cuban policy is often procured by considering the views of the now anti-embargo Floridian constituency (Schechner, 7, 1994). Traditionally, Cuban-Americans living in Florida have tended to support the embargo, seeing it as a way to force democracy upon Cuba so as to make the Cuban government more responsive to the demands of the Cuban people, and by extension, their own interests abroad. (Schechner, 1994, 7) In recent years however, many have begun to view the embargo as a failure of foreign policy. In addition, the U.S. government has placed numerous restrictions upon them, prohibiting them from visiting their families in Cuba more than once every three years, and decreasing the amount of remittance that they are entitled to provide for their Cuban relatives. (Lovato, 2004, 23) Based in part upon changing public opinion, the U.S. Congress has enacted numerous measures to decrease the extent of the Cuban embargo, including the Trade Sanctions Reform and Export Enhancement Act of 2000, which allowed for limited sales of U.S. agricultural products and medical supplies. (Griswold, 2005, 2) In 2003, both the U.S. House of Representatives and the U.S. Senate passed measures designed to prevent the U.S. treasury from providing the funding necessary to enforce the ban on Cuban travel. (Weinmann, 2004, 28) Even within the Bush administration, many senior officials remain highly divided on how to best confront Cuban politics. (Weinmann, 2004, 25) Thus, many U.S. citizens and politicians believe the Cuban embargo to be unfounded and unnecessary in the contemporary world.
One may make the claim that the humanitarian concerns are a reason to maintain the embargo, citing the furtherance of and increase in human rights violations in China after the U.S. agreed to strengthen its economic ties in the 1990s. However, the applicability of this to Cuba is limited by the fact that United States shares a very different relationship with China than it does with Cuba. (Griswold, 2005, 3) In addition, the U.S. has learned from its past mistakes. Realizing that no foreign policy decision is finite, the United States should seek to gradually relax the embargo contingent upon the demonstration of measurable improvement in human rights and by continuing to oversee Cuban affairs to ensure that humanitarian concerns are being addressed and resolved. Many Cuban’s have begun to realize the need for their country to undergo economic change. In fact, even the Cuban government has recently undertaken initiatives that can be perceived as the beginnings of a transformation to a market economy, its having “cut subsidies, decentralized its economic structure, established joint ventures with hundreds of foreign private companies in a clear form of privatization, and has introduced competition between its own enterprises and companies” (Weinmann, 2004, 31-2). The desire for economic prosperity among the Cuban people is likely to supersede and undermine the ability of the Communism regime to strengthen its suppressive tactics. Fidel Castro, the prominent figurehead and individual largely responsible for the maintenance of its communist regime, is believed to be near death. (Fawthrop, 2006, 1) Many believe the end of the Castro regime will in of itself affect a hastening towards free market reform and a diminution of communist rule and hence human rights violations. The United States should consider using its lifting of the embargo as a bargaining chip for which to promulgate a diminution of human rights violations in Cuba. The United States government must come to the realization that in the midst of the political and economic instability propagated by widespread shortages in basic necessities; gradual, yet ubiquitous advances on behalf of the Cuban government towards establishing a market economy; and the foreseeable socio-political volatility likely to arise after the death of Mr. Castro, the time for change is now.
In conclusion, the embargo that the United States has placed upon Cuba has served to accomplish many of its intended goals. The policy was arguably of benefit to the United States insofar as it curbed the spread of communism and diminished the potential for military action to ensue against it. Cuban society, having undergone multiple transformations, has weathered the effects of the embargo. The Cuban people have survived years devoid of economic opportunities, and as a result have failed to achieve their maximum potential. A relaxation of the communist stance in Cuba has been fostered by a realization of the benefits that can be conferred by instituting free trade. As such, the sustenance of the communist regime stands in jeopardy, and the threat that it poses to global security has been greatly reduced. In addition, the policy has procured global anti-U.S. sentiment, threatening to lessen the United States’ standing in the international community as a result. The United States must take advantage of the foreseeable political instability set to arise in Cuba after the imminent death of Fidel Castro. Only when the United States puts an end to its Cuban embargo will it be able to affect meaningful change and greater wellbeing for both Cuba and itself.

Works Cited:

Falcoff, Mark. Cuba: the Morning After. 1st ed. Vol. 1. Washington, DC: The American Enterprise Institute for Public Policy Research, 2003. 1-241.

Fawthrop, Tom. "As Castro Fades, a Crop of New Leaders." The Christian Science Monitor 27 Dec. 2007. 13 Apr. 2007 <http://www.csmonitor.com/2006/1227/p06s01-woam.htm>.

Griswold, Daniel. "Four Decades of Failure: the U.S. Embargo Against Cuba." Cato's Center for Trade Policy Studies. 12 Oct. 2005. Rice University. 16 Apr. 2007 <http://www.freetrade.org/node/433/print>.

Herrera, Remy. "Why Lift the Embargo?" Document 1 (2003): 50-54. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Lovato, Roberto. "Rocking the Cuban Vote." The Nation 1 (2004): 23-26. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Luxenberg, Alan H. "Did Eisenhower Push Castro Into the Arms of the Soviets?" Journal of Interamerican Studies and World Affairs 1 (1988): 37-71. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Mesa-Lago, Carmela, ed. Revolutionary Change in Cuba. 1st ed. Vol. 1. London: Henry M. Snyder & Co., Inc., 1971. 3-525.

Schechner, Richard. "Cuba: Lift the American Embargo Now." TDR (1988-) 38 (1994): 7-9. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Vanden, Henry E., and Gary Prevost. Politics of Latin America: the Power Game. 2nd ed. Vol. 1. New York: Oxford UP, Inc., 2006. 238-240.

Weinmann, Lissa. "Washington's Irrational Cuba Policy." World Policy Journal 1 (2004): 22-31. JSTOR. JSTOR. Hofstra University, Hempstead, NY. 13 Apr. 2007. Keyword: Cuba and Embargo.

Civil Society Responds: An International Legal Framework for Juvenile Justice - Brian Safran


           Juvenile justice is a significant global issue and civil society has played a pivotal role in responding to it, both historically and in contemporary times. It has been estimated that around the world, there are currently over one million children who are deprived of their liberty (DCI 2010). Many of those children are subjected to “ineffective systems” and “deplorable institutions” which deny them of their basic rights to procedural protections at “every stage of the criminal justice process” (Kline 2005: 45). They are subjected to prisons that are overcrowded, violent and demoralizing, removed them from their family and community networks, and prevented from pursuing educational or vocational objectives, thus rendering any hope of their rehabilitation next to impossible. (PRI 2010) Several of these children are incarcerated with adults, despite studies that have shown that children housed with adults in penitentiaries are five times more likely to be sexually assaulted, twice as likely to be beaten, and fifty percent more likely to be attacked with a weapon than children housed in juvenile facilities. (DCI 2007) Many of those incarcerated are subjected to lengthy pre-trial detention, and are often detained for minor non-violent offenses such as begging and loitering; activities not even considered offenses when committed by adults. (DCI 2010) Clearly, juvenile offenders must be accorded rights so as to ensure that they not become so scarred that any attempts at rehabilitating them would be futile.
Over the past twenty-five years, we have seen the global community respond in unprecedented ways in an effort to develop international standards on juvenile crime. In addition to adopting several non-binding guidelines on juvenile justice, the vast majority of governments have ratified the binding Convention on the Rights of the Child, or CRC, which includes a number of provisions related to the protection of juveniles. Key to the shaping, implementing, monitoring and enforcing of these international standards has been global civil society. This paper examines the transnational issue of juvenile crime and the treatment of juvenile offenders, the effect of civil society organizations upon the shaping of international law and standards on the issue, and the impact of these organizations on advancing the cause of juvenile justice reform today. It is without question that the contributions of global civil society to the issue of juvenile justice have and will continue to have a significant impact on the lives of millions of children around the world in a way that no single government or intergovernmental organization would have been capable of accomplishing on its own.
A juvenile offender refers to an individual who is “criminally responsible but has not reached criminal majority” (Junger-Tas 2006: 505). From its early roots in the sixteenth and seventeenth centuries, the belief in community responsibility for juvenile offenders gradually emerged into a separate system of juvenile justice, which generally sought to empower juvenile judges with vast discretionary power, emphasize treatment over punishment, and provide for the maintenance of confidentially in court proceedings in light of the belief that the offending juvenile is a “victim of circumstances and his environment” and is amenable to rehabilitation (Junger-Tas 2006: 509). It should be noted that in modern times, governments vary with respect to the maximum age an offender will be treated as a juvenile before being subject to adult penalties. (Junger-Tas 2006: 505) However, a plethora of international legal texts, including a convention, as well as several General Assembly resolutions and other commentary on the subject recognize default provisions which set the age at which a person ceases being a juvenile to be eighteen. For instance, the protections afforded by the CRC apply to “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier” (Kline 2005: 45). Although the convention provides an exception for national law that varies from this standard, the language used in the convention indicates the presumption that the protections afforded to juveniles continue until their eighteenth birthday. Additionally, a series of non-binding guidelines as well as commentary on the subject by UN bodies and NGOs have made reference to the protections of the CRC as applying to all persons under the age of eighteen regardless of the exception clause. For instance, the 1990 United Nations Rules for the Protection of Juveniles Deprived of their Liberty defines a juvenile as “every person under the age of 18” (LNF 1990: 1). Additionally, a 2008 guidance note issued by the Secretary-General made mention of the CRC as applying to “all persons under the age of eighteen” (UNSG 2008: 1). It should also be noted that the CRC mandates that parties seek the “establishment of a minimum age below which children shall be presumed not to have the capacity to infringe the penal law,” which ranges from age six to sixteen depending on the country (UNICEF  2004: 1). Several non-governmental organizations, including Penal Reform International (PRI) advocate for the minimum age of criminal responsibility to be as high as possible and for eighteen years of age to be the threshold below which a child is treated as a juvenile. (PRI 2000)
Non-governmental organizations have played a significant role in bringing issues of juvenile delinquency to the forefront and have been central to the response of global civil society to the issue. There is perhaps no greater evidence of this than their role in helping in the design of a comprehensive set of juvenile justice standards and lobbying policymakers for their inclusion into the CRC. In fact, the very idea of a convention seeking to protect children’s rights sourced back to the efforts of Save the Child International Union (SCIU), a non-governmental organization first established after World War I by Eglantyne Jebb, who founded the organization in response to her desire to protect children ravished by the war. (Cohen B 1990) Through the efforts of its founder, SCIU drafted its own “Declaration of Geneva,” which was a declaration on the rights of the child and which was later incorporated into the League of Nations (Cohen B 1990: 138). This declaration became the precursor to the CRC and paved the way for the emergence of a rights-based approach to children’s issues. (Cohen B 1990; Kumari 2004)
 Civil society played a significant role both in the formation of the first draft of the convention, as well as in the review process that was undertaken during the proposed convention’s second reading. (Cohen A 1990) Whereas the immediate proposal for a convention protecting children’s rights came about as the result of a 1979 Polish initiative and was initially drafted by a “Working Group” of states through the Commission of Human Rights, proposals and recommendations by the NGO community had a significant influence, and were embodied in a series of reports submitted by the so-called “NGO Ad Hoc Group on the Drafting of the Convention on the Rights of the Child,” or “NGO Group” (Cohen A 1990: 4-5; Cohen B 1990: 139). While in the initial stages of the drafting process, NGOs were largely operating independently of one another, it wasn’t until the early 1980s that NGOs began to work together to promote their common cause. (Cohen B 1990) In 1982, NGOs submitted a jointly-drafted position paper recommending certain changes to the Polish proposal. (Cohen B 1990) A year later, they decided to forge an alliance so as to “systematically monito[r] progress in the drafting of the Convention” (Cohen B 1990: 139).  The “NGO Group” that formed was comprised of approximately thirty NGOs with ECOSOC Consultative Status, which met twice per year to make proposals to state delegations regarding the Convention (Cohen A 1990: 5). The recommendations they made with respect to juvenile justice included provisions calling for the prohibition of the life imprisonment of a juvenile without the possibility of parole, discouraging incarceration as a method of punishing a juvenile, and the right of the juvenile to maintain parental contact. (Cohen A 1990) Although many of their proposals were “virtual replications” of those of governments, the NGO Group helped to push governments to make accommodations for stronger language prohibiting certain practices (Cohen A 1990: 5). One of the NGO Group’s most significant achievements was its successful advocacy for a replacement of the initially-proposed single-article calling for juvenile justice standards with two separate articles; the first dealing with broad procedural rights and the second dealing more directly with substantive criminal justice concerns. (Cohen B 1990)
NGOs had an even greater impact during the “second reading” and review process that ensued (Cohen A 1990: 1-2). While initially the Working Group had proposed that the Secretary-General conduct a “technical review” of the proposed Convention and make recommendations for any alterations it deemed appropriate; the NGO community was concerned that such a review would omit and overlook a number of its concerns, and as a result, it took the initiative and compiled the Independent Commentary: United Nations Convention on the Rights of the Child which was a collection of essays on a variety of issues on the subject, and distributed it to all government delegations (Cohen A 1990: 2). Published by Defence for Children International, the Independent Commentary advocated for protections for juveniles against ex-post facto laws, a juvenile’s right to cross-examine witnesses and their right to consult with an interpreter. (Cohen A 1990) Ultimately, it was the alliance between NGOs formed by the creation of the NGO Group that served to transform their image as perceived by government delegations from “a cluster of individual organizations, each with its own particular ax to grind,” to a coordinated body of organizations just as “anxious,” capable of and interested in “creat[ing] an effective, comprehensive treaty in the shortest time possible” (Cohen B 1990: 145). In the end, the alterations that were made to the initial draft during the second reading and review process indicated that the Independent Commentary had significant influence over government delegations based on its ability to illuminate the weaknesses of the first draft and elucidate the need for a number of textual changes. (Cohen A 1990) As a result, the NGO community played a significant role in the design of the CRC and the juvenile justice provisions embodied within it while at the same time working side-by-side governments to develop language to which they could commit. Based in large part on the efforts of civil society, the CRC stands among the most widely-ratified and “universally accepted human rights instrument[s]” in the world today; as of 2004, only two UN member states had refused to adopt it (Kumari 2004: 23).
In addition to the CRC, NGOs have been substantial players in the drafting and implementation of a number of non-binding resolutions and guidelines, many of of which have served to advance juvenile justice protections. For instance, Defence for Children International (DCI) was actively “involved in the debates” leading to the formation of the UN Standard Minimum Rules for the Administration of Juvenile Justice (the 1985 Beijing Rules), the UN Guidelines on the Prevention of Juvenile Delinquency (the 1990 Riyadh Guidelines), and the UN Rules for Protection of Juveniles Deprived of their Liberty (the 1990 Havana Rules) (Vila 2005: 160). During the formation and implementation process of each of these guidelines, DCI played a significant role in advancing core principles of juvenile justice, including the notion that juvenile justice should function “in the best interest of the child,” should focus on “re-integration” and should, insofar as possible, involve the use of “alternatives to prison” (Vila 2005: 162). If incarceration is necessary “as a last resort,” it should be imposed “for the shortest time as possible” and should not subject an incarcerated juvenile to any form of “torture, cruel, inhumane and humiliating treatment,” inter alia (Vila 2005: 162). As a result of NGO efforts such as this, the General Assembly “note[d] with extreme appreciation” the “valuable work” of Defence for Children International, Amnesty International, and the Swedish Save the Children foundation by mentioning their contributions to the drafting of the Havana Rules within the text of the resolution adopting the guidelines. (LNF 1990: 1) Accordingly, NGOs have played a significant role not only with respect to the drafting and implementation of the CRC, but have also been key players in the design and execution of U.N. guidelines and resolutions calling for standards on juvenile justice.
Additionally, the text of the resolution adopting the Beijing Rules called upon “non-governmental organizations to collaborate with the Secretariat, and to take the necessary measures to ensure a concerted and sustained effort… to implement the principles contained in the Beijing Rules” (UNGA 1985: 3). Additionally, the Riyadh Guidelines called for “mechanisms for the appropriate co-ordination of prevention efforts between governmental and non-governmental agencies” (OHCHR 2007: 2). The language used in these guidelines emphasizing cooperation between the UN and the NGO community recognize the extensive role accorded to civil society in promoting juvenile justice reform and indicate an increasing willingness on the part of the UN to work with civil society to achieve its objectives.
In recent years, international NGOs focusing on juvenile justice issues have sought to monitor and coordinate the enforcement of the provisions of the CRC as well as the other non-binding guidelines and resolutions. Some of the most influential organizations have been Defence for Children International (DCI), Penal Reform International (PRI) and the International Juvenile Justice Observatory (IJJO). Additionally, the 1997 formation of the Interagency Panel on Juvenile Justice represents an effort to bring UN agencies and NGOs together to engage in dialogue, debate and discussion on juvenile justice issues and to be a forum for them to coordinate their efforts. (IJJP 2010: 1) Similarly, the NGO Group for the CRC and existence of IJJO ‘Consultative Status’ as a method by which NGOs can affiliate with IJJO represent forums bringing NGOs together to coordinate their efforts at achieving juvenile justice reform. (CRIN 2010; IJJO 2010)
Defense for Children International (DCI) is one organization that has been particularly prominent in dealing with issues of juvenile justice. In addition to its significant role in the drafting of the CRC, DCI has been active in lobbying governments to support it. (DCI 2010) DCI’s primary mission is to “protect, defend and advocate for the rights of children and young people in conflict with the law,” and it pursues its objectives through a variety of mechanisms (DCI 2010: 1). These include its running of “socio-legal defence centres” which provide juveniles accused of criminal activity with legal representation, with a special focus on juveniles detained on faulty procedural grounds (DCI 2010: 1). Furthermore, DCI maintains a significant “advocacy and lobby[ing]” effort aimed at advocating for the establishment of both international and national policies which best promote the interests of the child and lobbying governments to induce compliance with their obligations under international law. (DCI 2010: 1). Additionally, through its several “national sections” spread across the world, DCI works on the ground with local law enforcement officials including judges, prosecutors and the police to build capacity through the providing of training in strategies for “promoting children’s human rights”  (DCI 2010: 1, DCI 2007: 5). Sixty-five percent of DCI’s “national sections” are committed to working in the field of juvenile justice (DCI 2007: 7).
DCI maintains a “research and monitoring” component which aims to determine if international standards are being upheld, and hold governments accountable for violations by calling upon the Human Rights Council and others to “take action” against them (DCI 2010: 1). To this end, in 2007 DCI released a report entitled From Legislation to Action: Trends In Juvenile Justice Across 15 Countries, in which it examined the progress made to date by several countries in adhering to the international standards to which they have agreed. (DCI 2007) The report came to the conclusion that since the adoption of the CRC, the actual implementation of the juvenile justice provisions embedded within it has been “uneven” (DCI 2007: 4). It attributed the gap between commitment and implementation to a “lack of trained professionals,” “lack of government resources and political will,” “lack of education on the rights of the child,” and “public fears resulting in pressure to institute punitive measures” against juvenile offenders (DCI 2007: 21).
DCI found that in a number of the countries surveyed, juveniles can be detained for periods of time so great that it appears “detention is not used as a measure of last resort” as required by the CRC (DCI 2007: 38).  For instance, in Costa Rica, a juvenile between the ages of twelve and fifteen can be sentenced to up to ten years imprisonment, and in France and Argentina, judges are in several circumstances free to sentence juveniles to the same penalties as they would adults (DCI 2007) Regarding compliance with obligations under the CRC that member states provide for humane conditions of detention, DCI found a gap between north and south, noting that juveniles in the developing world were often held in overcrowded prisons, combined with adults, and given insufficient health care and nutrition. With respect to efforts in place to prevent juvenile delinquency from occurring in the first place, DCI noted that regions differed in their establishment of a “comprehensive prevention strategy” aimed at addressing “broader social and economic injustices such as poverty and discrimination” (DCI 2007: 27). Whereas the European countries surveyed had the most programs directly aimed at preventing juvenile crime, Latin America’s programs were part of broader efforts aimed at reducing street violence, and in Africa, few programs were found that were directly relevant to delinquency prevention, and attributed the differences to growing concerns in Europe about the need to address the juvenile crime, widespread concern in Latin America over violence and insecurity, and a lack of resources in Africa. (DCI 2007)
Armed with findings such as these, DCI advocates change and promotes accountability. For instance, DCI recently led a coalition of NGOs reporting to UN Committee Against Torture regarding the torture of Palestinian children detained by Israeli authorities. (DCI 2009) DCI therefore recognizes there are often significant gaps between a country’s commitment to a particular legal obligation and the actual execution of that obligation on the ground, and even decades after the adoption of the CRC,  it continues to play a significant role in monitoring and enforcing juvenile justice standards on a global scale.
Another influential non-governmental organization has been Penal Reform International (PRI). In its 10 Point Plan for Juvenile Justice, PRI advocates for alternatives to incarceration, youth courts, detention only as a measure of last resort and for limited amounts of time, and calls for inspections of detention facilities. (PRI 2010) In addition to its work on lobbying for legal reform on juvenile justice issues at an international and national level, PRI sets its task on working to implement programs in specific communities that promote the well-being of children in conflict with the law. (PRI 2010) Among its programs have been efforts in the Middle East and North Africa to build capacity and train law enforcement on children’s rights issues, work in Romania and Bulgaria to ensure the equal treatment of Roma juvenile offenders and to develop alternatives to detention specifically with respect to juvenile offenders accused of drug offenses, an effort in Russia and Ukraine to improve juvenile prison conditions, and work in the South Caucasus region to provide vocational skills and training to young probationers. (PRI 2010) All of these efforts aim at protecting children and bringing states into compliance with their obligations under international law.
A third NGO playing a particularly significant role on juvenile justice issues is the International Juvenile Justice Observatory (IJJO). The IJJO sets its main objective on “the development of minors and young people so they can acquire the skills they need to become free citizens outside the circuits of exclusion and imprisonment” (IJJO 2010: 1). In order to achieve that objective, IJJO focuses on developing a “permanent, international forum of analysis, knowledge and mutual reflection on legislation and models of intervention,” to “contribution to improvement of intervention” and to “promote the creation of an international network of  juvenile justice observers” (IJJO 2010: 1).
Among IJJO’s core activities are efforts to create a “space” to serve as a “meeting point” among interested parties, to aid in the “diffusion of minimum standards” and to provide for the “promotion, production and dissemination of research” (IJJO 2010: 1). To that end, IJJO maintains a comprehensive database on its website which provides for the instantaneous download of over 25,000 entries of documents, news clippings, events, organizations and links related to juvenile justice, and provides for an interactive online community that enables collaboration between interested parties. (IJJO 2010: 1) IJJO also maintains an “International School for Juvenile Justice,” which serves as a mechanism of generating and disseminating knowledge and offers online coursework to professionals in the socio-legal community focusing on practical intervention methods (ISJJ 2010: 1).
One important focus of IJJO’s is on a series of campaigns which seek to advance particular components of its mission. For instance, in its campaign for “Legal Assistance for Children in Conflict with the Law,” it sets its primary objectives on “raising public awareness” of juvenile rights, and in “creating a global database” on legislation, in proving “the non-compliance of some states” and to “motivate states to update their national legislation” to comport with the CRC (IJJO 2010: 1). On the campaign’s website, participants can access country-by-country profiles, indicating progress made and challenges that remain in reforming juvenile justice. A second campaign launched by the IJJO is entitled “Two decades of Juvenile Justice: Improvements Since the Adaptation of the Rights of the Child,” which represents an effort by IJJO to “take stock, analyze and assess” the contributions of the CRC to the lives of children on the ground at its twenty-year milestone (IJJO 2010: 1). Therefore, global civil society has continued to play a significant role in shaping, implementing, monitoring and enforcing juvenile justice reform even decades after the passage of the CRC.
In addition to the contributions of individual non-governmental organizations, three networks of actors have also contributed significantly to advancing the cause of juvenile justice reform. The first is the Interagency Panel on Juvenile Justice (IPJJ). Established by ECOSOC Resolution 1997/30, the IPJJ focuses its efforts on providing “technical advice and assistance in juvenile justice” so as to promote international standards and norms on the topic (IPJJ 2010: 1). The IPJJ brings together several UN agencies including UNICEF and UNDP, as well as NGOs including DCI, PRI and IJJO. The IPJJ serves as a hub of data and statistics on juvenile justice from various countries, and offers several events, conferences and training programs aimed at the development of “common tools” and “common positions” among its members (IPJJ 2010: 1).
A second network focusing on juvenile justice reform is the NGO Group for the CRC. (CRIN 2010: 1) The NGO Group for the CRC is the continuation of the original “NGO Group” which played a significant role in drafting and implementing the CRC in the 1980s (CRIN 2010: 1). Its primary objectives are to “promote and facilitate… the full implementation of the Convention,” to “contribute to the monitoring work of the Committee on the Rights of the Child” and to “facilitate a flow of information” between the United Nations and the NGO community (CRIN 2010: 1). The NGO Group’s Liaison Unit is responsible for coordinating the involvement of the NGO community in the working group meetings of the Committee on the Rights of the Child, distributing information to the NGO community on recent developments in juvenile justice, and provides training and tools to NGOs to enhance their monitoring and networking abilities. (CRIN 2010: 1).
Finally, as part of its effort to contribute to a “global juvenile justice without borders,” the International Juvenile Justice Observatory (IJJO) has itself set up a system whereby organizations ranging from other NGOs  to universities and public administrations can apply for and receive “IJJO Consultative Status” if their core values comport with those of the IJJO (IJJO 2010: 1). In addition to active involvement in the field of juvenile justice, NGOs seeking IJJO Consultative Status must be officially registered with the government in which its headquarters are located, must have been in existence for three years or more, must have a board of directors and a democratic and transparent decision-making system, and public administrations must function primarily to carry out juvenile justice tasks. (IJJO 2010: 1) By offering a method by which other interested parties can affiliate with the organization, IJJO creates an “international space” by which it can enhance its impact on the global community. (IJJO 2010: 1). Therefore, civil society organizations focusing on juvenile justice reforms have not only tackled the issue on their own, but have joined forces with other non-governmental organizations, intergovernmental organizations and governments to advance the cause of reform.
Since the adoption of the CRC and the related General Assembly Resolutions which deal with juvenile justice, the trajectories of innumerous children’s lives have been improved. As a result of these efforts, a number of governments have set out to revise their domestic law so as to comport with the new international standards and norms. For instance, Peru as of 1993, Italy as of 1994, Malawi as of 1995, Kazakhstan and Poland as of 1997, Morocco as of 1999, Kenya as of 2001, and Mali as of 2002 each abolished provisions in their domestic law allowing judges to sentence juveniles to life imprisonment without parole. (IJJO 2009) Furthermore, both Yemen as of 1994 and Mali as of 2002 have set the age of criminal responsibility to eighteen. (IJJO 2009) Additionally, efforts have been undertaken in recent years aimed at processing juvenile offenders more quickly and ensuring that they be considered for alternative sentences to imprisonment, such as in Germany, England and Wales, and in a number of East Asian countries. (IJJO 2009) Based on these findings, it is clear that the efforts of civil society in contributing to the drafting and implementation of international legal texts on juvenile delinquency have been borne out by actual policy change, and have improved children’s lives for the better.
In sum, efforts at achieving global juvenile justice reform indicate the growing scope of influence and responsibility accorded to civil society over the past several decades.  Based on an unbridled belief that children are vulnerable to harm through the the justice system and in need of protection, NGOs found themselves capable of calling upon transnational advocacy networks to affect change. In adopting a child-rights framework, the NGO community paved the way for the emergence of several comprehensive international legal texts which seek to protect the rights of children in the criminal justice system. Among the most prominent is the Convention on the Rights of the Child. In addition to introducing the initial idea for a convention aimed at protecting children’s rights, NGOs were vital to the promulgation of the CRC and its underlying policy of offering protection to juvenile offenders, and they ultimately contributed to its design from its primary objectives to its specific textual organization, working with governments to secure its implementation. Since its adoption, civil society has focused its efforts on closing the gap between commitment and execution, and NGOs such as DCI, PRI and IJJO have played significant roles in monitoring compliance, spreading information about its mandates and encouraging national reforms. Additionally, we have seen NGOs come together in unprecedented ways to affect change through such alliances as the Interagency Panel on Juvenile Justice, the NGO Group for the CRC, and through the network of NGOs bearing IJJO Consultative Status. In the end, the successes of the juvenile justice campaign can best be measured by the series of national legal reforms made aiming to protect juveniles and bring states into compliance with changing international standards and norms. Although significant challenges lie ahead if universal compliance with legal mandates is to be achieved, it cannot be doubted that without the contributions of global civil society, the depth and scope of the progress we see today in actual juvenile justice policy as well as in the establishment of norms and standards would not have been possible. The global juvenile justice campaign truly demonstrates the extent to which global civil society is “setting agendas, negotiating outcomes, conferring legitimacy, and implementing solutions” on issues of worldwide concern in unprecedented ways (Simmons 1998: 1).

Works Cited:

"10 Point Plan for Juvenile Justice." 10 Point Plan for Juvenile Justice. Penal Reform International, 22 Sep. 2000. Web. 25 Feb. 2010. <www.penalreform.org/resources/rep-2000-ten-point-plan-en.pdf>. [cited in text as PRI]

Cohen, Cynthia P. "Juvenile Justice Provisions of the Draft Convention on the Rights of the Child." New York Law School Journal of Human Rights 7.1 (1990): 1-15. HeinOnline. Web. 25 Feb. 2010. <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/nylshr7&div=8&id=&page=>. [cited in text as Cohen A]

Cohen, Cynthia P. "The Role of Nongovernmental Organizations in the Drafting of the Convention on the Rights of the Child." Human Rights Quarterly 12 (1990): 137-47. HeinOnline. Web. 25 Feb. 2010. <http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/hurq12&div=17&id=&page=>. [cited in text as Cohen B]

 "Convention on the Rights of the Child: First Part, Articles 31-41." Unite for Children. UNICEF, 2004. Web. 4 Apr. 2010. <http://www.unicef.org/turkey/crc/cr23e.html>. [cited in text as UNICEF]

Defence for Children International (2009): 1-67. A History of Child Rights in Action. Web. 4 Apr. 2010. <http://www.defenceforchildren.nl/images/20/1024.pdf>.

"Defence for Children International." Defence for Children International. DCI, 2009. Web. 04 Apr. 2010. <http://www.defenceforchildren.org>. [cited in text as DCI 2010]

Defence for Children International (2007): 1-64. From Legislation to Action? Trends in Juvenile Justice Systems Across 15 Countries. Defence for Children International. Web. 4 Apr. 2010. <http://www.defenceforchildren.org/files/gabriella/DCI-JJ-Report-2007-FINAL-VERSION-with-cover.pdf>. [cited in text as DCI 2007]

"International and Regional Instruments." Convention on the Rights of the Child. Child Rights Monitor, 14 Dec. 1990. Web. 04 Apr. 2010. <http://www.lnf.org.lb/child/unrules2.html>. [cited in text as LNF 1990]

"International Juvenile Justice Observatory." International Juvenile Justice Observatory. Web. 18 Feb. 2010. <http://www.oijj.org>.

"International School for Juvenile Justice." ISJJ: International School for Juvenile Justice. International Juvenile Justice Observatory, 2010. Web. 04 Apr. 2010. [cited in text as ISJJ]

Junger-Tas, Josine. "Trends in International Juvenile Justice: What Conclusions Can be Drawn." International Handbook of Juvenile Justice (2006): 505-32. European Society of Criminology, 2006. Web. 25 Feb. 2010. <www.esc-eurocrim.org/files/ch20.pdf>.

"Juvenile Justice." Defence for Children International, 2009. Web. 19 Feb. 2010. <http://www.defenceforchildren.org/index.php?option=com_content&view=article&id=34&Itemid=18>.

"Juvenile Justice Panel." Interagency Panel on Juvenile Justice. IPJJ, Mar. 2010. Web. 04 Apr. 2010. <http://www.juvenilejusticepanel.org/en/>.

Kline, Cecilia. "Juveniles in Detention: A Universal Trend of Child Rights Violations." Children’s Legal Rights Journal 25 (2005): 45-59. HeinOnline. Web. 25 Feb. 2010.
<http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/clrj25&div=27&id=&page=>.

Kumari, Ved. Creative Child Advocacy: Global Perspectives. 1st ed. Minneapolis: Sage Publications, 2004. Print.

"NGO Group for the Convention on the Rights of the Child." NGO Group for the Convention on the Rights of the Child. Child Rights Information Network, 2010. Web. 04 Apr. 2010. <http://www.crin.org/NgoGroupforCRC/>. [cited in text as CRIN]

Simmons, P.J. "Learning to Live with NGOs." Foreign Policy (1998): 1-6. NGOs and International Institutions. Global Policy Forum, Fall 1998. Web. 4 Apr. 2010. <http://www.globalpolicy.org/component/content/article/177/31607.html>.

"Subgroup on Juvenile Justice." CRIN: Child Rights Information Network. Child Rights Information Network, 2010. Web. 18 Feb. 2010. <http://www.crin.org/docs/resources/publications/NGOCRC/subgroup-juvenilejustice.asp>.

"Two Decades of Juvenile Justice: Improvements Since the Adoption of the Convention on the Rights of the Child." International Juvenile Justice Observatory. IJJO, Nov. 2009. Web. 04 Apr. 2010. <http://www.oijj.org/crc20/index.php>.

United Nations. Secretary-General. "Guidance Note of the Secretary-General: UN Approach to Justice for Children." Secretary-General. Sep. 2008. 25 Feb. 2010. <http://ru.unrol.org/doc.aspx?n=RoL_Guidance_Note_UN_Approach_Justice_for_Children_FINAL.pdf>. [cited in text as UNSG]

"United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)." Office of the United Nations High Commissioner for Human Rights. United Nations, 2007. Web. 04 Apr. 2010. <http://www2.ohchr.org/english/law/juvenile.htm>. [cited in text as OHCHR]

"United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("the Beijing Rules")." United Nations. United Nations General Assembly, 1985. Web. 04 Apr. 2010. <http://www.un.org/documents/ga/res/40/a40r033.htm>. [cited in text as UNGA]

Vila, Jorge. "DCI - on the Issue of Juvenile Justice." Lecture. Kids Behind Bars: A Child Rights Perspective. Bethlehem. 2 July 2005. Plenary 4: Advocacy at International and National Levels. University of Essex. Web. 4 Apr. 2010. <http://www.essex.ac.uk/armedcon/story_id/000274.pdf>.

The EU and the Area of Freedom, Security and Justice: A Neo-functionalist Perspective - Brian Safran


Part I: Introduction

            The gradual deepening of integration in the European Union’s Area of Freedom, Security and Justice among member states represents a significant step in advancing the European project. This policy area covers matters as diverse as visa policy, immigration and asylum, police cooperation and crime prevention. In the analysis that follows, it will be shown that the processes which led to the progression of reform in this area demonstrate the influence of Haas’ neo-functionalist perspective. Integration in the Area of Freedom, Security and Justice has exemplified the role supranational and sub-national actors play in increasing states’ willingness to relinquish their sovereignty to the institutions of the European Union, and in fostering the development of a self-perpetuating deepening of integration. Furthermore, it will be argued that the Area of Freedom, Security and Justice, as it operates pursuant to reforms introduced in the Lisbon Treaty, represents a new ‘great project’ capable of sustaining European integration in a political context- especially in light of the recent challenges facing the single market.

Part II: The Neo-functionalist Framework

            Neo-functionalism is a theory which is itself an outgrowth of functionalism, an earlier theoretical perspective made famous by David Mitrany in the early 1940s. (Moga 797, Rosamond 31) Unlike the prevailing idealism of the inter-war period, Mitrany believed that the “starting point” in discussions surrounding the feasibility of integration should be a determination of what the “essential functions [of integration] would be” and not a broad, idealistic vision of a perfect international society (Rosamond 32). Functionalism assumed that rational and peaceful progress is possible and that “conflict and disharmony are not endemic to the human condition” (Rosamond 31). Mitrany argued that “to regard the state as a given, was to impose an unnecessary flexibility when it came to thinking about how the requirements of human beings could best be served” (Rosamond 33). He believed that transnational institutions could be better at providing for human welfare than national governments, and predicted that the creation of these institutions would lead to a process of “popular loyalty transference” from the state and to these institutions, which would in turn reduce the potential for international conflict (Rosamond 33). Functionalism maintains that integration will proceed within particular sectors, fostering the creation of a web of “task-oriented agencies,” which ultimately erode state sovereignty (Rosamond 36). According to Mitrany, integration is governed by the “logic of functional necessity,” which ultimately leads to the creation of new institutions at the supranational level, and which in turn serve as venues for collective problem resolution  (Meyers 10). In sum, functionalism argues that it is common interests within a functional area which lead to the building of community, and that institutions “provide the expertise in those sectors where integration takes place” (Mazzucelli).
With respect to European integration, functionalism is often used to explain the processes by which the European Coal and Steel Community came into being. (Mazzucelli) A functionalist would see the creation of European institutions such as the High Authority, the European Parliament, the European Commission and the European Court of Justice under the Treaty of Paris as a necessary condition for integration to proceed and would see these institutions as integral to the integration process. (Mazzucelli) As a result of their creation, policy-making autonomy in the sectors of coal and steel was taken out of national hands and put into the hands of institutions above the state, which in turn would serve as forums for deeper cooperation within those sectors, leading to the transfer of national loyalties to supranational institutions and an attendant erosion of national sovereignty. (Rosamond 33)
Neo-functionalism is a theory of regional integration articulated by Ernst B. Haas in his book The Uniting of Europe (1968), and it expanded upon Mitrany’s previous conception of functionalism. (Moga 797, Rosamond 54) According to Haas, integration is not a process which is limited to the deepening of policy collaboration in a particular functional area. Instead, Haas argued that integration has a “spill-over” effect in the sense that integration in a few limited sectors will gradually create an unstoppable dynamic which will then “spill-over” into other sectors (Mazzucelli). In addition to this form of “functional spillover,” the spill-over effect can occur in the form of “political spillover,” according to which “political actors in several distinct national settings are persuaded to shift their loyalties, expectations and political activities toward a new centre, whose institutions possess or demand jurisdiction over the pre-existing national states” and finally, “cultivated spillover,” which involves the processes by which supranational institutions themselves seek to “build constituencies” and lobby for a further deepening of integration (“Chapter 4: Competing Theories” 79, Mdladla 9). Therefore, the primary players in the forging ahead of integration are actors above the state (supranational institutions) and below the state (interest groups and political parties). (Burley 54)
As summarized by Moravcsik, integration under neo-functionalism proceeds by way of “European institutional momentum,” “transnational business interest group activity” and “international political leadership” (67). As national loyalties are transferred to supranational institutions, common interests become the focal point, and as a result, integration becomes self-sustaining, self-perpetuating, and self-expanding. It is important to note that that the neo-functionalist perspective sees integration proceeding primarily by way of economic interests, but ultimately, its proponents believe that “the extent of economic integration [will]… make political integration inevitable at some point.” (“Chapter 4: Competing Theories” 78, Rosamond 54). In fact, one of the key strengths of the neo-functionalist perspective have been its ability to “quite explicitly predic[t] a wid[e] range of possible outcomes”  based on the evolution of “institutions, policies and payoffs” (Schmitter 4).
Another of the most notable strengths of the neo-functionalist perspective is its ability to offer a plausible explanation for the sequential stages of European integration in its early phases. In fact, neo-functionalism was initially seen as a “grand theory,” as it was used to elucidate the bases for the transition from the creation of the European Coal and Steel Community to attempts to create a European Defense Community, as well as the “blend[ing] of the three Treaties of Rome,” which included the European Coal and Steel Community, the European Economic Community, and the European Atomic Energy Community (Moga 799, Harris 5). Neo-functionalism offered an explanation for the transition in the European dialogue from security concerns to economic concerns in the 1950s and 1960s, based on a belief that integration in coal and steel “triggered demands” which led to the founding of the European Economic Community with the Treaty of Rome (“Chapter 4: Competing Theories” 79).
However, critics of the theory have focused on the years that followed. During this time, neo-functionalism made way for the leadership of Charles De Gaulle, both of France and of Europe, and the attendant emergence of the “Luxembourg Compromise” led to a renewed focus on intergovernmentalism, or pluralism- a theory which ultimately emphasized “lowest-common-denominator” bargaining among sovereign states (Moravcsik 42, 46, Rosamond 75). As a result, the 1970s are considered to be the “Dark Ages of the neofunctionalist tenet” (Moga 800). By 1975, Haas declared neo-functionalism to be “obsolescent” in its ability to describe European integration. (Rosamond 50) In 1986, Andrew Moravcsik argued that the establishment of the Single European Act (SEA) effectuated a “complete replacement of neofunctionalism with the intergovernmentalist tenant” as he saw the SEA as coming into being based on lowest-common-denominator bargaining between Britain, France and Germany. (Moga 801-2) He argued that the “integration process did not supersede or circumvent the political will of national leaders; in fact, it reflected their will”  (Moga 802).
In addition to being criticized for failing to offer a plausible explanation for the historical reality, neo-functionalism has also been challenged for failing to account for why states might continue to pursue their own interests and refuse to cede their sovereignty to supranational institutions. (Schmitter 4) Many have criticized neo-functionalism for its view of integration as being a largely “deterministic process,” whereby “a given action, related to a specific goal, creates situations, which in turn create a further condition and a need for more, and so forth” (“EU-Studies” 5). Another weakness of the neo-functionalist model is its “uni-directionality,” or the notion that it does not proffer an explanation as to why states might backtrack from integration processes to which they have committed themselves  (Schmitter 4). It has also been challenged on the grounds that it lacks “testable hypotheses” (Schmitter 12). Yet despite these criticisms, analysis will show that in recent years, Europe has witnessed the return of the ‘grand theory’ as neo-functionalism has regained significant explanatory value. The forces that forged together to form the single market have today ‘spilled over’ into integration in the policies related to the Area of Freedom, Security and Justice. Rather than simply “accepting the lowest common denominator,” integration has served to “upgrad[e] the common interest[s]” of the Member States, thus demonstrating the continuing validity of the neo-functionalist perspective in explaining the roots of European integration  (Moravcsik 67).

Part III: The Development of the Area of Freedom, Security and Justice

            Matters related to criminal justice, border security and citizenship have traditionally been seen as closely-guarded tenants of national sovereignty. (Hall 1) Throughout much of the early stages of European integration, these matters were largely seen as national competencies. Prior to the establishment of the Maastricht Treaty, common policies only existed to the extent they related to the free movement of goods, capital, labor and services. (Mdladla 27) Early efforts to coordinate justice and immigration-related policy were predominantly intergovernmental in nature. For instance, the establishment of the Trevi Group in 1975 as a intergovernmental forum aimed at encouraging cooperation in counterterrorism efforts “fell outside of the scope of EC law completely” (Fletcher 4). In 1985, the “Schengen acquis” was signed by a limited number of states on an intergovernmental basis, and it aimed to harmonize policy related to police, border controls and judicial policy (Mdladla 27-8, Hall 3).
            The 1992 Maastricht Treaty which established the European Union represented the first coordinated effort to bring justice policy into the European institutional framework. Acknowledging the inefficiencies of intergovernmental decision-making outside of the European Union, a separate pillar was created within the EU institutional framework that was to be dedicated solely to Justice and Home Affairs (JHA), although nevertheless still to be coordinated on an intergovernmental basis. (Roşioru 12) Pursuant to Article VI of the Maastricht Treaty, most of the policy areas constituting the third pillar remained under the competency of national governments, as demonstrated by the Commission’s maintenance of a “shared right of initiative” with member states, the existence of unanimous voting requirements in the Council of Ministers, and by the fact that the Court of Justice lacked jurisdiction in these areas (Roşioru 13-4). However, the creation of the third pillar represented an important step insofar as it “secured a commitment from willing member states that they would foster ‘close cooperation’” in the field of Justice and Home Affairs (Mdladla 28). The insertion of a “passerelle” in the text of Title VI of the Maastricht Treaty suggesting that the Council could, at its choosing, modify the institutional framework to further supranationalize six additional policy areas under the third pillar demonstrated a willingness among states to consider further supranationalization in these areas at an indeterminate point in the future (Roşioru 14).  Although state interests remained the primary feature of the Maastricht reforms, the Maastricht Treaty did introduce qualified majority voting (QMV) in certain matters related to visa policy, representing an early example of supranationalization and the erosion of sovereignty in this policy area and perhaps a sign of what was to come. (Roşioru 13)
            In 1997, when the Amsterdam Treaty was signed, the Justice and Home Affairs pillar was “reshaped” and broadened through the introduction of different categories of specific policy areas that would fall under the third pillar; categories which included “freedom,” “security,” and “justice” (Mdladla 28). Even more importantly, the Amsterdam Treaty paved the way for a relocation of the applicable provisions from Title VI of the Maastricht Treaty to Title IV of the 1965 European Community Treaty, which ultimately had the effect of bringing policies in the areas of visas, asylum and immigration, border inspections, and judicial cooperation in civil matters into the purview of the first pillar, thereby subjecting such policy areas to the “Community method” (Mdladla 28-9). Pursuant to the Community method, there was to be co-decision between the Council of the European Union and the European Parliament, as well as qualified majority voting (QMV) in these policy areas. (Mdladla 29) The Amsterdam Treaty vastly extended the scope of European Union law, and permitted the Court of Justice to issue rulings on matters which previously would have fallen under the sole competency of national governments. (Mdladla 29) As a result of this change, the legislative instruments made available to the Court pursuant to the Community method offered “undisputed bindingness, justiciability and… even direct effect” of its rulings in the applicable policy areas. (Roşioru 16) Furthermore, the Amsterdam Treaty brought the Schengen acquis into the European framework, although Ireland, Denmark and the United Kingdom chose to opt-out of its provisions. (Mdladla 29) With the Amsterdam Treaty, the Commission was to gain an exclusive right of initiative in the aforementioned policy areas after a phase-in period of five years, and the only policy areas which to remain within the third pillar and which would therefore remain subject to intergovernmental procedures (whereby member states could unilaterally veto legislative proposals) were police and judicial cooperation in criminal matters and the combating of racism and xenophobia. (Roşioru 17, Mdladla 30)
            Following the Amsterdam Treaty was the Nice Treaty of 2003 which removed most of the remaining requirements mandating unanimous decision-making in the areas of visas, asylum and immigration, border inspections, and judicial cooperation in civil matters, and also a result, these policies were placed under the purview of the Community method. (Mdladla 31) As a result, the Nice Treaty would subject policies in these areas to co-decision and qualified majority voting. (Mdladla 31) At the same time, two influential programs paved the way for an even more significant deepening of integration in the field of Justice and Home Affairs. These programs were known as the Tampere Programme of 1999 and the Hague Programme of 2004, and they sought to deepen integration by setting guidelines and providing a roadmap for future integration in the Area of Freedom, Security and Justice. ("Hague Programme” 1) One significant outcome of these initiatives was the application of the principle of “mutual recognition” to the third pillar, requiring member states to recognize judicial decisions issued by other member states ("Judicial Co-operation” 1, Herlin-Karnell 2).
            With the Lisbon Treaty, which was signed by heads of state or government in December 2007, and which came into effect in December, 2009, the entire existing pillar structure was abolished. (Court of Justice 1) As a result, matters previously under the purview of the third pillar were to be treated pursuant the same procedures as is legislation relating to the single market. (Council of the European Union 1) QMV and co-decision were introduced in areas ranging from legal immigration and residence permits, to judicial cooperation in criminal matters, Eurojust, non-operational police cooperation, Europol, and civil protection. (Sieberson 949-51, Donnelly 20) However, in certain matters such as policies dealing with passports, family law, operational police cooperation, and the proposed creation of a European Public Prosecutor’s Office, unanimity in the Council was to remain the rule. (Council of the European Union 2) With respect to the “right of initiative,” or the ability to propose new legislation, the European Commission would retain this right for itself, although a legislative initiative could be introduced by one-quarter of EU member states in areas including judicial cooperation in criminal matters, police cooperation, and administrative cooperation (Donnelly 20, Council of the European Union 2). In effect, individual Member States could no longer unilaterally introduce legislation dealing with policies falling into the framework of the Area of Freedom, Security and Justice.
Among the most significant effects of the entering into force of the Lisbon Treaty in the Area of Freedom, Security and Justice are that it brought the former third pillar entirely into the ambit of the jurisdiction of the Court of Justice. (Herlin-Karnell 3, Council of the European Union 1) Previously, the Court retained a very limited scope of jurisdiction over the matters falling within the third pillar, as such jurisdiction was limited to those instances where Member States had made a “voluntary declaration” accepting the jurisdiction of the Court (Court of Justice 2, Herlin-Karnell 8). Although the Court of Justice will not have the power to review the “validity or proportionality” of law enforcement operations carried out by Member States, or exercise responsibilities relating to the “maintenance of law and order” or the “safeguarding of internal security,” the Court will have the power to “rule on the validity or interpretation of EU acts” (Herlin-Karnell 8). It will also have the power to issue preliminary rulings, or rulings as to whether national legislation is in conformity with European Union law in advance of an actual dispute arising upon request by any national court on issues of police and judicial cooperation in criminal matters, to matters surroundings visas, asylum, immigration and other polices relating to the free movement of persons upon request by any national court. (Court of Justice 2) Furthermore, the Lisbon Treaty has loosened the requirements for individual standing in the Court of Justice, as now so long as an individual is “directly affect[ed]” by a regulatory act, meaning that the act entails no “implementing measures” that must be carried out by national governments, individuals can bring actions against the institutions, bodies, agencies or offices of the European Union, even if they are not “individually concerned,” or personally prejudiced, by that particular act. (Court of Justice 4) Finally, the Lisbon Treaty has consolidated the procedures by which “pecuniary sanctions” or punitive damages can be awarded by the Court, and has introduced a new procedure by which the Commission can bring actions for failure to comply with obligations existing prior to the date the Lisbon Treaty went into effect concerning police cooperation and judicial cooperation in criminal matters, after a phase-in period of five years. (Court of Justice 4)
With respect to substantive criminal law, the Lisbon Treaty sets forth that “the European Parliament and the Council may establish minimum rules concerning the definition of criminal law offenses and sanctions in the area of particularly serious crime with a cross border dimension or impact of such offences or from a special need to combat them on a common basis” (Herlin-Karnell 5). A series of substantive crimes that with respect to which, the EU was to have legislative competence was set forth by the Treaty, including terrorism, organized crime and money laundering. (Herlin-Karnell 5) The Treaty also brought about significant enhancements to the operational capabilities of Eurojust, an EU agency tasked with “facilitating the optimal co-ordination of action for investigations and prosecutions covering the territory of more than one Member State” (“The History of Eurojust”) The Treaty provided further for the future possibility of a deepening of integration through the transforming of Eurojust into an office of a European Public Prosecutor, which would be made responsible for “investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union’s financial interests” (Pop 1, Herlin-Karnell 7). It is widely believed that the establishment of the position of the European Public Prosecutor is likely in the near future. (Caoimh 4)
            Additionally, the Lisbon Treaty brought about a vast expansion of the mandate of Europol, an EU-wide police force. (“A Stronger Europol”) Although initially limited at its founding in 1994 to measures to combat the sale and use of drugs, Europol’s powers progressively expanded to include “organized crime and terrorism,” and with the Lisbon Treaty, Europol now finds itself tasked with investigating “all serious forms of cross-border crime” (“Europol to Become EU Agency”) Pursuant to the Lisbon Treaty, Europol was brought into the framework of the European Union as a “formal EU agency” for the first time in its fifteen year history. (“A Stronger Europol”) As a result, the agency’s source of funding and accountability was shifted from national governments to the European Union. (“A Stronger Europol,” “Europol to Become EU Agency”) Along with this change in accountability came a vast expansion of Europol’s procedural powers, and today the organization has the ability to “implement” operational actions, carried out “jointly with” national authorities; marking significant changes to the rules which prior to the Lisbon Treaty only permitted Europol to “support” and “encourage” operational actions which were to be carried out solely by national authorities. (“Europol to Become EU Agency”)
Based on these reforms, it cannot be denied that since the founding of the European Union with the Maastricht Treaty, there have been significant advances in integration with respect to the policies now constituting the Area of Freedom, Security and Justice. Given the strains on the single market, the magnitude of the financial crises now plaguing the Eurozone and the attendant declining pace of economic integration, the political reforms undertaken that have resulted in the deepening of reform in the Area of Freedom, Security and Justice have firmly established this policy area as a new ‘great project’ capable of sustaining European integration well into the future.

Part IV: Neo-functionalism and the Area of Freedom, Security and Justice

            Traditionally, policies pertaining to criminal law and immigration are decisions which “go to the heart of national sovereignty” (Reding 3). It has been argued that “few areas of public policy can be more central to the concept of state sovereignty than the right to determine a person’s entry on to sovereign territory and the ability to maintain internal security”  (Hall 6). As a result, forging consensus on policies that were so “inextricably linked to notions of statehood and sovereignty” has been a “painfully slow and complicated task” (Roşioru, 1). As the forgoing analysis has shown, there has been a significant degree of integration, both in depth and scope, with respect to policies comprising the former area of Justice and Home Affairs. The reforms brought about by the Lisbon Treaty paved the way for a significant deepening of integration in this policy area. Analysis will show that these reforms are not attributable merely to a ‘coming together’ of national interests, but can rather be more properly attributed to “European institutional momentum,” “transnational… interest group activity” and “international political leadership,” in combination with the “spill-over effect,” thus demonstrating the continuing explanatory value of Haas’ neo-functionalist perspective (Moravcsik 67, Rosamond 59). Unlike Moravcsik’s conception of intergovernmentalism and its emphasis on lowest common denominator bargaining among states, integration in the Area of Freedom, Security and Justice has taken on a ‘life of its own’ as supranational institutions, sub-national actors and states have become committed to tackling a collective set of problems with a collective toolset. (46)
The ‘spill-over effect’ has been described as “the condition whereby policies made pursuant to an initial task and grant of power can be made real only if the task itself is expanded, as reflected in the compromises among the states interested in the task” (Mdladla 5). Integration in policy areas formerly under the purview of Justice and Home Affairs has been seen as “the obverse side of the coin which is the European Union’s well-established internal market” (Donnelly 22). Since the 1957 Treaty of Rome created an internal market characterized by the free movement of goods, services, persons and capital, and the subsequent establishment of a single market with the 1986 Single European Act (SEA), European integration has proceeded in large part on the basis of reforms aimed at deepening the economic cooperation among European states and peoples. (Moravcsik 41) The single market was a “boon to citizens,” to the extent it permitted them to move goods, money and even themselves across national frontiers without consequence. (Donnelly 22, Moravcsik 41) Yet, along with the removal of the barriers which once restricted such movement has come an increasing desire for “easy access to justice” and greater “protection from a variety of threats” including transnational terrorism and organized crime (“European Commission Outlines Its Vision,” Hall 3). The establishment of the single market also created a need for EU governments to collaborate “ever more closely together to protect physical security and civil liberties” (Donnelly 22). Furthermore, governments have come to realize the ineffectiveness of traditional national legal systems in their ability to cope with the challenges associated with rules of citizenship in the context of a European Union where individuals may be born in one country, reside in a second country and work in another. (Donnelly 22) Just as predicted by neo-functionalism, integration in the economic sector has encouraged and facilitated integration in the political sector. (“Chapter 4: Competing Theories” 78, Rosamond 54)
Yet, it can be argued that with respect to the reforms which have deepened integration in the Area of Freedom, Security and Justice, governments have played an important but secondary role in forging ahead with integration. Instead, what has emerged is a combination of factors that can be analyzed within the framework of the key tenants of neo-functionalism as outlined by Moravcsik; namely, “European institutional momentum,” “transnational business interest group activity,” and “international political leadership” (67).
With respect to European institutional momentum, the growth in the powers of the Court of Justice demonstrates the influence of a European institution in advancing the cause of integration in the Area of Freedom, Security and Justice. By virtue of the fact that the jurisdiction of the Court was expanded to include the power to issue rulings regarding policies in this area, the full body of European Union legal principles were to apply. (Herlin-Karnell 3, Mdladla 29) Among these legal principles was the “direct effects doctrine,” or the notion that once an EU law has been established, individuals could raise EU legal defenses and “invoke” their rights under EU law in national courts (Folsom 76-7, “The Direct Effect of Community Law”). Another legal principle established by the Court was the doctrine of “supremacy,” according to which if an EU law and a national law come into conflict, the EU law will be deemed the higher authority ("European Union Law"). It should be noted that both of these judicial powers were effectively carved out by the Court itself through earlier case decisions, such as the Van Gend en Loos case (1963) with respect to direct effect, as well as Costa vs. ENEL (1964) with respect to supremacy. (“The Direct Effect of Community Law”) Although these cases preceded the reforms in the Area of Freedom, Security and Justice, it can be argued that by virtue of the expansion of the Court’s jurisdiction to this area, the application of the Court’s own body of self-defined powers has contributed to “European institutional momentum” and has furthered the cause of integration (Moravcsik 67). As an additional example, with respect to proposals made by the European Commission, proposals to combat human trafficking and illicit arms trafficking exemplify the enhanced role of the Commission and its consolidated ‘right of initiative’ pursuant to the Lisbon Treaty and demonstrate specific efforts being undertaken by EU institutions to advance the cause of reform in this policy area. (Rosamond 52)
With respect to ‘transnational business interest group activity,’ it is important to note that neo-functionalism implies that “political integration is a more or less inevitable side-effect of economic integration” (Rosamond 52). Although the influence of transnational business interest groups is more readily apparent with respect to economic integration, an analogy can be drawn to the coming together of judges, prosecutors, police officers, and individual litigants as similarly situated sub-national actors who have “shift[ed] their loyalties” to the European Union as they seek to realize their common interests (Rosamond 66). As the Court of Justice has taken on increasing powers and an ever-more expansive role in the public lives of European citizenries, there has been an attendant increase in the “personal incentives for individual litigants, their lawyers, and lower national courts to participate in construction of the…legal system” (Burley 41-76). The establishment of the “European Judicial Network” and of Eurojust and Europol as EU agencies tasked with enhancing judicial cooperation between the Member States has led police and prosecutors to transfer their loyalties to the EU to the extent to which doing so allows them to better attain their objective of ensuring that “suspected or convicted criminals” cannot escape from justice (“Activities of the European Union”). In short, European integration has fostered a transfer of loyalties from the state to the institutions of the EU, as sub-national actors have increasingly come to see EU law as offering them a mechanism by which they can advance their interests.
Finally, international political leadership has been a significant contributing factor to the furtherance of integration in the Area of Freedom, Security and Justice. Several influential leaders have emerged seeking to advance the cause of reform at the EU level. Among these leaders are Jonathan Faull, the former Director-General for Justice, Freedom and Security, a charismatic speaker who took a leading role in planning and organizing the objectives and 170 initiatives of the Stockholm Programme, a five-year plan commencing in 2010 aimed at continuing the process of reform in the Area of Freedom, Security and Justice. ("Jonathan Faull on JHA Policy”) Even more recently, Viviane Reding has provided powerful leadership as she serves as the European Commissioner for Justice, Fundamental Rights and Citizenship, and has made a powerful case as she seeks to advance a proposal requiring national authorities to provide individuals suspected of criminal activity with a copy of the charges levied against them in a language they can understand, as well as in coordinating data protection policies. (Phillips 1, Sumner 1) Another influential leader has been Vassilios Skouris, currently serving as President of the Court of Justice of the European Union. In addition to presiding over the Court and its various reforms since 2003, Mr. Skouris has played a role in bridging the fundamental rights of “freedom, equality and social justice” and the “new fields of activity of the European Union;” namely, freedom, security and justice. (Skouris 40) Through the efforts of these leaders, a belief has been advanced that “ends already agreed to cannot be attained without further united steps” (Moravcsik 45).
Although this analysis has suggested that neo-functionalism has significant explanatory value, it is not without its weaknesses in its ability to explain integration within the Area of Freedom, Security and Justice. As previously discussed, one weakness of neo-functionalism is that it discredits the role of national governments in their continuing ability to pursue their own domestic interests. (Schmitter 4) Some have argued that there is currently “[in]sufficient mutual trust and too divergent criminal laws between the Member States to justify the application of a trade based internal market model in the present area,” and the abolishment of the traditional requirement of “dual criminality” remains an unlikely prospect (Herlin-Karnell 5). This lack of mutual trust can be evidenced within the Lisbon Treaty itself, as for instance, its provisions provide that member states retain the ability to “opt-out” from “sensitive questions” that would “affect fundamental aspects of a Member States’ criminal justice system” (Herlin-Karnell 4-5). Also, the changes brought about in EU law pursuant to the Lisbon Treaty do not apply to the United Kingdom, Ireland and Denmark, which have chosen to opt-out from the entirety of EU law as it concerns Justice and Home Affairs. (Peers 1) A neo-functionalist would perhaps see these occurrences as indicative that integration in this area is not yet complete and that the progress made to date will, over time, facilitate further integration in this area. Yet because neo-functionalism “predicts automatic integration, has no testable hypotheses, [and] lacks a rigorous theory,” it does not provide a firm understanding of exactly when one could expect further integration to occur (Schmitter 12, 17). However, despite the criticisms of the salient limitations of the theory, the evolution of Community competence within a successively broader range of policy areas within the Area of Freedom, Security and Justice over time demonstrates that its basic predictions, despite their inability to be subjected to scientific testing, continue to have validity.
Another purported weakness of the neo-functionalist model is its “uni-directionality,” or the fact that it fails to explain why states, having chosen to “coordinate their efforts across a wider range of tasks and delegate more authority to common institutions… decide to defect from such arrangements” (Schmitter 4). For instance, with respect to the Area of Freedom, Security and Justice, as a result of negotiations surrounding the proposed Treaty Establishing a Constitution for Europe, there was initially broad, unanimous support for the full “supranational governance of criminal law matters” (Baker 53). Yet by the time of negotiations over the Lisbon Treaty, the idea of bringing the “whole of the AFSJ fully within Community competence had become thwarted by the insistence of three States on securing arrangements for their flexible participation” (Baker 53). Although the failure to account for states abandoning their prior commitments represents a salient limitation of the theory, no single theory can be expected to explain every possible aspect of the integration process. As a theory which endeavors to explain how integration advances, it is perhaps left to others to examine the bases as to why disintegration might occur.
Although significant challenges lie ahead before it can be proclaimed that the European Union has created a single, unified policy in the Area of Freedom, Security and Justice, it nevertheless remains clear that the neo-functionalist perspective continues to offer a cognizable explanation of European integration within this functional area. The aforementioned initiatives taken over the past several years have contributed to a regime whereby national governments have increasingly yielded to supranational institutions. Furthermore, the popular loyalties of sub-national actors in these policy areas are gradually shifting from national governments to the European Union. Despite its methodological flaws, neo-functionalism provides just as compelling of an explanation for integration as it did in the earlier stages of the European project.

Part V: Conclusion

In closing, the development of the Area of Freedom, Security and Justice indicates the ongoing influence of the neo-functionalist school of thought. As presented, the gradual deepening of integration in this area demonstrates the spill-over effect, as well as the influence of actors above and below the state in furthering the cause of reform. As integration in this policy area has progressed, states have found themselves increasingly less capable of vetoing legislation and overriding judicial decisions. Although neo-functionalism has significant explanatory power, its major weaknesses are that it is that it discredits the role of governments in their ability to advance or stifle further integration, and fails to explain why states might choose to defect from the processes to which they have previously committed to. Yet, the forgoing analysis has suggested that a significant degree of integration has been made possible through the realizing and “upgrading” of common interests (Moravcsik 67). Today, the European Union faces significant challenges. With sovereign debt figures, budget deficits and unemployment levels soaring, the European Union is in need of a ‘great project’ to sustain integration. As has been outlined, a significant degree of integration has been achieved in the areas of judicial integration, visa and asylum policy, and justice cooperation. It is without question that given the significant strains on the economies of the Eurozone, the monetary union and the single market, further integration in the Area of Freedom, Security and Justice is a project capable of sustaining the European project well into the future.


Works Cited:

"A Stronger Europol." Press Releases. Europol, 5 Jan. 2010. Web. 10 Aug. 2010.
<http://www.europol.europa.eu/index.asp?page=news&news=pr100105.htm>.

"Activities of the European Union - Justice, Freedom and Security." Europa. Europa, 30 July
2010. Web. 10 Aug. 2010. <http://europa.eu/pol/justice/index_en.htm>.

Baker, Estella, and Christopher Harding. "From past Imperfect to Future Perfect? A Longitudinal
Study of the Third Pillar." European Law Review 34.1 (2009): 25-54. Online Research Repository. Aberystwyth University, 2009. Web. 10 Aug. 2010. <http://cadair.aber.ac.uk/dspace/bitstream/2160/3138/1/Harding%20and%20Baker.pdf>.

Burley, Anne-Marie, and Walter Mattli. "Europe Before the Court: A Political Theory of Legal
Integration." International Organization 47.1 (1993): 41-76. Southeast European Politics Online. World Peace Foundation and the Massachusetts Institute of Technology, Winter 1993. Web. 10 Aug. 2010. <www.seep.ceu.hu/alpsa/articles/burley.pdf>.

Caoimh, Aindrias Ó. "The Lisbon Treaty and the Court of Justice of the European Union."
Institute of International and European Affairs (2010): 1-4. Challenges to the Court of Justice of the EU Post Lisbon. Institute of International and European Affairs, 16 Feb. 2010. Web. 10 Aug. 2010. <http://www.iiea.com/documents/challenges-to-the-court-of-justice-of-the-european-union-post-libon-transcript>.

"Chapter 4: Competing Theories." Politics and Policies. University of London, 2010. Web. 10
Aug. 2010. <http://www.londoninternational.ac.uk/current_students/programme_resources/lse/lse_pdf/further_units/88_politics_policies/88_politics_and_policies_chapter4.pdf>.

Council of the European Union. General Secretariat. The Lisbon Treaty's Impact on the Justice
and Home Affairs (JHA) Council: More Co-decision and New Working Structures. Consilium. General Secretariat of the Council of the European Union, Dec. 2009. Web. 10 Aug. 2010. <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/111615.pdf>.

Court of Justice of the European Communities. Press and Information. The Treaty of Lisbon and
the Court of Justice of the European Union. Europa - Press Releases Rapid. Court of Justice of the European Communities, 30 Nov. 2009. Web. 10 Aug. 2010. <http://europa.eu/rapid/pressReleasesAction.do?reference=CJE/09/104&format=HTML&aged=0&language=EN&guiLanguage=en>.

Donnelly, Brendan. "Justice and Home Affairs in the Lisbon Treaty: A Constitutionalizing
Clarifiation?" The Federal Trust. EIPAscope, 2008. Web. 10 Aug. 2010. <www.fedtrust.co.uk/admin/uploads/Eipascope_Donnelly_JHA.pdf>.

"EU-Studies." EU Studies. Sacircamo, 26 Mar. 2007. Web. 12 Aug. 2010.
<www.sacircamo.com/documents/EU%20Studies.pdf>.

"European Commission Outlines Its Vision for the Area of Freedom, Security and Justice in the
Next Five Years." 7th Space Interactive. 7th Space Interactive, 10 June 2009. Web. 10 Aug. 2010. <http://7thspace.com/headlines/311559/european_commission_outlines_its_vision_for_the_area_of_freedom_security_and_justice_in_the_next_five_years.html>.

"European Union Law." EU Facts. CIVITAS: The Institute for the Study of Civil Society, 27
Apr. 2010. Web. 11 Aug. 2010. <http://www.civitas.org.uk/eufacts/OS/OS6.htm>.

"Europol to Become EU Agency." Weblog post. Democracy Movement. Democracy Movement,
18 Apr. 2008. Web. 10 Aug. 2010. <http://democracymovementblog.blogspot.com/2008/04/europol-to-become-eu-agency.html>.

Folsom, Ralph H. Principles of European Union Law. 2nd ed. St. Paul: West, 2009. Print.

Fletcher, Maria. The European Court of Justice: Carving Itself an Influential Role in the EU's
Third Pillar. EUSA's Tenth Biennial International Conference. University of Glasgow, 17 May 2017. Web. 10 Aug. 2010. <www.unc.edu/euce/eusa2007/papers/fletcher-m-08i.pdf>.

"Jonathan Faull on JHA Policy." Events. The Institute of International and European Affairs, 8
June 2009. Web. 10 Aug. 2010. <http://www.iiea.com/events/the-future-of-justice-and-home-affairs-in-the-european-union>.

"Judicial Co-operation between Member States in Civil and Commercial Matters Is a European
Community Policy Linked to the Free Circulation of People." Europa. European Commission, 6 Aug. 2010. Web. 10 Aug. 2010. <http://ec.europa.eu/justice_home/fsj/civil/recognition/fsj_civil_recognition_general_en.htm>.

"Justice and Home Affairs - Newsroom." Europa. European Commission, 2010. Web. 10 Aug.
2010. <http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm>.

Hall, Ben, and Ashish Bhatt. "Policing Europe: EU Justice and Home Affairs Co-operation."
Justice & Home Affairs. Centre for European Reform, Nov. 1999. Web. 10 Aug. 2010. <www.cer.org.uk/pdf/p130_policing_europe.pdf>.

"Hague Programme - JHA Programme 2005-10." European Union Information
Website. EurActiv, 13 Dec. 2005. Web. 10 Aug. 2010. <http://www.euractiv.com/en/security/hague-programme-jha-programme-2005-10/article-130657>.

Harris, Megan. "Neofunctionalism and the Widening vs. Deepening Dilemma." Wider Europe.
University of Texas at El Paso, 3 June 2004. Web. 10 Aug. 2010. <http://faculty.utep.edu/LinkClick.aspx?link=Neofunctionalism+and+the+Widening+v+Deepening+Dilemma.doc&tabid=19444&mid=43213>.

Herlin-Karnell, Ester. "The Lisbon Treaty and the Area of Criminal Law and Justice." European
Policy Analysis (2008): 1-10. Sieps. Swedish Institute for European Policy Studies, Mar. 2008. Web. 10 Aug. 2010. <http://www.sieps.se/en/dokument_/download-document/421-20083epa.html>.

Mazzucelli, Colette. "Enlarging From Six to Nine: Difficulties of British Accession and
European Political Cooperation – Federalism vs. Intergovernmentalism." Europe in the 21st Century. New York University, New York. 12 July 2010. Lecture.

Mdladla, Gugulethu. "Is the European Union a Political Union? An Analysis of the Policy Area
of Freedom, Security and Justice." WIReDSpace. University of Witwatersrand, 2007. Web. 10 Aug. 2010. <http://wiredspace.wits.ac.za/bitstream/handle/10539/5812/IS%20THE%20EUROPEAN%20UNION%20A%20POLITICAL%20UNION%202.pdf?sequence=1>.

Meyers, Reinhard. "Theories of European Integration I." International Human Rights Research.
WWU Münster, 2006. Web. 10 Aug. 2010. <www.ihrr.net/files/2006ss%20/Meyers_Theory_EU_Integration.pdf>.

Moga, Teodor L. "The Contribution of the Neofunctionalist and Intergovernmentalist Theories to
the Evolution of the European Integration Process." Journal of Alternative Perspectives in the Social Sciences 1.3 (2009): 796-807. University of Iasi. University of Iasi, 2009. Web. 10 Aug. 2010.

Moravcsik, Andrew. “Negotiating the Single European Act: National Interests and Conventional
Statecraft in the European Community.” In The New European Community: Decision-making and Institutional Change, edited by Robert O. Keohane, and Stanley Hoffman, 41-84. San Francisco: Westview Press, 1991.

Phillips, Leigh. "Brussels Wants US-style 'Miranda Rights' across Europe." EUobserver.
EUobserver, 20 July 2010. Web. 10 Aug. 2010. <http://euobserver.com/22/30514>.

Pop, Valentina. "Europe Lacks Resources to Tackle Cross-border Crime, Says Eurojust."
EUobserver. EUobserver, 17 Mar. 2010. Web. 10 Aug. 2010. <http://euobserver.com/9/29703>.

Reding, Viviane. "The Future of European Criminal Justice under the Lisbon Treaty." Speech.
Speech 10/89. European Law Academy, Trier. 12 Mar. 2010. Europa. Press Releases Rapid, 12 Mar. 2010. Web. 10 Aug. 2010. <http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/89&format=HTML&aged=0&language=EN&guiLanguage=en>.

Rosamond, Ben. Theories of European Integration. Ed. Neill Nugent and William E. Patterson.
New York: St. Martin's, 2000. Print.

Roşioru, Mihai. "Communautarization of the Justice and Home Affairs Policy Sector. A
Historical Institutionalist Approach." ETD Collection. Central European University, 2007. Web. 10 Aug. 2010. <www.etd.ceu.hu/2007/rosioru_mihai.pdf>.

Schmitter, Philippe C. "Neo-Neo-Functionalism." European University Institute. European
University Institute, July 2002. Web. 10 Aug. 2010. <http://www.eui.eu/Documents/DepartmentsCentres/SPS/Profiles/Schmitter/NeoNeoFunctionalismRev.pdf>.

Sieberson, Stephen C. "Inching Toward EU Supranationalism? Qualified Majority Voting and
Unanimity Under the Treaty of Lisbon." Virginia Journal of International Law 50.4 (2010): 921-95. University of Virginia School of Law, May 2010. Web. 10 Aug. 2010. <http://www.vjil.org/wp-content/uploads/2010/05/VJIL-50.4-Sieberson.pdf>.

Skouris, Vassilios. "Dialogue Between Judges." Speech. Dialogue Between Judges. European
Court of Human Rights, Strasbourg. 10 Aug. 2010. European Court of Human Rights. Council of Europe, Aug. 2009. Web. 10 Aug. 2010. <http://www.echr.coe.int/NR/rdonlyres/B35F6B38-C429-48D2-AB33-77A3C0CD9DA3/0/Dialogue_between_judges_2009.pdf>.

Sumner, Stuart. "EU Data Protection Laws Too Fragmented, Says EU Commission." Computing.
Incisive Media Investments Limited, 16 July 2010. Web. 10 Aug. 2010. <http://www.computing.co.uk/computing/news/2266627/european-protection-laws>.

"The Direct Effect of Community Law." Europa. Europa, 21 Feb. 2008. Web. 10 Aug. 2010.
<http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14
547_en.htm>.

"The History of Eurojust." About Eurojust. Eurojust, 2009. Web. 10 Aug. 2010.
<http://www.eurojust.europa.eu/about.htm>.